T v The Queen

[2018] NZHC 3274

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SS 203AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-31

[2018] NZHC 3274

BETWEEN

T

Appellant

AND

THE QUEEN

Respondent

Hearing:

6 December 2018

Counsel:

J C Hannam for Appellant

R K Thomson for Respondent

Judgment:

12 December 2018

JUDGMENT OF THOMAS J

[1]                 The appellant, Mr T, was sentenced in the District Court to 21 months’ imprisonment following his guilty pleas to two charges of doing an indecent act on a child under 12.1 Mr T takes no issue with the length of the sentence but appeals against the decision declining to substitute it for a sentence of home detention. He does so on the basis the Judge placed too much weight on a psychiatric report and insufficient weight on the principle of imposing the least restrictive outcome.

1      R v T [2018] NZDC 24058.

T v R [2018] NZHC 3274 [12 December 2018]

Factual background

[2]                 In mid-2016, Mr T’s daughter disclosed incidents of sexual offending against her which had occurred in 2008–2009, when she was aged between six and seven years old and Mr T was 25. She initially disclosed two incidents of offending, with another alleged incident giving rise to a charge of unlawful sexual connection. The latter charge was dropped when Mr T pleaded guilty to the two indecent act charges stemming from an earlier incident.

[3]                 At the time, Mr T, his wife and their seven children lived on a farm in the South Island. Mr T and his wife alternated between farm work and looking after the children. Sometime in 2008–2009, Mr T told his daughter to go into his bedroom. When she did, he took off his pants and began to play with himself. He took her pants off and touched her vagina with his hand. He then rubbed his penis against her body. He told her not to tell her mother.

[4]                 When questioned by the police following the victim’s disclosure, Mr T denied the offending.

[5]                 Two pre-sentence reports were prepared. The first recorded that Mr T accepted his offending and expressed limited remorse and a desire to make amends to his daughter. It concluded there were no identified impediments to his ability to comply with a community-based sentence but recommended imprisonment due to the lack of a suitable address. The second report recorded Mr T’s changed position that he did not recall the offending. The report writer considered this compromised his suitability for rehabilitative interventions. It noted stressors in Mr T’s life at the time, as well as his use of cannabis. It assessed Mr T as at a low risk of re-offending but with a high risk of harm to others due to the long-term effects of sexual offending. Although the address for home detention was assessed as technically suitable, the report writer raised concerns that…