Jones v Police - [2023] NZHC 3730

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.…

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.

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Details

Case: [2023] NZHC 3730
Decision Date: 15 December 2023

CaseChat Overview and Summary

Simon Dudley Jones appeals against his two years and two months’ imprisonment sentence, imposed by Judge Hikaka in the New Plymouth District Court, for possession of child exploitation material. Jones contends that the District Court Judge did not sufficiently consider mitigating factors, such as his cooperation with the Police, offer to pay $10,000 to a suitable charity, and his previous good character, and thus his sentence was manifestly excessive. The Police oppose the appeal, arguing that the Judge gave sufficient credit for the mitigating factors and that the sentence was appropriate. The High Court found that the District Court Judge did not err in his consideration of the mitigating circumstances and that the sentence was not manifestly excessive. The appeal was dismissed.

The key legal issues were whether the District Court Judge erred in not granting reductions for Mr Jones’ cooperation with the Police, offer to make a charity payment, and previous good character. The Court found that the Judge was correct not to give credit for Mr Jones’ cooperation with the Police, as there was no evidence of any assistance given. As for Mr Jones’ offer to make a charity payment, the Court concluded that the Judge was entitled to decline credit for it, given his view that it was effectively being offered in exchange for a discount at sentencing. Finally, the Court found that the one per cent reduction for Mr Jones’ previous good character was appropriate, given the length of time over which the offending took place. The end sentence was therefore not manifestly excessive.

Orders