Logan v Police [2013] NZHC 1631 (1 July 2013)

Last Updated: 23 July 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-114 [2013] NZHC 1631

BETWEEN BENJAMIN SCOTT LOGAN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 24 June 2013

Appearances: H D M Lawry for Appellant

R Thomson for Respondent

Judgment: 1 July 2013

JUDGMENT OF LANG J

_{[on appeal against conviction and sentence]}

This judgment was delivered by me on 1 July 2013 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

BENJAMIN SCOTT LOGAN v NEW ZEALAND POLICE [2013] NZHC 1631 [1 July 2013]

[1] Mr Logan was found guilty following a defended hearing in the summary jurisdiction of the District Court1 on a charge of indecently assaulting a girl under the age of 16 years.2 On 11 April 2013, Judge Treston sentenced him to six months home detention.3

[2] Mr Logan appeals to this Court against both conviction and sentence. He appeals against conviction on the basis that the overall conduct of the trial rendered it unfair. He contends that the sentence the Judge imposed was wrong in principle and manifestly excessive.

The charge

[3] The charge was laid under s 134(3) of the Crimes Act 1961 (“the Act”), which makes it an offence to do an indecent act on a person under the age of 16 years.

[4] There was no dispute in the present case that the complainant was 15 years of age at the time of the events giving rise to the charge. There was also no real dispute that Mr Logan had engaged in acts that, in the absence of consent, would amount to indecent assault.

[5] Mr Logan defended the charge in reliance on s 134A of the Act, which provides as follows:

134A Defence to charge under section 134

(1) It is a defence to a charge under section 134 if the person charged proves that,—

(a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and

(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and

_{(c) the young person consented.}

1 _{Police v Logan DC North Shore CRI-2012-044-000622, 7 December 2012.}

2 _{Crimes Act 1961, s 134(3).}

3 Police v Logan DC North Shore CRI-2012-044-000622, 11 April 2013.

(2) Except to the extent provided in subsection (1),—

(a) it is not a defence to a charge under section 134 that the young person concerned consented; and

(b) it is not a defence to a charge under section 134 that the person charged believed that the young person concerned was of or over the age of 16 years.

[6] Mr Logan’s defence was based on three propositions. First, he believed on reasonable grounds that the complainant was over the age of 16 years. Secondly, he had taken reasonable steps to find out whether that was the case. Thirdly, the complainant consented to all of the acts up until a point where she made it clear that she did not want him to go further. At that point he immediately desisted from any further indecent acts.

Undisputed facts

[7] Some of the facts were not in dispute.

[8] The charges were laid as a result of events that occurred on 24 September

2011. On that date Mr Logan was working in the Viaduct area of Auckland City on a promotion associated with the Rugby World Cup. The complainant, who was aged

15 at that time, met Mr Logan and struck up a conversation with him. They had not met each other before that date. Mr Logan and the complainant spent about 20 minutes talking to each other. When the complainant left, Mr Logan gave her his cellphone number.

[9] At about 6 pm that evening, the complainant initiated contact with Mr Logan by sending him a text message. Mr Logan and the complainant then exchanged numerous text messages between approximately 6 pm and 11 pm. These culminated in Mr Logan driving to the complainant’s address at about 11.30 pm. When he sent the complainant a text message advising her of his arrival, she instructed him to park his vehicle at the bottom of the street. After parking his vehicle Mr Logan walked across the road, where he found the complainant waiting at the entrance to a reserve.

[10] The complainant and Mr Logan then went for a walk along a footpath in the reserve. It was during this period that the acts giving rise to the charges occurred. In

broad terms, they comprised Mr Logan kissing the complainant and touching her in the area of her breasts and buttocks.

Factual matters in dispute

[11] The Judge was confronted with three broad areas of factual dispute. The first related to the conversation between Mr Logan and the complainant when they first met at the Viaduct regarding the complainant’s age. The second related to the nature of the events that occurred whilst the complainant and Mr Logan were walking in the reserve. The third was whether, and if so to what extent, Mr Logan took steps to find out whether the complainant was more than 16 years old.

The discussion about the complainant’s age

[12] The complainant said in evidence that she told Mr Logan she was 15 years of age, and that she attended a particular high school. She said that he told her that he was around 20 years of age. She said that they then talked about his work and where she was studying.

[13] Mr Logan’s evidence on this point was completely different. He maintained that the complainant told him that she was 21 years of age, and that she was studying at university.

The events that occurred when the complainant and Mr Logan were walking in the reserve

[14] The complainant said that as she and Mr Logan walked along the path in the reserve, Mr Logan began rubbing his hand on her buttocks. She said that when they reached the end of the pathway, she turned around to go home because she was feeling uncomfortable. She said she told him she wanted to go home, and then turned around to begin walking back in the direction from which they had come.

[15] The complainant said that Mr Logan then grabbed her by the arm and pulled her towards him. Mr Logan then began kissing her on the lips and on the neck. The complainant said she did not want to be kissed, and that she tried to move her head away. Mr Logan then told her to “loosen up,” or words to that effect. She said that

Mr Logan was still touching her buttocks, and at this point he put his hand under her bike pants. He then moved his hand round to her chest area, and down towards the area of her crotch. She pushed his hand away, but he then moved it under her top and began gripping her breasts underneath her bra. Mr Logan continued trying to kiss the complainant whilst touching her breasts. The complainant said that she then pulled his arm away, and he let her begin walking back down the path towards her home.

[16] The complainant said that as they neared the end of the pathway Mr Logan tried to kiss her again. When she told him she had to go home, he responded by saying “Just 30 seconds more.” She reiterated that she needed to go, and he said “Okay, 15 more seconds.” She said that she refused, and told him she had seen her mother arriving home. He then said “Okay, can I at least have a goodbye hug.” He then hugged her, and she left him and went home.

[17] Mr Logan’s evidence at trial broadly mirrored the explanation he had given when interviewed by the police in February 2012. He said he initially rubbed the complainant’s back, and that they also bumped or held hands as they walked down the path. He then kissed the complainant on the neck and on her lips, and she responded to his kisses. He also accepted he had rubbed the complainant’s buttocks, and placed his hand on her breasts on top of her clothing. Similarly, he accepted that he attempted to place his hand under her bike pants. He said that the complainant immediately reacted by saying “Stop we can’t”, and taking his hand away. She then said that she wanted to go home. He said that at that point they turned and began walking back towards the road.

[18] Mr Logan also said that as they were walking back down the path the complainant received a text message. He said that this caused her to panic, and to react in a way that was “weird.” He said this was the first time anything awkward or uncomfortable had arisen during the walk in the reserve. He said that the text caused the complainant to want to get home, and that it was a “weird” end to the night.

[19] The tenor of Mr Logan’s evidence was therefore to the effect that all of the acts that occurred were with the consent of the complainant until such time as he

tried to put his hand inside her bike pants. He says that he stopped that act as soon as the complainant indicated she did not consent to it.

Steps taken by Mr Logan to find out whether the complainant was more than 16 years of age

[20] Mr Logan based his case on this point on his assertion that the complainant told him she was 21 when they first met at the Viaduct. He said he was left in some doubt about this, because she appeared to him to be a little younger than that. He believed she was about 18 or 19 years of age. He therefore immediately raised the issue of her age when he received the first text message from her at 5.58 pm. This led to the following exchange of text messages:

Complainant: Hae ben its [...] heres my num (:

Mr Logan: You so don’t look ure age haha ;)

Complainant: Haha il show u my identification nxt time I c u :p

Mr Logan: Its not a bad thing haha ... u don’t seem that innocent;)

Complainant: Haha that’s cuz im nt innocent well i try to b most times : p haha u dnt at all tho

[21] After this exchange Mr Logan does not appear to have taken any further active steps to ascertain whether the complainant was telling the truth about her age. His counsel submitted, however, that subsequent text messages between Mr Logan and the complainant were also relevant in this context. These included a message in which Mr Logan invited the complainant out for a drink. She responded by telling him that she was already drinking vodka. Counsel for Mr Logan submitted that this exchange also entitled Mr Logan to believe that the complainant was more than 16 years old, and that it amounted to reasonable steps to find out whether that was the case.

The Judge’s conclusions on these issues

[22] The disputed factual issues were important, because they determined whether Mr Logan was entitled to rely upon the statutory defence contained in s 134A. The first and third issues were relevant to s 134A(1)(a) and (b). They assisted in determining whether Mr Logan believed on reasonable grounds that the complainant

was over the age of 16 years, and whether he took reasonable steps to find out whether that was the case. The second issue related directly to whether, in terms of s

134A(1)(c), the complainant consented to the acts that gave rise to the charge.

[23] As the Judge clearly appreciated, the credibility of the complainant and Mr

Logan was central to the determination of all three issues.

The conversation about the complainant’s age

[24] The Judge did not make an express factual finding regarding this issue. In particular, he did not say he was satisfied the complainant told Mr Logan that she was 15 years old when they first met at the Viaduct. Instead, he made a global finding that, where an issue was in dispute, he preferred the evidence of the complainant to that given by Mr Logan. This arguably means that the Judge accepted the complainant’s evidence regarding her conversation with Mr Logan at the Viaduct about her age.

[25] Had that been the case, however, the finding would effectively have precluded Mr Logan from relying on the statutory defence. If the complainant had told Mr Logan that she was only 15 years of age, he could not have argued that he reasonably believed she was older than 16. Similarly, he could not have taken reasonable steps to find out if that was the case. If the Judge had made that finding, he would not have needed to go on to consider either of these issues. The fact that he did so suggests that the Judge did not necessarily accept the complainant’s evidence on this point.

[26] This is not surprising. It is inherently unlikely, in my view, that Mr Logan would have been suggesting in the text message set out above4 that the complainant looked much younger than 15. It is much more likely that he would have questioned an assertion by her that she was older than that.

[27] This is borne out by the complainant’s response, namely that she would show

_{Mr Logan her ID the next time she saw him. It is highly unlikely, in my view, that}

4 At [20].

the complainant would have wanted to show Mr Logan identification proving that she was 15 years of age. It is much more likely that she would want to show him identification proving that she was significantly older than that.

The events that occurred during the walk in the reserve

[28] The Judge did not make express factual findings as to which of the specific acts that the prosecution relied upon to establish the charge he found proved. Again, however, his global conclusion preferring the evidence of the complainant in relation to contested issues suggests he accepted the complainant’s version of events. This means the Judge accepted that Mr Logan put his hand inside the complainant’s bra, and also that Mr Logan put his hand under the complainant’s bike pants and tried to move it to the area of the complainant’s crotch.

[29] The Judge made an express finding, however, regarding the issue of consent. He found that the complainant did not consent to Mr Logan touching her in the way that he did during the walk in the reserve.

Steps taken by Mr Logan to ascertain the complainant’s age

[30] The Judge found that Mr Logan did not believe on reasonable grounds that the complainant was more than 16 years of age, and also that he did not take reasonable steps to ascertain that that was the case.

[31] The Judge’s findings meant that Mr Logan’s defence could not succeed. Acknowledging this to be so, counsel for Mr Logan attacked the basis upon which the Judge made his credibility findings.

The challenge to the Judge’s credibility findings

[32] Counsel for Mr Logan challenged the Judge’s decision by asserting that when Mr Logan gave evidence, the manner in which the Judge asked him questions amounted to a form of cross-examination. As a result, the trial became unfair because the Judge crossed the line and substituted his function as the tribunal of fact for that of an advocate for the prosecution.

[33] Counsel for Mr Logan acknowledged that a Judge sitting in a Judge alone trial is permitted greater leeway in asking questions of witnesses than would be wise when a jury was the trier of fact.5 He submitted, however, that the nature and quality of the Judge’s interventions meant that the trial became unfair. He also contended that some of the questions that the Judge asked Mr Logan were based on assumptions that were factually wrong. Counsel submitted that the responses the Judge obtained to his questions caused him to prefer the evidence of the complainant on critical matters.

[34] Whether or not a trial Judge crosses the line in any given case is a question of fact and degree to be determined having regard to the whole of the evidence, and to their effect on deployment of the defence case. The important question in this context relates to the quality, rather than the quantity, of the interventions and the overall effect that they have on the trial.6

[35] Counsel for Mr Logan accepted that some of the occasions on which the Judge intervened were justified on the ground that he was merely clarifying what Mr Logan had just said. He contended, however, that three interventions could not be justified on that basis, and that taken together they resulted in the trial becoming unfair.

Passage One

[36] The first intervention occurred relatively early in Mr Logan’s evidence, at a point where his counsel was asking him about his initial conversation with the complainant about her age. At that point the following exchange occurred:

Q. How old did Ms [ .... ] say she was to you?

A. 21.

Q. But you are saying in evidence, thinking that she was not 21, why did

you ask Ms [....] out for a drink?

A. Why did I ask her for a drink? Q. Yes.

5 _{EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 142 (CA) at 153.}

6 Akast v Police HC Auckland CRI-2004-404-183, 26 August 2004, at [12].

A. We got on well, I wanted to see her again. Like I said she left after about 20 minutes of talking. I was working that night till about 10,

10.30 and I was meeting with some friends later in town and it’s just

she was in town, presumed she was gonna be in town longer and just

asked if she’d like to have a drink later that night.

Q. And was there any – if you didn’t believe she was 21, just to confirm,

how old did you believe she was?

A. How old did I think she was? Q. Yes.

A. Like I said I had no reason to believe she wasn’t 21, I just thought she looked a wee bit younger than 21, so when she said 21 I believed it, that’s all.

THE COURT:

Q. The same thing could apply couldn’t it, if she told you she was 15 and you said she didn’t look that age, couldn’t it?

A. I guess, yeah I guess yeah.

Q. That’s really borne out by the other comment that you made, “You don’t seen (sic) that innocent,” that would be in the context of her saying she was 15 wouldn’t it?

A. That was purely just the way we got on when we were talking. Q. I’m just saying –

A. Yeah, no I understand, I understand.

[37] Counsel contended that this passage amounted to cross-examination of Mr

Logan on a material point.

Passage Two

[38] Next, counsel pointed to the exchange which occurred when Mr Logan was giving evidence about his arrival at the complainant’s address:

THE COURT:

Q. But you knew she was going to sneak out? A. No Sir.

Q. Well look at the text on 22:54:37, you sent a text, “Can you sneak out,” something about sneaking out. So there was reference to sneaking out wasn’t there, before you got there?

A. That was from what she was saying. Q. Well go back to 21:11:43?

A. Sorry, what page is that on Sir?

Q. The pages aren’t numbered I don’t think, just the hours – EXAMINATION CONTINUES: MR VAN DER ZANDEN Q. Use the times which is the second column?

THE COURT: Q. 21:11:43? A. Yes.

Q. That was one she sent to you, was it? A. Yes it was.

17. Well she said, “Yeah, but Mum doesn’t want me going out, so I’d have to sneak out.”?
    

A. Yes.

17. So you did know before you went round there that she had to sneak out?
    

A. I knew she had to sneak out yes, yes sorry what did I say? Q. You just said you didn’t.

A. No, I knew, well I knew from the text yeah, sorry. Q. So you did know?

A. Yes.

Q. Well why did you say you didn’t know?

A. Sorry, no reason sorry.

Q. Wouldn’t that have been consistent with someone aged 15, rather than

21?

A. No, still get in trouble.

Passage Three

[39] Finally, counsel relied upon the following questions that the Judge put to Mr

Logan about the evidence relating to the complainant having seen her mother return

home as she and Mr Logan walked back along the pathway towards the

complainant’s house:

THE COURT:

Q. Just to remind you about your evidence-in-chief, you said, she said she thought she saw her mother arrive home. Do you say that she didn’t say that?

A. No, she got a text.

Q. No, no before she got the text. You said she said she thought she saw her mother arrive home, but you said she couldn’t have done that because you were a long way down the track, and she then got a text and her behaviour changed?

A. No –

Q. You did say – well sorry I recorded your evidence? A. Well I’m sorry I don’t remember saying that.

Q. Well you said, “She said she thought she saw her mother arrive home,” but you can’t see how she could have because you were quite a way down the track?

A. All I remember is –

Q. That’s exactly what you said today, earlier in your evidence-in-chief.

Don’t look at anyone else, that’s what I noted, that’s why I take a note

of the evidence.

A. What was said was, that’s what she said today she saw her mum come

home.

Q. No, no, no –

A. Sorry Sir, just to clarify it, what I said earlier was, “She said she saw her mother coming home,” and I disputed the fact that I don’t think she could have seen a car coming by because as we were further down the track, I couldn’t see a car, I couldn’t see her house or anything. She got a text, that’s what I’m saying, it was what she said to me, she got a text.

CROSS-EXAMINATION CONTINUES: SERGEANT HOLLIDAY

Q. So you’re saying now that she said to you that she got a text? A. That’s what I’ve said the whole time.

Q. The issue today is credibility. His Honour has to decide whose evidence to believe, yours or the complainant’s. I put it to you that your evidence is inconsistent in a number of respects. ...

[40] Counsel submits that this passage amounted to blatant cross-examination by the Judge, and that it gave the appearance of being designed to unsettle or unbalance Mr Logan. He also contends that, taken together, the three passages demonstrate an unacceptable degree of hostility on the part of the Judge towards Mr Logan. This inevitably led, counsel submits, to the Judge preferring the evidence given by the complainant to that given by Mr Logan.

[41] I agree that, standing alone, the passages may give the impression suggested by Mr Logan’s counsel. It is also difficult to understand the Judge’s purpose in asking Mr Logan the questions recorded in the first passage. Those questions obviously relate to the text messages set out above7 regarding the complainant’s age. As I have already noted, it is unlikely that these would have related to a claim by the complainant that she was 15 years of age.

[42] I consider, however, that the Judge was entitled to ask the questions set out in the second passage, because the issue of whether or not the complainant was going to sneak out of her house to meet Mr Logan was relevant to the disputed issues relating to the complainant’s age and the steps taken by Mr Logan to find out whether she was older than 16. When Mr Logan told the Judge that he had not known the complainant was going to sneak out, the Judge was entitled to explore that issue further with him.

[43] I accept that the exchange between the Judge and Mr Logan in the third passage gives the appearance of cross-examination by the Judge on a point in issue. It is also apparent that the Judge based his questions in this passage on his understanding that Mr Logan had said earlier in his evidence that the complainant had told him as they walked back towards her house that she had seen her mother arriving home. In fact, Mr Logan did not give evidence to that effect. It is therefore not surprising that he appears to have been bemused by the Judge’s questions

_{regarding this issue.}

7 At [20].

[44] The Judge’s misunderstanding on this point is entirely understandable, and was undoubtedly caused by the manner in which counsel for Mr Logan had phrased his question in the following earlier exchange:

Q. There’s a point in time that Ms [...] gives evidence that she thought she saw her mum arriving home. Can you just describe to the Court Ms [...’s] behaviour after that particular time where she thought she saw her mum arriving home?

A. I don’t know how she would have seen her mother because we were quite a way down a track and I couldn’t see anything, even the house. When we started walking back she got a text and that’s when she really panicked and that was the first time anything was uncomfortable or weird or panicked, and that’s when we were heading back, that’s when she left, I was a little bit way behind, I caught up. It was the first time since I’d been there that she was sort of flustered and had to get home.

[45] Counsel’s question was based on the assumption that Mr Logan heard the complainant say on the night of 24 September 2011 that she had seen her mother arriving back at her house. It is clear from Mr Logan’s evidence as a whole, however, that he never said that he heard the complainant make this remark on that night. Rather, he heard her say it when she gave evidence at the hearing. His counsel’s question was therefore based on an incorrect assumption, and the Judge subsequently asked the questions in the third passage based on the same mistake.

[46] The real issue in the present context is whether the Judge’s questions overstepped the mark and led to an unfair trial. My conclusion on this point is that they did not. They were contained in just three passages out of a lengthy period during which Mr Logan gave evidence. Whether viewed collectively or individually, I do not consider they crossed the line and rendered the trial unfair. Mr Logan was still able to advance his defence in an effective, albeit ultimately unsuccessful, manner. As a consequence, the sole ground of appeal against conviction must fail.

[47] In any event, I consider the Judge was correct to find that Mr Logan could not rely upon the statutory defence. First, it is clear that Mr Logan held concerns from the outset regarding the complainant’s age. It is significant, in my view, that his first text message to her questioned whether she was as old as she maintained. Mr Logan can therefore be taken to have been alert to the issue of the complainant’s age from the outset. Notwithstanding that fact, he took no further steps to obtain

confirmation of the true position. The fact that she later told him she was drinking vodka did not amount, in my view, to taking such a step. It is not unknown for a person under the age of 16 years to gain access to alcohol.

[48] More importantly, there was ample evidence to confirm that the complainant did not consent to the manner in which Mr Logan touched her during the walk in the reserve. First, there is the evidence given by the complainant to that effect. The Judge was entitled to prefer her evidence because, as he noted, it was more consistent than that given by Mr Logan. By way of example, Mr Logan accepted in the passage set out above8 that he had given an incorrect answer when the Judge first asked him whether he knew the complainant would be sneaking out of her home to meet him. Other important matters were not put to the complainant by Mr Logan’s

counsel when he cross-examined her. That, too, weighed with the Judge in deciding who to believe on this issue.9

[49] Next, Mr Logan accepted when he gave evidence that the complainant resisted once he tried to put his hand down her bike pants. In his police interview he also said that she said “No” when he did that. He also accepted that she then immediately turned around and they began walking back towards her house.

[50] Finally, a text message exchange that took place immediately after Mr Logan and the complainant parted company that night also suggests that the touching was not consensual. This was as follows:

23:53:50 Mr Logan: That was fun

23:54:06 Complainant: Really?

23:54:29 Mr Logan: Nope...

23:55:22 Complainant: Yea I was bout to say ... No effence bt I

ddnt want anything to happen between us I

thought u wud just b my mate ...

23:56:14 Mr Logan: Why not

00:08:07 Complainant: Cuz I just cnt my reasons are kinda private sorry

8 _{At [38].}

9 Police v Logan, above n 1 at [43]-[47].

[51] When these factors are taken into account I consider the Judge was well

entitled to find that the touching occurred without the complainant’s consent.

The appeal against sentence

[52] The Judge considered that several factors aggravated the seriousness of the offending. These included the vulnerability of the complainant, the fact that skin on skin touching occurred and the lasting effects that the offending has had on the complainant. There was also a significant age gap between Mr Logan, who was 26 years old at the time of the offending, and the complainant who was just 15 years of age. The Judge also considered there was an element of premeditation involved in the offending, particularly given the fact that Mr Logan had driven to the complainant’s address from the central city area.

[53] The Judge considered the starting point was a sentence of imprisonment. Although the pre-sentence report recommended a sentence of community work and a fine, the Judge considered that recommendation to be out of line with sentencing authorities and with current thinking. He was prepared, however, to treat Mr Logan as a first offender notwithstanding the fact that in 2004 he had been discharged

without conviction10 after pleading guilty to a charge of indecently assaulting a

female. He had also faced similar charges in the Youth Court in 2000 and 2003, but those charges had ultimately been dismissed.

[54] The Judge accepted that the end sentence would be one of less than two years imprisonment, so home detention was an available sentencing option. The Judge considered that to be an appropriate sentence having regard to all of the relevant factors. He therefore imposed a sentence of six months home detention.

[55] Counsel for Mr Logan points out that a sentence of six months home detention is generally regarded as being roughly equivalent to a sentence of 12 months imprisonment. He contends that a sentence of this magnitude was manifestly excessive having regard to all of the circumstances. He submits that the indecent

_{assaults were at the very lowest end of the scale in terms of seriousness, and that}

10 Under s 106 of the Sentencing Act 2002.

they occurred after the complainant had encouraged Mr Logan to come to her house in a manner that reasonably led him to believe she would be a willing participant in the acts that led to the charges. He also desisted as soon as the complainant made it clear she did not want the touching to continue.

[56] I consider there is force to these submissions. Although there may have been skin on skin touching, it was for a fleeting moment. There also appears to be no dispute that Mr Logan removed his hand from under the complainant’s bike pants as soon as she indicated she did not consent to him touching her in that area. Although the complainant said that Mr Logan began to move his hand from her buttocks towards the area of her crotch, she did not suggest that he had ever touched her in that region. Both the complainant and Mr Logan agree that they then immediately began walking back towards the complainant’s house. I therefore accept that the indecent assaults can be classified as being towards the lowest end of the scale both in terms of seriousness and the length of time over which they occurred.

[57] The circumstances in which Mr Logan and the complainant came to be together are also highly relevant. The Judge did not address this issue when considering Mr Logan’s culpability. The chain of events that led to the offending began, as I have already recorded, with the complainant initiating contact with Mr Logan. The initial exchange regarding the complainant’s age led immediately to the following series of text messages::

18:07:45 Complainant: Haha that’s cuz im not innocent well i try to

b most times:property haha u dnt at all tho

18:12:15 Mr Logan: Do I look like an angel

18:14:06 Complainant: Nope nt at all do u think yr an angel?

18:14:55 Mr Logan: Hells no,)

18:16:38 Complainant: Haha thought so, so have u met lots of hot girls tonight? :p

18:18:55 Mr Logan: Met one who was alrite haha,) u had any luck?

18:19:52 Complainant: Haha nice and what with girls? Cuz nah I

dnt swing that way: p

18:20:46 Mr Logan: Go find a guy then

18:21:32 Complianant: Haha nah iv left anyways

18:24:02 Mr Logan: Sux for u hun

18:24:23 Complainant: Haha whys that?

18:25:04 Mr Logan: Just cause, lets play lata.

18:25:28 Complainant: Haha play later?

18:25:49 Mr Logan: Yeah

18:26:09 Complainant: What u mean?

18:27:30 Mr Logan: Haha hang out, do sumthng!

18:29:52 Complainant: Haha oh right sorry uhn yea il see hw I feel later im quit tired bt if we cnt today im keen another day?

18:30:51 Mr Logan: Yes nan,)

18:31:47 Complainant: Haha that’s me nah I had a late nite last nite that’s why

18:36:20 Mr Logan: So no bf atm? [boyfriend at the moment]

18:37:40 Complainant: Nah haha wbu? [what about you]

18:38:02 Mr Logan: Na no bf [boyfriend]

18:38:41 Complainant: Hah I meant gf? [girlfriend]

18:40:50 Mr Logan: Nope ... who wants a girl friend;)

18:41:32 Complainant: Haha wel I dnt, dnt kno bout every1 else

18:42:50 Mr Logan Haha this games fun huh

18:43:08 Complainant: Hah what game?

18:43:49 Mr Logan: This game, wat r u doin?

18:45:04 Complainant: Hhha at a restruant hws work?;)

18:46:11 Mr Logan: Gay as ever!

18:46:53 Complainant: Haha cold yet? And what u actually went to be doing as ur job?

19:03:51 Mr Logan: Oh yea an f all to be honest haha

19:14:25 Complainant: Hah u cud just say ur a secreity gard

19:17:22 Mr Logan: Yea lets go with that, cum entertain me

19:18:27 Complainant: Hah And hw wud I get there and hw wud I

entertain u?

19:20:32 Mr Logan: Use ure imagination;)

19:21:31 Complainant: Hah if I did that all the time I wud probs nt be every popular

19:22:50 Mr Logan: Depends wat it was ...

19:23:53 Complainant: Hah idk (:wow im already into the vodka its so nice

19:24:59 Mr Logan: Alky

19:25:39 Complainant: Hah I actually am do y drink often?

19:31:30 Mr Logan: Yea kinda, lets get u drunk then;)

19:32:21 Complainant: Haha when? Oh yea my mate mite stay at mine tonite so if shes keen well come out(:

19:39:04 Mr Logan: Just weneva

19:39:31 Complainant: Ok sweet so what are ur plans 4 tonight?

19:43:21 Mr Logan: Just being a menace haha

19:43:50 Complainant: Menace? Haha

19:54:38 Mr Logan: Causing trouble haha

19:58:48 Complainant: Haha nicce if i can u stil keen to hang?

19:59:34 Mr Logan: Ow yeah

20:01:16 Complainant: Haha u dnt have to if ur nt keen :p

20:01:55 Mr Logan: I wouldn’t b textn u if I wasent

[58] A short time later, at 9.04 pm ,the following exchange occurred:

21:04:47 Complainant: Hah ok well im keen to hang tonite if u stil want to

21:07:09 Mr Logan: Yea is it just us?

21:07:38 Complainant: Yep I guess unless ur with mates?

21:08:39 Mr Logan: Nope just us, I cum pik u up?

21:11:43 Complainant: Yea bt mum dsnt want me going out so I

have to sneak out aha

21:12:42 Mr Logan: I like it

21:13:09 Complainant: Ha what do u like about it?

21:14:41 Mr Logan: Naughty

21:15:17 Complainant: Hah I prefer bad ass (:

21:16:15 Mr Logan: Na ure naughty

21:17:06 Complainant: Haha nah lyk u said im a good girl

21:18:10 Mr Logan: U beta not be using me jus for sex;)

21:20:20: Complainant: What! I was just bout to say that to u trust me I dnt go have sex or shit lyk that on the

1st day met a guy(:

21:21:31 Mr Logan: Good haha!

21:23:59 Complainant: Hah have u had many girls doing that to u?

21:24:24 Mr Logan: I wish

21:25:56 Complainant: Haha really?

[59] Mr Logan and the complainant eventually agreed to meet during the following exchange, which began at 10.28 pm:

22:28:11 Complainant: Hae im hme alone till around 12am if ur keen

22:29:36 Mr Logan: I'm keen, car just got towed ah ... try get

there sn k

22:30:24 Complainant: Haha omg ok sweet as hw did u mange to get ur car towed?

22:30:52 Mr Logan: I hav no idea

22:31:19 Complainant: Did you park it in the wrong place?

22:31:49 Mr Logan: Think so...

22:32:19 Complainant: Haha shit that’s nt good! What type of car do

u have?

22:32:45 Mr Logan: A donkey;)

22:33:14 Complainant: Haha with a big ass? :p

22:33:36 Mr Logan: Huge ass

22:34:23 Complainant: Haha wow that must b one sexy donkey;)

22:35:13 Mr Logan: U hav no idea

22:37:07 Complainant: Haha u will have to show me sometime

22:51:59 Mr Logan: Wat tme u going nunise?

22:52:35 Complainant: Haha I guess when mum gets hme hw cum?

22:52:59 Mr Logan: I wana see u

22:53:36 Complainant: Haha bt isn’t ur car kinda gone?

22:54:37 Mr Logan: Yea im tryna get it tho, can u sneak out

22:55:33 Complainant: Yea probs what time tho?

22:56:12 Mr Logan: Hope not to late

[60] Taken together, the text messages from the complainant would reasonably have led Mr Logan to believe that she was being flirtatious with him. She was certainly encouraging him to come and visit her. The fact that she suggested that he should park at the end of her street, and her appearance at the entrance to the reserve, could only have strengthened those impressions.

[61] I consider the background to the encounter between Mr Logan and the complainant needed to be taken into account in assessing Mr Logan’s overall culpability. It does not excuse his offending, because he ultimately indecently assaulted a young girl without her consent and in circumstances where he had failed to take reasonable steps to ensure she was over 16 years of age. Nevertheless, when the factual background and the nature of the assaults are taken into account, I consider an end sentence of 12 months imprisonment was manifestly excessive.

[62] I am reinforced in that view by the two authorities cited by counsel for the respondent in support of her submission that the sentence was within the available range. In R v Hohaia,11 the appellant had been found guilty of indecently assaulting his 16 year old cousin. He had arranged to take her shopping, but instead took her to his brother’s house. He then took her into a bedroom, where he tried to kiss her and remove her pants. When the victim resisted, the appellant pushed her down on the

bed and got on top of her. The appellant eventually desisted after the victim

_{continued to resist. The Court of Appeal held that an appropriate starting point was}

11 R v Hohaia CA 221/05, 17 October 2005.

within the range of six months to two years, and reduced a sentence of two years six months imprisonment to one of 12 months imprisonment.

[63] In R v Eraki,12 the appellant had been found guilty on a charge of indecent assault, and sentenced to eight months imprisonment. The appellant was a taxi driver, and had accosted a female customer by rubbing her arm and attempting to kiss her on several occasions. The victim said that at one point he had tried to insert his tongue in her mouth. The Court of Appeal noted that although the incident must have been frightening for the complainant, it was relatively transitory and was very much at the bottom end of indecent assaults. A sentence of five months two weeks imprisonment (being time already served) was substituted.

[64] I consider the offending in Hohaia to be significantly more serious than that in the present case. It involved relatively prolonged attempts to engage in sexual activity when the victim clearly resisted from the outset, and in circumstances where there was an element of breach of trust. The offending in Eraki was not as serious as that in the present case, but it had the aggravating features inherent in any indecent assault by a taxi driver of a vulnerable female customer.

[65] Having regard to these authorities, I do not consider a prison sentence of more than six months could be justified having regard to Mr Logan’s overall culpability. That being the case, it is necessary to consider whether a sentence of home detention was appropriate, or whether the lesser sentence of community work was sufficient to reflect the sentencing purposes and principles prescribed by the Sentencing Act 2002.

[66] Relevant purposes and principles of sentencing in the present case included the need to impose a sentence reflecting the gravity and culpability of Mr Logan’s conduct,13 together with its seriousness having regard to the maximum penalty prescribed for his offending.14 The maximum penalty for this offence is seven years

_{imprisonment. The sentence also needed to denounce Mr Logan’s conduct,}15 _{and to}

12 _{R v Eraki CA73/03, 1 April 2003.}

13 _{Sentencing Act 2002, s 8(a).}

14 _{Ibid, s 8(b).}

15 Ibid, s 7(1)(e).

deter both him and others from acting a similar way in the future.16 It also needed to hold Mr Logan accountable for the harm done to his victim,17 and to promote a sense of responsibility in him for that harm.18 Importantly, however, the sentence also needed to be the least restrictive outcome that was appropriate in the circumstances, having regard to the hierarchy of sentences contained in the Act.19

[67] When these purposes and principles are taken into account, I consider the sentence of community work recommended by the pre-sentence report was appropriate. It was sufficient having regard to Mr Logan’s culpability, and to reflect the purposes and principles of sentencing to which I have referred. I also consider that the nature and circumstances of the offending make it appropriate for Mr Logan to be held accountable to the community by making compensation to it in the form

of work,20 and that a sentence of community work was appropriate having regard to

Mr Logan’s character and personal history.21

Result

[68] The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence of six months home detention is quashed. In its place I impose a sentence of 250 hours of community work. The fact that Mr Logan is currently deriving his income from a sickness benefit means it would be

_{inappropriate to make any order requiring him to pay reparation to the victim.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

H Lawry, Auckland

16 _{Ibid, s 7(1)(f).}

17 _{Ibid, s 7(1)(a).}

18 _{Ibid. s 7(1)(b)}

19 _{Ibid, s 8(g).}

20 _{Sentencing Act 2002, s 56(1)(a).}

21 Ibid, s 56(1)(b).