Praditsin v New Zealand Customs Service
[2018] NZHC 48
•2 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-355
[2018] NZHC 48
BETWEEN WICHIAN PRADITSIN
Appellant
AND
NEW ZEALAND CUSTOMS SERVICE
Respondent
Hearing: 12 December 2017 Counsel:
J Hudson for appellant
L Raddick for respondent
Judgment:
2 February 2018
JUDGMENT OF KATZ J
This judgment was delivered by me on 2 February 2018 at 4:00pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Kayes Fletcher Walker, Crown Solicitor, Manukau Counsel: J Hudson, Barrister, Auckland
PRADITSIN v NEW ZEALAND CUSTOMS SERVICE [2018] NZHC 48 [2 February 2018]
Introduction
[1] Over a period of five years, Wichian Praditsin downloaded over 2000 child pornography images and videos from the internet. He pleaded guilty in the District Court at Papakura to a representative charge of knowingly possessing objectionable images1 and was sentenced by Judge N J Sainsbury to nine months’ home detention.2
[2] The Judge also ordered that Mr Praditsin be registered under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (“Act”), for a period of eight years. If an offender is sentenced to imprisonment, registration on the Child Sex Offender Register (“Register”) is mandatory under the Act.3 If an offender is sentenced to a non-custodial sentence, the Court has a discretion as to whether to order that he or she be placed on the Register. An offender sentenced to a non-custodial sentence can only be placed on the Register, however, if the Court is satisfied that he or she poses “a risk to the lives or sexual safety of 1 or more children, or of children generally”.4
[3] Mr Praditsin appeals against the Judge’s order that he be placed on the Register. He says that the Judge erred in finding that he posed a risk to the lives or sexual safety of one or more children, or of children generally. The primary argument advanced by Mr Hudson, on behalf of Mr Praditsin, is that s 9, correctly interpreted, requires the Court to be satisfied that there is a direct risk of Mr Praditsin sexually abusing a specific child or children. Mr Hudson submitted that downloading or possessing child pornography does not pose a risk to the sexual safety of children, in terms of s 9.
Approach on appeal
[4] An appeal against a decision to have a defendant registered under the Act is an appeal against sentence.5 The decision must therefore be determined in
1 Films, Videos, and Publications Classification Act 1993, s 131A. The maximum penalty, in the
case of an individual, is 10 years’ imprisonment or a fine not exceeding $50,000.
2 New Zealand Customs Service v Praditsin [2017] NZDC 19973.
3 Section 7(1)(a). An offender sentenced to a term of imprisonment becomes a “registrable offender” by default.
4 Section 9(2).
5 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(4).
accordance with s 250 of the Criminal Procedure Act 2011. In particular, I must allow the appeal if I am satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. 6
[5] Section 250 was not intended to alter the approach taken previously under the Summary Proceedings Act 1957.7 The approach taken under the Summary Proceedings Act was set out by the Court of Appeal in R v Shipton:8
(a)There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error, whether intrinsically or as a result of additional material submitted to the appeal court.
(c)It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.
[6] As well, despite s 250 making no express reference to a sentence being “manifestly excessive”, that principle is “well-engrained” in the courts’ general approach to appeals against sentence.9
District Court Decision
[7]The Judge summarised the relevant facts as follows:
[1] … [Wichian Praditsin] was born in Thailand but has been living in New Zealand for some years now. On returning to New Zealand on 13 January this year he was spoken to by a customs officer, a search was undertaken of his phone and found in it were images that were objectionable, being images of young females.
[2] Further investigation resulted in his laptop being assessed and further images showing children and young persons engaged in sexual activity were found. It appears that these had been accessed over the previous four years. In all there were a significant number of images.
6 Criminal Procedure Act 2011, s 250(2).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
9 Tutakangahau v R, above n 7, at [33] and [35].
[3] As summarised in the Crown submissions, there were 172 images and video files in what is referred to as category A. These are images showing children being involved in penetrative sexual activity or sadism. These largely involved adults engaged in sexual intercourse with children and some depicted sadism.
[4] There were 18 images and video files in category B. These show children involved in sexual activity. Predominantly they show children masturbating.
[5]There were approximately 2022 images and video files in category
C. These predominantly show children in sexualised poses.
[8] The Judge explained his reasons for placing Mr Praditsin on the Register as follows:
[27] The next issue is the use of the child sex offender register. If he is sent to prison he must be on the register. If he is not it is a matter of discretion. It is argued by Mr Hudson that because he is comparatively low risk it is not necessary. I do not agree with that. It is a medium-low risk of future Internet offending. While there is a low risk of crossover it remains, in that significant way, medium-low and that still is predicated on him getting assistance. I think there is a risk to children and young people. At the very least it is the risk that will flow from him offending in this nature again. It is not a victimless offence so my view is that he should be placed on the register and that provides another level of supervision by police over his activities.
Overview of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016
[9] The Act came into force in October 2016. Its purpose is to establish a child sex offender register that will reduce sexual reoffending against child victims, and the risk posed by serious child sex offenders, by:10
(a)providing government agencies with the information needed to monitor child sex offenders in the community, including after the completion of the sentence; and
(b)providing up-to-date information that assists the Police to more rapidly resolve cases of child sexual offending.
10 Section 3.
[10] The Commissioner of Police is required to establish the Register, which must contain certain specified information in relation to each registrable offender including their name, details of their qualifying offences, the Judge’s sentencing notes, and any information provided or reported to the Commissioner about the offender under the Act.11
[11] The Act defines “registrable offender” as a person who has been convicted of a qualifying offence and is then either:12
(a)sentenced to imprisonment; or
(b)sentenced to a non-custodial sentence and made subject to a registration order.
[12] The Court’s discretion to make a registration order in respect of an offender who has been sentenced to a non-custodial sentence is governed by s 9 of the Act, which relevantly provides:
9 Court may make registration order
(1)If a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence, the court may order that the person must be placed on the register and must comply with the reporting obligations of this Act.
…
(2)A court may make an order under this section (a registration order) only if the court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.
(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:
(a)the seriousness of the qualifying offence:
(b)the period of time that has elapsed since the offence was committed:
(c)the age of the person:
(d)the age of the person at the time of the offence:
11 Section 10.
12 Section 7(1).
(e)the age of any victim of the offence at the time of the offence:
(f)the difference in age between the victim and the person at the time of the offence:
(g)any written assessment of the risk posed by the person:
(h)any submission or evidence from any victim of the offence:
(i)any other submission or evidence relating to the risk posed by the person:
(j) any other matter that the court considers relevant. (Emphasis added)
[13] To summarise, if a person is convicted of a qualifying offence and sentenced to imprisonment, he or she must be placed on the Register. If, however, a person is sentenced to a non-custodial sentence after having been convicted of a qualifying offence, the Court may order that he or she be placed on the Register, but only if the Court is satisfied, after considering certain specified matters, that he or she poses a risk to the lives or sexual safety of one or more children, or of children generally.
[14] The qualifying offences for the purposes of the Act are set out in Schedule 2 and are divided into three classes, in ascending order of seriousness/risk to the sexual safety of children.
[15] Class 1 comprises various offences that, broadly speaking, do not involve direct sexual abuse of a child by the offender, but are ancillary or preparatory to such abuse. Class 1 offences include offences under the Crimes Act 1961, such as meeting a young person following sexual grooming or indecent communication with a young person under 16. Class 1 offences also include three offences under the Films, Videos, and Publications Classification Act 1993, namely offences involving supply or distribution (with knowledge) of objectionable publications, exhibitions or displays involving sex to a person under 16, and possession (with knowledge) of objectionable publications. Mr Praditsin’s conviction for possession of an objectionable publication with knowledge is a class 1 qualifying offence.
[16] Class 2 offences comprise a range of indecency offences under the Crimes Act involving non-penetrative sexual conduct with a child or young person.
[17] Class 3 offences comprise the most serious sexual offences under the Crimes Act, including penetrative sexual offending (and attempts at such) and incest with an under 16-year-old victim.
[18] Section 35 of the Act sets out the periods of registration that apply to different categories of offender:
35 Length of reporting period and period on register
(1)A registrable offender must continue to comply with the reporting obligations imposed by this subpart for—
(a)the remainder of the offender’s life, if the offender has been sentenced to a term of imprisonment for a class 3 offence or for an equivalent repealed offence that corresponds to a class 3 offence; or
(b)15 years, if the offender has been sentenced to a term of imprisonment for a class 2 offence or for an equivalent repealed offence that corresponds to a class 2 offence; or
(c)8 years, if the offender has been sentenced to a term of imprisonment for a class 1 offence or for an equivalent repealed offence that corresponds to a class 1 offence; or
(d)8 years, if the offender has been sentenced to a non-custodial sentence for a qualifying offence and is subject to a registration order.
…
[19] In summary, an offender who is to serve a non-custodial sentence will be placed on the Register for eight years irrespective of whether his or her offending falls within class 1, class 2 or class 3. But where the offender is to serve a sentence of imprisonment, he or she will be placed on the Register for either eight years, 15 years or life, depending on whether their offending falls within class 1, class 2 or class 3.
[20] A registrable offender must make an initial report to the Commissioner of Police of all “relevant personal information” within 72 hours of being released from custody in relation to a qualifying offence, or of being made subject to a registration
order.13 The “relevant personal information” required to be reported is set out in the Act.14 It includes information relating to residential location and employment; details of any children with whom the offender resides; affiliation with clubs or organisations involving children; details of telecommunications and internet services and devices, online social networks, gaming accounts, or online storage accounts used by the offender; details of any website domain owned or website administered by the offender; and email addresses. Any changes in relevant personal information must be reported to the Commissioner within 72 hours of the change occurring.15 In addition, updating reports must be filed annually (even if only to confirm that there are no changed circumstances).16
[21] Only persons authorised by the Commissioner of Police can access information in the Register, and only for the purposes of:17
(a)preventing, detecting, investigating, and prosecuting qualifying offences;
(b)monitoring registrable offenders in the community; and
(c)information sharing between specified agencies (such as Housing New Zealand or the Ministry of Social Development) for certain purposes.18
Does downloading or possessing child pornography pose a risk to the lives or sexual safety of one or more children, or of children generally?
[22] Had Mr Praditsin been sentenced to imprisonment, the making of a registration order for a period of eight years would have been mandatory, as he has been convicted of a class 1 offence. Because Mr Praditsin was sentenced to home detention, however, the Judge had a discretion as to whether or not to place him on the Register. As the Judge was satisfied that Mr Praditsin poses a risk to the lives or
13 Section 17.
14 Section 16.
15 Section 20(1).
16 Sections 18-19.
17 Section 41.
18 Section 43.
sexual safety of one or more children, or of children generally, he directed that Mr Praditsin be placed on the Register for the requisite period of eight years.
[23] Mr Hudson submitted that the Judge erred in this conclusion because the type of offending that Mr Praditsin is at risk of committing (downloading child pornography) does not pose a risk to the sexual safety of children. Mr Hudson submitted that the type of risk envisaged by s 9(2) of the Act is the direct risk of an offender sexually abusing children (essentially the risk of an offender committing a class 2 or class 3 qualifying offence in the future).
[24] Mr Hudson acknowledged that possession of child pornography can be said to contribute, in a general way, to the market for child pornography. He submitted, however, that that is not the type of risk to the sexual safety of children envisaged by s 9. On Mr Hudson’s interpretation of s 9, a Court could never order that an offender be placed on the Register if the only significant risk of future offending was that he or she might download or possess child pornography.
[25]I reject this submission, for the reasons outlined below.
[26] First, in my view, a distinction must be drawn between the type of offending captured by the Act and the risk that must be established before registration can be directed in relation to a particular offender. Section 9 is directed to the latter issue, not the former. Mr Hudson’s argument, in essence, is that possession of child pornography is a type of offence that, in itself, could never meet the s 9 risk threshold.
[27] As I have outlined above, the various types of offending captured by the Act are set out in Schedule 2. They are divided into three classes, of escalating seriousness or risk profile. The overall scheme of the Act is clear, however. A person who commits a qualifying offence in any one of the three classes must be registered if he or she is sentenced to imprisonment. An offender may be registered if sentenced to a non-custodial sentence, provided that the s 9 risk threshold is met. All qualifying offences can therefore lead to registration. No offences (such as the
class 1 offences) are excluded on the basis that they are a “type” of offence that is
somehow less serious, or does not involve the offender sexually abusing children.
[28] If Parliament had intended, in respect of any qualifying offence (or particular class of qualifying offence), that registration could only be directed if a sentence of imprisonment was imposed, I would have expected that to have been made clear in the Act. It has not. In effect, the interpretation advanced on behalf of Mr Praditsin would require s 9(1) to be read as follows:
If a court imposes on a person a non-custodial sentence in respect of a conviction for a qualifying offence [other than the offence under the Films, Videos, and Publications Classification Act 1993 listed in clause 1(b)(iii) of Schedule 2 – and possibly some or all of the other class 1 offences], the court may order that the person must be placed on the register and must comply with the reporting obligations of this Act.
[29] The overall scheme of the Act does not support such an interpretation. Rather, s 9(1) envisages that registration is potentially available for all qualifying offences, regardless of whether or not a custodial sentence is imposed. In other words, each qualifying offence listed in Schedule 2 is a type of offence that potentially poses a risk to the lives or sexual safety of children. Whether the s 9 risk threshold is met in a particular case, however, will depend on an analysis of the risk factors associated with a particular offender. For example, although possession of child pornography is a type of offending that poses a risk to the sexual safety of children, a particular offender may be found to have such a low risk of re-offending that he or she personally does not pose a risk to the sexual safety of children.
[30] Secondly, the interpretation advanced on behalf of Mr Praditsin would potentially lead to arbitrary outcomes. As Simon France J observed in Goose v Police:19
A characteristic of the sentence of home detention is that the Court has already determined that the offending, but for home detention being available, merits a term of imprisonment. Section 15A(1)(b) of the Sentencing Act 2002 makes this clear by providing home detention may be imposed:
only if … the court would otherwise sentence the offender to a short-term sentence of imprisonment.
19 Goose v Police [2017] NZHC 2453 at [29].
[31] If a person convicted of possession of child pornography is sentenced to imprisonment, a registration order is mandatory. It cannot be the case that, merely because the Court elected to impose a sentence of home detention instead, a registration order is not available at all. Rather, as Simon France J observed in Goose:20
Registration would be consistent with a statutory scheme that makes registration mandatory for every eligible offender subject to the same short- term sentence that underlies all sentences of home detention. And it can be noted that often the difference between the two situations (home detention or imprisonment) is often something not directly relevant to the registration issue, such as the availability of a suitable address.
[32] His Honour’s observations are particularly apt in this case, because it is apparent from the Judge’s sentencing notes that the only reason Mr Praditsin was not sentenced to a term of imprisonment was that his rehabilitative needs could not be met in prison, as he does not speak English. The Judge was concerned Mr Praditsin would therefore be a risk to the community on release.21 He acknowledged that it was “very rare” for someone such as Mr Praditsin to be granted the ability to serve their custodial sentence through home detention.22 Ultimately, however, the Judge concluded that a rehabilitation-focussed home detention sentence, with ongoing judicial supervision, was the appropriate course. He concluded his sentencing notes with the following comment:
[30] Mr Praditsin, I need to make this very clear to you. The reason you are serving your prison sentence by way of home detention is because of the expectation that you will do the SAFE programme and you will take every other step necessary to make sure you do not offend in this way in the future.
That is the only reason. …
[33] Thirdly, the Act recognises that offences such as possession of child pornography are not victimless offences. Indeed, the seriousness of such offending is evidenced by the 10-year maximum term of imprisonment now available. When the Films, Videos, and Publications Classification (Objectionable Publications) Amendment Bill, which increased the maximum sentence for such offending to 10 years’ imprisonment, had its third reading, the Hon Amy Adams explained that:23
20 At [30].
21 New Zealand Customs Service v Praditsin, above n 2, at [22]-[23].
22 At [25].
23 (2 April 2015) 704 NZPD 2891-2892.
This legislation addresses an appalling issue that confronts societies around the globe. The creation and dissemination of objectionable material is a revolting scourge on our society. It is an evil that abuses and revictimises some of the most innocent and vulnerable amongst us. Advances in technology mean that offenders can now access almost infinite quantities of objectionable material with ease. Although for the most part the ability to access and share information online is a positive thing, it also enables child exploitation material offenders to view, store, and share images depicting the sexual abuse of children in numbers and at speeds inconceivable even just a decade ago.
… When offenders store and distribute this material it fuels the market, encouraging those who create the material to produce more of it, which in turn results in more children being abused. This is a cycle we are aiming to disrupt by increasing the penalties for the possession, production, and distribution of child exploitation material. Once an image exists it can be distributed to a wide audience at the click of a button. These images are being replicated and distributed further with ease, enduring long beyond the life of the victim.
This legislation sends a clear message that that is a repugnant series of conduct that encourages the abuse of children, for which New Zealand has zero tolerance. …
[34] Similar views have been expressed in a number of court decisions. For example the Court of Appeal said in R v Zhu:24
We repeat the important message that such offending is not victimless. Each image involves the exploitation of a child. In some of the images the emotional and physical exploitation of the children is gross.
[35]The Chairman of the United Kingdom Sentencing Advisory Panel explained
in a foreword to the Panel’s Report on child pornography sentencing that:25
It is fundamental to our proposal that sentences for these offences should reflect the harm suffered by children who are abused and exploited by the production and distribution of indecent photographs. An offender sentenced for possession of child pornography should be treated as being in some degree complicit in the original abuse which was involved in the making of the images. Sentences for possession should also reflect the continuing damage done to the victim or victims, through copying and dissemination of the pornographic images. Those who make or distribute the images bear a more direct responsibility for their eventual use, as well as for encouraging further production.
24 R v Zhu [2007] NZCA 470 at [19]. See also Stewart v Department of Internal Affairs [2014] NZHC 2209 at [27]-[30]; and Webb v R [2016] NZHC 2966 at [54].
25 Professor Martin Wasik Advice to the Court of Appeal – 10: Offences involving Child Pornography (Sentencing Advisory Panel, August 2002); cited in Department of Internal Affairs v Wigzell HC Wellington CRI-2007-485-110, 20 November 2007 at [41].
[36] The production of child abuse images is fuelled by high levels of demand from internet users seeking to continually access new material. The continued distribution and circulation of child abuse images on the internet results in ongoing victimisation and a gross invasion of the privacy of child victims, resulting in serious harm and distress to such victims. The demand by “consumers” such as Mr Praditsin fuels the ongoing production and supply of such material. Possession of child pornography is therefore far from a victimless crime, despite the views apparently held by many offenders to the contrary.26
[37] For the reasons outlined, I reject the submission that a registration order cannot be made in respect of Mr Praditsin because the offence of possession of objectionable material is not a type of offence that is capable of meeting the s 9(2) test of posing a risk to the lives or sexual safety of one or more children, or of children generally.
Did the Judge err in directing that Mr Praditsin be registered on the Register?
[38] Having rejected the argument that “mere” possession of child pornography is an offence type that could never meet the statutory requirement of posing a risk to the sexual safety of children, it is necessary to now turn to the specifics of Mr Praditsin’s case. A two-stage inquiry is required by s 9 of the Act:
(a)first, the Court must be satisfied pursuant to s 9(2) that Mr Praditsin poses a risk to the lives or sexual safety of one or more children, or of children generally, taking into account the various mandatory considerations in s 9(3); and
(b)second, if the Court is satisfied that Mr Praditsin does pose such a risk, it must decide pursuant to s 9(1) whether to order that he be placed on the Register.
26 For example, in R v Spark [2009] NZCA 345, [2009] 3 NZLR 625 the Court of Appeal noted at
[20] that Mr Spark held the view that what he was doing was “entirely for himself” and that the
relevant offending was “victimless”.
Does Mr Praditsin pose a risk to the lives or sexual safety of one or more children, or of children generally?
[39] The extent to which Mr Praditsin poses an ongoing risk to the sexual safety of children requires a consideration of the various mandatory factors in s 9(3), together with any other relevant matters.
[40] Mr Praditsin was found with over 2000 child pornography videos or images in his possession, of which 172 images and video files are images showing children being involved in penetrative sexual activity or sadism. There were 18 images and video files showing children involved in sexual activity, predominantly masturbation. There were also approximately 2022 other images and video files, predominantly showing children in sexualised poses. An analysis of his laptop indicated that the images and videos had been downloaded over the preceding four years. Mr Praditsin himself reported that he had been viewing child sexual exploitation material for about five years.
[41] In terms of the seriousness of the qualifying offence, I note that Parliament has recently doubled the maximum penalty for possession of objectionable material with knowledge to 10 years’ imprisonment. This sends a clear message that Parliament views such offending very seriously. It is also relevant, however, that under the Act, Mr Praditsin’s conviction is for a class 1 qualifying offence. Class 1 offences are still serious offences, but have presumably been placed in that category because they were seen by Parliament as posing a somewhat lower ongoing risk to the sexual safety of children than class 2 or class 3 offences.
[42] Other s 9(3) factors that must be considered are the period of time that has elapsed since the offence was committed and the age of the offender and the victims. Mr Praditsin is 47. At the time of his arrest the offending was recent and spanned (at least) the four years prior to his arrest. This is not therefore a case where Mr Praditsin may have had a youthful interest in child pornography that has only somehow come to light many years later. He is a mature man and his interest in child exploitation materials is current.
[43] The Provision of Advice to Courts report records that Mr Praditsin told the report writer that his sexual preference was pre-pubescent female children of around 10 years old. The psychologist’s report, however, states that Mr Praditsin could not recall having said that. He told the psychologist that his sexual preference was for female teenagers aged 14 or 15. He also said he felt that it was normal for men to have a sexual interest in young females and teenagers.
[44] The psychologist’s report concludes that Mr Praditsin poses a medium-low risk of future internet offending, and a low risk of any crossover to contact offending, using the Static 99R tool. The report writer concluded that:
If Mr Praditsin were to reoffend this would most likely be committed online through media platforms such as the internet, where Mr Praditsin may be able to view, and download objectionable and illegal images. The victims are likely to be female children and teenagers. His sexual offending is therefore likely to occur in isolation within his own home. Given the restrictions likely to be placed on Mr Praditsin in the community, re- offending is unlikely to be imminent, however could be frequent and long in duration once it has commenced.
[45] Mr Praditsin’s offending behaviour is well-entrenched, having occurred regularly over a period of four to five years. Further, it is difficult to prevent persons who are not in custody from obtaining access to internet-enabled devices. Indeed, once Mr Praditsin has completed his sentence, there will be no constraints at all on him accessing such devices.
[46] It is apparent from the reports before the Court that Mr Praditsin has limited insight into his offending and has found it difficult to identify why child sexual exploitation material is harmful to child victims. He was unable to identify any strategies that might prevent him from reverting to old habits. This may, of course, change if Mr Praditsin is able to successfully engage with rehabilitation programmes during the course of his sentence, but that cannot be guaranteed.
[47] Taking all of these matters into account, it is my view that Mr Praditsin is at medium risk of re-offending and accordingly poses a risk to the sexual safety of children. The threshold test in s 9(2) is accordingly met and the Judge had jurisdiction to place Mr Praditsin on the Register if, in the exercise of his discretion, he believed that was the appropriate course.
Did the Judge err in the exercise of his discretion, by ordering that Mr Praditsin be placed on the Register?
[48] The final stage is to consider whether the Judge erred in exercising his discretion to order that Mr Praditsin be placed on the Register.
[49]Dobson J addressed some of the factors relevant to the exercise of the Court’s
discretion in Johnston v Police, as follows:27
[22] The Court’s consideration of whether to make a registration order cannot focus solely on how useful entry of a convicted person on the register would be in affording protection to children who might be at risk. Rather, a balancing exercise is required to weigh the utility of the details of a convicted person being on the register, against the impacts of this additional punishment on the defendant. These include what would otherwise be that person’s privacy interests and the additional stigma following from his or her classification as someone whose name has been added to the register. Section 9 of the New Zealand Bill of Rights Act 1990 recognises the right of everyone not to be subjected (among other things) to disproportionately severe treatment or punishment. That provides an overarching constraint on the exercise of the s 9 discretion, and is a legitimate influence in assessing the matters specified in s 9(3) of the Act.
[50] In both Johnston and Fowler v R,28 observations were made to the general effect that, in the exercise of its discretion, the Court should have regard to s 3 of the Act, which specifies that the statutory purpose of the Act is to establish a child sex offender register that will reduce sexual reoffending against child victims, and the risk posed by serious child sex offenders.
[51] In Goose, Simon France J reviewed both Johnston and Fowler, and cautioned against Judges adopting an approach that would raise the required risk threshold too high in reliance on the reference in s 3 to “serious child sex offenders”. His Honour stated that:29
[26] It being early days in the life of this legislation, it is appropriate to venture further comment, in this case taking a somewhat different approach [to Johnston and Fowler]. A potential effect, as I see it, of the decisions discussed may be to raise the threshold too high, especially if an elevated level of risk is then matched by the type of further analysis envisaged under the second step consideration of the discretion.
27 Johnston v Police [2017] NZHC 1718.
28 Fowler v R [2017] NZHC 1892 at [31]-[34].
29 Above n 19.
[27] The idea of a threshold level of risk is not inconsistent with the statutory purposes. The mandatory considerations in s 9(3) are targeted at identifying the risk, and presumably premised on the proposition that not any risk, however negligible, will suffice. However, once the heightened threshold of risk is found to be present, I query the extent to which the discretionary step requires the sort of detailed analysis proposed in Fowler.
[28] The concept of “serious child sex offender” appears only in the purpose provision and while that obviously informs interpretation, it is not definitional. Section 9 on its face does not contain a heightened test and it can at least be posited that one who has committed a qualifying offence, and who is assessed as posing an on-going risk to the sexual safety of children can fairly be described as a serious child sex offender.
[52] I find his Honour’s reasoning compelling. The term “serious child sex offender” clearly has to be interpreted in the context of the Act as a whole. The Act envisages that a person who has committed any one of the qualifying offences set out in Schedule 2, and who poses an ongoing risk to the sexual safety of children, is a serious child sex offender. Whether a lay person would describe them as a serious child sex offender or not is irrelevant. The fact that the purpose of the Act is to reduce the risk posed by serious child sex offenders does not, in itself, pose some additional hurdle. Rather, by definition, serious child sex offenders in terms of the Act are simply those who have committed a qualifying offence (of whatever class) and who pose a sufficient degree of ongoing risk to the lives or sexual safety of a child or children to warrant being placed on the Register.
[53] In all the circumstances of this case, it is my view that the Judge did not err in exercising his discretion in favour of ordering that Mr Praditsin be placed on the Register.
[54] As I have already noted, it is my view that Mr Praditsin is at medium risk of re-offending. The Judge’s view was that Mr Praditsin was (at least) at a medium-low risk of re-offending, and possibly higher than that (depending on the success of treatment). Placing Mr Praditsin on the Register will assist in managing his risk of re-offending because (amongst other things) Mr Praditsin will be required to provide the Commissioner of Police with details of his telecommunications and internet services and devices, his online social networks, any storage accounts that he uses, details of any websites owned or administered by him, and his email addresses. As the Judge observed, registration will provide another level of supervision by the
Police over his activities. In addition, the knowledge that the Police have access to information regarding Mr Praditsin’s online profile may well also assist him to self- regulate his online behaviour and, in that way, facilitate his rehabilitation.
[55] It is also relevant to the exercise of the Court’s discretion that Mr Praditsin would almost certainly have been sent to prison but for the fact that he does not speak English. If he had been sentenced to imprisonment, registration would have been mandatory. As Simon France J observed in Goose, the role of the Court’s discretion will be even more circumscribed where a sentence of home detention is imposed (as opposed to a lesser sentence), because the Court has already determined that the offending, but for home detention being available, merited a term of imprisonment. In such circumstances, his Honour observed, it would not be often that the discretion pointed away from registration.30
[56] Taking all of these matters into account, it is my view that the Judge was correct to exercise his discretion in favour of registration. Registration is proportionate to the level of risk the Mr Praditsin poses, and does not have the effect of subjecting him to disproportionately severe treatment or punishment. Neither the impact on his privacy interests or the stigma associated with registration are sufficient to tip the scales against a registration order.
Summary and conclusion
[57] For the reasons outlined at [26] to [37] above, I reject the submission that a registration order cannot be made in respect of Mr Praditsin because possession of child pornography, in itself, is not a type of offence that can meet the s 9(2) test of posing a risk to the lives or sexual safety of one or more children, or of children generally. On the contrary:
(a)The overall scheme of the Act is that all qualifying offences can lead to an offender being placed on the Register, even if an offender is not sentenced to imprisonment. No qualifying offences are excluded on the basis that they are a “type” of offence that is somehow less
30 Above n 19, at [30].
serious, or does not involve direct sexual abuse by an offender of a specific child or children.
(b)Any other interpretation would be unprincipled and would lead to arbitrary outcomes. In particular, the fact that a sentence of home detention is imposed, rather than one of imprisonment, will often be attributable to factors unrelated to the gravity of the offending, including the availability of a suitable home detention address and the particular rehabilitative needs of an offender.
(c)Child pornography offending seriously harms victims. The consumers of child pornography contribute to that harm by creating the demand for such material and perpetuating its circulation online. They must be seen as being complicit, to some degree, in the original abuse that was involved in the making of the images.
[58] For the reasons outlined at [40] to [47] above, the threshold test in s 9(2) (namely that Mr Praditsin poses a risk to the sexual safety of children) was met and the Judge therefore had jurisdiction to place Mr Praditsin on the Register in the exercise of his discretion. In particular:
(a)Possession of child pornography is a serious offence, punishable by
up to 10 years’ imprisonment.
(b)Mr Praditsin’s offending, although not the worst of its type, involved the possession of over 2000 child abuse images, including 172 in the most serious category.
(c)Mr Praditsin is a mature man whose offending is well-entrenched, having taken place over a five-year period. He has a deviant sexual interest in pre-pubsescent and teenage girls.
(d)Mr Praditsin has limited insight into his offending and found it difficult to identify why child sexual exploitation material is harmful
to child victims. He was unable to identify any strategies that might prevent him from reverting to old habits.
[59] Finally, for the reasons outlined at [53] to [56] above, the Judge did not err in the exercise of his discretion by ordering that Mr Praditsin be placed on the Register. Being on the Register will assist in managing Mr Praditsin’s risk of re-offending. Mr Praditsin would almost certainly have been sent to prison but for the fact that he does not speak English. If he had been sentenced to imprisonment, registration would have been mandatory. Overall, registration is proportionate to the level of risk the Mr Praditsin poses, and does not have effect of subjecting him to disproportionately severe treatment or punishment.
Result
[60]The appeal is dismissed.
Katz J
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