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)…
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