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 guilty.

[10]   Under s 131(2A), a person can have an electronic publication in their possession for the purposes of subsection (1), even though their custody or control of the publication does not include intentionally or knowingly using a computer or other electronic device to save the publication or a copy of it.

Pre-sentence report

[11]   The pre-sentence report prepared for Mr Gordon-Stables said that Mr Gordon- Stables agreed with the Police summary of facts, understood the charges against him, and that he was remorseful for his offending.

[12]   The report noted that Mr Gordon-Stables was assessed for offence related sexual arousal and that he is was not considered to have a rehabilitative need in that regard. Furthermore, Mr Gordon-Stables was assessed as not having any rehabilitative needs that he was not already addressing in the community via Wellstop, a New Plymouth based organisation which provides counselling and therapy for sexual harm.

[13]   The report recorded that Mr Gordon-Stables lives his with mother and that both are supported by local care agencies. Because he has Asperger’s Syndrome and Attention  Deficit  Hyperactivity  Disorder  (ADHD),  Mr Gordon-Stables  receives a

benefit, which covers his rent, and other outgoings. He is currently looking for employment as a night shelf filler at a supermarket and, apart from door-to-door sales, he has never experienced full time employment.

[14]   The report described Mr Gordon-Stables lifestyle as “oppressively quiet, slavishly demeaning” and consisting mainly of “looking after his invalid mother and pushing her around town in a wheelchair”. According to the report writer, because of the limitations placed on him by his mother, Mr Gordon-Stables has “never had the opportunity to develop the confidence needed to make an independent life”.

[15]   Finally, the report noted that Mr Gordon-Stables was able to describe the negative effect abuse would have on the victims of the child sexual abuse images he had downloaded and that he felt very sad and sorry for the victims. The report also noted that “over the course of two lengthy interviews, the writer was able to ascertain that despite Mr Gordon-Stables’ cognitive ability being very limited he understood his actions to be “wrong” and he is receiving counselling from Wellstop, which is helping him to develop appropriate skills to deal with his sexuality”.

District Court decision

[16]   The Judge noted that, Mr Gordon-Stables had pleaded guilty to 10 charges under s 131(1) of the Act and that a charge under that section was the significantly lesser of the two charges available for this type of offending.

[17]   The Judge read an extract from the amended summary of facts that began with general statements about the nature of child exploitation material and why publication of such material is deemed to be objectionable in New Zealand. After recounting the essential facts of Mr Gordon-Stables’ offending, the Judge referred to discussions he had had with a New Zealand detective who had visited Thailand and had seen the reality of the lives of children who are sexually exploited for their images. The Judge observed that such children were victims created for the sexual gratification, usually of European men.

[18]   The Judge noted that Mr Gordon-Stables has a mild intellectual disability, Asperger’s syndrome, attention deficit disorder and no previous convictions. He

quoted the observations of the pre-sentence report writer about Mr Gordon-Stables’ life and circumstances, including the statement that Mr Gordon-Stables had “never had the opportunity to develop the confidence needed to make an independent life for himself”. The Judge also noted Mr Gordon-Stables’ desire to obtain a drivers’ license, to work as a night shelf filler, and his appreciation of why the law regarded the possession of child sexual images as serious.

[19]   The Judge accepted that a conviction would create a problem for Mr Gordon- Stables’ future employment and noted that that was the purpose of a conviction. The Judge observed:2

We used to brand people’s faces and cut their noses and ears off and this is the modern equivalent. It is to provide a warning. It does create a stigma and a conviction of this nature is particularly stigmatising.

[20]   The Judge discussed the four elements required to be proved to the criminal standard for a s 131 conviction to be substantiated, as set out in Meyrick v Police. He noted that two of the elements provided that a defendant knew what they controlled and had an intention to control.3 Because of the guilty plea, the Judge held that he had to accept Mr Gordon-Stables had the required degree of knowledge.

[21]The Judge concluded:

[19] I confess that I am troubled by this and it is very, very finely balanced but in the end this material is so objectionable and for good reason as I have tried to spell out to you, that whilst I accept that this is going to be quite a severe mark in terms of how the rest of the world might view your conviction, I just cannot say that the consequences outweigh the severity of the offence.

Submissions for Mr Gordon-Stables

[22]   Mr Keegan, counsel for Mr Gordon-Stables, acknowledges that it is implicit in Mr Gordon-Stables’ plea that he had possession of the objectionable material and, therefore, control over what was sent to him and knowledge of what it was. However, Mr Keegan emphasises  that the objectionable  material came unsolicited and that  Mr Gordon-Stables did not seek to acquire it in any way.

2 At [14].

3      Meyrick v Police HC Hamilton CRI-2005-419-58, 31 July 2017 at [157].

[23]   Mr Keegan notes that s 131(1) is a fine only offence with a relatively low penalty. He submits that the offending and Mr Gordon-Stables’ knowledge and control of the material must be seen in that light, as compared with s 131A, which prescribes a maximum penalty of ten years’ imprisonment.

[24]   Mr Keegan submits that Mr Gordon-Stables’ culpability is low and that his personal limitations, as recorded in the pre-sentence report as accepted by the Judge, further reduce the gravity of his offending. Mr Keegan submits that a conviction will create a potential barrier to employment and the independent life that Mr Gordon- Stables aspires to attain. He submits that the Judge effectively regarded the material as so egregious that it precluded a discharge without conviction and that the Judge erred in doing so.

Submissions for Police

[25]   Ms Bullock, counsel for the Police, refers to the four elements of s 131 offending as set out in Meyrick v Police. She also refers to the guidelines from the Sentencing Council of England and Wales and that the Court of Appeal have endorsed the predecessor guidelines as “a useful guide for New Zealand”.4

[26]   Ms Bullock also refers to Mander J’s observation in Walker v Police that the consequences of a conviction to an offender’s employment are “generic, if not inevitable”, and that it is necessary to “point to some acute repercussion personal to the offender which may result in a consequence wholly disproportionate to the seriousness of the offence”.5

[27]   Ms Bullock submits that, in light of the applicable principles, the gravity of Mr Gordon-Stables’ offending in s 131 terms should be considered “mid-range” in terms of seriousness. Ms Bullock submits that the material found in Mr Gordon- Stables’ possession fits largely within the most serious category of offending under the United Kingdom Guidelines, and that the extremely young age of the child victims in the material is an aggravating factor.

4      R v Zhu [2007] NZCA 470 at [12]-[15].

5      Walker v Police [2016] NZHC 1450 at [23].

[28]   Ms Bullock acknowledges that Mr Gordon-Stables will suffer real and appreciable risks to his general employment prospects but says these are not out of all proportion to the gravity of his offending.

Applicable principles

[29]   Under s 106 of the Sentencing Act, the Court has discretion to discharge an offender without a conviction. However, the discretion must be exercised in accordance with s 107, which provides:

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.

[30]   An appeal against a refusal to grant a discharge without conviction is an appeal against both a conviction and sentence.6 An appeals must be allowed if the appellate judge concludes that a “miscarriage of justice” has occurred,7 either because the sentencing judge made a material error in entering the conviction or because they erred in applying the principles for discharging a conviction under s 107.8 If the appellate court is satisfied that the sentencing court so erred, the appellate court must make its own assessment of the application’s merits.9

[31]   In determining whether a discharge without conviction could have been granted, the Court must consider: 10

(a)the gravity of the offence;

(b)the direct and indirect consequences of a conviction; and

(c)whether those consequences are out of all proportion to the gravity of the offence.

6      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]-[8].

7      Criminal Procedure Act 2011, s 232(2)(b) or (c).

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

9      Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141

10     Z (CA447/2012), above n 2, at [26]-[28].

[32]   In assessing the gravity of the offence, the Court must take into account the aggravating and mitigating features of both the offending and the offender.11 The Court must also be satisfied that there is a “real and appreciable” risk that any given consequence of a conviction will happen.12

[33]   In my view, Mr Gordon-Stables’ appeal raises two issues. First, did the sentencing Judge err in his assessment of the gravity of Mr Gordon-Stables’ offending and, therefore, in his application of the applicable principles under s 107? Secondly, if the Judge did so err, should Mr Gordon-Stables be discharged without conviction?

Did the Judge err in assessing the gravity of Mr Gordon-Stables offending?

[34] The District Court Judge made no specific finding as to the gravity of Mr Gordon-Stables’ offending. However, it is apparent from the Judge’s concluding remarks as set out at [21] above that the Judge considered the offending to be serious enough to warrant a “severe mark in terms of how the rest of the world might view [Mr Gordon-Stables’] conviction.” I infer from that statement that the Judge considered the offending to be less than low in terms of gravity.

[35]   It is also apparent from those remarks that the Judge was concerned about the general nature of the offending for which Mr Gordon-Stables had been charged, regardless of Mr Gordon-Stables’ actual offending. This is also evident from the Judge’s reference to the general material in the summary of facts and the Judge’s references to what he had learned from the detective who had visited Thailand.

[36]   Although the Judge went on to consider Mr Gordon-Stables’ “particular circumstances and limitations” as set out in the pre-sentence report, in his concluding remarks, again the Judge gave prominence to the troubling nature of the material generally rather than to 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

11 At [27].

12     R v Taulapapa [2018] NZCA 414 at [22].

addressing the gravity of the specific offending for which Mr Gordon-Stables was being sentenced.

[37]   I consider that, 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.

[38]   I also consider the Judge erred in his application of the principles set out in Meyrick v Police. The knowledge imputed under those principles in that a defendant knew what they controlled and had an intention to so control. It is not that a defendant knew or had reasonable cause to believe that the material was objectionable. That level of knowledge is the specific focus of s 131A. The Judge’s remarks as set out at [21] above suggest he considered that Mr Gordon-Stables had actual knowledge of and responsibility for the objectionable material on his computer.

[39]   For these reasons, 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.

Should Mr Gordon-Stables be granted a discharge without conviction?

[40]   Mr Gordon-Stables’ counsel has handed up a medical report which shows that, in addition to the medical conditions described in the pre-sentence report, Mr Gordon- Stables also suffers from asthma, coronary heart disease and congenital muscular dystrophy and has a hole in the heart.

[41]   It is apparent from these conditions that Mr Gordon-Stables’ health and life are severely constrained by his personal health issues and by the demands placed on him by his mother and her situation. While Mr Gordon-Stables received and retained objectionable material, it is not surprising that someone in his circumstances explored the internet. Nor, unfortunately, is it surprising that he received unsolicited objectionable material. Possession of such material cannot be condoned. But, for a man in Mr Gordon-Stables’ situation, they do not warrant social opprobrium and they

do not warrant cutting Mr Gordon-Stables off from the few opportunities he may have to develop a measure of economic and social self-sufficiency.

[42]   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.13 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.

[43]   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”.14 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.

[44]   As acknowledged by the District Court Judge in the present 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.

[45]   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

13     Police v L [2016] NZHC 455.

14 At [29].

Mr Gordon-Stables’ health and welfare issues, his lack of previous convictions and his genuine efforts at rehabilitation.

Result

[46]I grant Mr Gordon-Stables’ appeal and quash his conviction.

[47]I discharge Mr Gordon-Stables without conviction.

G J van Bohemen J