R v NEW ZEALAND POLICE [2019] NZHC 1428

R v NEW ZEALAND POLICE [2019] NZHC 1428 [20 June 2019]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OFAPPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S)PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360347.htmlIN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2019-406-7[2019] NZHC 1428BETWEEN RAppellantAND NEW ZEALAND POLICERespondentHearing: 11 June 2019Appearances: R A Harrison for the AppellantJ W N Cameron for the RespondentJudgment: 20 June 2019JUDGMENT OF CULL J[1] Mr R appeals against the District Court decision to place him on the Child SexOffender Register (the Register) after pleading guilty to three charges of possession ofobjectionable material.[2] Mr R was sentenced in the District Court to four months' home detention, finalsuppression of name, and registration on the Register.1 Mr R says the Judge erred infinding he was such a risk to children that he satisfied the criteria to be placed on theRegister. Mr R has brought his appeal out of time. The police do not oppose leavebeing granted, but oppose his appeal.1 New Zealand Police v R [2019] NZDC 4619.Background[3] On 14 July 2017, Mr R took his computer to be repaired. The repairer locatedfour objectionable video clips and advised police, who seized the laptop. A subsequentdigital forensic analysis showed there were more than 100 objectionable videos andpictures on the device, of which four video files, last viewed some two days prior,featured an infant girl and three pictures were of pre-teen girls. The analysis alsoindicated that over 50 internet searches for child exploitation material had been carriedout on the laptop, indicating that the appellant knowingly searched for objectionablematerial.[4] In explanation, Mr R explained that he had never touched or played with achild, but accepted that he had a "quick look" when he was looking at otherobjectionable material.District Court decision[5] The Judge said that he had been troubled as to whether or not Mr R should beplaced on the Register.2 He noted that a consultant clinical psychologist had observedthat Mr R did not appear to be totally forthcoming with respect to his deviant sexualinterests.3 The Probation Service reported that Mr R appeared to suggest he was notthe person accessing the material, that he had little or no recollection of having doneso, and someone else could possibly have downloaded the items.4[6] The Judge expressed concern that Mr R did not appear to be takingresponsibility for the offending, giving the impression that he was:5 distancing [himself] from this offending and suggesting, effectively that asfar as the most serious aspect is concerned, that [he was] not looking at it, thatthis was a computer virus, and that [he is] somehow a victim of something thathas gone wrong on a computer, or something that someone else has looked at,which all defies common sense, and in any event is inconsistent with [his]plea.2 New Zealand Police v R, above n 1, at [41].3 At [42].4 At [43].5 At [48].[7] Having taken into account the seriousness of the qualifying offence, the Judgeconcluded that Mr R posed a high risk to the sexual safety of children. He said:[50] You do not appear to me to be acknowledging that offending, albeit thatyou have pleaded guilty and received the Hessell discount. So, when Iconsider the serious nature of that possession of that video series, and yourlack of acceptance of a responsibility for that, and given the ease with whichpeople are able to access the Internet today, in my view I am satisfied that youpose a risk to the sexual safety of one or more children. You are notacknowledging the issues that you have got I assess you as being at highrisk given your continued minimisation and denial of responsibility fordownloading and accessing that material. I think it entirely appropriate thatyou be put on the register, and notwithstanding the cases [counsel] havereferred me to, on a case-specific analysis here, I see you as I say, posing arisk to the sexual safety of one or more children, and that level of risk has tobe consistent with that of a serious sexual offender.Principles of appeal[8] An appeal against registration on the Register is an appeal against the exerciseof a judicial discretion.6 That being the case, the correct appellate approach is thatexplained by the Court of Appeal in May v May:7[I]n considering an appeal of this kind an appellant must show that the Judgeacted on a wrong principle; or that he failed to take into account some relevantmatter or that he took account of some irrelevant matter or that he was plainlywrong.[9] The principles in May v May have been reaffirmed by the Court of Appeal ashaving continuing applicability, notwithstanding the decision of the Supreme Court inAustin, Nichols & Co Inc v Stichting Lodestar.8Relevant law[10] Under s 9(2) of the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 (the Act), the Court may make a registration order only if"satisfied that the person poses a risk to the lives or sexual safety of 1 or more children,or of children generally", which is the threshold test.6 Dayaratne v New Zealand Police [2019] NZCA 30 at [19]-[20].7 May v May (1982) 1 NZFLR 165 at 170.8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.[11] Section 9(3) of the Act sets out the matters to be considered by the Court whenassessing the risk posed by a person. They are as follows:(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 time ofthe 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.[12] In Dayaratne v New Zealand Police, the Court of Appeal held that the conceptof a "serious child sex offender" does not assist in informing the threshold test clearlyset out in s 9(2) and that, in order for the discretion to be engaged, there need not beanything more than a real or genuine risk.9 Once the s 9(2) threshold is met, "theCourt's discretion to make a registration order is not fettered and it would be unwiseto attempt to detail the sorts of circumstances in which its exercise would beappropriate".10 The proper exercise will depend on the close examination of the s 9(3)matters with regard to the singular focus of the legislation which is to protect childrenfrom sexual offending.[13] The Court held the seriousness of the qualifying offence is a mandatoryconsideration and went on to expressly state:11 the enquiry is focused on risk to the lives and sexual safety of children notthe culpability of the offender or punishment. A registration order could beappropriate to guard against risk even where the offender's culpability is lowsuch that no sentence of imprisonment could be justified.9 Dayaratne, above n 6, at [19].10 At [21].11 At [22].Parties' positions[14] The essence of Mr R's appeal is that the Judge did not take into account thes 9(3) considerations and in particular the blameless life of the appellant, who had noprevious convictions. The risk assessments before the Court assessed Mr R as beingof low to moderate risk of further image-based internet offending and he did not appearto present a direct physical risk to children. Mr R argues the Judge did not take thisinto account.[15] Mr Stuart for the police submits that the Judge was correct to emphasise MrR's reluctance to acknowledge and discuss his offending, when the Court of Appealhas expressly stated that the focus of this inquiry is on the risk posed, rather than theculpability of the offender. The police contend the Judge was required to consider MrR's future risks and his reluctance to accept that his actions amounted to offending.This, they say, combined with a tendency to minimise his involvement in theoffending, was highly relevant and the Judge provided a thorough analysis of allmatters, despite there being no reference to s 9(3) of the Act.Analysis[16] Mr R is aged 77 years and has no previous criminal record. Mr Harrison, onhis behalf, advised the Court that Mr R has had a raft of serious medical conditions,mental and physical. Mr R's wife had recently died, and he viewed this objectionablematerial at a period of his life at which he was, arguably, at his lowest. Mr R hasacknowledged that it was he who downloaded the objectionable material, and he haspleaded guilty to the charges.[17] In his sentencing notes, the District Court Judge sets out the purpose of the Actunder s 3 and the discretion available to the Court under s 9(3). The factor whichtroubled the Judge principally is that Mr R did not appear to be taking responsibilityfor his offending. Because of the Judge's perception that Mr R did not acceptresponsibility for the possession of the objectionable video series, he was satisfied thatMr R posed a risk "to the sexual safety of one or more children." For that reason, heconsidered that Mr R should be put on the Register because Mr R's level of risk wasconsistent with that of a serious sexual offender.[18] Mr R was assessed by a psychologist, Mr Prince, as not being in the categoryof committing "hands-on offending", noting that Mr R realised how wrong hisbehaviour was, that he had no urge or reason to re-engage in such behaviour, and hadnot thought through the full implications of his offending at the time. Mr Princeconfirmed that there was no evidence that Mr R has engaged in any sexual contactwith children, and assessed Mr R's risk of future re-offending as low, but his reluctanceto discuss and acknowledge the offending raised his risk from low to low-moderate.He did, however, assess Mr R as being at an escalated risk of suicide and suggestedthe Court may consider not including his name on the Register.[19] A medical practitioner familiar with Mr R's medical conditions confirmed thathe had multiple, severe, and serious physical health problems with a reasonablysubstantial history of mental health problems, including stress, depression, andanxiety.[20] The Judge rejected Mr Prince's assessment, assessed Mr R's risk as high, andtook into account the police submission that, on advice from a Child Sex OffenderRegister detective for the local area, the recommendation was that Mr R should beplaced on the Register. The Judge then stated:12The purpose of the register being, to manage risk, both risk to children andrisk to yourself in situations as the current case would arguably involve anescalated risk of suicide.[21] In Dayaratne, the appellant had a substantial video library, he was sharing hisinformation online, he placed disturbing images of himself online with invitations tounderaged boys to make contact, and was assessed as a potential predator. The Courtof Appeal emphasised that the s 9(3) discretion required a close examination of thosefactors with regard to the singular focus of the legislation, which is to protect childrenfrom sexual offending.[22] The District Court Judge here did take into account that the approximate ageof the child on the objectionable material was 18 months, but he took no account ofthe absence of any evidence prior to this offending that Mr R posed a risk to the sexual12 New Zealand Police v R, above n 1, at [35].safety of one or more children. The police had submitted that they had concerns aboutMr R's access to his step-grandchildren. However, there was no evidence of any riskhe posed to them. To the contrary, Mr R was supported by his stepdaughter, whoconfirmed that, in all of her time associated with Mr R, there had never been anythinginappropriate sexually with her or her sister, or her children.[23] I accept the submissions of Mr Harrison that this case is distinguishable fromDayaratne, whose name was placed on the Register because he was a long-termoffender, he had organised a library of substantial objectionable video material and hehad interacted with young people on the internet. There is no evidence that Mr R is atrisk of inappropriately engaging in sexual contact with children and the high risk statedby the Judge, with respect, was contrary to the psychologist's assessment, Mr R'sstepdaughter's testimonial, and the absence of any previous untoward sexualbehaviour towards children. Handing over his computer with the objectionablematerial to a repairer highlights Mr R's unawareness that he was committing criminaloffences at the time. He has subsequently accepted his wrongdoing and pleaded guilty,for which he has been sentenced.[24] I accept Mr Harrison's submission that Mr R's minimisation of the offendingarose as a result of his embarrassment and humiliation. Despite the limitations of riskassessment referred to by Mr Prince, Mr Prince reported that Mr R had no desire toview any pornography and had no reason or urge to re-engage in such behaviour. MrPrince invited the Court to consider not including Mr R's name on the Register.[25] I find the Judge has erred in finding Mr R poses a "high" risk to the sexualsafety of one or more children, contrary to the psychologist's assessment, Mr R'sstepdaughter's testimonial, the absence of any previous sexual or criminal offending,and his age. In all of the circumstances, including Mr R's mental and physical health,and the factors under s 9(3) of the Act, I am satisfied that the degree of risk posed byMr R is, at best, low to moderate, and the discretion should be exercised in favour ofMr R's name not being registered on the Register.Result[26] The appeal is granted.[27] The order that Mr R's name be registered on the Child Sex Offenders Registeris quashed.Cull JSolicitors:O'Donoghue Webber, Nelson for Respondent