C v POLICE [2020] NZHC 3200

C v POLICE [2020] NZHC 3200 [7 December 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSECTION 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2020-441-23[2020] NZHC 3200BETWEEN CAppellantAND NEW ZEALAND POLICERespondentHearing: 24 November 2020Counsel: J S Jefferson for appellantJ D Bridgman for respondentJudgment: 7 December 2020RESERVED JUDGMENT OF DOBSON JIntroduction[1] The appellant was sentenced in the Napier District Court on 9 October 2020on two representative charges, one each of an indecent act on a young person betweenthe age of 12 and 16, and one charge of an indecent act on the same young personwhilst the complainant was under 12 years old.1 Those offences carry respectivemaximum penalties of seven and 10 years' imprisonment.[2] The appellant was sentenced to 19 months' imprisonment by Judge Matenga,who declined to commute the sentence to one of home detention. The appeal isbrought on the narrow ground that the Judge was wrong not to transform the shortsentence of imprisonment into one of home detention, which had been recommendedin the pre-sentence report.The offending[3] The appellant exploited opportunities when he could get the complainant onhis own to carry out sexual offending against him. The complainant would accompanythe appellant to pick up fish and chips and, whilst driving, the appellant would rub thecomplainant's penis. On other occasions when they were alone at the appellant'shouse, he would approach the complainant from behind and kiss his neck. His contactsincluded the appellant trying to put his tongue in the complainant's mouth and reachinginto his shorts to play with his penis. When the complainant was a teenager, theappellant would get the complainant to masturbate him. Offending of this typeoccurred also at the complainant's home address and during a family holiday inAustralia.[4] In August 2019, the appellant resigned from his job and two days latervolunteered a statement to the Napier Police about some aspects of the offending. Theoffending he acknowledged was a relatively small part of what the complainanteventually described to Police. The appellant also downplayed the volume ofoffending and stated that the complainant had initiated the conduct between them.[5] Initially, the complainant declined to co-operate with the Police and wantednothing to do with the matter. However, when the complainant learned that theappellant claimed that he had initiated the sexual conduct, he was sufficientlydisgusted to provide a statement to the Police which reflected more serious offendingof a repeated nature than had been acknowledged by the appellant. The complainant's1 R v C [2020] NZDC 20557.disclosures resulted in more serious charges being laid than those to which theappellant initially pleaded guilty, and after discussions to rationalise the extent of thecharges, those to which he eventually pleaded guilty were settled upon.[6] The complainant is now an adult and his victim impact statement reveals thatthe offending had a serious impact on him, adversely affecting his self-esteem and hisdealings with members of his family and latterly with his partner. The depressioncaused by the offending caused him to take a year off work and he had used marijuanato try and forget what had happened, and needed sleeping pills to get to sleep.The District Court sentencing[7] Apart from minor criticisms, Mr Jefferson did not challenge the componentsof the Judge's sentencing calculation. The Judge ranked the relative seriousness of theoffending as warranting a starting point of 30 months' imprisonment. From that, theJudge allowed a 25 per cent discount for guilty pleas and 10 per cent for theappellant's personal circumstances. The mitigating factors under this head includedhis health issues, his age and lack of previous convictions. The discount of 10 per centhad been reduced from 15 per cent due to the appellant's stance in minimising his ownresponsibility and the allegation that the complainant had initiated the contact. Thecombined 35 per cent discount reduced the starting point of 30 months to 19 and a halfmonths, which was rounded down to 19 months' imprisonment as the end sentence.[8] The Judge then considered the prospect of substituting a sentence of homedetention. He dealt with it in the following terms:2I have vacillated over this question. I have decided in the end, Mr [C], that Iam not prepared to impose home detention. In my view the purposes andprinciples of sentencing, as I have set out, require a sentence of imprisonmentto acknowledge the significant breach of trust, hold you accountable, to deterand denounce. Your minimising of the seriousness of the offending by placingthe blame on [the complainant], just a young boy, shows an unwillingness, inmy view, or an inability to accept your role in this and would hinder yourprospects of rehabilitation.2 R v C, above n 1, at [23].The appellant[9] The appellant is a 71 year old first offender. He partially volunteered theoffending and was claimed by counsel to be remorseful. He pleaded guilty to therationalised forms of the charges after the complainant made a statement revealing thefuller extent of the offending.[10] The appellant does not enjoy good health. He has poor mobility and needs touse a walker, had a pulmonary embolism in July 2020 and is diagnosed with a pre-diabetic condition. A medical report from the general practitioner who monitors theappellant at Hawke's Bay Prison lists 18 long-term medications prescribed for him.[11] The pre-sentence report confirmed the suitability of the appellant's residentialaddress and the consent of the co-occupant to the appellant serving a sentence of homedetention there.Arguments on appeal[12] Mr Jefferson respectfully described the Judge's discounts for the appellant'sprevious unblemished record and poor health as "miserly". He submitted that incomparable decisions, a greater discount had been allowed to recognise the greaterdifficulty for an elderly person in poor health in serving a sentence of imprisonment.3In the assessment as between a term of imprisonment and home detention,Mr Jefferson submitted that the Judge was overborne by the fact that the appellant hadnot been fully accepting of responsibility and had sought to put blame on thecomplainant. He submitted that greater weight ought to have been given to recognitionof home detention as a less restrictive option where High Court and Court of Appealdecisions have recognised that the principles of deterrence and denunciation can befulfilled by such a sentence.[13] For the respondent, Mr Bridgman submitted that the sentencing Judge hadassessed all relevant considerations. He submitted that the appellant's numerousmedical conditions and his relative frailty could nonetheless be managed in prison and3 He instanced the decision of Gendall J in Clifton v Police HC Palmerston North CRI-2007-454-56,4 February 2008.that some discount had been given for them. Whilst the appellant was entitled to claimhe had no previous convictions, the weight to be given to that should be tempered bythe fact that the offending here spanned a number of years, possibly up to a decade.[14] Mr Bridgman submitted that no error could be shown and that the outcome waswell within the options properly available to the Judge.Analysis[15] I accept that more allowance might have been made for the difficulties theappellant will encounter in serving a prison sentence. Sending a 71 year old of limitedmobility dependent on a walker, and with other aspects of poor health, to prison forfirst offending should require meaningful justification.[16] Although the appellant volunteered a limited aspect of the offending, hecontinues to attempt to minimise the real impact. Most egregiously, he attempted toshift blame onto the complainant who was a young boy and adolescent throughout theperiod of much of the offending. Is that sufficient to decline what would otherwise bean appropriate substitution of a home detention sentence for one of imprisonment?[17] I respectfully differ from the sentencing Judge in the effect of denunciation anddeterrence that can be signalled by a sentence of home detention. This has beenrecognised by the Court of Appeal,4 and the importance of adequately signallingdenunciation and deterrence does not lead to substituting home detention for whatwould otherwise be a prison sentence "only in exceptional circumstances". The Courtof Appeal has found it is not necessary to adopt that approach in relation to sexualoffending against children.5[18] As to the difficulties for a man of the appellant's age and health problemsenduring a prison sentence, I do accept that his conditions may well be capable ofbeing managed in prison. However, that does not entirely alleviate the additionaldifficulties he will encounter, relative to the ability to manage his conditions in hisown home environment.4 For example, R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R [2013] NZCA 340 at [29].5 Kennedy v R [2011] NZCA 569 at [8].[19] For these reasons, I consider that this is a case for substituting home detention.I accordingly allow the appeal and substitute the original sentence of 19 months'imprisonment with one of nine months' home detention. I specify the conditions thatare to apply at the end of the judgment.Entry of Child Sex Offender Register[20] The appellant's name was required to be placed on the register as a result ofbeing sentenced to imprisonment.6 Once the prison sentence is substituted with onefor home detention, under s 9 of the relevant Act the Court has a discretion as towhether the offender is to be placed on the register. In the appellant's case, it is anissue of whether he remains on the register and for that to occur I have to be satisfiedthat he poses a risk to the lives or sexual safety of one or more children or of childrengenerally.7[21] The considerations are set out in s 9(3) as follows:9 Court may make registration order(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:6 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).7 Section 9(2).(i) any other submission or evidence relating to the risk posed bythe person:(j) any other matter that the court considers relevant.[22] If the appeal succeeded to this point, Mr Jefferson submitted that there were nogrounds for exercising the discretion to require the appellant to remain on the register.He submitted that the appellant did not pose a risk given his frail state of health, theadmission of his previous offending, and an on-going condition of his sentence that henot associate with young people under the age of 16.[23] I note that the writer of the pre-sentence report took the view that whilst hislikelihood of re-offending was treated as low, the appellant's conduct since theoffending came to light meant he is ranked as being at a moderate to high risk ofharming others.[24] On all the information available, and despite his frail physical condition andthe requirement that he not associate with young people limiting his opportunities foroffending, the appellant's attitude to his offending does give rise to a sufficient risk forhis registration to remain. For the avoidance of doubt, I deal with this by ordering,under s 9 of the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 that his name be placed on the register. In practice, I apprehendthis means only that it will not be removed.8Summary[25] I am mindful of the Court of Appeal's caution in Palmer v R that in appealschallenging sentencing decisions not to substitute home detention for a short sentenceof imprisonment, a significant margin of discretion ought to be afforded to thesentencing Judge.9 Here, the Judge implicitly recognised it was a borderline case.10But, with respect to the Judge, on a weighing of the competing relevant considerations,I find it a clear case in which home detention is the least restrictive sentence that will8 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(5).9 Palmer v R [2016] NZCA 541 at [19].10 The Judge acknowledged having vacillated over the question – see [23] of the sentencing notesquoted at [8] above.sufficiently mark the deterrence and denunciation required by the seriousness of theoffending.[26] I have accordingly allowed the appeal. The sentence of 19 months'imprisonment is to be substituted with one of nine months' home detention. Thespecial conditions that are to apply to the sentence are those recommended in the pre-sentence report, namely that the appellant is:(a) to attend and complete an appropriate treatment/counselling/programme to the satisfaction of a Probation officer; the specific detailsof which shall be determined by a Probation officer;(b) not to associate with or contact the complainant without the priorwritten approval of a Probation officer;(c) not to associate or otherwise have contact with any person under16 years of age except in the presence and under the supervision of an"approved informed adult", which means a person who has been givenprior approval in writing by a Probation officer as being suitable for thepurpose of this condition.[27] The appellant is to be released from prison when arrangements can be madefor him to travel directly to the address at which the home detention sentence is to beserved, at a time convenient to those who will supervise the home detention sentenceto meet him there and induct him to it.[28] The appellant is to remain on the Child Sex Offender Register. As a matter ofform, I direct that his name is to be entered on the register pursuant to s 9 of the ChildProtection (Child Sex Offender Government Agency Registration) Act 2016.Dobson JSolicitors/Counsel:J S Jefferson, Napier for appellantCrown Solicitor, Napier for respondent