C (CA537/2022) v R [2023] NZCA 121

C (CA537/2022) v R [2023] NZCA 121 [29 April 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT IN THIS PROCEEDINGPROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT IN PREVIOUSPROCEEDING PROHIBITED BY S 203 OF THE CRIMINAL PROCEDUREACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA537/2022[2023] NZCA 121BETWEEN C (CA537/2022)AppellantAND THE KINGRespondentHearing: 16 February 2023Court: Katz, Whata and Davison JJCounsel: J M Hudson for AppellantA A Kefu and J G Fenton for RespondentJudgment: 21 April 2023 at 9:00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)[1] Mr C (the appellant)1 appeals the sentence imposed by Judge Winter in theDistrict Court at Manukau on 21 September 2022.[2] The appellant appeals on the ground that the Judge erred by determining thatthe appellant poses a risk to the lives, or sexual safety, of one or more children, or ofchildren generally and by making a registration order under s 9 of the Child Protection(Child Sex Offender Government Agency Registration) Act 2016 (the RegistrationAct), placing the appellant on the Child Sex Offender Register (the registration order).2[3] The appeal is against the making of the registration order.Background[4] The appellant is now 57 years old. At the conclusion of his trial before a juryhe was found guilty and convicted of one charge of doing an indecent act on a childunder 12 years old.3 He was sentenced by Judge Winter on 21 September 2022 to10 months' home detention, six months' post-detention and special conditions, andregistration on the Child Sex Offender Register (the register).4[5] In his sentencing remarks, the Judge summarised the facts of the appellant'soffending as follows:[2] What happened I find, having heard the trial, at a home address, yoursister and two grandchildren were visiting, staying for the weekend. At a timewhen others fell asleep you approached this young victim, who was watchingtelevision. You told her to come and sit on top of you. She did not want to,but you picked her up and sat her on your lap. She was wearing a shirt and apair of shorts. You then lifted up her shirt, put your hand under it, and rubbedher tummy in a circular motion. You then used your hand and rubbed hervagina over the outside of her shorts. She was trying to push you away. Shetried to get off your lap, but you held her and told her not to tell hergrandmother.[3] Eventually, when grandmother awoke, she called to the child and therewas disclosure.1 The appellant's name has been anonymised throughout this judgment, despite it not beingsuppressed, because identifying the appellant by name would risk breaching the complainant'sprotections under ss 203 and 204 of the Criminal Procedure Act 2011 due to the nature of theoffending and his relationship with the complainant. See H v R [2019] NZSC 69, [2019] 1 NZLR675 at [54]–[58].2 The Act came into force on 14 October 2016.3 Crimes Act 1961, s 132(3) (maximum penalty 10 years' imprisonment).4 R v [C] [2022] NZDC 18813 [Sentencing notes] at [31].[6] Referring to the appellant's criminal history and specifically his 2009conviction for unlawful sexual connection with a female over 16 years, the Judge said:[15] As to the aggravating features, you have a range of convictions, goingback to 1983. Most relevant is your conviction for unlawful sexual connectionwith a female over 16, where you were sentenced to 2 years' imprisonment, in2009.[16] I have read the summary of facts for that offending and do not needto rehearse that now, except to note that that too was very serious, and theexcuse given at that time by you was that it was alcohol induced. You and shehad been at a family party. She was sleeping in the bedroom in the house.You entered, laid down next to her and inserted your fingers into her vaginaand only stopped when a male family member entered the room anddiscovered the sexual assault.[7] Addressing the question of whether to impose a registration order on theappellant the Judge said:[26] I then have to consider, as I have imposed a non-custodial sentence,whether you are eligible for registration on the Child Sex Offender Register,as you have been found guilty of a Class 2 offence, as defined by s 92 of thatAct.[27] In order for the Court to order that registration I must be satisfied thatyou present a risk to the life or sexual safety of one or more children, or ofchildren generally. Following your conviction you engaged a consultantclinical and neuropsychological expert to conduct a risk assessment. I haveread Ms Visser's report. It is adequately summarised in your learned counsel'ssubmission.[28] Using the professional methodology available to her Ms Visseridentified you as being of average risk of being charged or convicted ofanother sexual offence and, in combination of those methodological tools,described you as being at an average risk of harm. Overall, Ms Visserconcluded that you present, however, as a low risk of re-offending, observingthe role that alcohol played in your offending and the positive steps you havetaken to cease alcohol consumption since your arrest.[29] While that observation is correct, and while the conditions of yourhome detention sentence will prevent you from possessing or consumingalcohol or unlawful substances for the duration of that sentence, and thepost-detention period, I am not satisfied that the excuse of alcohol being thepredominant cause for your offending provides any assurance that you do notpresent a risk to one or more children generally and I am, accordingly,adopting a cautious approach, as I am satisfied that you present that risk to thesexual safety of children generally, that you need to be registered on theChild Sex Offender Register.[30] Society's benefit, in having you registered, will be that the onus willfall to you to subsequently persuade the Court that you should be removedfrom that register after a suitable and satisfactory period of time, where youhave proved that that risk no longer [exists].SubmissionsThe appellant[8] Mr Hudson for the appellant submits that the Judge erred in concluding thatthe appellant poses a risk to the lives, or sexual safety, of one or more children, or ofchildren generally. He says the Judge failed to take all of the mandatory factors setout in s 9(3) of the Registration Act into account, and also erred by discounting awritten assessment prepared by Ms Sabine Visser, who is a clinical neuropsychologist,of the risk posed by the appellant. Mr Hudson says that although the Judge correctlydescribed the appellant's offending, he failed to note that almost four years had elapsedsince the offending, during which the appellant had taken steps to reduce his risk ofre-offending: specifically by abstaining from consuming alcohol.[9] Mr Hudson notes that Ms Visser's assessment of the appellant's offendingfound that he has an "average" risk of reoffending, and having regard to the appellantceasing to consume alcohol since the offending she concluded that he now poses a lowrisk of reoffending both generally and in a sexual manner. He submits that other thansaying that he was "adopting a cautious approach",5 the Judge did not give reasons fordiscounting Ms Visser's expert opinion. Counsel notes that the author of theappellant's pre-sentence report concluded that his risk of re-offending was mediumgiven his lengthy history of re-offending and taking into account the decrease infrequency over the preceding 10 years.[10] Mr Hudson also notes that the Judge erred as regards the duration of aregistration order and its reporting obligations, as appears from his comment that theappellant would be able to apply to the Court during the course of the eight yearregistration order period to be removed from the register if he is able to prove that therisk he poses no longer exists. Counsel notes that there is no provision in theRegistration Act for an offender to apply to the Court for his name to be removed fromthe register. Mr Hudson submits that the significance of this misunderstanding, is that5 Sentencing notes, above n 4, at [29].the Judge appears to have been influenced by, and taken into account, the appellant'sability to apply to the Court for removal from the register and the incentive that createdfor him to pursue measures to reduce the risk of any further sexual offending againstchildren.The respondent[11] Mr Kefu for the Crown submits that the Judge was correct in finding that theappellant poses a real and genuine risk to the safety of a child or children generally,and having found that such a risk exists, the Judge correctly exercised the discretionto make a registration order. Mr Kefu says that although the Judge did not specificallyaddress all of the s 9(3) factors, as the trial Judge he was nevertheless aware of all ofthe matters covered by the s 9(3) factors, and was consequently able to make awell-informed assessment of the appellant's risk of re-offending in a sexual wayagainst children.[12] Counsel notes the appellant's extensive history of criminal offending whichincludes a conviction on 18 December 2009 for unlawful sexual connection with afemale over 16 years for which he was sentenced to two years' imprisonment.Mr Kefu also notes that there is no evidence that the appellant has received anytreatment since his offending which is directed at reducing his risk of re-offending,and he says that the information contained in Ms Visser's report regarding theappellant's abstinence from consuming alcohol is based on his self-reporting. Counselsays that the Judge clearly had regard to the contents of the pre-sentence and s 27reports, the victim impact statement and the trial evidence he had heard and, on thebasis of this information, he was entitled to reach a different conclusion than Ms Visseras to the level of risk the appellant poses. The Crown also notes that in exercising thediscretion to make a registration order the Judge explained that he had adopted acautious approach.[13] Mr Kefu submits that although the Judge did not specifically address the issueof whether the level of the risk of re-offending was sufficient to warrant the makingof a registration order and the intrusion an order would have on the appellant's rights,he did not exercise the discretion after taking irrelevant considerations into account orapplying wrong principles. The Crown submits that having regard to the appellant'scriminal history which includes a conviction for similar offending, and the appellant'suntreated alcohol abuse issues, the Judge's exercise of discretion to make a registrationorder did not involve any error. The Crown submits that having regard to theseriousness of the appellant's offending, the making of a registration order wasappropriate in order to achieve the protective objectives of the Registration Act.Law[14] The appeal against sentence is brought pursuant to s 244 of the CriminalProcedure Act 2011 (CP Act). Section 250(2) of the CP Act provides that the Courtmust allow an appeal against sentence if satisfied that for any reason there is an errorin the sentence imposed on conviction and a different sentence should be imposed. Inany other case the Court must dismiss the appeal.6[15] Section 3 of the Registration Act sets out its purpose as follows:PurposeThe purpose of this Act is to establish a Child Sex Offender Register that willreduce sexual reoffending against child victims, and the risk posed by seriouschild sex offenders, by—(a) providing government agencies with the information needed tomonitor child sex offenders in the community, including after thecompletion of the sentence; and(b) providing up-to-date information that assists the Police tomore rapidly resolve cases of child sexual offending.[16] Section 9 of the Registration Act contains the court's power to make aregistration order placing an offender convicted of a qualifying offence on the register.Section 9 provides:Court may make registration order(1) If a court imposes on a person a non-custodial sentence inrespect of a conviction for a qualifying offence, the court mayorder that the person must be placed on the register and mustcomply with the reporting obligations of this Act.6 Criminal Procedure Act, s 250(3).(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 orsexual safety of 1 or more children, or of children generally.(3) For the purpose of assessing the risk posed by the person, thecourt must 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 theoffence:(f) the difference in age between the victim and theperson 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 theoffence:(i) any other submission or evidence relating to the riskposed 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 sentencefor 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 othermeans of dealing with the offender.(6) The provisions of subparts 4 and 12 of Part 6 of the CriminalProcedure Act 2011, so far as they are applicable and with thenecessary modifications, apply to an appeal in respect of aregistration order.[17] The Registration Act applies to "registerable offenders" being persons who areresidents in New Zealand aged 18 years or older at the time they committed aqualifying offence, and who are sentenced to imprisonment, or sentenced to anon-custodial sentence and made subject to a registration order.77 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7.[18] The offence of doing an indecent act on a child under 12 years is a qualifyingoffence under the Registration Act.8 Where a registerable offender is sentenced to aterm of imprisonment, registration under the Registration Act follows automatically.9And where a registerable offender is sentenced to a non-custodial sentence, the Courthas the power to make a registration order only if satisfied that the offender poses arisk to the lives or sexual safety of one or more children, or of children generally.10[19] Section 9(3) of the Registration Act prescribes the matters that the Court musttake into account when assessing the risk posed by the qualifying offender. Section 35of the Registration Act prescribes the length of the reporting period and period on theregister for offenders based on the class of offence for which they were sentenced. Inthe case of an offender who is sentenced to a non-custodial sentence for a qualifyingoffence and a registration order made, they remain on the register for a period ofeight years commencing from when the offender is made the subject of a registrationorder at the time of sentencing.11[20] In D (SC 31/2019) v New Zealand Police a majority of the Supreme Court,held that when the Court is considering making a registration order it must follow atwo-stage process.12 First, it must be satisfied that the offender poses "a real orgenuine risk" to the lives or sexual safety of a child or children generally. Second, itmust be satisfied that the risk is of sufficient gravity to justify the making of aregistration order with the consequent impacts such an order will have on the rights ofthe offender. A different majority of the Supreme Court further held that in assessingthe risk posed by an offender, an appellate Court may take into account a report orreports prepared by a clinical psychologist who has treated the offender sincesentencing which update the evidence regarding the risk posed by the offender.138 Schedule 2, cl (2)(c).9 Section 7(1)(a).10 Section 9(2).11 Sections 34(b) and 35(1)(d).12 D (SC31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213 at [103]–[108] perWinkelmann CJ and O'Regan J and [260] per Glazebrook J.13 At [41] per Winkelmann CJ and O'Regan J and [159] per Ellen France J.[21] Describing the two-stage process and approach to be adopted in cases unders 9 of the Registration Act, Winkelmann CJ and O'Regan J said:14[104] The exercise undertaken by a court considering whether to make aregistration order under s 9 of the Registration Act is a two-stage process. Thepower to make a registration order is engaged only if the court is satisfied thatthe offender poses a risk to the lives or sexual safety of one or more childrenor of children generally, as set out in s 9(2). The first stage of the process isto determine whether that threshold has been met, having considered thefactors set out in s 9(3). If it has not been met, then no registration order canbe made.[105] We agree with the Court of Appeal that the court making theassessment under s 9(2) must be satisfied the risk is real or genuine: it wouldnot be correct to say that the risk must be "more than a real and genuine risk".Nor do we consider that the determination as to whether an offender meets thethreshold in s 9(2) is assisted by reference to the phrase "serious child sexoffenders" in s 3 of the Registration Act. That phrase is not a defined termand it is not used in s 9 itself.[106] If the threshold has been met, the second stage is whether thediscretion to make a registration order under s 9(1) should be exercised havingregard to the level of risk posed by the offender. In order to embark on thatassessment, the court must assess the nature and seriousness of the risk posedby the offender.[107] Section 9(3) is introduced by the words, "For the purpose of assessingthe risk posed by the person, the court must consider the following matters",which is clearly directed to the exercise of determining whether the riskthreshold in s 9(2) is made out. However, given the discretion as to whetheran order should be made is to be exercised in light of the risk posed by theoffender, those factors will also have relevance to the exercise of the discretionif it has been determined that the level of risk set out in s 9(2) is met.[108] Once a judge has determined the nature and seriousness of the riskposed by the offender, he or she must then determine whether that risk issufficient to warrant the making of a registration order and subjecting theoffender to the requirements of the Registration Act. That assessment willinvolve a balancing of the protective objectives of the registration orderagainst the level of intrusion into the rights of the offender.[112] Finally, we do not think that it is appropriate to approach that task witha presumption that an order should be made where an offender has beensentenced to home detention. No such presumption is provided for in theRegistration Act and it is not necessary to meet the purpose of theRegistration Act (set out in s 3) to read in such a presumption.[113] We acknowledge that there may be a tension between cases where anoffender has been sentenced to a short term of imprisonment and those wherethe offender has been sentenced to home detention for child sex offences of14 Footnotes omitted.similar seriousness. In the former case, the offender will automatically be aregisterable offender. In the latter case, the making of a registration order is amatter left to be assessed by the sentencing judge. There may be cases whereimprisonment was imposed only because the offender was not able to providea suitable address for home detention. In such a case, it is unfortunate that theconsequences of that inability lead not only to the offender going to prison,but also to registration, when the offender may have been able to convince thecourt not to make a registration order if home detention had been imposed.This is, however, what the Registration Act provides for and we do notconsider the fact that registration is automatic for an imprisoned offenderbears on the court's task in determining whether an offender who is notimprisoned should be subject to a registration order.[22] In relation to the first stage of the process identified in D (SC 31/2019) v NewZealand Police (assessing whether the threshold requirement that the offender poses arisk to the lives or sexual safety of one or more children or of children generally hasbeen met) this appeal proceeds by way of a rehearing. Specifically, this Court isrequired to form its own view on the facts in accordance with the approach describedin Austin, Nichols & Co Inc v Stichting Lodestar.15[23] If the Court concludes that the Judge was correct to find that the thresholdrequirement was met, then this Court must review the exercise of the Judge'sdiscretion to make a registration order under s 9. At that stage of the analysis theprinciples explained by this Court in May v May are engaged, with the effect that weshould only allow the appeal if we find that the Judge acted on a wrong principle, tookinto account irrelevant matters, or was plainly wrong.16Analysis[24] In accordance with the approach described by the Supreme Court inD (SC 31/2019) v New Zealand Police, we shall commence by considering the levelof risk of re-offending posed by the appellant by reference to the factors set out ins 9(3) of the Registration Act.15 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.16 May v May (1982) 1 NZFLR 165 (CA) at 170.Has the threshold under s 9 of the Registration Act been met?(a) The seriousness of the qualifying offence[25] The inherent seriousness of the offence for which the appellant was foundguilty and convicted is indicated by the maximum penalty of 10 years' imprisonmentfor offending against s 132(3) of the Crimes Act 1961. The offending was committedupon a seven year old girl who because of her age was extremely vulnerable.[26] The offending also involved an egregious breach of trust by the appellant. Ashis great niece and a visitor to the address where the appellant lived, she should havebeen entirely safe and secure while in his house and in his care.[27] The appellant took advantage of her young age and her vulnerability whileother responsible adults were asleep in the house, to make the victim sit on his lapwhen she clearly did not want to. He took advantage of his physical size and strengthby picking her up and putting her on his lap and proceeding to indecently touch herwhile holding her to prevent her from getting away from him despite her efforts to doso.[28] An assessment of the gravity of the appellant's offending is also informed bythe effect his offending has had on the victim. Following the offending the victim'sconfidence was severely affected and she underwent weekly counselling to assist herto deal with what was clearly an extremely traumatic experience for her. We agreewith the Judge that the effects of the offending are likely to have an enduring effect onthe victim. The trauma of the offending itself was compounded by the victim havingto give evidence at the appellant's trial.[29] For these reasons we consider the appellant's offending is appropriatelyassessed as being of a moderately serious level, and justifying the 18 month startingpoint adopted by the Judge.(b) The period of time that has elapsed since the offence was committed[30] The interval between the offending which occurred on 9 November 2019 andthe appellant's sentencing on 21 September 2022 was nearly two years and 11 months.We do not consider this to be a significant factor in the context of this case.(c) The age of the person[31] At the date of his sentencing the appellant was 56 years old.(d) The age of the person at the time of the offence[32] At the date of the offending in November 2019, the appellant was 54 years old.(e) The age of any victim of the offence at the time of the offence[33] The victim was seven years old at the date of the appellant's offending.(f) The difference in age between the victim and the person at the time of theoffence[34] The age difference between the appellant and the victim at the date of theoffending is 47 years. We consider the respective ages of the victim and the appellantis a significant aggravating feature of the offending. As we have said, the appellanttook advantage of the vulnerability of the victim by reason of her young age.(g) Any written assessment of the risk posed by the person[35] Under this heading we consider the Department of Corrections pre-sentencereport, Ms Visser's report, and the s 27 report prepared by Ms Beech.[36] The pre-sentence report notes that the appellant accepts the jury's verdict andthat he expressed remorse for his offending and its effect upon the child victim. Itnotes that the appellant attributes his offending to his alcohol use and said that it wouldnever have happened if he had been sober. The report also notes that the appellantstated that he is not sexually attracted to children, although he declined to speak furtherabout his sexual preferences or deviance as those matters were covered in thepsychological and cultural reports. The report found that:Mr [C's] risk of harm is assessed as Medium, given the serious psychologicalharm caused by sexual offending. His likelihood of re-offending is assessedas Medium, given his lengthy history of offending while also considering thedecrease in frequency of offending over the last ten years.A sentence of Home Detention is recommended today, given the seriousnature of the offending. Mr [C] has demonstrated a propensity for harmfulsexual behaviour while under the influence, therefore special conditions toattend substance abuse counselling, to abstain from substances for theduration of his sentence and to attend an appropriate programme to addresshis sexual offending related behaviours is recommended.[37] In Ms Visser's report dated 16 August 2022, she noted that her sources ofinformation were: an interview and psychometric assessment with the appellant ofapproximately five hours on two dates in August 2022; the appellant's criminal andtraffic offence history; and the Crown summary of facts relating to the appellant'soffending. In relation to the appellant's 2009 conviction for unlawful sexualconnection with a female over 16 years, Ms Visser noted that the appellant explainedto her that he had offended against his niece who was 17 years old at the time of theoffending. He told Ms Visser that the offending occurred when he attended a party atwhich his niece was present. He was consuming alcohol and was intoxicated. He saidthat his niece was also drinking alcohol and was intoxicated. He told Ms Visser thatwhen his niece went to bed, he had followed her to the bedroom and got into bed withher and touched her vaginal area over her underwear. When others at the partyobserved him following his niece into the bedroom they immediately intervened,removed him, and the Police were contacted and he was arrested. Ms Visser utilisedtwo actuarial risk-assessment tools to assess the appellant's risk of committing furthersexual offending.17 Ms Visser concluded:Combining the two scores Mr [C's] score places him on Level III "Average"range of risk. Individuals placed in Level III are considered Average Riskusing the standardized risk level framework. They often have multiplecriminogenic needs – varying in severity – in psychological, interpersonal,and lifestyle domains. These needs are likely to be barriers to effective use ofany available prosocial resources and strengths. The rate of reoffending forindividuals in Level III is generally equivalent to the average rate of sexualreoffending in the overall population of individuals convicted of sexuallymotivated offences. It is expected that about half the individuals at Level III17 The Static-99R and the STABLE 2007 risk-assessment tools.will transition down to a Level II, Below Average Risk, within a year or twoafter a sufficient dosage of treatment or positive life changes. All willeventually transition to Level II or Level I should they remain offence-free inthe community for 10 to 15 years.OPINIONMr [C] has offended sexually against two victims, one over the age of 16in 2008 and one under the age of 12. During the commission of both offencesalcohol intoxication played a part in the offending as well as access to victim.Mr [C]'s risk assessment indicates that he is at low risk of re-offending.Further to this Mr [C] has not consumed any alcohol for the past two and halfyears and has no intention of returning to alcohol use. He has insight that theconsumption of alcohol leads to offending. His sexual offending history doesnot indicate an increase in frequency or seriousness. To the contrary thetwo offences are many years apart. The severity of the offending is alsoless as the current offending was above [clothing] and Mr [C] stopped theoffending himself. An aggravating fact is the age of the victim. However,Mr [C] has never offended against a child of this age before and his previousvictim was 17 years of age. Mr [C] understands that it is not only sexualoffending but also driving offences that his alcohol use contributed [to].Mr [C] now leads a very limited life and what further reduces his risks is hiscompliance to supervision and the conditions that have been in place overthe past two and half years. Mr [C] is on his own merit engaged withtrying to again obtain his driver's licence to avoid further illegal driving.Mr [C] also indicated that he is open to attend any treatment program orintervention that can be offered to assist him. He is ashamed of theoffences that he has committed and expected to be directed to attend aprogram, but this has not occurred. In order to further reduce his alreadylow risk Mr [C] should attend a drug and alcohol program to gain long termsupport for his sobriety and he may be able to obtain this by attending AAgroups. Mr [C] may benefit further from attending some psychologicaltreatment exploring some of his issues around relationships and intimacy.Of note, is also that Mr [C] acknowledges his offending when he wasyounger. There is an indication that Mr [C] made a substantial effort tochange and to discontinue offending. His Criminal and Traffic historyindicated that he did not record any offending since 2015.My overall opinion in regard to Mr [C] is that there is a low risk ofre-offending generally and in a sexual manner, if he consumes alcohol.However, he has insight into this and has not consumed alcohol for thepast two and half years. Mr [C] does not appear to have a sexual deviancywhich may result in him re-offending against children. His sexualpreference is with appropriately aged adult females.[38] In the s 27 report dated 16 September 2022, Ms Beech sets out information sheobtained from an interview with the appellant on 12 September. Although her reportdoes not directly address the issue of the risk of the appellant reoffending, Ms Beechnotes that the appellant's index offending and prior sexual offending occurred whenhe had consumed alcohol. She says:[Mr C] has previous relevant offending against a different victim, his niece.[Mr C] served a term of imprisonment for that offending over 10 years ago. Afactor in that past offending as well as this current offending, is [Mr C's]consumption of alcohol at the time the offences occurred. It is not the quantitythe [Mr C] consumes, it is the way it affects him and his judgment. He reportsmaking poor decisions once he has been drinking alcohol.The bail conditions [Mr C] is subject to includes a condition not to consumealcohol. [Mr C] has not had a drink of alcohol for over two years. He explainsit has been good for him and that he does not miss it. He has no intention ofreturning to drinking alcohol in the future, even past the expiry of his bailconditions.(h) Any submission or evidence from any victim of the offence[39] In her victim impact statement the victim, now 10 years old, says that she hasgone through things that a girl her age shouldn't, such as going to court and thinkingthat she was to blame for what happened to her. She explains that she has been seeinga counsellor on a weekly basis which has helped, but she is no longer sure of herself,and no longer the happy, "never shy", girl she was.(i) Any other submission or evidence relating to the risk posed by the person[40] Other than the reports we have referred to there is no other evidence relatingto the risk posed by the appellant.(j) The appellant's level of risk[41] Taking all of those matters and evidence into account, we are satisfied that theappellant poses a real and genuine risk to the lives or sexual safety of childrengenerally by re-offending in the manner or similar manner to his offending against theseven-year-old victim in the index offending, or in the manner he offended against the17-year-old victim in his offending in 2008 for which he was convicted in December2009.[42] In both instances of offending he took advantage of the victims while they wereparticularly vulnerable. In the case of the seven-year-old victim he took advantage ofher young age and his position of authority as her great uncle. In the case of the17-year-old victim he took advantage of the fact that she was intoxicated and in bed.[43] In our view the interval between the two acts of offending does not diminishthe risk of him reoffending. It illustrates that despite an interval of over 10 years histendency to offend sexually against young females remains a latent feature of hisbehaviour that represents a real and genuine risk of repetition if the opportunity wereto arise.[44] We note what the appellant and Ms Visser have said about the effect thatalcohol has on his behaviour and we accept that was a factor contributing to hisoffending. We also note the appellant's statements to the author of the pre-sentencereport and to Ms Visser that he has abstained from drinking alcohol since beingcharged with the index offending and that he has no intention of resuming theconsumption of alcohol. However, we note that the appellant has not taken any stepsto arrange or attend professional treatment or counselling to address his alcohol abuse,and we consider that in these circumstances the appellant's continued abstinence isappropriately treated with caution.[45] Furthermore, while we note Ms Visser's assessment that the appellant presentsa low risk of re-offending generally and in a sexual manner if he consumes alcohol,we assess the risk of him reoffending to be at a much higher level, and likely to besignificantly elevated should he consume alcohol and be in a situation where he hasan opportunity to reoffend against children.[46] We accordingly agree with the Judge's finding that the appellant presents a realand genuine risk of reoffending sexually against children generally, and in our viewspecifically against any female children who happen to be in his care or in his homein circumstances where an opportunity for the appellant to sexually offend againstthem arises.Should the discretion to make a registration order have been exercised having regardto the level of risk posed by the appellant?[47] Having reached that conclusion we turn to consider whether the Judge erred inexercising the s 9 discretion to make a registration order. We are satisfied that theJudge did not err in exercising the discretion.[48] Having noted Ms Visser's opinion that the appellant poses a low risk ofreoffending, the Judge said that he was not satisfied that the excuse of alcohol beingthe predominant cause of the appellant's offending and the imposition of homedetention conditions prohibiting him from possessing or consuming alcohol or otherunlawful substances, provides any assurance that he does not present a risk of sexuallyoffending against children.[49] Although the Judge did not expressly say so, in deciding to make a registrationorder, he necessarily took into account the effect that being on the register would haveon the appellant, and found that the requirements of registration were a justifiablerestriction of the appellant's rights which was necessary to protect children in thecommunity from the risk of the appellant re-offending against them.[50] Furthermore, we do not consider that by "adopting a cautious approach"18 andon that basis deciding to make a registration order, the Judge erred. It was anassessment that was open to the Judge to make, and he had the benefit of hearing theevidence presented during the trial and considering all of the information and materialspresented by the Crown and appellant for the sentencing.[51] Although we find that the Judge was mistaken about whether the appellantcould apply to the Court for removal from the register, we do not consider that hiserror by proceeding on the basis that the appellant would be able to apply for removalfrom the register was a significant consideration that had a determinative bearing onhis decision whether or not to make a registration order. In our view the key andoperative factors which led the Judge to make a registration order, were the nature ofthe risk posed by the appellant and the need to protect children in the community fromthe risk of the appellant re-offending.[52] We accordingly find that the appellant has failed to show that the Judge erredin deciding that, having regard to the Registration Act s 9(3) factors, the appellantposes a risk to the lives or sexual safety of one or more children, or of childrengenerally. We also find that the appellant has failed to show that the Judge acted on a18 Sentencing notes, above n 4, at [29].wrong principle, took into account irrelevant matters, or was plainly wrong inexercising the discretion and deciding to make a registration order.19Result[53] The appeal is dismissed.[54] We note that publication of the name, address, occupation or identifyingparticulars of the complainant is prohibited by ss 203 and 204 of the CriminalProcedure Act 2011. This judgment also refers to previous offending by the appellantin 2008. That complainant's name is also suppressed pursuant to s 203 of the CriminalProcedure Act 2011.Solicitors:Crown Solicitor, Manukau for Respondent19 May v May, above n 16, at 170.