Williams v New Zealand Police - [2025] NZCA 15
Date of Judgment
19 February 2025
Decision
Williams v New Zealand Police (PDF 308 KB)
Summary
Sentencing – Child Sex Offender Register – mitigating factors in sentencing – manifestly excessive – uplift for previous conviction
Background: Following a guilty plea, the appellant was convicted in the District Court of exposing a young person to indecent material under s 124A of the Crimes Act 1961 and sentenced to eight months’ imprisonment. The effect of being convicted of that offence and receiving a custodial sentence was that he was automatically placed on the Child Sex Offender Register. He unsuccessfully appealed his sentence to the High Court but was granted leave to bring a second appeal to this Court on the grounds that the lower courts should have made an allowance at sentencing for the punitive effect of being placed on the Register.
In granting leave, this Court noted that while there was a consensus in the authorities that registration is punitive, the sentencing response to that fact was not yet settled, making this a suitable case for a second appeal.
Result: The appeal against sentence is dismissed.
Issue 1: Can registration on the Child Sex Offender Register be a mitigating factor to be taken into account at sentencing when determining the length of a sentence and type of sentence?
Held: Yes but only in exceptional circumstances.
Having regard to general sentencing principles, the provisions of the Sentencing Act 2002 (in particular
s 8(2)(h)), and the purpose and text of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, the Court reached the following conclusions:
(a) Because sentencing is quintessentially a discretionary exercise, clearer words would be required in the legislation before Parliament can be assumed to have intended to remove completely any discretion to take the impact of registration into account at sentencing.
(b) However, having regard to the important purpose of the legislation to reduce sexual offending against children, any judicial discretion to take registration into account must be considered a limited one.
(c) It would be contrary to Parliament’s intention were registration to result in reduced sentences for child sex offenders in anything other than exceptional cases. That approach (requiring exceptional circumstances) applies to both the issue of length of sentence where registration should not generally be regarded as warranting a discrete discount and also to the type of sentence.
(d) Exceptional circumstances justifying an allowance for the effect of registration will exist if registration is exceptional in its effects on the particular offender and will render an otherwise appropriate sentence unusually or disproportionately severe.
(e) The operation of the registration regime will therefore seldom result in a sentence otherwise within range being manifestly excessive.
(f) It would be inconsistent with the legislative purpose and hence wrong for a sentencing court to reduce a prison sentence on account of registration so as to bring it within the range of home detention. That would be to subvert the distinction drawn in the legislation for the purposes of registration between child sex offending that warrants a prison sentence and offending that does not.
(g) Where the length of a prison sentence arrived at without regard to the impact of registration is under the home detention threshold, then in deciding between prison and home detention, the availability of a registration order may be taken into account in determining whether home detention will sufficiently meet the need for community protection. Home detention should not however be imposed for the purpose of avoiding registration.
Issue 2: Did the appellant’s case meet the exceptional circumstances threshold?
Held: No. There was nothing exceptional in the circumstances of this case to warrant any allowance being made for the impact of registration in relation to the period of imprisonment or the substitution of a non-custodial sentence.
Background: Following a guilty plea, the appellant was convicted in the District Court of exposing a young person to indecent material under s 124A of the Crimes Act 1961 and sentenced to eight months’ imprisonment. The effect of being convicted of that offence and receiving a custodial sentence was that he was automatically placed on the Child Sex Offender Register. He unsuccessfully appealed his sentence to the High Court but was granted leave to bring a second appeal to this Court on the grounds that the lower courts should have made an allowance at sentencing for the punitive effect of being placed on the Register.
In granting leave, this Court noted that while there was a consensus in the authorities that registration is punitive, the sentencing response to that fact was not yet settled, making this a suitable case for a second appeal.
Result: The appeal against sentence is dismissed.
Issue 1: Can registration on the Child Sex Offender Register be a mitigating factor to be taken into account at sentencing when determining the length of a sentence and type of sentence?
Held: Yes but only in exceptional circumstances.
Having regard to general sentencing principles, the provisions of the Sentencing Act 2002 (in particular
s 8(2)(h)), and the purpose and text of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, the Court reached the following conclusions:
(a) Because sentencing is quintessentially a discretionary exercise, clearer words would be required in the legislation before Parliament can be assumed to have intended to remove completely any discretion to take the impact of registration into account at sentencing.
(b) However, having regard to the important purpose of the legislation to reduce sexual offending against children, any judicial discretion to take registration into account must be considered a limited one.
(c) It would be contrary to Parliament’s intention were registration to result in reduced sentences for child sex offenders in anything other than exceptional cases. That approach (requiring exceptional circumstances) applies to both the issue of length of sentence where registration should not generally be regarded as warranting a discrete discount and also to the type of sentence.
(d) Exceptional circumstances justifying an allowance for the effect of registration will exist if registration is exceptional in its effects on the particular offender and will render an otherwise appropriate sentence unusually or disproportionately severe.
(e) The operation of the registration regime will therefore seldom result in a sentence otherwise within range being manifestly excessive.
(f) It would be inconsistent with the legislative purpose and hence wrong for a sentencing court to reduce a prison sentence on account of registration so as to bring it within the range of home detention. That would be to subvert the distinction drawn in the legislation for the purposes of registration between child sex offending that warrants a prison sentence and offending that does not.
(g) Where the length of a prison sentence arrived at without regard to the impact of registration is under the home detention threshold, then in deciding between prison and home detention, the availability of a registration order may be taken into account in determining whether home detention will sufficiently meet the need for community protection. Home detention should not however be imposed for the purpose of avoiding registration.
Issue 2: Did the appellant’s case meet the exceptional circumstances threshold?
Held: No. There was nothing exceptional in the circumstances of this case to warrant any allowance being made for the impact of registration in relation to the period of imprisonment or the substitution of a non-custodial sentence.