S v R
[2011] NZCA 324
•18 July 2011
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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 that she had confirmed that in her evidence-in-chief at the appellant’s trial, including in this exchange of questions and answers:3
Q Okay. Was it your idea to take the pictures? A No.
Q Whose idea was it? A My father’s.
QAnd when, when did he tell you about that idea of his to take pictures of yourself?
AWhen we were at Cobb & Co when it was just me and him having dinner.
[10] However, under cross-examination, the complainant departed from this. These were the questions and answers that were the basis for the conviction appeal:4
Q It’s abundantly clear that you’ve taken the photographs 1–17 because
you’re seen to be holding the camera, aren’t you?
A Yep.
Q And those photographs were taken by you after you’d had a
conversation with your boyfriend, correct? A Yep.
Q So, you’ve taken those photographs to send through to your
boyfriend haven’t you?
A Yes.
Q It’s nothing to do with your father does it, does it. The truth?
A The truth? Q Yes.
A From the first of the 17, I took photos for my boyfriend.
2 S was acquitted on those three counts.
3 Notes of evidence 8/14–21.
4 Notes of evidence 11/20–35.
Q Right.
[11] And a little later in the cross-examination:5
QSubsequently though you have sent images of your breasts through the net to [your boyfriend], haven’t you?
A No.
Q No. You just said for a moment there that that’s what the
photographs were for.
…
Q. Correct?
ADoesn’t mean I was going to upload them. I was actually going to print them out and send them to my boyfriend at the time.
QRight, yeah okay, that’s what you did say really and I thought your boyfriend was [we omit his name], am I wrong about that?
A You are correct.
Q All right, okay, right. So the photographs were for [your boyfriend]? A Yes.
[12] If that were the extent of the Crown’s evidence on counts 1–6, the appellant’s appeal against conviction may have some merit. However, the Crown adduced further evidence of the appellant’s involvement in the taking of the photographs on
24 January. The complainant said she had taken some photographs on her cellphone “for a conversation with, um, my boyfriend at the time” and some of the photographs with “this silver camera with the memory stick”,6 which was the camera her father used when he took photographs of her.
[13] The Crown evidence established that the photographs the subject of counts 1–
6 were taken on a Kodak Easishare CX7300 digital camera between 12.47 pm and
2.46 pm on 24 January 2008. The first five photographs were recorded on an MMC SD card and the latter eight photographs on a Hagiwara SD card used in that Kodak
camera.
5 Notes of evidence 15/13–16/2.
6 Notes of evidence 7/9–20.
[14] Also in evidence was video footage taken from the security cameras in the appellant’s home, from which he also operated a computer repair business. The footage for the time period 12.47 pm to 2.46 pm on 24 January 2008 showed the appellant knocking on the complainant’s bedroom door, going into her bedroom, leaving with a camera, handing the camera to her, the complainant going into the bedroom and then coming out of the bedroom with the camera.
[15] The combination of those two items of evidence demonstrated overwhelmingly that it was the appellant who instigated the taking of the photographs the subject of counts 1–6.
[16] For the sake of completeness, we record that Mr Gill did not pursue the criticisms of the Judge’s summing up contained in his written submissions. In his oral submissions to us he advised that he was “not really criticising” the summing up.
Sentence appeal
[17] The sentence under appeal was imposed on all nine counts on which the appellant was convicted. In addition to the six counts which were the subject of the appeal against conviction, there were the three counts resulting from the pictures the appellant himself took of his daughter on 15 January 2008. Those are the pictures we referred to in [6] above.
[18] Upon sentencing the appellant, after recording the facts, the Judge referred to the victim impact statement. In that the complainant said how much she had been looking forward to “staying with my father” after being “in CYFS custody … for a long time”. She said she felt very let down by her father, and that he had used her “like a sex target”. She said she was upset by what had happened, had nightmares from it and felt “depressed the more I think about it”.
[19] The Judge then identified two aggravating features of the offending. The
first, which the Judge noted he “must take into account by law”, was that “this
particular offending of yours exploited the nudity of your daughter”.7 The Judge’s reference is to s 132A(2)(a) and (c) of the Films, Videos and Publications Classification Act 1993 which requires the Court to take into account as an aggravating factor the extent to which the publication promotes the exploitation of children for sexual purposes and exploits the nudity of children.
[20] Secondly, the Judge considered the offending constituted “a serious breach of trust … of a vulnerable young person, who had only just come into your care”.8 The Judge amplified that by referring to the complainant’s limited cognitive ability, the background that she had spent years in State care, and the fact that the offending was premeditated over several weeks.
[21] The Judge had the benefit of a psychological report on the complainant prepared in May 2007. That was about three and a half years before sentencing, but only a little over a year after the offending. The psychologist assessed the complainant’s full-scale IQ as falling between 56–73, placing her in the extremely low range for her general cognitive functioning. Less than two per cent of children of the complainant’s age functioned at that level. Similarly, the psychologist assessed the complainant’s adaptive functioning – her ability to cope with usual life demands – as falling between 63–71, placing her within the extremely low range for adaptive functioning. The psychologist’s assessment was that the complainant’s cognitive and adaptive functioning was at the level expected for a child between six
and eight years of age.9
[22] The Judge then said this:10
I agree that the offending cannot be described as a high level of such offending, as these are images depicting nudity, but without any sexual activity involved in them. I have been referred to a number of Court of Appeal cases, and I have been referred to a scale of offending, identified I think in five steps, and I agree that this offending appears to fall clearly within the first level of such offending.
7 Sentencing notes of Judge Mill 16 November 2010 at [8].
8 Sentencing notes of Judge Mill 16 November 2010 at [9].
9 The Judge’s considerably less detailed summary of the psychological report on the complainant
is at [9] of his sentencing notes.
10 Sentencing notes of Judge Mill 16 November 2010 at [13].
[23] Factoring all of that in, the Judge concluded that a sentencing starting point
of 18 months’ imprisonment was appropriate for the offending.
[24] The Judge uplifted the sentence by 12 months imprisonment to reflect the appellant’s previous convictions for sexual offending which he summarised in this way:11
… You have previous [convictions] for sexual offending, in fact sexual violence in 1987 and 1988, including two counts of rape and two of indecent acts on a girl who I understand was 12 years of age. You were imprisoned for that offending back then. …
[25] The Judge could see no mitigating circumstances at all, so the end sentence
was two and a half years’ imprisonment.
[26] Mr Gill had two submissions on the appeal against sentence. First, he contended that the Judge’s sentencing starting point was too high, and ought to have been 12 months imprisonment at the most. Mr Gill submitted that the offending was at the lowest of the five levels of seriousness referred to by this Court in R v Zhu,12 drawing on Part 6A of the Definitive Guideline of the United Kingdom Sentencing Guidelines Council for offences under the Sexual Offences Act 2003 (UK). We
revert to that UK Sentencing Guideline in [31] and [32] below.
[27] Mr Gill then suggested that the offending here was considerably less serious than that in R v Clode13 which involved Mr Clode videoing indecent assaults upon one complainant and possessing 16,000 pictures and 38 movies featuring pornography. The sentence substituted by this Court in Clode was three years and 10 months imprisonment. Mr Gill’s point was that the differential of 16 months imprisonment between the sentence under appeal here and that in Clode did not sufficiently mark the considerably less serious nature of the appellant’s offending.
[28] Secondly, while Mr Gill accepted that an uplift was appropriate for the
appellant’s previous convictions, he contended it should have been no more than six months imprisonment.
11 Sentencing notes of Judge Mill 16 November 2010 at [11].
12 R v Zhu [2007] NZCA 470.
13 R v Clode [2008] NZCA 421, [2009] 1 NZLR 312.
[29] Thus, Mr Gill contended that the end sentence should have been less than two years imprisonment. On the basis that the Judge ought to have sentenced the appellant to home detention, and as he had now been in prison for some eight months, Mr Gill sought his release on a “time served” basis.
[30] The maximum sentence applying to charges under ss 123 and 124 of the Films, Videos and Publications Classification Act 1993 was increased in 2005 to 10 years imprisonment.14 Previously the penalty was one year’s imprisonment. That tenfold increase reflected widespread community concern about the internet facilitated rise in the distribution of child pornography.
[31] As this Court has noted in each of its four decisions since 2005 dealing with ss 123 and 124 offending, there is no sentencing guideline judgment.15 In Zhu the Court suggested that the UK Sentencing Guideline provided a useful guide for New Zealand.16 The Court endorsed that in Clode, encouraging trial Judges to use the United Kingdom Guideline in cases involving child pornography.17 It had earlier pointed out that the maximum penalty of 10 years imprisonment applied also under equivalent legislation in the United Kingdom.18
[32] The United Kingdom Guideline divides offending involving indecent photographs of children into five levels of seriousness. The offending here falls into the lowest level which is:
Level 1: Images depicting erotic posing with no sexual activity.
For an offender involved in the production of, or trading in, indecent photographs of children at level 1, the UK Sentencing Guideline provides:
Starting point Sentencing ranges 2 years custody 1–4 years custody
14 Section 27 of the Films Videos and Publications Classification Amendment Act 2005.
15 R v Zhu [2007] NZCA 470 at [15]; R v Henderson [2008] NZCA 305; R v Clode [2008] NZCA
421, [2009] 1 NZLR 312 at [51] and R v Spark [2009] NZCA 345, [2009] 3 NZLR 625 at [75].
16 R v Zhu at [15].
17 R v Clode at [52].
18 R v Clode at [50] and [52].
[33] Since the increase in sentence in 2005 there have been the following sentencing decisions of the High Court and Court of Appeal which provide guidance on the appropriateness of the sentence under appeal here (and we have arranged
these chronologically, most recent decision last):
Case
Facts/charges
Aggravating and mitigating factors
Sentence
R v JJH19 Prisoner made recordings of rape and sexual violation of complainant (aged 3-8). Accused had videotaped hours of footage recording him sexually violating (by rape, oral sex, digital penetration and anal
sex) the complainant (aged 3-8), who was the daughter of his de facto partner.
16 charges of knowingly making an objectionable publication under s 124 of the Films, Videos and Publications Act 1993.
Aggravating:
minor previous convictions, but none for offending of this nature;
moderate to high risk of reoffending;
little remorse or appreciation of huge harm done to complainant (suffered from psychopathy).
Mitigating:
only early guilty pleas.
3 years imprisonment on the charge of knowingly making an objectionable publication carrying a maximum sentence of
10 years imprisonment.
6 months imprisonment on each of the other charges of knowingly making an objectionable publication, which carried a maximum penalty of 1 year imprisonment (all those sentences imposed concurrently
with a lead sentence of
13½ years imprisonment imposed on each of the 24 counts of sexual violation by rape).20
R v Zhu21
Appellant advertised in a Chinese newspaper for sale, and supplied, DVDs containing images of very young children engaged in full sexual intercourse with adults. The images showed children ranging in age from 6 or 7 to their early teens being raped by adults.
The distress of the children was said to be obvious. Other DVDs showed sadistic behaviour towards children, and adult gang rape scenes, including graphic violence, and involving sexual activity between women and animals.
Four counts of supplying objectionable material under
Aggravating:
some of the DVDs involved activity at levels 4 and probably
5 of the UK Sentencing Guideline;
appellant offering to supply “anything the buyer wanted”;
commercial aspect of the supply.
Mitigating:
late guilty pleas;
appellant Chinese – a
Sentence of 3½ years imprisonment upheld (starting point 4½ years, 1 year discount for guilty pleas and other personal mitigating factors).
19 R v JJH HC Auckland CRI-2005-090-4790, CRI-2005-090-8307, 27 June 2006.
20 A sentence of preventive detention was substituted by this Court on appeal: R v JJH [2007] NZCA 55.
21 R v Zhu [2007] NZCA 470.
s 124, and 10 counts of
possessing such material, under s 131A of the Act.
sentence of
imprisonment could be more difficult given the unfamiliar culture and lack of family support.
R v
Clode22
Appellant had 16,000 pictures and 38 movies of child pornography and of naked women and girls performing sexual acts with dogs.
He had also made videos of
three young children (aged 10, 8 and 4) who were living in his home. These included footage
of two of the children naked in the shower, his touching or
exposing the genital area of two of the children and the bare chest of another of the children. The appellant had made two of
those videos available for
distribution on the internet using
Yahoo Messenger.Making and distributing child pornography: ss 123 and 124 of the Act.
Aggravating:
breach of position of trust with respect to the three young victims who were living in his home;
indecent assaults (touchings) of the three young children in the course of making the videos.
Mitigating:
early guilty pleas to the bulk of the charges (was convicted at trial of the three charges of indecently assaulting a 19 year old foreign student home-staying with his family).
An effective end sentence of 3 years and
10 months’ imprisonment made up of 9 discrete sentences, some concurrent and some cumulative,
including:
3 years 2 months for the indecent assaults on one of the young children (touching her genitals and videoing);
16 months for the indecent assault (lifting top and videoing) of another of the young children;
16 months for the indecent assault (pulling back swimsuit to expose genital
area and videoing)
of one of the young children;
18 months for making videos of the young children naked in the shower;
16 months imprisonment for distributing two of the videos on the internet.
R v
Merrett23
Prisoner made recordings on two occasions of him having sexual intercourse with a girl aged 13-14, and also
Aggravating:
3 previous convictions for
3 years imprisonment on the 6 charges under s 131A of the Act (prisoner was
22 R v Clode [2008] NZCA 421; [2009] 1 NZLR 312.
23 R v Merrett HC Wellington CRI-2008-085-9513, 8 May 2009, Gendall J.
masturbated in front of her
when she was filming him on her cellphone.
After that offending came to light, execution of a search warrant at the prisoner’s home uncovered tens of thousands of pornographic files, a mixture of image and video films. These showed children between the ages of 5 and 15 in explicit sexual poses, involved in sexual acts and an image of a young girl urinating. The material fell
into at least 4 of the 5 categories in the UK Sentencing Guideline.
Prisoner had pleaded guilty to 6 charges of possessing objectionable publications under s 131A of the Act.
raping, indecently
assaulting and having unlawful sexual connection with a girl between the age of 12 and 16;
assessed at medium/high risk of reoffending, and the need for the community to be protected from the prisoner.
Mitigating:
guilty pleas.
sentenced to
preventive detention on 2 charges of sexual connection and 2 charges of indecent assault upon a girl aged between 12 and
16).
R v
Spark24
Appellant was a school teacher in his late fifties who was found guilty at trial of contacting a number of young girls through internet chat programmes, instigating explicit sexual conversations which he
recorded in word processing files. To those he added photographs sent by the girls and details of the girls, including any sexual acts they had undertaken at his request.
Appellant also had images depicting the sexual exploitation of children or young persons, or exploitation of their nudity, and stories he had written about sexual acts between an adult male and various young girls.
Found guilty on 10 counts of making objectionable publications contrary to ss 123 and 124, and on 14 counts of possessing objectionable publications contrary to ss 131 and 131A, of the Act.
Aggravating:
offending promoted and supported the exploitation of children for sexual purposes;
offending had stretched out over a period of several
years – “quite simply,
a serial offender”.Mitigating:
previous good character;
“the circumstances to which Mr Spark has been reduced as a result of his offending”.
Sentence of 2½ years imprisonment (starting point of 3 years, with 6 months discount for mitigating factors) upheld.
Shaw v Dept of Internal Affairs25
Two charges of distributing objectionable publications and
19 charges of being in possession of objectionable
Aggravating:
previous convictions in 1991 and 1992 for indecent assault on a
Sentence of 2 years 2 months imprisonment on the 2 distribution charges and 18 months imprisonment
24 R v Spark [2009] NZCA 345; [2009] 3 NZLR 625.
25 Shaw v Department of Internal Affairs HC Whangarei CRI-2010-488-0005, 10 March 2010.
material in breach of the Act.
The material included still and movie publications of children involved in sexual activity. Appellant’s computer files were found to contain 56 images or scenes of child sexual abuse, including depictions of infant rape and sexually explicit matters involving girls aged 8-
10. The material included 2 instructional videos. The first on how to commit sexual and penetrative acts on infants and children using household
objects without being detected. The second targeted toward young children on how to masturbate adult males. That video instructed viewers “show this training video to your daughter and get her ready”.
The offending images were in levels 3 and 4 of the UK Sentencing Guideline.
boy under 12 and
inducing or permitting a boy under 12 to perform an indecent act;
deliberate and premeditated nature of the offending.
Mitigating:
early guilty pleas;
appellant very remorseful – had attended counselling. Now married with 2 dependent children.
(imposed concurrently)
on the 19 possession charges upheld.
(Starting point 2½ years imprisonment plus 9 months uplift for previous
convictions = 3 years 3 months less a full 33% discount for guilty
pleas (1 year 1 month).
[34] In terms of the United Kingdom Sentencing Guideline, the Judge’s sentencing starting point of 18 months imprisonment was below the two years recommended. The Judge’s end sentence of two and a half years’ imprisonment (including the uplift of 12 months he imposed) was well within the one–four years sentencing range indicated.
[35] Most of the New Zealand sentencing decisions involve more serious offending than here, some of it considerably more serious, as reflected by the higher sentences imposed or upheld.
[36] Clode and Spark are the most comparable decisions. Clode is noteworthy because the Court considered the sentence for making and distributing level one child pornography, if stand-alone, should be three years and six months imprisonment. That offending was more serious than in this case, because it involved making videos of the three young children living in Mr Clode’s home, in the course of which he had indecently assaulted the children by touching or exposing their genital areas or (in one case) bare chest.
[37] The offending in Spark is the most comparable to that here. On the one hand it involved a number of young girls rather than the single complainant here. But on the other hand, all Mr Spark’s activities were conducted on-line, as opposed to the direct contact between father and daughter that occurred here. The sentencing Judge, Judge Saunders, had taken a sentencing starting point of three years imprisonment. He then allowed a discount of six months, in relation to which this Court
commented:26
The six-month discount in mitigation was close to a 17 per cent discount for previous good character and the circumstances to which Mr Spark has been reduced as a result of his offending. It could well be thought that that discount was generous given that Mr Spark’s course of offending had stretched out over a period of several years. He was, quite simply, a serial offender. That may well be thought to reflect the sort of risk he poses to the community, at least absent suitable rehabilitation. It is to be hoped that such rehabilitation can be afforded to him while he is incarcerated.
[38] When assessed against all of that, Judge Mills’ sentencing starting point of 18 months imprisonment for the appellant cannot be viewed as manifestly excessive. Indeed, we think the Judge pitched it at the correct level.
[39] The 12 months uplift applied by the Judge was to reflect the appellant’s two convictions for rape and two convictions for permitting an indecent act, all on a girl aged between 12 and 16, and all entered on 16 December 1988. The appellant was sentenced to four years imprisonment on those four charges. Although those convictions were 22 years in the past when the Judge sentenced the appellant, they were nevertheless for serious offences committed on a young girl. While we think Mr Lange was correct to acknowledge that the Judge’s 12 months uplift “may be viewed as at the upper end of the range” (we think right at the upper end), we do not consider it was manifestly excessive.
[40] Accordingly, we do not consider the end sentence under appeal of two and a half years imprisonment was manifestly excessive.
26 At [80].
Result
[41] Both the appeal against conviction and the appeal against sentence are dismissed.
Solicitors:
Gill & McAsey, Lower Hutt for Appellant
Crown Law Office, Wellington for Respondent
5