NN v Police

[2014] NZHC 2355

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000022 [2014] NZHC 2355

BETWEEN

NN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	24 September 2014
Appearances:	T Cadogan for Appellant R D Smith for Respondent
Judgment:	26 September 2014

JUDGMENT OF GENDALL J

Introduction

[1]      Mr NN appeals against a sentence of two years’ imprisonment imposed by

Judge Coyle in the Dunedin District Court on 3 July 2014 for the following charges: (a)     possession of objectionable image (x 23);1

(b)      publishes an intimate visual recording (x 5);2

(c)       knowingly makes an objectionable publication (x 1);3 and

(d)      knowingly distributes an objectionable publication (x 4).4

1      Films, Videos, and Publications Classification Act 1993, s 131.  Maximum penalty of fine of

$2000.

2      Crimes Act 1961, s 216J. Maximum penalty of three years’ imprisonment.

3      Films, Videos, and Publications Classification Act 1993, s 124.  Maximum penalty of 10 years’

imprisonment.

4      Section 124(1). Maximum penalty of 10 years’ imprisonment.

NN v NEW ZEALAND POLICE [2014] NZHC 2355 [26 September 2014]

[2]      Mr NN appeals on grounds that the sentence was manifestly excessive as a

result of Judge Coyle’s following errors:

(a)      incorrect use of the UK Sentencing Council Guidelines in relation to child pornography through adopting changes made in guidelines on 1

April  2014,  those  changes  not  having  been  adopted  by  a  higher

New Zealand court;

(b)      failing  to  follow  the  UK  Sentencing  Guidelines  adopted  in  New

Zealand by the Court of Appeal in R v Zhu;5

(c)      breach  of  s  25(g)  of  the  New  Zealand  Bill  of  Rights  Act  1990 (NZBORA) by adopting higher UK guidelines that came into effect in the UK after the commission of the offences;

(d)incorrect application of the Supreme Court principles in Hessell v R in relation to a discount for remorse;6 and

(e)       the sentence was excessive when viewed alongside comparable cases.

Background

Intimate visual recordings

[3]      Up until 24 February 2014 Mr NN lived with his wife and eight year old daughter.

[4]      On about 20 December 2013 Mr NN’s wife was in bed one night when she heard Mr NN come into the bedroom and stand near the end of the bed.  She was lying on top of the bed and was wearing only a pair of panties.  Mr NN believed that his wife was asleep at the time and took photographs of her without her knowledge

or consent.

5      R v Zhu [2007] NZCA 470.

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[5]      The following morning she checked Mr NN’s cell phone and found that he had used his cell phone to send a photograph of her lying semi-naked on the bed to an associate of his.  He had done this without her knowledge or permission.

[6]      Subsequent examination of Mr NN’s cell phone by police revealed that he had made a large number of intimate visual recordings of his wife lying asleep on the bed, and of his naked wife standing in their bedroom.  These had all been taken on his cell phone camera.

Knowingly makes an objectionable publication

[7]      On 6 February 2014 Mr NN was at his home and his eight year old daughter and her eight year old friend were playing on a trampoline dressed only in their underwear.  The girls had also been playing under a sprinkler and Mr NN used his cell phone to take several photographs of the girls in their wet underwear.

[8]      Two days later on 8 February 2014 Mr NN sent one of these photographs to an associate by using his cell phone.  It seems the two men then exchanged a large number of text messages discussing the two girls and others.

Possession of objectionable images

[9]      On  24  February  2014  at  about  12.30  pm  Mr  NN’s  wife  again  checked Mr NN’s cell phone and found the photograph of the two eight year old girls that Mr NN had sent to his associate.   She confronted him about this and he left their home.

[10]     A short time later Mr NN returned to the address and left suicidal notes for his wife and the daughter before leaving again.   Mr NN’s wife found the notes a short time later and phoned the police.

[11]     Mr NN was located nearby later that afternoon nearby with a loaded semi- automatic rifle by his side.  After a period of negotiation he surrendered the rifle to police and was taken back to the local Police Station where he was dealt with by mental health services.  His cell phone was seized as an exhibit.

[12]     On 26  February 2014  the police  executed  a search  warrant  at  Mr  NN’s address  and  seized  all  of  his  electronic  recording  devices.    A laptop  computer belonging to Mr NN and his cell phone were examined by the police electronic crime lab.  They were found to contain a large number of objectionable images and intimate recordings.

[13]     The police analyst located 257 objectionable images and 2  objectionable videos on these devices.  He also found that there had been 22 individual sessions of photo sharing on Mr NN’s laptop computer where he had been sharing photo files with Yahoo chat room users.

Knowingly distributed objectionable publications

[14]     The police analyst further examined Mr NN’s computer and cell phone.  He found that Mr NN had used his Skype facility to distribute a number of objectionable images with a number of his associates.

Defendant comments

[15]     In explanation Mr NN stated that he had always looked at pornography and that this had escalated over the years with him being alone so much because his wife worked such long hours.

[16]     He said  that  he  had  become interested  in  various  forms  of  pornography including people having sex with prepubescent children and bestiality.

[17]     He   acknowledged   that   he   had   possessed   a   large   number   of   these objectionable images over the years and that he had also shared a number of these images/videos with other internet users and associates.  He also acknowledged that he shared photographs of his eight year old daughter and her eight year old friend with an associate and the two of them had communicated at length about how they would like to sexually abuse these girls.

[18]     Mr NN also acknowledged that he had taken photographs of his naked wife without her knowledge/consent and had shared these photographs with other internet users/associates.

Judge Coyle’s decision

[19]    Judge Coyle approached the sentencing process by referring to the UK Sentencing  Guidelines  which  have been  adopted  by the New  Zealand  Court  of Appeal in R v Zhu and R v Clode.7   He considered the five categories imposed by the

UK Sentencing Advisory Board Guidelines (the Guidelines):

(1)	Level 1 involved images depicting nudity or erotic posing but with no sexual activity;
(2)	Level 2 is sexual activity between children or solo masturbation by a child;
(3)	Level  3  is  non-penetrative  sexual  activity  between  adults  and children;
(4)	Level 4 is penetrative sexual activity between children and adults; and
(5)	Level 5 is sadism or bestiality involving children.
[20]	Judge	Coyle    determined   that    the   images    Mr    NN   possessed   were

predominately level 1.  However, he also noted that there were five level 4 images involving sexual activity between children and adults.  They ranged from sodomy through to penetration of a young girl’s vagina by a penis, and on another occasion by a finger and also involving oral sex.  There were five level 3 images, one level 2 image and nine level 1 images.  Therefore, the majority of the images in terms of the possession of an objectionable image related to the lower levels of offending.

[21]     Judge Coyle also considered there were three objectionable images, related to bestiality between adults.  He noted that the police had categorised them as level 5,

7      R v Zhu [2007] NZCA 470 and R v Clode [2008] NZCA 421, [2009] 1 NZLR 312.

but the Guidelines strictly related to children involved in sadism or bestiality because they are specifically centred on appropriate sentences for child pornography.   He noted that this has been affirmed in New Zealand case law.8   Judge Coyle determined on this basis that there were no level 5 images, but said he would still take the images  into  account  as  a  factor  to  consider  when  determining  an  appropriate sentence because possession of images depicting acts of bestiality is a crime.

[22]     In terms of the images Mr NN sent relating to his daughter and her friend, Judge Coyle assessed these as level 1 images, but this was aggravated by the text messages that accompanied them.9

[23]     Judge Coyle then considered the fact that the Guidelines that formed the basis of the New Zealand Court of Appeal decisions had been subsequently updated.  In the revised Guidelines in relation to an offender involved in the production of or trading in material at levels 1 to 3, the recommended starting point is one of two years’ imprisonment.  The Guidelines however, are not to be applied rigidly.  The circumstances of each individual case will determine movement within and between the ranges.

[24]     Judge Coyle set out his approach as governed by R v Taueki to fix a starting point  which  assesses   the  overall  culpability  involved  having  regard  to  the aggravating and mitigating features of the offending, with that sentence then adjusted on account of the aggravating and mitigating features personal to Mr NN.10

[25]     In terms of the aggravating features of Mr NN’s offending, Judge Coyle took

into account:

(a)       The age and vulnerability of the children depicted, which in terms of the Guidelines is given greater weight than to those children who have

entered puberty.   He noted that Mr NN’s daughter was particularly

8      Barnes v Police [2013] NZHC 3510 and Peterson v Department of Internal Affairs [2012] NZHC 1749.

9      Relying on Department of Internal Affairs v Wigzell HC Wellington CRI-2007-485-110, 20

November 2007 at [41].

10     R v Taueki [2005] 3 NZLR 372 (CA).

vulnerable  because  of  her  age  of  eight,  and  that  factor  was  a significant aggravating feature.

(b)The breach of trust between Mr NN and his wife and the breach of trust between Mr NN and his daughter was a significant aggravating feature.  He noted that the Guidelines made it clear that where a child is  known to  an  offender,  it  is  a separate and  distinct  aggravating feature.

(c)      The image was then used not only to send it to a friend but then used to facilitate sexually explicit text communication.

(d)The fact that Mr NN was involved in the making and distribution of images relating to young children for sexual purposes.

[26]     By taking these aggravating features into account, Judge Coyle adopted the charges of knowingly making an objectionable publication and distribution of the objectionable publication (both of which carry a maximum sentence of 10 years’ imprisonment)  as  the  lead  offences.    He  had  regard  to  the  principles  of  the Sentencing Act 2002, in particular deterrence and denunciation.  He also recognised the need to impose a sentence which is consistent with other sentences for similar offending.  He adopted a provisional starting point of two years’ imprisonment.

[27]     Judge Coyle then imposed an uplift of eight months to reflect the publication of intimate visual recording offending, arriving at a provisional sentence of two years and eight months’ imprisonment.

[28]     He then gave Mr NN a full 25 per cent discount for an early guilty plea, or eight months.

[29]     Judge  Coyle  took  into  account  that  Mr  NN  had  no  relevant  previous convictions, and that Mr NN had led a relatively blameless life.

[30]     He also considered Mr NN’s remorse, but applied the reasoning in Hessell v

R that to be given a discount over and above the remorse inherent in the entry of a

guilty plea, there has to be significant and compelling remorse.  Judge Coyle did not accept that Mr NN’s actions indicated any genuine remorse, but instead they were more indicative of regret and guilt instead of remorse, given Mr NN even persisted in later offending against his daughter once the offending against his wife came to light.

[31]     Judge Coyle reached an end sentence of two years’ imprisonment.  For the offence of possession of the objectionable publication, he convicted and sentenced Mr NN to $150 by way of a fine in relation to each of those charges.

[32]     As to the charges of publication of an intimate visual recording, Judge Coyle made an order of reparation to Mr NN’s wife of $2000.

Legal principles governing an appeal

[33]     Section  250  of  the  Criminal  Procedure Act  2011  now  governs  sentence appeals from the District Court to the High Court.  Section 250(2) of the Criminal Procedure Act 2011 provides:

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction;  and

(b)      a different sentence should be imposed.

[34]     The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.  Not every error in a sentence will provide the foundations for a successful appeal.  The types of error that are contemplated by s  250(2)(a) of the Criminal Procedure Act 2011

include:11

(a)       Section 250(2) reflects a synthesis or rationalisation of the previous

Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

11     Tutakangahau v R [2014] NZCA 279 at [26]-[36].

(b)The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(c)      The practical effect of preserving the previous approach is that the appeal  court  does  not  start  afresh  nor  simply  substitute  its  own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.12   If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.

(d)In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(e)      Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).

(f)      The  focus  in  sentence  appeals  remains  on  whether  the  sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

Analysis

[35]     It  is  well-established that  an  appellate  Court  should  not  interfere  with  a sentence imposed by a District Court Judge unless the sentence is manifestly excessive or wrong in principle.13    In particular, the Court should not substitute its

own opinion for that of the sentencing Judge.14    Whether a sentence is manifestly

12     R v Shipton [2007] 2 NZLR 218 (CA) at [139].

13     R v Brooks [1950] NZLR 658 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.

14     Wells v Police [1987] 2 NZLR 560 (HC) at 565.

excessive is to be considered by reference to the sentence imposed rather than the process by which the sentence was reached.15

[36]     Therefore the approach I use on this appeal is one of assessing whether the end sentence Judge Coyle reached was manifestly excessive or wrong in principle.

UK Sentencing Guidelines

[37] In my view, grounds one and two of the appeal noted at [2] above have no merit here for two reasons:

(a)      Judge Coyle was justified in using the Guidelines as a guide when setting the starting point; and

(b)It does not matter if Judge Coyle applied the Guidelines that were referred to in Zhu and Clode, the starting point he settled upon was entirely open to him.

[38]     In Clode, the Court of Appeal held:16

Until such time as this court or New Zealand’s Sentencing Council produces a guideline, we would encourage trial judges to use the UK guideline as “a useful guide for New Zealand” in cases involving child pornography.  The guideline sets out five levels of child pornography, level 1 being the least serious and level 5 the worst…The guidelines make it clear that the starting point should be higher where the victim is a child under 13…

[39]     In my assessment, Judge Coyle made no error when using the Guidelines as a guide when assessing a starting point for Mr NN.   Although the Guidelines have been amended with regard to suggested starting points for levels 1 to 3, Clode gives a broad guide to sentencing Judges to use the Guidelines until New Zealand adopts its own tariff decision.

[40]     With regard to the second reason, Judge Coyle found that there were four aggravating features of the offending present  here, two of which he held to be significant.   He also had regard to maintaining consistency with other sentences

imposed for similar offending.  For reasons I will generally amplify below, I find that the starting point of two years, which was adjusted upward by eight months to reflect the totality of offending, was not manifestly excessive in the circumstances of the offending.17     So far as the eight months uplift for the intimate visual recording offending relating to his former wife is concerned, notwithstanding Mr Cadogan’s reference to the decision in Diffin,18  I am satisfied also that this was not manifestly excessive given the recording was not a one-off incident and also involved a gross breach of trust.

[41] As to ground five of the appeal noted at [2] above, this suggested that the sentence imposed by Judge Coyle was excessive when viewed alongside comparable cases. On this aspect I was referred by counsel to the decision in S v R.19    In that case the offender similarly had photographed his daughter naked from the waist up. She was a vulnerable young teenager at the time with some limited intellectual function.  The photograph was taken with her consent and showed her naked breasts with the caption “Rate Me” on a sign which she was holding.  A starting point of

18 months was said by the Court in that case to be pitched at the right level.  The final sentence after trial in S v R was one of two and a half years, and took into account previous convictions of the offender, including rape of another teenager.

[42]     In the case before me as I have noted, Judge Coyle’s starting point was one of two years.   I am satisfied this was within an appropriate range given the extra elements in the present case over and above those present in S v R.  These included possession and use of a large number of objectionable images.   In my view the offending in the present case is significantly worse than that which occurred in S v R to justify the increased starting point.  And I am satisfied too that the uplift of eight months Judge Coyle imposed for the visual recording offences was unremarkable

given their timing and the serious breaches of trust involved.

17     Barnes v Police [2013] NZHC 3510; Petersen v Department of Internal Affairs [2012] NZHC

1749; R v Clode, above n 16; R v Zhu [2007] NZCA 470.

18     Diffin v NZ Police [2012] NZHC 2283.

19     S v R [2011] 3 NZLR 606.

[43]     Other decisions to which I was referred including Barnes v Police20 (starting point of three years six months where the appellant had pleaded guilty to 25 charges of supplying objectionable images and five charges of possession of objectionable images including images at levels 4 and 5), and Shaw v Department of Internal Affairs21  (which upheld a starting point of two and a half years for two counts of distributing material at levels 3 and 4 uplifted by a further six months to take account of possession charges).  In my view these support the conclusion that Judge Coyle’s starting point and indeed his end sentence were within appropriate ranges.

[44]     Accordingly, grounds one, two and five of the appeal must fail.

Section 25(g) of the NZBORA

[45]     This ground of appeal must also fail.  Section 25(g) of the NZBORA states:

Everyone   who   is   charged   with   an   offence   has,   in   relation   to   the determination of the charge, the following minimum rights:

…

(g)       The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty…

[46]     Section 25(g) imports the principle that statutes should have prospective and not retrospective effect.  The right to the benefit of a lesser penalty is also found in s

6(1) of the Sentencing Act.

[47]     The Guidelines however are not New Zealand legislation.  The incorporation of the use of the Guidelines in New Zealand is governed entirely by New Zealand case law. Therefore the third ground of appeal must fail.

Remorse

[48]     Section 9(2)(f) of the Sentencing Act states that evidence of the offender’s remorse or endeavours to make amends to the victim are to be taken into account as mitigating factors.

[49]     Arguably Judge Coyle did err here by applying the reasoning of the Court of Appeal in R v Hessell,22 instead of the reasoning of the Supreme Court in Hessell v R.23   The Supreme Court considered that the “exceptional” remorse approach did not sit well with s 9(2)(f) and that remorse was not necessarily reflected just in a guilty plea.24

[50]     However, if on robust evaluation of all the circumstances of a particular case, genuine remorse has been demonstrated by a defendant, a sentencing credit should be given in addition to that for the guilty plea.   In making that evaluation, it is unnecessary for the sentencing Judge to go into chapter and verse, especially where

the actions of the offender are incongruent with his or her expressions of remorse.25

[51]     In my assessment, Judge Coyle approached this issue correctly.  He evaluated the actions of Mr NN in continuing to persist in his offending against his family, after the offending against his wife came to light, and balanced this with his expressions of remorse. I see no reason to interfere with Judge Coyle’s decision not to allow Mr NN a further discount for remorse. The fourth ground of appeal noted at [2] above therefore must also fail

Conclusion

[52]     For all the reasons outlined above this appeal must fail.  It is dismissed.

...................................................

Gendall J

Solicitors:

Timothy Cadogan, Alexandra

RPB Law, Dunedin

22     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [24]-[28].

23     Hessell v R, above n 6.

24     At [63]-[64].