T v R [2018] NZHC 3274

T v R [2018] NZHC 3274 [12 December 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2018-443-31[2018] NZHC 3274BETWEEN TAppellantAND THE QUEENRespondentHearing: 6 December 2018Counsel: J C Hannam for AppellantR K Thomson for RespondentJudgment: 12 December 2018JUDGMENT OF THOMAS J[1] The appellant, Mr T, was sentenced in the District Court to 21 months'imprisonment following his guilty pleas to two charges of doing an indecent act on achild under 12.1 Mr T takes no issue with the length of the sentence but appeals againstthe decision declining to substitute it for a sentence of home detention. He does so onthe basis the Judge placed too much weight on a psychiatric report and insufficientweight on the principle of imposing the least restrictive outcome.1 R v T [2018] NZDC 24058.Factual background[2] In mid-2016, Mr T's daughter disclosed incidents of sexual offending againsther which had occurred in 2008–2009, when she was aged between six and seven yearsold and Mr T was 25. She initially disclosed two incidents of offending, with anotheralleged incident giving rise to a charge of unlawful sexual connection. The lattercharge was dropped when Mr T pleaded guilty to the two indecent act chargesstemming from an earlier incident.[3] At the time, Mr T, his wife and their seven children lived on a farm in the SouthIsland. Mr T and his wife alternated between farm work and looking after the children.Sometime in 2008–2009, Mr T told his daughter to go into his bedroom. When shedid, he took off his pants and began to play with himself. He took her pants off andtouched her vagina with his hand. He then rubbed his penis against her body. He toldher not to tell her mother.[4] When questioned by the police following the victim's disclosure, Mr T deniedthe offending.[5] Two pre-sentence reports were prepared. The first recorded that Mr T acceptedhis offending and expressed limited remorse and a desire to make amends to hisdaughter. It concluded there were no identified impediments to his ability to complywith a community-based sentence but recommended imprisonment due to the lack ofa suitable address. The second report recorded Mr T's changed position that he didnot recall the offending. The report writer considered this compromised his suitabilityfor rehabilitative interventions. It noted stressors in Mr T's life at the time, as well ashis use of cannabis. It assessed Mr T as at a low risk of re-offending but with a highrisk of harm to others due to the long-term effects of sexual offending. Although theaddress for home detention was assessed as technically suitable, the report writerraised concerns that the address was within 15 metres of a local park and 500 metresof a dance school. The report writer acknowledged the difficulty in assessing Mr T'slikelihood of offending against non-familial children and that there had been noreported incidents during the several months Mr T was at the address while on bail.The report writer recommended imprisonment, noting imprisonment would result inMr T automatically being placed on the Child Sex Offender Register, whereasregistration would be at the Court's discretion if Mr T were sentenced to acommunity-based sentence.[6] A report pursuant to ss 38(1) and 38(2)(a) of the Criminal Procedure (MentallyImpaired Persons) Act 2003 was called for to address sentencing options and the riskof re-offending. Dr McCarthy reported that Mr T was late for his appointment, havingto be telephoned by Corrections to ensure his attendance. The appointment proceededby way of AVL due to Mr T being in Hawera and Dr McCarthy in New Plymouth.Mr T said he had thought the appointment was for the following week. Mr T reportedthat he did not have any sexual preference for children, did not have a history of beinga victim of sexual abuse and did not totally agree with the summary of facts of hisoffending. He said he would consider a treatment programme, but did not know if itwould help, did not know what it would involve and did not consider himself a sexoffender. Dr McCarthy recorded that the denial of offending, unwillingness to engagein assessment or treatment, unemployment and lack of a stable relationship were allrisk factors present in Mr T's case. She considered his victims were likely to be younggirls within his family and that, when under stress from other unknown circumstancesin the future, Mr T might be at risk of offending against non-familial children orchildren of different ages. Without addressing home detention, Dr McCarthy agreedwith the pre-sentence report recommendation of imprisonment and recommendedattendance at a child sex offender treatment programme.[7] A restorative justice meeting was held after Mr T's meetings with the probationofficer and psychiatrist. It was attended by Mr T and his mother in support, the victimand her aunt in support, and facilitators. Mr T explained the stressors affecting himand the family at the time, and acknowledged the harm he caused his daughter. Heexplained that he did not recall the actual events and that he had pleaded guilty toavoid a trial where he considered it would be hard for him to be heard and moredifficult for everyone, including his daughter and other children, who would have togive evidence. His daughter then described the impact of the offending on her,including her fear for her younger siblings, the effect on her relationship with hermother and her loss of a relationship with her grandmother, Mr T's mother. Mr T'smother spoke of her regret at not staying in contact and indicated her love and supportfor Mr T's daughter.[8] By way of outcomes from the meeting, Mr T indicated he was willing to seektreatment and that he wanted to find out why it had happened and why he could notremember it. He was willing to share this information with his daughter, who was alsokeen to hear it. Mr T's mother committed to making sure she was available for Mr T'ssupervised visits of the other children. His daughter indicated she wished to resumecontact with Mr T's mother but she wished to take it slowly with Mr T. She felt it wasimportant for the family to be together on special occasions but asked Mr T to berespectful of her need for space.[9] In her victim impact statement, the daughter records that her relationship withMr T went downhill when she realised what had happened to her. She is angry andbattled for a long time to understand why. In a later formal statement to the police,the daughter expresses a wish that Mr T not receive home detention but is happy toaccept whatever punishment the Courts see fit. She considers home detention wouldbe insufficient punishment because it is not dissimilar to his current lifestyle.[10] Mr T left the South Island some time ago and found employment at a meatworks but at the time of sentencing was no longer employed. Prior to sentencing hewas on bail at his mother's address.[11] Mr T has a limited criminal history consisting of theft and driving offences.District Court decision[12] In sentencing Mr T, the Judge outlined the offending and the reports notedabove. He noted the s 38 report's comments on Mr T's negative attitude, hisquestioning of whether treatment programmes would be of assistance to him and hislack of motivation based on his near non-attendance for assessment. He recordedMr T's attendance at restorative justice, that it was a relatively successful conferenceand that Mr T was willing to engage in counselling.[13] The Judge likened the offending to that in R v M, where a 20 monthimprisonment end sentence was not commuted to home detention due to theseriousness of the offending. He distinguished it from R v Lewis, where a three yearsentence was imposed for more serious offending. He recorded (and implicitlyaccepted) the Crown's submission as to the aggravating factors of the offending as:(a) premeditation in seizing an opportunity where other family memberswere not present;(b) vulnerability of the victim due to age;(c) considerable harm and breach of trust;(d) degree of violation; and(e) her defencelessness, the psychological harm and breach of trust.[14] The Judge took a starting point of two years and six months' imprisonment.He deducted two months for restorative justice (6.7 per cent), and 25 per cent for guiltypleas. That resulted in a sentence of 21 months' imprisonment.[15] Addressing defence submissions that home detention ought to be imposed, theJudge stated:[18] The question that I need to turn my mind to is whether or not homedetention is appropriate. I note that the Crown say it is not appropriate, theprobation report does not regard it as appropriate, the psychologist's reportconfirms the probation recommendation that it is not appropriate, but the enddecision is mine.[19] The Court must ensure that the purposes of denunciation anddeterrence are met. When dealing with serious offending, imprisonment maybe necessary to reflect adequately the need to denounce your actions and todeter others. In my view, this is serious offending and home detention is notappropriate, and accordingly you are sentenced to 21 months' imprisonment.[16] Due to the sentence being one of imprisonment, the Judge noted Mr T wouldbe placed on the Child Sex Offender Register.Submissions[17] Mr Hannam, for Mr T, submitted the Judge erred in his assessment of homedetention, namely by:(a) giving too much weight to the s 38 report of Dr McCarthy; and(b) giving insufficient consideration to the principle of imposing the leastrestrictive outcome that is appropriate in the circumstances.2[18] With respect to the first matter, Mr Hannam submitted that becauseDr McCarthy did not mention home detention in her substantive assessment, her reportcannot be said to have given due consideration to home detention as an option. Healso queried her conclusion on motivation, explaining that Mr T's near non-attendancewas the result of mis-recording the date on his calendar and thus not necessarily relatedto his motivation. He submitted the report did not address home detention in abalanced fashion and therefore it ought not to have been relied on.[19] On the second matter, Mr Hannam submitted it is not inevitable for child sexoffending to result in imprisonment. He submitted home dentition is available andappropriate in circumstances where responsibility has been accepted, the offending ishistoric, no further offending has been alleged, and a restorative justice process wassuccessfully undertaken. Furthermore, Mr Hannam contended the Judge incorrectlyinterpreted Mr T's comments as a denial of the offending and took that into account inassessing the seriousness of the offending.[20] Ms Thomson for the Crown submitted there was no error in the decision andnoted appellate courts have expressed reluctance to otherwise interfere with thediscretion involved.3 She submitted the Judge referred to the opinions of report writersregarding home detention but expressly stated the decision was his to make. Shesubmitted the Judge was entitled to take into account denials of the offending (orclaims of being unable to remember it) because it hinders effective rehabilitation.2 Sentencing Act 2002, s 8(g).3 R v D [2008] NZCA 254 at [66]; and Polyanszky v R [2011] NZCA 4 at [12]–[16].Furthermore, she submitted the Judge was entitled to view the offending as of suchseriousness to mean home detention was inappropriate.Law[21] Section 250 of the Criminal Procedure Act 2011 applies. In discussing thedecision to commute a sentence of imprisonment to home detention, the Court ofAppeal in Palmer v R said:4[17] Under s 250 of the Criminal Procedure Act 2011 a first appeal courtmust allow an appeal if satisfied that for any reason there is an error in thesentence and that a different sentence should be imposed. In Tutakangahau vR this Court examined the standard of appellate review in sentence appealsunder the Act, holding that, as under the former legislation, this standardrequires that the appellant show a material error was made and satisfy theappellate court that a different sentence ought to be imposed. Sentencing isnot a science and an appellate court will not ordinarily interfere unless the endsentence was outside the range available to the sentencing judge. For thatreason it is not an error to describe sentencing decisions as discretionary, solong as it is clear that "discretion" means only that the sentencer enjoys anappropriate margin of appreciation. In Kumar v R the Court explained, citingTutakangahau, that:[81] This Court routinely characterises sentencing decisionsas discretionary in nature. That characterisation recognises thatto reach the end result the sentencing court must balancenumerous and sometimes conflicting considerations, and thatthe range of outcomes within which reasonable disagreement ispossible is frequently wide. Reference to discretion signals thatthis Court is exercising what it considers an appropriate degreeof restraint in the circumstances. The Court's jurisdiction isstatutory and the legislation has long been interpreted to meanthat the Court will intervene only if the sentence is manifestlyexcessive. A degree of restraint and deference to advantages ofthe trial judge is built into that standard, which has its ownsettled criteria: it requires a "material" error, which may be oneof fact; the error may be shown by additional informationsupplied on appeal; the appellate decision ultimately focuses onthe end result rather than the process by which it was reached;and once satisfied that a different sentence should have beenimposed, this Court will normally substitute its own opinion forthat of the sentencing judge.[18] The standard of appellate review adopted in Tutakangahau applies todecisions not to commute imprisonment to home detention as it does to anyother sentence. [19] As William Young P pointed out in R v Vhavha, there is nothing inthe Sentencing Act 2002 to suggest a presumption for or against commutation,4 Palmer v R [2016] NZCA 541 (citations omitted).either generally or for particular types of offence. The decision calls for thecase by case exercise of judgment against the statutory principles and purposesof sentencing. Those principles and purposes sometimes point, as here, inopposing directions, meaning that the sentencing judge is called upon to assesswhether home detention can respond adequately to the seriousness of theoffending. As the Court explained in R v D (CA253/2008), it can be verydifficult in a marginal case to articulate reasons for preferring one approach toanother. In consequence, the margin of appreciation extended to sentencingjudges is usually significant.AnalysisSection 38 report and rehabilitation[22] I am not persuaded that the Judge relied on the s 38 report and Dr McCarthy'sconclusions regarding home detention to the extent that there was a material error.The Judge discussed the various reports prepared for the purposes of sentencing. Herecorded what the psychiatrist had to say. He also recorded the outcome of therestorative justice process. What the Judge did not do, however, was attempt toreconcile the different comments regarding Mt T's willingness to undergorehabilitation.[23] Although there is a measure of self-interest apparent in the restorative justicereport, Mr T's engagement with that process makes clear he desires to address hisoffending in a way which can mend the damage he has done to his daughter. Thematters on his mind when pleading guilty were focused on the effects of a trial on himand his daughter, along with everyone else. He has indicated willingness to attendcounselling in order to understand why he did it and why he does not remember theoffending, and to share the outcomes of that counselling with his daughter. Thosefeatures of this case do not indicate someone who is lacking an inclination to engagewith rehabilitation.[24] Mr T's comments to Dr McCarthy querying the efficacy of such programmes,in the context of being unable to recall the offending, indicate a person struggling withthat inability rather than necessarily someone refusing to undergo any treatment.Importantly, the restorative justice meeting took place after Mr T's meeting withDr McCarthy.[25] Mr T has, particularly in the later restorative justice meeting, demonstrated awillingness to engage with rehabilitation to a degree which ought to have weighed inhis favour in the assessment of home detention.Least restrictive sentence[26] The Court of Appeal in Fairbrother v R stated:5[29] Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing judge hasassumed that the offence category lies beyond a sentence of home detention.The other is where the purpose of deterrence has been given complete prioritywithout regard to any of the countervailing purposes of sentence.[30] That does not mean that a short-term period of imprisonment mustalways be commuted to a sentence of home detention. That equally would bean error of law. What it does mean is that the judge must make a consideredand principled choice between the two forms of sentence, recognising thatboth serve the principles of denunciation and deterrence, and identifyingwhich of them better qualifies as the least restrictive sentence to impose takinginto account all the purposes of sentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other". Even in those cases, however, the choice must beintelligible. The factors that really count must be identified and weighed.[32] As this case involved sexual abuse of a child the Judge was obliged toconsider carefully the appropriateness of a sentence of home detention.Because, as this Court said in Kennedy v R:All sentences that are potentially in the range should beconsidered on their merits, although it will be recognised thatthe likely sentencing outcome for sexual offending againstchildren is imprisonment.[27] In the case of Metua v R,6 the High Court considered the sentencing Judge'sassessment, which was as follows:7The 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.5 Fairbrother v R [2013] NZCA 340 (citations omitted).6 Metua v R [2018] NZHC 246.7 R v Metua DC Auckland CRI-2017-004-003725, 20 July 2017, at [13].[28] Hinton J found that assessment wanting:[14] This approach did not fairly amount to a balancing exercise betweenimprisonment and home detention. It came perilously close to treating theoption of home detention as precluded due to the nature of the charge. It gavepriority to the principles of denunciation and deterrence withoutacknowledging those principles can also be served by a sentence of homedetention in appropriate cases, and without having regard to the countervailingpurposes of sentence. This amounted to an error in the Judge's approach.[29] I consider a similar criticism could be made in the present case. The Judge didnot expressly acknowledge or address either s 8(g) of the Sentencing Act 2002,regarding the least restrictive outcome, or s 16, regarding the desirability of keepingoffenders in the community and imposing imprisonment only where the purposes ofsentencing cannot be achieved by a sentence other than imprisonment. That is notnecessarily an error, as judges can be fairly assumed to bear these principles in mind.The issue is whether the Judge's analysis demonstrated that approach. I am notpersuaded it did.[30] It is uncontroversial that home detention can be seen to meet the principles ofdeterrence and denunciation,8 something acknowledged by the Judge at sentencing. Itis also uncontroversial that judges will "generally strive to avoid a custodial sentencewhere there is a genuine prospect of rehabilitation".9 Given the key factors pointingaway from home detention in this case appear to be the seriousness of the offendingand the risk of ineffective rehabilitation, both of those matters ought to have beenaddressed by the Judge. Instead he focused on the former, without addressing whetherhome detention could adequately cater to Mr T's rehabilitation needs.[31] I agree with the Judge's comment that this was serious offending. However, Ido not agree with the notion that such seriousness can necessarily dictate whichpurposes and principles of sentencing are paramount in the circumstances of this case.There are few sentence appeals regarding this exact kind of offending which maketheir way to the Court of Appeal on which to draw analogies. Ms Thomson identifiedtwo which she considers comparable to this case, where the Court of Appeal has8 R v Iosefa [2008] NZCA 453 at [41].9 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [22]. It should be noted that thesecomments were made in circumstances of dealing in class A drugs, which is less likely to attractcommunity-based sentences with rehabilitative components.refused home detention. Those cases concerned offenders who had pleaded not guiltyand, in Paora v R, the offender continued to deny outright the offending and wasassessed as at a high level risk of re-offending.10 The circumstances of those casesand the factors which weighed against home detention were therefore different fromthe present case.[32] As to whether Mr T's rehabilitation needs would be adequately met by homedetention, in addition to my comments above, the support Mr T can gain from hismother is also relevant. Her balanced approach to her support of her son whileacknowledging her commitment to supporting her granddaughter is evident in therestorative justice report. Furthermore, home detention can be accompanied byconditions requiring Mr T to attend rehabilitative treatment tailored to his needs. Mr Thas not denied the offending per se but simply states he cannot remember it. He iswilling to attend treatment.[33] An additional factor which may also be relevant in an assessment of whetherto substitute home detention is the effect of being placed on the Child Sex OffenderRegister (the Register).11 Mr T, being convicted of a class two offence, is liable forreporting obligations for 15 years following his release from prison. If Mr T had beensentenced to home detention and made subject to an order placing him on the Register,he would be subject to reporting obligations for eight years. I consider the differencebetween a 15 and eight year reporting period to be significant enough in thecircumstances to warrant consideration in the home detention assessment.[34] I am satisfied a sentence of home detention will protect the community byproviding Mr T with better support to assist him in his rehabilitation. In a case of thisseriousness, I consider home detention when combined with a sentence of communitywork can also meet the purposes of denunciation and deterrence. That is, therefore,the least restrictive sentence that will satisfy the purposes and principles of sentencing.10 Kennedy v R [2011] NZCA 569; and Paora v R [2011] NZCA 472.11 Bird v Police [2017] NZHC 1296 at [44]–[45]. This approach conforms with Bell v R [2017]NZCA 90 at [26]: it is not applying a discount due to the punitive element of the Register whensetting the length of the sentence, rather it is assessing the appropriate type of sentence in all thecircumstances – including the level of risk and the protection of the community. In some cases,consideration of the period of registration may well tell in favour of imprisonment.[35] The proposed address is technically suitable but was flagged as potentiallyproblematic due to being close to a park and a dance school. I note the Judge did notappear to consider the park a matter of great concern, stating it was under-utilised andhe did not see any play equipment in the photographs. I note also that the dance schoolis some distance away. Furthermore, this was Mr T's bail address for quite someperiod without incident. I am satisfied the address is suitable.Placement on the Child Sex Offender Register[36] A person sentenced to imprisonment for qualifying offences is automatically aregisterable offender. A person sentenced to home detention may be ordered to beplaced on the Register if the Court is satisfied he or she poses a risk to the lives orsexual safety of one or more children, or children generally,12 the risk being that posedby a serious child sex offender.13 There is a range of mandatory factors:14(3) For the purpose of assessing the risk posed by the person, the courtmust consider the following matters:(a) the seriousness of the qualifying offence:(b) the period of time that has elapsed since the offence wascommitted:(c) the age of the person:(d) the age of the person at the time of the offence:(e) the age of any victim of the offence at the time of the offence:(f) the difference in age between the victim and the person at thetime of the offence:(g) any written assessment of the risk posed by the person:(h) any submission or evidence from any victim of the offence:(i) any other submission or evidence relating to the risk posed bythe person:(j) any other matter that the court considers relevant.12 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(2).13 Divergence in approach has emerged in the High Court regarding how this is to be assessed,particularly in cases where the starting point is set at a period of imprisonment. The approachadopted here is that of Dobson J in Johnson v Police [2017] NZHC 1718 at [12]–[31], whichI endorsed in Fowler v Police [2017] NZHC 1892 at [20]–[38], as did Lang J in Dayaratne vPolice [2018] NZHC 563 at [15]–[18]. Compare Simon France J in Goose v Police [2017] NZHC2453 [26]–[30].14 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(3).[37] If satisfied there is such a risk, the Court is left with a residual discretion toundertake a proportionality test as to whether the risk identified will be mitigated byregistration.[38] To take the mandatory factors in turn:(a) The offending was serious but not egregious in that it was notaccompanied by violence. It was, however, in the context of asignificant breach of trust, accompanied by instructing the victim notto tell her mother.(b) The offending took place nine years ago and no further allegations havearisen.(c) It was against a six or seven year old child, Mr T's daughter.(d) Mr T was 25 at the time, and is 35 now.(e) There was clearly a significant age gap.(f) The appellant's risk of re-offending was assessed as low in thepre-sentence report but with high risk of harm. The psychiatristdiscussed the difficulty in predicting future risk and identified riskfactors relevant to Mr T. She concluded, if under stress, Mr T may beat risk of offending against children if the opportunity presented.(g) The victim does not comment on whether she wishes Mr T to be placedon the Register.[39] It is relevant to the assessment that Mr T has engaged in restorative justice andclearly has considerable support from his mother. Furthermore, I accept the one-offnature of the offending and time since it occurred. However, the circumstances of theoffending, the age of the child, the significant abuse of trust and implicit threatsassociated with the behaviour lead me to conclude that the risk posed to the sexualsafety of one or more children does reach that of a serious child sex offender. I amsatisfied that the risk identified will be mitigated by registration. Placement on theRegister is therefore appropriate.Conclusion[40] For the reasons given, I am satisfied the Judge erred in his analysis of homedetention and that, on a fresh analysis, home detention is appropriate. I am alsosatisfied Mr T should be placed on the Register.[41] The sentence of imprisonment is therefore quashed and replaced by a sentenceof 10 months' home detention at the address referred to in the pre-sentence report. Thehome detention sentence will be subject to the standard and proposed specialconditions and post-detention conditions, post-detention conditions to apply12 months from detention end date.[42] Mr T is also sentenced to 150 hours of community work.[43] Mr T is to be placed on the Child Sex Offender Register.Thomas JSolicitors:Hannam and Co, New Plymouth for AppellantCrown Law, Wellington for Respondent