Neil Henry Symons
Wellington High Court sentencing notes of Justice Dobson as follows:
 Mr Symons, this is the second time you have appeared before me on this matter. At your counsel’s request, I heard from both your counsel and counsel for the Crown in relation to your request for a sentencing indication on 19 February this year.
 I indicated at the time that there is no formal basis for such an indication, and qualified the observations I was prepared to make at that time by emphasising that they could only be a non-binding indication on the basis of the best information available to the Court then. Following the indication I gave, you pleaded guilty to the one charge in issue.
 The matter is now back before me for sentencing. I have the benefit of further submissions from the Crown and from your counsel, and also a Pre-Sentence Report and Victim Impact Statement. I have the benefit of further submissions from the Crown and from your counsel , and also a Pre-Sentence Report and a Victim Impact Statement. I trust you have seen all of those. I am obliged to consider the appropriate sentence in light of all of this information, without being constrained by the indication I gave in response to your earlier request.
 You appear for sentence having pleaded guilty to a charge of sexual violation by unlawful sexual connection under s 128(1)(b) of the Crimes Act 1961. Circumstances of the Offending
 The Police summary of facts states that the offence occurred in October 1989. The complainant was nine or ten years old and you were 35. You lived in a house across the street from the complainant. There was a friendship between you based on a mutual interest, among other things, in model railways. You spent a reasonable amount of time with the complainant and on some occasions gave him small amounts of alcohol when you ate together.
 On 10 October 1989, the two of you played a game of ‘strip poker’, which resulted in you both being naked. You became sexually aroused, and there was a discharge of seminal fluid. The complainant got some toilet paper for you to clean up the discharge. A short time later, while the complainant was reading a book lying on a bed, you arranged yourself so you could access his buttocks, and inserted a biro pen into the complainant’s anus. This caused the complainant to kick back with his feet, accidentally causing the pen to be inserted further which caused an apparently slight tear in his anus. The complainant asked you what had happened, you removed the biro pen and apparently showed the complainant the biro. After this incident, the friendship between you dissolved. The complainant confided in his mother a short time after the incident but only brought it to the Police’s attention in January 2007. In a video interview you admitted to the game of strip poker and the consequent arousal, but denied that sexual connection took place. Crown submissions
 The Crown’s submissions rely on the Court of Appeal’s judgment in R v KJB  NZCA 292. In that case, the Court confirmed an earlier decision in R v R CA244/04 2 November 2004 on sentencing of historical sexual offending. The appropriate approach to sentencing in these circumstances is to fix a starting point based on the sentencing levels at the time the offending took place.
 There were no benchmark sentences for convictions of unlawful sexual connection during the period when this offending took place. This is due to the wide circumstances that could precipitate such charges. As set out in R v Talataina (1991) 7 CRNZ 33: Each case must be determined on its own facts, remembering that, speaking generally, this offence falls somewhere between that of indecent assault on the one hand and that of sexual violation by rape on the other.
 This has been accepted in the more recent case of R v Castles CA105/02 23 May 2002. No tariff figure is available to the Court. The Crown submits, based on three cases from the early 1990s that I will discuss in a moment that an appropriate starting point would be between two and three years’ imprisonment. Defence submissions
 Ms Ord’s supports a sentence of home detention as being appropriate. She responds to a number of issues I have to address, and it is efficient to refer to them as I go through those issues. Victim impact statement
 The complainant suffered considerable emotional harm at the time of the offending, and the harm has continued since then given that you continue to live opposite the complainant. He felt betrayed by your actions and began to believe that your actions were normal, which had negative effects on his teenage development. The complainant says in the Victim Impact Statement that he wants you to admit your actions and to acknowledge your wrongdoing. Suggested comparators from period of offending
 The cases cited for the Crown were:
a) Crime Appeal CA 323/90 CA323/90 9 April 1991: The offender appealed his sentence of 3 years, 11 months’ imprisonment for his conviction at trial of one count of sexual violation and one count of an inducing an indecent act. The offence related to digital penetration of a seven-year old girl’s vagina and inducing her to place her hand on the offender’s penis. His appeal was successful, for although multiple offences and the abuse of trust (the complainant was in the offender’s family) justified a custodial sentence, the sentence was too close to the upper limit of such offending. The Court of Appeal reduced the sentence to two years, five months’ imprisonment for both offences concurrently.
b) R v Barnden CA 130/90 15 April 1991: The offender appealed his sentence of three years, six months’ imprisonment for his conviction after pleading guilty to one count of sexual violation. The offence related to the digital penetration of a 17 year old girl’s vagina while she was in a drunken stupor at a party. The offender was 20 years old and a first time offender. The Court of Appeal did not believe the end sentence accurately reflected the offender’s early guilty plea, co- operation with police, lack of offending, and reduced the sentence to an effective sentence of two years, six months’ imprisonment.
c) R v Smith CA 117/92 4 August 1992: The offender appealed his sentence of three years’ imprisonment after being convicted at trial to two charges of sexual violation and one charge of indecent assault; all on different occasions, but while the complainant was aged between seven and eleven years. The Court of Appeal noted that the sentence of three years was at the upper end of the scale of such offending but the aggravating factor of the abuse of trust and a lack of mitigating factors justified such a result.
 Ms Ord rejects all of these cases as being comparable to the present offending. She draws factual distinctions, all of which are accurate, and the issue becomes what difference in sentence would likely follow from the differences in facts between the three cases and your own.
 Although cases involving sexual violation cover a disparate range of circumstances, these cases at least give some sense of the approach to sentencing cases of sexual violation of young persons, at the relevant time. On the Crown’s view of the analogies, they justify a starting point of between two and three years’ imprisonment. Ms Ord suggests a narrower range of starting point between two and two and a half years. So a starting point of between two and a quarter and two and a half years’ imprisonment would be an adequate reflection of the average level in 1989.
 I am then obliged to consider aggravating and mitigating factors that would increase or decrease that starting point. Aggravating factors
 Of real concern is that the offending took place in breach of a relationship of trust. You were a close friend of the complainant’s when the offending occurred, and given the age difference, this created an important relationship of trust between you. The offending represents a gross abuse of that trust. Although it may be characterised as towards the minor end of the scale of such offending, it nevertheless had an important impact on the complainant.
 You also have two convictions for similar, but more serious offending, in 1978 and 1979. While those prior convictions may suggest a tendency towards a particular type of offending, the gap of nine years between the offending probably provides a sufficient counterweight. Further, there appears to have been no repetition in the 18½ years since this offence, so other convictions are not a particularly aggravating factor. Mitigating factors
 At para  in KJB, the Court of Appeal affirmed its stance that offending punished after a lengthy period of time may be visited with less severity than if it were recent, although the sentencing Judge is not bound to do so. Such an approach would certainly be justified in this instance, given that in the intervening years you have not re-offended and have lived a productive life. These are strong mitigating factors to consider.
 The second major mitigating factor is your guilty plea. Although the plea was entered only after a sentence indication had been given, it was nevertheless entered before the matter proceeded to trial, and so the administrative efficiency arguments and avoidance of trauma for the complainant which justify a discount for guilty pleas apply in this instance. End point
 The net effect of balancing these factors suggests a conservative reduction of 20%. This would produce a sentence between one and three quarters’ and two years' imprisonment. The relevance of two years or less is that it triggers the jurisdiction to consider home detention, as an alternative to imprisonment. There are, however, a range of considerations that need to be dealt with before such a sentence can be imposed. Home detention
 The Sentencing Amendment Act 2007 granted sentencing Courts the jurisdiction to impose home detention as a sentence in its own right, rather than merely granting leave for those convicted to apply to the Parole Board for home detention. The gateway provision for a sentence has been met in this instance. As set out in s 80A(1) of the Sentencing Act 2002, such a sentence is available for those offences punishable by imprisonment. The Crown acknowledges the possibility of home detention as a sentence and does not endorse nor discourage such a sentence, although I have heard this morning from Mr Barr on alternatives to address the certain concerns arising in the Pre-Sentence Report.
 First, it is necessary to deal with a statutory presumption of imprisonment as the appropriate sentence. The offence of unlawful sexual connection attracted a maximum sentence of imprisonment of 14 years’ imprisonment in 1989 (s 128B(1) Crimes Act 1961). The relevant provisions at that time included a presumption that imprisonment was the appropriate sentence. Section 128B(2) sets out that: Every one who is convicted of sexual violation [including unlawful sexual connection] shall be sentenced to imprisonment unless, having regard to the particular circumstances of the offence or of the offender, including the nature of the conduct constituting the offence, the Court is of the opinion that the offender should not be so sentenced.
 Such a presumption still exists in current legislation, and overrides the presumption against imprisonment in s 16 of the Sentencing Act 2002. This presumption is a strong one, and even substantial mitigating factors will often be insufficient to displace the presumption so that a short term of imprisonment will be necessary: R v Edwards (1994) 12 CRNZ 302 (CA).
 The proviso to the presumption, however, has been met in circumstances similar to your own. In R v Accused  1 NZLR 656 (CA), the offender was convicted of a relatively minor sexual violation not dissimilar to that for which you are now convicted. Certainty that the offender in Accused would not re-offend, that the offender was gainfully employed and that he was in a good domestic relationship were factors enough to trigger the proviso.
 Those factors are present in this case, too. You have not re-offended since this offence took place and you are in a stable, 17 year long marriage. At least until your last employer was alerted to this charge, you were in long-term employment. Given your work record as described by your counsel, re-employment once this matter is resolved seems likely. Whilst the presumption in s 128B(2) should not be ignored, nor should it necessarily tip the scales in favour of imprisonment. In present circumstances, it is not strong enough to displace the prospect of an alternative sentence. Pre-sentence report
 I need to deal with the contents of the Pre-Sentence Report, and I trust you have had a chance to discuss that with Ms Ord. That report is dated 7 April 2008 and recommends a sentence of imprisonment. This is specifically in preference to a sentence of home detention. It notes that you have remained living in the same residence where the offending took place, and have lived there with your wife of 17 years. You now have a 17 month old son. The report writer considers you to be equivocal as to your level of remorse. Ms Ord’s submissions have challenged that assessment. She submits that you do acknowledge your wrongdoing, and are sorry for what happened. Through her you have tendered a letter to the Court this morning which expresses regret, it says you apologised straight after what happened and want to convey your apologies again now. Consistently with the genuineness of your apology, Ms Ord’s submissions have recorded your willingness to make a payment of emotional harm reparation.
 The Pre-Sentence Report notes your two previous convictions for indecent assault and attempted sodomy, those convictions occurring in 1980. Apparently on the basis of the prior convictions, the risk of your re-offending is assessed as ‘high’ given the recidivist prospects in the nature of such offending. Home detention was considered unsuitable given the proximity to the complainant, unsuitability of your wife and young son as occupants and the prospect of you changing residence. On this basis, for want of any suitable alternatives, a sentence of imprisonment was recommended, together with release conditions under s 93 of the Sentencing Act 2002.
 Ms Ord has addressed these points thoroughly and ultimately, persuasively. Her submissions are accompanied by letters from your wife, casting her support for home detention in stronger terms than appears from the report, and also from a Porirua Family Start programme. That confirms you have been attending as a couple for a year, that you have a very positive attitude to parenting skills, and it confirms the availability of on-going assistance for you.
 With respect to the writer of the Pre-Sentence Report, the perceived high likelihood of re-offending appears to be based on the theoretical recidivist nature of sexual offenders. It appears to disregard the fact that you have not offended for 20 years, and that the prospects of re-offending of this type are likely to reduce in middle age. If a relatively low risk of re-offending can be justified, then home detention becomes appropriate. Given your commitment to a programme intended to help you recognise the tendency, I consider from all I have heard that such risk is now relatively low.
 A further valid concern in the report was the prospect that you and your family may wish to move. This creates administrative difficulties for all those involved in supervising a sentence of home detention, and I do not overlook that. However, a degree of physical separation between you and the complainant is obviously a positive thing, at the very least for him. The Crown points out that the present proximity to the complainant is itself a reason against granting home detention, which would have to be to your present address. I do not see that as a sufficient countervailing factor to count against home detention where I otherwise decide that that is the appropriate sentence, and the administrative difficulties in a move can hopefully be managed by the usual condition in the sentence that any change of residential location is only to occur with the concurrence of those supervising your sentence.
 In the end, I am satisfied that home detention is the appropriate sentence, together with a sentence of reparation. I sentence you to one year of home detention. I also sentence you in terms of s 32(1)(b) of the Sentencing Act to pay reparation in the sum of $1,000 to the complainant on account of emotional harm.
Date of Birth
1955 (D.O.B. is approximate)
At large in Porirua
Sentenced to 12 months home detention in April 2008
Additional Photos & Files
Associated Media Links Neil Henry Symons Sentencing Notes
OFFENCES / CONVICTIONS
|Event Date||Event||Court Location||Offence Type||Offence Date||Committed While||Sentence Imposed|