KANUTA v R [2019] NZCA 185

KANUTA v R [2019] NZCA 185 [2 April 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSON UNDERTHE AGE OF 18 YEARS WHO APPEARED AS A WITNESS OR NAMEDWITNESS UNDER 18 YEARS OF AGE PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA652/2018[2019] NZCA 185BETWEEN GRANT MAKUARE KANUTAAppellantAND THE QUEENRespondentHearing: 1 April 2019Court: Williams, Collins and Toogood JJCounsel: A M Simperingham and M A Terekia for AppellantJ A Eng and A D H Colley for RespondentJudgment: 2 April 2019 at 3.00 pmReasons: 27 May 2019JUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence of 10 months' imprisonment imposed in the District Court isquashed and substituted with a sentence of 14 days' home detention tocommence 8 April 2019.D Mr Kanuta must take part in a rehabilitative and reintegrated needsassessment if and when directed to do so by a probation officer. Thispost-detention condition will remain in force for 12 months from 22 April2019.E Bail is to continue on the existing conditions until 8 April 2019.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Kanuta was convicted of one charge of indecently assaulting [ ] (V)following a trial before a jury presided over by Judge Cathcart in the District Court atGisborne. Mr Kanuta was found not guilty of four other charges of indecentlyassaulting V. Judge Cathcart sentenced Mr Kanuta to 10 months' imprisonment andhis name was placed on the Child Sex Offender Register.1[2] Mr Kanuta appeals against his conviction. He contends a miscarriage of justiceoccurred in his trial when the Judge directed the jury to disregard a submission madeby Mr Simperingham, Mr Kanuta's counsel. Mr Simperingham's submission wasmade in the context of him criticising the police for not interviewing V'sseven-year-old brother, G, who was apparently present when all but one of the allegedindecent assaults occurred. Mr Simperingham said, in closing, that there was"something fishy there's something to hide here, something fishy going on".The Judge told the jury Mr Simperingham's comments were improper because hiscriticisms had not been put to the police officer in charge of the inquiry.[3] Mr Kanuta appeals his sentence on the basis that he should have beensentenced to approximately five months' home detention. He also says that his nameshould not be on the Child Sex Offender Register.1 R v Kanuta [2018] NZDC 22620 at [29]–[30].[4] On 2 April 2019, we delivered a results judgment in which we dismissedthe appeal against conviction and allowed the appeal against sentence.2 Our reasonsfor doing so are explained in this judgment.Background[5] On 12 August 2017, Mr Kanuta was looking after V and G. V alleged that,throughout the day, Mr Kanuta engaged in a series of indecent assaults by touchingher legs, hips, bottom and vagina area. V also alleged that Mr Kanuta touched herbreasts while lying on a bed with G who was, apparently, asleep at the time. V saidthat Mr Kanuta rubbed and squeezed her breasts outside of her clothing. The Crowncontends she felt uncomfortable and went to put another top on, but Mr Kanuta calledher back. When she lay back down, Mr Kanuta again touched her breasts.[6] Mr Kanuta was convicted of one charge relating to him touching V's breasts.He was found not guilty of four other charges of indecent assault.Conviction appeal[7] During his closing address, Mr Simperingham criticised the failure ofthe police to interview G. In order to emphasise that the police had not conducteda thorough inquiry, Mr Simperingham referred to what he called the "elephant inthe room" and said:I submit to you that's something fishy, that's an incomplete enquiry and youcan draw on your experiences, men and women of the world So again, youmight think there's something to hide here, something fishy going on there's just something here that I can't explain and in my submission, as I sayit's a stone that has been left unturned.[8] In his summing-up, the Judge directed the jury in the following terms:[74] Now, Mr Simperingham then spoke about what he referred to as"the elephant in the room". Where is [G], he says, because, according tothe complainant's account, [G] was present for all but one of the acts oftouching. He is a younger sibling by one or two years.[75] Then Mr Simperingham said [G] was not part of the police enquiryand that is "fishy". Now let me tell you in direct terms — that submission was2 Kanuta v R [2019] NZCA 85.improper. Detective Sergeant Hunter was never asked about [G] and whether[G] was part of the police enquiry and issues of that nature. You have got anallegation effectively made against Detective Sergeant Hunter in a backdoorfashion by defence counsel who is claiming it is all "fishy". My direction toyou is to ignore that submission because in fact it was never put to DetectiveSergeant Hunter and it ought to have been put to him.[76] If, in fact you consider it has got some weight, then you should bearin mind that Detective Sergeant Hunter has never been given the opportunityto respond to that allegation.[9] Mr Simperingham accepted he had not put to the officer in charge of the casehis allegations that the police had acted improperly.[10] Section 92 of the Evidence Act 2006 obliges a party to cross-examinewitnesses on "significant matters that are relevant and in issue and that contradictthe evidence of the witness, if the witness could reasonably be expected to be ina position to give admissible evidence on those matters".[11] This Court has previously observed that closing submissions may engagethe duty to cross-examine in compliance with s 92 of the Evidence Act.3Mr Simperingham was entitled to point out that G was a potential witness and thatthe jury had not heard from him. He could not, however, take the additional step ofalleging the police had acted improperly without putting that allegation to the officerin charge of the inquiry. While we accept Mr Simperingham's comments were notintended to impugn the integrity of the officer in charge of the investigation, hisunfortunate choice of words had that effect. The Judge was therefore entitled toinstruct the jury to disregard Mr Simperingham's allegation of police impropriety.The Judge did so by carefully delineating between what it was permissible forMr Simperingham to have said and what he should not have said. We therefore do notfind fault with the Judge's approach.[12] In any event, there was no miscarriage of justice arising from the trial Judge'sdirections for the following two reasons:(a) Mr Kanuta was found not guilty on four of the charges. The jury wasclearly not prejudiced against him in any general way.3 S (CA509/2015) v R [2016] NZCA 81.(b) While G might have been able to give evidence in relation to the threeother charges where he was present, the evidence suggests he wasasleep during the period when Mr Kanuta was touching V's breasts.Thus, Mr Simperingham's submission is unlikely to have carried muchweight with the jury in relation to that particular charge.Sentence appeal[13] Mr Kanuta does not challenge the length of his sentence. Rather, he challengesthe decision not to impose a sentence of home detention.[14] Judge Cathcart considered home detention but concluded that such a sentencewas unavailable because the Department of Corrections was not willing to attacha GPS tracker to Mr Kanuta's wrist, and Mr Kanuta did not wish to have an anklebracelet attached because such a device would be incompatible with his significantmedical issues.4 Mr Kanuta suffers, amongst other conditions, congestive heartfailure, atrial fibrillation, hypertension and diabetes.[15] It was submitted on behalf of Mr Kanuta that the Judge erred by accepting thatMr Kanuta was not eligible for home detention and that the Judge failed to properlyconsider that form of sentence.[16] Mr Kanuta has been on very restrictive bail conditions following hisconviction. He has been required to reside at his home 24 hours per day, apart froma four-hour respite each week to enable him to attend to personal matters. His bailconditions have been in place for approximately six months.[17] When applying for bail pending his appeal, Mr Kanuta swore an affidavit inwhich he explained that he was willing to have an ankle bracelet attached. In thesecircumstances, the Crown properly accepted that a term of home detention should beimposed and that the appeal against sentence should be allowed in order to achievethat outcome.4 R v Kanuta, above n 1, at [22] and [26].[18] The key issue that has concerned us is the appropriate length of a sentence ofhome detention. Mr Kanuta's offending was serious and would normally havewarranted a sentence of five months' home detention. He has, however, effectivelyserved the equivalent of five months' home detention through his very restrictive bailconditions.[19] In our assessment, the most appropriate way of dealing with Mr Kanuta'ssentence appeal was to quash his sentence and substitute the minimum period of homedetention that may be imposed, namely two weeks.5 That sentence commenced on8 April 2019.[20] We also imposed the standard post-detention conditions, which includea requirement that Mr Kanuta must take part in a rehabilitative and reintegrative needsassessment if and when directed to do so by a probation officer.6 The post-detentionconditions will remain in place for 12 months from 22 April 2019, the detention enddate.7[21] We imposed those post-detention conditions because the pre-sentence reportrecords that Mr Kanuta appears to be motivated to address his offending and isagreeable to attending an appropriate child sexual offender programme or attendingsessions with a Department of Corrections psychologist.Child Sex Offender Register[22] When Mr Kanuta was sentenced to imprisonment he was automatically placedon the Child Sex Offender Register.8 Now that the sentence of imprisonment has beenquashed, we must consider whether it is necessary to place Mr Kanuta's name on thatregister.[23] A Court may make an order placing a defendant's name on the Child SexOffender Register only if it is satisfied that the defendant poses a risk to the lives or5 Sentencing Act 2002, s 80A(3).6 Section 80O(h).7 Section 80N(1) and (3).8 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).sexual safety of one or more children, or children generally.9 This Court has recentlyprovided guidance on discretionary registration. In Dayaratne v Police, this Courtheld, amongst other things, that:10(a) The threshold test will be met if the defendant poses a "real", "genuine"or "actual" risk.(b) When the threshold test is met, the proper exercise of the discretion willdepend on a close examination of the matters set out in s 9(3) ofthe Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 and assessment of the "nature and degree" ofthe risk posed.(c) The Court's inquiry should be upon the risk to the lives and sexualsafety of children, not upon the culpability of the defendant.A registration order could be appropriate to guard against risk evenwhere a defendant's culpability is so low that no sentence ofimprisonment could be justified.[24] The risk of Mr Kanuta reoffending was assessed by the author ofthe pre-sentence report. That assessment concluded that Mr Kanuta has a lowlikelihood of reoffending. That assessment was based on statistical analysis ofMr Kanuta's age at first conviction, his current age and the number of convictions inhis criminal history. This assessment means that it is very difficult to conclude thatMr Kanuta meets the requirements for registration on the Child Sex Offender Register.[25] For these reasons, we direct that Mr Kanuta's name now be removed fromthe Child Sex Offender Register.Result[26] The appeal against conviction is dismissed.9 Child Protection (Child Sex Offender Government Agency Registration) Act, s 9(1) and (2).10 Dayaratne v Police [2019] NZCA 30 at [19]–[22].[27] The appeal against sentence is allowed.[28] The sentence of 10 months' imprisonment imposed in the District Court isquashed and substituted with a sentence of 14 days' home detention to commence8 April 2019.[29] Mr Kanuta must take part in a rehabilitative and reintegrated needs assessmentif and when directed to do so by a probation officer. This post-detention condition willremain in force for 12 months from 22 April 2019.[30] Bail is to continue on the existing conditions until 8 April 2019.[31] Mr Kanuta's name is to be removed from the Child Sex Offender Register.Solicitors:Woodward Chrisp, Gisborne for AppellantCrown Law Office, Wellington for Respondent