Petersen v Department of Internal Affairs

[2012] NZHC 1749

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000055 [2012] NZHC 1749

BETWEEN  MATTHEW HARALD PETERSEN Appellant

ANDDEPARTMENT OF INTERNAL AFFAIRS Respondent

Hearing:         17 July 2012

Counsel:         V C Nisbet for Appellant

S K Barr for Respondent

Judgment:      18 July 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.00 pm on the 18th day of July 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      On 15 May 2012 Mr Petersen pleaded guilty to six representative charges of knowingly possessing an objectionable publication, contrary to s 131A(1)(a) of the Films, Videos, and Publications Classifications Act 1993.  He also pleaded guilty to a representative charge of possessing an objectionable publication, contrary to s 131 of the Films, Videos, and Publications Classification Act 1993.

[2]      On 26 June 2012 the District Court at Wellington sentenced Mr Petersen to

13 months’ imprisonment on six of the representative charges.  The District Court considered but declined to impose home detention.   On the remaining charge the

District Court Judge entered a discharge without conviction.

PETERSEN V DEPARTMENT OF INTERNAL AFFAIRS HC WN CRI-2012-485-000055 [18 July 2012]

[3]      Mr  Petersen  now  appeals  on  the  basis  that  the  sentence  was  manifestly excessive, and that home detention should have been imposed instead.

The offending

[4]      On 23 September 2010 the police found and seized Mr Petersen’s laptop pursuant to a search warrant.  It contained 39 images of children and young girls in sexual poses, and suffering sexual abuse.

[5]      Investigations revealed that Mr Petersen had four days earlier used a file eraser programme to remove traces of pictures and internet history from his laptop.

[6]      The images of children and young girls were “objectionable publications” for

the purposes of the Films, Videos, and Publications Classification Act 1993.

Pre-sentence report

[7]      The pre-sentence report explains, inter alia, that Mr Petersen, while initially reticent, expressed a degree of remorse and empathy for the victims depicted in the objectionable publication.    The pre-sentence report recommended intensive supervision with community work.

The sentence under appeal

[8]      In the District Court counsel for both parties agreed the guidance set by the Court of Appeal in R v Zhu1  was applicable.   That case categorised objectionable publications involving children into five categories.  Category one involves the least serious offending whilst category five involves the most serious offending.  Before the District Court counsel had agreed that the images in this case fell  between categories one to four of the Zhu classification system.

[9]      The District Court Judge began by observing that some of the publications were the worst of the lot.  She described them as being “the most disgusting of the images;  depraved ... no doubt ... in category five [of Zhu]”.2

[10]     In assessing the seriousness of offending her Honour said: (1)           the number of publications was “quite small”;

(2)       some images in two of the six charges were in category five of Zhu.

In particular, the Judge said:3

In my view, a combination of sexual activity with coercion and with urination or other bodily fluids is bestial depiction. I do not consider that bestiality is limited to animal and human behaviour.    By dictionary definition, bestiality includes matters of depravity and moral corruption.   I interpret these images as depicting that.

(3)the material was collected over a period of three months.   While Mr Petersen acknowledged he had been accessing such material for “a much longer period” the Judge accepted this could only be relevant to assessing suitability for rehabilitation and not the gravity of the offending.

(4)the images were a “serious collection” and “devastating collection” involving “at least six separate child witnesses involved in penetrative sexual actity”.

(5)the appellant’s degree of organisation and use of the material was considered “not particularly serious”.  He did not participate actively in file sharing forums or distribute images or videos.

(6)       the use of the eraser programme was an aggravating feature.

[11]     The Judge concluded that the seriousness of Mr Petersen’s offending meant

that either home detention or imprisonment was inevitable.  The question she had to

2      R v Petersen DC Wellington CRI-2012-085-2022, 26 June 2012 at [2].

resolve was which of those options was the most appropriate in the circumstances of this case.

[12]     Her Honour explained that she clearly understood that home detention was less restrictive than imprisonment in several respects.   However, she refused to impose home detention because:

(1)       the offending occurred at Mr Petersen’s home;

(2)the  long  duration  of  Mr  Petersen’s  offending  was  “unassailable evidence of a profoundly serious problem” and there was no adequate assurance to the court that the appellant would both be monitorable, but also restrained from accessing the same material via the internet;

(3)there  was  doubt  about  Mr  Petersen  suitable  for  rehabilitation  as indicated in a letter from Mr Petersen’s therapist which suggested he had referred to the victims in the pornography as being “immature women” when they were in fact young children.

[13]     The District Court Judge acknowledged that “the Court of Appeal requires ... that where we are considering a sentence of under two years, home detention ought to be a proper alternative”4 but that it was not appropriate here.

[14]   The District Court Judge settled upon a starting point of 18 months’ imprisonment.  This starting point was determined because of the number of victims and the nature of the images.

[15]     The District Court Judge then turned to mitigating factors personal to the appellant.    The  Judge  subtracted  25  per  cent  from  the  starting  point  to  reflect Mr Petersen’s guilty plea.

[16]     In  making  no  other  deductions  the  District  Court  Judge  returned  to  the

purpose of sentencing.  Her Honour observed “... your rehabilitation, Mr Petersen, is

in my view, less central to the Court’s  sentencing exercise than deterrence and denunciation”5  and that “[to] be very clear, the Court wishes to deter others in the hope that in due course this trade will reduce.6

Submissions

Appellant’s submissions

[17]     In this Court Mr Petersen submits that the sentence imposed was manifestly excessive for the following reasons:

(1)He submits the starting point was too high.  This submission is based upon the Judge categorising some of the material inappropriately into category five of Zhu, when she applied an incorrect interpretation of “bestiality”.

(2)No adjustment was made for remorse.   Further, this Court was told that  in  response  to  questions  from  counsel  after  sentencing,  the District Court Judge had said in open court words to the effect that she had forgotten to refer to remorse and that perhaps the High Court could deal with that.

(3)The   District   Court   Judge   erred   in   imposing   imprisonment/not imposing home detention.   It is submitted the District Court Judge failed to consider whether a community based sentence could achieve the purpose of sentencing.   It is also said on behalf of Mr Petersen that the District Court Judge failed to take into proper account the Court of Appeal guidance on home detention and she placed insufficient weight on the appellant’s rehabilitative needs.

[18]     Mr Petersen also submits that the District Court Judge failed to take into account:

5 At [19].

(1)      the recommendations of the pre-sentence report writer; (2)     that the appellant was a first time offender;

(3)      that the appellant had self-referred to WellStop;

(4)that the appellant had considerable support from family and friends as evidenced by a number of references.

[19]     The appellant also points out in this Court that the District Court Judge adopted a flawed process.  In particular, it appears that she discussed and dismissed home detention before considering the factors set out in ss 7 and 8 of the Sentencing Act 2002.  Mr Petersen points out that the District Court Judge ought to have set the starting point for imprisonment and then adjusted it for personal factors and then considered whether home detention was more appropriate.

[20]     The appellant submits that the sentence of imprisonment should be quashed and substituted with a sentence of home detention, or intensive supervision with community work.

The Crown

[21]     The Crown submits that the sentence imposed was not manifestly excessive and should be upheld as being well within the acceptable range. The Crown accepts:

(1)That the District Court Judge mislabelled some of the material as category five Zhu material.   However, the Crown submits that this should not materially affect the outcome.  It is submitted on behalf of the Crown that the mislabelled images were depicting adult women and although nonetheless objectionable and relatively serious would not have affected the starting point that should have been settled upon in this case.

(2)The  Crown  submits  that  the  starting  point  of  18  months  was consistent with similar cases.7

(3)The Crown submits that the size of the collection should not be a dominating consideration in the sentencing process.  With the advent of modern technology the Crown says that downloading a large collection  is  no  longer necessarily indicative of extensive involvement.   The Crown points out that with advanced eraser technology and online/cloud storage, small collections do not necessarily reflect low culpability.

(4)       The Crown also submit that Zhu was concerned with still images.

Today the reality is that most offenders will access or share videos. This medium arguably adds materially to the exploitation of the subject.     For  this  reason  the  type  of  files  should  therefore  be considered when assessing culpability.

(5)        The Crown submit that Mr Petersen’s culpability was quite high.

The charges relate to 39 files but were representative in nature.  The files included images and videos.   There was evidence showing a hard drive holding thousands of images had been connected to Mr Petersen’s laptop.   Mr Petersen admitted he had been downloading objectionable images for five years.   Some of the images depicted children naked and posing in a contrived manner.   Some depicted children touching their genitalia and having sex with adults.

(6)        The Crown also points out that Mr Petersen’s conduct in erasing

software indicated a consistent pattern of accessing objectionable files.

7      Harding v Department of Internal Affairs HC Hamilton, CRI-2008-419-53, 29 October 2008, per Cooper J, Stevens v Police HC Wellington CRI-2008-406-7, 15 July 2008, per Gendall J, Cooper v Department of Internal Affairs HC Wellington CRI-2008-485-86, 18 September 2008, per Mallon J, Waugh v Police HC Auckland CRI-2010-404-178, 15 October 2010, per Priestley J, Ibbetson v R [2011] NZCA 228, Hulme v R [2012] NZHC 86, per Wylie J and Doran v Police [2012] NZHC 468, per Dobson J.

[22]     When  all  these factors  are taken  into  account  the Crown  submits  that a

starting point of 18 months’ imprisonment was reasonable.

[23]     In relation to adjustment for mitigating factors, the Crown accepts that the District Court Judge made no specific adjustment for remorse but says nevertheless that the District  Court  Judge did apply a substantial discount for all  mitigating factors.  In this case the discount was 27.7 per cent.

[24]     The Crown also submit that the District Court Judge did consider s 8(g) of the Sentencing Act 2002.  The Crown also submits that the Judge referred to letters supporting Mr Petersen’s potential rehabilitation and the employment repercussions of imposing home detention.   The District Court Judge also expressly considered Mr Petersen’s suitability for rehabilitation.

[25]     In  these circumstances  the Crown  submit  that the District  Court Judge’s

sentence should not be altered on appeal.

Jurisdiction

[26]     This appeal relies upon s 121 of the Summary Proceedings Act 1957 which provides inter alia:

121     High Court to hear and determine appeal

...

(3)      In the case of an appeal against sentence, the [High Court] may—

(a)      Confirm the sentence;  or

(b)       If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate,  or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)        Quash  the  sentence  and  either  pass  such other sentence warranted in law (whether more or less severe) in substitution therefor

as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction;  or

(ii)       Quash any invalid part of the sentence that is severable from the residue; or

(iii)      Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

[27]     In  R  v  Monkman,  the  Court  of  Appeal  explained  the  term  “manifestly excessive” in the following terms:8

Whether a sentence can be said to be manifestly excessive turns on the maximum  sentence  prescribed  by  law  for  the  offence;     the  level  of sentencing customarily observed with respect to that offence;   the place which  the  conduct  in  question  assumes  on  the  scale  of  seriousness  of offences of that type;  and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[28]     When considering if the sentence was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached.9

As the Court of Appeal recently observed in Ripia v R:10

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.   The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

Analysis

[29]     In undertaking my analysis I accept that the District Court Judge was wrong to categorise some of the objectionable material as category five of Zhu.   I have therefore proceeded on the basis that the material was, as counsel agreed prior to the District Court hearing, materials within categories one to four (inclusive) of Zhu.

[30]     In assessing an appropriate starting point I have drawn some comparisons with the following cases:

8      R v Monkman CA445/02, 3 March 2003 at [6].

9      R v MacCullouch [2005] 2 NZLR 665 (CA) at [50]

10     Ripia v R [2011] NZCA 101 at [15].

(1)Harding v Department of Internal Affairs.  That case concerned child images within categories one to three of Zhu.  The case also involved adult images involving urination, bestiality and sadism.  The starting point was one year three months.

(2)      Stevens v Police.  That case concerned categories one to four of Zhu.

The starting point was two years to which there was a three month uplift for previous convictions.

(3)Cooper  v  Department  of  Internal  Affairs.     This  case  involved categories four and five of Zhu.  The starting point was two years six months.

(4)Waugh  v Police.   This  case involved  category four of  Zhu.   The starting point was one year nine months.

(5)      Ibbetson v R.  The majority of the images were category four of Zhu.

The starting point was 12 months.  No discounts were applied.

(6)Hulme v R.  The majority of the images were category four of Zhu but others ranged from categories one to five.   The starting point was three years.

(7)Doran v Police.  All categories from Zhu were covered.  The starting point was two years.

[31]     Mr Petersen’s charges were representative charges.  They may have identified just 39 files but the charges represented offending that he acknowledged had been occurring for a considerable period of time.  Thus, I assess the collection of placing Mr Petersen’s offending at the serious end of the scale.

[32]     The images (up to category four of Zhu) also suggest that Mr Petersen’s

offending was at the serious end of the scale.

[33]     In  assessing  the  nature  of  Mr  Petersen’s  offending  and  comparing  his offending with other cases of this kind, I conclude that the District Court Judge cannot be criticised for adopting a starting point of 18 months’ imprisonment.

[34]     From this figure I will make the following adjustments: (1)    A 25 per cent discount for a guilty plea.

(2)       A further discount of two months for remorse.

[35]     In the end I calculate that a sentence of 11.5 months’ imprisonment is what I would have imposed before considering whether home detention is appropriate.  As that sentence is extremely close to that which was imposed by the District Court Judge I cannot conclude that the sentence was manifestly excessive or otherwise inappropriate.

Should home detention be applied?

[36]     Section 8(g) of the Sentencing Act 2002 provides:

8        Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

...

(g)       must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A;

...

[37]     Section 16 of the Sentencing Act 2002 provides:

16       Sentence of imprisonment

(1)       When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2)       The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)      a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g);  and

(b)      those purposes cannot be achieved by a sentence other than imprisonment; and

(c)      no other sentence would be consistent with the application of the principles in section 8 to the particular case.

...

[38]     In R v Hill the Court of Appeal observed:11

The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.

[39]     The Court also said:12

... rehabilitative considerations will be important in determining whether to sentence to home detention.  Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

[40]     In R v Iosefa the Court of Appeal remarked on the nature of home detention as a sentence by observing:13

The sentence of home detention introduced by the 2007 amendment indeed provides a real alternative to imprisonment.  It carries with it in considerable measure, the principles of deterrence and denunciation.   It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.  In cases of more serious offending which justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(A) a sentence of imprisonment usually will be required to reflect the purposes of denunciation and deterrence.

[41]     Home detention has been carefully considered in a number of cases involving persons convicted of offences that Mr Petersen pleaded guilty to.  I have found the

judgments of Priestley J in Waugh v Police14  and Wylie J in Hulme v Police15

11     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].

12 At [37].

13     R v Iosefa [2008] NZCA 453 at [41].

14     Waugh v Police HC Auckland CRI-2010-404-178, 15 October 2010 at [34] – [42].

15     Hulme v R [2012] NZHC 86.

particularly helpful and instructive of the balancing exercise that needs to be undertaken in assessing the appropriateness of home detention over imprisonment.

Analysis

[42]     In my assessment the factor that tips the scales in favour of imposing a sentence of home detention as an alternative to upholding the District Court sentence of   imprisonment   is   the   prospect   of   Mr   Petersen   undertaking   meaningful rehabilitation if he is sentenced to home detention.

[43]     Mr Petersen first voluntarily attended counselling in March 2005.  During the course of his counselling sessions he disclosed “a problematic habit with internet pornography,  which  was  something  about  which  he  was  deeply  ashamed”.16

Mr Petersen recommenced counselling in April 2010 but did not disclose the full extent of his issues in relation to internet offensive images until September 2010. His counsellor has now:

(1)Assessed Mr Petersen’s reaction to the images which form the basis of the prosecutions brought against him.   The counsellor refers in his report to Mr Petersen’s “shock at the revelation at the scale and significance of his offending”, and that “contrition was very clear”.

(2)      Assessed   Mr   Petersen   as   being   a   suitable   candidate   for   the

“Well Stop” rehabilitative programme.

[44]     In addition, the WellStop Clinical Leader, Adult and Family Programmes, has informed the Court that:

(1)They  believe  Mr  Petersen  is  genuine  in  his  wish  to  undertake  a treatment programme;  and

(2)      Mr Petersen has demonstrated motivation to address his offending.17

16     Report of Mr B Logan, Counsellor, 22 June 2012.

17     Email communication forwarded to Court from Caroline Burns, Clinical Leader, Adult and

Family Programmes, WellStop, 16 July 2012.

[45]    A sentence of imprisonment is very likely to disrupt the rehabilitative programmes that Mr Petersen has currently commenced and the programme at WellStop which he is willing to engage in.   In my assessment it is in the wider interests of society as well as Mr Petersen that his attempts at rehabilitation be given every opportunity to succeed.

[46]     The District Court Judge’s concern that because Mr Petersen’s offending occurred in his home meant he could not be considered suitable for home detention can be addressed in the following way:

(1)Orders will be made prohibiting Mr Petersen from owning or having access  to  any  computer  or  any  other  means  of  internet  access. Mr Petersen must now appreciate that there are sophisticated detection systems available to the authorities.  Any attempt by him to reoffend is likely to be detected.

(2)Mr Petersen’s offending occurred in his home where he lived alone.  It is  proposed  that  Mr  Petersen’s  home  detention  be  served  at  his parents’ address (if that is assessed as being suitable).  His parents will provide another means of ensuring Mr Petersen adheres strictly to the terms of his sentence.

Length of sentence of home detention

[47]     The length of a sentence of home detention usually reflects approximately half the sentence of imprisonment that would otherwise be imposed.

[48]     I do not believe that is an appropriate course to follow in this case.   My reasons for reaching this conclusion are:

(1)      The seriousness of Mr Petersen’s offending

The offences committed by Mr Petersen were premeditated and calculated.   His offending is at the serious end of the spectrum of culpability.

(2)      Rehabilitative programmes

Mr Petersen’s rehabilitative programmes need to be supported through a lengthy period of home detention during which it will be mandatory for him to participate in the rehabilitative programmes.

[49]     For these reasons I propose to impose a sentence of home detention for a period of 12 months, the maximum that can be lawfully imposed.  Mr Petersen will serve that sentence at his parents’ address at 4  Rae Street, Paraparaumu  if that address is deemed suitable for home detention.

[50]     I will also impose the following special conditions of home detention if home

detention at Mr Petersen’s parents’ address is deemed suitable:

(1)Mr Petersen is not to own or possess a computer or any electronic equipment capable of internet access without the prior written permission of a probation officer.

(2)Mr  Petersen  is  not  to  have  access  to  a  computer  or  electronic equipment capable of internet access without the prior written permission of a probation officer.

(3)Mr Petersen is to attend a Departmental psychological assessment and undertake and complete any required counselling treatment programmes, including WellStop, as recommended by the assessment, and  to  the  satisfaction  of  the  probation  officer  and  programme provider.

(4)Mr Petersen is not to associate or otherwise have contact with any person under 16 years of age unless under the direct supervision of an informed adult who has been approved by a probation officer.   An informed adult is a person over the age of 20 years who is fully aware of Mr Petersen’s previous offending and risk situations, and who, in the opinion of the probation officer will not support or collude with any reoffending.

(5)Mr   Petersen   is   to   complete   any   other   counselling/treatment/ programmes as directed by and to the satisfaction of the probation officer.

Adjournment

[51]     Before formal orders to  this effect are made it  will be necessary for an assessment to be made of Mr Petersen’s parents’ address.   I direct that a home detention report be prepared.   This is an adjournment, not a deferral of sentence. Section 80W(3)(b) of the Sentencing Act 2002 does not apply.

[52]     Accordingly, I will now adjourn Mr Petersen’s appeal until 3 August 2012 to enable that assessment to take place.  This case will be recalled before me at 9.30am on 3 August 2012.  In the meantime Mr Petersen will be remanded on bail on the additional condition that he report to the Community Probation Services at 7 Arko Place, Paraparaumu, by 4.00pm Thursday 19 July 2012 in order for the necessary

home detention checks to be arranged.

D B Collins J

Solicitors:

Val Nisbet, Wellington for Appellant

Crown Solicitor, Wellington for Respondent