Wogan v New Zealand Customs Service HC Christchurch CRI 2010-409-145

[2010] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000145

NICHOLAS DOUN WOGAN

Appellant

v

NEW ZEALAND CUSTOMS SERVICE

Respondent

Hearing:         16 September 2010

Counsel:         P B McMenamin for Appellant

C Boshier for Respondent

Judgment:      16 September 2010

JUDGMENT OF FOGARTY J

‘

[1]      This  is  an  appeal  against  a  sentence  imposed  by  District  Court  Judge Holderness on 9 July of two years imprisonment in respect of some 50 charges of knowingly importing into New Zealand objectionable publications.    The objectionable publications are images and movie files depicting the exploitation of children and young persons for sexual purposes.   Based on the United Kingdom Sentencing Advisory Panel’s categories the Judge found that a significant number fell into categories level 1-4.

[2]      The appeal which, if I may say so, was very well argued by Mr McMenamin seeks to disturb the Judge’s starting point of two years nine months on the grounds

WOGAN V NEW ZEALAND CUSTOMS SERVICE HC CHCH CRI 2010-409-000145  16 September 2010

that the cases that the Judge relied upon, being particularly Cooper v Department of Internal  Affairs  HC  Wellington  CRI 2008-485-000086  18  September  2008,  and Department  of  Internal  Affairs  v  Wigzell  HC  Wellington  CRI 2007-485-000110

20 November 2007, can be distinguished by reason of the fact that in this case there is  no  evidence that  the appellant  was  distributing this  material  as  distinct  from receiving it.

[3]      It is often the case that people who watch this sort of material use readily available software to exchange libraries of photographs one with the other and that is a form of distribution.  It is the case that Judges have regarded the exchange of such material as aggravating features or at least as features going to an assessment of the culpability of the offending.  For example, in the decision of Cooper at paragraph [26] Mallon J went into some detail as to Mr Cooper’s activity including he being a member of a chat group and evidence of the use of file sharing software.

[4]      Mr McMenamin argued that Judge Holderness did not have the opportunity to consider the decision of Stevens v New Zealand Police HC Wellington CRI 2008-

406-000007 15 July 2008.   Stevens was another Wellington decision prior to Cooper in  which  the  prosecutors  did  not  have  the  benefit  of  access  to  the  offender’s computer and whether or not that was the reason it was certainly part of the reason I think the starting point taken in that case was two years distinguishing an uplift on that of three months for previous criminal history.  However, Stevens is discussed in Cooper.

[5]      But I return to the main argument in this regard by Mr McMenamin that there should be a discount from cases such as Wigzell on the grounds that there is no evidence here that the appellant was sharing files or otherwise actively contributing to the distribution of this material.  I would agree that this is a relevant factor going to culpability.  But to my mind the distinction between downloading many thousands of images from a website rather than or possibly accompanied, or not accompanied, by sharing libraries with other users is not particularly great.   Certainly, if a case came before the Court of someone setting up a website of images for the purpose of them being accessed by potentially hundreds of thousands of users around the world, that would be a much more serious case.

[6]      In the end I was persuaded by Mr McMenamin that had I been the first instance Judge in considering the starting point I would have taken two years six months,  three  months  lower  than  the  Judge.    But  it  is  difficult  to  articulate adequately why I came to that view and that in itself is a signal to me that the starting point in these cases, although there is now some guideline in the authorities, is still at the end of the day a matter of judgment, and I am not disposed to alter the starting point that Judge Holderness took of two years nine months, by an adjustment of three months.

[7]      I am reinforced in that view because the Judge then took into account a number of factors in discounting from two years nine months to two years.   That included a 20% discount for the plea of guilty and a discount having regard to the appellant’s  poor  health,  his  age  and  his  positive  engagement  in  the  STOP programme.

[8]      For  these  reasons  I  leave  the  sentence  of  two  years  as  the  appropriate sentence,   being   one   of   imprisonment,   and   turn   to   the   argument,   which Mr McMenamin advanced as a major argument, that in this case a sentence of home detention  should  have  been  granted.    The  probation  officer  did  recommend  a sentence of home detention.

[9]      Mr  McMenamin  argued  that  there  was  an  error  of  principle  in  Judge

Holderness’ analysis, captured in this sentence from paragraph [15] of his judgment:

… This was offending that you committed in the privacy of your own home and  as  Judges  in  the  High  Court  have  remarked,  a  sentence  of  home detention is really entirely inappropriate in relation to this type of offending given its nature and seriousness.

[10]     I am persuaded that there is no line of authority in the High Court indicating that a sentence of home detention is “really entirely inappropriate” if that phrase is understood as never to be given.  The Judge had referred to the decision of Mundy v Department of Internal Affairs HC Tauranga CRI 2004-470-000017 7 May 2004, and the decision of Cooper.  In Cooper, the more recent decision, the District Court Judge’s view was that home detention was inappropriate, Mr Cooper’s counsel did not advance an argument for home detention in the High Court and the Judge agreed

with the District Court Judge’s view.     Mundy I do not read as ruling out home detention, although, there are factors in there which seem to me to be still of continuing concern.  But I accept Mr McMenamin’s basic submission that decisions prior to the amendment to the Sentencing Act 2002 in 2007, as noted by the Court of Appeal in R v Iosefa [2008] NZCA 453, need to be read carefully. They need to be read subject to the deliberate shift in statutory policy.

[11]     The cases of R  v George [2009] NZCA  392  and Kent  v Department  of Internal Affairs HC Christchurch CRI 2009-409-000139 17 September 2009 I treat on their own facts as humanitarian decisions.  George was a young man with serious brain injuries.  Plainly, sending him to prison would be a very serious punishment and not really appropriate because of the care that he needed.  In the case of Kent the offender was 76 years old supported by his wife but his wife was in ill health and plainly the Judge took those domestic circumstances into account.  That said, I can understand the phrasing of Judge Holderness.

[12]     This kind of offending is carried on in the privacy of persons’ homes.  It is serious offending because it depends upon the exploitation of young children or young teenagers and likely has the consequence that many of these young persons who are exploited will suffer significant disorders of one sort or another in later life, such as the inability to develop normal sexual lives and partnerships, having been to some degree depraved or otherwise victimised by being the subject of these activities in their childhood.   So it is conduct treated very seriously by the Courts and there is a very real need for deterrence in relation to this type of offending.  That brings me to the last paragraph of the judgment where Judge Holderness used those very words which I have quoted.

[13]     This brings me to the essential difficulty of the appeal.  Mr McMenamin is correct that the proper interpretation of the sentence of home detention in the light of the amendment to the Sentencing Act in 2007 is that it is a serious form of punishment, that it can be and often is a deterrent, and, that it should not be ruled out simply because  the  case  is  one  of  sexual  offending.    He pointed  out  that  it  is available  for  quite  serious  drug  offending,  in  respect  particularly  to  cannabis growing, and also for very serious fraud.   Why then should it not be available in

cases such as this?  I have no easy answer to that question and I am not going to try to formulate a principled answer because at the end of the day I am simply not persuaded that Judge Holderness did fall into any significant error of principle.   I accept that he has, to a degree, overstated the two decisions of Mundy and Cooper that he cited.  But fundamentally I am satisfied that he did examine whether or not it was appropriate in this case for this man to get home detention and on that basis I am not satisfied that his exercise of discretion should be disturbed by an appellate Court.

[14]     For these reasons the appeal is dismissed.

Solicitors:

P B McMenamin, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent