Goodley v Police

[2022] NZHC 3174

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-66

[2022] NZHC 3174

BETWEEN

BRENDON JAY GOODLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 November 2022
Appearances:	J Tarrant for Appellant D Young for Respondent
Judgment:	30 November 2022

JUDGMENT OF WYLIE J

(Appeal against conviction and sentence)

This judgment was delivered by Justice Wylie On 30 November 2022 at 11.00 am

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Hamilton Legal, Crown Solicitor at Hamilton J Tarrant, Hamilton

GOODLEY v NEW ZEALAND POLICE [2022] NZHC 3174 [30 November 2022]

Introduction

[1]    The appellant, Brendon Goodley, pleaded guilty to a representative charge of possessing an objectionable publication knowing or having reasonable cause to believe that it was objectionable.1 On 6 October 2022, he appeared before Judge D J McDonald in the Hamilton District Court for sentence.2 Mr Goodley applied for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The application was declined and a conviction was entered. Mr Goodley was sentenced to a term of imprisonment of 14 months.

[2]    Mr Goodley appeals against the Judge’s refusal to discharge him without conviction. If the Court upholds his conviction, he appeals his sentence, arguing that it is manifestly excessive.

[3]    The Crown submits that the Judge was correct to decline the application for a discharge without conviction. It did not, in its written submissions, address the end sentence imposed but in its oral submissions, it submitted that the end sentence was within the available range and that the Judge did not err in imposing it.

The offending

[4]    On 1 August 2019, Mr Goodley entered a WhatsApp chat group with a person identified by the name “Jas”. Between 1 August 2019 and 19 November 2019, Jas and Mr Goodley exchanged 367 electronic messages. A number of images and some videos were attached to some of the messages. In others, Mr Goodley commented on this material and discussed how he and Jas could meet each other in person.

[5]    During the course of the message exchange, Jas sent Mr Goodley 22 images and videos depicting young children, both male and female and ranging in age from toddlers to prepubescent children, engaging in sexual acts with other children or with adults. Ten of the images portrayed penetrative sexual activity; eight images and one video portrayed non-penetrative sexual activity; three images and one video were indecent, but did not fall within either of the first two categories.

1      Films, Videos, and Publications Classification Act 1993, s 131A. Maximum penalty 10 years’ imprisonment.

2      Police v Goodley [2022] NZDC 19760.

[6]    Jas and Mr Goodley discussed this material. By way of example, Mr Goodley responded to one image portraying penetrative sexual activity with the comment: “If only I had a cock like that”. Jas replied: “So didn’t scare you off”. Mr Goodley responded: “Nope”. When Jas sent another image showing a child involved in penetrative sexual activity, Mr Goodley replied: “Mmmm yum”. In a later message, Mr Goodley responded to Jas with the following: “No harm in looking is horny stuff”.

[7]    On 24 March 2022, a search warrant was executed at Mr Goodley’s home address. A number of electronic items were seized, including a cellphone, laptops and storage devices. At the time the summary of facts was prepared the police had not examined all of these devices.

[8]    When Mr Goodley was spoken to by the police, he stated that he didn’t want to receive the images and that he had made the mistake of not telling Jas this from the outset.

District Court sentencing notes

[9]    The Judge noted the application for discharge under s 106 of the Sentencing Act and he referred to applicable tests set out in s 107 of the Act.

[10]   The Judge turned first to assess the gravity of the offending. He characterised it as serious. He noted that Mr Goodley’s offending promoted or tended to promote the exploitation of children for sexual purposes; the images depicted sexual conduct with or by children and they exploited children’s nudity. The Judge took into account the number of publications and how long Mr Goodley had had them in his possession. He considered that the majority of the publications fell into the “worst category”. He noted the harm that such offending causes. He considered that the offending required an initial starting point of two years’ imprisonment. The Judge then turned to look at matters personal to Mr Goodley. He recorded that an early guilty plea had been entered and that a 25 per cent discount was appropriate for this. He referred to a psychological report that he had received. The writer expressed the view that Mr Goodley poses a very low risk of reoffending and noted that there is nothing to suggest that he presents a risk of contact sexual offending against children. While the Judge had some doubts

about some of the psychologist’s opinions, he nevertheless reduced the sentence by a further period of four months, to recognise the matters contained in the report.

[11]   The Judge then turned to consider the consequences for Mr Goodley if a conviction was entered against him. He noted that Mr Goodley would lose his job.

The Judge accepted that this was a “real consequence” for Mr Goodley.3

[12]   Next, the Judge turned  to  consider  proportionality.  He  commented  that Mr Goodley’s offending was “very serious offending” and that it justified a sentence of 14 months’ imprisonment.4 He stated as follows:5

One only has to look at where I got to at step one at 14 months’ imprisonment to know that you are never going to satisfy the disproportionality test. Your application to be discharged under s 106 is refused.

[13]   The Judge then went on to sentence Mr Goodley. He noted that there was nothing before him which allowed him to sentence Mr Goodley to an electronically monitored sentence and he commented that, in his view, offending of the type committed by Mr Goodley is serious and that there is a need to deter and denounce it. As a result, he convicted Mr Goodley and sentenced him to 14 months’ imprisonment. He did however reserve leave to Mr Goodley to apply for home detention. He directed that any application for home detention should be referred to him.

The appeal

[14]   An appeal against a refusal to discharge a defendant without conviction is an appeal against both conviction and sentence.6 The challenge is against the entry of a conviction and setting aside the conviction is a necessary prerequisite and objective of the appeal. In the event that the appeal is unsuccessful, an appellant can pursue, as a secondary objective, an appeal against the sentence imposed.7

3      Police v Goodley, above n 2, at [20].

4 At [21].

5 At [21].

6      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144; and Ovtcharenko v Police [2017] NZCA 65 at [5].

7      Jackson v R, above n 6, at [8]–[9].

[15]   The appeal is brought under s 232(2) of the Criminal Procedure Act 2011, on the basis that a miscarriage of justice has occurred either by virtue of a material error by the sentencing Judge in entering a conviction or, alternatively, if for any reason the Judge has erred in applying the principles for discharging an offender without conviction.8

[16]   The Court of Appeal recently noted in Singh v R that the question is, in essence, whether the District Court’s decision is wrong.9 It will only be in exceptional circumstances that an appeal against conviction will succeed if the appellant has pleaded guilty. The appellant must show that a miscarriage will result if his or her conviction is not overturned.10

[17]   Mr Goodley’s appeal against sentence is governed by s 244 of the Criminal Procedure Act. This Court, as the first appeal Court, must allow the appeal if it is satisfied pursuant to s 250(2) of the Act that for any reason there is an error in the sentence and that a different sentence should be imposed. In any other case, the Court must dismiss the appeal.

[18]   This Court, as the first appeal Court, does not start afresh nor simply substitute its opinion for that of the original sentencer. It must be shown that there was an error, whether intrinsically or as a result of additional material submitted on appeal.11 If there is an error, the appeal Court will then form its own view of the appropriate sentence.12

[19]   The Court will not intervene where the sentence imposed was within the range that can properly be justified by accepted sentencing principles.13

Submissions

[20]   Ms Tarrant, appearing for Mr Goodley, submitted that the Judge erred in applying the test for a discharge without conviction. She argued that the Judge

8      Gaunt v Police [2017] NZCA 590 at [9]; and Jackson v R, above n 6, at [12].

9      Singh v R [2022] NZCA 23 at [8].

10     R v Le Page [2005] 2 NZLR 845 (CA).

11     R v Shipton [2007] 2 NZLR 218 (CA) at [139].

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35]–[36].

13 At [36].

incorrectly classified the offending as serious and that he took into account irrelevant considerations in reaching that conclusion. She submitted that Mr Goodley’s offending was markedly less serious than that discussed in other cases. She then dealt with factors personal to Mr Goodley, noting his age, that he kept his employer informed, that he is extremely remorseful and ashamed by his offending and that he has shown significant insight into it. She put it to me that while offending of the kind committed by Mr Goodley is inherently serious, when viewed in context, the offending was not of such seriousness as to preclude a s 106 discharge. She then turned to the consequences of conviction and submitted that the Judge failed to take into account a relevant factor – namely the financial consequences for Mr Goodley of losing his employment if convicted. She argued that a conviction would have “an irremediable impact” on Mr Goodley and on his employment prospects. As a consequence, she submitted that the Judge erred in his proportionality analysis.

[21]   The appeal against sentence reiterated a number of the submissions made in regard to the conviction appeal. Ms Tarrant referred to a number of other cases, all of which she submitted were more serious, and argued that the starting point adopted by the Judge was too high. She also argued that the Judge failed to give Mr Goodley credit for the fact that he has no prior convictions.

[22]   Ms Young, for the Crown, argued that the Judge appropriately categorised the offending as serious, given the number and nature of the images exchanged and because they promoted and supported the exploitation of children for sexual purposes. She referred to the comments exchanged between Mr Goodley and Jas and argued that they increased the seriousness of the offending. It was noted that as at the time of sentencing, Mr Goodley had not engaged in any rehabilitative programmes and it was submitted that he was given an appropriate discount for his good record and for his early guilty plea by the Judge. She argued that, taking into account the aggravating and mitigating features of the offending and the matters personal to Mr Goodley, the gravity of the offending was appropriately categorised as serious. The consequences of the conviction were acknowledged. It was submitted that the Judge appropriately identified them and that he did not err when he held that the consequences were not sufficient to displace the proportionality test. It was argued that that test was correctly

applied and that the Judge did not err in declining the application for a discharge without conviction.

[23]   Ms Young commented only briefly on the sentence appeal. She submitted that the end sentence imposed was appropriate and within the available range.

Analysis

The appeal against the refusal to discharge Mr Goodley without conviction

[24]   If a person who is charged with an offence is found guilty or pleads guilty, before entering a conviction and imposing a sentence, the Court must consider whether the offender would be more appropriately dealt with by inter alia discharging the offender without conviction under s 106 of the Sentencing Act.14

[25]Relevantly, ss 106 and 107 read as follows:

106Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)A discharge under this section is deemed to be an acquittal.

…

107Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[26]   In Z (CA447/2012) v R, the Court of Appeal clarified the approach to be taken to applications under s 106.15 The Court stated as follows:

[21] As we have already noted, the discretion conferred by s 106 is only available if the court concludes that the consequences of conviction are out of all proportion to the gravity of the offending. Before the disproportionality test

14     Sentencing Act 2002, s 11(1)(a).

15     Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.

can be applied, an assessment of the gravity of the offending must be made.

…

[27] For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A (CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

(Footnotes omitted.)

[27]   The s 107 test focuses on the seriousness of the offence committed and the offender’s culpability. It does not focus on how serious the offending is in comparison to other examples of the same offence.16

[28]   The starting point must be that the possession of child sexual abuse material is serious offending.17 This is reflected by a relatively recent legislative amendment. The maximum penalty for the offence was increased in 2015 from five years’ imprisonment to 10 years’ imprisonment.18 On introducing the bill, the then Minister of Justice described the “creation and dissemination of objectionable material [as] a revolting scourge on our society … [and] an evil that abuses and revictimises some of the most innocent and vulnerable amongst us”.19 The Minister said that the increase in the maximum penalty better reflected the seriousness of the offending.20

[29]In Mr Goodley’s case, his culpability is aggravated by a number of factors:

(a)the nature of the material. Some of the images were more serious than others. As noted, 10 of the images portrayed penetrative sexual activity. Eight images and one video depicted non-penetrative sexual activity and a further three images and one video were indecent. Viewed

16     Z (CA447/2012) v R, above n 15, at [31].

17     Police v L [2016] NZHC 455 at [23(c)].

18     Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act 2015, s 6.

19     (2 April 2015) 704 NZPD 2891.

20     (2 April 2015) 704 NZPD 2892.

together, the nature of the material cannot be characterised as anything other than serious;

(b)the number of objectionable publications. Mr Goodley was in possession of 22 images and videos;

(c)the length of time over which Mr Goodley was in possession of the images. It may however be that the Judge placed excessive weight on this factor. It appears from the sentencing notes that he considered that the images were on Mr Goodley’s electronic devices when he was arrested, some two and a half years after he came into possession of the images. That may not have been the case. Although it is not clear from the summary of facts to which Mr Goodley pleaded, it may be that  Mr Goodley was only in possession of the objectionable material for the six-week period over which he was messaging Jas. Mr Goodley was of course entitled to be sentenced by reference to the summary of facts to which he entered his guilty plea. Even allowing for this, he was in possession of the objectionable material for an extended  period.  Mr Goodley plainly had time to reconsider his choice to receive the material in the first place. He did not immediately delete it; he continued to engage with Jas.

[30]   Ms Tarrant argued that Mr Goodley did not actively seek out the material in the sense that he did not search for it himself. I do not accept that his culpability can be characterised in this way. He may not have sought out the images, but as noted by the Judge, Mr Goodley continued to engage in the WhatsApp conversation with Jas over a six-week period. It is clear from the sample discussions recorded above that Mr Goodley was receptive to the images that had been sent.

[31]   I accept that there are personal mitigating factors, in particular, Mr Goodley’s guilty plea, his previous good character and his lack of prior convictions. The material in the psychologist’s report is also helpful to Mr Goodley. It was the psychologist’s opinion that Mr Goodley’s offending was out of character and driven by his desire to form a connection with Jas. The psychologist expressed the view that there is nothing

to suggest that Mr Goodley holds deviant sexual interests. The psychologist was also of the opinion that Mr Goodley poses a very low risk of sexual reoffending. She noted that he expressed shame, remorse and regret for his offending and empathy with the children who had been exploited. She was of the view that these sentiments were genuine. I accept that these various matters mitigate Mr Goodley’s culpability.

[32]   Nevertheless, taking all of these various matters into account, I do not consider that the Judge erred when he found that Mr Goodley’s offending was serious.

[33]   The next stage in the analysis was to consider the direct and indirect consequences of a conviction. The principal consequence noted by the Judge was that Mr Goodley would lose his job if he was convicted of the offending.

[34]   In Doyle v R, the Court of Appeal set out the accepted approach when reduced employment prospects are said to be the consequence of a conviction.21 The Court noted as follows:

[39] When determining the effects of conviction on employment, the court must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness. The question is whether there exists a real and appreciable risk that the relevant consequence will happen. The stated consequence of a conviction may be a question of fact that is capable of proof in the ordinary way. Evidence of employers’ attitudes may not be available however, in which case the court must use what evidence is available and take judicial notice of facts where appropriate.

(Citations omitted.)

[35]   Mr Goodley’s employment has been affected – he lost his job. I also accept that there is a risk that Mr Goodley’s future employment prospects will be detrimentally affected by a conviction, particularly if he seeks employment in his chosen field (as a support worker for disabled people). Possession of child sexual abuse material carries a high stigma, for good reason. It is the kind of offending which many employers are unlikely to look past, despite the prospective employee’s skills.

21     Doyle v R [2022] NZCA 307.

[36]   This however is not the end of the matter. A conviction almost always carries with it an appreciable risk that employment prospects may be detrimentally affected.22 This has been recognised by the Courts and generally some specific and disproportionate threat to future employment prospects must be identified before employment prospects will be considered relevant to an application for a discharge without conviction. This Court has observed as follows:23

[27] Whether the consequences of a conviction are proportionate or disproportionate will depend on a range of factors, including whether the conviction is relevant to a person’s suitability for a particular role. If a conviction is entirely irrelevant to the role sought, but is nevertheless likely to pose a significant impediment to employment (for example because a company has a zero tolerance policy towards job applicants with convictions) then there is a clear risk that the consequences of a conviction will be disproportionate.

[37]   Here, Mr Goodley was employed as a support worker. He was responsible for the care of vulnerable disabled adults. On the view most favourable to Mr Goodley, his conviction demonstrates very poor judgment and a willingness to ignore the abuse of vulnerable children in pursuit of his own sexual interests. That is a trait which is plainly unsuitable in those involved in the disability support services industry which necessarily relies on high trust in those caring for the vulnerable. There is however no evidence to suggest that Mr Goodley will likely find it difficult to find employment in another industry. In any event, the Courts have generally accepted that prospective employers have the right to know of a prospective employee’s convictions. The Courts will not generally usurp a prospective employer’s decision as to the significance of a particular conviction.

[38]   I accept that there were direct consequences of a conviction for Mr Goodley’s employment although the consequences for his future employment prospects are less clear. There is also the indirect consequence that Mr Goodley will likely face financial disadvantage if he cannot find employment (although I have no evidence before me as to his means). The Judge did not expressly refer to this indirect consequence.

22     Trembath v Police [2019] NZHC 662 at [26].

23     Carpenter v Police [2021] NZHC 1634 per Katz J.

[39]   I turn to consider whether or not the identified consequences for Mr Goodley are out of all proportion to the gravity of the offence. The offending was serious. While there were direct and indirect consequences for Mr Goodley, I am not, on the materials before me, satisfied that those consequences were out of all proportion to the gravity of the offence. It follows in my view that the Judge did not err by declining to discharge Mr Goodley without conviction.

[40]I now turn to consider the appeal against sentence.

The appeal against sentence

[41]   Ms Tarrant argued that the starting point imposed by the Judge was too high. She further argued that Mr Goodley should have received not only a full guilty plea discount but also a credit for his previous good character and for the fact that he has no criminal history.

[42]   Ms Tarrant recited a number of cases in support of her argument regarding the starting point. Some of them predated the amendment to the maximum sentence in 2015. This makes direct comparison difficult.

[43]   In Snell v R, Downs J reviewed post-amendment cases dealing with the knowing possession of objectionable publications.24 He noted that the case pool involving possession only offences is small.25 He reviewed the case law. In many of the cases, the possession charge was “almost an aside” because the defendants had committed other sexual crimes.26 Other cases involved more serious instances of possession. Some also involved distribution, which is a more serious offence. As the Judge observed, moderately serious possession cases appear to attract starting points ranging between 12 months to something less than seven years’ imprisonment. He suggested that sentencing for possession of objectionable publications requires, amongst other things, consideration of:

(a)the suite of aggravating factors identified in s 132A of the Films, Videos, and Publications Classification Act;

24     Snell v R [2022] NZHC 1627.

25 At [53].

26 At [53].

(b)the number of publications;

(c)the nature of the publications;

(d)the offence period (and curation if any);

(e)harm, which will usually be linked to the above matters.

[44]   In the present case, the Judge addressed the s 132A matters. He was required to do so and it is not suggested that he erred in this regard. There were 22 publications in Mr Goodley’s possession. Most other cases involve more publications but the size of the collection is less important than it once was.27 The Judge considered the nature of  the  publications  by  reference  to  the  sentencing  guidelines  used  in  the United Kingdom. Again, his analysis in this regard cannot be faulted and it is not challenged. The Judge also considered the duration of the offending (although, as noted above, arguably he erred in this regard). The Judge also commented on the harm to the children portrayed in the images.

[45]   There is nothing to suggest that Mr Goodley actively sought out the images. Nor is there anything to suggest that he collected them or curated them in any way.

[46]   Mr Goodley’s offending was broadly similar to that in R v Lawes.28 There, the offender imported 59 images and was found in possession of 296 in total. Nineteen involved penetrative sexual activity although none depicted sexual violence or bestiality. A further 129 involved non-penetrative sexual activity. Taking into account the relatively small number of images and absence of highly concerning content (such as particular sexual violence or bestiality) I adopted a starting point of two years’ imprisonment. This was applied as an uplift to the starting point sentence for much more serious (but related) offending.

[47]There is no other directly comparable case law of which I am aware.

27     Stewart v Department of Internal Affairs [2014] NZHC 2209 at [42].

28     R v Lawes [2018] NZHC 2448.

[48]   Considering matters in the round, I consider that the starting point of two years’ imprisonment adopted by the Judge was too high. In my judgment, a more appropriate starting point would have been one of 18 months’ imprisonment.

[49]   I turn to consider mitigating factors personal to Mr Goodley.   As noted,     Ms Tarrant argued that the Judge erred by not allowing Mr Goodley a discount for his previous good character, in addition to the 25 per cent discount for his guilty plea.

[50]   The 25 per cent discount for the guilty plea was clearly appropriate. It was entered at the first reasonably available opportunity.

[51]   I also  agree  that  a  credit  for  previous  good  character  was  warranted.  Mr Goodley is 42 years old. He has no prior convictions. The psychologist’s report characterised his offending as being out of character. A discount for previous good character was appropriate, to recognise that, for Mr Goodley, a conviction of this sort is a “fall from grace”. That is a punishment in itself.29 The Judge did not allow a discount for this factor. In my view, he also erred in this regard. A five per cent discount should have been allowed to Mr Goodley for his previous good character.

[52]   The total credit to be given to Mr Goodley is complicated by the Judge allowing a four-month discount for the matters contained in the psychologist’s report. It is not clear from the sentencing notes what the basis for this discount was – whether it was rehabilitative prospects, remorse, personal circumstances or a combination of these factors.

[53]   In my judgment, the most relevant factors outlined in the psychologist’s report are that Mr Goodley poses a very low risk of sexual reoffending, that he has good rehabilitative prospects and that he is genuinely remorseful and ashamed. In my judgment, these factors are worthy of credit.  I would allow Mr Goodley a further   10 per cent discount to recognise these various matters.

[54]   It follows that, in my view, Mr Goodley should have been allowed a 40 per cent discount from the starting point sentence. I therefore consider that the appropriate

29     Davidson v R [2011] NZCA 356 at [16].

end sentence is one of 10 months and two weeks’ imprisonment (allowing for rounding). This is within the range where a sentence of home detention can be substituted. The Judge granted Mr Goodley leave to apply for home detention. If he can propose a suitable address, that may well be the appropriate sentencing outcome, given the matters identified in the psychologist’s report.

[55]   If a sentence of home detention is substituted, Mr Goodley will only be registered on the Child Sex Offender Register if the Court makes a registration order.30 The Court can make such an order if the offender poses a risk to the lives or sexual safety of one or more children or of children generally.31 Whether or not such an order is appropriate will be for the Court that will be tasked with deciding whether the sentence should be commuted to a sentence of home detention, in the event that     Mr Goodley makes application in this regard.

Result

[56]   The appeal against the refusal to enter a discharge without conviction is dismissed.

[57]The appeal against sentence is allowed.

[58]   The sentence of 14 months’ imprisonment imposed by the Judge is quashed. It is substituted with a sentence of 10 months and two weeks’ imprisonment.

[59]   Leave is reserved to Mr Goodley to apply for home detention if a suitable address can be found. Any application for home detention need not be referred to Judge McDonald. It can be referred to any available District Court Judge.

Wylie J

30     Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 7 and 10.

31     Section 9(2).