An Auckland man who sexually attacked another tourist in the Cook Islands after entering her hotel room while she was sleeping has had his 22-month jail sentence quashed.

The Supreme Court instead sentenced Shay O'Carroll to 10 months of home detention.

His initial sentence was given at Auckland High Court in December last year and he has been in the community on bail since then while he appealed against the sentence.

O'Carroll's home detention sentence is to take effect as soon as the Department of Corrections makes the necessary arrangements. Until that time O'Carroll is to remain on bail on existing conditions, Justice Williams said in a decision report published today.


In September 2016, 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.

When the victim returned to New Zealand, 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 last 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.

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 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.


The appeal found the High Court did have jurisdiction to impose a sentence of home detention when sentencing O'Carroll.

O'Carroll will reside at a residential address and will not move from that address without the prior permission of his probation officer, Justice Williams said in the report.

"If found suitable, Mr O'Carroll is to attend Te Ihu Waka as may be directed by the probation officer.

"Mr O'Carroll is to attend alcohol and drug counselling as may be directed by the probation officer."