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:  [email protected]

N Wilde:  [email protected]

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 Thermaltake mini tower, was found to contain objectionable material in a folder named

―Por‖.     Inside  this  folder  was  a  structure  of  files  and  folders containing:

(i)       sixty three movie files and 1,416 images of teen/adult material; (ii)    fifty eight movie files and 20 images of bestiality;

(iii)seventeen movie files and 1964 image files of children and young persons posing in a sexual way or involved in sexual acts.

The download  information  for a small  number of these images  was  able to  be located.  That information showed that the images had been imported from either the Netherlands or the United States of America.

(b)      A laptop computer was found to contain an 18 gigabyte archive file

with the password ―Noddy‖.  This file contained some 250 movie files

and approximately 11,000 image files.   The majority of the images were of children and young persons in sexualised poses and/or involved in sexual acts.  A number of the movie files showed acts of bestiality with some teen/adult material.  Some of the images were of drawn comic strip characters involved in sexual acts.  No download information was able to be located for any of the files on the laptop.

[11]     On  17  December  2010,  the  appellant  was  interviewed  at  the  Henderson Police Station regarding the objectionable material located on his computer equipment.  He admitted that he had downloaded the objectionable material from the internet.  He was shown a number of the images taken from the computer devices. He confirmed that he recognised most of the images.  There were some images that he had no recollection of downloading, but he accepted that if they had been found on his devices, he must have downloaded them.

[12]     Informations were laid against the appellant in March 2011 and, as noted, he pleaded guilty to the various charges laid against him.

[13]   I was provided with a copy of the images that related to each of the informations.  They showed obviously very young girls in sexual poses or involved in sexual acts.   There was one image of bestiality and some cartoon-type images portraying sexual acts.  It was common ground that these images were representative of the material found on the appellant’s computer equipment.

[14]     The appellant has no previous convictions.

The Judge’s Sentencing Notes

[15]     Judge Gibson started by noting the charges brought against the appellant, and his personal circumstances.  He observed that a considerable number of images had been located on his computer devices, and that most of the images were of children and young persons in sexualised poses and acts.   He noted that there were other objectionable acts contained on the images as well.

[16]     Judge Gibson recorded that both counsel agreed that the Court should start with a sentence of imprisonment, and that the ultimate issue was whether, in the event that the sentence was reduced by the various credits that the appellant was entitled to, the matter could be dealt with by way of a sentence of home detention.

[17]     Judge Gibson noted the starting point advanced by the Crown, namely three years’ imprisonment.  He referred to the relevant authorities relied on by the Crown in that regard.  He noted that Mr Hoskin, for the appellant, suggested a starting point of two and a half years’ imprisonment.

[18]     The Judge then referred to the various principles of sentencing that applied pursuant to s 8 of the Sentencing Act.  Inter alia, he recorded that he needed to take into  account  the  need  to  impose  a  sentence  that  involved  the  least  restrictive outcome.  He referred to a Victim Impact Statement that had been filed by the police. He then referred to the purposes of sentencing applicable under s 7 of the Sentencing Act, emphasising the need to hold the appellant accountable for the harm done to the victims and to the community, to instil in him a sense of responsibility for his conduct and to denounce that conduct.   He emphasised that the Court needed to impose a deterrent sentence.

[19]     Judge Gibson then referred to the appellant’s personal circumstances.   He noted that he appeared as a first offender, that he was in employment, and that he has a family.  He recorded steps that the appellant has taken to obtain counselling and to enter therapy courses, and noted that he had successfully completed those courses at some considerable cost to himself.  The Judge then expressed the view that the need to impose a deterrent sentence to prevent this type of offence needs to be borne in mind.  He noted that although deterrence is only one of the purposes of sentencing, it is a significant purpose.

[20]    In the event, the Judge adopted an initial starting point of three years’ imprisonment.  He allowed the appellant a discount of six months for his previous good  character,  and  allowed  him  a  further  discount  of  eight  months  from  the resulting sentence for his guilty plea.   The end sentence was 22 months’ imprisonment.

[21]     Judge Gibson acknowledged that this was a short term of imprisonment, and he went on to consider whether or not a sentence of home detention should be imposed.   He acknowledged that in certain circumstances a sentence of home detention can be considered a deterrent sentence, but nevertheless went on to observe that this type of crime is prevalent in the community, and that it exposes young people to particularly vile behaviour, which can lead to long-term difficulties for them.  The Judge considered that it would not be responsible if he were to deal with the matter in any way other than imposing a sentence of imprisonment.  He therefore sentenced the appellant to 22 months’ imprisonment on the possession charges.  The appellant was convicted and discharged on the importing charge.

The Appeal

[22]     Mr Hoskin on behalf of the appellant did not criticise the Judge’s starting point, although he did comment that it was on the high side.  Rather, he argued that Judge  Gibson  erred  in  not  granting  the  appellant  home  detention  or  another monitored sentence with or without a combination of other sentences.   He argued that the Judge erred and that he placed undue weight on deterrence.  He submitted that the Judge gave insufficient weight to the rehabilitative steps that the appellant had undertaken.   He referred me to letters that had been produced to the Judge, confirming that the appellant had been involved in regular counselling appointments, and that he had developed a good level of self awareness.  He also referred to other positive circumstances personal to the appellant, and suggested that the Judge had given inadequate weight to these factors.  He submitted that the Court should have adopted a less restrictive outcome, and that it was desirable to keep the appellant in the community.   He also suggested that the appellant would have more access to appropriate rehabilitation assistance if a monitored sentence is imposed.

[23]     Ms Wilde for the respondent submitted that the offending was serious, and that there had been actual harm to real victims as was demonstrated by the Victim Impact  Statements.    She submitted that  the Judge  was  entitled  to  consider that imprisonment  was  the  appropriate  sentence,  and  that  community protection  and deterrence are particularly relevant factors in cases of this kind.  She noted that the Judge was exercising a discretion when he considered whether or not home detention

would  be  an  appropriate  sentence,  and  that  there  had  been  no  error  either  in principle, or of law, in the exercise of that discretion.  She submitted the Judge did not err in imposing a sentence of imprisonment, and that the appeal should be dismissed.

Analysis

[24]     This is an appeal against sentence under s 115 of the Summary Proceedings Act 1957.   Section 121 of that Act confers power on the Court to determine such appeals.  Relevantly, it provides as follows:

121     High Court to hear and determine appeal

(1)       The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

…

(3)     In the case of an appeal against sentence, the High Court may—

(a)      confirm the sentence; or

(b)       if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or  if  the  High  Court  is  satisfied  that  substantial  facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)        quash  the  sentence  and  either  pass  such  other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence   could   have   dealt   with   him   on   the conviction; or

(ii)      quash  any  invalid  part  of  the  sentence  that  is severable from the residue; or

(iii)      vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

…

(6)     In any case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.

(7)       Subject to the provisions of section 144, the decision of the High

Court on any general appeal shall be final.

(Emphasis added)

[25]     It is trite law that this Court should not interfere with a sentence imposed by a District Court  Judge  unless  the  sentence  is  manifestly  excessive  or  wrong  in principle.1    In particular, the Court should not substitute its own opinion for that of

the sentencing judge.2      It  can  interfere if  the sentence  imposed was  manifestly

excessive.   Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed, rather than the process by which the sentence was reached.3  As the Court of Appeal observed in R v Shipton:4

The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer.  There must be an error vitiating the exercise of the original sentencing discretion.  In short, this Court must proceed on an ―error principle‖.

[26]     I now turn to consider the sentence imposed in this case.

[27]     First, I note that there is no tariff decision for offending of this kind.  Rather, the Courts have largely adopted and followed sentencing guidelines utilised in the United Kingdom for comparable offences.   The United Kingdom Sentencing Advisory Panel, in a report prepared in 1992, outlined levels of offending in this area and the sentences it considered appropriate to each level.   The levels can be summarised as follows:

(a)      Level 1 — images depicting erotic posing with no sexual activity;

(b)Level 2 — images showing sexual activity between children or solo masturbation by a child;

1      See R v Brooks [1950] NZLR 658 CA at 659; R v Radich [1954] NZLR 86 (CA) at 87.

2      Wells v Police [1987] 2 NZLR 560 (HC) at 565.

3      R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

4      R v Shipton [2007] 2 NZLR 218 (CA) at [138].

(c)      Level 3 — images showing non-penetrative sexual activity between adults and children;

(d)Level  4  —  images  showing  penetrative  sexual  activity  between children and adults; and

(e)       Level 5 — images [involving children] showing sadism or bestiality. The sentence appropriate to each level is as follows:

(f)      A fine — possession only of pseudo-photographs (i.e. not involving the sexual exploitation of children), or no more than a small quantity of material at level 1;

(g)Community  sentence  —  possession  only  for  a  large  amount  of material at level 1 and, or no more than a small quantity of material at level 2;

(h)Custody  threshold  —  any  of  the  material  has  been  shown  or distributed to others and/or possession of a large quantity of material at level 2, or a small amount of material at level 3 or above;

(i)Up to six months’ imprisonment — possession of a large amount of material at level 2 or a small amount of material at level 3, or showing or  distributing  level  1  or  2  material  on  a  limited  scale  without financial gain;

(j)Six to 12 months’ imprisonment — showing or distributing a large number of images at level 2 or 3 or possessing a small number of images at levels 4 or 5;

(k)Twelve months to three years’ imprisonment — possession of a large amount of material at levels 4 or 5 (even without showing or distributing), showing or distributing a large number of images at level 3, or producing or trading a material at levels 1 to 3;

(l)More  than  three  years’  imprisonment  —  showing  or  distributing images at levels 4 or 5, active involvement in production of images at levels 4 or 5, or commissioning or encouraging the production of such;

(m)Up to 10 years’ imprisonment maximum — very serious cases where the offender has relevant previous convictions.

[28]     These categories were adopted in the United Kingdom in R v Oliver.5    The New Zealand Court of Appeal in R v Zhu considered them to be a useful guide for New Zealand, albeit that they should not necessarily be adopted in any given case.6

[29]      Here, some of the images in the possession of the appellant fell into level 1

— they were images depicting nudity or erotic posing with no sexual activity by young girls.  However, the majority of the images fell into level 4 — they showed penetrative sexual activity between children and adults.   There were some images which fell into level 5 — showing bestiality.  There were a large number of images

— in total over 14,000.  The Victim Impact Statements disclosed that there was very real damage and harm to at least some of the children who were the subject of the images.  Six of the victims portrayed in the images had been identified, and overseas law enforcement officers who investigated the matter had filed affidavits recording the victimisation of the children at the time and their ongoing victimisation because the images continue to be circulated on the internet. The resulting damage or harm is

very real indeed, and it is an aggravating feature of the offending.7   Furthermore, the

victims were very young girls at the times the photographs were taken.  They were particularly vulnerable.8    Again, this is an aggravating feature.   There was a significant  degree  of  premeditation  involved  in  the  offending.    The  appellant accessed the internet sites.  He downloaded the images onto his computer.  He then collated  and  catalogued  them,  and  stored  them  in  various  locations.     This

premeditation is also an aggravating feature.9

5      R v Oliver [2002] EWCA Crim 2766, [2003] 1 Cr App R 28.

6      R v Zhu [2007] NZCA 470 at [15].

7      Sentencing Act 2002, s 9(1)(d).

8      Section 9(1)(g).

9      Section 9(1)(i).

[30]     Given these matters, was the starting point adopted by Judge Gibson too high?

[31]      In Cooper v Department of Internal Affairs,10  Mr Cooper pleaded guilty to

16 charges of possession of objectionable material under s 131A.   Some 5,000 images and 200 movies were found on his computer.   There was also further encrypted material that could not be accessed.   The sentencing Judge adopted a starting point of three years’ imprisonment.  On appeal, Mallon J held that although the  informations  were  not  representative  of  the  entire  stock  of  material  on Mr Cooper’s computer, there was no dispute that they represented the 5,000 images and 200 movies that were not encrypted.   She considered that a combination of a large number of images at levels 2 and 3, and a small number of images at levels 4 and 5 justified a starting point in the region of 12 months to three years’ imprisonment.   She considered that two and a half years’ imprisonment was an appropriate starting point given the facts in that case.

[32]     In Stevens v Police,11 Mr Stevens pleaded guilty to 20 charges of possession of objectionable material contrary to s 131A.   There were approximately 34,000 images in total.  A number involved images of naked children and babies, and of sexual activity with them.   The sentencing Judge sentenced on the basis that the charges were representative, and adopted a starting point of three years’ imprisonment.  On appeal, Gendall J considered that the images fell between levels 1 to 4.  He held that the appropriate starting point was one of two years’ imprisonment.

[33]     In Department of Internal Affairs v Wigzell,12 Mr Wigzell pleaded guilty to 30 charges of possession of objectionable publications contrary to s 131A.   The objectionable  material  comprised  over  200,000  images  and  films  depicting  the sexual abuse of children and bestiality.  They were organised, classified and collated by Mr Wigzell, and he was a member of a number of news groups specifically designated for the sharing of child abuse imagery.  The sentencing Judge adopted a

starting point of three years’ imprisonment.  The Crown appealed the sentence on the

10     Cooper v Department of Internal Affairs HC Wellington CRI 2008-485-86, 18 September 2008.

11     Stevens v Police HC Wellington CRI 2008-406-007, 15 July 2008.

12     Department of Internal Affairs v Wigzell HC Wellington CRI 2007-485-110, 20 November

2007.

basis that it was manifestly inadequate.  On appeal, Clifford J held that the starting point was not manifestly inadequate.  He held that the material fell within the range of 12 months to three years’ imprisonment as a starting point because there was a large quantity of material at levels 4 to 5.

[34] In my view, the starting point adopted by Judge Gibson, while perhaps on the high side, was within the available range. I refer to the aggravating features I have noted above at [29].

[35]     The  appellant  challenged  the  end  sentence  imposed  by  the  Judge.    In particular,  he  argued  that  Judge  Gibson  gave  him  no  proper  discount  for  his extensive attempts to rehabilitate himself.

[36]     After fixing his starting point, Judge Gibson allowed the appellant a discount of six months for his previous good character.   That equated to a discount of approximately 17 per cent.  He then allowed the appellant a further discount of just over 25 per cent for his guilty pleas.   The Judge did not specifically refer to the appellant’s rehabilitative efforts when he was discussing these discounts. Nevertheless, he did highlight in his sentencing notes the steps the appellant had taken to obtain counselling and therapy.

[37]     In my judgment, the Judge did take into account the appellant’s rehabilitative efforts when determining the end sentence.   The discounts he allowed, and in particular, the discount for good character, were generous.

[38]    Further, the Judge did consider the availability of home detention.   He acknowledged its availability, but considered that he was bound to impose a sentence of imprisonment.

[39]     Home detention ranks  below imprisonment in the hierarchy of sentences detailed in the Sentencing Act.13    Home detention was the less restrictive outcome,

and as the appellant submitted, the Court was obliged to consider its availability in

13     Sentencing Act 2002, s 10A(2).

sentencing.14   The appellant is also correct when he asserted that the Sentencing Act recognises the desirability of keeping offenders within the community.15

[40]     However, it is clear that these matters were considered by Judge Gibson.  He noted as follows:

Clearly the principles of sentencing that apply under s 8 Sentencing Act

2002 are the gravity of the offending and the seriousness of the offence, as well as the effects on the victim.  I also need to take into account the need to

impose a sentence having regard to the least restrictive outcome.

…

The purposes of sentencing applicable under s 7 Sentencing Act that are relevant are clearly the need to hold the offender accountable for harm to the victim and the community, instil in him a sense of responsibility, denounce his conduct and impose a sentence that amounts to a deterrent sentence.

…

[The sentence of 22 months] is a short sentence of imprisonment, and I need to consider whether the particular purposes of sentencing that I have mentioned, and the need to hold the defendant accountable in particular for his crime, to install in him responsibility, to impose a deterrent sentence and to denounce his conduct can be met by a sentence of home detention.

I accept that in certain circumstances a sentence of home detention can be considered a deterrent sentence, and there is Court of Appeal authority in respect of the same.  Nevertheless this type of crime appears to be prevalent in the community, and exposes young children to particularly vile behaviour and leads to long-term difficulty for them.  It would not be responsible of me if I were to deal with it in any other way than imposing a sentence of imprisonment, although I accept there is no presumption in that respect. Because of that the defendant is sentenced to 22 months in prison.

…

[41]     I am not persuaded that Judge Gibson erred in exercising his discretion to deny home detention to the appellant.

[42]     I agree with the observations of Priestley J in Waugh v Police.16

The seriousness of offending of this type must not be minimised.  The fact that such materials can be accessed online in the privacy of one’s home; that the materials are photographic; or that the people who choose to download them,  far from being repulsed and  disgusted are instead  gratifying their

14     Section 8(g).

15     Section 16.

16     Waugh v Police HC Auckland CRI 2010-404-178, 15 October 2010 at [22].

serious sexual deviancies; all tend to obscure the fact that the production of objectionable materials relies on the exploitation and defilement of children. Far away from the comfort of the home, probably on the other side of the world, vulnerable children are being exploited for commercial gain. Possessors such as the appellant may be remote in time and place.  But their deviancy fuels the demand.

[43]     While there can be no dispute that home detention is, in appropriate cases, a real alternative to imprisonment,17 and that it carries with it the principles of deterrence and denunciation, in my view, these matters were appropriately identified by Judge Gibson, and correctly taken into account by him.

[44]     The offending took place in the appellant’s home. It was serious offending, and it involved the exploitation of young girls.  The nature of the images that were the subject of the informations, the number of images in the appellant’s possession and the seriousness of the offending called for a deterrent sentence.  Deterrence is the significant aspect of this kind of offending, and in my view, a sentence of home detention would not adequately satisfy that sentencing purpose.18

[45]     In reaching this conclusion, I have taken into account the fact that counselling is  readily  available  to  the  appellant  through  the  Department  of  Corrections. Ms Wilde has confirmed that the appellant has been accepted into a programme known  as  the Te Mahinga  Programme.    It  is  a  12-week  intensive  rehabilitation programme for child sex offenders assessed as offering a low risk of reoffending. The appellant’s rehabilitative needs can be addressed within the prison system.

[46]     The appellant relied on the decision of Chisholm J in Kent v Department of

Internal Affairs.19   That case involved a 76 year-old offender, who was convicted of

15 charges of possessing child pornography, and nine charges of distributing that material.   He had no previous convictions, he was in ill health, and he had been sexually abused as a child.   He was assessed to have a low risk of reoffending. Chisholm J found that home detention was appropriate in his case.

[47]     I regard this as essentially a humanitarian decision turning on its own facts.

17     R v Iosepha [2008] NZCA 453.

18     Waugh v Police, above n 16, at [39]–[40].

19     Kent v Department of Internal Affairs HC Christchurch CRI 2009-409-139, 17 September 2009.

[48]     Judge Gibson did consider the appropriateness of home detention.  He did not err in principle, or in law, in exercising his discretion in that regard, and I decline to

intervene on appeal. The appeal is dismissed.

Wylie J