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.

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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, the Judge would very likely have considered home detention an appropriate sentence.  Absent Mr George’s consent to home detention, however, he considered that he had no choice but to sentence Mr George to a term of imprisonment.  This sentence was influenced by Mr George’s relevant and relatively recent criminal history.  In Judge Kellar’s sentencing notes he referred to the fact that, on 12 November 2001, Mr George was convicted in respect of two charges of distributing objectionable material depicting the sexual abuse of children and six charges of possessing objectionable material depicting the sexual abuse of children.  While Mr George was convicted and discharged in respect of the six latter charges, he was sentenced to nine months supervision in respect of the two distribution offences.

[4] Before the hearing of his appeal, Mr George indicated that he would now consent to a sentence of home detention/community detention. The Court thus had the benefit of a home detention/community detention report at the hearing. In that report the Probation Service recommended against a sentence of home detention being imposed. This was because of perceived difficulties in Mr George managing the sentence due to his intellectual difficulties. However, if the Court were minded to impose such a sentence, the Probation Service outlined suggested conditions (set out at [14] below).

[5]       On 3 September 2009, this Court allowed Mr George’s appeal, quashed the sentence of imprisonment and imposed a sentence of seven months home detention starting on 4 September 2009 on the conditions suggested in the report.  These are the reasons for that decision.

Submissions

[6]       On Mr George’s behalf, Mr Withnall QC submitted that the evidence showed a clear nexus between the offending and Mr George’s diminished capacity and understanding:  see R v Bridger [2003] 1 NZLR 636 at [40] – [43] (CA) and R v McKain [2007] NZCA 505 at [11]. Mr Withnall submitted that disinhibited sexual behaviour is not unusual following head injury. In this case, the reports pointed towards Mr George’s sexual naivety and his lack of insight and moral judgment, leading to his difficulty in fully understanding the inappropriateness of the material he was viewing. Further, computers and the use of the internet have been Mr George’s means of coping with the social isolation arising from his disability.

[7]       Mr Withnall submitted that the reports before the Court showed clearly that significant progress had been made by Mr George towards rehabilitation, with the support of his family.  Mr Withnall also submitted that prison would have a disproportionately severe effect on Mr George given his diminished ability to cope with the stresses of life.  Mr Withnall pointed to Mr George’s substantial cognitive impairment, slow processing of spoken language, reduced ability to articulate responses and impaired intellectual function.  He submitted that, for Mr George, being thrust into a completely foreign environment, surrounded by total strangers, without the support of his family, having to learn a whole new regimented way of living with its own set of rules and expectations and being confined to a cell many hours a day, would not be anything other than traumatic.  A prison sentence would be likely to weigh more heavily on him than on others to the extent that it would be disproportionately severe:  R v Milford [2008] NZCA 148 at [34].

[8]       Mr Withnall submitted that a sentence of home detention will meet all the purposes and principles of sentencing that are applicable to the special circumstances of this case and will reinforce the understanding Mr George now has of the unacceptability and seriousness of his offending.  Mr Withnall further submitted that such a sentence will assist in Mr George’s re-integration and rehabilitation.

[9]       The Crown did not oppose the imposition of a sentence of home detention.  It supported the conditions suggested by the Probation Service and, in particular, the condition set out at [14](f), because it would ensure that no similar offending could occur during the currency of the sentence and because of the deterrent effect it would have on Mr George by depriving him of the internet.

Assessment

[10]     We accept Mr Withnall’s submission that, given Mr George’s disability and his rehabilitative prospects, a sentence of home detention is the appropriate sentence.  Indeed, that would very likely have been the sentence imposed in the District Court had Mr George consented to that course.  As Mr George has already served just over two months imprisonment, the term of the sentence of home detention must be set to take the time served into account. 

[11]     We also accept the Crown submissions as to the conditions that should be imposed.  We particularly stress the importance of an intensive programme of rehabilitation in terms of the condition set out at [14](d). 

[12]     We recognise that there will generally be the need for more intensive supervision of the sentence by the Probation Service than would usually be the case.  This is because of Mr George’s difficulty in retaining information (although we understand this is alleviated if information is provided in written form).  We also recognise that a sentence of home detention will require a high degree of involvement of Mr George’s family but we understand that they are prepared to undertake this task.  However, the societal benefits that will occur if Mr George’s rehabilitation is achieved must far outweigh the added difficulties of managing the sentence.

Result

[13]     The appeal is allowed and the sentence of imprisonment is quashed.  A sentence of seven months home detention is substituted, starting on 4 September 2009.

[14]     The 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.

Solicitors:
Crown Law Office, Wellington