New Zealand Police v Payne [2020] NZDC 17815

Published 16 December 2021

Sentencing — discharge without conviction — indecent assault — whakama — Sentencing Act 2002, ss 106 & 107 — Mathieson v R [2019] NZCA 406. The defendant appeared for sentence, having pleaded guilty to three charges of indecent assault. The defendant had, on three occasions, come up behind women who were out walking or exercising, grabbed the buttocks of the first two women and given the third woman a bear hug. The defendant sought a discharge without conviction. The victims gave impact statements that showed they were extremely distressed about the assaults. One of the victims had agreed to participate in restorative justice with the defendant. The defendant showed genuine remorse, acknowledged the impact his offending had on the victims, and the whakama or shame that he had brought on himself and his whānau. The defendant stated that the reason for his offending was pressure from gang affiliates, who had asked him to offend in a much more serious way which the defendant could not bring himself to do. In determining whether to grant a discharge without conviction, a court must be satisfied that the direct and indirect consequences of a conviction would be all out of proportion with the gravity pf the offending. The Judge noted that any sexual offending is serious, and under normal circumstances there would be a starting point of imprisonment; however, the range of mitigating features meant that, in the broader analysis, it was of low seriousness. The defendant's youth (18 at the time of offending), lack of any prior convictions, lack of sexual motivation for the assaults, and his true remorse and willingness to rehabilitate were all considered to be mitigating features. In considering the consequences of a conviction, the defendant wanted to join the Army and play rugby internationally which a conviction might, although not necessarily would, prevent. The Judge was satisfied that the consequences of a conviction would be all out of proportion with the gravity of the offending and discharged the defendant without conviction. Judgment date: 2 September 2020.

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