Fisher v Police [2014] NZHC 2189 (10 September 2014)

Last Updated: 6 October 2014

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-435-000006 [2014] NZHC 2189

DARRON JOHN FISHER

v

_{NEW ZEALAND POLICE}

Hearing:	9 September 2014
Counsel:	I Hard for Appellant M L Wong for Respondent
Judgment:	10 September 2014

_{JUDGMENT OF WILLIAMS J}

[1] The appellant pleaded guilty to two counts of doing an indecent act with a child under 12. He was sentenced in the District Court to 16 months’ imprisonment.¹

[2] On appeal, Mr Fisher argues the Court should have imposed home detention.

The facts

[3] The victim in this case was a five year old girl. Her father and the appellant were close friends. He would babysit the victim and her eight year old brother on

_{occasion. The offending occurred during such an occasion.}

¹ R v Fisher DC Masterton CRI-2014-035-000300, 24 July 2014.

[4] The first count relates to an incident in the garage. Mr Fisher took the victim out to the garage while her brother was taking a bath. Mr Fisher and the victim played darts. Mr Fisher said that if either one of them threw three darts into the same hole, that person would have to pull their pants down. He then placed the victim on a chair and pulled down her pants. The victim told Mr Fisher to stop and that she did not like it. He also pulled down his own shorts to reveal his underwear.

[5] The second incident occurred later that evening in the bath. It was more serious. Mr Fisher and the victim bathed together for approximately one hour. Mr Fisher played games with the victim in order to encourage her to feel comfortable while naked with him. For example, he let the victim squirt water into his belly button with an empty shampoo bottle; made squeaking noises with his finer in his belly button; tickled the victim; made farting noises in the water; and pretended his finger was a thermometer placing it on his chest. He also washed the victim’s hair.

[6] At some point the victim’s brother came into the bathroom to use the toilet. The brother said he saw Mr Fisher masturbating and also the victim masturbating Mr Fisher.

The sentencing decision

[7] The learned District Court Judge acknowledged that the nature of the relationship between the victim’s father and the appellant meant that what occurred was a considerable breach of trust. The Judge noted that victim impact statements suggested that recovering from these events will be a long, slow and difficult process for the family. Despite an argument from Mr Fisher’s counsel that the offending was spontaneous, the Judge found that the “circumstances of the evening in question

revealed a premeditated course of conduct leading up to the offending”.²

[8] A starting point of 22 months’ imprisonment was adopted. This was on the basis that the offending in this case was “slightly more serious” than that in Kenny v

_{R – a case involving a hand on the vagina of a five year old outside her underwear,}

² At [7].

slow rubbing of the vaginal area and touching around legs, waist and bottom.³ The Judge acknowledged Mr Fisher’s lack of a criminal record and early guilty plea. A six month discount was given, resulting in an end sentence of 16 months’ imprisonment.

[9] However, the Judge expressed concern that Mr Fisher continued to minimise his offending. In particular the Judge recorded that Mr Fisher said there was “nothing sexual in his actions”, the offending was a “lapse of reasoning” and he was unwilling to acknowledge his offending by advising his employer.⁴ This factor in particular provided the basis for the Judge’s rejection of home detention as an option:⁵

Given the degree to which the pre-sentence report reflects a lack of acceptance and a degree of minimisation by Mr Fisher, and given the availability of child sex offending treatments within the prison system, I do not consider that an electronically monitored sentence in this case adequately reflects the seriousness of the offending, particularly given the cumulative effect of the aggravating factors that I have already referred to.

Appeal principles

[10] This is an appeal against the exercise of a discretion. Section 250(2) of the Criminal Procedure Act 2011 is the controlling provision. An “error” is required. I must be satisfied that the District Court Judge made an error of law or principle, took into account irrelevant considerations, failed to take account of relevant

considerations, or made a decision that was plainly wrong.⁶

Home detention

[11] For the appellant Mr Hard focused primarily on the question of whether the learned Judge ought to have substituted a sentence of eight months’ home detention for the prison sentence ultimately imposed. He relied heavily on the Court of Appeal

_{decision in R v Fairbrother.}⁷

³ _{Kenny v R [2013] NZHC 2787.}

⁴ _{At [10].}

⁵ _{At [11].}

⁶ _{Kacem v Bashir [2010] NZSC 112 at [32].}

⁷ R v Fairbrother [2013] NZCA 340.

[12] In reliance on that case, the learned District Court Judge was required to make a “considered and principled choice between the two forms of sentence, recognising that both served the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing”.⁸

[13] Mr Hard argued that in rejecting home detention in this case, the learned Judge gave too much emphasis to alleged minimisation, and insufficient consideration to other relevant factors. It had, Mr Hard argued, to be remembered that the appellant had indeed accepted responsibility at an early stage by pleading guilty. In addition, the learned Judge had failed to properly consider the fact that the appellant is a mature man of 48 with no criminal or traffic history of any kind, that

he is in his 11^th year working as an owner/driver for a national transport firm and,

throughout his life, he has had a very stable employment history with only a hand full of jobs.

[14] The Crown supported the learned Judge’s rejection of home detention submitting that the reasons for such rejection – minimisation and the need for treatment – were sound.

[15] As the Court of Appeal said in Kenny v R:

All sentences that are potentially in range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment.

[16] That of course does not amount to a presumption in favour of imprisonment for all child sex offenders. Rather, it emphasises the obvious point that the sentencing principles of denunciation and deterrence in the context of sexual activity against very vulnerable victims will generally mean a lesser sentence is unlikely to be justified on a principled basis.

[17] That said, the sentencing Court must still adopt the least restrictive outcome consistent with the relevant sentencing principles and purposes. Relevant here may

_{be the appellant’s lack of prior offending and his responsible employment history.}

⁸ At [30].

[18] I agree with the sentencing Judge that there is a significant element of minimisation in the appellant’s personal reflections on his offending. The pre- sentence report records exchanges as follows for example:

Mr Fisher claimed to be at a loss to explain the current offending, stating “I don’t really understand why I did it” and that he had suffered “a lapse of reasoning”. ... Mr Fisher maintained there was nothing sexual in his actions, including when he was in the bath masturbating and encouraging the victim to touch his penis. Further, Mr Fisher claimed the victim joined him in the bath of her own volition to wash her hair, without any prompting.

[19] These comments are difficult to credit to a man purportedly having insight into his offending. After all he played a game in which he pulls down the pants of a five year old girl and he spent an hour in the bath with her including activity such as masturbating and having her touch his penis. To suggest that there was no sexual element in such activity shows a profound lack of insight in my view.

[20] I find that the learned Judge was well within the bounds of his discretion in refusing home detention in those circumstances.

_{[21] The appeal is dismissed accordingly.}

_{Williams J}

Solicitors:

I Hard, Barrister, Greytown

Crown Law, Wellington