C v NEW ZEALAND POLICE [2019] NZHC 3431

C v NEW ZEALAND POLICE [2019] NZHC 3431 [19 December 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200(2)(f) OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-64[2019] NZHC 3431BETWEEN CAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2019Counsel: M G Robinson for AppellantK L Kensington for RespondentJudgment: 19 December 2019JUDGMENT OF THOMAS J[1] The appellant pleaded guilty to one representative charge of distributing childsexual exploitation images,1 one representative charge of possessing bestiality andchild sexual exploitation material2 and one representative charge of making childexploitation images.3 He now appeals his sentence of two years and six months'imprisonment,4 comprising two years two months' on the charges of possession anddistribution, with a cumulative four-month sentence on the making charge.1 Films, Videos, and Publications Classification Act 1993, s 124(1); maximum penalty of 14 years'imprisonment.2 Section 131A(1); maximum penalty of 10 years' imprisonment or $50,000 fine.3 Section 124(1); maximum penalty of 14 years' imprisonment.4 Police v [C] [2019] NZDC 20674.[2] The appeal is on the grounds the sentence was manifestly excessive as thestarting point was too high, the discounts were inadequate and the sentencingprinciples of rehabilitation and reintegration were given insufficient weight.Background[3] On 31 August 2018, a technician repairing the appellant's cell phone founddeleted material depicting sexual activity between adults and children. He contactedthe police who obtained and executed a search warrant of the appellant's home andseized the cell phone involved. The cell phone contained the images and videos thatform the basis of the three charges. Other internet-capable devices were also seizedbut did not have any relevant images or videos on them.[4] A total of 1,550 objectionable media items (1,481 images and 69 videos) werefound on the appellant's cell phone, including two of his now four-year-old daughter.Analysis of the phone showed he had used a messaging application to receiveobjectionable images and videos and distribute 61 objectionable images to other users.[5] The possession charge encompassed both images and videos covering anumber of different categories of objectionable material, including sexual activitybetween adults and children, children and children, children alone, children in sexualposes, extreme sexual activity with children, and bestiality. Most of the material,1,061 images and 11 videos, were of children posing in a sexualised manner withvarious degrees of nudity. The majority of the videos were of sexual activity betweenadults and children.[6] The distribution charge involved the distribution of images depicting the sexualexploitation of children to other users on the messaging application on 16 occasionsbetween 3 June and 1 September 2018. The number of images distributed usuallyranged between one and six, although 17 images were distributed on one occasion.All except once, the sharing was with a single user. The one exception was adistribution to 23 other users.[7] The making charge involving the appellant taking two photographs of his thenthree-year-old daughter. It occurred six weeks prior to the start of the appellant's otheroffending. In one image, she faced away from the camera with her naked buttocksand legs being the focus of the photograph. The other image showed her naked on achair with the focus on her genitals. Her face is not visible in the second photograph.These two images were stored together with other family photographs on theappellant's cell phone.The sentencing[8] The appellant was described as a 35-year-old man who was separated andliving alone at the time of offending. He was co-parenting his daughter at the time,although this is now restricted to weekly Skype calls.[9] The District Court Judge referred to the charge of taking child exploitationimages having been amended to read, knowing "or having reasonable cause to believe"that the publication was objectionable. The Judge noted the appellant's position thatthe images of his daughter were not intentionally objectionable, although heunderstood they were objectively so. He did not want to put his child or her motherthrough any more pain by disputing this charge.[10] The Judge referred to the appellant's deep shame and remorse for his offending,particularly its impact on his former partner and his relationship with his daughter.This shame extended to his wider social circles, including his family who continuedto support him. The appellant had no other convictions of particular note.[11] In her victim impact statement, the appellant's former partner expresseddisgust and disbelief at the offending. She described the significant impact of theoffending on her and her child, noting it meant she was essentially a solo parent. Shewas particularly concerned about the long-term impact on her daughter.[12] A number of reports (a clinical psychologist's report, a drug and alcohol report,a counsellor's report, and a pre-sentence report) were all before the Court. Theserecorded that the appellant did not have a history of this type of offending and threwsome light on the deeper triggers for it: loneliness, his relationship breakdown, heavydrinking and boredom. The Judge noted that, although the offending had started assexual, it was overtaken by risk-taking excitement and being part of an online group.[13] The Judge observed that the appellant appeared to stop the offending on hisown, rather than after police intervention, and this was in his favour. That said, theJudge noted the material had not been entirely deleted off the phone.[14] The Judge adopted a starting point of four years and six months' imprisonmentfor the distribution and possession charges, saying this could be considered as a threeyear six month sentence for the distribution charge with a one year uplift for thepossession charge. This was reduced for totality to a starting point of four years'imprisonment. He considered a number of decisions in setting this starting point.5[15] A cumulative starting point of four months' imprisonment was taken for themaking charge because it was fundamentally different in nature from the otheroffending. It involved a serious breach of trust, although the photographs were muchless serious than those the subject of other charges. The Judge also took into accountthe appellant's assertion that the photographs were not taken with the intention ofmaking objectionable images. The Judge said the offending did not appear as"shocking" as it initially read, noting the photographs were stored with other familyphotographs.6[16] The Judge accepted that the appellant demonstrated "extreme" remorseevidenced by the reports and letters before him.7 He referred to the suggestion theappellant has assisted the police in investigating others involved in child exploitationmaterial. The Judge said this sounded like more of an educative role, and he wasunsure of the extent of the appellant's help to authorities. He said, although no specificreduction would be given, he took it into account. In total, the Judge applied a oneyear discount for all mitigating factors.[17] Applying the one-year discount and the 25 per cent discount for the guilty pleasresulted in a sentence of two years and six months' imprisonment. Home detentionwas therefore unavailable.5 Tilyard v Police [2016] NZHC 1377; Robinson v Police [2017] NZHC 2655; Paterson v Police[2012] NZHC 2759; Walsh v Police [2014] NZHC 230.6 Police v [C], above n 4, at [49].7 At [52].[18] The Judge rejected the submission that a sentence of intensive supervision wasappropriate in light of the serious nature of the offending.Standard of appeal[19] An appeal against sentence must only be allowed if the Court is satisfied therehas been an intrinsic error in the sentence imposed and a different sentence should beimposed.8 The focus is on the final sentence and whether it was in the available range,rather than the exact process by which it was reached.9 As articulated in R v Peters:10[13] As this Court has indicated on many occasions, the issue whether asentence is manifestly excessive or manifestly inadequate or inappropriatemust be examined in terms of the sentence actually passed rather than theprecise process by which it is reached. Thus, if a sentence might be theproduct of a starting point which is itself manifestly excessive but is in theresult ameliorated by allowances made for mitigating factors so as ultimatelyto be brought to a point of acceptability, this Court will be disinclined tointervene through concern over any particular component. Starting point[20] Mr Robinson, for the appellant, submitted the starting point was too high dueto:(a) the short duration of the offending (3 months);(b) the offending occurring on a single device;(c) the appellant's decision to stop offending before being caught;(d) the appellant's lack of intention in the making charge; and(e) the "comparatively moderate" number of distribution and possessionimages or videos in light of other sentencings in this area.8 Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.9 Ripia v R [2011] NZCA 101 at [15].10 R v Peters CA12/03, 14 May 2003.[21] The English Sentencing Guidelines Council's Sexual Offences Act 2003:Definitive Guideline (issued in 2007) has been used in the past as a useful guide tosentencing in this area.11 It has been replaced by the England and Wales' SentencingCouncil's Sexual Offences: Definitive Guideline (which came into effect in 2014)which simplifies the offence categories of seriousness into three categories (A, B andC). Publications in "A" are those depicting penetrative sexual activity and sexualactivity with an animal or sadism, "B" are publications with non-penetrative sexualactivity, and "C" are publications depicting other indecent images not otherwiseaccounted for. The Guideline also draws a distinction between possession, distributionand production as being on a spectrum of elevating seriousness in terms of startingpoint.[22] However, the Court of Appeal in Patel v R noted the legislative history of theFilms Videos and Publications Classification Act 1993 does not suggest there was, inNew Zealand, any intended hierarchy of charges involving objectionable material.12Rather, the Court stressed that the gravity of the offence, and therefore the appropriatesentence, depends on the following non-exclusive factors:13(a) the nature of the publication;(b) the volume of material involved;(c) the number of people the material was distributed to;(d) the offender's role in the making or distribution; and(e) the harm caused by that offending, which will usually be closely linkedby (a), (b) and (c).[23] The appellant possessed 1,550 objectional items, 1,072 were category C,28 were category B and 419 were category A. The appellant distributed 61 images.Forty-nine were category C, five were category B and seven were category A.11 Tilyard v Police, above n 5.12 Patel v R [2017] NZCA 234.13 At [35].[24] The offending involved real harm. The children were vulnerable and abusedin order to create the images. Many of the images possessed by the appellant were ofthe most serious kind. Furthermore, although it was for a short period, the appellantengaged in the distribution of the material – fuelling the market for this form of childexploitation.[25] Other cases in this area support the Judge's starting point.[26] In Tilyard v Police, a two years and six months' starting point was taken onappeal for the possession of 700 images and the distribution of 128 images on appeal.14All but three of those images were considered category C. In Pattison v Police, astarting point of four years and six months' imprisonment applied to the possession of874 images and the distribution of two videos and two images.15 The distributedvideos were category A and the images were category B. In terms of possession, ofthe 325 images involving children, 128 images were category A, 143 were category Band 54 were category C. Of the other images, 258 depicted computer-generatedchildren in sexual acts and 291 were adult bestiality. As Ms Kensington for the Crownsubmitted, the present case is arguably more serious due to the volume involved.[27] Turning briefly to the making charge, the two images are clearly category Cimages. Considering the proximity in time to the other offending, the nature of theimages, the relationship of trust involved and the vulnerability of the victim, theoffending warranted a cumulative sentence. As there were only two images of thelowest category, a four-month uplift to account for this offending was entirelyappropriate.[28] Although in his written submissions on behalf of the appellant Mr Robinsoncriticised the Judge's starting point, he acknowledged in oral submissions that it waswithin range. All he was really saying was that a lower starting point could have beentaken.14 Tilyard v Police, above n 5.15 Pattison v Police [2018] NZHC 2163.[29] The Judge undertook a careful analysis of the offending and comparable cases.The starting point cannot be faulted. There was no error.Discount for mitigating factors[30] Mr Robinson submitted the appellant should have received a greater discountthan the 12 months, or 23 per cent, given for good character, tangible remorse andco-operation with police. He referred to the appellant's:(a) positive history of employment and high level of performance in thatjob;(b) history of maintaining prosocial relationships;(c) exceptional degree of remorse;(d) attempts to engage in restorative justice; and(e) co-operation with the police.[31] I note the appellant's employment and social history both fall within goodcharacter, the Judge noted there was "extreme" remorse,16 and co-operation withpolice was referred to, although no tangible evidence of that was before him. The onlymatter not mentioned was restorative justice (addressed in more detail below).[32] The argument was perhaps less about what the Judge failed to consider andmore about the discount being too low. Ms Kensington pointed out that typicaldiscounts for remorse are around five to 10 per cent17 and thus a discount of 23 per centcannot be criticised as too low in this case.Additional information[33] I have the benefit of additional information which was not available to thesentencing Judge. There was no objection to the admission of these documents on16 Police v [C], above n 4, at [52].17 Bullen v R [2017] NZCA 625 at [32].appeal and I regard them as relevant and cogent – that is, had the documents beenbefore the sentencing Judge, they would, in my assessment, have made a difference tohis decision. The documents are:(a) Letter from the police[34] The police provided a letter addressing the appellant's offers to provideinformation about another man he knew to be in possession of child pornography. Itis not appropriate to detail the information provided by the police. I can record,however, that the information was not provided until late-September 2019 and itrelated to the involvement of another person some 18 months prior. On this basis, thepolice view is that further up-to-date information would be required in order to makeeffective use of the material. Furthermore, the police consider that they would requiremore detailed information to make use of the leads provided by the appellant.[35] That said, Detective Constable Drew attended sentencing. He confirmed to methat the appellant openly said that he would assist the police in whatever way he could.[36] While opposing counsel had different views as to whether the appellant shouldhave offered further information to the police (as the respondent maintained) orwhether the appellant could not be criticised for waiting for the police to make furtherrequests of him (as the appellant maintained), there is no doubt that the appellant hasbeen assessed as genuine, in terms of his offers, and expressed a wish to make amendsfor his offending to the extent it is possible.[37] This then takes the appellant's offers into a different realm than at the time ofsentencing, where the Judge assessed it as "offering more of an educative sort ofrole".18 Given that assessment, the Judge did not allow any specific reduction forassistance to authorities, but treated it more as evidence of the appellant's remorse andincluded it in a general discount for mitigating factors.[38] The assistance in this case is somewhat nebulous. As Mr Robinson submitted,however, in the face of what is accepted to be a genuine offer of assistance, the18 Police v [C], above n 4, at [54].appellant should not be denied a discount because police or other authorities do nothave the resources to make the most of that offer. The assistance offered does notappear, at present anyway, to be as significant as that offered in Hadfield.19 However,I accept Mr Robinson's submission that there is genuine value in the offer which couldassist the police and potentially the Department of Internal Affairs.[39] In the circumstances, I am satisfied a discount of around seven per cent iswarranted for this aspect.(b) Letter from associate of the appellant[40] A further demonstration of the appellant's desire to make amends is a letterfrom an associate of his who is fully aware of the offending and is not only supportiveof the appellant but also talks of the assistance he has provided to her in dealing withabuse to which she was subject as a child. I quote from the letter: To depict [the appellant]'s treatment of me as anything short oftransformative would be to fundamentally undermine both his personal effortsand effect. [The appellant], of his own volition, has devoted untold hours toensuring my well-being; devising strategies that enabled me to disengage withself-injury for substantive periods, and providing a source of counsel duringperiods where even existing appeared too overwhelming.I deliberately disclosed exact details of my past CSA [childhood sexual abuse]to [the appellant] in light of his offending. As a victim of sexual trauma, I amplaced in a precarious position in relation to [the appellant]. However, it is aposition that gleans genuine insight into how [he] has transcended the typicalrole of 'offender' to embody that of an advocate. [The appellant] has activelyqueried my emotional experiences (in relation to CSA) in pursuance ofacquiring in-depth knowledge of how being subjected to such acts underscoresvarious areas of my life. It is neither easy, nor necessary (in the context of ourjustice system) to gain a comprehensive awareness of the repercussions ofone's errors or misunderstandings. However, this is a self-directed (andelected) form of rehabilitation and education [the appellant] has engaged. [the appellant] has earnestly sought advice on how he can utilise hisposition (as both an offender and a male) to countermand the broader effectsof his actions in a way that is both receptive and meaningful to us, as victims.It is this desire to enact long-lasting amends which has seen [the appellant]willingly offer comprehensive insight into his experience of offending,including how he accessed materials, how objective content is distributed,how one could develop offense-supportive cognitions, and how these arenormalised via 'in-group' interaction.19 R v Hadfield CA337/06, 14 December 2006.[41] This provides valuable insight into the steps taken by the appellant tounderstand the impact of his offending on victims and to take positive steps to assistand support someone who is suffering from similar harm.(c) Restorative justice[42] Although the restorative justice conference had taken place by the time ofsentencing, the full report was not available and the Judge did not refer to it in hissentencing remarks.[43] The Judge was aware that the appellant had offered to attend restorative justicewith his previous partner but she did not want to pursue it. Although restorative justicecould be considered of little value in a case such as this where the victims cannot beidentified, that is perhaps to ignore what such a conference can achieve. As well asthe facilitator, a survivor specialist and a specialist in harmful sexual behaviourattended the conference, which lasted for an hour and a half. The benefit of theconference was to enhance the appellant's understanding that offending of this naturedoes involve victims and that the viewing and distribution of images of themrevictimizes them time and time again.[44] Notably, the report referred to the appellant's comment that he was notundertaking the process in order to influence the Court but he was doing it for himself.He confirmed his commitment to therapy and determination not to repeat theoffending.[45] Offers to make amends are recognised by Parliament as entitling an offenderto a discrete discount on sentencing.20 Parliament has emphasised the importance andvalue of restorative justice in its relatively recent amendments to the Sentencing Act2002.21 The principles of sentencing include the need to recognise the outcome of anyrestorative justice process.2220 Sentencing Act 2002, s 10.21 Section 24A.22 Section 8(j).[46] Another factor which could have been taken into account is the ramificationsfor the appellant of his future relationship with his daughter. Contact is allowed atpresent only over Skype, and that is limited. I do not suggest that restriction isunreasonable in light of the circumstances of this case. The point, however, is that theoffending has had enormous consequences for the appellant.[47] The Judge gave a global discount of 12 months (23 per cent) in recognition ofmitigating factors, which could be increased to 16 months (30 per cent) in light ofthese additional factors.[48] The discounts in respect of the additional information would result in asentence of 24 months' imprisonment with the potential of home detention.Sentencing and rehabilitation prospects[49] The reports emphasise the need to focus on the appellant's rehabilitation. Heis a contributing member of society, in a good job and in stable accommodation.[50] The appellant's house was considered unsuitable for electronic monitoring,given signal problems, resulting in the pre-sentence report writer recommending thatsentencing should be adjourned to enable the appellant to find a new address. Thereport writer said:However, it is the view of Community Corrections that a sentence of homedetention would offer more rehabilitative value to [the appellant] than one ofimprisonment.[51] The appellant had self-referred for counselling, his counsellor describing himas "deeply ashamed of his offending" and "highly remorseful". The alcohol and drugassessment noted he had used alcohol as a coping mechanism for several years andduring the offending. It assessed him as willing to engage with counselling in respectof alcohol use and sexual offending.[52] A psychological report was obtained for sentencing.23 Dr McLachlan'sconclusion was:23 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38(c) and (d).[The appellant] expresses a high degree of remorse regarding his offending.He has successfully engaged in counselling treatment. Although he showssome insight into problem areas, he does not yet have a clear understandingof the psychological and other factors that maintain and exacerbate his offencerelated issues and would benefit from comprehensive treatment in this regard.[53] Dr McLachlan was of the opinion that, regardless of sentence, the appellantrequired treatment.[54] While the Judge referred to the sentencing purposes of accountability,promoting responsibility, denunciation and deterrence, rehabilitation is also animportant consideration. It is well known that short sentences of imprisonment are theleast effective sentence in terms of preventing recidivism. Although the sentenceoriginally imposed would not meet the definition of a short-term sentence ofimprisonment,24 it would have seen the appellant eligible for parole after havingserved ten months. Given he is a first offender in respect of this type of offending,with no criminal record to speak of, it is likely that he would have been paroled eitherat, or close to, his first eligibility date. The prospects of any rehabilitation during sucha short period of imprisonment are slim at best.[55] The principles of sentencing include the need to impose the least restrictiveoutcome.25 The Sentencing Act provides that the Court must have regard to thedesirability of keeping offenders in the community as far as practicable and consonantwith the safety of the community. The Court must not impose a sentence ofimprisonment unless the purposes and principles of sentencing cannot be achieved bya sentence other than imprisonment.26[56] The pre-sentence report writer identified the requirement that, for the appellantto continue in employment, his employer must nominate a workplace sponsor toensure professional use of the internet. A probation officer has now made contact withthe appellant's employer, who has remained supportive of him and confirmed that hisemployment can continue while on home detention. The employer has agreed toinstall software on the appellant's cell phone and laptop so his employer can monitor24 Parole Act 2002, s 4 definition of "short-term sentence".25 Sentencing Act, s 8(g).26 Section 16.all internet use. The employer also agreed to weekly communication with theCorrections Department. These measures will enable the appellant to keep hisemployment while ensuring oversight of his internet use, thus protecting thecommunity from this type of offending.[57] The final aspect warranting mention is the Child Sex Offender Register.Mr Robinson acknowledged that, even if the appellant receives a sentence short ofimprisonment, there is no realistic prospect of a decision that he should not be placedon the Child Sex Offender Register. Given the nature of the offending, and the matterswhich must be considered,27 the conclusion that the appellant poses a risk to the sexualsafety of children is inevitable. As the Court of Appeal has recognised, theimplications of registration constitute a significant penalty.28 Registration also has theresult of enhancing protection of the community, a relevant consideration in decidingwhether or not a sentence of imprisonment should be imposed.[58] Standing back then, what is in the best interests of society and the appellantand best meets the purposes and principles of sentencing? A sentence of imprisonmentwill see the appellant lose a good job, his home and future prospects. Given the lengthof sentence, rehabilitative treatment in prison is unlikely. The appellant's employmentprospects on release will inevitably be severely impacted. In contrast, a sentence inthe community will enable him to remain in employment, provide for his family, buildon the significant steps he has taken to date to address his rehabilitative needs andacknowledge the impact of his offending on victims. It will enable him to continue tobe a contributing member of society while at the same time the safety of thecommunity will be protected through a sentence of home detention and the placementof the appellant's name on the Child Sex Offender Register.[59] I am satisfied home detention is the appropriate sentence.27 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9.28 Bell v R [2017] NZCA 90 at [26]; Taitapanui v R [2018] NZCA 300 at [33].Result[60] For the reasons given, the appeal is allowed. The sentence of two years andsix months' imprisonment is quashed and will (once the requirements of s 80A(2) ofthe Sentencing Act are met), be replaced with a sentence of 12 months' homedetention.[61] Mr C must find an address suitable for home detention. His current homeshould be reassessed in case there have been any changes making it feasible forelectronic monitoring. Once an address is approved by Community Corrections, thematter should be referred back to me for orders on the papers. The sentence of homedetention can then commence. In the meantime, the appellant's bail continues.[62] The special conditions of home detention are those special conditions proposedin the pre-sentence report, supplemented by those proposed by CommunityCorrections in its memorandum of 17 December 2019. I make a registration orderpursuant to s 9 of the Child Protection (Child Sex Offender Government AgencyRegister) Act 2016.[63] I make an order prohibiting publication of the name, address, occupation oridentifying particulars of the appellant pursuant to s 200 of the Criminal Procedure Act2011.Thomas JSolicitors:Crown Solicitor's Office, Wellington