C v Police

[2021] NZHC 3384

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-79

[2021] NZHC 3384

BETWEEN

C

Appellant

AND

POLICE

Respondent

Hearing:	7 December 2021
Appearances:	R J Bayer and B McCormack for the Appellant M A Shaw for the Respondent
Judgment:	9 December 2021

JUDGMENT OF GWYN J

[1]    Mr C pleaded guilty to one representative charge of possession of an objectionable publication (child exploitation material).1 He  was  sentenced  by  Judge Tompkins in the District Court at Hutt Valley on 5 November 2021 to five months’ home detention, and registered under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) for a period  of  eight years.2 He now appeals his registration under the Act (but not his sentence of home detention).

The offending

[2]    On 12 June 2020, when Mr C was 26 years old, a search warrant was executed at his home. A mobile phone was seized, and over 100 images and videos depicting

1      Films, Videos, and Publications Classification Act 1993, s 131A(1); maximum penalty 10 years’ imprisonment or $50,000 fine.

2      Police v C [2021] NZDC 21846.

C v POLICE [2021] NZHC 3384 [9 December 2021]

child exploitation and bestiality were found stored on it. Mr C had also stored images on an online platform.

District Court decision

[3]    The Judge delivered a sentencing indication on 12 March 2021, which Mr C accepted. The Judge adopted a 14 month starting point, less a 25 per cent guilty plea discount, arriving at an end sentence of 10 months’ imprisonment; that was then converted to five months’ home detention. The Judge initially indicated that registration would be ordered, but after a submission from counsel for Mr C that the question of registration should be deferred until final sentencing to allow for the relevant reports to be provided, the Judge said:

[2]   After discussion with counsel, I would accept a psychologist’s report but there would be a presumption of registration unless there was material that indicated otherwise.

[4]    At sentencing, the Judge recorded Mr C’s counsel’s submission that registration was not required. He then noted Mr C has exhibited a “problematic pattern of substance abuse”, before rejecting Mr C’s explanation of the offending as accidental.3

[5]In determining that registration was necessary, the Judge held:

[7]  Overall, whilst the assessing psychologist expresses the view relied  upon by Ms Bayer to oppose registration that assessment of risk is only supportable if assumptions are made both as to Mr C’s abstaining from future intoxication and developing both the [insight] and the tools to avoid future offending, both of which are lacking at [the] moment.

…

[11]  Against all of that basis I am satisfied that in terms of s 9 of the Act  this was relatively serious offending and taking into account both Mr C’s current circumstances, and his age at the time of the offending, … together with the absence of any effective rehabilitation prior to today, or indeed any realistic prospect that even if offered the opportunity to undertake rehabilitation Mr C would be able either to complete that rehabilitation or, indeed, effectively to lower his risk as a result of it together with his unaddressed alcohol abuse problem and the part that intoxication played in the offending that there should be registration under the Act because Mr C does pose an ongoing risk to the lives or sexual safety of children generally.

3      At [5]-[6].

Principles on appeal

[6]    In R v Police, Cull J confirmed that the correct approach to an appeal against the judicial discretion as to whether to order registration is set out in May v May:4

[I]n considering an appeal of this kind an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.

The test for registration under the Act

[7]Section 9(1) of the Act provides:

9        Court may make registration order

(1)If a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the court may order that the person must be placed on the register and must comply with the reporting obligations of this Act.

…

(2)A court may make an order under this section (a registration order) only if the court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.

(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:

(a)the seriousness of the qualifying offence:

(b)the period of time that has elapsed since the offence was committed:

(c)the age of the person:

(d)the age of the person at the time of the offence:

(e)the age of any victim of the offence at the time of the offence:

(f)the difference in age between the victim and the person at the time of the offence:

(g)any written assessment of the risk posed by the person:

(h)any submission or evidence from any victim of the offence:

(i)any other submission or evidence relating to the risk posed by the person:

4      R v Police [2019] NZHC 1428; citing May v May (1982) 1 NZFLR 165 at 170.

(j)any other matter that the court considers relevant.

[8]In D v Police, the Supreme Court held that s 9 involves a two-stage test:5

(a)The power to make a registration order is engaged only if the court is satisfied that the offender poses a “real or genuine” risk to the lives or sexual safety of one or more children, or of children generally,6 as set out in s 9(2). The first stage requires the court to determine whether that threshold has been met, having considered the factors set out in    s 9(3).

(b)The second stage requires the court to determine whether the discretion to make a registration order under s 9(1) should be exercised having regard to the level of risk posed by the offender. In order to embark on that assessment, the court must assess the nature and seriousness of the risk posed by the offender. Once the court has determined the nature and seriousness of the risk posed by the offender, it must then determine whether that risk is sufficient to warrant the making of a registration order and subjecting the offender to the requirements of the Act. That assessment will involve a balancing of the protective objectives of registration against the level of intrusion into the rights of the offender.

Submissions

[9]    Ms Bayer, counsel for Mr C, submitted that the Judge erred in his approach in two respects:

(a)The Judge acted on a wrong principle, namely approaching registration on the basis there was a presumption in favour of registration and failing to consider the second stage of the test.

(b)The Judge’s interpretation of the psychological report was plainly wrong.

5      D v Police [2021] NZSC 2 at [103]-[108].

6 At [105].

[10]   Mr Shaw, counsel for the Crown, submitted the Judge did not err; although he did not expressly address the second stage of the test, it is apparent from his assessment of the risk posed by Mr C that the gravity of that risk would weigh in favour of making a registration order, even when balanced against the resulting limitations on Mr C’s rights.

Analysis

[11]   It appears that the Judge did not conduct the necessary two-stage test, so I turn to that now.

Does Mr C pose a real or genuine risk to the lives or safety of children?

The seriousness of the offending

[12]   Of the over 100 objectionable images, Police have provided detailed analysis of a sample of 20. These have been classified according to the United Kingdom Sentencing Council guidelines, which provide three categories of activity or seriousness. Category A images involve penetrative sexual activity, sexual activity with an animal, or sadism; category B images involve non-penetrative sexual activity; category C involves indecent images not falling within categories A or B. One of those 20 images did not involve a person under the age of 16, so I do not consider it for present purposes.

[13]   Of  the  remaining  19  images  categorised,  Mr C  was  in  possession  of   17 category B images and videos, and two category A images. The children involved range in age – from a toddler at the youngest, to approximately 11 at the oldest. One of the category A images involves a child aged 4-6 being anally penetrated by an adult male, and the other a child aged 8-10 being vaginally penetrated by an adult male. The videos range in length from 3:46 minutes to 18:25 minutes.

[14]   The nature of these images is obviously very serious. Balanced against that, the offending appears to have occurred within a limited period – Mr C explained to the psychologist that he accessed it over two or three days. I also note that Mr C has not committed any form of contact offending, or attempted to contact any children.

[15]I therefore find the offending to be moderately serious.

The period of time that has elapsed since the offence was committed

[16]   The offending occurred just over a year ago, and there is no suggestion Mr C has offended since. This factor does not weigh heavily either way.

Mr C’s age

[17]   Mr C was 26 years old at the time of the offending. This indicates that the offending did not involve “isolated youthful sexual experimentation”,7 although his “comparative youth”, combined with the fact that he has no convictions for sexual offending, indicates that he should have good prospects of rehabilitation.8

The age of the victims, and the difference in age between them and Mr C

[18]   The victims were as young as toddlers, Mr C an adult man - plainly an extremely serious age difference. As the Court of Appeal and Supreme Court have noted, “the making of videos and taking of photographs depicting such exploitation continues only because people like the appellant support it.”9

Written assessment of the risk posed by Mr C

[19]   Peter Robertson  prepared  a  psychological  report  dated  21  May  2021.  Mr Robertson noted Mr C does not have a history of sexual offending, and said he takes responsibility for his offending and is aware of the extreme harm caused by it. Mr Robertson recorded that Mr C explained he accessed the material accidentally, while drunk. Mr Robertson explained Mr C is likely to respond well to treatment, and found Mr C to be in the lower category risk of reoffending. Mr Robertson was of the view that “safety can be maintained” without Mr C being registered, and the negative effects on him would not be counterbalanced by any increased level of safety for the community.

7 At [120].

8 At [120].

9 At [121].

[20]   A provision of advice to courts (PAC) report was provided on 14 September 2021. Unlike Mr Robertson, the report writer found Mr C did not take responsibility for his offending, and blamed his actions on intoxication. He also told the writer he only accessed the material once by accident; however, when the writer verified this with Police, Police advised Mr C had downloaded material across multiple dates, and taken screenshots of searches he had conducted for objectionable material using encrypted browsers. Mr C denied feeling any offending-related sexual arousal, but the writer suggested this was “unlikely”, based on the volume of material involved. The PAC report assessed Mr C as posing a low risk of reoffending, but with any reoffending causing a “high level of indirect harm to the victim(s).”

[21]   Paul Carlyon prepared a psychological report  dated  22  September  2021. Mr Carlyon commented on the “enduring nature” of Mr C’s alcohol dependence, and his consistent failure to engage in rehabilitation. Mr C told Mr Carlyon that he was too drunk to remember the offending imagery, but he was sure he had not found it arousing – Mr Carlyon found:

… that self-reported gap in recall seems implausible because it appears selective and inconsistent with his account of the specific time and his usual experience when intoxicated” …

Contributing to my view that Mr C was omitting information at interview, he mentioned that he had accessed the Kik platform and downloaded more CSEM over the next two or three days following that first instance of offending. That he repeated the offending behaviour diminishes my confidence in the accuracy of his statements that the imagery disgusted him, that he did not find it arousing and that his accessing it was “accidental” as he claimed.

[22]In relation to Mr C’s alcohol dependence, the Judge said:10

… that assessment [Mr Carlyon’s] of risk is only supportable if assumptions are made both as to Mr C’s abstaining from future intoxication and developing both the [insight] and the tools to avoid future offending, both of which are lacking at [the] moment.

[23]   However, having read Mr Carlyon’s report, I conclude that his assessment of Mr C’s risk of reoffending does take into account Mr C’s alcohol dependence issues and does not on its face support the Judge’s conclusion on this point.

10     Police v C, above n 2, at [7].

[24]   Although Mr C made comments to Mr Carlyon reflecting an understanding that offending of this nature is harmful, in Mr Carlyon’s opinion that did not extend to concern for the people he viewed being sexually assaulted or exploited. Mr Carlyon observed an “absence of any observable emotional distress, or apparent shame” when Mr C was asked about the potential impact of his offending on victims.

[25]   In terms of risk, Mr Carlyon reported that Mr C scored two out of seven on the Child Pornography Offender Risk Tool: Version Two; and was, marginally, in the average (level III) risk category on the Violence Risk Scale – Sexual Offender version tool. Mr Carlyon recorded Mr C’s protective factors are his intact cognitive functioning, secure attachment in childhood, self-control (although impaired by intoxication), pro-social identity, housing stability, and adaptive financial management. In Mr Carlyon’s opinion, Mr C presented with a below-average (level

II) risk of perpetrating further sexual offences, relating to non-contact, internet-based sexual offending. Mr Carlyon explained:

Individuals placed in Level II are considered Below Average Risk using the standardised risk level framework. They have few identifiable criminogenic needs that are often transitory, rather than ingrained, problems. They are likely to have clearly identifiable prosocial resources and strengths. Their risk of new criminal behaviour is lower than the average individual convicted of sexually motivated offences, but greater than individuals in Level I. It is expected that most individuals will transition down to a Level 1, Very Low Risk, in a short time frame if appropriate correctional strategies are provided.

My assessment of the risk posed by Mr C

[26]   The nature of the material, and the age of the victims involved, is of obvious concern. Although it appears there is some inconsistency in Mr C’s insight into the harm caused by his offending, and his willingness to take responsibility for it, I agree with the report writers that, overall, Mr C poses a low risk of reoffending.

[27]   However, the fact the risk is low does not mean Mr C does not pose a real or genuine risk to the safety of children – there remains a “low, but nonetheless real, risk” that Mr C will access objectionable material of the kind involved in this offending.11 I therefore find the threshold in s 9(2) is met.

11     D v Police, above n 5, at [128].

Should a registration order be made?

[28]   I turn now to the second stage, and consider whether the imposition of a registration order is a proportionate response to the risk identified, having regard to the intrusion on Mr C’s rights that this will involve.

[29]   The imposition of a registration order would require Mr C to comply with the reporting requirements in s 16 of the Act. The requirements most relevant to addressing the risk posed by Mr C, given the context of his non-contact, internet-based offending,12 are:

(m)details of any telecommunications service used, or intended to be used, by the offender, including—

(i)the name of any landline or mobile telephone service provider used, or intended to be used, by the offender; and

(ii)any phone numbers used, or intended to be used, by the offender:

(n)the name of any Internet service provider, and the details of any routing or modem device, used, or intended to be used, by the offender:

(o)details of any username for any online social networks, online gaming accounts, or online storage accounts used, or intended to be used, by the offender:

(p)details of any website domain owned or website administered, or intended to be owned or administered, by the offender:

(q)details of any email addresses used, or intended to be used, by the offender.

[30]   Although Mr C poses a low risk of reoffending, I must consider whether there are potential benefits in subjecting him to the reporting requirements in s 16.13 As in D v Police, I think the benefit in the circumstances of this case, given the requirements would not allow monitoring of Mr C’s internet traffic, would be limited.

[31]   The pre-sentence reports are not consistent on whether Mr C takes responsibility for his offending. Given it is equivocal, I am willing to give Mr C the

12 At [131].

13 At [134].

benefit of the doubt, as Cull J did in R v Police, and attribute this to the shame attached to his offending.14

[32]   The Judge was critical of the absence of any effective rehabilitation between the time of the offending and sentencing.15 However, Ms Bayer advised from the bar that the “short motivational programme” the Judge had earlier recommended was not in fact available to Mr C. She also advised that Mr C and his father had explored various rehabilitation options (including Care NZ, WellStop and Te Paepae Arahi), but several factors – Mr C’s age and the nature of his offending – mean that he is ineligible for a number of programmes. That is exacerbated by the acknowledged pressure on alcohol and drug rehabilitation services. Mr C now has a referral to a rehabilitation service.

[33]   Balanced against the limited potential benefit of subjecting Mr C to reporting requirements, is the intrusion of such requirements into Mr C’s rights and freedoms, in particular his privacy.

[34]   I find the risk posed by Mr C is not sufficient to justify the making of a registration order.

Result

[35]The appeal is allowed, and the registration order is quashed.

Gwyn J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt Crown Solicitor, Wellington

14     R v Police, above n 4, at [24].

15     Police v C, above n 2, at [11].