Criminal procedure – successful appeal against sentence – sexual connection with young person – sentence of two years and three months’ imprisonment substituted with sentence of four months’ home detention – further discount for psychological factors – emerging adulthood – particular immaturity – delayed emotional development – prospects for rehabilitation – low risk of reoffending – registration on Child Sex Offender Register declined
Stainton v R  NZHC 787
Luke Stainton pleaded guilty to one charge of having sexual connection with a young person and was sentenced to two years and three months’ imprisonment.
Stainton appeals his end sentence, saying it should have been below two years’ imprisonment. This meant home detention should have been considered as the least restrictive, appropriate outcome. Further, registration on the Child Sex Offender Register would have been discretionary and appropriately declined.
Stainton was a youth leader at a Baptist Church. The complainant attended his youth group and agreed to engage in a relationship with Stainton at the end of 2016. She was 15 and Stainton was 25. Stainton and the complainant exchanged photographs of their genitalia and engaged in sexual intercourse on a weekly basis during the following year.
The District Court adopted a starting point of three years and six months’ imprisonment. Discounts of 25% for a guilty plea and 10% for good character were applied, leading to an end sentence of two years and three months’ imprisonment.
Stainton submitted the adopted starting point was too high and the Court of Appeal judgments of R v Hayward and Hawken v R were distinguishable (greater age disparity and more vulnerable victim).
Having discussed Hayward, R v Johnson, and Hawken, and noting the somewhat lesser degree of trust involved in Stainton’s position as a youth group leader and the lesser age gap when comparing the circumstances in R v H and Hawken with the duration of Stainton’s offending (a longer period), Johnstone J found the adopted starting point was well-justified.
Stainton submitted a discount of 15% to 20% should have been applied for good character because of his lack of prior convictions, multiple character references and the Court of Appeal’s judgments in Parkin v R (effective discount of 18%), and R v Carruthers and R v Webb (discount of 25%).
Johnstone J noted a significant time had lapsed between the offending and sentencing in those cases, and the appellants had matured and demonstrated their good character in the meantime. In respect of Stainton, the District Court found he was entitled to a limited discount of 10%, in light of him being “still a young man”. In effect, Stainton had not been in a position to demonstrate good character of the kind shown in the above cases to justify a more substantial discount. Johnston J found the District Court was not in error.
Stainton submitted the District Court overlooked his remorse letter, instead drawing from the observations in the Pre-Sentence Report (PAC) that he lacked genuine insight and remorse, and referred to Hessell v R, that a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse and justify a separate discount.
Having considered Stainton’s remorse letter, Johnstone J found that while he referred to causing his victim and others harm, it did not address the direct and distinctive nature of the harm he caused her, and his letter tended to confirm rather than contradict the PAC. Further, citing Moses v R, discounts for remorse typically require further acts of contrition. In this case, proper and robust evaluation of all the circumstances did not require that sentencing credit be given for remorse.
Stainton submitted a small discount should have been applied to reflect psychological factors, namely that he was naïve for his age and had poor insight into the experience and risks for his victim, and that despite the age gap, their emotional maturity and relationship experience was comparable, and he had a low risk of sexual reoffending. It was submitted the psychological report reinforced Stainton’s mitigating features and gave some insight into causative factors of the offending.
Johnstone J discussed the Court of Appeal judgments of Dickey v R, Churchward v R, Rolleston v R, and Pouwhare v R, and considered that Stainton’s offending, the nature of his response and his risk of reoffending should have been assessed by both the PAC and District Court against the context of his age (at the top end of ‘emerging adulthood’), together with his particular immaturity, which appeared to have continued beyond the age of 25. While his attitude may have disqualified him from a deduction for remorse, it likely reflected his delayed emotional development, favourable prospects for rehabilitation and consequently low risk of reoffending.
Accordingly, a further discount for these factors should have been allowed – 10% being appropriate. Applying the above additional deduction would have led to an end sentence of below two years’ imprisonment, entitling the District Court to impose a sentence of home detention.
Johnston J considered that a sentence of 12 months’ home detention should have been imposed.
With Stainton’s sentence of home detention necessarily commencing on the date of imposition, and him having served around five months’ imprisonment, his sentence of two years and three months’ imprisonment was substituted with a sentence of four months’ home detention.
Further, in light of Stainton’s low risk of reoffending, Johnstone J did not exercise his discretion to direct his registration as a child sex offender.
Held: Appeal against sentence allowed. Sentence of two years and three months’ imprisonment substituted with a sentence of four months’ home detention.
Hannah Hellyer is an Auckland criminal defence barrister and member of the ADLS Criminal Law Committee and Parole Law Committee.