Fry v R - [2014] NZCA 174

IN THE COURT OF APPEAL OF NEW ZEALAND

CA102/2014
[2014] NZCA 174

BETWEEN	RICHARD JOHN EMERY FRY Appellant
AND	THE QUEEN Respondent

Hearing:	28 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	S G Vidal for Appellant G R Kayes for Respondent
Judgment:	8 May 2014 at 3 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of two years and one month imprisonment is quashed and substituted with a sentence of one year and nine months imprisonment.

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REASONS OF THE COURT

(Given by Harrison J)

Richard Fry pleaded guilty in the District Court at Invercargill to 22 charges of possessing objectionable material, knowing it to be objectionable.[1] He had earlier pleaded guilty to charges of driving with excess breath alcohol (a third or subsequent charge) and driving while disqualified. Judge Turner sentenced Mr Fry to two years and one month imprisonment, comprised of 20 months imprisonment for the objectionable material charges cumulative upon five months imprisonment for the driving charges.[2]
[1]Films, Videos and Publications Classification Act 1993, s 131A(1).
[2]R v Fry DC Invercargill CRI-2013-059-496, 14 February 2014 at [46] and [49]..
The objectionable material charges arose from a police search of Mr Fry’s laptop computer. A preliminary examination revealed 56 objectionable images, 11 of which involved penetrative sexual activity between adults and children – that is, boys under the age of 12 years. The remaining 45 images were of non-penetrative sexual activity between adults and children or between children. Further examination disclosed 1,000 images of naked boys and male teenagers. A random sample of 100 of those images showed that 12 involved penetrative sexual activity between boys. Another 59 involved boys aged between seven and 16 years either engaged in solo masturbation or sexual activities with other boys, or in erotic poses.[3]
[3]The remaining 10 images were seen to be non-objectionable.
In sentencing Mr Fry, Judge Turner adopted a starting point of two years imprisonment for the objectionable material charges, which was the lead or index offending. Ms Vidal takes no issue with this figure. Nor does she challenge the cumulative sentence of five months imposed for the driving charges. What she challenges is the Judge’s uplift of the starting point on the objectionable material charges by six months or 25 per cent on account of Mr Fry’s convictions in Australia in 1998 on charges of sexual penetration of a child under 16 and indecent dealing with a child under that age. He was sentenced to four years and two months imprisonment for that offending which had actually occurred some years earlier. The Judge did not explain why he imposed the uplift or its length except to say that it was necessary “for personal aggravating features”,[4] and available “[i]n the absence of authority to the contrary”.[5]
[4]At [27].
[5]At [27].
Ms Vidal submits that the Judge erred in two respects. First, she says, a New Zealand court has no proper jurisdictional basis to take into account convictions and sentences imposed…

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 Fry v R

Details

AGLC: Fry v R [2014] NZCA 174
Case: [2014] NZCA 174
Decision Date: 8 May 2014 at 3 pm

CaseChat Overview and Summary

Richard John Emery Fry appealed against his sentence to the Court of Appeal of New Zealand. Fry had been found guilty of 22 charges of possessing objectionable material, knowing it to be objectionable, and of driving with excess breath alcohol and driving while disqualified. The District Court Judge imposed a sentence of two years and one month imprisonment, comprised of 20 months imprisonment for the objectionable material charges cumulative upon five months imprisonment for the driving charges. The Court of Appeal allowed the appeal against the sentence. The sentence of two years and one month imprisonment was quashed and substituted with a sentence of one year and nine months imprisonment.

The appeal hinged on whether the sentencing judge had erred in uplifting the starting point for the objectionable material charges by six months or 25 per cent on account of Fry's convictions in Australia in 1998. The Court of Appeal held that while the sentencing judge had jurisdiction to take into account convictions and sentences imposed by extra-territorial authorities, there was no proper basis for uplifting the starting point in this case. The Australian offending was of a more serious nature than the New Zealand offending, and the time which had elapsed between the two sets of offending diminished the case for an uplift. The Court of Appeal substituted a sentence of one year and nine months imprisonment, adopting the original starting point of two years imprisonment, allowing a discount of one third for mitigating factors and adding five months for the driving charges.

The Court of Appeal held that in principle, the sentence imposed should relate solely to the circumstances of the offending for which the defendant is being sentenced. Care must be exercised to ensure that a sentence does not include a significant component which is in effect attributable to previous offending for which the defendant has served a term of imprisonment. Otherwise, the defendant would be punished twice for the same offending. The Court of Appeal held that the sentencing judge had erred in uplifting the starting point for Fry's sentence. The appeal must be allowed to that extent.

The appeal is allowed. The sentence of two years and one month imprisonment is quashed. A sentence of one year and nine months is substituted.

Orders