Pengelly v Police
[2021] NZHC 2974
•5 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-348
[2021] NZHC 2974
BETWEEN MURRAY RICHARD PENGELLY
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2021-404-347 BETWEEN
COLIN KENNETH BRADLEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2021-404-374 BETWEEN
NEW ZEALAND POLICE
Appellant
AND
MURRAY RICHARD PENGELLY and COLIN KENNETH BRADLEY
Respondents
Hearing: 1 November 2021 Appearances:
D M M Dickinson for Mr Pengelly A C Cresswell for Mr Bradley
J J Rhodes and F C J Faull for New Zealand Police
Judgment:
5 November 2021
JUDGMENT OF VENNING J
This judgment was delivered by me on 5 November 2021 at 11.00 am.
Registrar/Deputy Registrar
Date……………
Solicitors/Counsel: Mr D Dickinson, Barrister, Auckland
A Cresswell, Barrister, Auckland
Kayes Fletcher Walker Ltd, Manukau City
PENGELLY & BRADLEY v NZ POLICE & NZ POLICE v PENGELLY & BRADLEY [2021] NZHC 2974 [5
November 2021]
Introduction
[1] Murray Pengelly and Colin Bradley pleaded guilty to six representative charges of knowingly possessing objectionable publications and one charge each of possessing methamphetamine. Judge T V Clark sentenced Mr Pengelly to imprisonment for 32 months and Mr Bradley to imprisonment for 25½ months.1
[2] Mr Pengelly and Mr Bradley appealed against their sentences as being manifestly excessive. The Police cross-appealed against the sentences on the basis they were manifestly inadequate.
[3] Mr Pengelly no longer pursues his appeal against sentence but maintains his opposition to the Crown appeal. Mr Bradley opposes the Police appeal and maintains his appeal against sentence.
The offending
[4] Mr Pengelly and Mr Bradley live together at an address in a rural town near Auckland. On 23 December 2019 the Police executed a search warrant at their address. The Police seized 11 electronic devices from the address. The devices were subsequently examined by the Police Electronic Crime Lab. The examination located images and videos on three devices that met the definition of objectionable as described under s 3, Films, Videos, and Publications Classification Act 1993.
[5] The offending images and videos were found on a black Acer laptop, a black Verbatim hard drive, and a white Apple iPhone. There were 94 videos on the laptop, seven images and 906 videos on the hard drive and one image on the iPhone. The examination of the black Acer laptop disclosed that 153 videos had been viewed from the black Verbatim hard drive between 4 December and 21 December 2019. It also disclosed that further hard drives not located in the search warrant had been used to view videos that were titled with suggestive child exploitation material during the month of December 2019.
1 R v M R Pengelly & C K Bradley [2021] NZDC 13939.
[6] In the course of executing the search warrant the Police also located four point bags and a plastic straw in the offenders’ bedroom. One of the point bags contained
0.5 g of methamphetamine.
Sentencing process
[7] The appellants were first before the Court on the charges on 27 May 2020. They were both represented by Ms Cresswell. At their next appearance on 29 July 2020 they entered guilty pleas and were convicted and remanded to 23 November 2020 for sentence. They each obtained a pre-sentence report, a psychological report, and a s 27 report for the purposes of sentencing. In the reports both appellants sought to downplay and minimise their engagement with the objectionable material on the laptop and hard drive. In response the Police filed further evidence with the Court.
[8] The further evidence demonstrated the falsity of the appellants’ attempt to minimise their involvement and use of the objectionable material. First, it showed that the objectionable material on the black Acer laptop had been divided and filed into three folders. It also confirmed that 237 further data files had been deleted from the Acer laptop, most on 22 December 2019.
[9] Next, the objectionable material found on the offenders’ Verbatim external hard drive had been organised and divided into six folders. That hard drive had “interacted” with the Acer laptop on 4, 15 and 19 December 2019. A separate hard drive, which the Police did not locate during the execution of the search warrant, had been used to access 267 video files which contained titles suggestive of objectionable material. That hard drive had first interacted with the appellants’ Acer laptop on 3 June 2019.
[10] The further information also confirmed that materials involving the torture of and sadism towards children (including videos depicting the penetration of children by adults) had been viewed consecutively during the period of the offending between 4 and 21 December.
[11] Next, further analysis of the Apple iPhone disclosed conversations from December 2017 that were consistent with the user of the phone discussing the viewing
of material relating to the exploitation of young persons, bestiality, drug use and the sharing of objectionable publications.
[12] The sentencing was adjourned to 12 March 2021. At that time separate counsel, Mr Dickinson, was instructed for Mr Pengelly and the matter was further adjourned. Updated psychological reports were also obtained before the sentencing ultimately proceeded on 9 July 2021.
[13] Judge Clark referred to the further material put before the Court by the Police in her sentencing notes. The Judge recorded that, after discussion with counsel, she proceeded on the basis that where the suggested mitigating factors “butt up” against the undisputed further evidence not referred to in the summary of facts she would simply make a determination as to whether the contradiction equated to mitigating factors. If not, then that was the end of the matter. If they did then she would give them weight.
[14] Mr Rhodes submitted that the further information was relevant not only to consideration of the appellant’s personal factors but was also relevant to the assessment of their general culpability.
[15] Ms Cresswell accepted that the further evidence disclosed the appellants were involved with objectionable material for a longer period and that the further information could also be relevant to culpability, but submitted that the sentence imposed must still relate to the period of offending covered by the charge, which was 4 December to 21 December 2019.
[16] The starting point is that the appellants are to be sentenced on the basis of the summary of facts they pleaded guilty to. However, the further evidence provides further detail about the matters referred to in the summary of facts. It is undisputed. As such, no issue of a need for a disputed fact hearing arises. The further information is relevant in two respects. First, it is relevant as to culpability. For example, it confirms that the material the subject of the charges was organised into folders. While not referred to in the summary of facts, that is a further undisputed fact relevant to culpability. Next, it is relevant to respond to the appellants’ attempt to minimise their
use of the material in the reports they put before the Court. In the reports presented for sentence the appellants sought to downplay their use of the objectionable material. The undisputed further evidence refutes their attempts to do so.
District Court decision
[17] The Judge took an overall starting point of four years, three months’ imprisonment. She described that starting point as “reasonably benevolent”. No uplift was imposed for the methamphetamine offence. The Judge then applied a 25 per cent discount for the guilty pleas. In Mr Pengelly’s case, the Judge was prepared to accept a further reduction in sentence of 10 per cent for his previous good character and two and a half per cent for some minor steps towards rehabilitation. Applying the 37½ per cent discount to the start point led to Mr Pengelly’s end sentence of 32 months’ imprisonment.
[18] In the case of Mr Bradley, in addition to the guilty plea discount, the Judge gave further discounts of 10 per cent for good character, 10 per cent for the factors contained in his s 27 report, and a further five per cent for rehabilitative steps that he had taken to address his drug use. The reduction in his sentence of 50 per cent led to the end result of 25½ months’ imprisonment.
Police appeal
[19] The Police appeal the sentences imposed on the basis they were manifestly inadequate because:
(a)the starting point was too low to adequately reflect the gravity of the offending; and
(b)the combined discounts given for personal mitigating features in respect of both offenders was too high.
Mr Pengelly’s appeal
[20] As noted, Mr Pengelly no longer pursues his appeal against sentence but submits that the end sentence imposed in the District Court appropriately reflected the
seriousness and totality of the offending and the total discount was appropriate. For those reasons he opposes the Police appeal.
Mr Bradley’s appeal
[21]Mr Bradley opposes the Police appeal and submits:
(a)the starting point imposed was too high as the Judge had insufficient regard to other similar cases; and
(b)the Judge impermissibly tailored the sentence so that home detention was not an available option. The Judge failed to consider the least restrictive sentence available in the circumstances which should have been home detention.
Jurisdiction/Principles
[22] The Police appeal is brought pursuant to s 246 of the Criminal Procedure Act 2011 (the Act), with the consent of the Solicitor-General.
[23]Mr Bradley’s appeal is under s 244 of the Act.
[24] This Court must allow the appeals if satisfied that for any reason there is an error of law in the sentence imposed and a different sentence should be imposed. However, on a Crown or Police appeal an appellate court will not alter the sentence unless it is either manifestly inadequate or wrong in principle.2
[25] In Tutakangahau v R the Court of Appeal confirmed that, although s 250 makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long-standing, are consistent with the statutory language and should continue to be utilised when considering whether the Court should allow an appeal under s 250.3 They provide a helpful means of examining the significance of the error
2 R v Muavae [2000] 3 NZLR 483 (CA).
3 Tutakangahau v R [2014] NZCA 279.
to decide whether a different sentence should be imposed. Also, the focus is on whether the sentence is within range rather than the process by which it is reached.4
Starting point
[26] In fixing the start point at four years, three months Judge Clark referred to the Court of Appeal decision in R v Zhu.5 The Court had approved five levels of activity or seriousness when considering objectionable publications. The two most serious were level four, involving penetrative sexual activity between adults and children, and level five, sadism or brutality. The Judge also considered the later 2014 Guidelines issued by the Sentencing Council for England and Wales which had been referred to and applied by Fitzgerald J in the High Court decision of Robinson v New Zealand Police.6
[27] The Sentencing Council for England and Wales produced Guidelines which were revised in 2014 into three categories:
(a)Category A – the most serious images involving penetrative sexual activity and images involving sexual activity with an animal or sadism.
(b)Category B – images involving non-penetrative sexual activity.
(c)Category C – other indecent images not falling within categories A or B.
[28] The Judge referred in summary to the examples taken as supporting the six representative charges as follows:
[42] In relation to the videos located on the Verbatim hard drive, as a representative charge, there were 357 videos [totalling] over 53 hours involving penetrative sexual activity between an adult male and a dog - below category C.
[43] Example 1, Dog Spotted Heat man fucking young female Dalmatian dog.mpg. Adult male inserting penis into vagina/anus of a dog sex continues video is 10 minutes 52 seconds.
4 At [32]–[36].
5 R v Zhu [2007] NZCA 470.
6 Robinson v Police [2017] NZHC 2655.
[44] Example 2, Cum Marathon part 4, Video compilation of a number of adult females sucking a dog’s penis. Some of the females insert the dog’s penis into their vagina’s and have sex with the dogs. The video is 66 minutes and 47 seconds long.
[45] Example 3, add5 - Horsepower, video of adult male and two adult females having sex with each other. A horse is tied up. The females suck and rub on the horse’s penis. One female puts the horse’s in her anus whilst the other male and female have sex next to them. That video is 58 minutes and 40 seconds long.
[46] As a representative charge 13 videos and two images totalling over 30 minutes sadism against children - category A.
[47] Example 1 is a video of a girl aged 0 -2 years. There is a cord tied around the neck of the girl by an adult male. The girl is placed over a building hanging out of sight of the camera and is brought back over the wall deceased. The title on the bottom of the video is rigormortis.com. The video is four minutes and 35 seconds long.
[48] Example 2, Baby boy 1.5yo Tied in Bath Tub Gets Raped Hard (anal).mp4. Video of a boy aged 1-2 years tied to a bench by arms and legs. An adult male stands over the top of the boy and defecates and urinates on the face and chest of the boy. The boy is screaming. Boy tied other way to table and has finger inserted into anus whilst adult ejaculates onto the back of the boy. That video is five minutes and 43 seconds long.
[49] Example 3, Baby 2.3gp is a video of a boy aged 1-2 years. The boy is tied upside down by his feet by an adult male. His arms are tied behind his back. The adult inserts his penis into the mouth of the boy. The boy is whipped with a belt, has candle wax dripped on his genitals, is tortured upside down whilst blood drips from the boys head. The video is nine minutes and 40 seconds long.
[50] As a representative charge 267 videos totally over 20 hours involving penetrative sexual activity between adults and children - category A.
[51] Example 1, 2015 BestOfBabyBoy Cumpilation.mp4. A video compilation of infant babies being ejaculated on by adult males. Some of the babies have adult males penis inserted into their anus’ and mouths. That video is six minutes and 40 seconds long.
[52] Example 2, 3 year old brutal (1)avi. Video of a girl aged 2-4 years, the adult male inserts his penis into the vagina of the girl, penetrative sexual activity continues. The girl sucks his erect penis. The male inserts his penis into the anus of the girl. Anal beads are inserted into the anus of the girl while the girl watches porn on a laptop in front of her. That video is six minutes and 46 seconds long.
[53] Example 3 is a video of a boy aged 1-2 years. An adult male inserts his penis into the anus of the boy. There is aggressive penetrative sexual activity which continues. The boy is crying throughout. The video is five minutes and 12 seconds long.
[54] Example 4, (opva) Bibigon 8 year old girl, 9 year old brother, dad vibro school+++x264.mp4 is a video of a boy and girl aged 6-10 years naked in the bath. An adult male watches them and asks them to pose and then urinates on the female’s face. The adult also makes the boy urinate on the girl. The boy licks the girls vagina. The girl sucks the boy’s penis. The boy inserts his penis into the girl’s vagina. The girl sucks the penis of the adult. The adult inserts his fingers in the girl’s vagina and also inserts a dildo into the anus of the girl. The video is 38 minutes and 16 seconds long.
[55] Example 5, (baby girl) babyshowersperm.avi is the video of an infant girl aged 0-1 years, legs and arms tied down and a cloth over the baby’s face. An erect adult penis masturbates over the babies vagina while trying to insert his penis. Ejaculates over her vagina and uses his finger to rub semen into the vagina. The video is one minute and 15 seconds long.
[56] As a representative charge 37 videos totalling over one hour involving non-penetrative sexual activity between adults and children - category B.
[57] Example 1 - ?4. Video of a boy aged between 10 and 14 years who is lying on his back. An adult male masturbates the child and himself, ejaculates on the child and uses his finger to put semen in the face of the child. The video is 36 seconds long.
[58] Example 2, a girl aged between 4-8 years. An adult ejaculates on the girl’s chest and makes the girl rub semen on her chest. The video is 49 seconds long.
[59] Example 3, (b)! new-9 (boy with a man).mpg. Boy aged 6-10 years, naked, adult masturbates the child. Video is nine minutes and 49 seconds long.
[60] As a representative charge 44 videos totalling over three hours of sexual activity between children or solo masturbation by a child - category B.
[61] Example 1, girl aged 10 to 12, solo masturbation inserts toothbrush into anus then into mouth. Video is one minute 58 seconds long.
[62] Example 2, 12 year old Yigit Cenabetim Jerks Cum Omegle Bibcam 2012 (2)avi. Boy aged 12 to 16 solo masturbation in front of webcam. Video is 12 minutes and one second long.
[63] As a representative charge 19 videos totalling over 11 minutes. Images depicting erotic posing with no sexual activity - category C.
[64] Example 1, video of a boy aged 5-8 years wearing a dog collar lying on back spreading butt cheeks apart. Video is 31 seconds.
[65] Example 2, boy aged 12 to 16 in front of webcam undresses, exposes his erect penis before dressing again. Video is three minutes and 32 seconds.
[29] The Judge recorded that a significant portion of the material involved category A offending (noting the defence point that the majority of watchable hours related to
images or videos involving bestiality). She also noted the penalty for the offence had been increased from five years to 10 years’ imprisonment for such offending.7
[30] The Judge then considered the cases referred to by counsel and in particular discussed the cases of R v Nielson, and Police v Donald8 in some detail before considering the aggravating features of the present case.
[31] The Judge summarised the position by noting the offenders were in possession of 280 videos, with over 20 hours of playing time in category A, which included death, sadism, torture and sexual exploitation of infants aged between 0 and two years; 81 videos, with four hours of viewing category B; and 19 videos, 11 minutes in category
C. The balance was a large number of bestiality related materials which occupied a greater amount of viewing hours.
[32] Ultimately the Judge went back to first principles and, taking into account all aggravating and available mitigating factors in relation to the offending she fixed the starting point at four years, three months’ imprisonment.
Police submissions – starting point
[33]Mr Rhodes submitted that taking into account:
(a)the seriousness of the kind of offending in light of Parliament’s decision to double the maximum penalty;
(b)the available case law;
(c)the seriousness of this offending in particular, which he submitted was unprecedented since the maximum penalty had been increased; and
(d)the principle that the Court “must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most
7 Tilyard v Police [2016] NZHC 1377.
8 R v Nielson [2019] NZHC 685; and Police v Donald [2019] NZDC 3020.
serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate”9
the starting point of four years, three months was manifestly inadequate.
[34] Mr Rhodes submitted that, while the Judge correctly identified the relevant aggravating features of the offending she erred in her assessment of its seriousness in light of the aggravating features. Those features required a higher starting point than adopted by her. Mr Rhodes submitted that the offending in this case was comparable in seriousness overall to the case of Robinson, notwithstanding the absence of supply or distribution charges in the present case.10
[35] Mr Robinson had pleaded guilty to 15 charges of supplying objectionable publications and 20 charges of possessing objectionable publications. Fitzgerald J dismissed his appeal against an end sentence of four years, five months’ imprisonment. In doing so Fitzgerald J acknowledged that the overall seven year starting point for all charges was available to the Judge.
[36]Mr Rhodes argued a starting point of at least six years was required in this case.
Mr Bradley’s submissions on starting point
[37] Ms Cresswell submitted the Judge had erred by approaching the matter on the basis of first principles, and by not dealing with the cases that had been referred to her. Ms Cresswell made the point she had referred a number of cases dealing with similar offending to the Judge.
[38] Ms Cresswell submitted it was important that sentencing judges not become caught up in finding cases which matched the total amount of files or material. Rather, regard should be had to the intrinsic character of the objectionable material in possession of the offender. She submitted in the present case the relevant features were:
9 Sentencing Act 2002, s 8(d).
10 Robinson v Police, above n 6.
(a)a relatively short period of offending;
(b)a relatively large collection of video files, but where the focus was on adult bestiality;
(c)no indication of on-line behaviour other than messaging over WhatsApp with a small number of individuals; and
(d)organisation of the material was limited to placing it into folders.
[39] Ms Cresswell emphasised that a substantial amount of the objectionable publications related to adult bestiality. While still serious, she submitted that as the Court had recognised in Pattison v Police,11 such offending was less serious.
[40] Ms Cresswell submitted the case of Robinson v Police could be distinguished.12 It was more serious and involved distribution. Ms Cresswell submitted that, having regard to the authorities cited by her, the starting point ought to have been in the region of three to three and a half years. The starting point of four years, three months was in error.
Mr Pengelly’s submissions – starting point
[41] Mr Dickinson submitted that it is difficult to compare cases in the area given the varying circumstances and the different combinations of charges that are often brought before the Courts. He submitted that the end sentence imposed in the District Court appropriately reflected the seriousness and totality of the offending in this case. It was within range.
[42] Mr Dickinson submitted that the case of Robinson which the Crown relied on was distinguishable.13 It involved a significant number of more serious charges over a longer date range and the charges involved the use of covert on-line tools.
11 Pattison v Police [2018] NZHC 2163.
12 Robinson v Police, above n 6.
13 Robinson v Police, above n 6.
[43] In Mr Pengelly’s case the offending was an extraordinary fall from grace. Mr Dickinson noted that Mr Pengelly and his partner, Mr Bradley, had been subjected to community reprisals after publication of their names and address.
[44] Mr Dickinson argued that, even if it could be said the sentence imposed was at the lower end of the available range it was certainly not outside the range. The end sentence was appropriate, and the Police appeal should be dismissed.
Analysis
[45] There is no tariff for offending of this nature. There is limited Court of Appeal authority that considers the offending. The most relevant in terms of principle remains that of R v Zhu.14
[46] Mr Zhu had pleaded guilty to four counts of supplying objectionable material and 10 counts of possessing such material. A starting point of four and a half years had been taken by the sentencing Judge. At the time the maximum penalty for supplying was 10 years, and the maximum penalty for possessing objectionable material was five years. Nevertheless, there are features of the Court of Appeal decision which are generally relevant.
[47] First, the Court referred to the United Kingdom’s Sentencing Advisory Panel’s 1992 report in relation to such offending. Without necessarily adopting the full categorisations or sentencing levels as appropriate for New Zealand, the Court accepted that the Advisory Panel’s analysis of seriousness and general sentencing levels was a useful guide. In particular, the Court noted that the most serious offending was category four (penetrative sexual activity between children and adults) and category five (sadism or bestiality).15
[48] The Court then noted the most objectionable images in Mr Zhu’s case were those of child rape. A DVD had images of different young children up to seven years
14 R v Zhu, above n 5.
15 In R v Henderson [2008] NZCA 305 and R v Clode [2008] NZCA 421 the Court of Appeal confirmed the endorsement of the Guidelines on child pornography issued by the Sentencing Advisory Panel report as a useful guide.
of age being sexually abused. One involved the adult rape of a child of approximately six years of age. Other victims were older. Other DVD’s showed sadistic behaviour towards children. The Court categorised the offending as very serious offending and repeated the message that such offending is not victimless. Each image involved the exploitation of the child. The Court accepted that the starting point of four and a half years’ imprisonment, which was less than 50 per cent of the maximum penalty, was within the range available.
[49] On that authority alone, given the substantial number of objectionable videos in the appellants’ possession and given the nature of the content, a starting point significantly more than the four years, three months taken by the Judge in this case was required. In Zhu,16 while the case involved distribution, there were only four charges and a limited number of images.
[50] Further, on 7 May 2015 the maximum sentence for the offence of possession with knowledge (as in this case) was increased from five to 10 years.
[51] The explanatory note for the Bill set out the policy behind the increased penalties:
The Government's objective is to ensure that sentences for child pornography offences reflect the seriousness of the offending and send a strong message that the exploitation and abuse of children will not be tolerated.
…
Increasing penalties sends a clear message that possession of, and trade in, child pornography is an abhorrent act that encourages the abuse of children, and therefore deserves to be treated as serious offending.
[52] In R v A the Court of Appeal considered the increase in sentence for sexual violation offences and cautioned sentencing judges against not allowing adequately for the spirit of the legislative changes on the previously existing general level of sentencing for the relevant offending.17 The reasoning is applicable to the increase in the maximum sentence for the current offending.
16 R v Zhu, above n 5.
17 R v A [1994] 2 NZLR 129 (CA) at 131.
[53] A further relevant feature of sentencing for this offending is that s 132A(2) of the Film, Videos, and Publications Classification Act 1993 requires the Court to take into account as an aggravating feature the extent to which any of the objectionable publications:
(a)promotes or supports or tends to promote or support the exploitation of children or young persons or both for sexual purposes;
(b)describes, depicts or otherwise deals with sexual conduct with or by children, or young persons, or both; and/or
(c)exploits the nudity of children, or young persons, or both.
[54] In that regard it is relevant that the summary of facts provides further information about the exploitation of children for sexual purposes. It is estimated that more than 200 new child sexual images are circulated daily on the internet. The number of sexual predators connected to the internet at any one time is estimated to be 750,000 (Source: United Nations, July 2009 – Najat Maalla).
[55] The United Nations estimates that between 10,000 and 100,000 minors are victims of child sexual abuse networks. The number of child sexual abuse images has quadrupled between 2003 and 2007 (Source: United Nations, July 2009 – Najat Maalla).
[56] In New Zealand over a million clicks on illegal child sex abuse websites were identified by the Department of Internal Affairs through a two year trial period ending in 2009. There is an increasing trend towards younger victims and greater brutality, including the use of infants and toddlers. An estimated 20 per cent of all pornography traded over the internet is child exploitation material and since 1997 the number of child exploitation images on the internet has increased by 1,500 per cent (Source: ECPAT NZ).
[57] Although the above data is historical, there is no reason to consider the position is any better in 2021.
[58] In the absence of a tariff case for offending of this nature the individual features of each case will be dominant. The Judge was correct to approach the matter on a first principles basis. That required her to have regard to the purposes and principles of the Sentencing Act 2002, aggravating and mitigating factors under that Act and also the factors referred to above under s 132A of the Films, Videos, and Publications Classification Act 1993. Relevantly, in having regard to the general desirability of consistency with appropriate sentencing levels, the Judge was required to consider other relevant authorities.
[59] Although Ms Cresswell criticised the Judge for failing to refer to the cases she had cited, the Judge did consider the cases referred to her. She expressly referred to the cases of Dayaratne v NZ Police, C v Police, R v Stevens, H v Police, Police v Donald, and R v Nielson in the course of her sentencing notes.18 It is apparent from her comments that the Judge considered those cases but ultimately considered them to be of limited assistance. The Judge referred in more detail to the cases of R v Nielson and Police v Donald.19
[60] I agree with the Judge that the cases Ms Cresswell relied on are of limited assistance.
[61] Dayaratne v Police20 involved a total of 1,260 video files and 1,890 photographs. The files ranged from level one to level five (referring to the older UK Guidelines) including sadism and penetrative sexual activity between adults and children. However, the focus in the appeal was not on the sentence but rather was on whether Mr Dayaratne should be included on the Child Sex Offender Register.
[62] R v Stevens21 involved 4,741 objectionable images, some of which were level five. The collection had been amassed over a significant period of time and organised on-line which demonstrated regular access. The starting point was two years, but it
18 Dayaratne v Police [2018] NZHC 563; C v NZ Police [2019] NZHC 3431; R v Stevens [2016] NZHC 1574; H v Police [2019] NZHC 3349; Police v Donald, above n 8; and R v Nielson, above n 8.
19 R v Nielson, above n 8; and Police v Donald, above n 8.
20 Dayaratne v Police, above n 18.
21 R v Stevens, above n 18.
was imposed in the context of totality of offending which also included doing an indecent act on a child under 12.
[63] In H v Police22 the appellant possessed 1,127 objectionable images which included images of violation, bestiality, oral sex, and digital penetration of young girls and in one instance a baby boy. The judgment does not disclose the starting point, but it seems to have been in the region of two years, nine months. The offending also included an actual act of indecency with an animal.
[64] In Police v Donald23 the defendant possessed 1,200 videos and 31,000 files altogether. A “large number” were objectionable. The publications depicted female children between five and 14 years being sexually violated by adult males engaged in sexual acts with dogs or posing in an explicit manner. The starting point was three years. However, the Judge adopted that starting point by reference to R v Zhu,24 without expressly noting the increase in the maximum penalty since that case had been decided.
[65] Judge Clark referred briefly to the decision of Pattison v Police when considering the relevance of whether the collection was curated or not.25 In Pattison v Police Edwards J allowed an appeal against sentence where the offender had pleaded guilty to one representative charge of supplying and one representative charge of possession. The District Court Judge had structured the sentence by taking a three and a half year starting point for the distribution charge and adding a two year uplift for the possession charge leading to an overall starting point of five and a half years. Edwards J considered that, taking into account totality the uplift for the possession charge should only be 12 months. That led to a starting point of four years, six months’ imprisonment which she considered to be sufficient to reflect the overall culpability in that case.
22 H v Police, above n 18.
23 Police v Donald, above n 8.
24 R v Zhu, above n 5.
25 Pattison v Police, above n 11.
[66] Ms Cresswell also properly referred this Court to the recent decision of Grice J in Johnson v The Department of Internal Affairs.26 The offending involved possession of around 12,500 objectionable files, much of which were video files. The vast majority was category A. The material was possessed over an 18 month period and involved significant curation and organisation. A starting point of seven years was taken in the District Court.
[67] Grice J noted that Mr Johnson’s case was one of, if not the most, serious cases reported in terms of possession charges alone. She also noted that serious cases of possession will attract a greater penalty than less serious cases of distribution. Grice J considered the decision of Fitzgerald J in Robinson was the most helpful and then, after reviewing the UK Guidelines and comparing the case before her with the case of Robinson, concluded that while at the outer end of the range the starting point of seven years was available to the District Court Judge.
[68] Grice J was particularly influenced by the fact that a large amount of the material possessed by Mr Johnson was of category A material. While volume alone might be misleading because of the speed of downloading and the length of time the materials are held, the material had been downloaded at different times, extensively engaged with by being curated and placed onto devices which were external to the original cloud downloads. She considered Mr Johnson’s offending to be substantially more serious than in Robinson.
[69] In Robinson v NZ Police, Mr Robinson had pleaded guilty to 20 charges of possession and 15 charges of supplying objection publications.27 The District Court Judge took a starting point of seven years before ultimately arriving at an end sentence of four years, five months’ imprisonment.
[70] While noting the extensive size of Mr Robinson’s collection, Fitzgerald J noted the observations of Katz J in Stewart v Department of Internal Affairs:28
26 Johnson v The Department of Internal Affairs [2021] NZHC 2480.
27 Robinson v NZ Police, above n 6.
28 Robinson v NZ Police, above n 6, citing Stewart v Department of Internal Affairs[2014] NZHC 2209. See also Webb v R [2016] NZHC 2966.
[42] Traditionally courts have tended to view the size of an offender’s child pornography collection as a key aggravating factor. Due to developments in modern technology, however, it is now necessary to take a somewhat more nuanced view of this issue. Child pornography offending is now almost exclusively internet enabled. Cases involving hard copy print materials are rare to non-existent. The use of modern internet based technologies, such as P2P file sharing, facilitates the collection of high volumes of child pornography material with relative ease and within a short space of time. On the other hand, many offenders now appear to also be using modern technology to attempt to disguise their offending behaviour, including by storing material in the cloud. Accordingly the size of a collection in itself is now a somewhat blunt tool in assessing culpability. It is necessary to consider the size of a collection in the broader context of everything that is known about an offender’s online behaviour in order to assess the appropriate level of culpability.
[71] Having reviewed the relevant authorities Fitzgerald J considered that the overall starting point of seven years for all charges was available to the Judge, albeit at the upper end of the permissible range. Fitzgerald J dismissed the sentence appeal.
[72] In Stewart Katz J approved a starting point of three years, six months’ imprisonment.29 The offending including making objectionable videos but there were also possession charges. Her comments noted above were in relation to the possession charges. It is also relevant that at the time the maximum sentence for possession was five years.
[73] Both Katz J in Stewart and Fitzgerald J in Robinson noted the difference between the approach to starting point in New Zealand from the UK and observed that, while often referring to the UK Guidelines, New Zealand Courts tend to adopt somewhat higher starting points for possession of objectionable material than that recommended by the UK Guidelines.
[74] In Webb v R, Mander J noted that Mr Webb was an administrator of online chat groups indulging in online conversations with care givers as to how best to abuse their children.30 He considered the offending could properly be described as the most serious of its kind. He did not disturb the starting point of seven years, but it does seem that he considered it lenient.
29 Stewart v Department of Internal Affairs, above n 28.
30 Webb v R, above n 28.
[75] Against that review of the offending I consider the cases of Johnson and Robinson to be the most relevant to the present case.31 While there are of course differences, in the present case the volume of material is significant and the content is extreme. I consider that the following factors are particularly relevant in this case. A significant proportion of the objectional material, 280 videos totalling over 20½ hours of viewing time and two images fall into the category of category A publications. There are 13 videos with over 30 minutes of viewing time that involve sadism and the torture of infants (in one case the killing of a young child). Then there are 267 videos with over 20 hours viewing time involving images and videos of penetrative sexual activity between adults and infant babies. In addition, there were 81 videos totalling four hours, falling into category B which involved non-penetrative sexual activity between adults and children as young as four years old (37 videos and over one hour viewing) and sexual activity between children or solo masturbation by children as young as 10 years (four videos with over three hours of viewing time). The less serious category C publications related to 19 videos totalling over 11 minutes, which involved erotic posing by children as young as five years old with no sexual activity. In addition, there were 376 videos over 53 hours involving bestiality.
[76] I do not accept Ms Cresswell’s submission that the fact that most of the material related to adult bestiality is a factor which reduces culpability. Nor do I accept that it is particularly relevant that not all the videos may have been viewed. The offence is possession of the objectionable material. Further, the offenders had in any event, engaged in extensive viewing of the objectionable materials. The forensic examination of the laptop showed that a number of the videos had been deleted but even so 32 category A videos spanning 109 minutes, and five category B videos spanning 11 minutes, and one category C video of 17 seconds long, and 22 other videos involving adult bestiality spanning 339 minutes, had been viewed during the period of the charges. If the viewing of the videos took place on only a few days, then the number viewed at each session must have been extensive.
[77] To further aggravate matters in the present case, the offenders had shared the viewing with the informant who had alerted the Police to the offending.
31 Johnson v The Department of Internal Affairs, above n 26; and Robinson v NZ Police, above n 6.
[78] I agree with Mr Rhodes’ submission that, apart from the fact the offenders in this case had not supplied or distributed the material the offending is comparable in seriousness to Robinson.32 The collection in the present case of the material possessed by the offenders is far more extensive than that held by Mr Robinson. While I acknowledge the size of the collection is not necessarily the primary touchstone for assessing the seriousness as it may not reflect the extent of an offender’s engagement with material, it is nevertheless a relevant factor when considered in conjunction with the subject matter of that material. Also, while it is invidious to attempt to compare the subject matter, the victims abused in the material held by Mr Robinson were older. They were not ‘infants’ or less than two years old, as in the present case.
[79] The subject matter of the category A videos held by the offenders was particularly gross, involving as it did the sadistic torture of infants and sexual abuse of them by adults. I agree with Mr Rhodes’ submission the intrinsic nature of the publications could not be more objectionable. The collection is more extensive and involves more gross and objectionable material than that described in the previous cases involving possession alone.
[80] While, as Ms Cresswell submitted, the period of the possession ran for less than a month from 4 December to 21 December, that is balanced by the substantial numbers and volume of the material. The fact the material was arranged into files also supports the inference that it was intended to be organised and viewed regularly. While an un-curated larger collection may not be considered as serious as a smaller but carefully curated and organised collection, in the present case the collection was extensive and had been organised into folders.
[81] Section 8(d) of the Sentencing Act is applicable. The Court must impose a penalty near to the maximum prescribed, unless circumstances relating to the offender make it inappropriate where the offending is near to the most serious of cases. Ten years’ imprisonment is the maximum for possession of objectionable material. This offending, as far as possession went was very bad offending and must be seen as near
32 Robinson v NZ Police, above n 6.
the most serious, while acknowledging that regrettably there may be the possibility of a worst case.
[82] For the above reasons I consider the sentencing Judge fell into error in taking four years, three months as the starting point. The appropriate starting point for offending of this nature, having regard to the nature of the objectionable publications and the volume of them in the offenders’ possession, should have been in the region of at least six to seven years’ imprisonment. The error has resulted in the imposition of a manifestly inadequate sentence.
The personal mitigating factors
[83] In her submissions in support of the appeal Ms Cresswell had submitted that the Judge had erred by impermissibly tailoring Mr Bradley’s sentence so that home detention was not an available option due to the starting point she set. During the course of the hearing Ms Cresswell accepted that she could not maintain that submission. That was an appropriate concession. There was nothing in the Judge’s reasoning to suggest that she had approached the sentencing exercise involving Mr Bradley in that way.
Guilty plea
[84] The guilty pleas were entered at the first opportunity. Against that it has to be said that the Police case was strong, based as it was on physical and forensic evidence and there was no realistic defence to the charges. Given the strength of the Police case the Judge would have been justified in adopting a starting point of 20 per cent. However, 25 per cent was available to her.
Discount for good character
[85] In each case the Judge gave the offenders a discount of 10 per cent for good character. There is a difference between an offender who has no previous convictions and an offender who truly can be said to be of good character and to have contributed to society. In the absence of a positive contribution to society the credit may well be limited, particularly where the nature of the offending is not a one-off fall from grace
but is of an ongoing nature or where there are ongoing protestations of innocence or an ongoing attempt to minimise culpability, as there have been in this case.33 Apart from some limited community involvement by Mr Pengelly, the most that can be said for the offenders in this case is that they have reached their sixties and have no previous convictions. They are entitled to a credit for their clean record, but I do not accept they are of good character. In the circumstances no more than five per cent for Mr Bradley was available, and no more than seven and a half per cent for Mr Pengelly, recognising his limited community contribution.
Mr Bradley’s personal circumstances – s 27 report
[86] It is apparent from the s 27 report that there were instances in Mr Bradley’s early childhood where he was himself abused. I accept that that unfortunate past history may have a relevant connection to his interest in these materials which would support a further discount. The Judge allowed a further 10 per cent for that. The allowance of 10 per cent was within range.
Remorse
[87] As I read the various reports obtained for the offenders for sentencing the overwhelming theme that comes through is their reluctance to accept responsibility for their actions. They have continuously sought to minimise their actions. They have already been given a generous discount for pleading guilty. Their self-reporting to the report writers in each case does not show any real insight into the offending. They have not shown remorse as is required by Hessell34 and s 9(2)(f) of the Sentencing Act 2002. I do not overlook that the Judge referred to and accepted Dr Bartle’s observation concerning remorse. The Doctor suggested there was a difference between denial and minimisation. The Judge relied on that to give a small discount for remorse in relation to both offenders (which she included in the 10 per cent for good character) notwithstanding they had each sought to minimise their offending. While accepting in principle that in some cases Dr Bartle’s observation that minimisation is not necessarily indicative of an absence of remorse might be applicable, his observation
33 Manawaiti v R [2013] NZCA 88; Rana v R [2014] NZCA 468; and Britow v R [2017] NZCA 229.
34 R v Hessell [2010] NZSC 135.
has to be seen in the context that he was discussing risk factors and the likelihood of further offending. It must also be considered in the overall context of the offenders’ response to the offending. When regard is had to the offenders’ overall response they have not shown remorse. They are not entitled to any additional credit for remorse.
Rehabilitation
[88] Only very modest steps have been taken in terms of rehabilitation by Mr Bradley to address his drug use. Neither of the offenders appear to have taken any significant steps to address the more serious offending. Two and a half per cent is the most that can be allowed for Mr Bradley’s limited efforts in this regard. Mr Pengelly has taken no steps of any significance towards rehabilitation.
Mr Bradley’s case
[89] On that analysis, Mr Bradley would have been entitled to a 25 per cent discount for the guilty plea, a five per cent discount for the lack of previous offences, a 10 per cent discount for s 27 factors, and two and a half per cent for his efforts to address his drug use, in total 42½ per cent discount.
Mr Pengelly’s case
[90] In Mr Pengelly’s case he is entitled to a discount of 25 per cent for the guilty plea, five per cent discount for lack of previous offending, and two and a half per cent discount for some modest contribution towards the community and all other relevant personal matters, which leads to a reduction of 32½ per cent.
Result
[91] That exercise leads to adjusted end sentences, taking a starting point of between six and seven years, of between three years, five months and four years, in the case of Mr Bradley, and between four years and four years and nine months in the case of Mr Pengelly. As it is a Police appeal I adopt the lesser of those figures.
[92]Mr Bradley’s appeal against sentence is dismissed.
[93] The Police appeal against sentence in each case is allowed. The sentences are quashed.
[94] On each of the possession charges Mr Pengelly is sentenced to four years’ imprisonment. Mr Bradley is sentenced to three years and five months’ imprisonment. The sentences are concurrent. On the charge of possession of methamphetamine they are each convicted and discharged.
Venning J
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