Jones v Police
[2023] NZHC 3730
•15 December 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-41
[2023] NZHC 3730
BETWEEN SIMON DUDLEY JONES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 December 2023 (via VMR) Appearances:
A R Laurenson for Appellant R L Hinklin for Respondent
Judgment:
15 December 2023
JUDGMENT OF McQUEEN J
[1] On 17 November 2023, Mr Simon Jones was sentenced by Judge Hikaka in the New Plymouth District Court to two years and two months’ imprisonment, on five representative charges of possession of objectionable publications, namely child exploitation material, to which he pleaded guilty.1
[2] Mr Jones appeals his sentence, saying that that insufficient credit was given for certain mitigating factors, and that therefore his sentence was manifestly excessive.
[3] The Crown on behalf of the Police oppose Mr Jones’ appeal. Counsel submit that the Judge gave sufficient credit for mitigating factors and that the end sentence is not manifestly excessive.
[4]For the reasons below, I consider that Mr Jones’ appeal should be dismissed.
1 Police v Jones [2023] NZDC 25679. See Films, Videos, & Publications Classification Act 1993, ss 131A(1) and 131A(2(a); maximum penalty ten years’ imprisonment or a $50,000 fine.
JONES v NEW ZEALAND POLICE [2023] NZHC 3730 [15 December 2023]
Factual background
The offending
[5] As part of an investigation into the possession of child exploitation material, on 10 October 2022, a search warrant was executed at Mr Jones’ home. Several of Mr Jones’ electronic devices were sent to the Police’s High-Tech Crime Group who extracted data from them, locating a significant quantity of objectionable material. In total, 17,458 images were found, which were available to Mr Jones for a period of seven years. In a sample of 216 images, the Police located:2
(a)five videos depicting erotic posing by children with no sexual activity (category 1);
(b)22 videos and 32 images depicting sexual activity between children (category 2);
(c)nine videos and seven images depicting non-penetrative sexual activity between adults and children (category 3);
(d)59 videos and seven images depicting penetrative sexual activity between adults and children (category 4); and
(e)73 videos and two images depicting sadism or bestiality (category 5).
Pre-sentence report
[6] Mr Jones is 42 years’ old and has no previous convictions. He told the pre- sentence report-writer that he does not have any sexual interest in children. He said that he started off watching only ‘regular’ pornography involving consenting adults, and that his watching-habits eventually evolved when he obtained a catalogue of material that involved children performing sexual acts, which “became part of normal rotation”. The report-writer notes that Mr Jones was originally charged also with doing an indecent act in front of children, which allegedly involved him masturbating in
2 Using the classification set out in R v Zhu [2007] NZCA 470.
front of three children who lived next door to him. Mr Jones pleaded not guilty to that charge, which was then withdrawn when Mr Jones pleaded guilty to the other charges he faced. The report-writer suggests that Mr Jones failure to acknowledge an attraction to children may be a barrier to successful treatment.
[7] At the time of his offending, Mr Jones was residing at his parents’ address. He was then required to move from that address as a result of the charge involving the children who lived next door. Prior to sentencing he was living with one of his two sisters. Mr Jones has a close relationship with his family, and has a tight circle of close friends, some of whom he has not seen owing to his offending. As to employment, Mr Jones has previously worked as a painter, before working for the Air Force for approximately 12 years. He has more recently been involved in property development and book sales. Since his arrest Mr Jones has been engaged in weekly counselling. He told the report-writer that this counselling is focused upon his offending, and that he was finding it helpful.
[8] Mr Jones proposed his sister’s address as a potential address at which to complete a sentence of home detention. Mr Jones’ sister and her adult son consented to Mr Jones receiving home detention to their address. Mr Jones has been sleeping in the lounge at that address while on bail. The Police raised concerns with the report- writer following an assessment of the proposed address and nearby properties regarding the presence of children. It is said that there is evidence of the presence of children in the properties surrounding the proposed address, as well as a sports field, park, and playground within approximately 200 metres. Accordingly, the report-writer assessed the proposed address as unsuitable.
[9] Due to the significant number of images and videos that were in Mr Jones’ possession, and the period of seven years over which Mr Jones had the images, the report-writer recommended a sentence of imprisonment. The report-writer acknowledges that a sentence of home detention would be available but reiterates their concerns as to the proposed address.
Other material before the District Court
[10] There was further material before the District Court Judge. Firstly, a psychological report. That report is not relevant to the matters under appeal, so I do not set out its details. Second, letters from a counsellor that Mr Jones has been seeing since April 2023. Third, a letter from Mr Jones himself.
[11] Mr Jones’ counsellor reports that Mr Jones presents as genuinely remorseful for his offending and looking to make the necessary changes to his life. He says that they have done significant work regarding Mr Jones’ values, and that “I have found his offending at odds with the character that I have come to know”.
[12] Mr Jones’ letter to the District Court Judge is a letter of apology, in which Mr Jones says that he is deeply ashamed. He indicates that he now understands the nature of his offending and why it is wrong. He describes his offending as one step in a cycle of harm. He notes that he has sought professional help in a private setting to specifically address his offending throughout the period leading up to his sentencing in the District Court. He acknowledges his offending and says that he is determined to face the consequences.
District Court judgment
[13] The District Court Judge began by setting out the charges, Mr Jones’ offending, the pre-sentence report, Mr Jones’ participation in counselling, and counsel’s submissions. Before the District Court, the Police sought a starting point of three years’ imprisonment, noting that a sentence of imprisonment would be the appropriate final outcome. Counsel for Mr Jones instead sought an electronically-monitored sentence, noting Mr Jones’ guilty plea and initial steps towards rehabilitation. Counsel for Mr Jones also sought a discount for what he said Mr Jones’ co-operation with the Police, and a discount for previous good character.
[14] The District Court Judge adopted a starting point of three and a half years’ imprisonment. His Honour then adopted a 25 per cent reduction for Mr Jones’ guilty plea and a 10 per cent reduction for remorse and rehabilitation. The Judge also gave a one per cent reduction for previous good character, noting that this was all that was
available to Mr Jones given the length of time over which Mr Jones was in possession of the objectionable material. However, the Judge did not make any further reduction from the starting point on the basis of Mr Jones’ co-operation with the Police—saying that Mr Jones was required to cooperate with the Police in any event. Nor did the Judge think it was appropriate to apply a further reduction for Mr Jones’ offer to pay $10,000 to a suitable charity.
[15] The end sentence, as noted, was two years and two months’ imprisonment. In concluding, the Judge noted that his view was that it would not be appropriate to reduce the end sentence to make home detention an available option, acknowledging the reservations of the pre-sentence report-writer as to the proposed address. The Judge also made orders for the destruction of the objectionable material, and Mr Jones’ registration on the Child Sex Offender Register.
Approach to appeal
[16] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. An appeal against a sentence is an appeal against the exercise of a discretion. For Mr Jones to be successful, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.3 If these factors are not satisfied, the Court does not retain any discretion and must dismiss the appeal.4
[17] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.5 It must be shown that there has been an error made by the sentencing Judge.6 The Court cannot “tinker” with a sentence imposed where that sentence is nevertheless in range.7
3 Criminal Procedure Act 2011, s 250(2).
4 Section 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
6 At [27].
7 R v Boyd (2004) 21 CRNZ 169 at [38].
Positions of the parties
Mr Jones
[18] Counsel for Mr Jones, Mr Laurenson, makes no submissions as to the starting point adopted by the District Court Judge or the reduction made for Mr Jones’ guilty plea. He submits that the Judge should have adopted reductions for Mr Jones’ co- operation with the Police and his offer to make a payment of $10,000 to charity. I record that Mr Laurenson advised me at the hearing that, earlier this week, Mr Jones has donated $10,000 to the Brave Charitable Trust, a sexual harm prevention charity supporting rangatahi. Following the hearing, I have seen the receipt for this donation, as provided to the registry.
[19] Mr Laurenson says also that there should have been a greater discount for Mr Jones’ previous good character. He submits that Mr Jones was entitled to a 15 per cent discount for cooperation with authorities, five per cent for good character, and ten per cent for his offer to make a payment to charity. He says that if awarded, these reductions would have allowed the possibility of a sentence of home detention.
[20] Mr Laurenson relies on Magill v R, in which the defendant was found in possession of over 8,000 objectionable images and videos, and was distributing that material.8 Before the District Court, the defendant received discounts totalling 55 per cent, consisting of 25 per cent for his early guilty plea, 15 per cent for co-operation with the authorities, five per cent for good character, five per cent for remorse, and five per cent for rehabilitation prospects. Those discounts were not challenged on appeal, which only addressed the starting point. Mr Laurenson submits that Mr Jones is entitled to similar discounts.
[21] Mr Laurenson says that if Mr Jones’ appeal is successful this should open the door to a sentence of home detention, and that if so, the Court should exercise its discretion to not add Mr Jones’ name to the Child Sex Offender Register. He submits also that the address proposed by Mr Jones would be suitable for home detention, noting that Mr Jones was residing there for seven months on bail without the Police or
8 Magill v R [2022] NZHC 2455.
any other agency showing concern. Mr Laurenson provided for the purposes of the appeal a letter from Mr Jones’ sister dated 12 December 2023 confirming that she can provide a bedroom for Mr Jones, were he able to reside at her house on home detention, as her son has recently moved out.
The Police
[22] Ms Hicklin, Crown counsel appearing on behalf of the Police, submits that the Judge was correct to decline credit for assistance to authorities, given there is no evidence of any such assistance being given by Mr Jones. Ms Hicklin says also that the credit given for Mr Jones’ lack of previous convictions was appropriate given the lengthy period of offending.
[23] As to Mr Jones’ offer to make a payment to charity, Ms Hicklin notes that this could be seen as a proposed measure to be taken to make good the harm caused by Mr Jones’ offending, which would then therefore be a mandatory consideration at sentencing.9 The Court must take into account whether or not the offer was genuine and capable of fulfilment and whether it has been accepted by any known victim.10 The Court retains a discretion as to sentencing regardless of any offer to make good harm that has been caused.11
[24] Ms Hickling submits that “an offer will be given significant weight only to the extent that it represents a genuine effort to accept responsibility for the offence”.12 She says that the District Court Judge was entitled to decline credit for the offer to make a payment to charity, given his view that it was being offered by Mr Jones effectively in exchange for a discount at sentencing, and that there was no reason why such a payment could not have been made already.
9 Sentencing Act 2002, s 10(1)(d)(iii).
10 Section 10(2).
11 Section 10(3).
12 Graham v Police [2018] NZCA 112 at [12].
Analysis
Co-operation with the Police
[25] A defendant who provides valuable information and/or assistance to the Police regarding criminal offending whether it be their own or the offending of others can generally be expected to receive credit for that at sentencing.13 However, the value of any assistance determines the extent of any credit given. As stated by the Court of Appeal:14
The key determinant of the discount to be given for assistance will generally be its value. Other factors, such as the nature of the assistance given (including whether the informant gives or is prepared to give evidence at trial), the degree of personal risk involved and adverse consequences suffered will also be weighed where relevant. But they will count for little if the information itself has no practical value.
[26] In Magill the appellant was granted a 15 per cent reduction by the District Court Judge in the following terms:15
As far as co-operation with authorities is concerned, it is accepted that there is some scope for that by the Crown, because you gave them the authority to conduct what is known as an “account takeover of your gmail” which led to the more serious distribution charge, so I think that 15 per cent credit is available to you.
[27] In the present case the Police do not accept that Mr Jones has assisted them. They say that there is no evidence of Mr Jones providing any assistance at all. The District Court Judge agreed with that submission.
[28] Mr Laurenson conceded at the hearing that he could not take this point further. As such, I do not accept that Mr Jones should have received a reduction in his sentence for the provision of assistance to the authorities.
13 See R v Strickland [1989] 3 NZLR 47 (CA); R v Rose [1990] 2 NZLR 552 (CA); and Farley v R
[2017] NZCA 97.
14 Williams v R [2011] NZCA 384; cited in A v R [2018] NZCA 61 at [26].
15 R v Magill [2022] NZDC 16185 at [38].
Previous good character
[29] Evidence of an offender’s previous good character is a mitigating factor included in s 9(2) of the Sentencing Act. Typically, persons who are first-time offenders are entitled to credit in recognition of their previous good character, and as a result of an assumption they are less likely to reoffend. However, in some circumstances, first-time offenders are not entitled to such credit, and whether any credit is given is a matter of a court’s discretion.16 Specifically, the courts in previous cases have been reluctant to give credit to first time sexual offenders where their offending occurred over a lengthy period of time.17 Or in other words, “the subsequent accumulation of offending gives the lie to the propositions that the offender is generally of good character, and the first offence is an isolated fall from grace”.18
[30] The difficulty for Mr Jones is that he has accepted that he was in possession of the objectionable material for a period of seven years and was using it for at least two years. This is a longer period than the appellant in Magill, who offended over a period of three years and was awarded a five per cent discount for good character, supported by positive references.19
[31] Mr Laurenson suggests that length of possession of objectionable material is part and parcel of this kind of offending such that, when combined with Mr Jones’ otherwise good character (including 12 years’ service in the Air Force), a reduction greater than what was given by the District Court Judge was justified. Mr Laurenson also emphasises the work Mr Jones has undertaken to acknowledge his offending and to respond to the issues that underlie it. I accept that material before the Court demonstrates that Mr Jones has committed to this rehabilitation work, and I commend Mr Jones for that. Against this, is the seriousness of the offending, which should not be understated. The length of time over which Mr Jones’ was in possession of the objectionable material is an element of the seriousness of the offending. I ultimately consider that these factors are appropriately accounted for in the discount for remorse and rehabilitative efforts.
16 See Manawaiti v R [2013] NZCA 88 at [18]; referring to R v Hockley [2009] NZCA 74 at [32].
17 See for example R v Hearling [2009] NZCA 298 at [18].
18 Taylor v R [2017] NZCA 574 at [25]–[26].
19 Above n 15, at [38].
[32] I am not satisfied that the Judge erred in only granting a one per cent reduction for Mr Jones’ lack of previous convictions and/or previous good character. In my view, the period of time over which the offending took place is significant. Mr Laurenson’s arguments do not convince me that it would be appropriate to reduce Mr Jones’ sentence by more than that.
Charity payment offer
[33] The District Court Judge’s view on Mr Jones’ offer to make a charity payment was as follows:20
There has been a submission that you should get a further discount because you are prepared to pay $10,000 to a suitable charity in order to provide some sort of support and assistance to those who deal with the victims of this sort of offending. If you were intent on that I would have anticipated that you would have done that by now. To present it as a factor that should lead to a reduction in your end sentence, as the sergeant has referred, there is something of a non sequitur about it.
I can appreciate what your motivation might have been, but given the timing of the offer, and that it has the appearance, or could have the appearance I should say, of looking to ameliorate an end sentence. In other words, paying for a reduction in an end sentence. I am not questioning the submission that has been made, but as I have said, that is something you can do in your own time that is indicative of remorse that you feel, but it does not reduce the gravity of the offending which you accept, as the senior courts also say, is very serious.
[34] The Judge considered Mr Jones’ offer of a charity payment, and concluded that it did not justify a further reduction.
[35] Since then, however, a donation has been paid by Mr Jones. Mr Laurenson says that Mr Jones was willing to make the payment well before sentencing and has not at any stage been seeking to “buy” a lesser sentence. Mr Laurenson takes responsibility for the payment not being made until this week. He says he thought it appropriate to put the proposal before the District Court Judge.
[36] I am not persuaded that the donation now made should result in a further reduction to Mr Jones’ sentence. The fact that payment has been completed is not the defining factor, indeed, the District Court Judge’s concern about making a donation in
20 Above n 1, at [31]–[32].
exchange for a lesser sentence might be seen as even more acute if payment before the hearing of an appeal was accepted as sufficient to justify a reduction. The Judge could have required the payment to be made but he did not, because he had already concluded that no reduction for this factor was appropriate.
[37] I do not consider there was any identifiable error in the Judge’s analysis nor that the position changes following the actual payment of the donation. Again, I am satisfied that an appropriate reduction for remorse and rehabilitative efforts has already been given.
Is the end sentence manifestly excessive?
[38] I have concluded above that the District Court Judge did not err in his consideration of the mitigating circumstances in this case. As such, I am satisfied that the end sentence is not manifestly excessive. It is therefore not necessary for me to consider whether leave should be granted to apply for home detention in the District Court, and I am satisfied that Mr Jones’ appeal should be dismissed.
Result
[39]For the reasons above, the appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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