R v Police
[2019] NZHC 1428
•20 June 2019
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2019-406-7
[2019] NZHC 1428
BETWEEN R
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 June 2019 Appearances:
R A Harrison for the Appellant
J W N Cameron for the Respondent
Judgment:
20 June 2019
JUDGMENT OF CULL J
[1] Mr R appeals against the District Court decision to place him on the Child Sex Offender Register (the Register) after pleading guilty to three charges of possession of objectionable material.
[2] Mr R was sentenced in the District Court to four months’ home detention, final suppression of name, and registration on the Register.1 Mr R says the Judge erred in finding he was such a risk to children that he satisfied the criteria to be placed on the Register. Mr R has brought his appeal out of time. The police do not oppose leave being granted, but oppose his appeal.
1 New Zealand Police v R [2019] NZDC 4619.
R v NEW ZEALAND POLICE [2019] NZHC 1428 [20 June 2019]
Background
[3] On 14 July 2017, Mr R took his computer to be repaired. The repairer located four objectionable video clips and advised police, who seized the laptop. A subsequent digital forensic analysis showed there were more than 100 objectionable videos and pictures on the device, of which four video files, last viewed some two days prior, featured an infant girl and three pictures were of pre-teen girls. The analysis also indicated that over 50 internet searches for child exploitation material had been carried out on the laptop, indicating that the appellant knowingly searched for objectionable material.
[4] In explanation, Mr R explained that he had never touched or played with a child, but accepted that he had a “quick look” when he was looking at other objectionable material.
District Court decision
[5] The Judge said that he had been troubled as to whether or not Mr R should be placed on the Register.2 He noted that a consultant clinical psychologist had observed that Mr R did not appear to be totally forthcoming with respect to his deviant sexual interests.3 The Probation Service reported that Mr R appeared to suggest he was not the person accessing the material, that he had little or no recollection of having done so, and someone else could possibly have downloaded the items.4
[6] The Judge expressed concern that Mr R did not appear to be taking responsibility for the offending, giving the impression that he was:5
… distancing [himself] from this offending and suggesting, effectively that as far as the most serious aspect is concerned, that [he was] not looking at it, that this was a computer virus, and that [he is] somehow a victim of something that has gone wrong on a computer, or something that someone else has looked at, which all defies common sense, and in any event is inconsistent with [his] plea.
2 New Zealand Police v R, above n 1, at [41].
3 At [42].
4 At [43].
5 At [48].
[7] Having taken into account the seriousness of the qualifying offence, the Judge concluded that Mr R posed a high risk to the sexual safety of children. He said:
[50] You do not appear to me to be acknowledging that offending, albeit that you have pleaded guilty and received the Hessell discount. So, when I consider the serious nature of that possession of that video series, and your lack of acceptance of a responsibility for that, and given the ease with which people are able to access the Internet today, in my view I am satisfied that you pose a risk to the sexual safety of one or more children. You are not acknowledging the issues that you have got … I assess you as being at high risk given your continued minimisation and denial of responsibility for downloading and accessing that material. I think it entirely appropriate that you be put on the register, and notwithstanding the cases [counsel] have referred me to, on a case-specific analysis here, I see you as I say, posing a risk to the sexual safety of one or more children, and that level of risk has to be consistent with that of a serious sexual offender.
Principles of appeal
[8] An appeal against registration on the Register is an appeal against the exercise of a judicial discretion.6 That being the case, the correct appellate approach is that explained by the Court of Appeal in May v May:7
[I]n considering an appeal of this kind an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.
[9] The principles in May v May have been reaffirmed by the Court of Appeal as having continuing applicability, notwithstanding the decision of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.8
Relevant law
[10] Under s 9(2) of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act), the Court may make a registration order only if “satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally”, which is the threshold test.
6 Dayaratne v New Zealand Police [2019] NZCA 30 at [19]-[20].
7 May v May (1982) 1 NZFLR 165 at 170.
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[11] Section 9(3) of the Act sets out the matters to be considered by the Court when assessing the risk posed by a person. They are as follows:
(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:
(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.
[12] In Dayaratne v New Zealand Police, the Court of Appeal held that the concept of a “serious child sex offender” does not assist in informing the threshold test clearly set out in s 9(2) and that, in order for the discretion to be engaged, there need not be anything more than a real or genuine risk.9 Once the s 9(2) threshold is met, “the Court’s discretion to make a registration order is not fettered and it would be unwise to attempt to detail the sorts of circumstances in which its exercise would be appropriate”.10 The proper exercise will depend on the close examination of the s 9(3) matters with regard to the singular focus of the legislation which is to protect children from sexual offending.
[13] The Court held the seriousness of the qualifying offence is a mandatory consideration and went on to expressly state:11
… the enquiry is focused on risk to the lives and sexual safety of children not the culpability of the offender or punishment. A registration order could be appropriate to guard against risk even where the offender’s culpability is low such that no sentence of imprisonment could be justified.
9 Dayaratne, above n 6, at [19].
10 At [21].
11 At [22].
Parties’ positions
[14] The essence of Mr R’s appeal is that the Judge did not take into account the s 9(3) considerations and in particular the blameless life of the appellant, who had no previous convictions. The risk assessments before the Court assessed Mr R as being of low to moderate risk of further image-based internet offending and he did not appear to present a direct physical risk to children. Mr R argues the Judge did not take this into account.
[15] Mr Stuart for the police submits that the Judge was correct to emphasise Mr R’s reluctance to acknowledge and discuss his offending, when the Court of Appeal has expressly stated that the focus of this inquiry is on the risk posed, rather than the culpability of the offender. The police contend the Judge was required to consider Mr R’s future risks and his reluctance to accept that his actions amounted to offending. This, they say, combined with a tendency to minimise his involvement in the offending, was highly relevant and the Judge provided a thorough analysis of all matters, despite there being no reference to s 9(3) of the Act.
Analysis
[16] Mr R is aged 77 years and has no previous criminal record. Mr Harrison, on his behalf, advised the Court that Mr R has had a raft of serious medical conditions, mental and physical. Mr R’s wife had recently died, and he viewed this objectionable material at a period of his life at which he was, arguably, at his lowest. Mr R has acknowledged that it was he who downloaded the objectionable material, and he has pleaded guilty to the charges.
[17] In his sentencing notes, the District Court Judge sets out the purpose of the Act under s 3 and the discretion available to the Court under s 9(3). The factor which troubled the Judge principally is that Mr R did not appear to be taking responsibility for his offending. Because of the Judge’s perception that Mr R did not accept responsibility for the possession of the objectionable video series, he was satisfied that Mr R posed a risk “to the sexual safety of one or more children.” For that reason, he considered that Mr R should be put on the Register because Mr R’s level of risk was consistent with that of a serious sexual offender.
[18] Mr R was assessed by a psychologist, Mr Prince, as not being in the category of committing “hands-on offending”, noting that Mr R realised how wrong his behaviour was, that he had no urge or reason to re-engage in such behaviour, and had not thought through the full implications of his offending at the time. Mr Prince confirmed that there was no evidence that Mr R has engaged in any sexual contact with children, and assessed Mr R’s risk of future re-offending as low, but his reluctance to discuss and acknowledge the offending raised his risk from low to low-moderate. He did, however, assess Mr R as being at an escalated risk of suicide and suggested the Court may consider not including his name on the Register.
[19] A medical practitioner familiar with Mr R’s medical conditions confirmed that he had multiple, severe, and serious physical health problems with a reasonably substantial history of mental health problems, including stress, depression, and anxiety.
[20] The Judge rejected Mr Prince’s assessment, assessed Mr R’s risk as high, and took into account the police submission that, on advice from a Child Sex Offender Register detective for the local area, the recommendation was that Mr R should be placed on the Register. The Judge then stated:12
The purpose of the register being, to manage risk, both risk to children and risk to yourself in situations as the current case would arguably involve an escalated risk of suicide.
[21] In Dayaratne, the appellant had a substantial video library, he was sharing his information online, he placed disturbing images of himself online with invitations to underaged boys to make contact, and was assessed as a potential predator. The Court of Appeal emphasised that the s 9(3) discretion required a close examination of those factors with regard to the singular focus of the legislation, which is to protect children from sexual offending.
[22] The District Court Judge here did take into account that the approximate age of the child on the objectionable material was 18 months, but he took no account of the absence of any evidence prior to this offending that Mr R posed a risk to the sexual
12 New Zealand Police v R, above n 1, at [35].
safety of one or more children. The police had submitted that they had concerns about Mr R’s access to his step-grandchildren. However, there was no evidence of any risk he posed to them. To the contrary, Mr R was supported by his stepdaughter, who confirmed that, in all of her time associated with Mr R, there had never been anything inappropriate sexually with her or her sister, or her children.
[23] I accept the submissions of Mr Harrison that this case is distinguishable from Dayaratne, whose name was placed on the Register because he was a long-term offender, he had organised a library of substantial objectionable video material and he had interacted with young people on the internet. There is no evidence that Mr R is at risk of inappropriately engaging in sexual contact with children and the high risk stated by the Judge, with respect, was contrary to the psychologist’s assessment, Mr R’s stepdaughter’s testimonial, and the absence of any previous untoward sexual behaviour towards children. Handing over his computer with the objectionable material to a repairer highlights Mr R’s unawareness that he was committing criminal offences at the time. He has subsequently accepted his wrongdoing and pleaded guilty, for which he has been sentenced.
[24] I accept Mr Harrison’s submission that Mr R’s minimisation of the offending arose as a result of his embarrassment and humiliation. Despite the limitations of risk assessment referred to by Mr Prince, Mr Prince reported that Mr R had no desire to view any pornography and had no reason or urge to re-engage in such behaviour. Mr Prince invited the Court to consider not including Mr R’s name on the Register.
[25] I find the Judge has erred in finding Mr R poses a “high” risk to the sexual safety of one or more children, contrary to the psychologist’s assessment, Mr R’s stepdaughter’s testimonial, the absence of any previous sexual or criminal offending, and his age. In all of the circumstances, including Mr R’s mental and physical health, and the factors under s 9(3) of the Act, I am satisfied that the degree of risk posed by Mr R is, at best, low to moderate, and the discretion should be exercised in favour of Mr R’s name not being registered on the Register.
Result
[26]The appeal is granted.
[27] The order that Mr R’s name be registered on the Child Sex Offenders Register is quashed.
Cull J
Solicitors:
O’Donoghue Webber, Nelson for Respondent
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