An Auckland man who indecently assaulted another tourist in the Cook Islands after entering her hotel room while she was sleeping has been senteced to jail.
But he remains in the community on bail while he tries to appeal the sentence.
In September 2016 Shay O'Carroll was on holiday in Rarotonga and, after an evening of drinking, let himself into the room of a fellow New Zealand tourist.
The woman was asleep and woke to find O'Carroll indecently assaulting her.
She told hotel management and O'Carroll was arrested and spoken to by police before being allowed to return to New Zealand.
When the victim returned to NZ, she made a complaint with police and, with the leave of the Attorney-General of New Zealand and Solicitor-General of the Cook Islands, O'Carroll was charged.
He first appeared in the Auckland District Court but his case was transferred to the High Court.
O'Carroll pleaded guilty to a charge of indecent assault in May this year after he was given a sentence indication of three years in prison with a discount for guilty plea and the possibility of further reduction based on other factors.
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The indication was given in line with Cook Island law.
There is no home detention there - so there was no option for the sentence to be converted to something community-based.
The court was also provided affidavit evidence from the Deputy Solicitor-General of the Cook Islands as to the country's sentencing practice which stated there is no ability to substitute a short sentence of imprisonment with some other form of sentence.
O'Carroll's sentencing was delayed because he sought leave to file an appeal against the sentence indication.
The basis of the appeal was whether or not the High Court in New Zealand had jurisdiction to commute any short-term sentence of imprisonment to one of home detention.
Leave was declined and O'Carroll was sentenced in August.
Before sentencing the Crown advised the court that it no longer considered the Cook Island sentencing practice as a barrier to O'Carroll being handed down a term of home detention.
However, it maintained that imprisonment was the appropriate sentence, given the seriousness of the offending.
Justice Mark Woolford adhered to his sentence indication and followed the approach taken in Cook Islands' case law, as well as the principles and purposes of sentencing set out in New Zealand legislation.
He said there were a number of aggravating factors — the vulnerability of the victim, the invasion of her privacy, the scale of the offending and the ongoing trauma experienced by her.
He also noted that O'Carroll had prior convictions, but not for similar offending.
Justice Woolford accepted that O'Carroll was "remorseful and had demonstrated insight into his offending" and that he had offered to make a reparation payment to the victim for emotional harm.
He gave O'Carroll a discount for that, and his guilty plea.
O'Carroll was sentenced to 22 months in prison.
Justice Woolford remained of the view that New Zealand's sentencing regime did not apply to the case before him and that O'Carroll had to be sentenced according to Cook Islands law.
O'Carroll then appealed that sentence and was released on bail.
That appeal was on the basis that Justice Woolford had not interpreted Cook Island law properly.
Both the Crown and defence submitted to the Court of Appeal that O'Carroll's appeal should be allowed and that the jail term should be substituted with a sentence of home detention.
The Court of Appeal rejected O'Carroll's bid and ordering him to surrender himself to the High Court at Auckland by 10am on December 10 to be taken to prison and begin his sentence.
However since then O'Carroll has applied for leave to appeal to the Supreme Court, which has granted him bail pending the decision.
He remains in the commnunity for now.
The Court of Appeal decision was released yesterday.
"There is no sentence of home detention in the Cook Islands," said Justice Edwin Wylie in the decision.
"The power to impose a sentence of home detention was introduced into New Zealand's Sentencing Act in 2007 as a stand-alone sentence.
"However, the Sentencing Act and the Sentencing Amendment Act 2007 form no part of Cook Islands law and cannot be implied into Cook Islands law.
"In our view… Cook Islands Act precludes a judge of the High Court of New Zealand from sentencing an offender who has come before the High Court… to a sentence of home detention."