M v NEW ZEALAND CUSTOMS SERVICE [2021] NZHC 1402

M v NEW ZEALAND CUSTOMS SERVICE [2021] NZHC 1402 [15 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-555[2021] NZHC 1402BETWEEN MAppellantAND NEW ZEALAND CUSTOMS SERVICERespondentHearing: 8 June 2021Counsel: J C Harder for AppellantJ-H Kang for RespondentJudgment: 15 June 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 15 June 2021 at 11:30 amRegistrar/Deputy RegistrarSolicitors:Tucker & Co (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] On 25 November 2020, in the course of sentencing M, Judge N J Sainsburyordered that M be registered under the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016 ("the Act").1[2] M now appeals that order.[3] The respondent does not oppose the appeal.[4] My task is to decide whether the order that M be registered under the Act wasan error such that the order should be quashed.[5] My decision will turn (as the parties agree) on the applicability of the dicta inthe recent Supreme Court decision, D (SC 31/2019) v Police.2Background[6] M was sentenced by Judge Sainsbury on the following charges (to which hehad pleaded guilty):(a) Two charges of knowingly importing an objectionable publicationcontrary to s 390(1)(a) of the Customs and Excise Act 2018;(b) Two charges of knowingly distributing an objectionable publicationcontrary to s 124(1) of the Films, Videos, and PublicationsClassification Act 1993; and(c) Knowingly possessing objectionable publications contrary tos 131A(1) of the Films, Videos, and Publications Classification Act1993.[7] M offended through use of peer to peer software installed on his computer.1 R v [M] [2020] NZDC 24552.2 D (SC 31/2019) v Police [2021] NZSC 2 at [7].[8] On 26 February 2019, Customs Officers executed a search warrant at M'saddress. During the search it was established that M's computer was activelyimporting two objectionable publications from overseas countries. Both wereassessed as Category A under the United Kingdom Guidelines 2014. One depicted agirl of perhaps nine years and the other a girl of perhaps 15 years.[9] Two charges of knowingly importing an objectionable publication resulted.[10] During the search it was found that M's computer was also distributing files toother peer to peer program users. One of the images and one of the video filesdistributed depicted the sexual exploitation of a child or young person. The image wasassessed as Category C under the United Kingdom Guidelines and the video file wasthe Category A video, depicting a girl of perhaps 15 years which resulted in one of theimportation charges.[11] The distribution of the image and the video file founded the two distributioncharges.[12] The charge of knowingly possessing objectionable publications was arepresentative charge and applied to approximately 1639 image and video filesconsidered to be objectionable within the meaning of the Act. Those files depicted thesexual exploitation or abuse of children or young persons. 119 images and six videofiles were classified as Category A, 142 images and one video file were classified asCategory B, and the balance were classified as Category C.[13] When M was questioned during the exercise of the search warrant he said hehad used the peer to peer software for about six years and that he would search theinternet to find child sexual exploitation material. M said he knew that objectionablepublications were illegal and he would delete objectionable publication files hedownloaded once he had looked at them so as to avoid other people seeing them.Judge Sainsbury's decision[14] M had no previous criminal history. He had mental health issues and after hisarrest took active steps to address the causes of his offending. Judge Sainsbury, froma starting point of four years six months' imprisonment, ended up sentencing M to ninemonths home detention, emphasising the need for M to continue with his rehabilitationefforts.[15] So far as registration under the Act is concerned, the Judge said:3[40] That then brings me to the next issue. Where home detention isimposed as a sentence I need to consider whether there should be registrationunder the relevant legislation. I agree with the approach taken by her HonourJustice Thomas in C v Police4, set out at paragraph [57]. When considerings 9, Thomas J concluded, in that case, that it was clear that the appellant poseda risk to the sexual safety of children. I consider that is the case here. This isnot a case of contact offending as such, but any relapse does put at risk thesafety of children who are the victims of this offending. Registration, asThomas J noted, has the result of enhancing protection of the community. Iconsider that it provides an oversight and safeguard to reinforce the need foryou to take up and continue the rehabilitative steps. It follows that I considerit is appropriate that there be registration.[16] Judge Sainsbury granted M permanent name suppression.D (SC31/2019) v Police[17] D v Police was delivered on 9 February 2021, several months after JudgeSainsbury's sentence was imposed.5[18] The part of D v Police relevant to this appeal is its discussion of the correctapproach to s 9 of the Act, which is as follows:69 Court may make registration order(1) If a court imposes on a person a non-custodial sentence in respect ofa conviction for a qualifying offence, the court may order that theperson must be placed on the register and must comply with thereporting obligations of this Act.(2) A court may make an order under this section (a registration order)only if the court is satisfied that the person poses a risk to the lives orsexual safety of 1 or more children, or of children generally.(3) For the purpose of assessing the risk posed by the person, the courtmust consider the following matters:3 R v [M] [2020] NZDC 24552.4 C v Police [2019] NZHC 3431.5 D (SC 31/2019) v Police [2021] NZSC 2.6 Section 9 has been amended since the decision, but not in a way relevant to this appeal.(a) the seriousness of the qualifying offence:(b) the period of time that has elapsed since the offence wascommitted:(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 thetime of 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 bythe person:(j) any other matter that the court considers relevant.(4) A registration order is made at the time of sentencing and is a sentencefor the purposes of Part 6 of the Criminal Procedure Act 2011(appeals).(5) However, for the purposes of section 31 of the Sentencing Act 2002(general requirement to give reasons), a registration order is an othermeans of dealing with the offender.(6) The provisions of subparts 4 and 12 of Part 6 of the CriminalProcedure Act 2011, so far as they are applicable and with thenecessary modifications, apply to an appeal in respect of a registrationorder.[19] A majority of the Court held that the exercise undertaken by a court whenconsidering making a registration order is a two-stage process.7 First, the Court mustbe satisfied that the offender poses a real or genuine risk to the lives or sexual safetyof a child or children generally.8 Second, the Court must be satisfied this risk is ofsufficient gravity to justify the making of a registration order with the consequentimpacts on the rights of the offender.97 D (SC 31/2019) v Police [2021] NZSC 2 at [104] per Winkelmann CJ and O'Regan J, and [260]per Glazebrook J. This constituted a majority of the five-member Court.8 At [104]-[105].9 At [10] and [106-108].[20] A different majority of the Court held further that in assessing the risk posedby an appellant, a Court may take into account updating reports of relevant expertsnotwithstanding this may change the risk profile considered by the sentencing Judge.10Application of D v Police to M's case[21] M seeks leave to adduce an updating report from Mr van Rensburg, aregistered clinical psychologist who provided a risk assessment to the sentencingCourt. I grant leave.[22] Mr van Rensburg's report dated 16 October 2020, which was one of the reportsbefore Judge Sainsbury (and consistent with them), concluded M was at low risk ofcontact sexual offending and at a low to moderate risk of non-contact sexual offendingthrough use of the internet. Mr van Rensburg's updated report11 concludes M is nowat a low risk of sexual offending, contact or non-contact.[23] The first limb of the test in D v Police is to decide whether M poses a real orgenuine risk to the sexual safety of a child or children generally. M concedes that hedoes. I agree.[24] M has, for years, been accessing abusive images and videos of children via theinternet. The young ages of some of the children is of obvious concern. The risk ofrecidivism, despite the progress he has made with rehabilitation, remains.Winkelmann CJ and O'Regan J – although entirely obiter dicta – discussed the verysimilar situation of D. I respectfully adopt for this case their conclusion on thethreshold issue:[128] The fact that the risk is low does not mean that the appellant does notnow pose a risk to the lives or sexual safety of one or more children or childrengenerally, to use the words of s 9(2) of the Registration Act. This risk must bereal or genuine, but, as discussed earlier, does not need to be more than that.There remains a low, but nonetheless real, risk that the appellant will resortagain to viewing and possessing videos and photographs of the kind involvedin his offending. But it is a reduced – and reducing – risk from that which wasassessed by the District Court Judge. We consider this is sufficient to satisfythe threshold in s 9(2).10 At [41] per Winkelmann CJ and O'Regan J and [159] per Ellen France J.11 Dated 23 April 2021.[25] The second limb of the test is whether M's risk is of sufficient gravity to justifythe making of a registration order with the consequent impacts on M's rights.[26] It is necessary to set out how a registration order impacts on an offender'srights. First, pursuant to s 16, they must make an initial report:(1) For the purposes of this Act, the relevant personal information to bereported by a registrable offender consists of the followinginformation:(a) his or her name, together with any other name by which he orshe is, or has previously been, known:(b) in respect of each name other than his or her current name, theperiod during which he or she was known by that other name:(c) his or her date of birth:(d) the address of each of the premises at which he or shegenerally resides or, if he or she does not generally reside atany particular premises, the name of each of the localities inwhich he or she can generally be found:(e) the name, sex, and date of birth of each child who generallyresides in the same household as that in which the offendergenerally resides:(f) in respect of each child who generally resides in the samehousehold as that in which the offender generally resides, thename of the principal caregiver:(g) his or her postal address for service of notices and documentsunder this Act:(h) if he or she is working,—(i) the nature of the work; and(ii) the name of his or her employer (if any); and(iii) the address of each of the premises at which theoffender generally works or, if he or she does notgenerally work at any particular premises, the nameof each of the localities at which he or she generallyworks:(i) details of his or her affiliation with any club or organisationthat has a child membership or child participation in itsactivities, including any online club or organisation:(j) the make, model, colour, and registration number of anymotor vehicle owned by, or generally driven by, the offender:(k) details of any tattoos, scars, or permanent distinguishingmarks that he or she has (including details of any tattoo ormark that has been removed):(l) if, at the time of making an initial report, he or she has 1 ormore valid passports, the passport number, place of issue, anddate of expiry of each passport:(m) details of any telecommunications service used, or intendedto be used, by the offender, including—(i) the name of any landline or mobile telephone serviceprovider used, or intended to be used, by the offender;and(ii) any phone numbers used, or intended to be used, bythe offender:(n) the name of any Internet service provider, and the details ofany routing or modem device, used, or intended to be used,by the offender:(o) details of any username for any online social networks, onlinegaming accounts, or online storage accounts used, or intendedto be used, by the offender:(p) details of any website domain owned or website administered,or intended to be owned or administered, by the offender:(q) details of any email addresses used, or intended to be used, bythe offender.[27] Second, there are ongoing reporting obligations. Sections 18 and 19 of the Actprovide:18 Requirement to make periodic reports(1) A registrable offender must periodically make reports (each aperiodic report) of the offender's relevant personal information tothe Commissioner until the offender's reporting period ends.(2) However, a registrable offender whose reporting obligations aresuspended is not required to make periodic reports while thesuspension is in force.(3) A periodic report includes a report that simply confirms that theregistrable offender's relevant personal information stated in the lastreport previously made by the offender—(a) is correct; and(b) has not changed since the offender made the last report.(4) If the registrable offender has been in custody since he or she lastreported his or her relevant personal information under this section,the details he or she must report include details of when and wherethat custody occurred.19 When periodic reports must be made(1) A registrable offender must make a periodic report in each year duringthe reporting period, starting in the first year after the offender makeshis or her initial report.(2) The registrable offender must make the report—(a) on the date specified by the Commissioner by notice inwriting to the registrable offender, being a date that is—(i) at least 1 month after the date on which the notice wasgiven; and(ii) at least 12 months after the date of the last periodicreport by the offender under this Act (if any); or(b) if no such date is specified by the Commissioner, by the endof the calendar month in which the anniversary of the date ofthe last periodic report by the offender under this Act or acorresponding law falls.[28] Further, changes to relevant personal information must be reported.12[29] Travel plans, and changes to them, must be reported if the plans will result inthe offender being away from their residential address for more than 48 hours.13[30] A registered offender may be required to provide fingerprints or submit tobeing photographed.14[31] Generally, the reporting obligations for a person in M's position last for eightyears.15[32] The information on the register can be accessed by specified agencies andauthorised persons who have public interest reasons for doing so.12 Section 20.13 Sections 21 and 22.14 Sections 29 and 30.15 Section 35(1)(d).[33] It is obvious from the above that the impact on M's rights of being on theregister is considerable. And the restrictions have limited relevance to the risk ofoffending via the internet.[34] I accept, as did Winkelmann CJ and O'Regan J in relation to D's case,16 thatthe requirements of s 16(1)(m)–(q) have some potential benefits where an offender'smeans of offending is the internet. But, s 16 does not permit monitoring of M's use ofthe internet. The s 16(1)(m)–(q) requirements could be useful in identifying M if hewere to re-offend using his computer to access the internet, but the other requirementshave no, or very limited, relevance to his case.[35] As I did for the first limb of the test, I respectfully adopt for this caseWinkelmann CJ and O'Regan J's conclusion on the second limb:[135] The appellant poses a low risk of internet offending. His ongoingtreatment has reduced this risk and there appear to be reasonable prospectsof rehabilitation. On the other side of the balance is the limited benefit of aregistration order and the intrusion into the appellant's rights that we havehighlighted earlier. Our assessment is that the level of risk that the appellantposes to the sexual safety of children is not of sufficient gravity to justify themaking of a registration order with the consequent impacts on the appellant'srights[36] It follows that I agree with Mr Harder for M and Mr Kang for the respondentthat it was an error to make M the subject of an order for registration under the Act.Decision[37] The appeal is allowed. The order in the District Court registering M under theAct is quashed.________________________________Brewer J16 At [134].