Crammond v The the King

[2022] NZHC 3444

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2022-442-16

[2022] NZHC 3444

BETWEEN

DALE WILLIAM CRAMMOND

Appellant

AND

THE KING

Respondent

Hearing:

15 December 2022

Appearances:

S J Zindel for the Appellant

J M Webber for the Respondent

Judgment:

15 December 2022

ORAL JUDGMENT OF PALMER J

Solicitors/Counsel

Zindels, Nelson

O’Donoghue Webber, Nelson

CRAMMOND v R [2022] NZHC 3444 [15 December 2022]

What happened?

[1]    Mr Dale Crammond, aged 32, pleaded guilty to seven charges of possession of objectionable publications. One related to video files discovered on his phone in November 2020. The other six resulted from him uploading content to five different cloud-based internet storage accounts between March 2019 to June 2020. These images and videos involved: sexual activity between adults and children aged one to 12 years; sexual abuse and exploitation of children aged from two to 12 years; and sexual exploitation of two girls between 12 and 14 years engaged in sexual activity with dogs. There were 116 visually unique images and video files, of which 78 involved penetrative sexual activity with children.

[2]    On 16 February 2022, Judge A A Zohrab gave Mr Crammond a sentencing indication. He indicated he would adopt a starting point of 34 months’ imprisonment, discounted by 15 per cent for a guilty plea, resulting in an end sentence of 29 months’ imprisonment. The Judge indicated that engaging with a rehabilitative programme might result in further discounts, but Mr Crammond would need to demonstrate serious engagement and acknowledgement of his unhealthy interest in children and some demonstrable hard work. Mr Crammond accepted the indication and pleaded guilty. The Judge sentenced him to 26 months’ imprisonment on 14 June 2022.1 That involved a 15 per cent discount for the guilty plea and a three-month discount to account  for  Mr  Crammond’s  time   on   electronically   monitored   (EM)   bail.  Mr Crammond appeals the sentence and applies for the appeal to be heard out of time due to delays in finding new counsel. I grant the application for an extension on that basis.

Submissions

[3]    Mr Zindel, for Mr Crammond, submits the Judge erred in declining to grant further discounts, which would have enabled taking a chance on home detention. That, he says, would be appropriate given Mr Crammond’s offending occurred while he was addicted to alcohol and drugs, with which he has made good progress in custody and on EM bail. Mr Crammond could not get on the STOP programme prior to sentencing.

1      R v Crammond [2022] NZDC 11105.

Sentencing is discretionary and could have been conditional on satisfactory completion of the course. Mr Zindel also seeks to remove Mr Crammond’s name from the child sex offenders’ register.

[4]    Mr Webber, for the Crown, submits the sentence followed a clear sentencing indication, the evidence was overwhelming, the discounts were appropriate, no further discounts are appropriate and participation in a rehabilitation programme is not appropriate because Mr Crammond does not accept he needs assistance. The Judge made no error in failing to take a chance to scale down the indication.

Should the sentence appeal succeed?

[5]    Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.2 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.3

[6]    The sentence here is not manifestly excessive for a moderately serious case. There is no error in the Judge’s approach, which accorded with the sentencing indication he gave. The starting point was on the low side, in light of Downs J’s review of similar cases in Snell v R.4 No further discount is appropriate.

[7]    Mr Zindel acknowledges Mr Crammond was essentially in a state of denial in respect of his interest in child pornography. Mr Crammond denies any interest or attraction to children and is reluctant to accept responsibility for anything more than inadvertent receipt of that objectionable material. The Judge made clear that he needed to acknowledge he had issues that had to be addressed. Accordingly, it is difficult to see why rehabilitation opportunities should be provided to him, which were not part of the sentencing indication he accepted.

2      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].

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

4      Snell v R [2022] NZHC 1627.

[8]    Even if Mr Crammond’s sentence was within the range where home detention is available, the nature of his offending requires specific and general deterrence and denunciation, which would only be achieved by a sentence of imprisonment. He is not eligible for removal from the child sex offenders’ register. I dismiss the appeal.

Palmer J