On his way home, he stopped to use the public toilet in Seymour Square.
The defendant walked in to find a man and young woman having sex in a cubicle, then banged on the door and said, “When is it my turn?” the police summary of facts said.
He later said it was meant as a joke, but the other man left.
The defendant approached the young woman and performed two sex acts before deciding it was wrong and stopping, Judge Bill Hastings said.
The defendant later told police it was consensual and the 14-year-old victim had told him she was 16.
Judge Hastings said the Crown and defence agreed the victim was a vulnerable youth placed in a high-risk situation.
Crown prosecutor Mark O’Donoghue hoped agencies might get involved in helping her develop coping strategies.
“What happened here was pretty shameful,” he said.
Defence lawyer Rob Harrison said the offending resulted from circumstances and diminished cognitive function in a once able-bodied man left impaired by serious illness.
“He’s had a series of unfortunate medical events, and he’s slow. He can’t explain how he went in there [the toilet cubicle],” Harrison said.
He said the consequences for the defendant and his family had been significant. Not only had he had to learn to walk and talk again from the effects of his medical condition, but he had also now lost his job.
“He had worked very hard to get himself into a position where he could work again,” Harrison said.
He said the man had been fortunate to have an employer who supported him through his recovery, but he was forced to resign when the charges were laid.
“I’m not trying to overdramatise his condition but explain the realities for the person in front of us,” Harrison said.
He said the family had since been “bombarded” on social media and were “in real strife” through the continued impact.
The Crown did not oppose an application for permanent name suppression on humanitarian grounds.
Judge Hastings said the case met the test for extreme hardship for the defendant’s family if publication occurred.
The defendant also applied for a discharge without conviction and to avoid placement on the child sex offender register.
Judge Hastings did not consider the consequences of a conviction were out of proportion to the gravity of the offending and declined the application.
He said it was in the public interest for “schools” to know he had pleaded guilty to sexual offending against an underage child and a conviction would allow discovery of this.
‘Could have walked away’
In setting a sentencing starting point of two years and three months in prison, Judge Hastings said aggravating features included the 17-year age gap between the offender and victim.
“She was 14. You were 31 at the time,” he said.
Additionally, two offences occurred, and the victim had suffered psychological harm.
Judge Hastings accepted the defendant’s degree of diminished function and increased impulsivity reduced his criminal culpability and awarded a 15% discount.
“It is difficult, however, to get past the fact that, hearing what the victim was doing, you entered the cubicle when you could have walked away.”
The defendant was given a further 10% discount for remorse, previous good character and willingness to pay reparation, even though he was not in a position financially to do this.
A further 25% reduction for his guilty pleas reduced the total discount to 50%. That exceeded the maximum 40% allowed, but Judge Hastings considered that less would result in a sentence that was manifestly unjust and maintained the 50% reduction.
That took the sentence to 13 months and 14 days in prison. Judge Hastings said the defendant had been on restrictive bail since March last year and commuted the sentence to five months’ home detention plus six months post-release conditions.
Special conditions imposed included that the man was not to be within 20m of a public toilet without approval.
Because of the non-custodial sentence, inclusion on the child sex offender register was at the judge’s discretion.
Judge Hastings said the defendant had not targeted the victim and there was no evidence that he posed a risk to the safety of young children, so inclusion on the register was not warranted.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
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