Waugh v Police HC Auckland CRI 2010-404-178

[2010] NZHC 1867

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-178

BETWEEN  LESLIE LAIRD WAUGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 October 2010

Appearances: P Moodley for the Appellant

K Wendt for the Respondent

Judgment:      15 October 2010

RESERVED JUDGMENT OF PRIESTLEY J (Appeal against sentence)

This judgment was delivered by me on Friday 15 October 2010 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:

P Moodley, Brookfields Lawyers, P O Box 76 004, Manukau 2241. DX EP75501. Email: [email protected]

K Wendt, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

DX CP24063. Email: [email protected]

WAUGH V NEW ZEALAND POLICE HC AK CRI-2010-404-178  15 October 2010

The appeal

[1]      The appellant is 67.  He is married with two adult children.  He had hitherto never been convicted.

[2]      In August 2010 the appellant appeared for sentence before Judge McAuslan in the Papakura District Court.  He had pleaded guilty to 16 charges laid indictably under  s131A of the Films Videos and Publications Classification Act 1993.  Those charges were possession of objectionable material.  The maximum penalty was five years imprisonment.

[3]      The Judge sentenced the appellant to 12 months imprisonment, concurrent on all 16 charges.  She imposed release conditions.

[4]      This  appeal  challenges  that  sentence.    The  appellant  contends  that  the sentence was manifestly excessive in the sense that, instead of imprisonment, a sentence of home detention should have been imposed.

The offending

[5]      As a result of information received from Interpol the police carried out an operation to investigate various New Zealand IP addresses which may have downloaded pornographic material, with a particular emphasis on children, from a website in Estonia.  Two of the investigated IP addresses belonged to the appellant.

[6]      The appellant’s home was searched and his computer equipment seized.  It was found that the appellant had downloaded several hundred pornographic images from websites and had additionally kept a Word document on to which he had copied various website addresses.

[7]      The objectionable images included sexualised posing by children, various forms of sexual activity between children and adults, and bestiality.  In some of the images the female victims were between two and four years old.

[8]      In R v Zhu[1] the Court of Appeal indicated that the analysis of seriousness and sentencing levels set out in the 1992 report of the Sentencing Advisory Board of the United Kingdom was “a useful guide” for sentencing in New Zealand.  The report (as itemised by the Court of Appeal in Zhu at [13]) set out five levels of seriousness so far as sexual material involving young children are concerned. In ascending order they are:

i)         Images depicting nudity or erotic posing with no sexual activity. ii)   Sexual activity between children or solo masturbation.

iii)       Non-penetrative sexual activity between adults and children. iv)           Penetrative sexual activity between adults and children.

v)        Sadism or bestiality.

[1] R v Zhu [2007] NZCA 470 at [15].

[9]      It appears to have been common ground between counsel in the District Court, and there was certainly no challenge in this Court, that the materials which the appellant possessed sat inside level iv.

The appellant

[10]     Judge McAuslan considered a number of reports and materials relating to the appellant.  The pre-sentence report was not particularly favourable.  As a result the appellant took steps to place further reports before the Judge supplemented by an affidavit.

[11]     The appellant is retired and had been employed for all his working life, his last job being with a software  company.   His  health is not good.   His general practitioner described him as having “multiple medical problems” which include ischaemic  heart  disease,  congestive  heart  failure,  emphysema,  other  cardiac disorders, and type 2 diabetes.  He depends on a number of medications.

[12]     The  pre-sentence report  recommended  imprisonment  with  various  release conditions (which are not challenged by this appeal).  The report writer considered imprisonment would hold the appellant accountable for his actions and would reinforce the serious nature of his offending.  The risk of the appellant re-offending was considered to be low on some measures.  However, given that the appellant had been viewing objectionable material for two or three years the risk could be medium to high if certain “needs” were not addressed, such as mental sexual stimulus.

[13]     The  appellant  displayed  no  remorse  so  far  as  the  child  victims  were concerned and had clearly failed to identify the connection between the materials he had downloaded and the children depicted.  He suggested that many males do what he had done and to some extent what he did with his computer was his own business.

[14]     In an endeavour to counter this unfavourable impression the appellant swore an affidavit which was considered by the sentencing Judge.   He advanced the suggestion that he had been unable to delete various files although he had attempted to do so.  He disputed various phrases attributed to him by the probation officer.  So far as remorse was concerned he deposed he had not been asked about his feelings towards his victims.   Had he been so asked he would have definitely expressed remorse.   He stressed that he visited a large number of sites, not just those which contained objectionable material.

[15]     The  defendant  also  produced  a  report  from  a  consultant  psychiatrist,  Dr Ashok Malur.  The report refers to how distraught and embarrassed the appellant was as a result of the police intervention.  The psychiatrist appears to have accepted the assessment of the appellant’s personality given to him by his wife.  No significant psychiatric, psychological, or personality disorders were observed other than anxiety. The psychiatrist did not see the appellant as a threat to society.  There was no need for  ongoing  counselling  or  sexual  therapy.    He  was  remorseful.    Dr  Malur’s summary of the appellant’s situation was that an idle mind was the devil’s workshop.

[16]     When he was interviewed by the police the appellant stated he had an interest in young adolescent girls whose breasts were beginning to form.   He denied any interest in younger girls.

District Court sentence

[17]     The Judge’s sentencing notes referred fully to the agreed summary of facts, to the sentencing levels discussed in Zhu, and to all the materials which she had read. She devoted some eight paragraphs in her sentencing notes to discussing the various disputes which had arisen between the pre-sentence report writer and the appellant. She considered that an appropriate start point for the offending, in its totality, was 21 months imprisonment.   She applied the full one third discount for the appellant’s

early guilty pleas mandated by R v Hessell.[2]   She reduced the sentence by a further

two months to reflect the mitigating factors of the appellant’s age, health difficulties, personal factors, and hitherto unblemished record.

[2] R v Hessell [2010] 2 NZLR 298 (CA).

[18]     It was by this route that the Judge reached the end sentence of 12 months imprisonment.  There is no quarrel by Mr Moodley with the Judge’s methodology.

[19]     The Judge then turned her mind to home detention.  The pre-sentence report made it clear that the appellant’s home would have been suitable as a home detention address.  The Crown, at sentencing, opposed home detention.

[20]     The Judge did not consider home detention was an appropriate sentence.  Her reasons were:

[35]      I  accept  the  Crown’s  submission  that  it  would  not  be.    Home detention for offending of this kind, which is primarily in the home environment involving computers, and the difficulty of policing conditions, would send the wrong message to the community.  I consider denunciation of this conduct, involving the exploitation of vulnerable children in such an abhorrent way, deserves a deterrent sentence and that is appropriate both for general deterrence and specific deterrence.  It would seem from Probation, even taking your objections to that report into account, that you have little insight into the seriousness of your offending, and clearly need assistance if you are not to offend in such a way again.  You do not seem to have any appreciation of how objectionable it is.  It is serious in my view.

[21]     In short the Judge considered the seriousness of the offending, which had occurred in the home, made home detention inappropriate.   Additionally she considered that the Sentencing Act purposes of denunciation and deterrence would

not  be  met  by  the  more  lenient  sentence.    The  appeal  revolved  around  this assessment.

Discussion

[22]     The seriousness of offending of this type must not be minimised.  The fact that such materials can be accessed online in the privacy of one’s home; that the materials are photographic; or that the people who choose to download them, far from being repulsed and disgusted are instead gratifying their serious sexual deviancies; all tend to obscure the fact that the production of objectionable materials relies on the exploitation and defilement of children.  Far away from the comfort of the home, probably on the other side of the world, vulnerable children are being exploited for commercial gain.  Possessors such as the appellant may be remote in time and place.  But their deviancy fuels the demand.

[23]    As is clear from the pre-sentence materials, the appellant had little real appreciation of this.  He tended to see his viewing as a private matter.  Remorse did not come until he was prodded.  The dynamic is well put in a dictum (referring again to  the  United  Kingdom  Sentencing  Advisory  Panel  report)  by  Clifford  J  in

Department of Internal Affairs v Wigzell:[3]

[3] Department of Internal Affairs v Wigzell HC Wellington CRI-2007-485-110, 20 November 2007.

[41]      The  seriousness   of  the  offence   of   possession  itself,   and  its relationship to the more serious offence of the making or distribution of images of child sexual abuse, are usefully explained in the foreward (sic) to the  United  Kingdom  Sentencing  Advisory  Panel’s  report.     There  the chairman of the Sentencing Advisory Panel, Professor Martin Waisick, comments as follows:

It is fundamental to our proposal that sentences for these offences should reflect the harm suffered by children who are abused and exploited  by  the  production  and  distribution  of  indecent photographs.   An offender sentenced for possession of child pornography should be treated as being in some degree complicit in the original abuse which was involved in the making of the images. Sentences for possession should also reflect the continuing damage done to the victim or victims, through copying and dissemination of the pornographic images.  Those who make or distribute the images bear a more direct responsibility for their eventual use, as well as for encouraging further production.

[24]     In   a   publication   context,   Parliament   in   s 132(a)(ii)   highlights   as   an aggravating factor exploitation of children and young people for sexual purposes.

[25]     Against that backdrop I consider Mr Moodley’s submissions.  In essence he relied on an observation of the Court of Appeal in R v Iosefa[4]  making it clear that home detention was a sentence which was designed by Parliament to be a real alternative to imprisonment.   Secondly counsel relied, by analogy, on a sentence appeal of Chisholm J, Kent v Department of Internal Affairs[5] where an elderly man, arguably in similar personal circumstances to the appellant, successfully challenged a sentence of imprisonment on appeal.  Home detention was substituted.

[4] R v Iosefa [2008] NZCA 453.

[5] Kent v Department of Internal Affairs HC Christchurch CRI-2009-409-139, 17 September 2009. 

[26]     Iosefa involved a delinquent solicitor who had  pleaded  guilty to a theft. Although he was sentenced to 10 months imprisonment the Court of Appeal, three months later, quashed that sentence and substituted one of four months home detention.

[27]     The sentencing took place under the new regime which followed the 2007 amendments.  Had Mr Iosefa been sentenced under the old regime he would have been able to seek leave to apply for home detention.

[28]     The Court referred to its earlier judgments of R v D[6]  and R v Hill.[7]     It considered as a matter of legislative policy that the new sentence had to be viewed in tandem  with  s 8(g)  of  the  Sentencing  Act  2002  (imposing  the  least  restrictive outcome),  and  s 16(1)  (highlighting  the  desirability of  keeping  offenders  in  the community).  In R v D at [34] and [35] the Court of Appeal had noted one of the purposes of the amending legislation being to reduce prison muster numbers.

[6] R v D [2008] NZCA 254 at 34.

[7] R v Hill [2008] 2 NZLR 381.

[29]     The Court of Appeal then in general terms (being essentially the central core of Mr Moodley’s submission) said:

[41]      The sentence of home detention introduced by the 2007 amendment indeed provides a real alternative to imprisonment.   It carries with it in considerable measure, the principles of deterrence and denunciation.   It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.  In cases of more serious offending which justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(a) a sentence of imprisonment usually will be required to reflect the purposes of denunciation and deterrence.

[30]     Similarly in Osman v R[8]   the Court of Appeal pointed out that home detention can be accepted as a deterrent sentence.

[8] Osman v R [2010] NZCA 199 at [25].

[31]     Thus  home  detention  is  a  “real  alternative  to  imprisonment”  which  still carries with it “in considerable measure” but presumably not at quite the same level as  imprisonment  the  deterrence  and  denunciation  purposes.    Counsel  therefore argued with some vigour that Iosefa, both as a matter of sentencing policy and also having regard to the Court of Appeal’s comments on deterrence and denunciation, cleared the way for a sentence of home detention and demonstrated Judge McAuslan’s error.

[32]     Kent involved an appellant aged 76.  He (like this appellant) suffered from heart problems.   The risk of his re-offending was assessed a low.   He had  no previous convictions.  He had been sexually abused as a child.

[33]     Chisholm  J  quashed  a  two  year  imprisonment  sentence  imposed  for  27 charges of possessing or distributing objectionable material and substituted a four month home detention sentence.   It is of note that, by the time the appeal was determined, Mr Kent had served four and a half months of his sentence (being the equivalent of nine months sentence for parole eligibility purposes).   There was a significant degree of dependence on the appellant by his wife.  Chisholm J seems to have accepted submissions that the sentencing judge had erred in regarding two factors as “pivotal” (at [8]), being the place of the offending, in the home, and the existence of distribution charges.  Chisholm J observed, and I agree with him, that

there is no hard and fast rule that home detention is precluded if such a sentence is to be served in the home where the offending occurred (at [15]).

Decision

[34]     In general terms a prisoner ought not to be sentenced to imprisonment unless the  Court  is  satisfied  that  sentencing  purposes  cannot  be  achieved  by  a  lesser sentence (s 16(2)).  As the Court of Appeal stated in R v D:[9]

[61]      In each case it will be necessary to make an assessment of whether a sentence of imprisonment is required to meet the sentencing goals identified in s 16(2)(a)….

[9] R v D [2008] NZCA 254 at [61].

[35]     Although the Judge indicated that home detention for offending in a home environment   involving   computers   “would   send   the   wrong   message   to   the community” I do not consider that in expressing the issue that way the Judge was ruling out the home detention sentence because the offending took place in the appellant’s home.   It is clear (supra [20]) that she was instead focusing on denunciation and deterrence, which she rightly considered were required for offending which involved the exploitation of vulnerable children.

[36]     The  real  inquiry must  be  whether  a  home detention  sentence  adequately satisfies sentencing purposes.

[37]     Turning to the Court of Appeal’s dicta in Iosefa I agree with Ms Wendt that it would be an error for courts to assume that the 2007 change in sentencing policy has led to a situation where short sentences trigger a presumption of home detention. That is clearly not the case.  All the Court of Appeal in Iosefa at [41] was saying was that a home detention sentence is a “real alternative” which requires consideration. The dictum on which Mr Moodley relies is immediately followed by this:

[42]     We consider the Judge was wrong to determine that a sentence of home detention would not appropriately reflect the purposes of denunciation and deterrence in this case.  While he considered, and rejected, a sentence of home detention, he did not sufficiently analyse the place of the sentence of home detention under the new regime.   In relying on authorities decided

under the former regime, he failed to take into account that the sentences there imposed consistently resulted in the sentence being served by way of home detention.

[38]     Both  Iosefa  and  Osman  must  thus  be  interpreted  as  supporting  the propositions that home detention as a sentence may well satisfy the deterrence and denunciation purposes and must be considered.   They are not authorities for the propositions that deterrence  and denunciation would all necessarily be  achieved through a home detention sentence, nor that home detention should be imposed. Chisholm J in Kent at [18] recognised this.  He agreed that the Court of Appeal in Iosefa at [41] was not pointing to a presumption in favour of home detention. Rather it was pointing to the fact that home detention was capable of satisfying the deterrence and denunciation purposes.

[39]     Judge McAuslan had indeed considered home detention.  She canvassed the appellant’s submissions in that regard.  She reached the view, however, that given the appellant’s serious offending, despite the various mitigating factors in his favour and the availability of a suitable home detention address, a home detention sentence “would send the wrong message to the community”.  That was the conclusion she reached having regard to the gravity of the appellant’s offending, involving as it did the exploitation of vulnerable children.  She was also concerned by the low degree of the appellant’s insight.

[40]     I thus conclude that the Judge has not erred.  She has not wrongly construed the place or effectiveness of home detention in the hierarchy of available sentences. She has considered and weighed relevant matters correctly.

[41]     I accept that for a man of the appellant’s age and health, and given his lack of previous convictions, a prison sentence (there still being four months before parole eligibility) will weigh heavily on him.  Doubtless too did the four and a half months which Mr Kent served.

[42]    But the offending was serious.   Downloading objectionable images was extensive and sustained.   People like the appellant who, for whatever reason, are tempted to gratify their sexual deviancy with objectionable images of this type,

oblivious to the permanent harm which results to the photographed victim, need to be alert to the very real risk that imprisonment may in appropriate cases result.  The level and extent of this offending, despite the mitigating factors, made this an appropriate case.

Result

[43]     The appeal is dismissed.

.......................................… Priestley J