B v Department of Internal Affairs

[2023] NZHC 3558

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-454

[2023] NZHC 3558

BETWEEN

B

Appellant

AND

DEPARTMENT OF INTERNAL AFFAIRS

Respondent

Hearing:

28 November 2023

Appearances:

T D Clee for Appellant

J L Gibson for Respondent

Judgment:

7 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 7 December 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

T D Clee, Barrister, Auckland Meredith Connell, Auckland

B v DEPARTMENT OF INTERNAL AFFAIRS [2023] NZHC 3558 [7 December 2023]

[1]    On 1 September 2023, B was sentenced to two years and six months’ imprisonment in relation to three representative charges of exporting, distributing, and possessing  objectionable  publications.1  The  prosecution  was  brought  by  the  New Zealand Customs Service.

[2]    The basis of the appeal is an allegation that the sentence is manifestly excessive. The appellant contends that a period of imprisonment of less than two years is appropriate. If accepted, the appellant seeks home detention, and asks that registration not be imposed to the extent  it  is  discretionary  under  s 9  of  the  Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Registration Act).2

[3]    In support of the appeal, counsel for B sought leave to adduce updates about B’s continued treatment from Safe Network (SAFE) and from his registered clinical psychologist, Ms Gow.3 The respondent had no objection to this further updating material being received and leave was accordingly granted.

[4]    The submissions on appeal are that the end sentence is manifestly excessive because:

(a)the starting point was too high; and

(b)the discounts were insufficient.

Legal principles

[5]    The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 Generally, the sentence must be shown to be manifestly excessive or wrong

1      New Zealand Customs Service v [B] [2023] NZDC 19070.

2      On the grounds the Court cannot be satisfied in terms of s 9(2) that the person poses a risk to the lives or sexual safety of one or more children, or children generally.

3      This application was made under s 335(2)(c) of the Criminal Procedure Act 2011, with the principles set out in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and R v Bain [2004] 1 NZLR 638 at [22].

4      Criminal Procedure Act, s 250.

in principle.5 The focus is on the end sentence imposed, rather than the process by which it is reached.6

[6]    The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.7

[7]    Appellate courts do not indulge in mere tinkering with a sentence.8 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Nature of offending

[8]    Objectionable publications of the nature involved in this appeal are referred to as “child sexual exploitation material” (CSEM). It is wrong to describe it as “child pornography” because this fails to underscore the abusive nature of the exploitation of vulnerable children, and the real trauma they suffer from the abuse, both when it occurs and from subsequent circulation of the material. No child is capable of consenting to that type of exploitation.

[9]    There was a total of 628 CSEM involved in the offending in this case. These can be classified by reference to three different categories, as referred to in the United Kingdom Sentencing Council’s guidelines on sentencing for sexual offences called Sexual Offences Definitive Guidelines (2014 UK Guidelines):9

(a)Category A — Images of children involving penetrative sexual activity or images involving sexual activity with an animal or sadism.

(b)Category B — Images of children involving non-penetrative sexual activity.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

6 At [36].

7 At [32].

8      R v Boyd (2004) 21 CRNZ 169 at [38].

9      See below at [24], n 34 for cases in which these have been referred to.

(c)Category C — Indecent images of children not falling within categories A or B.

[10]   In this case, 328 of the CSEM were Category A, 98 were Category B. The balance were Category C.

[11]   Videos possessed and/or distributed by the appellant included recordings of full vaginal intercourse being forced on an infant by an adult man, videos involving violence (suffocation), degradation (ejaculating on a young girl’s face), and torture (holding a lit candle to a young girl’s genitals). In many of the recordings the children are distressed, with the child in one of the videos distributed by the appellant crying for her mother while being forced to perform fellatio on an adult man.

[12]   In terms of the scale of the offending, the appellant exported 116 CSEM and distributed 293 CSEM to other users on an instant messaging social media platform. From the summary of facts, it appears that six other recipients were involved in the exportation and distribution charges:

(a)10 March to 11 April 2022: 81 CSEM sent to another user (exportation charge).

(b)8 to 13 May 2022: 35 CSEM sent to another user (exportation charge).

(c)10 May 2022: three CSEM sent to another user (distribution charge).

(d)14 and 15 May 2022: seven CSEM sent to another user (distribution charge).

(e)23 May 2022: three CSEM sent to another user (distribution charge).

(f)30 May 2022: CSEM received from another user and a link to another person’s CSEM cloud storage sent in return (distribution charge).

District Court decision

[13]Judge K Davenport KC imposed the sentence based on the following:

(a)an adjusted starting point of eight years’ imprisonment (seven years’ imprisonment for distribution, and an uplift of one year for possession charges);

(b)a discount of 25 per cent for a guilty plea;

(c)a discount of 30 per cent for B’s remorse, youth, and the work he has done rehabilitating himself;

(d)a discount of 10 per cent for diminished intellectual capacity; and

(e)taking into account the appellant’s youth and stepping back, a final sentence of two years and six months’ imprisonment was reached.

[14]To assess the starting point, the Judge considered a number of factors:

(a)She noted the large number of objectionable publications, but also acknowledged that the size of the collection is a blunt tool.10

(b)Importantly, many of the images and videos were at the most objectionable end, in Category A.

(c)In terms of the aggravating features in s 132A of the Films, Videos and Publications Classification Act 1993 (FVPCA), these publications were aggravating in all three respects.

10     Stewart v Department of Internal Affairs [2014] NZHC 2209 at [42]; and Snell v R [2022] NZHC 1627 at [49].

(d)The Judge emphasised the severe harm caused by possession and distribution of objectionable publications of this nature. Children are the victims, and possession and distribution drives demand for this type of publication.

(e)She acknowledged the offending behaviour took place over a matter of months, as opposed to years.

[15]   In terms of sentencing objectives, the Court noted the need to consider the appellant’s accountability, to denunciate offending that contributes towards and adds to the sexual abuse of children, and to protect the community. The Judge determined that an adjusted overall starting point of eight years was appropriate because of the gravity of the offending, the comparative seriousness of the offending compared with other cases, and the aggravating factors in s 132A of the FVPCA.

[16]   The sentencing notes then set out the discounts that were applied, but do not elaborate further on the analysis used for arriving at those percentages.

Appeal submissions

[17]   The appellant seeks that the District Court’s sentence is set aside, and a fresh sentence imposed under s 251(2)(a) of the Criminal Procedure Act 2011, based on the following calculations:

(a)a global starting point of six years (five years for the distribution charges, and a one-year uplift for the possession charges);

(b)a 25 per cent discount for the guilty plea;

(c)a 20 per cent discount for youth and previous good character; and

(d)a 35 per cent discount for remorse and rehabilitation.

[18]   For the starting point, counsel for the appellant submits that the offending in this case should be viewed as less serious that in Robinson v Police,11 taking into account the following:

(a)The distribution charge is similar in nature, duration and scale to that of Robinson. The aggravating factors in s 132(A)(2) of the FVPCA apply, and the severe impact on victims is acknowledged.

(b)The appellant was in possession of a greater number of images, but that is only a blunt tool, and does not reflect culpability on these facts.

(c)The duration of the offending in this case was short, spanning two and a half months (between 10 March 2022 and 30 May 2022).

(d)The appellant’s culpability and premeditation must be viewed as less than in Robinson. This is evident from the appellant being readily identifiable from one of the emails he used and from his IP address (which was not disguised by using VPN).

[19]   In terms of discounts, counsel for the appellant submits that combining the rehabilitation and youth discounts resulted in a substantially lower discount than was justified on the facts and by considering these factors separately. Furthermore, insufficient weight was given to the sentencing purpose in s 7(1)(h) of the Sentencing Act 2002 of assisting the offender’s rehabilitation and reintegration. Given the appellant’s age, nature of the charges and extensive material addressing his remorse and steps to rehabilitate, this should at least have been addressed in the reasoning.

[20]   In contrast, the respondent supports the global starting point of eight years, as applied by the Judge. Counsel for the respondent contends that the most comparable case is Robinson, but here the scale of the distribution is significantly higher. The objectionable nature of the publications is plainly substantially more serious than in

11     Robinson v Police [2017] NZHC 2655.

R v M12 and Pattison v Police.13 Overall, the respondent submits that the starting point was stern, but still within the available range.

[21]   Similarly, counsel for the respondent submits that the discounts given by the Judge were sound and should not be disturbed on appeal. Combining the remorse, youth and rehabilitation factors is valid and made no difference. Any remorse should be balanced against the severity of the offending and harm caused. Youth is not an excuse and must be balanced against other factors. Giving too much weight to rehabilitation risks that insufficient weight is given to deterrence and the interests of victims.

Starting point

[22]   There is no tariff for offending of this type — each case rests on its own set of facts and the personal circumstances of the offender, which makes direct comparisons difficult.

[23]   A range of starting points have been adopted in cases involving objectionable publications:

(a)Magill v R — A global starting point of five years and nine months’ imprisonment was upheld for representative charges of possessing and distributing objectionable publications.14 Mr Magill had accessed a collection of video and image files depicting the sexual exploitation and abuse of very young children via a cloud storage service. He downloaded five video files to his own cloud account. The police executed a search warrant and seized 15 electronic devices and memory sticks, containing thousands of objectionable  images  and  video  files.  The  devices  stored  over  3,000  objectionable  images  and 200 objectionable  videos.  In  addition,  the   cell  phone  contained “in excess of 5,000 images of a sexual nature”.15 In an appendix to the

12     R v [M] [2020] NZDC 24552.

13     Pattison v Police [2018] NZHC 2163.

14     Magill v R [2022] NZHC 2455.

15 At [5].

summary of facts listing a “small selection of the most serious material”, at least 33 videos were classified as category A.16 The distribution charge involved Mr Magill sending 10 emails to different email users, containing links to videos of child sexual exploitation. This took place over a period of six months. Factors relevant to culpability were not only the size of the collection, but the length of possession (over the course of 18 months) and the level of curation and enjoyment.17

(b)Snell v R — A starting point of four years’ imprisonment was adopted for Mr Snell, who imported and possessed 306 objections publications involving the sexual abuse  of  children,  including  50  images  and  10 videos in Category A.18 The period of offending was approximately 20 months.19 Mr Snell’s offending was less serious than Robinson (referred to at [23(f)] below) because he did not distribute material.20

(c)Pengelly v Police — Venning J held that the starting point should have been at least six to seven years’ imprisonment for hundreds of video files organised into folders, of which 280 were in Category A (including death, sadism, torture, bestiality and sexual exploitation of infants) and 81 in Category B.21 The videos involved in excess of 100 hours of viewing time.22 Although the period of offending for the charges was between 4 and 21 December 2019, the evidence disclosed the offenders’ involvement with CSEM from December 2017.23 The offenders had not supplied or distributed the material, but the offending was nevertheless comparable in seriousness to Robinson. The penalties imposed on appeal ultimately reflected  an  overall starting point of  six years.

16 At [6].

17 At [24].

18     Snell v R, above n 10, at [62].

19 At [60].

20 At [63].

21     Pengelly v Police [2021] NZHC 2974 at [82].

22 At [75].

23     At [11] and [15].

(d)Johnston v Department of Internal Affairs — Grice J upheld a “stern” starting point of seven years’ imprisonment for Mr Johnson possessing thousands of objectionable publications, most of which were video files and fell within category A.24 From one cloud storage account, 417 files were recovered depicting  child  abuse  or  exploitation,  including  465 movies. From another, 1,388 were recovered depicting child abuse or exploitation, including 829 movies. An external hard drive was seized containing over 48,000 files, which were saved in an extensive folder structure. A total of 10,795 unique folders were identified as depicting  child  sexual  abuse   and   exploitation.   This   included 701 images and 5,723 videos depicting children engaged in sexual activity upon themselves, with other children and including adults. Another USB drive was seized with 209 files identified depicting child sexual abuse and exploitation, including 66 videos. The CSEM had been downloaded over a period of 18 months.25 It was accepted that serious cases of possession can attract a greater penalty than less serious cases of distribution.26

(e)R v M — The Court took a starting point of three years and three months’ imprisonment for the lead offending of distribution.27 It then applied an uplift of 15 months for possession charges. M faced two charges of importing videos, one of which was Category A. There were two charges of distributing two videos, being the same Category A publication and another a Category C publication. The possession charge related to 1,639 other objectionable publications, six of which were Category A and another 142 in Category B.

(f)Pattison v Police — Edwards J adopted a four-and-a-half-year global starting point (based on a starting point of three-and-a-half years for the distribution charge, and an uplift of 12 months for the possession

24     Johnson v Department of Internal Affairs [2021] NZHC 2480 at [59].

25 At [32].

26 At [50].

27     R v [M], above n 12.

charge).28 Mr Pattison had distributed two video files and one image involving children engaged in sexual activity and one image of a child in an erotic pose. In addition, the defendant had been found in possession of more than 800 images of children undertaking sexual and non-sexual acts. Of those images, 128 were Category A, 143 were Category B and 603 were Category C. The offending was regarded as more serious than in Tilyard v Police.29

(g)Robinson v Police — The District Court imposed a global starting point of seven years’ imprisonment, which was considered at the “upper end of the permissible range” by the High Court.30 Fitzgerald J noted that all of Mr Robinson’s publications fell within Category A or B and were “extremely   objectionable”.31   Mr   Robinson   was   sentenced   for 20 charges of possessing, and 15 charges of supplying objectionable publications. The supply charges related to sharing 15 video files, 11 of which were Category A. Mr Robinson used eMule, a peer-to-peer file sharing service, and the period of offending was four months.32

(h)Tilyard v Police — The High Court adopted a starting point of two years’ imprisonment for the most serious Category A image, and a further uplift of six months’ imprisonment for the other two Category B images.33 These three images in Categories A and B were the most serious, but the offender knowingly possessed more than 800 objectionable images.

28     Pattison v Police, above n 13.

29     At [48], referencing Tilyard v Police [2016] NZHC 1377 at [51].

30     Robinson v Police, above n 11, at [51].

31 At [9].

32 At [24].

33     Tilyard v Police, above n 29.

[24]   In many of these New Zealand cases, there has been reference to the following table set out in the 2014 UK Guidelines, but with the cautionary note that sentencing outcomes in New Zealand are likely to adopt somewhat higher starting points:34

Category	Type of image	Possession offences	Distribution offences	Production offences
Category A	Images [of children] involving penetrative sexual activity or images involving sexual activity with an animal or sadism	Starting point: 1 year’s custody Range: 26 weeks’ to 3 years’ custody	Starting point: 3 years’ custody Range: 2 to 5 years’ custody	Starting point: 6 years’ custody Range: 4 to 9 years’ custody
Category B	Images involving non-penetrative sexual activity	Starting point: 26 weeks’ custody Range: High level community order – 18 months’ custody	Starting point: 1 year’s custody Range: 26 weeks’ to 2 years’ custody	Starting point: 2 years’ custody Range: 1 to 4 years’ custody
Category C	Indecent images not falling within categories A or B	Starting point: High level community order Range: Medium level community order – 26 weeks’ custody	Starting point: 13 weeks’ custody Range: High level community order – 26 weeks’ custody	Starting point: 18 months’ custody Range: 1 to 3 years’ custody

[25]   In this case, it must be acknowledged that all the aggravating features  in      s 132A(2) of the FVPCA are engaged. Many of the images and videos were at the most objectionable end, in Category A. Offending of this nature calls for a stern response supporting an object of deterrence, given the severe harm caused by possession and distribution of CSEM. Children are the victims, and possession and distribution drives demand for this type of publication.

[26]   However, I consider that the global starting point of eight years’ imprisonment was excessive, when compared with other cases and taking into account factors relevant to culpability in this case. In my view, a global starting point of six years’ imprisonment is appropriate and still represents a stern deterrence for offending of this type:

34     Magill v R, above n 14, at [29]; Snell v R, above n 10, at [25] and [38]; Pengelly v Police,     above n 21, at [27]; Johnson v Department  of  Internal  Affairs,  above  n  24, at [13]; Robinson v Police, above n 11, at [19], [30] and [40]; and Stewart v Department of Internal Affairs, above n 10, at [26].

(a)A global starting point of six years is higher than that adopted in Magill. My assessment is that the conduct in Magill was potentially more culpable overall. The offending in Magill took place over 18 months, involved much greater volumes of CSEM and levels of curation, and appears to have involved distribution to a similar or higher number of people. Against that, it appears that the number of Category A CSEM in this case might be higher than in Magill.

(b)A global starting point of six years is the same as that adopted in Pengelly. Although Pengelly did not involve distribution, those defendants were more culpable in many respects and were assessed as being comparable with Robinson. The CSEM volumes were higher, the defendants had been involved in CSEM for two years, and the material was curated.

(c)A global starting point of six years is lower than that adopted in Robinson. I consider the distribution charge is similar in nature, duration, and scale to that of Robinson. However, I accept that the appellant’s culpability and premeditation must be viewed as less than in Robinson, for the reasons that follow.

(d)Circumstances personal to the appellant are considered at stage two, but for stage one purposes it is relevant to note the clinical psychologist’s expert opinion that the appellant was drawn into the offending by paedophiles on the internet who took advantage of his loneliness and naivety. This is objectively evident from the appellant being identifiable from one  of  the  emails  he  used  and  from  his  IP address (which was not disguised by using VPN). He used a simple messenger platform rather than any more complex peer-to-peer file sharing service. I therefore accept that the appellant’s conduct had lower culpability in terms of premeditation and sophistication compared with the other cases, and it was of relatively short duration.

Volumes, while high, are a blunt tool for assessing culpability35 and not the most appropriate measure in this case.

Personal circumstances

[27]   The appellant’s background and the context relevant to the mitigating factors is set out in a report of Ms Gow (a clinical psychiatrist), SAFE reports, and affidavits from the appellant’s family.

[28]   The appellant had a difficult start to life. He was born by emergency caesarean and was diagnosed with birth asphyxia and mild encephalopathy. He was in intensive care for three weeks and an incubator for eight weeks. At two months of age, he had febrile seizures.

[29]   As a toddler and at school, he faced anxiety when separated from his mother and was the victim of bullying. He struggled with his learning, and by 10 years’ old was at least two years behind his peers in literacy skills. Around that age, he was referred for counselling because he was socially isolated and lacking confidence due to bullying. He transferred to the local college at year seven and continued to struggle with schoolwork and low self-confidence. The appellant left school at the end of 2019, aged 17. In his first year of full-time employment after he left school, the COVID-19 pandemic escalated. This led to more time at home on social media and using messaging platforms to communicate with strangers.

[30]   The clinical psychologist interviewed the appellant about the circumstances of the charges. During the two-year period affected by the COVID-19 pandemic, and with no friends in the real world, he spent increasing time in his room on the internet using chat platforms. Through that medium, he met strangers who introduced him to pornography and ultimately to CSEM.

[31]   The clinical psychologist tested the appellant’s cognitive profile and concluded that his IQ is in the range of 71–80. He has a relative strength in verbal comprehension but a relative weakness in processing speed and working memory. The appellant’s

35     Stewart v Department of Internal Affairs, above n 10, at [42]; Snell v R, above n 10 at [49].

overall level of adaptive functioning is in the range of 76–82. In addition to these cognitive issues, the appellant has been diagnosed with mental health issues. Testing suggests that the appellant meets the criteria for acute stress disorder and generalised anxiety disorder. He has had ongoing issues with anxiety and depression.

[32]   It is these weaknesses that were exploited by the strangers that he met on the internet, thinking that they were his friends. The clinical psychologist expresses her view that “he became entrapped by more sophisticated child offenders who capitalised on his need for acceptance and belonging”.

[33]   Following the police raid, the appellant has undertaken extensive steps to address  his  issues.  The  appellant  started  seeing  the  clinical  psychologist  on   13 July 2022  and,  by  the  time  of  the  initial  report,  had  attended  more  than   20 appointments. The majority of those were therapy sessions, but also included were a reoffending assessment, cognitive assessment, mental health assessment and sessions with the appellant’s parents alone.

[34]   The clinical psychologist also liaised directly with two SAFE practitioners to work on enhancing all of the protective factors in the appellant’s life. In the report, the psychologist describes the various steps to improve the appellant’s social engagement and learning new psychological ways to manage his symptoms such as anxiety. She has focused on increasing the appellant’s victim empathy. This has included the appellant committing to putting aside a portion of his salary on a monthly basis and contributing financially to the work of UNICEF, an organisation involved in supporting and protecting vulnerable children from violence, disease, poor education and, importantly, exploitation.

[35]   Issues related more directly to the harmful sexual behaviour have also been addressed by his therapy work with SAFE. These are described in the SAFE assessment report, and a subsequent progress report. A further updating letter was provided from SAFE dated 14 November 2023, confirming that the appellant has attended all individual and group therapy sessions scheduled for him, comprising eight group therapy sessions and seven individual therapy sessions. He continues to engage well in therapy sessions in both settings. Individual therapy has focused on processing

unhelpful thoughts and beliefs that influenced his engagement in harmful sexual behaviour. Group therapy has focused on healthy sexuality and sexual boundaries.

[36]   Some disruption to his attendance at therapy was caused by his temporary incarceration, which had an adverse effect. The first session after returning to individual therapy involved some time processing that sentencing and incarceration experience. Under the planned programme, the appellant has 44 sessions of group therapy sessions remaining to complete. The appellant also wishes to continue attending individual therapy sessions. The SAFE registered psychologist concludes by saying that it will be important for the appellant to keep attending group therapy and individual therapy sessions to address risk factors and protective factors planned for him at his initial assessment in November 2022.

[37]   In terms of the risk  assessment  undertaken  by  the  clinical  psychologist, Ms Gow, the appellant scored 1/7 on the Child Pornography Offender Risk Tool (CPORT), which translates to an observed recidivism rate of 4.2 per cent and a predicted recidivism rate of 4.5 per cent. These scores suggest that the appellant’s risk of reoffending is in the low range.

Mitigating factors

Youth

[38]   The appellant was 19 years old at the time of offending. As accepted in R v M, youth is a relevant factor in sentencing. It is relevant because of the particular interest society has in ensuring that young offenders can be rehabilitated to be contributing members of society.36 But it is also relevant because the law recognises that young people may in some circumstances be less culpable for their offending:37

This is because young people are less able than adults to make good choices as to their actions and to control impulses … The part of the brain which governs planning, appreciation of consequences and impulse control, is not fully developed for many boys prior to the age of 19. When this fact is combined with the higher levels of testosterone in young men, it often if not frequently produces flawed decision making.

36     R v M [2014] NZHC 1848 at [29] and [38], referencing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [78].

37 At [29].

[39]   There is no outer limit to the discount for youth in current sentencing practice, but discounts of 10–30 per cent are common.38

[40]   In this case, the decision-making vulnerabilities of the appellant as a youth were exacerbated by the cognitive and mental health issues described by the clinical psychologist. I consider that these likely played a highly causative role in the offending and that a 20 per cent discount is entirely appropriate to reflect those factors and the appellant’s previous good character.

Remorse and rehabilitation

[41]   The appellant has already demonstrated his remorse in a number of ways, as referred to in the evidence. This is discussed extensively in Ms Gow’s clinical reports and the SAFE reports, as well as in the appellant’s apology letters and his undertaking volunteer community work.

[42]   The appellant has taken extensive steps to address the causative factors of the offending, and to rehabilitate himself and prepare for reintegration. He has already had a large number of therapy sessions with both his clinical psychologist, Ms Gow, and through the SAFE programme. The reports on those efforts are very positive, with strong optimism that continued participation in treatment sessions will address the factors that led to this offending and better equip the appellant for coping with his anxieties. His parents are highly supportive of their son and his rehabilitative steps. Overall, prospects for rehabilitation are very positive.

[43]   In R v Hill, a discount of 35 per cent was given for the appellant’s efforts at, and prospects for, rehabilitation. In that case, the appellant was undertaking “intensive outpatient” treatment for drug use.39

[44]   In this case, I consider that a discount of 30 per cent is appropriate to reflect the appellant’s genuine remorse and his rehabilitative efforts and prospects, given the extensive and positive engagement to date by the appellant in the SAFE programme

38     Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [175], referencing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].

39     R v Hill [2008] NZCA 41, (2008) 2 NZLR 381 at [8]–[10] and [37].

and with his clinical psychologist Ms Gow, and his intention to continue with that therapy.

Overall assessment

[45]   Accordingly, in my view, a final overall sentence of one year and six months’ imprisonment is appropriate based on the following calculations:

(a)an adjusted global starting point of six years’ imprisonment;

(b)a discount of 25 per cent for a guilty plea;

(c)a discount of 20 per cent for youth, and cognitive and mental health issues; and

(d)a discount of 30 per cent for remorse and rehabilitation.

[46]   It follows that, stepping back and assessing the overall end sentence imposed, the appellant has succeeded in showing that the end sentence was manifestly excessive. Such a difference goes well beyond mere tinkering and should be corrected.

[47]   Accordingly, the appeal is allowed. The sentence of two years and six months’ imprisonment imposed in the District Court is quashed.

[48]   Given that the end sentence calculation referred to above is a short-term sentence of imprisonment, the possibility of a sentence of home detention is available and considered next.

Custodial sentence or home detention

[49]   The appellant submits it is appropriate to commute the sentence to home detention in this case as the least restrictive sentence to meet the purposes of deterrence, accountability, and denunciation.

[50]   There is no presumption that a short term of imprisonment will be commuted to home detention. An analysis of the circumstances of the particular case is required. In Fairbrother v R, the Court of Appeal stated:40

… the judge must make a considered and principled choice between the two forms of sentence [a short sentence of imprisonment and home detention], recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[51]   Under s 8(g) of the Sentencing Act, I must impose the least restrictive outcome that is appropriate in the circumstances. Under s 16(1), when considering the imposition of a sentence of imprisonment, this Court must have regard to the desirability of keeping offenders in the community. Under 16(2), a sentence of imprisonment must not be imposed unless the court is satisfied that the sentence is being imposed for all or any of the purposes of sentencing in s 7(1)(a)–(c) and (e)–(g) and that those purposes cannot be achieved by a sentence other than imprisonment. Further, I must also be satisfied that no other sentence would be consistent with the principles of sentencing in s 8.

[52]   This type of offending requires a stern deterrence, which would ordinarily mean a custodial sentence. However, other factors are important in this case. The clinical psychologist is concerned about the damaging impact that a custodial sentence will have on the appellant’s rehabilitation prospects, mental wellbeing, and opportunity for community reintegration. Both Ms Gow and SAFE psychologists have already worked through the setback experienced following his temporary incarceration during the present sentencing process. On the other hand, all the experts are highly optimistic of the appellant’s rehabilitative prospects within a home detention structure, given his acceptance of accountability, his parents’ support, and his commitment to ongoing therapy.

[53]   In considering whether the criteria for home detention are met, the Court is required to consider a pre-sentence report prepared by a probation officer.41 In this case, the Provision of Advice to Courts (PAC) report dated 30 August 2023

40     Fairbrother v R [2013] NZCA 340 at [30].

41     Sentencing Act 2002, s 80A(2A).

recommends home detention with post-detention conditions. The proposed home detention address is his present home address, with his parents. All occupants are aware of the nature of the appellant’s offending, and each was made aware of the conditions, expectations and responsibilities that may apply to them. They have each given their informed and written consent to the appellant serving a restrictive sanction from their home address. I have reviewed and approve of the recommended special conditions of home detention, and the recommended post-detention special conditions set out in the PAC report. These are designed to address the risk of reoffending, and include conditions controlling access to the internet, requiring him not to associate or have contact with any person under 16 years of age except under the supervision of an “Approved Informed Adult”, and to continue with treatment/counselling.

[54]   Taking into account the purposes of sentencing in s 7, the principles of sentencing in s 8, and the personal circumstances of the appellant, I consider that home detention is the least restrictive sentence appropriate in the circumstances and is a sentence that meets the purposes of deterrence, accountability, and denunciation.

[55]   Ordinarily, a sentence of imprisonment is  converted  to  a  sentence  of  home detention that is equivalent to one-half of the prison sentence. This reflects the fact that an offender serving a sentence of imprisonment of two years or less is released automatically after serving one-half of the sentence. An offender serving a sentence of home detention must serve the whole sentence.

[56]   In Moeller v R, Simon France J held that in determining the length of a substituted sentence of home detention, the Court should have regard to the statutory release date rather than the sentence expiry date.42 In the case of a short-term sentence, the statutory release date will fall on the date when the offender completes one-half of the sentence.43

[57]   Accordingly, I commute the sentence to one of home detention for a maximum period of nine months, subject to the standard conditions referred to in s 80C(2) of the Sentencing Act, and special conditions imposed under s 80D as set out below.

42     Moeller v R [2020] NZHC 1290, [2020] 3 NZLR 726 at [4]–[6].

43     Parole Act 2002, s 86(1).

Registration

[58]   Under s 9 of the Registration Act, if a court imposes a non-custodial sentence in respect of a conviction for a qualifying offence, registration under that Act is discretionary rather than mandatory. The court may only make such an order if the court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children more generally.44 For the purposes of assessing the risk posed, the court must consider the matters set out at s 9(3) of the Registration Act.

[59]   Section 16 of the Registration Act details reporting obligations relevant to all offenders subject to a registration order. Section 35(1)(d) provides that reporting obligations must be complied with for eight years if an offender is sentenced to a non-custodial sentence and subject to a registration order. Therefore, “a decision under s 9 to place someone on the register is a binary decision”.45 Failure to comply with the reporting obligations without reasonable excuse or to knowingly provide false or  misleading   information   is   a  criminal   offence.46    The   Supreme  Court  in   D (SC 31/2019) v New Zealand Police accepted that the purpose of the Registration Act is to reduce reoffending against children, but that does not change the fact that a registration order restricts a person’s liberty as is a penalty for the purposes of s 6 of the Sentencing Act.47

[60]   Qualifying offences are divided depending on the level of seriousness in the Registration Act. The appellant’s offending is classified as class 1,48 the least serious category.49 However, the amount and nature of the CSEM is undoubtedly significant. Many of the factors of the offending and personal to the appellant that I have considered  above are also relevant in this context, in line with the matters listed in   s 9(3). The appellant was 19 years old at the time of the offending and is now 20, supporting his strong prospects of rehabilitation. His offending involving the sexual exploitation of young children is of particular concern. In this context it has been

44     Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(2).

45     D (SC 31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213 at [25].

46     Child Protection (Child Sex Offender Government Agency Registration) Act, ss 39–40.

47     D (SC 31/2019), above n 45, at [58]–[59].

48     Child Protection (Child Sex Offender Government Agency Registration) Act, sch 2.

49     D (SC 31/2019) v New Zealand Police, above n 45, at [21].

acknowledged that the making of videos and taking of photographs depicting such exploitation continues only because people who offend in this manner support it.50

[61]It is also relevant, as accepted by the Supreme Court in D (SC 31/2019), that:51

… where (as in the present case) the offences are limited to viewing material on the internet and no actual interaction with children has occurred, it is arguable that some of the requirements set out in s 16 may be of limited utility in assisting with any monitoring of the offender.

[62]   Taking into account the evidence in support of the low risk of reoffending posed by the appellant and his strong prospects of rehabilitation, I find that the appellant does not meet the s 9(2) risk threshold. I am not satisfied that the appellant poses a risk to the lives or sexual safety of one or more children, or children generally. It follows that no registration order pursuant to s 9 can be made.52

Result

[63]   The appeal is allowed. The sentence of two years and six months’ imprisonment imposed in the District Court is quashed.

[64]I sentence B to nine months’ home detention on the following conditions:

(a)The sentence of home detention shall be served at the address specified in the PAC report dated 30 August 2023.

(b)The standard conditions set out in s 80C of the Sentencing Act and the special conditions set out in (c) to (h) below shall also apply.

(c)B shall undertake and complete the SAFE programme and abide by the rules of the programme to the satisfaction of a probation officer.

50 At [121].

51 At [25].

52 At [104].

(d)B shall undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a probation officer.

(e)B is to comply with the requirements of electronic monitoring and provide access to the approved residence to the probation officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the probation officer.

(f)B is not to possess or use any electronic device capable of accessing the internet, other than a device that has been approved in writing by a probation officer.

(g)Upon request, B is to make available to a probation officer, or his or her agent, any electronic device capable of accessing the internet that is used by B, or is in his possession or control, for the purpose of monitoring B’s use of the device.

(h)B is not to associate or otherwise have contact with any person under 16 years of age except in the presence and under the supervision of an “Approved Informed Adult”. An “Approved Informed Adult” means a person who has been given prior approval in writing by a probation officer as being suitable for the purpose of this condition.

Post-detention conditions

(i)Standard post-detention conditions and the conditions set out in (j) to

(l) below shall apply as special post-detention conditions for a period of 9 months.

(j)B is to undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a probation officer.

(k)B is not to possess or use any electronic device capable of accessing the internet, other than a device that has been approved in writing by a probation officer.

(l)Upon request, B is to make available to a probation officer, or his or her agent, any electronic device capable of accessing the internet that is used by B, or is in his possession or control, for the purpose of monitoring B’s use of the device.

O’Gorman J

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