Wood v Police
[2020] NZHC 2951
•9 November 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-000086
[2020] NZHC 2951
BETWEEN JAMES BRENDON WOOD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 November 2020 Counsel:
MJ James for Appellant SD Taylor for Respondent
Judgment:
9 November 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Monday, 9 November 2020 at 2 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Hamilton. MJ James, Hamilton.
WOOD v POLICE [2020] NZHC 2951 [9 November 2020]
The appeal
[1] James Wood pleaded guilty to one charge of indecently communicating with a person under the age of 16 years. Mr Wood—who is 44—corresponded extensively with an 11-year-old girl (“C”). The online communications extended to the prospect of sexual intercourse.
[2] Judge R J Marshall imposed 18 months’ supervision; and ordered Mr Wood be registered under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.1 Mr Wood appeals the latter. He contends he ought not have been registered as a sexual offender against children.
Background
[3] In August 2019, C created an Instagram account using her primary school email address. Shortly thereafter, Mr Wood sent her a message asking how old she was. She said 11; Mr Wood initially said he was a 16-year-old boy. Mr Wood and C regularly communicated by Instagram and through other social media.
[4] After a time, Mr Wood sent C “sexualised messages”.2 He asked C to send intimate pictures of herself. Mr Wood later told C he was 43 and using his son’s account. Mr Wood and C began referring to each other as husband and wife. They discussed “wanting to have sex with each other”.3
[5] In November 2019, C was caught video chatting with Mr Wood at school. Her social media accounts were then deleted.
[6] On 28 November 2019, C created a new email address to communicate with Mr Wood. The two resumed contact; C told Mr Wood Police were involved. Mr Wood told C to delete their messages. He also said they needed to be careful or he may go to jail. Mr Wood then asked C to send him intimate images of herself. C declined, but the communications turned to “having sex with each other”.4
1 The Act.
2 Summary of facts, p 2.
3 As above.
4 As above, p 3.
[7] Mr Wood told Police he “helped” C because she was bullied at school and he had been too.
[8]Mr Wood was charged 18 March 2020. He pleaded guilty 21 August 2020.
The law
[9] If a Court imposes a non-custodial sentence in relation to a conviction for a qualifying offence, it may order the defendant be placed on the child sexual offender register if satisfied he or she “poses a risk to the lives or sexual safety of one or more children, or of children generally”.5 The Court must assess these matters:
(a)the seriousness of the qualifying offence:
(b)the period of time that has elapsed since the offence was committed:
(c)the age of the person:
(d)the age of the person at the time of the offence:
(e)the age of any victim of the offence at the time of the offence:
(f)the difference in age between the victim and the person at the time of the offence:
(g)any written assessment of the risk posed by the person:
(h)any submission or evidence from any victim of the offence:
(i)any other submission or evidence relating to the risk posed by the person:
(j)any other matter that the court considers relevant.
The Judge’s decision
[10] The Judge thought the qualifying offence at the “lower level”.6 He noted the “33-year age difference” between Mr Wood and C.7 He recorded the Department of Corrections’ assessment Mr Wood posed a “medium risk of harm and medium risk of re-offending”.
5 The Act, s 9(2).
6 Police v Wood [2020] NZDC 17103 at [7].
7 At [7].
[11] The Judge took into account a prior incident. In 2016, Mr Wood was formally warned by Police for communicating with a 14-year-old girl; and asking her “to send indecent images of herself”.8
[12] The Judge said Mr Wood did “not display any remorse … or accept responsibility”9 given these observations in his pre-sentence report:10
Mr Wood disputes the Summary of Facts, stating he pled guilty to the charges as he was not able to prove his innocence. He explained the evidence was on his cell phone and unable to provide this due to it “being smashed”. He maintains he thought she was seventeen or eighteen years old and had not seen any pictures of her prior to November 2019. He insisted he never asked for any intimate images of the victim and stated she only sent a ‘head shot’ of herself and it was difficult to determine her age. Mr Wood did not explain the reason for him using his son’s social media account and continues to state he thought she ‘was older’.
Mr Wood did not display any remorse for his actions or accept responsibility for his wrongdoing, however continued to blame the victim for not disclosing her age to him earlier during their ‘social media relationship’.
[13]The Judge concluded:11
I am satisfied that there is a risk to you engaging in future communications of an indecent nature with younger girls and that this is something that is difficult, in your case, to manage and there has been a reoccurrence of that type of communication. The victim impact statement from the victim’s mother discloses to me the impact that this kind of offending can have on young persons and children. So I am of the view, although this is at a lower level, that in relationship to other charges that people face of a sexual nature, nevertheless it is serious offending as far as children and young persons are concerned. I am satisfied that you do pose a risk to the safety of younger children, as far as if you get access to internet and the like.
Argument and analysis
[14] On behalf of Mr Wood, Ms James contends the Judge erred. Ms James’ helpful written submission said Mr Wood’s lack of remorse constituted the absence of a mitigating factor rather than an aggravating one. However, at the hearing, Ms James acknowledged this submission presupposed a conventional sentencing analysis; whereas the Act is concerned with risk. Ms James recalibrated her argument. She said
8 Police record 160404/6402.
9 Police v Wood, above n 6, at [7].
10 Provision of Advice to Courts, 10 August 2020, p 2.
11 Police v Wood, above n 6, at [8].
the offending was not sufficiently serious to warrant registration. Ms James also said rehabilitation may make an order unnecessary.
[15] The Court of Appeal has emphasised the statutory risk (to children) must be real.12 That Court has also warned against elevating the standard, or approaching it other than through the statutory criteria. Or, as Kos P observed: the “proper exercise of the discretion in each case will inevitably depend on a close assessment of the matters set out” in the statute.13
[16] I am far from persuaded of error. Mr Wood’s offending may be less serious than other cases involving registration, but it is clear he poses a risk to the sexual safety of children. Mr Wood contacted C shortly after she created an Instagram account using a primary school email address. He then communicated with her extensively—and pivoted to sexual matters. Mr Wood did so only three years after being formally warned for similar behaviour. Mr Wood did not desist when C raised Police involvement. Indeed, he counselled destruction of evidence and provision of intimate photographs. In response to a question from the Bench, Ms James properly acknowledged totality of circumstance implied Mr Wood had a “genuine sexual interest” in C.
[17] Prospect of rehabilitation is unquestionably relevant. However, Mr Wood’s observations to his probation officer justify the Judge’s conclusion Mr Wood lacks remorse and insight.
[18]The appeal is dismissed.
……………………………..
Downs J
12 Dayaratne v Police [2019] NZCA 30 at [19].
13 At [21].
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