W v Department of Internal Affairs
[2013] NZHC 3164
•29 November 2013
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT PROHIBITED BY S 201
OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-75 [2013] NZHC 3164
BETWEEN W Appellant
ANDDEPARTMENT OF INTERNAL AFFAIRS
Respondent
Hearing: 26 November 2013
Counsel: I M Antunovic for Appellant
S A H Bishop and T M Badland for Respondent
Judgment: 29 November 2013
JUDGMENT OF GODDARD J
This judgment was delivered by me on 29 November 2013 at 3.00 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Wellington for Respondent
W v DEPARTMENT OF INTERNAL AFFAIRS [2013] NZHC 3164 [29 November 2013]
[1] The appellant was convicted and sentenced in the District Court at Wellington on 8 October 2013 to 250 hours community work and 18 months intensive supervision following pleas of guilty entered to six charges of possession of objectionable material.
[2] The appellant had sought a discharge without conviction under s 106 of the Sentencing Act 2002 but this was declined by the sentencing Judge, Judge Broadmore. The Judge, however, granted the appellant permanent name suppression.
[3] The grounds of appeal are stated as follows:
(a) the learned Judge was wrong not to grant a discharge without conviction on each of the six charges;
(b)the learned Judge erred by placing too much weight on the gravity of the offending;
(c) the learned Judge erred by placing too little weight on the various mitigating or favourable factors; and
(d) the entry of convictions on the six charges is manifestly excessive.
[4] An appeal against a determination of the disproportionality test under s 107 is not an appeal against an exercise of discretion but is a general appeal which requires this Court to come to its own view on the merits.1 The weight that this Court will give to the judgment under appeal is itself a matter of judgment.2
The objectionable publications
[5] The objectionable publications are images of young pre-pubescent girls ranging in age from about six to 12 years. Two involve sexual activity with adult
males. I have viewed the material and regard it as extremely disturbing. I do not
1 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12].
2 Kumar v New Zealand Police HC Auckland CRI-2010-404-140, 17 June 2010 at [12]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
deem it necessary to describe what is depicted in any detail for the purposes of this judgment but the material was rightly categorised by Judge Broadmore as coming within level four of the five categories of seriousness.3 As Judge Broadmore noted, any offending of this nature is serious, involving as it does the exploitation of innocent children.
[6] The brief facts of the appellant’s offending are that, after a period of browsing the internet for certain images, in January 2012 he accessed a password protected area of an internet website established to allow users to post image files. An email message sent by the appellant from his email address to another person attaching six images from the website was intercepted by the National Centre for Missing and Exploited Children in the United States of America and reported to the Censorship Compliance Unit of the Department of Internal Affairs in New Zealand.
[7] Following his arrest, the appellant and his wife were interviewed by Dr Justin Barry-Walsh, a forensic psychiatrist and specialist assessor. Various difficulties experienced by the appellant during his growing up years and early adult life were canvassed. On the basis of the materials available to him, Dr Barry-Walsh concluded that the appellant had a background of a personality characterised by exaggerated interpersonal sensitivity, low self-esteem and a pattern of self- destructive behaviour resulting in a major depressive illness with several episodes of marked depression and longer term chronic low mood. Fractured early family relationships with limited maternal attachment and reported recovered memories of sexual abuse were found by Dr Barry-Walsh to be “plausible antecedents” to the appellant’s offending.
[8] The appellant denied sexual motivation for his offending and described a pattern of utilising pornography to reinforce feelings of low self-worth and self-disgust prior to the offending.
[9] The appellant has recovered from his depression although is said to remain at risk of further relapses.
3 See R v Zhu [2007] NZCA 470 at [13]-[14].
[10] A report compiled by WellStop placed him in the low risk category of reoffending and provided the Court with a list of recommendations for completion of a WellStop group treatment programme.
[11] Since recovering from his depression the appellant has worked very hard to try to put his life into order, by reducing debt, rehabilitating his marriage and working fulltime in a responsible job in which he has clearly been acquitting himself very competently. He is 36 years of age and has been married for 15 years and he and his wife have five children between the ages of one and 16 years. Notably, the appellant has no prior convictions.
[12] The plea for a discharge without conviction was based on the appellant’s belief that if he is convicted of the subject offending, he will lose his current employment and ability therefore to support his wife and family. This is a major concern and it seems if that were to happen, there may be no alternative to bankruptcy. Obviously such a catastrophic outcome would greatly affect the appellant’s ongoing rehabilitation.
[13] A further submission was made that it is likely any future prospective employers would require a declaration of any criminal convictions and thus the appellant will be disadvantaged in this as well. Another flow-on effect is that his current employment requires him to travel overseas from time to time and convictions may well preclude his ability to easily do so.
[14] The submission was made to Judge Broadmore that if the appellant were to maintain his commitment to rehabilitation and attendance at the WellStop programme, he is most unlikely to ever offend again.
The sentencing decision
[15] In a careful and thorough sentencing decision in which he traversed all relevant matters with great care, Judge Broadmore adopted a low starting point of nine months imprisonment, after considering all of the appellant’s personal circumstances. These included finding that the offending had its immediate origins in a major depressive illness, the last episode of which was associated with a
significant business failure and suicidal thoughts. The Judge observed that Dr Barry- Walsh had accepted the offending was associated with this illness. He noted that the appellant was now performing at a high level in a well-known firm with nothing to suggest that he could not put the offending behind him and continue to make a success of his life.
[16] The Judge did not allow any uplift to the starting point of nine months imprisonment for any aggravating factors relating to the offending, nor make allowance for any mitigating factors relating to the offending. A full one-third discount was allowed for the early guilty pleas and the appellant’s remorse, which reduced the sentence to one of six months imprisonment. The Judge then considered the mitigating personal circumstances he had already identified and referred to. Having regard to these personal circumstances, the Judge allowed a further two months discount, resulting in a final potential sentence of four months imprisonment.
[17] In the event, the Judge imposed the community-based sentences outlined in
[1] above. In declining to discharge the appellant without conviction, the Judge said:
... I accept that the Sentencing Act 2002 directs Judges to consider whether offending can be addressed by such a discharge as a first step in the sentencing process. I further accept that Mr Antunovic has correctly formulated the basis on which I should make the decision, that is, by considering firstly the gravity of the offending, secondly the consequences of a conviction, thirdly, the issue of disproportionality between those two matters, and finally, the exercise of discretion.
In concluding that your offending would justify the sentence I have already indicated, I have addressed the issue of gravity. In particular, I accept the significance of mental health in your offending and as a factor that entered my analysis. Nevertheless, as I have already also observed, any offending of this kind is serious in that it involves exploitation of children.
[18] Having declined a discharge without conviction, the Judge did, however, grant permanent name suppression on the basis that if the appellant’s name were to be published, it would put his rehabilitation at risk, as Dr Barry-Walsh had advised. The Judge was of the view that, given the appropriate steps the appellant was taking to rehabilitate himself and his family relationships; and the strain on the latter and exposure of the appellant’s children to “shame, ridicule and ostracism”; and the risk of job loss, permanent name suppression was justified in the public interest.
Discussion
[19] Having listened carefully to the competing arguments advanced in this Court and having read the decision of Judge Broadmore and all of the relevant reports, I am unable to find the disproportionality test in s 107 is met.
[20] Despite the difficult personal factors that may have surrounded the appellant’s offending at the time and his laudable efforts to rehabilitate his life and to acquit himself conscientiously in his employment since then, the very nature of the offending and the complete abhorrence with which it must be regarded precludes making an exception in his case. Offending of this kind must command zero tolerance if there is to be any hope of defeating it. A clear message must be sent, leaving no room for doubt, that subscribing to the sexual exploitation of children through adult voyeurism cannot be condoned or excused. Not to send such a message and to allow exceptions for factors personal to an adult transgressor would seriously undermine the fight against child exploitation. I do not see any abdication of judicial discretion in taking such a narrow approach to this pernicious area of crime. It does not automatically rule out an allowance being made for a truly exceptional case, if one were to present: perhaps, for example, where an offender him or herself was a juvenile. It will in my view, however, be a very rare case indeed in which personal factors can be found to outweigh the seriousness of offending involving child exploitation, and particularly where a step has been taken to pass on such material.
[21] In the appellant’s case, despite the eloquence and sincerity with which Mr Antunovic advanced his case and while acknowledging all of the positive aspects of the appellant’s character and his conduct otherwise; his rehabilitative efforts in recent years; and the considerable gains he has made in his professional and personal life, I cannot find that the seriousness of the consequences of conviction for the appellant outweigh the grave nature of this offending. Nevertheless it is appropriate to express the hope that the appellant will not lose his current employment, as I do not see that as an inevitable consequence. While the necessarily exemplary nature of the sentence leaves the Court little room for personal consideration, an employer is not in the same situation.
[22] I note that in order to assist the appellant’s ongoing progress and the clear efforts he is making to rehabilitate himself, he has the advantage of the permanent name suppression order made by Judge Broadmore, which is not under appeal in this Court.
[23] The sentence of community work and intensive supervision with counselling imposed by Judge Broadmore will not be disturbed.
Result
[24] Appeal dismissed.
Goddard J
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