Hulme v R - [2012] NZHC 86

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000438 [2012] NZHC 86

TRAVIS JAY HULME

v

THE QUEEN

Hearing: 2 February 2012

Counsel: D Hoskin for the Appellant
N Wilde for the Crown

Judgment: 9 February 2012 at 3:30 PM

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 9 February 2012 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
D Hoskin: david.hoskin@swlegal.co.nz
N Wilde: nicole.wilde@meredithconnell.co.nz

HULME V R HC AK CRI 2011-404-000438 9 February 2012

[1] The appellant pleaded guilty to one charge of importing into New Zealand objectionable material, contrary to s 209(1)(a) of the Customs and Excise Act 1996, and to 20 charges of possession of objectionable material, contrary to s 131A of the Films, Videos and Publications Classification Act 1993.

[2] The maximum penalty for breaching s 209 is a fine not exceeding $5,000. The maximum penalty for breaching s 131A is a term of imprisonment not exceeding five years.

[3] On 28 November 2011, Judge BA Gibson in the District Court at Waitakere convicted the appellant and sentenced him to 22 months’ imprisonment for possession of the objectionable material. The Judge convicted and discharged the appellant on the importing matter.

[4] The appellant appeals the sentence imposed on him for possession of the objectionable material.

Factual Background

[5] During March and April 2009, the police in Luxembourg received information via a Luxembourg-based internet hotline about two internet forums. The hotline allowed members of the public to report what they believed to be illegal material on the internet.

[6] As a result of receiving the information, the Luxembourg police commenced an investigation, and logs for the two internet forums were obtained.

[7] In June 2009, Interpol in Wellington received information relating to the police operation in Luxembourg. This information was transferred to the police in this country, and then by the police to the Department of Internal Affairs. The Department of Internal Affairs considered that the material disclosed in the information provided to them would be objectionable pursuant to the Films, Videos and Publications Classification Act 1993. The information disclosed also revealed

that the appellant had used the internet forums, and that he had requested and downloaded files held by them.

[8] As a result, on 9 April 2010, a search warrant was executed at the appellant’s

residential address in Massey.

[9] The appellant was interviewed at the time, and he admitted that he had used his computer to download objectionable material from the internet. He said that the objectionable material included images of bestiality, ―borderline‖ young women and Japanese-style cartoons that were likely to be of younger persons. He said that he had downloaded the material because of a habit, but also out of curiosity. He accepted that he had downloaded it for sexual purposes in the past.

[10] Customs seized the computer and related equipment. Electronic forensic reports were then completed.

(a) One piece of computer equipment, known as a…

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 Hulme v R

Details

AGLC: Hulme v R [2012] NZHC 86
Case: [2012] NZHC 86
Decision Date: 9 February 2012

CaseChat Overview and Summary

The appellant in Hulme v R appealed against the sentence imposed by Judge Gibson in the District Court. The appellant had pleaded guilty to charges of importing and possessing objectionable material, including images of child sexual abuse. The District Court Judge sentenced the appellant to 22 months’ imprisonment for possession of the objectionable material, and discharged him on the importing charge. The appellant argued that the Judge had erred in not granting him home detention or another monitored sentence, and that the Judge had placed undue weight on deterrence and had given insufficient weight to the rehabilitative steps he had undertaken. The Crown submitted that the Judge was entitled to consider that imprisonment was the appropriate sentence, and that community protection and deterrence were particularly relevant factors in cases of this kind.

The High Court considered the sentence imposed by the District Court Judge. The Court noted that there is no tariff decision for offending of this kind, and that the Courts have largely adopted and followed sentencing guidelines utilised in the United Kingdom for comparable offences. The Court found that the starting point adopted by Judge Gibson was within the available range, and that the Judge had considered the appellant’s rehabilitative efforts when determining the end sentence. The Court was not persuaded that Judge Gibson erred in exercising his discretion to deny home detention to the appellant. The Court held that the seriousness of offending of this type must not be minimised, and that the nature of the images in the appellant’s possession and the seriousness of the offending called for a deterrent sentence. The Court held that a sentence of home detention would not adequately satisfy that sentencing purpose, and dismissed the appeal.

Orders