Wells v R [2015] NZHC 2075 (28 August 2015)

Last Updated: 29 September 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-230 [2015] NZHC 2075

BETWEEN	LEWIS WELLS Appellant
AND	THE CROWN Respondent

Hearing:	25 August 2015
Counsel:	E Leary for the Appellant K Lummis for the Respondent
Judgment:	28 August 2015

_{INTERIM JUDGMENT OF DUFFY J}

This judgment was delivered by me on 28 August 2015 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

Counsel:

Eb Leary, Auckland

WELLS v THE CROWN [2015] NZHC 2075 [28 August 2015]

[1] The appellant, Lewis Payne Wells, pleaded guilty and was sentenced concurrently to two years’ three months’ imprisonment on two counts of indecent assault on a boy under 12.¹ In addition the sentencing Judge imposed a minimum period of imprisonment (“MPI”) of 15 months’ imprisonment. He appeals on the basis that the sentence imposed was manifestly excessive.

Facts

[1] The agreed summary of facts states that between 1 December 2014 and 27

January 2015 the appellant approached the victim, a nine year old boy, on two separate occasions. He had no relationship with or connection to the victim, but simply met him on the footpath. On both occasions he gave the victim money.

[2] The summary of facts goes on to say that at about 1 pm on Tuesday 27

January 2015 the appellant drove his motorbike to the victim’s address. The summary of facts does not state how the appellant came to know the victim’s address. Nor is it abundantly clear that the occasions on which the appellant offered the victim money occurred on two separate occasions that pre-dated the offending. The summary of facts should have made this clear. However, I am prepared to read it as referring to two separate occasions of money being offered to the victim together with two instances of offending on the one day, which were closely linked in time.

[3] The parole conditions imposed upon the appellant following his release from prison for offending of a similar, but more serious character, expired on 15

December 2014.² The reference in the summary of facts to dates between 1

December 2014 and 27 January 2015 leaves open the possibility that the appellant first approached the victim at a time while the appellant was still on parole. However, the Crown does not know precisely when the appellant approached the victim and offered him money. The summary of facts is ambiguous in that as

_{presently stated it can be read to suggest that the first approach to the victim}

¹ Contrary to s 132(3) of the Crimes Act 1961. The maximum penalty for this offending is 10

_{years’ imprisonment.}

² These conditions provided that the appellant could not associate with children under the age of

16 without approval.

occurred while the appellant was still on parole. On the other hand, it is equally probable that the approach occurred sometime after 15 December 2014, but before

27 January 2015.

[4] It is regrettable that the summary of facts contains this ambiguity as there would be serious implications for the appellant if one of the acts of offering the victim money had occurred while the appellant was still on parole for his previous offending. Such conduct would amongst other things, display contempt for legal orders that were designed to discourage him from re-offending.

[5] The Crown is responsible for the preparation of the summary of facts to which the appellant entered his guilty plea. The summary was altered as a result of discussion between the Crown and the appellant’s counsel. Therefore, there was the opportunity to ensure the summary of facts provided an unambiguous narrative of the facts on which the Crown relied to support the conviction.

[6] I consider that I should approach the ambiguity in the summary of facts by adopting an interpretation that is favourable to the appellant. Thus I will view the two occasions on which the appellant offered the victim money as having occurred after the expiry of the appellant’s parole conditions.

[7] At the time of the offending on 27 January the appellant approached the victim and his 11 year old brother in front of their home. He asked if the victim remembered him and put his hand on the victim’s head before rubbing it down his back to his bottom and patting his bottom.

[8] The appellant then gave the victim and his brother money before touching the victim again. The second time, the victim came forward to hug the appellant. The appellant returned the hug and slapped the victim’s bottom.

[9] Two passing Public Health nurses intervened and alerted the victim’s parents.

[10] The appellant was 72 at the time of offending. The two charges are based on

the two times the appellant touched the victim’s bottom over the top of his clothes.

Pre-sentence report

[11] The pre-sentence report writer recommended imprisonment given that the appellant continued to display predatory type behaviour on young people, despite undergoing the SAFE network sexual offender programme. Electronically monitored sentences were canvassed and the appellant’s address was assessed as suitable for home detention or community detention.

[12] The report writer noted that:

(a) The appellant was assessed as being at a high risk of reoffending in a sexual manner. This was based on the apparent grooming of the victim, and that the first offence was committed whilst he was still subject to parole conditions for the same offence.³

(b) The appellant was considered to pose a high risk of emotional harm to others given the nature of his offending. However, he had no violent convictions and was assessed as a low risk of physical harm.

(c) The appellant had accepted that the offending was “dumb and stupid” but appeared to minimise the offending by stating that “it is not as if I am in a relationship with the child.” He was aware of his special condition regarding non-contact with persons under the age of 16 years but attempted to present the first offence as an isolated incident. He admitted that he deliberately sought the victim out.

(d) The report writer stated that there remained concerns regarding the

appellant’s understanding and control of his sexual urges.

[13] At the sentencing the appellant provided two letters from his adult daughters, who both note the important role that he plays in their families. Both daughters have

_{young children.}

³ This last comment is based on a false assumption.

Sentencing

[14] The appellant was sentenced on 8 July 2015 by Judge GA Andrée Wiltens. The Judge noted first that the maximum penalty for each charge was 10 years’ imprisonment; reflecting the seriousness of the type of offending.

[15] After setting out the agreed summary of facts the Judge noted that while the appellant said that the victim’s father was watching what was going on and was not concerned, the fact that two public health nurses were sufficiently concerned to raise the alarm was an indication of the seriousness of the offending.

[16] The Judge then noted the aggravating factors identified by the prosecution. First, this was the same victim on two occasions in fairly close succession. Second, the indecencies were of a moderate nature: hugging and touching or slapping the buttocks. The Crown said this was grooming. The appellant met the victim initially, gave him money, found out where he resided, went to his home, had further contact and gave the victim more money. The Judge accepted as “clearly correct” the Crown’s submission that the appellant targeted the victim. Finally, the prosecution said that the victim was playing in his front yard where he was entitled to feel safe; he was also in a vulnerable situation when an adult came and offered him money. The Judge accepted that all of these aggravating factors were present.

[17] The Judge then noted that both parties had cited a number of cases and accepted the Crown’s submission that the starting point should be two years’ imprisonment.

[18] Judge Andrée Wiltens then discussed the appellant’s previous convictions, noting that the appellant had a conviction for doing an indecent act from 2006, and two further convictions from incidents in 2007 and 2009. The appellant was sentenced for all of this offending in 2010. The Judge stated “[s]o, that involved

_{five charges in 2006, two in 2007 and two in 2009 of a similar nature.”}⁴ _The

4. This comment at [9] of the sentencing notes suggests nine earlier offences, in fact there were only five previous offences of this nature.

previous offending involved grooming and the exchange of money, although significantly more than in the current circumstances.

[19] Noting the seriousness of the offending, that it occurred on a number of occasions and was of a very similar nature, the Judge considered that it warranted an uplift of 12 months’ imprisonment, bringing the starting point to three years’ imprisonment.

[20] The Judge then stated that he was taking into account the fact that the appellant had attended a SAFE programme, though he recognised that this appeared not to have achieved much. The pre-sentence report indicated that the appellant was at a high risk of re-offending in a sexual manner, was still subject to the conditions of parole, and was in breach of parole when he committed the offending. Judge Andrée Wiltens stated that the report writer said the appellant was a high risk of emotional harm to others but a low risk of physical harm; that children were still at risk from the appellant and accordingly that the appropriate sentence was a period of imprisonment.

[21] The Judge then considered the victim impact statement, provided by the victim’s father. He noted that his father stated that his son does not understand what really happened to him.

[22] The Judge accepted that the appellant was entitled to a 25 per cent discount for his guilty plea, resulting in an end sentence of 27 months’ imprisonment. The Judge considered that this was the least restrictive outcome available in the circumstances because the need to protect children’s safety was the most significant sentencing factor. The Judge also said he needed to denounce the appellant’s conduct, have regard to the gravity and culpability of the offending, and hold him accountable. The Judge considered that while the letters from the appellant’s daughters did the appellant credit, and while he took them into account, they did not reduce the seriousness of the offending.

[23] Finally, the Judge considered that an MPI was required. He accordingly imposed an MPI of 15 months’ imprisonment. The Crown had not applied for an MPI to be imposed.

Appellant’s submissions

[24] The grounds of appeal are that:

(a) The District Court Judge adopted too high a starting point;

(b) The Judge erred in the amount of uplift for the previous convictions; (c) The Judge erred by failing to properly assess the appellant’s personal

circumstances; and

(d) The Judge erred in imposing an MPI without giving notice to either counsel.

[25] With regards to the first submission, relying on four similar cases, the appellant submits that a starting point of 12 to 15 months’ imprisonment would have been appropriate. The offending occurred in a public place and was observed by the victim’s father, who did not have any concerns until he later learnt of the appellant’s previous offending. Additionally, there was no evidence of any negative effect on the victim.

[26] The first case relied on is Shaw v R.⁵ In this case the appellant was found guilty of four counts of doing an indecent act on a child under 12, and one count of indecent act on or in the presence of a person aged 12 to 16. The first incident involved the appellant touching a 12 year old girl’s bottom twice at a supermarket. The second incident occurred two hours later. The appellant followed three children into a games arcade. The appellant stood behind the ten year old girl as she sat on a motorbike, told her to lean forward and put his hand under her bottom and between

_{her legs and rubbed her crotch area three or four times, each for about a minute. He}

⁵ Shaw v R [2014] NZCA 322.

then did the same thing to a six year old girl who was also sitting on a motor bike. Three months’ later, the appellant was at a swimming pool. He got into the pool, put a six year old girl on his knee and put his arms around her waist. The girl’s mother came out of the changing room and told her daughter to get out of the pool. The fourth incident occurred at the same pool, when he tickled the bottom of a seven year old girl as she swam past.

[27] The Court of Appeal upheld the starting point of two years’ imprisonment that the sentencing Judge had adopted for the two charges relating to the games arcade. The Court also considered that the uplift to two years six months’ imprisonment to recognise the totality of the offending was appropriate.⁶

[28] The appellant also points to the sentencing Judge’s remark that “I would have thought 12 months on each as a start point would not be out of the ordinary in terms of the cases” to submit that the other offences were of a similar nature to the current case and suggest that a 12 month starting point would have been appropriate.⁷

[29] The second case relied on is Kennedy v R.⁸ In this case the appellant had grabbed the victim’s hand during a hug and forced it down the front of his trousers into his groin area. The victim felt skin and hair in his groin area. The appellant told the victim that when she gave him a hug his “sausage grows”. The sentencing Judge adopted a starting point of 15 months’ imprisonment and an end sentence of 12 months’ imprisonment. The end sentence was considered to be entirely within range.

[30] Although the appeal concerned the Judge’s decision not to impose home detention, the Court noted that there was no error in the Judge’s assessment of culpability. The Judge had noted the offending involved a serious breach of trust and skin on skin touching. The Court considered that the Judge could have also referred

_{to the tender age of the victim, who was nine years old.}⁹

⁶ _{At [12].}

⁷ _{Cited in the Court of Appeal’s decision at [8].}

⁸ Kennedy v R [2011] NZCA 569.

[31] The appellant submits that due to the breach of trust and skin on skin contact, this case is more serious than the current case. The appellant accordingly submits that 15 months’ imprisonment should be seen as the top of the available range in this case.

[32] The appellant also cites R v Ranga.¹⁰ The appellant in this case had arrived home at a place he was boarding, having been drinking heavily. The occupant’s six year old grandson was staying for the weekend in the appellant’s normal bedroom. On returning to the address, the appellant climbed into bed with the child, kissed him on the cheek, put his hand inside his jeans and touched his genitals. When he woke up the appellant asked whether the victim wanted him to stop touching him. He said yes, but the appellant continued.

[33] The appellant had four convictions for indecently assaulting a female over 16 in 2006, one conviction for doing an indecent act also in 2006, and one conviction for doing an indecent act upon a girl under 12 in 2007.

[34] On sentencing Woolford J noted that counsel agreed that the appropriate starting point for the type of offending was 15 to 18 months’ imprisonment. Woolford J considered the relevant factors were that it was a relatively brief, one off encounter, distress and anxiety had been caused to the child, it involved actual touching of the genitals of a vulnerable sleeping child, the child’s youth, that the appellant thought the child was a different child but persisted anyway when he realised, and that the offending involved an abuse of trust.

[35] Woolford J adopted a starting point of 18 months’ imprisonment, uplifting this by six months to reflect the appellant’s previous convictions.¹¹

[36] The appellant submits that the offending in this case had a serious effect on the victim and was a serious aggravating factor not present in the current circumstances. Accordingly, the appellant submits that 18 months’ imprisonment is

_{outside of the range available in this case.}

¹⁰ R v Ranga [2014] NZHC 2583.

[37] The final case cited by in the appellant in relation to the starting point was R v S, where the Court of Appeal allowed an appeal against an end sentence of 20 months’ imprisonment for a representative charge of indecent assault.¹²

[38] The appellant was in a de facto relationship with the victim’s aunt. The victim, who was 15 at the time, visited them regularly, up to three times a week, between January and April 2004. The appellant indecently assaulted the victim about ten times over this period. He would wait until they were alone, and then touch her breasts and buttocks over the top of her clothing. He also tried to touch her genitals. The incidents were described as “fleeting in character”.¹³

[39] The Court of Appeal noted that the repetition was an aggravating factor. The offending had taken place over a four month period and must have caused the victim considerable distress. The Court considered that the appropriate starting point was

18 years’ imprisonment.¹⁴

[40] The appellant submits that the ongoing and repetitive nature of the offending was not present in this case and the starting point should accordingly be lower.

[41] In relation to the uplift, the appellant submits that the Judge wrongly considered that the appellant had nine previous convictions of a similar nature rather than five. The appellant states that this materially influenced the Judge’s decision to uplift. The appellant also submits that a 12 months’ uplift was out of proportion to the starting point adopted as it represented a 50 per cent uplift. The appellant submits that an uplift of three to six months’ would have been appropriate.

[42] The appellant relies on Tiplady-Koroheke v R where an uplift of six months for previous convictions was held to be out of proportion from a starting point of two years’ imprisonment (being a 25 per cent uplift) on an assault with intent to injure charge. The Court of Appeal reduced the uplift to three months’ imprisonment,

_{which effectively equated to a 12.5 per cent uplift.}¹⁵

¹² _{R v S CA465/05, 13 March 2006.}

¹³ _{At [2].}

¹⁴ _{At [19].}

¹⁵ Tiplady-Koroheke v R [2012] NZCA 477 at [32].

[43] The appellant also relies upon Beckham v R¹⁶ where the Court of Appeal referred to the need for some proportionality between the starting point and the uplift. Again an uplift equating to 25 per cent of the starting point was rejected by the Court of Appeal. On a starting point of two years’, six months’ imprisonment a six months’ uplift for previous convictions was set aside on the basis that nothing in the appellant’s record suggested an uplift was necessary for deterrence or otherwise.

[44] The appellant submits that his previous offending is chronologically not too dissimilar to the convictions in Tiplday-Koroheke, which would not justify a 50 per cent uplift when proportionality is considered. The appellant also submits that he should not receive another sentence for his previous offending.

[45] The appellant also argues that the Judge failed to appropriately consider the appellant’s personal circumstances; in particular, that he did not take into account the appellant’s rehabilitative efforts. The appellant submits that completion of the SAFE programme shows his remorse for his behaviour. The appellant also states that he was willing to partake in a restorative justice programme but this was deemed untenable by the Judge, who did not undertake proper consultation with a suitable

person.¹⁷

[46] Finally, the appellant submits that the Judge should not have imposed an MPI where it was not sought by the Crown and he had not heard submissions on the matter. The appellant therefore submits that the issue should be heard de novo by this Court.¹⁸

[47] The appellant submits that after proper consideration of the circumstances of the case, the appellant would be eligible for an electronically monitored sentence. The appellant submits that there was no rehabilitative aspect of the sentence imposed and that imprisonment will have little positive impact on his efforts at rehabilitation. The appellant has family support and will have professional support in the

_{community if allowed to engage with the SAFE programme as part of his sentence.}

¹⁶ _{Beckham v R [2012] NZCA 290 at [85].}

¹⁷ _{Section 24AA Sentencing Act.}

¹⁸ Relying on Fleming v R [2011] NZCA 646.

Crown’s submissions

[48] The Crown submits that the appeal should be dismissed.

[49] First, the Crown submits that the starting point of two years was within range. The Crown submits that the offending is of a similar level of serious to two cases, R v Tepania and Shaw v R where starting points of two years’ imprisonment were adopted.¹⁹

[50] In R v Tepania, Woolford J sentenced the offender in relation to one charge of indecent assault on a child under 12 years old. The Crown sought preventive detention as the offender had 86 previous convictions which included numerous convictions for sexual offending including three counts of rape, five counts of indecent assault on a female over 16 and two counts of unlawful sexual connection with a female over 16. The offender had entered a Salvation Army store, purchased an item and continued to walk around the store. 45 minutes later an 11 year old girl entered the shop and became separated from her family. The offender began to follow her, placing himself between her and a bookshelf and proceeded to stroke her arm. As she moved away he got a grip on the victim’s dress, and then touched her on her legs. She moved away and he followed her and stroked her on the buttocks on the outside of her clothing. Woolford J adopted a starting point of two years’ imprisonment, noting that he was concerned that the appellant had offended in this way in a public place. His Honour considered the offending was impulsive and opportunistic. He uplifted the sentence by 15 months to reflect the offender’s previous convictions and, allowing for a 25 per cent discount for the guilty plea, arrived at an end sentence of two years’ five months’ imprisonment. He also

imposed an MPI of 18 months’ imprisonment.²⁰

[51] The Crown points to the aggravating factors in the current case: meeting the victim in public, giving him money and travelling to the victim’s house. Further, the circumstances are indicative of grooming, and the level of premeditation is

_{significantly higher than in Tepania or Shaw. Although the Crown accepts that the}

¹⁹ _{R v Tepania [2014] NZHC 2230; and Shaw v R, above n 5. Shaw has been addressed earlier.}

²⁰ At [74].

level of violation was low, as in both cases it involved touching of the buttocks over top of the clothes, although in Shaw the offending also involved touching the crotch.

[52] Turing to the 12 month uplift imposed for the appellant’s previous offending, the Crown submits that this was well within range. The Crown does not accept the appellant’s submission that the District Court Judge wrongly thought the appellant had nine relevant previous convictions, but interprets the passage relied on by the appellant as the Judge stating that there were five previous convictions.

[53] The Crown notes that the prior convictions involved offending against a 13 year old boy between 2006 and 2009. The Crown submits that the similarity in the type of offending; that is, offending of a sexual nature involving young boys employing grooming methods including giving the boy money, as well as the fact that the previous offending took place recently and the appellant served a period of imprisonment for it, meant that a significant uplift was necessary.

[54] The Crown relies on three cases where significant uplifts for previous offending were given:

(a) In Shaw v Department of Internal Affairs the appellant appealed a sentence of two years’ two months’ imprisonment on two charges of distributing objectionable publications and a concurrent sentence of

18 months’ imprisonment on 19 charges of being in possession of objectionable material. A nine month uplift from a starting point of two and a half years’ imprisonment was given for historical offences of indecent assault on a boy under 12 and nine charges of inducing or permitting a boy under 12 to perform an indecent act. The High Court dismissed the appeal noting that the uplift was not in error given that the current offending also involved child victims of sexual

exploitation.²¹

(b) In Anson v R the Court of Appeal allowed an appeal relating to three

_{counts of sexual offending against two of the appellant’s step-}

²¹ Shaw v Department of Internal Affairs HC Whangarei CRI-2010-488-5, 10 March 2010 at [11].

grandchildren. The District Court Judge had given an 18 months’ uplift from a starting point of four years to take into account previous offending against the children’s mother 24 years’ earlier. The Court of Appeal considered that a 12 months’ uplift was appropriate, noting that the fact that the previous offending had been against the victim’s mother did not warrant a greater uplift than if it had been against

another young girl.²²

(c) Finally, in R v Van Wakeren the appellant appealed an uplift of 50 per cent from the starting point of two years for a charge of fraud. The appellant had about 160 previous dishonesty offences, 84 of which were for fraud. The Court of Appeal dismissed the appeal noting that previous offences reflected on an offender’s character and could indicate a predilection to commit the particular type of offence. The Court considered that there was a need to protect the public from this

appellant for as long as reasonably possible.²³

[55] The Crown submits that the appellant’s previous convictions are analogous to those in Shaw v Department of Internal Affairs and are more serious given the very similar nature of the previous offending. Anson indicates that an appropriate uplift for prior sexual offending against a young person is in the range of 12 months’ imprisonment. Accordingly, the Crown submits that the uplift was appropriate.

[56] In relation to the appellant’s personal circumstances, the Crown submits that while the Judge did not explicitly address the appellant’s willingness to engage in restorative justice, he did note that previous attempts at rehabilitation had been unsuccessful. The Crown submits that no discount for the appellant’s personal circumstances was necessary.

[57] Finally, the Crown agrees that the Judge should not have imposed an MPI in the absence of submissions from either party. However, the Crown submits that the

_{offending in this case and the circumstances of the appellant suggest that serving}

²² _{Anson v R [2014] NZCA 135 at [55] and [56].}

²³ R v Van Wakeren [2008] NZCA 492 at [11].

one-third of the sentence will be insufficient to meet the purposes specified in s 86 of the Sentencing Act 2002. Protection of the community and deterrence of appellant’s “disturbing pattern of behaviour” are paramount considerations in this case. Accordingly, the Crown submits that the Court should order an MPI of 15 months’ imprisonment.

Appeal

[58] The appeal is brought under s 250 of the Criminal Procedure Act 2011. Accordingly, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed.²⁴ This section was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.²⁵ Accordingly, the appellant must demonstrate some error on the part of the sentencing court, in that the sentence is manifestly excessive or wrong in principle.²⁶

Analysis

Starting Point

[59] Both parties rely upon Shaw v R. The appellant contends that the offending here is similar to the less serious offences in Shaw v R, which also involved a child’s bottom. The Crown relies on Shaw v R to argue that by comparison the present offending is worse as it involved premeditation and grooming of the victim.

[60] I consider that Shaw v R and the present case are around the same level. In Shaw v R the actions were more serious as they involved persistent touching of a young girl’s crotch and touching between her legs, as well as touching on the bottom of the victim and later another victim in a different setting. However, the conduct in Shaw v R appeared to be more opportunistic than was the case here. This is why I reject the appellant’s submission that the incidents of touching on the bottom in

_{Shaw v R are comparable to the present offending. I accept that here the interaction}

²⁴ _{Criminal Procedure Act 2011, s 250(2).}

²⁵ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].}

²⁶ R v Shipton [2007] 2 NZLR 218 (CA) at [138].

with the victim on three separate occasions reveals a degree of premeditation, though at the lower end of the scale. Similarly the grooming is at a low level. So, Shaw v R is supportive of a starting point of two years’ imprisonment.

[61] The Crown also relies on Tepania as support for a two year starting point. However, I consider Tepania involved more serious offending. It involved coercion insofar as the offender persisted with his efforts when the victim moved away from him. Whilst the offending in Tepania was described as impulsive and opportunistic, which would make it less serious than in the present case, it also had sinister overtones, which are missing here. The reader cannot help but conclude that what occurred would have been an unpleasant experience for the victim, whereas in the present case what occurred disturbed neither the victim nor his father. Accordingly, I view Tepania as supporting a starting point that is less than two years imprisonment.

[62] I see the present offending as less serious than in Kennedy v R, where there was skin on skin contact with the offender’s groin area, and Ranga v R, where the offender touched the genitals of a sleeping victim and continued to do so after the victim woke up, despite the victim wanting the touching to stop. I note that in both Kennedy and in Ranga starting points of less than two years’ imprisonment were adopted. Similarly the offending in R v S was more serious than the present offending. There the offending was persistent, occurring approximately ten times, it involved touching an adolescent female’s breasts and buttocks as well as attempts to touch her genital region. Again a starting point of less than two years’ imprisonment was adopted.

[63] I have also considered R v Neil, where Brewer J sentenced an offender for one charge of doing an indecent act on a child aged two years.²⁷ The offender was already subject to a sentence of preventive detention. He went to the swimming pool and sat in the children’s pool area, watching children play. The offender stated that he became aroused looking at teenage girls. He noticed a five year old boy, who had become separated from his family. He reached out to the victim, who climbed over

him, and the offender grabbed his hand, placing it on his exposed and erect penis.

_{Brewer J adopted a starting point of 18 months’ imprisonment. Brewer J noted that}

²⁷ R v Neil [2014] NZHC 2378.

the incident occurred once and only briefly, however, it was in a public place while the victim was separated from parental supervision. Even though the offending was not specifically premeditated, the offender had deliberately gone into the children’s area, placing himself at risk.²⁸

[64] Based on the cases I have considered I accept the appellant’s argument that the starting point of two years imprisonment was too high. The touching was brief and occurred over top of the victim’s clothing, meaning that the actual touching was less serious than in many of the above cases. The victim was unaffected by the experiences, and appears not to have realised what was occurring. However there are serious aggravating features insofar as there was some premeditation and there were some grooming of the victim. Without those features I consider a starting point of 12 months’ imprisonment would have been appropriate. But given their presence I consider that an appropriate starting point would be about 18 months’ imprisonment.

Uplift for previous convictions

[65] The next ground of appeal is the 12 month uplift given for the appellant’s previous convictions. In Tiplady-Koroheke v R the Court of Appeal noted that previous convictions could indicate a tendency to commit the particular type of offence for which the offender is convicted or could bear on the issue of character. It stated that issues of deterrence and protection of the public might require an uplift.²⁹

The Court considered it important that there be some proportionality between the

starting sentence and any uplift. The Court quashed the six months uplift from a starting point of two years’ imprisonment, stating that no more than three months’ would be appropriate. The appellant had two previous sets of convictions for violent offending; one for common assault in 2004 and three counts of wounding with intent

_{to injure in 2006.}³⁰

²⁸ _{At [14].}

²⁹ _{Beckham v R, above n 16, at [84] as cited in Tiplady-Koroheke v R above n 15, at [23].}

³⁰ At [24].

[66] Here the Crown cautioned against the Court paying too much regard to percentages. However, it seems to me that these are a helpful way of assessing whether an uplift is proportional or not.

[67] The appellant has five relevant previous convictions. Two charges of does an indecent act with a boy 12 to 16 years from 2007 to 2009; two charges of unlawful sexual connection with a male aged 12 to 16, from the same time period and one charge of does an indecent act with a boy under 12 from 2006. The appellant was sentenced for all five offences in 2010. This offending involved a 13 year old boy whom the appellant paid to do occasional work, spending between $3,000 and

$4,000 over a period of three years. The present offending occurred shortly after he was released from parole for the previous offending.

[68] An uplift of one year, or 50 per cent, for the appellant’s previous convictions is inconsistent with the decision in Tiplady-Koroheke v R. I consider that an uplift of six months would be sufficient, given the similarity of the other offending. Such an uplift equates to 25 per cent of the starting point. This is in proportion with the uplift in Anson v R. While the appellant courts in Shaw v Department of Internal Affairs and in R v Van Wakeren did not find a 50 per cent uplift objectionable, this finding was made in the context of more serious offending and where the offender had a more extensive criminal history.

[69] An uplift of six months’ imprisonment brings the starting point to 24 months’

imprisonment.

Personal Circumstances

[70] The appellant argued that the Judge failed to give him an adequate discount for his rehabilitative efforts.³¹ This submission is based on the appellant’s completion of the SAFE programme as well as his willingness to engage in

_{restorative justice programmes. The Crown acknowledged that as regards restorative}

³¹ For example in B v R the Court of Appeal allowed the appeal because of his strong family support, considering that it was a case where the Court should give real weight to the appellant’s rehabilitative prospects: B v R [2011] NZCA 173 at [30].

justice the sentencing Judge had excluded it without giving proper consideration to the requirements of s 24AA of the Sentencing Act.

[71] The appellant completed the SAFE programme in November 2013, before committing the current offending. As I have discussed, at best the first time the appellant made contact with the victim, he was recently released from parole. In these circumstances I do not consider that the Judge was wrong not to give the appellant credit for rehabilitative efforts. Either the appellant is a recalcitrant offender who lacks insight into this offending or the SAFE programme failed him and he is someone who needs greater help to manage and control his unacceptable proclivities.

[72] The appellant received 25 per cent discount for his guilty plea. I see no reason to interfere with that discount. This brings the end sentence to 18 months’ imprisonment.

MPI

[73] Under s 86(1) of the Sentencing Act 2002, a court may order than an offender serve an MPI in relation to that particular sentence if it sentences the offender to a determinate sentence of imprisonment of more than two years.

[74] As the end sentence that I have reached is less than two years imprisonment, there is no jurisdiction to impose an MPI. I observe that in the present case it was wrong to impose an MPI without the appellant first having the opportunity to be heard on that subject. Since the Crown did not seek an MPI the appellant had no idea that he was at risk of this being imposed. In such circumstances if the sentencing Judge thinks circumstances warrant an MPI he or she should indicate this line of thinking to the appellant’s counsel before an MPI is imposed. That way, the

_{appellant has the opportunity to address this aspect of the sentence.}³²

³² R v Grant [2009] NZCA 266 at [18]; and Byford v R [2011] NZCA 116 at [25].

Conclusion

[75] When the sentence imposed in the District Court is compared with the sentence that I have reached, the sentence is shown to be manifestly excessive. I have reached a sentence of less than two years’ imprisonment, and must address whether home detention would be appropriate.

[76] In Read v R the Court of Appeal noted that s 15A of the Sentencing Act, which allows the Court to commute a short-term sentence of imprisonment to home detention, does not require exceptional circumstances before home detention may be imposed. However, in cases of sexual assaults on children, imprisonment is the “ordinary sentencing response.”³³

[77] In Kennedy v R the Court of Appeal rejected the appeal against the Judge’s decision not to impose home detention, noting that it was open to the Judge to conclude that the principles of sentencing would not be met by adopting a sentence of less than imprisonment. The Court considered that the breach of trust, age of the

victim and extent of the indecency required denunciation and deterrence.³⁴

Similarly, in B v R the Court of Appeal considered that home detention would not be appropriate despite the appellant’s strong family support and rehabilitative prospects.³⁵

[78] There are good grounds, therefore, for finding that a sentence of home detention would not adequately address the principles of denunciation and deterrence and would not protect the community, given the similarity of the appellant’s previous convictions, the premeditation involved in the offending and the high risk of reoffending the appellant poses. Additionally, I note that the cases discussed above, involving similar levels of culpability all resulted in sentences of imprisonment being imposed.

[79] However, the appellant’s counsel persuasively argued for the Court to take an approach that placed a greater emphasis on the appellant’s rehabilitation. His

³³ _{Read v R [2012] NZCA 335 at [18].}

³⁴ _{Kennedy v R, above n 8, at [13].}

³⁵ B v R, above n 31, at [30]. Key factors influencing the Court were the appellant’s alcoholism

and that the indecent assault had occurred at his house, with his daughter being the victim.

counsel acknowledged that unless successful remedial steps are taken to address the appellant’s behaviour he is at risk of ongoing offending on his release from his present sentence of imprisonment. It was also acknowledged that this is likely to lead to further sentences of imprisonment, if not a sentence of preventive detention.

[80] The appellant spent from 2 July 2012 until 13 November 2013 participating in the SAFE adult general treatment service. The promotional material of SAFE shows it to have a 95 per cent success rate. Whilst a letter from SAFE describes the appellant as having successfully completed the programme he attended, the present offending shows this not to be the case.

[81] It is clear that something needs to be done about the appellant’s conduct. That he would reoffend so soon after release from parole for similar offending suggests to me that he may have a problem that he is unable to control, rather than him being someone who has wilfully chosen to commit a particular form of offending. I consider, therefore, that despite the approach in Read v R and Kennedy v R, this Court should at the least explore the possibility of imposing a sentence that would ensure the appellant received specialist rehabilitative treatment. At present it is not clear to me whether that could be better achieved by the appellant serving a sentence of home detention with him being granted leave to attend in-depth specialist treatment for his sexual offending. The Court needs to have more information before it before it can contemplate a departure from the usual approach to this type of offending where sentences of imprisonment are imposed, even when home detention is an available option.

[82] If a sentence of home detention is to be imposed the Court needs to have placed before it a carefully prepared, well structured programme that gives the Court confidence there is a real likelihood that the appellant’s participation in a specialist rehabilitative programme is possible and is likely to result in his sexual offending coming to an end.

[83] I propose, therefore, to issue this judgment as an interim judgment. It will then be for the appellant to take steps to have the necessary information placed before the Court.

[84] The registry is to arrange a telephone conference with counsel at a time suitable to counsel, but within 10 working days of the delivery of this interim judgment. The purpose of the conference is to make any directions that may be required and to allocate a date for the resumption of the hearing of this appeal.

Duffy J