Clark v Police
[2013] NZHC 141
•8 February 2013
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: [email protected]
Counsel:
R J Bowden, Whangarei: [email protected]
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 case where such images are held, are not “particularly grotesque” and there is no evidence of distribution by the offender (there being no such evidence in this case), the offending should be punished by a fine and certainly not by a term of imprisonment.
[8] The rationale for distinguishing between possession of a “real” image and a “pseudo” image is that no child or young person has been exploited in the making of the latter. For my part I am not sure that rationale would hold good in all circumstances but, in any event, that is the basis on which a distinction is said to be warranted.
[9] It is apparent from the sentencing notes that Judge Davis rejected this submission, as do I for the reasons set out below.
[10] In sentencing the Appellant, the Judge reminded himself of the relevant principles and purposes of sentencing; referred to the content of the images and to his concern that such images, pseudo or otherwise, might fall into the wrong hands; referred to the Appellant’s pre-sentence report and history of offending; and referred
to a relevant High Court decision, namely Hulme v R.[4]
[4] Hulme v R [2012] NZHC 86.
[11] The pre-sentence report recorded that the Appellant accepted no responsibility nor expressed any remorse for his actions, saying that he saw the images as an “art form” and “not as breaking the law”.
[12] The Appellant’s prior convictions include two for indecent assault on a boy under 12, three for indecent assault on a boy between 12 and 16 and three for unlawful sexual connection with a male 12 to 16. The Appellant committed these offences between 1988 and 1991. He was convicted of the offending in or about
1996 and was sentenced to concurrent terms of imprisonment, the longest term imposed being five years and six months.
[13] Having regard to all these matters the Judge adopted a starting point of six months’ imprisonment. There were no further aggravating factors pertaining to the Appellant (the Judge already having taken into account the pre-sentence report and the Appellant’s history) and no mitigating factors. Hence the six month sentence.
Legislative provisions
[14] To put the offending in its legislative context, each of ss 131 and 131A(1) is concerned with the possession of objectionable publications, as defined in the Act. What distinguishes the two provisions is whether the offender knew or had reasonable cause to believe that the publication was objectionable. If so, they have offended against s 131A(1). The relevant parts of ss 131 and 131A, including the maximum penalties available on sentencing, are as follows:
131 Offence to possess objectionable publication
(1) Subject to subsections (4) and (5) of this section, every person commits an offence against this Act who, without lawful authority or excuse, has in that person's possession an objectionable publication.
(2) Every person who commits an offence against subsection (1) of this section is liable to a fine not exceeding,—
(a) In the case of an individual, $2,000:
(b) In the case of a body corporate, $5,000.
...
131AOffences relating to possession of objectionable publications and involving knowledge
(1) Every person commits an offence who does any act that constitutes an offence against section 131(1), knowing or having reasonable cause to believe that the publication is objectionable.
(2) Every person who commits an offence against subsection (1) is liable,—
(a) in the case of an individual, to imprisonment for a term not exceeding 5 years or to a fine not exceeding $50,000:
(b) in the case of a body corporate, to a fine not exceeding
$100,000.
[15] Section 132A is also relevant in this case, and I refer to it below.
Discussion
[16] The Appellant’s first submission on appeal is correct, namely that the Court of Appeal has said that guidelines developed in the United Kingdom for similar offending provide a useful guide to sentencing judges in New Zealand, for the purpose of setting a starting point. In R v Clode,[5] the Court of Appeal said as follows:
[5] R v Clode [2009] 1 NZLR 312 (CA).
[51] So far as we are aware, there are only two Court of Appeal authorities on this sort of offending since the maximum penalty was increased in 2005: see the Films, Videos, and Publications Classification Amendment Act 2005, s 27. Those cases are R v Zhu [2007] NZCA 470 and R v Henderson [2008] NZCA 305. In both those cases, this court referred to the UK Sentencing Guidelines Council’s Definitive Guideline on the Sexual Offences Act 2003 (UK), Part 6A. (This part is concerned with indecent photographs of children.) The guideline was published in April 2007. In Zhu, this court summarised the UK Council’s guidelines and categorisations and said at [15]:
Without necessarily adopting in full these categorisations or sentencing levels as appropriate for New Zealand, we think the analysis of seriousness and general sentencing levels in the report of the Sentencing [Guidelines Council] are a useful guide for New Zealand.
[52] We agree. Until such time as this court or New Zealand’s Sentencing Council produces a guideline, we would encourage trial judges to use the UK guideline as “a useful guide for New Zealand” in cases involving child pornography ...
[17] Crown counsel referred me to Part 6A of the “Definitive Guideline”, referred to in [51] of Clode (“UK Guideline”). Part 6A includes the following statements:
PART 6A: INDECENT PHOTOGRAPHS OF CHILDREN
6A.1 The SOA 2003 makes amendments to the Protection of Children Act
1978 and the Criminal Justice Act 1988. It is now a crime to take, make, permit to take, distribute, show, possess, possess with intent to distribute, or to advertise indecent photographs or pseudo-photographs of any person below the age of 18.
6A.2 The levels for sentencing of offences involving pornographic images were established in the case of R v Oliver, Hartrey and Baldwin. These levels have been reviewed in terms of the nature of the images falling into each level: (footnote omitted)
Images depicting non-penetrative activity are less serious than images depicting penetrative activity.
Images of non-penetrative activity between children are generally less serious than images depicting non-penetrative activity between adults and children.
All acts falling within the definitions of rape and assault by penetration, which carry the maximum life penalty, should be classified as level 4.
The levels of seriousness (in ascending order) for sentencing for offences involving pornographic images are:
Level 1 Images depicting erotic posing with no sexual activity
Level 2 Non-penetrative sexual activity between children, or solo masturbation by a child
Level 3 Non-penetrative sexual activity between adults and children
Level 4 Penetrative sexual activity involving a child or children, or both children and adults
Level 5 Sadism or penetration of, or by, an animal
Offences involving any form of sexual penetration of the vagina or anus, or penile penetration of the mouth (except where they involve sadism or intercourse with an animal, which fall within level 5), should be classified as activity at level 4.
6A.3 Pseudo-photographs should generally be treated as less serious than real images. However, they can be just as serious as photographs of a real child, for example where the imagery is particularly grotesque and beyond the scope of normal photography.
6A.4 The aggravating and mitigating factors set out in the case of Oliver
remain relevant and are included in the guideline for this offence.
[18] It is common ground that the content of the images in this case would have placed them within categories 3 and 4, had they depicted an actual child.
[19] In Hulme v R,[6] Wylie J summarised parts of the UK Guideline, to the extent it was necessary to do so to deal with that particular case.
[6] Hulme v R, above n 4.
[20] Paragraphs 6A.2 and 6A.4 of the UK Guideline confirm the continued relevance of R v Oliver.[7] Oliver forms the principal basis for the Appellant’s submission in this case.
[7] R v Oliver [2002] EWCA Crim 2766.
[21] In Oliver, the Court of Appeal of England and Wales discussed an earlier iteration of the UK Guideline. It is not necessary to refer to the facts of that case in any detail but the Court was determining appeals by three Appellants, the first draft of the UK Guideline had been issued only recently and, as is apparent from the case, the equivalent UK legislation refers to photographs and pseudo photographs. I am willing to assume for the sake of argument that the type of image at issue in this case would be treated as a “pseudo photograph” in the UK.
[22] The passages in Oliver that are relevant to this case are as follows:
9.We agree with the Panel that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it.
10.As to the nature of the material, it will usually be desirable for sentencers to view for themselves the images involved, unless there is an agreed description of what those images depict. Subject to one matter, we accept the Panel's analysis of increasing seriousness by reference to five different levels of activity. ... Accordingly ... we categorise the relevant levels as:
(1) images depicting erotic posing with no sexual activity;
(2) sexual activity between children, or solo masturbation by a child;
(3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults;
(5) sadism or bestiality.
...
14.In our judgment, a fine will normally be appropriate in a case where the offender was merely in possession of material solely for his own use, including cases where material was down-loaded from the internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children, or there was no more than a small quantity of material at Level 1. ...
15.Possession, including down-loading, of artificially created pseudo- photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children. But there may be exceptional cases in which the possession of a pseudo-photograph is as serious as the possession of a photograph of a real child: for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph. It is also to be borne in mind that, although pseudo-photographs lack the historical element of likely corruption of real children depicted in photographs, pseudo-photographs may be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable, and there to have equally corrupting effect. It will usually be desirable that a charge or count in an indictment specifies whether photographs or pseudo- photographs are involved.
(emphasis added)
[23] Counsel for the Appellant submits that the combined effect of Clode, the UK Guideline and Oliver is to render the sentence in the present case manifestly excessive.
[24] I do not accept that submission for the following reasons.
[25] First, the Court of Appeal said that the UK Guideline is to be treated as a “useful guide”. It did not say that the guideline was definitive. Moreover, the guideline is useful for setting the starting point. Aggravating and mitigating factors pertaining to the offender remain to be considered in arriving at an end sentence.
[26] Secondly, Oliver itself anticipates that the circumstances of a case may make it appropriate to depart from the guideline. One example given is the content of the
image. Another is the offender’s prior history.[8]
[8] At [15] and [18].
[27] Thirdly, ss 132A(1) and (2) of the New Zealand legislation are relevant. Taken together they provide that s 131A(1) offending is aggravated, and is to be treated as such on sentencing, if the publication depicts sexual conduct with or by children or young persons. Each of the 17 publications at issue in this case depicts such conduct. I accept that the UK Guideline and Oliver are themselves concerned with the depiction of such conduct but one cannot ignore the fact that the New Zealand legislature has made special provision for this type of offending against s 131A.
[28] Fourthly, for my own part, I would consider it best to avoid firm distinctions based on how an image is said to have originated. No doubt computer programmes are, and will continue to be, sophisticated and it may not be possible to ascertain the origin of all or part of an image. Also, as was said in Oliver, a pseudo image may present its own risks to vulnerable children and adults.
Result
[29] Even if I considered the Judge was required to start from the premise of a fine or non custodial sentence (and I do not), the Appellant was for sentence on
17 charges. He had prior convictions for serious sexual offending against boys, and the comments in his pre-sentence report were to the effect that he did not consider he had done anything wrong. A sentence that brought home the seriousness of the current offending and which deterred the Appellant was required.
[30] In those circumstances, I am not satisfied the sentence was manifestly excessive and I dismiss this appeal accordingly.
..................................................................
M Peters J
2