T v R [2018] NZHC 3274 (12 December 2018)

Last Updated: 20 February 2019

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SS 203AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-31 [2018] NZHC 3274

BETWEEN	T Appellant
AND	THE QUEEN Respondent

Hearing:	6 December 2018
Counsel:	J C Hannam for Appellant R K Thomson for Respondent
Judgment:	12 December 2018

JUDGMENT OF THOMAS J

[1] The appellant, Mr T, was sentenced in the District Court to 21 months’ imprisonment following his guilty pleas to two charges of doing an indecent act on a child under 12.¹ Mr T takes no issue with the length of the sentence but appeals against the decision declining to substitute it for a sentence of home detention. He does so on the basis the Judge placed too much weight on a psychiatric report and insufficient weight on the principle of imposing the least restrictive outcome.

¹ R v T [2018] NZDC 24058.

T v R [2018] NZHC 3274 [12 December 2018]

Factual background

[2] In mid-2016, Mr T’s daughter disclosed incidents of sexual offending against her which had occurred in 2008–2009, when she was aged between six and seven years old and Mr T was 25. She initially disclosed two incidents of offending, with another alleged incident giving rise to a charge of unlawful sexual connection. The latter charge was dropped when Mr T pleaded guilty to the two indecent act charges stemming from an earlier incident.

[3] At the time, Mr T, his wife and their seven children lived on a farm in the South Island. Mr T and his wife alternated between farm work and looking after the children. Sometime in 2008–2009, Mr T told his daughter to go into his bedroom. When she did, he took off his pants and began to play with himself. He took her pants off and touched her vagina with his hand. He then rubbed his penis against her body. He told her not to tell her mother.

[4] When questioned by the police following the victim’s disclosure, Mr T denied the offending.

[5] Two pre-sentence reports were prepared. The first recorded that Mr T accepted his offending and expressed limited remorse and a desire to make amends to his daughter. It concluded there were no identified impediments to his ability to comply with a community-based sentence but recommended imprisonment due to the lack of a suitable address. The second report recorded Mr T’s changed position that he did not recall the offending. The report writer considered this compromised his suitability for rehabilitative interventions. It noted stressors in Mr T’s life at the time, as well as his use of cannabis. It assessed Mr T as at a low risk of re-offending but with a high risk of harm to others due to the long-term effects of sexual offending. Although the address for home detention was assessed as technically suitable, the report writer raised concerns that the address was within 15 metres of a local park and 500 metres of a dance school. The report writer acknowledged the difficulty in assessing Mr T’s likelihood of offending against non-familial children and that there had been no reported incidents during the several months Mr T was at the address while on bail. The report writer recommended imprisonment, noting imprisonment would result in
Mr T automatically being placed on the Child Sex Offender Register, whereas registration would be at the Court’s discretion if Mr T were sentenced to a community-based sentence.

[6] A report pursuant to ss 38(1) and 38(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 was called for to address sentencing options and the risk of re-offending. Dr McCarthy reported that Mr T was late for his appointment, having to be telephoned by Corrections to ensure his attendance. The appointment proceeded by way of AVL due to Mr T being in Hawera and Dr McCarthy in New Plymouth. Mr T said he had thought the appointment was for the following week. Mr T reported that he did not have any sexual preference for children, did not have a history of being a victim of sexual abuse and did not totally agree with the summary of facts of his offending. He said he would consider a treatment programme, but did not know if it would help, did not know what it would involve and did not consider himself a sex offender. Dr McCarthy recorded that the denial of offending, unwillingness to engage in assessment or treatment, unemployment and lack of a stable relationship were all risk factors present in Mr T’s case. She considered his victims were likely to be young girls within his family and that, when under stress from other unknown circumstances in the future, Mr T might be at risk of offending against non-familial children or children of different ages. Without addressing home detention, Dr McCarthy agreed with the pre-sentence report recommendation of imprisonment and recommended attendance at a child sex offender treatment programme.

[7] A restorative justice meeting was held after Mr T’s meetings with the probation officer and psychiatrist. It was attended by Mr T and his mother in support, the victim and her aunt in support, and facilitators. Mr T explained the stressors affecting him and the family at the time, and acknowledged the harm he caused his daughter. He explained that he did not recall the actual events and that he had pleaded guilty to avoid a trial where he considered it would be hard for him to be heard and more difficult for everyone, including his daughter and other children, who would have to give evidence. His daughter then described the impact of the offending on her, including her fear for her younger siblings, the effect on her relationship with her mother and her loss of a relationship with her grandmother, Mr T’s mother. Mr T’s
mother spoke of her regret at not staying in contact and indicated her love and support for Mr T’s daughter.

[8] By way of outcomes from the meeting, Mr T indicated he was willing to seek treatment and that he wanted to find out why it had happened and why he could not remember it. He was willing to share this information with his daughter, who was also keen to hear it. Mr T’s mother committed to making sure she was available for Mr T’s supervised visits of the other children. His daughter indicated she wished to resume contact with Mr T’s mother but she wished to take it slowly with Mr T. She felt it was important for the family to be together on special occasions but asked Mr T to be respectful of her need for space.

[9] In her victim impact statement, the daughter records that her relationship with Mr T went downhill when she realised what had happened to her. She is angry and battled for a long time to understand why. In a later formal statement to the police, the daughter expresses a wish that Mr T not receive home detention but is happy to accept whatever punishment the Courts see fit. She considers home detention would be insufficient punishment because it is not dissimilar to his current lifestyle.

[10] Mr T left the South Island some time ago and found employment at a meat works but at the time of sentencing was no longer employed. Prior to sentencing he was on bail at his mother’s address.

[11] Mr T has a limited criminal history consisting of theft and driving offences.

District Court decision

[12] In sentencing Mr T, the Judge outlined the offending and the reports noted above. He noted the s 38 report’s comments on Mr T’s negative attitude, his questioning of whether treatment programmes would be of assistance to him and his lack of motivation based on his near non-attendance for assessment. He recorded Mr T’s attendance at restorative justice, that it was a relatively successful conference and that Mr T was willing to engage in counselling.
[13] The Judge likened the offending to that in R v M, where a 20 month imprisonment end sentence was not commuted to home detention due to the seriousness of the offending. He distinguished it from R v Lewis, where a three year sentence was imposed for more serious offending. He recorded (and implicitly accepted) the Crown’s submission as to the aggravating factors of the offending as:

(a) premeditation in seizing an opportunity where other family members were not present;

(b) vulnerability of the victim due to age;

(c) considerable harm and breach of trust;

(d) degree of violation; and

(e) her defencelessness, the psychological harm and breach of trust.

[14] The Judge took a starting point of two years and six months’ imprisonment. He deducted two months for restorative justice (6.7 per cent), and 25 per cent for guilty pleas. That resulted in a sentence of 21 months’ imprisonment.

[15] Addressing defence submissions that home detention ought to be imposed, the Judge stated:

[18] The question that I need to turn my mind to is whether or not home detention is appropriate. I note that the Crown say it is not appropriate, the probation report does not regard it as appropriate, the psychologist’s report confirms the probation recommendation that it is not appropriate, but the end decision is mine.

[19] The Court must ensure that the purposes of denunciation and deterrence are met. When dealing with serious offending, imprisonment may be necessary to reflect adequately the need to denounce your actions and to deter others. In my view, this is serious offending and home detention is not appropriate, and accordingly you are sentenced to 21 months’ imprisonment.

[16] Due to the sentence being one of imprisonment, the Judge noted Mr T would be placed on the Child Sex Offender Register.

Submissions

[17] Mr Hannam, for Mr T, submitted the Judge erred in his assessment of home detention, namely by:

(a) giving too much weight to the s 38 report of Dr McCarthy; and

(b) giving insufficient consideration to the principle of imposing the least restrictive outcome that is appropriate in the circumstances.²

[18] With respect to the first matter, Mr Hannam submitted that because Dr McCarthy did not mention home detention in her substantive assessment, her report cannot be said to have given due consideration to home detention as an option. He also queried her conclusion on motivation, explaining that Mr T’s near non-attendance was the result of mis-recording the date on his calendar and thus not necessarily related to his motivation. He submitted the report did not address home detention in a balanced fashion and therefore it ought not to have been relied on.

[19] On the second matter, Mr Hannam submitted it is not inevitable for child sex offending to result in imprisonment. He submitted home dentition is available and appropriate in circumstances where responsibility has been accepted, the offending is historic, no further offending has been alleged, and a restorative justice process was successfully undertaken. Furthermore, Mr Hannam contended the Judge incorrectly interpreted Mr T’s comments as a denial of the offending and took that into account in assessing the seriousness of the offending.

[20] Ms Thomson for the Crown submitted there was no error in the decision and noted appellate courts have expressed reluctance to otherwise interfere with the discretion involved.³ She submitted the Judge referred to the opinions of report writers regarding home detention but expressly stated the decision was his to make. She submitted the Judge was entitled to take into account denials of the offending (or claims of being unable to remember it) because it hinders effective rehabilitation.

² Sentencing Act 2002, s 8(g).

³ R v D [2008] NZCA 254 at [66]; and Polyanszky v R [2011] NZCA 4 at [12]–[16].

Furthermore, she submitted the Judge was entitled to view the offending as of such seriousness to mean home detention was inappropriate.

Law

[21] Section 250 of the Criminal Procedure Act 2011 applies. In discussing the decision to commute a sentence of imprisonment to home detention, the Court of Appeal in Palmer v R said:⁴

• [17] Under s 250 of the Criminal Procedure Act 2011 a first appeal court must allow an appeal if satisfied that for any reason there is an error in the sentence and that a different sentence should be imposed. In Tutakangahau v R this Court examined the standard of appellate review in sentence appeals under the Act, holding that, as under the former legislation, this standard requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation. In Kumar v R the Court explained, citing Tutakangahau, that:

[81] This Court routinely characterises sentencing decisions as discretionary in nature. That characterisation recognises that to reach the end result the sentencing court must balance numerous and sometimes conflicting considerations, and that the range of outcomes within which reasonable disagreement is possible is frequently wide. Reference to discretion signals that this Court is exercising what it considers an appropriate degree of restraint in the circumstances. ... The Court’s jurisdiction is statutory and the legislation has long been interpreted to mean that the Court will intervene only if the sentence is manifestly excessive. A degree of restraint and deference to advantages of the trial judge is built into that standard, which has its own settled criteria: it requires a “material” error, which may be one of fact; the error may be shown by additional information supplied on appeal; the appellate decision ultimately focuses on the end result rather than the process by which it was reached; and once satisfied that a different sentence should have been imposed, this Court will normally substitute its own opinion for that of the sentencing judge.

[18] The standard of appellate review adopted in Tutakangahau applies to decisions not to commute imprisonment to home detention as it does to any other sentence. ...

[19] ... As William Young P pointed out in R v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation,

⁴ Palmer v R [2016] NZCA 541 (citations omitted).

either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.

Analysis

Section 38 report and rehabilitation

[22] I am not persuaded that the Judge relied on the s 38 report and Dr McCarthy’s conclusions regarding home detention to the extent that there was a material error. The Judge discussed the various reports prepared for the purposes of sentencing. He recorded what the psychiatrist had to say. He also recorded the outcome of the restorative justice process. What the Judge did not do, however, was attempt to reconcile the different comments regarding Mt T’s willingness to undergo rehabilitation.

[23] Although there is a measure of self-interest apparent in the restorative justice report, Mr T’s engagement with that process makes clear he desires to address his offending in a way which can mend the damage he has done to his daughter. The matters on his mind when pleading guilty were focused on the effects of a trial on him and his daughter, along with everyone else. He has indicated willingness to attend counselling in order to understand why he did it and why he does not remember the offending, and to share the outcomes of that counselling with his daughter. Those features of this case do not indicate someone who is lacking an inclination to engage with rehabilitation.

[24] Mr T’s comments to Dr McCarthy querying the efficacy of such programmes, in the context of being unable to recall the offending, indicate a person struggling with that inability rather than necessarily someone refusing to undergo any treatment. Importantly, the restorative justice meeting took place after Mr T’s meeting with Dr McCarthy.
[25] Mr T has, particularly in the later restorative justice meeting, demonstrated a willingness to engage with rehabilitation to a degree which ought to have weighed in his favour in the assessment of home detention.

Least restrictive sentence

[26] The Court of Appeal in Fairbrother v R stated:⁵

[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.

[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve 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.

[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”. Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.

[32] As this case involved sexual abuse of a child the Judge was obliged to consider carefully the appropriateness of a sentence of home detention. Because, as this Court said in Kennedy v R:

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

[27] In the case of Metua v R,⁶ the High Court considered the sentencing Judge’s assessment, which was as follows:⁷

The primary principles, however, remain denunciation and deterrence. While the reports provide me with some more background about your situation, they do not alter the indication I gave you that prison was the more appropriate response. It remains the least restrictive outcome.

⁵ Fairbrother v R [2013] NZCA 340 (citations omitted).

⁶ Metua v R [2018] NZHC 246.

⁷ R v Metua DC Auckland CRI-2017-004-003725, 20 July 2017, at [13].

[28] Hinton J found that assessment wanting:

[14] This approach did not fairly amount to a balancing exercise between imprisonment and home detention. It came perilously close to treating the option of home detention as precluded due to the nature of the charge. It gave priority to the principles of denunciation and deterrence without acknowledging those principles can also be served by a sentence of home detention in appropriate cases, and without having regard to the countervailing purposes of sentence. This amounted to an error in the Judge’s approach.

[29] I consider a similar criticism could be made in the present case. The Judge did not expressly acknowledge or address either s 8(g) of the Sentencing Act 2002, regarding the least restrictive outcome, or s 16, regarding the desirability of keeping offenders in the community and imposing imprisonment only where the purposes of sentencing cannot be achieved by a sentence other than imprisonment. That is not necessarily an error, as judges can be fairly assumed to bear these principles in mind. The issue is whether the Judge’s analysis demonstrated that approach. I am not persuaded it did.

[30] It is uncontroversial that home detention can be seen to meet the principles of deterrence and denunciation,⁸ something acknowledged by the Judge at sentencing. It is also uncontroversial that judges will “generally strive to avoid a custodial sentence where there is a genuine prospect of rehabilitation”.⁹ Given the key factors pointing away from home detention in this case appear to be the seriousness of the offending and the risk of ineffective rehabilitation, both of those matters ought to have been addressed by the Judge. Instead he focused on the former, without addressing whether home detention could adequately cater to Mr T’s rehabilitation needs.

[31] I agree with the Judge’s comment that this was serious offending. However, I do not agree with the notion that such seriousness can necessarily dictate which purposes and principles of sentencing are paramount in the circumstances of this case. There are few sentence appeals regarding this exact kind of offending which make their way to the Court of Appeal on which to draw analogies. Ms Thomson identified two which she considers comparable to this case, where the Court of Appeal has

⁸ R v Iosefa [2008] NZCA 453 at [41].

9. R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [22]. It should be noted that these comments were made in circumstances of dealing in class A drugs, which is less likely to attract community-based sentences with rehabilitative components.

refused home detention. Those cases concerned offenders who had pleaded not guilty and, in Paora v R, the offender continued to deny outright the offending and was assessed as at a high level risk of re-offending.¹⁰ The circumstances of those cases and the factors which weighed against home detention were therefore different from the present case.

[32] As to whether Mr T’s rehabilitation needs would be adequately met by home detention, in addition to my comments above, the support Mr T can gain from his mother is also relevant. Her balanced approach to her support of her son while acknowledging her commitment to supporting her granddaughter is evident in the restorative justice report. Furthermore, home detention can be accompanied by conditions requiring Mr T to attend rehabilitative treatment tailored to his needs. Mr T has not denied the offending per se but simply states he cannot remember it. He is willing to attend treatment.

[33] An additional factor which may also be relevant in an assessment of whether to substitute home detention is the effect of being placed on the Child Sex Offender Register (the Register).¹¹ Mr T, being convicted of a class two offence, is liable for reporting obligations for 15 years following his release from prison. If Mr T had been sentenced to home detention and made subject to an order placing him on the Register, he would be subject to reporting obligations for eight years. I consider the difference between a 15 and eight year reporting period to be significant enough in the circumstances to warrant consideration in the home detention assessment.

[34] I am satisfied a sentence of home detention will protect the community by providing Mr T with better support to assist him in his rehabilitation. In a case of this seriousness, I consider home detention when combined with a sentence of community work can also meet the purposes of denunciation and deterrence. That is, therefore, the least restrictive sentence that will satisfy the purposes and principles of sentencing.

¹⁰ Kennedy v R [2011] NZCA 569; and Paora v R [2011] NZCA 472.

¹¹ Bird v Police [2017] NZHC 1296 at [44]–[45]. This approach conforms with Bell v R [2017] NZCA 90 at [26]: it is not applying a discount due to the punitive element of the Register when setting the length of the sentence, rather it is assessing the appropriate type of sentence in all the circumstances – including the level of risk and the protection of the community. In some cases, consideration of the period of registration may well tell in favour of imprisonment.

[35] The proposed address is technically suitable but was flagged as potentially problematic due to being close to a park and a dance school. I note the Judge did not appear to consider the park a matter of great concern, stating it was under-utilised and he did not see any play equipment in the photographs. I note also that the dance school is some distance away. Furthermore, this was Mr T’s bail address for quite some period without incident. I am satisfied the address is suitable.

Placement on the Child Sex Offender Register

[36] A person sentenced to imprisonment for qualifying offences is automatically a registerable offender. A person sentenced to home detention may be ordered to be placed on the Register if the Court is satisfied he or she poses a risk to the lives or sexual safety of one or more children, or children generally,¹² the risk being that posed by a serious child sex offender.¹³ There is a range of mandatory factors:¹⁴

• (3) For the purpose of assessing the risk posed by the person, the court must consider the following matters:
  • (a) the seriousness of the qualifying offence:
  • (b) the period of time that has elapsed since the offence was committed:
  • (c) the age of the person:
  • (d) the age of the person at the time of the offence:
  • (e) the age of any victim of the offence at the time of the offence:
  • (f) the difference in age between the victim and the person at the time of the offence:
  • (g) any written assessment of the risk posed by the person:
  • (h) any submission or evidence from any victim of the offence:
  • (i) any other submission or evidence relating to the risk posed by the person:
  • (j) any other matter that the court considers relevant.

¹² Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(2).

¹³ Divergence in approach has emerged in the High Court regarding how this is to be assessed, particularly in cases where the starting point is set at a period of imprisonment. The approach adopted here is that of Dobson J in Johnson v Police [2017] NZHC 1718 at [12]–[31], which I endorsed in Fowler v Police [2017] NZHC 1892 at [20]–[38], as did Lang J in Dayaratne v Police [2018] NZHC 563 at [15]–[18]. Compare Simon France J in Goose v Police [2017] NZHC 2453 [26]–[30].

¹⁴ Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(3).

[37] If satisfied there is such a risk, the Court is left with a residual discretion to undertake a proportionality test as to whether the risk identified will be mitigated by registration.

[38] To take the mandatory factors in turn:

(a) The offending was serious but not egregious in that it was not accompanied by violence. It was, however, in the context of a significant breach of trust, accompanied by instructing the victim not to tell her mother.

(b) The offending took place nine years ago and no further allegations have arisen.

(c) It was against a six or seven year old child, Mr T’s daughter.

(d) Mr T was 25 at the time, and is 35 now.

(e) There was clearly a significant age gap.

(f) The appellant’s risk of re-offending was assessed as low in the pre-sentence report but with high risk of harm. The psychiatrist discussed the difficulty in predicting future risk and identified risk factors relevant to Mr T. She concluded, if under stress, Mr T may be at risk of offending against children if the opportunity presented.

(g) The victim does not comment on whether she wishes Mr T to be placed on the Register.

[39] It is relevant to the assessment that Mr T has engaged in restorative justice and clearly has considerable support from his mother. Furthermore, I accept the one-off nature of the offending and time since it occurred. However, the circumstances of the offending, the age of the child, the significant abuse of trust and implicit threats associated with the behaviour lead me to conclude that the risk posed to the sexual safety of one or more children does reach that of a serious child sex offender. I am
satisfied that the risk identified will be mitigated by registration. Placement on the Register is therefore appropriate.

Conclusion

[40] For the reasons given, I am satisfied the Judge erred in his analysis of home detention and that, on a fresh analysis, home detention is appropriate. I am also satisfied Mr T should be placed on the Register.

[41] The sentence of imprisonment is therefore quashed and replaced by a sentence of 10 months’ home detention at the address referred to in the pre-sentence report. The home detention sentence will be subject to the standard and proposed special conditions and post-detention conditions, post-detention conditions to apply 12 months from detention end date.

[42] Mr T is also sentenced to 150 hours of community work.

[43] Mr T is to be placed on the Child Sex Offender Register.

Thomas J

Solicitors:

Hannam and Co, New Plymouth for Appellant Crown Law, Wellington for Respondent