[1] Michael Lesley Stevens, you appear for sentence after pleading guilty to: (a) Eight charges of knowingly possessing objectionable publications;1 (b) One charge of doing an indecent act on a child under 12;2
(c) One charge of indecent communication with a young person under

16;3 and

(d) Two charges of breaching an extended supervision order.4

[2] The charges of knowingly possessing objectionable publications and doing an indecent act on a child both carry maximum penalties of 10 years’ imprisonment. The Crown, however, has also asked me to consider imposing an indeterminate sentence of preventive detention on the charge of doing an indecent act, basing its request on the seriousness of your offending and the future risk to community safety which would follow from your release after serving a finite sentence.

[3] I will outline the circumstances of your offending and establish what would be a suitable finite sentence before considering the possibility of preventive detention as an alternative.

Circumstances of the offending

[4] The victim of your offending was a nine-year-old boy from the Wellington area. He was not known to you. On 20 October 2015, you initiated contact with him through an online game which enables its players to communicate with each other though a chat forum. Using this forum, you instructed the victim to open a Skype
account so you could continue to discuss gaming matters.

1      Film, Videos, and Publications Classification Act 1993, s 131A; maximum sentence 10 years’
imprisonment.
2      Crimes Act 1961, s 132(3); maximum sentence 10 years’ imprisonment.
3      Crimes Act, s 124A; maximum sentence 3 years’ imprisonment.
4      Parole Act 2002, s 107T; maximum sentence 2 years’ imprisonment.

[5] Over the following days, you chatted with the victim through the Skype account using typed messages. After about a day, you asked the victim to send you a picture of his penis. He initially refused, but you continued to talk with the victim about that and you encouraged him to masturbate to ejaculation. After you begged the victim, he eventually sent you three photographs showing his penis, body and face.

[6] You continued to converse with the victim over the following days, sending messages about his penis, including the statement “you spend the whole night playing with it now its sore and you can’t take a video message.” Your contact with the victim ended only after it was discovered by the victim’s family on
8 November 2016. In a letter to your former partner, you described the challenge or “game” of engaging the victim, and other boys, in sexual conversation so you could use the resulting material as a masturbatory aid.

[7] On 1 December 2015, the Police executed a search warrant at your…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Stevens

Details

AGLC: R v Stevens [2016] NZHC 1574
Case: [2016] NZHC 1574
Decision Date: 12 July 2016

CaseChat Overview and Summary

The defendant in the case, Michael Lesley Stevens, pleaded guilty to multiple charges, including knowingly possessing objectionable publications, doing an indecent act on a child under 12, indecent communication with a young person under 16, and breaching an extended supervision order. The court was required to determine an appropriate sentence for these offences, taking into account the defendant's personal circumstances, the severity of the crimes, and the need to protect the community. Additionally, the court had to consider whether a sentence of preventive detention was suitable for the defendant.

The court considered several factors in determining the appropriate sentence for the defendant's offences. These factors included the seriousness of the harm caused by the defendant's actions, the defendant's history of sexual offending, and the risk of future offending. The court also considered the defendant's personal circumstances, including his troubled upbringing and previous experiences with sexual abuse.

The court ultimately decided on a sentence of preventive detention for the charge of doing an indecent act on a child under 12, with a minimum period of five years' imprisonment. The court also imposed sentences for the other charges, including three years and 10 months' imprisonment for each charge of possessing objectionable publications, two years' imprisonment for indecent communication with a young person under 16, and six months' imprisonment for each charge of breaching a supervision order. All sentences were to be served concurrently.

In reaching this decision, the court found that there was a high risk of the defendant reoffending if not subject to preventive detention. The court also noted that the defendant's previous attempts at rehabilitation had not been successful, and that a lengthy determinate sentence may not provide adequate protection for the community. The court concluded that preventive detention was the most appropriate sentence for the defendant's crimes, in order to protect the community and address the defendant's ongoing risk of reoffending.

Orders