Clark v Police - [2013] NZHC 141

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-93 [2013] NZHC 141

BETWEEN RONALD COSMOS CLARK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 February 2013

Appearances: R J Bowden for Appellant
C A Anderson for Respondent

Judgment: 8 February 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 8 February 2013 at 4.15 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors:
Marsden Woods Inskip & Smith, Crown Solicitor, Whangarei: catherinea@mwis.co.nz

Counsel:
R J Bowden, Whangarei: bowden@igrin.co.nz

CLARK V POLICE HC WHA CRI-2012-488-93 [8 February 2013]

Introduction

[1] The Appellant appeals against a sentence of six months’ imprisonment imposed by a District Court Judge at Whangarei on 20 December 2012.[1] The Crown opposes the appeal.

[1] Police v Clark DC Whangarei CRI-2011-088-1499, 20 December 2012.

[2] The Appellant faced two charges brought under s 131 Films, Videos and Publications Classification Act 1993 (“Act”) and 17 charges of knowingly possessing objectionable publications under s 131A(1) of the Act. The Appellant pleaded guilty to the two charges brought under s 131. The Appellant was convicted of each of the charges brought under s 131A(1) following a defended hearing before Judge Davis in the District Court at Whangarei in September 2012. Judge Davis was satisfied beyond reasonable doubt that the Appellant knew, or had reasonable cause to believe, that the publications in his possession were objectionable, hence the Appellant’s convictions.

[3] Judge Davis sentenced the Appellant in December 2012. The Appellant was sentenced to six months’ imprisonment on each of the s 131A charges, the sentences to be served concurrently. He was convicted and discharged on the s 131 charges. The Appellant contends that the sentence(s) on the s 131A charges was manifestly excessive and that a non custodial sentence ought to have been imposed.

Approach to appeal

[4] The Appellant has a general right of appeal against sentence.[2] Such an appeal is by way of rehearing.[3] The powers of the High Court on hearing an appeal against sentence are set out in s 121 Summary Proceedings Act 1957. The High Court may vary a sentence if, amongst other things, it is manifestly excessive as the Appellant
contends in this case. The High Court will not intervene if the sentence is within a

range that can properly be justified by accepted sentencing principles.

[2] Summary Proceedings Act 1957, s 115.

[3] Ibid, s 119.

[5] The objectionable publications in this case comprise 17 images, all computer generated, of what can be broadly can be described as sexual conduct between boys and adults, predominantly men. The Police found the images on computer equipment in the Appellant’s possession.

Appellant’s case

[6] The reason the Appellant submits that a non custodial sentence should have been imposed is that the objectionable publications are images generated by a computer. They depict stylised, not real, children and adults.

[7] The Appellant’s case is that the images are therefore “pseudo” images, and the relevant authorities provide that in a…

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 Clark v Police

Details

AGLC: Clark v Police [2013] NZHC 141
Case: [2013] NZHC 141
Decision Date: 8 February 2013

CaseChat Overview and Summary

The appellant, Ronald Cosmos Clark, appeals against the sentence of six months' imprisonment imposed on him by the District Court at Whangarei. Clark was convicted of possessing objectionable publications under s 131A(1) of the Films, Videos, and Publications Classification Act 1993 and faces two charges under s 131. The appellant contends that the sentence on the s 131A charges is manifestly excessive and that a non-custodial sentence should have been imposed instead.

The court considered the legal issues involved in determining whether the sentence was appropriate. The court noted that the objectionable publications in this case consist of 17 computer-generated images of sexual conduct between boys and adults, predominantly men. The appellant argues that these images are "pseudo" images and that, as such, they should not result in a term of imprisonment. The court, however, rejected this argument and held that the rationale for distinguishing between possession of a "real" image and a "pseudo" image does not necessarily hold good in all circumstances.

In sentencing Clark, the District Court Judge considered the relevant principles and purposes of sentencing, the content of the images, the appellant's pre-sentence report, and his history of offending. The court also referred to a relevant High Court decision, Hulme v R. The appellant has a history of serious sexual offending against boys and showed no remorse for his actions in this case. The court found that the six-month sentence was appropriate given the seriousness of the current offending and the need to deter the appellant.

The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The court held that the UK Sentencing Guidelines Council's Definitive Guideline on the Sexual Offences Act 2003 (UK) may be used as a guide in setting a starting point for sentencing, but aggravating and mitigating factors pertaining to the offender must still be considered in arriving at a final sentence. Additionally, the court found that the New Zealand legislation provides special provisions for s 131A(1) offending when the publication depicts sexual conduct with or by children or young persons.

Orders