Leyco v New Zealand Customs Service
[2024] NZCA 234
•18 June 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA33/2024 [2024] NZCA 234 |
| BETWEEN | TEODORICO VAQUEZ LEYCO |
| AND | NEW ZEALAND CUSTOMS SERVICE |
| Court: | Thomas, Fitzgerald and Osborne JJ |
Counsel: | J N Olsen for Applicant |
Judgment: | 18 June 2024 at 10.30 am |
JUDGMENT OF THE COURT
The application for leave to appeal is granted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Mr Leyco pleaded guilty in the District Court to 16 representative charges of possessing, exporting, importing, distributing, and making objectionable publications. He was sentenced by Judge K Maxwell in the District Court to four years and 10 months’ imprisonment.[1] His appeal against sentence was dismissed in the High Court.[2]
[1]New Zealand Customs Service v Leyco [2023] NZDC 19137 [District Court judgment].
[2]Leyco v New Zealand Customs Service [2023] NZHC 3556 [High Court judgment].
Mr Leyco now applies to this Court for leave to appeal against his sentence a second time.[3] The respondent opposes the application.
Factual background
[3]Criminal Procedure Act 2011, s 253(1).
Between October 2017 and October 2022, Mr Leyco:[4]
(a)uploaded (exported) 11 publications (videos) depicting child sexual exploitation material (CSEM) to an overseas social media platform using various usernames and distributed them using private messages and chat groups;
(b)uploaded (exported) 117 publications (115 videos and two photographs) depicting CSEM to an overseas cloud storage provider;
(c)downloaded (imported) 15 publications (videos) depicting CSEM;
(d)made 28 objectionable publications (videos) using a screen recording application to record videos depicting CSEM;
(e)possessed 237 publications (230 videos and seven photographs) depicting CSEM across an electronic device and a cloud account; and
(f)possessed a copy of the video of the Christchurch masjidain attack.
[4]Based on the agreed summary of facts.
These publications included videos of a male child performing fellatio on an adult male, videos of an adult male inserting his erect penis into the anus of a male child, an eight-minute-long video depicting the rape and torture of a male child, a video of an adult male stroking the penis of a male child, and a video of a male child having intercourse with a female child. Of the 408 CSEM publications Mr Leyco variously dealt with, 399 of them were videos that fell within “Category A” of the categorisation adopted by the Sentencing Council for England and Wales — the most serious category — which is defined as involving images of children involving penetrative sexual activity or images involving sexual activity with an animal or sadism.[5]
[5]Sentencing Council for England and Wales Sexual Offences: Definitive Guideline (1 April 2014) at 76. This Court in Wittig v R [2021] NZCA 100 at [34] endorsed to use of the guidelines’ categorisation of CSEM in the New Zealand context in regard to their description of the kinds and relative seriousness of objectionable material.
Mr Leyco pleaded guilty to 16 representative charges as follows:
(a)three charges of knowingly distributing objectionable publications;[6]
(b)one charge of making objectionable publications;[7]
(c)seven charges of knowingly exporting objectionable publications;[8]
(d)one charge of knowingly importing objectionable publications;[9] and
(e)four charges of knowingly possessing objectionable publications.[10]
District and High Court decisions
[6]Films, Videos, and Publications Classification Act 1993, ss 123(1)(d) and 124(1).
[7]Sections 123(1)(a) and 124(1).
[8]Customs and Excise Act 2018, s 390(1)(a).
[9]Section 390(1)(a).
[10]Films, Videos, and Publications Classification Act, ss 131(1) and 131A(1).
In sentencing Mr Leyco, Judge Maxwell adopted a global starting point of seven years’ imprisonment,[11] allowed a 25 per cent discount (21 months) for early guilty pleas,[12] and a five per cent discount (4.2 months) to reflect the combined factors of remorse and the challenges Mr Leyco would likely face in prison.[13]
[11]District Court judgment, above n 1, at [24].
[12]At [26].
[13]At [36].
A report by a registered clinical psychologist was tendered to the Court for the purposes of sentencing. Amongst other matters, it recorded that Mr Leyco had reported being sexually abused at age five by a friend’s older teenaged brother. The abuse ceased when Mr Leyco’s family relocated that same year.
Counsel for Mr Leyco sought a discount on sentencing in respect of the causative contribution of Mr Leyco’s abuse on the offending. The Judge found “that no compelling link is drawn between that and this particular offending”.[14] The Judge concluded that she did “not see a strong causative connection between what [Mr Leyco] said happened as a five-year-old and what [Mr Leyco] said to the psychologist as the reason for the offending”.[15]
[14]At [34].
[15]At [35].
Mr Leyco’s appeal to the High Court was on the basis that the end sentence of four years and 10 months’ imprisonment was manifestly excessive because the starting point adopted was excessive; remorse should have been dealt with separately from hardship as a foreign prisoner (Mr Leyco is Filipino); he had prospects of rehabilitation for which a discount was appropriate; and the Judge wrongly considered Mr Leyco’s personal background did not contribute causatively to his offending.
O’Gorman J was satisfied that the global starting point of seven years’ imprisonment was justified and there was no error in respect of the five per cent discount to reflect the combined factors of remorse and isolation while in prison.[16] The Judge reviewed the psychological report but considered the District Court Judge’s conclusion was reasonable that Mr Leyco’s experiences of abuse as a five-year-old “cannot be categorised as causative within the sense required by the Supreme Court in Berkland”.[17] She therefore saw no basis for concluding that the Judge made an error on that issue.
[16]High Court judgment, above n 2, at [31]–[32].
[17]At [35]–[37], referring to Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
The appeal was dismissed.[18]
Mr Leyco’s application for leave to appeal to this Court
Submissions for Mr Leyco
[18]At [40].
Mr Leyco applies for leave to appeal to this Court on the grounds the sentence was manifestly excessive because the starting point was too high and the District Court Judge erred by not giving a discount in respect of his childhood sexual abuse. He says both the District and High Court Judges focused on one aspect only of the psychologist’s report rather than the fact Mr Leyco’s issues developed as a result of that abuse.
Mr Olsen’s submissions for Mr Leyco do not address the starting point and focus only on the lack of a discount in respect of the causative contribution to the offending of Mr Leyco’s childhood abuse. In Mr Olsen’s submission, Mr Leyco ought to have received a 15 per cent discount which would result in a one-year reduction in sentence. He says, therefore, the error was significant and gave rise to a miscarriage of justice.
Mr Olsen relies on the Supreme Court case of Berkland v R and its discussion of the importance of an offender’s background.[19] He refers to the Supreme Court’s explanation of the nexus required between an offender’s background and the offending being a “causative contribution” rather than “operative or proximate cause”.[20]
[19]Berkland v R, above n 17, in particular at [89] and [91].
[20]At [109].
Mr Olsen submits that there was a significant error in the sentence because it was plain from the psychological report that Mr Leyco’s offending was not isolated from his personal background. This was emphasised by the material viewed by Mr Leyco which neither the District Court nor the High Court Judges took into account. In his submission, the examples of the material subject to each charge were largely of penetrative sexual offending (oral and anal) by adult males against male children. That, he said, directly mirrors the sexual offending against Mr Leyco. Mr Leyco’s personal background was therefore causatively connected to the offending and this should have been taken into account.
Submissions for the respondent
The New Zealand Customs Service | Te Mana Ārai o Aotearoa opposes the application, saying the criteria for leave to bring a second appeal to this Court are not met. The proposed appeal does not disclose any issue of general or public importance and there is no risk of miscarriage because the sentencing Judge did not err in her assessment of the connection between the content of the psychological report and Mr Leyco’s offending. The respondent says there is nothing in the psychological report which demonstrates Mr Leyco’s reported experience of being sexually abused as a child had causatively contributed to his serious objectionable material offending. Even if the requisite link had been established, the respondent says that the high level of offender agency in Mr Leyco’s offending necessarily and justifiably limits any effect of his personal background on his sentence.
Analysis
The application for leave to appeal is not brought on the basis that it involves a matter of general or public importance but rather that a miscarriage of justice may have occurred because the sentence imposed was manifestly excessive.
We consider that Mr Olsen was correct not to advance the application on the basis the starting point was excessive. It was not. It was comparable to other analogous cases, as the High Court Judge determined.[21]
[21]High Court judgment, above n 2, at [30].
We do, however, consider it is seriously arguable that the causative contribution to the offending of Mr Leyco’s childhood sexual abuse was not adequately considered by the District or High Courts. We say that in particular because we have some concern about the language employed in both Courts. The District Court Judge did not see a “strong causative connection” and the High Court Judge considered that conclusion reasonable, somewhat ambiguously saying the abuse could not be characterised as “causative within the sense required by the Supreme Court in Berkland”.[22] The Court in Berkland was clear that requiring an operative or proximate cause in every case sets the bar too high and that the appropriate standard is causative contribution.[23]
[22]District Court judgment, above n 1, at [35]; and High Court judgment, above n 2, at [37].
[23]Berkland v R, above n 17, at [109].
We observe that the psychological report was perhaps not as helpful as it might have been in addressing the issue.
We are satisfied it is in the interests of justice to grant leave to appeal to enable this Court to consider whether a miscarriage of justice may have occurred as a result of the approach taken in the Courts below to the assessment of the causative contribution to the offending of Mr Leyco’s background.
Result
The application for leave to appeal is granted.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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