Gordon-Stables v The King - [2023] NZHC 345

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-000002

[2023] NZHC 345

BETWEEN
MATTHEW PAUL JOHN GORDON- STABLES

Appellant

AND

THE KING

Respondent

Hearing: 28 February 2023

Appearances:

P M Keegan for the Appellant H Bullock for the Respondent

Judgment:

28 February 2023

ORAL JUDGMENT OF VAN BOHEMEN J

[Appeal against refusal to grant discharge without conviction]

Counsel/Solicitors:
P M Keegan, New Plymouth Crown Solicitor at New Plymouth

GORDON-STABLES v R [2023] NZHC 345 [28 February 2023]

[1] Matthew Gordon-Stables pleaded guilty to ten charges of possessing objectionable material under s 131(1) of the Films, Videos and Publications Classification Act 1993 (the Act). The maximum penalty for an offence by an individual under s 131(1) is a fine of $2,000.

[2] On 27 January 2023, Mr Gordon-Stables was convicted and discharged without further penalty by Judge A S Grieg in the District Court at New Plymouth.1 The Judge declined an application for a discharge without conviction.

[3] Mr Gordon-Stables appeals the Judge’s decision to decline his application for a discharge without conviction on the grounds that the Judge exaggerated the severity of his offending and was wrong to refuse him a discharge without conviction.

The offending

[4] The following summary of offending is taken from the Police summary of facts to which Mr Gordon-Stables pleaded guilty.

[5] On 26 June 2019, Mr Gordon-Stables created an account on a secure online cloud storage and networking service called Mega. Mega account holders are able to share digital media and links to images, movies and documents, and can also communicate on the platform via private messaging. Mr Gordon-Stables created the account with his email address.

[6] In July 2019, Mr Gordon-Stables was sent a number of files containing objectionable images and videos depicting child abuse and exploitation. It is not known who sent these. The material contained 508 videos and 178 image files, nearly all of which depicted child sexual abuse and exploitation.

[7] The materials remained in Mr Gordon-Stables’ possession until his account was suspended on 23 October 2019 by Mega New Zealand. The statement of facts does not state that Mr Gordon-Stables downloaded or viewed the images.

1 R v Gordon-Stables [2023] NZDC 1384.

[8] On 29 April 2021 Police executed a search warrant of Mr Gordon-Stables’ address and seized two cellphones, which later forensic analysis revealed contained further child exploitative material. When spoken to by the Police, Mr Gordon-Stables admitted to receiving the child exploitation material but stated that he deleted it shortly after receiving it.

[9] Mr Gordon-Stables was originally charged with possession of objectionable publication with knowledge under s 131A(1) of the Act. To be convicted under that section, which carries a maximum penalty of 10 years’ imprisonment, a person must have known or had reasonable cause to believe that a publication in their possession was objectionable. However, the Police subsequently amended the charges to possession of objectionable material alone under s 131(1), to which Mr Gordon-Stables pleaded…

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 Gordon-Stables v The King

Details

AGLC: Gordon-Stables v The King [2023] NZHC 345
Case: [2023] NZHC 345
Decision Date: 28 February 2023

CaseChat Overview and Summary

Matthew Gordon-Stables was convicted in the District Court of ten charges of possessing objectionable material, contrary to s 131(1) of the Films, Videos and Publications Classification Act 1993. He appeals against the Judge’s refusal to grant him a discharge without conviction. The appeal raises two issues. The first is whether the sentencing Judge erred in his assessment of the gravity of Mr Gordon-Stables’ offending and, therefore, in his application of the applicable principles under s 107 of the Sentencing Act 2002. The second issue is whether Mr Gordon-Stables should be granted a discharge without conviction. The appeal was allowed, the conviction quashed, and Mr Gordon-Stables discharged without conviction. The sentencing Judge erred in his assessment of the gravity of Mr Gordon-Stables’ offending. The Judge gave prominence to the troubling nature of the material generally rather than the circumstances of Mr Gordon-Stables’ offending. The references to the conviction as the modern equivalent of branding and the cutting off of noses and ears also suggest a focus on conveying moral opprobrium rather than addressing the gravity of the specific offending for which Mr Gordon-Stables was being sentenced. In these respects, when assessing the gravity of the offending the Judge failed to give sufficient regard to the particular circumstances of Mr Gordon-Stables’ offending. I am satisfied that the Judge erred in his assessment of the gravity of Mr Gordon-Stables’ offending. I am satisfied that, as accepted by the Police at sentencing, Mr Gordon-Stables’ offending was at the low end of the spectrum. Mr Gordon-Stables should be granted a discharge without conviction. In Police v L, Ellis J upheld a discharge without conviction for an appellant who had pleaded guilty to 47 charges of possessing an objectionable publication, knowing or having reasonable cause to believe that the publication was objectionable. That case concerned the more serious offence of possession with knowledge. The images in the defendant’s possession were similar to, but also more objectionable than some of the material in Mr Gordon-Stables’ possession. In assessing the gravity of the appellant’s offending, Ellis J considered both the aggravating and mitigating features of the offending and the appellant himself. Her Honour concluded, in agreement with the sentencing Judge, that the overall gravity of the offending was “at the lower range of the scale”. Her Honour held that the convictions would almost certainly operate as a complete bar to the appellant’s future employment in his chosen area of work and held that the direct and indirect consequences of conviction would be out of all proportion to the gravity of his offending, when that gravity was assessed in the broad sense required by law. In this case, a conviction would constrain Mr Gordon-Stables’ already limited ability to find employment, whether as a shelf-stacker in a supermarket or more generally. Given Mr Gordon-Stables’ health conditions, his repressed personal circumstances and his lack of full-time paid employment to date, I consider that a conviction could well result in locking Mr Gordon-Stables out of employment entirely. If so, that would deprive him of the possibility of attaining a measure of self-sufficiency and limit his ability to live an independent life. I consider that those consequences, when considered against the low gravity of Mr Gordon-Stables’ offending, are out of all proportion to the offending and weigh in favour of a discharge without conviction, particularly when regard is had to Mr Gordon-Stables’ health and welfare issues, his lack of previous convictions and his genuine efforts at rehabilitation.

Orders