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C v Police

C v Police

Case [2019] NZHC 3431 19 December 2019

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT

PURSUANT TO S 200(2)(f) OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2019-485-64

[2019] NZHC 3431

BETWEEN
C

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 November 2019

Counsel:

M G Robinson for Appellant

K L Kensington for Respondent

Judgment:

19 December 2019

JUDGMENT OF THOMAS J

[1] The appellant pleaded guilty to one representative charge of distributing child sexual exploitation images,1 one representative charge of possessing bestiality and child sexual exploitation material2 and one representative charge of making child exploitation images.3 He now appeals his sentence of two years and six months’ imprisonment,4 comprising two years two months’ on the charges of possession and distribution, with a cumulative four-month sentence on the making charge.

1      Films, Videos, and Publications Classification Act 1993, s 124(1); maximum penalty of 14 years’ imprisonment.
2      Section 131A(1); maximum penalty of 10 years’ imprisonment or $50,000 fine.
3      Section 124(1); maximum penalty of 14 years’ imprisonment.
4      Police v [C] [2019] NZDC 20674.

C v NEW ZEALAND POLICE [2019] NZHC 3431 [19 December 2019]

[2] The appeal is on the grounds the sentence was manifestly excessive as the starting point was too high, the discounts were inadequate and the sentencing principles of rehabilitation and reintegration were given insufficient weight.

Background

[3] On 31 August 2018, a technician repairing the appellant’s cell phone found deleted material depicting sexual activity between adults and children. He contacted the police who obtained and executed a search warrant of the appellant’s home and seized the cell phone involved. The cell phone contained the images and videos that form the basis of the three charges. Other internet-capable devices were also seized but did not have any relevant images or videos on them.

[4] A total of 1,550 objectionable media items (1,481 images and 69 videos) were found on the appellant’s cell phone, including two of his now four-year-old daughter. Analysis of the phone showed he had used a messaging application to receive objectionable images and videos and distribute 61 objectionable images to other users.

[5] The possession charge encompassed both images and videos covering a number of different categories of objectionable material, including sexual activity between adults and children, children and children, children alone, children in sexual poses, extreme sexual activity with children, and bestiality. Most of the material, 1,061 images and 11 videos, were of children posing in a sexualised manner with various degrees of nudity. The majority of the videos were of sexual activity between adults and children.

[6] The distribution charge involved the distribution of images depicting the sexual exploitation of children to other users on the messaging application on 16 occasions between 3 June and 1 September 2018. The number of images distributed usually ranged between one and six, although 17 images were distributed on one occasion. All except once, the sharing was with a single user.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading C v Police

Details

AGLC: C v Police [2019] NZHC 3431
Case: [2019] NZHC 3431
Decision Date: 19 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, C, challenged his sentence of two years and six months’ imprisonment, imposed for possessing and distributing child sexual exploitation images and making child exploitation images. He submitted that the sentence was manifestly excessive because the starting point was too high, the discounts were inadequate, and the sentencing principles of rehabilitation and reintegration were given insufficient weight. The appellant was described as a 35-year-old man who was separated and living alone at the time of offending. He was co-parenting his daughter at the time, although this is now restricted to weekly Skype calls. The appellant was described as remorseful for his offending, particularly its impact on his former partner and his relationship with his daughter. A number of reports (a clinical psychologist’s report, a drug and alcohol report, a counsellor’s report, and a pre-sentence report) were before the Court. These recorded that the appellant did not have a history of this type of offending and threw some light on the deeper triggers for it: loneliness, his relationship breakdown, heavy drinking, and boredom. The Court of Appeal noted that the gravity of the offence, and therefore the appropriate sentence, depends on the nature of the publication, the volume of material involved, the number of people the material was distributed to, the offender’s role in the making or distribution, and the harm caused by that offending. The offending involved real harm. The children were vulnerable and abused in order to create the images. The starting point cannot be faulted. There was no error. Although in his written submissions on behalf of the appellant Mr Robinson criticised the Judge’s starting point, he acknowledged in oral submissions that it was within range. All he was really saying was that a lower starting point could have been taken. The Judge gave a global discount of 12 months (23 per cent) in recognition of mitigating factors, which could be increased to 16 months (30 per cent) in light of these additional factors. The discounts in respect of the additional information would result in a sentence of 24 months’ imprisonment with the potential of home detention. The reports emphasise the need to focus on the appellant’s rehabilitation. He is a contributing member of society, in a good job and in stable accommodation. The appellant’s house was considered unsuitable for electronic monitoring, given signal problems, resulting in the pre-sentence report writer recommending that sentencing should be adjourned to enable the appellant to find a new address. The report writer said: “However, it is the view of Community Corrections that a sentence of home detention would offer more rehabilitative value to [the appellant] than one of imprisonment.” Given the length of sentence, rehabilitative treatment in prison is unlikely. The appellant’s employment prospects on release will inevitably be severely impacted. In contrast, a sentence in the community will enable him to remain in employment, provide for his family, build on the significant steps he has taken to date to address his rehabilitative needs and acknowledge the impact of his offending on victims. It will enable him to continue to be a contributing member of society while at the same time the safety of the community will be protected through a sentence of home detention and the placement of the appellant’s name on the Child Sex Offender Register. For the reasons given, the appeal is allowed. The sentence of two years and six months’ imprisonment is quashed and will (once the requirements of s 80A(2) of the Sentencing Act are met), be replaced with a sentence of 12 months’ home detention. Mr C must find an address suitable for home detention. His current home should be reassessed in case there have been any changes making it feasible for electronic monitoring. Once an address is approved by Community Corrections, the matter should be referred back to the Court for orders on the papers. The sentence of home detention can then commence. In the meantime, the appellant’s bail continues.

Orders