Police v L - [2016] NZHC 455

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-77 [2016] NZHC 455

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

L Defendant

Hearing: 8 March 2016

Counsel:

I S Auld for Appellant
I M Antunovic for Respondent

Judgment:

16 March 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4 pm on the 16th day of March 2016

NEW ZEALAND POLICE v L [2016] NZHC 455 [16 March 2016]

[1] On 28 August 2015 L pleaded guilty to 47 charges of possessing an objectionable publication, knowing or having reasonable cause to believe that the publication is objectionable, under s 131A of the Films, Videos, and Publications Classification Act 1993 (the FVPCA). An offence against s 131A is punishable by up to five years imprisonment.

[2] On 27 November 2015 Judge Butler discharged L without conviction under s 106 of the Sentencing Act 2002. The Police appeal against that discharge. Leave to bring such an appeal is required.

Background

[3] L’s offending was discovered when a USB stick containing sexualised images of children was found on a bus and handed in to Police, who subsequently searched his home. In total, the Police found approximately 2412 images and one movie which were deemed to be objectionable. They selected 47 images as the basis of the charges. The images are photographs of children engaged in a variety of sexual acts, including sexual violation of the children by adults, children engaged in sexual acts
with other children, and children performing sexual acts on animals.1

The District Court decision

[4] A decision to discharge without conviction under the Sentencing Act 2002 (the SA) involves consideration (under s 107) of whether the direct and indirect consequences of a conviction are out of all proportion to the gravity of the particular offence. If the relevant disproportionality is established then the court may in its discretion (under s 106) order a discharge.

[5] It is convenient to set out the relevant part of learned District Court Judge’s

notes in full. He said:

[3] The first thing I have to do is assess the gravity of the offending itself. The aggravating features are pointed out by counsel for the police and I agree with what they say but accept there is nothing beyond what is inherent in each offence. The victims were children. Some of the images

1 The basis upon which the 47 images were selected was not explained by the Crown but there is a suggestion (which I am inclined to accept) that they were the worst of the much larger group.

involved aspects of restraint and some included what was obviously sexual violation of the children.

[4] On the mitigating side of things you entered prompt guilty pleas to these charges. You have no previous convictions and since you were charged you have taken meaningful steps to address an addiction to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v L

Details

AGLC: Police v L [2016] NZHC 455
Case: [2016] NZHC 455
Decision Date: 16 March 2016

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by the New Zealand Police against the decision of the District Court to discharge L without conviction. L had pleaded guilty to 47 charges of possessing objectionable publications, which included sexualised images of children. The District Court discharged L without conviction, considering the consequences of a conviction to be out of all proportion to the gravity of the offence. The Police appealed the decision, arguing that the District Court erred in its assessment of the gravity of the offending and the consequences of a conviction.

The High Court found that the District Court's approach to assessing the gravity of the offending and the consequences of a conviction was orthodox and did not involve any error of law. The Court agreed with the District Court's assessment that the direct and indirect consequences of a conviction would be out of proportion to the gravity of L's offending. The Court considered the mitigating factors, including L's prompt guilty pleas, lack of previous convictions, and steps taken to address his addiction to pornography. The Court also considered the severe consequences of a conviction on L's employment prospects and his family. Ultimately, the High Court found the case to be finely balanced but agreed with the District Court that the consequences of a conviction were out of proportion to the gravity of the offending. The appeal was dismissed, and L's discharge without conviction was confirmed.

The final orders of the Court were that leave to appeal was granted but the appeal was dismissed, and L's discharge without conviction was confirmed.

Orders