J (CA268/2016) v R [2016] NZCA 466

J (CA268/2016) V R [2016] NZCA 466 [28 September 2016]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA268/2016[2016] NZCA 466BETWEEN J (CA268/2016)AppellantAND THE QUEENRespondentHearing: 6 September 2016Court: Asher, Mallon and Whata JJCounsel: D M Goodlet for AppellantM H Cooke for RespondentJudgment: 28 September 2016 at 2.30 pmJUDGMENT OF THE COURTA The appeal against sentence is dismissed.B Order prohibiting publication of name, address, occupation or identifying particulars of appellant pursuant to s 200 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT[1] The appellant was found guilty following a trial before Judge Cameron and a jury in the Whanganui District Court of one charge of indecent assault,1 one charge of threatening to kill2 and one charge of male assaults female.3 He now seeks to have the sentence of 18 months' imprisonment imposed by Judge Cameron substituted with a sentence of home detention.4Background[2] The appellant is the victim's stepfather.5 When the victim was 13 years old there was an argument about her SIM card. The victim's mother and the appellant demanded she hand it over. When it was not delivered up, the appellant pinned the victim to the ground and searched her. He had his arm to her throat and his knee on her stomach. In searching her he unhooked her bra and put his hand inside the cup of her bra, moving his hand around and fondling her breasts.[3] In 2013, when the victim was 15, the appellant interrupted a fight she was having with her younger brother. The appellant punched her in the head and she fell and struck her head on the bench. He pulled her hair and struck her several more times, having pinned her in a corner. He later cornered her in the bathroom where he punched her with an upper cut type blow to her chin. She ran outside and the appellant spear tackled her to the ground. When she told him she was going to thepolice, he replied, "if you go to the cops I will kill you." As she walked back into thehouse he punched her to the face once more.[4] In sentencing, the Judge considered the appellant's pre-sentence report and commented:[5] I have read his pre-sentence report. He is 37 years old. He is assessed as being medium to low risk of any serious further sexual offending. However, he is assessed as being at the high risk of harming others. Significantly he continues to completely deny this offending and therefore there is a complete absence of remorse and any rehabilitative steps which might have assisted him had he accepted responsibility for what he did are not realistic in these circumstances. As stated he has denied any form1 Crimes Act 1961, s 134(3), which carries a maximum penalty of seven years' imprisonment.2 Section 306, which carries a maximum penalty of seven years' imprisonment.3 Section 194(b), which carries a maximum penalty of two years' imprisonment.4 R v [J] [2016] NZDC 9823 [sentencing notes].5 The facts are largely adopted from the sentencing notes.of culpability. However in the assessment of the report writer he is in needof both alcohol and drug rehabilitative programmes as well as anger management counselling. I have to hold him accountable for what he did, denounce his conduct and deter others from this type of offending.[5] The indecent assault was treated as the lead offence, attracting a starting pointof 12 months' imprisonment. The Judge then uplifted that sentence by six months to take into account the other offending, resulting in an end sentence of 18 months'imprisonment.6 No challenge is made to this aspect of the sentencing.[6] As to whether the sentence should have been commuted to one of home detention, the Judge said:[8] As to whether that should be commuted to home detention in this case the defendant has expressed no remorse at all and therefore there are no realistic prospects for successful rehabilitative programmes. He completely denies the offending despite having been found guilty by a jury. In my view it would be pointless to force him to undertake rehabilitative programmes given his state of mind and it has to be remembered too that his continual denials of this offending have resulted in this victim having to leave home and being alienated from her mother and other siblings because sadly her mother has chosen to support the defendant and accordingly the victim has had to make her own way in life. In my view only a sentence of imprisonment will adequately hold this defendant accountable for what he did, denounce his conduct and deter him from any future offending. I agree with the Crown that this offending is properly characterised as a very serious breach of trust by him involving both sexual and physical violence. Accordingly, in relation to all charges the defendant is convicted andsentenced to 18 months' imprisonment.The submission on appeal[7] Ms Goodlet for the appellant did not challenge the starting point of 18 months' imprisonment. However, he argued that home detention was the leastrestrictive outcome available and that the Judge did not undertake a satisfactory balancing exercise when determining whether to exercise the discretion to grant home detention. He submitted that the Judge failed to take into account positive indications of rehabilitation that were in the pre-sentence report. He effectively overlooked the prospects for rehabilitation. We consider first whether the Judge erred in this way.6 At [6]–[8].The Judge's consideration of rehabilitation[8] The Judge noted that the appellant was assessed as being at medium to low risk of any serious further sexual offending, but at high risk of harming others.7 He noted that significantly he continued to deny the offending and had no remorse. The Judge observed, in what was a theme in his sentencing notes, that any rehabilitative steps that might have otherwise assisted him would not be realistically of assistance, given this absence of remorse and denial of any form of culpability.[9] We note that the Judge did not refer specifically to the appellant's recognitionthat he had a violence problem. However it is not our reading of his sentencing notes that he failed to take this into account. We read his decision as saying that despite the availability of rehabilitative steps8 for the appellant, it was his assessment that the appellant's complete absence of remorse and denial of any culpability meantthat his participation in rehabilitation programmes was unlikely to produce a rehabilitation outcome.[10] The report recorded that the appellant denied any previous use of physical violence against another individual and vehemently denied the use of any violence against the victim, other than tackling her outside the house on the day of the secondincident. The report writer recorded the appellant's "blatant denial, inability tocomprehend the magnitude of his actions (specifically the impact upon his victim)and an absence of remorse and rehabilitative treatment to date" meant he wasassessed as posing a high risk of harm to others.[11] We note that the Judge did ultimately impose various conditions aimed atrehabilitation to apply upon the appellant's release from prison. We do not see thisas contradicting his decision not to grant home detention. While he did not see home detention as an adequate sentence in the absence of any expression of remorse or realistic prospect of successful rehabilitation programmes he at no point concluded that there should be no attempts at rehabilitation at all. It was perfectly sensible to impose such terms in the hope that after a period of imprisonment and the opportunity to reflect, they might have some effect.7 At [5].8 At [5].[12] We think, therefore, that the Judge's rejection of a meaningful prospect ofrehabilitation in the context of having to decide on imprisonment or home detention, cannot be seen as an error. The Judge was not bound to accept the recommendation of home detention that was in the pre-sentence report. He was fully entitled to make his own assessment of rehabilitation prospects, providing he properly took into account what was said in the pre-sentence report. We conclude that he did this. The decision he made as to the likelihood of effective rehabilitation was open to him.Thus we reject Ms Goodlet's submission that the Judge erred in his approach to theprospects of rehabilitation.Was the sentence of imprisonment rather than home detention manifestly excessive?[13] The Judge's assessment of culpability and the starting point of 18 months' imprisonment are not criticised. In our view the Judge's assessment of culpability iscorrect. In terms of the indecent assault, the fondling of the breasts can be seen more as an assertion of power than an expression of sexuality. However it did involve, in addition to the fondling of the breasts, the victim being pinned to the ground by the appellant and subjected to a degrading attack.[14] The assaults had an ugly flavour. The victim was the appellant's 15-year-old stepdaughter. The first punch was severe, making her fall and strike her head. There was then pulling of hair and further striking. The victim was then cornered in the bathroom and punched in another upper cut blow to her chin. When she ran outside she was tackled in what was described as a spear tackle.[15] The threat to the victim that if she went to the police he would kill her was also a significant aggravating factor when culpability is looked at in the round. The appellant was in a position of power over the 15-year-old victim and had already shown his willingness to exercise violence.[16] In addition to the absence of remorse, the Judge also noted the impact thedenial of the offending had on the complainant, combined with the mother's supportof the appellant's denials. She had been forced to leave home.[17] It was also observed in R v Neroj9 that although an appellant may say that rehabilitative programmes will be attended, where the appellant has taken no steps towards rehabilitation and continues to assert his innocence, programmes can be of doubtful value. In Paora v R, it was observed by this Court:10This Court has recognised that a continued denial of offending is a factor pointing against a sentence of home detention. In such cases, the unwillingness or inability of the appellant to accept that the offending has occurred necessarily eliminates or hinders any prospects of rehabilitation.[18] We nevertheless accept that home detention was an available option at sentencing. There is no presumption against home detention for sexual offending, or offending where the defendant continues to assert his innocence. The indecent assault offending in this case was not as serious as the offending in Neroj or Paoraand the appellant's risk of reoffending was also assessed as low. His previouslyunblemished record for offending of this kind and his acknowledgment of his violent tendencies were also mitigating factors. The pre-sentence report recommended home detention. However where the totality of the offending is serious and warrants a significant term of imprisonment, as this offending does, the blatant denial of culpability and absence of remorse can be strong factors pointing against home detention, because rehabilitation is less likely to be achieved.[19] We conclude that it cannot be said that the Judge's imposition of a sentenceof imprisonment, and his refusal to impose a sentence of home detention, was a manifestly excessive sentencing response. It could be fairly said that the case was on the borderline. The Judge, after a proper consideration of the relevant factors, made a decision, and Ms Goodlet has not shown that it was wrong.Result[20] The appeal is dismissed.9 R v Neroj [2008] NZCA 184 at [15(c)].10 Paora v R [2011] NZCA 472 at [18] (footnote omitted).[21] It is appropriate to make an order prohibiting publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 200 of the Criminal Procedure Act 2011 to avoid identifying the complainant.Solicitors:Crown Law Office, Wellington for Respondent