Tilyard v Police - [2016] NZHC 1377

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,…

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: [2016] NZHC 1377
Decision Date: 23 June 2016

CaseChat Overview and Summary

In Tilyard v Police, the appellant was convicted of distributing and possessing objectionable publications, being child exploitation images, and appealed against the sentence of two years and three months imprisonment. The legal issues were whether the starting point was too high, and whether the District Court Judge should have applied a discount for assisting the police and self-referring for rehabilitation. The High Court concluded that the District Court Judge had erred in law in setting a starting point of three years. The Court found that a starting point of two years and six months was more appropriate and allowed the appeal, reducing the sentence to one year and ten months imprisonment. This sentence was within the range available under the new regime introduced by the 2015 amendment to the Films, Videos and Publications Classification Act 1993. The Court also concluded that there was no basis to apply a discount for assisting the police or for self-referring for rehabilitation, given the appellant's lack of remorse and minimal steps towards addressing the root cause of his offending.

Orders