The Queen v George - [2009] NZCA 392

IN THE COURT OF APPEAL OF NEW ZEALAND
CA420/2009
[2009] NZCA 392
THE QUEEN
v
WILLIAM JOHN GEORGE
Hearing:3 September 2009

Court:Glazebrook, Gendall and Asher JJ
Counsel:C S Withnall QC for appellant

S B Edwards for Crown
Judgment:3 September 2009 (Oral judgment was given in Court on 3 September 2009)
Reasons for Judgment: 15 September 2009 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed and the sentence is quashed. A sentence of seven months home detention is substituted starting on 4 September 2009.
BThe following conditions apply:
(a)Mr George is to reside at 29 Slant Street, Careys Bay, Dunedin for the duration of his home detention.
(b)He is to abstain from the use of alcohol and illicit drugs for the duration of the home detention.
(c)He is to notify his probation officer prior to starting, terminating or changing his position or place of employment.
(d)He is to undertake and complete an assessment with a Departmental Psychologist and attend and complete any recommended treatment/counselling to the satisfaction of the probation officer and treatment provider.
(e)He is not to associate with, or contact, directly or indirectly, a person under the age of 16 years, except in the presence and under the supervision of an adult who has been informed about the relevant offending and has been approved in writing by a probation officer as suitable to undertake the role of supervision.
(f)He is not to own, be in the possession of or use any internet capable device for the duration of the home detention.

CMr George is to be placed by prison officers on 4 September 2009 onto a direct flight to Dunedin where he will be met by his mother. He is to travel directly from Dunedin Airport to 29 Slant Street, Careys Bay, Dunedin to await the arrival of a probation officer and a representative from the monitoring company.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]       When he was 14 years old, Mr George fell from rocks when climbing near his home in Port Chalmers. This resulted in head injuries and permanent brain damage. The effects included both physical and cognitive impairment including impaired balance and co-ordination, epileptic seizures, impaired memory, decreased learning ability, lack of judgment, impaired language and communication skills, pedantry, slow thinking, relationship difficulties, social isolation and disinhibited exhibitionist behaviour confined to adult women he knew and had worked closely with.
[2]       On 1 July 2009, Mr George was sentenced by Judge Kellar in the District Court in Dunedin to 18 months imprisonment after pleading guilty to ten charges of or relating to the distribution of objectionable material depicting the sexual abuse of children. Mr George appeals against this sentence.
[3]       At the time of sentencing a home detention/community detention appendix was not prepared by the Probation Service because Mr George indicated that he would not consent to such a sentence. It is apparent from Judge Kellar’s sentencing remarks that, had it not been for Mr George’s refusal to consent,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read The Queen v George and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NZCA 392
Decision Date: 3 September 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by William John George against his 18-month imprisonment sentence handed down by the District Court in Dunedin. The appeal was heard on 3 September 2009, with the Court of Appeal consisting of Glazebrook, Gendall, and Asher JJ. Mr George was convicted of distributing objectionable material depicting the sexual abuse of children. The appeal was allowed and the sentence was quashed, with a sentence of seven months home detention substituted, starting on 4 September 2009. Several conditions apply to this sentence, including restrictions on alcohol and drug use, employment notifications, psychological assessments, and restrictions on contact with minors and use of internet-capable devices.

The legal issues before the Court of Appeal were whether the original sentence was appropriate given Mr George's diminished capacity and understanding due to head injuries, and whether a sentence of home detention would be more suitable. The Court of Appeal considered submissions from both Mr George's counsel and the Crown. Mr George's counsel argued that a clear nexus existed between his offending and his diminished capacity and understanding, and that a home detention sentence would be more suitable and assist in his rehabilitation. The Crown did not oppose the imposition of a sentence of home detention and supported the suggested conditions.

The Court of Appeal agreed with Mr George's counsel that a sentence of home detention was appropriate given his disability and rehabilitative prospects. The Court also accepted the Crown's submissions regarding the conditions that should be imposed. The Court recognised that more intensive supervision would be required due to Mr George's difficulty in retaining information and that his family's involvement would be necessary. However, the societal benefits of Mr George's rehabilitation were considered to outweigh the added difficulties of managing the sentence.

In conclusion, the Court of Appeal allowed Mr George's appeal and quashed the original sentence of imprisonment. A sentence of seven months home detention was substituted, starting on 4 September 2009, with several conditions attached. The Court recognised the importance of Mr George's rehabilitation and the need for intensive supervision and family involvement to achieve this goal.

Orders