W v Police - [2019] NZHC 2933

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-322

[2019] NZHC 2933

BETWEEN
W

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 October 2019

Appearances:

M L Jepson for the Appellant D Muratbegovic for the Crown

Judgment:

11 November 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 11 November 2019 at 3.30 pm Registrar/Deputy Registrar
Date:

Solicitors/Counsel: M L Jepson, Auckland
Kayes Fletcher Walker, Auckland

W v NEW ZEALAND POLICE [2019] NZHC 2933 [11 November 2019]

[1] On 11 July 2019, the appellant was sentenced to 26 months’ imprisonment1 by Judge Bergseng in the Manakau District Court after pleading guilty to two charges of indecent exposure;2 eight charges (three representative) of indecent communication with a young person;3 one charge of an indecent act in a public place;4 and three charges of knowledgeable possession of objectionable publications.5

[2] The appellant appeals his sentence on the basis it is manifestly excessive. In particular the appellant argues Judge Bergseng:

(a)adopted a starting point that was manifestly excessive;

(b)applied the maximum penalty for an uplift for the offence committed on bail;

(c)failed to apply appropriate and/or any discounts for identified mitigating factors; and

(d)did not consider the gravity of the effect of imposing a sentence greater than 24 months, and in particular the:

(i)ability of the appellant to complete the Safe Network Programme;

(ii)ability of the appellant to serve the sentence as home detention;

(iii)automatic registration on the Child Sex Offender Register, preventing the appellant from employment within his profession of information technology.

1      Police v W [2019] NZDC 13584.
2      Summary Offences Act 1981, s 23(1): maximum penalty of three months’ imprisonment/$2,000 fine.
3      Crimes Act 1961, s 124A: maximum penalty of three years’ imprisonment.
4      Crimes Act 1965, s 125: maximum penalty of two years’ imprisonment.
5      Films, Videos and Publications Classification Act 1993, s 131A: maximum penalty of 10 years’ imprisonment and to a fine not exceeding $50,000.

[3] In the event that any of these arguments are accepted and the end sentence is reduced below two years’ imprisonment, the appellant submits he should be sentenced to home detention rather than imprisonment on the basis that that is not only appropriate but would enable him to undertake the treatment he acknowledges that he needs.

[4] The Crown in contrast submits that there is no error in the sentence; the starting point, uplift and discounts were all within range, and that given the end point of the sentence there was no issue with regard to the appellant’s inability to access treatment or for his name to be included on the Child Sex Offender Register.

[5] An appeal of this type must be allowed if the Judge is satisfied that there is an error in the sentence imposed, and a different sentence should be imposed.6 Otherwise, the appeal…

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 [2019] NZHC 2933
Case: [2019] NZHC 2933
Decision Date: 11 November 2019

CaseChat Overview and Summary

The appellant, W, appeals against his sentence of 26 months' imprisonment imposed by Judge Bergseng in the Manukau District Court. W had pleaded guilty to two charges of indecent exposure, eight charges (three representative) of indecent communication with a young person, one charge of an indecent act in a public place, and three charges of knowledgeable possession of objectionable publications. W argues that the sentence imposed is manifestly excessive on several grounds, including the starting point being manifestly excessive, the application of the maximum penalty for an uplift for the offence committed on bail, and the failure to apply appropriate discounts for mitigating factors. The Crown contends that there is no error in the sentence imposed. The appeal was allowed by Powell J, who substituted the sentence with eight months' home detention to be served at the address and on the conditions as set out in the Provision of Advice to Courts Report dated 11 April 2019. Powell J found that the starting point for the sentence was not in error, but the end sentence should be reduced due to the need for greater allowance for the mitigating factors identified. Powell J also found that a sentence of home detention was appropriate in this case, and that registration on the Child Sex Offender Register was both appropriate and necessary.

This case highlights the importance of considering the seriousness of the offending, the mitigating factors, and the appropriate form of punishment when sentencing an offender. In this case, Powell J found that the appellant's offending was serious and disquieting, but that greater credit should have been given to the mitigating factors identified, including the appellant's previous good character, attempts to obtain treatment, and prospects of rehabilitation. Powell J also found that a sentence of home detention was appropriate in this case, as it would allow the appellant to immediately commence the SAFE programme at his own expense, in order to maximise the chance of successful rehabilitation, as well as his future reintegration back into the community. Finally, Powell J found that registration on the Child Sex Offender Register was both appropriate and necessary, as it would assist in the appellant's rehabilitation and ensure he is aware he will continue to be monitored for a significant period.

Orders