ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATION OR IDENTIFYING PARTICULARS OF
VICTIM/CONNECTED PERSON PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.html	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2018-404-000055
[2018] NZHC 859	

BETWEEN	GRAEME MCDONALD
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	30 April 2018	
Appearances:	M Kan on behalf of I Ko for Appellant Z Hamill for Respondent	
Judgment:	30 April 2015	

ORAL JUDGMENT OF VENNING J

Solicitors:	Crown Solicitor, Manukau Counsel:	M Kan, Auckland

MCDONALD v NEW ZEALAND POLICE [2018] NZHC 859 [30 April 2015]

[1]	Mr McDonald pleaded guilty to one charge of indecent assault. Judge G A Andrée Wiltens sentenced him to 10 months’ home detention with six months post- detention conditions.1 Mr McDonald appeals the sentence.

[2]	At the time of the offending Mr McDonald was 74 and the victim was 12 years old. She and her family were known to Mr McDonald and his wife. From time to time Mr McDonald and his wife had looked after the victim and her brother. The offending occurred when Mr McDonald took the brother and the victim to the spa pool at the complex where he lived. After the brother left the spa pool to go for a swim Mr McDonald pulled the victim close, rubbed her leg and then rubbed her vagina over the outside of her togs. She immediately got out of the spa pool and told her brother what had happened.

[3]	In sentencing Mr McDonald the Judge took a starting point of 18 months’ imprisonment noting the offending involved a breach of trust from a person in the position of an adult caring for a child. The Judge took into account Mr McDonald had no previous convictions and also took into account the guilty plea, although noting it was entered at a very late stage on the morning of the scheduled trial.

[4]	The Judge also took into account Mr McDonald’s age in arriving at an adjusted sentence of 12 months’ imprisonment.

[5]	The Judge accepted that in the circumstances of the case home detention was an appropriate and the least restrictive sentencing outcome. Nevertheless, he fixed the sentence at 10 months’ home detention.

[6]	The appeal is pursued on the grounds that the sentence was manifestly excessive because:

(a)	the Judge failed to take into account all relevant personal circumstances of Mr McDonald, and particularly his health;

1	New Zealand Police v McDonald [2018] NZDC 3130.

(b)	Mr McDonald’s remorse and efforts to make amends were not considered;

(c)	through counsel Mr McDonald had made an offer of reparation of
$5,000. The Judge accepted Mr McDonald was able to pay that but did not consider it appropriate and regarded it “almost akin to an attempt to buy your way out of trouble”. The Judge said he was not prepared to consider it;

(d)	a greater discount should have been provided for the guilty plea; and

(e)	the Judge departed from the general practice of halving the end sentence of imprisonment when calculating the length of the term of home detention.

[7]	Mr Kan submits the sentence should have been in the region of four months’ home detention.

[8]	The Crown says that while the Judge did not specify the quantum of the individual discounts he had regard to Mr McDonald’s lack of previous convictions and his age. The Crown submit it is a discretionary matter whether a medical condition or life stressor of a defendant is such that a discreet discount should be allowed to mitigate the penalty otherwise warranted by the circumstances of the offending. The Judge was entitled not to allow a further nominal discount for the factors in this case, and to the extent relevant it was effectively taken into account by the consideration of Mr McDonald’s age.

[9]	The Crown says the Judge took Mr McDonald’s remorse into account by converting the end sentence of imprisonment to home detention and the Judge was entitled to reject the reparation offer as not being genuine and was entitled to refuse to allow a further discount for it.

[10]	Next, the Crown submit the guilty plea discount had to be modest given the plea was only entered on the morning of trial. The victim had the stress of the proceedings hanging over her for 18 months or so.

[11]	Finally the Crown says the Judge was not obliged to halve the nominal end sentence when fixing the length of the home detention sentence. It does not automatically follow that such an approach should be adopted for all cases.

[12]	Standing back and looking at the matter overall the Crown submit the sentence imposed of 10 months’ home detention was within the available range having regard to the nature of the offending and the defendant’s personal circumstances. It was not manifestly excessive.

[13]	The appellant in this case had a number of personal mitigating factors the Judge was required to take into account in fixing the appropriate sentence.

[14]	It is difficult to assess the value the Judge attributed to each of the deductions the appellant was entitled to from the starting point of 18 months’ imprisonment as he did not expressly state them. It also appears that, contrary to Hessell v R the guilty plea reduction was considered during the process rather than at the end of the process after considering other personal mitigating factors.2

[15]	In the circumstances in order to test the end sentence it is necessary to consider it afresh.

[16]	Mr Kan noted that the Judge did not refer to the appellant’s medical condition. Mr McDonald was diagnosed with prostate cancer some time before this offending with complications that followed. After the offending but before sentence Mr McDonald was admitted to hospital for a road traffic accident. There was a possibility that was caused by episodes of loss of consciousness or amnesia. Mr McDonald was also looking after his wife who was suffering from advanced Parkinsons. She passed away in mid-2017 prior to the sentencing. Counsel submitted those factors should have been taken into account by the Judge.

2	Hessell v R [2011] 1 NZLR 607.

[17]	Against that Ms Hamill has referred to the relevant authorities in relation to this area of the law, R v Luce and R v Smith noting that such considerations are generally more relevant when the defendant is facing a term of imprisonment and the defendant’s health may make what otherwise is an appropriate sentence more onerous or difficult for a particular defendant.3 It is not necessarily self-evident that such is the case where the ultimate sentence is home detention. I consider the points Ms Hamill makes to be sound. In the absence of any direct evidence, other than the matters referred to by counsel, I consider the appellant’s health issues and the other life stressors he faced, together with his age, lack of previous convictions, and importantly his contribution to society through his work, could not have amounted to any more than a reduction of say four months or so in total from the starting point.

[18]	I do however have some reservation at the Judge’s approach to the offer for reparation or amends in this case. It seems clear the views of the victims were not obtained as to the proposed payment of $5,000. The Judge chose to simply reject the offer. It appears from the victim impact reports which would have been available to the Judge that the victims have suffered emotional harm, the child victim in particular, but also her mother. A payment in the sum of $5,000 as offered by the appellant might have been able to be used to assist with additional counselling or otherwise for the benefit of the victims which could have addressed that emotional harm.

[19]	In the case of R v Conochie, which the Crown rely on, the Judge noted that the Court was required to consider two factors: one, whether the offer was genuinely capable of fulfilment. The other is whether it had been accepted by the victims as expiating or mitigating the wrong.4 The Judge adjourned the sentencing for that to be clarified. The victims in that case did not accept it expiated or mitigated the crime.

[20]	Section 10 of the Sentencing Act 2002 expressly requires the Court to take into account an offer of amends. It is when considering to what extent it should be taken into account the Court must consider whether or not it was genuine and capable of fulfilment and whether or not it was accepted by the victim. The victim and her

3	R v Luce [2007] NZCA 476; and R v Smith (1987) 44 SASR 587.
4	R  v  Conochie  HC  Rotorua  CRI-2003-070-5357,  30  May  2005;  and  Sentencing Act  2002, s 10(2)(b).

family’s view about the offer is not apparent in the present case and in the absence of information as to that second leg or aspect of the statutory requirement it was really impossible for the sentencing Judge to have complied with the statutory requirement.

[21]	Moreover, even if a Court determines that despite the offer it is appropriate to impose a sentence, s 10(3) requires the Court to take the offer into account when determining the appropriate sentence. In my judgment some allowance should have been provided for the offer in the present case.

[22]	I agree that very little discount could be given for the late guilty plea. But even taking that into account on the basis of the above considerations the adjusted starting point of 12 months’ imprisonment was at the top end of the range available to the Judge.

[23]	Given the factors referred to above home detention was the appropriate sentence. The issue then becomes the length of that sentence. In submitting that it is not automatic a court will effectively halve what would be an otherwise appropriate end sentence of imprisonment, the Crown rely on Rodney Hansen J’s comments in Golding v Police.5 But while the Judge noted it is not automatic, even in that case the Judge applied what he regarded as “the usual practice” which was to halve the otherwise appropriate sentence.

[24]	As the sentence of home detention is served in full, a two year prison sentence is generally taken to be equivalent to 12 months’ home detention which is the maximum that can be imposed. Parliament has given an indication of its support for such a ratio in fixing the maximum sentence of home detention at 12 months with the trigger being a sentence of two years’ imprisonment or less. While there is no presumption as to the approach, I consider that factors relied on by the Judge to depart from the practice were balanced in this case by the personal mitigating factors of the appellant. Further, as discussed with counsel, the offending in this case was fleeting and momentary. There was no reason in my judgment to depart from the usual practice in this case.

5	Golding v Police HC Whangarei CRI-2008-488-3, 14 February 2008.

[25]	In summary, the failure to take into account the offer of amends and the imposition of a sentence of 10 months home detention has resulted in an end sentence, which is, in the circumstances, manifestly excessive.

[26]	The appeal is allowed. The sentence of 10 months’ home detention is quashed. It is replaced with a sentence of six months’ home detention. The post-sentence conditions remain unaffected and I confirm them.

Venning J