Johnson v Department of Internal Affairs

[2021] NZHC 2480

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-021/22

[2021] NZHC 2480

BETWEEN

BRADLEY DEAN JOHNSON

Appellant

AND

DEPARTMENT OF INTERNAL AFFAIRS

Respondent

Hearing:	8 September 2021
Appearances:	E Forster and H Neumegen for the Appellant G Carter for the Respondent
Judgment:	21 September 2021

JUDGMENT OF GRICE J

(sentence appeal)

Overview

[1]    This is an appeal against a sentence of four and a half years’ imprisonment on charges relating to possession of objectionable publications, namely child sexual exploitation material (CSEM). The appellant says the starting point of seven years was too high and led to an end sentence that was manifestly excessive.1

[2]    The appellant was also sentenced to six months’ imprisonment to be served concurrently for unlawful possession of a firearm. This part of the sentence is not contested.

1      Department of Internal Affairs v Johnson [2021] NZDC 11859 [“District Court Decision”].

JOHNSON v DEPARTMENT OF INTERNAL AFFAIRS [2021] NZHC 2480 [21 September 2021]

Background

[3]    The sentence related to five charges of possession of objectionable publications2 and one charge of unlawful possession of a firearm in relation to an inoperable 22 calibre rifle found during a search of Mr Johnson’s property.3

[4]    The offending took place from 31 December 2018 to 23 April 2020. It involved an online cloud storage account for the first nine months, which was used to save the CSEM. The files were deleted on 30 September 2019.

[5]The Judge summarised the nature of the material as follows:4

[3]        The Department of Internal Affairs’ inquiry found that the cloud service account contained no active files. However, 513 files were capable of recovery. Four hundred and seventeen of those files depicted child abuse or exploitation. There were 14 images and 465 movies. Four hundred and forty- five included depictions of sexual activity with children. The children performed sexual acts upon themselves and with other children. On other occasions the files included children performing sexual acts on adults and having sexual acts performed on them by adults. Eleven files included depictions of what is described as extreme of sadistic materials. Twenty-five additional files depicted children in sexual poses. One example of these files is a two minute or so moving image file depicting an adult man raping a girl aged between, it is estimated, eight and 10 years old. Ejaculation by men featured in at least one other video.

[4]        On 7 July 2019, using a second email address, you created another cloud storage account. Over the next 10 months, you used this cloud storage account to save objectionable publications again depicting child sexual abuse. The files were deleted from the account on 23 April 2020.

[5]        The Department of Internal Affairs established that at the time of its inquiry there was no active account, but 7,290 files were capable of recovery. The cloud storage provider recovered the files and made them available to the Department. Of those files, 1,388 depicted child abuse or exploitation. There were 559 images and 829 movies. Seven hundred and nineteen of these included depictions of children in which sexual activity was shown. Again, the sexual activity included acts between children with themselves and with adults. Forty-one of those files were described as sexually extreme or sadistic. Six hundred and twenty-six were photographs of children in sexualised poses. One example is a 43 second moving image of a girl assessed to be aged 10 to 12 years bound at the wrist and with a sex toy being used upon her. Again, masturbation to the point of ejaculation by men was depicted in at least one

2      Films, Videos and Publications Classification Act 1993, ss 131 and 131A: maximum penalty of 10 years’ imprisonment.

3      Arms Act 1983: maximum penalty of four years’ imprisonment.

4      District Court Decision, above n 1, at [3]–[9].

movie. Another filed included what must have been the rape of a girl aged between six and eight years.

[6]        The third charge you face relates to the possession of an objectionable video clip sometime between 20 September and 22 October 2019. The video clip was named. The files were saved to the cloud storage facility created in July 2019. Assessment of the cloud storage offending does not include this aspect of your offending. The video is two minutes and 26 seconds in length. Multiple still images were stitched together with a music soundtrack. Still images derived from this filed showed child sexual abuse. Again, the images include children in sexualised poses with men engaged in sexual activity with them. This included digital and penile penetration of their genitalia. In some instances, ejaculation on the children is depicted. The children are estimated to be between one and six years old. The video remained in your possession until the account was suspended by the cloud service provider on 22 October 2019. There was no doubt about what was depicted in these images. On occasions, the images depicted the rape of very young children.

[7]        The Department of Internal Affairs executed a search warrant in conjunction with the police in July 2020. Two external devices were seized from your home. The first is an external hard drive that contained over 48,000 files which were saved in an extensive folder structure. Folder names were used to identify the content of each of the folders. Three examples have been provided to me. The first was named “LS Girls,” and depicted images of underaged females in sexualised poses. Another described as “boys”. That related to the gender of the subjects in the file. A third had the name of “Siberian Mouse”. This folder was a specific series involving two girls engaged in sexual activity. Due to the vast number of files and images identified, a complete assessment of them has not been feasible. A sample of the folders was taken and reviewed.

[8]        Ten thousand seven hundred and ninety-five unique folders depicting child sexual abuse and exploitation were identified. This included 701 images and 5,723 videos depicting children engaged in sexual activity upon themselves, with other children and including adults. Fifty-two images and two hundred and eighty-seven videos were described as sexually extreme or sadistic. One thousand eight hundred and ninety-four images and 2,447 videos depicted children in sexualised poses. The children were assessed as being aged between two and 14 years. As with the other offending, this material included sexual assaults including penile penetration of the children and other sexual acts.

[9]        A second external device was seized. This is a USB hard drive. Two hundred and nine files were identified depicting child sexual abuse and exploitation. There were 51 images and 66 videos depicting this activity. Two images and one video were found depicting children in which the activity was described as sexually extreme or sadistic. Eight-eight images and four videos depicted children in sexualised poses. The assessed age of the children relating to this offending is between four and 14 years. As with the other material I have been through, all forms of sexual abused of children is depicted in this material.

[6]    Mr Johnson admitted to the offending and voluntarily provided passwords. He told the respondent that he had received links from online chatrooms and downloaded files from those links, knowing the files to be illegal.

[7]    The relevant files had been sorted into folios on two external hard drives with no encryption. There was no allegation that Mr Johnson had made or distributed objectional images.

[8]    The material included images and videos of children aged between one and 14 years. It included images of sexual abuse and exploitation of the children.5

Law

Appeals

[9]    An appeal against a sentence is an appeal against discretion. Under s 250 of the Criminal Procedure Act 2011 (the Act), the Court must allow an appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[10]   Although s 250 does not refer to “manifestly excessive”, it is a principle that is engaged in the Court’s approach to sentence appeals.6 The focus of the Court is on the sentence imposed and not the process adopted to reach that end sentence.7 The Court cannot “tinker” with an end sentence if it is within range.8 The Court of Appeal in Tamihana v R summarised the approach as follows:9

An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of additional materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion. Unless there is a material error in the end sentence, this Court will

5      District Court Decision, above n 1, at [40].

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

7 At [36].

8      Ripia v R [2011] NZCA 101, at [15].

9      Tamihana v R [2015] NZCA 169 at [14] (footnotes omitted).

not intervene. There will be a material error if, for example, the end sentence is manifestly excessive or wrong in principle. In general, the focus is on whether the end sentence is within the available range, rather than the process by which it was reached.

[11]Under s 251 of the Act, if the Court allows an appeal, it must;

(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or

(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or

(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or

(b) as specified by the first appeal court.

Objectionable material

[12]   The United Kingdom Sentencing Council’s Guidelines in relation to possession of sexual images sets out three categories:10

(a)Category A: “Possession of images involving penetrative sexual activity. Possession of images involving sexual activity with an animal or sadism”.

(b)Category B: “Possession of images involving non-penetrative sexual activity”.

(c)Category C: “Possession of other indecent images not falling within categories A or B”.

[13]   The United Kingdom Sexual Offences  Definitive Guideline (effective from  1 April 2014) also provides a non-exclusive list of aggravating factors to which I refer

10     Sentencing Council Guidelines “Possession of indecent photograph of child/Indecent photographs of children” (1 April 2014).

later. However, it is generally accepted that the United Kingdom sentencing is more lenient than the New Zealand cases and therefore the relevant cases do not assist here.

[14]   In Doran v Police, Dobson J observed that in relation to the exploitation and defilement of children, “[q]uantitative measurement in isolation could be inadequate to reflect the seriousness” and that “[t]he number of images in particular categories should not, of themselves, dictate the starting point”.11 A judge is entitled to have regard to the relative seriousness of the nature of some of the objectionable images, such as a qualitative analysis taking into account the age of the children pictured.

[15]   In the District Court, Mr Doran had been sentenced to 18 months’ imprisonment on 20 charges of knowingly possessing objectionable material. The appeal was brought based on the sentence being manifestly excessive, with a starting point that was too high, due to a failure to give any discounts, and for wrongly determining Mr Doran was not suitable for home detention. The appeal was dismissed.

[16]   The High Court Judge noted the police identified some 1,222 images, and noted the particular categories they fell under, depending on the scale of the seriousness. The most egregious had been referred to by the sentencing Judge.12 Given the nature of those images, his Honour was not satisfied that a two-year starting point fell outside the available range.

[17]   In 2015, the maximum sentence for possession increased from five years’ imprisonment to 10 years.

[18]Both counsel referred to various starting points adopted in earlier cases:

(a)Patel v R:13 Mr Patel made, possessed and distributed objectionable material, being graphic terrorist footage of beheadings, immolations and dismemberment. The Court rejected the argument that child pornography is to be viewed as more serious and noted there is nothing

11     Doran v Police [2012] NZHC 468 at [17] and [20].

12 At [20].

13     Patel v R [2017] NZCA 234.

to suggest Parliament intended a hierarchy of objectionable material.14 The Court dismissed the appeal, and held that the starting point of  five years’ imprisonment was within range when considering the totality of the offending.

(b)C v Police:15 police found 69 videos and 1,481 images on a cellphone, including two files of the defendant’s daughter aged four at the time of sentencing. C had received the material via a messaging application and distributed 61 messages. The material was of category C and was considered very minor. For possession and distribution, a starting point of four years and six months was set, which was reduced to four years’ imprisonment to account for totality.

(c)Pattison v Police:16 the appellant faced one charge of distributing objectionable material, being two images and two video files posted on an online chat group, and one charge of possession, being 874 files of which 325 depicted images of children engaged in abusive and other sexual activity. The Court of Appeal upheld a starting point of four and a half years’ imprisonment.

(d)Tilyard v Police:17 the appellant shared 128 images of child sexual exploitation with an undercover police officer. Police found a further 700 objectionable images at the appellants, which included images of boys aged ten to 15, partially naked and exposing their genitalia. All but five images were classes as category C. The two and a half year starting point was upheld.

(e)Robinson v Police:18 a seven-year starting point was given for possessing 20 video files and distributing 15, all of which depicted child sexual abuse, and fell into either category A or B. The distribution

14     Patel v R, above n 13, at [37].

15     C v Police [2019] NZHC 3431.

16     Pattison v Police [2018] NZHC 2163.

17     Tilyard v Police [2016] NZHC 1377.

18     Robinson v Police [2017] NZHC 2655.

was considered unsophisticated, which included Mr Robinson having shared the material online with an undercover police officer. The victims were aged between three and 14 years.

District Court decision

[19]   The Judge took a starting point of seven years’ imprisonment for the possession of objectionable material. A five per cent discount was given for co-operating with the Department of Internal Affairs’ (DIA’s) enquiries, such as releasing passwords to investigators. A further five per cent discount was given for previous good character. A 25 per cent discount was given for the guilty pleas. This resulted in a sentence of four years and six months’ imprisonment.

[20]   A psychological report had been obtained under s 38(1) (c), (d) and 2(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. That was for the purposes of assisting the Court as to the type and length of sentence that might be imposed and/or the nature of a requirement that the Court might impose as part of, or as a condition of, a sentence or order.

[21]   The psychologist’s report concluded that Mr Johnson’s explanation that he had enjoyed reading non-sexual material interspersed through the folders was clinically implausible, given the infrequency of the material. There was also a pre-sentence report, outlining Mr Johnson’s personal circumstances.

[22]   The Judge noted that a vast majority of the CSEM fell into category A, that the children were vulnerable and subjected to sexual assaults. His Honour also noted the offending had an element of premeditation and to an extent it was a pattern of behaviour over an extended period of time.

[23]When making comparisons to other cases, the Judge noted:19

… Care needs, however, to be taken as some cases involve more serious offending of distributing and making objectionable publications. I see nothing wrong when looking for that kind of offending in other cases in an overall

19     District Court Decision, above n 1, at [43].

way. A minor distribution case may be less serious than a serious possession case.

[24]   In relation to those cases, the Judge considered the seven-year starting point in Robinson v Police, involving the possession of 20 video files and an “unsophisticated” distribution of 15 files, which were of similar content but much less volume than in the present case.

[25]   The Judge viewed the present offending as being more serious than C v Police, which, to the Judge was a “less serious distribution case with its own aggravating factors”.20

[26]   The Judge noted it was difficult to compare this case with Patel v R. The nature of the material possessed and distributed in Patel v R showed extreme violence and supported terrorist organisations. It included images of beheadings, immolation and dismemberment of people.

[27]   In relation to Pattison v Police, the Judge concluded that, like C v Police, despite the presence of the more serious distribution charge, the offending was “a less serious situation than this”.21

[28]   The Judge found that the level of culpability was at the highest level, as the material was downloaded with some regularity, and that the explanation for the offending was implausible. The Judge found the management of the material suggested the intention was to retain the CSEM and use it in the future, and was “organised and large scale designed for sexual purpose”.22 There was a high level of engagement with the material over a long period of time.

[29]   The Judge also considered that despite Mr Johnson’s contention that nothing was known about his engagement with online activity, the appellant was sufficiently involved to collect the large quantity of material and connected with a network providing the material.

20     District Court Decision, above n 1, at [46].

21 At [49].

22 At [51].

[30]   Finally, the Judge considered that the content was “of course seriously aggravating”. This led to the starting point of seven years’ imprisonment.

[31]   An  affidavit  had  also  been  filed   by   an   Inspector   of   Publications,   Mr John Dennis Peacock related to the prosecutor’s application to have the defendant registered on the Child Sex Offender (CSO) Register under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 to be used if the defendant was sentenced to a non-custodial sentence. As a custodial sentence was imposed, the defendant was automatically placed on the CSO. Mr Forster, for the defence, noted that the affidavit contained material that was not in the statement of facts. I put that affidavit to one side, as did the Judge.

Submissions

Appellant

[32]   The appellant submits that while there were 13,000 images, modern downloading makes volume “a fickle measure of seriousness”. A large amount of material fell into category A, and was downloaded over a period of 18 months. The file management was comprehensive although the appellant says it was “not overly sophisticated”. There was no encryption, nor any evidence of making or distributing of the material.

[33]   Tilyard involved charges relating only to possession. A two and a half year starting point was adopted. Mr Forster pointed out this was almost three times less than the seven-year starting point in this case. However, Mr Forster agreed that Tilyard was not a useful comparison here. The material involved in that case was predominantly of a much less serious nature and was, in the main, category C material, so culpability was assessed on that basis.

[34]   Pattison, C v Police and Robinson involved distribution and/or making the material, which are more serious offences and carry maximum penalties of 14 years’ imprisonment.

[35]   The appellant says a five-year starting point should have been adopted in this case. Pattison and C v Police, had starting points of five and half years and four and a half years respectively. By comparison, the seven-year starting point in Robinson was considered the top of the range for a combination of distribution and possession charges. The appellant notes that the DIA had accepted in its sentencing submissions that the possession in this case was similar to the possession offending in Robinson. And so, the appellant says, the present case should attract a lower starting point because Robinson involved distribution and if the possession element was equivalent the starting point here should be lower as there was no distribution.

[36]   The appellant also submits that it was open for the Judge to have uplifted the sentence for the firearms charge, however this would have been a modest uplift of around three months. Mr Forster had no argument with the six months concurrent sentence that was imposed.

[37]   The appellant said that if a five-year three-month starting point had been adopted, the relevant discounts would have led to an end sentence of three years and five months.

[38]   The appellant submitted that the disparity between this and the current sentence of four years and six months engages s 8(e) of the Sentencing Act 2002: that there is an inconsistency in dealing with similar offending, and is a disparity so great that the current sentence is manifestly excessive.

Respondent

[39]   The respondent frames the key legal issue as being to what extent decisions involving minor distribution of objectionable material can inform the setting of a starting point for a serious possession case.

[40]   The respondent opposes the appeal on the basis that the Judge was correct as the CSEM was in the “upper end of the range of seriousness”. A serious possession offence could attract a higher penalty than a less serious distribution case.

[41]   The respondent notes that there are no comparable possession cases. This case involves substantial volumes of CSEM, which were downloaded and categorised over an 18-month period. A large portion of the material was category A material and included amounts of extreme child sexual abuse or sadism of a serious nature. The respondent submitted that on any reading of the summary of facts, the vast majority fell into the highest level of seriousness.

[42]   In response to a submission that assessing quantity of material was a blunt tool, the respondent notes the sentencing Judge had acknowledged this.23 The Judge had concluded that the quantity remained relevant. Premeditation and a pattern of behaviour could be inferred from the lengthy timeframe in which Mr Johnson was in possession of the material and the manner it was stored and categorised. The material had been stored on external hard drives and attempts had also been made to delete material stored on internet accounts.

[43]   The respondent says the Judge was correct to acknowledge that while making and distribution are more serious than possession, there may be cases where “[a] minor distribution case may be less serious than a serious possession case”.24

[44]   The respondent says there is direct harm caused to real children by those who possess CSEM. In submissions at sentencing the prosecutor had noted that harm is caused by the downloading of CSEM and it harms vulnerable children from around the world. Downloading such as is undertaken in the present case indefinitely fuels demand for such material. A serious possession case could therefore carry greater or similar culpability to a low-level distribution case. The setting of the starting point must be seen in this light.

[45]   C v Police involved a substantially lower volume and less serious type of CSEM. The respondent submitted the facts in Pattison v Police were much less serious than here. The respondent also says Tilyard v Police is of limited assistance given that the offending mostly involved category C material. The respondent agrees that the material is difficult to draw comparisons with the present case. Nevertheless,

23     District Court Decision, above n 1, at [39] and [41].

24 At [43].

the respondent says that Robinson is of substantial assistance. The offending there was at least on par in terms of seriousness and culpability as here.

[46]   In light of these cases and that serious possession cases can be more serious than low-level distribution cases, the respondent says the starting point was within range and, while on the higher end of the range, is consistent with Robinson.

Discussion

[47]   The only issue in this case is the starting point for sentence. Mr Forster indicated he did not take issue with the discounts allowed by the District Court, including the 25 per cent discount for the early guilty plea. Nor did Mr Forster take issue with the concurrent sentence of six months’ imprisonment imposed in relation to the firearms charge.

[48]   The focus is the starting point and whether there is an inconsistency with comparable cases. Most of the comparable cases also involved making and/or distributing objectionable material. The difficulty as the respondent points out is that on its facts this case is one of, if not the most serious cases reported in terms of possession charges alone.

[49]   Under s 131A of the Films, Videos, and Publications Classification Act 1993, the maximum penalty for possession of objectionable material is 10 years’ imprisonment, and 14 years for making or distributing objectionable material.25 In 2015, Parliament doubled the maximum penalty for possession and increased the maximum penalty for supply by 40 per cent, so indicating a stronger approach to sentencing for child pornography offending.26

[50]   Both parties accepted that there will be serious cases of possession that will attract a greater penalty than less serious cases of distribution. The Judge did not err in his reasoning on this point.

25     Films, Videos, and Publications Classification Act 1993, ss 123(1) and 124.

26     Robinson, above n 18, at [43].

[51]   I agree with counsel that the most useful case is Robinson. Patel concerns objectionable material of a serious but wholly different nature to that here. The possession offending in C v Police, Tilyard and Pattison was much less serious than in the present case, both in terms of scale, organisation and the period of accumulation. Those factors in this case point to premeditation and regular engagement with the material by Mr Johnson.

[52]   In Robinson, her Honour Fitzgerald J referred to Webb,27 where a starting point of seven years was taken for possession and distribution. The defendant there had been involved in advising and directing parents on how best to record the rape and abuse of their children. The lead offence was distribution and the sentence was imposed based on the previous maximum penalties. Mr Webb was also sentenced on four charges of making an objectionable publication for which the maximum penalty was 10 years’ imprisonment.28 Her Honour described that case as being considerably more serious than Mr Robinson’s and took the view that the starting point in that case was very lenient. She rejected the notion she should arrive at Mr Robinson’s starting point by parity with what was an “overly lenient starting point”.29 In conclusion her Honour considered that the seven- year starting point taken in Robinson was not too high “albeit at the upper end of the permissible range”.30

[53]   The Judge referred to the United Kingdom guidelines as being a “useful”. The guidelines as to different categories of child pornography could assist in determining the relative “seriousness” of material that is the subject of the charges. Her Honour noted that the non-exclusive list of aggravating and mitigating factors in those guidelines may also provide useful guidance for New Zealand Judges in assessing the gravity of offending.31

27     Webb v R [2016] NZHC 2966.

28 At [2].

29     Robinson, above n 18, at [50].

30 At [51].

31 At [41].

[54]   Turning to the United Kingdom Sexual Offences Definitive Guideline, the following aggravating factors in this case compare with those referred to in Robinson as follows:

Statutory Aggravating Factors32	Robinson	This case
Age and/or vulnerability of the child depicted.	As young as three years.	As young as one year.
Period over which the images were possessed, distributed or produced.	The distribution occurred between 1 and 19 June 2016. The material was seized by police on 6 October 2016.	18 months.
High volume of images possessed, distributed or produced.	The charges related to distribution of 15 digital video files; possession of 20 video files and a substantial collection of child pornography both video and image files on his home computer which were referred to in the summary of facts for sentencing purposes but not the subject of charges. 35 videos were described as “on any view extremely objectionable”. These involved young girls between three and 14 years (many may have been well under 10 years) depicting male adults subjecting    young    children to penetrative  sexual  activity  and	A summary of the material indicated that across the cloud accounts and external devices which were able to be analysed by the DIA in excess of 12,500 files depicted child abuse or exploitation, most of which were movies and videos. Of these approximately 450 depicted (mainly videos) contained images described as “sexually extreme or sadistic”. The 48,000 files which were found on the second external device had been put into an extensive folder structure with suitable     names     given    to identify  the  contents  such  as

32     Sentencing Guidelines Council “Definitive Guideline for the Sexual Offences Act  (2003)” (April 2007) [“Sentencing Guidelines Council’s Definitive Guideline”] at 78.

other      activities     including bestiality.	“LS Girls”, which depicted images of underage females in sexualised poses. Only a sample of those files were analysed due to the vast number of files and images.33
Placing images where there is the potential for a high volume of viewers.	Unsophisticated file sharing undertaken.	No file sharing.
Collection includes moving images.	Yes.	Yes – significant numbers.
Active involvement in a network or process that facilitates or commissions the creation or sharing of indecent images of children.	Yes – described as unsophisticated file sharing.	Not part of the facts before the court. Some participation was required to download the material.
Commercial exploitation and/or motivation.	File sharing occurred.	Not commercial.
Large number of different victims.	Unknown.	Yes.

[55]   The UK Guideline’s non-exhaustive list also includes other aggravating factors that are not directly relevant in this case.34

33 District Court Decision, above n 1, at [3]–[9].

34 The UK Guideline describes those other factors as: failure to comply with current orders; attempts to dispose of or conceal evidence; abuse of trust; child depicted known to offender; and child depicted intoxicated or drugged.

[56]   As is apparent from the above, the scale and nature of the material in this case was significant. It included a large amount of category A material. This case involves substantially more CSEM in general and “sexually extreme or sadistic” images of children, which were downloaded and curated and put on other devices, than were involved in Robinson. This is despite the file management involved, which Mr Forster says was unsophisticated even compared to the basic file sharing application that was used by Mr Robinson.

[57]   I accept Mr Forster’s submission that the volume alone might be misleading because of the speed of download and the length of time the materials were held. Nevertheless, in this case it is clear that the material was downloaded at different times, extensively engaged with, curated, managed and placed on devices which were external to the original cloud downloads. The volume is relevant, in that context, as is the nature of the material. Those factors make this case substantially more serious than the extent of the possession in Robinson.

[58]   The penalty imposed reinforces the fact that this is not a true victimless offence. The District Court had before it by way of affidavit the expert evidence of Mr Michael Sheath. Mr Sheath is an expert in the area and provided an affidavit to the Court in relation to the ideological underpinnings of child abuse imagery and its connections with sexual abuse, sexual exploitation and the trauma experienced by victims of those phenomena. He noted that the digital images are of real children, of real suffering, and real trauma. He pointed out the dangers of possession of this material. This speaks to the seriousness of this sort of possession, which perpetuates the cycle of harm against vulnerable children by creating a demand for this objectionable material.

[59]   I am of the view that the sentence was at the outer high end of the range. Seven years was a stern penalty, but the Judge made no error in setting that as a starting point. It is consistent with the cases when one takes into account the volume, management, curation, length of engagement, and nature of the material. It is possible to envisage more serious possession charges, but these would have their own aggravating and mitigating factors and may well attract a starting point of more than the seven-years’ imprisonment here. Each case will be different.

[60]   The  Judge  made  no  error.     The starting point was stern but within the appropriate range. Therefore, the end sentence is not manifestly excessive.

Result

[61]The appeal is dismissed.

Grice J

Solicitors:

BVA | The Practice, Palmerston North, for the Respondent.