GOODLEY v NEW ZEALAND POLICE [2022] NZHC 3174

GOODLEY v NEW ZEALAND POLICE [2022] NZHC 3174 [30 November 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-66[2022] NZHC 3174BETWEEN BRENDON JAY GOODLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 17 November 2022Appearances: J Tarrant for AppellantD Young for RespondentJudgment: 30 November 2022JUDGMENT OF WYLIE J(Appeal against conviction and sentence)This judgment was delivered by Justice WylieOn 30 November 2022 at 11.00 amRegistrar/Deputy RegistrarDate:Solicitors/counsel:Hamilton Legal, Crown Solicitor at HamiltonJ Tarrant, HamiltonIntroduction[1] The appellant, Brendon Goodley, pleaded guilty to a representative charge ofpossessing an objectionable publication knowing or having reasonable cause tobelieve that it was objectionable.1 On 6 October 2022, he appeared before Judge D JMcDonald in the Hamilton District Court for sentence.2 Mr Goodley applied for adischarge without conviction pursuant to s 106 of the Sentencing Act 2002. Theapplication was declined and a conviction was entered. Mr Goodley was sentenced toa term of imprisonment of 14 months.[2] Mr Goodley appeals against the Judge's refusal to discharge him withoutconviction. If the Court upholds his conviction, he appeals his sentence, arguing thatit is manifestly excessive.[3] The Crown submits that the Judge was correct to decline the application for adischarge without conviction. It did not, in its written submissions, address the endsentence imposed but in its oral submissions, it submitted that the end sentence waswithin the available range and that the Judge did not err in imposing it.The offending[4] On 1 August 2019, Mr Goodley entered a WhatsApp chat group with a personidentified by the name "Jas". Between 1 August 2019 and 19 November 2019, Jas andMr Goodley exchanged 367 electronic messages. A number of images and somevideos were attached to some of the messages. In others, Mr Goodley commented onthis material and discussed how he and Jas could meet each other in person.[5] During the course of the message exchange, Jas sent Mr Goodley 22 imagesand videos depicting young children, both male and female and ranging in age fromtoddlers to prepubescent children, engaging in sexual acts with other children or withadults. Ten of the images portrayed penetrative sexual activity; eight images and onevideo portrayed non-penetrative sexual activity; three images and one video wereindecent, but did not fall within either of the first two categories.1 Films, Videos, and Publications Classification Act 1993, s 131A. Maximum penalty 10 years'imprisonment.2 Police v Goodley [2022] NZDC 19760.[6] Jas and Mr Goodley discussed this material. By way of example, Mr Goodleyresponded to one image portraying penetrative sexual activity with the comment: "Ifonly I had a cock like that". Jas replied: "So didn't scare you off". Mr Goodleyresponded: "Nope". When Jas sent another image showing a child involved inpenetrative sexual activity, Mr Goodley replied: "Mmmm yum". In a later message,Mr Goodley responded to Jas with the following: "No harm in looking is horny stuff".[7] On 24 March 2022, a search warrant was executed at Mr Goodley's homeaddress. A number of electronic items were seized, including a cellphone, laptops andstorage devices. At the time the summary of facts was prepared the police had notexamined all of these devices.[8] When Mr Goodley was spoken to by the police, he stated that he didn't wantto receive the images and that he had made the mistake of not telling Jas this from theoutset.District Court sentencing notes[9] The Judge noted the application for discharge under s 106 of the SentencingAct and he referred to applicable tests set out in s 107 of the Act.[10] The Judge turned first to assess the gravity of the offending. He characterisedit as serious. He noted that Mr Goodley's offending promoted or tended to promotethe exploitation of children for sexual purposes; the images depicted sexual conductwith or by children and they exploited children's nudity. The Judge took into accountthe number of publications and how long Mr Goodley had had them in his possession.He considered that the majority of the publications fell into the "worst category". Henoted the harm that such offending causes. He considered that the offending requiredan initial starting point of two years' imprisonment. The Judge then turned to look atmatters personal to Mr Goodley. He recorded that an early guilty plea had been enteredand that a 25 per cent discount was appropriate for this. He referred to a psychologicalreport that he had received. The writer expressed the view that Mr Goodley poses avery low risk of reoffending and noted that there is nothing to suggest that he presentsa risk of contact sexual offending against children. While the Judge had some doubtsabout some of the psychologist's opinions, he nevertheless reduced the sentence by afurther period of four months, to recognise the matters contained in the report.[11] The Judge then turned to consider the consequences for Mr Goodley if aconviction was entered against him. He noted that Mr Goodley would lose his job.The Judge accepted that this was a "real consequence" for Mr Goodley.3[12] Next, the Judge turned to consider proportionality. He commented thatMr Goodley's offending was "very serious offending" and that it justified a sentenceof 14 months' imprisonment.4 He stated as follows:5One only has to look at where I got to at step one at 14 months' imprisonmentto know that you are never going to satisfy the disproportionality test. Yourapplication to be discharged under s 106 is refused.[13] The Judge then went on to sentence Mr Goodley. He noted that there wasnothing before him which allowed him to sentence Mr Goodley to an electronicallymonitored sentence and he commented that, in his view, offending of the typecommitted by Mr Goodley is serious and that there is a need to deter and denounce it.As a result, he convicted Mr Goodley and sentenced him to 14 months' imprisonment.He did however reserve leave to Mr Goodley to apply for home detention. He directedthat any application for home detention should be referred to him.The appeal[14] An appeal against a refusal to discharge a defendant without conviction is anappeal against both conviction and sentence.6 The challenge is against the entry of aconviction and setting aside the conviction is a necessary prerequisite and objective ofthe appeal. In the event that the appeal is unsuccessful, an appellant can pursue, as asecondary objective, an appeal against the sentence imposed.73 Police v Goodley, above n 2, at [20].4 At [21].5 At [21].6 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144; and Ovtcharenko v Police [2017] NZCA65 at [5].7 Jackson v R, above n 6, at [8]–[9].[15] The appeal is brought under s 232(2) of the Criminal Procedure Act 2011, onthe basis that a miscarriage of justice has occurred either by virtue of a material errorby the sentencing Judge in entering a conviction or, alternatively, if for any reason theJudge has erred in applying the principles for discharging an offender withoutconviction.8[16] The Court of Appeal recently noted in Singh v R that the question is, in essence,whether the District Court's decision is wrong.9 It will only be in exceptionalcircumstances that an appeal against conviction will succeed if the appellant haspleaded guilty. The appellant must show that a miscarriage will result if his or herconviction is not overturned.10[17] Mr Goodley's appeal against sentence is governed by s 244 of the CriminalProcedure Act. This Court, as the first appeal Court, must allow the appeal if it issatisfied pursuant to s 250(2) of the Act that for any reason there is an error in thesentence and that a different sentence should be imposed. In any other case, the Courtmust dismiss the appeal.[18] This Court, as the first appeal Court, does not start afresh nor simply substituteits opinion for that of the original sentencer. It must be shown that there was an error,whether intrinsically or as a result of additional material submitted on appeal.11 Ifthere is an error, the appeal Court will then form its own view of the appropriatesentence.12[19] The Court will not intervene where the sentence imposed was within the rangethat can properly be justified by accepted sentencing principles.13Submissions[20] Ms Tarrant, appearing for Mr Goodley, submitted that the Judge erred inapplying the test for a discharge without conviction. She argued that the Judge8 Gaunt v Police [2017] NZCA 590 at [9]; and Jackson v R, above n 6, at [12].9 Singh v R [2022] NZCA 23 at [8].10 R v Le Page [2005] 2 NZLR 845 (CA).11 R v Shipton [2007] 2 NZLR 218 (CA) at [139].12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35]–[36].13 At [36].incorrectly classified the offending as serious and that he took into account irrelevantconsiderations in reaching that conclusion. She submitted that Mr Goodley'soffending was markedly less serious than that discussed in other cases. She then dealtwith factors personal to Mr Goodley, noting his age, that he kept his employerinformed, that he is extremely remorseful and ashamed by his offending and that hehas shown significant insight into it. She put it to me that while offending of the kindcommitted by Mr Goodley is inherently serious, when viewed in context, the offendingwas not of such seriousness as to preclude a s 106 discharge. She then turned to theconsequences of conviction and submitted that the Judge failed to take into account arelevant factor – namely the financial consequences for Mr Goodley of losing hisemployment if convicted. She argued that a conviction would have "an irremediableimpact" on Mr Goodley and on his employment prospects. As a consequence, shesubmitted that the Judge erred in his proportionality analysis.[21] The appeal against sentence reiterated a number of the submissions made inregard to the conviction appeal. Ms Tarrant referred to a number of other cases, all ofwhich she submitted were more serious, and argued that the starting point adopted bythe Judge was too high. She also argued that the Judge failed to give Mr Goodleycredit for the fact that he has no prior convictions.[22] Ms Young, for the Crown, argued that the Judge appropriately categorised theoffending as serious, given the number and nature of the images exchanged andbecause they promoted and supported the exploitation of children for sexual purposes.She referred to the comments exchanged between Mr Goodley and Jas and argued thatthey increased the seriousness of the offending. It was noted that as at the time ofsentencing, Mr Goodley had not engaged in any rehabilitative programmes and it wassubmitted that he was given an appropriate discount for his good record and for hisearly guilty plea by the Judge. She argued that, taking into account the aggravatingand mitigating features of the offending and the matters personal to Mr Goodley, thegravity of the offending was appropriately categorised as serious. The consequencesof the conviction were acknowledged. It was submitted that the Judge appropriatelyidentified them and that he did not err when he held that the consequences were notsufficient to displace the proportionality test. It was argued that that test was correctlyapplied and that the Judge did not err in declining the application for a dischargewithout conviction.[23] Ms Young commented only briefly on the sentence appeal. She submitted thatthe end sentence imposed was appropriate and within the available range.AnalysisThe appeal against the refusal to discharge Mr Goodley without conviction[24] If a person who is charged with an offence is found guilty or pleads guilty,before entering a conviction and imposing a sentence, the Court must consider whetherthe offender would be more appropriately dealt with by inter alia discharging theoffender without conviction under s 106 of the Sentencing Act.14[25] Relevantly, ss 106 and 107 read as follows:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.(2) A discharge under this section is deemed to be an acquittal.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[26] In Z (CA447/2012) v R, the Court of Appeal clarified the approach to be takento applications under s 106.15 The Court stated as follows:[21] As we have already noted, the discretion conferred by s 106 is onlyavailable if the court concludes that the consequences of conviction are out ofall proportion to the gravity of the offending. Before the disproportionality test14 Sentencing Act 2002, s 11(1)(a).15 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.can be applied, an assessment of the gravity of the offending must be made.[27] For our part, we consider that there is much to be said for the approachadopted by the Divisional Court in A (CA747/2010). That is: when consideringthe gravity of the offence, the court should consider all the aggravating andmitigating factors relating to the offending and the offender; the court shouldthen identify the direct and indirect consequences of conviction for theoffender and consider whether those consequences are out of all proportion tothe gravity of the offence; if the court determines that they are out of allproportion, it must still consider whether it should exercise its residualdiscretion to grant a discharge (although, as this Court said in Blythe, it willbe a rare case where a court will refuse to grant a discharge in suchcircumstances).(Footnotes omitted.)[27] The s 107 test focuses on the seriousness of the offence committed and theoffender's culpability. It does not focus on how serious the offending is in comparisonto other examples of the same offence.16[28] The starting point must be that the possession of child sexual abuse material isserious offending.17 This is reflected by a relatively recent legislative amendment.The maximum penalty for the offence was increased in 2015 from five years'imprisonment to 10 years' imprisonment.18 On introducing the bill, the then Ministerof Justice described the "creation and dissemination of objectionable material [as] arevolting scourge on our society [and] an evil that abuses and revictimises some ofthe most innocent and vulnerable amongst us".19 The Minister said that the increasein the maximum penalty better reflected the seriousness of the offending.20[29] In Mr Goodley's case, his culpability is aggravated by a number of factors:(a) the nature of the material. Some of the images were more serious thanothers. As noted, 10 of the images portrayed penetrative sexual activity.Eight images and one video depicted non-penetrative sexual activityand a further three images and one video were indecent. Viewed16 Z (CA447/2012) v R, above n 15, at [31].17 Police v L [2016] NZHC 455 at [23(c)].18 Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act2015, s 6.19 (2 April 2015) 704 NZPD 2891.20 (2 April 2015) 704 NZPD 2892.together, the nature of the material cannot be characterised as anythingother than serious;(b) the number of objectionable publications. Mr Goodley was inpossession of 22 images and videos;(c) the length of time over which Mr Goodley was in possession of theimages. It may however be that the Judge placed excessive weight onthis factor. It appears from the sentencing notes that he considered thatthe images were on Mr Goodley's electronic devices when he wasarrested, some two and a half years after he came into possession of theimages. That may not have been the case. Although it is not clear fromthe summary of facts to which Mr Goodley pleaded, it may be thatMr Goodley was only in possession of the objectionable material forthe six-week period over which he was messaging Jas. Mr Goodleywas of course entitled to be sentenced by reference to the summary offacts to which he entered his guilty plea. Even allowing for this, he wasin possession of the objectionable material for an extended period.Mr Goodley plainly had time to reconsider his choice to receive thematerial in the first place. He did not immediately delete it; hecontinued to engage with Jas.[30] Ms Tarrant argued that Mr Goodley did not actively seek out the material inthe sense that he did not search for it himself. I do not accept that his culpability canbe characterised in this way. He may not have sought out the images, but as noted bythe Judge, Mr Goodley continued to engage in the WhatsApp conversation with Jasover a six-week period. It is clear from the sample discussions recorded above thatMr Goodley was receptive to the images that had been sent.[31] I accept that there are personal mitigating factors, in particular, Mr Goodley'sguilty plea, his previous good character and his lack of prior convictions. The materialin the psychologist's report is also helpful to Mr Goodley. It was the psychologist'sopinion that Mr Goodley's offending was out of character and driven by his desire toform a connection with Jas. The psychologist expressed the view that there is nothingto suggest that Mr Goodley holds deviant sexual interests. The psychologist was alsoof the opinion that Mr Goodley poses a very low risk of sexual reoffending. She notedthat he expressed shame, remorse and regret for his offending and empathy with thechildren who had been exploited. She was of the view that these sentiments weregenuine. I accept that these various matters mitigate Mr Goodley's culpability.[32] Nevertheless, taking all of these various matters into account, I do not considerthat the Judge erred when he found that Mr Goodley's offending was serious.[33] The next stage in the analysis was to consider the direct and indirectconsequences of a conviction. The principal consequence noted by the Judge was thatMr Goodley would lose his job if he was convicted of the offending.[34] In Doyle v R, the Court of Appeal set out the accepted approach when reducedemployment prospects are said to be the consequence of a conviction.21 The Courtnoted as follows:[39] When determining the effects of conviction on employment, the courtmust identify the consequence, assess the evidence offered for it, evaluate therisk that the consequence will happen to the particular applicant, and form anoverall assessment of seriousness. The question is whether there exists a realand appreciable risk that the relevant consequence will happen. The statedconsequence of a conviction may be a question of fact that is capable of proofin the ordinary way. Evidence of employers' attitudes may not be availablehowever, in which case the court must use what evidence is available and takejudicial notice of facts where appropriate.(Citations omitted.)[35] Mr Goodley's employment has been affected – he lost his job. I also acceptthat there is a risk that Mr Goodley's future employment prospects will bedetrimentally affected by a conviction, particularly if he seeks employment in hischosen field (as a support worker for disabled people). Possession of child sexualabuse material carries a high stigma, for good reason. It is the kind of offending whichmany employers are unlikely to look past, despite the prospective employee's skills.21 Doyle v R [2022] NZCA 307.[36] This however is not the end of the matter. A conviction almost always carrieswith it an appreciable risk that employment prospects may be detrimentally affected.22This has been recognised by the Courts and generally some specific anddisproportionate threat to future employment prospects must be identified beforeemployment prospects will be considered relevant to an application for a dischargewithout conviction. This Court has observed as follows:23[27] Whether the consequences of a conviction are proportionate ordisproportionate will depend on a range of factors, including whether theconviction is relevant to a person's suitability for a particular role. If aconviction is entirely irrelevant to the role sought, but is nevertheless likely topose a significant impediment to employment (for example because acompany has a zero tolerance policy towards job applicants with convictions)then there is a clear risk that the consequences of a conviction will bedisproportionate.[37] Here, Mr Goodley was employed as a support worker. He was responsible forthe care of vulnerable disabled adults. On the view most favourable to Mr Goodley,his conviction demonstrates very poor judgment and a willingness to ignore the abuseof vulnerable children in pursuit of his own sexual interests. That is a trait which isplainly unsuitable in those involved in the disability support services industry whichnecessarily relies on high trust in those caring for the vulnerable. There is however noevidence to suggest that Mr Goodley will likely find it difficult to find employment inanother industry. In any event, the Courts have generally accepted that prospectiveemployers have the right to know of a prospective employee's convictions. The Courtswill not generally usurp a prospective employer's decision as to the significance of aparticular conviction.[38] I accept that there were direct consequences of a conviction for Mr Goodley'semployment although the consequences for his future employment prospects are lessclear. There is also the indirect consequence that Mr Goodley will likely face financialdisadvantage if he cannot find employment (although I have no evidence before me asto his means). The Judge did not expressly refer to this indirect consequence.22 Trembath v Police [2019] NZHC 662 at [26].23 Carpenter v Police [2021] NZHC 1634 per Katz J.[39] I turn to consider whether or not the identified consequences for Mr Goodleyare out of all proportion to the gravity of the offence. The offending was serious.While there were direct and indirect consequences for Mr Goodley, I am not, on thematerials before me, satisfied that those consequences were out of all proportion to thegravity of the offence. It follows in my view that the Judge did not err by declining todischarge Mr Goodley without conviction.[40] I now turn to consider the appeal against sentence.The appeal against sentence[41] Ms Tarrant argued that the starting point imposed by the Judge was too high.She further argued that Mr Goodley should have received not only a full guilty pleadiscount but also a credit for his previous good character and for the fact that he hasno criminal history.[42] Ms Tarrant recited a number of cases in support of her argument regarding thestarting point. Some of them predated the amendment to the maximum sentence in2015. This makes direct comparison difficult.[43] In Snell v R, Downs J reviewed post-amendment cases dealing with theknowing possession of objectionable publications.24 He noted that the case poolinvolving possession only offences is small.25 He reviewed the case law. In many ofthe cases, the possession charge was "almost an aside" because the defendants hadcommitted other sexual crimes.26 Other cases involved more serious instances ofpossession. Some also involved distribution, which is a more serious offence. As theJudge observed, moderately serious possession cases appear to attract starting pointsranging between 12 months to something less than seven years' imprisonment. Hesuggested that sentencing for possession of objectionable publications requires,amongst other things, consideration of:(a) the suite of aggravating factors identified in s 132A of the Films,Videos, and Publications Classification Act;24 Snell v R [2022] NZHC 1627.25 At [53].26 At [53].(b) the number of publications;(c) the nature of the publications;(d) the offence period (and curation if any);(e) harm, which will usually be linked to the above matters.[44] In the present case, the Judge addressed the s 132A matters. He was requiredto do so and it is not suggested that he erred in this regard. There were 22 publicationsin Mr Goodley's possession. Most other cases involve more publications but the sizeof the collection is less important than it once was.27 The Judge considered the natureof the publications by reference to the sentencing guidelines used in theUnited Kingdom. Again, his analysis in this regard cannot be faulted and it is notchallenged. The Judge also considered the duration of the offending (although, asnoted above, arguably he erred in this regard). The Judge also commented on the harmto the children portrayed in the images.[45] There is nothing to suggest that Mr Goodley actively sought out the images.Nor is there anything to suggest that he collected them or curated them in any way.[46] Mr Goodley's offending was broadly similar to that in R v Lawes.28 There, theoffender imported 59 images and was found in possession of 296 in total. Nineteeninvolved penetrative sexual activity although none depicted sexual violence orbestiality. A further 129 involved non-penetrative sexual activity. Taking into accountthe relatively small number of images and absence of highly concerning content (suchas particular sexual violence or bestiality) I adopted a starting point of two years'imprisonment. This was applied as an uplift to the starting point sentence for muchmore serious (but related) offending.[47] There is no other directly comparable case law of which I am aware.27 Stewart v Department of Internal Affairs [2014] NZHC 2209 at [42].28 R v Lawes [2018] NZHC 2448.[48] Considering matters in the round, I consider that the starting point of two years'imprisonment adopted by the Judge was too high. In my judgment, a more appropriatestarting point would have been one of 18 months' imprisonment.[49] I turn to consider mitigating factors personal to Mr Goodley. As noted,Ms Tarrant argued that the Judge erred by not allowing Mr Goodley a discount for hisprevious good character, in addition to the 25 per cent discount for his guilty plea.[50] The 25 per cent discount for the guilty plea was clearly appropriate. It wasentered at the first reasonably available opportunity.[51] I also agree that a credit for previous good character was warranted.Mr Goodley is 42 years old. He has no prior convictions. The psychologist's reportcharacterised his offending as being out of character. A discount for previous goodcharacter was appropriate, to recognise that, for Mr Goodley, a conviction of this sortis a "fall from grace". That is a punishment in itself.29 The Judge did not allow adiscount for this factor. In my view, he also erred in this regard. A five per centdiscount should have been allowed to Mr Goodley for his previous good character.[52] The total credit to be given to Mr Goodley is complicated by the Judgeallowing a four-month discount for the matters contained in the psychologist's report.It is not clear from the sentencing notes what the basis for this discount was – whetherit was rehabilitative prospects, remorse, personal circumstances or a combination ofthese factors.[53] In my judgment, the most relevant factors outlined in the psychologist's reportare that Mr Goodley poses a very low risk of sexual reoffending, that he has goodrehabilitative prospects and that he is genuinely remorseful and ashamed. In myjudgment, these factors are worthy of credit. I would allow Mr Goodley a further10 per cent discount to recognise these various matters.[54] It follows that, in my view, Mr Goodley should have been allowed a 40 percent discount from the starting point sentence. I therefore consider that the appropriate29 Davidson v R [2011] NZCA 356 at [16].end sentence is one of 10 months and two weeks' imprisonment (allowing forrounding). This is within the range where a sentence of home detention can besubstituted. The Judge granted Mr Goodley leave to apply for home detention. If hecan propose a suitable address, that may well be the appropriate sentencing outcome,given the matters identified in the psychologist's report.[55] If a sentence of home detention is substituted, Mr Goodley will only beregistered on the Child Sex Offender Register if the Court makes a registration order.30The Court can make such an order if the offender poses a risk to the lives or sexualsafety of one or more children or of children generally.31 Whether or not such an orderis appropriate will be for the Court that will be tasked with deciding whether thesentence should be commuted to a sentence of home detention, in the event thatMr Goodley makes application in this regard.Result[56] The appeal against the refusal to enter a discharge without conviction isdismissed.[57] The appeal against sentence is allowed.[58] The sentence of 14 months' imprisonment imposed by the Judge is quashed. Itis substituted with a sentence of 10 months and two weeks' imprisonment.[59] Leave is reserved to Mr Goodley to apply for home detention if a suitableaddress can be found. Any application for home detention need not be referred toJudge McDonald. It can be referred to any available District Court Judge.___________________________Wylie J30 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 7 and 10.31 Section 9(2).