PARKIN v R [2018] NZCA 404

PARKIN v R [2018] NZCA 404 [5 October 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA290/2018[2018] NZCA 404BETWEEN WILLIAM ARTHUR PARKINAppellantAND THE QUEENRespondentHearing: 4 September 2018Court: Brown, Duffy and Peters JJCounsel: A M Harvey for AppellantM H Cooke for RespondentJudgment: 5 October 2018 at 12.30 pmJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentences of 20 months' imprisonment are quashed.C Sentences of four months' home detention for each charge are imposed.The second sentence is to be served concurrently with the first.D The appellant is also ordered to undertake 400 hours of community work.REASONS OF THE COURT(Given by Peters J)[1] Following a jury trial before Judge Ronayne in the District Court at Auckland,the appellant was convicted of two charges of indecent assault on a girl aged between12 and 16 years.1[2] In May 2018, the Judge sentenced the appellant to one year and eight months'imprisonment on each charge, to be served concurrently.2 The Judge declined toimpose a sentence of home detention.[3] Originally the appellant appealed both conviction and sentence. The appeal isnow against sentence only, on the grounds that it is manifestly excessive, both in termsof the end sentence and the Judge's refusal of home detention.[4] Counsel for the appellant, Mr Harvey, does not dispute the Judge's startingpoint of 22 months' imprisonment. He submitted, however, that the appellant wasentitled to a greater discount for good character and the lapse in time, being 37 years,since the offending. The Judge gave a two-month discount for these matters.3Mr Harvey submitted the discount should be at least six months. Mr Harvey alsosubmitted to us that an additional "month or two" should be given for theconsequences of the appellant's public "fall from grace".[5] Mr Harvey also submitted that the Judge erred in declining to impose asentence of home detention.Background[6] The appellant committed the offences between 14 May 1980 and 28 August1981. He was aged 28 or 29 at the time of the offending, and the complainant 11 or12.[7] The complainant, a young relative of the appellant's then wife, had stayedovernight at the appellant's house. The first charge arose from the appellant lying1 Crimes Act 1961, s 134(2)(a), since replaced by s 7 of the Crimes Amendment Act 2005.2 R v Parkin [2018] NZDC 10598 [Sentencing Notes].3 At [21].behind the complainant on a couch, putting his hand inside her pyjama top andfondling her chest around her nipples. He then caressed her inner thighs and vagina.[8] In relation to the second charge, the appellant was sitting at the dining table inhis house as the complainant passed by to get a glass of water. He exposed his erectpenis to her and made her sit on his thigh. He took her hands and made her stroke hispenis several times. The complainant gave evidence that the appellant then said, "I'msorry".[9] The complainant made no immediate complaint. In about 1992 she disclosedthe incident to her mother, who contacted the police, but the complainant did not wishthe appellant to be prosecuted because she was very fond of his wife, and thought itmight bring an end to the marriage. At a later date, possibly in the mid 1990s, thecomplainant confronted the appellant directly about the incident. The appellantapologised to the complainant and later that day informed his wife of the matter.[10] The appellant's daughter learned of the allegations following her parents'separation in 2007, and she reported the matter to the police in 2016, after havingchildren of her own.[11] At the time of the trial, the appellant was aged 66 and the complainant 49. Theappellant gave evidence in his defence. In relation to the first charge, the appellantsaid he had been watching TV with the complainant on the couch when he put his handon the complainant's stomach while he thanked her for babysitting.[12] As to the second charge, the appellant acknowledged lesser offending than thatalleged. His evidence was that the complainant saw he had an erection while he wassitting at the dining table, which he "for some stupid reason which I'm ashamed of",asked her to hold. He gave evidence that she did not do so, pulled away, and that heapologised to her immediately. An alternative charge was included in the Crowncharge notice to reflect this. Plainly, however, the jury did not accept the appellant'sevidence on either incident.Discount for good character and lapse in time[13] The Judge accepted that the appellant's good character was a mitigating factorthat he was required to take into account in sentencing.4 The issue before us is whetherthe Judge erred in not granting a greater discount for this factor.[14] In support of his submission for a discount of at least six months, soapproximately 25 per cent, Mr Harvey referred us to four authorities; two of theHigh Court and two of this Court, in which discounts of up to one third of the startingpoint were given.5[15] The gist of the Crown's submission in response was that the two months givenwas sufficient and indeed "generous given Mr Parkin's continued denial of theoffending". The latter is a reference to the appellant's unwillingness to accept thecomplainant's account of events, a matter of which the writer of the provision of adviceto courts (PAC) report and the Judge were highly critical.Discussion[16] This Court's recent decision in Manawaiti v R contains a very useful discussionof the matters to be considered in determining the extent of a discount for previousgood character.6 In considering the point, this Court referred first to a statement byWilliam Young P that credit for good character is "very much a matter of impression"and,7 secondly, to three factual matters that might assist in assessing the appropriatediscount if one is due. These are the length of the period for which the defendant hasexhibited good character, whether the evidence of good character consists of theabsence of convictions or also includes positive contributions to society, and the needfor any discount to be proportionate to the overall sentence.8[17] In this case the appellant has been of good character for 37 years, and theevidence of this comprises both an absence of prior convictions (bar one for careless4 As required by the Sentencing Act 2002, s 9(2)(g).5 R v Moloney HC Christchurch CRI-2003-009-13598, 1 August 2008; R v Carruthers CA401/94,10 April 1995; R v Webb CA13/04, 17 June 2004; and R v R [2015] NZHC 2999.6 Manawaiti v R [2013] NZCA 88.7 At [18], citing William Young P in R v Hockley [2009] NZCA 74 at [32].8 At [19].use of a motor vehicle in 1996) and evidence of numerous positive contributions tosociety. At sentencing, the appellant submitted letters from 70 referees, all of whomindicated that he had told them of the offending. Many of these referees either playedhockey with the appellant or have been coached by him. All refer to the generousmanner in which the appellant has given his time and skill in coaching at all levels ofthe game. Members of his family — siblings, cousins, his partner of many years, andhis son — refer to him as a loyal, caring, good natured and loving family man.Others referred to kindnesses that the appellant has shown them or members of theirfamily when they needed it. We have footnoted excerpts from just a few of the lattercategory to illustrate the point.9[18] Accordingly, there is compelling evidence of good character, exhibited over along time.[19] We turn now to the cases to which counsel have referred us in support of theirrespective submissions. As the Crown suggested, we shall concentrate on those heardbefore this Court.[20] Both Mr Harvey and Crown counsel referred to R v Carruthers.10 This case,decided in 1995 by a panel of five permanent Judges of this Court, needs to be read9 Arthur ... is a caring and considerate team member. When one of our team colleagues recently fellon hard times financially, Arthur was in the forefront of a campaign to assist him to get back onhis feet and contributed very generously himself.Arthur has been a good and loyal friend to me, particularly when my wife died suddenly in 1994,and while I was sick with bowel cancer some fifteen years ago.Arthur ... has many times been a tremendous help to me when things got rough in my own life ...After all of my contact with Arthur, I appreciate him more than just a brother-in law, but as a goodfriend. He ... has assisted us with financial advice for the successful operation of [a charitabletrust] set up to financially assist girls from [a high school] who wish to undertake tertiaryeducation.My 94 year old mother (Arthur's aunty) is senile and suffers from dementia ... Arthur makesregular weekly visits to her, sitting by her side making idle chit-chat with little to no feedback.A ... side of Arthur that will always stay with me was after my wife died of cancer over 8 yearsago. His calls and texts kept coming long after others stopped, and he regularly arranged golf tomake sure I didn't sit around feeling sorry for myself.10 R v Carruthers, above n 5.bearing in mind that it precedes the Sentencing Act 2002 (the Act) and the formulationof current sentencing methodology.[21] The appellant in Carruthers had been sentenced to two years' imprisonmentfor offences of indecency against children committed 13 years prior. The two-yearsentence reflected the appellant's guilty plea, treatment he had sought of his ownvolition, remorse and other matters. On appeal, the appellant argued that he ought alsoto have been given credit for the positive changes he had made in the intervening13-year period.[22] In response, this Court said that a lapse of time will not always be significant,as it may be a product of steps taken by the offender to suppress disclosure or pressurefrom within the very family environment that enabled the commission of the offencein the first place. However the Court then stated:11But where in the years that have intervened the offender has demonstrated thathe has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised. For events have shown that one ofthe objectives of sentencing, deterrence of the specific offender, isunnecessary. The man to be sentenced today is not the same man whocommitted the offences. Moreover, the interests of a new family unit, of otherchildren, may need to be considered.[23] This Court gave a discount of 25 per cent in recognition of those aspects of thecase.12[24] Mr Harvey also referred us to R v Webb, decided shortly after the Act waspassed.13 Following a trial in 2003, Mr Webb was found guilty of four charges ofsexual offending against a young child, committed in 1991. He appealed against bothconviction and his sentence of four years' imprisonment, the latter on the ground thatthe sentencing Judge had declined to give any discount for the good character he haddemonstrated in the intervening years and the interests of his (new) family. This Courtsaid that the Judge had erred in failing to make an allowance for the appellant's good11 At 4–5.12 At 6.13 R v Webb, above n 5.character and the fact he had lived a "worthwhile life" in the intervening period, andreduced the sentence by 25 per cent, to three years.14[25] Crown counsel submitted that it was "notable" that the discount given inCarruthers was in the "context of a guilty plea and voluntary undertaking oftreatment", of which there are neither in the present case. However, nothing in thedecision suggests those matters influenced the size of the discount. On the contrary,the sentencing Judge took those matters into account in arriving at the two-yearsentence. Moreover, as we have said, the same discount was given in Webb, where theCourt was required to determine an appeal against conviction.[26] Crown counsel also referred us to the distinction drawn in Carruthers, betweencases in which the lapse of time between offending and sentence reflects pressurebrought to bear by the offender or the familial environment, and those in which it doesnot. Crown counsel submitted this case was in the former category, and in any eventthat the lack of offending might reflect vigilance on the part of the appellant's wife atthe time, after she learned of what had occurred. We do not accept either submission.The complainant in this case delayed making her complaint for the reasons to whichwe have referred.15 These did not emanate from the appellant or his family. The othersubmission is not only speculative but improbable given the sporting and otheractivities in which the appellant has been involved over the years.[27] Crown counsel also referred us to Britow v R, Botha v R and King v R in supportof her submission that continued protestation of innocence (as in Britow) or lying inthe course of evidence (Botha and King) may extinguish any credit for goodcharacter.16[28] These three cases are quite different from the present and, in our view, notparticularly relevant. The sentencing Judge in Britow had offset the credit otherwisedue for a lack of prior convictions and good character against an aggravating factor.This Court confirmed that was an acceptable approach.17 The Court also indicated14 At [71]–[73].15 See above at [9].16 Britow v R [2017] NZCA 229, Botha v R [2015] NZCA 196; and King v R [2015] NZCA 475.17 Britow v R, above n 16, at [9]–[11].Mr Britow's continued protestations of innocence were material as to whether anydiscount could be justified per se.18 This case is different because there is no disputethat there is substantial evidence of good character. The issue is what was fair by wayof a discount.[29] Botha and King likewise are not on point because this Court did not accept thatthe appellants in those cases were of good character, and as a result s 9(2)(g) simplydid not apply.[30] There is a more general point as to whether it is correct to reduce or temperwhat would otherwise be a fair discount for evidence of good character by an apparentabsence of remorse or a failure to accept without reservation the complainant's accountof the offending. Remorse is a mitigating factor in its own right (s 9(2)(f) of the Act),but its absence is not an aggravating factor.[31] Regardless, given the extent of the evidence of good character adduced by theappellant and the length of time that has elapsed since the offending, we haveconcluded that a two-month discount was well short of what was required.We consider four months is both required and is proportionate to the starting point.[32] We do not propose to consider Mr Harvey's submission that the appellant'spublic fall from grace should attract a further discount. The Judge's sentencing notesdo not refer to a submission for such a discount, so it may be that it was not raisedwith him. In addition, as we have just said, a discount must be proportionate and weconsider four months is the most that can be allowed.Home detention[33] In considering whether to impose a sentence of home detention instead ofimprisonment, the Judge had regard to the following matters.18 At [12].[34] First, the Judge referred to Willcocks v Police, a decision of the High Court inwhich Venning J said "prison terms are normally imposed in the case of sexualoffending against children".19[35] Secondly, the Judge referred to the need to denounce and deter sexualoffending against children, and to hold the appellant accountable and responsible forhis actions, absent which the Judge considered the "prospects of rehabilitation for youare academic".20[36] Thirdly, the Judge referred to the PAC report and its recommendation ofimprisonment.21[37] Fourthly, the Judge referred to ss 15A and 16 of the Act, and the desirability ofkeeping offenders in the community if possible.22[38] Ultimately, the Judge said he had decided against home detention because theoffending was serious; because of its aggravating features – premeditation, thevulnerability of and harm to the complainant, the fact that the offending had occurredtwice, the abuse of trust and the degree of violation; and because of the matters referredto in [35] above.23[39] Section 15A, to which the Judge referred, permits the imposition of a sentenceof home detention only if the purpose for which sentence is imposed cannot beachieved by any less restrictive sentence(s).24 Section 16 requires the Court to haveregard to the desirability of keeping offenders in the community and precludes theimposition of a sentence of imprisonment unless the relevant purposes and principlesof sentencing cannot otherwise be achieved.25 Accordingly, in each case it is necessaryto identify which purposes and/or principles can only be met by a sentence ofimprisonment.19 Sentencing Notes, above n 2, at [22], citing Willcocks v Police HC Auckland CRI-2007-404-96,13 June 2007 at [11].20 At [23].21 At [24].22 At [25].23 At [27]–[28].24 Sentencing Act, s 15A(1)(a).25 Section 16(1) and (2).Submissions[40] Mr Harvey submitted to us that the Judge had erred by placing too much weighton the need for denunciation and deterrence, and the appellant's continued denial ofthe complainant's account, and insufficient weight on the isolated and historic natureof the offending. He submitted the Judge was wrong to consider the appellant in needof rehabilitation, given the 37 year hiatus.[41] For its part, the Crown submitted that it was open to the Judge to decline homedetention and that he made no error warranting this Court's intervention. In thisregard, Crown counsel referred us to the standard of review in James v R.26 We shallnot repeat the standard laid down in James because this Court has recently said it isno longer to be followed.27 The standard of appellate review adopted in Tutakangahau— material error — applies in its place.28Discussion[42] A sentencing judge must evaluate all relevant purposes and principles ofsentencing in deciding whether to impose a sentence of imprisonment or homedetention.29 A sentence of home detention is capable of meeting any purpose orprinciple of sentencing specified in ss 7 or 8 of the Act and there is no presumptionthat one or other type of sentence is more or less appropriate for a class of offending.30Sentences of home detention have been imposed in the High Court or substituted bythis Court for sexual offending against children.31 Indeed, the Judge referred to onesuch High Court decision in fixing his starting point.3226 James v R [2010] NZCA 206, (2010) NZTC 24,271.27 Palmer v R [2016] NZCA 541 at [18].28 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27] and [30].29 Sentencing Act, ss 7 and 8; R v Vhavha [2009] NZCA 588 at [29]; aff'd Osman v R [2010] NZCA199 at [20]; Doolan v R [2011] NZCA 542 at [37] and [38]; and Manikpersadh v R [2011] NZCA452 at [14].30 R v Vhavha, above n 29, at [29]; Osman v R, above n 29 at [20]–[21] and [24]; and Pue v R [2014]NZCA 273 at [84].31 H (CA36/2012) v R [2012] NZCA 33; R v LTI [2014] NZHC 1125; Goose v Police [2017] NZHC2453 and Metua v R [2018] NZHC 246.32 Sentencing Notes, above n 2, at [16(a)], citing R v Richards HC Auckland CRI-2010-004-6987,15 December 2011.[43] Of the reasons the Judge gave for preferring imprisonment to home detention,which we have listed in [38] above, none appear to us to call for a sentence ofimprisonment. Moreover, and as Mr Harvey submitted, in making this criticaldecision, the Judge has not taken into account the lapse in time since the offendingand what that signifies. We consider this omission to be a material error. Given that,we shall undertake the required evaluation ourselves.[44] Having regard to s 7 of the Act, there is no apparent need to deter the appellanthimself from further offending or to protect the community from him. And as we havesaid, a sentence of home detention is equally capable of meeting all of the s 7 purposesin any event.[45] As to s 8, any sexual offending against a child is serious, but this was relativelyfleeting and isolated. There is nothing in the nature of this offending, as opposed toother sexual offending against a child, that would seem to require a sentence ofimprisonment.[46] We also bear in mind the need to impose the least restrictive outcomeappropriate in the circumstances (s 8(g)). The appellant appears to be a good candidatefor home detention.33 Although the PAC report recommended imprisonment, there isno practical impediment to a sentence of home detention. The writer of the PAC reportassessed the appellant as being at low risk of reoffending, but assessed his risk of harmto the community as "medium to high". That latter risk is a reflection of the nature ofthe offence of which the appellant was convicted. Any reoffending of the same ilk isexpected to cause medium to high harm. What matters is the low risk that there willbe any such reoffending.[47] Taking all of these matters into account, we consider a sentence of homedetention will be sufficient to meet the purposes and principles of sentencing relevantin this case and we shall quash the sentences of imprisonment accordingly.33 R v Vhavha, above n 29, at [34]–[35] and [45]; and Osman v R, above n 29, at [24].Result[48] The increased discount for good character that we have allowed reduces theappellant's end sentence to 18 months' imprisonment. The appellant has served some19 weeks' imprisonment and, barring a sentence of home detention, he could expectto serve another four months and two weeks.[49] We quash the sentences imposed by the Judge and, in their place, imposesentences of four months' home detention, to be served according to the terms annexedto the PAC report and otherwise on the standard conditions of home detention.34[50] Our order quashing the Judge's sentences and imposing the sentences of homedetention is to take effect as soon as practicable and, in any event, by4 pm, 5 October 2018.[51] As Mr Harvey anticipated, we also require the appellant to undertake 400 hourscommunity work which will be served concurrently with the sentences of homedetention.35Solicitors:Thomson Wilson, Whangarei for AppellantCrown Law Office, Wellington for Respondent34 Sentencing Act, s 80C(2).35 Sentencing Act, s 57(3).