Bright v The King
[2024] NZHC 3131
•25 October 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-000094
[2024] NZHC 3131
BETWEEN AIDAN PEARSE BRIGHT
Appellant
AND
THE KING
Respondent
Hearing: 17 October 2024 Appearances:
M R Ridgley for Appellant
B M Bosomworth for Respondent
Judgment:
25 October 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 25 October 2024 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date……………………………..
BRIGHT v R [2024] NZHC 3131 [25 October 2024]
Introduction
[1]This is an appeal against sentence.
[2] In the District Court, the appellant pleaded guilty to 23 charges under the Films, Videos and Public Classification Act 1993. All of the charges related to possession of objectionable publications, including rape of children and a tutorial webpage describing how to kidnap and rape children. The maximum penalty for each of the 23 charges is one of 10 years’ imprisonment. The appellant has no previous convictions.
[3] The District Court Judge adopted a starting point of five years’ imprisonment (60 months).1 His Honour then allowed a 50 per cent reduction in the sentence for mitigating factors including youth, guilty plea, and rehabilitation. The end sentence was two-and-a-half years’ imprisonment.
[4] On appeal, the appellant contends that the end sentence was manifestly excessive and that a notional end point of a short term of imprisonment ought to have been reached and commuted to home detention.
[5]The Crown opposes the appeal.
Factual background
[6]All of the charges involve possession of objectionable publications:
(a)Charge 1 – saving a tutorial webpage describing how to kidnap and rape children. Described as the file reference name “Rape Tutorial – The Uncensored Hidden Web”;
(b)Charge 2 – photograph of a naked female child bound with duct tape. A naked male standing over her holding the duct tape with his penis visible;
(c)Charge 3 – screenshots from a video with a female child performing oral sex on an adult male. File reference “Linda deepthroat 2007”;
1 R v Bright [2024] NZDC 23860.
(d)Charge 4 – screenshots from a video of an adult male sexually violating a female child by rape;
(e)Charge 5 – video of an adult male sexually violating a female child by rape;
(f)Charge 6 – video of an adult male sexually violating a female child by the introduction of his penis into her anus;
(g)Charge 7 – photograph of an adult male sexually violating a female child by rape;
(h)Charge 8 – photograph of a female child performing oral sex on an adult male;
(i)Charge 9 – video of a dog licking the vagina of a female child;
(j)Charge 10 – video of an adult male sexually violating a female child by rape;
(k)Charge 11 – photograph of a female child performing oral sex on an adult male;
(l)Charge 12 – photograph of a female child performing oral sex on an adult male;
(m)Charge 13 – photograph of an adult male sexually violating a female child by rape;
(n)Charge 14 – video of an adult male ejaculating into the face of a female child. File reference “3yo cute face”;
(o)Charge 15 – video of an adult male sexually violating a female child by rape;
(p)Charge 16 – photograph of an adult male sexually violating a female child by rape;
(q)Charge 17 – photograph of an adult male sexually violating a female child by rape;
(r)Charge 18 – photograph of an adult male sexually violating a female child by the introduction of his penis into her anus;
(s)Charge 19 – cartoon image of a dog-like creature sexually violating a female child;
(t)Charge 20 – video of an adult males sexually violating three crying female children by rape;
(u)Charge 21 – video of female child performing oral sex on an adult male. Described file reference “Irene 15”;
(v)Charge 24 – possession of six electronic storage devices containing over 4,000 images depicting child exploitation, other than those already referred to in charges 1–21;
(w)Charge 25 – the same six electronic storage devices containing over 288 videos depicting child sex exploitation, other than those referred to in charges 1–21.
[7] The electronic devices of the appellant were seized under warrant following a search by the Police in 2018. They located 16 electronic devices, six of which were found to contain the material outlined above. All were found in the appellant’s bedroom.
[8] The devices included an unbranded computer found at the property. That had the pictures including children posing in sexual positions and performing oral sex on other children and adult males. Many of the pictures and videos showed sexual intercourse between adults and children. There was a Toshiba external hard drive, containing pictures and videos. There was Western Digital hard drive containing pictures and animated cartoon pictures. There was a Samsung Galaxy X Cover 3 Smartphone containing one video. There was a Micro-SD card containing more than 3,000 pictures and 50 videos.
[9] Of the 21 specific charges, 11 of those images or videos of rape are girls under the age of 10, and the rape is both vaginal and anal. Five of the 11 were videos. One of those videos was over two hours long and included the rape of three female children who are crying.
[10] In relation to charge 25, the total runtime of the videos located across the six devices was 24 hours 21 minutes and 38 seconds. A random selection of 15 of the 288 videos were viewed and all were classified as category A offending.2 Category A offending is the most serious type. It involves images of penetrative sexual activity or images involving sexual activity with an animal or sadism.
[11] A forensic examination of the computer showed that it contained anti-forensic software CCleaner which provides users the ability to permanently delete files, so they cannot be recovered. Forensic examination of the computer also showed that additional folders had been created in the CCleaner folder. This folder was labelled “backup”. CCleaner does not create a backup folder during installation.
[12] The charges were laid in May 2021, some two years and seven months after the search in September 2018.
[13] In November 2023, the appellant pleaded guilty to the bulk of the charges. Then, after a further six months (three years after he had been charged) he pleaded guilty to the remaining charges.
[14] The period from search to sentence was essentially six years. In that time, the appellant went from the age of 22 to the age of 28.
Legal principles
[15] 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.3 Generally, the sentence must be shown to be manifestly excessive or wrong
2 See UK Sentencing Council’s guidelines on sentencing for sexual offenders – Sexual Offences Definitive Guidelines (2014 UK guidelines). The UK guidelines and categories are as discussed by Downs J in Snell v R [2022] NZHC 1627 at [23]–[25].
3 Criminal Procedure Act 2011, s 250.
in principle.4 The focus is on the end sentence imposed, rather than the process by which it is reached.5
[16] 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.6
[17] Appellate courts do not indulge in mere tinkering with a sentence.7 The Court generally will not interfere with a sentence which is within the range that can properly be justified by accepting sentencing principles.
Analysis and decision
[18] The primary ground of appeal is that the District Court Judge gave insufficient discount for rehabilitation (15 per cent), resulting in a manifestly excessive sentence. It is further contended that the discount of five per cent for youth and ten per cent for the guilty pleas were also insufficient.
Discount for rehabilitation
[19] The significant steps Mr Bright has taken towards rehabilitation are commendable. They include:
(a)accepting responsibility to his mother;
(b)seeking professional assistance and engaging in that assistance, prior to charges being laid;
(c)a successful application for ACC trauma counselling;
(d)engaging with Mr Greg Woodcock, registered clinical psychologist, at significant financial cost and subsequent to charges being laid;
(e)completing counselling sessions with Mr Greg Woodcock;
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
5 Tutakangahau v R, above n 4, at [36].
6 Tutakangahau v R, above n 4, at [32].
7 R v Boyd [2004] 21 CRNZ 169 (CA) at [38].
(f)completing the Adult Relapse Prevention Workbook;
(g)engaging in tertiary education and full-time employment; and
(h)attempting entry into the SAFE programme, though not meeting the prerequisite of being convicted for this offending.
[20] The District Court Judge concluded, correctly, that Mr Bright has excelled in rehabilitation and done everything that could possibly be expected of him in this situation.
[21] In his report of 14 March 2022, Mr Woodcock expresses the view that Mr Bright is at “below average” risk for re-offending in a like manner. He further noted “Mr Bright has done exceptionally well in putting in place the component parts necessary for a successful, productive, and rewarding life. He is in the process of developing those tools that will keep the community safe and help him to remain offence-free”.
[22] I also have the benefit of a further report from Mr Woodcock dated 9 October 2024. This is fresh evidence which was not available to the District Court Judge. I find it is admissible, being both fresh and cogent. I note that the Crown withdrew its earlier objection to this evidence. This further evidence notes that since being sentenced Mr Bright has received a ROC*ROI8 score of 0.25770 and an Automatic Sexual Recidivism Score9 of 2. That is a Department of Corrections assessment of Mr Bright being at a low risk of re-offending.
[23] In support of his submission that the discount for rehabilitation was inadequate, Mr Ridgley, for Mr Bright, relies on the recent decision of O’Gorman J in B v Department of Internal Affairs.10 He says that that was a case of similar offending,
8 ROC*ROI is a measure of risk currently used by the Department of Corrections. It measures an offender’s risk of re-conviction and likelihood of a sentence of imprisonment. It is used to predict future offending and determine rehabilitative needs. A ROC*ROI scores on a scale from 0.01 – 1, with 1 being the highest likelihood of future offending.
9 ASRS is a further assessment tool employed to measure the probability of offenders committing further sexual offences once released back into the community. A score is given between 0 and 9, with 9 being the highest risk.
10 B v Department of Internal Affairs [2023] NZHC 3558.
where 30 per cent discount was applied for efforts and prospective rehabilitation. The District Court Judge also referred to that case.
[24] In my view, the circumstances of B v Department of Internal Affairs are distinguishable in several respects. First, the discount for rehabilitation in that case included the appellant’s volunteer community work. Second, the rehabilitation could also be considered more extensive given B’s cognitive and mental health issues, namely his IQ in the range of 71-80. Third, there were unusual circumstances where B had been drawn into the offending by other offenders who had capitalised on his vulnerability.
[25] Having said that, and although B is perhaps an exceptional case, it does generally provide some support for the contention that the discount here, of 15 per cent, was insufficient. Some support for a greater discount can also be obtained from the decision of Downs J in Snell v R,11 where, on appeal, Downs J allowed for an extra five per cent (above 15 per cent) for rehabilitative efforts and progress. Downs J held that greater recognition should be given for voluntary work undertaken for two charitable organisations.
[26] As Downs J held in Snell v R, beyond any risk assessment, discounts of this nature are matters of impression.12 In weighing all the factors here and with the benefit of the fresh evidence from Mr Woodcock, I find that a further allowance should be given here for rehabilitation. As I have noted, the steps taken to date by Mr Bright are commendable and exemplary.
[27] In the circumstances, I find that a further discount of four months’ imprisonment should be allowed for this factor. That is approximately an additional seven per cent.
[28] It is also important to record that the offending here was discovered by the Police when Mr Bright was aged 22. He is now 28 years old. He now has a partner and a young child. These proceedings have been hanging over him for some considerable time, yet he has continued to take steps to try and rehabilitate himself. I
11 Snell v R, above n 2.
12 Snell v R, above n 2, at [74].
note that the appellant welcomes further rehabilitation through the SAFE programme.13
Discount for youth – related factors
[29] Mr Bright challenges the five per cent discount for youth-related factors. It is contended that a higher discount of between 10–20 per cent is appropriate to recognise these factors.
[30] I find there was no error in the assessment made by the District Court Judge. The period of offending was extensive, premeditated, and somewhat sophisticated, as demonstrated by the use of anti-forensic software.
[31] It is important also to record that the offending here was serious. Deterrence and denunciation require substantial weighting and the scope for recognising youth is justifiably limited by the need to fulfil those purposes. I also record that at sentencing Mr Bright sought a combined discount of 10 per cent for his youth, mental health and background features. The District Court Judge applied an additional 10 per cent discount over what was originally sought by Mr Bright for these factors.
Guilty plea
[32] I find there is no basis for disturbing the Judge’s finding that a 10 per cent discount be granted for the guilty pleas.
[33] The appellant’s first appearance was on 5 May 2021 in respect of 24 charges of possession of objectionable material. Those charges were slightly altered in the Crown charge notice dated 31 August 2022. On 2 November 2023, Mr Bright pleaded guilty to 23 of the original charges. That was on the morning of the Judge-alone trial, albeit that trial could not proceed due to an unavailable witness. Two of the charges were then withdrawn and a not guilty plea was maintained on one charge. A guilty plea was then made on an amended final charge on 16 May 2024—this was approximately three years after Mr Bright’s first appearance.
13 I acknowledge the concern of Mr Woodcock that Mr Bright is unlikely to be able to avail himself of any further rehabilitative programme in prison. Mr Woodcock notes that the SAFE Network Inc programme would be available for a community-based sentence. The Department of Corrections should take these comments seriously. It may be that the Parole Board will also address this issue.
[34] I note also that the prosecution case was very strong. Police located six hard- drive devices containing objectionable material in Mr Bright’s bedroom. He told the Police that no-one else used the devices, and that there was nothing on them that belonged to anyone other than him.
Conclusion
[35] I find that the District Court Judge was not in error in the discounts he allowed for guilty pleas and youth. However, the discount applied for rehabilitation was insufficient and there should be a further discount of four months’ imprisonment to properly reflect the significant and commendable rehabilitative steps that Mr Bright has undertaken.
[36] This will, of course, reduce the sentence of imprisonment from one of two- and-a-half years’ imprisonment to two years and two months’ imprisonment. Obviously, the threshold for home detention is not reached. Such a result would be incompatible with the important sentencing principles of denunciation and deterrence. Those factors apply with such force in this case, where the offending was serious. The aggravating features set out in s 132A(2) of the Films, Videos, and Publications Classification Act 1993 apply.
Result
[37]The appeal is allowed:
(a)the sentence of two years and six months’ imprisonment is quashed; and
(b)a sentence of two years and two months’ imprisonment is substituted.
Andrew J
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