W v Police
[2021] NZHC 485
•12 March 2021
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 the pre-sentence reports Mr W did not accept he was a sexual offender and refused to engage in rehabilitative sexual offending programmes. Mr W blamed his intoxication for his offending. In the pre-sentence report of 4 May 2020, Mr W was assessed as posing a high risk of re-offending.
[7] The Judge went through the criteria set out at s 9(3) of the Act. He did so on the mistaken basis that both of the charges of indecent assault were qualifying offences for the purposes of the Act. However, only the charge in respect of AW was a qualifying offence because PW was 16 years old at the time and the Act applies only where the victim is under 16 years of age.
[8] In short, although the Judge acknowledged the offending as being at the least serious end of the indecent assault spectrum, Mr W’s refusal to acknowledge that he is a sex offender and his refusal of rehabilitative treatment justified the making of a registration order.
The appeal
[9] The appeal is brought on the basis that the Judge erred in his assessment that Mr W poses a continued risk to the safety of children which means that he should be the subject of a registration order. The submission is that the Judge did not properly take account of the matters set out in s 9 of the Act:
9 Court may make registration order
(1)If a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the court may order that the person must be placed on the register and must comply with the reporting obligations of this Act.
(1A)For the purposes of subsection (1), the date on which the person was charged with the offence is irrelevant.
(2)A court may make an order under this section (a registration order) only if the court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.
(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:
(a)the seriousness of the qualifying offence:
(b)the period of time that has elapsed since the offence was committed:
(c)the age of the person:
(d)the age of the person at the time of the offence:
(e)the age of any victim of the offence at the time of the offence:
(f)the difference in age between the victim and the person at the time of the offence:
(g)any written assessment of the risk posed by the person:
(h)any submission or evidence from any victim of the offence:
(i)any other submission or evidence relating to the risk posed by the person:
(j)any other matter that the court considers relevant.
(4)A registration order is made at the time of sentencing and is a sentence for the purposes of Part 6 of the Criminal Procedure Act 2011 (appeals).
(5)However, for the purposes of section 31 of the Sentencing Act 2002 (general requirement to give reasons), a registration order is an other means of dealing with the offender.
(6)The provisions of subparts 4 and 12 of Part 6 of the Criminal Procedure Act 2011, so far as they are applicable and with the necessary modifications, apply to an appeal in respect of a registration order.
[10] The Supreme Court, very recently, has considered the assessment required under s 9 of the Act.4 The case provides a conceptual framework which I will apply to Mr W’s case. For Mr W to be subject to a registration order I must first be satisfied that he poses a real or genuine risk to the life or sexual safety of a child or children
4 D (SC 31/2019) v Police [2021] NZSC 2.
generally. Second, I must be satisfied that this risk is of sufficient gravity to justify the making of a registration order.5
Does Mr W pose a real or genuine risk?
[11] I have considered the s 9(3) matters. The pertinent factors are: the seriousness of the qualifying offence6 (at the lower end of indecent assault); the age of the victim7 (less than a year from the age limit beyond which the Act does not apply); the written assessment of Mr W’s risk8 (a high risk, according to the pre-sentence report dated 4 May 2020); another relevant matter9 being Mr W’s refusal to acknowledge he has a problem with sexual offending.
[12] The appellant has filed a formal statement by Dr Street, a consultant forensic psychiatrist. The doctor’s conclusions are:
42. Based on Mr [W’s] presentation and history provided, as well as the supplementary information from the various interviews and Police reports and analysis of his SVR-20, he has a moderate likelihood of engaging in future sexual violence if no efforts are made to manage his risk.
43. The primary scenario for future offending would likely involve intoxication and a person of the vulnerable population, such as child, low IQ or otherwise compromised. However, intervention could significantly reduce the risk for any reoffending, including sexual offending. Sustained efforts at sobriety, with regular engagement in drug and alcohol counselling, or support group, could greatly reduce his risk for recidivism.
[13] I find that Dr Street’s conclusions reinforce the decision made by Judge Patel that Mr W’s refusal to take responsibility for his offending and to undergo treatment take him within the s 9(2) criterion.
[14] I note that in D v Police, the Supreme Court considered that the phrase “a real or genuine risk” does not require a high risk, but simply a not insubstantial one.10 On
5 This position was endorsed by Winkelmann CJ and Glazebrook and O’Regan JJ. William Young and Ellen France JJ dissented, suggesting that the second stage was superfluous in the context of offending in which the offender was sentenced to home detention.
6 Section 9(3)(a).
7 Section 9(3)(e).
8 Section 9(3)(g).
9 Section 9(3)(j).
10 Per O’Regan J at [128], writing for himself and Winkelmann CJ. Again, the other Judges agreed with the exception of Ellen France J.
this basis, I am satisfied that Mr W poses a real or genuine risk to the sexual safety of children generally.
Is the risk that Mr W poses sufficiently grave to justify the making of a registration order?
[15] Section 16 of the Act provides that a person subject to a registration order must report certain information. Section 18 provides that they must update this information periodically, and s 35 provides that Mr W would be on the register for eight years. Relevantly to this case, Mr W would be obliged to report his address (at (d)), the particulars of any child generally residing in his household (at (e)), and details of his affiliation with any club or organisation with child participation (at (i)). Any travel plans must also be reported (at s 22).
[16] I consider that these elements have a substantial connection to reducing the risk that Mr W might reoffend. Dr Street observes that the primary risk of reoffending would involve intoxication and the presence of children or otherwise vulnerable persons. The provisions in the Act I have cited would go some way to preventing this contact.
[17] In D v Police, the offender possessed a large number of pornographic images of children. He also produced a pornographic video showing himself and two other adults. Winkelmann CJ and O’Regan J considered that this was not of sufficient gravity to justify the making of a registration order. Glazebrook and William Young JJ considered it serious enough, and the provisions in s 16 of the Act relevant enough, to justify the making of a registration order. Ellen France J did not discuss this point. O’Regan J, writing for himself and the Chief Justice, emphasised that D’s offending was non-contact, and focused on the probability of his offending escalating to involve contact with children. Mr W’s relevant offending involved contact with a 15 year old girl, and in that respect is more serious than that in D v Police. It is, however, less serious in duration and frequency. I consider that despite being at the lower end of the spectrum of indecent assault, Mr W’s offending is still of moderate seriousness.
[18] Mr W’s refusal to take responsibility for his offending and his refusal to undergo treatment goes also to the seriousness of the risk he poses. Just as taking
responsibility for one’s wrongdoing can indicate reduced risk, so too can refusing to take responsibility for it signify increased risk.11 Treatment, too, can often reduce the risk of reoffending substantially, as recognised by the Supreme Court in D v Police.12
[19] I conclude that the risk Mr W poses is sufficiently grave to justify the making of a registration order.
Decision
[20]It follows that I agree with Judge Patel’s decision.
[21]The appeal is dismissed.
Brewer J
11 Pauling v R [2019] NZHC 1929 at [42].
12 Such as at [135].
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