Leyco v New Zealand Customs Service
[2023] NZHC 3556
•7 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-513
[2023] NZHC 3556
BETWEEN TEODORICO VAQUEZ LEYCO
Appellant
AND
NEW ZEALAND CUSTOMS SERVICE
Respondent
Hearing: 28 November 2023 Appearances:
J N Olsen for Appellant H T Reid for Respondent
Judgment:
7 December 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 7 December 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
J N Olsen, Barrister, Auckland Meredith Connell, Auckland
LEYCO v NEW ZEALAND CUSTOMS SERVICE [2023] NZHC 3556 [7 December 2023]
[1] On 28 August 2023, Mr Leyco was sentenced to four years and 10 months’ imprisonment in relation to various charges of exporting, importing, distributing, possessing, and making objectionable publications.1 The prosecution was brought by the New Zealand Customs Service.
[2] Counsel for Mr Leyco submits that the end sentence was manifestly excessive because:
(a)the starting point adopted was excessive and instead an appropriate starting point was six years’ imprisonment;
(b)remorse should have been dealt with separately from hardship as a foreign prisoner, with five per cent given for both;
(c)Mr Leyco has prospects of rehabilitation for which a 10 per cent reduction was appropriate; and
(d)the Judge wrongly considered the appellant’s personal background did not contribute causatively to his offending.
Legal principles
[3] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4
[4] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5
1 New Zealand Customs Service v Leyco [2023] NZDC 19137.
2 Criminal Procedure Act 2011, s 250.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
4 At [36].
5 At [32].
[5] Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Nature of offending
[6] Objectionable publications of the nature involved in this appeal are referred to as “child sexual exploitation material” (CSEM). It is wrong to describe it as “child pornography” because this fails to underscore the abusive nature of the exploitation of vulnerable children, and the real trauma they suffer from the abuse, both when it occurs and from subsequent circulation of the material. No child is capable of consenting to that type of exploitation.
[7] In many New Zealand cases concerning CSEM, the following categories have been adopted to describe the severity of the material:7
(a)Category A — Images of children involving penetrative sexual activity or images involving sexual activity with an animal or sadism.
(b)Category B — Images of children involving non-penetrative sexual activity.
(c)Category C — Indecent images of children not falling within categories A or B.
[8] The District Court considered that Mr Leyco’s offending involved 409 objectionable publications, 408 of which were CSEM in the following categories:
(a)399 falling within Category A, all of which were videos;
6 R v Boyd (2004) 21 CRNZ 169 at [38].
7 From the United Kingdom Sentencing Council’s guidelines on sentencing for sexual offences called Sexual Offences Definitive Guidelines (April 2014), but with the cautionary note that sentencing outcomes in New Zealand are likely to adopt somewhat higher starting points: Magill v R [2022] NZHC 2455 at [29]; Snell v R [2022] NZHC 1627 at [25] and [38]; Pengelly v Police [2021] NZHC 2974 at [27]; Johnson v Department of Internal Affairs [2021] NZHC 2480 at [13]; Robinson v Police [2017] NZHC 2655 at [19], [30] and [40]; and Stewart v Department of Internal Affairs [2014] NZHC 2209 at [26].
(b)two falling within Category B; and
(c)seven falling within Category C.
[9] The appellant says that the offending involved 365 unique objectionable publications depicting CSEM and that lower figure is the more relevant.
[10] Most of the charges against Mr Leyco were representative. He pleaded guilty to the following:
(a)three charges of knowingly distributing objectionable publications;
(b)one charge of making objectionable publications;
(c)seven charges of knowingly exporting objectionable publications;
(d)one charge of knowingly importing objectionable publications; and
(e)four charges of knowingly possessing objectionable publications.
[11] The offending took place between 14 October 2017 and 7 October 2022 when the appellant was arrested, a period of some five years. Videos possessed and/or distributed by the appellant included depicting the rape and torture of a male child, a male child blindfolded and bound by duct tape having water thrown in his face, molested, then an object inserted into the child’s anus, and adult males inserting their erect penises into the anuses of male and female children.
District Court decision
[12]The District Court imposed the sentence based on the following:
(a)a starting point of seven years’ imprisonment for the charge relating to distributing;
(b)a discount of 25 per cent for a guilty plea; and
(c)a five per cent discount to reflect the combined factors of remorse and the challenges the appellant is likely to face in prison.
[13] In setting the starting point, Judge K Maxwell started by considering the principles in Snell v R, which identifies five aggravating factors when assessing the seriousness of this type of offending:8
(a)The first was the aggravating factors identified in s 132A of the Films, Videos and Publications Classification Act 1993. The Court accepted that Mr Leyco’s offending engaged all three factors set out in that section. The vast majority of the publications fell within Category A. As a consumer and a distributor of CSEM, Mr Leyco had promoted and supported the production and sharing of material of this kind in and beyond New Zealand. The objectionable publications depicted sexual conduct involving children ranging in age from very young to pre-pubescent. This factor was found to be engaged at the highest level.
(b)The second and third aggravating factors were the nature and number of the publications. In addition to the CSEM, Mr Leyco also possessed a video of the Christchurch mosque attack.
(c)The next aggravating factor was the period of offending and curation. In this case, the offending took place between 2017 and 2022. As such, it was neither fleeting, nor brief.
(d)The final factor was the issue of harm. The Court noted that offending of this type may be remote in time and place but is nevertheless causative of harm because “[possessors such as the appellant’s] deviancy fuels the demand”.9
8 Snell v R, above n 7, at [56].
9 New Zealand Customs Service v Leyco, above n 1, at [18] referencing Waugh v Police [2010] NZHC 1867.
[14] Judge Maxwell referred to various cases that were considered by way of comparison.10 The closest analogies were Magill, Pengelly and Robinson, which she held justified a seven-year starting point:
(a)Magill v R — A global starting point of five years and nine months’ imprisonment was upheld for representative charges of possessing and distributing objectionable publications. Mr Magill had accessed a collection of video and image files depicting the sexual exploitation and abuse of very young children via a cloud storage service. He downloaded five video files to his own cloud account. The police executed a search warrant and seized 15 electronic devices and memory sticks, containing thousands of objectionable images and video files. The devices stored over 3,000 objectionable images and 200 objectionable videos. In addition, the cell phone contained “in excess of 5,000 images of a sexual nature”.11 In an appendix to the summary of facts listing a “small selection of the most serious material”, at least 33 videos were classified as category A.12 The distribution charge involved Mr Magill sending 10 emails to different email users, containing links to videos of child sexual exploitation. This took place over a period of six months.13 Factors relevant to culpability were not only the size of the collection, but the length of possession (over the course of 18 months) and the level of curation and enjoyment.14
(b)Pengelly v Police — Venning J held that the starting point should have been at least six to seven years’ imprisonment for hundreds of video files organised into folders, of which 280 were in Category A (including death, sadism, torture, bestiality and sexual exploitation of infants) and
10 Johnson v Department of Internal Affairs, above n 7; Pattison v Police [2018] NZHC 2163; Robinson v Police, above n 7; Pengelly v Police, above n 7; Magill v R, above n 7; Arps v Police [2019] NZHC 2113; and C v Police [2019] NZHC 3431.
11 Magill v R, above n 7, at [5].
12 At [6].
13 At [7].
14 At [24].
81 in Category B.15 The videos involved in excess of 100 hours of viewing time.16 Although the period of offending for the charges was between 4 and 21 December 2019, the evidence disclosed the offenders’ involvement with CSEM from December 2017.17 The offenders had not supplied or distributed the material, but the offending was nevertheless comparable in seriousness to Robinson. The penalties imposed on appeal ultimately reflected an overall starting point of six years.
(c)Robinson v Police — The District Court imposed a global starting point of seven years’ imprisonment, which was considered at the “upper end of the permissible range” by the High Court.18 Fitzgerald J noted that all of Mr Robinson’s publications fell within Category A or B and were “extremely objectionable”. Mr Robinson was sentenced for 20 charges of possessing, and 15 charges of supplying objectionable publications. The supply charges related to sharing 15 video files, 11 of which were Category A. Mr Robinson used eMule, a peer-to-peer file sharing service, and the period of offending was four months.19
[15] Turning to the aggravating and mitigating factors, the Judge considered that a discount of 25 per cent for pleading guilty should be available because that plea was entered almost immediately after the charges were laid.
[16] The Judge declined to award any discount for cooperation. Counsel for the appellant had alleged that this discount should be available because passwords to devices were provided when the search warrant was executed. This was regarded as a neutral factor not warranting any discount because he had a positive obligation to do so.
15 Pengelly v Police, above n 7, at [82].
16 At [75].
17 At [11] and [15].
18 Robinson v Police, above n 7.
19 At [24].
[17] Counsel for the appellant also sought a discount for remorse and for the potential hardship Mr Leyco might face in prison.
[18] The Judge had reviewed the pre-sentence psychological report and pre-sentence report and concluded that Mr Leyco was remorseful. However, she had concerns that the appellant may still have been downplaying the seriousness of the offending. In particular, the appellant told the writer of the pre-sentence psychological report, Dr Rogers, that he did not view the children depicted in the CSEM material as being “real people”. The Judge considered that, in part, that thinking may have been reflected in the apology that the appellant attempted to make to the Court, the Judge acknowledging that the real children who were the subject of the charges were who the apology should be directed at. Both showed an underappreciation of the real harm suffered by the victims depicted in the CSEM.
[19] In terms of the discount sought for previous good character, this was not available because the offending occurred over a period of five years. The offending was not an isolated fall from grace. It was deliberate and prolonged and tended against any character discount.
[20] The Judge also considered whether a discount should be allowed for background factors and the impact of a self-reported experience as a five-year-old being interfered with by an older teenager. No separate discount for this was provided because the Judge was not satisfied that there was a causative link with that background experience and this particular offending. Rather, the Judge considered that the offending was caused by curiosity, ramping up over COVID-19 lockdown because of boredom and isolation.
[21] Overall, the District Court decided to provide a modest five per cent discount to reflect some remorse and the challenges the appellant was likely to face in prison.
Appellant submissions
[22] In addressing the starting point, counsel for the appellant submitted that there had been a degree of double charging because the appellant was convicted with uploading objectionable publications to a social media platform and also with
distribution. In some instances, both relied on the same conduct. In another instance, one publication was the subject of two different charges. It was accepted that this is not an appeal against conviction, but the Judge may have been led into error by setting a starting point based on the number of objectionable publications when that included some double counting. The appellant emphasised that there were only 365 unique objectionable publications, not 408.
[23] In respect of the comparison with other cases, counsel for the appellant accepted that the present offending was slightly more serious than Magill in terms of Category A volumes.20 By contrast, it was submitted that Robinson was more serious, given the nature of the material involved and the significant duration of the video recordings in that case.21 On that basis, the offending should be regarded as falling between Magill and Robinson and a starting point of six years’ imprisonment is appropriate.
[24] On the issue of remorse, the appellant referred to the observation by the Court of Appeal in Moses v R:22
Remorse need not be extraordinary to earn a discount, but it does require something more than the bare acceptance of responsibility inherent in the plea. Courts look for tangible evidence, such as engagement in restorative justice processes.
[25] Discounts of five to 10 per cent were submitted to be appropriate for genuine remorse and willingness to engage in restorative justice. On this basis, counsel for the appellant submitted that the discount provided was inadequate. The comments to Dr Rogers of not seeing exploited children as “real people” showed insight, rather than lack of remorse. It demonstrated the appellant’s retrospective awareness of faulty thinking that led to his offending, rather than his attitude now. The appellant is now remorseful, which justifies a five per cent discount for that factor alone.
[26] Although prospects of rehabilitation are generally considered as part of previous good character, they may also be a separate consideration.23 Counsel for the
20 Magill v R, above n 7.
21 Robinson v Police, above n 7.
22 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
23 Sentencing Act 2002, s 9(4)(a).
appellant submitted that, even if the duration of his offending precluded a specific discount for previous good character, it does not preclude a discount for the prospects of rehabilitation. The pre-sentence psychological report and the pre-sentence report both demonstrate prospects of rehabilitation, and therapy treatment is recommended.
[27] Finally, counsel for the appellant submitted that Mr Leyco’s personal background warranted a discount to reflect his difficult upbringing, supported by the opinion of the clinical psychologist indicating that it was unlikely Mr Leyco would have offended in this way, had it not been for abuse he suffered at age five.
[28] Counsel for the appellant submitted that the Judge identified the correct test from Berkland v R as requiring a causative connection,24 but said in reality the Judge applied an operative or proximate cause. That was incorrect because in this case the abuse suffered at age five was one of the “diffuse drivers” that the Supreme Court intended to be captured through the causative contribution standard.25 For this factor, the appellant seeks a discount of 15 per cent.
[29] Overall, counsel for the appellant contended that the appropriate sentence is one of two years and five months’ imprisonment adopting a global starting point of six years’ imprisonment and discounts of:
(a)25 per cent for early guilty plea;
(b)five per cent for remorse;
(c)five per cent for hardship as a prisoner;
(d)10 per cent for prospects of rehabilitation; and
(e)15 per cent for personal background.
24 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
25 At [109] and [120].
Analysis
[30] On the issue of the global starting point, I do not see any error in the analysis undertaken by the sentencing Judge. I consider that a global starting point of seven years’ imprisonment is comparable to the other analogous cases, and properly takes into account factors relevant to culpability:
(a)A global starting point of seven years’ imprisonment is higher than that adopted in Magill. That is justified given that the volumes of Category A CSEM are much higher, and the duration of the offending was much longer compared with 18 months.
(b)This case is more serious than Pengelly because it involves distribution, and the number of Category A CSEM was higher, over a longer period of offending.
(c)I do not accept that the appellant in this case is less culpable than the defendant in Robinson. The volumes of Category A material are much greater and the period of offending much longer. I acknowledge that there are some differences in the duration of the video recordings but note that some of the video recordings in this case were nevertheless very lengthy, including one of 32 minutes and 33 seconds. I do not see any different approach on sentencing being justified by considering whether the relevant number of objectionable publications is 365 or 408. Both are a large number and, in any event, it has been acknowledged that assessing culpability based on the size of the collection is a blunt tool.26
(d)The overall offending described in the Summary of Facts discloses a significant degree of premeditation and sophistication in terms of using pseudonyms, false email addresses, and multiple accounts.
26 Stewart v Department of Internal Affairs, above n 7, at [42]; and Snell v R, above n 7, at [49].
[31] I see no error in the sentencing Judge’s conclusion that a global starting point of seven years’ imprisonment was justified.
[32] In terms of the Judge’s allocation of five per cent to reflect the combined factors of remorse and isolation based in prison, I do not consider that there is any error requiring correction. Judge Maxwell found that the letter to the Court did not demonstrate any particular remorse for harm to the children who were victims of the CSEM. It was in the context of looking for that evidence that Judge Maxwell noted Dr Rogers’ comments about Mr Leyco not viewing the children as “real people”. Those comments were seen as consistent with the way the appellant attempted an apology to the Court. I see no basis on which to revisit the Judge’s assessment on the issue of remorse.
[33] The pre-sentence report records that Mr Leyco comes from the Philippines and his immediate family still resides there. He arrived in New Zealand on 22 September 2015 and has held a resident’s visa since 5 June 2022. Mr Leyco said that he has only one friend for social support who lives in Papakura. The pre-sentence psychological report also refers to this background.
[34] Although a combined discount of five per cent for remorse and isolation faced in prison may be considered low, those factors were taken into account. I consider the discount within range, given that Mr Leyco has already been living in New Zealand for many years remote from his immediate family and without many significant friendship connections. While there will be increased isolation resulting from imprisonment, the appellant’s personal circumstances will not greatly impact his experience of those changes.
[35] I have reviewed the pre-sentence psychological report describing Mr Leyco’s background information, early history including the self-reported allegation of sexual abuse when he was five years old, his subsequent schooling and employment and the factors leading to the present offending. Mr Leyco is 40 years old. He says he experienced some nightmares about his sexual abuse until the age of 12. He then experienced a resurgence of his trauma memories since his early twenties. It seems that he did not commence watching CSEM until approximately 2016, which he
attributed to feelings of curiosity. His use of CSEM increased in response to “boredom and feeling isolated”, which was exacerbated during the COVID-19 lockdown period in 2020 and 2021 when his mood deteriorated after experiencing relationship issues with his partner. Within that context, Mr Leyco reported that he began to access age-appropriate pornography and CSEM on a daily basis.
[36] Dr Rogers reports that Mr Leyco’s early environment was positive and pro-social, but his experience of sexual abuse as a five-year-old does appear to have had a profound impact on his mental wellbeing and his social and sexual development. This appeared to contribute to development of low self-worth and difficulties trusting and developing connections with others. In the face of those negative emotions, pornography became a coping strategy. Following his move to New Zealand in 2015, he began to watch CSEM.
[37] I consider that Judge Maxwell’s conclusion is reasonable that the appellant’s experiences of abuse as a five-year-old cannot be categorised as causative within the sense required by the Supreme Court in Berkland. I therefore see no basis for concluding that the Judge made an error on that issue.
[38] On the issue of whether the appellant should be awarded a 10 per cent discount for rehabilitation, Mr Leyco has not sought out any counselling to better understand and address the causes of his offending. The report by Dr Rogers was prepared for the purposes of sentencing. It is not clear that Mr Leyco intends to undertake any specific rehabilitative process given that he claims not to have had any urge to access CSEM since his arrest in October 2022. As noted by Judge Maxwell, the offending spanned a period of five years so did not represent any isolated fall from grace. In my view, it is entirely understandable that no separate discount for rehabilitation was regarded as appropriate, given that there was no evidence substantiating what those efforts would entail and the prospects of success.
[39] Stepping back, I am not satisfied that there was any error in the imposition of the sentence by Judge Maxwell, nor that a different sentence should be imposed. I consider that the end sentence of four years and 10 months’ imprisonment is within the range that can properly be justified by accepted sentencing principles.
Result
[40]Accordingly, the appeal is dismissed.
O’Gorman J
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