W v POLICE [2021] NZHC 485

W v POLICE [2021] NZHC 485 [12 March 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-267[2021] NZHC 485BETWEEN WAppellantAND NEW ZEALAND POLICERespondentHearing: 2 March 2021Counsel: R Brown for AppellantD B Stevens and M Djurich for RespondentJudgment: 12 March 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 12 March 2021 at 2:30 pmRegistrar/Deputy RegistrarSolicitors:Public Defence Service (Manukau) for AppellantKayes Fletcher Walker (Manukau) for RespondentIntroduction[1] Mr W appeals against the decision of Judge S Patel on 5 June 20201 to placehim on the Child Sex Offender Register.2Background[2] Mr W, who was then 46 years old, became intoxicated and entered a bedroomat the house in which he was residing which was occupied by PW, then aged 16 years,and AW, then aged 15 years. They were asleep. Mr W indecently assaulted PW bykissing her on her forehead. He then went to AW's bed and indecently assaulted herby touching her on her buttock with his hand. This occurred on 9 March 2018.[3] On 22 January 2019, Judge Patel gave Mr W a sentence indication on the twocharges of indecent assault. The indication was 10 months' imprisonment. JudgePatel left open the issues of whether the indicated sentence might be commuted to asentence involving electronic monitoring and whether he would be entered on theChild Sex Offender Register.[4] Mr W accepted the sentence indication and pleaded guilty to both charges on22 January 2019. Judge Patel delivered his sentence on 5 June 2020. By that timeMr W had been remanded in custody for over six months. The Judge noted that hehad spent more time in custody than he would have served had he been sentenced to10 months' imprisonment in accordance with the sentence indication. The Judge didnot consider that a sentence of imprisonment was warranted and imposed a sentenceof 12 months' supervision with a special condition that Mr W undergo suchcounselling as recommended by a probation officer.[5] Judge Patel then turned his attention to whether Mr W should be made subjectto a registration order under the Child Protection (Child Sex Offender GovernmentAgency Registration) Act 2016 ("the Act"). Had a sentence of imprisonment beenimposed, then registration would have been automatic.3 Because the Judge had1 R v [W] [2020] NZDC 10284.2 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(b).3 Section 7(1)(a).imposed a non-custodial sentence he had to decide whether he should make aregistration order against Mr W taking into account the matters set out in s 9 of theAct.[6] Judge Patel said that the problematic aspect for Mr W was that according tothe pre-sentence reports Mr W did not accept he was a sexual offender and refused toengage in rehabilitative sexual offending programmes. Mr W blamed his intoxicationfor his offending. In the pre-sentence report of 4 May 2020, Mr W was assessed asposing a high risk of re-offending.[7] The Judge went through the criteria set out at s 9(3) of the Act. He did so onthe mistaken basis that both of the charges of indecent assault were qualifying offencesfor the purposes of the Act. However, only the charge in respect of AW was aqualifying offence because PW was 16 years old at the time and the Act applies onlywhere the victim is under 16 years of age.[8] In short, although the Judge acknowledged the offending as being at the leastserious end of the indecent assault spectrum, Mr W's refusal to acknowledge that heis a sex offender and his refusal of rehabilitative treatment justified the making of aregistration order.The appeal[9] The appeal is brought on the basis that the Judge erred in his assessment thatMr W poses a continued risk to the safety of children which means that he should bethe subject of a registration order. The submission is that the Judge did not properlytake account of the matters set out in s 9 of the Act:9 Court may make registration order(1) If a court imposes on a person a non-custodial sentence in respect ofa conviction for a qualifying offence, the court may order that theperson must be placed on the register and must comply with thereporting obligations of this Act.(1A) For the purposes of subsection (1), the date on which the person wascharged with the offence is irrelevant.(2) A court may make an order under this section (a registration order)only if the court is satisfied that the person poses a risk to the lives orsexual safety of 1 or more children, or of children generally.(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.(4) A registration order is made at the time of sentencing and is a sentencefor the purposes of Part 6 of the Criminal Procedure Act 2011(appeals).(5) However, for the purposes of section 31 of the Sentencing Act 2002(general requirement to give reasons), a registration order is an othermeans of dealing with the offender.(6) The provisions of subparts 4 and 12 of Part 6 of the CriminalProcedure Act 2011, so far as they are applicable and with thenecessary modifications, apply to an appeal in respect of a registrationorder.[10] The Supreme Court, very recently, has considered the assessment requiredunder s 9 of the Act.4 The case provides a conceptual framework which I will applyto Mr W's case. For Mr W to be subject to a registration order I must first be satisfiedthat he poses a real or genuine risk to the life or sexual safety of a child or children4 D (SC 31/2019) v Police [2021] NZSC 2.generally. Second, I must be satisfied that this risk is of sufficient gravity to justifythe making of a registration order.5Does Mr W pose a real or genuine risk?[11] I have considered the s 9(3) matters. The pertinent factors are: the seriousnessof the qualifying offence6 (at the lower end of indecent assault); the age of the victim7(less than a year from the age limit beyond which the Act does not apply); the writtenassessment of Mr W's risk8 (a high risk, according to the pre-sentence report dated4 May 2020); another relevant matter9 being Mr W's refusal to acknowledge he has aproblem with sexual offending.[12] The appellant has filed a formal statement by Dr Street, a consultant forensicpsychiatrist. The doctor's conclusions are:42. Based on Mr [W's] presentation and history provided, as well as thesupplementary information from the various interviews and Police reports andanalysis of his SVR-20, he has a moderate likelihood of engaging in futuresexual violence if no efforts are made to manage his risk.43. The primary scenario for future offending would likely involveintoxication and a person of the vulnerable population, such as child, low IQor otherwise compromised. However, intervention could significantly reducethe risk for any reoffending, including sexual offending. Sustained efforts atsobriety, with regular engagement in drug and alcohol counselling, or supportgroup, could greatly reduce his risk for recidivism.[13] I find that Dr Street's conclusions reinforce the decision made by Judge Patelthat Mr W's refusal to take responsibility for his offending and to undergo treatmenttake him within the s 9(2) criterion.[14] I note that in D v Police, the Supreme Court considered that the phrase "a realor genuine risk" does not require a high risk, but simply a not insubstantial one.10 On5 This position was endorsed by Winkelmann CJ and Glazebrook and O'Regan JJ. William Youngand Ellen France JJ dissented, suggesting that the second stage was superfluous in the context ofoffending in which the offender was sentenced to home detention.6 Section 9(3)(a).7 Section 9(3)(e).8 Section 9(3)(g).9 Section 9(3)(j).10 Per O'Regan J at [128], writing for himself and Winkelmann CJ. Again, the other Judges agreedwith the exception of Ellen France J.this basis, I am satisfied that Mr W poses a real or genuine risk to the sexual safety ofchildren generally.Is the risk that Mr W poses sufficiently grave to justify the making of a registrationorder?[15] Section 16 of the Act provides that a person subject to a registration order mustreport certain information. Section 18 provides that they must update this informationperiodically, and s 35 provides that Mr W would be on the register for eight years.Relevantly to this case, Mr W would be obliged to report his address (at (d)), theparticulars of any child generally residing in his household (at (e)), and details of hisaffiliation with any club or organisation with child participation (at (i)). Any travelplans must also be reported (at s 22).[16] I consider that these elements have a substantial connection to reducing therisk that Mr W might reoffend. Dr Street observes that the primary risk of reoffendingwould involve intoxication and the presence of children or otherwise vulnerablepersons. The provisions in the Act I have cited would go some way to preventing thiscontact.[17] In D v Police, the offender possessed a large number of pornographic imagesof children. He also produced a pornographic video showing himself and two otheradults. Winkelmann CJ and O'Regan J considered that this was not of sufficientgravity to justify the making of a registration order. Glazebrook and William Young JJconsidered it serious enough, and the provisions in s 16 of the Act relevant enough, tojustify the making of a registration order. Ellen France J did not discuss this point.O'Regan J, writing for himself and the Chief Justice, emphasised that D's offendingwas non-contact, and focused on the probability of his offending escalating to involvecontact with children. Mr W's relevant offending involved contact with a 15 year oldgirl, and in that respect is more serious than that in D v Police. It is, however, lessserious in duration and frequency. I consider that despite being at the lower end of thespectrum of indecent assault, Mr W's offending is still of moderate seriousness.[18] Mr W's refusal to take responsibility for his offending and his refusal toundergo treatment goes also to the seriousness of the risk he poses. Just as takingresponsibility for one's wrongdoing can indicate reduced risk, so too can refusing totake responsibility for it signify increased risk.11 Treatment, too, can often reduce therisk of reoffending substantially, as recognised by the Supreme Court in D v Police.12[19] I conclude that the risk Mr W poses is sufficiently grave to justify the makingof a registration order.Decision[20] It follows that I agree with Judge Patel's decision.[21] The appeal is dismissed.________________________________Brewer J11 Pauling v R [2019] NZHC 1929 at [42].12 Such as at [135].