Comedian's sex case to be reviewed

A judicial review of a judge's decision to discharge a prominent comedian who performed a sex act on his four-year-old daughter has been welcomed by child advocates.

The original decision to discharge the man without conviction had made the country "gasp", an advocate said.

The comedian, who has permanent name suppression to protect the victim, pleaded guilty in March to performing an indecent act on a child.

He was then discharged without conviction by Judge Philippa Cunningham in August

In making her decision to discharge, judge Cunningham said the man made people laugh.

"He's a talented New Zealander. He makes people laugh, and laughter's an incredible medicine that we all need a lot of," she said.

Christine Rankin, a family commissioner, but speaking as a child advocate separate from her official position said the comedian may have been given credit for making people laugh, but the court's decision to allow him to walk free without even a conviction "made people cry".

Judge Cunningham said that despite suppression orders it was widely known in his industry who he was and that had taken a toll on his career.

"He must have significant strength of character to deal with all of that."

The police statement of facts in the case detailed how, after a night out drinking, the comedian was in bed with his partner when the couple's four-year-old daughter climbed into bed with them.

He pulled down the young girl's pyjama pants and her pull-up nappy and began kissing her.

When his partner woke up and discovered what he was doing he said: "I thought it was you."

He later told police he could not remember the events.

The Crown went to the High Court seeking a judicial review of the case.

The Crown would normally appeal a sentence when it felt the sentence was not tough enough. But because the entertainer was discharged there was technically no sentence to appeal.

Therefore it had to seek a judicial review of the case.

If a High Court judge decided there had been an error in law by judge Cunningham, the case could be sent back to the Auckland District Court for the entertainer to be sentenced again.

Christine Rankin said: "I think New Zealand as a whole is extremely angry about the outcome of that case."

"I honestly think the whole of New Zealand gasped when that decision came out," she said.

She said the comedian may have been drinking, but that was no excuse.

"There are many parents who  will say they were drunk or they were drugged when they did  whatever it was  ... so that's an excuse? I don't think so."

She said the decision to discharge the man was not appropriate.

"It actually is reflecting what at least the judiciary and the law think of our vulnerable children - that there are excuses."

At the sentencing, Crown prosecutor Josh Shaw said it could not be claimed that the offending was a case of mistaking the girl for his partner.

Mistaken identity could have been a defence to the charge but the comedian had pleaded guilty, so mistaken identity had to be discarded.

"There's an admission that he knew who it was and he performed the act nonetheless.''

He also argued the offence could not be considered less serious because alcohol was a factor.

The young victim's mother, who was in a relationship with the man at the time, read a tearful victim impact statement to the court in which she said their family had been "suddenly broken".

"Waking up to see the incident between _____ and my daughter was a tremendous shock.''

She felt her only option was to call the police and protect her daughter.

The woman said she had had flash-backs for months and it had taken a huge toll on her daughter.

She said the man had been a great dad but after seeing the incident "I didn't know who this man was.''

She and her daughter had both been through counselling.

"He was one of the people who was meant to keep her safe and secure and he broke that trust."

Judge Cunningham had said the case was very unusual because most offending against children occurred in secret, and certainly not right next to a mother who would do anything to protect her child.

The man had "paid an extremely high price already", she said.

He was now separated from his partner and saw his two daughters only twice a week under supervision.

His television career had stopped, his income had halved and "his aspiring career has all but come to an end".

The entertainer's lawyer, Marie Dyhrberg, argued that her client should not have a conviction entered against him on the grounds of the great price he had already incurred professionally and the effect of a conviction on finding future work.

Judge Cunningham said there was a breach of trust against a vulnerable victim but she had difficulty working out the effect on the child.

She said from seeing the child's video interview she was struck by the girl's wish to see and be with her father.

The man had demonstrated significant remorse and had taken all steps to ensure that he would not reoffend.

The judge said despite suppression orders it was widely known in his industry who he was.

"He must have significant strength of character to deal with all of that."

A "small telephone book" of references described him in glowing terms.

The judge said voluntary community work would be a condition of his discharge but it could be carried out using the comedian's "talents" in rest homes or schools.

"There's plenty of material around with the World Cup,'' she said.

A doctor's report said the man had had several occasions in the past of "odd" incidents occurring after waking up after drinking and not having knowledge of what he did.

The entertainer had since sworn off alcohol completely and he did not have any "paedophilic tendencies", the doctor said.

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