Williams v Police
[2015] NZHC 70
•4 February 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-463-94 [2015] NZHC 70
BETWEEN BRENT SPENCER WILLIAMS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 February 2015 Counsel:
WT Nabney for appellant
JJ Rhodes for respondentJudgment:
4 February 2015
(ORAL) JUDGMENT OF FAIRE J
Solicitors: Pacific Coast Law, Papamoa
Ronayne Hollister-Jones Lellman, Tauranga
Williams v New Zealand Police [2015] NZHC 70 [4 February 2015]
Contents
Introduction ............................................................................................................[1]
Factual background ................................................................................................[2] District Court Decision [8]
Appellant’s submissions .......................................................................................[16] Respondent’s submissions....................................................................................[24] Appeal against sentence .............................................................................................
Approach to an appeal [31]
Analysis ......................................................................................................................
Objectionable publications [39] Indecent act [45]
Adjusting the starting point ..................................................................................[49] Home detention ....................................................................................................[52] Result....................................................................................................................[59]
Introduction
[1] The appellant was sentenced to two years’ imprisonment for seven charges of doing an indecent act on a 15 year old and nine charges of wilfully making objectionable publications, and one offence under the Summary Offences Act 1981. The appellant appeals the sentence on the ground that it is manifestly excessive and that the District Court placed undue emphasis on deterrence when declining to impose a sentence of home detention.
Factual background
[2] In 2013 the appellant and his wife employed a young relative, the complainant, to clean their house for pocket money. The appellant offered the complainant money if she would send him text messages containing pictures of her vagina. On several occasions between 3 August 2013 and 29 January 2014, the
complainant sent the appellant at least one photograph via text per month. In some of the photographs, the complainant had inserted an object into her vagina at the appellant’s request.
[3] Between 3 August 2013 and 29 January 2014, the appellant offered the complainant money to take a photo shoot. On two occasions the complainant agreed and was taken to an upstairs bedroom. The appellant then took photographs of her naked and in certain poses.
[4] Between 30 January 2014 and 30 July 2014, the complainant continued to send the appellant at least one photograph a month of her vagina. The appellant suggested another photo shoot to which the complainant agreed. It was similar in nature to the earlier photo shoots.
[5] Between 1 July 2014 and 22 July 2014, the appellant offered to purchase alcohol for the complainant and her 16 year old friend. The complainant and the appellant went to purchase alcohol in the appellant’s car. When parked outside the alcohol store, the appellant commenced a conversation with the complainant about sex toys and sexual acts.
[6] The appellant admitted to taking photographs of the complainant and said that the complainant had tempted him and that he was “addicted to it”.1
[7] The appellant is aged 56 years of age.
District Court Decision
[8] On 2 December 2014, the appellant was sentenced by Judge Rollo on:
(a) seven charges of doing an indecent act to a young person under 16 under s 134(3) of the Crimes Act 1961. The maximum sentence is
seven years’ imprisonment.
1 See Police Summary of Facts at 3.
(b)nine representative charges of making an objectionable publication knowing that it was objectionable under s 124(1) of the Films, Videos, and Publications Classification Act 1993. The maximum sentence is
10 years’ imprisonment.2
(c) One charge under the Summary Offences Act of addressing obscene words to a 16 year old female complainant. The maximum sentence is a fine of $1,000.
[9] The Judge noted that the complainant was someone who reposed trust in the appellant and that she was particularly vulnerable because of her age. He took the view that the appellant had “groomed” the girl for his own “perverse, sexual gratification” and that the appellant had “dragged down” the complainant’s dignity
and self-worth.3
[10] The Judge observed that between 3 August 2013 and 29 January 2014, approximately $7,000 had been paid to the complainant by the appellant. The requests for intimate photographs increased and 139 photographs were either created or received by the appellant over the course of the offending.
[11] The Judge then referred to the profound effect that the offending has had on the complainant and her family. Her progress at school had been upset and she had been involved in self-harm. The Judge saw it as ironic that the appellant also attempted to take his own life over the same incidents and opined that perhaps it was done out of a sense of remorse.
[12] After canvassing the background facts, the Judge took the view that the appellant’s pernicious offending had to receive a firm response from the Court. He noted that the appellant’s counsel emphasised a number of mitigating factors, including the fact that the appellant had lost his job as a truck driver upon
conviction, the effect that the offending has had on his wife and the fact that the
2 The Judge also referred to another charge under the Summary Offences Act 1981 of addressing obscene words to a 16 year old. However, there is no charging document for this charge. The sentencing notes are unclear but it seems that the appellant was convicted and discharged for this offence.
3 Police v Williams DC Tauranga CRI-2014-070-3241, 2 December 2014, at [3] and [7].
objectionable material were all deleted and no material was passed onto third parties. Further, the appellant had taken some rehabilitative steps and had been seeing a counsellor.
[13] The Judge adopted a starting point of two years’ imprisonment for the indecent act offences under the Crimes Act and then uplifted the sentence by 12 months to take into account the objectionable publication offending.
[14] The Judge then gave a discount of 12 months for the early guilty pleas, the appellant’s previous good character, the effect that the offending has had on the appellant’s family and on his health and well-being and his remorse. The Judge accepted that the appellant was remorseful for his actions but was hesitant to give weight to this mitigating factor as, in his view, the appellant had attempted to shift blame onto the complainant.
[15] The Judge was satisfied that the end sentence of two years’ imprisonment is in line with the totality principle. He declined to grant home detention, emphasising the firm approach needed for this type of offending. He was not satisfied that home detention would be sufficient denunciation or would be an adequate deterrent or that the appellant had accepted responsibility for his offending.
Appellant’s submissions
[16] Counsel for the appellant, Mr Nabney, submits that the starting point for the indecent act charges of two years’ imprisonment was too high. He submits that the charges are unusual because there was no physical contact between the appellant and the complainant. Mr Nabney says that because of the unusual nature of the charges, a starting point of substantially less than two years is appropriate.
[17] Mr Nabney submits that the charges should be considered in the round as the indecent act charges are essentially an extension of the manufacturing charges. Given that the photographs were not distributed and that the appellant had promptly deleted the images, he submits that, following the guidelines referred to in R v Zhu, a starting point of 12 to 18 months should have been adopted to encapsulate all
charges.4 He submits that the uplift of 12 months imposed in the District Court was inappropriate when the actual nature of the overall offending is considered.
[18] Mr Nabney concedes that the appellant was properly charged with making objectionable publications. However, he submits that this case is unusual in that the appellant did not produce the images for the purpose of further distribution or even for continued retention by himself. Mr Nabney argues that the aggravating factor of ongoing distribution that is normally present in such offending is not present in this case. He submits further that the number of images involved in this case is relatively modest.
[19] Mr Nabney does not object to the one-third discount for mitigating factors
and the appellant’s guilty plea.
[20] In regards to home detention, Mr Nabney submits that the Judge was wrong to regard home detention as an inappropriate sentence. In coming to that conclusion, the Judge emphasised the comments made by Goddard J in W v Department of Internal Affairs which Mr Nabney submits should be confined to the discharge
without conviction context.5
[21] Mr Nabney submits further that this type of offending is no more serious than other types of offending which have similar maximum penalties but can be adequately dealt with by home detention. He relies on the case R v Hill for the advantages of home detention and submits that home detention in this case adequately serves the purposes of sentencing in s 7 of the Sentencing Act 2002.6
[22] Mr Nabney cites the case of Petersen v Department of Internal Affairs where the High Court substituted a sentence of imprisonment for home detention for six charges of knowingly possessing an objectionable publication.7 Mr Nabney accepts that the case at hand might appear to be more serious than Petersen given the
appellant was involved in the manufacture of the objectionable images. However, he
4 R v Zhu [2007] NZCA 470.
5 W v Department of Internal Affairs [2013] NZHC 3164.
6 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
7 Petersen v Department of Internal Affairs [2012] NZHC 1749.
submits that as the images were deleted, the appellant’s conduct reduces the
seriousness of the offending.
[23] Mr Nabney concludes that home detention is the most appropriate outcome given that the appellant has no previous relevant convictions, a supportive environment, a desire to address the cause of his offending and is remorseful.
Respondent’s submissions
[24] Counsel for the respondent, Mr Rhodes, submits that the starting point adopted by Judge Rollo was within the range and that the end sentence was appropriate in the circumstances.
[25] Mr Rhodes endorses Judge Rollo’s approach of treating all of the offending as being an extension of the manufacturing offending. He submits that the Court will not be assisted greatly by decisions referred to by the appellant which deal with possession and distribution of objectionable images. Mr Rhodes argues that the direct creation of such images must be treated seriously and sternly.
[26] Mr Rhodes cites the recent UK sentencing guideline and submits that New Zealand decisions have tended to apply the guidelines in terms of categorisation of seriousness but have refrained from applying the actual numerical ranges. Therefore, the appellant’s offending should be treated more seriously than offenders who possesses or distribute material that they did not produce. He submits that the fact that the appellant did not distribute the material is not a mitigating feature but the lack of an aggravating one.
[27] Mr Rhodes refers to a number of aggravating features and submits that Judge Rollo came to a reasoned and justifiable decision in relation to the three year starting point. In relation to the breach of trust and vulnerability of the victim, he points out that the appellant exploited his position as employer of the complainant, as the appellant knew that she was in need of money. Mr Rhodes submits that the offending was repetitive, lengthy and pre-meditated. Lastly, the devastating effect of offending on the complainant has been exacerbated by the relationship between the complainant and the appellant.
[28] Mr Rhodes submits that the one third discount given by Judge Rollo was generous, particularly as there was a distinct lack of remorse and the shifting of blame on the part of the appellant. On this basis, he argues that even if the starting point was slightly reduced, the end point of two years’ imprisonment cannot be said to be manifestly excessive or in error.
[29] In regards to the issue of whether home detention is appropriate, Mr Rhodes cites R v D where the Court of Appeal said that where an offender is on the cusp of home detention, the appellate court will give greater weight to the views of the sentencing judge.8 In addition, the Court of Appeal in Broekman v R declined to grant home detention to an offender for making and possessing an objectionable publication.9 The Court there said that the choice between home detention and imprisonment involves a fettered discretion and appellate intervention is focussed on whether the sentencing judge erred.10 In this regard, Mr Rhodes submits that Judge Rollo took into account all relevant purposes and principles of sentencing and did not focus on denunciation and deterrence to the exclusion of other principles and purposes. Therefore, no error can be identified.
[30] Mr Rhodes accepts that this is a finely balanced matter where home detention could have been imposed. However, imprisonment was also an appropriate and available outcome.
Appeal against sentence
Approach to an appeal
[31] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
8 R v D [2008] NZCA 254 at [66].
9 Broekman v R [2012] NZCA 213
10 At [22].
[32] In any other case, the Court must dismiss the appeal.11
[33] The Court of Appeal in Tutakangahau v R has recently confirmed that s
250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.12 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentencing appeals.13
[34] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:14
[35] There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
[36] To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
[37] It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[38] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.15 I will go through the sentencing exercise afresh and assess the difference between the end sentence that I would come to and
that reached by Judge Rollo.
11 Criminal Procedure Act 2011, s 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
13 At [33], [35].
14 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
15 Ripia v R [2011] NZCA 101 at [15].
Analysis
Objectionable publications
[39] I take the offending under the Films, Videos, and Publications Classification
Act as the lead offence.
[40] There is no tariff judgment for such offending. However, the Court of Appeal has endorsed16 the use of a United Kingdom sentencing guideline published in 2007 which placed child pornography offending into five levels of seriousness:
(1) Images depicting nudity or erotic posing, with no sexual activity. (2) Sexual activity between children or solo masturbation by a child. (3) Non penetrative sexual activity between adults and children.
(4) Penetrative sexual activity between children and adults. (5) Sadism or bestiality.
[41] The guideline suggested a starting point of two years’ imprisonment for an offender involved in the production of material at levels 1-3.17 The guidelines have since been reviewed which replaced the five levels with three broad categories. The current guidelines specify that the production of category C material (the equivalent of level 1) attracts a starting point of 18 months’ imprisonment.18
[42] In R v Clode, Mr Clode made a number of videos of three young children, aged 10, eight and four, naked in the shower and/or in the lounge. Mr Clode had made two of the videos available for distribution on the internet. The Court of Appeal noted that while the videos involved only level 1 pornographic images, the starting point should be higher where the victims are children under 13. A starting point of two years’ imprisonment was adopted which was uplifted by 18 months to take into account the indecent assaults that were committed in the course of making
the videos.19
16 See R v Zhu [2007] NZCA 470 at [12]-[15]; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at
[51]-[52].
17 R v Clode at [52].
18 UK Sentencing Council Sexual Offences Definitive Guideline (effective from 1 April 2014) at
77.
19 R v Clode, above n 16, at [52]-[53].
[43] In S v R, the appellant unsuccessfully appealed against his sentence of two years and six month for nine charges of making an objectionable publication.20 The appellant was the complainant’s father and had asked her to take photographs of her breasts so that he could post them on a “Rate My Breasts” website. The appellant had offered to top-up her cell phone if she took the photographs. The complainant was a child but her age was not referred to in the judgment. The appellant also
persuaded the complainant to pose naked from the waist up while he took photographs of her for another website. The District Court Judge adopted a starting point of 18 months’ imprisonment which was uplifted by 12 months for prior sexual convictions. The Court of Appeal endorsed the starting point of 18 months but considered that the uplift was at the upper end of the scale.21
[44] The objectionable publication that the appellant produced falls under level 1 of the 2007 guidelines or category C of the most recent UK guidelines. The photographs that the appellant took depict nudity and erotic posing. There is no evidence of sexual activity in those photographs. In my view, a starting point of 22 months’ imprisonment would have been appropriate. The offending at hand is more serious than S v R. In that case, the complainant was only partially naked whereas the appellant took photographs of the complainant fully naked. The offending can be said to be less serious than R v Clode where multiple complainants under 12 years of age were involved.
Indecent act
[45] I accept Mr Nabney’s submission that the indecent act charges are slightly unusual in that most cases dealing with indecent act offences involve physical contact between the offender and the victim. For example, in R v MRH.22 There Andrews J adopted a starting point of two years and six months’ imprisonment for five charges of doing an indecent act involving rubbing the victim’s breasts and the outside of her vagina. It is therefore difficult to compare the current offending to
cases such as R v MRH where the nature of the offending is different.
20 S v R [2011] [2011] NZCA 324, 3 NZLR 606.
21 At [38]-[39].
22 R v MRH [2014] NZHC 2308.
[46] However, I agree with Judge Rollo that the indecent act charges should be seen as an extension of the offending under the Films, Videos, and Publications Classification Act.23 In my view, the appellant’s conduct is akin to knowing possession of objectionable publications under s 131A of that Act. For possession offences, the starting point is dependent upon the seriousness of the objectionable publication. For example, in Petersen v Department of Internal Affairs, Collins J on appeal categorised the objectionable material as falling within categories one to four of the UK 2007 guidelines. The starting point adopted in the District Court of 18 months’ imprisonment was upheld.24
[47] In this case, the images received from the complainant falls within levels one and two of the UK 2007 guidelines. However, the appellant’s conduct is more serious than possession for a number of factors. First, the maximum penalty for an indecent act charge is higher than knowing possession of objectionable
publications.25 Second, the appellant incited the complainant to send him the
objectionable images in exchange for money payment. This is not a case where an offender is in possession of objectionable material where the persons in that material are unknown to the offender. Third, the complainant is a close relative and was vulnerable because of her age at the time of the offending. Fourth, the offending took place over a substantial period of time, between August 2013 and July 2014. Because of these aggravating factors, I consider that an uplift of 12 months’ imprisonment is appropriate.
[48] This leads to an end starting point of two years and 10 months’ imprisonment.
Adjusting the starting point
[49] Judge Rollo gave a 1/3 discount for the guilty plea and other mitigating factors. The appellant has not objected to this discount. Because the Judge did not
23 Police v Williams, above n 3, at [25].
24 Petersen v Department of Internal Affairs, above n 7, at [33].
25 Seven years compared with five years under s 131A of the Films, Videos, and Publications
Classification Act.
strictly follow the three step sentencing process,26 it is impossible to know if the
Judge gave the full guilty plea discount.
[50] I propose to give a discount of 10 per cent for the personal mitigating factors that Judge Rollo identified. This reduces the sentence down to 30.6 months’ imprisonment.
[51] I then apply a 25 per cent guilty plea discount which brings the sentence to 23 months. As this is a short term of imprisonment, there is jurisdiction to consider whether home detention is appropriate.27
Home detention
[52] Judge Rollo declined to grant home detention noting that a strong and firm approach is necessary in cases that involve this type of offending. He cited the case W v Department of Internal Affairs where Goddard J said that:28
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.
[53] However, as Mr Nabney pointed out, such comments were made in the context of an appeal against a refusal to grant a discharge without conviction for the possession of objectionable material. I do not read this case as saying that home detention is never appropriate where the offending involves sexual exploitation. The ordinary principles regarding home detention must be taken into account along with the individual circumstances of the offending and the offender.
[54] Under s 8(g) of the Sentencing Act, the Judge must impose the least restrictive outcome that is appropriate in the circumstances. Under s 16, when
considering the imposition of a sentence of imprisonment, this Court must have
26 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73] and R v Clifford [2011] NZCA
360, [2012] 1 NZLR 23 at [57]-[60].
27 See Sentencing Act, s15A(1)(b) and the definition of “short-term sentence” in s 4(1); Parole Act
2002, s 4(1).
28 W v Department of Internal Affairs, above n 5, at [20].
regard to the desirability of keeping offenders in the community. Under 16(2), a sentence of imprisonment must not be imposed unless the Court is satisfied that the sentence is being imposed for all or any of the purposes of sentencing in s 7(1)(a) to (c), (e) to (g) and that those purposes cannot be achieved by a sentence other than imprisonment. Further, I must also be satisfied that no other sentence would be consistent with the principles of sentencing in s 8.
[55] I have carefully considered Judge Rollo’s reasons for declining to impose
home detention. In my view, it was the correct decision.
[56] The appellant’s conduct was inexcusable. Not only was there the exploitation of a young girl for his own needs, but the girl was a close family member. The offending involved a gross breach of trust. Further, it was offending that took place over a period of time that spanned close to 12 months. There is also significant emotional harm that the offending has caused the complainant. Such conduct warrants a strong message to be sent to the community, to denounce the appellant’s conduct and to deter him and others from committing a similar offence. I have also read the pre-sentence report where the report writer indicated that the appellant has attempted to shift blame onto the complainant in explaining his conduct. Such behaviour does not suggest that the appellant has accepted full responsibility for his actions and this is another factor that points towards imprisonment, rather than home detention.
[57] There are certain factors that weigh in favour of home detention. The appellant is almost a first time offender. He has only one prior conviction for producing a logbook with omissions that dates back to 1996. The current offending has had a detrimental effect on the appellant’s health and wellbeing. He has attempted suicide and was admitted to hospital for a week. Home detention may be more conducive towards his rehabilitation and reintegration.
[58] However, I am satisfied that the purposes of sentencing that are important in this case, namely, denunciation, deterrence and the promotion of a sense of responsibility in the appellant, cannot be achieved by a sentence other than imprisonment. Further, home detention is less than ideal in cases where the
offending took place in the home. For these reasons, home detention is not a suitable
sentencing option in the appellant’s case.
Result
[59] The end sentence of two years’ imprisonment imposed by the District Court is not manifestly excessive. The appeal is dismissed.
JA Faire J
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