Stewart v Department of Internal Affairs
[2014] NZHC 2209
•11 September 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-470-17
CRI-2014-470-18 [2014] NZHC 2209
BETWEEN GREGORY TODD STEWART
Appellant
AND
DEPARTMENT OF INTERNAL AFFAIRS
Respondent
Hearing: 1 September 2014 Counsel:
W T Nabney for Appellant
J J Rhodes for RespondentJudgment:
11 September 2014
JUDGMENT OF KATZ J
This judgment was delivered by me on 11 September 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Jackson Reeves & Friis, Tauranga
Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga
Counsel: W T Nabney, Tauranga Chambers, Tauranga
STEWART v DEPARTMENT OF INTERNAL AFFAIRS [2014] NZHC 2209 [11 September 2014]
Introduction
[1] Gregory Stewart pleaded guilty in the District Court at Tauranga to
16 charges under the Films, Videos, and Publications Classification Act 1993 (“Act”). On 26 May 2014 he was sentenced to two years and two months’ imprisonment by Judge T R Ingram. He now appeals that sentence, on the basis that it is manifestly excessive.
[2] The charges against Mr Stewart fell into three broad categories:
(a) Making three child pornography DVDs, knowing or having
reasonable cause to believe that they were objectionable.1 These
charges relate to Mr Stewart compiling three DVDs of child pornography film clips from material he had downloaded from the internet. The maximum penalty is 10 years’ imprisonment. (b)
Possession of child pornography images, knowing or having reasonable cause to believe that they were objectionable.2 These 12
charges represent a sample of over 10,000 images found in Mr Stewart’s possession of girls aged mainly from about eight to 12 years in sexualised poses. The maximum penalty is five years’ imprisonment. (c)
Making one bestiality DVD, knowing or having reasonable cause to believe that it was objectionable.3 The bestiality film was not
downloaded from the internet, but was original source material produced by Mr Stewart. The DVD shows an adult woman having sexual intercourse with a dog. The maximum penalty is 10 years’ imprisonment. [3]
Mr
Stewart says that the starting point of three and a half years’
imprisonment adopted by the Judge was too high. He says that the correct global
1 Pursuant to ss 123(1)(a) and 124(1) and 124(2)(a) of the Act.
2 Pursuant to ss 131(1) and 131A(1) and(2) of the Act.
3 Pursuant to ss 123(1)(a) and 124(1) and 124(2)(a) of the Act
starting point for the lead offending of making objectionable publications (the four DVDs) was three years’ imprisonment. If that starting point was adopted, and the same discounts applied, then the end sentence would have been less than two years imprisonment. This would have brought the sentence within the range where home detention could have been considered as a sentencing option. Mr Stewart submitted that this Court should substitute a sentence of home detention for his sentence of imprisonment.
District Court decision
[4] Judge Ingram noted that both counsel agreed that a starting point of imprisonment was appropriate. Mr Nabney, on behalf of Mr Stewart, had suggested a starting point of three years on the four charges of making objectionable publications. The Crown suggested a starting point of three years and six months.
[5] The Judge considered the Sentencing Act 2002 and stated his obligation to hold Mr Stewart accountable for what he had done and to promote a sense of responsibility in him. The Judge considered that this type of material would not be available were it not for people who consumed it and, as a consumer, Mr Stewart was a party, in a way, to the offence of those who produced the material originally. The Judge considered the interests of the victims, and that Mr Stewart’s conduct needed to be denounced and others needed to be deterred by the sentence imposed. He stated that the community needs protection from this type of exploitation, but at the same time Mr Stewart’s rehabilitative needs needed to be taken into account. While not at the most serious end of this type of offending, it was in the middle ground.
[6] The Judge identified the aggravating features as the serious harm caused to the child victims and the element of premeditation. The Judge was satisfied that in all the circumstances the higher starting point advocated by the Crown was appropriate. The Judge cited R v Zhu, Police v He, R v Spark and R v Clode in
support of his conclusion.4
4 R v Zhu [2007] NZCA 470; Police v He DC Hamilton CRI-2008-019-7958, 6 March 2009;
R v Spark [2009] NZCA 345, [2009] 3 NZLR 625 and R v Clode [2008] NZCA 421, [2009] 1
NZLR 312.
[7] The Judge then reduced the sentence by 25 per cent (10 months) for Mr Stewart’s guilty pleas and then allowed a credit of three months for Mr Stewart’s cooperation with investigators and a further three months for his remorse and otherwise good character. This brought the sentence down to two years and two months’ imprisonment.
[8] As this sentence was not in the range where home detention was an available sentencing option the Judge was not strictly required to consider whether home detention was appropriate. Given, however, that counsel for Mr Stewart had strenuously advocated for a sentence of home detention, the Judge had addressed this issue at the outset of his judgment. He concluded that home detention would not be appropriate.
How should the sentencing exercise be approached on appeal?
[9] The Judge considered the four making objectionable publications charges together (the three child pornography DVDs and the bestiality DVD) and then sentenced the 12 separate possession of child pornography charges concurrently.
[10] Mr Stewart submitted on appeal that a two year starting point was appropriate for the bestiality DVD and a one year starting point for the child pornography DVDs, resulting in a cumulative starting point of three years imprisonment. He agreed with the Judge that the possession charges should then be sentenced concurrently.
[11] The Crown supported the approach taken by the Judge, but acknowledged that this is a case that lends itself to several possible sentencing approaches. Whichever specific approach is taken, however, the Crown’s position was that the end result reached by the Judge was not manifestly excessive.
[12] In my view, the sentencing approach that will best enable the Court to reach an end sentence that reflects Mr Stewart’s true culpability is to first consider an appropriate sentence for the overall child pornography offending (both the making of the three DVDs and the 12 separate possession charges). The lead child pornography offending is the making of the three child pornography DVDs. That
activity must be assessed, however, within the broader context of Mr Stewart’s
overall child pornography offending and his related internet behaviour.
[13] The making of the bestiality DVD is offending of a significantly different nature. Unlike the child pornography offending, it was not an internet based activity. It involved filming an acquaintance of Mr Stewart’s having sex with a dog. Unlike the other charges of making objectionable material, this charge related to the making or production of new “source” objectionable material. It involved a consenting adult woman, however, rather than vulnerable children. Accordingly the level of harm (and therefore culpability) involved is necessarily different. The making of the bestiality DVD should therefore be considered separately and a cumulative sentence imposed for that offending. Indeed, this was the approach advocated by Mr Stewart on appeal.
[14] Finally, the issue of totality will need to be considered and any necessary adjustments made to the end sentence.
The 2007 United Kingdom Sentencing Guidelines
[15] Both in New Zealand and the United Kingdom, offences relating to child pornography fall on a spectrum. All such offending is, of course, serious, in that it involves the exploitation of highly vulnerable children for the sexual gratification of adults. Nevertheless, there are differing levels of seriousness. Both legislation and case law tend to see “mere” possession of objectionable material for personal use as being at the lower end of the spectrum, although it will vary in seriousness depending on the nature of the content and the age of the victims. Such possession is punishable by up to five years’ imprisonment in both New Zealand and the United Kingdom.
[16] Distribution or supply of such materials is generally seen as being a step up in terms of seriousness. “Production” of child pornography is at the most serious end of the spectrum although, of course, the level of seriousness will vary from case to case. Production offences are punishable by up to 10 years’ imprisonment in both New Zealand and the United Kingdom.
[17] Given the similarities between the United Kingdom and New Zealand legal frameworks for child pornography offending (including the same maximum sentences), New Zealand courts have often found the guidelines on child pornography offending issued by the United Kingdom Sentencing Guidelines Council to be of some assistance. The Court of Appeal in R v Zhu considered a predecessor version of the Council’s 2007 sentencing guidelines for sexual offences (“UK Guidelines”) and expressed the view that they provided a useful guide for New Zealand judges when determining sentences for child pornography related offending. The Court of Appeal noted, however that the United Kingdom categories should not
necessarily be adopted in any given case.5 The UK Guidelines need to be applied
flexibly, to the extent that they are considered helpful in any given case.
[18] It was accepted by both parties in the District Court that some guidance could be obtained from the UK Guidelines.6 There are two aspects of the UK Guidelines that could potentially be of assistance in this case. First, the UK Guidelines set out five different categories of child pornography materials, to assist in determining the seriousness of the particular material before the Court. Secondly, the UK Guidelines set out suggested sentence start points and end ranges for different types of offending. These generally reflect the specific offence (for example possession, distribution or production) and the volume and type of material involved, with
reference to the five categories I set out below.
[19] The five categories of child pornography set out in the UK Guidelines
(in escalating levels of seriousness) are:
(1) Images depicting nudity or erotic posing, with no sexual activity. (2) Sexual activity between children or solo masturbation by a child.
(3) Non penetrative sexual activity between adults and children.
5 R v Zhu at [15].
6 New child pornography sentencing guidelines were introduced in the United Kingdom earlier this year. It was common ground, however, that I should be guided by the 2007 UK Guidelines that were before the sentencing Judge, to the extent that I find them helpful. I note, however, that I have reviewed the 2014 UK Guidelines. They have been simplified and updated in some respects. There is nothing in them, however, that would have impacted on my view as to the appropriate outcome of this appeal.
(4) Penetrative sexual activity between children and adults. (5) Sadism or bestiality.
[20] I have found these broad category descriptions to be of assistance in determining the relative “seriousness” of the material that is the subject of the charges against Mr Stewart. I have found the starting points and end ranges suggested in the UK Guidelines to be of somewhat less assistance. The two guidelines that are potentially relevant, are as follows:
(a) First, where an offender is involved in the “production” of level 4 or 5 images, a starting point of six years’ imprisonment is recommended, with a sentencing range of four to nine years’ imprisonment.
(b)Secondly, where an offender is in possession of a large quantity of level 4 or 5 material, for personal use only, a starting point of 12 months’ imprisonment is recommended, with a sentencing range of 26 weeks to two years’ imprisonment.
[21] The reason that these guidelines are of somewhat limited assistance in this case is that, in the United Kingdom, charges of making objectionable material (commonly referred to as “production” offences) are limited to the creation or production of original source material. That is not the case in New Zealand. In New Zealand the offence of making objectionable material is much broader than it is in the United Kingdom.
[22] In Kellet v Police, Chisholm J held that a person can “make” objectionable material in terms of s 123(1)(a) of the Act not only when they produce original source material themselves (for example by directly photographing or filming child victims) but also if they create something new from pre-existing material by applying some element of compilation or creativity.7 Accordingly, if there is some degree of editorial involvement that goes beyond simple copying, then a person in New Zealand can be charged with “making” an objectionable publication. Prior to
Kellet persons who created their own compilations of objectionable material for personal use were charged solely with possession offences (as would be the case in the United Kingdom). Following Kellet, such conduct has also given rise to the laying of more serious “making” objectionable material charges. The offence of producing or making objectionable material therefore covers a much broader range of conduct in New Zealand than in the United Kingdom.
[23] Further, in my view, the UK Guideline that recommends a starting point of 12 months’ imprisonment for possession of a large quantity of level 4 or 5 material sets the bar too low, in the New Zealand context. I note that 12 months’ imprisonment is the highest starting point specified in the UK Guidelines for any possession offence, although higher starting points (in the two to six year range) are recommended for various production, distribution or trading offences.
[24] I have difficulty with the proposition that possession of high volumes of the worst types of child pornography (levels 4 and 5) should only attract a starting point of 20 per cent of the maximum penalty (five years’ imprisonment). To directly apply such a guideline in New Zealand would not, in my view, accord with the intention of Parliament when it significantly increased the maximum penalties in 2005. Those amendments occurred against the backdrop of huge technological advances in the previous 10 years or so. These had, unfortunately, resulted in exponential increases in the volume and ready accessibility of child pornography, including many graphic sexual images involving very young victims.
[25] It is clear from the Parliamentary debates at the time that the key driver of change was Parliament’s concern regarding child pornography and its ready availability over the internet.8 This resulted in the maximum penalty for possession being increased from a fine to five years’ imprisonment and the penalty for making and/or distributing objectionable material being increased from one year to 10 years. Such drastic increases, in my view, send a clear message as to the seriousness with
which Parliament views this type of offending.
[26] Given this background, it is perhaps not surprising that sentencing outcomes in New Zealand, while often referring to the UK Guidelines, tend to adopt somewhat higher starting points for possession than that recommended by the UK Guidelines. For example, in Thompson v Police, Collins J expressed the view that possession of a large amount of material at levels four or five, without showing or distributing,
should attract a start point of between 12 months to three years’ imprisonment.9
(Other relevant cases are discussed at [51] – [56] below).
What is the appropriate starting point for Mr Stewart’s child pornography offending?
Starting proposition – all child pornography offending harms victims
[27] In determining the appropriate starting point for the making of the three child pornography DVDs I start with the observation that all child pornography offending is serious offending that harms victims. As the Court of Appeal observed in Zhu:10
We repeat the important message that such offending is not victimless. Each image involves the exploitation of a child. In some of the images the emotional and physical exploitation of the children is gross.
[28] The Chairman of the UK Sentencing Advisory Panel explained in a foreword to the Panel’s Report on child pornography sentencing (a precursor to the UK Guidelines) that:11
It is fundamental to our proposal that sentences for these offences should reflect the harm suffered by children who are abused and exploited by the production and distribution of indecent photographs. An offender sentence for possession of child pornography should be treated as being in some degree complicit in the original abuse which was involved in the making of the images. Sentences for possession should also reflect the continuing damage done to the victim or victims, through copying and dissemination of the pornographic images. Those who make or distribute the images bear a more direct responsibility for their eventual use, as well as for encouraging further production.
[29] It is now widely recognised that even after the physical abuse has come to an end, the continued distribution and circulation of child abuse images results in the
9 Thompson v Police [2012] NZHC 2029, at [15].
10 At [19].
11 Cited in Department of Internal Affairs v Wigzell HC Wellington CRI-2007-485-110,
20 November 2007 at [41].
ongoing victimisation and gross invasion of the privacy of the victims. Victims of such abuse have to live with the knowledge that images of their childhood abuse will continue to exist on the internet for the sexual gratification of strangers, in perpetuity. The continued existence and distribution of such images, and the total powerlessness of the victims to prevent their continued circulation, results in serious harm and distress.
[30] It is therefore not only the initial production of child pornography images that harms the victims, but also the ongoing distribution and possession of such images. Further, the production of child abuse images is fuelled by high levels of demand from internet users seeking to continually access new material, often involving younger and younger victims and escalating levels of abuse. This demand at the possession end of the offending scale feeds the ongoing production and supply of such material. Possession and distribution of child pornography (as opposed to the production of it) is far from a victimless crime, despite the views apparently held by
many offenders to the contrary.12
Aggravating features in child pornography offending cases
[31] The United States Sentencing Commission, in its recent 468 page Report to Congress on Child Pornography Offenses (“US Sentencing Commission Report”) identified three categories of offender behaviour that the Commission (following a comprehensive review of existing research and case law) believed encompassed the
primary relevant sentencing factors, namely:13
(a) The content of an offender’s child pornography collection and the nature of an offender’s collecting behaviour (in terms of volume, the types of sexual conduct depicted in the images, the age of the victims depicted, and the extent to which an offender has organised, maintained and protected his collection over time, including through
the use of sophisticated technologies).
12 For example in R v Spark [2009] NZCA 345 the Court of Appeal noted at [20] that Mr Spark held the view that what he was doing was “entirely for himself” and that the relevant offending was “victimless”.
13 United States Sentencing Commission Report to Congress: Federal Child Pornography offenses
(December 2012) at 320.
(b)The degree of an offender’s involvement with other offenders – in particular, in an internet “community” devoted to child pornography and child sexual exploitation.
(c) Whether an offender has a history of engaging in sexually abusive, exploitative, or predatory conduct in addition to his child pornography offending.
[32] The second and third factors are based on emerging knowledge and research regarding an offender’s “sexual dangerousness”. Although the US Sentencing Commission Report has not been specifically referred to in New Zealand case law (it was only released in 2012) the three key sentencing factors identified by Commission correlate fairly closely with the aggravating factors previously identified by courts in both New Zealand and the United Kingdom in relation to this type of offending. The Crown’s submissions on appeal focussed on issues that fell within categories (a) and (b) above. As Mr Stewart does not have any criminal history of sexual offending against children, factor (c) above is not relevant in this case.
Mr Stewart’s engagement with the online child pornography community
[33] I will first consider Mr Stewart’s engagement with the online child pornography community, before turning to focus more specifically on the content of his personal collection of child abuse materials and his collecting behaviour.
[34] The US Sentencing Commission Report noted that internet based child pornography communities not only operate as a forum for offenders to receive and distribute images, but also serve to validate and normalise the sexual exploitation of children. It observed that:14
Such communities thrive in Internet chat-rooms and bulletin board systems and also through the use of “closed” P2P file-sharing programs in which offenders directly communicate with each other. Not all child pornography offenders join such communities, and those who do vary in their level of engagement. The Commission’s data suggests that a significant minority of
14 At viii. See also Chapter 6 at 151 and footnote 70.
offenders (approximately one-fourth) have some level of involvement in such communities.
[35] An extensive history of searching for and acquiring child abuse images and material was uncovered from Mr Stewart’s computer and external hard drives by Department of Internal Affairs’ investigators. Evaluation of Mr Stewart’s online activity indicated that he has been actively engaged in seeking out child pornography on the internet through known child abuse websites, private usenet forums and child pornography related social networking sites, since at least 2008. His various internet profiles indicated that his particular area of interest was in girls in the eight to 12 year age group, although some of the material he downloaded depicted girls in a younger age group. Mr Stewart was an active participant in online child pornography groups.
[36] Specific examples of Mr Stewart’s online behaviour are set out in the agreed summary of facts. On one occasion Mr Stewart requested, by email (and subsequently received) a “catalogue of available girls-models” containing images of six clothed girls (aged about eight to 12 years) holding up signs with their names on them. Cost and payment methods for orders were discussed in subsequent emails. Mr Stewart requested that a hard core movie be made of one of the girls with an older man. He also sought advice (in the same email) as to how he could obtain “my own 10-12yo girl to live with me”. He asked what costs would be involved in procuring such a child to live with him and how complex and difficult it would be to arrange. Mr Stewart also discussed this in emails with other online users, stating to one that “I am desperately trying to find how I can buy myself a russian or ukrainian girl on the black market”.
[37] When questioned by investigators about such activity, Mr Stewart said that his inquiries as to having child abuse images or videos custom made for him had not resulted in any purchases. Nor did he intend to have sex with a child, but he was “intrigued about having sex with an underage girl”.
The content of Mr Stewart’s child pornography collection and his collecting behaviour
[38] Mr Stewart is clearly a committed collector of child abuse images, who has been offending for a number of years. He acknowledges that he is “addicted” to child pornography. During the last six years or so Mr Stewart has engaged in frequent and systematic online activity aimed at accessing, collecting and collating a vast collection of child abuse images. He created specific folders on his computer in which to store and download objectionable images. He also stored a number of images on an external hard drive, although efforts had been made to delete those images. It appears that in recent years Mr Stewart has also stored child pornography files in ‘the cloud’.
[39] Mr Stewart used modern internet technologies such as peer-to-peer (“P2P”) file-sharing programs (in particular BitTorrent) to search for and download images to build his child pornography collection. P2P file sharing involves the use of a software program or application that enables computers to share files easily over the internet. P2P networks enable users to connect directly to each other’s computers without having to use a third party intermediary. For example, rather than posting an image on a website for others to download, P2P file sharing lets two or more users swap files directly with one another.
[40] The US Sentencing Commission Report noted that the ascendance of P2P file-sharing programs has changed the way that typical offenders today receive and distribute child pornography. The report identified the most common mode of distributing child pornography today as “open” P2P file sharing, involving
impersonal and indiscriminate distribution to strangers.15
[41] Mr Stewart, however, advised investigators that he never intended to share child abuse images through BitTorrent and was not aware that he was doing so. As a result, he was not charged with distribution of child pornography. I note that appellate courts in the United States, where such issues have arisen much more commonly than they have in New Zealand, have generally taken a rather sceptical
view of claims by defendants that they did not realise that by participating in a P2P
15 Chapter 6 at 149-152.
file-sharing program they were making their own child pornography files accessible to others in the P2P network. For example, the Eighth Circuit has explicitly presumed that a defendant who used a P2P program that made his illegal files accessible to others in the P2P network knowingly did so, absent “concrete evidence of ignorance” on the defendant’s part.16 Mr Stewart, however, was not charged with distribution of child pornography, but only with the possession and making of such materials. I proceed accordingly.
[42] Traditionally courts have tended to view the size of an offender’s child pornography collection as a key aggravating factor. Due to developments in modern technology, however, it is now necessary to take a somewhat more nuanced view of this issue. Child pornography offending is now almost exclusively internet enabled. Cases involving hard copy print materials are rare to non-existent. The use of modern internet based technologies, such as P2P file sharing, facilitates the collection of high volumes of child pornography material with relative ease and within a short space of time. On the other hand, many offenders now appear to also be using modern technology to attempt to disguise their offending behaviour, including by storing material in the cloud. Accordingly the size of a collection in itself is now a somewhat blunt tool in assessing culpability. It is necessary to consider the size of a collection in the broader context of everything that is known about an offender’s online behaviour in order to assess the appropriate level of culpability.
[43] In this case, the size of Mr Stewart’s child pornography collection was significant. It included over 10,000 sexually explicit images of young girls, primarily in the eight to 12 years age range. Approximately 26 objectionable movies were also identified from DVDs and CDs seized. He made three DVDs of child abuse film clips. Seen in the broader context of Mr Stewart’s six year period of accessing and collecting child abuse images, the size of Mr Stewart’s collection is proportionate to his level of online activity and is therefore appropriately seen as an aggravating feature. His large collection of child abuse materials is not the result of
a brief foray into the world of child pornography. Mr Stewart has accessed and
16 United States v Dodd, 598 F 3d 449, 452 (8th Cir. 2010); United States v Glasgow, 682 F 3d
1107,110 (8th Cir. 2012), cited in the US Sentencing Commission Report at 33 and footnote 83.
collected child abuse images over an extended time period, dating back to 2008. His offending has occurred with frequency during this period.
[44] The content of Mr Stewart’s child pornography collection is also a seriously aggravating feature. Turning first to the three DVDs, they each have a creation date of 14 January 2012 and appear to have been made on Mr Stewart’s computer using the iMovie programme. The three DVDs comprise the following material: 17
(a) PTHC 1 (PTHC is an abbreviation commonly used in the internet
child pornography community for “pre-teen hard core”)18 contains
20 different movies joined in one compilation, totalling 57 minutes and five seconds. Two of the movies contain girls whose age is difficult to determine involved in sexual activity with adult males. The remaining 18 movies contain girls with ages ranging from about four years to 14 years old. Six of the movies in the compilation show four girls aged four to seven years of age and two girls aged seven to nine years of age, all being subjected to penile penetration (rape) by different adult males. In the other movies, young girls are subject to prolonged periods of fellatio, including ejaculation. A significant portion of the material accordingly falls within level 4 of the UK Guidelines.
(b)PTHC 2 contains four movies. The victims are respectively aged around between five and seven (V1), 12 and 13 (V2), six and eight (V3) and five and seven (V4 and V5). The first three movies (V1, V2 and V3) all involve penile penetration. The first movie also involves urination by an adult male over V1. The third movie includes V3 being blindfolded during sexual activity. The fourth movie does not involve penile penetration, but depicts V4 and V5 displaying their genitalia in what appears to be a directed display. The first three movies fall within levels 4 and 5 of the 2007 UK guidelines and the
fourth movie falls within level 1 or 2.
17 I have not viewed the DVDs. This summary is based on the agreed summary of facts.
18 US Sentencing Commission Report at 52 and footnote 62.
(c) PTHC 3 contains a movie of just over an hour and depicts a girl who is in her early to mid teens. The movie depicts various sexual activity with an adult male, including penile penetration. It accordingly falls within level 4 of the UK guidelines.
[45] The remaining 12 child pornography charges are of knowing possession of objectionable publications. Each of the 12 charges relates to a specific image. The twelve images that are the subject of the possession charges are, I was advised by counsel, intended to be broadly representative of the over 10,000 child pornography images that were found in Mr Stewart’s possession. These include 268 image files stored on his computer showing sexual images of girls ranging from seven years of age upwards (downloaded between April and July 2013). In addition over 10,000 images were found on an external hard drive. The images on the hard drive were downloaded between August 2008 and October 2012. Efforts appear to have been made to delete the images, but they had not been removed from the hard drive as the drive had not been overwritten. The specific images that are the subject of the possession charges appear to generally fall within levels 1 or 2 of the UK Guidelines, although one highly disturbing image falls within level 5, based on its description.
[46] The content of Mr Stewart’s collection of child pornography materials (including in particular the content of the three DVDs) is, in my view, the most aggravating factor in this case. The nature of the sexual acts depicted is wide- ranging. The movies include penile penetration (rape), young girls subjected to prolonged episodes of fellatio (including ejaculation), and urination by an adult male over a child. The majority of the victims appear to be pre-pubescent or in the early stages of puberty. Some are as young as four years’ old. The victims are clearly extremely vulnerable and have been exploited and abused in a horrific manner. The material includes a significant volume of level 4 material in terms of the UK Guidelines and even some level 5 material.
Setting the starting point
[47] Taking into account all of these factors, what is the appropriate starting point? Mr Nabney submitted that the three charges relating to the child pornography DVDs
are more akin to possession of objectionable material than manufacturing or production of it. Mr Stewart simply took pre-existing images that were available to him and burned them onto DVDs for his own personal edification. On that basis, Mr Nabney submitted that a starting point of one year’s imprisonment, based on the UK Guidelines, would be appropriate. The Crown submitted, on the other hand, that the Judge’s global starting point of three years six months for the making of all four DVDs (including the bestiality DVD) is correct.
[48] Applying the specific United Kingdom guideline for “production” offences to the three child pornography DVDs would result in a starting point of six years. In my view such a starting point would be too high (as the Crown accepted) given that the making of the three DVDs would not have constituted a production offence under United Kingdom law.
[49] On the other hand, a starting point of one year, based on the United Kingdom guideline for possession, would be too low, given that the relevant charges are making charges not possession charges. Mr Stewart’s engagement with the underlying material was active. He created a fairly sophisticated end product, using Apple’s iMovie programme. He created disc menus, applied music to the menus as well as cartoons or pictures depicting underage girls on the physical DVD itself. The reasons for Mr Stewart making the three DVDs are not clear, given that he already had access to the underlying material on his computer. Nevertheless, by copying highly objectionable material onto a new (and more readily accessible) medium, the risks of it potentially being distributed, viewed or copied by others were increased. Even if Mr Stewart did not himself intend to distribute the DVDs or show them to others with similar interests, there was an inevitable risk that others, including friends, associates or flatmates, might come across it them. There was also a potential risk that children might gain access to them at some future time, given the longevity of DVDs.
[50] Even if the making of the three DVDs was treated as being analogous to possession charges (which I do not accept), it is my view, for the reasons I have outlined at [24] to [25] above, that a starting point of one year would set the bar too low in the New Zealand context.
[51] Although there are no directly analogous cases, some guidance is provided by previous case law. In Hulme v R, the appellant had pleaded guilty to one charge of importing into New Zealand objectionable material and 20 charges of possession of objectionable material.19 The lead offending was the possession charges, as the maximum penalty for the importation charge was only a $5,000 fine (and the penalty ultimately imposed was a conviction and discharge). A starting point of three years
was adopted in the District Court for the possession charges, which was upheld on appeal.
[52] A three year six month starting point was adopted in Department of Internal Affairs v Betteridge, a case that involved charges of both distribution and possession.20
[53] I found Spark and Clode to be of limited assistance as the facts of those cases (which both involved production offending) were far removed from this case. I note Mr Nabney’s submission, however, that both of those offenders were more culpable than Mr Stewart and yet similar starting points were involved.
[54] R v Zhu involved the supply of various objectionable DVDs, including some showing children being raped. The commercial aspect was considered aggravating. The Court of Appeal held that the starting point of four years and six months’ imprisonment was within range for offending that ranged from level 2 to level 4 and probably 5 in terms of the UK sentencing guidelines. I accept that Mr Stewart’s culpability is less than that of Mr Zhu.
[55] In Barnes v New Zealand Police, Customs Service staff seized an iPhone during a search at a residential address.21 It contained 43 images of young girls being sexually abused and/or sexually exploited. Mr Barnes had sent those files to the iPhone. Twenty five images located amongst those files were selected to form the basis of a prosecution for supply objectionable publications. Over half (13) of
the supply charges related to level 1 material. In addition there were three level 2
19 Hulme v R [2012] NZHC 86.
20 Department of Internal Affairs v Betteridge DC New Plymouth CRI-2013-043-002190, 21
January 2014.
21 Barnes v New Zealand Police [2013] NZHC 3510.
images, three level 3 images, five level 4 images and one level 5 image. Mr Barnes’ laptop was subsequently seized and examined. It contained 294 files including coprophilia, urination, bestiality and young children being sexually abused and exploited. A number of movie files contained explicit footage of young children being raped, sexually violated, engaging in acts of bestiality, or being otherwise sexually exploited. Five images were selected to form the basis of a prosecution for possession of objectionable publications. One was a level five image and four were “otherwise objectionable” in that they involved bestiality, but did not depict children involved in that activity. On appeal Clifford J held that the Judge’s starting point of three and a half years’ imprisonment for the totality of the offending was “clearly available”.
[56] In Shaw v Department of Internal Affairs Mr Shaw was sentenced to two years and two months’ imprisonment on two charges of distributing objectionable publications and concurrent sentences of 18 months’ imprisonment on 19 charges of being in possession of objectionable material in District Court.22 The material included stills and movies of child sexual abuse. Starting points of two years and six months were adopted for the distribution charges, uplifted by nine months for prior convictions and possession charges.
[57] I have identified the aggravating features of Mr Stewart’s child pornography offending (both making and possession) at [33] – [46] above. They include the volume of material, the highly objectionable content of the DVDs (levels 4 or 5) and the image collection (generally lower level, but ranging up to level 5), the age of the victims and the serious harm they have suffered (and continue to suffer), Mr Stewart’s extensive involvement in the online child pornography community and the six year duration of his offending.
[58] In light of the case law I have referred to, and the aggravating features I have identified, it is my view that the appropriate “global” starting point for Mr Stewart’s child pornography offending is three years’ imprisonment. No two cases are
precisely alike, but in my view, Mr Stewart’s culpability in relation to the child
22 Shaw v Department of Internal Affairs HC Whangarei CRI-2010-488-5, 10 March 2010.
pornography charges is broadly similar to that of the offenders in Barnes, Hulme and
Betteridge.
[59] More specifically, an appropriate starting point for making the three child pornography DVDs is two and a half years’ imprisonment. A six month uplift should then be applied to reflect the totality of the child pornography offending, which includes the separate possession charges.
What is the appropriate starting point for the production of the bestiality DVD?
[60] The production of the bestiality DVD was distinct offending and should therefore be sentenced cumulatively. Indeed that was the approach that Mr Nabney took on appeal. He submitted that the appropriate starting point for making the three child pornography DVDs was one year’s imprisonment and the appropriate starting point of making the bestiality DVD was two years’ imprisonment, resulting in a cumulative starting point of three years’ imprisonment.
[61] Neither counsel were able to refer me to any relevant case law for guidance as to the appropriate sentence for making a bestiality DVD. Barnes v Police has some indirect relevance, in that four of the five possession charges in that case involved bestiality images involving adult women. Clifford J rejected the appellant’s submission that the images were “inconsequential” as they involved adult women rather than children. On the contrary, he referred to “serious nature” of the images. He found a global starting point of three and a half years’ imprisonment for 25 distribution charges (relating to child pornography) and five possession charges (four of them relating to bestiality) was within the appropriate range.
[62] In my view, given that the bestiality video involved a consenting adult woman, the level of harm is less than that involved in the child pornography offending (even taking into account that Mr Stewart was involved in the “creation” of new source material). Accordingly, Mr Nabney’s suggested starting point of two years’ imprisonment for the making of the bestiality DVD is, in my view, too high. Rather, I see the appropriate starting point as being in the six months to one year range. I propose to adopt the lower end of that range. As a result it is not necessary to make any further adjustments to reflect the totality of the offending. If I had taken
a higher starting point it would have been necessary, in my view, to adjust the overall sentence for totality.
[63] The overall starting point I reach is therefore one of three years and six months imprisonment, comprising three years for the child pornography offending and six months for the making of the bestiality DVD. I have accordingly reached the same overall starting point as the District Court Judge, albeit by a different route.
Adjusting the starting point
[64] The Judge allowed a three month discount for Mr Stewart’s willing co-operation with the Department of Internal Affairs and a further three months for Mr Stewart’s remorse and otherwise good character.
[65] The Crown took some issue on appeal with the extent of Mr Stewart’s claimed co-operation with the Department. Given the lack of factual clarity around this issue I am not prepared to interfere with the discount allowed by the sentencing Judge. Nor do I propose to interfere with the discount for Mr Stewart’s remorse and otherwise good character. Mr Stewart has acknowledged his addiction to child pornography and sought help for that, which the Judge was entitled to accept as a tangible demonstration of his remorse. The pre-sentence report also stated that he is remorseful. Any discount for previous good character is possibly generous, considering that the offending occurred over a six year period, but is within the Judge’s discretion.
[66] It was not contested that a 25 per cent guilty plea discount was appropriate.
[67] Applying these various adjustments I reach an end sentence of two years and three months’ imprisonment. The reason for the slight difference between my end sentence and that of the District Court Judge is simply due to the fact that the Judge applied the 25 per cent guilty plea discount prior to adjusting the starting point, rather than at the end of the process (in accordance with the guidelines set out in
R v Taueki ).23
23 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA), confirmed in R v Clifford [2012]
1 NZLR 23, (2011) 25 CRNZ 567 (CA).
[68] Given that the end sentence I have reached is almost the same as that imposed by the District Court Judge it follows that the sentence he imposed was not manifestly excessive. It was clearly within range.
[69] As the end sentence does not fall within the range where home detention is an available sentencing option it is not necessary for me to consider in any detail the submissions made on behalf of Mr Stewart in support of such a sentence. I note for completeness, however, that even if I had reached an end sentence of less than two years’ imprisonment I would not have been willing to substitute a sentence of home detention for that of imprisonment. Mr Stewart’s offending was serious. It involved accessing and collecting child abuse materials from the privacy of his own home. This was entirely home based offending.
[70] If home detention were granted it would be extremely difficult, if not impossible, to ensure that Mr Stewart could not access child pornography during his sentence, particularly given his apparent level of technological sophistication and the prevalence of internet enabled devices, including smart-phones. Mr Stewart has a lengthy history of accessing child abuse materials from his home. He acknowledges his addiction to child pornography. The least restrictive sentence that is appropriate in Mr Stewart’s case was clearly one of imprisonment. Home detention would be entirely inappropriate on the facts of this case. Further, it would not send an adequate message of deterrence to others who may be contemplating engaging in similar offending.
Result
[71] The appeal is dismissed.
Katz J
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