P (CA84/2017) v R [2017] NZCA 319

P (CA84/2017) v R [2017] NZCA 319 [26 July 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE 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 ZEALANDCA84/2017[2017] NZCA 319BETWEEN P (CA84/2017)AppellantAND THE QUEENRespondentHearing: 20 June 2017Court: Clifford, Lang and Mander JJCounsel: S G Vidal for AppellantK S Grau for RespondentJudgment: 26 July 2017 at 4 pmJUDGMENT OF THE COURTA The appeal 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(Given by Mander J)Introduction[1] The appellant (P) was convicted after trial on nine charges of indecent assault on a child under 12 years of age. He appeals his convictions, alleging the guilty verdicts were unreasonable and that various features of his trial, either individually or collectively, have led to a miscarriage of justice.[2] P was sentenced by Judge M J Callaghan in the District Court at Invercargillto a term of two years' imprisonment.1 As a result, he was listed on the Child Sex Offender Register.2 His sentence of imprisonment was cancelled when a suitable home detention address became available. In those circumstances, P now disputes his continued inclusion in the Register.Background[3] In 2012, when the complainant was aged six to seven years, P was in arelationship with the complainant's mother. They lived together in Queenstown. The complainant's evidence was that, while alone with P, he would touch her arm and neck, kiss her on the lips and neck, touch her genital area and simulate sexual intercourse.[4] Sometime later, P and the complainant's mother moved to Cromwell, wheretheir son was born. The complainant, who lived for significant periods with her grandmother in Queenstown, also moved to the family home in Cromwell. No offending was alleged to have taken place at that location.[5] In 2013, after the birth of a second son, P, the complainant's mother, and the infant boys moved to Invercargill. The complainant returned to live with her grandmother in Queenstown. Periodically, she would visit her mother in Invercargill. On these occasions, the complainant alleged that P would indecently touch her. She recalled the final indecent assault occurring in Invercargill shortly before her mother and P ended their relationship. P put his hands down thecomplainant's pants and touched her genitalia.1 R v [P] [2017] NZDC 9267 at [18].2 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).[6] The complainant left New Zealand in late December 2013 to live with her father in Australia. It was on a visit back to New Zealand in January 2016 that she disclosed the sexual abuse. The complaint was made at the time the mother and Pwere in disagreement regarding the care of their two boys. P's case at trial was that the mother had manipulated the complainant to make up allegations to prejudice P inthe dispute about the boys' care.The appeal[7] We will address each of the discrete grounds raised by P on his appeal before turning to his overall submission that the jury's verdict was unreasonable. However,we state from the outset that neither individually or collectively do the identifiedgrounds give rise to a miscarriage of justice. Nor do we consider the jury's verdictsto be unreasonable.Refusal to allow edited portions of the complainant's evidential video interview to beput to the complainant[8] During the course of the complainant's cross-examination the following exchange took place:Q. Do you remember talking about [P] and the girlfriends that he had?A. Yes.Q. And do you remember saying that you're pretty sure that he'd beenwith lots of girls?A. No.Q. Do you recall at all saying that you definitely knew that he'd beenwith lots of girls?A. No.Q. Wasn't it the case that Mum used to get annoyed because she thought [P] was looking at other girls?A. I don't know cos she didn't used to tell me what their argumentswere about so, no.[9] Ms Vidal, who appeared for P both at his trial and on appeal, sought to put to the complainant an excerpt that had been edited from the complainant's evidentialvideo interview (EVI). The complainant told the interviewer "[P] has been with lots of girls before, I know that. Definitely." Editing of the EVI had been agreed by counsel. However, Ms Vidal advised the Crown that she may wish to put some of the excised material to witnesses in cross-examination.[10] The trial Judge ruled the defence could question the complainant about whether she had on a previous occasion said that P had definitely been with lots of girls before. However, the Judge was concerned about any reference being made to the EVI having been edited. He ruled that in the event the complainant denied having previously made such a statement the edited portion of the EVI could not be put to her. As is apparent from the passage of the cross-examination set out at [8], the complainant could not recall having previously made such a statement.[11] Ms Vidal submitted the statement made by the complainant was important because it demonstrated the complainant had been manipulated by her mother andwas unreliable as a witness. It was submitted the Crown's opposition and the Judge's ruling was unfair to P, and that counsel should have been permitted tocross-examine the witness in the manner proposed.[12] We accept there is a risk that knowledge gained by a jury of an EVI having been edited could potentially prejudice a defendant. Because of that risk, an explanation from the trial Judge would be required and a specific direction provided.However, we doubt the Judge's concern of the jury learning the EVI had been edited of itself prevented the passage being put to the complainant. Having made thatacknowledgment, we do not consider this part of the complainant's EVI realisticallysupported the defence theory that the complainant was giving false evidence as a result of being manipulated by her mother.[13] As the Crown observed in its submissions, it is not clear what would have been further achieved had counsel been permitted to put the source of the statement to the complainant. Ms Vidal had obtained confirmation from the complainant that she could remember talking about P and his girlfriends. It is therefore difficult to understand how having the complainant confirm that she was "pretty sure that P had been with lots of girls", which is the proposition that Ms Vidal sought to put to thecomplainant, added to the complainant's initial acknowledgement of having talked about P's girlfriends.[14] We do not accept the excised portion of the EVI is capable of supporting an inference that the mother influenced the complainant to recite false allegations. We note there was evidence disclosed at trial of P entering into another relationshipduring a period of separation from the complainant's mother, prior to him returningto his relationship with her upon becoming aware that she was pregnant with his son. However, the short point is that the refusal to allow Ms Vidal to refer to the excised statement did not prevent or hinder the defence from putting its case that thecomplainant's allegations were based on her mother's manipulation. Any inferenceto be drawn from the excised statement in support of that defence was entirely equivocal.[15] Finally, if the passage had been allowed to have been put to the complainant, the Crown may have been entitled to re-examine the complainant as to the context in which she made her statement. This may have included permission to refer to thewhole of the complainant's lengthy answer to the interviewer's question, "Tell me everything about this person?", which includes potentially prejudicial material. The nature of that content was no doubt the reason for this part of the EVI being edited.[16] Had the selected sentence from the wider passage been allowed to be put to the complainant, the balance of her answer may have been legitimately adduced toplace the complainant's short reference to her knowledge of P having been "with lots of girls before" placed in context. This other material, which on its face appears to have been sourced from the complainant's own observations of P, could have been deployed in rebuttal to the suggested inference sought to be made by the defence (that the complainant was being schooled by her mother).Why would an 11 year old make this stuff up?[17] During the course of the complainant's cross-examination, a series of propositions were put to her that what she had described, including having been touched by P, had not occurred. To each, the complainant maintained the events she had described had occurred. When it was put to the complainant that P had neverkissed her in the bedroom in Invercargill, the complainant replied: "I don'tunderstand this because why would an 11-year-old girl make this stuff up?" At thatpoint, the trial Judge intervened and directed the complainant to answer the questions put to her. Before the Court adjourned for the day, three further propositions were put to the complainant that acts alleged to have been committed by P at Invercargill had not occurred. The complainant replied that they had.[18] During Crown counsel's closing address, reference was made to that part ofthe cross-examination:There was one point in cross-examination where [the complainant] or she did chat back, and there was a period you might recall she was getting a bit, towards the end of the day, and it was getting put to her, as my friend has to,that she was, you know, making things up and she said, "I don't understandthis because why would an 11 year old girl make this stuff up?" Now theCrown — sorry, the defence, I've got to be careful, the defence doesn't have to prove any reason why she'd make this stuff up but the Crown says if youfocus on [the complainant], if you focus on the DVD and you focus on the way she conducted herself when she was questioned, you can be sure this 11 year old girl didn't make it up.[19] Ms Vidal submitted it was unfair of Crown counsel to have made reference to this passage of the evidence, and that by doing so she was inviting the jury to find Pguilty on an erroneous basis. P's complaint is not directed at the answer given by thecomplainant in response to his counsel's cross-examination, but to the reference made by Crown counsel in her final address.[20] We are satisfied that no risk of a miscarriage arises from counsel's referenceto that passage of the complainant's cross-examination. We agree that any commentregarding the absence of a complainant's motive to lie made in support of theprosecution case is to be avoided.3 However, in this instance, Crown counsel's reference to the complainant's own response under cross-examination was immediately followed by an acknowledgment that the defence did not have to prove any reason why the complainant would make up her account. Counsel then askedthe jury to focus on the complainant's EVI and the way she conducted herself when she was questioned.3 Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425 at [26].[21] Crown counsel had at the outset of her closing address emphasised to the jury that the defendant carried no onus to prove why the complainant may have lied, and that the burden remained on the Crown notwithstanding P offering a reason why the complainant may have fabricated her evidence. Importantly, the trial Judge directed the jury that P did not have to explain why the complainant had made false allegations against him, and that it was for the Crown to prove that he was guilty beyond reasonable doubt.[22] In the context of the present case, P had put forward as part of his defence a reason why the complainant was lying, namely that she had been encouraged to do so by her mother. P was attributing to the complainant a positive motive to lie. The trial Judge directed the jury in some detail that they would need to carefully consider the truthfulness and credibility of the complainant and whether she had been encouraged to make up her story by her mother, and had a motive to give false evidence against P. It follows that the reference by Crown counsel to thecomplainant's evidence of not having a motive to lie, in the circumstances of P'strial, was largely redundant.Reliance on the complainant's evidence of P being at times bare-chested[23] A further complaint regarding Crown counsel's address to the jury was thereliance placed on a piece of evidence in support of a submission that the complainant was credible and should be believed. The evidence in question related to cross-examination of the complainant about whether P was bare-chested on occasions when he sexually abused her.[24] In the course of the Crown's closing address, reference was made to that partof the cross-examination:... perhaps I can assist in pointing out some of the reasons why you then might feel comfortable believing her. Often it is little things. Do youremember when she was asked by my learned friend about whether or not[P] wore things on his top half ... remember she — the answer was whenmy friend said, "He would not be bare-chested or have nothing on his top around you", she said, "Yes, he would", and that was a general question from my learned friend. So I asked [the complainant] and she confirmed notunsurprisingly, that sometimes in the summer the defendant would wear a lavalava and quite often not wear a top.[25] In the complainant's EVI, she said that P's clothes were on when he took herinto the bedroom. Sometimes he did not have a top on (but most of the time he did). In cross-examination it was put to the complainant that P would never have his top off in the house around her. The complainant maintained P would always take it off after work. As noted by Crown counsel in her closing, the complainant was then directly challenged about her evidence. The complainant insisted that P would havehis top off. The complainant's mother in her evidence said that in the summer Pwould wear a lavalava, and if it was hot he would quite often not wear a top. The mother was not challenged in cross-examination on this point.[26] When P gave evidence, he made no comment on this issue, nor was he cross-examined about it. Ms Vidal's submission is that, as a result of there being nocontrary evidence adduced by the defence, the Crown could not use the complainant's evidence about this topic to support her credibility.[27] We do not consider there to be any foundation to P's complaint. Thecomplainant was clearly challenged during her cross-examination that what she had said in her EVI about P sometimes having his top off was incorrect. It was put to her that P would never have his top off in the house and would not be bare-chested around her. In the absence of P giving any evidence about the issue it was not incumbent on the Crown to raise the matter with P in cross-examination in order torely on that part of the complainant's evidence in support of her credibility. That Pultimately gave no contrary evidence does not alter the fact the complainant'sevidence on this topic was challenged under cross-examination yet remained intact and uncontradicted.Cross-examination of P's command of English[28] Ms Vidal submitted that the Crown's cross-examination of P regarding his competency in English, when he had at his trial the assistance of a Samoan interpreter, gave rise to unfair prejudice and represented an improper challenge to his credibility as a witness. We do not consider there to be a basis for this complaint. The cross-examination was fair and relevant.[29] P suggested in his evidence that he did not know or understand that sexualallegations had been made against him until his police interview commenced. P'sexplanation for why he had told the police the complainant had come to stay in Invercargill on multiple occasions but was now saying in evidence it was only once was because of language difficulties he experienced during the police interview.This was of some importance because P's defence at trial in relation to theInvercargill charges was that the alleged multiple occasions of sexual assault could not have occurred because the complainant only visited Invercargill on the one occasion.[30] P's understanding of his jeopardy at the police station and the accuracy ofwhat he had told the police during the interview, unaided by an interpreter, were relevant issues that the Crown was entitled to traverse with P by reference to hisability to understand and communicate in English. Crown counsel'scross-examination regarding how long he had been in New Zealand and his schooling was therefore unobjectionable.[31] We do not consider the cross-examination brought into question P's use of aninterpreter at trial, or had the effect of making him appear dishonest in seeking to have the aid of an interpreter. To the contrary, when Crown counsel referred P to the transcript of his police interview, and inquired about whether he could read a specific passage, some care was taken to ensure P understood what was being put to him. We do not consider there is any basis to the suggestion that counsel attempted to have the jury draw an adverse inference about P's access to or use of an interpreter at trial.Date range of charges[32] After the complainant had completed her evidence, the Crown obtained and introduced documentary evidence to assist in the ascertainment of an accurate chronology of the complainant's location and movements. The Crown introduced a copy of the complainant's passport, her school attendance records at primary schoolsin Queenstown and Cromwell, and a newspaper clipping and police records relating to a dog bite suffered by the complainant in Queenstown.[33] On appeal, P complained about the belated introduction of this material, which was not available at the time the complainant gave evidence. The information was introduced as an admission of fact by consent.4 Ms Vidal was critical that this new evidence did not result in any amendment of the range of dates set out in the charges. Ms Vidal submitted this evidence assisted P in substantiating his version of events and bolstered his credibility.[34] Apart from noting the observations made by Ms Vidal in her written submissions, it is not apparent to us how either the introduction of this evidence, belated as it was, or the failure to amend the date range of the charges, denied P a fair trial or gave rise to the risk of a miscarriage.[35] Ordinarily, a date specified in a charge will not be an essential element, and it will be open to a jury to convict as to a different date, irrespective of whether an amendment of the charge has been sought. Dates may become essential depending on issues of limitation, the timing of changes in the law, or where specific prejudice to a defendant will arise as a result of a change to when a charge is alleged to have occurred and which may result in a miscarriage of justice.5[36] The Queenstown charges alleged a date range between 1 January 2012 and 28 February 2013. Information about the dog attack established that it occurred in May 2011, outside the alleged period set out in the Queenstown charges. In the EVI the complainant made reference to a dog attack, which she appeared to relate to the time when she was indecently assaulted by P. The school records established that P was resident in Cromwell between 18 May 2012 and 19 April 2013.[37] It is apparent therefore that the date range for the Queenstown offending should have started earlier, at least in May 2011, and ought not have extended beyond May 2012. The date range for the offending in Invercargill should have commenced from April 2013 and not 1 January 2013 as stipulated in the representative charges. From May 2013 until 20 December 2013, the complainant was back at her Queenstown primary school living with her grandmother, after P, the4 Evidence Act 2006, s 9.5 H v Police (1994) 11 CRNZ 632 (HC) at 634; R v Hughes [1998] 1 NZLR 409 (CA) at 410; andThe King v Wae Wae Uatuku [1948] NZLR 648 (CA) at 652.complainant's mother and her two brothers moved to Invercargill where she wouldvisit them.[38] We do not consider P was prejudiced by the introduction of the new material after the complainant had given her evidence. The complainant could not provide exact dates regarding her movements. She was 11 years old at trial, 10 years as at the date of the EVI, and was giving evidence of events some three to five years previous. It was not demonstrated to us how the earlier availability of this material for the purpose of cross-examining the complainant would have assisted P. The information was available to be put to the adult witnesses and, importantly, available to the jury for it to assess the accuracy and reliability of those witnesses and thecomplainant's recollection of the relevant chronology.[39] Similarly, the absence of any amendment to the date ranges included in the Crown charge list did not prejudice P. It was not contended before us that the offending at Queenstown could not have occurred because of the evidence of the timing of the dog attack. The complainant referenced some of her allegations to that event, and the offending may well have started at this earlier point in time. Insofaras that evidence may have reflected on the complainant's credibility, Ms Vidal was able to make any submissions she wished regarding how the new material impacted the Crown's case and the Crown witnesses' reliability and credibility, irrespective ofwhether or not the dates in the indictment were amended. Arguably, the mismatch between the dates alleged and the evidence highlighted a deficiency in the Crown case.[40] In relation to the representative charges alleged to have occurred in Queenstown and Invercargill, the introduction of the new material altered the date range for when the alleged offending could have occurred. However, the opportunity for the offending to have occurred at those locations between the dates set out in the charges remained. The jury was only required to be satisfied that the offending occurred within a reasonable time period of the dates specified.6 The dates were not material beyond establishing that the complainant was under 12 years at the time of6 R v Crime Appeal 271/92 CA271/92, 18 November 1992 at 11; K (CA665/2014) v R [2015] NZCA 566 at [48]; and L (CA685/2015) v R [2016] NZCA 507 at [20].the offending, or to the extent that any uncertainty as to the timing of the offendingmay have affected the reliability of the complainant's allegations.The December 2013 Invercargill charges[41] The final charges in the Crown charge list were specific allegations ofindecent assaults that occurred on the complainant's final visit to Invercargill inDecember 2013. P submitted it could not be proved that the complainant was present in Invercargill in December 2013, and that the offending, as alleged, could not have occurred at that time.[42] It was established from the complainant's passport that she left New Zealand on 22 December 2013 to live with her father in Australia. P gave evidence that the complainant visited Invercargill on a single occasion, before his relationship with thecomplainant's mother ended. By reference to the timing of when the relationship between P and the complainant's mother ended and the mother's evidence undercross-examination that the complainant was not present when this occurred, it was submitted the complainant could not have been in Invercargill in December 2013.[43] Against that argument, the Crown was able to point to P's apparentconfirmation during his police interview that the complainant visited Invercargill whenever her mother wished her to, and that her last visit was before Christmas or"very close to Christmas". The complainant, her mother and her grandmother allgave evidence that the complainant visited her mother in Invercargill, although her grandmother appeared to have accepted under cross-examination that this had occurred only once. However, the Crown was able to point to the school attendance records, which demonstrated the complainant was absent from her Queenstown primary school while in the care of her grandmother for some 50 half days between May and December 2013, when her mother and P were living in Invercargill. The complainant was absent from school from 17 to 20 December 2013, which is within the date range of the final charges and coincides with her allegation of a final incident of abuse in Invercargill at that time.[44] The competing arguments regarding the complainant's presence inInvercargill in December 2013 were ventilated before the jury. Importantly, while itwas necessary for the jury to be satisfied the complainant visited Invercargill on more than one occasion, in order for there to be a final visit when identifiable discrete offending was alleged to have occurred, it was not necessary for the Crown to prove that this final offending occurred in December 2013. The last visit, and therefore the final offending, may have been earlier than December 2013. The critical issue was whether the jury could be satisfied beyond reasonable doubt that P offended against the complainant on that final occasion in the way the complainant described. That turned on whether the jury could be sure the complainant had visited Invercargill more than once, rather than whether the final offending occurred in December 2013.[45] Whether assessed against the competing evidence and submissions regarding whether the final offending occurred in December 2013 or against the fact that the stipulated December time period was not critical to prove these last allegations, we are satisfied no miscarriage arises.Unreasonable verdict[46] P couched this ground of his appeal as an allegation that the verdicts returned by the jury were against the weight of the evidence and that, accordingly, his convictions should be quashed. However, the only basis upon which a jury'sverdicts can be overturned on appeal is if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the defendant was guilty.7[47] In support of P's contention that the jury's verdicts were unreasonable, reference was made to the complainant's delayed complaint and the dispute that existed between the complainant's mother and P regarding custody of their youngsons at the time the complaint surfaced. It was submitted this established a motive for the mother to lie and to manipulate her daughter into giving false evidence. Ms Vidal submitted the mother lied in her evidence about the living arrangements of the complainant, where she attended school, and where she lived. Counsel7 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].maintained these lies were repeated by the complainant, and crucially so in regard to the circumstances relating to the period of the breakup in Invercargill.[48] We do not consider this ground of P's appeal to be realistically arguable.Complainant delay is a recognised neutral factor, and there were various counter-arguments to the defence theory available to the Crown to support its case.8These included that the mother, who was a demonstrably poor historian who readily admitted errors under cross-examination regarding her recall of locations and dates, was incapable of constructing a false narrative or schooling her daughter to maintainthe lies. The contention made on behalf of P that the complainant's mother had liedat trial was merely a submission. As is apparent from the jury's verdict, the defencetheory that the mother and the complainant had conspired together to fabricate a story was rejected.[49] There is little scope to challenge a jury's verdict in relation to a case based oncredibility findings. In R v Patel, this Court observed:9[27] In R v Munro [2008] 2 NZLR 87 at [83]–[84] this Court discussed the circumstances in which a verdict based largely on credibility findings can be overturned on the basis of unreasonableness. The Court indicated that, where an appellate court is in no better position than the jury to assess the credibility of witnesses, it is not likely to be easy for an appellant to show that a verdict is unreasonable. This is because, in many cases, assessing credibility from a written transcript will not achieve a better result than that achieved by a jury, which has the advantage of hearing and seeing the witnesses in the course of the whole trial. Verdicts based on credibility are likely to be overturned only where there is contemporary evidence which clearly contradicts the witness or in cases of glaring improbability. Inconsistencies alone are unlikely to reach that standard.[50] The matters that were raised before us on appeal were canvassed before the jury. There were inconsistencies in the evidence, a number of which we have traversed relating to the presence of the complainant at various addresses and where she was living with P at various times. However, the opportunity for the offending to have occurred remained. We accept the Crown submission that this was a classic credibility case where the jury was best placed to assess the honesty and reliability of the complainant and other witnesses.8 Evidence Act, s 127.9 R v Patel [2009] NZCA 102.Registration on the Sex Offender Register[51] P was sentenced to two years' imprisonment. However, at the time of hissentencing he was considered a candidate for home detention should a suitable address become available. In such an event, he was granted leave to apply for home detention. Approximately a fortnight later, a suitable address became available. As a result of an application pursuant to s 80K of the Sentencing Act 2002, the Judgecommuted P's sentence of imprisonment to one of 11 months' home detention.10[52] Because P was initially sentenced to imprisonment on the charges of indecent assault on a girl under 12 years, he became a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act).11 After P's successful application to have his sentence of imprisonment substituted with home detention, the issue of P's status as a registrable offender wasraised with the District Court. The Judge considered the commutation of a sentence of imprisonment to home detention did not affect the original status of P as a registrable offender. In coming to that conclusion he referred to s 80K(8) of the Sentencing Act, which declares that a sentence of imprisonment that is cancelled as a result of a suitable address becoming available to a defendant is a custodial sentence"for the purpose of any other enactment".[53] Ms Vidal submitted that had P had a suitable address available to him at the time he was originally sentenced, he would have been sentenced to home detention. He would not therefore have become a registrable offender unless the Court made a specific order to that effect.12 Counsel submitted that P's registration resulted onlyfrom the fact that he did not have a suitable address available to him at the time of sentencing, and that such a factor is irrelevant to the risk he may pose, or any rationale for him being included on the Register. Ms Vidal submitted that, in the circumstances, P should not be included on the Register.10 [P] v Department of Corrections [2017] NZDC 10317.11 Section 7(1)(a).12 Child Protection (Child Sex Offender Government Agency Registration) Act, s 9(1).[54] The question that arises is whether the District Court Judge was correct in concluding that the commutation of the sentence of imprisonment to home detentiondoes not alter P's original classification as a registrable offender under the Act.[55] Section 7 of the Act provides as follows:7 Who is a registrable offender?(1) A registrable offender is a person whom a court has, in respect of a conviction for a qualifying offence,—(a) sentenced to imprisonment; or(b) sentenced to a non-custodial sentence and made subject to a registration order....(4) A person ceases to be a registrable offender if—(a) the conviction in respect of each qualifying offence that makes him or her a registrable offender for the purposes of this Act is quashed or set aside by a court; or(b) the sentence in respect of that offence is reduced or altered so that he or she would not have fallen within the definition of registrable offender in subsection (1) had the amended sentence been the original sentence; or(c) the registration order in respect of that offence is set aside by a court.(5) For the purposes of this section, it is irrelevant whether a person may lodge, or has lodged, an appeal in respect of a conviction or in respect of a sentence or order.(Emphasis added.)[56] P is a person who was convicted of a qualifying offence and sentenced to imprisonment. His status as a registrable offender and the entry of his name on the Register occurred as a result of the operation of the Act and not by any order of the Court. Where an offender receives a non-custodial sentence, a Court may only order the offender to be placed on the Register if it is satisfied the offender poses a risk tothe lives or sexual safety of one or more children, or of children generally.13 Such an order may be appealed in the same way a sentence may be appealed.14[57] Section 7(4) of the Act provides that a person will no longer be a registrable offender where the basis upon which his or her eligibility is founded no longer applies. If an offender no longer stands convicted of a qualifying offence, they can no longer be a registrable offender. Similarly, the same outcome is reached where the sentence that caused the offender to fall within the definition of a registrable offender is reduced or altered, and the new sentence, if originally imposed, would not have resulted in the person coming within the definition of a registrable offender.[58] It is the latter situation that gives rise to the present issue. Clearly, where, as a result of a successful appeal, the sentence is reduced or altered and the person no longer falls within the definition of a registrable offender, he or she will cease to be registrable. Ms Vidal submitted the same should apply where home detention has been substituted for imprisonment after a defendant has been granted leave to do so, on the basis that had a suitable address been available at the time of sentencing that sentence would have been originally imposed.15[59] The Judge took the view that s 80K(8) of the Sentencing Act governs the application of s 7(4)(b) of the Act. However, we do not consider that subs (8) affects the application of that provision. Section 80K(8) relates to the status and effect of the original sentence, namely that of imprisonment. It says nothing about, and has no application or bearing upon, the status or effect of the amended sentence of home detention.16 Importantly, subs (8) does not change the non-custodial nature of the substituted sentence of home detention. We do not, therefore, consider that s 80K(8) has any operative effect on the interpretation and application of s 7(4)(b) of the Act.13 Section 9(2).14 Section 9(4) and (6).15 Sentencing Act 2002, s 80I.16 An example of where the declaratory statement contained in s 80K, that a sentence of imprisonment cancelled under that section is a custodial sentence for the purpose of any other enactment, has application is the Criminal Records (Clean Slate) Act 2004. Section 7(1)(b) of that Act provides that an individual is eligible under the clean slate scheme if no custodial sentence has ever been imposed on him or her.[60] We consider the substitution of the original sentence of imprisonment with a sentence of home detention pursuant to s 80K of the Sentencing Act falls within the ambit of a sentence that has been reduced or altered. Had that sentence been originally imposed on P, he would not have fallen within the definition of a registrable offender. He therefore now ceases to be a registrable offender.[61] We note that a sentencing court that does not sentence an offender convicted of a qualifying offence to imprisonment may make an order that the person be placed on the Register. Because of the effect of granting leave under s 80I of the Sentencing Act to allow an offender to apply for his or her sentence of imprisonment to be cancelled and substituted for home detention should a suitable address become available, the power of the sentencing court to make such an order may be thought to have been avoided.[62] However, we do not consider there to be any reason why a court, when cancelling a sentence of imprisonment under s 80K of the Sentencing Act and substituting one of home detention, cannot, pursuant to s 9(1)(b) of the Act, consider at that point making an order that the person be placed on the Register.[63] In the present case, P ceased to be a registrable offender once the Judge cancelled the sentence of imprisonment and imposed a sentence of home detention without making any order under s 9(1)(b). Thereafter P was no longer subject to the restrictions and obligations imposed on registrable offenders under the Act. Under s 11(1) of the Act, the Commissioner of Police is responsible for the administrationof the Register. Presumably the Commissioner was therefore required to remove P's name from the Register as would no doubt occur if an offender's qualifyingconviction was quashed or a person ceased to be a registrable offender for any other reason.Decision[63] The appeal is dismissed.[64] To protect the complainant's identity, we make an order prohibitingpublication of the name, address, occupation or identifying particulars of P pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Southern Law, Invercargill for AppellantCrown Law Office, Wellington for Respondent