R v Hausman [2017] NZDC 6118 (6 March 2017)

Last Updated: 1 August 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT WANGANUI

CRI-2015-083-001868 [2017] NZDC 6118

THE QUEEN

v

_{MICHAEL LANCE HAUSMAN}

Hearing:	6 March 2017
Appearances:	N Refoy-Butler for the Crown R Crowley for the Defendant A Brosnahan on behalf of R Crowley for the Defendant
Judgment:	6 March 2017

_{NOTES OF JUDGE P P CRAYTON ON SENTENCING}

[1] Mr Hausman, you face sentence today for a single offence for which Judge Large on 28 September 2017 gave you a sentencing indication which you accepted on 6 October 2017. Judge Large identified that the starting part was three years’ imprisonment and that you would get credit, at that stage, of nine months. The end sentence was identified of two years and three months, with questions then of remorse and mitigating factors to be placed into the balance as to whether any further reduction was appropriate and then the question as to whether home detention was appropriate.

[2] That single charge is one that stems from two and a half years ago now, sexual connection with a young person. The summary of facts can be taken shortly. That you met, effectively, through friends. That there was an agreement to meet.

_{That you had sex to ejaculation and that you gave the complainant money after.}

R v MICHAEL LANCE HAUSMAN [2017] NZDC 6118 [6 March 2017]

[3] You have no relevant previous convictions. What is clear from the victim impact statement is that there is clear emotional harm. As often is the case on both sides, both victim’s and defendant’s, expression of remorse, expression of harm, is not put before this Court in any particularly articulate way, but what is clear from the victim impact statement is, unsurprisingly, that the consequences of feeling that she had been taken advantage of will stay with that victim for far longer than the consequences I anticipate will stay with you. But what is clear also, is from your pre-sentence report that you have taken the steps to address some parts of the offending. I do place stock, as Mr Crowley urges me to, that you were attempting to deal with what are placed as “out of control” familial issues. That you were drinking to excess and that you were, and I use the expression which is quoted in the report from someone who knows you, it is clear, well, that you were “wayward.” That same person identifies that you have turned your life around since your offending.

[4] It is clear from what is said to me today that you have, to a large extent, sought to self-address issues to deal with instability, drink and the like. That pre-sentence report, however, cutting it perhaps away from the dramatic to its nub, identifies that you are someone who by your plea has offended against a person of age who therefore is vulnerable and who is classified in law as a child. You have offended in a manner which means that we as a community have to consider risk. You have offended in a way which means that the risk, experience shows, is present until or unless it is addressed and up to now it has not been.

[5] When dealing with this matter, I, of course, have to identify in you a responsibility for the harm and an acknowledgement of that harm. I can identify that you acknowledge the harm you have caused. I have to denounce the offending and deter both you and others who may consider offending in a similar way and for reasons I will identify later that lies at the heart of sentencing for matters such as this. Offending such as this, though, comes before the Court all too frequently and therefore sentences imposed have to be consistent with sentences imposed on other offenders committing similar offences in similar circumstances and then, where possible, the Court has to impose a sentence that is the least restrictive, consistent with sentencing principles and purposes.

[6] The Crown today identify that there should be, in their submission, minimum allowance because your perception of seriousness undermines your remorse. I must admit that that is one of the factors that most concerns me here. I am surprised, in fact I would go so far as to say astonished, that you could have come before Judge Large and later before myself and not been aware that you were, not just at risk, but in significant immediate jeopardy of prison.

[7] Mr Crowley, I anticipate, would say that you are not a sophisticated person and that limitation is what causes you, perhaps, not to appreciate your position today. I have to say that it better be there because you should, whatever outcome I determine, be under absolutely no illusion that this is a serious offence. It is an offence treated seriously. As the Crown identify, deterrence in cases such as this is usually the determinate and dominant purpose of sentence. The Court of Appeal has

repeatedly said so. The Crown put before me a case of Nath v R1and at para (22) in

adopting the approach in that case and other Court of Appeal cases including R v Johnson 2 the Court observed usually imprisonment will be the only appropriate sentence for sexual offending against children or young persons and the reason being that that is for accountability, denunciation and deterrence.

[8] Care has to be taken though in that expression being applied to this case or, indeed, any case of this nature because imprisonment does not rule out home detention. Other policy issues apply and I note that in Nath v R there was overriding that whole question some very significant aggravating factors which tipped the Judge at first instance in that case.

[9] Mr Crowley, in fairness, has put everything forward on your behalf that he can. He identifies today that you are willing to pay emotional harm reparation and that would have been offered had there been a restorative justice conference. He identifies that you should be given credit for turning your life around and the whole- hearted endorsement which is given by someone who knows you well and who can observe you well. That you are someone who has, effectively, put your life back on

_track.

1 _{Nath v R [2010] NZCA 418}

2 R v Johnson [2010] NZCA 168

[10] Mr Crowley identifies both to this Court and in written submissions that you are not, as it is conventionally understood, someone who is engaged in paedophilic behaviour and in that he is right. But of course, it remains that you have offended against someone who the law had identified is vulnerable and deserves and is in need of the protection of the community by reason of age. Be it drink, be it other matters that overrode your judgement on this occasion, your needs and your wishes meant that you put to one side the general accepted behaviour of the community and you offended against someone who was significantly younger.

[11] Now in that sense, I come to what effectively R v Johnson identifies is the approach to sentence:

(a) The age discrepancy here is significant. You were 26 years old, she was 14. That 12 year gap is significant and, as Judge Large observed, you were almost twice her age. The age of the complainant, though, falls into what can probably be described as the “mid range” regarding vulnerability, but I make it clear this was not and should not be confused in any way as an age-appropriate relationship gone too far.

(b) There was not targeting or grooming. There was persistence, though.

(c) It was a single occasion which involved full intercourse to ejaculation.

It cannot be played down.

(d) There was behaviour afterwards which Mr Crowley says is not an aggravated factor, I think it is equivocal. The giving of money afterwards I am struggling to understand as anything other than a somewhat demeaning act, but it is equivocal because on what I have before me it is not suggested that it was anything other than an act which was incidental. It is not suggested that it was an agreement in advance or in some way a payment for silence.

(e) Then I have the victim effect.

[12] That, together, brings the sentence Judge Large identified to three years. I give you full credit for your plea which brings it back to two years three months. I then look at the overall factors and determine what additional credit you should receive. I do agree you should get credit for an offer of emotional harm reparation and indeed that is a matter which the Court will take into account. I do find that you should get credit for your addressing your issues as far as you have. That is a start. It is good that your life is back on track. It is some solace, at this stage, that you were not wayward in your behaviour or in your lifestyle. Your offer to attend restorative justice goes into the balance. I apply a credit which is approximately

11 percent for all those factors. It brings the sentence back to two years’ imprisonment. Those factors weigh in the balance and I step back because, at this stage, I have public policy issues to consider.

[13] The pre-sentence report says you would not be able to attend a programme of the type which, in the specific view of the report writer, you would need to if you were in the community. I am grateful today that I have had confirmed that subject to the order of the Court such programmes that are available in the community can be made available and I have heard from the bar but also from my own knowledge that there are programmes which are distinctly and specifically designed to address offending of this nature and the decisions that are taken and also, of course, to address permanently the risk that you may continue to pose and that is through your behaviour, your decision-making and through drink; but on the other hand, in fairness, the report writer identifies that until you do address those matters you pose a continued risk because if your life goes off the rails again and you go and drink again, why would you not offend in the same way because you do not have the skills to make the judgement call. Now that is something where you, at this stage, are on your own mettle and that is something where the Court repeatedly observes, “Actually, imprisonment is the answer because that is the deterrence.”

[14] So I have a stark decision to make. I do disagree with the report writer in the classification of you requiring, at this stage, electronic monitoring as regards GPS technology and other matters which may restrict your behaviour, but on the central core of public policy I have to ask myself, “Will a sentence less than immediate

custodial sentence deter you, deter others, hold you accountable and, perhaps most

importantly, ensure you do not appear before the Court again?”

[15] You are a working man, you have a home, you have a mortgage and to your credit neither before nor in the two and a half years since is there any suggestion that your behaviour has fallen to a less than acceptable standard.

[16] You have to know, and I think you have to know, that before I came into Court, on the material I had before me, you were going to prison. I am willing, just, to come to the conclusion that the sentence here of two years’ imprisonment is appropriate. That in the circumstances as they present to me today, just, public policy and the most important factor is that you will not offend again in this way and that that risk can be accepted and mitigated by the conditions put in place, that home detention is, just, the appropriate action. But do not have any illusion: if you do not comply to the letter, I expect you to be breached and you will come back before me and there will be no second go.

[17] The circumstances will be:

(a) That there will be 12 months’ home detention, it will be to be imposed

and served at [address deleted].

(b) You will attend alcohol and drug counselling to the satisfaction of the probation officer and programme provider.

(c) You will attend an assessment for psychological counselling and if assessed as suitable complete treatment and counselling.

(d) You are not to consume or have in your possession alcohol or illicit drugs, that is drugs of a prescription nature also that are not prescribed to you.

(e) You are to get your employment or training approved.

(f) You are not to have any contact, direct or indirect, with the victim of your offending.

(g) You are not to have any contact with persons under the age of 16 unless in the company of a person approved by the probation officer. So far, madam Probation Officer, as to not to enter any park, schools or playgrounds, I think realistically that has not been in place for the past two and a half years, I do not see any purpose.

(h) You are to complete any treatment or counselling as assessed as appropriate.

(i) You are to submit to the rule and requirements of the electronic monitoring. That sentence will commence today.

(j) You will pay $1500 emotional harm. In all the circumstances of this offending, I think that is an appropriate offer of reparation and one which should be followed through to the complainant. It is in no sense – and I accept in no sense – buying the sentence of this Court. It is an appropriate way though of making reparation.

[18] This sentence should not be taken as indicating in any way, shape or form that the Court does not view this offending as serious. But it is just on all the factors the appropriate sentence to punish you and hold you accountable as you present today. You have an opportunity, take it. If you come back because you have not attended any aspect of home detention, you can guarantee that prison will not only be a possibility, it will be a certainty.

ADDENDUM:

[19] Mr Hausman, one matter I overlooked. Post detention conditions, because of the length of your sentence, run automatically for 12 months, but because I have imposed special conditions, those special conditions will apply also to the 12 months post-detention. I have to make that order in Court. Ms Brosnahan has appeared today at this stage, because Mr Crowley has left, as agent for Mr Crowley.

[20] Therefore, I make formally the order that the conditions apply also to the

12 months post-detention.

P P Crayton

District Court Judge