Barnes v Police - [2013] NZHC 3510

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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnes v Police

Details

AGLC: Barnes v Police [2013] NZHC 3510
Case: [2013] NZHC 3510
Decision Date: 19 December 2013

CaseChat Overview and Summary

Gary Ronald Barnes, the appellant, was sentenced to three years' imprisonment for distributing and possessing objectionable material, specifically electronic images depicting the sexual abuse of children. The appeal was brought against the District Court's sentence as being manifestly excessive. The appellant argued that the starting point sentence, the uplift for previous offending, and the failure to give appropriate weight to rehabilitative efforts were all incorrect. The High Court found that the starting point sentence of three and a half years was appropriate. The uplift for previous offending was reduced from one year to three months, and the six-month reduction for remorse and rehabilitative efforts was maintained. The final sentence imposed was two years and five months, consisting of two years and five months for the distribution charges and 18 months concurrent for the possession charges. The original sentence of three years was quashed, and the new sentence was imposed in its place.

Orders