DEPARTMENT OF INTERNAL AFFAIRS v WIREMU [2017] NZHC 2415

DEPARTMENT OF INTERNAL AFFAIRS v WIREMU [2017] NZHC 2415 [3 October 2017]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000107[2017] NZHC 2415BETWEEN DEPARTMENT OF INTERNALAFFAIRSAppellantAND VINCENZO TYRONE WIREMURespondentHearing: 28 September 2017Appearances: C Butchard and M Robinson for AppellantP Johnson for RespondentJudgment: 3 October 2017JUDGMENT OF GENDALL JIntroduction[1] The respondent is a young man aged 24 years who was diagnosed from ayoung age as suffering from Asperger's Syndrome. He has no previous convictions,he lives at home with his parents and he is in full time employment as a driver, a jobhe has held for about five years.[2] In August 2016, the respondent was charged by the Department of InternalAffairs with three charges of making objectionable publications. These involved 26sample charges of distributing objectionable publications, and 12 sample charges ofpossessing objectionable publications. The objectionable material featured thesexual abuse and exploitation of young persons and children as young as toddlers.[3] Following a guilty plea at an early stage, the respondent was convicted onthese charges in the District Court at Christchurch and Judge Farish on 12 July 2017imposed a sentence of 24 months' intensive supervision.1[4] The appellant now appeals that sentence on grounds that:(a) There was an error in the sentence imposed; and(b) A different sentence ought to be imposed.Background[5] From various times commencing at least in March 2013 up to April 2016, therespondent used a variety of online storage facilities, and various email accounts indiffering names, to acquire and trade the objectionable material in question. Thismaterial was extensive. As I have noted, it showed sexual abuse of young persons,children and toddlers across the full range of objectionable categories, from posingto full penetrative sexual activity between adults and children.[6] As well as possessing and distributing videos and images of victims whowere unknown to him, the respondent also distributed non-sexual images of young1 Department of Internal Affairs v Wiremu [2017] NZDC 15204.daughters of family friends and relatives in exchange for locked online repositoriesof sexual abuse material owned by other readers.[7] The respondent encouraged other traders and consumers to debase thosepictures of the girls known to him by overlaying images of their erect penises orother evidence of masturbation, adding sexualising captions, or commenting in asexual manner. The overlay of evidence of masturbation on an original (usually non-sexual) image and sending it to another person is known as 'tributing' the image.[8] Evidence before the Court showed the respondent had 1162 objectionablevideo files and images sent to 104 individual traders and consumers of child sexualabuse material in a 15 month period from February 2015 to April 2016. It does seemalso that in fact there were thousands of files shared to online storage accounts. Inaddition, 821 objectionable videos and images were located at the time of theappellant's search, collected between March 2013 and April 2016 and found on therespondent's laptop, mobile phone and other devices and accounts.Jurisdiction[9] Section 250 of the Criminal Procedure Act 2011 provides that the Court mustallow the appeal if it is satisfied that there is an error in the sentence imposed andthat a different sentence should be imposed. As this is a Solicitor-General's appeal,the sentence should be increased only to the level which is considered the lowestappropriate for the class of offending. The oft-cited Court of Appeal decision in R vDonaldson addressed this area and said:2A Solicitor-General's appealIt is established that a sentence should not be increased pursuant to aSolicitor-General's appeal unless, on a review of the facts and circumstancesof the case, it is clear that the sentence which was imposed is manifestlyinadequate (R v Wihapi [1976] 1 NZLR 422, 424 (CA)) or the Crown is ableto point to some error in principle upon which the trial Judge acted. See R vPue [1974] 2 NZLR 392 (CA), at p 392 et seq. It is also settled thatconsiderations which justify an increase in sentence must be morecompelling than those which might justify a reduction. Thus, in R v Wihapithe Court held (at p 424) that the considerations justifying an increase must'speak more powerfully than those which justify a reduction' and that the2 R v Donaldson (1997) 14 CRNZ 537 (CA) at 550.Court 'is more reluctant to increase than it is to reduce a sentence'. Similarly,in R v Beaman unreported, 16 November 1982, CA177/82 the Court said (atp 7) that it would only increase the sentence in 'clear cut' cases. Again, caremust be taken to ensure that the Court does not override the sentencingJudge's discretion to take a merciful approach or to adopt a course calculatedto achieve rehabilitation, even in cases which would normally call for adeterrent sentence, particularly if the sentencing Judge has presided over thetrial and therefore had the opportunity to see and hear the witnesses andmake an assessment of the offender's culpability. See R v Wihapi (supra, at p424) and R v Hunter [1985] 1 NZLR 115, 121 (CA). Even if the Courtdetermines that the sentence is manifestly inadequate or based upon a wrongprinciple, it will still be reluctant to interfere if this would cause injustice tothe offender. In particular, the Court will be more disinclined to interferewhere a community-based sentence has been imposed and conditions whichwere ordered have been complied with than where an inadequate custodialsentence is in issue. See R v Clark unreported, 10 March 1981, CA266/81, atpp 4, 5; R v Parker unreported, 29 April 1988, CA246/87, at p 7; and R vPeters unreported, 11 April 1986, CA309/85 at pp 8, 9. See also Hall,Sentencing in New Zealand, App II, 5.5-5.11, and Adams on Criminal Law,Wellington, Brooker's, 1992, vol 2, Ch3.6.12.These principles reflect the Court's appreciation of the harsh effect ofsubstituting a non-custodial sentence for a prison sentence. In manycircumstances there can be an element of inhumanity in doing so. Anoffender must initially look at his or her pending sentencing withconsiderable trepidation and, in many cases, intense hope that a noncustodialsentence will be imposed, especially when that prospect is encouraged bytheir counsel. If in real jeopardy they will almost certainly be overwhelmedwith relief if they in fact receive a non-custodial sentence. Although theywill in all probability be advised of the right of appeal statutorily vested inthe Solicitor-General and be apprehensive, they must necessarily feel elatedthat the primary sentencing process has been completed and imprisonmenthas been avoided. Hope may convert itself into confidence that the Judge'ssentence will be upheld. In the meantime they have been at liberty. Theyhave rejoined their family or friends and returned to their work and dailyroutine. They may have undertaken treatment or therapy where that has beenrecommended or stipulated as a condition, and such treatment may well beproving successful. With an appreciation of these considerations anydecision to reverse a non-custodial sentence and replace it with a term ofimprisonment is not lightly undertaken. The Court, indeed, is most reluctantto do so.[10] In summary, from these comments on appeals of this type, several mattersemerge:(a) considerations which justify an increase in sentence must be morecompelling than those which might justify a reduction;(b) even if the Court determines that the sentence is manifestlyinadequate or based upon a wrong principle, it will still be reluctant tointerfere if this would cause injustice to the offender; and(c) in particular, the Court will be more disinclined to interfere where acommunity-based sentence has been imposed and conditions whichwere ordered have been complied with.District Court Sentencing[11] When the respondent appeared before Judge Farish for sentencing,Her Honour noted first, the respondent's age and long-standing diagnosis withAsperger's Syndrome. She acknowledged however that, notwithstanding this, hehad achieved relatively well in full time employment for some years and was well-regarded by his employer. The judge then commented on the abhorrent nature of therespondent's offending, and the harm it has caused to the victims and the community.Judge Farish went on to set out the purposes and principles of sentencing, namelydeterrence, denunciation, accountability, the interests of victims, and rehabilitation.[12] Her Honour adopted a starting point of five years' imprisonment for thecharges of distributing and making offensive material, and then uplifted the startingpoint by six months for the charges of possession, leading to an overall starting pointof five years and six months' imprisonment.[13] For mitigating factors, Judge Farish applied a 10 per cent discount for therespondent's youth, 25 per cent for his early guilty plea and 20 percent for hisAsperger's Syndrome. Judge Farish then, it seems, erred in her mathematicalcalculations. She proceeded on the basis that the end sentence would have been oneof two years' imprisonment and thus a sentence of home detention was available toher. In fact, the end sentence on her calculations should have been one of two yearsand ten months' imprisonment.[14] Judge Farish then went on, it appears, to place significant weight on what shedescribed as a "very comprehensive report" prepared by Mr Neilson, a veryexperienced clinical psychologist in this area, which was before her. In doing so, sheconcluded a sentence of imprisonment or home detention would undermine thepurposes of sentencing here, in particular, the respondent's prospects ofrehabilitation. Her Honour quoted quite extensively from Mr Neilson's report andconcluded:[32] Although normally I would impose home detention given all ofthose factors that I have just read out from Mr Neilson's report and I seehome detention as being restrictive and undermining the whole purpose ofthe sentence, that is, to try and rehabilitate you and lower your risk of re-offending in a similar way.[33] Therefore, in a very unusual, and this is an unusual case, I am goingto sentence you to two years' intensive supervision. What that means is thatyou will have to do the STOP programme and I expect your employers to besupportive, as they have indicated they will be, in allowing you time off toparticipate in that programme. In addition to the STOP programme you arealso to have ongoing counselling from a responsible treating clinician. Forthe moment that might be Mr Neilson but for whatever reason if that needsto change it needs to be someone with experience in this area. In additionyou are to live at an address approved in writing by the Probation Service.The address that you are currently at in Farm Lane is fine but you are not tomove from that address without the prior written approval of your probationofficer. During the course of this sentence you are not to be in possession ofinternet capable devices. So even adult pornography is not appropriate foryou by way of the internet at this stage, do you understand? You are not toaccess or have available to you internet capable devices unless it is approvedin writing by the probation officer.[34] In addition to the intensive supervision I will judicially monitor you.That is, one, I want to check your progress over the next two years but I alsowant to make sure that any treatment that is being provided to you is inaccordance with the whole purpose of the sentencing which is to lower yourrisk of re-offending but also, obviously, clearly to rehabilitate you.[15] An end sentence of two years' intensive supervision, including an additionaltwo year Judicial Monitoring by the Judge, was ultimately imposed.[16] Before dealing with the substantive issues on this appeal, it is useful todiscuss briefly the legislative history that introduced community-based sentencingand the hierarchy of sentencing generally under the Sentencing Act 2002 (the Act).Legislative history and sentencing hierarchy[17] The policy underlying the introduction of additional community-basedsentences, and the elevation of home detention to a sentence in its own right, are setout in the Explanatory Note to the Criminal Justice Reform Bill No. 93/1 (the Bill).The opening part of the Explanatory Note states:The purpose of the Bill is to introduce a range of measures to arrest the sharpincrease in the prison population in recent years. This increase is no longersustainable, neither financially nor socially. New Zealand's imprisonmentrate is considerably higher than countries that we habitually compareourselves with, such as the United Kingdom, Canada, and Australia. TheBill, which includes some measures that will have an immediate effect andothers that will take longer for their impact to be felt, is intended tocontribute to a reduction in the imprisonment rate over time.[18] Before this 2007 Amendment, a sentencing Court could not impose asentence of home detention.3 The question whether a sentence of imprisonment ofno more than two years could be served by detention at home was determined by theParole Board. The sentencing Judge's role was to act as a gate-keeper, decidingwhether, in the circumstances of the particular case, leave to apply for homedetention should be given. In deciding whether to grant leave, the sentencing Judgeapplied criteria set out in s 97(3) of the Act. Immediately before its repeal, s 97(3)provided:(3) The court may grant the offender leave to apply to the New ZealandParole Board under section 33 of the Parole Act 2002 for homedetention only if the court is satisfied that it would be appropriate togrant leave, taking into account-(a) the nature and seriousness of the offence; and(b) the circumstances and background of the offender; and(c) any relevant matters in the victim impact statement in the case.[19] Those factors remain relevant to imposition of a sentence of home detention.[20] In addition to adding home detention to the sentencing options available to asentencing Judge, Parliament created two more community-based sentences. Thesewere intensive supervision and community detention. For intensive supervision, therelevant statutory provisions provide:3 R v D [2008] NZCA 254 at [36].54B Sentence of intensive supervision(1) A court may sentence an offender to intensive supervisionif—(a) the offender is convicted of an offence punishable byimprisonment; or(b) the offender is convicted of an offence and theenactment prescribing the offence expresslyprovides that a sentence of home detention may beimposed on conviction; or(c) the offender is convicted of an offence and theenactment prescribing the offence expresslyprovides that a community-based sentence may beimposed on conviction.(2) The sentence may be for a period, being not less than6 months and not more than 2 years, that the court thinks fit.54C Guidance on use of sentence of intensive supervisionA court may impose a sentence of intensive supervision only if it is satisfiedthat—(a) a sentence of intensive supervision would reduce thelikelihood of further offending by the offender through therehabilitation and reintegration of the offender; and(b) the nature of the offender's rehabilitative or other needsrequires the imposition of conditions—(i) for a period longer than 12 months; or(ii) that are not available through the sentence ofsupervision.[21] The 2007 Amendment contained, for the first time, a hierarchy of sentences.The specific statement of this hierarchy in s 10A of the Act is relevant to theprinciples of sentencing set out in s 8(g) of the Act. This provision was amended bys 6(2) of the 2007 Amendment to read:8 Principles of sentencing or otherwise dealing with offendersIn sentencing or otherwise dealing with an offender the court—(g) must impose the least restrictive outcome that is appropriate inthe circumstances, in accordance with the hierarchy ofsentences and orders set out in section 10A; and(My emphasis.)[22] The hierarchy of sentences in s 10A of the Act provides:10A Hierarchy of sentences and orders(1) The hierarchy of sentences and orders set out in subsection(2) reflects the relative level of supervision and monitoringof, and restrictions imposed on, an offender under eachsentence or order.(2) The hierarchy of sentences and orders, from the leastrestrictive to the most restrictive, is as follows:(a) discharge or order to come up for sentence if calledon:(b) sentences of a fine and reparation:(c) community-based sentences of community work andsupervision:(d) community-based sentences of intensive supervisionand community detention:(e) sentence of home detention:(f) sentence of imprisonment.[23] Parliament went on to accept, however, that, in some circumstances, it maybe necessary for a combination of sentences of different types to be imposed torespond adequately to particular offending. While s 19 sets out permittedcombinations of sentences, s 20 contains guidance on their use:19 Permitted combinations of sentences(1) No court may impose a combination of sentences ofdifferent types on an offender in respect of 1 or moreoffences except as provided in this section.(2) A sentence of reparation may be imposed with any sentence.(3) A sentence of a fine may be imposed with any sentence, butmay only be imposed with a sentence of imprisonment inrespect of a particular offence if authorised by the enactmentspecifying the offence.(4) A sentence of supervision may be combined with anysentence except intensive supervision, home detention, orimprisonment.(5) A sentence of community work, subject to section 20(2),may be combined with any sentence except imprisonment.(6) A sentence of community detention may be combined withany sentence except home detention or imprisonment.(7) A sentence of intensive supervision may be combined withany sentence except supervision, home detention, orimprisonment.(8) A sentence of home detention may be combined with asentence of reparation, a fine, or community work.(9) A sentence of imprisonment may be combined with asentence of reparation or, subject to subsection (3), a fine.20 Guidance on use of combinations of sentences(1) A court may impose a particular combination of sentenceson an offender only if satisfied that any of the sentencesmaking up the combination, if imposed alone or in any lessrestrictive combination, would not be in accordance with—(a) the purpose or purposes for which sentence is imposed; or(b) the application of the principles in section 8 to the particularcase.(2) A court may only combine a sentence of community workwith a sentence of supervision or intensive supervision ifsatisfied that—(a) a sentence of community work is appropriate; but(b) the offender requires the imposition of standard conditionsor any of the special conditions available under a sentence ofsupervision or intensive supervision to address the causes ofhis or her offending.[24] Under the Act, imprisonment is the most restrictive sentence and may only beimposed in circumstances identified in s 16:16 Sentence of imprisonment(1) When considering the imposition of a sentence ofimprisonment for any particular offence, the court must haveregard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant withthe safety of the community.(2) The court must not impose a sentence of imprisonmentunless it is satisfied that,—(a) a sentence is being imposed for all or any of thepurposes in section 7(1)(a) to (c) , (e) , (f) , or (g);and(b) those purposes cannot be achieved by a sentenceother than imprisonment; and(c) no other sentence would be consistent with theapplication of the principles in section 8 to theparticular case.(3) This section is subject to any provision in this or any otherenactment that—(a) provides a presumption in favour of or againstimposing a sentence of imprisonment in relation to aparticular offence; or(b) requires a court to impose a sentence ofimprisonment in relation to a particular offence.[25] As I see it, the primary intent of the 2007 Amendments seems to have been tocurb the rate of imprisonment of offenders in New Zealand.AnalysisMathematical error[26] Both Counsel for the appellant and counsel for the respondent agree that inher decision there was a mathematical error in Judge Farish's 24 months calculationand her presumption, therefore, that home detention was available to the respondent.As to mathematical errors in sentencing, recently the Court of Appeal in Ferris-Bromley v R held:4(a) A mathematical error resulting in a sentence more severe than theJudge patently intended must be corrected, even if the sentenceimposed was still within the available range. In such a case of plainerror, it would be unjust for the error to be left uncorrected.(b) If it is not clear that the Judge made a mathematical error in arrivingat the sentence imposed, the usual test will apply: is the sentencemanifestly excessive (that is, beyond the available range).4 Ferris-Bromley v R [2017] NZCA 115 at [15].(c) An error favouring a defendant will not be corrected unless it hasresulted in a sentence manifestly inadequate or inappropriate. Inpractice this approach is only taken on a prosecution appeal, broughtwith the Solicitor-General's consent under s 246 of the CriminalProcedure Act.(citations omitted)[27] Section 15A(1)(b) of the Sentencing Act provides that a sentence of homedetention is only available when the Court would otherwise sentence the offender toa short-term sentence of imprisonment. A short-term sentence of imprisonment isdefined in s 4 as having a determinate sentence of 24 months' imprisonment or less.The discounts here, however, should have resulted in an end sentence of two yearsten months' imprisonment. Therefore, I accept that Judge Farish erred by proceedingon the premise that a sentence of home detention was available to her.[28] However, in my view, the mathematical error is somewhat inconsequential tothe respondent's overall sentence of two years' intensive supervision. As I discusslater, the Court need not be satisfied that a sentence of home detention must first beavailable before a sentence of intensive supervision is imposed. Furthermore, themathematical error here favours the respondent and therefore will not be correctedunless the Solicitor-General can satisfy this Court that the end sentence wasmanifestly excessive.Was a sentence of intensive supervision available to the respondent?[29] The appellant maintains here that, even if the Judge was within range toimpose a non-custodial sentence, to drop two levels in the sentencing hierarchy isunusual and requires compelling reasons for it to be justified. The appellant citesMinistry of Social Development v Albert,5 where Moore J considered a prosecutionappeal against a sentence of community detention for benefit fraud. His Honourheld:[53] In my view the sentence which Mr Albert received was manifestlyinadequate. Not only should the sentence have been one of imprisonment butthe reduction from 22 months' imprisonment to six months' communitydetention represent such a significant reduction in sentence that it cannot bejustified on orthodox sentencing principles.5 Ministry of Social Development v Albert [2015] NZHC 1288.[30] However, taken to its logical conclusion here, the appellant's argument beforeme would mean that a sentence of intensive supervision could only be imposed for asentence of short term imprisonment (i.e. one of not more than 24 months'imprisonment). If this was intended by Parliament, it could have expressly statedthis to be so in the statutory wording of s 54B(1)(a). It did not. The simple statutorywording provides that intensive supervision may be imposed "if the offender isconvicted of an offence punishable by imprisonment." Had Parliament decided thatintensive supervision could only be imposed for short term imprisonment, it could,for example in s 54B(1)(a) have adopted the statutory wording of s 15A(1)(b),(where the Court may only impose a sentence of home detention if "the court wouldotherwise sentence the offender to a short-term sentence of imprisonment"). But itdid not.[31] Furthermore, contrary to what I understand were the appellant's submissionsbefore me, there are a number of authorities that suggest a sentence of intensivesupervision is available for sentences of imprisonment which exceed two years. In Rv O, Ms O pleaded guilty to two charges of attempted murder of her children,punishable by a maximum sentence of 14 years' imprisonment.6 Ms O intended tokill her children and commit suicide. She initiated her plan but sought help beforeanyone was irreversibly harmed. This Court considered that the offending wasdriven by intense suicidal emotions and ultimately sentenced Ms O to 24 months'intensive supervision. Whata J observed:It may be that [the prosecution] considered that the severity of the offendingwarranted a punitive element to reflect the need to denounce such conduct.Even so, I am not attracted to this because I consider that all of your energymust be devoted to your mental health issues and to your family who plainlyneed you.[32] In R v Goodlet, the Solicitor-General appealed against the District Court'sdecision to impose no sentence under s 34(1)(b)(i) of the Criminal Procedure(Mentally Impaired Persons) Act 2003.7 The respondent pleaded guilty to one countof wounding with intent to cause grievous bodily harm, and one count of conspiringto prevent the course of justice. The respondent suffered from either paranoid6 R v O [2012] NZHC 796.7 R v Goodlet [2011] NZCA 357.schizophrenia or a psychotic disorder secondary to multiple drug use. The Solicitor-General contended that such offending was serious enough to warrant a sentence ofaround three years six months' imprisonment. This Court agreed with the Solicitor-General and held that the District Court Judge erred in refusing to impose a sentenceof imprisonment.8[33] However the Court of Appeal found it inappropriate to impose a sentence ofimprisonment on appeal for two main reasons. First, it was evident that subsequentto the respondent's sentencing, significant progress had been made regarding therespondent's condition. Second, and as foreshadowed at [9] above, even in asuccessful appeal against sentence by the Solicitor-General, the Court may still beloath to translate a community-based sentence into a custodial one.9 The Court ofAppeal imposed two years' intensive supervision despite the fact that, like here, anend sentence would have exceeded two years.[34] I therefore find that a sentence of intensive supervision was available at theJudges' discretion.Was the sentence nonetheless manifestly inadequate?[35] The appellant submits that the end sentence is inappropriate and manifestlyinadequate to reflect the seriousness of the offending by the respondent here. It iscontended that the sentence was in error as it focussed overwhelmingly onrehabilitation, to the exclusion of other sentencing purposes and principles. On thisaspect, the appellant refers to R v Senio, where Ronald Young J cautioned againstartificially tailoring a sentence:10[16] I reject the respondent's submission that the correct approach for theJudge was to decide on the appropriate sentence type and structure thesentence accordingly. This ignores appellate authority and the need forconsistent sentences. Judges are simply not free to choose the sentence typethey think might be best. Nor is a complaint of a mathematical approach tosentencing appropriate. The appellate courts have given clear direction as toan appropriate sentencing process for Judges to follow (R v Taueki [1999] 3NZLR 62.) That process ensures all relevant features are properly taken into8 Above n 7 at 52.9 Above n 7 at 55.10 R v Senio HC Wellington CRI-2009-485-158, 16 December 2009.account. It does allow Judges to legitimately go outside sentencing norms inparticular cases.[17] However, the respondent's submission for a "sentence type"selection process as the first step by a sentencing Judge would be a chaoticbasis to reach a fair and proper sentence.[36] In Waugh v New Zealand Police, Priestley J cautioned against minimising theseriousness of possessing objective material:11The seriousness of offending of this type must not be minimised. The factthat such material can be accessed online in the privacy of one's home; thatthe material are photographic; or that the people who choose to downloadthem, far from being repulsed and disgusted are instead gratifying theirsexual deviances; all tend to obscure the fact that the production ofobjectionable material relies on the exploitation and defilement of children.Far away from the comfort of the home, probably on the other side of theworld, vulnerable children are being exploited for commercial gain.Possessors such as the appellant may be remote in time and place. But theirdeviancy fuels the demand.[37] In May 2015, Parliament increased the maximum sentence for distributingobjectionable publications from ten to 14 years' imprisonment. The appellantmaintains that this substantial increase demonstrates Parliament's intent to send astrong message first, that the possession of, and trade in, child exploitation materialis abhorrent and secondly, that this encourages the abuse of children.[38] With all this in mind, the appellant's position is that a sentence of three yearsand three months' imprisonment should be imposed here instead of the intensivesupervision sentence imposed by Judge Farish.[39] While I agree that the sentence of two years' intensive supervision ismanifestly inadequate, and some appropriate punitive element should be added here,in light of the relevant authorities, however, I am disinclined in the unusualcircumstances of this case to interfere with the respondent's community basedsentence. This sentence is no doubt a merciful one. It is not, however, necessarilyan easy sentence. In appeals such as the present one, the Court of Appealcommented in R v Donaldson:1211 Waugh v New Zealand Police HC Auckland CRI-2010-404-178, 15 October 2010 at [22].12 R v Donaldson, above n 2 at 550.Care must be taken to ensure that the Court does not override thesentencing judge's discretion to take a merciful approach or to adopt acourse calculated to achieve rehabilitation, even in cases which wouldnormally call for a deterrent sentence[40] At this stage, in my view, it is not appropriate, in the circumstancesprevailing here, for this Court to substitute a prison sentence for the non-custodialsentence imposed in the District Court. I accept it is unusual to drop a number oflevels in the sentencing hierarchy but, as R v Harris13 notes, this Court may do so.In the present case I find that there are good reasons for adopting this course.14[41] This is especially the case here where the respondent has been compliant withhis sentence of intensive supervision and has actively enrolled in the STOPprogramme. He has agreed to meet with Mr Neilson once a month and is beingjudicially monitored by Judge Farish. The respondent has a strong support network,including family, his employer and the community. I am not prepared to interferewith the respondent's progress by substituting a sentence of imprisonment.[42] In addition, it is useful to remember that the probation report which wasbefore the District Court confirmed that the respondent's risk of direct harm to otherswas low and it recommended a sentence of intensive supervision. The clinicalpsychologist's report from Mr Neilson, significantly, as I see it, also reached thefollowing conclusions:(10.1) These behaviours of his have not come on the more typical anti-socially motivated pathway. He has not expanded an already deviantlevel of sexual preoccupation. Rather, Vinnie's path has come aboutthrough a more restricted path of lifelong restricted social skills,understood as Asperger's Disorder which has contributed to hisexperience of blocked accessibility to same-age peer partners forsocial and sexual expression. Some have described the predicamentof the adolescent male as having a full-grown body with a full-grown sex drive, with the emotional functional at a prepubescentage.(10.5) Given these circumstances that have contributed to Vinnie's decisionto access pornography and objectionable material, the writer wouldrespectfully suggest that punishment in a prison setting is not what13 R v Harris [2013] NZCA 611 at [21].14 Ministry of Social Development v Albert [2015] NZHC 1288 at [40].will be in Vinnie's best interests from a rehabilitative perspective orfor society's protectionA term of imprisonment would arguablysee Vinnie re-enter the community with poorer social skills andemotional scars that would have increased his risk of similaroffending.(10.12) The prison environment is not seen to be a suitable and rehabilitativeenvironment for a person with a diagnosis of Asperger's Disorder,such as Vinnie.[43] Although the respondent's offending was clearly extensive and serious, giventhat he suffers from Asperger's Syndrome, I am satisfied it could not be said he wassimply callously indifferent to what he was doing here. And from the Donaldsondecision it is clear that unless very compelling reasons requiring imprisonment exist,this Court should be reluctant to impose imprisonment where an appropriatecommunity-based sentence can be imposed. This is especially the case where, ashere, an appellant has begun and progressed well on such a sentence.[44] Other authorities also support the general position I take here. In R v D(CA253/2008), the Solicitor-General appealed against a sentence of one year'sintensive supervision on a charge against the defendant of wounding his former wifewith intent to injure.15 The Court of Appeal held that a sentence of two years'imprisonment, or home detention, should have been imposed. However, citing theprinciple established in R v Nathan, the Court held that it was inappropriate onappeal to substitute for the respondent's sentence one of imprisonment or homedetention. Instead, the Court of Appeal substituted a combined sentence of twoyears' intensive supervision with 250 hours' community service.[45] Adopting the approach in R v D (CA/253/2008), I am of the view that in theunusual and special circumstances of this case imprisonment is not appropriate here,but an appropriate punitive element to the respondent's sentencing should be added. Itherefore impose a further 250 hours' community service on top of Judge Farish'ssentencing.15 R v D [2008] NZCA 254.Result[46] The appeal is allowed but effectively only in part. In addition to therespondent's sentence of two years' intensive supervision, the respondent is furthersentenced to 250 hours' community service.[47] For the avoidance of doubt, the special conditions imposed by Judge Farish,including the requirement of judicial monitoring, are undisturbed. The specialconditions, as I understand it, were as follows:(a) Mr Wiremu is to see Mr Neilson or another treating psychologist forat least two years;(b) Mr Wiremu is to attend and complete the STOP programme;(c) Mr Wiremu is to live only where directed by the Department ofCorrections and cannot have access to the internet unless that isapproved in writing by his probation officer;(d) Mr Wiremu is not to have contact with children under the age of 16years unless he is supervised by an appropriate adult until it isapproved by his treating clinicians.[48] All other orders, including suppression of the details of family members anddestruction of the objectionable material also remain undisturbed....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchPublic Defence Service, Christchurch