The judge who gave a former journalism lecturer home detention for sexually abusing an elderly woman with dementia said it should not be thought of as a "second-rate sentence".
However, justice commentators and social media users alike expressed outrage after 55-year-old Grant Hannis was sentenced last week for indecently assaulting the 82-year-old victim in her rest home.
Judge Stephen Harrop gave Hannis a sentence of eight months home detention, 100 hours of community work, and ordered him to pay $3000 emotional harm reparation.
The methods he used to come to the final sentence included allowing the sentence to be slightly shortened due to the "penalty" of name suppression being lifted.
The Herald took a look at how Judge Harrop reached the end sentence.
Least restrictive sentence
The Sentencing Act requires judges to always choose the least restrictive sentence.
"If a sentence of community work would be an appropriate sentence for a particular offence, you can't sentence somebody to more than that," said Wellington barrister Graeme Edgeler.
He said the intention of the rule was partly to ensure there was some similarity around the country in sentences that were being handed down.
"Society expects people to be punished who have been convicted of crimes, but [legislation says] don't punish them more than they ought to be punished."
'Very substantial fall from grace'
During sentencing on Friday, Judge Harrop said Hannis, previously a highly-regarded member of the media industry and a respected academic, had suffered a "very substantial fall from grace".
"The effects of that will be ongoing and I accept that publication of your name will add to that."
While there is nothing in the Sentencing Act to suggest a discount should be given for such a reason, the Act points out judges have discretion to factor in what they see fit. There is also legal precedent for discounting after someone has been publicly identified.
In R v Fahey, the Court of Appeal upheld a sentencing decision in which the judge factored in the punishment of public exposure and consequent humiliation for former doctor and deputy mayor of Christchurch Morgan Francis Fahey, who had sexually abused and violated a number of his patients.
Edgeler said it was unusual for judges to explicitly spell out they were providing a discount because a defendant was named, but it was not uncommon for such a factor to be considered among other consequences of the offending.
"Certainly judges are allowed to take account of the overall situation," he said.
"The consequences of a conviction itself are quite serious."
He said judges often looked at what effect the offending and conviction had on the offender, and took that into account.
Judge Harrop adopted a starting point of two years and nine months in prison. He reached this starting point after considering the starting points of similar cases.
His considerations included aggravating factors such as the victim's vulnerability, the degree of force and persistence, the skin-on-skin contact, and how the offending was a form of "home invasion", given the victim's bedroom was akin to her home.
He allowed a 25 per cent discount for Hannis' guilty plea, and a 10 per cent discount for his "previous excellent character".
"When somebody of your age comes before the court having offended not just against the victim, but also against the community, you are entitled to call to account in your favour the contributions you have made to the community," he said.
These discounts brought the sentence down to 22 months prison. Once the potential sentence drops below two years imprisonment, it is eligible to be converted to home detention.
If a prison sentence is converted to home detention it is automatically halved - because if the offender was in prison, they would be eligible for parole halfway through their sentence.
Judge Harrop then allowed further discounts for remorse, Hannis' steps to address his issues, including engaging with a counsellor, and the effects the offending has had on his life.
He also factored in Hannis' fall from grace, the publication of his name, and his willingness to pay emotional harm reparation, bringing the sentence down to 18 months imprisonment, which equated to a nine-month home detention sentence.
Judge Harrop then swapped a month of home detention for 100 hours of community work, concluding that such work was appropriate given Hannis' offending was also against the community.
Why home detention?
The fact Hannis had no previous convictions meant the risk to the community was likely to be well managed by home detention, Judge Harrop said.
"It should not be thought that it is some second-rate sentence; it is a strong deterrent sentence, and the Court of Appeal has repeatedly emphasised that. And especially for somebody of no previous convictions, it is a significant sentence," he said.
"A prison sentence is not likely to be required in terms of protecting the public."
Edgeler said the punishment in both a prison and home detention sentence was the loss of liberty.
"You don't get home detention as an easy sentence by any means."
Given the chance to choose between prison and home detention, most people would obviously choose the latter, but this didn't mean it was a comfortable sentence, he said.
"It really isn't a holiday and it can get old very fast."
Sensible Sentencing Trust's Jess McVicar said discounts were being handed out like rewards.
"The discounts we have seen in sentencing over the last year are appalling, we have a trial where the judge says the offending is unbelievable and then gives discounts," she said.
"This offender got discounts for previous contribution to the community. That should not have been taken into account at all. Previous history of offending is not allowed to be considered in trials so why on earth should this man's community work be considered?"
McVicar said sentencing pressures on judges were dangerous.
"Offenders are getting discounts all over the show, yet the victim gets a life sentence."
Many readers also lashed out at Hannis and the legal system on social media.