Doran v Police
[2012] NZHC 468
•20 March 2012
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2012-406-000006 [2012] NZHC 468
CHRISTOPHER PAUL DORAN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 19 March 2012
Counsel: M Hardy-Jones for appellant
M A O’Donoghue for respondent
Judgment: 20 March 2012
RESERVED JUDGMENT OF DOBSON J
[1] On 23 February 2012, Mr Doran was sentenced in the District Court at Blenheim on 20 charges of knowingly possessing objectionable material contrary to s 131A of the Films, Videos, and Publications Classification Act 1993 (the Act). Judge Zohrab sentenced Mr Doran to 18 months’ imprisonment. Mr Doran has appealed on the basis that the sentence imposed was clearly excessive.
[2] The grounds of the appeal are that the Court imposed a starting point for the sentence which was too high, failed to give any discount for mitigating factors, and wrongly determined that he was not suitable for a sentence of home detention on
account of an inappropriately narrow focus on denunciation and deterrence.
DORAN v NEW ZEALAND POLICE HC BLE CRI-2012-406-000006 [20 March 2012]
[3] The charges were laid after the Police had executed a search warrant at Mr Doran’s residence in July 2011. After seizing three laptops, the Police identified some 1,222 images of an objectionable nature. There was also evidence that such images had been downloaded onto another storage device which was not located, despite the Police executing a subsequent search warrant.
[4] In the United Kingdom, the response of the criminal law to supply and possession of objectionable materials that may be conveyed via the internet has led to a categorisation system of their relative levels of seriousness. The United Kingdom Sentencing Advisory Panel’s system places images into five levels. The New Zealand Court of Appeal has recognised that the analysis of seriousness and general sentencing levels in that report represent a useful guide for New Zealand,
without necessarily adopting them in full.[1]
[1] R v Zhu [2007] NZCA 470 at [12]-[15].
[5] The prosecution prepared an analysis of the images in this case relative to the five categories as they have been formulated in the United Kingdom and which were cited by the Court of Appeal in Zhu. I have set those categories out below, and allocated the images to which the present charges relate in the following proportions:
(1) Images depicting nudity or erotic posing, with no sexual activity –
332 images.
(2) Sexual activity between children or solo masturbation by a child –
41 images.
(3) Non-penetrative sexual activity between adults and children –
361 images.
(4) Penetrative sexual activity between children and adults – 412 images. (5) Sadism or bestiality – 26 images.
[6] The prosecution summarised the content of the images as showing infants and very young children being tied up or restrained whilst being raped or sexually violated by adult men, in some cases with the victims being gagged at the mouth during sexual abuse. They included images of naked adolescent females engaging in bestiality. The prosecution estimated that in 622 of the 1,222 images, the child victims were estimated to be aged under eight years old, and in half of those again (312) the infants were estimated to be under the age of two years old. The content of the images was violent and was degrading to the vulnerable child victims.
[7] The sentencing Judge had regard to a victim impact statement that had been prepared by a Police officer involved in investigating the origin of some of the images found in Mr Doran’s possession. That statement cited statistics from United Nations’ research on the estimated extent of child sexual abuse images circulated on the internet and the numbers of minors who are likely to be victims of child sexual abuse. The predictable point made is that the demand for such images drives the proliferation of the abuse and exploitation that has occurred.
[8] The victim impact statement reports that four children amongst those portrayed in the images have been positively identified - three in the United States and one in Europe. In other cases, it appears that the images were previously known to Interpol or other policing agencies, but no positive identity of the children involved was available.
[9] After a thorough review of the circumstances of the offending, and the circumstances of the offender, plus consideration of relevant precedents on the range of appropriate sentences in such cases, the Judge settled on two years’ imprisonment as the appropriate starting point. There had been guilty pleas at an early stage entitling Mr Doran to a 25 per cent discount, so that led to a prison sentence of
18 months.
[10] The sentencing Judge then considered whether the objectives of sentencing could adequately be met by the alternative sentence of home detention. The Judge was concerned at Mr Doran’s attitude in minimising the nature of his offending, relative to the period he had apparently spent researching sites that could provide
child pornography. The Judge was also concerned that there appeared to be no remorse for anybody other than the offender himself and his family circumstances created by the consequences of his offending. The Judge observed:[2]
I see no remorse, or insight, or understanding, of the impact of your behaviour and how it has fuelled the market and how you have been complicit in this offending.
[2] R v Doran DC Blenheim CRI-2011-006-002313, 23 February 2012 at [49].
[11] Accordingly, in light of the objectives of holding the offender accountable for harm done to the victims and to the community, to denounce his conduct and to deter others, the Judge was not satisfied that these could be met by anything short of a prison sentence. He did not exclude the prospect of home detention in other cases of this type. However, on the facts of this case and the personal circumstances of Mr Doran, home detention would not be adequate.
Arguments on appeal
[12] The appellant invited analogy with New Zealand applications of the sentencing ranges that have been proposed by the United Kingdom Sentencing Advisory Panel Report. These were considered in a decision on appeal to the High Court in Hulme v R.[3] The bands from that guidance considered relevant here, as summarised in the Hulme decision, were:[4]
[3] Hulme v R [2012] NZHC 86.
[4] At [27].
(j) Six to 12 months’ imprisonment — showing or distributing a large number of images at level 2 or 3 or possessing a small number of images at levels 4 or 5;
(k) Twelve months to three years’ imprisonment — possession of a large amount of material at levels 4 or 5 (even without showing or distributing), showing or distributing a large number of images at level 3, or producing or trading a material at levels 1 to 3;
[13] Mr Hardy-Jones’ analysis urged that the appellant should be seen as possessing a relatively small number of images at levels four and five. In particular, it was emphasised that the highest level (level five) was appropriate for only 26 images, being approximately two per cent of all the images. On that basis, it was
submitted that the starting point ought to have been 12 months’ imprisonment.
[14] It was submitted that that starting point was supported by the analysis of Clifford J in Department of Internal Affairs v Wigzell.[5]There was a suggestion that in that appeal first offenders “with a relatively small number of images, up to about
3,000, had previously attracted starting points of one year imprisonment”.[6]
[5] Department of Internal Affairs v Wigzell HC Wellington CRI-2007-485-110, 20 November 2007.
[6] At [15].
[15] However, that comment did not reflect a review by Clifford J. Rather, it was a summation by him of the analysis conducted by the sentencing Judge in the District Court. Wigzell was an appeal by the prosecution, contending that an end sentence of two years’ imprisonment was manifestly inadequate. At least 200,000 objectionable images had been located at Mr Wigzell’s residence and the sentencing Judge had described it as being close to the worst case of possession of such material to have come before the courts in New Zealand. Three thousand is more easily categorised as a “relatively small number of images” when compared with 200,000, than would be the case where numbers are considered in absolute terms. The prosecution appeal was unsuccessful so that the sentence of two years’ imprisonment having been reduced from a starting point of three years was not upset.
[16] The ease of proliferating and reproducing images by use of electronic technologies does not justify a significant reduction in the seriousness of offending where it does not involve large numbers of images. It is not appropriate to be desensitised to the actual numbers just because of the ease of accumulating such images. I am satisfied that Clifford J did not intend that by his references to the approach that had been taken in Wigzell.
[17] The extent of exploitation and defilement of children,[7] including their age, must rank in qualitative terms as a measure of seriousness not fully accounted for in the five levels that have been adopted. Quantitative measurement in isolation could be inadequate to reflect the relative seriousness.
[7] The expression used by Priestley J in Waugh v Police HC Auckland CRI-2010-404-178, 15 October 2010, and adopted by Wylie J in Hulme v R at [42].
[18] A schedule provided by Mr Hardy-Jones for the sentencing Judge included five appeals in which convictions under s 131A of the Act had attracted starting
points between 21 months and four and a half years.[8] This case sits near the bottom of that range.
[8] Waugh v Police; Stevens v Police HC Wellington CRI-2008-406-7, 15 July 2008; Hulme v R and
Department of Internal Affairs v Wigzell.
[19] Mr Hardy-Jones also argued that, in relative terms, the seriousness of this offending could not be ranked as two fifths of the way along a continuum from the least to the most serious offending under the section where five years’ imprisonment is the maximum penalty. Mr Hardy-Jones argued that the desirability of leaving an appreciable extent of headroom for the most serious of cases, in effect dictated that a less serious case like Mr Doran’s should reflect a starting point lower than two fifths of that maximum. To do otherwise is to risk inconsistency.
[20] I am not persuaded that the sentencing Judge in the present case has mischaracterised the relative seriousness of the offending. The number of images in particular categories should not, of themselves, dictate the starting point. The sentencing Judge was entitled to have regard to the relative seriousness of the nature of some of the objectionable images, for instance having regard to the presence of images involving girls under eight, and under two. It under-rates the seriousness of the features summarised in [6] above to suggest that possession of such images cannot be classified as being in the fourth decile of relative seriousness. The sentencing Judge’s own summary referred to the images including those of adult men raping and sexually violating infants and very young children. Having regard to the nature of the images located, the course of conduct involved and a measure of pre-meditation, I am not satisfied that a starting point of two years’ imprisonment fell outside the available range.
[21] Mr Hardy-Jones also argued that the sentencing Judge did not give appropriate recognition to mitigating factors that should have justified a larger discount from the starting point. There was recognition of an early guilty plea, resulting in the 25 per cent reduction to 18 months.[9]
[9] Adopting the guideline in Hessell v R [2010] NZSC 135.
[22] In addition, Mr Hardy-Jones raised Mr Doran’s personal circumstances. He
had lost his job as a result of these charges, had moved away to Taranaki where he
was residing with his parents and helping with the care of his incapacitated father. In that situation, he did not have access to the internet. It was accordingly argued that he had already suffered a penalty, and the prospects of re-offending were reduced by the absence of opportunity.
[23] The sequence of reasoning in the Judge’s sentencing notes suggests that he had regard to the mitigating circumstances of Mr Doran as an offender, as well as the circumstances of the relative seriousness of the offending itself, before setting a starting point. If two years’ imprisonment was the appropriate starting point having regard to all the circumstances of the offending, then some further discount beyond the 25 per cent for early guilty pleas might be justified on account of mitigating circumstances personal to the offender.
[24] However, I am not satisfied that the Judge erred in this respect either. The additional matters personal to Mr Doran cannot justify any significant weight, against the potentially aggravating factors he presents as an offender, notably the attempts to minimise the impact of his offending and the lack of remorse for it. It would be tinkering inappropriately to adjust the length of prison term on appeal.
[25] The last aspect of the sentence appeal is the criticism that the sentencing Judge failed to consider appropriately the factors relevant to whether a term of imprisonment ought to have been substituted with a sentence of home detention. The proposed length of prison sentence enabled that alternative to be considered, and the Judge undertook such an assessment. The Judge’s analysis is criticised for focusing unduly on denunciation and deterrence.
[26] Mr Hardy-Jones cited the Court of Appeal in Manikpersadh v R,[10] citing that Court’s earlier decision in James v R on the appellate approach to a refusal to impose home detention:[11]
[10] Manikpersadh v R [2011] NZCA 452.
[11] James v R [2010] NZCA 206 at [17].
We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a
particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[27] In the five sentence appeals for convictions on substantial numbers of charges under s 131A of the Act referred to in [18] above, prison sentences have been upheld. In four of those, short prison sentences were imposed where jurisdiction arose to consider home detention as an alternative.
[28] Here, the sentencing Judge acknowledged that substituting home detention for short prison sentences is not necessarily excluded in every case, but he was satisfied it was simply not appropriate here. I agree with that approach. Such offending as occurred here is difficult to detect, and not untypically involves offenders denying any meaningful contribution to the harm inflicted on the victims. Such a misconception justifies substantial weight being given to denunciation and deterrence as factors in determining the appropriate sentence. I am certainly not persuaded that the sentencing Judge erred in adopting the view that a sentence of home detention would not adequately reflect the seriousness involved, given the circumstances of the offending and the relative importance of denunciation and deterrence.
[29] Accordingly, the appeal against sentence is dismissed.
Solicitors:
Hardy- Jones Clark, Blenheim for appellant
Crown Solicitor, Nelson for respondent
Dobson J
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