GOOSE v POLICE [2017] NZHC 2453

GOOSE v POLICE [2017] NZHC 2453 [6 October 2017]THE APPELLANT'S NAME IS SUPPRESSED UNTILNOON FRIDAY, 13 OCTOBER 2017.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECRI 2017-485-44[2017] NZHC 2453BETWEEN ANDREW GOOSEAppellantAND NEW ZEALAND POLICERespondentHearing: 3 October 2017Counsel: J Griffiths for AppellantC M Gisler for RespondentJudgment: 6 October 2017JUDGMENT OF SIMON FRANCE J[1] Mr Goose, now aged 20, was sentenced to 25 months' imprisonment for sixcharges of sexual offending in relation to young children.1 He appeals two aspects ofhis sentence:(a) the length; and(b) the refusal to grant permanent name suppression.[2] If successful as regards length, two consequent issues will arise – homedetention and placement on the child sex offenders register.1 R v Goose [2017] NZDC 20053.Offending2[3] There are two victims.[4] Mr Goose met the first victim, V1, at a holiday programme. They becamefriends with Mr Goose assuming the role of a big brother.[5] The first offending occurred when V1 was 10, and the appellant 17. V1expressed curiosity about sexuality. This led to both boys removing their trousers andthe appellant lying behind V1. He put his penis against V1's buttocks and simulatedsex. This conduct was repeated on numerous occasions although after the first timethe boys remained clothed. Mr Goose would on occasions unsuccessfully seek toremove or have V1 remove his pants. On some of these occasions Mr Goosemasturbated while behind V1 and also placed V1's hand on his penis while doing so.[6] On other occasions Mr Goose unsuccessfully asked V1 to perform oral sex onhim. The appellant regularly masturbated in front of V1. On one occasion when theirrespective ages were 12 and 19, the appellant more forcefully held V1 down, removedhis pants, and masturbated above him. Overall the offending spanned about a year.[7] The offending against V2 overlapped with the end period of the offendingagainst V1. It consisted of masturbating in V2's presence. The conduct was obviousto V1 but he did not see the appellant's genitalia.[8] Mr Goose admitted the conduct, some of which he disclosed.Sentencing[9] The District Court took a starting point of three years' imprisonment which isnot challenged on appeal. In its submissions seeking to uphold the sentence as notmanifestly excessive, the Crown submits a higher starting point was possible. I do notagree in the sense that the starting point seems to me to be about right, but if anythingshaded towards the higher end of the spectrum. Without ever minimising sexual2 Mr Goose's name is not to be suppressed. Accordingly, the offending will be described withlimited detail to minimise risks of identifying the victims.offending involving children, the conduct concerning V2 is at the lower end of thescale. V1 is more serious but involves minimal skin on skin conduct, and nopenetration of any kind.[10] The District Court gave a 30 per cent discount for all matters of mitigation.That is the real issue on the appeal. It was not explained how the 30 per cent was madeup.Decision[11] I have no doubt 30 per cent was insufficient. The Crown at sentencingaccepted the pleas were at the earliest time and merited the standard 25 per centdiscount. I agree this is so, particularly with child sex offending where an early pleais so advantageous to the victims and their families. Here the offender also clarifiedthe extent of the offending, another factor meriting full value for the plea.[12] That leaves 5 per cent for youth, remorse, rehabilitation prospects and noprevious offending. This is manifestly inadequate. The Judge gave no credit forremorse, noting a lack of insight, and a failure to express significant remorse in eitherthe pre-sentence report or psychological report. This is certainly true of the pre-sentence report where the writer considered Mr Goose showed little insight. Thepsychological report is more neutral, and notes Mr Goose does not understand all theconsequences and needs assistance.[13] It is apparent the appellant recognises that his conduct was wrong. He says hehad tried to stop, but still felt urges. He thereafter "hated" himself for what hadhappened. The tests administered by the psychologist assessed Mr Goose as being inthe low risk category.[14] In my view the Judge was correct to observe there are no obvious signs ofremorse but this very much reflects Mr Goose's age, immaturity, and limitedunderstanding. It is plain he needs assistance to work through these issues, and todevelop techniques. He professes a predominant interest in relationships with femalesof the same age. Also, as regards remorse, the most tangible reflection is an earlyguilty plea which occurred here. It is also to be noted that prior to sentencingMr Goose made contact with the WellStop providers. However, a formal programmecannot be arranged until the sentencing outcomes are clear.[15] Overall, I consider 10 per cent the least one might expect for the variousmitigating factors (excluding guilty plea). That increased recognition means any termof imprisonment will be a short-term sentence, thereby opening up the possibility ofhome detention. Home detention is the correct outcome here as it provides sufficientaccountability and deterrence, and it maximises the chances of rehabilitation both asregards access to assistance, access to family support, and avoidance of the prisonenvironment. I disagree with the District Court (which indicated it would not anywayhave granted home detention) that the seriousness of the offending and Mr Goose'sattitude tell against such a sentence. I consider the seriousness is adequately caughtby the starting point and there are no particular features that separate this offendingout from others of its type. I have commented on remorse which I attribute as muchto immaturity and inadequate understanding.[16] Mr Goose spent eight days in prison prior to being bailed by this Court pendingsentencing. Although a short time, it will have had a significant impact and will havebeen a salutary experience. Weighing all the factors I cancel the sentence ofimprisonment and substitute one of 10 months' home detention. The conditions are:(a) reside at the address on page 6 of the pre-sentence report;(b) be subject to conditions 1 to 7 on that page although that is not toprevent him residing with his siblings; and(c) these conditions are to apply also as post-sentence special conditions,alongside the standard conditions, for a period of 12 months.Registration on the Child Sex Offenders Register[17] Under the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016, a number of offences involving sexual conduct with childrenunder the age of 16 are identified as qualifying offences.3 Any offender who, as aconsequence of conviction for one of these offences, is sentenced to a term ofimprisonment of any length is automatically placed on the Register, generally for a 15year period.4[18] Where the conviction results in a non-custodial sentence, the Court is requiredto determine whether the offender is to be placed on the Register. Registration in thesecircumstances will be for eight years. Section 9(1) is the provision that empowers theCourt to place the offender on the Register. Section 9(2) provides that such an ordermay be made:only if the Court is satisfied that the person poses a risk to the lives or sexualsafety of 1 or more children, or of children generally.[19] Section 9(3) sets out a list of mandatory considerations when assessing the riskposed:(3) For the purpose of assessing the risk posed by the person, the courtmust consider the following matters:(a) the seriousness of the qualifying offence:(b) the period of time that has elapsed since the offence wascommitted:(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 thetime 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 bythe person:(j) any other matter that the court considers relevant.3 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, sch 2.4 Section 7.[20] Section 9 has been considered in Johnston v Police5 and Fowler v R.6 InJohnston the offender was convicted on a single charge of indecently assaulting a14 year old girl. The sentence was four months' home detention and 80 hours'community work. Mr Johnston had placed his hand on the upper thigh of a girlunknown to him while they were travelling on a public bus.[21] Concerning s 9, Dobson J accepted there was a two-stage test where theexistence of the s 9(2) risk was first to be determined, and then the discretion grantedby s 9(1) was to be exercised. His Honour observed:7 For the most part, sexual offending against children of any significance atall is likely to result in sentences of imprisonment. The consequences underthe Act in all those cases are automatic. The consequences are not automaticwhere a sentence of imprisonment is not warranted, but the prospect of anorder even for the least significant cases remains. That prospect requires ameaningful assessment of the factors before deciding that the concomitantrequirement of the more significant offending, where prison sentences follow,ought to extend to the less significant offending where prison sentences havenot been imposed.[22] Emphasis was then placed on s 3 of the Act which states the purposes of thelegislation. Section 3 provides:3 PurposeThe purpose of this Act is to establish a Child Sex Offender Registerthat will reduce sexual reoffending against child victims, and the riskposed by serious child sex offenders, by–(a) providing government agencies with the information neededto monitor child sex offenders in the community, includingafter the completion of the sentence; and(b) providing up-to-date information that assists the Police tomore rapidly resolve cases of child sexual offending.[23] This reference to serious child sex offenders led Dobson J to conclude s 9(2)must be read as only applying to such offenders or otherwise the scope of the Actwould exceed its intended purpose. Dobson J concluded:85 Johnston v Police [2017] NZHC 1718.6 Fowler v R [2017] NZHC 1892.7 Johnston, above n 5, at [26].8 At [30]–[31].The approach I adopt is that the requirement in s 9(2) that the person is onewho poses a risk to the lives or sexual safety of a child or children may reflecta standalone assessment of the s 9(3) considerations. A consequence wouldbe that anyone found to pose such a risk will, as a matter of definition, be aserious child sex offender in terms of the s 3 purpose.This approach means that the level of risk identified for the purposes of s 9(2)must be assessed via s 9(3), but that risk must nonetheless be consistent withthat created by a person whose offending is that of a serious child sex offender.If that minimum ranking of the nature of the risk is not applied, then the regimewould apply beyond the scope Parliament intended, as reflected in its statutorypurpose.[24] In the particular case Mr Johnston was held not to meet the s 9(2) riskthreshold.[25] In Fowler, Thomas J endorsed the passage from Johnston just cited.9 HerHonour also placed emphasis on the use of the term serious child sex offender in s 3of the Act, and concluded the risk required by s 9(2) must be "more than 'real andgenuine'".10 Thomas J also considered the second step discretion analysis required:11 an assessment of proportionality and a consideration of whether the riskidentified in the first stage of the test would be mitigated by the offender beingon the Register. Relevant considerations include balancing the risk tochildren, adverse impacts of registration, whether registration is proportionateto the risk, and preventing stigmatisation of low-risk offenders.[26] It being early days in the life of this legislation, it is appropriate to venturefurther comment, in this case taking a somewhat different approach. A potential effect,as I see it, of the decisions discussed may be to raise the threshold too high, especiallyif an elevated level of risk is then matched by the type of further analysis envisagedunder the second step consideration of the discretion.[27] The idea of a threshold level of risk is not inconsistent with the statutorypurposes. The mandatory considerations in s 9(3) are targeted at identifying the risk,and presumably premised on the proposition that not any risk, however negligible, willsuffice. However, once the heightened threshold of risk is found to be present, I query9 Fowler, above n 3, at [32]–[33].10 At [30].11 At [36].the extent to which the discretionary step requires the sort of detailed analysisproposed in Fowler.[28] The concept of "serious child sex offender" appears only in the purposeprovision and while that obviously informs interpretation, it is not definitional.Section 9 on its face does not contain a heightened test and it can at least be positedthat one who has committed a qualifying offence, and who is assessed as posing anon-going risk to the sexual safety of children can fairly be described as a serious childsex offender.[29] In my view, when dealing with offenders sentenced to home detention andconcerning whom the relevant risk has been identified as being present, the role of thediscretion will be even more circumscribed. That is because there are many aspectsof this type of offender that so closely parallel the offender concerning whomregistration is mandatory – that is, every eligible offender who is sentenced to actualimprisonment for any length of term. A characteristic of the sentence of homedetention is that the Court has already determined the offending, but for homedetention being available, merits a term of imprisonment. Section 15A(1)(b) of theSentencing Act 2002 makes this plain by providing home detention may be imposed:only if the court would otherwise sentence the offender to a short-termsentence of imprisonment.[30] When an offender subject to a sentence of home detention is assessed aspresenting the necessary degree of on-going risk to child safety, and bearing in mindin accordance with Johnston that the assessed risk is the type of risk posed by a seriouschild sex offender, I suggest it will not be often that the discretion points away fromregistration. Registration would be consistent with a statutory scheme that makesregistration mandatory for every eligible offender subject to the same short-termsentence that underlies all sentences of home detention. And it can be noted that oftenthe difference between the two situations (home detention or imprisonment) is oftensomething not directly relevant to the registration issue, such as the availability of asuitable address.[31] Against that background I turn to the particular case. Mr Goose was 17 whenthe offending started. It is a relevant observation to note that s 7(3) of the Act excludesoffending that is committed by someone who has not attained the age of 18 years. Thismeans Mr Goose would not have been liable to registration for the initial conductwhich was the only skin on skin offending. This limiting of the eligibility age to 18also suggests that the youth of the offender is seen by the legislature as potentially aconsideration counting against registration.[32] The victims were aged 10 to 12 over the relevant offending period and soobviously vulnerable. As the District Court noted, the offending contained an elementof grooming in that friendships with boys much younger than him were cultivated, andtrust developed (both with the victims and their families). In terms of the seriousnessof the offending, these factors and the actual conduct merited a three year starting pointwhich is a significant figure and one which takes the offending well out of the minorrange.12[33] The reports suggest Mr Goose lacks understanding but displays a willingnessto obtain professional assistance. It is noted the psychologist assessed his risk as low.However, it must also be noted that despite being aware of the wrongness of hisconduct, and attempting to desist, Mr Goose admits he felt urges he could not resistand so continued to offend.[34] The psychological assessment is the strongest matter pointing towardsMr Goose not meeting the s 9(2) risk threshold. The report writer notes the assessmenttools are not sourced in New Zealand, so care is needed, but they are the best indicatorsavailable. There is also the point made that that recidivism estimates are for the entiregroup carrying those characteristics, and not offender specific. None of this is toundervalue the resulting assessment; just to recognise as the report writer does that ithas limits.[35] The two tests undertaken produced results of moderate risk, and average risk.Combining the two produced an assessment of "low". How this occurs is not12 Although the offending done when aged 17 is not eligibility offending, I do not regard it asotherwise irrelevant.explained, but I of course defer to the report writer's knowledge of the tools.Comprehensive treatment is recommended.[36] It is very much to be hoped that this professional assistance available andwhich Mr Goose is open to, will have the desired effect. His youth suggests hisrehabilitative prospects are sound. However, weighing all the factors, and in particularthe grooming aspect of the offending, the age of the victims, the seriousness of theoffending, and the recognised need for comprehensive treatment, it is my view that thenecessary level of risk required by s 9(2) exists. In terms of the discretion I see noreason to not direct registration. Mr Goose is at an age where he is more likely to bemoving around, and registration will assist monitoring. I accordingly directregistration.Name suppression[37] The District Court declined name suppression. On appeal three bases forchallenge are advanced:(a) the conclusion that there was no extreme hardship was incorrect;(b) the Court failed to consider whether suppression was necessary toprotect the identity of the victims; and(c) the Court incorrectly considered the possibility of further victimsemerging.[38] I address the latter two points first. Concerning the victims, the parents of thechildren opposed name suppression, and there is no evidence of a concern. Thisjudgment has been able to be written in a manner which provides little or no clue toidentity other than to those who would already be aware. As for further victims,Mr Griffiths submits and it is not disputed, that the police canvassed parents withinthe relevant grouping. I accordingly accept that there is no basis at this stage toconclude the possibility of further victims is a relevant concern.[39] The real issue is the statutory threshold of extreme hardship. It is submitted itcan be found in the appellant's youth and the impact it will have on rehabilitation.However, there is no evidence to suggest publication will impact on treatment or limitassistance being provided. The only concern then is the on-going stigma that attachesto this type of offending. I accept that is real but there is no basis to consider here thatit will be out of the ordinary or disproportionate to what was serious offending. At 20years of age, Mr Goose is young and publication will, for a period, be a burden but thefacts fall well short of extreme hardship.[40] The appeal against the refusal to grant name suppression is dismissed. I will,however, defer the effect for one week to allow Mr Goose to adjust to the reality.Conclusion[41] The appeal against sentence is allowed. The sentence of 25 months'imprisonment is quashed and a sentence of 10 months' home detention substituted.The conditions are as set out at [16].[42] An order is made under s 9(1) of the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016 directing that Mr Goose be placed on theRegister.[43] The appeal against name suppression is dismissed. The existing namesuppression expires at noon on Friday, 13 October 2017.[44] Mr Goose is to remain on bail on existing conditions until the necessary stepsare taken to enable the sentence of home detention to commence.___________________________Simon France J