Tilyard v Police
[2016] NZHC 1377
•23 June 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2016-485-25 [2016] NZHC 1377
PAUL DONALD TILYARD
v
NEW ZEALAND POLICE
Hearing: 31 May 2016 Appearances:
N Bourke and L Caris for the Appellant
Judgment:
23 June 2016
JUDGMENT OF NICHOLAS DAVIDSON J
Sentence under appeal
[1] Mr Tilyard pleaded guilty to eight charges of knowingly distributing an objectionable publication1 and eight charges of possessing an objectionable publication,2 contrary to the Films, Videos and Publications Classification Act 1993 (FVPCA). He was sentenced in the District Court to two years and three months imprisonment.3 He appeals that sentence on the basis that it is manifestly excessive.
[2] In April 2015 Parliament passed an amendment to the FVPCA which introduced some new aspects to the legislative scheme, including a presumption of imprisonment for repeat offenders.4 Relevant to this appeal, Parliament increased
1 Section 124, with a maximum penalty of 14 years’ imprisonment.
2 Section 131A, with a maximum penalty of 10 years imprisonment.
3 R v Tilyard [2016] NZDC 5210.
4 Films, Videos and Publications Classification Act 1993, s 132B.
TILYARD v NEW ZEALAND POLICE [2016] NZHC 1377 [23 June 2016]
the penalties for objectionable image offences effective as of May 2015. The maximum penalties rose from 10 years to 14 years imprisonment for distribution, and from five years to 10 years imprisonment for possession. The effect of this amendment is central to the sentencing under appeal.
Facts
[3] In October 2015, a police officer was conducting covert enquiries into online child sexual exploitation. On 29 October Mr Tilyard shared with the police officer
128 files of child sex abuse images or, in police terms, child exploitation material
(CEM).
[4] The police then executed a search warrant at Mr Tilyard’s home and seized digital storage devices. They found about 700 images that could be classed as objectionable.
[5] The distribution and possession images include boys aged 10 to 15 years old, naked or partially naked and showing their genitals and/or anus.
[6] Three images are more serious than the others, and were the subject of thorough argument before me (the disputed images). They show:
(a) A half-naked boy aged between 10 and 15. His pants are around his ankles and there is a thermometer inserted backwards into his anus. His testicles are visible between his legs.
(b)A naked boy aged between 10 and 12. He is bent over so his face is looking back between his legs, with his anus and genitals visible. The hand of an adult male is on one of his buttocks.
(c) Two boys aged between 10 and 12 clad only in underwear. They are lying down and kissing with their arms around each other.
[7] Counsel agree that these are the most serious images, and that the rest – of naked or partially naked boys posing with their genitals exposed, but with no
penetration and no adult present – are (relatively) less serious. They do not agree as to the seriousness, and therefore the classification for sentencing purposes, of the disputed images.
The law
Appeal against sentence
[8] Section 250(2) of the Criminal Procedure Act 2011 provides that the court must allow an appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed.
[9] Section 250(2) was not intended to change the approach taken by the courts before the Criminal Procedure Act 2011 came into force. The principle of “manifestly” excessive is well-engrained in the court’s approach to sentencing appeals.5 The High Court will not intervene where the sentence is within the range that can be properly justified by accepted sentencing principles. It is not the role of the court to substitute its view of the appropriate sentence. Whether a sentence is
manifestly excessive is to be examined in terms of the sentence given, rather than the process by which a sentence is reached.6
United Kingdom guidelines
[10] The United Kingdom Sentencing Council releases guidelines for categorisation and sentencing of sexual offending, including that involving objectionable images. A version of the guidelines with five levels of offending was issued in 2007. The Court of Appeal has accepted their application as useful
guidelines in New Zealand.7 The 2007 guidelines were replaced in 2014 and their
continued relevance has been upheld in the High Court.8 The 2014 guidelines provide:
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
6 Ripia v R [2011] NZCA 101 at [15].
7 R v Zhu [2007] NZCA 470 at [12]-[15]; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at
[51]-[52].
8 Petersen v Department of Internal Affairs [2014] NZHC 2024 at [17]-[19].
STEP ONE
Determining the offence category
The court should determine the offence category using the table below.
Possession Distribution* Production**
Category A Possession of images involving
penetrative sexual activity
Sharing images involving
penetrative sexual activity
Creating images involving
penetrative sexual activity
Possession of images involving sexual activity with an animal or sadism
Category B Possession of images involving non-penetrative sexual activity
Category C Possession of other indecent images not falling within categories A or B
Sharing images involving sexual activity with an animal or sadism
Sharing of images involving non-penetrative sexual activity
Sharing of other indecent images not falling within categories A or B
Creating images sexual activity with an animal or sadism
Creating images involving non- penetrative sexual activity
Creating other indecent images not falling within categories A or B
* Distribution includes possession with a view to disturbing or sharing images
** Production includes the taking or making of any image at source, for instance the original image.
Making an image by simple downloading should be treated as possession for the purpose of sentencing
In most cases the intrinsic character of the most serious of the offending images will initially determine the appropriate category. If, however, the most serious images are unrepresentative of the offender’s conduct a lower category may be appropriate. A lower category will not, however, be appropriate if the offender has produced or taken (for example photographed) images of a higher category.
Possession Distribution Production
Category A Starting point
1 year’s custody
Category range
26 weeks’ – 3 years’ custody
Category B Starting point
26 weeks’ custody
Category range
High level community order –
18 months’ custody
Category C Starting point
High level community order
Category range
Medium level community order –
26 weeks’ custody
Starting point
3 year’s custody
Category range
2 – 5 years’ custody
Starting point
1 year’s custody
Category range
26 weeks’ – 2 years’
custody
Starting point
13 weeks’ custody
Category range
High level community
order –
Starting point
6 year’s custody
Category range
4 – 9 years’ custody
Starting point
2 year2’ custody
Category range
1 – 4 years’ custody
Starting point
18 months’ custody
Category range
1 – 3 years’ custody
2 6 weeks ’ cu sto d y
[11] The UK guidelines assist in the classification of images and are a guide to starting points and appropriate ranges for sentencing. While sentencing has often included reference to the latter, the issue is problematical in New Zealand as observed by Her Honour Justice Katz in a judgment delivered in 2014.9 Since then reference to the UK guidelines for starting points and the range for sentencing is
further qualified by the 2015 amendment.
9 Stewart v Department of Internal Affairs [2014] NZHC 2209.
[12] The Judge said that the three disputed images are on the cusp of Categories A and B in the guidelines, while the other images are in Category C.10 He said that these three images should not colour the entire sentencing exercise, and that they do not fall easily or neatly into the UK guideline categories.11
[13] He referred to the sentence in Petersen, where the images were all in Category C and a starting point of six months imprisonment was adopted by the High Court on appeal.12 He said that case is distinguishable because of the three
more serious images and the increased maximum penalties.13 He did not elaborate
on the way in which Petersen influenced the starting point in the sentencing exercise, except to distinguish it, nor the pathway to the starting point which he adopted. On appeal, it is the end sentence which counts when considering whether it is manifestly excessive.
[14] The Judge adopted a three year starting point for the distribution charges, and a one year concurrent starting point for the possession charges.14 He recognised that the guidelines track the increasing gravity of offending from possession, to distribution, to production. He declined to give any credit for self-referral to therapy, because that is “…a step properly taken in any event and I do not see that as warranting any significant discounting”.15 Prior offending and a lack of remorse counted against a discount which may otherwise apply for a good record and demonstrated recognition of the harm done by this type of offending.
[15] A 25 per cent discount was applied for the guilty pleas, which resulted in an end sentence of 2 years and three months imprisonment.16
10 R v Tilyard, above n 3, at [18].
11 At [20].
12 Petersen v Department of Internal Affairs, above n 8.
13 R v Tilyard, above n 3, at [21].
14 At [22].
15 At [23].
16 At [24].
[16] These issues arise on appeal:
(a) Do the three most serious images fall into Categories A and/or B of the UK guidelines?
(b) Was the starting point of three years too high?
(c) Should there have been a discount for assisting the police and self-referral for rehabilitation?
Categorisation of disputed images
[17] Mr Bourke submits that the thermometer image does not fall within Category A of the UK guidelines. That is important because whether or not there is residual reference to the starting point and range of sentence in the guidelines, there is a marked distinction between Categories A and B. He says that there is nothing in the image to suggest an adult’s presence – it is at most part of a sexual act performed by the child alone.
[18] He submits that the image of boys kissing does not fall into Category B. It does not involve sexual activity between an adult and child, but two partially clothed children. He submits that the image of a boy with an adult’s hand on his buttock is not ‘typical’ of Category B, despite the broad description of non-penetrative sexual activity.
[19] The commentary to the UK guidelines, and in particular Step 1, “determining the offence category”, says that in most cases “the intrinsic character of the most serious of the offending images will initially determine the appropriate category”. However, if the most serious images are unrepresentative of the offender’s conduct a lower category may be appropriate. That lower category will not be appropriate if the offender has produced or taken (for example photographed) images of a higher category. Even if the disputed images prima facie fall within Categories A and B,
Mr Bourke submits that they were not representative of the overall offending, most of which is within Category C.
[20] He otherwise submits the Judge was wrong to consider that the image was of humiliation and submission, if not sadism; such an inference was not open to him. However, the 2007 guidelines differentiated between sexual activity between adults and children, and that between children or by children alone. The 2014 guidelines do not make this distinction.
[21] Category A includes bestiality and sadism, but otherwise broadly covers “penetrative sexual activity” and in my view, penetration of a child by an object, in this case a thermometer, for the sexual gratification of an observer, is penetrative sexual activity. In the sentence bands for sexual offending in R v AM, violation with an object is included in the “rape bands”, along with rape and penile penetration of the mouth or anus.17 The participation of another person is not evident in the photograph, but that is not required to fall within Category A. However, within Category A there are degrees of gravity and this image does not have the aggravating
elements of distress, force, or subjugation which often mark such images. It remains, however, seriously exploitative of a child.
[22] I do not accept the submission regarding categorisation of the other two disputed images which display sexual activity between an adult and child and two children. They are not confined to posing, which would fall within Category C.
[23] I conclude that the disputed images fall within Category A in one instance, and Category B in two others, squarely within the UK guidelines. I accept that these images, and in particular that falling within Category A, are not numerically nor in kind representative of the bulk of the other images which found the representative
charges. I will return to this.
17 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [65]-[79].
Starting point
[24] The Crown submits that because of the 2015 amendment, past sentencing cases are of little assistance.18 Ms McCubbin-Howell submits that this is a new regime and the court should take its cue from Parliament. Otherwise, the Crown says the Judge correctly categorised the images and that the gravity of the offending overall should not be diluted by the extent of the representative Category C offending.
[25] For the appellant, Mr Bourke submits that sentences imposed before the 2015 amendment took effect should still provide some guidance for sentencing conducted under the new regime. While it should not be a purely mathematical exercise, he submits that a useful approach might be to apply an approximate 40 per cent increase to the starting points in analogous past cases - reflecting the 40 per cent increase in the maximum penalty for distribution from 10 to 14 years.
[26] Mr Bourke relies, as he did at sentencing, on Petersen as most like
Mr Tilyard’s offending. That case involved more than 600 images of girls between
10 and 14 years in highly sexualised poses. In the High Court, Mallon J adopted a starting point of six months imprisonment. A discount of 37 per cent was applied for the appellant’s clean record, guilty plea, and co-operation, and an end sentence of three months and three weeks imprisonment was imposed. Mr Bourke cites other cases of more serious offending than in this case where starting points of two to two and a half years imprisonment were adopted.19
[27] Even allowing for the new maximums, Mr Bourke submits that the Judge’s starting point was too high, and that the three disputed images do not justify such a large (some 600 per cent) increase over the starting point in Petersen. Mr Bourke says that the authorities he cites, discussed further in this judgment, suggest how
starting points might be adjusted following the 2015 amendment, and demonstrate
18 Neither counsel nor I located any High Court first instance or any appellate decisions reflecting the increased penalties.
19 NN v Police [2014] NZHC 2355; Stewart v Department of Internal Affairs , above n 9; Williams v Police [2015] NZHC 70.
what sort of offending would attract a starting point and end sentence at the levels applied in this case.
[28] In NN v Police,20 the appellant was home with his eight year old daughter and her friend. He used a cell phone to take photographs of the girls in their wet underwear and sent one to an associate. Under search warrant the police found
257 objectionable images and two objectionable videos, and evidence of
22 individual sessions of photo sharing with chat room users. The images were mainly of nudity or erotic posing, but five images involved sexual activity between children and adults, including penetration. There were three images of bestiality between adults. The two year starting point for the charges of making and distributing objectionable publications was upheld in the High Court.
[29] In Stewart v Department of Internal Affairs,21 the defendant pleaded guilty to three charges of making objectionable publications, and 12 of possession. The children were in sexualised poses, and one was an objectionable publication of adult bestiality. He compiled three DVDs of movies involving girls aged from four to
14 years, and depicting penile penetration by different males. There was other abhorrent conduct including representative charges in relation to some thousands of child exploitation images. Under the 2007 guidelines, these variously fell into levels
4 and 5. There was one highly disturbing image at level 5, and three movies within levels 4 and 5. Katz J adopted a global starting point of three years imprisonment, composed of two and a half years imprisonment for the production of child sex abuse movies and a six months uplift for the totality of the offending. I will return to this judgment given the analysis and observations of Her Honour, and proximity to the sentence under appeal.
[30] In Williams v Police,22 the appellant offered a young relative money if she sent him sexual photos of her, sometimes involving self-penetration. He took photos of her naked and in certain poses. He pleaded guilty to nine representative charges of making an objectionable publication, and the production charges led to a starting
point of 22 months imprisonment.
20 NN v Police, above n 19.
21 Stewart v Department of Internal Affairs, above n 19.
22 Williams v Police, above n 19.
[31] While Mr Bourke submits that Petersen provides guidance given the number of images, the method of sharing, and content being comparable, gender aside, he says the three disputed images are “of a slightly more serious nature”, but that focusing too much on these distorts the proper assessment of Mr Tilyard’s offending overall. He says that most of the images involve boys aged 10 to 15 years in a variety of poses with their genitals clearly visible, within Category C of the guidelines. The three disputed images should not in his submission “artificially elevate” the offending to a category which is “more naturally reserved for images of rape, sodomy, bestiality and other penetrative sexual activity”. However, I have held that while these elements may be more common, they are in my view not the exclusive domain of Category A.
[32] Mr Bourke submits that the starting point should be eight and a half months imprisonment then discretely increased by some three to four months to reflect the additional punitive and deterrent elements now required, and to acknowledge the more serious nature of this offending than in Petersen.
[33] Ms McCubbin-Howell submits that the 2014 guidelines assist to find an appropriate starting point, but that it may be appropriate to step outside the sentencing range indicated. In New Zealand the Taueki approach is to bring into account aggravating and mitigating factors of the offending in articulation of the starting point which is another reason the guidelines are problematical to find the starting point and range of sentence.
[34] The UK guidelines are not prescriptive and operate as a guide only. For distribution of Category A images the guidelines indicate a starting point of three years and for Category B one year. Ms McCubbin-Howell submits that the appellant’s submission that the correct starting point is no more than 12 months imprisonment (based on the worst offending in Category B), elevates the guidelines to “much more than a guide”, and that is not appropriate as New Zealand has established and will establish, its own sentencing response. Further, the 2015 amendment substantially lifts potential sentences in New Zealand against those indicated in the UK guidelines.
Discussion
[35] To consider further how the 2015 amendment should be applied, I refer to Hansard. The Minister of Justice addressed the storage and distribution of objectionable material which:23
… fuels the market, encouraging those who create the material to produce more of it, which in turn results in more children being abused.
[36] The Minister went on:24
This is a cycle we are aiming to disrupt by increasing the penalties for the possession, production, and distribution of child exploitation material…This legislation sends a clear message that that is a repugnant series of conduct that encourages the abuse of children, for which New Zealand has zero tolerance…The legislation seeks to address this increased connectivity by criminalising indecent communications with children and ensuring that those who possess or trade in child exploitation material receive a sentence that reflects the very grave nature of the offending…Possessing and trading in images depicting the sexual exploitation of children is grave offending that, in my view, warrants stronger penalties than other types of objectionable publications.
[37] I am wary of placing too much emphasis on past cases, then recalibrating them by some arbitrary percentage. I accept that before the 2015 amendment much more serious offending would attract the starting point adopted by the Judge. However, this is a new era for sentencing associated with objectionable images and, somehow, the bar must be set to reflect that. The purpose of the 2015 amendment is plainly to denounce, but in particular to deter people from participating in the scourge of sexual exploitation of children.
[38] In my view past cases may be useful as a check to starting points in the sentencing process. They provide points of relativity between sentences for different levels of offending and they allow courts to reflect on sentences under the 2015 amendment with those for similar offending under the earlier regime, to gauge the appropriate response to the increased penalties. Parliament intended to reflect the seriousness of this type of offending and the technological advances that have
increased its scale and impact.25
23 (2 April 2015) 704 NZPD 2891 (emphasis added).
24 Above n 23 (emphasis added).
25 Above n 23.
[39] While delivered under the earlier statutory provisions and the 2007 guidelines, I find the sentencing and discussion in Stewart helpful in several respects. Katz J took making the three child pornography DVDs as the lead offending, then assessed as part of the overall child pornography offending the related internet behaviour. Making the bestiality DVD was treated differently, as it was not internet based, but making of new “source” material, and was sentenced cumulatively. It did not involve a child.
[40] Mr Stewart was not charged with distribution as it was accepted he never intended to share child abuse images, and that is a distinguishing factor. However, the content of the pornography collection was a serious aggravating feature, involving four girls aged four to seven years of age, and two girls aged seven to nine years of age, being raped by different adult males. Other serious sexual exploitation of young girls with males was evident and much of the material fell within level 4 of the UK guidelines. The victims were extremely vulnerable and were exploited and abused in an horrific manner.
[41] Her Honour considered the approach of the Court of Appeal in Zhu.26 The starting point of 4 years and 6 months imprisonment in that case was in the range for offending from level 2 to level 4, and probably level 5.
[42] Mr Stewart’s culpability was held to be less than that in Zhu. A global starting point was adopted of 3 years imprisonment. There is no doubt that the offending in Stewart was much graver than that addressed in this appeal. There is also no doubt that the starting point and the end sentence for the offending in Stewart, addressed under the 2015 amendment, would be much increased. The sentence under appeal would not stand against sentences such as Stewart under the same legislation, but the courts must approach sentencing afresh, as the Judge has done. It follows that the sentence under appeal has firmly applied the intent of Parliament, but the real question is whether the sentence is within range, or was
manifestly excessive.
26 R v Zhu, above n 7.
[43] I do not consider Petersen to be sufficiently similar so as to direct the result of this appeal, but there is an element of that sentence which has application. Mr Petersen made many images available on the internet, all in Category C. Mallon J referred to the Category C starting point for distribution of 13 weeks custody and a range from a high level community order to 26 weeks custody. For possession the starting point was a high level community order and a range from medium level custody under 26 weeks custody. There were no Category A and B images and the end sentence reflected mitigating factors of a first offender, considerable remorse, and co-operation.
[44] The Category A and B offending here demonstrates the gravity of the offending as the Judge found and the 2015 amendment would otherwise produce a substantial increase in the starting point for Peterson. Here, there are three charges founded on images within Categories A and B, and many Category C images reflected in the representative charges. In my view, a two year starting point for an image at the lower end of Category A – the worst category – is appropriate in light of a statutory maximum of 14 years and it reflects some relativity with sentencing before the 2015 amendment, but with a marked increase. A further uplift of
6 months for the two Category B images and the most represented Category C images would reflect the totality of the offending, again well above that which would have applied before the 2015 amendment. The possession charges should be sentenced concurrently, and I agree with His Honour’s starting point of one year for those.
[45] Guided by Parliament’s clear intention to increase sentences, my view is that a starting point of two and a half years is appropriate for offending where most images are in Category C. On a spectrum of a maximum of 14 years imprisonment, it is fitting that offending which involves Category C, the less serious of the categories – attracts a starting point at the lower end of the newly available penalties. The Judge’s starting point, in my view, would be more appropriate in a case where the few unrepresentative images were more serious than the three in this case. Where, of course, there were more than a few images in the A and B categories, Category C would no longer be representative of the bulk of the offending and the starting point would be higher.
[46] The sentence was firm and responds to the 2015 statutory amendment. I differ only on the starting point where I conclude that some recognition must be given to the bulk of the offending being of a different hue to the three Category A and B images, and that is recognised by a reduction of the starting point from three years to two years six months. I have thought whether that is a sufficiently different result to fall outside the range available to the Judge, but conclude that it does, for this singular reason.
Discount
[47] Mr Tilyard has previously offended and thus gets no discount for a clean record.
[48] Mr Bourke submits that Mr Tilyard should have received a discrete discount for co-operation with the police, especially by providing passwords to his many devices and accounts. I understand access to some of these accounts was not sought by the police but offered by Mr Tilyard of his own volition. It is unclear whether this information was before the Judge at sentencing.
[49] Although there were other ways in which the police could have obtained access to these devices and accounts, Mr Tilyard’s actions do go beyond his early guilty plea. Parliament has indicated this type of offending must be taken very seriously, and deterrence and denunciation is important, but I do not think it must follow from that message that assistance to the police is to be ignored in sentencing. However, I recognise that a discount for assistance to authorities is usually triggered by some material gain to the prosecution such as evidence of further offending,
testifying against others, or high level of co-operation.27
[50] Mr Bourke also submits that Mr Tilyard should have received a discount for self-referral to rehabilitation, and that the Judge was perhaps influenced by repugnance for this type of offending in not giving a discount. Mr Tilyard referred himself to the WELLSTOP programme and had one appointment with a clinical
psychologist.
27 See R v Hadfield, CA337/06, 14 December 2006.
[51] This sort of response should be encouraged and I do not suggest Parliament intended that rehabilitative steps may not warrant a discount in the right cases. Indeed, where a predilection may be curbed or diverted by counselling or other therapy then that should be encouraged and reflected in the sentencing process where it marks a real step towards addressing the root cause of offending.
[52] The pre-sentence report before the Judge referred to Mr Tilyard having “next to no victim remorse”, and the writer’s concern that he should have internet access. Mr Tilyard was said to have displayed a lack of insight and held an apparent sense of entitlement. I acknowledge Mr Bourke’s submission that he had encouraged Mr Tilyard to raise his concern about internet access with the report writer, because Mr Tilyard is an isolated man who needs to connect with his family overseas, so I do not count that against him.
[53] In my view, the assistance to the police and the self-referral in this case are of minimal weight and stand against his lack of remorse. These factors overall are not of the character that should trigger anything above the 25 per cent discount for an early guilty plea.
[54] Otherwise, this is a new era for sentencing of this kind and the end sentence is at the low end of the statutory range which now applies, reflective of the three more serious charges and some scaling for the lesser but still serious offending in Category C of the guidelines.
Disposition
[55] The starting point and uplift adopted on appeal totals 2 years 6 months, and is discounted by 25 per cent for the pleas of guilty. The end sentence is 22 months. To repeat, the scourge of sexual exploitation of children must be denounced and deterred by imprisonment for offending of this kind.
[56] The appeal is allowed and a sentence of one year 10 months is imposed.
……………………………………….
Nicholas Davidson J
Solicitors:
N Bourke, Barrister, Wellington
A McCubbin-Howell, Crown Solicitor, Luke Cunningham Clere, Wellington
15
8
0