Terris v Police
[2019] NZHC 1525
•1 July 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-10
[2019] NZHC 1525
BETWEEN JEREMY JAMES TERRIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 June 2019 Counsel:
P J Ross for appellant
A R T Garrick for respondent
Judgment:
1 July 2019
RESERVED JUDGMENT OF DOBSON J
[1] On 18 July 2018, the appellant (Mr Terris) was sentenced in the District Court at Wellington by Judge Hinton on two representative charges of knowing possession of objectionable material.1 The charges were laid under ss 131 and 131A of the Films, Videos, and Publications Classification Act 1993, attracting a maximum sentence of 10 years’ imprisonment or a fine of $50,000.
[2] At the same time, Mr Terris was sentenced on four charges of breach of a protection order and one charge of breach of release conditions.
[3] The Judge imposed sentences of 13 months’ imprisonment on the convictions for possession of objectionable material, a cumulative sentence of seven months in relation to breaches of the protection order and a concurrent sentence of two months for breach of release conditions. The prison sentence for the knowing possession of
1 Police v Terris [2018] NZDC 15700.
TERRIS v POLICE [2019] NZHC 1525 [1 July 2019]
objectionable material rendered Mr Terris’s registration on the child sex offender register (CSOR) mandatory.
[4] Mr Terris’s appeal is brought only from the sentence imposed on the convictions for possession of objectionable material.
Application for leave to appeal
[5] Mr Terris’s application for leave to appeal was filed six months out of time. He has contended that he was unaware of the possibility of an appeal and had been given poor legal advice about his predicament. The Crown opposes leave to appeal being granted, questioning the credibility of a man with Mr Terris’s extensive previous involvement with the criminal justice system not being aware of the nature of his appeal rights. The Crown also opposes leave being granted on the ground that the appeal is without merit.
[6] By agreement with counsel, I heard their submissions on both the grounds for leave, and the substantive issues sought to be raised on the appeal. Having heard the argument, I accept that some relatively unusual features arise, and that it is appropriate to grant leave and I therefore do so.
The sentencing decision
[7] In the course of executing a search warrant on an unrelated matter at Mr Terris’s residential address on 6 January 2016, the Police seized an electronic tablet from his bedroom. It contained numerous media files and images, which were considered objectionable. One hundred and twenty five images were located and the Police selected 19 as examples depicting either bestiality or the sexual exploitation of children.
[8] Police analysis of the contents of the tablet revealed that it had been used on two occasions, on 24 and 31 December 2015, to seek out sites from which objectionable material could be downloaded. Although Mr Terris’s explanation for the presence of the objectionable images on his tablet was that friends or associates of
his had done it as a practical joke, he was not prepared to provide any details of who had done it or how it could have occurred.
[9] At the time of sentencing, Mr Terris had been remanded in custody for approximately 15 months on the other charges he was facing.
[10] The Judge set a starting point of 14 months’ imprisonment for both of the objectionable material charges, eventually allowing one month’s reduction from that before adding seven and a half months for the remaining convictions. The Judge recognised that a sentence of that length introduced the possible alternative of sentences of either home detention or community detention. For Mr Terris, Mr Ross focused on the Judge’s initial comment on that option, which was “that there is little utility in considering that outcome”. The reason cited was “primarily that you have served already that sentence”.2
[11] The Judge’s further reasoning suggested it would be inappropriate to change the sentence from one of imprisonment to achieve an outcome where Mr Terris was not automatically entered on the CSOR. Further, that if a sentence less than imprisonment was imposed so that the conviction was one where the Judge had a discretion as to whether to order that Mr Terris’s name be entered on the CSOR, he would in any event have done so.
Grounds of appeal
[12] The appeal is brought under s 250 of the Criminal Procedure Act 2011. To allow the appeal, I must be satisfied that there was an error in the sentence imposed and that a different sentence should have been imposed.3
[13] The essence of the appeal was that an end sentence other than imprisonment should have been imposed and that Mr Terris should then not have been registered on the CSOR.
2 Police v Terris, above n 1, at [18].
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36].
[14] I did not understand Mr Ross to challenge the sentence of 13 months’ imprisonment as being excessive for the level of offending involved. He did acknowledge that the alternative of a sentence of supervision would have been clearly inadequate were it not for the relevance he attributed to the period of some 15 months that Mr Terris had served in custody on remand.
[15] Mr Ross criticised the Judge for the narrow focus in presumptively wishing to give Mr Terris the greatest credit for the period he had spent in custody on remand when arguably an equivalent credit could have been given by imposing a sentence that avoided mandatory registration on the CSOR.
[16] Mr Ross also criticised what he perceived to be the Judge’s refusal to allow the consequence of a sentence including registration on the CSOR to dictate the sentencing option that was adopted. He submitted there is authority recognising that whether or not an offender is registered on the CSOR is a relevant consideration in choosing between available sentencing options.
[17] I also took Mr Ross to accept that, absent the consequence of registration on the CSOR, imposing a sentence of imprisonment of a length that had more or less already been served would have been an appropriate sentence in these circumstances.
[18] The Crown’s response to the appeal was that the end sentence of imprisonment was not manifestly excessive and was appropriate in all the circumstances. If that is accepted, then registration on the CSOR was automatic. Alternatively, if a proper end sentence is one short of imprisonment, then the Judge’s reasoning was correct that registration on the CSOR would nevertheless have been appropriate.
Analysis
[19] It is recognised that registration on the CSOR is a punitive consequence of a sentence where it automatically follows.4 In Bird, Ellis J attributed relevance to the punitive effect of registration on the CSOR in an evaluation of whether home detention was appropriately substituted for a term of imprisonment if:
4 Bird v Police [2017] NZHC 1296 at [37], citing Bell v R [2017] NZCA 90.
(a)the end length of a prison sentence would have been well under the two year cut-off point;5 and
(b)where the Crown acknowledged on the discretionary assessment under s 9 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the CPCSO Act) that an order for registration would not be appropriate as the offender did not pose a risk to the lives or sexual safety of one or more children.6
[20] This approach reflects the purpose of the CPCSO Act in that the Court has no discretion on registration where offending of the type caught by the CPCSO Act is sufficiently serious to warrant a sentence of imprisonment. Alternatively, the Court can have regard to the punitive consequence of registration in cases where the relative seriousness of the offending would result in a short period of imprisonment where home detention is an available substitute, and the circumstances of the offender would not warrant the Court exercising its discretion to place the offender on the CSOR.
[21] The Judge approached the sentencing outcome from a pragmatic perspective. The available options were imprisonment or a sentence of supervision. As Ms Garrick pointed out, the mid-level options in the sentencing hierarchy were excluded as there was no suitable address available at which Mr Terris could serve a sentence of home detention. That meant there were only stark options in a case where Mr Terris was clearly a candidate for a short sentence of imprisonment, given other factors beyond those bearing on the consequence of registration on the CSOR.
[22] The record of his criminal history runs to 23 pages, dominated by offending involving dishonesty, driving and breach of court-imposed conditions. There is no challenge to the cumulative prison sentence imposed for the convictions for numerous breaches of protection order and a concurrent sentence for breach of release conditions. There was a relevant need for deterrence, which would not be met if an otherwise appropriate sentence of imprisonment was substituted with one of supervision.
5 At [40](a).
6 At [30] and [40](b).
[23] Further, as Ms Garrick pointed out, Mr Terris could not legitimately have been given credit for an equal time on remand compared with the final sentence. The period of somewhat more than 15 months does not equate with the final prison sentence of 20 months. I accordingly agree with the Crown that the only reason not to impose the sentence of imprisonment was to avoid the additional punitive consequence of Mr Terris’s name being entered on the CSOR. I agree with the earlier authorities that have suggested that such an approach is not permissible.
[24] That outcome makes it unnecessary to rely on any concluded view as to whether Mr Terris’s name ought to have been placed on the CSOR as a matter of the Court’s discretion, had he been sentenced other than to a term of imprisonment. It was legitimate for the Judge on sentencing, in responding to the competing submissions made to him, to make the observation that he would, in any event, have ordered Mr Terris’s name to be placed on the CSOR. It is unnecessary to uphold that judgment in order to confirm the correctness of his sentencing decision.
[25] In deference to Mr Ross’s thorough argument, I acknowledge that in considering the mandatory considerations under s 9(3) of the CPCSO Act, the case for a discretionary decision to require Mr Terris’s name to be placed on the CSOR may not have been so compelling as the Judge considered. It was not the most serious form of offending, whilst involving a troubling form of exploitation of child victims that clearly warranted the length of sentence the Judge nominated. In an extensive criminal history there is no previous suggestion of sexual offending or offending involving harm to children. The pre-sentence report writer’s assessment of the prospect of subsequent offending appears not to focus separately on the risk of further offending of the type that entry on the CSOR is intended to prevent.
[26] Notwithstanding all of those valid points raised by Mr Ross, the nature and extent of the images on Mr Terris’s tablet and his response to being apprehended might well still justify a finding that he poses a risk to the lives or sexual safety of one or more children or of children generally. I am accordingly not prepared to find that the Judge made a material error on his alternative approach. That is, where he indicated that had it become a matter of discretion, he would in any event have directed that Mr Terris’s name be entered on the CSOR.
[27]Accordingly, the appeal is dismissed.
Dobson J
Solicitors/Counsel:
P J Ross for appellant
Crown Solicitor, Wellington for respondent
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