W v Police

[2019] NZHC 2933

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-322

[2019] NZHC 2933

BETWEEN

W

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 October 2019
Appearances:	M L Jepson for the Appellant D Muratbegovic for the Crown
Judgment:	11 November 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 11 November 2019 at 3.30 pm Registrar/Deputy Registrar

Date:

Solicitors/Counsel:      M L Jepson, Auckland

Kayes Fletcher Walker, Auckland

W v NEW ZEALAND POLICE [2019] NZHC 2933 [11 November 2019]

[1]    On 11 July 2019, the appellant was sentenced to 26 months’ imprisonment1 by Judge Bergseng in the Manakau District Court after pleading guilty to two charges of indecent exposure;2 eight charges (three representative) of indecent communication with a young person;3 one charge of an indecent act in a public place;4 and three charges of knowledgeable possession of objectionable publications.5

[2]    The appellant appeals his sentence on the basis it is manifestly excessive. In particular the appellant argues Judge Bergseng:

(a)adopted a starting point that was manifestly excessive;

(b)applied the maximum penalty for an uplift for the offence committed on bail;

(c)failed to apply appropriate and/or any discounts for identified mitigating factors; and

(d)did not consider the gravity of the effect of imposing a sentence greater than 24 months, and in particular the:

(i)ability of the appellant to complete the Safe Network Programme;

(ii)ability of the appellant to serve the sentence as home detention;

(iii)automatic registration on the Child Sex Offender Register, preventing the appellant from employment within his profession of information technology.

1      Police v W [2019] NZDC 13584.

2      Summary Offences Act 1981, s 23(1): maximum penalty of three months’ imprisonment/$2,000 fine.

3      Crimes Act 1961, s 124A: maximum penalty of three years’ imprisonment.

4      Crimes Act 1965, s 125: maximum penalty of two years’ imprisonment.

5      Films, Videos and Publications Classification Act 1993, s 131A: maximum penalty of 10 years’ imprisonment and to a fine not exceeding $50,000.

[3]    In the event that any of these arguments are accepted and the end sentence is reduced below two years’ imprisonment, the appellant submits he should be sentenced to home detention rather than imprisonment on the basis that that is not only appropriate but would enable him to undertake the treatment he acknowledges that he needs.

[4]    The Crown in contrast submits that there is no error in the sentence; the starting point, uplift and discounts were all within range, and that given the end point of the sentence there was no issue with regard to the appellant’s inability to access treatment or for his name to be included on the Child Sex Offender Register.

[5]    An appeal of this type must be allowed if the Judge is satisfied that there is an error in the sentence imposed, and a different sentence should be imposed.6 Otherwise, the appeal must be dismissed.7 The measure of error is the sentence be “manifestly excessive”, a principle “well engrained” in the Court’s approach to sentence appeals.8 Whether a sentence is manifestly excessive is to be determined by reference to the final sentence, not the route adopted to reach it,9 as how the sentence was structured is not material.10

The offending

[6]    There is no significant dispute with regard to what happened. The detail is set out in an extensive and detailed summary of facts, comprising some 29 pages.

[7]    The first offence, an indecent act, took place between 1 October 2017 and 28 February 2018 at a sports club. The appellant took his two children, aged 8 and 6, to a sports club. The appellant set up a chess set in the club rooms. He had a hidden camera up his sleeve. He then targeted a young girl, aged three to four years, who was playing on a pool table. He exposed his penis down the side of his shorts leg so that the girl could see it. He gained her attention by stroking her arm and asking her about

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].

9      Ripia v R [2011] NZCA 101 at [15].

10     Mita v R [2012] NZCA 137.

the game she was playing. He grabbed a pool ball and held it next to his exposed penis. The appellant used a bag to shield the view of his penis from others.

[8]    The second offence, obscene exposure in public, took place on 2 July 2018. On that day the appellant picked up his own children from school and supervised them while playing on the school playground. While sitting at the playground and looking at his phone, the appellant exposed his penis out of the side of his shorts to a girl playing on the playground.

[9]    The eight counts of exposure of young person to indecent material (“the s 124A offending”) occurred on 7,8 and 15 July 2018, at a children’s playground at a restaurant. To carry out his offending, the appellant put two mobile phones in the same phone case. The first phone was innocuous and designed to make it look as though the appellant was looking at his phone. The second phone was held at an angle so that only a person standing to the right and below the appellant could see the screen. It was also fitted with a privacy device, a “privacy screen protector” so that only someone standing directly in front of it could see the images. The appellant used this second phone to play pornographic video loop to children.11 While doing so, the appellant would conceal a small portable video camera up his sleeve to record each child’s reaction to watching the content.

[10]   The appellant directed his own children to play with, or nearby, his targets and on specific playground equipment. This gave the appearance to other adults of having a bona fide excuse to be near the children. The appellant also had a drink bottle with him. When his children were thirsty, they would stand on top of specific equipment while the appellant offered them a drink. With his other hand, the appellant would then show a pornographic image to a targeted victim. Using this method, the appellant targeted 41 young girls, aged between three and 10 years of age.

[11]   Following the discovery of the s 124A offending a search warrant was executed and on 26 July 2018 three objectionable images were found downloaded on a laptop owned by the appellant. All three images were close up images of what appeared to

11     I note that the pornography was not classified objectionable pursuant to s 3 of the Films, Videos, and Publications Classification Act 1993.

be pre-pubescent vagina, resulting in the possession of objectionable material with knowledge charge (“the objectionable image offending”).

[12]   On 9 June 2019, the appellant was on bail and awaiting sentence for the above offences. Despite his conditions of bail including a condition not to attend places that children are likely to frequent the appellant entered a public swimming pool because the main pool was closed and began swimming in the children’s pool. While inside the pool, the appellant exposed his genitals to a seven-year-old girl on more than one occasion (“the swimming pool offence”).

The District Court judgment

[13]   After a long preliminary section that summarised the offending, noted the victim impact statements and the mitigating factors identified on behalf of the appellant, Judge Bergseng approached the sentencing on the basis that the s 124A offending was the lead offending. His Honour commented:12

I agree with counsel that the lead charge for sentencing are the 124A charges. In this case there are eight charges, three of those charges are representative and there were 41 victims of your offending. All of your victims were vulnerable due to their young age, between three and 10 years. The offending took place in a public setting where children should be safe. The public setting that you choose being a child's playground within a fast food restaurant, that is an area that children should be safe in, and it is an area that parents should be confident in allowing their children to go and play in a manner that children should be able to play.

The extent of the harm, in respect of most of the victims we simply do not know what has happened to them, but of those that we do know, the victim impact statements speak powerfully as to the real and ongoing impact that your offending has had. It has resulted in children who have lost their public confidence. It has resulted in those children losing their freedom so that they are now being closely watched by their parents. The impact on the wider family cannot be ignored. It is very real and will be ongoing, and it is almost inevitable that many of those parents will be holding themselves responsible in some way that they somehow did not pick up on what was going on with their children.

[14]   After further discussion which included considering the limited number of cases under the section His Honour stated:13

12     Police v W [2019] NZDC 13584 at [48]–[49].

13 At [57].

… When I look at the features of your offending, which I have identified and the sheer volume of the number of victims, the starting point has to be towards the upper end of the range. It was highly planned and premediated and the effect on numerous very young children will be significant and ongoing. The approach I have taken is that all of the s 124A charges need to be approached on a global basis, and the starting point is one of two years and nine months’ imprisonment.

[15]   Judge Bergseng then considered what he described as the totality of the offending which in this case led to an uplift of four months’ imprisonment being applied for the school and objectionable image offending,14 with His Honour noting in particular:15

… The indecent act and the indecent exposure charges on their own are not the worst of their type. However, the aggravating features are that they involved targeted very young female children. I am therefore going to uplift the starting point by a further four months. That also covers the possession of the objectionable material charges. In terms of the scale of the offending they are towards the lower end of the scale.

[16]   The uplift took the Judge to a global starting point for the offending of 37 months’ imprisonment before adding a further uplift of three months for the swimming pool offence committed on bail. On that charge Judge Bergseng considered:16

[the swimming pool offence] involved the targeting of a young female child. It took place while you were on bail, and specifically in breach of a bail condition that you not go to any place where children are likely to congregate. You knew your bail conditions. Despite the fact that you were due for sentence on these charges you committed this further offending. For that offending, and the fact that it was offending while on bail, there will be a further uplift of three months. That gets me to 40 months’ imprisonment.

[17]   After noting that there were no personal aggravating factors, Judge Bergseng went on to apply a global discount of four months (10 per cent) for the appellant’s previous good character; rehabilitative steps taken to that point; and mental health issues, including issues arising from the appellant’s previous employment and family circumstances.17

14 At [58].

15 At [58].

16 At [59].

17     At [61]-[62].

[18]No specific deduction was given for remorse. The Judge considered:18

… there is not the type of remorse that would warrant a discrete reduction. There is reference in the Provision of Advice report to concerns held by the report-writer, which I discussed earlier. In the SAFE assessment that initially proceeded on the basis that you were only facing two charges and it was not until the end of the second session that you disclosed that there were additional charges to be laid. You also gave a reason for your offending being to achieve a technical challenge and as was noted to vaccinate, inoculate and protect them from the view that sex was bad for later in life. You are said to have described the situation as not wanting to shock or harm your victims, but you wanted to inform, educate and show sexual activity in a positive light.

That description of your reason for the offending is a worrying factor in terms of what you have done … and the fact that you have gone out and further offended in a similar way, while on bail, specifically selecting a young child as the victim is a very concerning factor. Accordingly, there is no reduction for remorse.

I give you the full credit that is available for your plea of guilty, that is 25 percent. From 36 months I take off nine months. The end sentence therefore is two years and two months’ imprisonment.

[19]   As the end sentence exceeded two years’ imprisonment Judge Bergseng noted that a community-based sentence was not available and that registration on the Child Sex Offender Register was mandatory.19 Finally His Honour suppressed the appellant’s name to protect his children and also suppressed details of the sports club, restaurant and school where the offending took place.

Issues raised by the appellant

Starting point

[20]   It was submitted by Mr Jepson, on behalf of the appellant, that the two years and nine months’ starting point adopted for the s 124A offending was manifestly excessive. Instead he submitted the s 124A offending, before applying any aggravating factors, fell at the lower end of the scale and, therefore, a starting point falling short of imprisonment was appropriate. In particular Mr Jepson submitted that the starting point should be assessed by reference to the gravity of “archetypal” s 124A offending against more serious offences under the Films, Videos and Publications Classification Act 1993, or the Crimes Act 1961.

18     At [63]-[64].

19     Child Sex Offender Government Agency Registration Act 2016, s 7(1(a).

Discussion – starting point

[21]   The discussion on this point was dominated by the parties’ competing submissions as to whether the appellant’s s 124A offending was amongst the most serious offending possible given the acceptance by both parties that this is not “archetypal” s 124A offending in terms of what the offence was designed to achieve.

[22]   The reality is that the appellant’s offending must be considered against what the section actually provides rather than either the explanatory note to s 124A or indeed other types of offences which sanction similar forms of behaviour. In this case the appellant’s s 124A offending was clearly caught by s 124A, hence the guilty pleas. It is clearly serious and disquieting offending given that it involves offending against a large number of victims who are amongst the most vulnerable members of our society in an area where they should feel safe, and in circumstances where their parents are also victimised. Such a conclusion is not alleviated by the fact that the offending took place in plain sight nor that the nature of offending (that there was no opportunity for the appellant to be alone with the targeted children) did not lend itself to more serious consequences than that which occurred.

[23]   More fundamentally it should not be lost sight of that the lead offending identified by Judge Bergseng for which he set a starting point of two years and nine months’ imprisonment was not a single s 124A offence but rather the eight s 124A offences.   The starting point therefore represented a  cumulative total for the eight    s 124A charges that constituted the s 124A offending. It was therefore not necessary for Judge Bergseng to conclude that the s 124A offending was the most serious offending of its type to get to a starting point close to the three-year maximum for a single s 124A charge. The subsequent uplift of four months in respect of the remaining charges other than the s 124A offending is unremarkable, and uplift for the offending on bail is considered below. As a result, while the starting point could have been constructed differently I am satisfied the end point reached by Judge Bergseng appropriately recognises the seriousness of the s 124A offending in respect of all eight charges, and that as a result the two years and nine months’ starting point was not in error.

Uplift for offending on bail

[24]   Mr Jepson submitted that, although aggravating factors are present in the appellant’s offending while on bail, the offending was not within the most serious of cases so as to warrant a three-month uplift. While Mr Jepson accepted that the fact the swimming pool offence occurred while the appellant was on bail is an aggravating factor, he submitted that it was not enough to place the actions within the most serious of cases. Instead, it was submitted a one-month uplift was sufficient.

Discussion – uplift for offending on bail

[25]   As with the starting point there can likewise be no  issue  with  whether  Judge Bergseng was entitled to impose a three-month uplift for the offending on bail. While the offence committed on bail, a charge of indecent exposure pursuant to s 27 of the Summary Offences Act 1981 carried only a maximum possible sentence of three months’ imprisonment, it is clear that the uplift imposed did not represent the imposition of a maximum sentence on this charge. On the contrary, because the offending on bail was treated as an uplift to the lead s 124A offending, as is specifically provided for in s 9(1) of the Sentencing Act 2002, the three months represented both the seriousness of the offending and the fact that it occurred while on bail prior to sentencing, and as such there can be no dispute that such an uplift was within the available range.

Mitigating factors

[26]   Mr Jepson submitted that the global four months or 10 per cent discount given by Judge Bergseng did not appropriately reflect the large number of matters raised on behalf of the appellant at the time he was sentenced including his:

(a)remorse;

(b)previous good character;

(c)personal circumstances at the time of the offending;

(d)the steps taken toward rehabilitation including enquiries into services available for treatment and obtaining a psychological report; and

(e)the offer to attend restorative justice and to provide reparation to those victims where it was appropriate to do so.

[27]   In summary, Mr Jepson submitted that the 10 per cent given by Judge Bergseng really only put the appellant into the same position as any other defendant with no previous convictions who retained the support of his family, and in this case the appellant should not have ended up in a similar or worse position than if he had taken no steps to obtain treatment or seek rehabilitation.

[28]   In contrast, Mr Muratbegovic submitted that while some credit was appropriate for the appellant this had been adequately reflected  in  the  discount  given  by  Judge Bergseng. Significantly, the Crown submitted that no further discount for previous good character was justified given the spread of the offending, while evidence showed no causative link between any mental health issues experienced by the defendant and the offending. In addition, no further discount for rehabilitative steps taken or remorse was warranted, given the offending on bail and the conclusions reached in the Provision of Advice to Courts (PAC) Report.

Discussion – mitigating factors

[29]   Having had the opportunity to consider the mitigating factors, I am satisfied that overall there should in fact have been a greater allowance given for the factors that have been identified.

[30]   Judge Bergseng was clearly entitled not to give a discrete discount for remorse given the somewhat evasive nature of the appellant’s responses recorded in the PAC Report as well as equally implausible explanations for his conduct apparent from both the SAFE assessment and psychological reports, and indeed in the appellant’s lack of willingness to discuss his offending with the counsellor he was seeing at the same time.

[31]   Despite those matters, I am satisfied greater credit should have been given to the other mitigating factors identified, namely the appellant’s previous good character and, in particular, the appellant’s attempts to obtain treatment, and, linked with this, his prospects of rehabilitation. Similarly, I am also satisfied credit should have been given for the appellant’s stated willingness to engage in restorative justice and provide restitution where it was appropriate to do so.

[32]   In this regard I accept Mr Jepson’s submission that in the particular circumstances of this case, the appellant should get a greater discount for the lack of previous offending. While the school offending took place in approximately late 2017, and the swimming pool offending on bail immediately before sentencing in June 2019, the overwhelming majority of the offending occurred within a very discrete period in July 2018. I do not therefore consider the offending is of the type of prolonged or hidden offending that would preclude recognition of his previous lack of offending. Likewise, while the appellant also pleaded guilty to the objectionable image offending, this too must be seen in a context where the appellant had what can only be described as a vast library of legal pornography across a large number of devices and storage systems which did not include any other such images. The three objectionable images were in fact found in the download section of one of the appellant’s many computer devices, and there was no evidence before the Court to suggest the appellant had otherwise sought out or accessed such material, with the relative seriousness of this offending recognised by the fact that it formed part of the overall four month uplift for the remaining offending.

[33]   The appellant also deserves proper credit for undertaking an assessment at his own expense and, however reluctantly, accepting that he requires treatment through the identified Safe Network Programme, and has taken concrete steps to enable that treatment to occur.

[34]   The fact that the appellant offended on bail notwithstanding the steps he had taken should not be overstated. That offending, as noted, has been recognised by a three-month uplift and it is important not to double-count the effect of the offending on bail. The fact of that offending on bail makes it clear the importance of the

appellant receiving the treatment programme identified in order to minimise the chance of further offending at the time he completes his sentence.

[35]   While restorative justice and reparation were not appropriate with regard to the child victims and indeed their parents, it was a possible option in respect of the sports club which had identified monetary losses arising from a number of cancelled memberships.

[36]   Taking these matters together, I am satisfied that a total discount of 20 per cent should have been applied. While this is not greatly different from the discount given by Judge Bergseng, in the particular circumstances of this case the limited discount applied has led to a sentence which is manifestly excessive. Instead, applying a 20 per cent discount to the final uplifted starting point of 40 months this results in a sentence of 32 months’ imprisonment before deduction of the guilty plea. Deducting the 25 per cent for the guilty plea (which is not challenged) results in a notional end sentence of 24 months’ imprisonment.

[37]   As 24 months’ imprisonment allows consideration of the appropriateness of a non-custodial sentence and also means the appellant’s registration n on the Child Sex Offender Register is discretionary, it is not necessary to consider whether a further discount should have been allowed for the effect imprisonment and/or registration would have had. Instead it is necessary to consider whether a non-custodial sentence is appropriate for the balance of the appellant’s sentence and whether or not registration on the Child Sex Offender Register is appropriate.

Home detention?

[38]   When considering whether to impose a sentence of home detention instead of imprisonment, it is in particular necessary to bear in mind the desirability of keeping offenders in the community so far as it is practicable and consonant with the safety of the community.20 Home detention has been recognised by the Courts as being itself serious punishment and is regarded as meeting the need for a deterrent sentence in an appropriate case.

20     Section 16(1).

[39]   In this case I accept Mr Jepson’s submissions that the interests of justice are best served in this case by the substitution of a sentence of home detention for the appellant’s remaining term of imprisonment. In particular, I note the proposed home detention address is located in a rural area with the appellant’s parents who have been assessed as pro-social influencers upon the appellant. Given the nature of the appellant’s offending I am satisfied the proposed home detention location significantly reduces the possibility of re-offending but at the same time will mean the appellant can immediately commence the SAFE programme at his own expense, in order to maximise the chance of successful rehabilitation, as well as his future reintegration back into the community.

[40]   As I have concluded that home detention is appropriate, I note that had the appellant been required to serve out his sentence of imprisonment he would now be entitled to an early release after having served only half of that period. Early release does not however apply to home detention, and as it is customary to have the period on home detention to reflect that. As a result, taking into account the four months’ imprisonment served to date, the final sentence is eight months’ home detention.

Registration on the Child Sex Offender Register?

[41]   In the event that the appellant’s registration on the Child Sex Offender Register was discretionary it was Mr Jepson’s submission that such registration was both unnecessary and inappropriate. First, Mr Jepson submitted that the appellant’s offending was not sufficiently serious to warrant registration and that, in addition, the information required by registration was inconsistent with future employment in the IT industry, and would therefore preclude him from pursuing his career.

Discussion – Child Sex Offender Register

[42]   Notwithstanding Mr Jepson’s submissions, I am satisfied that it is appropriate for the appellant to be registered on the Child Sex Offender Register. First, as noted, the appellant’s offending was serious involving as it did predatory behaviour. Secondly, and most importantly, in granting the appellant name suppression primarily in order to protect the identity of his sons, Judge Bergseng noted that the victims could nonetheless rely on the fact that the appellant would be registered on the Child Sex

Offender Register.21 In circumstances where the appellant otherwise has his name suppressed, it is important that he be subject to ongoing monitoring through registration to further assist in his rehabilitation so as to ensure he is aware he will continue to be monitored for a significant period. Furthermore, in the absence of any credible supporting evidence it is difficult other than to conclude that the objections to registration identified by Mr Jepson are overstated. In particular, while the appellant has held a senior IT role in the past he has in fact been unemployed for nearly two years and had not attempted to re-engage in the field for the considerable period before this offending. Likewise, Mr Jepson appeared to be taking a fairly expansive view of both the systems that the appellant would have to disclose as including all those belonging to other employers for which he was responsible for maintenance, as well as the extent that information about those systems would have to be disclosed in a manner contrary to any employers’ interests.

[43]Instead I conclude that registration is both appropriate and necessary.

Decision

[44]   The appeal is allowed. Taking into account the appellant has spent four months imprisonment since sentence this results in a substituted end sentence of eight months’ home detention to be served at the address and on the conditions as set out in the PAC Report dated 11 April 2019.

Powell J

21     Police v W [2019] NZDC 13584 at [79].