Thompson v Police - [2012] NZHC 2029

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”…

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.

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Details

Case: [2012] NZHC 2029
Decision Date: 15 August 2012

CaseChat Overview and Summary

The case of Thompson v Police was heard in the High Court of New Zealand. Stephen Selby Thompson, the appellant, appealed against his sentence imposed by the New Plymouth District Court for possessing objectionable material contrary to the Films, Videos, and Publications Classification Act 1993. Thompson pleaded guilty to 19 charges and was sentenced to 18 months imprisonment. He argued that the sentence was manifestly excessive. The primary legal issues before the court were whether the sentence was manifestly excessive and whether home detention could have been an appropriate alternative to imprisonment.

The court began by examining the maximum sentence prescribed by law, the level of sentencing customarily observed for such offences, the seriousness of the offending, and the personal circumstances of the offender. The court considered the United Kingdom Sentencing Guideline and found that the District Court Judge’s starting point of two years’ imprisonment was appropriate given the nature of Thompson’s offending, which included images classified in the highest category of seriousness. The court also found that a six-month reduction for Thompson’s guilty plea was appropriate. The District Court Judge’s decision to not impose home detention was upheld as Thompson had only recently sought counselling, which the court considered indicative of his unsuitability for a non-custodial sentence. The court concluded that the sentence was not manifestly excessive and dismissed Thompson’s appeal.

Orders