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…
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