[1] Paul Robinson pleaded guilty to 20 charges of possessing1 and 15 charges of supplying2 objectionable publications, being child pornography. The maximum penalties for those offences are ten years and fourteen years’ imprisonment, respectively.

[2] On 29 May 2017, Judge J Jelas in the Waitakere District Court sentenced

Mr Robinson to four years and five months’ imprisonment.3 Mr Robinson now appeals against that sentence. He says the Judge incorrectly assessed his level of culpability (and thereby adopted a starting point which was too high), and failed to give him discounts for his lack of prior convictions and his rehabilitative efforts.

[3] I must allow Mr Robinson’s appeal if I am satisfied that:4

(a) For any reason, there is an error in the sentence imposed on conviction;

and

(b) A different sentence should be imposed.

Facts

[4] Mr Robinson is 27 years old and has an interest in child pornography. He used a computer application known as eMule to search for, obtain, and share the material, in digital video and image format. eMule is a peer-to-peer file sharing service, where users’ files remain on their own computer, but users can share selected files with other eMule users. Users of the network are able to conduct specific word searches for files on other peers’ computers which they have made available for public download. Files matching the search criteria are displayed and the user can then select them for
download.

1      Film, Videos, and Publications Classification Act 1993, ss 131(1) and 131A(1).
2      Film, Videos, and Publications Classification Act, ss 123(1)(d) and 124(1).
3      Police v Robinson [2017] NZDC 11422.
4      Criminal Procedure Act 2012, s 250(2).

[5] Between 1 June and 19 June 2016, Mr Robinson used eMule to share 15 digital video files of child pornography with an undercover detective from the New Zealand police. This gave rise to Mr Robinson’s 15 charges of supplying objectionable publications.

[6] On 6 October 2016, the police executed a search warrant at Mr Robinson’s home. They seized three computers and an external hard drive belonging to him. A search of the devices located at least 20 unique digital video files of child pornography. This gave rise to Mr Robinson’s 20 charges of possessing objectionable publications.

[7] The images which make up the charges were not the only images found in

Mr Robinson’s possession. The summary of facts for sentencing purposes records that…

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 Robinson v Police

Details

AGLC: Robinson v Police [2017] NZHC 2655
Case: [2017] NZHC 2655
Decision Date: 30 October 2017

CaseChat Overview and Summary

The appellant, Paul Robinson, pleaded guilty to 20 charges of possessing and 15 charges of supplying objectionable publications, being child pornography. He appealed against his sentence of four years and five months’ imprisonment, arguing the Judge incorrectly assessed his level of culpability and failed to give him discounts for his lack of prior convictions and his rehabilitative efforts. The Judge assessed the gravity of Mr Robinson’s offending by considering the size of his collection, the duration of the video files and images, and the nature of the content of the materials. The court held the Judge’s approach was consistent with judicial observations that the size of a collection is now a somewhat blunt tool in assessing culpability, and that it must be considered in the context of all other relevant factors. The court found the Judge’s assessment of the aggravating features of Mr Robinson’s offending, the effect of the 2015 penalty increases and the signal from Parliament as a result of those increases, as well as the sentences given in other cases, justified the Judge’s overall seven-year starting point for all charges. As to the personal discounts, the court held the Judge may have recognised Mr Robinson’s rehabilitative efforts as part of her overall discount for the personal mitigating factors set out in the psychologist’s report. Even if the Judge had not accounted for this matter, only a very modest further discount could have been given, and the court was not satisfied that it would warrant a different sentence being imposed on appeal. The appeal was dismissed.

Orders