Burton v The Queen

[2020] NZHC 522

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-2

[2020] NZHC 522

BETWEEN

PAUL BURTON

Appellant

AND

THE QUEEN

Respondent

Hearing:

16 March 2020

Counsel:

J Scott for Appellant

M B Smith for Respondent

Judgment:

16 March 2020

JUDGMENT OF BREWER J

Solicitors:

Thode Utting (Auckland) for Appellant

Marsden Woods Inskip & Smith (Whangarei) for Respondent

BURTON v R [2020] NZHC 522 [16 March 2020]

Introduction

[1]    Mr Burton pleaded guilty to a number of charges relating to making, possessing and distributing objectionable publications. On 20 January 2020, Judge KB de Ridder sentenced Mr Burton to a period of imprisonment of three years and nine months.1 Mr Burton does not challenge that sentence. What he now challenges is the associated forfeiture order made by Judge de Ridder in respect of computer storage devices alleged in the summary of facts to contain objectionable publications.

[2]    There is some uncertainty as to whether Judge de Ridder made an order under the Films Videos and Publications Classification Act 1993 or an order for forfeiture and destruction under the Sentencing Act 2002. Counsel are agreed there is no distinction in outcome but, given the Judge used the phrase “forfeiture order”, I will take it that the Judge was exercising his Sentencing Act discretion.

The appeal

[3]    The point of the appeal is that Mr Burton alleges not all of the computer storage devices seized by the police and made subject to the forfeiture order contained objectionable publications. Judge de Ridder was aware this could be a difficulty and he said:

[26]  In respect of the forfeiture issue, I note the difficulties referred to by  the Crown in its submissions and therefore I am not able to agree to the request that some material be released to you. That is a matter which, through your counsel, you will need to discuss further with the Crown as to whether there is some way forward but for now I also make the forfeiture order as sought by the Crown.

[4]    Since the appeal was filed, the police have examined the computer storage media identified in the appeal and have found that three of them contain objectionable images but one does not. There is now no contest that the three storage media containing objectionable publications are subject properly to the forfeiture order and the “clean” medium is to be returned to Mr Burton.

1      R v Burton [2020] NZDC 694.

[5]    Normally that would be the end of the appeal. However, Mr Burton has now identified a further storage medium which he contends is also free of objectionable publications. Mr Smith has advised me the police will check it and it will be returned to Mr Burton if the police find it to be free of objectionable publications. There is apparently room for doubt because of the nature of the storage medium, but that is something that will have to be dealt with if it arises.

[6]    Mr Smith for the Crown submits that I should dismiss the appeal as meritless because Judge de Ridder simply made a forfeiture order based on the assertions in the summary of facts to which Mr Burton pleaded guilty. Mr Scott’s submission is that the forfeiture order is unlawful if it is shown to extend to items of computer storage which have not been used in the commission of an offence.

Discussion

[7]    As a matter of law, the ability of a sentencing Judge to order the forfeiture and destruction of property is limited by the nature and use of the item of property. Here, if a computer storage medium contains objectionable publications but also contains non-objectionable publications then I see no reason why the computer storage medium cannot be forfeited. There should no obligation on the part of the police to see what they can do to remove objectionable publications and preserve the balance. The analogy Mr Smith used of a forfeited vehicle including the spare tyre is apt.

[8]    However, equally, there is no power to forfeit property which (in this case) has not been used as an instrument of offending. In such a case there is an obligation on the part of the police to form a view before seeking an order for forfeiture and destruction.

Decision

[9]    Clearly, Judge de Ridder expected there to be a process that would properly identify storage media which can be destroyed as opposed to storage media which should not be destroyed. It might be that the Judge could have made that a specific condition but I am satisfied that the intent is being achieved.

[10]Accordingly, I dismiss the appeal.

Brewer J