Gray v Police
[2025] NZHC 2843
•29 September 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2025-412-000067
[2025] NZHC 2843
BETWEEN WARREN RICHARD GRAY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 September 2025 Appearances:
A W Belcher for Appellant (via VMR) J C Collins for Respondent (via VMR)
Judgment:
29 September 2025
JUDGMENT OF PRESTON J
This judgment was delivered by me on 29 September 2025 at 3.00 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
GRAY v NEW ZEALAND POLICE [2025] NZHC 2843 [29 September 2025]
Introduction
[1] The appellant Warren Richard Gray, aged 62, was sentenced to a total term of 20 months’ imprisonment after admitting two charges of burglary1 and one charge of possession of objectionable material.2
[2] Mr Gray appeals the sentence as manifestly excessive, due to the uplift imposed in respect of the objectionable material offending. Further, he says the Judge ought to have commuted his sentence to one of home detention.3
The offending
[3] Between June and August 2024, the student occupants of a flat in North Dunedin noticed their clothing was going missing from their laundry and installed CCTV. On 6 August 2024, at 6.20 am Mr Gray was captured on CCTV entering the laundry of that flat and taking clothing, including underwear, from the washing machine and dryer.
[4] On 28 September at 9.30 pm, Mr Gray entered the shared yard of two other flats in North Dunedin. One of the occupants heard a noise in the backyard, and went to investigate, having also had clothing and underwear recently stolen from their laundry. The occupant confronted Mr Gray and recorded the interaction. Mr Gray told him he was looking for his girlfriend and left the address.
[5] On 19 November 2024 a search warrant was executed at Mr Gray’s address. Clothing belonging to the victims, including hundreds of pairs of men’s underwear, were located at the address.
Objectionable publication
[6] Mr Gray’s cell phone was also seized and subsequently searched, after detection of apparent objectionable material.
1 Crimes Act 1961, s 231(1)(a)—maximum penalty 10 years’ imprisonment.
2 Films, Videos & Publications Classification Act 1993, s 131A(1)—maximum penalty 10 years’ imprisonment or $50,000 fine.
3 Police v Gray [2025] NZDC 19043.
[7] Analysis of the cell phone detected three videos depicting bestiality involving adult males. Two of the videos depicted penetrative sexual activity. I adopt the Judge’s outline at sentencing:
[9] … One shows a black and white calf licking a Caucasian male’s erect penis, that was downloaded on 10 May 2024. A second video showing a partially naked Caucasian male who positions himself in a bent over position, a black horse with an erect penis then mounts the male from behind and the male uses his hand to guide the horse’s penis into his anus. The horse penetrates the man’s anus multiple times. This is filmed from a side-on point of view and from front on.
[10] Finally, there is a screen recording of a brown short haired dog standing over a Caucasian male that is lying face-down on the ground. That dog inserts its penis into the man’s anus multiple times. The man touches the dog’s genitalia while the dog penetrates the anus. It is filmed from behind the dog so you cannot see the male’s face.
[8] When questioned about the objectionable nature of the material, Mr Gray told police “Well it depends on who’s looking at it”.
Victim Impact
[9] Impact statements from the victims of the burglaries were before the Judge. These variously describe levels of stress, anxiety, and the loss of the sense of safety in their homes due to that offending. The victims had experienced trouble sleeping, frustration at the loss of their clothes and feelings of discomfort and disturbance at the realisation the offending was committed while they were asleep in their homes.
Pre-sentence report
[10] Mr Gray has a criminal history including 30 convictions between 1981 and 2017, the significant majority of which are for low level theft and other dishonesty offending. Relevantly, there are convictions for burglary (2007) and four convictions, during 2008, 2013 and 2017, for being unlawfully in a yard or building, all of which were met by community-based sentences.
[11] The pre-sentence report writer noted the increase in the seriousness of Mr Gray’s present offending demonstrated by its sexual aspect. Mr Gray did not accept the summary of facts in relation to the objectionable publications offending nor the burglaries. He denied any sexual arousal in relation to the videos. He stated he
watched the material at a party with some associates and did not know how the videos were then copied to his phone. He told the report writer that he only pleaded guilty to avoid a long court process, on the advice of his lawyer.
[12] On the basis of those denials and his extensive history of theft and being unlawfully in yards, the report-writer assessed Mr Gray as at a high risk of similar offending and a moderate risk of harm to others. The report writer recommended a sentence of imprisonment due to the recidivist nature of the offending, the potential for harm to victims, and the harmful sexual behaviour involved in the offending.
District Court Decision
[13] The Judge had regard to Mr Gray’s previous convictions for burglary and unlawful presence in a building or yard. He considered the pre-sentence report “troubling”, noting the denial of any sexual arousal in relation to the publications and rejecting Mr Gray’s claim not to know how they were copied to his phone.4
[14] The Judge adopted a starting point of 20 months’ imprisonment on the lead offending, the burglary charges.5 For the objectionable publications offending, the Judge aimed for consistency with “such authorities as there are in this area” and identified two cases involving a similarly low number of publications.6 Both cases involved possession of terrorism-related material; in one instance two (videos of) religious hymns with overlay of images of a machine gun and terrorist flag,7 in the other the possession of a video of the Christchurch mosque shooting, in the days following that tragedy.8 These were met with starting points of six months’ and 12 months’ imprisonment, respectively. The Judge remarked:
[37] Making such assessments as I can, in my judgment, the appropriate uplift on a totality basis would be for three months. If I sentenced on its own, it would be nine months, but on a totality basis I uplift by six months to a total of 26 months.
4 At [17]–[19].
5 At [32].
6 At [34]–[36].
7 R v S [2021] NZHC 1669. Fitzgerald J considered a starting point of six months to be “well within the appropriate range”: at [31].
8 Noble v Police [2020] NZHC 1781.
[15] Having regard to the sentences imposed in respect of the relevant prior convictions, the Judge did not apply any uplift for previous convictions. A credit of 20 per cent was applied for guilty pleas. There was no basis for any credit for remorse or insight into the offending, given Mr Gray’s comments to the probation officer. The end sentence was therefore 20 months’ imprisonment.
[16] Turning to the question of home detention, the Judge noted the decision of the Court of Appeal in Ibbetson, which held that the fundamental purposes of sentencing in the area of objectionable publications offending are deterrence, denunciation and accountability.9 He did not consider those purposes were adequately addressed by a sentence short of imprisonment. To add to that, there was Mr Gray’s lack of remorse, denials of the offending, and attempts to shift the blame for the offending. The denials of offending, in particular, went directly to whether Mr Gray could or would effectively participate in a rehabilitation programme. The end sentence was therefore one of imprisonment.
Submissions
[17] In reliance on the 2008 decision Harding v Department of Internal Affairs,10Mr Belcher submits that the six month uplift for the objectionable publications offending was excessive. Mr Belcher submits that, because the publications did not involve children, a community based sentence would be appropriate had those charges been sentenced alone. An uplift of one month would be appropriate.
[18] Mr Belcher also contends that a full 25 per cent discount ought to be applied for guilty plea, as the summary of facts was amended and Mr Gray then promptly entered guilty pleas. As for home detention, Mr Belcher submits that sentence would be “well in range”.
[19] For the respondent, Mr Collins submits the uplift was available, having regard to the guidance of the Court of Appeal in Patel v R and the aggravating features here. Notwithstanding the material involved adult bestiality, counsel notes that offence
9 Ibbetson v R [2011] NZCA 228 at [50].
10 Harding v Department of Internal Affairs HC Hamilton CRI-2008-419-53, 29 October 2008.
remains criminalised in New Zealand, consistent with the criminalisation of possession of material in which it is depicted. Overall, it is submitted, the sentence was not manifestly excessive and given the sexual overlay to all the offending, the decision not to convert to home detention was correct.
Approach
[20] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed.
[21] My focus is on whether the end sentence is within the available range. This is as an appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.11 In context of an appeal in which one component of a composite sentence (and, additionally, the refusal to commute to home detention) is challenged, the court considers that challenge in context of the overall term imposed.
Analysis
Uplift for objectionable publications offending
[22] Mr Belcher primarily advances the appeal on the basis of Harding v Department of Internal Affairs.12 However, that case is of limited assistance as it primarily concerned child abuse material to which the UK Sentencing Guidelines would apply.13 Mr Belcher argues that, on the basis of the discussion in Harding, Mr Gray’s offending “falls outside of the categorisations adopted by the court for the purposes of sentencing”. As Mr Belcher recognises, the UK Sentencing Guidelines do not apply to adult bestiality material.14 However, that does not mean material involving adults, such as adult bestiality, “fall outside the scale” as Mr Belcher suggests. The Act does not distinguish between types of publications.15 Further, and
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 Harding v Department of Internal Affairs, above n 10.
13 The UK Guidelines assist with distinguishing between different sub-categories of child abuse material.
14 W v Police [2022] NZHC 1053 at [45].
15 Patel v R [2017] NZCA 234 at [47].
materially after Harding was determined, in 2015 the legislature doubled the maximum penalty for offending of this kind, from five to ten years imprisonment.
[23] Of more assistance is the general guidance from the Court of Appeal in Patel v R, and the further observations of the Court in relation to objectionable materials offending.16 In that case the Court granted leave but dismissed a second appeal against sentencing for offending involving publications depicting “acts of torture or the infliction of extreme violence or extreme cruelty”.
[24] The Court identified relevant factors for assessing the gravity of objectionable publications offending. Those relevant to possession are:17
(a)The nature of the publication;
(b)The volume of the material involved; and
(c)The harm caused by the offending depicted.
[25] The Court observed it is also relevant when fixing a starting point, to have regard to the seriousness of the offence as indicated by the maximum penalty among other matters. The Court disavowed any suggestion that, in principle, the category of child pornography is to be viewed more seriously than other types of objectionable material. Winkelmann J noted:18
…[T]there is nothing in the legislation, or the legislative history, which suggests that Parliament intended there to be a hierarchy of objectionable material – possession of child pornography is not, for example, treated as a more serious category of offending than possession of violent material. The sentencing range is the same for each category of material.
[26] In decisions of this Court, material involving adult bestiality has been recognised as less serious than such material involving children,19 yet still, the publications are plainly objectionable. Relevantly, the acts of bestiality in two of the videos were of the most serious kind, depicting penetrative sex. In that regard the
16 Patel v R, above n 15.
17 Patel v R, above n 15, at [35].
18 At [37].
19 Pattison v Police [2018] NZHC 2163 at [26].
Judge noted the police submission the videos were “at the more extreme end of that type of video”. It is also aggravating that the publications were videos rather than still images.20 Such an observation has been made in the context of child abuse material as it “draws the viewer in” and I consider the same applies in this context. That is a relevant factor given the nature of this category of offending, which Parliament has indicated is injurious to the public good.
[27] Aggravating also is the downloading and storage of the publications which indicates premeditation,21 and the length of time during which Mr Gray possessed the videos.22 Against that, there were a very small number of videos and they were collected over a short period, rather than part of a large collection that had been curated and organised over a significant period.
[28] Having regard to the approach in Patel the Judge was entitled to draw some guidance from the two terrorist promotion decisions notwithstanding the distinction in content. As the Judge identified, there is no directly comparable authority; I have been unable to identify any decisions involving only adult bestiality. The appellate case pool involving possession offences only is also very small and almost invariably involves child sexual exploitation material.23
[29] Certainly, in those cases the courts have recognised significant starting points are available notwithstanding more limited collections (by comparison with cases involving multiple thousand images). So, in Snell v R, a starting point of four years’ imprisonment was not disturbed on appeal, for possession of 306 publications involving children.24 In his careful review of the authorities in that case Downs J noted that collection size is less important now than formerly, due to modern internet based technologies as Katz J explained in Stewart v Department of Internal Affairs.25 Still, the cases generally do involve significantly greater numbers of images and videos than here. In R v Lawes, a two year uplift was applied for possession of 296 publications
20 Green v R [2024] NZHC 2961 at [26(b)].
21 Police v L [2016] NZHC 455 at [19(c)].
22 Snell v R [2022] NZHC 1627 at [51].
23 Snell v R, above n 22, at [53]. I have noted, above, the promotion of terrorism decisions, upon which Judge Robinson relied.
24 Snell v R, above n 22, at [63].
25 Stewart v Department of Internal Affairs [2014] NZHC 2209.
involving children.26 In R v Stevens, Toogood J adopted a starting point of two years’ imprisonment for possession of over 4,000 publications involving children.27
[30] Weighing these decisions and returning to the observations of the Court of Appeal in Patel, there is some force in Mr Belcher’s contention the uplift was excessive given the very limited number of videos, the cluster in which they were apparently downloaded or saved and the absence of curation. On balance I consider an uplift of six months was too high in circumstances where there was no associated child-related objectionable material. I do not accept no more than one month was appropriate but consider three months would be unimpeachable.
[31] Ultimately, however, the challenge to this component of the overall sentence must be considered in light of the offending in totality. Stepping back and assessing the overall sentence, this was well within range for the offending as a whole. Mr Gray burgled two residences while occupants were sleeping, including confrontation with an occupant in one case and there was an evident sexual motivation. During the same period he had extended possession of objectionable publications depicting penetrative acts of adult bestiality. The six month uplift to reflect the latter offending, while too stern, was added to an arguably generous starting point for the lead offending, the burglaries.
[32] Overall, the combined starting point of 26 months appropriately captured the seriousness of the offending and the relevant aggravating features.
Guilty plea
[33] The burglary charges were laid on 26 November 2024 and pleas entered on 18 February 2025. Shortly after, on 24 February, the objectionable publications charges were laid. At that time, an additional publications charge was laid involving different subject-matter. That charge was withdrawn on 30 May and Mr Gray pleaded guilty on the same day to the remaining charge.
26 R v Lawes [2018] NZHC 2448.
27 R v Stevens [2016] NZHC 1574.
[34] The Judge was entitled to afford Mr Gray a 20 per cent credit, five per cent less than the maximum available. Although there was a reduction in the objectionable publications charges and he pleaded guilty promptly following amendments, a considerable amount of time elapsed between the laying of the burglary charges and Mr Gray’s guilty pleas to those charges. As the Judge recognised, the burglaries were the lead offending; their penalty made up the bulk of the sentence. The delay in pleas on those charges informed the available credit for guilty plea and I am satisfied that 20 per cent was in range.
Home detention
[35]Mr Belcher cites the following paragraph from Ibbetson v R:28
[49] In our view, that was a decision that was plainly open to the Judge in the circumstances before him. Offending of this kind is very serious and will generally result in a custodial sentence. The Judge was entitled to give weight to Mr Ibbetson’s continued denials which, apart from anything else, meant he would not be able to participate in any rehabilitative or treatment programme. The Judge was not denying that home detention has a deterrent function, but simply that in the circumstances home detention would not be an appropriate response for this offending and this offender.
[36] Mr Belcher submits that, in that case, it was the specific nature of the offending (involving child abuse material) that acted as a bar to home detention, and such a bar does not exist in this case as Mr Gray’s offending involved a different category of objectionable publications. I do not accept that submission. As in Ibbetson, the Judge was entitled to take into account the seriousness of the offending and Mr Gray’s continued denials of the offending. The fact that the publications were of a different character does not alter that analysis.
[37] Additionally, Mr Gray denies responsibility for the burglary offending. He has an extensive history of dishonesty offending which makes those denials more concerning. Mr Gray’s refusal to accept the content of the summary of facts undermines his rehabilitative prospects. The Judge was entitled to consider that the
28 Ibbetson v R, above n 9.
important principles of denunciation and deterrence, both in relation to the burglaries and the videos, could only be served by a sentence of imprisonment.
Result
[38]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Dunedin
Counsel:
A W Belcher, Barrister, Dunedin
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