Doran v Police - [2012] NZHC 468

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…

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 Doran v Police

Details

AGLC: Doran v Police [2012] NZHC 468
Case: [2012] NZHC 468
Decision Date: 20 March 2012

CaseChat Overview and Summary

Christopher Paul Doran appealed against his conviction and sentence imposed by the District Court at Blenheim for possessing objectionable material, contrary to s 131A of the Films, Videos, and Publications Classification Act 1993. The appeal was limited to the sentence, contending that the District Court Judge had 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. The High Court held that the sentence imposed was within the range of available penalties and the sentencing Judge had properly exercised his discretion in not imposing home detention as an alternative. The appeal against the sentence was dismissed.

The court considered the nature and seriousness of the offending, which involved the possession of 1,222 images of objectionable material depicting the sexual abuse of children, including infants and very young children. The sentencing Judge had allocated the images to the five categories formulated in the United Kingdom and had determined that two years' imprisonment was the appropriate starting point. The court was not persuaded that the sentencing Judge had mischaracterised the relative seriousness of the offending or failed to give appropriate recognition to mitigating factors. The court also found that the sentencing Judge had properly considered whether home detention would be an adequate response to the seriousness of the offending and had concluded that it was not appropriate in this case.

Orders