TIMOTHY PHILIP GREEN AND THE KING - [2024] NZHC 2961

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…

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: [2024] NZHC 2961
Decision Date: 11 October 2024

CaseChat Overview and Summary

Timothy Philip Green, the appellant, appeals his four-year imprisonment sentence imposed by Judge Gilbert on charges including possession and distribution of objectionable material, failing to comply with obligations under the sex offender’s register, and breaching an extended supervision order. The respondent, The King, defends the sentence. The central legal issue is whether the starting point for the objectionable publication charges was set correctly, leading to an end sentence that is not manifestly excessive.

The Court examined the facts of the case, including the highly premeditated nature of the offending, Mr Green's history of relevant prior convictions, and the content and volume of objectionable material found. The Judge had considered these factors and set a starting point of three years and nine months' imprisonment for the objectionable material charges. The Court compared this starting point with other cases on broadly similar charges and found that the starting point was within the appropriate range. The Court noted the importance of video content over still images and the nature of the sexual activity depicted. While the starting point was at the upper end of the permissible range, the Court concluded that the overall sentence was not manifestly excessive given the nature and volume of the material, the pre-meditated nature of the offending, and the need for deterrence and denunciation.

The appeal is dismissed, and the original sentence is upheld.

Orders