R v Zhu

Case [2007] NZCA 470 30 October 2007

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA346/07
[2007] NZCA 470
THE QUEEN
v
JUN JUN ZHU
Hearing:11 October 2007

Court:Arnold, Ronald Young and Fogarty JJ
Counsel:S Tait for Appellant

A Markham for Respondent

Judgment:30 October 2007 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT

(Given by Ronald Young J)
[1]       This appeal concerns proper sentencing levels for supplying (s 124) and possessing (s 131A) images of child sexual abuse subsequent to the February 2005 amendments to the Films, Videos, and Publications Classification Act 1993 increasing maximum penalties to 10 years and five years imprisonment respectively. The appellant’s case is that his sentence of three and a half years imprisonment following guilty pleas to four counts of supplying objectionable material and 10 counts of possessing such material was manifestly excessive.
Facts
[2]       A Chinese member of a documentary film company responded to an advertisement in a Chinese newspaper for the sale of new films. He contacted the appellant who supplied him with three DVDs and one CD which had images of teenage girls engaged in sexual intercourse (no charges arose from this supply). A further meeting was arranged which involved the supply of four DVDs by the appellant. One of the DVDs contained images of very young children engaged in full sexual intercourse with adults. The other DVDs also contained objectionable material. A further meeting was arranged. Representatives of the documentary film company then advised the police who were present at the further meeting and arrested the appellant. A search of the appellant’s vehicle revealed 600 pirated DVDs and CDs of which 10 contained objectionable images.
Sentencing remarks
[3]       Prior to sentencing the sentencing Judge held a sentencing indication hearing. The Judge indicated he thought a starting sentence of three and a half to four and a half years imprisonment was appropriate and, if the former, a final sentence of just over two years might be the “best result he could hope for”.
[4]       At sentencing the Judge referred to the United Kingdom’s Sentencing Advisory Panel’s report to the Court of Appeal on sentencing involving child pornography, which placed such offending into five levels of seriousness. The Judge said that the DVD involving penetrative sexual intercourse of children was in the most objectionable category. The other material he considered was also in the very high category with sexual intercourse with girls as young as 10 years of age and including other violent and degrading conduct.
[5]       The Judge did not consider the fact the appellant was in the trade for money rather than sexual gratification reduced the seriousness of the offending. He said he placed the appellant in the second highest category of offending (referring to the Sentencing Advisory Panel advice) and that a starting point of between three and a half and four and a half years was appropriate. He settled on four and a half years.
[6]       As to mitigation, the Judge acknowledged the appellant’s guilty pleas and the fact…

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 Zhu

Details

AGLC: R v Zhu [2007] NZCA 470
Case: [2007] NZCA 470
Decision Date: 30 October 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Jun Jun Zhu, who had been found guilty of supplying and possessing objectionable images of child sexual abuse under the Films, Videos, and Publications Classification Act 1993. Zhu appealed against his sentence of three and a half years imprisonment, arguing that it was manifestly excessive. The appeal hinged on the severity of the offending and the adequacy of the mitigating factors considered by the sentencing judge.

The court was required to determine whether the sentence imposed was appropriate in light of the nature and seriousness of the offending, as well as the mitigating factors that were considered. The court had to consider whether the sentencing judge had adequately assessed the seriousness of the offending, particularly given the age of the victims and the nature of the abuse depicted in the material. The court also had to examine whether the mitigating factors, such as the appellant's late guilty plea and cultural considerations, warranted a lesser sentence.

The Court of Appeal rejected Zhu's argument that his sentence was manifestly excessive. The court noted that the offending involved very serious material, including images of child rape and other forms of sexual exploitation. The court also noted that Zhu had willingly supplied the objectionable material and had a large quantity of such material in his possession. The court found that the starting sentence of four and a half years was well within the range available for such serious offending. The court acknowledged the mitigating factors, but considered that a reduction of one year adequately reflected these factors, particularly given the late guilty plea and the absence of significant personal circumstances that would warrant a further reduction.

The appeal was dismissed, and the original sentence of three and a half years imprisonment was upheld. The court emphasised the seriousness of the offending and the need for appropriate sentences to reflect the gravity of child sexual exploitation. The court also noted that the sentence reflected the seriousness of the offending and adequately took into account the mitigating factors.

Orders