The mother of a girl indecently assaulted in her bedroom by a gym instructor is outraged a judge believes there is no compelling evidence the offending was sexually motivated.
The gym instructor, Ross Madden, maintains he was being ''playful" when he crept into the girl's bedroom three times, removed some of her clothing and, on each occasion, touched her partially naked body.
Madden, a 35-year-old from Otumoetai, who earlier pleaded guilty to a charge of indecent assault on female under 12, was on Tuesday sentenced to 12 months' home detention, 200 hours' community work and ordered to pay $5000 reparation within 28 days.
The crime happened last year while he was babysitting the girl.
But the victim's mother is furious Judge Thomas Ingram said during sentencing he was not satisfied there was ''compelling, objective" evidence Madden's conduct had been sexually motivated.
Outside court, the mother told the Bay of Plenty Times: ''I was absolutely shocked that any judge would make this type of comment... my husband is livid."
In court, Crown prosecutor Richard Jenson argued prison was the right outcome given the serious nature of Madden's crime and his attempt to downplay his actions.
Madden had described his offending as "just being playful", while the Crown argued his conduct was for his sexual gratification.
Mr Jenson said Madden had also breached his bail conditions three times while awaiting sentence - twice consuming alcohol and once having contact with children aged under 16.
Mr Jenson submitted Madden's name should be added to the Sex Offenders' Register.
Madden's lawyer, Tony Balme, argued home detention was appropriate given this was not a "sufficiently serious" case to warrant a prison sentence.
There was no evidence Madden's actions were sexually motivated, and placing his name on the register would be an "excessive" response, he said.
Madden, a first-time offender before the courts, had offered to pay $5000 reparation to the victim, which had been accepted, Mr Balme said.
One of the conditions of home detention sentence would be a referral to the Safe programme for an assessment, which would assist his client in his rehabilitation, he said.
Judge Ingram said the circumstances of Madden's offending were "most unusual" and he could not recall a case of this kind during his time on the bench.
"The Crown says this cannot be anything other than sexually motivated for you. But I am not persuaded your motivation was sexual gratification nor would it be right to speculate on my part to attribute motivation. There is no compelling objective evidence to do so."
Judge Ingram said on any objective assessment of indecent behaviour the law was clear that assault on a child which is indecent the starting point must be imprisonment.
"But given these most unusual circumstances I do not consider this case falls into that category," he said.
Judge Ingram sentenced Madden to the maximum 12 months' home detention.
He gave Madden credit for his guilty plea, saving the victim the ordeal of giving evidence at trial and his offer to pay reparation towards the victim's education and her wellbeing.
Judge Ingram declined to add Madden's name to the register saying it was not "sufficiently serious" enough case to warrant that.
Sending Madden to prison would not be in his, the victim and the rest of the community's "best interests" as he could be better rehabilitated in the community, the judge said.
But Madden was warned he would go to jail if he breached his home detention conditions relating to not consuming alcohol and non-prescribed drugs.
The victim's mother said outside court afterwards that she was appalled at the sentencing outcome and, in her opinion, Madden's actions were sexually motivated.
''How can Madden's motivation be anything other than sexually motivated? No one would do anything like this otherwise.
''Madden needs to go to jail if he thinks what he did was being playful and can't fully acknowledge the harm he has done to our little girl and to our whole family," she said
''He also breached his bail conditions, not just once but three times. What kind of message does this send to the rest of the community?"
The name of the gym where Madden worked when he offended and the victim's identity are suppressed.