MCKINNON v R [2021] NZCA 427

MCKINNON v R [2021] NZCA 427 [2 September 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA151/2021 [2021] NZCA 427BETWEEN JAMES SCOTT MCKINNONAppellantAND THE QUEENRespondentHearing: 27 July 2021Court: Goddard, Thomas and Wylie JJCounsel: H B Leabourn for Appellant E J Hoskin for RespondentJudgment: 2 September 2021 at 10.00 amJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] Following a jury trial presided over by Judge Aitken in the District Court at Auckland, the appellant, James McKinnon, was found guilty of doing an indecent act upon his six-year-old neighbour.11 Crimes Act 1961, s 132(3). Maximum penalty 10 years' imprisonment.[2] Mr McKinnon was sentenced by the Judge to 17 months' imprisonment.2The Judge considered but declined to commute that sentence to home detention. Because Mr McKinnon was sentenced to a sentence of imprisonment, his name was entered on the Child Sex Offender Register pursuant to the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.3[3] Mr McKinnon appeals his conviction. He argues that the complainant's evidential video interview should not have been admitted into evidence and that its admission by the Judge has resulted in a miscarriage of justice. He also appeals his sentence, arguing that the Judge erred by adopting a starting point that was too high and by declining to commute the sentence to one of home detention.Factual background[4] The complainant was six years old at the time of the offending. Mr McKinnon was an adult male then aged in his mid-40s.[5] The complainant and her family lived in a residential complex in Auckland. So did Mr McKinnon. His flat adjoined the flat where the complainant and her parents lived.[6] One afternoon in September 2019, while her parents napped, the complainant ventured from her parents' flat into Mr McKinnon's flat. It was the complainant's evidence that Mr McKinnon took her by the hand and led her into his bedroom. She said that he then picked her up and carried her in a cradle position to his bed, before lying her down on the bed. She said that he then touched her on her chest, stomach and back, and that he put his hand down her pants under her underwear and touched her genitalia and bottom.2 R v McKinnon [2021] NZDC 3959 [Sentencing decision].3 At [35]–[36].[7] The next day the complainant told her mother what had occurred. The mother immediately reported the incident to the police.[8] Mr McKinnon was spoken to by the police on the following day. He denied the alleged offending.[9] The complainant gave an evidential video interview to the police approximately a month later in October 2019. She gave details of the alleged offending. The interview was conducted by a trained police interviewer. The complainant's parents are Vietnamese. The complainant speaks English and the interview was largely conducted in English. A Vietnamese interpreter was present and she participated in the interview at various points.[10] Mr McKinnon was charged with a single charge of doing an indecent act on a child under the age of 12 years on 30 October 2019 and his trial was held in December 2020.[11] During the trial, Mr McKinnon sought a ruling as to the admissibility of the video interview. He argued that it was inadmissible on two grounds — first, that the interviewer did not sufficiently establish with the complainant whether or not she understood the concept of truth, lies and promises, thereby breaching the relevant regulations, and secondly, that as a result of interactions between the interpreter and the complainant, leading or suggestive questions were put to the complainant, with the result that her answers were unreliable and that the evidence she gave was tainted.[12] The Judge ruled that the evidential video interview was admissible on 14 December 2020. She explained why in a reasons ruling on 5 March 2021. 4The appeal against convictionThe appeal[13] The appeal against conviction is brought pursuant to s 229 of the Criminal Procedure Act 2011. To succeed, Mr McKinnon has to show either that the4 R v McKinnon [2021] NZDC 8134 [Admissibility ruling].jury's verdict was unreasonable or that a miscarriage of justice has occurred.5A miscarriage of justice is means any error, irregularity or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or that has resulted in an unfair trial or a trial that was a nullity.6The admissibility ruling[14] The Judge recorded that she had watched the evidential interview. She referred to reg 8(d) of the Evidence Regulations 2007 (the Regulations) which requires that a video record of an interview must show the interviewer advising the interviewee of the importance of telling the truth and the interviewee making a promise to do so.7The Judge noted that the complainant was six years old at the time of the interview and that she suffers from attention deficit hyperactivity disorder (ADHD). She set out the steps taken by the interviewer to try and ensure that the complainant told the truth. She summarised a question and answer exchange between the complainant and the interviewer relevant to this issue and observed that the complainant's promise to tell the truth was spontaneous. The Judge was "well satisfied" that reg 8 had been complied with.8[15] The Judge then turned to the role of the interpreter. She had a translation of each of the 10 occasions on which the interpreter spoke to the complainant in Vietnamese.9 She considered that the interactions had to be seen in the context of the entire interview. She accepted that there was nothing to suggest that the interpreter had acted in bad faith; rather the interventions were an effort by the interpreter to get answers from the complainant or to clarify answers she had given. The Judge acknowledged that, on occasion, the interpreter provided alternatives for the complainant to choose from. She then went through each of the various interactions and she was satisfied that the complainant's answers were reliable and an accurate account of what the complainant said had happened to her. The Judge found that there was nothing to suggest that the complainant had mimicked the interpreter's responses5 Criminal Procedure Act 2011, s 232(2).6 Section 232(4); and see Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].7 Evidence Regulations 2007, reg 8(d).8 Admissibility ruling, above n 4, at [16].9 It was accepted before the Judge and before us that the translation was accurate.or, when options were given to her, chosen one of the options without thought. On the contrary, the Judge concluded that the complainant was well capable of correcting the interpreter and responding with her own independent answers.10[16] The Judge held that there were no grounds on which to reject the evidential video interview and that accordingly it was admissible at trial.11Submissions[17] Mr Leabourn, appearing for Mr McKinnon, referred to reg 8(d) of the Regulations. He pointed to a question asked by the interviewer in the course of endeavouring to comply with the regulation — "So I know your name is but if I called you Mary, what could you say?". The complainant replied: "I do like the name Mary". The interviewer then said: "Is Mary your name?", and the complainant replied: "Just call me that please". Mr Leabourn submitted that this interaction gives grounds for concern as to whether or not the complainant knew or understood the concept and importance of telling the truth or what a promise is. He pointed to the complainant's age and submitted that the concepts such as telling the truth and the difference between the truth, lies and promises, are complex for a child who is six years old. He argued that the video shows that the complainant was equivocal as to whether she understood these concepts and submitted that at no stage did the complainant show a clear understanding of what a promise is, what the truth is and conversely, what a lie is.[18] In relation to the role of the interpreter, he noted that the interpreter became involved, sometimes at the request of the interviewer, and sometimes of her own volition. He submitted that the traditional role of an interpreter is to listen to a question in one language, interpret that question into the other language as best as can be done, and then interpret the answer back into the first language. He argued that the interpreter went beyond this traditional role and involved herself in the interviewing process. He further argued that the interpreter on occasion put multi-choice options to the complainant and, on one occasion, undertook a demonstration using a doll.10 Admissibility ruling, above n 4, at [37].11 At [39].It was argued that the interpreter went well beyond her role and that the answers given in the course of the interview were tainted as a result.[19] Ms Hoskin, for the Crown, argued that the Judge made no error and that it was apparent from the transcript that the interviewer clearly explained the ground rules for the interview to the complainant, seeking and obtaining an assurance that she understood at each stage. Ms Hoskin took us through each of the interpreter's interactions during the interview and argued that, when each is carefully examined, it is clear that the complainant answered freely and uninfluenced by the interpreter's comments. It was submitted that the interpreter's questions were not suggestive, but rather were intended to elicit responses from the complainant and to clarify her answers. It was argued that the answers given were not tainted.AnalysisRegulation 8(d)[20] The Regulations were made pursuant to ss 200 and 201 of the Evidence Act 2006. Part 1 deals with video recordings of evidence that is intended to be offered by the prosecution in a criminal proceeding. Relevantly, reg 8 provides as follows:A video record of an interview must show the following:(d) in the case of a witness who is under the age of 12 years,—(i) the interviewer informing the witness of the importance of telling the truth and not telling lies; and(ii) subject to any contrary direction by a Judge, the witness making a promise to tell the truth (in any form, provided the overall effect is a promise to tell the truth); [21] We have viewed the evidential video interview and read the transcript and we are satisfied that the video shows the interviewer informing the complainant of the importance of telling the truth and not telling lies, and the complainant promising to tell the truth.[22] The interviewer, after introducing herself and the interpreter and setting the scene, explained to the complainant that if there was anything she did not understand, she should tell the interviewer. The complainant replied "okay". The interviewer repeated the instruction in slightly different terms and the complainant again confirmed that she understood. The interviewer then explained to the complainant that if she asked her a question and the complainant could not remember the answer, the complainant should tell the interviewer that she could not remember. Again, the complainant responded "okay". The interviewer next told the complainant that she should not make any guesses, even in relation to little things because they might be important. The interviewer explained that sometimes she might repeat things that the complainant had said back to her, and that if the interviewer got anything wrong, the complainant needed to tell the interviewer and correct it. Again, the complainant confirmed her understanding. The interviewer then said, "let's practice that". She asked the complainant what she would do if the interviewer called her Mary. The complainant responded that she liked the name Mary. The interviewer then said, "Is Mary your name?" and the complainant responded, "Just call me that please". The interviewer then said that they would try something else. She asked the complainant to remind her how old she was. The complainant responded that she was six. The interviewer then asked the complainant, if she said to her that she was four years old, what could the complainant tell the interviewer. The complainant responded, "That I'm six years old". The interviewer then reminded the complainant that if the interviewer got things wrong, the complainant would correct them.[23] The interviewer then told the complainant that the most important thing about being at the interview was that the complainant should tell the truth and that that meant that she should not tell any lies. She asked the complainant whether she would make a promise that everything that she would talk about in the interview room would be the truth. The complainant responded "Yeah".[24] As the Judge noted, while these exchanges were taking place, the complainant was facing the interviewer, who was sitting. The complainant appeared to be concentrating although she was fidgety and, at times, distracted. The Judge considered the complainant's promise to tell the truth was spontaneous notwithstanding her"distractibility" and the promise was given in response to a direct question put to her.12We agree with this observation; we would add that the complainant paused, albeit briefly, before confirming that she would tell the truth. In our view, it was a promise made with both conviction and understanding.[25] The Judge was well satisfied that the regulation had been complied with. So are we.[26] We also agree with the Judge that the fact that the complainant was telling the truth was reinforced when, on occasion during the interview, she corrected the interviewer and reinforced her correction by saying that her answer was "really true". The Judge regarded this as a demonstration that the complainant well understood the importance of telling the truth.[27] It is also noteworthy that:(a) At trial, the Judge spoke to the complainant before she gave her evidence-in-chief and was cross-examined. It is clear from the transcript that the complainant had a chart in front of her to help her when she was thinking about the questions that would be asked. The following exchange took place between the Judge and the complainant:Q. So when you're thinking about the questions if you need to have a look at the chart. It's got two coloured boxes there, and one of them says "no guessing", you see that?A. Yes.Q. And the green one says "tell the truth".A. Yes.12 Admissibility ruling, above n 4, at [16].Q. So it's very, very important today that you tell the truth and that you do not tell any lies to the court.A. Okay.Q. Do you understand that?A. Yes.Q. And I'm going to ask you will you make me a promise to tell the truth today?A. Yes.(b) The complainant went on to confirm to the prosecutor that she remembered having watching her video interview on the previous day and that what she had said in the video about Mr McKinnon touching her in different places was "all true".(c) The interviewer was called to give evidence at the trial. It was not put to her that she had not adequately ensured that reg 8(d) was complied with.[28] Mr McKinnon's first challenge in relation to the evidential interview is dismissed.The interpreter's role[29] As noted, there were 10 occasions during the course of the interview when the Vietnamese interpreter, Ms Pang, engaged with the complainant. As we have noted, Mr McKinnon argues that the interpreter's engagement strayed beyond interpretation and that she influenced the complainant's answers.[30] The interpreter was introduced to the complainant at the beginning of the interview. The interpreter promised to accurately and completely translate the complainant's and interviewer's words as required by reg 8(e).[31] The first occasion on which the interpreter became involved in the interview occurred when the complainant asserted that Mr McKinnon had carried her to his bed. By this point, the complainant had already told the interviewer what had happened.The interviewer and the interpreter had left the interview room and the interviewer had liaised with a colleague who was following the interview remotely. The interviewer and the interpreter had returned and the interviewer was seeking to get the complainant to expand on her assertions in greater detail. The complainant had told the interviewer that Mr McKinnon had "bought me in his bedroom" and then he "put me in his bedroom". The following exchange took place:[Interviewer] Ok Ok. So you said something about being carried to the bed, what do you mean?[Complainant] What do you mean what? I don't understand.[Interviewer] Well what do you mean carried?[Complainant] [drawing] I don't know what are you talking about.[Interviewer] Ok I'm wondering if [Ms Pang] could help us with that question?[Complainant] Ok.[Interviewer] So what do you mean carried you to your, to the bed?[Interpreter] [in Vietnamese]You say James carried you to the bed of James by backpacking you, cradling you or holding your hand or what?[Complainant] Cradle me[Interpreter] Explain to me? Why, why are you on that bed? What does James do?[Complainant] Mmm James cradles me.[Interpreter] Cradles?[Complainant] Yes.[Interpreter] For example, I use the baby doll and you show me the way James cradles you.[Complainant] [Drawing] [no reply][Interpreter] [Speaks again][Complainant] [Replies to interpreter][Interpreter] [Speaking to the interviewer13 ] Ok she say uh – Carry um you know like in quite different name. I ask if you can take the [Barbie] like her and then the way James carry her to the bed.[Interviewer] Ok.[Interpreter] She demonstrate to you.[Interviewer] Ok, so I'll give you Barbie and you can show me with Barbie what you mean by James carrying you to the bed.[Complainant] Like this [cradles baby in her arms ].[32] While the interpreter's "translation" went well beyond the questions posed by the interviewer, the questions put by the interpreter were not in our view unduly suggestive; rather they were seeking first a response from the complainant and to then clarify her answers. That the interpreter did not taint the complainant's answers is clear from the fact that the complainant demonstrated what she meant by cradling by using a doll handed to her by the interviewer.[33] The second engagement occurred when the interviewer asked the complainant what happened next once she and Mr McKinnon were in the bedroom. The complainant replied that Mr McKinnon touched her tummy and "over here", pointing to her bottom.14 The following discussion occurred:[Interviewer] And what do you call that part?[Complaint] I don't know I forgot again.[Interviewer] Is that something that you could, that [Ms Pang] could help us with?[Interpreter] [in Vietnamese].James ah, at your back, but which direction? You show.[Complainant] Here.13 The transcript records that the interpreter was speaking to the complainant. It is clear from watching the video that this is in error. The interpreter was speaking to the interviewer at this point in English.14 The transcript records that she was pointing to her lower back. In our view, she was pointing more to her bottom.[Interpreter] James Your anus? Where you go for a poo? Where? Your bottom?[Complainant] Yes.[Interviewer] What do you call that part?[Complainant] I've forgotten.[34] The complainant could not remember the word for her bottom but she confirmed that it was where she went "for a poo". When she said "here" she pointed to her bottom. She had already done this when asked the same question in English by the interviewer. Later in the interview, the complainant was asked to mark on a body diagram where Mr McKinnon had touched her. She clearly marked her bottom (as well as other places) with an X, followed by a tick which the complainant said meant that this was "really true".[35] Again, it does not seem to us that the interviewer's questions have misled the complainant. The complainant clearly indicated her bottom on two separate occasions and separately confirmed this by marking her bottom on a body diagram. During the balance of the interview, the interviewer referred to the area identified by the complainant as her bottom without further difficulty.[36] This was followed up a little later with the following exchange:[Interviewer] And so him touching your bottom, what happened next?[Complainant] Mm he touched over here [turns to [Ms Pang] and gestures with hand pointing to body but pen container on table obstructs view]. 15[Interviewer] And what do you call, what do you call that part?[Interpreter] [in Vietnamese]James touched your front? Touch which? Touch which part?15 Although the complainant's pointing is obscured on the video by a pen container, it is clear that the complainant is indicating an area on her front at the top of and between her legs.[Complainant] This. 16[Interpreter] This, in Vietnamese language is what?[Complainant] I am not sure[Interpreter] Okay, James touched you at where? You stand up and show James hand touched you at where? Touched you at where. Just show and no need to say the name.[Complainant] [Shrugs] (mumbles?)[Interpreter] She don't even know how to say in, in Vietnamese. 17[Interviewer] Mmhm.[37] Again, it does not seem to us that the interpreter's questions have misled the complainant. The complainant pointed to her genital area when asked to do so by the interviewer and again when asked to do so by the interpreter. The interpreter's questions in regard to this issue were not leading or suggestive. The interpreter was trying to get clarification from the complainant.[38] A little later in the interview, the interviewer was trying to draw out from the complainant where Mr McKinnon had touched her — over her clothes or under her clothes. The complainant said that the touching was "in my leggings and in my dress". The interviewer asked the complainant to explain what she meant but she could not do so. The interviewer asked the interpreter to help. The interpreter put the following question to the complainant in Vietnamese:James touched you ah, about this part of you on your dress or under dress? Or in your pants? Or what? You describe to me.The complainant responded, also in Vietnamese:In my pants, in my undies, in my dress.[39] One of the words used by the complainant in this exchange — "undies" — did not come from the options given to her by the interpreter. Other words used by the complainant — "in my dress" — were a repetition of an answer already given freely16 Again, the view is obscured but it is clear that the complainant is indicating her genital area.17 The interpreter was addressing the interviewer in English at this point.by her to the interviewer with no prompting from the interpreter. Again, we do not consider that the interpreter's involvement has tainted the complainant's evidence.[40] Towards the end of the interview, the interviewer gave the complainant a body diagram. She took the complainant through the diagram, and the complainant put crosses on those parts of the diagram where she said the touching had occurred. She also put ticks beside the crosses. When she was asked by the interviewer what the ticks meant, she said that that they were "really true". Copies of the diagrams have been made available to us. They indicate touching on the shoulders, the stomach, the hips, the genital area, the back and the bottom. There is a drawing of a hand touching the bottom. There is a drawing of water coming from the genital area. The diagram was discussed with the complainant by the interviewer and the complainant confirmed that Mr McKinnon had touched her on the places she had marked on the diagram.[41] A little later, the complainant was asked how she felt when Mr McKinnon's hand was in her undies. She responded: "very very annoying". She was asked a little more about this. The interpreter put the following to her in Vietnamese:When James touched you under your pants why do you feel annoyed? Are you painful? Or having what? Why do you feel annoyed?The complainant responded in Vietnamese that the touching "made it itchy".[42] Clearly the complainant was giving her own independent response and not simply mimicking the interpreter or confining her response to the "painful" option offered by the interpreter. It cannot be asserted that the response was tainted by the question asked.[43] At another point in the interview, the interviewer was trying to explore the complainant's evidence as to what part of his hand Mr McKinnon had used when he touched her. The complainant replied that she could not understand. The interpreter said in Vietnamese:James touched you at this place by hand but which part of the hand? Finger? Hand? Arm? Or what? Which part of the hand?The complainant responded, also in Vietnamese:By the whole hand.She repeated this when the interpreter said "huh?".The interpreter appears to have assumed that the complainant meant fingers and the interviewer made the same mistake. The interviewer said to the complainant: "And where exactly was his fingers touching?". The complainant corrected the interviewer with the words, "his whole hand". She proceeded to demonstrate, using her whole hand, and showing how Mr McKinnon had moved his hand on her body.[44] There were other exchanges between the interpreter and the complainant. We do not deal with all of them because they were all variations on the same theme. We have set out the most obvious examples and those primarily relied on by Mr Leabourn.[45] We agree that the interpreter's translations were not a literal translation of the questions posed, and went beyond those questions. This is unfortunate. But it is clear that the questions asked by the interpreter did not taint the complainant's answers. The complainant was not suggestible and she was not misled by the interpreter's interventions. On the contrary, she not infrequently corrected both the interpreter and the interviewer. The complainant's responses to the interpreter show that she was uninfluenced by the questions asked by the interpreter. The complainant, notwithstanding her tender years, was more than capable of responding with her own independent answers.[46] We do not consider that the complainant's interview was tainted by the interpreter's interaction with the complainant and in our judgment, the Judge was correct to admit the same.[47] We record that the interviewer was called as a witness at trial and cross-examined on her training and on the very reasons why specialist interviewers should avoid certain questions. The interviewer was also asked about an interpreter's role. A complete transcript of all the interpreter's interactions with the complainant(in English) was before the jury. The defence highlighted the interactions in closing and invited the jury to be careful about the evidence elicited through the interpreter.[48] In her summing-up, the Judge, in summarising the defence case in relation to the video interview, said as follows: the defence say her evidence is tainted. It is unreliable, members of the jury, not safe to rely on in this case, because of the questions asked by the interpreter, and because of the persistent, the repetitive manner in which the interview continued beyond [the complainant] saying that that was all that happened. The defence say effectively to you, members of the jury, that when [the complainant] finally claimed that the defendant had touched her in the vagina area and the bottom, this was not a reliable statement of truth. The defence say, rather, it was the result of a lengthy interview with suggestive questions and a young girl wanting to please the interviewer. Members of the jury, how you assess [the complainant's] evidential video interview, how you assess [the complainant's] evidence as a whole, is entirely a matter for you. But her evidence is the crux, it is the basis of the Crown case, and you will need to assess it carefully. [49] The issue was fully and appropriately ventilated before the jury. The interpreter's involvement was treated as an issue going to weight rather than admissibility, and in our view, correctly so.[50] We therefore dismiss the conviction appeal.The appeal against sentenceThe appeal[51] The appeal against sentence is brought pursuant to s 244 of the Criminal Procedure Act. This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. In any other case, the Court must dismiss the appeal.1818 Criminal Procedure Act, s 250.The sentencing decision[52] The Judge started her sentencing notes by referring to the factual background. She recorded that the Crown had submitted that a starting point sentence of two years' imprisonment was appropriate and that the defence had argued that the starting point should be one year.19 She referred to various authorities to which counsel had cited her and noted that there is no tariff case for such offending, and that there was no identical comparable case from which she could draw. 20 She considered that there were aggravating features to Mr McKinnon's offending; specifically that the complainant was young and vulnerable and there was a considerable age difference. As against these matters, the offending was of short duration. It was, however, skin on skin touching and intrusive. The Judge was satisfied that there was very minimal premeditation and that there was nothing to suggest that Mr McKinnon lured the complainant to his flat with the intention of indecently assaulting her. Rather, the Judge categorised Mr McKinnon as having taken advantage of the opportunity that the complainant presented by coming into his unit. There was no victim impact statement but the Judge took judicial notice of the fact that it was highly likely that, when the complainant became aware of the nature of Mr McKinnon's offending, there would be some adverse impact on her. The Judge did not consider that there was any breach of trust involved in the offending.21[53] The Judge expressed the view that the starting point should be no more than 20 months' imprisonment. She noted that a similar starting point had been adopted in other cases where the offending was arguably more serious. Given this, she adopted a starting point of 18 months' imprisonment.22[54] The Judge then turned to general factors. She noted that there was one aggravating factor — namely that Mr McKinnon has 15 convictions for the possession of objectionable publications found in his possession in 2013. She uplifted the sentence by two months to take this prior offending into account. She then turned to mitigating factors. She noted that Mr McKinnon had denied the offending throughout,19 Sentencing decision, above n 2, at [6].20 At [7].21 At [8]–[14].22 At [24]–[25].and that back in 2013, he had claimed that he had no sexual attraction to children. The Judge observed that Mr McKinnon was either not truthful then or that his behaviour had changed. She noted that Mr McKinnon had completed the SAFE programme but observed that it had not been effective in eliminating the risk he poses. The Judge considered that there had been an escalation in Mr McKinnon's offending. She referred to a letter which Mr McKinnon had submitted to the Court, in which he said that he regretted very much what had happened and apologised for the fact that the complainant had to participate in the proceedings. The Judge did not consider that there was any expression of remorse in this and she declined to give it any weight. The Judge noted that Mr McKinnon had been on bail, on restrictive conditions with a 24-hour curfew for eight and a half months. She reduced her starting point sentence by three months to take into account this factor. This left her with an end sentence of 17 months' imprisonment.23[55] The Judge then considered home detention. She did not consider that Mr McKinnon's offending was one-off aberrant behaviour and commented that his prior convictions changed "the landscape".24 She considered that imprisonment was the appropriate sentencing outcome for the offending, and that such sentence accorded with the sentencing principles of holding Mr McKinnon accountable for his offending, and denouncing and deterring his conduct. It was, in the Judge's view, necessary to protect children. The Judge did not consider that home detention was the least restrictive outcome available. She therefore sentenced Mr McKinnon to 17 months' imprisonment.25Submissions[56] Mr Leabourn argued the starting point adopted by the Judge was too high, that the sentence was manifestly excessive and that home detention should have been the appropriate outcome. Ms Hoskin argued that the sentence of imprisonment imposed was comfortably within the available range and that there was no basis to alter it on appeal.23 At [26]–[31].24 At [32].25 At [32]–[36].Analysis[57] There is no tariff case for offending of this kind.[58] There were aggravating features to Mr McKinnon's offending. We agree with the Judge that the complainant was vulnerable as a result of her age. The touching was skin on skin. The age difference between the complainant and Mr McKinnon was clearly an aggravating feature. We accept, as did the Judge, that the offending was opportunistic and that it was of short duration. We also agree with the Judge that there was no breach of trust involved in this case.[59] The Judge referred to a number of authorities before reaching her starting point of 18 months' imprisonment. Her starting point is consistent with decisions of this Court, most notably, Masei v R, where this Court said of a single incident of indecent assault of a 15-year-old complainant:26[8] We agree, however, that the general starting point for indecent assault of a person aged 15 years with the characteristics of Mr Masei's offending is around 18 months' imprisonment. Mr Masei's offending was not fleeting. The touching of the genitals, albeit over the complainant's underwear, was prolonged and active.[9] In addition, Judge Spear was not wrong in principle to emphasise the particular breach of trust and the particular vulnerability of this complainant. His final starting point of 21 months' imprisonment can be seen as stern, but not outside the range available to the Judge.[60] It is also broadly consistent with sentences imposed in the High Court. 27[61] We are not persuaded that the Judge erred in adopting a starting point of 18 months' imprisonment. It is well within the available range for such offending. The Judge adjusted her starting point by two months to take into account26 Masei v R [2016] NZCA 481. See also R v M (CA387/2009) [2009] NZCA 456 at [13]–[17] — single incident, 19-year-old defendant touching four-year-old cousin's genitalia and making her touch his penis — two-year starting point; and Wild v R [2019] NZCA 189 at [15]–[18] — two incidents, complainant aged 9 to 12, touching on thighs, breast and stomach, tried to put his hand in her shorts and take off her shirt — 18-month starting point.27 See for example R v Rutherford [2019] NZHC 1628 at [13]–[14] — single incident, 10-year-old complainant, defendant put arm around her waist and grabbed her bottom — 12 month stating point; R v Shirley [2012] NZHC 2602 at [59] — two incidents, skin-to-skin contact to back, stomach and bottom — end sentence of 18 months; and R v Kenny [2013] NZHC 2787 at [14] — five-year-old complainant, single incident, not skin-to-skin contact — starting point one year and eight months' imprisonment.Mr McKinnon's previous convictions for possessing objectionable publications. Mr McKinnon was then in possession of 349 objectionable publications, all of which depicted the sexual abuse of children. This prior offending was plainly relevant. The modest uplift imposed was orthodox and not excessive.[62] The Judge reduced her starting point to take into account the fact that Mr McKinnon had spent eight and a half months on bail on a 24-hour curfew. As this Court has noted, there is no mathematical calculation which determines what reduction is appropriate where a defendant has been on restrictive bail. Rather, what is required is an evaluative exercise, taking into account all relevant circumstances.28The Judge took the relevant circumstances into account. She considered the extent of the restrictions imposed upon Mr McKinnon and the frequency and timing of police visits to check that he was complying with them. She characterised those visits as placing "very significant restrictions on [Mr McKinnon's] liberty for a relatively lengthy period".29 The discount could perhaps have been more generous but we are not persuaded that the Judge erred. A three month discount was within the range available to her.[63] Having reached a nominal end starting point of 17 months, it fell to the Judge to consider home detention. She undertook that exercise. She concluded that the key sentencing purposes were to hold Mr McKinnon accountable, to denounce and deter his offending and to protect children.[64] We acknowledge the hierarchy of sentences set out in the Sentencing Act 2002 and we accept that, in appropriate circumstances, a sentence of home detention can be seen as sufficiently denouncing and deterring even relatively serious offending. 30[65] Mr McKinnon was not a first offender and his offending against the complainant marked a distinct escalation from his previous offending. That previous offending had resulted in a sentence of eight months' home detention. The escalation had occurred notwithstanding that Mr McKinnon had participated in and completed28 Tamou v R [2008] NZCA 88 at [19]–[20].29 Sentencing decision, above n 2, at [31].30 Sentencing Act 2002, s 10A(2).the SAFE programme. He denied the offending and his letter of apology to the Court did not express remorse.[66] We cannot see that the Judge erred in holding that a sentence of imprisonment was warranted.Result[67] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent