Walsh v The Queen
[2016] NZHC 2747
•16 November 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2016-485-79 [2016] NZHC 2747
BETWEEN IAN JAMES WALSH
Appellant
AND
THE QUEEN Respondent
Hearing: 8 November 2016 Counsel:
C J Tennet for appellant
S W P Woods for respondentJudgment:
16 November 2016
RESERVED JUDGMENT OF DOBSON J
[1] This is an appeal from a sentence of two years and three months’
imprisonment imposed in the Wellington District Court by Judge Hobbs on
8 September 2016.1 The appellant (Mr Walsh) had pleaded guilty to one of each of the following charges:
· making an objectionable publication;
· indecent communication with a person under 16;
· travelling to meet a young person following sexual grooming.
[2] Mr Walsh entered guilty pleas to all three charges promptly after receiving a sentence indication from the Judge, and was sentenced consistently with that sentence indication. The Crown accepts that those circumstances are not relevant to
the entitlement of Mr Walsh to appeal, or the grounds raised in doing so.
1 R v Walsh [2016] NZDC 17507.
WALSH v R [2016] NZHC 2747 [16 November 2016]
The circumstances of the offending
Indecent communications, and travelling to meet a young person following sexual grooming
[3] In February 2016, Mr Walsh made contact via a networking website on the internet with a person who described herself as a 13 year old girl. In May 2016, the two began communicating by text messages. Mr Walsh sent the recipient some hundreds of messages between 25 May and 2 June 2016, many of which were sexually explicit. They describe the sexual acts he wanted to do with her including sexual intercourse and taking her virginity.
[4] The recipient messaged that she was 13 years old and at high school. Mr Walsh responded that it did not matter if she was at college or intermediate, or that 13 was her age. Mr Walsh directed the recipient to delete the messages he was sending so that her mother would not see them, and that their “relationship” had to be kept secret from her parents because if he was caught it would be jail for him.
[5] After trying to meet on Saturday, 28 May 2016, which did not happen, Mr Walsh made arrangements to meet the recipient of his communications at a McDonald’s restaurant in Newtown, Wellington, on Thursday, 2 June 2016. His stated intentions were to collect the recipient from the restaurant and return to his flat so they could have sex. He understood she had a free period off school.
[6] The recipient was a fictitious identity being used by an investigating officer. When Mr Walsh arrived at the restaurant for the meeting he had arranged by text message, he was arrested.
[7] These charges were brought under ss 124A and 131B of the Crimes Act 1961. Those sections provide as follows:
124A Indecent communication with young person under 16
(1) A person of or over the age of 16 years is liable to imprisonment for a term not exceeding 3 years if he or she intentionally exposes a person under the age of 16 years (the young person) to indecent material (whether written, spoken, visual, or otherwise, alone or in combination) in communicating in any manner, directly or indirectly, with the young person.
(2) A reference in subsection (1) to a person under the age of 16 years, or to the young person, includes a reference to a constable (as defined in section 2(1)) who pretends to be a person under the age of
16 years (the fictitious young person) if the person charged with an offence against subsection (1), when communicating with the
fictitious young person and exposing the fictitious young person to
indecent material, believed that the fictitious young person was a person under the age of 16 years.
(3) It is a defence to a charge under subsection (1) if the person charged proves that,—
(a) before communicating with the young person and exposing the young person to the indecent material, the person charged had taken reasonable steps to find out whether the young person was of or over the age of 16 years; and
(b) at the time of communicating with the young person and exposing the young person to the indecent material, the person charged believed on reasonable grounds that the young person was of or over the age of 16 years.
(4) It is no defence to a charge under subsection (1) that the person charged did not know that the material to which the charge relates was indecent, unless the person charged also proves—
(a) that the person charged had no reasonable opportunity of knowing it; and
(b) that in the circumstances the ignorance of the person charged was excusable.
(5) No private prosecution (as defined in section 5 of the Criminal Procedure Act 2011) for an offence against this section can be commenced without the Attorney-General’s consent.
131B Meeting young person following sexual grooming, etc
(1) Every person is liable to imprisonment for a term not exceeding 7 years if,—
(a) having met or communicated with a person under the age of
16 years (the young person) on an earlier occasion, he or she takes one of the following actions:
(i) intentionally meets the young person:
(ii) travels with the intention of meeting the young person:
(iii) arranges for or persuades the young person to travel with the intention of meeting him or her; and
(b) at the time of taking the action, he or she intends—
(i) to take in respect of the young person an action that, if taken in New Zealand, would be an offence against this Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA(1); or
(ii) that the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand, be an offence against this Part on his or her part.
(1A) A reference in this section to a young person under the age of
16 years or the young person includes a reference to a constable who pretends to be a young person under the age of 16 years (the fictitious young person) if the offender, when taking any of the actions described in subsection (1), believed that the fictitious young person was a young person under the age of 16 years.
(2) It is a defence to a charge under subsection (1) if the person charged proves that,—
(a) before the time he or she took the action concerned, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years; and
(b) at the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years.
Making an objectionable publication
[8] When Mr Walsh was arrested on the Crimes Act charges, the Police searched his mobile phone. They found video files including an objectionable one of some four minutes and 37 seconds in length. The video was made up of four files that recorded the filming of live stream video. During the relevant activity, Mr Walsh was using a computer to communicate with an unknown person via Facebook video call. The unknown person was filming a naked child and sending Mr Walsh the video in real time as they filmed it. The video files on Mr Walsh’s phone were a recording of his filming his computer screen as the filming occurred.
[9] The film shows a young pre-pubescent female child sleeping naked on a bed. During the filming, Mr Walsh can be heard directing the person holding the camera to move it around and zoom in or out at various times. He directs the person mostly to film the child’s genitals and makes sexual comments about the child’s body, and the sexual acts he would perform with her. Although Mr Walsh’s own physical
activity is not shown on the video, it is evident that he is masturbating to the point of ejaculation during the filming. This filming occurred in May 2016.
[10] This charge was the most serious, carrying a maximum penalty of 14 years’ imprisonment. The charge was brought under s 124 of the Films, Videos and Publications Classification Act 1993, which makes it an offence, among other things, for a person to make an objectionable publication or have one in the person’s possession, knowing or having reasonable cause to believe that the publication is objectionable.
The District Court sentencing
[11] Judge Hobbs first considered the offending involved in texting and travelling to meet the recipient. The Judge rejected an argument from Mr Tennet that the recipient being fictitious was a factor to be taken into account. The Judge identified the extent of pre-meditation and the number of messages and adopted a starting point of 12 months’ imprisonment, which he treated as the minimum for offending of that kind.
[12] On the charge of production of an objectionable image, the Judge noted that sentencings in New Zealand have adopted guidelines used in the United Kingdom for similar offending. He identified as aggravating features the young age of the child, the four separate videos from filming directed by Mr Walsh in a single session, and that he had engaged in sexual gratification whilst directing the filming. The Judge adopted a starting point of two years’ imprisonment.
[13] The Judge treated the two sets of offending as distinct, and that they should be dealt with by way of cumulative sentences. Having added the two and one year starting points, he was satisfied that the cumulative total did not offend the totality principle.
[14] The Judge afforded Mr Walsh a full 25 per cent discount for his guilty pleas, but noted that the PAC report showed that he had little insight into his offending. The final sentence, having given a 25 per cent discount, was two years and three months’ imprisonment. That was allocated as to 15 months on the objectionable
publication conviction, and 12 months on the texting and travelling to meet a young person convictions.
Grounds of appeal
[15] Mr Tennet’s points on appeal contended that the sentence was imposed in error and that a lesser and different sentence should have been imposed because each component of the sentence was manifestly excessive and therefore inappropriate, and that the cumulative sentences together were also manifestly excessive. Mr Tennet argued that the Judge erred in law and fact by not lessening the sentence when the “young person”, who was the intended recipient of the communications, was completely fictitious. Mr Tennet argued that Mr Walsh had pleaded guilty at the first opportunity and had demonstrated remorse, which ought to have entitled him to a greater credit.
[16] The grounds of appeal also foreshadowed argument that if a reduced sentence was below two years, then the appellant ought to have received a substituted sentence of home detention. This last ground was not pursued in argument of the appeal, with Mr Tennet accepting that a term of imprisonment was the appropriate sentence.
Analysis
[17] Parliament has revisited the maximum penalties for making or supplying objectionable images, and for possessing them, twice in the last 11 years. In 2005, the statutory maximum for making or supplying objectionable images was increased to 10 years, and the maximum for possessing such images to five years. That took New Zealand to the same maximum penalties as then applied in the United Kingdom.
[18] In 2015, New Zealand further raised the maximum penalties to 14 years’ imprisonment for making or distributing an objectionable publication, and 10 years for possessing such material.
[19] In sentencings for such offending, the New Zealand courts have made reference to guidelines developed in the United Kingdom for ranking the relative seriousness of material in objectionable publications. In 2003, the United Kingdom defined five categories of relative seriousness, ranging from material featuring erotic posing or nudity with no sexual activity as level one, to sadism or bestiality as level five. In 2014, the United Kingdom created new guidelines with three, rather than five, categories, ranging from a most serious category A for images involving penetrative sexual activity or images involving sexual activity with an animal or sadism, through a category B for images involving non-penetrative sexual activity, to the least serious category C of indecent images not falling within categories A or B.
[20] New Zealand sentencings recognise that those guidelines can be useful in ranking the seriousness of offending.2
[21] However, because of the greater New Zealand maximum penalties provided for by Parliament, the sentences used in the United Kingdom cannot assist directly in recognising the appropriate tariff for images falling into any of the categories in the United Kingdom guidelines.
[22] Assessing appropriate comparators in previous sentencings is difficult, first because the relevant circumstances in cases of making or supplying objectionable images vary so substantially. Secondly, the majority of the appeal decisions in ostensibly similar offending pre-date the increase in the maximum penalties.3
Thirdly, the increase in maximum penalties beyond those applying in the United Kingdom complicates the analogies that might otherwise be drawn with appropriate starting points under those United Kingdom guidelines.
[23] It appears the only post-2015 amendment appeal for such convictions is the decision of Davidson J in Tilyard v Police.4 In that case, Mr Tilyard had pleaded guilty to eight charges of distributing objectionable publications, which involved
128 images, and possessing objectionable publications extending to approximately
700 images. Three of the images were in categories A and B from the United
2 Petersen v Department of Internal Affairs [2014] NZHC 2024 at [17]–[19].
3 Petersen v Department of Internal Affairs, above n 2; NN v Police [2014] NZHC 2355.
4 Tilyard v Police [2016] NZHC 1377.
Kingdom guidelines, with the rest being in category C. Davidson J acknowledged that the latest increase in maximum penalties marked a “new era” for sentencing on such offending:
[37] I am wary of placing too much emphasis on past cases, then recalibrating them by some arbitrary percentage. I accept that before the
2015 amendment much more serious offending would attract the starting
point adopted by the Judge. However, this is a new era for sentencing associated with objectionable images and, somehow, the bar must be set to reflect that. The purpose of the 2015 amendment is plainly to denounce, but in particular to deter people from participating in the scourge of sexual exploitation of children.
[24] The appellate approach in Tilyard was to adopt a starting point of two years for distributing an image at the lower end of category A from the United Kingdom guidelines, and then to uplift that by an additional six months for the two category B images and (the majority) of category C images. Davidson J treated two and a half years’ imprisonment as the appropriate starting point where most of the images were in category C.
[25] Arguably, the absence of any images beyond category C in this case might suggest an appropriate starting point below the two and a half years’ imprisonment adopted in Tilyard. However, the number and nature of the images involved cannot be determinative on their own. In Tilyard, the offending was distributing images, which is less serious than Mr Walsh’s offending where he was an active participant in creating the objectionable images.
[26] Other points of comparison are that Mr Walsh made videos, not merely photographs, which were the images involved in Mr Tilyard’s case. Mr Walsh made the publication himself by filming it being filmed and directed the making of the images. Mr Walsh pursued his own sexual gratification whilst the filming was occurring, and arguably the child was more vulnerable because of her young age and the fact that she was, apparently, asleep during the making of the videos.
[27] As against those features, the publications involved in Mr Walsh’s case were substantially fewer in number and did not extend beyond category C offending, whereas the volume was larger in Mr Tilyard’s case and some of the photographs were in categories A and B.
[28] Weighing those various features and bearing in mind the importance of deterrence in such offending, I am satisfied that the two year starting point adopted by the District Court Judge in this case was well within range.
[29] On the convictions for indecent communication with a person under 16 and travelling to meet a young person following sexual grooming, Mr Tennet argued that the District Court Judge erred in not recognising a distinction for sentencing purposes between offenders who do make contact with young persons for a criminal purpose, and those who only think they are but have, in reality, been contacting a Police constable who has posed as a young person. Mr Tennet argued that, for sentencing purposes, Mr Walsh ought to have been treated as only committing an attempt to groom a young person and should be punished at a lesser rate because there was no actual harm inflicted on a young person.
[30] Under s 124A(2) of the Crimes Act 1961, the offence is complete irrespective of the true identity of the recipient of the indecent communications. The terms of the section explicitly contemplate as an offence precisely the form of communications that occurred here.
[31] Mr Tennet’s argument was tantamount to a plea that Mr Walsh should be treated more leniently because of his good fortune in eventually discovering that he was not conducting the criminal communications with the person he thought he was.
[32] The difficulties in detecting such offending and the seriousness with which it is viewed given the prospects for serious on-going harm to victims, has clearly been seen by Parliament as sufficient to justify defining the elements of the crime in the broader circumstances contemplated by s 124A(2).
[33] I agree with Mr Woods’ submission for the respondent that the absence of harm to an intended victim cannot constitute a mitigating factor, but only the absence of an aggravating factor.
[34] The content of Mr Walsh’s communications with the presumed 13 year old girl represents a serious form of grooming. Mr Walsh was undeterred by the
represented age of the young girl, and the graphic expression of his sexual intentions requires this offending to be rated seriously. Mr Walsh’s attempts to arrange a rendezvous, and going to the McDonald’s restaurant for that purpose, are indications of his resolve.
[35] Relative to the maximum penalty, a starting point of one year’s imprisonment was clearly within range. Once the notion that a discount for the offending being in the nature of an attempt is rejected, the starting point was inarguably appropriate.
[36] Mr Tennet also argued that on the totality principle, the cumulative starting point of three years’ imprisonment was excessive to reflect the overall criminality of Mr Walsh’s conduct, and that some reduction ought to have applied. I disagree. I endorse the sentencing Judge’s decision to impose cumulative sentences because although the two types of offending were generically similar, the elements of the offences and the criminality revealed by them is quite discrete. Once the relative seriousness of each component of the offending is ranked, the totality of the offending well justifies a cumulative starting point of three years.
[37] Mr Tennet also criticised the Judge for not adding an additional discount for remorse to the 25 per cent discount for early guilty pleas. There is no basis for doing so, given the PAC report writer’s assessment that Mr Walsh showed relatively limited understanding of the criminality of what was involved and lacked appreciation of the harm such offending can cause.
[38] As Mr Woods submitted, if any additional discount for remorse was appropriate, then a stand-alone discount of 25 per cent for guilty pleas should be seen as generous when the strength of the Crown case meant that a combined discount could not reasonably go beyond 25 per cent.
[39] Accordingly, the appeal is dismissed.
Dobson J
Solicitors/Counsel:
C J Tennet, Wellington for appellant
Crown Solicitor, Wellington for respondent
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