Fairbrother v R [2013] NZCA 340, 31 July 2013
- Court
- Court of Appeal
- Judgment
- 31 July 2013
- Neutral
- [2013] NZCA 340
Areas of law
Judgment analysis
AI-generated summary
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Facts
In December 2011, the appellant, then aged 19, attended a family gathering on a Northland marae. The complainant, a 12-year-old girl, was also present. On the night of 28 December, the appellant asked her to hold his penis, which she did briefly. The next day, he took her to some trees and had sexual intercourse with her for a few minutes. She immediately disclosed the incident to her family. The appellant was spoken to by a detective that day and admitted the intercourse. He was initially charged with sexual violation by rape, but this was later withdrawn and replaced with an indictment for sexual connection with a girl under 16 and three indecent assaults. He pleaded guilty to the sexual connection charge, and the indecent assault charges were later discharged. At sentencing, the Judge had a pre-sentence report detailing the appellant's history of paranoid schizophrenia and a psychiatric report.
Held
- A sentence of two years' imprisonment imposed after a three-year starting point was reduced by six months for mitigating factors and then a further discount for a guilty plea was a mathematical miscalculation; a 'full credit' of 25% from the reduced point of two and a half years results in a sentence of one year, 10 months.
- While the sentencing judge's decision to impose imprisonment over home detention was upheld as a principled choice, the final sentence length was corrected to reflect the judge's intended discount for the guilty plea.
The appeal is granted. The sentence of two years imprisonment is quashed and in its place there will be a sentence of imprisonment of one year, 10 months.
Key passages4
A judge must make a considered and principled choice between imprisonment and home detention, recognising both serve denunciation and deterrence, and identifying which is the least restrictive sentence considering all sentencing purposes.
“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.”
For sexual offending against children, all potentially available sentences should be considered on their merits, although the likely outcome is imprisonment.
“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.”
A mental disorder short of insanity can mitigate a sentence if it was causative of the offending, makes imprisonment more punitive, or a combination of these reasons.
“[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.”
A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
“A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.”
Cases mentioned in judgment
Legislation mentioned
- Criminal Justice Act 1985, s 139
- Sentencing Act 2002, s 8(g), s 10A, s 15(1)(a), s 15A(1)(a), s 15A(1)(b), s 16(1), s 16(2), s 16(2)(a), s 16(2)(b), s 16(2)(c)