TIMOTHY PHILIP GREEN AND THE KING
[2024] NZHC 2961
•11 October 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-193
[2024] NZHC 2961
BETWEEN TIMOTHY PHILIP GREEN
Appellant
AND
THE KING
Respondent
Hearing: 10 October 2024 Appearances:
A J McKenzie for Appellant
B W D Alexander for Respondent
Judgment:
11 October 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 11 October 2024 at 1.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
GREEN v R [2024] NZHC 2961 [11 October 2024]
Introduction
[1] Timothy Green (38) pleaded guilty to three charges of possessing objectionable material (representative),1 one charge of distributing objectionable material,2 four charges of failing to comply with obligations under the sex offender’s register,3 one charge of failing to comply with obligations under the Search and Surveillance Act 2012,4 and two charges of breaching an extended supervision order.5 On 6 August 2024 he was sentenced by Judge Gilbert to four years’ imprisonment.6
[2] Mr Green appeals his sentence on the basis the Judge erred in setting the starting point for the objectionable publication charges leading to an end sentence that is manifestly excessive.
Background
[3] On 27 March 2017, Mr Green was advised that he was subject to the New Zealand Child Sex Offender Register as a result of convictions that were entered against him.
[4] As part of that, Mr Green is required to make an annual periodic report. He must report any routing or modem device, including a mobile phone, used or intended to be used by him. He also needs to report usernames for any online social networks, online gaming accounts, online storage accounts and email addresses that he uses or intends to use. Any change to his mobile phone, any online social network username or email address must be provided to the police who administer the Child Sex Offender Register within 72 hours of those changes.
1 Films, Videos and Publications Classification Act 1993, s 131A(1). Maximum penalty: 10 years’ imprisonment.
2 Section 124(1). Maximum penalty: 14 years’ imprisonment.
3 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39. Maximum penalty: one year’s imprisonment or a fine not exceeding $2,000.
4 Search and Surveillance Act 2012, s 178. Maximum penalty: three months’ imprisonment.
5 Parole Act 2002, s 107T. Maximum penalty: two years’ imprisonment.
6 R v Green [2024] NZDC 18462.
The facts
[5] On 18 July 2023, a search warrant was executed at Mr Green’s address. He was absent. A Spark router was found plugged in and operational at the address. Mr Green failed to report the details of that router or of any internet service provider as he was required to.
[6] Later that day, Mr Green was located and found in possession of two smart phones. He acknowledged ownership, despite the fact he had not reported these devices. He then declined to provide unlock codes to either, despite a police officer’s request.
[7] On 18 and 19 July 2023, all the electronic devices that were seized from Mr Green and his home were delivered to the Digital Forensic Unit for examination. They included the two phones, an iPad, and a desktop computer that had been built into a stereo case to mask its appearance. An analysis of the phone showed Mr Green had been using a Snapchat account and a TikTok account which he had failed to report the details of.
[8] Stemming from the forensic search of Mr Green’s disguised computer, 22 electronic image files and one electronic image file of child exploitation material were located.
[9] From the examination of one of the phones, 133,784 files were extracted. Forensic software located 415 image files and 39 video files, all child exploitation material that had previously been categorised as objectionable by law enforcement agencies based either within New Zealand or internationally.
[10] Due to the large volume of objectionable image files located, a cross-section of 11 files were analysed and organised. However, all 39 of the video files were individually analysed and organised into appropriate categories for objectionable publications.
[11] From the examination of Mr Green’s iPad, two video files were located and deemed objectionable.
[12] The aggregate of objectionable materials located cover all categories of objectionable publications, including 27 videos and seven images in category A (penetrative sex or images involving bestiality or sadism with children); nine videos and 10 images in category B (non-penetrative sexual activity with children); and one video and three images in category C (images not falling into the first two categories).7
[13] On 25 May 2023, Mr Green used Snapchat to send a file to another Snapchat user. The file was a category B image.
Sentencing decision
[14] The Judge noted the “highly premeditated” nature of the offending, with reference to the computer concealed in the stereo unit, as well as his history of relevant prior convictions, stretching back to 2005, where Mr Green received a sentence of imprisonment for intercourse with a female aged between 12 and 16 and committing an indecent act with a girl of the same age. He received further sentences of imprisonment in 2013, 2016 and 2018 for sexual offending. Further sexual offending occurred in 2019, 2020 and 2021.
[15] The Judge noted Mr Green’s lack of impulse control, his record of offending stretching back to 2005 and the high risk of reoffending he presented. He considered the need to hold Mr Green accountable for the harm caused, as well as the need to recognise the fact that offenders like Mr Green create the market for producers of objectionable material. The need for deterrence and community protection was clear, but the Judge also referred to his duty to impose the least restrictive outcome and Mr Green’s rehabilitative needs. The Judge considered a starting point of three years and nine months’ imprisonment was appropriate for the objectionable material charges.
7 R v Zhu [2007] NZCA 470 at [15]; Snell v R [2022] NZHC 1627 at [5]; Pattison v Police [2018] NZHC 2163 at [11]. New Zealand has adopted these categories from the United Kingdom sentencing guidelines: Sentencing Council for England and Wales “Sexual Offences Definitive Guideline” (April 2014) at 76.
[16] The Judge imposed an uplift of nine months for the balance of the offending. He imposed a further uplift of 10 per cent to account for Mr Green’s previous criminal history, which the Judge considered was both relevant and extensive.
[17]The Judge allowed a 20 per cent discount for Mr Green’s guilty plea.
[18]Accordingly, the end sentence was four years’ imprisonment.
Law on appeal
[19] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.8 Otherwise, the appeal will be dismissed.9 The sentence must be manifestly excessive before this Court will substitute its own views as to the appropriate sentence. This Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.11
Appellant submissions
[20] Mr Green appeals his sentence on the sole ground that the starting point adopted by the Judge of three years and nine months’ imprisonment for the objectionable publications, with reference to the case law, was too high. Mr McKenzie for Mr Green submits this led to an overall sentence that was manifestly excessive.
[21] Mr McKenzie submits further that although no challenge is made to the remaining sentence components, the reduction of the starting point has downstream consequences in that there should also be a corresponding reduction to the later uplifts for residual offending and previous convictions.
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
11 Ripia v R [2011] NZCA 101 at [15].
Respondent submissions
[22] Mr Alexander, for the Crown, submits the starting point adopted by the Judge for the objectionable publication offending was available and within range. In particular, Mr Alexander relies on Snell v R, which involved importation and possession of objectionable material but not distribution, as here, and where a starting point of four years’ imprisonment was taken.12 More importantly, he submits the overall starting point of four and a half years’ imprisonment was appropriate for the totality of the offending, so there is no error in the sentence imposed.
Discussion
[23] Mr McKenzie has submitted the starting point was too high in comparison to analogous cases and that the Judge did not refer to those in his assessment. While I accept the Judge did not specifically refer to authorities, I consider the Judge took great care to assess the specific facts of Mr Green’s case, the content and volume of the files, the circumstances of offending, previous convictions, the pre-sentence report, and the purposes and principles of sentencing per the Sentencing Act.
[24] I also note it is difficult to compare cases in this area given the varying circumstances and combinations of charges that may be brought before the courts.13 Nonetheless, I accept Mr McKenzie’s point that reference to case law can be useful, at least to identify principles which guide sentencing in these cases.
[25] The starting point of three years and nine months’ imprisonment adopted recognised the “objectionable images charges including the distribution”.14 In order to test the appropriateness of this starting point I compare it to the starting points taken in other cases on broadly similar charges:
(a)Pattison v R:15 Edwards J upheld a starting point of three years and six months’ imprisonment for distribution charges and uplifted that by 12 months for possession, recognising that 18 months would also have
12 Snell v R [2022] NZHC 1627.
13 Robinson v Police [2017] NZHC 2655 at [50].
14 R v Green, above n 6.
15 Pattison v Police, above n 7.
been an appropriate uplift but for totality.16 Here, Mr Pattison had distributed two images and two video files, the two videos being clear category A materials, one image being category B and one image being category C. Mr Pattison’s hard drive contained 874 objectionable publications, with 128 being category A and 126 being category B.
(b)Tilyard v Police:17 Davidson J considered a starting point of two years and six months’ imprisonment appropriate on distribution charges and imposed a one-year concurrent sentence on the possession charges. The appellant had distributed 128 images of child exploitation and possessed 700 images that could be classed as objectionable. Apart from three serious images, the content was category C, leading the Judge to assess culpability on that basis.18
(c)Robinson v Police:19 Mr Robinson was charged with the distribution of 15 videos and possession of 20. The content itself was described as “extremely objectionable” by Fitzgerald J, the majority depicting adult men subjecting children to penetrative activity.20 Fitzgerald J upheld a global starting point of seven years’ imprisonment for both charges, while acknowledging such a starting point was at the upper end of the permissible range.21
(d)Snell v R:22 Mr Snell was caught with 285 still images and 21 videos on his phone. 50 images and ten videos consisted of child abuse within category A, 48 images and ten videos were within category B and the rest C. Charged with possessing objectionable material and importing objectionable material (both with 10-year maximum penalties),
16 Pattison v Police, above n 7, at [56].
17 Tilyard v Police [2016] NZHC 1377.
18 At [21]–[23].
19 Robinson v Police, above n 13.
20 At [9]–[10].
21 At [51].
22 Snell v R, above n 12.
Downs J labelled the District Court’s four-year starting point “unremarkable”.23
(e)Campbell v R: In this decision I upheld a starting point of four years’ imprisonment on a charge of possession of 37 images and video files, including a number in Category A and a charge of distributing 10 of these images and videos to one other person.24
[26] What can be gleaned from these and other cases are the following sentencing principles:
(a)distribution of any objectionable material warrants a higher sentence than where the charge only relates to possession;25
(b)video content is potentially more serious than still images as it “draws the viewer into the abuse of the child in a more direct and immediate way” and is more exploitative of the victim;26
(c)the nature of the sexual activity depicted, so that offending involving Category A content will attract significantly higher sentences than offending involving less serious content;27
(d)the age of the children involved, so that the younger the children, the greater the aggravating nature of the offending;28
(e)the amount of material possessed, although this needs to be treated with caution noting Katz J’s comments in Stewart v Department of Internal Affairs that internet technology facilitates the collection of high volumes of such material and quantity is therefore a “blunt tool” in assessing culpability.29
23 Snell v R, above n 12, at [63].
24 Campbell v R [2024] NZHC 2874.
25 Robinson v Police, above n 13.
26 Pattison v Police, above n 7 at [48(b)].
27 Tilyard v Police, above n 17.
28 Pattison v Police, above n 7 at [48(c)].
29 Stewart v Department of Internal Affairs [2014] NZHC 2209 at [42].
[27] The starting point in Mr Green’s case recognised both the distribution and the possession offending. An examination of just one of Mr Green’s phones turned over 415 images and 39 videos that had been classified as objectionable. That is more video content than Robinson and Snell, and I concur with Edward J’s view that video content is more serious than still content.
[28] There was more raw material in Tilyard and Pattison. Here, two-thirds of the video material assessed, and just under half of the still images, were considered to be category A material.
[29] I consider Mr Green’s offending is less serious than that in Robinson and Pattison which is reflected in their higher starting points. Tilyard is distinguishable on the basis that it involved category C material and this had an appreciable effect on the Judge’s view of culpability and severity of conduct.30 Here, a large proportion of the material at issue is category A. The offending most closely mirrors Snell and Campbell and I note the starting point taken in Mr Green’s case is three months lower than in both these cases.
[30] In summary, having regard to relevant cases, I am satisfied the starting point was within range albeit at the upper end given the relatively low seriousness of the distribution charge which involved just one category B image.
[31] No other issue is taken with the sentencing process, and the deliberate, deceptive and repeated nature of Mr Green’s other offending clearly warranted a material uplift on sentence given the risk he poses and the need for deterrence and denunciation.
[32]The end sentence is therefore not manifestly excessive.
30 Tilyard v Police, above n 17, at [45].
Result
[33]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
A J McKenzie, Barrister, Christchurch
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