NGATUAINE METUA v R [2018] NZHC 246

NGATUAINE METUA v R [2018] NZHC 246 [26 February 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000474[2018] NZHC 246BETWEEN NGATUAINE METUAAppellantAND THE QUEENRespondentHearing: 5 February 2018Appearances: J M Scott for the AppellantJ E L Carruthers for the RespondentJudgment: 26 February 2018JUDGMENT OF HINTON JThis judgment was delivered by me on 26 February 2018 at 4.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:MOJ Public Defence Service, AucklandCrown Law, Wellington[1] Ngatuine Metua pleaded guilty to one charge of doing an indecent act on achild.1 He was sentenced to a term of eight months' imprisonment by Judge Thomasin the Auckland District Court on 19 December 2017.2[2] Mr Metua now appeals his sentence.Factual background[3] The offending occurred after Mr Metua, then 65 years old, had spent theafternoon drinking with others in a friend's garage. In the early evening, Mr Metuawent into the hallway of the house. He saw the 10-year-old complainant, whom heknew, in the lounge. He called her over to him, hugged her tightly, and told her towait in the hallway while he used the bathroom.[4] Upon his return, Mr Metua put his hands between the complainant's legs andtouched her genitals over her clothing. She asked him to stop; he did not. He toldher not to tell anyone or he would go to jail.District Court judgment[5] Judge Thomas in the District Court sentenced Mr Metua following an earliersentence indication.3 He took a starting point of 14 months' imprisonment.[6] He noted that the pre-sentence report was not "particularly favourable",highlighting that it assessed Mr Metua's risk of re-offending as high. However, henoted the "much more favourable" psychological report, and that it assessedMr Metua's risk of re-offending as much lower. He accepted prison would be harderon Mr Metua than on the ordinary prisoner due to his health, age and the fact thatEnglish is his second language. He allowed discounts for these factors, as well asfor Mr Metua's early guilty plea.1 Crimes Act 1961, s 132(3).2 R v Metua [2017] NZDC 29572.3 R v Metua DC Auckland CRI-2017-004-003725, 20 July 2017.[7] The Judge had noted in his earlier sentence indication that home detentionwas "less likely than prison because of the seriousness of this type of offending" butindicated that he would consider the point fully after the pre-sentence report andfurther submissions. 4 At sentencing he concluded that while the reports providedfurther background, they did not alter his earlier view that prison was the moreappropriate response and the least restrictive outcome available.5[8] The Judge imposed a final sentence of eight months' imprisonment.Mr Metua automatically became a registrable offender under the Child Protection(Child Sex Offender Government Agency Registration) Act 2016 as a result ofreceiving a sentence of imprisonment for a class two qualifying offence.6 He is thussubject to the reporting obligations under that Act for 15 years from release fromcustody.7Grounds of appeal[9] Ms Scott for Mr Metua submits that the Judge should have exercised hisdiscretion to impose a sentence of home detention. The particular grounds of appealare that the Judge:(a) erred in stating that the pre-sentence report assessed Mr Metua's riskof re-offending as high (when it in fact said the risk was low);(b) gave insufficient weight to the opinion of the expert psychologist,including her assessment of Mr Metua's risk of re-offending as lowand his rehabilitative needs;(c) adopted an erroneous view of the effect of the offending on the victim;4 At [6].5 At [4].6 Child Protection (Chid Sex Offender Government Agency Registration) Act 2016, s 7(1)(a) andsch 2(2)(c).7 Sections 34(a) and 35(1)(b).(d) failed to consider mandatory registration on the Child Sex OffendersRegister for fifteen years as an additional punitive element onMr Metua; and(e) was plainly wrong in imposing a sentence of imprisonment.Approach on appeal[10] An appeal against sentence is an appeal against a discretion. It must beallowed only if the court is satisfied there has been a material error in the sentenceimposed and that a different sentence should be imposed.8 An appellate court willnot intervene unless the judge acted on some wrong principle, considered anirrelevant matter or overlooked a relevant one, or was plainly wrong.9 If a sentenceis significantly more severe than it ought to have been given the offending and theculpability of the offender, then an appeal will be allowed on grounds that thesentence is manifestly excessive.10 The same approach applies to exercise of thediscretion not to impose home detention.11AnalysisHome detention[11] Sexual offending against children is undoubtedly serious in all instances.Consequently, imprisonment is generally the appropriate sentence for suchoffending.12 However, this is not to say that home detention is not an availableoption. The cases cited by the parties demonstrate that sentences less thanimprisonment are imposed for child sex offending from time to time.13 It iswell-established that a sentence of home detention is a significant sentence in its own8 Criminal Procedure Act 2011, s 250.9 Kumar v R [2015] NZCA 460 at [79].10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].11 Palmer v R [2016] NZCA 541 at [18].12 Kennedy v R [2011] NZCA 569 at [8]; R v S (CA465/05) CA465/05, 11 April 2006 at [12];ZZ (CA369/2011) v R [2011] NZCA 662 at [36].13 See, for example, Fowler v R [2017] NZHC 1892; Bird v R [2017] NZHC 1296; Goose v Police[2017] NZHC 2453.right, and also serves the purposes of denunciation and deterrence much asimprisonment does.14 As the Court of Appeal held in Kennedy v R:15It is not necessary to adopt an "only in exceptional circumstances" approachto home detention in relation to sexual offending against children. Allsentences that are potentially in the range should be considered on their merits,although it will be recognised that the likely sentencing outcome for sexualoffending against children is imprisonment.[12] Accordingly, as with any offence, where a proposed term of imprisonment isunder two years the sentencing court is obliged to consider a term of homedetention.16 Where appropriate, after considering the purposes of sentencing, homedetention is to be imposed. The Court cannot impose a sentence of imprisonmentunless satisfied that relevant sentencing purposes cannot be achieved by anothersentence.17 The Court of Appeal in Fairbrother v R stressed that in choosing betweenthe two options, "the choice must be intelligible", which requires that the "factorsthat really count must be identified and weighed".18 In that case, which was also acase dealing with sexual offending against children, the Court provided usefulguidance on when home detention should be substituted for imprisonment onappeal:19Sentences of imprisonment have been quashed and home detention substitutedfor two errors of law. One is where the sentencing judge has assumed that theoffence category lies beyond a sentence of home detention. The other is wherethe purpose of deterrence has been given complete priority without regard toany of the countervailing purposes of sentence.That does not mean that a short-term period of imprisonment must always becommuted to a sentence of home detention. That equally would be an errorof law. What it does mean is that the judge must make a considered andprincipled choice between the two forms of sentence, recognising that bothserve the principles of denunciation and deterrence, and identifying which ofthem better qualifies as the least restrictive sentence to impose taking intoaccount all the purposes of sentencing.[13] At first instance in Mr Metua's case, the Judge commented in his sentenceindication that home detention, although less likely, was still an available option.14 R v Iosefa [2008] NZCA 453 at [41].15 Kennedy v R, above n 12, at [8].16 Sentencing Act, s 15A.17 Sentencing Act, s 16(2).18 Fairbrother v R [2013] NZCA 340 at [31].19 At [29]-[30] (footnotes omitted).However, no further analysis was undertaken and the issue was explicitly (andappropriately) left until sentencing. But at sentencing the Judge did not seem toconsider the option of home detention any further, relying instead on the indication,which had not explored the point. Having noted that the psychological report wasfavourable and assessed Mr Metua's risk of reoffending as low, he merelycontinued:20The primary principles, however, remain denunciation and deterrence. Whilethe reports provide me with some more background about your situation, theydo not alter the indication I gave you that prison was the more appropriateresponse. It remains the least restrictive outcome.[14] This approach did not fairly amount to a balancing exercise betweenimprisonment and home detention. It came perilously close to treating the option ofhome detention as precluded due to the nature of the charge. It gave priority to theprinciples of denunciation and deterrence without acknowledging those principlescan also be served by a sentence of home detention in appropriate cases, and withouthaving regard to the countervailing purposes of sentence. This amounted to an errorin the Judge's approach.[15] There were in fact several factors pointing towards home detention. First,both the pre-sentence report and the clinical psychologist's report assessed Mr Metuaas at low risk of reoffending. It is likely the Judge did not take this factor into accountto the extent appropriate given he mistakenly stated the pre-sentence report assessedMr Metua's risk of reoffending as high. In fact, like the psychological assessment,it assessed his risk as low.21 Secondly, Mr Metua has no history of sexual offending,which, given his age, must point against his risk in the community as both reportsnoted. Thirdly, the Judge should have assessed the gravity of Mr Metua's specificinstance of offending, rather than just the seriousness of child sexual offending ingeneral. His offending was of course serious as all sexual offending against childrenis, and particularly so given the young age of his victim and the age differencebetween the two. Nonetheless, it was a relatively minor example of offending of itskind, indicated by the short sentence of imprisonment imposed. It involved one20 At [4].21 I note the report nonetheless made some unfavourable observations; it noted Mr Metua'sminimisation of his offending when interviewed, a lack of pro social support and his problematicalcohol use. The psychological assessment differed from some of these criticisms.discrete instance of offending against one victim. There was no suggestion ofpremeditation; the incident took place in a hallway where Mr Metua couldpresumably have been easily discovered. Fourthly, as the Judge recognised,Mr Metua is 67 years old, faces health problems, and speaks English as a secondlanguage. Although these factors do not preclude prison, they arguably point towardhome detention.[16] The psychological assessment also seemingly points toward home detention.The report concluded that Mr Metua had a "fair" level of insight. The report notedsome minimisation of the offending, notably that Mr Metua denied touching thevictim on her vagina. This is undoubtedly of concern, as the Crown points out.However, the report concluded that despite this Mr Metua was "sincere",demonstrated genuine remorse and showed concern for the victim. It suggestedminimisation was likely due to Mr Metua's shame rather than denial of his offending.The report particularly stressed Mr Metua's problems with alcohol, and concludedthat Mr Metua's rehabilitative needs are most likely to be met by completion of analcohol and drug programme, and a prohibition on consumption of alcohol. It notedthat Mr Metua does not drive nor frequent places where children are present. Overall,it assessed Mr Metua's risk of re-offending as low on multiple assessment tools.[17] Importantly, Ms Scott for Mr Metua stresses that Mr Metua's rehabilitativeneeds favour home detention. She notes that Mr Metua will be unable to completethe necessary alcohol programmes while in prison for such a short stint. She submitsthat it is more likely he will successfully receive alcohol treatment if home detentionis imposed, as he will be able to start the programme while on home detention. Shenotes post-release conditions to ensure completion of alcohol treatment can only beimposed for up to six months post-imprisonment,22 but for 12 months post-homedetention.23 On the basis of this information it appears home detention will thereforebetter facilitate Mr Metua's rehabilitation, and therefore protection of thecommunity. Mr Metua's rehabilitative needs were a relevant factor not explicitlytaken into account by the Judge at sentencing.22 Sentencing Act 2002, s 93(2A).23 Sentencing Act 2002, s 80N.[18] In these circumstances, a sentence of home detention could have satisfied therelevant principles of sentencing, including rehabilitation, deterrence anddenunciation. There was no clear need for imprisonment to protect the communitygiven the low risk assessment reached by both the report writer and the psychologist.The most serious sentence Mr Metua has previously served was non-residentialperiodic detention over twenty years ago. Home detention is considerably moreserious and so likely to deter and denounce on a personal level. As the Courts havepreviously affirmed, home detention is a serious punishment and may satisfyrequirements for denunciation and deterrence on a society-wide level. Thoseprinciples are, in my view, satisfied here given Mr Metua's personal circumstancesand the nature of the offending.Child Sex Offender Registration[19] Ms Scott argues that the Judge should have also considered Mr Metua'sregistration on the Child Sex Offender Registry which follows by operation of lawas a result of a sentence of imprisonment. Ms Scott for Mr Metua submits that theJudge ought to have taken this factor into account as an additional punitive aspect ofMr Metua's sentence, which she says would weigh in favour of imposing homedetention, not prison. The Crown argues strongly against this point.[20] The argument is an interesting one, but it is unnecessary for me to resolvebecause I am of the view in any event that the judgment is in error for the reasons Ihave stated and that the sentence was manifestly unjust.[21] However, it is important to note that for a non-custodial sentence, a Judgemay use their discretion to make an order to place an offender on the Register onlyif satisfied the offender poses a risk to the lives or sexual safety of one or morechildren, or children generally.2424 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(2).[22] Responsibly, the Crown says that Mr Metua would not meet the threshold ofrisk required for a discretionary order should he receive a non-custodial sentence.I agree Mr Metua does not meet that threshold.25Conclusion[23] The Judge erred in failing to sufficiently consider the option of homedetention with respect to settled principles about that sentence's punitive anddeterrent impact. It was an error to disregard in effect, home detention as an option.This may have in part come about due to an understandable misreading of thepre-sentence report.[24] Taking into account those factors, I am unable to agree with the Judge thatthe circumstances favoured a sentence of imprisonment for Mr Metua. The sentenceultimately reached was manifestly excessive. Home detention was the appropriatesentence.[25] I note that the initial pre-sentence report assessed the proposed address asunsuitable for home detention because of its proximity to the victim and its proximityto locations where children would be present. It has subsequently been confirmedthat the pre-sentence report was in error, in that the proposed address is not close tothe victim. The clinical psychologist's report concludes that the address is suitabledespite its proximity to a playground, provided suitable conditions are imposed.[26] I note for completeness that I do not consider the Judge erred by givinginsufficient weight to the opinion of the expert psychologist, nor that he took anerroneous view of the effect of the offending on the victim as submitted. Weightingis a matter for the Judge, and he was entitled to take into account the expected impactof offending on children, who are understandably often unable to explain clearly theimpact on their lives of sexual offending. Also, I agree with Mr Carruthers that avictim impact statement by a 10-year old that may not on its face exhibit significant25 Taking into account the discussion of that threshold in Fowler v R [2017] NZHC 1892 at [23]-[34];Goose v Police [2017] NZHC 2453 at [20]-[30]; Escott v R [2017] NZHC 2853 at [35]-[39].impact is hardly conclusive: to the contrary. I consider it reasonable to proceed onthe basis of assumed significant negative impact, as the Judge did.Result[27] Given the nature of the offending, I do not consider it appropriate to followthe usual course of halving the period of imprisonment. As the Court of Appeal saidin R v Bisschop halving is not necessarily always appropriate.26 For purposes ofdenunciation and deterrence, a sentence of six months' home detention would havebeen appropriate, rather than the eight months' prison sentence imposed. Mr Metuahas already served two months of his sentence in prison. To reflect that, I impose asentence of four months' home detention, on standard conditions and also on theproposed special conditions recommended in the pre-sentence report. The specialconditions are to continue as post-detention conditions for a period of 12 months.---------------------------------------------------Hinton J26 R v Bisschop [2008] NZCA 229 at [18]–[19].