M v New Zealand Customs Service
[2021] NZHC 1402
•15 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-555
[2021] NZHC 1402
BETWEEN M
Appellant
AND
NEW ZEALAND CUSTOMS SERVICE
Respondent
Hearing: 8 June 2021 Counsel:
J C Harder for Appellant J-H Kang for Respondent
Judgment:
15 June 2021
JUDGMENT OF BREWER J
This judgment was delivered by me on 15 June 2021 at 11:30 am Registrar/Deputy Registrar
Solicitors:
Tucker & Co (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
M v NEW ZEALAND CUSTOMS SERVICE [2021] NZHC 1402 [15 June 2021]
Introduction
[1] On 25 November 2020, in the course of sentencing M, Judge N J Sainsbury ordered that M be registered under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (“the Act”).1
[2]M now appeals that order.
[3]The respondent does not oppose the appeal.
[4] My task is to decide whether the order that M be registered under the Act was an error such that the order should be quashed.
[5] My decision will turn (as the parties agree) on the applicability of the dicta in the recent Supreme Court decision, D (SC 31/2019) v Police.2
Background
[6] M was sentenced by Judge Sainsbury on the following charges (to which he had pleaded guilty):
(a)Two charges of knowingly importing an objectionable publication contrary to s 390(1)(a) of the Customs and Excise Act 2018;
(b)Two charges of knowingly distributing an objectionable publication contrary to s 124(1) of the Films, Videos, and Publications Classification Act 1993; and
(c)Knowingly possessing objectionable publications contrary to s 131A(1) of the Films, Videos, and Publications Classification Act 1993.
[7]M offended through use of peer to peer software installed on his computer.
1 R v [M] [2020] NZDC 24552.
2 D (SC 31/2019) v Police [2021] NZSC 2 at [7].
[8] On 26 February 2019, Customs Officers executed a search warrant at M’s address. During the search it was established that M’s computer was actively importing two objectionable publications from overseas countries. Both were assessed as Category A under the United Kingdom Guidelines 2014. One depicted a girl of perhaps nine years and the other a girl of perhaps 15 years.
[9]Two charges of knowingly importing an objectionable publication resulted.
[10] During the search it was found that M’s computer was also distributing files to other peer to peer program users. One of the images and one of the video files distributed depicted the sexual exploitation of a child or young person. The image was assessed as Category C under the United Kingdom Guidelines and the video file was the Category A video, depicting a girl of perhaps 15 years which resulted in one of the importation charges.
[11] The distribution of the image and the video file founded the two distribution charges.
[12] The charge of knowingly possessing objectionable publications was a representative charge and applied to approximately 1639 image and video files considered to be objectionable within the meaning of the Act. Those files depicted the sexual exploitation or abuse of children or young persons. 119 images and six video files were classified as Category A, 142 images and one video file were classified as Category B, and the balance were classified as Category C.
[13] When M was questioned during the exercise of the search warrant he said he had used the peer to peer software for about six years and that he would search the internet to find child sexual exploitation material. M said he knew that objectionable publications were illegal and he would delete objectionable publication files he downloaded once he had looked at them so as to avoid other people seeing them.
Judge Sainsbury’s decision
[14] M had no previous criminal history. He had mental health issues and after his arrest took active steps to address the causes of his offending. Judge Sainsbury, from
a starting point of four years six months’ imprisonment, ended up sentencing M to nine months home detention, emphasising the need for M to continue with his rehabilitation efforts.
[15]So far as registration under the Act is concerned, the Judge said:3
[40] That then brings me to the next issue. Where home detention is imposed as a sentence I need to consider whether there should be registration under the relevant legislation. I agree with the approach taken by her Honour Justice Thomas in C v Police4, set out at paragraph [57]. When considering s 9, Thomas J concluded, in that case, that it was clear that the appellant posed a risk to the sexual safety of children. I consider that is the case here. This is not a case of contact offending as such, but any relapse does put at risk the safety of children who are the victims of this offending. Registration, as Thomas J noted, has the result of enhancing protection of the community. I consider that it provides an oversight and safeguard to reinforce the need for you to take up and continue the rehabilitative steps. It follows that I consider it is appropriate that there be registration.
[16] Judge Sainsbury granted M permanent name suppression.
D (SC31/2019) v Police
[17] D v Police was delivered on 9 February 2021, several months after Judge Sainsbury’s sentence was imposed.5
[18] The part of D v Police relevant to this appeal is its discussion of the correct approach to s 9 of the Act, which is as follows:6
9 Court may make registration order
(1)If a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the court may order that the person must be placed on the register and must comply with the reporting obligations of this Act.
(2)A court may make an order under this section (a registration order) only if the court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.
(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:
3 R v [M] [2020] NZDC 24552.
4 C v Police [2019] NZHC 3431.
5 D (SC 31/2019) v Police [2021] NZSC 2.
6 Section 9 has been amended since the decision, but not in a way relevant to this appeal.
(a)the seriousness of the qualifying offence:
(b)the period of time that has elapsed since the offence was committed:
(c)the age of the person:
(d)the age of the person at the time of the offence:
(e)the age of any victim of the offence at the time of the offence:
(f)the difference in age between the victim and the person at the time of the offence:
(g)any written assessment of the risk posed by the person:
(h)any submission or evidence from any victim of the offence:
(i)any other submission or evidence relating to the risk posed by the person:
(j)any other matter that the court considers relevant.
(4)A registration order is made at the time of sentencing and is a sentence for the purposes of Part 6 of the Criminal Procedure Act 2011 (appeals).
(5)However, for the purposes of section 31 of the Sentencing Act 2002 (general requirement to give reasons), a registration order is an other means of dealing with the offender.
(6)The provisions of subparts 4 and 12 of Part 6 of the Criminal Procedure Act 2011, so far as they are applicable and with the necessary modifications, apply to an appeal in respect of a registration order.
[19] A majority of the Court held that the exercise undertaken by a court when considering making a registration order is a two-stage process.7 First, the Court must be satisfied that the offender poses a real or genuine risk to the lives or sexual safety of a child or children generally.8 Second, the Court must be satisfied this risk is of sufficient gravity to justify the making of a registration order with the consequent impacts on the rights of the offender.9
7 D (SC 31/2019) v Police [2021] NZSC 2 at [104] per Winkelmann CJ and O’Regan J, and [260] per Glazebrook J. This constituted a majority of the five-member Court.
8 At [104]-[105].
9 At [10] and [106-108].
[20] A different majority of the Court held further that in assessing the risk posed by an appellant, a Court may take into account updating reports of relevant experts notwithstanding this may change the risk profile considered by the sentencing Judge.10
Application of D v Police to M’s case
[21] M seeks leave to adduce an updating report from Mr van Rensburg, a registered clinical psychologist who provided a risk assessment to the sentencing Court. I grant leave.
[22] Mr van Rensburg’s report dated 16 October 2020, which was one of the reports before Judge Sainsbury (and consistent with them), concluded M was at low risk of contact sexual offending and at a low to moderate risk of non-contact sexual offending through use of the internet. Mr van Rensburg’s updated report11 concludes M is now at a low risk of sexual offending, contact or non-contact.
[23] The first limb of the test in D v Police is to decide whether M poses a real or genuine risk to the sexual safety of a child or children generally. M concedes that he does. I agree.
[24] M has, for years, been accessing abusive images and videos of children via the internet. The young ages of some of the children is of obvious concern. The risk of recidivism, despite the progress he has made with rehabilitation, remains. Winkelmann CJ and O’Regan J – although entirely obiter dicta – discussed the very similar situation of D. I respectfully adopt for this case their conclusion on the threshold issue:
[128] The fact that the risk is low does not mean that the appellant does not now pose a risk to the lives or sexual safety of one or more children or children generally, to use the words of s 9(2) of the Registration Act. This risk must be real or genuine, but, as discussed earlier, does not need to be more than that. There remains a low, but nonetheless real, risk that the appellant will resort again to viewing and possessing videos and photographs of the kind involved in his offending. But it is a reduced – and reducing – risk from that which was assessed by the District Court Judge. We consider this is sufficient to satisfy the threshold in s 9(2).
10 At [41] per Winkelmann CJ and O’Regan J and [159] per Ellen France J.
11 Dated 23 April 2021.
[25] The second limb of the test is whether M’s risk is of sufficient gravity to justify the making of a registration order with the consequent impacts on M’s rights.
[26] It is necessary to set out how a registration order impacts on an offender’s rights. First, pursuant to s 16, they must make an initial report:
(1)For the purposes of this Act, the relevant personal information to be reported by a registrable offender consists of the following information:
(a)his or her name, together with any other name by which he or she is, or has previously been, known:
(b)in respect of each name other than his or her current name, the period during which he or she was known by that other name:
(c)his or her date of birth:
(d)the address of each of the premises at which he or she generally resides or, if he or she does not generally reside at any particular premises, the name of each of the localities in which he or she can generally be found:
(e)the name, sex, and date of birth of each child who generally resides in the same household as that in which the offender generally resides:
(f)in respect of each child who generally resides in the same household as that in which the offender generally resides, the name of the principal caregiver:
(g)his or her postal address for service of notices and documents under this Act:
(h)if he or she is working,—
(i)the nature of the work; and
(ii)the name of his or her employer (if any); and
(iii)the address of each of the premises at which the offender generally works or, if he or she does not generally work at any particular premises, the name of each of the localities at which he or she generally works:
(i)details of his or her affiliation with any club or organisation that has a child membership or child participation in its activities, including any online club or organisation:
(j)the make, model, colour, and registration number of any motor vehicle owned by, or generally driven by, the offender:
(k)details of any tattoos, scars, or permanent distinguishing marks that he or she has (including details of any tattoo or mark that has been removed):
(l)if, at the time of making an initial report, he or she has 1 or more valid passports, the passport number, place of issue, and date of expiry of each passport:
(m)details of any telecommunications service used, or intended to be used, by the offender, including—
(i)the name of any landline or mobile telephone service provider used, or intended to be used, by the offender; and
(ii)any phone numbers used, or intended to be used, by the offender:
(n)the name of any Internet service provider, and the details of any routing or modem device, used, or intended to be used, by the offender:
(o)details of any username for any online social networks, online gaming accounts, or online storage accounts used, or intended to be used, by the offender:
(p)details of any website domain owned or website administered, or intended to be owned or administered, by the offender:
(q)details of any email addresses used, or intended to be used, by the offender.
[27] Second, there are ongoing reporting obligations. Sections 18 and 19 of the Act provide:
18 Requirement to make periodic reports
(1)A registrable offender must periodically make reports (each a periodic report) of the offender’s relevant personal information to the Commissioner until the offender’s reporting period ends.
(2)However, a registrable offender whose reporting obligations are suspended is not required to make periodic reports while the suspension is in force.
(3)A periodic report includes a report that simply confirms that the registrable offender’s relevant personal information stated in the last report previously made by the offender—
(a)is correct; and
(b)has not changed since the offender made the last report.
(4)If the registrable offender has been in custody since he or she last reported his or her relevant personal information under this section, the details he or she must report include details of when and where that custody occurred.
19 When periodic reports must be made
(1)A registrable offender must make a periodic report in each year during the reporting period, starting in the first year after the offender makes his or her initial report.
(2)The registrable offender must make the report—
(a)on the date specified by the Commissioner by notice in writing to the registrable offender, being a date that is—
(i)at least 1 month after the date on which the notice was given; and
(ii)at least 12 months after the date of the last periodic report by the offender under this Act (if any); or
(b)if no such date is specified by the Commissioner, by the end of the calendar month in which the anniversary of the date of the last periodic report by the offender under this Act or a corresponding law falls.
[28] Further, changes to relevant personal information must be reported.12
[29] Travel plans, and changes to them, must be reported if the plans will result in the offender being away from their residential address for more than 48 hours.13
[30] A registered offender may be required to provide fingerprints or submit to being photographed.14
[31] Generally, the reporting obligations for a person in M’s position last for eight years.15
[32] The information on the register can be accessed by specified agencies and authorised persons who have public interest reasons for doing so.
12 Section 20.
13 Sections 21 and 22.
14 Sections 29 and 30.
15 Section 35(1)(d).
[33] It is obvious from the above that the impact on M’s rights of being on the register is considerable. And the restrictions have limited relevance to the risk of offending via the internet.
[34] I accept, as did Winkelmann CJ and O’Regan J in relation to D’s case,16 that the requirements of s 16(1)(m)–(q) have some potential benefits where an offender’s means of offending is the internet. But, s 16 does not permit monitoring of M’s use of the internet. The s 16(1)(m)–(q) requirements could be useful in identifying M if he were to re-offend using his computer to access the internet, but the other requirements have no, or very limited, relevance to his case.
[35] As I did for the first limb of the test, I respectfully adopt for this case Winkelmann CJ and O’Regan J’s conclusion on the second limb:
[135] The appellant poses a low risk of internet offending. His ongoing treatment … has reduced this risk and there appear to be reasonable prospects of rehabilitation. On the other side of the balance is the limited benefit of a registration order and the intrusion into the appellant’s rights that we have highlighted earlier. Our assessment is that the level of risk that the appellant poses to the sexual safety of children is not of sufficient gravity to justify the making of a registration order with the consequent impacts on the appellant’s rights…
[36] It follows that I agree with Mr Harder for M and Mr Kang for the respondent that it was an error to make M the subject of an order for registration under the Act.
Decision
[37] The appeal is allowed. The order in the District Court registering M under the Act is quashed.
Brewer J
16 At [134].