Bevins v The Queen
[2019] NZHC 1754
•24 July 2019
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2019-454-000012
[2019] NZHC 1754
BETWEEN CONNOR BEVINS
Appellant
AND
THE QUEEN
Respondent
Hearing: 24 July 2019 Appearances:
W E Kronast for Appellant
J J Harvey and E R Pairman for Respondent
Judgment:
24 July 2019
JUDGMENT OF COOKE J
[1] On 17 April 2019 Mr Bevins was sentenced before Judge Large in the District Court at Palmerston North to two years seven months’ imprisonment for five charges of causing harm by posting digital communications and one charge of attempting to cause harm by posting a digital communication.1
[2] Mr Bevins appeals his sentence on the grounds the sentence was manifestly excessive as the reductions for youth and personal circumstances were inadequate and the Judge erred in imposing two of the s 22 charges cumulatively.
Factual background
[3] The charges arise from a public humiliation campaign aimed at men Mr Bevins and his associates identified as paedophiles. Mr Bevins is involved in a vigilante group
1 R v Bevins [2019] NZDC 7407; Harmful Digital Communications Act 2015, s 22, maximum penalty two years’ imprisonment or $50,000 fine; Crimes Act 1961, s 72.
BEVINS v R [2019] NZHC 1754 [24 July 2019]
known as “Anti-P”, who have taken it upon themselves to keep their community safe from paedophiles. Mr Bevins created fake identities on social media accounts where he would pretend to be underage. He then targeted victims he believed to be paedophiles by messaging them through internet platforms and coaxing them to meet in person. At the meet up Mr Bevins would then reveal his real identity to the unsuspecting victim and attempt to place them under citizen’s arrest. The interactions were often accompanied by a physical altercation and verbal abuse from Mr Bevins and his associates. The encounters were filmed, and Mr Bevins would later post the videos to YouTube and to a Facebook page run by Mr Bevins called “Creep Catchers”.
Offending against “A”
[4] The first victim, A, is 26 years of age and is intellectually disabled. A received a message from a dating profile purporting to be from “Lisa Anderson” asking to meet him at the Plaza Shopping Centre. The message said “Lisa” wanted to meet for sex. A went to the Plaza where he was accosted by Mr Bevins and an associate. Mr Bevins accused A of coming to meet a 15 year old for sex and filmed the interaction. Mr Bevins later posted a video of the interaction to the Creep Catchers Facebook page as well as personal information regarding the A’s family. A reported suffering from anxiety, stress and pseudo-seizures as a result of the posting of the video and considered committing suicide.
Offending against “B”
[5] The second victim, B, received a message from another user on the social dating app, Grindr. The user purported to be a 20 year old male, “James”. In the course of the communication that followed, “James” informed B that he was 13 years old but B did not think he was really underage. “James” then messaged B and asked to meet in the Central Square, Palmerston North. B went to the Square the following day and was approached by Mr Bevins and an associate. Mr Bevins filmed the interaction on his phone. Mr Bevins yelled at B, saying “You’re here to meet an underage boy, you’ve been talking to me the whole time, I have the chat logs”. He told B that he was from the Palmy Creep Catchers and this was his job. Mr Bevins then followed B around for eight minutes and continued yelling at him. Mr Bevins later uploaded the video of the encounter to the Facebook Creep Catchers page. A
number of Facebook users commented on the video post with threats attempted to identify the victim from the video. The victim’s Facebook profile was uncovered and linked to the post and the video was sent to B’s family and friends. In the wake of the video post the victim felt suicidal and rang a suicide help line.
Offending against “C”
[6] The third victim, C, engaged in an online chat with a user purporting to be 25 years old. A meeting was set up outside the Palmerston North District Court. C drove to the meeting place and parked his car. Mr Bevins approached the parked car, opened the passenger door and yelled “We’re here from Palmy Creep Catchers. You’re here to meet a 15 year old girl for underage sex”. Mr Bevins filmed the encounter on his phone and uploaded the video to the Facebook Creep Catchers page. C was identified in the comments on the post and his LinkedIn profile was posted onto the video post. BN’s former boss and family members informed him that the video had been uploaded to Facebook. C was anxious and concerned about the impact of the video on his professional profile. He committed suicide on 12 April, 20 days after the video was posted. When spoken to by Police the appellant admitted confronting the victim and filming their interaction and said the victim should have a bullet in his head.
Offending against “D”
[7] The fourth victim, D, received a message on an online dating site Badoo from a user “Isabell28”. The user’s profile showed she was 24 years old, but in the messages that followed she said she was 15 years old. D did not believe this. D and the user agreed to meet the following day in the Square in Palmerston North. On 1 April the victim drove to the Square. He was approached by a group of six to eight people, including the appellant. Mr Bevins ran up to the victim’s car and said he was from the Palmy Creep Catchers. He said that if the victim attempted to leave, his associates would assault him. He yelled at D, calling him a creep and said he needed to get help. Mr Bevins filmed the encounter on his phone and posted it to the Palmy Creep Catchers Facebook page. The victim and his family have suffered distress from the posting of the video.
Offending against “E”
[8] The fifth victim, E, received a message from a profile on the dating app, Grindr. He exchanged messages and photos with the profile and they arranged a meeting on April 6 at the Square. The message was that operator of the profile was 15, but E thought he was in his 20’s given his photo. Upon arriving at the Square, Mr Bevins and his associates accosted E and told him they were from Palmy Creep Catchers. He accused the victim of coming to meet an underage boy for sex. Mr Bevins said he worked closely with the Police and had a record of their conversation. The victim went into a nearby restaurant to get away from the group. Mr Bevins followed the victim and continued to yell at him. Mr Bevins filmed the encounter and intended to post it to the Facebook page, but he had accidentally deleted the video. As a result of the filming the victim felt humiliated and suicidal.
Offending against “F”
[9] On 13 April Mr Bevins travelled to Taupo. He had made arrangements with the sixth victim, F, to meet in Taupo. He said he was 15, and F said they could not do anything sexual because of his age. As soon as F arrived at the meeting place he was confronted by Mr Bevins and his associates. Mr Bevin told the victim he was placing him under citizen’s arrest. The victim got back in his car and tried to drive away. Mr Bevins and his associates surrounded the car to prevent F from leaving. Mr Bevins jumped on the bonnet of the car as it was driving off and he fell off. Mr Bevins filmed the altercation and posted the video to the Facebook page. When spoken to by Police Mr Bevins said he did not regret what he had done and he would continue his crusade to expose the “pedos” in the community.
Innocence of victims
[10] It is appropriate to record that in all but one of the six victims, the victims were innocent in the sense that the summary of facts records that either Mr Bevins did not state he was underage in his online interaction with them, or the victims did not believe he was underage. On the other occasion where he did state that he was underage the victim was effectively entrapped by Mr Bevins online engagement and the suggestion was that no sexual contact would occur.
District Court decision
[11] At the outset the Judge explained the vindictive and vigilante nature of the attacks on the victims and emphasised Mr Bevin’s actions were inappropriate and unreasonable. The Judge also said:
[2] Prior to the sentencing submissions by counsel commencing, I raised with your counsel, Mr Thackery, my concerns that neither counsel had addressed in their written submissions the issue of cumulative sentences being imposed and I expressed the view that a sentence of two years’ imprisonment was inadequate, given the extent of the offending.
[12] The Judge noted the offence was relatively new and there was limited sentencing case law. He reviewed several of the authorities where a starting point of 9–18 months’ imprisonment, but the cases were “nowhere near as serious as your offending”. He considered the following aggravating factors:
(a)Publications were videos rather than photos,
(b)The videos aggressively suggested the victims were paedophiles and insinuated the victims were criminals,
(c)The videos were captured and posted specifically to humiliate the victims and out them to the public,
(d)The videos were taken without the victim’s permission,
(e)The effect of the videos had a much higher chance of impacting the victim’s life due to the stigma attached to child sex offending,
(f)The harm caused was “as bad as it could get” with one of the victims committing suicide, and
(g)The videos were made and posted in an attempt at vigilante justice based on a flawed method of targeting people believed to have paedophilic tendencies.
[13] The Judge considered the circumstances placed the case at the top of the range for this kind of offending and the maximum penalty ought to be prescribed pursuant to s 8(c) of the Sentencing Act 2002.2 He considered it appropriate to award a cumulative sentence for two of the charges (in respect of the offending against the first and third victims) as appropriate to address the totality of the offending. He adopted a cumulative starting point of two years each in respect of the offending against victims A and C, and concurrent sentences in respect of the other charges. The cumulative starting point was therefore four years’ imprisonment.
[14] The Judge then discounted six months for youth and mental health issues and gave 20 per cent credit for guilty plea. The end sentence should have been two years, nine months’ imprisonment (33.6 months) but it appears the Judge mistakenly calculated the end sentence to slightly less, at two years seven months’ imprisonment (32 months).
Relevant law
Approach to appeal
[15] This appeal is governed by subpart 4 of Part 6 of the Criminal Procedure Act 2011. A first appeal under subpart 4 must be determined in accordance with s 250.
[16] The focus will be on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.3
Offence of harmful digital communications offending: background
[17] Given the relatively recent nature of the offence, there is limited case law on sentencing and it is helpful to briefly examine the nature of the Harmful Digital Communications Act 2015 (the Act). The Act was introduced to implement the policy changes introduced following the Law Commission’s 2012 Ministerial Briefing paper, Harmful Digital Communications: The adequacy of the current sanction and
2 At [58]–[59].
3 Ripia v R [2011] NZCA 101 at [15].
remedies.4 The Bill aimed to recognise the serious and unprecedented harm arising from digital communications due to ease of access, speed of dissemination to a global audience and the persistence of information and difficulty in removal.5 The following passages from the Law Commission paper capture the particular nature of the harm caused by digital communications:6
For the first time in history, individuals with access to basic technology can now publish, anonymously, and with apparent impunity, to a potentially mass audience. This facility to generate, manipulate and disseminate digital information which can be accessed instantaneously and continuously is producing types of abuse which have no precedent or equivalent in the pre- digital world….
In the past a person’s home life was to some extent insulated from workplace or school-based bullying. Now mobile phones and the internet mean the harassment can penetrate all aspects of the victim’s life. Given the ubiquity of technology and the extent to which it is enmeshed in our everyday lives, it is not possible to simply “walk away” or disengage from cyberspace…
The permanence of digital information and searchability of the web means damaging content can survive long after the event and can be used to re- victimise the target each time it is accessed. The potential for cached material to be “re-discovered” long after it was initially posted can exacerbate the harms as the target may be uncertain how widely the content has spread and who has seen it.
[18] The Act contains criminal sanctions to address the most serious kinds of harmful digital communication. Section 22 provides:
22 Causing harm by posting digital communication
(1)A person commits an offence if—
(a)the person posts a digital communication with the intention that it cause harm to a victim; and
(b)posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
(c)posting the communication causes harm to the victim.
(2)In determining whether a post would cause harm, the court may take into account any factors it considers relevant, including—
(a)the extremity of the language used:
(b)the age and characteristics of the victim:
4 Law Commission Harmful Digital Communications: The adequacy of the current sanction and remedies (August 2012).
5 Harmful Digital Communications Bill (168–1) (explanatory note) at 1.
6 Law Commission, above n 4, at 1.35 and 2.42.
(c)whether the digital communication was anonymous:
(d)whether the digital communication was repeated:
(e)the extent of circulation of the digital communication:
(f)whether the digital communication is true or false:
(g)the context in which the digital communication appeared.
(3)A person who commits an offence against this section is liable on conviction to,—
(a)in the case of a natural person, imprisonment for a term not exceeding 2 years or a fine not exceeding $50,000:
(b)in the case of a body corporate, a fine not exceeding $200,000.
(4)In this section, victim means the individual who is the target of a posted digital communication.
Analysis
[19] Mr Kronast for the defendant submits the Judge erred in imposing cumulative sentences and gave little consideration to the appropriateness of a concurrent sentence. Referring to s 84 of the Sentencing Act 2002 he argues concurrent sentences were more appropriate as the offences were of a similar kind. Section 84 provides:
84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a)the time at which they occurred; or
(b)the overall nature of the offending; or
(c)any other relationship between the offences that the court considers relevant.
[20] Cumulative sentences are appropriate where the offences are unrelated or comprise different forms of criminality. There is, however, an aspect of judicial evaluation in deciding upon cumulative sentences. For example, cumulative sentences
have been considered appropriate where serious assaults were carried out on the same victim but were unconnected as to time or location.7
[21] Here the offences here were part of a targeted campaign, over a period of a few months, using the generally the same formula. But each of the offences was distinct in the sense they involved separate victims, each with their own distinct circumstances, and the offending was unconnected in any direct sense. For that reason it seems to me that it was open for the Court to impose a cumulative sentence for two of the offences. The focus is accordingly on the sentence ultimately imposed rather than the process by which it was reached.8 The real issue is whether in imposing cumulative sentences the Judge imposed a total period of imprisonment wholly out of proportion to the gravity of the overall offending.9 The Judge imposed cumulative sentences in respect of the offending against the victims A and C, and concurrent sentences for the rest of the offending. This was an appropriate sentencing technique, but it resulted in a four year starting point, and after discounting for guilty plea and mitigating circumstances, resulted in an end sentence of two years, eight months’ imprisonment.
Starting point
[22] As it is a new offence there is limited case law to provide guidance on the appropriate sentence.
[23] In Brittin v Police the offender and the victim made contact through a Facebook dating site and had a brief intimate relationship for a period of two weeks.10 During that time the victim sent the offender several explicit photographs. When the relationship soured, the offender posted the photograph to a pornographic website with a derogatory caption indicating the victim was available for sex. Her personal details and phone number were also recorded. Following the post the victim received many calls and text messages from website users. A starting point of 18 months’ imprisonment was quashed and replaced with 12 months’ imprisonment on appeal. In setting the starting point the High Court Judge considered the breach of trust and the
7 Maihi v Police [2016] NZCA 205 at [21] and R v Clarke CA128/06, 6 June 2006.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; R v Xie [2007] 2 NZLR 240,
(2006) 22 CRNZ 949.
9 Sentencing Act 2002, s 85.
10 Brittin v Police [2017] NZHC 2410, per Woodhouse J.
posting of identification details set the offending at the midpoint in terms of seriousness. He rejected the demeaning of character as an aggravating factor as that was adding “more by way of aggravation than the offence itself permits”.11
[24] There are also District Court decisions that provide some assistance. In Police v Moore the offender posted to Instagram sexually explicit messages and images concerning three victims aged 14 and 17 years of age.12 The Judge considered that the offending was repetitive, planned and premeditated, and that the victims were young and vulnerable. He adopted a starting point of six months’ imprisonment. In R v Millar the defendant posted seven naked photographs of the victim on Facebook indicating she was available for sex.13 He fell towards the upper end of the scape and adopted a starting point of 18 months’ imprisonment.
[25] These authorities are directed to different conduct, however. The present offending is distinctive and needs to be addressed in terms of its own characteristics. The offending here seems to me to be a serious example of causing harm by posting digital communications. The type of harm is different from that involved in what may colloquially be referred to as “revenge porn”, and its consequences are potentially more harmful, as is illustrated by the suicide, and suicidal thoughts that resulted for the victims. I also consider the following aggravating factors were present:
(a)Vigilante action: Mr Bevins was engaged in vigilante action, and he involved other persons in the retribution action that was involved. The actions assumed guilt, and ran the risk of erroneous victimisation. This is a particularly concerning aspect of the offending. In the present case the victims were innocent of having committed any offences.
(b)Victim vulnerability: one of the victims was intellectually disabled having suffered a brain injury, and Mr Bevins knew this at the time of the offending. It appears from the summary of facts that the victim was particularly trusting and did not fully understand the interaction. All of
11 At [41].
12 Police v Moore [2017] NZDC 14864.
13 R v Millar [2018] NZDC 16646.
the victims were vulnerable in one way or another to the abuse that is inherent in vigilante action.
(c)The extent and nature of the circulation, and the likely harm: Mr Bevins posted the offensive video to a public Facebook page with a number of followers with the intent of reaching the maximum amount of users possible. The public allegation of paedophilia was highly likely to cause significant harm. For several of the victims their LinkedIn pages were linked to the video to ensure the offensive footage would be public both on social and professional networks. The extensive emotional distress caused, to the point of suicide or suicidal thoughts, was a foreseeable ramification of Mr Bevin’s actions.
(d)Premeditation: Mr Bevins staged the encounters with a mind to post the videos on his page. The encounters involved offensive accusations yelled at the victims in a public setting in order to generate maximum online traction with intent to cause humiliation and outrage.
[26] Contrary to Mr Kronast’s submissions, I do not consider such circumstances as being inherently part of the elements of the offence, as they are aggravating in nature.
[27] I consider the combination of the factors place the offending at the upper end of the scale. I note that in deciding whether offending is within the most serious of cases for a particular offence, the authorities make clear that there “is no rule that the maximum penalty is to be reserved for the most devilish instance of crime that judicial imagination can conceive”.14
[28] In light of these considerations I consider this very serious offending, and that cumulative sentencing was available on two charges in the manner the Judge adopted. But I consider the cumulative starting point of four years’ imprisonment as too high, resulting in a period of imprisonment out of proportion to the gravity of the overall
14 R v Lawrence (1980) 32 ALR 72 at 78, cited in R v Beri [1987] 1 NZLR 46 (CA) at 48. And see
R v Xie [2007] 2 NZLR 240 (CA) at [26]
offending. I consider that a starting point of three years’ imprisonment is appropriate to represent the offending as a whole.
Discount for mitigating factors
[29] The Judge discounted three months for the offender’s youth (aged 21 at the time of the offending) and three months in light of the s 38 report. Mr Bevins is at the upper end of the scale for youth discounts, but I consider a three month discount appropriate.
[30] The Judge also discounted three months in light of the s 38 report.15 Mr Kronast submits a larger discount should have been afforded, in the realm of 10– 15 per cent. The report reveals that, while Mr Bevins does not appear to be mentally disordered within the meaning of the Mental Health Act, he suffers from symptoms of post-traumatic stress disorder as a result of exposure to severe trauma in his childhood.16 As a child Mr Bevins was emotionally and physically neglected by his parents and subjected to sexual abuse. He also has a long history of substance abuse. While he has not previously engaged in any trauma focused intervention, he now appears to have a good understanding of his mental health issues and the report suggests he would benefit from further psychological offending to address trauma and mood management difficulties, as well as an alcohol and drug treatment provider. In my view a three month discount is appropriate to acknowledge the factors identified in the report and Mr Bevin’s rehabilitative potential.
[31] With a 20 per cent discount for guilty plea that results in an end sentence of two years’ imprisonment.
Should a sentence of home detention be imposed?
[32] Given this sentence home detention becomes available as a sentencing option.17 Mr Kronast asked that leave to apply to the District Court for home detention should the Court reach that point.
15 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.
16 See summary at 7.
17 Parole Act 2002, s 4(1); and Sentencing Act 2002, s 15A(1)(b).
[33] There is no presumption in favour of home detention being imposed.18 It is ultimately a matter of discretion and an “evaluative assessment of all the circumstances” is required.19
[34] Rehabilitative considerations are relevant in determining whether to sentence to home detention.20 The pre-sentence report recommends a sentence of imprisonment. Mr Bevins is assessed as being at a high risk of re-offending. He appears to have a general disregard for court orders as he has four convictions for breach of supervision conditions and breach of community work. He has breached protection orders in 2017 and 2018 and has reoffended whilst subject to a supervision sentence four times. In light of this history there is a strong risk that he will be unable to comply with the conditions of a home detention sentence.
[35] There may also be concerns that a sentence of home detention will be insufficient to address the need for individual deterrence here. Mr Bevins has displayed a callous attitude towards his offending and appears to justify his actions on the basis of his history of sexual abuse and is adamant his actions were well- intentioned. His history of breaching court orders is evidence of this attitude.
[36] Mr Bevins has not, however, previously received a sentence of imprisonment. He is 22 years old, and it is not too late for him to turn his life around if he completes counselling to address past traumas and receives treatment for his substance abuse issues. These factors count in favour of home detention.
[37] Overall the determination appears to be finely balanced. It is a matter that should be addressed by the District Court in the circumstances, and I accordingly reserve leave for Mr Bevins to apply to the District Court for home detention.
18 R v Stacey [2002] NZCA 465 at [21].
19 R v Risschop [2008] NZCA 229 at [18]–[19].
20 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].
Result
[38] For these reasons the appeal is allowed and a sentence of two years’ imprisonment is substituted for the sentence imposed by the District Court, broken down in the following manner in relation to the charges:
(a)In respect of count one the defendant is sentenced to 12 months’ imprisonment.
(b)In respect of count three he is sentenced to 12 months’ imprisonment with this 12 months’ being cumulative on the first 12 months.
(c)On charges two, four, five and six he is sentenced to 12 months’ imprisonment for each charge, to be served concurrently with the sentence imposed in (a) and (b) above.
(d)Leave to apply to the District Court for home detention is granted.
Cooke J
Solicitors:
Messrs Opie & Dron, Palmerston North for Appellant BVA, Crown Solicitors, Palmerston North for Respondent
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