Department of Internal Affairs v Wiremu

[2017] NZHC 2415

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000107

[2017] NZHC 2415

BETWEEN

DEPARTMENT OF INTERNAL AFFAIRS

Appellant

AND

VINCENZO TYRONE WIREMU

Respondent

Hearing:	28 September 2017
Appearances:	C Butchard and M Robinson for Appellant P Johnson for Respondent
Judgment:	3 October 2017

JUDGMENT OF GENDALL J

DEPARTMENT OF INTERNAL AFFAIRS v WIREMU [2017] NZHC 2415 [3 October 2017]

Introduction

[1]    The respondent is a young man aged 24 years who was diagnosed from a young age as suffering from Asperger’s Syndrome. He has no previous convictions, he lives at home with his parents and he is in full time employment as a driver, a job he has held for about five years.

[2]    In August 2016, the respondent was charged by the Department of Internal Affairs with three charges of making objectionable publications. These involved 26 sample charges of distributing objectionable publications, and 12 sample charges of possessing objectionable publications. The objectionable material featured the  sexual abuse and exploitation of young persons and children as young as toddlers.

[3]    Following a guilty plea at an early stage, the respondent was convicted on these charges in the District Court at Christchurch and Judge Farish on 12 July 2017 imposed a sentence of 24 months’ intensive supervision.1

[4]The appellant now appeals that sentence on grounds that:

(a)There was an error in the sentence imposed; and

(b)A different sentence ought to be imposed.

Background

[5]    From various times commencing at least in March 2013 up to April 2016, the respondent used a variety of online storage facilities, and various email accounts in differing names, to acquire and trade the objectionable material in question. This material was extensive. As I have noted, it showed sexual abuse of young persons, children and toddlers across the full range of objectionable categories, from posing  to full penetrative sexual activity between adults and children.

[6]    As well as possessing and distributing videos and images of victims who were unknown to him, the respondent also distributed non-sexual images of young

1      Department of Internal Affairs v Wiremu [2017] NZDC 15204.

daughters of family friends and relatives in exchange for locked online repositories of sexual abuse material owned by other readers.

[7]    The respondent encouraged other traders and consumers to debase those pictures of the girls known to him by overlaying images of their erect penises or other evidence of masturbation, adding sexualising captions, or commenting in a sexual manner. The overlay of evidence of masturbation on an original (usually non- sexual) image and sending it to another person is known as ‘tributing’ the image.

[8]    Evidence before the Court showed the respondent had 1162 objectionable video files and images sent to 104 individual traders and consumers of child sexual abuse material in a 15 month period from February 2015 to April 2016. It does seem also that in fact there were thousands of files shared to online storage accounts. In addition, 821 objectionable videos and images were located at the time of the appellant’s search, collected between March 2013 and April 2016 and found on the respondent’s laptop, mobile phone and other devices and accounts.

Jurisdiction

[9]    Section 250 of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if it is satisfied that there is an error in the sentence imposed and that a different sentence should be imposed. As this is a Solicitor-General’s appeal, the sentence should be increased only to the level which is considered the lowest appropriate for the class of offending. The oft-cited Court of Appeal decision in R v Donaldson addressed this area and said:2

A Solicitor-General's appeal

It is established that a sentence should not be increased pursuant to a Solicitor-General's appeal unless, on a review of the facts and circumstances of the case, it is clear that the sentence which was imposed is manifestly inadequate (R v Wihapi [1976] 1 NZLR 422, 424 (CA)) or the Crown is able to point to some error in principle upon which the trial Judge acted. See R vPue [1974] 2 NZLR 392 (CA), at p 392 et seq. It is also settled that considerations which justify an increase in sentence must be more compelling than those which might justify a reduction. Thus, in R v Wihapi the Court held (at p 424) that the considerations justifying an increase must ‘speak more powerfully than those which justify a reduction’ and that the

2      R v Donaldson (1997) 14 CRNZ 537 (CA) at 550.

Court ‘is more reluctant to increase than it is to reduce a sentence’. Similarly, in R v Beaman unreported, 16 November 1982, CA177/82 the Court said (at p 7) that it would only increase the sentence in ‘clear cut’ cases. Again, care must be taken to ensure that the Court does not override the sentencing Judge's discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence, particularly if the sentencing Judge has presided over the trial and therefore had the opportunity to see and hear the witnesses and make an assessment of the offender's culpability. See R v Wihapi (supra, at p

424) and R v Hunter [1985] 1 NZLR 115, 121 (CA). Even if the Court determines that the sentence is manifestly inadequate or based upon a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender. In particular, the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is in issue. See R v Clark unreported, 10 March 1981, CA266/81, at pp 4, 5; R v Parker unreported, 29 April 1988, CA246/87, at p 7; and R v Peters unreported, 11 April 1986, CA309/85 at pp 8, 9. See also Hall, Sentencing in New Zealand, App II, 5.5-5.11, and Adams on Criminal Law, Wellington, Brooker's, 1992, vol 2, Ch3.6.12.

These principles reflect the Court's appreciation of the harsh effect of substituting a non-custodial sentence for a prison sentence. In many circumstances there can be an element of inhumanity in doing so. An offender must initially look at his or her pending sentencing with considerable trepidation and, in many cases, intense hope that a noncustodial sentence will be imposed, especially when that prospect is encouraged by their counsel. If in real jeopardy they will almost certainly be overwhelmed with relief if they in fact receive a non-custodial sentence. Although they will in all probability be advised of the right of appeal statutorily vested in the Solicitor-General and be apprehensive, they must necessarily feel elated that the primary sentencing process has been completed and imprisonment has been avoided. Hope may convert itself into confidence that the Judge's sentence will be upheld. In the meantime they have been at liberty. They have rejoined their family or friends and returned to their work and daily routine. They may have undertaken treatment or therapy where that has been recommended or stipulated as a condition, and such treatment may well be proving successful. With an appreciation of these considerations any decision to reverse a non-custodial sentence and replace it with a term of imprisonment is not lightly undertaken. The Court, indeed, is most reluctant to do so.

[10]   In summary, from these comments on appeals of this type, several matters emerge:

(a)considerations which justify an increase in sentence must be more compelling than those which might justify a reduction;

(b)even if the Court determines that the sentence is  manifestly inadequate or based upon a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender; and

(c)in particular, the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with.

District Court Sentencing

[11]   When  the  respondent  appeared  before  Judge   Farish   for   sentencing,  Her Honour noted first, the respondent’s age and long-standing diagnosis with Asperger’s Syndrome. She acknowledged however that, notwithstanding this, he  had achieved relatively well in full time employment for some years and was well- regarded by his employer. The judge then commented on the abhorrent nature of the respondent’s offending, and the harm it has caused to the victims and the community. Judge Farish went on to set out the purposes and principles of sentencing, namely deterrence, denunciation, accountability, the interests of victims, and rehabilitation.

[12]   Her Honour adopted a starting point of five years’ imprisonment for the charges of distributing and making offensive material, and then uplifted the starting point by six months for the charges of possession, leading to an overall starting point of five years and six months’ imprisonment.

[13]   For mitigating factors, Judge Farish applied a 10 per cent discount for the respondent’s youth, 25 per cent for his early guilty plea and 20 percent for his Asperger’s Syndrome. Judge Farish then, it seems, erred in her mathematical calculations. She proceeded on the basis that the end sentence would have been one of two years’ imprisonment and thus a sentence of home detention was available to her. In fact, the end sentence on her calculations should have been one of two years and ten months’ imprisonment.

[14]   Judge Farish then went on, it appears, to place significant weight on what she described as a “very comprehensive report” prepared by Mr Neilson, a very experienced clinical psychologist in this area, which was before her. In doing so, she

concluded a sentence of imprisonment or home detention would undermine the purposes of sentencing here, in particular, the respondent’s prospects of rehabilitation. Her Honour quoted quite extensively from Mr Neilson’s report and concluded:

[32]      Although normally I would impose home detention given all  of those factors that I have just read out from Mr Neilson’s report and I see home detention as being restrictive and undermining the whole purpose of the sentence, that is, to try and rehabilitate you and lower your risk of re- offending in a similar way.

[33]      Therefore, in a very unusual, and this is an unusual case, I am going to sentence you to two years’ intensive supervision. What that means is that you will have to do the STOP programme and I expect your employers to be supportive, as they have indicated they will be, in allowing you time off to participate in that programme. In addition to the STOP programme you are also to have ongoing counselling from a responsible treating clinician. For the moment that might be Mr Neilson but for whatever reason if that needs to change it needs to be someone with experience in this area. In addition you are to live at an address approved in writing by the Probation Service. The address that you are currently at in Farm Lane is fine but you are not to move from that address without the prior written approval of your probation officer. During the course of this sentence you are not to be in possession of internet capable devices. So even adult pornography is not appropriate for you by way of the internet at this stage, do you understand? You are not to access or have available to you internet capable devices unless it is approved in writing by the probation officer.

[34]      In addition to the intensive supervision I will judicially monitor you. That is, one, I want to check your progress over the next two years but I also want to make sure that any treatment that is being provided to you is in accordance with the whole purpose of the sentencing which is to lower your risk of re-offending but also, obviously, clearly to rehabilitate you.

[15]An end sentence of two years’ intensive supervision, including an additional

two year Judicial Monitoring by the Judge, was ultimately imposed.

[16]   Before dealing with the substantive issues on this appeal, it is useful to discuss briefly the legislative history that introduced community-based sentencing and the hierarchy of sentencing generally under the Sentencing Act 2002 (the Act).

Legislative history and sentencing hierarchy

[17]   The policy underlying the introduction of additional community-based sentences, and the elevation of home detention to a sentence in its own right, are set

out in the Explanatory Note to the Criminal Justice Reform Bill No. 93/1 (the Bill). The opening part of the Explanatory Note states:

The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years. This increase is no longer sustainable, neither financially nor socially. New Zealand's imprisonment rate is considerably higher than countries that we habitually compare ourselves with, such as the United Kingdom, Canada, and Australia. The Bill, which includes some measures that will have an immediate effect and others that will take longer for their impact to be felt, is intended to contribute to a reduction in the imprisonment rate over time.

[18]   Before this 2007 Amendment, a sentencing Court could not impose a sentence of home detention.3 The question whether a sentence of imprisonment of  no more than two years could be served by detention at home was determined by the Parole Board. The sentencing Judge's role was to act as a gate-keeper, deciding whether, in the circumstances of the particular case, leave to apply for home detention should be given. In deciding whether to grant leave, the sentencing Judge applied criteria set out in s 97(3) of the Act. Immediately before its repeal, s 97(3) provided:

(3)The court may grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention only if the court is satisfied that it would be appropriate to grant leave, taking into account-

(a)    the nature and seriousness of the offence; and

(b)    the circumstances and background of the offender; and

(c)    any relevant matters in the victim impact statement in the case.

[19]Those factors remain relevant to imposition of a sentence of home detention.

[20]   In addition to adding home detention to the sentencing options available to a sentencing Judge, Parliament created two more community-based sentences. These were intensive supervision and community detention. For intensive supervision, the relevant statutory provisions provide:

3      R v D [2008] NZCA 254 at [36].

54B     Sentence of intensive supervision

(1)A court may sentence an offender to intensive supervision if—

(a)the offender is convicted of an offence punishable by imprisonment; or

(b)the offender is convicted of an offence and the enactment prescribing the offence expressly  provides that a sentence of home detention may be imposed on conviction; or

(c)the offender is convicted of an offence and the enactment prescribing the offence expressly  provides that a community-based sentence may be imposed on conviction.

(2)The sentence  may  be  for  a  period,  being  not  less  than  6 months and not more than 2 years, that the court thinks fit.

54C     Guidance on use of sentence of intensive supervision

A court may impose a sentence of intensive supervision only if it is satisfied that—

(a)a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and

(b)the nature of the offender’s rehabilitative or other needs

requires the imposition of conditions—

(i)for a period longer than 12 months; or

(ii)that are not available through the sentence of supervision.

[21]   The 2007 Amendment contained, for the first time, a hierarchy of sentences. The specific statement of this hierarchy in s 10A of the Act is relevant to the principles of sentencing set out in s 8(g) of the Act. This provision was amended by  s 6(2) of the 2007 Amendment to read:

8        Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

…

(g) must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and

…

(My emphasis.)

[22]The hierarchy of sentences in s 10A of the Act provides:

10A     Hierarchy of sentences and orders

(1)The hierarchy of sentences and orders set out in subsection

(2)   reflects the relative level of supervision and monitoring of, and restrictions imposed on, an offender under each sentence or order.

(2)The hierarchy of sentences and orders, from the least restrictive to the most restrictive, is as follows:

(a)discharge or order to come up for sentence if called on:

(b)sentences of a fine and reparation:

(c)community-based sentences of community work and supervision:

(d)community-based sentences of intensive supervision and community detention:

(e)sentence of home detention:

(f)sentence of imprisonment.

[23]   Parliament went on to accept, however, that, in some circumstances, it may be necessary for a combination of sentences of different types to be imposed to respond adequately to particular offending. While s 19 sets out permitted combinations of sentences, s 20 contains guidance on their use:

19Permitted combinations of sentences

(1)No court may impose a combination of sentences of different types on an offender in respect of 1 or more offences except as provided in this section.

(2)A sentence of reparation may be imposed with any sentence.

(3)A sentence of a fine may be imposed with any sentence, but may only be imposed with a sentence of imprisonment in respect of a particular offence if authorised by the enactment specifying the offence.

(4)A sentence of supervision may be combined with any sentence except intensive supervision, home detention, or imprisonment.

(5)A sentence of community work, subject to section 20(2), may be combined with any sentence except imprisonment.

(6)A sentence of community detention may be combined with any sentence except home detention or imprisonment.

(7)A sentence of intensive supervision may be combined with any sentence except supervision, home detention, or imprisonment.

(8)A sentence of home detention may be combined with a sentence of reparation, a fine, or community work.

(9)A sentence of imprisonment may be combined with a sentence of reparation or, subject to subsection (3), a fine.

20Guidance on use of combinations of sentences

(1)A court may impose a particular combination of sentences on an offender only if satisfied that any of the sentences making up the combination, if imposed alone or in any less restrictive combination, would not be in accordance with—

(a)the purpose or purposes for which sentence is imposed; or

(b)the application of the principles in section 8 to the particular case.

(2)A court may only combine a sentence of community work with a sentence of supervision or intensive supervision if satisfied that—

(a)a sentence of community work is appropriate; but

(b)the offender requires the imposition of standard conditions or any of the special conditions available under a sentence of supervision or intensive supervision to address the causes of his or her offending.

[24]   Under the Act, imprisonment is the most restrictive sentence and may only be imposed in circumstances identified in s 16:

16       Sentence of imprisonment

(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c) , (e) , (f) , or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3)This section is subject to any provision in this or any other enactment that—

(a)provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or

(b)requires a court to impose a sentence of imprisonment in relation to a particular offence.

[25]   As I see it, the primary intent of the 2007 Amendments seems to have been to curb the rate of imprisonment of offenders in New Zealand.

Analysis

Mathematical error

[26]   Both Counsel for the appellant and counsel for the respondent agree that in her decision there was a mathematical error in Judge Farish’s 24 months calculation and her presumption, therefore, that home detention was available to the respondent. As to mathematical errors in sentencing, recently the Court of Appeal in Ferris- Bromley v R held:4

…

(a)A mathematical error resulting in a sentence more severe than the Judge patently intended must be corrected, even if the sentence imposed was still within the available range. In such a case of plain error, it would be unjust for the error to be left uncorrected.

(b)If it is not clear that the Judge made a mathematical error in arriving at the sentence imposed, the usual test will apply: is the sentence manifestly excessive (that is, beyond the available range).

4      Ferris-Bromley v R [2017] NZCA 115 at [15].

(c)An error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate. In practice this approach is only taken on a prosecution appeal, brought with the Solicitor-General’s consent under s 246 of the Criminal Procedure Act.

(citations omitted)

[27]   Section 15A(1)(b) of the Sentencing Act provides that a sentence of home detention is only available when the Court would otherwise sentence the offender to a short-term sentence of imprisonment. A short-term sentence of imprisonment is defined in s 4 as having a determinate sentence of 24 months’ imprisonment or less. The discounts here, however, should have resulted in an end sentence of two years ten months’ imprisonment. Therefore, I accept that Judge Farish erred by proceeding on the premise that a sentence of home detention was available to her.

[28]   However, in my view, the mathematical error is somewhat inconsequential to the respondent’s overall sentence of two years’ intensive supervision. As I discuss later, the Court need not be satisfied that a sentence of home detention must first be available before a sentence of intensive supervision is imposed. Furthermore, the mathematical error here favours the respondent and therefore will not be corrected unless the Solicitor-General can satisfy this Court that the end sentence was manifestly excessive.

Was a sentence of intensive supervision available to the respondent?

[29]   The appellant maintains here that, even if the Judge was within range to impose a non-custodial sentence, to drop two levels in the sentencing hierarchy is unusual and requires compelling reasons for it to be justified. The appellant cites Ministry of Social Development v Albert,5 where Moore J considered a prosecution appeal against a sentence of community detention for benefit fraud. His Honour  held:

[53] In my view the sentence which Mr Albert received was manifestly inadequate. Not only should the sentence have been one of imprisonment but the reduction from 22 months’ imprisonment to six months’ community detention represent such a significant reduction in sentence that it cannot be justified on orthodox sentencing principles.

5      Ministry of Social Development v Albert [2015] NZHC 1288.

[30]   However, taken to its logical conclusion here, the appellant’s argument before me would mean that a sentence of intensive supervision could only be imposed for a sentence of short term imprisonment (i.e. one of not more than 24 months’ imprisonment).  If this was intended by Parliament, it could have expressly stated  this to be so in the statutory wording of s 54B(1)(a). It did not. The simple statutory wording provides that intensive supervision may be imposed “if the offender is convicted of an offence punishable by imprisonment.” Had Parliament decided that intensive supervision could only be imposed for short term imprisonment, it could, for example in s 54B(1)(a) have adopted the statutory wording of s 15A(1)(b), (where the Court may only impose a sentence of home detention if “the court would otherwise sentence the offender to a short-term sentence of imprisonment”). But it did not.

[31]   Furthermore, contrary to what I understand were the appellant’s submissions before me, there are a number of authorities that suggest a sentence of intensive supervision is available for sentences of imprisonment which exceed two years. In R v O, Ms O pleaded guilty to two charges of attempted murder of her children, punishable by a maximum sentence of 14 years’ imprisonment.6 Ms O intended to kill her children and commit suicide. She initiated her plan but sought help before anyone was irreversibly harmed. This Court considered that the offending  was driven by intense suicidal emotions and ultimately sentenced Ms O to 24 months’ intensive supervision. Whata J observed:

It may be that [the prosecution] considered that the severity of the offending warranted a punitive element to reflect the need to denounce such conduct. Even so, I am not attracted to this because I consider that all of your energy must be devoted to your mental health issues and to your family who plainly need you.

[32]   In R v Goodlet, the Solicitor-General appealed against the District Court’s decision to impose no sentence under s 34(1)(b)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.7 The respondent pleaded guilty to one count of wounding with intent to cause grievous bodily harm, and one count of conspiring to prevent the course of justice. The respondent suffered from either paranoid

6      R v O [2012] NZHC 796.

7      R v Goodlet [2011] NZCA 357.

schizophrenia or a psychotic disorder secondary to multiple drug use. The Solicitor- General contended that such offending was serious enough to warrant a sentence of around three years six months’ imprisonment. This Court agreed with the Solicitor- General and held that the District Court Judge erred in refusing to impose a sentence of imprisonment.8

[33] However the Court of Appeal found it inappropriate to impose a sentence of imprisonment on appeal for two main reasons. First, it was evident that subsequent to the respondent’s sentencing, significant progress had been made regarding the respondent’s condition. Second, and as foreshadowed at [9] above, even in a successful appeal against sentence by the Solicitor-General, the Court may still be loath to translate a community-based sentence into a custodial one.9 The Court of Appeal imposed two years’ intensive supervision despite the fact that, like here, an end sentence would have exceeded two years.

[34]I therefore find that a sentence of intensive supervision was available at the

Judges’ discretion.

Was the sentence nonetheless manifestly inadequate?

[35]   The appellant submits that the end sentence is inappropriate and manifestly inadequate to reflect the seriousness of the offending by the respondent here. It is contended that the sentence was in error as it focussed overwhelmingly on rehabilitation, to the exclusion of other sentencing purposes and principles. On this aspect, the appellant refers to R v Senio, where Ronald Young J cautioned against artificially tailoring a sentence:10

[16]      I reject the respondent’s submission that the correct approach for the Judge was to decide on the appropriate sentence type and structure the sentence accordingly. This ignores appellate authority and the need for consistent sentences. Judges are simply not free to choose the sentence type they think might be best. Nor is a complaint of a mathematical approach to sentencing appropriate. The appellate courts have given clear direction as to an appropriate sentencing process for Judges to follow (R v Taueki [1999] 3 NZLR 62.) That process ensures all relevant features are properly taken into

8      Above n 7 at 52.

9      Above n 7 at 55.

10     R v Senio HC Wellington CRI-2009-485-158, 16 December 2009.

account. It does allow Judges to legitimately go outside sentencing norms in particular cases.

[17]      However, the respondent’s submission for a “sentence type” selection process as the first step by a sentencing Judge would be a chaotic basis to reach a fair and proper sentence.

[36]   In Waugh v New Zealand Police, Priestley J cautioned against minimising the seriousness of possessing objective material:11

The seriousness of offending of this type must not be minimised. The fact that such material can be accessed online in the privacy of one’s home; that the material are photographic; or that the people who choose to download them, far from being repulsed and disgusted are instead gratifying their sexual deviances; all tend to obscure the fact that the production of objectionable material relies on the exploitation and defilement of children. Far away from the comfort of the home, probably on the other side of the world, vulnerable children are being exploited for commercial gain. Possessors such as the appellant may be remote in time and place. But their deviancy fuels the demand.

[37]   In May 2015, Parliament increased the maximum sentence for distributing objectionable publications from ten to 14 years’ imprisonment. The appellant maintains that this substantial increase demonstrates Parliament’s intent to send a strong message first, that the possession of, and trade in, child exploitation material is abhorrent and secondly, that this encourages the abuse of children.

[38]   With all this in mind, the appellant’s position is that a sentence of three years and three months’ imprisonment should be imposed here instead of the intensive supervision sentence imposed by Judge Farish.

[39]   While I agree that the sentence of two years’ intensive supervision is manifestly inadequate, and some appropriate punitive element should be added here, in light of the relevant authorities, however, I am disinclined in the unusual circumstances of this case to interfere with the respondent’s community based sentence. This sentence is no doubt a merciful one.  It  is not, however, necessarily an easy sentence. In appeals such as the present one, the Court of Appeal  commented in R v Donaldson:12

11     Waugh v New Zealand Police HC Auckland CRI-2010-404-178, 15 October 2010 at [22].

12     R v Donaldson, above n 2 at 550.

…Care must be taken to ensure that the Court does not override the sentencing judge’s discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence…

[40]   At this stage, in my view, it is not appropriate, in the circumstances prevailing here, for this Court to substitute a prison sentence for the non-custodial sentence imposed in the District Court. I accept it is unusual to drop a number of levels in the sentencing hierarchy but, as R v Harris13 notes, this Court may do so.

In the present case I find that there are good reasons for adopting this course.14

[41]   This is especially the case here where the respondent has been compliant with his sentence of intensive supervision and has actively enrolled in the STOP programme. He has agreed to meet with Mr Neilson once a month and is being judicially monitored by Judge Farish. The respondent has a strong support network, including family, his employer and the community. I am not prepared to interfere with the respondent’s progress by substituting a sentence of imprisonment.

[42]   In addition, it is useful to remember that the probation report which was before the District Court confirmed that the respondent’s risk of direct harm to others was low and it recommended a sentence of intensive supervision. The clinical psychologist’s report from Mr Neilson, significantly, as I see it, also reached the following conclusions:

(10.1) These behaviours of his have not come on the more typical anti- socially motivated pathway. He has not expanded an already deviant level of sexual preoccupation. Rather, Vinnie’s path has come about through a more restricted path of lifelong restricted social skills, understood as Asperger’s Disorder which has contributed to his experience of blocked accessibility to same-age peer partners for social and sexual expression. Some have described the predicament of the adolescent male as having a full-grown body with a full- grown sex drive, with the emotional functional at a prepubescent age.

…

(10.5) Given these circumstances that have contributed to Vinnie’s decision to access pornography and objectionable material, the writer would respectfully suggest that punishment in a prison setting is not what

13     R v Harris [2013] NZCA 611 at [21].

14     Ministry of Social Development v Albert [2015] NZHC 1288 at [40].

will be in Vinnie’s best interests from a rehabilitative perspective or for society’s protection…A term of imprisonment would arguably see Vinnie re-enter the community with poorer social skills and emotional scars that would have increased his risk of similar offending.

…

(10.12) The prison environment is not seen to be a suitable and rehabilitative environment for a person with a diagnosis of Asperger’s Disorder, such as Vinnie.

[43]   Although the respondent’s offending was clearly extensive and serious, given that he suffers from Asperger’s Syndrome, I am satisfied it could not be said he was simply callously indifferent to what he was doing here. And from the Donaldson decision it is clear that unless very compelling reasons requiring imprisonment exist, this Court should be reluctant to impose imprisonment where an appropriate community-based sentence can be imposed. This is especially the case where, as here, an appellant has begun and progressed well on such a sentence.

[44]   Other authorities also support the general position I take here. In R v D (CA253/2008), the Solicitor-General appealed against a sentence of one year’s intensive supervision on a charge against the defendant of wounding his former wife with intent to injure.15 The Court of Appeal held that a sentence of two years’ imprisonment, or home detention, should have been imposed. However, citing the principle established in R v Nathan, the Court held that it was inappropriate on appeal to substitute for the respondent’s sentence one of imprisonment or home detention. Instead, the Court of Appeal substituted a combined sentence of two years’ intensive supervision with 250 hours’ community service.

[45]   Adopting the approach in R v D (CA/253/2008), I am of the view that in the unusual and special circumstances of this case imprisonment is not appropriate here, but an appropriate punitive element to the respondent’s sentencing should be added. I therefore impose a further 250 hours’ community service on top of Judge Farish’s sentencing.

15     R v D [2008] NZCA 254.

Result

[46]   The appeal is allowed but effectively only in part. In addition to the respondent’s sentence of two years’ intensive supervision, the respondent is further sentenced to 250 hours’ community service.

[47]   For the avoidance of doubt, the special conditions imposed by Judge Farish, including the requirement of judicial monitoring, are undisturbed. The special conditions, as I understand it, were as follows:

(a)Mr Wiremu is to see Mr Neilson or another treating psychologist for at least two years;

(b)Mr Wiremu is to attend and complete the STOP programme;

(c)Mr Wiremu is to live only where directed by the Department of Corrections and cannot have access to the internet unless that is approved in writing by his probation officer;

(d)Mr Wiremu is not to have contact with children under the age of 16 years unless he is supervised by an appropriate adult until it is approved by his treating clinicians.

[48]   All other orders, including suppression of the details of family members and destruction of the objectionable material also remain undisturbed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch Public Defence Service, Christchurch