Police v Kirkpatrick [2021] NZDC 8408 (5 May 2021)

Last Updated: 7 October 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

FINAL ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.html

IN THE DISTRICT COURT AT DUNEDIN I TE KŌTI-Ā-ROHE KI ŌTEPOTI

CRI-2019-012-002030 [2021] NZDC 8408

NEW ZEALAND POLICE Prosecutor

v

[CARL KIRKPATRICK] Defendant

Date of Ruling:	5 May 2021
Appearances:	C E R Power for the Prosecutor M A Stevens QC for the Defendant
Judgment:	5 May 2021

RULING OF JUDGE K J PHILLIPS [ON S 106 APPLICATION]

NEW ZEALAND POLICE v [CARL KIRKPATRICK] [2021] NZDC 8408 [5 May 2021]

[1] [Carl Kirkpatrick] is before me today for sentencing in relation to five charges that he faces, a charge of indecent communication with a young person aged under 18 years contrary to s 124A(1) of the Crimes Act 1961, and secondly four charges of sexual conduct with a young person under the age of 16, contrary to s 134(3) of the Crimes Act 1961.

[2] He, at the time of this offending to which he has entered a guilty plea, and I will come back to that, was aged between [under 18] to [under 20] years. The alleged offending involved two young people that he had met and formed an association with over and with matters involving aviation being one of the principal interests of the defendant [Kirkpatrick].

[3] In relation to the indecent communication charge, the victim there was [under 18] years of age. He had met the defendant online in an aviation chat room. They both shared the same interest and then we have the appearance of social media into the equation and they continued communicating through that and after the online meeting.

[4] It appears from the summary that shortly after the meeting the defendant told the victim he was a homosexual. The victim said that he did know his sexual preference, then there was a request from the defendant to the victim for the victim to send a photograph of himself, which the victim did of him standing in his underwear. The defendant requested the victim send him a photograph of his penis, which the victim did.

[5] Between the period October 2017 to the end of January 2018, they were each regularly sending and receiving photographs of each other that they were taking of their own genitalia and it also included acts of urination.

[6] The summary of facts say that this sending and receiving of photographs would occur at the request of the defendant. There was and there is mentioned in the various documents I have read, a request from the defendant to this victim to lose weight, then

a threat from the defendant to that victim that if he did not lose weight he would share photographs of the victim with other people, and he did that in [month deleted] 2018, sending a photograph of the victim’s genitalia, which included urinated underwear, to two other people, and the photograph contained the victim’s name, and the receivers of the photograph knew the victim as they also shared this interest in aviation.

[7] They never met in person. So, in the period of the offending when it began the victim was [under 16], the defendant was [under 18]. In January 2018, when it was offending, the victim was still [under 16]. The defendant was [under 18].

[8] He said when questioned that it was a mutual decision. He admitted sending the photograph of the victim to two other people and the facts summary notes that he regretted the decisions he had made and that he appeared remorseful for his actions.

[9] I take due note of those factors.

[10] The matters relating to the sexual conduct with a young person, and we have had that young person in court today, reading his victim impact statement. It appears that at the time of that offending, the victim was [under 16], or thereabout, the defendant was some three years older than that. It appears that the incidents that are the subject of the charge arose following a time when the victim and the defendant were together at the defendant’s home address, another boy was also present. They had formed the relationship through their interest in aviation. They were watching an aviation movie on the defendant’s laptop when the defendant began to put his hand on the victim’s lap, which was picked up and moved away and the word “no” was said by the victim. The defendant said: “okay” but then five minutes later he did it again, the victim saying “stop”. The defendant did not stop, he touched the victim again, and at one point touched the victim on his genitals on the outside of his clothes. The victim moved his hand away and moved his body from the defendant.

[11] A short time later, the defendant moves closer to the victim and put his hand down the back of the victim’s jeans and was feeling the victim’s bottom. The victim moved the defendant’s hands out and jumped from the couch to stop him: “stop, that’s enough, [Carl]”. When he, the victim, sat down again, the defendant repeated his

actions, developing to the stage of where he tried to pull the victim’s jeans down which was prevented by the victim, and at this stage it was time for the victims to go home. The defendant was giving them a ride home. The victim sat in the front passenger seat. The second boy went back inside to get a bag he had left behind, and the defendant, turning off the interior light, put his hand down the back of the jeans of the victim. He moved to the left-hand side and pulled the defendant’s hands out. When the other boy came back, he stopped what he was doing, and he was then dropped off, the second boy.

[12] On the continuing drive towards the victim’s home, the defendant just did not stop, drove past it, tried a few times to put his hand down the jeans. The victim said: “please stop” asking multiple times. At one point, his hand was in the top of the jeans but the victim managed to extricate it, and he, when the car stopped outside his home, jumped out of the car. The defendant drove off. The victim was left in a distressed condition.

[13] The facts summary relates that the defendant when he was questioned knew the victim’s age, he knew the legal age for consent with regards to sex, he admitted that he was aware that the victim was not consenting due to moving around and telling him to stop, did not give an explanation for his offending but told the police he regretted his behaviour and to the interviewing police officer appeared to be remorseful.

[14] It should be noted that the defendant has no prior convictions of any kind, and that, in the many pages of documents that have been made available to me before commencing this sentencing today, great stress has been placed on the defendant’s age at the time of this offending.

[15] It has had an impact on the victims. I note that victim 1 in relation to the photographs being exchanged did go to restorative justice, did front, as did the defendant. I acknowledge Mrs Stevens QC appearing for the defendant’s comments that that showed remorse, it showed bravery and that the restorative justice conference was successful in its overall outcome, and that the defendant was able to express his remorse, apologise, and paid some $1,500 in emotional harm reparation.

[16] The other victim of the other four charges has told us today that he has had difficulties over the offending at the time and continuing on, to the extent of where he continues to struggle, changed his perspective on life, but that, as he has matured himself, he has managed to deal with the problems that he has had to face on a day-to-day basis as a result of what happened to him that night.

[17] So that is the offending, and I have gone through it in detail so that there is no doubt about what is accepted and what is not accepted in relation to this matter and the basis of the offending itself, because in the documents that I have the defendant has been less than totally consistent with his responses in relation to the way he saw his offending.

[18] I note that Mr Power for the Crown’s position is to stress to me the various matters that are relevant in this type of offending, when it occurs at any time by any person, that is, the questions of damage or emotional harm that can remain with people for the remainder of their lives, that here it is because of the age differential in relation to the charges with the second complainant, there would be an abuse of his position and trust, and in the charges overall there were elements of premeditation.

[19] So, Mr Power says that when one has regards to the gravity of the offending, there were two victims, I should have regard to the nature of the act, but particularly, I think, Mr Power was emphasising the age for these participants in this overall matter, particularly the defendant as the offender.

[20] Mr Power emphasises that I can take into account his guilty plea, his obvious remorse expressed at the time and again through an affidavit which has been filed, which I will come back to, his offer to make amends and his good character.

[21] Mr Power notes that the starting for this sentencing today is the application that the defendant has filed through his counsel for a discharge without conviction in relation to all charges in the terms of s 106 of the Sentencing Act 2002.

[22] Mr Power openly acknowledges issues as to the defendant’s age, his lack of prior convictions, his good character, are matters of relevance to assessing overall

gravity of the offending, and that when I come to the balancing as against the impact and consequences of conviction, the flying career of the defendant, his aim in life would end, and I think that is accepted by the Crown. The fact that the psychological assessment done by a very experienced psychologist [name deleted] shows that he is low risk, not as made by Mrs Stevens in her submission of no risk, but a very low risk, and that he has made offers at least of payment of emotional harm to the second victim, and paid emotional harm to the first victim.

[23] Mr Power agreed that there were no personal aggravating factors.

[24] So, overall the Crown’s position is that there are various factors that I need to assess when I come to taking or making a decisions as regards to the overall gravity of the offending, and then, on the other side of that there is, and Mr Power openly submitted it, a real and appreciable risk of loss of his career in aviation.

[25] Mr Power does not oppose a final order of suppression of name, which I make.

[26] That the end, when pressed, Mr Power agreed that the position of the Crown in the application was neutral.

[27] Mrs Stevens’ submissions in support of the application for a discharge relates to the affidavit filed by Mr [Kirkpatrick] in support of his charge and the background details that are set out there. She refers to the report of the gastroenterologist in relation the difficulties that the defendant has a young man when he was diagnosed with Crohns’ disease. [The gastroenterologist] says in his report on page 2 and describes it in these terms:

I hope this report provides some context around the devastating effects a diagnosis of Crohns’ disease can have on an individual at any stage, as well as the persisting psychological effects following an acute severe illness even when the initial disease is under control.

[28] I note those comments because I think that they are highly relevant in this particular issue here.

[29] This defendant was an only child. It would appear to me that he was brought up in a family that cared for him, he was educated in the family, but I see when I read all the papers that he did suffer I think somewhat from the fact of being an only child. At the time when he was beginning to enter into maturity, decisions of life came upon him, he had other difficulties, he had, of course, which is not mentioned in any of the documentation or reports that I have, the situation of where he discovered that he was homosexual, and that is a factor that would also have a negative impact upon making friends and being able to form the associations. I realise he says in his affidavit that he had schooling and sporting and other such matters, but they came to an end and abruptly when his Crohns’ disease struck him, where he was hospitalised, where he had recurring issues with the Crohns’ disease right at the time when most young people, most young men would be forming friendships and relationships that would carry them through those formative years. He never had the opportunity.

[30] He then involves himself in aviation. Aviation is a pursuit of individuals in a real sense, and suited this man’s life because that is what he was, an individual and a loner, and he met other like people and these matters developed as a result. I see that as important factors in relation to this offending in itself and I see that they are matters that are highly relevant to the assessment which I have yet to make as regards to it.

[31] I have a letter from [name deleted], an assistant principal at [the school attended by the defendant]. I note what she says but I take some issue when she describes the incident, as she puts it, as tomfoolery. It is not; it is criminal conduct and behaviour.

[32] I note the documents attached to his affidavit as regards to the voluntary work that he has done, which was subject to my criticism in relation to whether it is voluntary work or a pursuit of what he likes doing, that is, being part of an environmental group [details deleted]. But he has certainly, as Mrs Stevens QC points out, spent the hours doing it, when people of his age would have probably been out with their mates socialising and enjoying themselves, he was out in the bush, and a reasonably lonely type of pursuit.

[33] The background of the matter, therefore, is as I have detailed out, and I have to have regard to the provisions of s 106 of the Sentencing Act 2002 and the Sentencing Act itself, because I understand s 11 of the Act must consider whether it is appropriate to grant a discharge without conviction before entering into the sentencing side of the matter.

[34] When I consider s 106, I must first of all look to s 107. That section tells me that I must not discharge an offender without conviction, unless the Court, that is me, is satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offence. It is described as a balancing exercise that I must conduct when considering whether or not to exercise my discretion under s 106, and getting through that gateway of s 107 is a prerequisite to deciding whether or not to grant his s 106 application, so we have here the argument that is put forward that the offending itself is medium culpability or gravity, but that when I have regard to the other factors which I must have regard to, it is brought down considerably from the medium to somewhere in the middle of between low and medium.

[35] I note that I am required in the terms of the Court of Appeal’s decision in Blythe v R to take into account aggravating and mitigating factors in the terms of ss 9 and 9A of the Sentencing Act when assessing the gravity of the offending.1 I may take into account the factors including guilty pleas, expression of remorse, the victim’s perspective, the Court’s assessment of how likely it is he will reoffend, and bring those matters into my assessment as to the gravity of the offending.

[36] He did plead guilty. He has expressed remorse, he has expressed remorse at a restorative justice to his victim 1, he wished to go to restorative justice with victim 2 who did not wish to partake in restorative justice, as was his right, but he has expressed remorse when questioned by the police immediately.

[37] I note that in the restorative justice report on victim 1, the matter was accepted and the payment of emotional harm reparation, if effective, I think would not be one where he was looking for any further punishment of the defendant. In relation to victim 2, however, as I have said we have heard from him today and his perspective is

1 Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620.

that he has suffered for the years between the events and now, and that, I think, in the end he would expect the Court to act judicially and in justice to him, in relation to the matter.

[38] In relation to my assessment of how likely it is that he will reoffend, I note that we have here the benefit of a detailed psychologist’s report by [name deleted], a person well-versed in making such assessments, who puts this defendant’s risk of reoffending as low.

[39] I take those matters into account.

[40] Now, when I come to assess gravity, I take into account the background details that I have detailed in relation to the defendant and his upbringing, his youth, and the difficulties with the Crohns’ disease. I take into account the nature of the offence itself, and particular weight and emphasis must be given to the young age, not only of the victims, because that is an aggravating factor, but his young age, and indeed, as I would see it in reality, he was more or less at the lip or cusp of being able to claim the jurisdiction of the Youth Court in relation to this offending. His age was of a level where within the, again the information that I have, the brain is in the process of development; he has an undeveloped brain and that carries on for a number of years after the age of 18. I take those factors into account.

[41] I am satisfied here that when I have regard to all those factors that the gravity of the offending can be described as below moderate offending for this particular individual defendant, and can be seen as somewhere in the middle between low and moderate.

[42] The next step of the process is to consider the consequences, direct or indirect, of a conviction being entered. I put to one side entirely a consequence of his ability to travel overseas. I do not see that as even relevant in today’s modern world as a factor that I should consider. I do take into account, however, here, in relation to his occupation. There is no issue and Mr Power accepts and concedes the point that is there is conviction entered his opportunities in relation to a commercial flying career are ended. That may very well, of course, have an impact on travel as well, but if

looking at it based in Dunedin, New Zealand, if he is convicted then his lifelong interest in aviation is no longer going to end up in a lifetime career for him, and that is a significant consequence and albeit that it is not necessary that the identified consequences would inevitably or probably occur, it is sufficient if I come to a judicial decision there is a real and appreciable risk that such consequences could occur.

[43] As I see it, here there are two or three factors. One is that in the occupational sense, if I convict him of these charges by refusing this application for a under medium gravity offending, his career at his young age is ended. I also have to have regard, and Mrs Stevens QC makes the point that for him to have the impact of convictions of this offending around his neck for the rest of his life is a consequence that I am entitled to take into account, and I do so.

[44] I emphasise that the consequences of the offending are only one matter to which I have to have regard. They are not determinative of whether a discharge should be granted, but those consequences here are real, in my view, and they are consequences that could very well destroy a man with the difficulties that this defendant has, i.e. Crohns’ disease, a lack of ability to form permanent and solid relationships, a loner, in other words, I think all those matters would impact greater on him than normal.

[45] The third point is then whether those direct and indirect consequences would be out of all proportion to that gravity. This is a matter of comparison. I cannot grant a discharge unless I am satisfied, that is, that I make up my mind, that the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offence. As will be, I think, apparent from my view of the matter, I consider that they are. I consider that the direct consequences of this man, young as he is, having his life totally ruined by matters that happened when he was [under 20] years of age would be out of all proportion to the gravity of the offending overall.

[46] I use the terms of comparison as detailed in the decision of Blythe by the Court of Appeal.

[47] I consider the disproportionality test in s 107 has been met here.

[48] When I go on to consider the residual discretion under s 106(1), the purposes and principles of sentencing once again come into play in the terms of ss 7 and 8 of the Sentencing Act; aggravating and mitigating factors of ss 9 and 9A also, and I take those into account.

[49] I consider here that I am prepared to discharge the defendant without conviction and I do so, having detailed as best I can a summary of the voluminous information that I have had made available to me for this exercise today.

[50] I intend therefore to discharge the defendant on each of the charges that he faces in the terms of s 106 and I note that discharge on his record.

[51] In relation to the charges 2, 3, 4, and 5, I make an order that he is to pay the sum of emotional harm reparation in total $2,500 to the victim of that offending. That sum is to be paid by him no later than 30 June.

[52] I should finally emphasise to the complainant, who was brave enough to stand before the Court and read his victim impact statement, that this is a judicial assessment of the position in accordance with the law, and in no way am I, by having discharged the defendant, in any way trying to minimise the impact of all of this upon you.

Judge K J Phillips

District Court Judge

Date of authentication: 21/05/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.