TERRIS v POLICE [2019] NZHC 1525

TERRIS v POLICE [2019] NZHC 1525 [1 July 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-10[2019] NZHC 1525BETWEEN JEREMY JAMES TERRISAppellantAND NEW ZEALAND POLICERespondentHearing: 25 June 2019Counsel: P J Ross for appellantA R T Garrick for respondentJudgment: 1 July 2019RESERVED JUDGMENT OF DOBSON J[1] On 18 July 2018, the appellant (Mr Terris) was sentenced in the District Courtat Wellington by Judge Hinton on two representative charges of knowing possessionof objectionable material.1 The charges were laid under ss 131 and 131A of the Films,Videos, and Publications Classification Act 1993, attracting a maximum sentence of10 years' imprisonment or a fine of $50,000.[2] At the same time, Mr Terris was sentenced on four charges of breach of aprotection order and one charge of breach of release conditions.[3] The Judge imposed sentences of 13 months' imprisonment on the convictionsfor possession of objectionable material, a cumulative sentence of seven months inrelation to breaches of the protection order and a concurrent sentence of two monthsfor breach of release conditions. The prison sentence for the knowing possession of1 Police v Terris [2018] NZDC 15700.objectionable material rendered Mr Terris's registration on the child sex offenderregister (CSOR) mandatory.[4] Mr Terris's appeal is brought only from the sentence imposed on theconvictions for possession of objectionable material.Application for leave to appeal[5] Mr Terris's application for leave to appeal was filed six months out of time.He has contended that he was unaware of the possibility of an appeal and had beengiven poor legal advice about his predicament. The Crown opposes leave to appealbeing granted, questioning the credibility of a man with Mr Terris's extensive previousinvolvement with the criminal justice system not being aware of the nature of hisappeal rights. The Crown also opposes leave being granted on the ground that theappeal is without merit.[6] By agreement with counsel, I heard their submissions on both the grounds forleave, and the substantive issues sought to be raised on the appeal. Having heard theargument, I accept that some relatively unusual features arise, and that it is appropriateto grant leave and I therefore do so.The sentencing decision[7] In the course of executing a search warrant on an unrelated matter atMr Terris's residential address on 6 January 2016, the Police seized an electronic tabletfrom his bedroom. It contained numerous media files and images, which wereconsidered objectionable. One hundred and twenty five images were located and thePolice selected 19 as examples depicting either bestiality or the sexual exploitation ofchildren.[8] Police analysis of the contents of the tablet revealed that it had been used ontwo occasions, on 24 and 31 December 2015, to seek out sites from whichobjectionable material could be downloaded. Although Mr Terris's explanation forthe presence of the objectionable images on his tablet was that friends or associates ofhis had done it as a practical joke, he was not prepared to provide any details of whohad done it or how it could have occurred.[9] At the time of sentencing, Mr Terris had been remanded in custody forapproximately 15 months on the other charges he was facing.[10] The Judge set a starting point of 14 months' imprisonment for both of theobjectionable material charges, eventually allowing one month's reduction from thatbefore adding seven and a half months for the remaining convictions. The Judgerecognised that a sentence of that length introduced the possible alternative ofsentences of either home detention or community detention. For Mr Terris, Mr Rossfocused on the Judge's initial comment on that option, which was "that there is littleutility in considering that outcome". The reason cited was "primarily that you haveserved already that sentence".2[11] The Judge's further reasoning suggested it would be inappropriate to changethe sentence from one of imprisonment to achieve an outcome where Mr Terris wasnot automatically entered on the CSOR. Further, that if a sentence less thanimprisonment was imposed so that the conviction was one where the Judge had adiscretion as to whether to order that Mr Terris's name be entered on the CSOR, hewould in any event have done so.Grounds of appeal[12] The appeal is brought under s 250 of the Criminal Procedure Act 2011. Toallow the appeal, I must be satisfied that there was an error in the sentence imposedand that a different sentence should have been imposed.3[13] The essence of the appeal was that an end sentence other than imprisonmentshould have been imposed and that Mr Terris should then not have been registered onthe CSOR.2 Police v Terris, above n 1, at [18].3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36].[14] I did not understand Mr Ross to challenge the sentence of 13 months'imprisonment as being excessive for the level of offending involved. He didacknowledge that the alternative of a sentence of supervision would have been clearlyinadequate were it not for the relevance he attributed to the period of some 15 monthsthat Mr Terris had served in custody on remand.[15] Mr Ross criticised the Judge for the narrow focus in presumptively wishing togive Mr Terris the greatest credit for the period he had spent in custody on remandwhen arguably an equivalent credit could have been given by imposing a sentence thatavoided mandatory registration on the CSOR.[16] Mr Ross also criticised what he perceived to be the Judge's refusal to allow theconsequence of a sentence including registration on the CSOR to dictate thesentencing option that was adopted. He submitted there is authority recognising thatwhether or not an offender is registered on the CSOR is a relevant consideration inchoosing between available sentencing options.[17] I also took Mr Ross to accept that, absent the consequence of registration onthe CSOR, imposing a sentence of imprisonment of a length that had more or lessalready been served would have been an appropriate sentence in these circumstances.[18] The Crown's response to the appeal was that the end sentence of imprisonmentwas not manifestly excessive and was appropriate in all the circumstances. If that isaccepted, then registration on the CSOR was automatic. Alternatively, if a proper endsentence is one short of imprisonment, then the Judge's reasoning was correct thatregistration on the CSOR would nevertheless have been appropriate.Analysis[19] It is recognised that registration on the CSOR is a punitive consequence of asentence where it automatically follows.4 In Bird, Ellis J attributed relevance to thepunitive effect of registration on the CSOR in an evaluation of whether home detentionwas appropriately substituted for a term of imprisonment if:4 Bird v Police [2017] NZHC 1296 at [37], citing Bell v R [2017] NZCA 90.(a) the end length of a prison sentence would have been well under thetwo year cut-off point;5 and(b) where the Crown acknowledged on the discretionary assessment unders 9 of the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 (the CPCSO Act) that an order for registrationwould not be appropriate as the offender did not pose a risk to the livesor sexual safety of one or more children.6[20] This approach reflects the purpose of the CPCSO Act in that the Court has nodiscretion on registration where offending of the type caught by the CPCSO Act issufficiently serious to warrant a sentence of imprisonment. Alternatively, the Courtcan have regard to the punitive consequence of registration in cases where the relativeseriousness of the offending would result in a short period of imprisonment wherehome detention is an available substitute, and the circumstances of the offender wouldnot warrant the Court exercising its discretion to place the offender on the CSOR.[21] The Judge approached the sentencing outcome from a pragmatic perspective.The available options were imprisonment or a sentence of supervision. As Ms Garrickpointed out, the mid-level options in the sentencing hierarchy were excluded as therewas no suitable address available at which Mr Terris could serve a sentence of homedetention. That meant there were only stark options in a case where Mr Terris wasclearly a candidate for a short sentence of imprisonment, given other factors beyondthose bearing on the consequence of registration on the CSOR.[22] The record of his criminal history runs to 23 pages, dominated by offendinginvolving dishonesty, driving and breach of court-imposed conditions. There is nochallenge to the cumulative prison sentence imposed for the convictions for numerousbreaches of protection order and a concurrent sentence for breach of releaseconditions. There was a relevant need for deterrence, which would not be met if anotherwise appropriate sentence of imprisonment was substituted with one ofsupervision.5 At [40](a).6 At [30] and [40](b).[23] Further, as Ms Garrick pointed out, Mr Terris could not legitimately have beengiven credit for an equal time on remand compared with the final sentence. The periodof somewhat more than 15 months does not equate with the final prison sentence of20 months. I accordingly agree with the Crown that the only reason not to impose thesentence of imprisonment was to avoid the additional punitive consequence ofMr Terris's name being entered on the CSOR. I agree with the earlier authorities thathave suggested that such an approach is not permissible.[24] That outcome makes it unnecessary to rely on any concluded view as towhether Mr Terris's name ought to have been placed on the CSOR as a matter of theCourt's discretion, had he been sentenced other than to a term of imprisonment. It waslegitimate for the Judge on sentencing, in responding to the competing submissionsmade to him, to make the observation that he would, in any event, have orderedMr Terris's name to be placed on the CSOR. It is unnecessary to uphold that judgmentin order to confirm the correctness of his sentencing decision.[25] In deference to Mr Ross's thorough argument, I acknowledge that inconsidering the mandatory considerations under s 9(3) of the CPCSO Act, the case fora discretionary decision to require Mr Terris's name to be placed on the CSOR maynot have been so compelling as the Judge considered. It was not the most serious formof offending, whilst involving a troubling form of exploitation of child victims thatclearly warranted the length of sentence the Judge nominated. In an extensive criminalhistory there is no previous suggestion of sexual offending or offending involvingharm to children. The pre-sentence report writer's assessment of the prospect ofsubsequent offending appears not to focus separately on the risk of further offendingof the type that entry on the CSOR is intended to prevent.[26] Notwithstanding all of those valid points raised by Mr Ross, the nature andextent of the images on Mr Terris's tablet and his response to being apprehended mightwell still justify a finding that he poses a risk to the lives or sexual safety of one ormore children or of children generally. I am accordingly not prepared to find that theJudge made a material error on his alternative approach. That is, where he indicatedthat had it become a matter of discretion, he would in any event have directed thatMr Terris's name be entered on the CSOR.[27] Accordingly, the appeal is dismissed.Dobson JSolicitors/Counsel:P J Ross for appellantCrown Solicitor, Wellington for respondent