R M v Police HC Christchurch CRI 2006-409-62

[2006] NZHC 427

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000062

R M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 April 2006

Appearances: P N Allan for Appellant

R Roberts and Z Johnston for Respondent

Judgment:      27 April 2006

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

The appeal is dismissed.

REASONS

[1]      R M   pleaded  guilty to  two  representative  charges  that without  lawful  authority  or   excuse  he  had  in  his  possession  objectionable publications in breach of the Films, Videos, and Publications Classifications Act

1993.   The images  in  question,  totalling ten,  were  held  within  two  portions  of computers and represented bestiality, acts of defecation with sexual connotations,

and acts of urination with sexual connotations.   They were found by the relevant

M V POLICE HC CHCH CRI 2006-409-000062  27 April 2006

authority to be objectionable.   The Judge, without viewing them, found them disgusting which Mr Allan accepts, given the description of the acts contained in the classification of documentation.

[2]      The Judge commented that if the appellant had pleaded not guilty and the matter  had  been  defended  the  nature  of  the  images  would  put  them  near  the maximum fine.  He took into account the appellant’s guilty pleas.  He mentioned the number of references filed in support of the appellant, and imposed a fine of $1,100 plus court costs of $130 on each charge.

[3]      Mr M   appeals on the basis that such fines are said to be manifestly excessive.   It is submitted on his behalf that while these images have been ruled objectionable, they are not of the worst kind.  They do not involve the exploitation of children or young persons, there is no evident lack of consensual behaviour, nor is there anything in the images to suggest the use of violence or coercion to compel those involved to participate.  Mr Allan further submits that the appellant should be sentenced on the basis that he faced two charges only, and when looked at on that basis the sentence is manifestly excessive.

[4]      The Crown, however, says that these were representative charges, which is unusual in the summary context.   There were ten images and standing back and looking at the totality of the sentence it cannot be said to be manifestly excessive.

[5]      It is clear that there is no tariff in this area, nor are there many cases of great assistance.

[6]      The charges have been brought as representative charges.   That means the sentencing Judge is entitled to take into account the individual images contained in both charges, that is the ten images.  If, as could have been the case, ten informations had been laid and a fine of $200 imposed on each, it seems to me it would be impossible to say, against a maximum of $2,000, that it was manifestly excessive.

[7]      While I accept that there are worse images than these, however disgusting these may have been, I cannot see that the fines imposed can be said to be manifestly

excessive.  The appellant faced two charges but the culpability involved ten images. He was sentenced on the basis of his criminality and culpability involved in having ten images, and not two charges.  It was proper for the Judge to do so.

[8]      While there are cases involving worse images and the sentence may be stern, it was not outside the range available to the learned District Court Judge and the appeal is dismissed.

Solicitors:

F S Legal, Christchurch for Appellant

Raymond Donnelly, Christchurch for Respondent

CC:

Judge Green