Taylor v The the Queen

[2022] NZHC 912

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-91

[2022] NZHC 912

BETWEEN

DONALD LESLIE TAYLOR

Appellant

AND

THE QUEEN

Respondent

Hearing:

26 April 2022

Appearances:

A Shendi for Appellant

I L M Archibald for Respondent

Judgment:

3 May 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 3 May 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

TAYLOR v R [2022] NZHC 912 [3 May 2022]

Introduction

[1]    Donald Taylor (the appellant) appeals against his sentence of 25 months’ imprisonment imposed by Judge P J Sinclair in the Auckland District Court on 9 March 2022.1 The sentence was imposed in relation to two charges of indecent assault of a female under the age of 12 years;2 and two charges of indecently assaulting a female aged between 12 and 16 years.3 In each case the charges were representative charges and  covered  offending  extending  over  the  period  between  1  April  2012  and  18 September 2020.

[2]    The appellant says that the Judge erred in her determination of the sentence by adopting a sentencing starting point that was too high and consequently imposed a sentence that was manifestly excessive. He contends that the appropriate and least restrictive sentence was one of home detention.

Background

[3]    The two complainants are sisters. The appellant was in a relationship with their mother between 2011 and 2020 and resided with her and the two complainants. The eldest complainant (A) was born in October 2005, and the youngest (B) was born in December 2007. The appellant indecently assaulted each of the complainants approximately five to 10 times per year over an eight year period while he was living with their mother.

[4]    When the appellant commenced living with the complainants’ mother in April 2012, A was six years old and B was four years old. While living at the first of three addresses that they occupied, the appellant indecently assaulted both complainants by touching them over their underwear or clothing and rubbing the area of their vaginas. Many of these incidents occurred while the complainants were in their beds asleep and resulted in them being woken up by the appellant’s actions. On one occasion the complainants were both in the lounge lying on a mattress on the floor and watching movies. A fell asleep under a blanket and was woken by the appellant crouching on

1      R v Taylor [2022] NZDC 4277 [District Court judgment].

2      Crimes Act 1961, s 132(3): carrying a maximum penalty of 10 years’ imprisonment.

3      Section 134(3): carrying a maximum penalty of seven years’ imprisonment.

his knees beside her. He lifted the blanket and reached under it to place his hand over her underwear and then rubbed her vagina. She reacted by kicking out at him, causing him to stop and leave the room.

[5]    When the appellant and the complainants’ mother relocated to their second address, he would take the girls to a nearby park and playground. There he indecently assaulted each of them approximately five times. Under the pretext of playing “tickle tag” he would put his hand on the complainants’ vaginas over their clothing and rub them in a circular motion. On at least one occasion when the appellant and the two complainants were sitting down at the park, he put his hand down A’s pants on the outside of her underwear and rubbed her vagina. On an occasion when at another park he took the complainants to a secluded area and said that if they let him put his hand down their pants, he would buy them an ice cream. He then proceeded to put his hand down B’s pants over her underwear and rubbed her vagina with forceful circular movements.

[6]    In May 2015 the appellant and the complainants’ mother moved to a third address. At the time A was nine years old and B was seven years old. In September 2020 A wrote a note in which she said that the appellant had tried to rape her. She showed the note to her father, who reported the matter to the Police.

[7]    When the appellant was spoken to by the Police he made a statement in which he admitted indecently assaulting both complainants, and said that it had occurred between five and 10 times a year since he had commenced living with the complainants’ mother. The appellant was subsequently charged by the Police with doing indecent acts on the complainants on 14 December 2020 and appeared in the District Court at North Shore. On 25 January 2021 he entered ‘Not Guilty’ pleas to all charges. On 6 August 2021 he entered pleas of ‘Guilty’ to the four charges on which he was subsequently sentenced on 9 March 2022.

The Judge’s sentencing decision

[8]    Judge Sinclair commenced her sentencing decision by summarising the appellant’s offending. The Judge then noted that the Crown had submitted that a sentencing starting point of around 24 to 30 months’ imprisonment would be

appropriate together with a discount of 25 per cent for the guilty pleas, and that an end sentence of imprisonment was appropriate. The Judge also noted that the appellant’s counsel acknowledged that a starting point of between 24 and 30 months’ imprisonment was appropriate, and that a discount of 25 per cent for the guilty pleas was sought. The Judge also observed that the appellant was seeking further discounts for other mitigating factors including: time spent on bail; co-operating with the Police; rehabilitative receptivity; and remorse.4

[9]    The Judge then referred to the cases referred to her by counsel for the Crown and the appellant. She noted the decisions in C v New Zealand Police and Metua v R where the defendants were sentenced on similar charges,5 and starting points of 30 months and 14 months respectively had been adopted, while observing that comparison with the appellant’s case was limited because the circumstances were so different. The Judge also referred to R v Walker where a starting point of four years was adopted and observed that while it had a number of similar features to the appellant’s case in terms of the period of offending and similar types of indecent assault, there were also several other aggravating factors such as skin on skin contact and a greater number of victims and threats made by the defendant which are not present in the appellant’s case.6 The Judge also noted Britow v R where a starting point of three years and three months was adopted for offending similar to the appellant’s but involving one victim.7 The Judge then referred to R v Thorpe and the list of 10 possible factors informing an assessment of culpability for indecent assaults on children or young persons.8

[10]   The Judge considered that there were four aggravating features of the appellant’s offending: the scale and duration of the offending against two complainants over a period of approximately eight years; the offending involved some pre- meditation as evident by it taking place when the appellant had taken the girls to parks and reserves to play games; an abuse of the trust of the girls’ mother and because he was in a position akin to a stepfather to the complainants who were also vulnerable by

4      District Court judgment, above n 1, at [9].

5      C v New Zealand Police [2020] NZHC 3200; and Metua v R [2018] NZHC 246.

6      R v Walker [2016] NZHC 1667.

7      Britow v R [2017] NZCA 229.

8      R v Thorpe [2012] NZHC 229.

reason of the imbalance of power that existed; and the significant emotional harm to the complainants caused by the appellant’s offending. The Judge commented that in her view the considerable psychological harm caused to the complainants by the appellant’s offending was the “most aggravating factor”.9

[11]   The Judge then referred to the contents of the victim impact statements provided by A and her mother, and noted that the girls’ mother had described the significant effect that the appellant’s offending had had on her daughters’ and their sense of security by reason of the anxiety and fear that they were suffering.

[12]   The Judge then adopted a starting point of three years’ imprisonment. Her Honour noted that the appellant had a number of previous convictions which while not relevant to the present offending, meant that he was unable to claim a discount for good character. The Judge allowed a discount of “between five and 10 per cent for your personal circumstances, co-operation with police, receptivity to rehabilitation and compliance with bail conditions”.10 The Judge then noted that the appellant’s guilty pleas had been entered at a relatively early stage of the proceedings and were entered after a resolution of the charges was reached. She commented that the entry of the guilty pleas were particularly important as they had obviated the need for the complainants to give evidence at trial. She accordingly allowed a full 25 per cent discount, and concluded:

[28]     On those calculations I reach an end sentence of 25 months’ imprisonment. That will be served across all four charges.

[13]   Finally, the Judge noted that as she had sentenced the appellant to a term of imprisonment he was automatically subject to the provisions of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, and would be required to comply with the conditions and monitoring required under that Act.

9      District Court judgment, above n 1, at [17].

10 At [26].

Submissions

Appellant’s submissions

[14]   Ms Shendi for the appellant says that the 36 months starting point adopted by the Judge was too high. She notes that both Crown and defence were agreed that the appropriate starting point lay in the range between 24 and 30 months’ imprisonment.

[15]   Ms Shendi notes that in determining the 36 month starting point the Judge had refereed to four cases. Referring to these cases, she submits that the offending in C v New Zealand Police (starting point 30 months); R v Walker (starting point four years); and Britow v R (starting point 39 months) was more serious than the appellant’s offending, and the offending in Metua v R (starting point 14 months) was less serious than the appellant’s. Counsel notes that the offending in Metua involved a single charge of doing an indecent act on a 10 year old child by the touching of the victim’s genitals over their clothing coupled with a threat not to tell anybody about it. That offending was less serious than the appellant’s as it involved a single incident and did not occur repeatedly over an extended period and involve the serious breach of trust present in the appellant’s offending. Comparing the gravity of the offending in Metua with the appellant’s offending, Ms Shendi acknowledges that it justifies the adoption of a significantly higher starting point for the appellant’s offending which she submits should be in the range of 24 to 30 months’ imprisonment.

[16]   Turning to the issue of discounts from the starting point, Ms Shendi notes that although the Judge found that a discount of between five and 10 per cent was appropriate to recognise the appellant’s personal circumstances, in fact she allowed only just over five per cent. Counsel submits that a discount of 10 percent is appropriate to recognise the appellant’s personal circumstances, co-operation with the Police, receptivity to rehabilitation, and compliance with bail conditions. Counsel submits that by co-operating and making a statement to the Police in which he admitted offending against both complainants over the extended period of approximately eight years with a frequency of between five and 10 times each year, the appellant absolved the younger complainant from having to speak to the Police and participate in an evidential interview, and absolved both complainants from having to give evidence at a trial.

[17]   Ms Shendi also notes that while on bail the appellant undertook counselling for his offending and had intended to engage in the SAFE Programme after sentencing. However, his attempts to undertake counselling were limited by reason of COVID-19 restrictions. Counsel notes that as confirmed by the pre-sentence report, the appellant has expressed remorse for his actions and wishes to ensure that such behaviour does not occur again, and he acknowledges that he needs specialist help to address the causes of his offending. Ms Shendi submits that the appellant’s prospects of successful rehabilitation are high, and she notes that at the outset when interviewed by the Police, the appellant had said that he just wanted to talk to someone about his offending.

[18]   Ms Shendi submits that the Judge also erred by amalgamating the discount for remorse and the appellant’s significant co-operation with the Police investigation with his other personal background factors, when his genuine remorse and significant assistance to the Police warranted separate and discrete discounts.

[19]   Counsel submits that should the Court determine that the appropriate sentence is 24 months’ imprisonment or less, the alternative of a sentence of home detention should be considered. Ms Shendi submits that in the appellant’s case a sentence of home detention will satisfy the relevant purposes and principles of sentencing by holding him accountable for his offending, and provide the appellant with the opportunity to rehabilitate himself and address the underlying causes of his offending by undertaking counselling.

Crown submissions

[20]   Ms Archibald for the Crown submits that the sentence imposed was not manifestly excessive. She says that while there is no guideline judgment for this offending a sentence of imprisonment is almost invariably imposed for offending of this type.

[21]   Ms Archibald notes that the appellant’s offending was significant having continued over a period of eight years and having occurred at least five times a year, meaning that there were at least 40 discrete instances of offending against each of the two complainants. Counsel says that the appellant’s offending involved some premeditation and that he took advantage of the opportunities to offend against the

complainants when they were in his care and taken to parks whereupon he offended against them under the ruse of playing games with them. Ms Archibald also notes the significant breach of trust involved in the offending having regard to the appellant’s position as a member of the family in a position akin to that of stepfather to the girls. Ms Archibald says that while it is inherent in offending of this kind that harm is caused to victims, the victim impact statements show the significant emotional effect that the offending has had on the two complainants. She submits that the complainants were particularly vulnerable having regard to their ages and the circumstances when they were offended against while in their beds asleep.

[22]   The Crown also refers to two additional cases not referred to in the District Court, namely Masei v R and O (CA643/2009) v R.11 Ms Archibald says that while the circumstances of the offending in those cases differs from the appellant’s offending, these cases demonstrate that the starting point adopted by the Judge in this case was well within the available range having regard to the aggravating factors present and was not manifestly excessive.

[23]   Ms Archibald also refers to R v Sanday in which the defendant approached the Police on his own initiative to admit rape offending in respect of which there had been no complaint made and for which the Court of Appeal allowed a discount of “at least a third to recognise the powerful factors supporting a discount”.12 As regards the present case the Crown accepts that it is in the public interest for offenders such as the appellant to disclose and admit their offending such as he did when he spoke to the Police. However Ms Archibald says that recognition of the appellant’s co-operation with the Police was adequately met by the discount allowed by the Judge.

[24]   The Crown submits that a term of imprisonment was the appropriate sentence and says that even if the Court had reached an end sentence of 24 months or less, a sentence of home detention would not have been appropriate to hold the appellant accountable and meet the relevant objectives of sentencing. Ms Archibald says that sexual offending against children is serious in all instances and although there is no

11     Masei v R [2016] NZCA 481; and O (CA643/2009) v R [2010] NZCA 609.

12     R v Sanday CA146/99, 29 July 1999 at [15].

presumption of a sentence of imprisonment, imprisonment is generally the appropriate sentence for such offending.

Appeal against sentence

Relevant law

[25]   Section 250(2) of the Criminal Procedure Act 2011 states that the court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[26]In any other case, the court must dismiss the appeal.13

[27]   The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.14 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.15

[28]The approach taken under the former Summary Proceedings Act was set out in

R v Shipton:16

(a)There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.

13     Criminal Procedure Act 2011, s 250(3).

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

15     At [33] and [35].

16     R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].

(c)It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.

[29]   The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.17

Discussion

The starting point

[30]   There is no appellate tariff decision for indecent assault. In S (CA227/2017) v R the Court of Appeal observed that given the “sheer variety of indecent assaults, a tariff would be unworkable”, but nevertheless “a general range for indecent assault should be between six months and two years’ imprisonment”.18 Although that will be the “general range” applicable in many cases, the wide disparity of culpability for offending falling within the scope of s 135 means that it will always be open for a sentencing judge to adopt a starting point below and above that general range. Accordingly, the degree of culpability involved in each case of indecent assault offending will ultimately determine the appropriate starting point.

[31]   Here, the appellant’s offending commenced when the complainants were aged six years and four years and continued repeatedly over the following period of eight years to when they were both over 12 years old. During that period the offending occurred frequently against both complainants and it involved a gross breach of trust on the appellant’s part. As a trusted adult living with the complainants’ mother and having a role akin to that of a stepfather with responsibility for the care and protection of the girls, he breached that trust and took advantage of their young ages and vulnerability.

[32]   The offending involved considerable and repeated premeditation as evident by the large number of separate occasions on which the offending occurred and the

17     Ripia v R [2011] NZCA 101 at [15].

18     S (CA227/2017) v R [2017] NZCA 459 at [30].

circumstances in which it occurred, both within the home when the children were in their beds, and when he took them with him to nearby parks to play and offended against them there. It is clear from the victim impact statements that the offending has had, and continues to have, a profound and disturbing impact on the complainants’ lives and wellbeing. I agree with the Judge’s observation that the effects of the offending on the complainants is a significantly aggravating factor of the offending. By reason of the ages of the complainants and the extended duration and frequency of the appellant’s offending against them, the significantly damaging effects of his offending would have been known and appreciated by the appellant and his continued offending against them over the extended period significantly increases the gravity of his offending.

[33]   I do not agree with the appellant’s submission that the offending in the case of C v New Zealand Police in which a starting point of 30 months’ imprisonment was adopted was more serious offending than the appellant’s. The offending in C was against a young male commencing when he was under 12 years old and continued during the period when he was still under 16 years, so that it extended over a lengthy period and was repeated. It involved the offender touching the complainant’s penis and when the complainant was a teenager getting the complainant to masturbate the offender. However the offending was against a single complainant who while a young male and vulnerable, was not as vulnerable as the two young complainants in this present case. The aggravating factor of breach of trust is more acute here than was the case in C, and the profound adverse effect of the appellant’s offending on the complainants in the present case does not appear to have been a significant factor in

C. In my view, these differences indicate the adoption of a higher starting point for the sentencing of the appellant as being appropriate.

[34]   Another example of indecent assault offending is Masei, where the defendant offended against a 15 year old foreign student who was travelling with a school group and had been billeted to stay with his family. The victim’s English language capability was limited and it was a second language for her. During the first evening of the victim’s stay and while his wife was away from the house, the defendant arranged for his own daughters to leave him alone with the victim. He then touched her all over her body, tried to take her clothes off, touched her breasts over her pyjama top and put

his hands down her pyjama pants to touch her around her genital area although over her underpants. He persisted in doing this and rubbing her until she said she had a stomach ache and needed to go to the toilet. When in the toilet the victim used her phone to contact one of her schoolmates to tell them what was happening, leading to the Police being contacted and attending the defendant’s address. The District Court Judge adopted a starting point of 15 months’ imprisonment which he uplifted by six months to take account of the significant breach of trust involved in the offending. On appeal this Court upheld the sentence of 21 months’ imprisonment. By comparison with the offending in Masei, the appellant’s offending was considerably more serious as it involved two much younger complainants and occurred repeatedly over a lengthy period of eight years. Again, I consider that a comparison of the appellant’s offending with the offending in Masei shows that the adoption of a higher starting point is appropriate.

[35]   On the other hand it is clear the offending in R v Walker, where a starting point of four years’ imprisonment was adopted, was more serious offending than the appellant’s. In Walker the defendant was found guilty of three charges of indecently assaulting a girl under the age of 12 years, and 11 charges of indecently assaulting a girl aged between 12 and 16 years. The offending occurred against four complainants three of whom were the defendant’s daughters and the fourth their childhood friend. The offending spanned a period of approximately eight to nine years between 1976 and 1984. The offending against the defendant’s eldest daughter occurred while she was a young girl (under 12) living in the family home and dependent on the defendant. It involved the defendant rubbing her genitals, with his hands inside her underwear “countless times” when she was younger than 12.

[36]   Between the ages of 12 and 16 years the defendant offended when entering her bedroom and touching her genitalia including putting his fingers inside her vagina. Broadly similar offending also occurred against the other three complainants including the touching and rubbing of their genitalia and breasts and the defendant rubbing his penis against one of his other daughters. The offending occurred in circumstances in which there was a climate of fear within the household and the making of threats by the defendant that he could make people disappear or could have his wife institutionalised. The offending in that case was profound and resulted in lifelong

traumatic effects and indelible memories of what was done. Justice Muir adopted a starting point of four years’ imprisonment. He explained:19

This reflects the historic sentencing patterns at the time for indecent assaults but also reflects the serious aggravating factors in your case which, in particular, are the gross breach of trust involved in sexual offending against your biological daughters and the duration of the offending which continued throughout their childhoods.

[37]   Having regard to the starting points adopted in those cases I consider that the starting point of 36 months adopted by the Judge while stern was nevertheless within range and consequently the Judge did not err by adopting it to reflect the gravity of the appellant’s offending. I note that having regard to the maximum penalty of 10 years’ imprisonment for the multiple s 132(3) offences covered by the representative charges, it was less than one-third of the maximum penalty, and less than half the maximum penalty of seven years applicable to the multiple offences covered by the s 134(3) representative charges.

The discounts

[38]   Although the Judge indicated that she would allow a discount of “between five and 10 per cent” in respect of the appellant’s personal factors, including his co- operation with the Police, receptivity to rehabilitation and compliance with bail conditions, in fact the discount of two months she allowed amounted to just over five and a half per cent, compared to a 10 per cent discount of 3.6 months.

[39]   The appellant’s co-operation with the Police whereby he admitted more extensive offending than had been alleged by A and admitted offending also against B at a time when B was yet to be spoken to and interviewed by the Police regarding the matter was of real significance as his admissions obviated the need for the Police to interview and involve B in any formal part of their investigation and meant that neither of the complainants was required to give evidence at a trial. This assistance and co- operation which had the effect of alleviating further stress and anxiety to the complainants caused by having to participate in the prosecution and trial process warranted recognition by means of a discrete discount. In my view it warrants

19 At [39].

recognition by a discount of five per cent. The full 25 per cent discount allowed for the appellant’s guilty pleas also recognise, and to an extent overlap, in recognising this factor.

[40]   Although the appellant has an extensive criminal offence history including for dishonesty offences of theft and receiving, possession and supplying cannabis, he has no previous convictions for any similar offending such as the present charges. In the Department of Corrections pre-sentence report he expressed remorse for his offending which he described as being “inexcusable” and said he was willing to accept and comply with any measures directed by the Court. I accept that the appellant is genuinely remorseful and willing to undertake rehabilitative counselling in relation to the offending and its underlying causes. I also accept that as a result of the COVID-19 restrictions in place in the period following the entry of his pleas of guilty he was unable to arrange to undertake any counselling programme to address his offending behaviour. I accordingly consider that his willingness to undertake rehabilitative counselling and the consequent reduction of his risk of re-offending coupled with his remorse are factors that justify recognition by a further discount of five per cent from his sentence.

[41]   I do not consider that his compliance with bail conditions warrants a discount. Compliance with bail conditions is a requirement expected of persons released on bail, and his bail conditions were not restrictive in a way that required recognition when sentenced as is sometimes the case where compliance with very restrictive bail conditions justifies recognition by a discount of the sentence imposed.

[42]   I accordingly find that discounts totalling 15 per cent ought to have been allowed and that the Judge erred in allowing only five and a half per cent despite appearing to indicate an intention to allow a greater discount in the five to 10 per cent range.

[43]   A 40 per cent discount (being the 25 per cent discount for the guilty pleas and discounts totalling 15 per cent for the factors referred to above) represents 14.4 months of the starting point of 36 months and yields a net 21.6 months.20 The difference

20     Which I will round down to 21.5 or 21 months and two weeks.

between the sentence imposed of 25 months and the 21 and a half months derived from application of a 15 per cent discount of three and a half months is not insignificant in terms of duration or in terms of the sentence crossing the threshold for consideration of an alternative sentence of home detention.

Home Detention

[44]   As I have noted, Ms Shendi said that in the event that the Court found the appropriate sentence to be 24 months or less the appellant submits that a sentence of home detention should be imposed instead of imprisonment. Ms Shendi notes that although registration under the Child Protection (Child Sex Offender Government Agency Registration) Act is discretionary where an offender is not sentenced to imprisonment, the appellant concedes that in his case registration is appropriate and would remain so if he were to receive a sentence of home detention.

[45]   Ms Shendi submits that a sentence of home detention is an alternative to a short term of imprisonment and would meet the objectives and principles of sentencing the appellant and be the least restrictive sentence that could be imposed. She notes that a sentence of home detention meets the sentencing objectives of denunciation and deterrence and submits that where there is motivation for change on the part of the offender and a realistic prospect of change being achieved, there are benefits to the community and the offender from the imposition of  a home  detention  sentence.  Ms Shendi notes that the appellant has complied with his bail conditions and has had no contact with the complainants and their mother. She submits that these factors together with his positive motivation for rehabilitation and his registration as a child sex offender can lead the Court to be satisfied that he would not be an undue risk to the community if sentenced to home detention.

[46]   Ms Archibald submitted that should the Court find that an end sentence of   24 months or less was appropriate, a sentence of home detention would not be appropriate for the appellant. The Crown says that a sentence of home detention would not adequately hold the appellant to account for his offending, denounce his conduct or deter him or others from committing the same or similar offending. The Crown says that a sentence other than imprisonment would not be consistent with the

application of the principles set out in s 8 of the Sentencing Act 2002, and a sentence of  imprisonment  is  required  to  adequately  meet  the  appellant’s  culpability.    Ms Archibald refers to the Court of Appeal’s observation in Kennedy v R in which the Court said:21

It is not necessary to adopt an “only in exceptional circumstances” approach to home detention in relation to sexual offending against children. All sentences that are potentially in the range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment.

[47]   Having regard to the gravity of the appellant’s offending against the complainants, I consider that a sentence of imprisonment is necessary and appropriate to meet the sentencing objectives of holding him accountable for his offending and deterrence. The aggravating factors of the offending I have referred to above including the duration and frequency of the indecent assaults on the two complainants, their vulnerability, his acute breach of trust, and the profound effects that the offending has had on the complaints, inform my finding that notwithstanding the appellant’s willingness to undertake rehabilitative counselling and programmes, his level of culpability is such as requires the imposition of a sentence of imprisonment.

Result

[48]   The appeal is allowed and the sentence of 25 months’ imprisonment imposed by the District Court is quashed.

[49]In its place I substitute a sentence of 21 months and two weeks’ imprisonment.

Paul Davison J

21     Kennedy v R [2011] NZCA 569 at [8]. See also R v S CA465/05, 11 April 2006 at [12].