WOOD v POLICE [2020] NZHC 2951

WOOD v POLICE [2020] NZHC 2951 [9 November 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000086[2020] NZHC 2951BETWEEN JAMES BRENDON WOODAppellantAND NEW ZEALAND POLICERespondentHearing: 3 November 2020Counsel: MJ James for AppellantSD Taylor for RespondentJudgment: 9 November 2020JUDGMENT OF DOWNS JThis judgment was delivered by me on Monday, 9 November 2020 at 2 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Hamilton.MJ James, Hamilton.The appeal[1] James Wood pleaded guilty to one charge of indecently communicating with aperson under the age of 16 years. Mr Wood—who is 44—corresponded extensivelywith an 11-year-old girl ("C"). The online communications extended to the prospectof sexual intercourse.[2] Judge R J Marshall imposed 18 months' supervision; and ordered Mr Wood beregistered under the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016.1 Mr Wood appeals the latter. He contends he ought not havebeen registered as a sexual offender against children.Background[3] In August 2019, C created an Instagram account using her primary schoolemail address. Shortly thereafter, Mr Wood sent her a message asking how old shewas. She said 11; Mr Wood initially said he was a 16-year-old boy. Mr Wood and Cregularly communicated by Instagram and through other social media.[4] After a time, Mr Wood sent C "sexualised messages".2 He asked C to sendintimate pictures of herself. Mr Wood later told C he was 43 and using his son'saccount. Mr Wood and C began referring to each other as husband and wife. Theydiscussed "wanting to have sex with each other".3[5] In November 2019, C was caught video chatting with Mr Wood at school. Hersocial media accounts were then deleted.[6] On 28 November 2019, C created a new email address to communicate withMr Wood. The two resumed contact; C told Mr Wood Police were involved. Mr Woodtold C to delete their messages. He also said they needed to be careful or he may goto jail. Mr Wood then asked C to send him intimate images of herself. C declined,but the communications turned to "having sex with each other".41 The Act.2 Summary of facts, p 2.3 As above.4 As above, p 3.[7] Mr Wood told Police he "helped" C because she was bullied at school and hehad been too.[8] Mr Wood was charged 18 March 2020. He pleaded guilty 21 August 2020.The law[9] If a Court imposes a non-custodial sentence in relation to a conviction for aqualifying offence, it may order the defendant be placed on the child sexual offenderregister if satisfied he or she "poses a risk to the lives or sexual safety of one or morechildren, or of children generally".5 The Court must assess these matters:(a) the seriousness of the qualifying offence:(b) the period of time that has elapsed since the offence was committed:(c) the age of the person:(d) the age of the person at the time of the offence:(e) the age of any victim of the offence at the time of the offence:(f) the difference in age between the victim and the person at the timeof the offence:(g) any written assessment of the risk posed by the person:(h) any submission or evidence from any victim of the offence:(i) any other submission or evidence relating to the risk posed by theperson:(j) any other matter that the court considers relevant.The Judge's decision[10] The Judge thought the qualifying offence at the "lower level".6 He noted the"33-year age difference" between Mr Wood and C.7 He recorded the Department ofCorrections' assessment Mr Wood posed a "medium risk of harm and medium risk ofre-offending".5 The Act, s 9(2).6 Police v Wood [2020] NZDC 17103 at [7].7 At [7].[11] The Judge took into account a prior incident. In 2016, Mr Wood was formallywarned by Police for communicating with a 14-year-old girl; and asking her "to sendindecent images of herself".8[12] The Judge said Mr Wood did "not display any remorse or acceptresponsibility"9 given these observations in his pre-sentence report:10Mr Wood disputes the Summary of Facts, stating he pled guilty to the chargesas he was not able to prove his innocence. He explained the evidence was onhis cell phone and unable to provide this due to it "being smashed". Hemaintains he thought she was seventeen or eighteen years old and had not seenany pictures of her prior to November 2019. He insisted he never asked forany intimate images of the victim and stated she only sent a 'head shot' ofherself and it was difficult to determine her age. Mr Wood did not explain thereason for him using his son's social media account and continues to state hethought she 'was older'.Mr Wood did not display any remorse for his actions or accept responsibilityfor his wrongdoing, however continued to blame the victim for not disclosingher age to him earlier during their 'social media relationship'.[13] The Judge concluded:11I am satisfied that there is a risk to you engaging in future communications ofan indecent nature with younger girls and that this is something that isdifficult, in your case, to manage and there has been a reoccurrence of thattype of communication. The victim impact statement from the victim'smother discloses to me the impact that this kind of offending can have onyoung persons and children. So I am of the view, although this is at a lowerlevel, that in relationship to other charges that people face of a sexual nature,nevertheless it is serious offending as far as children and young persons areconcerned. I am satisfied that you do pose a risk to the safety of youngerchildren, as far as if you get access to internet and the like.Argument and analysis[14] On behalf of Mr Wood, Ms James contends the Judge erred. Ms James' helpfulwritten submission said Mr Wood's lack of remorse constituted the absence of amitigating factor rather than an aggravating one. However, at the hearing, Ms Jamesacknowledged this submission presupposed a conventional sentencing analysis;whereas the Act is concerned with risk. Ms James recalibrated her argument. She said8 Police record 160404/6402.9 Police v Wood, above n 6, at [7].10 Provision of Advice to Courts, 10 August 2020, p 2.11 Police v Wood, above n 6, at [8].the offending was not sufficiently serious to warrant registration. Ms James also saidrehabilitation may make an order unnecessary.[15] The Court of Appeal has emphasised the statutory risk (to children) must bereal.12 That Court has also warned against elevating the standard, or approaching itother than through the statutory criteria. Or, as Kos P observed: the "proper exerciseof the discretion in each case will inevitably depend on a close assessment of thematters set out" in the statute.13[16] I am far from persuaded of error. Mr Wood's offending may be less seriousthan other cases involving registration, but it is clear he poses a risk to the sexual safetyof children. Mr Wood contacted C shortly after she created an Instagram account usinga primary school email address. He then communicated with her extensively—andpivoted to sexual matters. Mr Wood did so only three years after being formallywarned for similar behaviour. Mr Wood did not desist when C raised Policeinvolvement. Indeed, he counselled destruction of evidence and provision of intimatephotographs. In response to a question from the Bench, Ms James properlyacknowledged totality of circumstance implied Mr Wood had a "genuine sexualinterest" in C.[17] Prospect of rehabilitation is unquestionably relevant. However, Mr Wood'sobservations to his probation officer justify the Judge's conclusion Mr Wood lacksremorse and insight.[18] The appeal is dismissed...Downs J12 Dayaratne v Police [2019] NZCA 30 at [19].13 At [21].