R v Clode

[2008] NZCA 421

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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA156/2008 [2008] NZCA 421

THE QUEEN

v

STEPHEN THOMAS CLODE

Hearing:         25 August 2008

Court:            Chambers, Potter and Miller JJ Counsel:         P T R Heaslip for Appellant

K Raftery for Crown

Judgment: 15 October 2008 at 2 pm ([2008] NZCA 381)

Revised judgment following recall: 15 October 2008: see minute of 15 October 2008

Effective date of judgment: 22 September 2008

JUDGMENT OF THE COURT

A        The application to extend time for appealing is granted. B           The appeal against conviction is dismissed.

C        The appeal against sentence is allowed.  All sentences are quashed and

the following sentences of imprisonment are substituted:

R V CLODE CA CA156/2008  15 October 2008

1     A: Indecent assault (touching genitals and  videoing)  (CRN  6365)

3 years 2 months

2     A: Indecent assault (lifting top and videoing) (CRN 6366) 16 months

3     A: Indecent assault (crotch of swimsuit and videoing) (CRN 6367)

16 months

4     A:  Making  video  of  A  (shower  and  lounge);  making  video  of  B (shower); making video of C (shower)  (CRN 6369)  18 months

5     A or B or C: Distributing two videos (CRN 6370)          16 months

6     Possessing pornography (CRN 6368)  8 months

7     FS: Indecent assault (touching between legs) (CRN 7963) 8 months

8     FS: Indecent assault (bra strap) (CRN 6362)  5 months

9     FS: Indecent assault (touching bottom) (CRN 7964)         5 months

-where sentences 1-6 are concurrent among themselves, but cumulative on sentences 7-9 (which are concurrent among themselves), making a total sentence of three years, ten months’ imprisonment.

D        The destruction order is confirmed.

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents

Para No

Sexual offending and pornography   [1] Issues on the appeal  [10] Should we extend the time for appealing?  [13] Did justice miscarry as a result of the trial process?  [27] Was the sentence manifestly excessive?  [41] Category A – making and distributing pornography  [48] Category B – possessing pornography  [55] Summary of categories A and B  [56] Category C – indecent assaults on FS  [58] Conclusion     [65]

Result  [68]

Sexual offending and pornography

[1]      A 19 year-old foreign student (FS) home-stayed with Stephen Clode, the appellant, and his wife and daughter.  On 15 March 2005, she went to the police to complain about several instances when Mr Clode had indecently assaulted her.  She also told the police she had regularly used Mr Clode’s computer.  On occasions, she had opened documents which Mr Clode had saved on the computer.   These documents included pictures of children engaged in sexual acts with adults.

[2]      She also told the police about three young children who, for a time, had lived at the house.   We shall call them A,  B and C.   They were  aged 10,  8  and  4 respectively.  FS said she had on one occasion seen Mr Clode sitting at his computer with A sitting on his knee.  Mr Clode had a web cam directed towards himself and seemed to be corresponding with somebody over the internet.  FS saw Mr Clode lift A up and expose A’s bare chest area.   On another occasion, when Mr Clode was sitting in front of his computer and web cam with A on his knee, he had kissed her on the mouth.

[3]      FS also said she had seen photographs of A stored on the computer.  These photographs were posed to show A’s chest area, buttocks and underwear.

[4]      The police executed a search warrant at Mr Clode’s home.  They seized his computer and associated equipment.  These items were subsequently examined.  The police recovered more than 16,000 pictures in JPG format and 38 movie files in AVI format.  The pictures included photographs of children engaged in sexual acts with adults, children and young persons in provocative poses, and naked women and girls engaged in sexual acts with dogs.  Many of the images had been downloaded onto discs.

[5]      The movies included videos of A naked in the shower and the lounge, B naked in the shower, and C naked in the shower.  These videos had been taken using a digital camera and downloaded onto the computer and discs.   Analysis revealed that two of them had been made available for distribution on the internet using Yahoo Messenger.

[6]      Mr Clode himself appeared in some of the movies.  In one, A was naked in the shower and Mr Clode was touching her genital area with his finger.  In another, she was in the lounge wearing a top but with no underpants.  Mr Clode can be seen lifting her top, thereby exposing her genital area.  In a third, A is wearing a swimsuit. Mr Clode can be seen pulling back the crotch of the swimsuit to expose her genital area.

[7]      The police questioned Mr Clode.   He made admissions with respect to the pornography and with what he had done to A, B and C (as shown on the videos). But he denied FS’s allegations.  He subsequently pleaded guilty to a raft of offences, but not guilty to three indecent assault charges involving FS.  It appears the Crown decided not to proceed with charges relating to the two incidents involving A which FS had told them about and which are referred to in [2] above.

[8]      He was tried on the FS charges before Judge McAuslan and a jury.  He was found guilty.  Another judge, Judge Blackie, subsequently sentenced him to a total of five years, three months’ imprisonment.

[9]      Mr Clode now belatedly seeks to appeal both his FS convictions and his overall sentence of imprisonment.

Issues on the appeal

[10]     Mr Clode sought to appeal well out of time.   The first issue we have to determine is whether we should extend time for appealing under s 388(2) of the Crimes Act 1961.   For reasons we shall give, we have decided to grant such extension.

[11]     The  appeal  against  conviction  is  based  on  trial  counsel  incompetence. Mr Heaslip,  who  appeared  for  Mr  Clode  before  us,  advanced  in  his  written submissions a number of allegations against trial counsel, Jane Northwood.   But, following cross-examination of Mr Clode and Ms Northwood, his list of trial counsel errors was reduced to:

(a)     she should have advised Mr Clode to give evidence;

(b)     she should have adduced in evidence a letter FS had written to Mr and

Mrs Clode;

(c)     she  should  have  sought  to  have  excised  from  Mr  Clode’s  video interview the last two questions and answers, in the course of which Mr Clode was seen crying.

[12]     The  appeal  against  sentence  is  pursued  on  the  basis  the  sentence  was manifestly excessive.   Mr Heaslip submitted the overall sentence should not have exceeded  four  years’  imprisonment.    He  submitted,  as  a  subsidiary  point,  that Ms Northwood was unprepared for sentencing and should have sought to have it adjourned.

Should we extend the time for appealing?

[13]     Judge Blackie sentenced Mr Clode on 28 November 2005.  This meant any appeal against conviction and sentence should have been filed on or before 4 January

2006.   In fact, Mr Clode did not file his appeal until 4 April 2008, more than two years out of time.

[14]     Mr Clode was partly responsible for the delay, but not totally responsible. We set out what was happening between 28 November 2005 and 4 April 2008.

[15]     First, on the day of sentence itself, Mr Clode was suicidal.   According to Ms Northwood, Mr Clode was in such a “state on the day of sentence” that she sought an adjournment of the sentence.   Judge Blackie declined that adjournment, believing it was in everyone’s best interests, including Mr Clode’s, that sentencing take place.

[16]     Mr Clode gave evidence before us that, several times in the week after he went to prison, he tried to get in touch with Ms Northwood about appealing.   He eventually got in touch with her and, according to him, she agreed to “get stuck into” an appeal.   Ms Northwood does not recall any such telephone call.   Indeed, she recalls thinking she was surprised Mr Clode had not been in contact and thought perhaps he had “reconciled with his position”.  We have not found it necessary to determine whose recollection is correct on that matter.   That is because, even if Ms Northwood’s recollection is correct, we find Ms Northwood’s lack of action regrettable.   Either she or her instructing solicitor should have made contact with Mr Clode after the sentencing to see whether he did wish to appeal.  It should be de rigueur for a lawyer who has represented a client at sentencing on a serious charge to advise that client of his or her right of appeal and to obtain instructions in that regard.  This obligation was particularly pressing in this case, given that Mr Clode had had to be given medication even to get through the sentencing ordeal.  He would have been in no state to take in the judge’s sentencing remarks and, once he had recovered from the ordeal, he would have needed advice as to what he should do. He also needed to be told what the appeal period was.

[17]     In February 2006, Ms Northwood met Mrs Clode in the street in Papakura. Mrs Clode asked Ms Northwood about an appeal.  According to Ms Northwood, she replied that she was not in a position to do it.  Mrs Clode asked Ms Northwood to ring Mr Clode in prison.  The conversation should have alerted Ms Northwood to the fact that Mr Clode still saw her as his lawyer.  That was not surprising as she had not taken any step to sever the relationship.   It was not enough to tell Mrs Clode she would not do the appeal, as she knew the Clodes had separated and that Mrs Clode

was living some distance from the prison.  In these circumstances, Ms Northwood should, either herself or through her instructing solicitors, have told Mr Clode she could not assist him with his appeal.  Unfortunately she did not take either step.

[18]     Mr Clode said that he continued trying to contact Ms Northwood, but without success.  Ms Northwood denies receiving any messages to ring.  Again, we make no definitive  findings  as  to  whose  recollection  is  correct,  but  we  do  note  that Ms Northwood, was at this time, very preoccupied with personal matters.  She was getting married in April (or thereabouts) and then was away overseas for an extended honeymoon  for  a  couple of  months,  not  returning  to  New  Zealand,  and  to  her practice, until midway through June 2006.  Indeed, the reason she gave Mrs Clode for not wanting to do the appeal was her preoccupation with wedding preparations.

[19]     Eventually, Mr Clode gave up on Ms Northwood.  With the help of a prison guard, he completed an application for legal aid in September 2006.  On that form, he provided an explanation for the delay in applying:

I was not told by the prison about the 28 day appeal process while in prison. My lawyer wouldn’t return any phone calls after saying in approx Jan 06 that she would start the appeal.

[20]     On 28 September, the Legal Services Agency wrote to Mr Clode, saying a decision on his application had been deferred, pending further information.   The agency wanted clarification as to whether he intended to appeal his conviction or his sentence or both.  The agency also asked for a copy of the notice of appeal.

[21]     According   to   an   agency   file   note,   Mr   Clode   rang   the   agency   on

14 November.   He explained that he had tried to contact his previous lawyer, but without success.  He said that he did not know of any other lawyers and without a lawyer he could not provide the information requested.

[22]     At this point, the agency approved a limited grant of legal aid so that a lawyer assigned by the agency could look into the merits of the appeal.  For some reason, however,  the  agency did  not  write  to  Dinah  Dolbel,  the  lawyer  assigned,  until

18 December.  There was then a significant delay.  Ms Dolbel did not provide her opinion until 29 May 2007.  We do not know whose fault it was that there was such

delay in the provision of that opinion; all that matters for current purposes is that the delay does not appear to have been caused in any way by Mr Clode.

[23]     Ms Dolbel was of the view that the appeal had merit.  She was not, however, in a position to conduct the appeal herself.

[24]     The agency appears to have done nothing in response to Ms Dolbel’s opinion. Ms Dolbel followed up on her opinion on 15 June, asking the agency to advise who had been assigned to conduct the appeal she had recommended.   She said in that letter that Mr Clode had contacted her, wanting to know the result.   So far as the agency’s file discloses, Ms Dolbel received no reply.

[25]     Mr Clode then got in contact with Mr Heaslip and on 30 July 2007 advised the agency that Mr Heaslip would be conducting the appeal, a fact confirmed by Mr Heaslip to the agency on 1 August 2007.  It was then discovered that Mr Clode had  completed  the wrong legal  aid  form:  he had  completed  the legal  aid  form appropriate for an appeal to the High Court.  A different form was required for an appeal to the Court of Appeal.  For some reason, which may be Mr Clode’s fault or may be Mr Heaslip’s fault, the correct form was not returned to the agency until

26 March 2008.  The agency, armed with the now correct form, approved the grant of aid and assigned Mr Heaslip as counsel.  The appeal was then promptly filed on

4 April 2008.

[26]     Mr Clode must take some responsibility for the delay, but clearly others too share some of the blame: Ms Northwood, her instructing solicitor, the Legal Services Agency, and perhaps Mr Heaslip.  In the circumstances of this case, we are satisfied the interests of justice require us to extend the time for appealing.

Did justice miscarry as a result of the trial process?

[27]     Shortly after Mr Heaslip filed the appeal on Mr Clode’s behalf, he wrote to Ms Northwood, requesting her answer to a myriad of questions.  Ms Northwood took umbrage at the tone of the letter and refused to answer the questions.

[28]     A stand-off of this sort is most undesirable. We set out now for the benefit of defence counsel what they should do in circumstances where an appellant indicates that he or she considers the trial to have been unfair because his or her counsel failed to follow instructions or was otherwise incompetent.   In these reasons, we use the expression “trial counsel incompetence” rather loosely to describe both situations.

[29]     Appellate counsel should take detailed instructions from the defendant as to his or her complaints.  Appellate counsel should then approach trial counsel, setting out to him or her the defendant’s complaints and inviting comment.  Trial counsel should then respond, fairly conceding what should be conceded but equally resisting those complaints which are without foundation.  (We mention the latter, as we are aware there are some criminal lawyers who misguidedly consider that defence bar ethics  require  them  to  take  no  step  which  might  hinder  a  successful  appeal.) Appellate counsel should then evaluate defence counsel’s response.   If his or her assessment is that the defendant’s complaints cannot be sustained, then strong advice to that effect should be given to the defendant and should equally be reported to the Legal Services Agency.  Only if appellate counsel is satisfied there is an arguable case based on trial counsel incompetence should that ground of appeal be pursued.

[30]     We  appreciate  there  are  often  difficulties  in  pursuing  all  these  enquiries within the time limit prescribed by the Court of Appeal (Criminal) Rules 2001, r 12A.   If there are grounds of appeal other than trial counsel incompetence, the notice of appeal specifying those other grounds should be filed within the statutory time limit.  If, subsequently, trial counsel incompetence emerges as a proper ground of appeal, a memorandum can be filed seeking leave to add a further ground of appeal.   If trial counsel incompetence is the only possible ground of appeal, then generally counsel should hold off filing an appeal against conviction based on it until he or she is satisfied an appeal on that ground can properly be mounted.  This court would always look favourably on an application to extend time for appealing in circumstances where appellate counsel was carrying out due diligence as to whether a ground of appeal could properly be advanced.

[31]     In the present case, Mr Heaslip filed the notice of appeal before he had made any  approach  to  Ms  Northwood.    The  notice  of  appeal  advanced  a  number  of

allegations against her which later proved completely unfounded.   We accept, however, that, in the exceptional circumstances of this case, Mr Heaslip was justified in filing the notice of appeal when he did.  The appeal was already so far out of time when he was first instructed that no one could fairly quibble about his choosing to get the appeal on the record as soon as he could.

[32]     To his credit, Mr Heaslip did then approach Ms Northwood for a response. (In  our  experience,  many  appellate  counsel  never  take   that   course.)     But Mr Heaslip’s manner of approach to Ms Northwood was perhaps unfortunate.   He did not set out Mr Clode’s version of events and politely invite comment.  Rather, he rather aggressively set out a large number of questions, many of which were phrased in a way which would have annoyed most defence counsel.  There was no need for an aggressive tone.  It was completely counter-productive.  We feel confident that, had Ms Northwood been approached in the manner we have outlined above, she would have responded in a measured way.  Many of the complaints would then have fallen away and we could then have concentrated on the few complaints which remained.  Instead, what happened is that we got extensive affidavits from Mr Clode and  Ms  Northwood,  each  of  whom  was  then  cross-examined.    Following  that cross-examination, Mr Heaslip considered there were only three complaints he could sensibly advance.  That was the position that should have been reached right at the start of the appeal process, not at the oral hearing itself.

[33]     With that introduction, we now turn to the three complaints Mr Heaslip was left with.

[34]     Mr Clode’s first complaint is that Ms Northwood should have advised him to give evidence.  It is clear from the evidence before us that the question of whether Mr Clode should give evidence was discussed between him and Ms Northwood and that in the end he instructed her that he did not wish to give evidence.  In particular, he was frightened by the prospect of being cross-examined.

[35]     We have no hesitation in rejecting this complaint.  First, Ms Northwood did discuss the question with Mr Clode and he made the decision not to give evidence. Ms Northwood did not place any pressure on him one way or the other.  Secondly,

Mr Clode, even now, cannot point to anything he would have said which was not said in his videotaped interview, which was played to the jury.  He got his version of events before the jury without having to expose himself to cross-examination. Thirdly, we have seen Mr Clode under cross-examination on the appeal.  He did not perform well.

[36]     Mr Clode’s second complaint was that Ms Northwood should have adduced in evidence a letter FS had written to him and his wife.  In his affidavit, he said he “had expressly told [Ms Northwood] to introduce the letter as it was relevant to contradict some of the complainant’s evidence and thereby assist in bringing into question   her   credibility”.      There   is   nothing   in   this   complaint,   however. Ms Northwood carefully cross-examined FS about the letter she had written to the Clodes and brought out that she had told them she had enjoyed her stay with them and had been happy with them.   There is no evidence that there was  anything favourable  to  Mr  Clode  in  the  letter  which  Ms  Northwood  did  not  adduce  in evidence.   Although we have not seen the letter, according to Ms Northwood, it contained some “downside” in that it referred to “issues and problems and what had gone on”.   If that is right, Ms Northwood’s tactic was entirely correct.   Actually producing the letter itself would have brought those undesirable features of it to the jury’s attention.

[37]     Mr Heaslip’s third point concerned the videotaped interview Mr Clode had had with the police.  At Ms Northwood’s insistence, the videotape had been carefully edited to remove all references to pornography and A, B and C.  Those were charges to  which  Mr  Clode  was  pleading  guilty;  the  jury  did  not  even  know  of  their existence.  There is no complaint about her performance in that regard.  But what is complained about is the failure to edit the last two questions and answers.  They read as follows:

Q        Okay, that’s pretty much from my questions.  Is there anything… A         Nothing.

Q        That you want to say? A  (Crying) (Unclear)

QIt’s all right.  Nothing else you want to say, Mr Clode?  If not, we’ll leave it and I’ll turn the video off.

A        (Crying)

QOkay, the time on the video machine says 11.07 a.m.   You’ll be given the opportunity to watch this video back if you like, um I (unclear). This is the conclusion of the interview.

[38]     The problem, Mr Heaslip submits, is that Mr Clode was crying during those last two questions.   He submits that Mr Clode was crying not because of FS’s allegations (which were the sole topic of the edited video interview) but rather because of what he had done to A, B and C (who were not referred to in the edited version).   Mr Heaslip submits that, leaving these last two questions in, showing Mr Clode crying, would have left the jury with the impression that Mr Clode’s tears were an admission of guilt.

[39]     We do not accept that.   Defendants cry in video interviews for a host of reasons.  It is mere speculation as to what brought on the tears in this case.  Further, had the interview not been properly rounded out, it would have seemed very odd to the jury.   A rather abrupt conclusion, which would have been the consequence of excising these last questions, might have led to unfortunate speculation on the jury’s part.  We also note that Mr Clode expressed no concern to Ms Northwood about the editing of the video either before or during the trial.

[40]     We are satisfied the trial process was fair.  The criticism of Ms Northwood’s performance at trial has no merit. The appeal against conviction fails.

Was the sentence manifestly excessive?

[41]     As we have indicated, Judge Blackie sentenced Mr Clode to an overall term of imprisonment of five years, three months.  Mr Heaslip has submitted the sentence was manifestly excessive and illogically crafted.  As we have also indicated (at [12]), he took a subsidiary point that Ms Northwood was unprepared for sentencing and should have sought to have it adjourned.

[42]     We can clear that subsidiary point out of the way immediately.  There is no evidence to support the conclusion Ms Northwood was unprepared for sentencing. And further, she did seek an adjournment.   The adjournment application was not based, of course, on any lack of preparedness, but rather on the basis of Mr Clode’s state on the day of sentencing.  The judge declined that application.  We do not think he can be criticised for doing so.

[43]     We now turn to the substantive point of the sentence appeal.   Mr Clode pleaded guilty on six informations in relation to the indecent assaults on A and pornography.     (It  appears  that  Mr Clode  entered  these  guilty  pleas  on  the understanding  that  two  other  charges  of  indecently  assaulting  A  would  be withdrawn.  These two charges related to the assaults of A which were filmed on a webcam: see [2] above.)   Mr Clode pleaded not guilty to the assaults on FS but, following a  jury trial,  he  was  convicted  of  three  indecent  assaults.    The  judge essentially divided the nine offences into two categories: indecent assaults on A and FS on the one hand and pornography on the other.   In the latter category came making pornographic videos of A, B and C, distributing videos, and possessing pornography.  He imposed sentences of two and a half years’ imprisonment on each indecent assault charge and two years, nine months’ imprisonment on each pornography charge.   He then ordered the two sets of charges to be cumulative, making a total of five years, three months’ imprisonment.  He did not refer to any authorities in fixing the individual sentences or the overall sentence, apart from some United Kingdom guidelines, to which we refer further below.

[44]     We acknowledge at the outset this was an extremely difficult sentencing exercise.   There is no one right way of constructing the sentencing package.   We have considered a number of different ways of putting the package together.   But, however we structured it, we have found ourselves unable to justify a sentence as long as five years, three months’ imprisonment, particularly when one considers Mr Clode pleaded guilty at an early stage to the bulk of the offending.

[45]     In the end, since we are satisfied the sentence was too high, we have decided to restructure the package as we think appropriate.   As we see it, the offending breaks down into three categories:

Category A – making and distributing pornography

1 Touching A’s genitals and videoing – see [6].

2 Lifting her top and videoing – see [6].

3 Pulling back the crotch area of her swimsuit and videoing – see [6].

4Making a video of A naked in the shower and lounge; making a video of B naked in the shower; and making a video of C naked in the shower

– see [5].

5       Making available for distribution on the internet two of those videos –

see [5].

Category B – possessing pornography

6         Possessing 16,000 pictures in JPG format and 38 movie titles in AVI

format – see [4].

Category C – indecent assaults on FS

7 Touching her between the legs – see [1].

8 Flicking her bra strap – see [1].

9 Touching her bottom – see [1].

[46]     We have grouped the indecent assaults on A (counts 1-3) with the counts of making and distributing pornography (counts 4 and 5) as the true criminality of the assaults lies not in the touching, which was minor, but in the fact they were recorded for potential (and, in two cases, actual) distribution over the internet, where they would be used by paedophiles for their sexual gratification.   In other words, the assaults (the touchings) were but a relatively minor part of the making of child pornography.  There is no substantive difference between counts 1-3 and counts 4

and 5.  Indeed, the three assaults came to light solely because they were depicted in the videos of A (count 4).

[47]     We now consider the appropriate penalty for each of these categories.

Category A – making and distributing pornography

[48]     In this category there were five offences which encompassed several discrete incidents.   Mr Clode made three videos (count 4).   In the course of making these videos, he touched A, but the touching itself was slight.  In only one case was there skin to skin contact: the touching of A’s genitals (count 1).  It does not appear that the touching of the genitals involved rubbing: merely a touch.

[49]     Mr Clode made two of his videos available for distribution on the internet using Yahoo Messenger (count 5).

[50]     Although, of course, it must be recognised that the three assaults on A were offences under s 133(1)(a) of the Crimes Act 1961 (as it was at the time of the offending), all the offending, for sentencing purposes, is best viewed in terms of ss 123 and 124 of the Films,  Videos,  and  Publications  Classification  Act  1993. Those were the sections under which counts 4 and 5 were laid.  As it happens, the maximum penalty under s 133 of the Crimes Act and ss 123 and 124 of the Films Act is the same: 10 years’ imprisonment.   That is the same maximum penalty as applies under equivalent legislation in the United Kingdom.

[51]     So far as we are aware, there are only two Court of Appeal authorities on this sort of offending since the maximum penalty was increased in 2005: see the Films, Videos, and Publications Classification Amendment Act 2005, s 27.  Those cases are R v Zhu [2007] NZCA 470 and R v Henderson [2008] NZCA 305. In both those cases, this court referred to the UK Sentencing Guidelines Council’s Definitive Guideline on the Sexual Offences Act 2003 (UK), Part 6A. (This part is concerned with indecent photographs of children.) The guideline was published in April 2007. In Zhu, this court summarised the UK Council’s guidelines and categorisations and said at [15]:

Without  necessarily  adopting  in  full  these  categorisations  or  sentencing levels as appropriate for New Zealand, we think the analysis of seriousness and general sentencing levels in the report of the Sentencing [Guidelines Council] are a useful guide for New Zealand.

[52]     We  agree.    Until  such  time  as  this  court  or  New  Zealand’s  Sentencing Council produces a guideline, we would encourage trial judges to use the UK guideline as “a useful guide for New Zealand” in cases involving child pornography. The guideline sets out five levels of child pornography,  level 1 being the least serious and level 5 the worst.   The videos made by Mr Clode involved level 1 pornographic images, ie images depicting erotic posing with no sexual activity.  The guideline provides a starting point of two  years’ imprisonment for an “offender involved in the production of, or [who] has traded in, material at levels 1-3”.  These videos were low level pornography, but they did  involve  young children.    The guidelines make it clear that the starting point should be higher where the victim is a child under 13: see [6A.9].  Further, there were here three young victims, not just one.   And Mr Clode was in a position of trust with respect to these three young victims, since they were living in his house at the time of the offending.

[53]     We must also factor in, as a matter of aggravation, the fact that indecent assaults were committed in the course of making the videos.  In particular, of course, we are concerned about Mr Clode’s having touched A’s genitals during the making of the video involving her (count 1).

[54]     Taken together, we consider those aggravating factors justify an uplift of

18 months.  That means the sentence for category A offending, if stand-alone, should be three years, six months imprisonment – subject, of course, to overall totality principles and mitigating factors.

Category B – possessing pornography

[55]     Most of the objectionable pornographic material in Mr Clode’s possession was  level  4  child  pornography (penetrative  sexual  activity involving  a  child  or children, or both children and adults).   Some was level 2 (non-penetrative sexual activity between children, or solo masturbation by a child) and some level 3 (non-

penetrative sexual activity between adults and children).  Several of the images were level 5 child pornography (sadism or penetration of, or by, an animal).  The starting point under the UK guidelines for “possession of a large quantity of level 4 or 5 material for personal use only” is 12 months’ imprisonment.   In our view, if this offence stood alone, that would have been the appropriate sentence.  It accords with the sentence approved by this court in Henderson.

Summary of categories A and B

[56]     We think the offending covered by categories A and B hangs together.  All the charges, in one way or another, involve the creation or possession of  child pornography.   Mr Clode is revealed as a man who was in possession of a large quantity of child pornography and also as a man who, albeit in a small way, was making and distributing child pornography.   The assaults on FS, by comparison, were quite different: she was an adult and there is no suggestion that what he did to her was recorded or for further distribution.

[57]     The indicative sentences for the category A and B offending are 3½ + 1, which equals 4½ years.   Totality principles require us to stand back and view the appropriateness of such addition.   We have done that, and do not consider further adjustment is required.  Mr Heaslip did not suggest there were any mitigating factors other than the early guilty pleas.   They should attract a 30% reduction – say, 16 months.  That brings the combined sentence back to three years, two months for the category A and B offending.

Category C – indecent assaults on FS

[58]     There were three indecent assaults on FS.

[59]     The first (count 7) involved a touching between FS’s legs.  FS was cleaning her room.  Mr Clode came in behind her and lifted her up.  He had one hand on her neck-shoulder region and the other between her legs.  He touched her for four or five seconds and then walked away.

[60]     Count 8 occurred another day when FS was in the lounge.  Mr Clode came in and, over her clothes, undid her bra.   FS did it up again; he would undo it.   This happened three or four times.  He told FS he was “very good at undoing bras”.

[61]     Count 9 involved Mr Clode touching FS on her bottom (clothed).  He did this a number of times while she lived at the Clodes’ place.  She could not be definitive on the number.

[62]     There is no doubt these assaults must have been extremely distressing for FS, particularly since she was a stranger to New Zealand and somewhat vulnerable as a boarder in the Clodes’ house, and therefore dependent on them for food and shelter. As well, because of her cultural background, she felt she could not tell her parents. At the same time, the touching was at a reasonably low level and both offender and victim remained clothed throughout.

[63]     In our view, an appropriate sentence for this offending, taken together, would be eight months’ imprisonment: see, for example, R v Te Hiko CA101/84 13 August

1984, R v Boyd HC AK T32/96 8 July 1996, and R v Williams HC TIM AP75/91

12 December  1991.    There  were  no  guilty  pleas  in  respect  of  this  offending. Mr Heaslip has not suggested other mitigating factors.

[64]     In  our  view,  the  overall  sentence  for  category  C  offending  should  be cumulative on the sentence for category A and B offending.

Conclusion

[65]     For the reasons given, we reach the view that the sentence for the category A and B offending should be three years, two months’ imprisonment and the sentence for the category C offending eight months’ imprisonment.   Again, before making those sentences cumulative, we need to consider whether totality principles necessitate a further adjustment.   We have concluded no further adjustment is required.  The total sentence will therefore be three years, ten months’ imprisonment. As it happens, this is slightly less than the punishment Mr Heaslip urged, although he cited no authorities nor provided any structural analysis.

[66]     Order C sets out the sentences we actually impose in substitution for those imposed by Judge Blackie.  The most serious offence in categories A and B was the incident where, while A was in the shower, Mr Clode touched her genitals while filming his actions with a digital camera (count 1).  This offence involved making pornography and an assault.  (It is not clear whether this video was one of the two which Mr Clode distributed.)   As the most serious offence, that offence (count 1) must receive the penalty appropriate for the totality of the offending in categories A and B: see the Sentencing Act 2002, s 85(4)(a).  It will therefore receive the three years, two months’ imprisonment applicable for the offending as a whole.   The remaining  counts  (2-6)  receive  the  penalty  appropriate  to  each  offence:  see s 85(4)(b).  In each case, the penalty imposed reflects a 30% discount for early guilty pleas.

[67]     With respect to the FS offending, count 7 is marginally “the most serious offence”.    It  will  therefore  carry the  penalty appropriate  for  the  totality  of  the offending against FS.

Result

[68]     We  dismiss  the  appeal  against  conviction,  but  allow  the  appeal  against sentence.      We   impose   an   effective   sentence   of   three   years,   ten   months’ imprisonment.  Individual sentences are as set forth in order C.  The judge made a destruction order in terms of s 136(1) of the Films Act.  Mr Clode did not appeal against that order.  We confirm it.

Solicitors:

Paul Heaslip, Auckland, for Appellant

Crown Law Office, Wellington