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Snell v R

Snell v R

Case [2022] NZHC 1627 12 July 2022

Sentencing

Mens Rea & Intention

Unconscionable Conduct

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000141

[2022] NZHC 1627

BETWEEN
GRAHAM DUNCAN SNELL

Appellant

AND

THE QUEEN

Respondent

Hearing: 4 July 2022

Counsel:

J-A Kincade QC and WJS Mohammed for Appellant TCT Riley and KFR Karpik for Respondent

Judgment:

12 July 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 12 July 2022 at 9.30 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Manukau. J-A Kincade QC, Auckland.
WJS Mohammed, Auckland.

SNELL v R [2022] NZHC 1627 [12 July 2022]

The case

[1] Graham Snell imported and possessed 306 objectionable publications involving the sexual abuse of children. He was sentenced to a term of two years and five months’ imprisonment. Mr Snell appeals. He contends the sentence should not have been greater than two years’ imprisonment, then commuted to home detention. The respondent argues the sentence is commensurate with the gravity of the offending.

[2] The area is difficult (beyond its subject matter). The maximum penalty was doubled in 2015 to mark Parliament’s condemnation of an “evil that abuses and re-victimises some of the most innocent and vulnerable amongst us”.1 Yet, no guideline judgment exists, the relevant case pool remains small, and, as another Judge has observed, “it is not easy to discern a line of consistent authority in this area”.2 Case comparison is also “difficult … given the varying circumstances and the different combinations of charges that are often brought”.3

[3] This judgment attempts to grapple with these issues in determining Mr Snell’s appeal. It is offered as something approaching guidance, at least until the Court of Appeal or this Court says more.

Background

[4] On 15 January 2020, Mr Snell, a teacher, arrived at Auckland International Airport after a one-year sabbatical in the United Kingdom. Mr Snell said he had nothing to declare. A Customs officer searched Mr Snell’s baggage, which contained a mobile telephone. The phone was examined by an electronic forensic investigator. This revealed objectionable publications depicting the sexual abuse of children, all of which were accessible for Mr Snell to view. Mr Snell was interviewed by Customs while still at the airport. He said he knew material of this nature was illegal, then exercised his right to silence. Mr Snell was arrested. The phone and a laptop were further examined.

1      (2 April 2015) NZPD 2891.
2      R v Lawes [2018] NZHC 2448 at [30] per Wylie J.
3      Robinson v Police [2017] NZHC 2655 at [50]. Mander J made the same point in Webb v R
[2016] NZHC 2966 at [57].

[5] Before discussing their content, readers should know our case law places some reliance on sentencing guidelines in the United Kingdom. These divide objectionable publications into three categories: A, B and C:

(a)A is the most serious. It captures penetrative sexual activity with a child or young person; sadistic sexual activity upon children; and bestiality involving children.

(b)B is the next most serious. It captures non-penetrative sexual activity…

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 Snell v R

Details

AGLC: Snell v R [2022] NZHC 1627
Case: [2022] NZHC 1627
Decision Date: 12 July 2022

CaseChat Overview and Summary

Graham Snell appeals his sentence of two years and five months’ imprisonment for possessing and importing objectionable publications. Snell contends the sentence should not have been greater than two years’ imprisonment, then commuted to home detention. The respondent argues the sentence is commensurate with the gravity of the offending. The starting point for sentencing in these cases has been difficult to determine, primarily because the relevant case pool is small and there is no guideline judgment. The Court of Appeal endorsed a United Kingdom guideline in 2007 and 2008, which categorised objectionable publications into five levels. That guideline recommended starting points of between six and 12 months’ imprisonment for possession of level 4 or 5 imagery. In 2015, the maximum penalty for possession of objectionable publications was doubled to 10 years’ imprisonment. No guideline judgment exists in New Zealand. The starting point for possession of objectionable publications should be between three and three and a half years’ imprisonment. The aggravating factors, collection size, and offence period are relevant to determining the starting point. The starting point of four years’ imprisonment is appropriate for Snell. The Court of Appeal rejected the proposition that a hierarchy of objectionable material exists. Each case must be assessed on its own merits. The offence period for Snell was approximately 20 months. The collection size was not small. It contained 306 objectionable publications, including 60 within category A. The aggravating factors identified in s 132A of the Act are all engaged. The starting point of four years’ imprisonment is appropriate. The appeal is allowed. The sentence is quashed. A sentence of two years and two months’ imprisonment is substituted. Snell is to surrender to the Auckland High Court and begin his term of imprisonment.

Orders