A group working to stop sexual violence against women and children has welcomed a decision to re-sentence a comedian who indecently assaulted his daughter.

The man, who has name suppression, pleaded guilty to performing an indecent act on the child, who was in bed with him and his partner but was discharged without conviction when he appeared at Auckland District Court in September.

However, in a Auckland High Court decision released yesterday Justice Murray Gilbert ruled the order discharging the man without conviction was to set aside and he would be resentenced.

Stop Demand founder Denise Ritchie welcomed the decision, saying incest and child sex abuse was a "national disgrace''.


"Well-known people should not be getting a 'free pass' to commit sex crimes against children.

"To discharge offenders without conviction is a slap in the face to victims. It leaves offenders with blemish-free records and provides no deterrence to future reoffending,'' she said.

At the sentencing, Judge Phillipa Cunningham said he was a talented New Zealander, who "makes people laugh''.

"Laughter is an incredible medicine and we all need lots of it,'' she said.

She also said he had stopped drinking, paid a high price in his personal and work life, and had shown remorse.

However, the Crown sought a review of the decision, alleging the judge made a number of errors.

Sexual offending against children usually carries a sentence of imprisonment of up to 10 years.

Justice Gilbert agreed with the Crown's submission that the consequences of conviction did not outweigh the gravity of the offending.

The judge had to determine whether the consequences would be "out of all proportion'' to the gravity of the offence:"Without such a determination the judge had no power to discharge Z without conviction''.

Justice Gilbert also agreed the sentencing judge made errors in her assessment of the gravity of the man's offending as low.

Auckland District Court was told the man went to bed with his partner after returning home drunk from a Christmas work party in December 2009. After he fell asleep, his four-year-old daughter came into the couple's bedroom and got into bed with them.

The police summary said the man laid his daughter on her back, pulled down her pyjama pants and nappy and kissed her.

The man's partner woke up and asked him what he was doing. He replied: "I thought it was you.''

He later told police that he remembered nothing of the incident.