O'CONNOR V POLICE HC CHCH CRI-2009-409-000096 [2009] NZHC 796 (10 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                              CRI-2009-409-000096



                          DANIEL ROBERT O'CONNOR
                                  Appellant



                             
               v



                                       POLICE
                                      Respondent



Hearing:  
    10 July 2009

Appearances: S J Hembrow for Appellant
             C E Butchard for Respondent

Judgment:      10 July 2009


               ORAL JUDGMENT OF HON. JUSTICE FRENCH



[1]    This is an appeal against sentence.


[2]    Following a plea of guilty
the appellant was convicted in the District Court of
two charges of sexual connection with a girl aged 14. He was sentenced to a
term of
imprisonment of two years on each charge, to be served concurrently.


[3]    The facts of the offending were as follows.


[4]    The appellant, who is 22 years of age, was employed as a support worker and
caregiver at a residential treatment centre
in Christchurch. The victim was living



O'CONNOR V POLICE HC CHCH CRI-2009-409-000096 10 July 2009

there as an inpatient. The
appellant was aware she was only 14 and was also aware
of the reason for her being at the facility.


[5]    The appellant struck
up a friendship with the victim and at one point lent her
his cell phone and some money for a bus fare. This was a breach of his
employer's
policies. The employer became increasingly concerned at the appellant's lack of
boundaries and eventually dismissed him.


[6]    Two days after his dismissal, the appellant met the victim in town and invited
her back to his house. His wife was away.
Full sexual intercourse took place, as it
did a second time in a similar situation when the appellant again invited the victim
back
to his house.


[7]    The appellant pleaded guilty at the earliest possible opportunity, and when
interviewed by the police had
admitted the offending.           He had no previous
convictions.


[8]    The sentencing Judge accepted the sexual intercourse had
been consensual
but identified the aggravating features of the offending as being the age disparity (22
years as opposed to 14),
the significant power imbalance and the breach of trust.
The Judge noted that the appellant was a carer for the victim in a professional
setting
in a place where someone had ordered her to go, or where she was going as a matter
of last resort because of her own difficulties.
The victim ought to have been able to
trust the appellant, and his employer ought to have been able to trust him.


[9]    In view
of the aggravating features, the Judge considered that an appropriate
starting point was three and a half years' imprisonment. He
then gave a credit for
the early guilty plea, as well as a further credit for what he accepted was the
appellant's genuine remorse,
and his insight into the likely impact of his behaviour
on the victim. The Judge gave a total discount of 18 months, leaving an end
sentence of two years' imprisonment.

[10]   As required, the Judge then turned his mind to the question of whether home
detention
would be an appropriate response. In the Judge's view, it would not. The
Judge said at [15]:

       ... The wider public interest
particularly to those who have the care of young
       persons of the vulnerability of this one mean that deterrence and
      
denunciation and accountability are elevated to such an extent that home
       detention is not an option.

[11]   As is clear from
this sentence, the Judge was obviously very influenced by
the vulnerability of this particular victim and the fact she was obviously
a troubled
young woman requiring care as an inpatient.


[12]   The Judge then sentenced the appellant on each charge to two years'
imprisonment, the terms to be concurrent.


[13]   On appeal, the appellant contends that the sentence of two years'
imprisonment
was manifestly excessive and that the Judge should have granted
home detention.


[14]     Counsel, Mr Hembrow, accepts that the Judge's starting point was
appropriate in light of recent
appellate decisions in R v H  [2008] NZCA 237 and R v
Misileki  [2008] NZCA 513. However, Mr Hembrow submits that the Judge was
wrong in declining to grant home detention.


[15]   In support of that submission,
Mr Hembrow emphasised what he described as
the special facts of this case, namely:


               i)      the appellant was a first
offender;


               ii)     he received a very positive pre-sentence report;


               iii)    the absence of any victim
impact report.


[16]   It is well established that the decision whether or not to impose a sentence of
home detention involves the
exercise of a discretion.

[17]    In considering whether the Judge has wrongly exercised his discretion
requiring appellate intervention
, I am mindful of what the Court of Appeal has said
about home detention and the appellate role in R v D  [2008] NZCA 267 at  [66 ].


[18]    I have carefully considered all of the submissions Mr Hembrow has made,
and indeed he has said all that could possibly
be said on behalf of this appellant, but
I must be true to the appellate role.


[19]    In my view, the decision to decline home
detention was a decision the Judge
was entitled to reach on the information before him. He correctly turned his mind to
all relevant
factors and his reasoning processes do not disclose any error of principle.
In my judgment, a finding that the interests of deterrence
and denunciation required a
custodial sentence, given the seriousness of the offending, was a finding that was
undoubtedly open to
him.


[20]    There are no grounds on which I could overturn this decision, and
accordingly the appeal is dismissed.




Solicitors:
Riverlands Chambers, Christchurch
Crown Solicitor, Christchurch