C v Police

[2019] NZHC 3431

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. The one exception was a distribution to 23 other users.

[7]    The making charge involving the appellant taking two photographs of his then three-year-old daughter. It occurred six weeks prior to the start of the appellant’s other

offending. In one image, she faced away from the camera with her naked buttocks and legs being the focus of the photograph. The other image showed her naked on a chair with the focus on her genitals. Her face is not visible in the second photograph. These two images were stored together with other family photographs on the appellant’s cell phone.

The sentencing

[8]    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.

[9]    The District Court Judge referred to the charge of taking child exploitation images having been amended to read, knowing “or having reasonable cause to believe” that the publication was objectionable. The Judge noted the appellant’s position that the images of his daughter were not intentionally objectionable, although he understood they were objectively so. He did not want to put his child or her mother through any more pain by disputing this charge.

[10]   The Judge referred to the appellant’s deep shame and remorse for his offending, particularly its impact on his former partner and his relationship with his daughter. This shame extended to his wider social circles, including his family who continued to support him. The appellant had no other convictions of particular note.

[11]   In her victim impact statement, the appellant’s former partner expressed disgust and disbelief at the offending. She described the significant impact of the offending on her and her child, noting it meant she was essentially a solo parent. She was particularly concerned about the long-term impact on her daughter.

[12]   A number of reports (a clinical psychologist’s report, a drug and alcohol report, a counsellor’s report, and a pre-sentence report) were all 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 Judge noted that, although the offending had started as sexual, it was overtaken by risk-taking excitement and being part of an online group.

[13]   The Judge observed that the appellant appeared to stop the offending on his own, rather than after police intervention, and this was in his favour. That said, the Judge noted the material had not been entirely deleted off the phone.

[14]   The Judge adopted a starting point of four years and six months’ imprisonment for the distribution and possession charges, saying this could be considered as a three year six month sentence for the distribution charge with a one year uplift for the possession charge. This was reduced for totality to a starting point of four years’ imprisonment. He considered a number of decisions in setting this starting point.5

[15]   A cumulative starting point of four months’ imprisonment was taken for the making charge because it was fundamentally different in nature from the other offending. It involved a serious breach of trust, although the photographs were much less serious than those the subject of other charges. The Judge also took into account the appellant’s assertion that the photographs were not taken with the intention of making objectionable images. The Judge said the offending did not appear as “shocking” as it initially read, noting the photographs were stored with other family photographs.6

[16]   The Judge accepted that the appellant demonstrated “extreme” remorse evidenced by the reports and letters before him.7 He referred to the suggestion the appellant has assisted the police in investigating others involved in child exploitation material. The Judge said this sounded like more of an educative role, and he was unsure of the extent of the appellant’s help to authorities. He said, although no specific reduction would be given, he took it into account. In total, the Judge applied a one year discount for all mitigating factors.

[17]   Applying the one-year discount and the 25 per cent discount for the guilty pleas resulted in a sentence of two years and six months’ imprisonment. Home detention was therefore unavailable.

5      Tilyard v Police [2016] NZHC 1377; Robinson v Police [2017] NZHC 2655; Paterson v Police

[2012] NZHC 2759; Walsh v Police [2014] NZHC 230.

6      Police v [C], above n 4, at [49].

7 At [52].

[18]   The Judge rejected the submission that a sentence of intensive supervision was appropriate in light of the serious nature of the offending.

Standard of appeal

[19]   An appeal against sentence must only be allowed if the Court is satisfied there has been an intrinsic error in the sentence imposed and a different sentence should be imposed.8 The focus is on the final sentence and whether it was in the available range, rather than the exact process by which it was reached.9 As articulated in R v Peters:10

[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. …

Starting point

[20]   Mr Robinson, for the appellant, submitted the starting point was too high due to:

(a)the short duration of the offending (3 months);

(b)the offending occurring on a single device;

(c)the appellant’s decision to stop offending before being caught;

(d)the appellant’s lack of intention in the making charge; and

(e)the “comparatively moderate” number of distribution and possession images or videos in light of other sentencings in this area.

8      Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

9      Ripia v R [2011] NZCA 101 at [15].

10     R v Peters CA12/03, 14 May 2003.

[21]   The English Sentencing Guidelines Council’s Sexual Offences Act 2003: Definitive Guideline (issued in 2007) has been used in the past as a useful guide to sentencing in this area.11 It has been replaced by the England and Wales’ Sentencing Council’s Sexual Offences: Definitive Guideline (which came into effect in 2014) which simplifies the offence categories of seriousness into three categories (A, B and C). Publications in “A” are those depicting penetrative sexual activity and sexual activity with an animal or sadism, “B” are publications with non-penetrative sexual activity, and “C” are publications depicting other indecent images not otherwise accounted for. The Guideline also draws a distinction between possession, distribution and production as being on a spectrum of elevating seriousness in terms of starting point.

[22]   However, the Court of Appeal in Patel v R noted the legislative history of the Films Videos and Publications Classification Act 1993 does not suggest there was, in New Zealand, any intended hierarchy of charges involving objectionable material.12 Rather, the Court stressed that the gravity of the offence, and therefore the appropriate sentence, depends on the following non-exclusive factors:13

(a)the nature of the publication;

(b)the volume of material involved;

(c)the number of people the material was distributed to;

(d)the offender’s role in the making or distribution; and

(e)the harm caused by that offending, which will usually be closely linked by (a), (b) and (c).

[23]   The appellant possessed 1,550 objectional items, 1,072 were category C,     28 were category B and 419 were category A. The appellant distributed 61 images. Forty-nine were category C, five were category B and seven were category A.

11     Tilyard v Police, above n 5.

12     Patel v R [2017] NZCA 234.

13 At [35].

[24]   The offending involved real harm. The children were vulnerable and abused in order to create the images. Many of the images possessed by the appellant were of the most serious kind. Furthermore, although it was for a short period, the appellant engaged in the distribution of the material – fuelling the market for this form of child exploitation.

[25]Other cases in this area support the Judge’s starting point.

[26]   In Tilyard v Police, a two years and six months’ starting point was taken on appeal for the possession of 700 images and the distribution of 128 images on appeal.14 All but three of those images were considered category C. In Pattison v Police, a starting point of four years and six months’ imprisonment applied to the possession of 874 images and the distribution of two videos and two images.15 The distributed videos were category A and the images were category B. In terms of possession, of the 325 images involving children, 128 images were category A, 143 were category B and 54 were category C. Of the other images, 258 depicted computer-generated children in sexual acts and 291 were adult bestiality. As Ms Kensington for the Crown submitted, the present case is arguably more serious due to the volume involved.

[27]   Turning briefly to the making charge, the two images are clearly category C images. Considering the proximity in time to the other offending, the nature of the images, the relationship of trust involved and the vulnerability of the victim, the offending warranted a cumulative sentence. As there were only two images of the lowest category, a four-month uplift to account for this offending was entirely appropriate.

[28]   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.

14     Tilyard v Police, above n 5.

15     Pattison v Police [2018] NZHC 2163.

[29]   The Judge undertook a careful analysis of the offending and comparable cases. The starting point cannot be faulted. There was no error.

Discount for mitigating factors

[30]   Mr Robinson submitted the appellant should have received a greater discount than the 12 months, or 23 per cent, given for good character, tangible remorse and co-operation with police. He referred to the appellant’s:

(a)positive history of employment and high level of performance in that job;

(b)history of maintaining prosocial relationships;

(c)exceptional degree of remorse;

(d)attempts to engage in restorative justice; and

(e)co-operation with the police.

[31]   I note the appellant’s employment and social history both fall within good character, the Judge noted there was “extreme” remorse,16 and co-operation with police was referred to, although no tangible evidence of that was before him. The only matter not mentioned was restorative justice (addressed in more detail below).

[32]   The argument was perhaps less about what the Judge failed to consider and more about the discount being too low. Ms Kensington pointed out that typical discounts for remorse are around five to 10 per cent17 and thus a discount of 23 per cent cannot be criticised as too low in this case.

Additional information

[33]   I have the benefit of additional information which was not available to the sentencing Judge. There was no objection to the admission of these documents on

16     Police v [C], above n 4, at [52].

17     Bullen v R [2017] NZCA 625 at [32].

appeal and I regard them as relevant and cogent – that is, had the documents been before the sentencing Judge, they would, in my assessment, have made a difference to his decision. The documents are:

(a)Letter from the police

[34]   The police provided a letter addressing the appellant’s offers to provide information about another man he knew to be in possession of child pornography. It is not appropriate to detail the information provided by the police. I can record, however, that the information was not provided until late-September 2019 and it related to the involvement of another person some 18 months prior. On this basis, the police view is that further up-to-date information would be required in order to make effective use of the material. Furthermore, the police consider that they would require more detailed information to make use of the leads provided by the appellant.

[35]   That said, Detective Constable Drew attended sentencing. He confirmed to me that the appellant openly said that he would assist the police in whatever way he could.

[36]   While opposing counsel had different views as to whether the appellant should have offered further information to the police (as the respondent maintained) or whether the appellant could not be criticised for waiting for the police to make further requests of him (as the appellant maintained), there is no doubt that the appellant has been assessed as genuine, in terms of his offers, and expressed a wish to make amends for his offending to the extent it is possible.

[37]   This then takes the appellant’s offers into a different realm than at the time of sentencing, where the Judge assessed it as “offering … more of an educative sort of role”.18 Given that assessment, the Judge did not allow any specific reduction for assistance to authorities, but treated it more as evidence of the appellant’s remorse and included it in a general discount for mitigating factors.

[38]   The assistance in this case is somewhat nebulous. As Mr Robinson submitted, however, in the face of what is accepted to be a genuine offer of assistance, the

18     Police v [C], above n 4, at [54].

appellant should not be denied a discount because police or other authorities do not have the resources to make the most of that offer. The assistance offered does not appear, at present anyway, to be as significant as that offered in Hadfield.19 However, I accept Mr Robinson’s submission that there is genuine value in the offer which could assist the police and potentially the Department of Internal Affairs.

[39]   In the circumstances, I am satisfied a discount of around seven per cent is warranted for this aspect.

(b)Letter from associate of the appellant

[40]   A further demonstration of the appellant’s desire to make amends is a letter from an associate of his who is fully aware of the offending and is not only supportive of the appellant but also talks of the assistance he has provided to her in dealing with abuse to which she was subject as a child. I quote from the letter:

… To depict [the appellant]’s treatment of me as anything short of transformative would be to fundamentally undermine both his personal efforts and effect. [The appellant], of his own volition, has devoted untold hours to ensuring my well-being; devising strategies that enabled me to disengage with self-injury for substantive periods, and providing a source of counsel during periods where even existing appeared too overwhelming.

I deliberately disclosed exact details of my past CSA [childhood sexual abuse] to [the appellant] in light of his offending. As a victim of sexual trauma, I am placed in a precarious position in relation to [the appellant]. However, it is a position that gleans genuine insight into how [he] has transcended the typical role of ‘offender’ to embody that of an advocate. [The appellant] has actively queried my emotional experiences (in relation to CSA) in pursuance of acquiring in-depth knowledge of how being subjected to such acts underscores various areas of my life. It is neither easy, nor necessary (in the context of our justice system) to gain a comprehensive awareness of the repercussions of one’s errors or misunderstandings. However, this is a self-directed (and elected) form of rehabilitation and education [the appellant] has engaged.

… [the appellant] has earnestly sought advice on how he can utilise his position (as both an offender and a male) to countermand the broader effects of his actions in a way that is both receptive and meaningful to us, as victims. It is this desire to enact long-lasting amends which has seen [the appellant] willingly offer comprehensive insight into his experience of offending, including how he accessed materials, how objective content is distributed, how one could develop offense-supportive cognitions, and how these are normalised via ‘in-group’ interaction.

19     R v Hadfield CA337/06, 14 December 2006.

[41]   This provides valuable insight into the steps taken by the appellant to understand the impact of his offending on victims and to take positive steps to assist and support someone who is suffering from similar harm.

(c)Restorative justice

[42]   Although the restorative justice conference had taken place by the time of sentencing, the full report was not available and the Judge did not refer to it in his sentencing remarks.

[43]   The Judge was aware that the appellant had offered to attend restorative justice with his previous partner but she did not want to pursue it. Although restorative justice could be considered of little value in a case such as this where the victims cannot be identified, that is perhaps to ignore what such a conference can achieve. As well as the facilitator, a survivor specialist and a specialist in harmful sexual behaviour attended the conference, which lasted for an hour and a half. The benefit of the conference was to enhance the appellant’s understanding that offending of this nature does involve victims and that the viewing and distribution of images of them revictimizes them time and time again.

[44]   Notably, the report referred to the appellant’s comment that he was not undertaking the process in order to influence the Court but he was doing it for himself. He confirmed his commitment to therapy and determination not to repeat the offending.

[45]   Offers to make amends are recognised by Parliament as entitling an offender to a discrete discount on sentencing.20 Parliament has emphasised the importance and value of restorative justice in its relatively recent amendments to the Sentencing Act 2002.21 The principles of sentencing include the need to recognise the outcome of any restorative justice process.22

20     Sentencing Act 2002, s 10.

21     Section 24A.

22     Section 8(j).

[46]   Another factor which could have been taken into account is the ramifications for the appellant of his future relationship with his daughter. Contact is allowed at present only over Skype, and that is limited. I do not suggest that restriction is unreasonable in light of the circumstances of this case. The point, however, is that the offending has had enormous consequences for the appellant.

[47]   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.

[48]   The discounts in respect of the additional information would result in a sentence of 24 months’ imprisonment with the potential of home detention.

Sentencing and rehabilitation prospects

[49]   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.

[50]   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.

[51]   The appellant had self-referred for counselling, his counsellor describing him as “deeply ashamed of his offending” and “highly remorseful”. The alcohol and drug assessment noted he had used alcohol as a coping mechanism for several years and during the offending. It assessed him as willing to engage with counselling in respect of alcohol use and sexual offending.

[52]   A psychological report was obtained for sentencing.23 Dr McLachlan’s conclusion was:

23     Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38(c) and (d).

[The appellant] expresses a high degree of remorse regarding his offending. He has successfully engaged in counselling treatment. Although he shows some insight into problem areas, he does not yet have a clear understanding of the psychological and other factors that maintain and exacerbate his offence related issues and would benefit from comprehensive treatment in this regard.

[53]   Dr McLachlan was of the opinion that, regardless of sentence, the appellant required treatment.

[54]   While the Judge referred to the sentencing purposes of accountability, promoting responsibility, denunciation and deterrence, rehabilitation is also an important consideration. It is well known that short sentences of imprisonment are the least effective sentence in terms of preventing recidivism. Although the sentence originally imposed would not meet the definition of a short-term sentence of imprisonment,24 it would have seen the appellant eligible for parole after having served ten months. Given he is a first offender in respect of this type of offending, with no criminal record to speak of, it is likely that he would have been paroled either at, or close to, his first eligibility date. The prospects of any rehabilitation during such a short period of imprisonment are slim at best.

[55]   The principles of sentencing include the need to impose the least restrictive outcome.25 The Sentencing Act provides that the Court must have regard to the desirability of keeping offenders in the community as far as practicable and consonant with the safety of the community. The Court must not impose a sentence of imprisonment unless the purposes and principles of sentencing cannot be achieved by a sentence other than imprisonment.26

[56]   The pre-sentence report writer identified the requirement that, for the appellant to continue in employment, his employer must nominate a workplace sponsor to ensure professional use of the internet. A probation officer has now made contact with the appellant’s employer, who has remained supportive of him and confirmed that his employment can continue while on home detention. The employer has agreed to install software on the appellant’s cell phone and laptop so his employer can monitor

24     Parole Act 2002, s 4 definition of “short-term sentence”.

25     Sentencing Act, s 8(g).

26     Section 16.

all internet use. The employer also agreed to weekly communication with the Corrections Department. These measures will enable the appellant to keep his employment while ensuring oversight of his internet use, thus protecting the community from this type of offending.

[57]   The final aspect warranting mention is the Child  Sex Offender  Register.   Mr Robinson acknowledged that, even if the appellant receives a sentence short of imprisonment, there is no realistic prospect of a decision that he should not be placed on the Child Sex Offender Register. Given the nature of the offending, and the matters which must be considered,27 the conclusion that the appellant poses a risk to the sexual safety of children is inevitable. As the Court of Appeal has recognised, the implications of registration constitute a significant penalty.28 Registration also has the result of enhancing protection of the community, a relevant consideration in deciding whether or not a sentence of imprisonment should be imposed.

[58]   Standing back then, what is in the best interests of society and the appellant and best meets the purposes and principles of sentencing? A sentence of imprisonment will see the appellant lose a good job, his home and future prospects. 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.

[59]I am satisfied home detention is the appropriate sentence.

27     Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9.

28     Bell v R [2017] NZCA 90 at [26]; Taitapanui v R [2018] NZCA 300 at [33].

Result

[60]   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.

[61]   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 me for orders on the papers. The sentence of home detention can then commence. In the meantime, the appellant’s bail continues.

[62]   The special conditions of home detention are those special conditions proposed in the pre-sentence report, supplemented by those proposed by Community Corrections in its memorandum of 17 December 2019. I make a registration order pursuant to s 9 of the Child Protection (Child Sex Offender Government Agency Register) Act 2016.

[63]   I make an order prohibiting publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 200 of the Criminal Procedure Act 2011.

Thomas J

Solicitors:
Crown Solicitor’s Office, Wellington