Smith v The the Queen
[2022] NZHC 1211
•27 May 2022
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-46
[2022] NZHC 1211
BETWEEN WAYNE SMITH
Appellant
AND
THE QUEEN
Respondent
Hearing: 28 April 2022 Appearances:
A M McCormick and D J B Curnow for Appellant D L Elsmore for Respondent
Judgment:
27 May 2022
JUDGMENT OF OSBORNE J
Parts of this judgment contain redaction
This judgment was delivered by me on 27 May 2022 at 3.30 pm Registrar/Deputy Registrar
Date
SMITH v R [2022] NZHC 1211 [27 May 2022]
Introduction
[1] Wayne Smith appeals a sentence of 17 years’ imprisonment and the minimum period of imprisonment (MPI) imposed (40 per cent).1
[2] The sentence was imposed by Judge Neave following Mr Smith’s pleas of guilty to 38 charges, as tabulated in the Schedule to this judgment. The following summary from the Crown Charge List gives some impression of the gravity and sheer scale of Mr Smith’s offending — as Judge Neave observed “a catalogue of offences, the like of which I have rarely seen”.
SUMMARY OF CHARGES
Sexual violation by unlawful sexual connection (x13) Sexual violation by rape (x3)
Sexual violation by rape (representative) Doing an indecent act on a child (x10)
Doing an indecent act on a child (representative)
Knowingly made objectionable publications – Category A (representative) (victim)
Knowingly made objectionable publications – Category B (representative) (victim)
Knowingly made objectionable publications – Category C (representative) (victim)
Possession of objectionable publications – Category A (representative) (victim)
Possession of objectionable publications – Category B (representative) (victim)
Possession of objectionable publications – Category C (representative) (victim)
Possession of objectionable publications – Category A (representative) Possession of objectionable publications – Category B (representative) Possession of objectionable publications – Category C (representative) Sexual conduct with a child outside New Zealand
1 R v Smith [2022] NZDC 2665.
[3] An eight year old girl — referred to as “F” in this judgment — was the victim of all but the last four charges. She was known to Mr Smith, regularly visiting his house from early 2020, with numerous overnight stays. The offending, the subject of the resulting charges, took place between December 2020 and June 2021. Three additional (objectionable publications) charges relate to a vast quantity of child pornography and other objectionable material. The final charge involved the defendant, while overseas, grooming two young girls online and having them perform sexual acts on themselves and on one another.
[4]Mr Smith appeals the sentence upon the basis it was manifestly excessive.
[5] Mr Smith also appealed against the District Court’s refusal to make a final order of suppression of his name. That appeal was withdrawn before the hearing.
The offending
Offending against F
[6]The first of the offences committed on F occurred in early-December 2020.
[7] F’s visits to and stays at the Smith household occurred regularly from early 2020.
[8] Mr Smith began early on to groom F with the intention of creating a “safe” environment for him to offend. His behaviour towards F throughout 2020 was sexually motivated. Details of Mr Smith’s (ultimately successful) grooming techniques were set out in the Summary of Facts.
[9] As the grooming continued, Mr Smith set up numerous cameras through the house covertly capturing everything F was doing, including Mr Smith’s grooming and ultimately sexual offending. The footage from the cameras included audio and became the subject of six objectionable publication charges, each relating to F. All the offending occurred in Mr Smith’s home in numerous rooms. The filming captured comprehensively the most intimate aspects of F’s activities, including Mr Smith’s sexual offending.
[10] The sexual abuse became so frequent that it became routine and normalised for F.
[11] I will not identify the details of every charge. In many cases there are close similarities. Over time there is a markedly escalating pattern. As the summary in the Crown Charge List (above at [2]) indicates, a number of charges were on a representative basis.
[12]I will set out fully the summary in relation to Charge 1, the first charge:
Charge 1: Does Indecent Act Upon Girl Under 12- CRN 21009010550
On 5 December 2020, the victim was in the lounge sitting on the defendant’s knee. The defendant began to play with her genital area over her clothing. He began to touch the inside of her leg and placed his hand on her vagina.
He instructed her to remove clothing.
The defendant got his penis out of his pants and began masturbating.
Whilst masturbating, the defendant put his fingers towards the victim’s vagina and attempted to penetrate her.
[REDACTED] was present in the lounge when this was occurring.
[13] In his subsequent offending, Mr Smith frequently had [REDACTED] present in the room while the offending occurred.
[14] Subsequent offences extended to Mr Smith playing with all F’s private parts including her vagina, her bottom area and her breasts. Mr Smith committed several of his offences while F was asleep. That included offending in early February which involved Mr Smith both digitally penetrating F and putting his penis in her mouth (while she was asleep).
[15] In March 2021, his offending extended to performing oral sex on F in addition to his previous activities (again while F remained asleep).
[16] In May 2021, Mr Smith introduced the viewing of child pornography into his shared activities with F, showing her a child performing oral sex on an adult male,
having her pose erotically, and engaging in numerous sexual activities including putting his penis through F’s hair. On this occasion he rewarded F with jaffas.
[17] In June 2021, Mr Smith committed his first act of sexual intercourse with F, having initially attempted unsuccessfully to have sexual intercourse with her on that occasion. This incident gave rise to the first rape charge.
[18] Some 12 days later, on 19 June 2021, Mr Smith committed 11 offences in a period of just over two hours while in his home alone with F. The offending encompassed Mr Smith’s full range of indecent acts and rapes. Mr Smith raped F three distinct times, had unlawful sexual connection six distinct times and did indecent acts upon F two distinct times. During the period he engaged in kissing F on the mouth and had her tell him that she loved it while being raped.
[19] Mr Smith’s offending against F came to an abrupt end shortly after the events of 19 June, when F had the courage to disclose Mr Smith’s offending to her mother. Mr Smith’s arrest followed soon afterwards.
Electronic offending
[20] As a result of police executing a search warrant at Mr Smith’s home on 22 June 2021, Mr Smith came to be charged with nine offences in relation to objectionable publications. On Mr Smith’s devices Police identified that Mr Smith had recorded all of the offending that is the subject of the preceding charges. Mr Smith had grouped the offending into folders and sub-folders with labelled categories. A total of 1,834 files were located including 288 movies and 1,546 images. Due to the nature of the objectionable material only a sample was analysed. The Police categorised the analysed material into three categories:
(a)A — involved penetrative sex with F (20 images/videos);
(b)B — images involving non-penetrative sexual activity with F (41 images/videos); and
(c)C — indecent images not falling within A or B (39 images).
[21] Apart from material relating to F, Mr Smith’s devices contained in excess of 180,000 images, videos, cartoons and stories which contained child sex exploitation material. They also contained videos and images involving bestiality. Again, only a sample was analysed. The images involved girls between infancy and 16 years of age. They showed sexualised poses, children performing sexual acts on adult males and females, adult males and females performing sexual acts on children, children performing sexual acts on other children and children performing sexual acts on themselves.
[22] Mr Smith had categorised and placed into folders the material and in some cases labelled it “to sort”.
[23] Mr Smith, in relation to this material, engaged with other paedophiles online. They mutually watched children being raped and commented on it.
[24]The analysed sample contained:
(a)A — involving penetrative sex, sadism and bestiality (4,500 images/videos);
(b)B — images involving non-penetrative sexual activity (1,000 images/videos); and
(c)C — indecent images not falling within A or B (5,000 images).
Offending against a child then outside New Zealand, some 18 months before he began grooming F
[25] Mr Smith’s final charge (sexual conduct with a child outside New Zealand) derived from an overseas trip made by Mr Smith in June 2018. He joined an online social platform and communicated with two girls between seven and 10 years of age. He groomed them online and instructed them to perform sexual acts on themselves and each other, which they did. The acts included inserting objects, including a marker pen, into their vaginas and posing for him explicitly. Mr Smith’s device showed him
on a split screen with the victims. It details what he was telling them to do, offering words of encouragement when they complied with his requests.
The sentencing judgment
[26] Judge Neave, sparing the victim’s parents further distress, noted the facts were set out in a (19 page) summary of facts which his Honour briefly summarised.
[27] The Judge had before him victim impact statements from both the victim’s parents and from the experienced social worker who had been working closely with the victim for six months since Mr Smith’s offending was disclosed. The Judge identified the significant harm suffered by the child and the undeserved guilt and blame her parents were experiencing.
[28] The Judge recognised that the offending, although occurring over a shorter period (five months) compared to other cases, involved the “full gamut of indecencies”. He identified Mr Smith’s conduct as involving the greatest breach of trust imaginable. He noted that the objectionable material seized was one of the biggest caches of that kind of material discovered.
[29]The Judge concluded that Mr Smith’s behaviour had been truly depraved.
[30] The Judge turned to R v AM (CA27/2009), the guideline judgment applying to Mr Smith’s offending.2 The Judge identified the offending against F (other than the objectionable publications) as falling within the low end of rape band four, justifying a starting point of 16-20 years as identified in AM. The Judge referred to the culpability assessment factors identified in AM and found the following factors to be present to a very significant degree:
(a)planning and premeditation;
(b)the vulnerability of the victim;
2 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
(c)the harm to the victim;
(d)the scale of the offending (in particular where there is more than one incident or extended abuse over a prolonged period); and
(e)the breach of trust.
The Judge, bearing in mind that the assessment was not only of the effects of the rape offences, also took into account the other acts of sexual violation, other indecencies and the filming of F and found that the least sentence that could be imposed involved a starting point for that offending of 18 years’ imprisonment.
[31] The Judge considered a three year starting point as proposed by the Crown for the offending outside New Zealand to be “generous” but adopted that approach. In relation to the objectionable publications involving persons other than the complainant, the Judge was prepared to adopt a four year starting point (taking into account the need to avoid double counting in relation to the other objectionable publication charges involving F).
[32] In adopting the starting point of 25 years, the Judge took note of the High Court’s approach to the sentencing of the second-named defendant (Mr Williams) in R v Rose.3 For Mr Smith, Mr McCormick had submitted that the global starting point (26 years, taking into account totality) for Mr Williams represented the high water mark for offending such as this. Mr McCormick emphasised the scale of Mr Williams’ offending compared to that of Mr Smith — involving seven young victims over a prolonged period of time and more charges of rape and other sexual acts upon the children. Judge Neave observed there was a need to avoid some kind of devaluation exercise, noting the distinguishing features of Mr Smith’s offending (the filming [by cameras throughout the house], the overseas offending and the huge amount of objectionable material).
[33] In relation to Mr Smith, the Judge reduced the cumulative starting point of 25 years to 23 years to have regard to totality.
3 R v Rose [2021] NZHC 2110.
[34] For Mr Smith’s guilty plea, the Judge considered a discount of 22.5 per cent appropriate. The Judge did not reduce the guilty plea discount for the fact Mr Smith had numerous appearances before entering his guilty pleas (having regard to the way in which the Crown case developed) but had some regard to the overwhelming nature of the case and a conclusion that the filming of Mr Smith’s actions had made the avoidance of trial less significant for the complainant.
[35] Finally, the Judge provided a one year discount (approximately four per cent) for Mr Smith’s good character and the difficulties that he would experience in custody. The Judge took into account, in relation to character, Mr Smith’s dealing with objectionable material for many, many years (reaching a point around the age of 40 years when he abandoned his earlier collection). In relation to Mr Smith’s imprisonment, the Judge took into account the likelihood of lengthy periods of, “essentially”, solitary confinement.
[36] The discounts produced an end sentence of 17 years. That sentence was imposed on the (17) charges involving rape or unlawful sexual connection, with shorter, concurrent sentences on the remaining charges.
[37] His Honour then imposed a minimum period of imprisonment (MPI) of 40 per cent. He observed that such was required to mark the level of seriousness of the offending as well as the community condemnation of it.
Principles on appeal
[38] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal identified in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Submissions
Appellant’s submissions
[39] For Mr Smith, Mr McCormick submitted there were two errors in the Judge’s calculation of an appropriate sentence, namely in setting the starting point and the guilty plea discount. In Mr McCormick’s submission the global starting point ought to have been 22–23 years and, when adjusted for totality, it should have been 20–21 years. Secondly, Mr McCormick submitted there ought to have been a full guilty plea credit of 25 per cent.
Starting point
[40] Mr McCormick maintained the Judge, in setting a starting point, had placed too much emphasis on AM7 and insufficient weight on a number of other authorities discussed at sentencing, including particularly R v Rose.8 Mr McCormick submitted that consideration of the following cases should have led to a different starting point:
(a)R v Rose — (global starting point of 26 years’ imprisonment for Mr Williams) while the cases shared aggravating features of planning and premeditation; the vulnerability of victims; the scale of the offending; the breach of trust; and the degree of violation, distinguishing features in Mr Smith’s conduct are less premeditation and planning; a single victim; a much shorter period of offending (seven months as against five years).
(b)R v Marshall9 — (global starting point of 23 years’ imprisonment, reduced to 20.5 years for totality) — Mr McCormick, while accepting
6 Ripia v R [2011] NZCA 101 at [15].
7 R v AM, above n 2.
8 R v Rose, above n 3.
9 R v Marshall [2020] NZHC 1271.
the physical acts in Marshall were similar and there was less objectionable material, submitted the three to four year period of offending made the harm caused by the offending greater and, involving coerced bestiality, was more depraved.
(c)Ellmers v R10 — (starting point of 25 years’ imprisonment) (minimum period of 20 years’ imprisonment, with preventive detention, reduced to 15 years) — Mr McCormick noted Wylie J in the High Court had (before discussing preventive detention) calculated the appropriate starting point finite sentence, proceeding from a sentence of 25 years (comprising 19 years on the lead sexual violation offending; a five year uplift in relation to offending against an infant together with objectionable publication charges and a one year uplift on account of previous similar offending). No reduction was identified for totality. Mr McCormick submitted Mr Ellmers’ offending was significantly more serious than Mr Smith’s.
(d)R v Palenski11 — (global starting point of 15 years) — Mr McCormick noted the violation and indecency offending had similarities although it was assessed as falling at the lower level of rape band three (12–18 years). Mr McCormick accepted Palenski involved clearly lower culpability than in this case.
(e)S (CA676/2018) v R12 — (30.5 year starting point reduced for totality to 18 years, with a 55 per cent MPI) — Mr McCormick noted the greater scale of offending in S v R, involving five complainants over a nine to 10 year period.
[41] Having regard to the cases cited, Mr McCormick submitted the appropriate starting point on Mr Smith’s sexual violation charges was 16 years’ imprisonment with uplifts of three to four years each for the two other sets of offending. Hence Mr
10 Ellmers v R [2013] NZCA 676.
11 R v Palenski [2020] NZHC 1621.
12 S (CA676/2018) v R [2019] NZCA 395.
McCormick’s submission that the global starting point ought to have been 22–23 years, reduced to 20–21 years for totality.
Credit for guilty plea
[42] Mr McCormick emphasised that Mr Smith had entered his pleas as soon as the Crown agreed to a proposal which involved two charges being withdrawn and representative charges being applied in two instances. The Crown had considerably revised the charges initially laid by the Police, given the enormous amount of material that had to be reviewed.
[43] Mr McCormick noted that Mr Smith obviously had to consider the undoubted strength of the Crown case but submitted that there ought to have been credit allowance for his not putting the Crown to proof in relation to matters which were contestable, such as whether there had been penetration.
[44] Mr McCormick submitted Mr Smith’s pleas should have been regarded as made at the first reasonable opportunity in a very difficult case. He noted Mr Smith’s acceptance of the summary of facts in its original form notwithstanding the Crown’s amendment to the charges.
Crown submissions
[45] Ms Elsmore submitted while the Judge’s global starting point of 25 years’ imprisonment might be described as stern when compared to some cases, it was within range. Ms Elsmore noted in particular the fact that some of the offending against the victim — further violations and indecencies — fell outside the (AM) rape bands and that the documenting of all the offending against the victim constituted a serious aggravating factor.
[46] Ms Elsmore submitted that, in assessing the overall starting point, it is important to have regard to the Judge’s modest level of adjustment (four years) for the objectionable publication charges.
[47] Ms Elsmore submitted that, given the strength of the Crown case against Mr Smith, a deduction from the full 25 per cent for a guilty plea was appropriate.
[48] Finally, Ms Elsmore submitted that the end sentence of 17 years’ imprisonment was appropriate. She noted that the allowance of some discount for the way Mr Smith would have to serve his prison sentence was, with the benefit of hindsight, generous in that Mr Smith is now serving his sentence in a mainstream unit.
Analysis
[49] The lead offending of Mr Smith — that against F — was depraved to an extreme degree. It was exacerbated by the two other distinct sets of offending: first the sexual conduct with two children outside New Zealand, and second the vast collection of material involving child rape and other abuse, which was the subject of three representative charges.
[50] The Judge was correct to first structure his analysis of the lead offending by reference to the sentencing bands in AM.
[51] It was equally appropriate that the Judge exercised care in not drawing direct comparisons with previous sentencing decisions when the particular features of offending are so variable. As was observed by Muir J, in sentencing Mr Williams in the case relied upon by Mr McCormick:13 “[t]he unique circumstances of this case mean that analogies with previous case law are at best imperfect”.
[52] The concern with reasoning based on imperfect analogies is, as observed by Judge Neave, that the culpability of the offender in the present case might be viewed as less serious overall because the absence or less aggravating nature of some factors jeopardises the appropriate overall assessment of culpability.
[53] Therefore, the Judge correctly began by focusing on the culpability assessment factors present in Mr Smith’s offending in order to place the lead offending (against
F) within rape band four, as identified in AM.
[54] Mr McCormick responsibly did not take issue with the Judge’s identification of five factors (planning and premeditation; the vulnerability of the victim; the harm
13 R v Rose, above n 3, at [80].
to the victim; the scale of the offending, with more than one incident over a prolonged period; and the breach of trust).
[55] The culpability of Mr Smith in offending against F was ultimately assessed by the Judge as mid-range in rape band four (that is 18 years). That was a justified conclusion given none of the culpability factors were present only to a marginal degree and several factors were strongly present.
[56] The Judge’s approach to then assessing an uplift for the objectionable publication offending (other than in relation to F) and the sexual conduct with two children outside New Zealand was conventional and appropriate. Those were discrete sets of offending calling for a discrete assessment of their culpability.
[57] Mr McCormick did not submit that, had those two sets of offending stood alone, the uplifts of three years and four years respectively would have been outside the range. The three years for sexual conduct outside New Zealand was arguably at the highest end of the range (being the maximum period of imprisonment) whereas the four years for the objectionable publications charges was towards the bottom of an acceptable range (on my assessment a range of four to five years).
[58] The tenor of Mr McCormick’s submissions, with the emphasis upon previous cases, was that Mr Smith’s cumulative offending was less culpable than that in R v Rose, Ellmers, Marshall and S (CA676/2018).
[59] I view the primary assistance provided by these various cases as relating neither to the starting point for the lead offending (in this case that against F), nor to the initial uplifts in relation to the other two aspects of Mr Smith’s offending, but instead to the overall approach to the sentence when adjusted for totality (and before Mr Smith’s mitigating factors including his guilty plea were taken into account).
[60] The Judge’s calculation of an adjusting starting point for Mr Smith (having regard to totality) was 23 years as compared to that which Mr McCormick submitted was appropriate, namely 20–21 years.
[61] If, as I have found, the starting point of 18 years was appropriate in relation to the lead offending against F, it would be difficult to conclude (without comparable cases consistently cutting across such a conclusion) that an assessment of Mr Smith’s culpability having regard to the other offending and totality considerations should not reasonably produce an adjusted starting point five years longer.
[62] I do not consider the cases primarily relied upon by Mr McCormick deflect from that assessment.
[63] The correct comparison for starting points between the defendant Williams in Rose and Mr Smith in this case is between 26 years (Williams) and 23 years (Mr Smith). Judge Neave correctly recognised that there were some additional (aggravating) aspects of Mr Williams’ offending but that Mr Smith’s offending also involved aspects not present in Mr Williams’ offending. Those additional factors included the carefully orchestrated filming of Mr Smith’s offending; the huge amount of objectionable material then accumulated both in relation to F and other victims; and the involvement of overseas offending. The three year difference between Mr Smith’s starting point and that for the defendant Williams is not so close as to be insupportable. Mr McCormick’s focus on F as Mr Smith’s “one victim” (as contrasted with Mr Williams’ seven victims) overlooks the fact that Mr Smith had two overseas victims. Mr McCormick’s focus on the seven months of offending against F overlooks the grooming through the year 2020, the 2018 offending involving the two children outside New Zealand and the extended periods of offending suggested by the sheer volume of Mr Smith’s stored objectionable publications.
[64] In Ellmers, Wylie J found the lead offending (sexual violation charges against two victims) to fall at the high end of rape band 4, leading to a starting point of 19 years’ imprisonment, with a five-year uplift for indecencies relating to an infant and 29 charges relating to objectionable publications. Before the addition of a year for previous convictions, the overall starting point was therefore 24 years. While Ellmers involved some different features (an infant being one of the victims, abuse occurring with stupefied victims), the sheer volume of Mr Smith’s objectionable publication material is itself a distinguishing feature. The one-year margin between the adjusted starting points in Ellmers and this case was not inappropriate.
[65] In Marshall, the initial starting point of 23 years (18 years for the lead sexual violation and other offences and five years on a bestiality charge) reduced to 20 years and six months for totality reasons. Here, the adjusted starting point of 23 years took into account the fact there was more than one victim and also the vast quantity of objectionable material.
[66] I do not find the case of S (CA676/2018) to be helpful to the present consideration — the offending against the five victims in that case was consistently in band 3 and distinctly (including on a totality basis) at a much lower level of culpability. The sentencing in Palenski — in relation to offending at the lower end of band 3, is similarly of little assistance in this case.
[67] I am not persuaded by reference to any of the discussed cases that the Judge’s adjusted starting point was inappropriate.
[68] That leaves for consideration the discount allowed by the Judge for Mr Smith’s guilty pleas, before turning to consider whether the end sentence was manifestly excessive.
Guilty plea discount
[69] The issue is whether the Judge’s allowance of a 22.5 per cent discount for Mr Smith’s guilty pleas was insufficient.
[70] The fact Mr Smith pleaded guilty is a mandatory consideration at sentencing.14 The figure of 25 per cent represents a cap.15 Against that background, the Court has to exercise a discretion in light of the circumstances surrounding guilty pleas.
[71]It is clear the Judge carefully considered the circumstances.
[72] The Judge did not limit the discount by reason of the late timing of the guilty pleas (after some four appearances over a five month period), reasoning that the pleas “perhaps came as close [to the first opportunity] as was reasonable” — although a
14 Sentencing Act 2002, s 9(2)(b).
15 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
different view could have been taken. More significantly, the Judge rejected the Crown’s submission that the discount should be significantly limited (to 15 per cent) on account of the strength of the Crown case. The Judge’s conclusion that a 22.5 per cent discount was appropriate did not involve adoption of a simplistic “overwhelming case” approach. The Judge recognised the strength of the Crown case but also the fact that Mr Smith could have put the Crown to proof in relation to some issues such as penetration. But he also saw strength in the Crown’s submission that the fact Mr Smith had comprehensively filmed his entire offending against F served to minimise the opportunity for the defence to impugn her oral evidence. These were relevant considerations in the assessment and formed the basis of the exercise of his discretion.
[73]The Judge cannot be said to have erred in setting the guilty plea discount at
22.5 per cent. Indeed, a discount set at 20 per cent would have been within range.
A manifestly excessive sentence?
[74]Mr Smith was sentenced to 17 years’ imprisonment with a 40 per cent MPI.
[75] The ultimate test is whether that sentence was manifestly excessive. Standing back, having regard to the tariff approach set out in AM for the lead offending, the two discrete sets of offending and the mitigating factors properly taken into account, the end sentence cannot be characterised as manifestly excessive.
Outcome
[76] The grounds of appeal are not established. The MPI imposed (a percentage of the period of imprisonment) was not the subject of appeal.
Order
[77]The appeal is dismissed.
Osborne J
Solicitors:
Brandts-Giesen McCormick, Christchurch Crown Solicitor, Christchurch
SCHEDULE
Section ” Maximum Peualty
Sexual violation by unlawful sexual connection (x13)
2 Sexual violation by rape (x3)
3 Sexual violation by rape
(representative)
Section 128(1)(b) & 20 years’ imprisonment
128B
Crimes Act 1961
Section 128(1)(a) & 20 years’ imprisonment
128B
Crimes Act 1961
Section 128(1)(a) & 20 years’ i mprison me nt
128B
Crimes Act 1961
4 Daing an indecent act on
a child (x10)
5 Doing an indecent act on a child (representative)
Section 132(2)
Crimes Act 1961
Section 132(3)
Crimes Act 1961
ID years' imprisonment
10 years’ imprisonment
6 knowingly made objectionable publications — Category A, in relation to the victim
(representative)
7 Knowingly made ebjectionable publications — Category B, in relation to the victim
(representative)
8 Knowingly made ob]ectionable pubications - Category C, in relation to the
VlCtIITI
Section 123(1)(a) 14 years’ imprisoninent
and 124
FÏlms, Video5 and Publications Classification Act 1993
Section 123(1)(a) 14 years' imprisonment
and 124
Films, Videos and Publications Classification Act 1993
Section 123(1)(a) 14 years’ imprisonment and 124
Films, Videos and
Publications
(representative)
Classification Act
1993
9 Possession of o!›jectionable publications — Category A, in relation to the victim
(representative)
Section 131(1) and i31A(1)
Films, Videos and Pf‹btications Classification Act
1993
10 years’ iniprisontceist
‹r $50,000 fine
10
Possession of objectionable publications — Category B, in relation to the victim
(representdtive)
Section 131(1) and 131A(1)
Films, Videos and Publications Classlflcation Act
1993
10 years’ imprisonment
car 550,000 fine
11
Possession of objectionable publications - Category C, in relation to the victim
(representative)
Section 131(1j and 131A(1)
Films, Videos and Publications Classification Act
1993
10 years’ imprisonment ar $50,000 fine
12
Possession of Dbjectionable publications — Category A
(representative)
Section 131(1) and 131A(1)
Films, Videos and Publications Classification Act
1993
10 years' Imprisonment or $5O,000 fine
13
Possession of objectionable publications — Category B
(representative)
Section 131(1) and 131A(1)
Fllms, Videos and Publications Classification Act
1993
10 years' imprisonment our $50,000 fine
14
Possession of objectionable publications Category C
(representative)
Section 131(1) and 131A(1)
Films, Videos and Publications Classification Act
1993
10 years’ imprisonment or $50,0D0 fine
15
Sexual conduct with a child outside New Zealand
Section 144A(1)(a) and (2)(c)
Crimes Act 1961
10 years’ imprisonment
0
6
0