Barnes v Police
[2013] NZHC 3510
•19 December 2013
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2013-454-35 [2013] NZHC 3510
BETWEEN GARY RONALD BARNES Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 16 December 2013
Appearances: P M O'Sullivan for the appellant
B D Vanderkolk for the respondent
Judgment: 19 December 2013
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Gary Ronald Barnes, was sentenced in the District Court at Levin to a total of three years’ imprisonment after he pleaded guilty to 25 charges of supplying electronic images of objectionable material (Films, Videos, and Publications Classification Act 1993, s 124(1)), and five charges of possessing such publications (Films, Videos, and Publications Classification Act, s 131A).
[2] Mr Barnes now appeals against that sentence as being manifestly excessive.
Mr Barnes’ offending
[3] The summary of facts to which Mr Barnes pleaded guilty states:
On 26 June 2013 New Zealand Customs Service staff executed a search warrant at a residential address in Westmere, Auckland.
This warrant had been issued pursuant to the Films, Videos, and Publications Classification Act 1993, and its purpose was to allow Customs and Police to look for evidence of the exportation of objectionable publications, specifically images depicting the sexual abuse of children.
BARNES v POLICE [2013] NZHC 3510 [19 December 2013]
During the course of that search, an i-phone 5 belonging to an occupant at that address was located and forensically analysed. It was found to contain
43 photo files showing young girls being sexually abused and/or sexually exploited.
Further investigation revealed that the [appellant] had used a smart phone messaging application to send those files to the i-phone between 16 May
2013 and 27 May 2013.
Twenty five images located among those files were selected to form the basis of a prosecution for supplying objectionable publications.
...
On 5 September 2013, Police and Customs staff executed a search warrant at the [appellant’s] home address in Levin. In addition to other items, an i- phone 4 belonging to the [appellant] and a lap-top computer were seized.
...
The [appellant’s] laptop computer was examined by New Zealand Customs Service electronic forensic investigation staff. During the course of that analysis, 294 image files were located in a mobilesync back-up folder. They included images of coprophilia, urination, bestiality, and young children being sexually abused and exploited. A number [of] movie files containing explicit footage of young children being raped, sexually violated, engaging in acts of bestiality, or being otherwise sexually exploited were also found.
Five images were sought to form the basis of a prosecution for possession of objectionable publications.
[4] The District Court Judge accepted the Police classification of the 25 distributed images (the distribution images) as, by reference to the five categories identified by the United Kingdom Sentencing Guidelines Council of indecent photographs of children from Level One (least serious) to Level Five (most serious), as comprising:
(a) Level One (images depicting erotic posing with no sexual activity):
13.
(b)Level Two (non-penetrative sexual activity between adults and children, or solo masturbation by a child): 3.
(c) Level Three (non-penetrative sexual activity between adults and children): 3.
(d)Level Four (penetrative sexual activity involving a child or children, or both children and adults): (perhaps 5).
(e) Level Five (sadism or penetration of, or by, an animal): perhaps 1.
[5] The five images the subject of the possession charges (the possession images) were said by the Judge to contain largely Level One images. In fact, the specific description of those images, which Mr Barnes did not contest, establishes that they all involved bestiality, but only one depicted a child in that activity. On that basis, there was one Level Five image, and four “otherwise objectionable” images, in the possession images.
Grounds of appeal
[6] Mr Barnes appeals on the grounds that:
(a) the starting point sentence of three years six months identified by the Judge was too high, and involved the incorrect application of relevant New Zealand authority and an incorrect classification of the distribution images;
(b)the one year uplift from that starting point sentence applied by the Judge, in light of Mr Barnes’ previous similar offending, was excessive; and
(c) the Judge failed to give appropriate weight to Mr Barnes’
rehabilitative efforts.
Analysis
Viewing the images: the statement of facts
[7] Although not a formal ground of appeal, Ms O’Sullivan arguing the appeal for Mr Barnes submitted that the District Court Judge had not viewed the images, meaning that he was not able to resolve the dispute that arose as to classification. I acknowledge that it would appear that the Judge had not viewed the five possession images. Whether or not he had viewed the distribution images is less clear.
[8] For the Police, Mr Vanderkolk acknowledged that viewing images in cases such as this was best practice, if in fact not required as a matter of law.
[9] On the assumption, which as I have said I am not persuaded is the case, that the Judge had viewed neither the distribution nor the possession images, the issue becomes the effect of that in this appeal. In my view the position is as follows:
(a) I have viewed the 25 distribution images. To the extent required, my assessment of the appropriate categorisation of those images in response to Ms O’Sullivan’s submissions cures any defect that may have arisen if, in fact, the Judge did not view those images. I can resolve any dispute as to their classification.
(b)As regards the five possession images – which I have not viewed as they were not provided on the appeal file – the position, based on their description in the statement of facts which Mr Barnes did not dispute, is that one is a Level Five image, and the others – not involving children – are simply objectionable. I assess Mr Barnes’ appeal on that basis.
[10] I mention one further matter at this point. It would appear, on the basis of the statement of facts to which Mr Barnes pleaded guilty, that the selection of the possession images relied on by the Police may not have reflected the seriousness of a number of the images discovered on Mr Barnes’ laptop computer. Ms O’Sullivan indicated that Mr Barnes had issues with the description of some of those other images. In those circumstances, and for the purposes of this appeal, I assess the seriousness of Mr Barnes’ offending as regards the possession images by reference to the descriptions, not disputed, of those images. I do not rely on the possibility that, based on the statement of facts, there may have been a larger number of more
objectionable images discovered involving children.1
The starting point
[11] The Court of Appeal in R v Zhu considered that the United Kingdom sentencing guidelines for sexual offences were a useful guide for New Zealand
1 Hall’s Sentencing at [SA24.5]. See also R v Riley [1896] 1 QB 309 at 318, per Hawkins J; R v Bryant [1980] 1 NZLR 264; R v Winton (CA 142/92, 9 July 1992, Eichelbaum CJ, Casey and Holland JJ). See also R v Maitland [1963] SASR 332; Thompson v R [1973] Tas SR 78 (CCA); R v O’Neill [1979] 2 NSWLR 582 (CCA); Chow v DPP (1992) 28 NSWLR 593 (CCA, NSW).
judges when determining sentences for possession and supply of objectionable material, but noted that the United Kingdom categories should not necessarily be adopted in any given case.2
[12] I am clear that the prosecution classification of the 25 supply images, as accepted by the Judge, was accurate. Ms O’Sullivan originally advanced the proposition that the four images of oral sex did not come within Level Four, as the Police had submitted, because they did not involve penetrative sex. That is simply not correct, as Ms O’Sullivan acknowledged in argument. The fifth image, the characterisation of which was disputed, was of a man with his erect penis against, but it would appear not penetrating, the vagina of a young, obviously distressed, girl. I am satisfied that, however the categories may be described, such an image is sufficiently objectionable to be considered as falling within Level Four, if not Level Five in terms of the cruelty displayed.
[13] The United Kingdom sentencing guidelines, as indexed by the Court of Appeal, suggest a sentence of more than three years imprisonment for showing or distributing images at Levels Four or Five, with there being no reference to any particular number of images. On that basis, and given also the serious nature of the five possession images (rejecting Ms O’Sullivan’s submissions that the images are “inconsequential” because they involved adult women), the Judge’s starting point sentence of three and a half years was clearly available. In her submissions to me, and when arguing that the starting point adopted by the Judge was manifestly excessive, Ms O’Sullivan placed reliance on the Court of Appeal decisions of Zhu
and R v Ibbetson.3 I acknowledge that Zhu did involve more serious offending, but
that was reflected in the higher starting point there of four and a half years. Ibbetson, a conviction and sentence appeal, involved one count of distributing an objectionable movie, depicting a three-year old girl being raped by an adult male. There the Judge set a starting point sentence of 12 months’ imprisonment, but declined home detention. Ibbetson involved a challenge to the Judge’s decision not
to allow home detention. Little attention was paid by the Court of Appeal to the
2 R v Zhu [2007] NZCA 470.
3 Ibbetson v R [2011] NZCA 228.
appropriateness or otherwise of the sentence imposed although, it is to be recorded, that sentence was not challenged by the Solicitor-General.
[14] I do not think Zhu or Ibbetson are of particular assistance to Mr Barnes in arguing that his sentence in manifestly excessive.
[15] In reaching that conclusion I have considered a range of High Court and Court of Appeal decisions.4 All these cases fall to be decided on their particular facts, but I am satisfied that the Judge’s decision in sentencing Mr Barnes is not out of line with the overall pattern established by those cases. In particular, it is to be noted that in Shaw v Department of Internal Affairs the High Court upheld a two and a half year starting point sentence for two counts of distribution of materials in
Levels Three and Four, uplifted by six months for counts of possession, giving a starting point sentence (before any uplift for previous convictions) for less serious offending of three years.5
[16] The presence of five Level Four images, one of which may be categorised as Level Five, together with the nature of the possession images, support the slightly higher starting point of three and a half years.
[17] Ms O’Sullivan submitted, relative to the Zhu decision, that in some way still images were less objectionable than video or movie images. Given the analysis I have just set out, I do not need to reach a fixed view on that submission. However, I very much doubt its validity. These offences are designed to protect children. Whether or not the activity is captured by still photography, or movie or video cameras, does not affect the harm caused to the children involved in the activity in question. There may be some difference in culpability between distributing a single still photograph, and a movie or video. But if such a distinction exists, it is not
sufficient to call into question the Judge’s starting point decision here.
4 Wogan v New Zealand Customs Service HC Christchurch CRI-2010-409-145, 16 September
2010; Department of Internal Affairs v Wigzell HC Wellington CRI 2007-485-110,
20 November 2007; Doran v Police [2012] NZHC 468; Hulme v R [2012] NZHC 86; Stevens v Police HC Wellington CRI 2008-406-007, 15 July 2008; Cooper v Department of Internal Affairs HC Wellington CRI 2008-485-86, 18 September 2008; Shaw v Department of Internal Affairs HC Whangarei CRI-2010-488-5, 10 March 2010.
5 Shaw v Department of Internal Affairs HC Whangarei CRI-2010-488-5, 10 March 2010.
The uplift for previous offending
[18] A one year uplift was considered appropriate by the Judge to take account of two instances of previous offending.
[19] At the time of his sentencing, Mr Barnes’ criminal history recorded convictions in 2010 on 14 charges of possession of objectionable material. Mr Barnes received a sentence of home detention and community work with respect to that offending. Mr Barnes also advised the Judge that, in 2002, he had been fined approximately $3,500 having been found in possession of objectionable images by the Customs Department. That “offending” did not appear on Mr Barnes’ criminal history. There are provisions in the Customs and Excise Act 1996 that enable a fine but not a conviction to be imposed for conduct that breaches the terms of that legislation. But, on the information provided to me, it is not possible to determine the circumstances which gave rise to Mr Barnes being so fined. On that basis, it is difficult to take account of that matter in Mr Barnes’ sentencing. Moreover, whatever those circumstances may have been, a one-year uplift for that previous conduct and offending is excessive. Had there been two previous criminal convictions, I consider that an uplift of six months would have been warranted. Given the uncertainties I have identified, I consider that an uplift of three months is sufficient.
[20] On that basis, I consider that a starting point sentence, before recognition of personal mitigating factors, of three years and nine months is appropriate.
Recognition of rehabilitative efforts
[21] The focus of Ms O’Sullivan was, in many ways, that due recognition of Mr Barnes’ rehabilitative efforts should have resulted in a sentence of home detention. A sentence of home detention is available where the Court would otherwise have imposed a short-term sentence of imprisonment. The Court’s determination of the appropriate sentence of imprisonment must be arrived at before the Court considers whether or not home detention is the appropriate sentencing outcome. Here, the Judge accepted Mr Barnes’ remorse and the efforts he has made to confront his offending and to address its causes. The Judge reflected those factors
in a six month reduction, before credit was given for Mr Barnes’ guilty pleas. That was, as the Judge noted, a generous recognition for remorse and the steps Mr Barnes has taken. That recognition cannot be criticised as being inadequate. I will leave that six months’ allowance, although arguably – on a percentage basis – that should now be reduced.
[22] On that basis, and before allowance for guilty pleas, Mr Barnes’ sentence is
three years and three months (39 months).
[23] Allowing a further 25 per cent discount for Mr Barnes’ guilty pleas, rounded to 10 months, Mr Barnes’ end sentence is two years and five months (29 months).
[24] I therefore allow Mr Barnes’ sentence appeal to that extent. Mr Barnes’ original sentence of three years is quashed and a sentence of two years and five months is imposed in its place. In terms of the mechanics of that sentence as applied to the charges involved, Mr Barnes’ sentence is therefore two years and five months on the 25 charges of distributing objectionable images and, there being no need to interfere with the possession charges sentence, 18 months concurrent on those charges.
“Clifford J”
Solicitors:
Legal Remedies, Otaki for the appellant.
Crown Solicitor, Palmerston North for the respondent.
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