W v Police - [2021] NZHC 485

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-2020-404-267

[2021] NZHC 485

BETWEEN
W

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 March 2021

Counsel:

R Brown for Appellant

D B Stevens and M Djurich for Respondent

Judgment:

12 March 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 March 2021 at 2:30 pm Registrar/Deputy Registrar

Solicitors:
Public Defence Service (Manukau) for Appellant Kayes Fletcher Walker (Manukau) for Respondent

W v POLICE [2021] NZHC 485 [12 March 2021]

Introduction

[1] Mr W appeals against the decision of Judge S Patel on 5 June 20201 to place him on the Child Sex Offender Register.2

Background

[2] Mr W, who was then 46 years old, became intoxicated and entered a bedroom at the house in which he was residing which was occupied by PW, then aged 16 years, and AW, then aged 15 years. They were asleep. Mr W indecently assaulted PW by kissing her on her forehead. He then went to AW’s bed and indecently assaulted her by touching her on her buttock with his hand. This occurred on 9 March 2018.

[3] On 22 January 2019, Judge Patel gave Mr W a sentence indication on the two charges of indecent assault. The indication was 10 months’ imprisonment. Judge Patel left open the issues of whether the indicated sentence might be commuted to a sentence involving electronic monitoring and whether he would be entered on the Child Sex Offender Register.

[4] Mr W accepted the sentence indication and pleaded guilty to both charges on 22 January 2019. Judge Patel delivered his sentence on 5 June 2020. By that time Mr W had been remanded in custody for over six months. The Judge noted that he had spent more time in custody than he would have served had he been sentenced to 10 months’ imprisonment in accordance with the sentence indication. The Judge did not consider that a sentence of imprisonment was warranted and imposed a sentence of 12 months’ supervision with a special condition that Mr W undergo such counselling as recommended by a probation officer.

[5] Judge Patel then turned his attention to whether Mr W should be made subject to a registration order under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (“the Act”). Had a sentence of imprisonment been imposed, then registration would have been automatic.3 Because the Judge had

1      R v [W] [2020] NZDC 10284.
2      Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(b).
3      Section 7(1)(a).

imposed a non-custodial sentence he had to decide whether he should make a registration order against Mr W taking into account the matters set out in s 9 of the Act.

[6] Judge Patel said that the problematic aspect for Mr W was that according to…

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.

Continue reading W v Police

Details

AGLC: W v Police [2021] NZHC 485
Case: [2021] NZHC 485
Decision Date: 12 March 2021

CaseChat Overview and Summary

The appellant in this case, Mr W, appeals against the decision of Judge Patel to place him on the Child Sex Offender Register. Mr W was found guilty of indecently assaulting two girls, one of whom was under the age of 16 at the time of the offence. Judge Patel decided to impose a non-custodial sentence on Mr W, but also made a registration order under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. The legal issues before the court were whether the appellant poses a continued risk to the safety of children, and whether the risk posed by the appellant was of sufficient gravity to justify the making of a registration order. The court considered the seriousness of the qualifying offence, the period of time that had elapsed since the offence was committed, the age of the person, the age of the person at the time of the offence, the age of any victim of the offence at the time of the offence, the difference in age between the victim and the person at the time of the offence, any written assessment of the risk posed by the person, any submission or evidence from any victim of the offence, any other submission or evidence relating to the risk posed by the person, and any other matter that the court considered relevant. The court found that Mr W poses a real or genuine risk to the sexual safety of children generally, and that the risk he poses is of sufficient gravity to justify the making of a registration order. The appeal is dismissed.

Orders