Thompson v Police
[2012] NZHC 2029
•15 August 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-443-000028 [2012] NZHC 2029
BETWEEN STEPHEN SELBY THOMPSON Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 15 August 2012
Counsel: J C Hannam for Appellant
S A Law for Respondent
Judgment: 15 August 2012
ORAL JUDGMENT OF COLLINS J
Introduction
[1] On 23 February 2012 Mr Thompson pleaded guilty in the New Plymouth District Court to 19 charges of possessing objectionable material contrary to s 131A(1) and (2)(A) of the Films, Videos, and Publications Classification Act 1993 (the Act).
[2] On 28 June 2012 Mr Thompson was sentenced to a total period of 18 months’ imprisonment by the District Court in New Plymouth. He appeals that sentence. Mr Thompson pleads that the sentence imposed by the District Court Judge was manifestly excessive.
The offending
[3] The police summary of facts records that in January 2010 the police were
handed Mr Thompson’s laptop computer by his then partner. Forensic examination
THOMPSON V NEW ZEALAND POLICE HC NWP CRI-2012-443-000028 [15 August 2012]
of that laptop and other computer systems found in Mr Thompson’s possession resulted in over 17,000 and 3,070 video clips being examined. As a result of the assessments undertaken 16 video clips and three images were classified as being objectionable. They were described in the police summary of facts as being representative of all the images that were assessed. Mr Thompson accepted that summary of facts when he pleaded guilty.
Pre-sentence report
[4] The pre-sentence report states:
All options were considered ... however, due to [Mr Thompson] not seeking help immediately after he was caught, justifying his actions and the nature of his offending, a community-based sentence was not considered and imprisonment is therefore recommended.
District Court sentencing decision
[5] The District Court Judge decided that imprisonment was required in this case to reflect the principles and objectives of:
(1) deterrence;
(2) denunciation;
(3) protecting young victims; and
(4) reflecting the gravity of the offending.
[6] The District Court Judge adopted a starting point of two years’ imprisonment. A six month reduction was granted to reflect the fact that Mr Thompson pleaded guilty at the first occasion he could. The District Court Judge did not believe that home detention was suitable because:
(1) of the seriousness of the offending;
(2)Mr Thompson had only very recently commenced attending counselling; and
(3)Mr Thompson appeared not to recognise the full significance of his offending.
[7] The District Court Judge imposed a special post-sentence condition requiring Mr Thompson to undertake and complete counselling, treatment or other programme as directed by a probation officer.
Principles applicable to an appeal
[8] This Court’s jurisdiction to hear and determine the appeal is derived from s 121 of the Summary Proceedings Act 1957. In the circumstances of this appeal, the Court may allow the appeal if it considers that the sentence imposed by the District Court was “clearly excessive or inadequate or inappropriate” (“manifestly excessive”).
[9] In R v Monkman, the Court of Appeal explained the term “manifestly excessive” in the following terms:1
Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).
[10] When considering if the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal recently observed in Ripia v R:2
... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly
1 R v Monkman CA445/02, 3 March 2003 at [6].
2 Ripia v R [2011] NZCA 101 at [15].
excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.
Analysis
Starting point
[11] In R v Zhu the Court of Appeal suggested that the United Kingdom Sentencing Guideline provided a useful guide for New Zealand in this area of offending. The Court said:3
Without necessarily adopting in full these categorisations or sentencing levels as appropriate for New Zealand, we think the analysis of seriousness and general sentencing levels in the report of the Sentencing Advisory Panel are a useful guide for New Zealand.
[12] The Court of Appeal endorsed this approach in R v Clode, encouraging trial Judges to use the United Kingdom Sentencing Guideline in cases involving child pornography.4
[13] The United Kingdom Sentencing Guideline was produced by the United Kingdom Sentencing Advisory Panel, in a report prepared in 1992. The report outlined levels of offending in this area and the sentences the panel considered appropriate to each level. The levels can be summarised as follows:
(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.
(4) Penetrative sexual activity between children and adults.
(5) Sadism or bestiality.
3 R v Zhu [2007] NZCA 470 at [15].
4 R v Clode [2008] NZCA 421.
[14] In Appendix 1 to this judgment I set out and explain eight levels of sentencing suggested in the United Kingdom Sentencing Guideline.
[15] Based on this table it would seem an appropriate starting point would be between 12 months and three years imprisonment.
Similar cases
[16] In Appendix 2 of this judgment I summarise six cases I have considered when assessing sentences imposed in cases comparable to the one I am considering.
Conclusion
[17] Because the images in question included images that fall within category 5 of the Zhu classification system, the District Court Judge’s starting point of two years’ imprisonment was within the bounds of acceptability particularly when regard is had to sentences delivered in comparable cases. This sentence was also within the bounds of the sentences that were reasonably available when regard is hard to the large amount of material that was found in Mr Thompson’s possession.
[18] The District Court Judge’s decision to allow a six months’ discount for
Mr Thompson’s guilty plea was also appropriate.
[19] There are no other additional mitigating factors.
[20] Accordingly, I conclude that the sentence of 18 months’ imprisonment
imposed by the District Court was not manifestly excessive.
Home detention
[21] The Court of Appeal in R v D observed that the sentencing Judge may frequently be in a better position than an appellate Court to determine the seriousness
of offending for the purposes of determining whether home detention is the appropriate sentencing response. It said:5
The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
[22] An appeal against a refusal to grant home detention does not provide an appellate court with an opportunity to revisit or review the merits of the sentence. The question is whether the sentencer had erred in exercising the sentencing discretion by applying an incorrect principle, giving insufficient or excessive weight
to a particular factor, or by being plainly wrong.6 For example, if the sentence only
concentrated on the principle of deterrence.7
[23] In a recent case, I did allow an appeal from a sentence of 13 months’
imprisonment, for possession of objectionable material. I imposed a period of
12 months’ home detention.8
[24] The circumstances in Petersen are readily distinguishable from the present case:
(1)The offending in Petersen did not involve images in category 5 from the Zhu classification system.
(2)Mr Petersen had commenced counselling and was thought by his counsellor to be a strong candidate to benefit from counselling
services.
5 R v D [2008] NZCA 254 at [66].
6 James v R [2010] NZCA 206.
7 Manikpersadh v R [2011] NZCA 452.
8 Petersen v Department of Internal Affairs [2012] NZHC 1749.
(3)The Community Probation Service had recommended a non-custodial sentence.
[25] In the present case, Mr Thompson’s offending includes possession of images at the extreme end of the spectrum of offending. He has only recently taken steps to obtain counselling services. Mr Thompson’s counsel submits this was due to advice that Mr Thompson received. Notwithstanding this explanation, I take the view that it was incumbent on Mr Thompson to seek counselling as soon as he was aware that he had a problem. It was Mr Thompson’s duty to seek help and his failure to do so until very recently means he has failed to take the steps that he should have taken if he wanted to impress upon me that he is a suitable candidate for home detention. In my view, Mr Thompson’s belated steps to obtain counselling assistance strongly indicates that he is not a suitable candidate for home detention.
[26] For these reasons, I reach the conclusion that the District Court Judge’s decision to impose a period of imprisonment, and not to opt for home detention was appropriate.
Result
[27] Mr Thompson’s appeal against sentence is dismissed.
Solicitors:
Hannam & Co Lawyers, New Plymouth for Appellant
Crown Solicitor, New Plymouth for Respondent
D B Collins J
Appendix 1
(1)A fine – possession only of pseudo-photographs (i.e. not involving the sexual exploitation of children), or no more than a small quantity of material at level 1;
(2)Community sentence – possession only for a large amount of material at level 1 and, or no more than a small quantity of material at level 2;
(3)Custody threshold – any of the material has been shown or distributed to others and/or possession of a large quantity of material at level 2, or a small amount of material at level 3 or above;
(4)Up to six months’ imprisonment – possession of a large amount of material at level 2 or a small amount of material at level 3, or showing or distributing level 1 or 2 material on a limited scale without financial gain;
(5)Six to 12 months’ imprisonment – showing or distributing a large number of images at level 2 or 3 or possessing a small number of images at levels 4 or 5;
(6)Twelve months to three years' imprisonment – possession of a large amount of material at levels 4 or 5 (even without showing or distributing), showing or distributing a large number of images at level 3, or producing or trading a material at levels 1 to 3;
(7)More than three years' imprisonment – showing or distributing images at levels 4 or 5, active involvement in production of images at levels 4 or 5, or commissioning or encouraging the production of such;
(8) Up to 10 years' imprisonment maximum – very serious cases where
the offender has relevant previous convictions.9
9 Hulme v R [2012] NZHC 86.
Appendix 2
Hulmev R:10 There were 20 charges of possession. Some of the images fell into level 1 of the United Kingdom Sentencing Guideline levels – they were images depicting nudity or erotic posing with no sexual activity by young girls. However, the majority of the images fell into level 4 – they showed penetrative sexual activity between children and adults. There were some images which fell into level 5 – showing bestiality. There were a large number of images – in total over 14,000. A starting point adopted by the sentencing Judge of three years, while considered to be a bit on the high side, was upheld on appeal.
Department of Internal Affairs v Wigzell:11
Mr Wigzell’s home was searched and Departmental investigators located five computers and four hard drives. Over 200,000 images were found, many depicting children and young persons engaged in sexual acts with adult males and other young people. Other images included seductive posing, masturbation, bestiality and sexual violence. Mr Wigzell had organised, classified and collated the material, and he was a member of 25 news groups sharing child sexual abuse imagery. He was sentenced to two years’ imprisonment and the Crown appealed. The High Court was unable to accept the Crown’s proposition that a four year starting point was appropriate. Some of the material fell within level 1 of the panel’s 5-level classification. A starting point at the very upper end of the range of 12 months to three years was called
for, with a three to six months uplift for Mr Wigzell’s previous
10 Hulme v R [2012] NZHC 86.
11 Department of Internal Affairs v Wigzell HC Wellington CRI-2007-485-110, 20 November
2007.
conviction. While the Court on appeal might have imposed a longer sentence if sentencing de novo, the sentence was not manifestly inadequate.
Cooper v Department of Internal Affairs:12
Mr Cooper pleaded guilty to 16 charges of possession of objectionable material under s 131A of the Act. Some 5,000 images and 200 movies were found on his computer. There was also further encrypted material that could not be accessed. The sentencing Judge adopted a starting point of three years' imprisonment. On appeal, Mallon J considered that a combination of a large number of images at levels 2 and 3, and a small number of images at levels 4 and 5 justified a starting point in the region of 12 months to three years’ imprisonment. She considered that two and a half years’ imprisonment was an appropriate starting point given the facts in that case.
Doran vPolice:13 There were 20 charges of possession, for 1222 images spanning all 5 categories. A starting point of two years was adopted, and the end sentence was 18 months after taking into account a guilty plea. This was upheld by the High Court on appeal.
Stevens v Police:14 An analysis of a DVD found in Mr Stevens’ possession revealed a large number of images, most of which could be classified as objectionable, including pictures of naked children and babies, and sexual activity with them. These images had been catalogued and the DVD was divided into
various directories. The 20 informations laid were
12 Cooper v Department of Internal Affairs HC Wellington CRI-2008-485-86, 18 September 2008.
13 Doran v Police [2012] NZHC 468.
14 Stevens v Police HC Wellington CRI-2008-406-7, 15 July 2008.
representative. In this case, images fell within categories 1, 2,
3 and 4. None came within category 5. On appeal it was held a proper starting point was two years’ imprisonment. A three month uplift was given for previous convictions. A discount was given for Mr Stevens’ attempts to change, leading to an end sentence of 15 months’ imprisonment for each charge, to be served concurrently.
Harding v Department of Internal Affairs:15
A total of 65 CDs and 17 floppy discs were seized from Mr Harding’s address along with his computer and accessories. Some 52 of the CDs contained both adult pornography and images comprising bestiality, female and male urination, bondage and acts of sadomasochism. The latter involved extreme torture and dehumanising conduct. There were sexually explicit pictures of girls ranging in age from 7 to 15. Mr Harding had 38 previous convictions for possession of objectionable pictures, entered in 2001. The starting point was three years’ imprisonment with a one-third reduction for guilty the plea and to reflect Mr Harding’s age of
68 years. The result was a sentence of two years’ imprisonment. On appeal, this sentence was held to be manifestly excessive. Although the material included bestiality, urination and sadism, the persons depicted engaging in those activities were adults. That put it in a less serious category than if children had been involved. A starting point of
15 months’ imprisonment was appropriate. Imprisonment was indicated because of Mr Harding’s previous offending. An uplift of three months was appropriate, with a discount of one- third to reflect the guilty plea and the fact that Mr Harding
was seeking help for his problems. The sentences were
15 Harding v Department of Internal Affairs HC Hamilton CRI-2008-419-53, 29 October 2008.
quashed and concurrent sentences of 12 months’
imprisonment were substituted in each case.
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