Signal v Department of Internal Affairs

[2012] NZHC 3576

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-021-672 [2012] NZHC 3576

BETWEEN  CALLUM ANDREW LEO SIGNAL Appellants

ANDTHE DEPARTMENT OF INTERNAL AFFAIRS

Respondent

Hearing:         17 December 2012

Appearances: N R Harding for appellant

J I Mooney for Crown

Judgment:      21 December 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 10.30 am on Friday 21 December 2012

Solicitors:

N R Harding, Thomson O’Neil & Co, Hawera

Crown Solicitor New Plymouth

SIGNAL V THE DEPARTMENT OF INTERNAL AFFAIRS HC NWP CRI 2012-021-672 [21 December 2012]

Introduction

[1]      On 21 November 2012, Mr Signal, having pleaded guilty to 14 charges of possessing  objectionable  publications,  contrary  to  s  131A(1)(a)  of  The  Films, Videos,  and  Publications Classifications Act  1993,  was  sentenced  to  12  months imprisonment.[1]

[1] Department of Internal Affairs v Signal DC Hawera CRI-2012-021-672, 21 November 2012

[2]      He now appeals against that sentence, on the ground that it was manifestly excessive.

Background

[3]      In July 2011, the National Centre for Missing and Exploited Children in the United States, forwarded to New Zealand a complaint that a New Zealander had been uploading child sexual abuse images.  The images, 27 in total, were of young boys below the age of puberty involved in sexual poses and explicit sexual acts.

[4]      Investigations led to a computer operated by the appellant.  A search warrant was executed by the Department of Internal Affairs.  During the ensuing search the appellant’s laptop was seized.  Upon examination, it revealed 521 files of movies and images of child sexual abuse, showing explicit sexual acts and poses by underage children. The majority of the material related to underage boys.

[5]      The appellant had downloaded the material from various overseas websites, but he did not send the images on to anyone else, nor was he responsible for the creation of any of his own material.

District Court sentencing

[6]      Judge  Roberts  considered  several  sentencing  authorities,  some  of  which involved much more significant offending than this, both in terms of the number of

images involved and the nature of the conduct depicted.

[7]      By reference to those authorities, and in particular to R v Oliver, the Judge adopted a starting point of 16 months imprisonment, which he reduced by 25% in order to reflect the appellant’s early guilty plea.[2]   That produced an end sentence of

[2] R v Oliver [2003] 2 CrAppR(s) at 15.

12 months imprisonment, which is now the subject of the present appeal.

Appeal grounds

[8]      There is no challenge to the starting point.  Rather, Mr Harding submits that the learned Judge ought to have allowed a discount beyond the 25% for the guilty plea in order to reflect a number of further mitigating factors which, considered together, justify a reduction in the end sentence.   Some of these factors were discussed by Judge Roberts in passing, others were not.

[9]      Mr  Harding  submits  that  the  following  mitigating  factors  should  have resulted in a further discount:

(a)       Steps the appellant had taken to address his offending; (b)     The on-going support of his family;

(c)       His previous good character;

(d)      His age at the time of the offending, which ranged between 17 years

11 months and 19 years 10 months;

(e)       His overall acceptance of responsibility.

[10]     Mr  Harding  submits  that  there  ought  to  have  been  a  further  discount reflecting these factors of 12.5%.  That would have reduced the end sentence from

12 months imprisonment to 10 months imprisonment.

Discussion

[11]     I do not accept that this is a case in which there ought to have been a separate discount for youth.  For one thing, Mr Signal’s offending was continuing right up to the time of his apprehension, when he was almost 20 years old.   Second, youth discounts are more commonly allowed in situations where an offender, by reason by his or her  youth, has engaged in spur  of the moment one-off behaviour that is attributable to the penchant of young persons for risk taking and for acting without

appreciating  or  considering  the  consequences.[3]     This  present  offending  was

premeditated and continuous.  It is not the sort of case in which it would ordinarily be proper to allow a discount for youth.

[3] R v Churchward [2011] NZCA 531 at [78]-[85]

[12]     Neither  can  acceptance  of  responsibility  justify  a  separate  discount,  and indeed, Mr Harding acknowledged that.  As is made clear in Hessell, the discount generally  allowed  for  a  guilty  plea  incorporates  an  acknowledgement  that  an offender who pleads guilty accepts responsibility for what has occurred.[4]    In other words, a discount for acceptance of responsibility is already built into the discount that reflects the guilty plea.

[4] R v Hessell [2010] NZSC 135 at [63].

[13]     Likewise, previous good character can be of little assistance for such a young offender in the context of offending of this type.

[14]     Mr Harding’s remaining argument for a further discount is based on the fact that the Court is required to take into account s 7(1)(h) of the Sentencing Act 2002, which focuses upon rehabilitation.  The Court is also required to do what it can to foster the reintegration of an offender into the community.  Mr Harding points out that the appellant has, of his own volition, taken steps to organise counselling in order to  address his unlawful preoccupation with sexual abuse involving  young children, and his accompanying depression and anxiety problems.

[15]     The  District  Court  was  provided  with  a  certificate  from  a  counsellor confirming that, since mid-March 2012, the appellant had attended 11 sessions which

focused particularly on issues contributing to his inappropriate internet behaviour and upon ways in which he might take responsibility for his actions.

[16]     Mr Harding’s argument is that the appellant’s initiatives, supported by his family, and particularly his grandparents, justify a degree of confidence in his ability to manage himself in the future so as to ensure that he lives an offence-free lifestyle.

[17]     For the respondent, Ms Mooney observes that, while the appellant’s self- initiated counselling sessions must clearly be seen in a positive light, the Judge was entitled to find, as he did, that the appellant had some way to go yet, before conquering his addiction to pornographic material.  The Judge said:

[19]     I do not consider that it is appropriate thereafter to afford you any concession attaching to counselling.  Yes, while you have engaged it does appear from the interview that you had with the probation officer that the matter is not yet behind you in that you are still accessing pornographic material.  I do not consider there is any quick fix.  Indeed I note that you acknowledged at interview reading, I repeat, pornographic material.

[18]     Judge Roberts was notably unimpressed by the appellant’s revelation to the pre-sentence report writer that he had read pornographic material just three weeks prior to his interview.  The Judge considered that this suggested that the appellant’s cravings had not yet abated and he remained at high risk of further offending.

[19]     The Judge was entitled to take that view, although as Mr Harding points out, the fact that the appellant volunteered the relevant information to the report writer might equally be taken as indicative of his desire to open himself up to assistance and direction. To that extent, it might be seen as a promising step.

[20]     I have carefully considered Mr Harding’s submissions.   I accept that in an exceptional case an offender may be able to justify a discrete discount to reflect rehabilitative prospects (almost always on the basis of steps already in train to that end). However I am not satisfied that the appellant has established that the Judge was bound to allow a further discount beyond the 25% for the guilty plea.

[21]     In my opinion, Judge Roberts was entitled to entertain misgivings about the

strength of the appellant’s commitment to reforming his life, and to conclude that

this was not one of those relatively rare cases in which a separate discount ought to be given to reflect rehabilitation prospects as a discrete factor.

Result

[22]     For the foregoing reasons, I am not satisfied that the only course reasonably open to the Judge was to allow a discount of more than 25%.   He was entitled to conclude that nothing more was required.   Given Mr Harding’s acknowledgement that the starting point was within the available range, the end sentence cannot be said to be manifestly excessive.   It therefore follows that the appeal must fail.   It is dismissed accordingly.

C J Allan J