HOPKINS v R [2022] NZCA 317

HOPKINS v R [2022] NZCA 317 [15 July 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATIO ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA163/2022[2022] NZCA 317BETWEEN STEPHEN HOPKINSAppellantAND THE QUEENRespondentHearing: 16 June 2022Court: Courtney, Mander and Fitzgerald JJCounsel: N P Chisnall and L A Elborough for AppellantMRL Davie for RespondentJudgment: 15 July 2022 at 9.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Following a jury trial, Stephen Hopkins was found guilty of sexual violationby unlawful sexual connection and indecency with a boy aged under 12 years. He wassentenced by Judge Gibson in the District Court at Auckland to 22 months'imprisonment.1 The Judge declined to commute that sentence to one ofhome detention.2 Mr Hopkins appeals that decision.Background[2] The offending occurred in 1992 when the complainant was aged four orfive years. Mr Hopkins, who was sentenced on the basis he was 22 years old at thetime, was in a de facto relationship with the complainant's mother.3 The offendingarose out of a single incident when the complainant and Mr Hopkins were at hometogether and alone. He called the child into his room, where he was lying naked inbed under a sheet. After pulling the sheet back, Mr Hopkins instructed the child tohold his penis and masturbate him before placing his penis in the child's mouth.The offending continued until Mr Hopkins ejaculated on the child's hand and over hisown body.[3] The offending was not disclosed to the police until 2019.District Court sentencing[4] In sentencing Mr Hopkins, the Judge adopted a starting point of two and a halfyears' imprisonment from which he allowed a 25 per cent deduction for the time sincethe offending during which Mr Hopkins has led a normal, law-abiding life.4 The Judgeremarked the man for sentence before him was no longer the same man whocommitted the offences.5 No issue is taken with this part of the sentencing exercise.[5] The Judge identified "[t]he real issue" for his consideration was whether thestatutory presumption of imprisonment for sexual violation could be displaced in the1 R v Hopkins [2022] NZDC 5896.2 At [15].3 Mr Hopkins stated in evidence he was born on 27 January 1968. That date accords with detailscontained in the charging documents. This would have made him 24 years old throughout 1992,which is the alleged timeframe for the offending. However, he was sentenced on the basis he was22 at the time of the offending and his appeal was argued on that understanding. For the purposesof the appeal, we have also proceeded on that basis. The confusion regarding Mr Hopkins' agemay have arisen from his evidence that he thought he was 22 at the beginning of his relationshipwith the complainant's mother.4 R v Hopkins, above n 1, at [9] and [12].5 At [11].circumstances of this case.6 In declining to substitute a sentence of home detention,the Judge observed:[15] Had the defendant accepted responsibility for the offending andeither entered a guilty plea or even after the verdicts were returnedacknowledged his wrongdoing then it might be said that he had attempted toatone for the offending against the complainant. That might be a factor that aCourt would consider, having regard to the passage of time since the offenceand the absence of any other convictions, was appropriate to overcome thepresumption of imprisonment. That does not exist here. The defendant verymuch insists that he did not commit the offending and the offending has clearlyhad a traumatic effect on the complainant. While there may not be a need forspecific deterrence for the defendant who appears to have lived his life wellwith his new family and is supported by members of that family, it does notseem to me on the facts of this case to displace the presumption in favour ofimprisonment and so the defendant is sentenced to 22 months' imprisonment.The appeal[6] Mr Hopkins alleges three material errors were made by the Judge in hisassessment of whether the presumption of imprisonment should be displaced in thecircumstances of his case:(a) The Judge failed to take into account Mr Hopkins' relative youth at thetime of the offending, which bore both on the calculation of the prisonsentence but moreover on the question of home detention.(b) Inadequate account was taken of Mr Hopkins' nearly 30 years in thecommunity and proven rehabilitation.(c) The Judge improperly treated the absence of a guilty plea as a personalaggravating feature that was dispositive of the inquiry as to whether thestatutory presumption could be rebutted.Relevant principles[7] Section 128B of the Crimes Act 1961 relevantly provides:128B Sexual violation...6 At [13]. See Crimes Act 1961, s 128B(2).(2) A person convicted of sexual violation must be sentenced toimprisonment unless, having regard to the matters stated insubsection (3), the court thinks that the person should not besentenced to imprisonment.(3) The matters are—(a) the particular circumstances of the person convicted; and(b) the particular circumstances of the offence, including thenature of the conduct constituting it.[8] Section 128B(2) expresses Parliament's intent that imprisonment should beimposed on a person convicted of sexual violation.7 The presumption is a strong onethat overrides the requirements set out in s 16 of the Sentencing Act 2002 that must bemet before imposing a sentence of imprisonment.8 While the court's sentencingdiscretion is preserved where there are "particular circumstances" that may lead it toconclude imprisonment should not be imposed,9 the effect of the provision is not to benegated by giving an artificially strained or extended meaning to that phrase.10The specific reference in s 128B(3)(b) to the nature of the "conduct constituting[the offence]" indicates the court's focus is to be on the nature of the offending whencontemplating a non-custodial sentence.11[9] We accept that, while sexual offending against children is inherently seriousand will generally attract a term of imprisonment,12 subject to the requirements ofs 128B, home detention may be an appropriate outcome depending on thecircumstances of the individual case. This may particularly be so where there has beena considerable lapse of time during which the offender has remained offence-free andled a constructive life.13[10] More generally, where the appeal lies from a refusal by the sentencing court toimpose home detention, the appeal court will not intervene unless there has been a7 R v Donaldson (1997) 14 CRNZ 537 (CA) at 546.8 Neroj v R [2008] NZCA 184 at [14].9 At [14], citing the approach taken in R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [30], relatingto the application of the statutory presumption of imprisonment for class A drug offending unders 6(4) of the Misuse of Drugs Act 1975.10 R v Donaldson, above n 7, at 547.11 At 547.12 Kennedy v R [2011] NZCA 569 at [8]; S (CA465/05) v R CA465/05, 11 April 2006 at [12]; andZZ (CA369/2011) v R [2011] NZCA 662 at [36].13 Parkin v R [2018] NZCA 404 at [43]–[47].material error and it is persuaded a different sentence should be imposed.14When deciding whether to impose home detention the statutory principles andpurposes of sentencing may point in opposing directions, in which case the sentencingjudge will be required to assess whether home detention can adequately respond to theseriousness of the offending.15 In marginal cases it can be difficult to articulate reasonsfor preferring imprisonment over home detention and the margin of appreciationextended to sentencing judges in making the assessment will usually be significant.16Youth[11] Mr Chisnall, on behalf of Mr Hopkins, emphasised the offending involved onecomplainant and occurred on only one discrete occasion. He acknowledged thosefeatures alone may not justify displacement of the presumption of imprisonment thatattaches to sexual violation offending. We accept they are relevant considerations.Importantly, in Mr Chisnall's submission the Judge failed to take into accountMr Hopkins' relative youth at the time of the offending and how that potentially boreon his culpability. Mr Chisnall submitted this led the Judge into error, particularly inthe context of historical offending and Mr Hopkins' subsequent long record of goodconduct.[12] The youth of an offender is a recognised mitigating factor because of theneurological differences between young people and adults that may makeyoung offenders impulsive and more susceptible to negative influences. Those factorscan reduce their culpability. The damaging effect long sentences may have onyoung people and their greater potential for rehabilitation are also recognisedmitigating factors.17 We accept these age-related considerations may extend tooffenders in their mid-20s.18 However, the materiality of an offender's age may varydepending on the circumstances of the particular case and will be a matter ofassessment for the sentencing judge.19 Where an offender's age is towards the14 Criminal Procedure Act 2011, s 250(2).15 Palmer v R [2016] NZCA 541 at [19].16 At [19].17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92].18 At [98]; and Woodstock v R [2020] NZCA 472 at [32]. See also Lawson v Police [2016] NZHC1158 at [32]; R v Cameron [2018] NZHC 2046 at [46]; and R v McKinley [2018] NZHC 601 at[65].19 See generally Sentencing Act 2002, s 9(2)(a).upper end for youthful offending the court's discretion to extend credit for this factormay be more constrained.20[13] Mr Davie, on behalf of the Crown, submitted that a number of theconsiderations that justify a discount for youth are not present. He noted the offendingwas not the product of peer pressure or outside influences and that, as Mr Hopkins isnow a middle-aged man in his 50s, a short term of imprisonment cannot be describedas a crushing sentence in the same way it might have been regarded had he still beena young man. Nor, it was submitted, is imprisonment likely to disproportionatelyimpact his relatively strong and established social position within his family andwider community.[14] Having reviewed Mr Hopkins' situation at the time of this offending, we do notconsider in the circumstances of this case the Judge was obliged to recogniseMr Hopkins' age at the time of the offending as a mitigating factor, nor do we considerthat factor has substantive bearing on whether his prison term should be commuted toa sentence of home detention.[15] There was a significant age difference between the four/five-year-oldcomplainant and Mr Hopkins, who was a grown man at the time of the offending.Mr Hopkins was in a long-term relationship with the child's mother and living in thesame household with the child who was essentially in his care. Unlike in some caseswhere young persons have offended against other younger members of their extendedfamily or social circle, Mr Hopkins was in an established relationship with thecomplainant's mother. As he himself accepted at trial, he had a level of responsibilityover the child and was effectively a role model to him.Good record since the offending[16] We do not consider the Judge failed to take into account the long passage oftime since the offending and Mr Hopkins' record of good character developed overthat period. The Judge addressed this aspect of Mr Hopkins' personal circumstances20 See Bennett v R [2012] NZCA 173 at [23]; McRae v R [2013] NZCA 75 at [23]; Maihi v R [2013]NZCA 69 at [16]; and Martin v R [2016] NZCA 213 at [13].when he acknowledged the good life he had subsequently led, that he is held in highregard by members of his family, associates and friends, and is regarded as a goodemployee. The Judge acknowledged Mr Hopkins was entitled to considerable creditfor the way he has participated in his community and lived his life.21[17] This important consideration was canvassed by the Judge when calculating theappropriate term of imprisonment.22 However, the Judge also referenced this factorwhen assessing whether it was sufficiently compelling to overcome the presumptionof imprisonment.23 In doing so, the Judge acknowledged it was unnecessary to imposeany particular sentence for the purpose of specific deterrence.[18] We do not therefore consider the Judge failed to adequately address thissignificant mitigating feature. The more acute questions are whether the Judge fellinto error by declining to commute the sentence of imprisonment to one ofhome detention and depart from a presumptive sentence of imprisonment despite thestrength of this personal mitigating feature, and whether too much weight was givento Mr Hopkins' failure to acknowledge his wrongdoing in reaching that decision.The absence of acceptance of responsibility[19] Mr Chisnall argued the Judge failed to give adequate weight to the passage oftime that demonstrated Mr Hopkins' low risk of re-offending. In his submission,this factor should have decisively informed the Court's decision. If the Judge hadcorrectly assessed the significance of Mr Hopkins' credible record of positivecommunity involvement and effective rehabilitation, he ought to have found thestatutory presumption of imprisonment had been rebutted and imposed a sentence ofhome detention.[20] Mr Chisnall submitted the Judge essentially disqualified Mr Hopkins fromreceiving a non-custodial sentence because Mr Hopkins refused to admit his guilt.It was argued the Judge treated Mr Hopkins' refusal to admit guilt as an aggravatingfeature despite the illegitimacy of such an approach and this resulted in Mr Hopkins21 R v Hopkins, above n 1, at [7].22 At [9] and [11]–[12].23 At [15].being punished for exercising his right to defend the charges.24 Mr Chisnallmaintained this was the sole reason articulated by the Judge as to why the presumptionin favour of imprisonment was not displaced and was determinative of the Judge'sassessment.[21] We do not accept this analysis of the Judge's approach to whether thepresumption in favour of imprisonment was displaced. A number of applicablesentencing purposes, other than considerations of individual deterrence and thepromotion of Mr Hopkins' rehabilitation were required to be taken into account. Theseincluded the need to hold him accountable for the harm done to the complainant andthe community,25 to promote in him a sense of responsibility for, andacknowledgement of, that harm26 and to provide for the interests of the complainant.27[22] While an offender is entitled to credit for curbing their predilections andleading a constructive life, it needs to be borne in mind that the impact on thecomplainant of Mr Hopkins' offending has been profound. While Mr Hopkins hasmoved on to experience a productive and enjoyable life, the complainant's has beenblighted by the emotional harm that resulted from him being sexually abused byMr Hopkins. It is relevant to observe that an integral element of sexual offendingagainst children is the offender's confidence that the child will not disclose the sexualabuse and it is common for complainants to be unable to disclose offending againstthem until they are adults, after the passage of many years. That delay does not dilutethe seriousness of the offending, nor the impact on the complainant from beingsexually violated as a young child.[23] In addressing whether Mr Hopkins had rebutted the presumption ofimprisonment, the Judge observed that, unlike some cases where offenders hadaccepted responsibility and sought to atone for their offending, there was nothing ofthat nature present in Mr Hopkins' case.28 Mr Hopkins was entitled to make assertionsof innocence without penalty and we are satisfied that he was not penalised for24 R v Miers (1994) 11 CRNZ 307 (CA) at 313.25 Sentencing Act, s 7(1)(a).26 Section 7(1)(b).27 Section 7(1)(c).28 R v Hopkins, above n 1, at [15].doing so. The Judge's comments simply reflected the fact that where a defendant hasadmitted the offending, there may be less need to give effect to the sentencingobjectives of holding an offender to account and promoting in them a sense ofresponsibility. In other words, Mr Hopkins was not penalised for his position but norwas there a basis for any reduction that might otherwise have been made to recognisethat those sentencing objectives have been satisfied.[24] The Judge, in addressing himself to whether there were particularcircumstances that allowed the presumption of imprisonment for sexual violation tobe rebutted, expressly considered whether the passage of time since the offending andthe absence of further convictions permitted him to impose a sentence less thanimprisonment. In doing so, the Judge also had regard to the traumatic effect of theoffending on the complainant and other relevant factors that we have reviewed. We donot consider the Judge's approach to his assessment contained any material error.[25] Mr Chisnall sought to rely on various sentencing authorities that involved theimposition of home detention for sexual offending against children, including someHigh Court decisions where the statutory presumption of imprisonment for sexualviolation had been considered.29 We acknowledge home detention has been imposedin some cases for serious sexual offending where the offending occurred when theoffender was young and had good prospects of rehabilitation or had turned their lifearound. However, each case will inevitably depend on their particular circumstancesand we note the decisions of this Court cited to us, while involving sexual offendingagainst children, did not concern offenders convicted of sexual violation.30[26] The High Court decisions relied upon do not assist. In A v R the offenderpleaded guilty and expressed remorse.31 His complainant, to whom the offender wasmarried, requested he be afforded leniency. Solicitor-General v Rawat involved anunsuccessful Solicitor-General's appeal against a sentence of home detention.32The Judge on appeal described the sentence as being on the cusp of being inadequate,29 A v R [2018] NZHC 543; and Solicitor-General v Rawat [2021] NZHC 2129.30 H (CA36/2012) v R [2012] NZCA 33; Parkin v R, above n 13; and Kennedy v R, above n 12.31 A v R, above n 29.32 Solicitor-General v Rawat, above n 29.it having been imposed by the "narrowest of margins".33 The offender had pleadedguilty, expressed remorse, and imprisonment would have harmed a young familymember. Other cases referred to us involved either offenders with diminishedculpability as a result of intellectual disability and/or a less significant age differencebetween a teenage complainant and an older offender.34 These cases do not indicatethe Judge's approach in this case was wrong.Result[27] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent33 At [60].34 See, for example, Asiata v R [2020] NZCA 53.