S v R - [2011] NZCA 324

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PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF THE COMPLAINANT IS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA853/2010 [2011] NZCA 324

BETWEEN S (CA853/2010) Appellant

ANDTHE QUEEN Respondent

Hearing: 27 June 2011
Court: Wild, Rodney Hansen and MacKenzie JJ Counsel: S J Gill for Appellant
C J Lange for Respondent

Judgment: 18 July 2011 at 3pm

JUDGMENT OF THE COURT

The appeal, which is against both conviction and sentence, is dismissed.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] S appeals against his conviction on six of the nine counts on which the jury found him guilty following a trial in the Wellington District Court in September
2010. Each of those nine counts charged S with making an objectionable

S (CA853/2010) V R COA [18 July 2011]

publication, contrary to ss 123 and 124 of the Films, Videos and Publications

Classification Act 1993.

[2] S contends that justice miscarried as the six convictions against which he appeals are not reasonably supported by the evidence.

[3] S appeals also against the sentence of two and a half years imprisonment imposed on him by Judge Mill.1 He says that sentence was manifestly excessive.

Facts

[4] The complainant was the appellant’s daughter. She had been placed back in the appellant’s care about six weeks before the offending. For years prior to that she had been with caregivers, under the auspices of the Child Youth and Family Service.

[5] In her initial evidential interview the complainant told the police that her father had asked her to take pictures of her breasts so he could post them on a website which she thought was called “Rate My Breasts”. She said he had offered to top-up her cellphone and pay “for her mate” if she did that.

[6] On 15 January 2008 the appellant persuaded the complainant to pose naked from the waist up holding a sign with the word “rack” while he took photographs of her. He posted some of the photographs on a website “Ratemyrack.com”. The resulting charges were counts 7–9 in the indictment. The appellant does not appeal against his conviction on those three counts.

[7] A little over a week later, on 24 January 2008, the appellant got the complainant to take more photographs of her breasts, this time holding the camera herself. The appellant then downloaded those photographs onto his computer.

[8] The photographs taken on 15 and 24 January, along with the pornographic material that was the subject of counts 10–12,2 were seized by the police when they
executed a search warrant at the appellant’s home on 25 January 2008.

1 New Zealand Police v Sant DC Wellington, CRI-2009-091-5172, 16 November 2010.

Conviction appeal

[9] Mr Gill accepted that the complainant, in her evidential interview, had told the police the appellant had asked her to photograph her breasts on the second occasion. He accepted also…

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 S v R

Details

AGLC: S v R [2011] NZCA 324
Case: [2011] NZCA 324
Decision Date: 18 July 2011

CaseChat Overview and Summary

The appellant, S, appealed against his conviction on six counts of making an objectionable publication, contrary to the Films, Videos and Publications Classification Act 1993, and against the two and a half years imprisonment sentence imposed on him. S argued that the convictions were not reasonably supported by the evidence, and that the sentence was manifestly excessive. The court considered the evidence, including the complainant's testimony and the security camera footage, and concluded that the convictions were supported by the evidence. The court also considered the aggravating factors of the case, such as the exploitation of the complainant's nudity and the breach of trust, and the mitigating factors, such as the absence of sexual activity in the photographs. The court concluded that the sentence was appropriate and not manifestly excessive. The appeal against conviction and sentence was dismissed.

Orders