R v Zhu

[2007] NZCA 470

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 that only shortly before the offending a substantial increase in penalty had occurred.  He also took into account the claim that such offending was not viewed as seriously in the appellant’s culture and that he would be deported when released from prison.  The Judge reduced the starting point of four and a half years to three and a half years for these factors.

Appellant’s submissions

[7]       In written submissions, the appellant said the Judge failed to give adequate consideration to the least restrictive outcome (s 8(g) Sentencing Act 2002); failed to adequately reflect the relevant mitigation factors; and imposed a sentence that was manifestly excessive.  In oral argument Mr Tait for the appellant focused on the claim that the sentence was manifestly excessive.

[8]       Mr Tait raised the issue of the apparent inconsistency between the sentence indication and the sentence finally imposed.  We advised that if the appellant wished to pursue that issue, he should do so by way of an appeal against conviction: see R v Gemmell [2000] 1 NZLR 695 (CA); R v Edwards (2000) 17 CRNZ 604 (CA).  Mr Tait made it clear that the appellant did not wish to appeal against conviction, and did not press the sentence indication argument.  Accordingly we put it to one side.

[9]       As to the least restrictive outcome, the appellant submitted that this was a case where a considerably shorter sentence could have adequately reflected the seriousness of the offending without endangering the public. 

[10]     The appellant said a lower sentence was justified in this case because the offending occurred as a result of a form of entrapment.  He submitted that the original supply of DVDs was of unobjectionable material.  He said it was only when the representative of the film company asked if he had any material involving younger girls that he agreed to supply the DVD involving child sex abuse.

[11]     As to mitigation, the appellant submitted the Judge failed to take into account the appellant’s good prospects of rehabilitation which included motivation to change, the appellant’s absence of previous convictions and his lack of family support while in prison.  The appellant submitted that a proper starting point was three and a half years imprisonment with a reduction of between one year and 18 months for mitigating factors, resulting in a final sentence of between two and two and a half years imprisonment.

Discussion

[12]     As we have said the Judge, in part, based his sentencing on the 1992 report of the Sentencing Advisory Board in the United Kingdom with respect to similar offending.  As in New Zealand the maximum penalty in the United Kingdom for supplying such objectionable material is 10 years imprisonment, and for possession, five years imprisonment. 

[13]     The panel divided the level of seriousness for such offending into five categories.  They are:

(1)       Images depicting nudity or erotic posing, with no sexual activity.

(2)Sexual activity between children or solo masturbation by a child.

(3)Non penetrative sexual activity between adults and children.

(4)Penetrative sexual activity between children and adults.

(5)Sadism or bestiality.

The panel suggested that the custody threshold occurred at distribution of such material. 

[14]     The images in this case, as the Judge identified, ranged from level two to level four, and probably level five.  The panel suggested that sentences of longer than three years imprisonment were appropriate for cases involving distribution of images at level four or five, and sentences of six to 12 months for possession, without distribution, of a small number of images at level four to five. 

[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 Advisory Panel are a useful guide for New Zealand. 

[16]     Turning, therefore, to the facts of this case.  The most objectionable DVD supplied has images of child rape.  This DVD has images of different young children up to seven years of age being sexually abused.  One incident involves the adult rape of a child of approximately six years of age.  Other DVDs supplied show children slightly older, up to early teens, being raped by adults.  There was said to be obvious distress with some of the children.  Other DVDs show sadistic behaviour towards children. 

[17]     The DVDs found in the appellant’s possession show adult gang rape scenes, including graphic violence, some simulated, some not, and some involve sexual activity between women and animals. 

[18]     At their worst, therefore, some of the DVDs involve activity which is at least level four and probably level five of the panel’s description.  The appellant’s offer that he could supply “anything the buyer wanted” is aggravating.  We also consider that the commercial aspect of the supply counts was an aggravating feature.  We agree with the Judge that the fact that the distribution was for commercial purposes did not make it less serious than if it had been for sexual gratification.

[19]     This was therefore very serious offending.  We repeat the important message that such offending is not victimless.  Each image involves the exploitation of a child.  In some of the images the emotional and physical exploitation of the children is gross.

[20]     We reject the claim that this was a case involving entrapment or that a lesser sentence is justified given the circumstances of this offending.  The employee of the film company asked the appellant to supply a DVD involving younger children.  The appellant did so without any suggestion of pressure on him.  Indeed he said he could supply anything that was wanted.

[21]     Given these factors a starting point of four and a half years imprisonment, less than 50 percent of the maximum penalty on the supply charges was well within the range available to the Judge. 

[22]     As to mitigation, the guilty plea came late.  The appellant was arrested and charged in 2005, the charges were amended to their final form in early 2006, the first trial callover occurred in August 2006 and the guilty pleas were not entered until 8 May 2007 after a trial date had been adjourned.  We also note the appellant, as he was entitled to, tested the admissibility of evidence before his guilty plea.  A modest reduction for the guilty plea was all that could therefore be expected. 

[23]     The Judge acknowledged the fact that there had been, shortly before the offending, an increase in penalty, and that this type of offending may be treated less seriously in China.  In our view, these factors are hardly in mitigation.  (As to the former see R v P [1996] 3 NZLR 132, 138 (CA)). Nor was the fact the appellant would be deported at the end of his sentence: R v Zhang CA56/05 24 May 2005.

[24]     We accepted counsel for the appellant’s submission that a sentence of imprisonment for the appellant could be more difficult given he is in an unfamiliar culture and without family support.  However, the Judge reduced the starting sentence by one year, 22 percent of the starting sentence.  This more than adequately reflected the late guilty plea and the other personal mitigating factors.

[25]     The appeal against sentence is therefore dismissed.

Solicitors:

Crown Law Office, Wellington