TWOMEY v R [2018] NZCA 206

TWOMEY v R [2018] NZCA 206 [20 June 2018]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 ZEALANDI TE KŌTI PĪRA O AOTEAROACA124/2018[2018] NZCA 206BETWEEN RICKY DEREK KEVIN TWOMEYAppellantAND THE QUEENRespondentHearing: 22 May 2018Court: Williams, Venning and Mander JJCounsel: R M Gould for AppellantJ A Eng for RespondentJudgment: 20 June 2018 at 4.00 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal against decision to decline leave to apply for home detention isdismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Ricky Twomey pleaded guilty partway through his trial to two charges ofindecent assault on a child under 12. He was sentenced to 18 months' imprisonment.11 R v Twomey [2018] NZDC 2236.On appeal, he challenges the sentencing Judge's decision to decline him leave to applyfor home detention.[2] Mr Twomey's notice of appeal was filed one day out of time. The Crown doesnot object to an extension of time being granted. Accordingly, we grant the extensionof time.Background[3] The 11-year-old victim was known to Mr Twomey. Mr Twomey had regularcontact with her when he and his partner would visit and stay at the victim's address.The first offence occurred during one of those stays.[4] On that occasion, Mr Twomey came into a bedroom where the victim was lyingon her bed, talking to her sister. After her sister left the room, Mr Twomey asked thevictim what job she was going to do to earn money. This was a reference to an earliermessage Mr Twomey had sent to the victim on social media, asking her if she wantedto earn money by doing some jobs, to which she replied that she did. While the victimlay on her stomach, Mr Twomey reached between her legs and with his hand squeezedher vagina about four times over the top of her clothing. That action lasted 30 seconds.Mr Twomey told the victim to think about the jobs before leaving the room.[5] The second offence occurred some two weeks later. At that time, Mr Twomeyand his partner were packing to return home. Mr Twomey went into the victim'sbedroom after telling her that he wanted to talk to her. He pushed the door, leaving itslightly ajar, before directing the victim to come to him. As she stood in front ofMr Twomey, he put his hand down her pyjama pants and squeezed her vagina over thetop of her underwear for about a minute. He then bent down and kissed her on theskin between her hip and pyjama pants. Mr Twomey directed the victim not to tellanyone about what had happened and that it was to stay between the two of them. Hethen gave the victim a small amount of money before leaving the room.[6] After the victim disclosed the offending, Mr Twomey was spoken to by police.He claimed he could not remember having assaulted the victim in the mannerdescribed. However, at trial, following the playing of the victim's evidential videointerview, Mr Twomey pleaded guilty.The sentence[7] After undertaking the sentencing exercise in an orthodox fashion, Judge Largearrived at an end sentence of 18 months' imprisonment.2 No issue is taken with thatsentence. The Judge then turned to the issue of home detention and whether leaveshould be granted to apply to substitute that sentence should a suitable address becomeavailable. The sentencing Judge declined to grant leave.3 Judge Large considered theoffending was too serious and he was not prepared to exercise his discretion in favourof sentencing Mr Twomey to home detention. He did not consider that home detentionwould provide a sufficient deterrent either to Mr Twomey or more generally.The appeal[8] Ms Gould on behalf of Mr Twomey submitted the sentencing Judge had erredin deciding not to grant leave to allow Mr Twomey to apply for home detention.While he did not have an address available to him at the time of his sentencing, it wassubmitted there was a realistic prospect he would be able to provide a suitable addressin the South Island where he had relocated away from the victim and her family.Mr Twomey had employment available to him in Christchurch, and it was stressedthese were Mr Twomey's first convictions for this type of offending.[9] Ms Gould acknowledged the offending was serious, but emphasised that sexualoffending against a child per se ought not prevent the imposition of a sentence ofhome detention. She submitted the sentencing Judge had not recognised the deterrenteffect of home detention, and that such a sentence is able to effectively hold anoffender accountable for the harm caused to the victim and the community.[10] Ms Gould submitted the sentencing Judge had failed to have regard to thedesirability of keeping offenders in the community and the need to impose the leastrestrictive outcome appropriate in the circumstances in accordance with the hierarchy2 R v Twomey, above n 1, at [16].3 At [21].of sentences.4 She submitted home detention would best provide for Mr Twomey'srehabilitation and reintegration which are matters a sentencing Court must take intoaccount when assessing the appropriate sentence.5[11] Finally, Ms Gould submitted the Judge's reasons for declining leave wereinadequate. She argued that more was required when declining to substitute a sentenceof home detention than expressing the view that the offending was "serious" and that"those who offend against children must understand there are consequences".6Relevant principles[12] There is no presumption in the Sentencing Act for or against commutation ofimprisonment to home detention either generally or for particular types of offences.7The decision calls for an exercise of judgment on a case by case basis against thestatutory principles and purposes of sentencing which a sentencing judge is calledupon to assess when determining whether home detention is an adequate response tothe seriousness of the offending.8[13] Because it can be very difficult in a marginal case to articulate reasons forpreferring one approach to another, the margin of appreciation extended to judges indeciding whether to commute a prison term to a sentence of home detention is usuallysignificant.9 The same standard of appellate review applies to decisions not tocommute imprisonment to home detention as it does to any other sentence.10An appellant must show that a material error was made and satisfy the appellate courta different sentence should be imposed.114 Sentencing Act 2002, ss 16 and 8(g).5 Sentencing Act, s 7(1)(h).6 R v Twomey, above n 1, at [21].7 R v Vhavha [2009] NZCA 588 at [29]; Osman v R [2010] NZCA 199 at [20]; andPalmer v R [2016] NZCA 541 at [19].8 Palmer v R, above n 7, at [19].9 Palmer v R, above n 7, at [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].10 Palmer v R, above n 7, at [18].11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].Decision[14] We do not consider that, in the circumstances of the present case,the sentencing Judge erred in declining to grant leave to apply for home detention.We accept the Judge's reasons were sparse, but consider he was entitled to concludethat a sentence short of imprisonment would not adequately mark the seriousness ofthe offending nor sufficiently meet the purposes of deterrence and accountability.[15] We accept Mr Eng's submission on behalf of the Crown that the offending wasserious. The indecent assaults were highly intrusive. The touching was not fleetingor momentary and was repeated within a relatively short period. The second assault,which represented an escalation of the earlier offending, involved Mr Twomey placingone of his hands down the victim's pyjama pants and kissing her body.[16] There was some premeditation, at least as it related to the second episode ofoffending. The references by Mr Twomey to the victim earning money by doing somejobs denotes an element of grooming, particularly when coupled with Mr Twomeyproviding the victim with a small amount of money after the second assault.[17] The victim was vulnerable, both as a result of her age and the fact the offendingoccurred within the family environment of which Mr Twomey was an adult member.There was an obvious breach of trust and substantial harm caused to the child.[18] While we accept the sentencing Judge was entitled to conclude in thecircumstances of this case that a term of imprisonment was warranted, we acceptMs Gould's submission that the particular type of offence which has attracted ashort-term sentence cannot of itself prevent the availability of home detention.12[19] There was a further factor which detracted from Mr Twomey's application forleave. His attitude to his offending provided little support to favour a sentence with arehabilitative focus. The pre-sentence report essentially recorded a renewed denial ofthe offending. This denial was said to be sourced from Mr Twomey's claimed inabilityto recall the offending as a result of being affected by methamphetamine.12 Sentencing Act, s 4(1); and Parole Act 2002, s 4(1), a short-term sentence is defined as "adeterminant sentence of 24 months or less".[20] Mr Twomey filed an affidavit attempting to clarify his position. Because ofcommunication difficulties, Mr Twomey opined the pre-sentence report writer mayhave misinterpreted his inability to recall the incidents as a denial of his offending.He deposed that the changing of his pleas to guilty marked his acceptance that theindecent assaults had happened. Be that as it may, there remains an obvious absenceof remorse and a clear lack of insight by Mr Twomey into his offending and theconsequences for his victim.[21] A judge should give sufficient reasons when refusing to grant leave to applyfor home detention. However, as this Court observed in R v Husband, these need notbe extensive so long as the basic reasoning process is explained.13 It is not contestedthat the sentencing Judge specifically addressed the question of home detention as adiscrete issue. When the sentencing notes are read as a whole, in particular the Judge'sreview of the aggravating features of the offending, we consider his conclusion thathome detention would not in the circumstances represent a sufficient response tothe offending, is adequately explained.Result[22] The application for an extension of time is granted.[23] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent13 R v Husband (2000) 18 CRNZ 229 (CA) at [33].