Robinson v Police
[2017] NZHC 2655
•30 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-206 [2017] NZHC 2655
BETWEEN PAUL ROBINSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 October 2017 Counsel:
CF Dunne for appellant
LE Brittain for respondentJudgment:
30 October 2017
JUDGMENT OF FITZGERALD J [As to appeal against sentence]
This judgment was delivered by me on 30 October 2017 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland
Robinson v New Zealand Police [2017] NZHC 2655 [30 October 2017]
Background
[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 Mr Robinson had a “substantial” collection of child pornography (both video and image files) on his home computer.
[8] Although still images from eight of the videos are included in the Court file, I have not found it necessary to inspect them (noting that Judge Jelas received and reviewed these images, said to be indicative of all of the content making up the charges). There is no dispute as to the Judge’s categorisation of the material. I accordingly proceed on the basis of the descriptions given in the summary of facts and the descriptions and categorisation of the material as set out in Judge Jelas’ sentencing notes.
[9] The 35 videos are on any view extremely objectionable. All involve young girls between the (estimated) ages of three and fourteen years (many being well under ten years old). The majority depict adult males subjecting the young children to penetrative sexual activity, including anal intercourse. One video Mr Robinson shared recorded a young girl, naked but wearing a dog collar, performing oral sex on a dog. Another he possessed showed a young female child being subjected to acts of sadism.
[10] A number of the images which do not depict vaginal, anal or oral penetration of young girls by adult men nevertheless depict the children inserting (or having inserted) objects into their vagina or anus.
[11] Upon his arrest, Mr Robinson was cooperative with the police at all times. He identified himself as the owner and operator of the computer devices, and he admitted the materials found on them. He said he had various mental disorders. Mr Robinson had not previously appeared before the Court.
Approach to sentencing for child pornography
[12] Before setting out Judge Jelas’ approach to sentencing Mr Robinson, it is helpful to set out the general approach to sentencing for child pornography offences in New Zealand.
[13] In a series of judgments released between 2007 and 2008, the Court of Appeal endorsed a 2007 guideline from the Sentencing Guidelines Council for England and Wales as a “useful guide” when sentencing child pornography offences.5 The 2007 guideline set out five categories of material, from least serious to most serious:6
Level 1 Images depicting nudity or erotic posing, with no sexual activity
Level 2 Images showing sexual activity between children or solo masturbation by a child
Level 3 Images showing non-penetrative sexual activity between adults and children
Level 4 Images showing penetrative sexual activity between children and adults
Level 5 Images showing sadism or bestiality
Offences involving any form of sexual penetration of the vagina or anus, or penile penetration of the mouth (except where they involve sadism or intercourse with an animal, which fall within level 5), should be classified as activity at level 4.
[14] The 2007 guideline suggested a starting point of six to 12 months’
imprisonment for the possession of images at levels 4 or 5, and three years’
imprisonment for the distribution of a large amount of material at those levels.
5 R v Henderson [2008] NZCA 305; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312. See also R v Zhu [2007] NZCA 470, which had endorsed an earlier but similar version of the English guidelines.
6 Sentencing Guidelines Council “Sexual Offences Act 2003 — Definitive Guideline” (April 2007)
at 109.
Significantly, at the time of the Court of Appeal decisions, the maximum penalties for offences relating to child pornography in England and Wales were the same as in New Zealand (being 5 years’ imprisonment for possession, and 10 years for supply or production).
[15] Two events since these Court of Appeal decisions, however, change the relevance of these guidelines to New Zealand. Firstly, and most significantly, the Parliament of New Zealand has increased the maximum penalties for offences relating to the possession and supply of objectionable publications.7 From 7 May 2015, the maximum penalty for possessing such material doubled, to 10 years’ imprisonment. For supply, it increased 40 per cent to 14 years’ imprisonment.
[16] The explanatory note for the Bill set out the Government’s policy behind the increased penalties:
The Government's objective is to ensure that sentences for child pornography offences reflect the seriousness of the offending and send a strong message that the exploitation and abuse of children will not be tolerated.
…
Increasing penalties sends a clear message that possession of, and trade in, child pornography is an abhorrent act that encourages the abuse of children, and therefore deserves to be treated as serious offending.
[17] Under s 8(b) of the Sentencing Act 2002, when sentencing an offender, the court must take into account the seriousness of the type of offence, as indicated by its prescribed maximum penalty. The Court of Appeal, however, has not yet given any sentencing guidance under these increased penalties (at least in relation to child pornography),8 although a small number of cases have been decided by the High
Court.
7 Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act
2015, ss 4 and 6.
8 But see Patel v R [2017] NZCA 234, where the Court of Appeal considered the increased penalties in relation to the distribution of violent videos promoting a terrorist group.
[18] Second, in 2014, the Sentencing Council for England and Wales updated their sentencing guidelines relating to child pornography (though the maximum penalties remained unchanged). New categories of offences were devised:9
[19] New sentencing bands were also adopted:10
[20] The New Zealand Court of Appeal is yet to indicate whether the 2014 guideline should be considered in New Zealand cases (rather than the 2007 guideline), although
9 Sentencing Council for England and Wales “Sexual Offences Definitive Guideline” (April 2014)
at 75.
10 At 77.
the new categories have been referred to in some District Court and High Court decisions (but having regard to the increased maximum penalties in New Zealand).
District Court sentencing
[21] After setting out the general facts and the impact that child pornography has on the children depicted, Judge Jelas outlined Mr Robinson’s personal circumstances. The probation report described him as a marginalised individual who experienced a dysfunctional and abusive childhood. While young, Mr Robinson both experienced and perpetrated abusive sexual behaviours. He received assessment and treatment for this from the SAFE programme over a two-year period, and the end-of-treatment report said Mr Robinson had made good progress and his risk of further sexual offending was assessed as low. The Judge concluded her assessment of his personal circumstances as follows:
[17] Mr Robinson holds an extremely negative view of himself as a flawed individual. His preference is to immerse himself in fantasy in a visual reality world as he finds himself inherently boring and uninteresting and he believes that isolating himself is also a means of punishing himself and keeping others safe from him. This, in turn, has led to Mr Robinson’s self-imposed isolation. The report writer noted that Mr Robinson was open and frank during the course of his interview and she considered these open disclosures were a reflection of a cry for help and Mr Robinson is experiencing emotional turmoil
to a distressing degree.
[18] Mr Robinson’s sexual interests are in young females aged between eight and 16 years. The context for his offending was a sexual outlet which he viewed as not being harmful as he was not having physical contact with anyone. This of course fails to have regard to the effects on the victim at the time such objectionable publications are made.
[19] In terms of future risk, Mr Robinson was assessed as a moderate risk of future Internet offending and low risk of any further cross-over or contact offending. The report also touches upon periods of depression and suicidal ideation. Overall, this report has been helpful in going some way to explaining the position Mr Robinson finds himself in today.
[22] Judge Jelas then turned to assess the culpability of Mr Robinson’s supply offending in terms of the 2014 guideline:
[26] In my view the features relevant to assessing Mr Robinson’s offending are the following features. Firstly, the majority of the images subject to the supply charge are Category A images under the UK 2014 guidelines. Those being images involving penetrative sexual activity including sexual activity with animals. Eleven of the 15 supplied charges fall in to this category. The
estimated ages of the children varies – the oldest being 12. Three of the 11
Category A files involve children estimated to be between four and six/seven years. …
[27] The remaining four supply charges are Category B images being images of sexual activity that does not involve penetrative acts. The children in these images also have an estimated age of no more than 12 years and as young as five. …
[28] All of the images are digital video files. The total duration of all the video images is approximately 100 minutes long; the longest video being over
21 minutes in length and the shortest 36 seconds. These facts demonstrate the difficulties of comparing cases particularly with those involving still images.
The total footage of objectionable publications reflects Mr Robinson was
significantly engaged in this type of offending.
[23] The Judge did the same for the 20 videos that were the subject of
Mr Robinson’s possession charges:
[29] Secondly, half the images subject to the possession charge were also Category A objectionable materials and the remaining Category B. The content of these images is similar to the files reflected in the supply charges I have already referred to.
[30] As with the supply charges, the children depicted in these images cover a similar estimated age range with two exceptions. In two files the child is estimated to be between 10-14 years. In another, the child is estimated to be between three and four years.
[31] One of the Category A images involves sadism: The description of this image is as follows:
“The video duration is 59 seconds. It depicts, a pre-pubescent female child who is naked below the waist. A second person uses a hypodermic needle to inject the child’s vaginal area, piercing the skin multiple times with the needle”.
[32] The images subject to the possession charges are also all video files, the largest being almost one and a half hours. The total minutes recorded in the summary of facts is over 275 minutes (4 hours and 35 minutes). Again these facts demonstrate Mr Robinson’s significant engagement in child pornography of the worst type.
[24] In terms of other aggravating factors, the Judge went on to note that the charges do not represent the complete extent of Mr Robinson’s collection – as noted, the summary of facts records that he had a “substantial collection” of child pornography (of both video and image files) on his home computer. She noted the significant vulnerability of the victims, who were all subjected to significant adult sexual activity including the depraved acts of bestiality and sadism, and the impact of those actions
on them. Also relevant was the period of offending (which covered four months from June to October 2016), and the fact Mr Robinson used eMule, by which he took deliberate steps to increase his opportunity to obtain more files and share selected files with other users.
[25] Having regard to these factors, the police sought a total starting point within the range of eight years’ imprisonment. Counsel for Mr Robinson, however, sought a starting point of three years and three months. But Judge Jelas distinguished the cases relied on by Mr Robinson’s counsel, noting (inter alia) that most of them pre-dated the
2015 increases in penalties.11 She said that, based on these cases, the suggested
starting point of three years and three months was “unsustainable”. I agree.
[26] On her analysis of these aggravating factors, the Judge adopted an (overall)
starting point of seven years’ imprisonment for all of Mr Robinson’s offending.
[27] The Judge then deducted 15 per cent from this starting point (totalling
13 months) on account of Mr Robinson’s personal circumstances.12 In particular, she noted the content of a psychologist’s report which observed a strong link between
Mr Robinson’s offending and his dysfunctional upbringing (although he displayed no active symptoms of mental health difficulties).
[28] Lastly, the Judge awarded Mr Robinson a full 25 per cent discount for his early guilty plea. That brought his final end sentence to four years, five months’ imprisonment.
Submissions on appeal
[29] Mr Dunne for Mr Robinson says the sentencing judge erred in assessing the gravity of Mr Robinson’s offending by:
(a) Placing too much weight on the size of Mr Robinson’s collection.
11 Barnes v Police [2013] NZHC 3510; W v Department of Internal Affairs [2015] NZHC 3199.
12 This was the upper end of the range submitted by the police. Mr Robinson’s counsel had submitted a greater discount should be applied.
(b)Adopting a starting point that was too high due to placing disproportionate weight on the 2015 increases in penalties, submitting that the Judge applied a 40 per cent increase in comparison to comparable cases before the maximum penalty increases, which was out of all proportion.
(c) In particular, wrongly distinguished Mr Robinson’s offending from that in the decision Barnes v Police.13
[30] Mr Dunne also says the Judge failed to give sufficient discounts for
Mr Robinson’s personal circumstances by:
(a) Not giving a specific discount for the fact Mr Robinson had not previously appeared before the court.
(b)Failing to recognise Mr Robinson’s rehabilitative efforts prior to sentencing.
[31] Ms Brittain for the Crown opposes the appeal. She says the end sentence was not manifestly excessive (although she accepts it did fall at the higher end of the available range). She denies that the Judge erred in the ways submitted by Mr Dunne.
Discussion
The size of Mr Robinson’s collection
[32] As Mr Dunne noted, in Stewart v Department of Internal Affairs, Katz J acknowledged the size of a child pornography collection may no longer be particularly probative when assessing the gravity of offending:14
[42] Traditionally courts have tended to view the size of an offender's child pornography collection as a key aggravating factor. Due to developments in modern technology, however, it is now necessary to take a somewhat more nuanced view of this issue. Child pornography offending is now almost exclusively internet enabled. Cases involving hard copy print materials are rare to non-existent. The use of modern internet based technologies, such as P2P file sharing, facilitates the collection of high volumes of child
13 Barnes v Police [2013] NZHC 3510.
14 Stewart v Department of Internal Affairs [2014] NZHC 2209.
pornography material with relative ease and within a short space of time. On the other hand, many offenders now appear to also be using modern technology to attempt to disguise their offending behaviour, including by storing material in the cloud. Accordingly the size of a collection in itself is now a somewhat blunt tool in assessing culpability. It is necessary to consider the size of a collection in the broader context of everything that is known about an offender's online behaviour in order to assess the appropriate level of culpability.
[Emphasis added]
[33] Mander J recently affirmed Katz J’s observations in Webb v R:15
[51] The use of file sharing and messaging programmes in chat rooms to find like-minded individuals means the size of an offender's collection may not reflect the extent of an offender's level of engagement with the material, nor the extent of their culpability in terms of its production and distribution. As Katz J observed, collection size alone is “somewhat of a blunt tool” in assessing culpability and there is a need to consider the offender's conduct in the broader context of what is known about that person's online behaviour.
[34] I respectfully agree with these observations. That said, however, I do not agree with Mr Dunne that Judge Jelas made the size of Mr Robinson’s collection, or the total length of the videos, a “focus” at sentencing. Indeed, the Judge explicitly referred to Mander J’s observations quoted above, noting that “undue focus on those factors may result in an inaccurate assessment of the scale of the offending”.16 And, as Ms Brittain notes, the Judge assessed Mr Robinson’s offending by considering a broad range of matters, of which the size of the collection was only a single factor.
[35] What the Judge also had regard to, namely the (often lengthy) duration of the various files and images that make up the charge, was relevant to her assessment that Mr Robinson was “significantly engaged in this type of offending”.17 I consider the broader approach taken by the Judge, reflecting the number of charges, the size of the collection, the duration of the video files and, importantly, the nature of the content of the materials overall, is consistent with the observations quoted above. They do not say the size of a collection is irrelevant, but rather indicate the size will need to be
considered in the context of all other relevant factors.
15 Webb v R [2016] NZHC 2966.
16 At [24].
17 At [28] and [33].
The starting point
[36] As noted, Mr Dunne challenges the sentencing Judge’s starting point by comparison to both the English sentencing guidelines and New Zealand authorities. He refers to the 2014 guideline and its suggested starting point of three years’ imprisonment for the distribution of Category A child pornography (with the sentencing range being two to five years’ imprisonment).
[37] As to the effect of the 2015 penalty increases, Mr Dunne accepts that sentencing is an area in which there might be differences of informed opinion. But he notes the decision of R v A, in which the Court of Appeal was asked to give general guidance on the sentencing regime for sexual violation following the increase in maximum penalty from 14 to 20 years’ imprisonment.18 He notes that the Court cautioned that sentencing is not a “purely mathematical exercise” whereby courts should simply increase the sentence proportionally following an increase in penalty.19
[38] Lastly, and in light of the above matters, Mr Dunne in his written and oral submissions referred in particular to Barnes v Police. Judge Jelas stated in her sentencing notes that had Mr Barnes been sentenced under the new regime, a starting point of five to five and a half years would have been appropriate. Mr Dunne submits that Mr Robinson’s offending is less serious than that in Barnes v Police, and accordingly adopting a starting point that is approximately 40 per cent greater than the nominal starting point for Mr Barnes under the new regime was an error.
[39] As to Mr Dunne’s first submission, I begin by noting that, even before the 2015 penalty increases, courts had indicated the English sentencing guidelines may be too lenient for the New Zealand context (despite the maximum penalties being the same in both jurisdictions). For example, Katz J observed Stewart v Department of Internal
Affairs (referencing the 2007 guideline):
18 R v A [1994] 2 NZLR 129 (CA).
19 In that case, a “mathematical” approach to a starting point, reflective of the increase in penalties, would have seen a starting point of five years increase to approximately seven years. Yet the Court of Appeal adopted eight years as a nominal starting point, subject to aggravating factors, and recognised that there could of course be appropriate cases where a lower starting point was appropriate.
[23] Further, in my view, the UK Guideline that recommends a starting point of 12 months' imprisonment for possession of a large quantity of level 4 or 5 material sets the bar too low, in the New Zealand context. I note that 12 months' imprisonment is the highest starting point specified in the UK Guidelines for any possession offence, although higher starting points (in the two to six year range) are recommended for various production, distribution or trading offences.
[24] I have difficulty with the proposition that possession of high volumes of the worst types of child pornography (levels 4 and 5) should only attract a starting point of 20 per cent of the maximum penalty (five years' imprisonment). To directly apply such a guideline in New Zealand would not, in my view, accord with the intention of Parliament when it significantly increased the maximum penalties in 2005. Those amendments occurred against the backdrop of huge technological advances in the previous 10 years or so. These had, unfortunately, resulted in exponential increases in the volume and ready accessibility of child pornography, including many graphic sexual images involving very young victims.
[25] It is clear from the Parliamentary debates at the time that the key driver of change was Parliament's concern regarding child pornography and its ready availability over the internet. This resulted in the maximum penalty for possession being increased from a fine to five years' imprisonment and the penalty for making and/or distributing objectionable material being increased from one year to 10 years. Such drastic increases, in my view, send a clear message as to the seriousness with which Parliament views this type of offending.
[26] Given this background, it is perhaps not surprising that sentencing outcomes in New Zealand, while often referring to the UK Guidelines, tend to adopt somewhat higher starting points for possession than that recommended by the UK Guidelines. For example, in Thompson v Police, Collins J expressed the view that possession of a large amount of material at levels four or five, without showing or distributing, should attract a starting point of between 12 months to three years' imprisonment.
[40] I respectfully agree with her Honour’s observations.
[41] In that context, it makes sense the Court of Appeal only ever referred to the guidelines as being a “useful guide”, rather than as setting out clear tariffs. Katz J did accept, however, that the guideline’s different categories of child pornography could still assist in determining the relative “seriousness” of material that is subject of the charges.20 Again, I respectfully agree, and would also affirm that the non-exhaustive list of aggravating and mitigating factors in the 2014 guidelines may still provide
useful guidance for New Zealand judges in assessing the gravity of offending.21 But,
20 At [20].
21 At 78.
beyond that, and particularly given the 2015 maximum penalty increases, it is difficult to take any significant guidance from the sentencing bands in the English guidelines. I therefore do not consider that Mr Dunne’s use of the guidelines as a touch point to the appropriate starting point to be helpful.
[42] As to Mr Dunne’s second submission, although the Court of Appeal in R v A said sentencing following an increased penalty was not a “mathematical exercise”, put in context, the Court’s comments were made in the context of rejecting an appellant’s submission that the sentencing judge’s proportional increase in sentence following the increased penalties was too high:22
[T]he New Zealand approach [to sentencing for sexual violation] must be significantly influenced by the decision of our Parliament to raise the maximum sentence for sexual violation to 20 years. Sentencing is a field in which there is genuine room for differences of informed opinion, but it is well established that the Courts should have regard to a policy of our Parliament evinced by an increase in the maximum penalty for particular offences …
It is reasonable to assume that both the five-year starting point and the approximate sentence prevailing in practice could have been known to Parliament and its advisers when the maximum sentence was increased to 20 years. On a purely arithmetical basis, looking only at Clark, counsel for the appellant is no doubt right in saying that the new starting point would be seven years, one month and three weeks, on which footing Mr Glover would also be justified in his submission that, sentencing not being a purely mathematical exercise, the practical starting point should be seven years. We consider, however, that this suggestion would not allow adequately for the spirit of the recent legislative changes or the previously existing general level of rape sentencing in fact.
[Emphasis added]
[43] In 2015, Parliament indicated that an even stronger approach needed to be taken in sentencing for child pornography-related offending. That was indicated by doubling the maximum penalty for possession, and increasing the maximum penalty for supply by 40 per cent. I agree with Ms Brittain that although the increased penalties are yet to be considered by the Court of Appeal in relation to child pornography, Parliament’s intention has been clearly articulated and it is now for the
courts to enforce it.
22 R v A [1994] 2 NZLR 129 (CA) at 131.
[44] I turn to the case of Barnes v Police, which Mr Dunne says the Judge wrongly applied. I note at the outset that Barnes v Police was decided before the 2015 maximum penalty increases. The appellant was convicted on 25 charges of supplying and five charges of possessing objectionable publications. For the supply charges, more than half of the 25 images were level 1 (the lowest level in the 2007 guidelines’ categories), and six were in levels 4 or 5 (the most serious levels). For the possession charges, 294 image files were found in the possession of the appellant, but only five were selected to form the basis of the charges. Only one of these was level 5 (depicting bestiality with children) and the other four were not child pornography (they were objectionable because they depicted bestiality involving adults, and so did not fall in the sentencing guideline categories). On appeal, Clifford J held that a starting point of three years and six months’ imprisonment would have been appropriate.
[45] Mr Dunne says the Judge was wrong to say the offending in Barnes v Police was less serious than Mr Robinson’s, given that Mr Barnes was convicted of more charges for supply than Mr Robinson. But I agree with Judge Jelas’ assessment. On my assessment, the majority (13) of the 25 images Mr Barnes supplied would fall into category C of the 2014 guidelines (depicting erotic posing), and only one of the five
images possessed related to child pornography (albeit being at category A). This in contrast to Mr Robinson, where all 35 images (supplied or possessed) would fall into categories A or B.
[46] Mr Dunne also placed emphasis on Clifford J’s observation that:23
I mention one further matter at this point. It would appear on the basis of the statement of facts to which Mr Barnes pleaded guilty, that the selection of the possession images relied on by the police may not have reflected the seriousness of a number of the images discovered on Mr Barnes’ laptop computer.
[47] However, Clifford J went on to state that, given a dispute as to the description of some of those images:24
I do not rely on the possibility that, based on the statement of facts, there may have been a larger number of more objectionable images discovered involving children.
23 At [10].
24 At [10].
[48] I am therefore satisfied that the Judge did not err in her assessment of Barnes v Police, or in concluding that, after taking into account the 2015 penalty increases,
Mr Robinson’s starting point would be higher than Mr Barnes’. To that extent, I do not agree with Mr Dunne that the disparity between the starting points is “out of all proportion”.
[49] Counsel have referred me to two child pornography sentencing decisions since the 2015 penalty increases:
(a) In Webb v R, the appellant faced an array of convictions relating to objectionable publications, brought by the police, customs and internal affairs.25 Mander J took the police charges to be the lead offences. Three distribution charges related to two category A videos Mr Webb posted on an online forum. Nine possession charges related to “a large number of images and videos” Mr Webb had obtained on an online forum, including publications involving the bondage of children and penetrative acts. Mr Webb, who was described as an “administrator” for two private online groups (the names of which referenced sexual interference with children by parents), had procured some of these publications by engaging in online conversations with parents. Some material was created at his request, and depicted victims holding signs with Mr Webb’s username on them. He would also advise and direct parents on how best to record the rape and abuse of their children. A further representative charge of distribution related to “numerous occasions” in which Mr Webb had shared his videos online, including videos of penetrative sexual acts against children. On appeal (by
Mr Webb), Mander J considered the offending could be accurately described as “the most serious of its kind”. He did not disturb the sentencing judge’s starting point of 7 years’ imprisonment (half the
maximum penalty), although he implies this may have been lenient.26
25 Webb v R [2016] NZHC 2966.
26 At [63]-[65]. This is due to s 8(d) of the Sentencing Act 2002: “the court must impose a penalty near to the maximum prescribed for an offence if the offending is near to the most serious of cases for which the penalty is prescribed”.
(b)Tilyard v Police involved eight charges of child pornography distribution and eight of possession.27 Mr Tilyard had shared with an undercover officer 128 images of child pornography. Upon a later search by police, 700 objectionable images were found on his computer. All but three of the photographs were classified as category C (involving erotic posing of naked young boys, with no penetration, sexual activity, or adults present). The most serious image (which was the subject of a distribution charge) depicted a boy with a thermometer in his anus, and was found to be category A. Two other distributed images were category B. On appeal, Nicholas Davidson J noted that the Category A and B images were not representative of the bulk of the other images which formed the representative charges in that case. He also noted that the 2015 maximum penalty increases heralded a “new era” for sentencing associated with objectionable material. He adopted an overall starting point of two years, six months’ imprisonment (six months less than the starting point adopted by the sentencing judge), noting that this was appropriate “where most images are in Category C”.28
[50] I stress that it is difficult to compare cases in this area given the varying circumstances and the different combinations of charges that are often brought before the courts. But it is apparent the offending in Webb v R was considerably more serious than Mr Robinson’s, particularly as it involved Mr Webb seeking the production of objectionable imagery, thereby being directly associated (or causally connected) to the victimisation of individual children. As noted, it would seem that a much higher starting point could have been adopted in that case. I respectfully record my own view that the starting point in that case does appear to have been very lenient. And while Mr Dunne is correct that parity between respective sentences is important, it would be wrong, in my view, to arrive at Mr Robinson’s starting point by parity with what was, in my respectful view, an overly lenient starting point. As the Court of Appeal has
observed (in relation to parity between co-defendants), two wrongs do not make a
27 Tilyard v Police [2016] NZHC 1377.
28 He noted that this was accordingly at the “lower end” of the statutory range which now applies (at
[54]).
right.29 And the offending in Tilyard v Police was in my view much less serious than
Mr Robinson’s, in that it largely involved category C still images.
[51] Taking into account the aggravating features of the 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 the cases discussed above, I have come to the view that Mr Robinson’s overall seven-year starting point for all charges was available to the Judge, albeit at the upper end of the permissible range. Having found no error in the starting point, I turn to consider Mr Dunne’s objections to the personal discounts.
The discounts for Mr Robinson’s personal factors
[52] Mr Dunne submits the Judge erred by failing to give a separate discount (in the order of five to ten percent) for the fact Mr Robinson had not previously appeared before the Court. He also says the Judge erred in not giving a (modest) discount for
Mr Robinson’s rehabilitative efforts prior to sentencing. As at his sentencing date, he had attended nine counselling sessions, and evidence of this had been tendered before the Court at sentencing.
[53] At sentencing, the Judge gave Mr Robinson a discount of 15 per cent (13 months) on account of his personal mitigating factors as set in a psychologist’s report, along with a full 25 per cent discount (18 months) to recognise Mr Robinson’s early guilty pleas:
[45] … There are two factors that enable that starting point to be reduced. First is the content of the psychologist’s report that clearly evidences a strong link between your dysfunctional upbringing, your own offending when you were young and your response to the past rehabilitative programme. You have sought to isolate yourself to prevent harm to others and considered no wrong doing was caused by your acts that are now the subject of the charges before the Court. …
[48] What is required is some level of evaluation by me as to your level of culpability, that being the effect your upbringing has had upon the present offending. While there is a substantial link between the two, it cannot be ignored that you were aware that sexual offending upon young person’s was wrong. That is one of the outcomes that you learnt from the SAFE rehabilitation programme. However, you are working under the misapprehension that the acts that you were engaging in, because they were not of a physical nature with a victim, was not causing harm. That of course
29 Cecil v R [2013] NZCA 541 at [42]; Clarke v R [2013] NZCA 473 at [19].
is incorrect. In my view, the appropriate level of credit for the factors set out in the report is one of 15 percent. That results in a reduction of the seven year starting point by 13 months bringing it to five years 11 months’ imprisonment. Mr Edgar then seeks full credit for you for your guilty plea and the fact that you have not previously appeared before the Court. I accept that you are entitled to full credit and will deduct a further 18
months. That brings down the end sentence to one of four years five months’ imprisonment.
[Emphasis added]
[54] Mr Dunne responsibly accepted that Mr Robinson does not have an unblemished record, in that he has Youth Court notations for sexual offending. While this was some time ago and he does not have formal convictions, I am not persuaded that, in the context of Mr Robinson’s prior sexual offending, a discrete discount was required to reflect prior good character.
[55] As to Mr Robinson’s rehabilitative efforts, the psychologist’s report referred to by the Judge noted Mr Robinson had attended nine counselling sessions, and that he was “engaging well and committed to counselling”. I accept, however, that the Judge only refers to the report’s description of Mr Robinson’s dysfunctional upbringing, his previous offending, and past rehabilitative programme. Although it might have been preferable for the Judge to specifically state the relevant personal mitigating factors for which Mr Robinson received credit, the Judge may have recognised
Mr Robinson’s rehabilitative efforts (i.e. including those more recent to his sentencing) as part of her overall discount for “the factors set out in the report”.
[56] Even if the Judge had not accounted for this matter (and presuming this was an error), only a very modest further discount, in the range of one or two months, could have been given in the circumstances. To adjust Mr Robinson’s sentence to recognise such a change would in my view be “tinkering”, and I am not satisfied that it would warrant a different sentence being imposed on appeal.
Conclusions
[57] I therefore dismiss the appeal.
S Fitzgerald J
13