JONES v NEW ZEALAND POLICE [2023] NZHC 3730

JONES v NEW ZEALAND POLICE [2023] NZHC 3730 [15 December 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-41[2023] NZHC 3730BETWEEN SIMON DUDLEY JONESAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2023 (via VMR)Appearances: A R Laurenson for AppellantR L Hinklin for RespondentJudgment: 15 December 2023JUDGMENT OF McQUEEN J[1] On 17 November 2023, Mr Simon Jones was sentenced by Judge Hikaka in theNew Plymouth District Court to two years and two months' imprisonment, on fiverepresentative charges of possession of objectionable publications, namely childexploitation material, to which he pleaded guilty.1[2] Mr Jones appeals his sentence, saying that that insufficient credit was given forcertain mitigating factors, and that therefore his sentence was manifestly excessive.[3] The Crown on behalf of the Police oppose Mr Jones' appeal. Counsel submitthat the Judge gave sufficient credit for mitigating factors and that the end sentence isnot manifestly excessive.[4] For the reasons below, I consider that Mr Jones' appeal should be dismissed.1 Police v Jones [2023] NZDC 25679. See Films, Videos, & Publications Classification Act 1993,ss 131A(1) and 131A(2(a); maximum penalty ten years' imprisonment or a $50,000 fine.Factual backgroundThe offending[5] As part of an investigation into the possession of child exploitation material,on 10 October 2022, a search warrant was executed at Mr Jones' home. Several ofMr Jones' electronic devices were sent to the Police's High-Tech Crime Group whoextracted data from them, locating a significant quantity of objectionable material. Intotal, 17,458 images were found, which were available to Mr Jones for a period ofseven years. In a sample of 216 images, the Police located:2(a) five videos depicting erotic posing by children with no sexual activity(category 1);(b) 22 videos and 32 images depicting sexual activity between children(category 2);(c) nine videos and seven images depicting non-penetrative sexual activitybetween adults and children (category 3);(d) 59 videos and seven images depicting penetrative sexual activitybetween adults and children (category 4); and(e) 73 videos and two images depicting sadism or bestiality (category 5).Pre-sentence report[6] Mr Jones is 42 years' old and has no previous convictions. He told the pre-sentence report-writer that he does not have any sexual interest in children. He saidthat he started off watching only 'regular' pornography involving consenting adults,and that his watching-habits eventually evolved when he obtained a catalogue ofmaterial that involved children performing sexual acts, which "became part of normalrotation". The report-writer notes that Mr Jones was originally charged also with doingan indecent act in front of children, which allegedly involved him masturbating in2 Using the classification set out in R v Zhu [2007] NZCA 470.front of three children who lived next door to him. Mr Jones pleaded not guilty to thatcharge, which was then withdrawn when Mr Jones pleaded guilty to the other chargeshe faced. The report-writer suggests that Mr Jones failure to acknowledge an attractionto children may be a barrier to successful treatment.[7] At the time of his offending, Mr Jones was residing at his parents' address. Hewas then required to move from that address as a result of the charge involving thechildren who lived next door. Prior to sentencing he was living with one of his twosisters. Mr Jones has a close relationship with his family, and has a tight circle of closefriends, some of whom he has not seen owing to his offending. As to employment,Mr Jones has previously worked as a painter, before working for the Air Force forapproximately 12 years. He has more recently been involved in property developmentand book sales. Since his arrest Mr Jones has been engaged in weekly counselling. Hetold the report-writer that this counselling is focused upon his offending, and that hewas finding it helpful.[8] Mr Jones proposed his sister's address as a potential address at which tocomplete a sentence of home detention. Mr Jones' sister and her adult son consentedto Mr Jones receiving home detention to their address. Mr Jones has been sleeping inthe lounge at that address while on bail. The Police raised concerns with the report-writer following an assessment of the proposed address and nearby propertiesregarding the presence of children. It is said that there is evidence of the presence ofchildren in the properties surrounding the proposed address, as well as a sports field,park, and playground within approximately 200 metres. Accordingly, the report-writerassessed the proposed address as unsuitable.[9] Due to the significant number of images and videos that were in Mr Jones'possession, and the period of seven years over which Mr Jones had the images, thereport-writer recommended a sentence of imprisonment. The report-writeracknowledges that a sentence of home detention would be available but reiterates theirconcerns as to the proposed address.Other material before the District Court[10] There was further material before the District Court Judge. Firstly, apsychological report. That report is not relevant to the matters under appeal, so I donot set out its details. Second, letters from a counsellor that Mr Jones has been seeingsince April 2023. Third, a letter from Mr Jones himself.[11] Mr Jones' counsellor reports that Mr Jones presents as genuinely remorsefulfor his offending and looking to make the necessary changes to his life. He says thatthey have done significant work regarding Mr Jones' values, and that "I have foundhis offending at odds with the character that I have come to know".[12] Mr Jones' letter to the District Court Judge is a letter of apology, in whichMr Jones says that he is deeply ashamed. He indicates that he now understands thenature of his offending and why it is wrong. He describes his offending as one step ina cycle of harm. He notes that he has sought professional help in a private setting tospecifically address his offending throughout the period leading up to his sentencingin the District Court. He acknowledges his offending and says that he is determined toface the consequences.District Court judgment[13] The District Court Judge began by setting out the charges, Mr Jones' offending,the pre-sentence report, Mr Jones' participation in counselling, and counsel'ssubmissions. Before the District Court, the Police sought a starting point of three years'imprisonment, noting that a sentence of imprisonment would be the appropriate finaloutcome. Counsel for Mr Jones instead sought an electronically-monitored sentence,noting Mr Jones' guilty plea and initial steps towards rehabilitation. Counsel forMr Jones also sought a discount for what he said Mr Jones' co-operation with thePolice, and a discount for previous good character.[14] The District Court Judge adopted a starting point of three and a half years'imprisonment. His Honour then adopted a 25 per cent reduction for Mr Jones' guiltyplea and a 10 per cent reduction for remorse and rehabilitation. The Judge also gave aone per cent reduction for previous good character, noting that this was all that wasavailable to Mr Jones given the length of time over which Mr Jones was in possessionof the objectionable material. However, the Judge did not make any further reductionfrom the starting point on the basis of Mr Jones' co-operation with the Police—sayingthat Mr Jones was required to cooperate with the Police in any event. Nor did the Judgethink it was appropriate to apply a further reduction for Mr Jones' offer to pay $10,000to a suitable charity.[15] The end sentence, as noted, was two years and two months' imprisonment. Inconcluding, the Judge noted that his view was that it would not be appropriate toreduce the end sentence to make home detention an available option, acknowledgingthe reservations of the pre-sentence report-writer as to the proposed address. The Judgealso made orders for the destruction of the objectionable material, and Mr Jones'registration on the Child Sex Offender Register.Approach to appeal[16] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011.An appeal against a sentence is an appeal against the exercise of a discretion. ForMr Jones to be successful, the Court must be satisfied that there was an error in thesentence imposed upon conviction and a different sentence should be imposed.3 Ifthese factors are not satisfied, the Court does not retain any discretion and must dismissthe appeal.4[17] When considering whether a different sentence should be imposed, the Courtwill have regard to the end sentence, rather than the process by which it was reached.It is appropriate for the Court to intervene where the sentence being appealed is"manifestly excessive" and is not justified by the relevant sentencing principles.5 Itmust be shown that there has been an error made by the sentencing Judge.6 The Courtcannot "tinker" with a sentence imposed where that sentence is nevertheless in range.73 Criminal Procedure Act 2011, s 250(2).4 Section 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].6 At [27].7 R v Boyd (2004) 21 CRNZ 169 at [38].Positions of the partiesMr Jones[18] Counsel for Mr Jones, Mr Laurenson, makes no submissions as to the startingpoint adopted by the District Court Judge or the reduction made for Mr Jones' guiltyplea. He submits that the Judge should have adopted reductions for Mr Jones' co-operation with the Police and his offer to make a payment of $10,000 to charity. Irecord that Mr Laurenson advised me at the hearing that, earlier this week, Mr Joneshas donated $10,000 to the Brave Charitable Trust, a sexual harm prevention charitysupporting rangatahi. Following the hearing, I have seen the receipt for this donation,as provided to the registry.[19] Mr Laurenson says also that there should have been a greater discount forMr Jones' previous good character. He submits that Mr Jones was entitled to a 15 percent discount for cooperation with authorities, five per cent for good character, and tenper cent for his offer to make a payment to charity. He says that if awarded, thesereductions would have allowed the possibility of a sentence of home detention.[20] Mr Laurenson relies on Magill v R, in which the defendant was found inpossession of over 8,000 objectionable images and videos, and was distributing thatmaterial.8 Before the District Court, the defendant received discounts totalling 55 percent, consisting of 25 per cent for his early guilty plea, 15 per cent for co-operationwith the authorities, five per cent for good character, five per cent for remorse, andfive per cent for rehabilitation prospects. Those discounts were not challenged onappeal, which only addressed the starting point. Mr Laurenson submits that Mr Jonesis entitled to similar discounts.[21] Mr Laurenson says that if Mr Jones' appeal is successful this should open thedoor to a sentence of home detention, and that if so, the Court should exercise itsdiscretion to not add Mr Jones' name to the Child Sex Offender Register. He submitsalso that the address proposed by Mr Jones would be suitable for home detention,noting that Mr Jones was residing there for seven months on bail without the Police or8 Magill v R [2022] NZHC 2455.any other agency showing concern. Mr Laurenson provided for the purposes of theappeal a letter from Mr Jones' sister dated 12 December 2023 confirming that she canprovide a bedroom for Mr Jones, were he able to reside at her house on homedetention, as her son has recently moved out.The Police[22] Ms Hicklin, Crown counsel appearing on behalf of the Police, submits that theJudge was correct to decline credit for assistance to authorities, given there is noevidence of any such assistance being given by Mr Jones. Ms Hicklin says also thatthe credit given for Mr Jones' lack of previous convictions was appropriate given thelengthy period of offending.[23] As to Mr Jones' offer to make a payment to charity, Ms Hicklin notes that thiscould be seen as a proposed measure to be taken to make good the harm caused byMr Jones' offending, which would then therefore be a mandatory consideration atsentencing.9 The Court must take into account whether or not the offer was genuineand capable of fulfilment and whether it has been accepted by any known victim.10The Court retains a discretion as to sentencing regardless of any offer to make goodharm that has been caused.11[24] Ms Hickling submits that "an offer will be given significant weight only to theextent that it represents a genuine effort to accept responsibility for the offence".12 Shesays that the District Court Judge was entitled to decline credit for the offer to make apayment to charity, given his view that it was being offered by Mr Jones effectively inexchange for a discount at sentencing, and that there was no reason why such apayment could not have been made already.9 Sentencing Act 2002, s 10(1)(d)(iii).10 Section 10(2).11 Section 10(3).12 Graham v Police [2018] NZCA 112 at [12].AnalysisCo-operation with the Police[25] A defendant who provides valuable information and/or assistance to the Policeregarding criminal offending whether it be their own or the offending of others cangenerally be expected to receive credit for that at sentencing.13 However, the value ofany assistance determines the extent of any credit given. As stated by the Court ofAppeal:14The key determinant of the discount to be given for assistance will generallybe its value. Other factors, such as the nature of the assistance given (includingwhether the informant gives or is prepared to give evidence at trial), the degreeof personal risk involved and adverse consequences suffered will also beweighed where relevant. But they will count for little if the information itselfhas no practical value.[26] In Magill the appellant was granted a 15 per cent reduction by the DistrictCourt Judge in the following terms:15As far as co-operation with authorities is concerned, it is accepted that thereis some scope for that by the Crown, because you gave them the authority toconduct what is known as an "account takeover of your gmail" which led tothe more serious distribution charge, so I think that 15 per cent credit isavailable to you.[27] In the present case the Police do not accept that Mr Jones has assisted them.They say that there is no evidence of Mr Jones providing any assistance at all. TheDistrict Court Judge agreed with that submission.[28] Mr Laurenson conceded at the hearing that he could not take this point further.As such, I do not accept that Mr Jones should have received a reduction in his sentencefor the provision of assistance to the authorities.13 See R v Strickland [1989] 3 NZLR 47 (CA); R v Rose [1990] 2 NZLR 552 (CA); and Farley v R[2017] NZCA 97.14 Williams v R [2011] NZCA 384; cited in A v R [2018] NZCA 61 at [26].15 R v Magill [2022] NZDC 16185 at [38].Previous good character[29] Evidence of an offender's previous good character is a mitigating factorincluded in s 9(2) of the Sentencing Act. Typically, persons who are first-timeoffenders are entitled to credit in recognition of their previous good character, and asa result of an assumption they are less likely to reoffend. However, in somecircumstances, first-time offenders are not entitled to such credit, and whether anycredit is given is a matter of a court's discretion.16 Specifically, the courts in previouscases have been reluctant to give credit to first time sexual offenders where theiroffending occurred over a lengthy period of time.17 Or in other words, "the subsequentaccumulation of offending gives the lie to the propositions that the offender isgenerally of good character, and the first offence is an isolated fall from grace".18[30] The difficulty for Mr Jones is that he has accepted that he was in possession ofthe objectionable material for a period of seven years and was using it for at least twoyears. This is a longer period than the appellant in Magill, who offended over a periodof three years and was awarded a five per cent discount for good character, supportedby positive references.19[31] Mr Laurenson suggests that length of possession of objectionable material ispart and parcel of this kind of offending such that, when combined with Mr Jones'otherwise good character (including 12 years' service in the Air Force), a reductiongreater than what was given by the District Court Judge was justified. Mr Laurensonalso emphasises the work Mr Jones has undertaken to acknowledge his offending andto respond to the issues that underlie it. I accept that material before the Courtdemonstrates that Mr Jones has committed to this rehabilitation work, and I commendMr Jones for that. Against this, is the seriousness of the offending, which should notbe understated. The length of time over which Mr Jones' was in possession of theobjectionable material is an element of the seriousness of the offending. I ultimatelyconsider that these factors are appropriately accounted for in the discount for remorseand rehabilitative efforts.16 See Manawaiti v R [2013] NZCA 88 at [18]; referring to R v Hockley [2009] NZCA 74 at [32].17 See for example R v Hearling [2009] NZCA 298 at [18].18 Taylor v R [2017] NZCA 574 at [25]–[26].19 Above n 15, at [38].[32] I am not satisfied that the Judge erred in only granting a one per cent reductionfor Mr Jones' lack of previous convictions and/or previous good character. In my view,the period of time over which the offending took place is significant. Mr Laurenson'sarguments do not convince me that it would be appropriate to reduce Mr Jones'sentence by more than that.Charity payment offer[33] The District Court Judge's view on Mr Jones' offer to make a charity paymentwas as follows:20There has been a submission that you should get a further discount becauseyou are prepared to pay $10,000 to a suitable charity in order to provide somesort of support and assistance to those who deal with the victims of this sortof offending. If you were intent on that I would have anticipated that youwould have done that by now. To present it as a factor that should lead to areduction in your end sentence, as the sergeant has referred, there is somethingof a non sequitur about it.I can appreciate what your motivation might have been, but given the timingof the offer, and that it has the appearance, or could have the appearance Ishould say, of looking to ameliorate an end sentence. In other words, payingfor a reduction in an end sentence. I am not questioning the submission thathas been made, but as I have said, that is something you can do in your owntime that is indicative of remorse that you feel, but it does not reduce thegravity of the offending which you accept, as the senior courts also say, is veryserious.[34] The Judge considered Mr Jones' offer of a charity payment, and concluded thatit did not justify a further reduction.[35] Since then, however, a donation has been paid by Mr Jones. Mr Laurenson saysthat Mr Jones was willing to make the payment well before sentencing and has not atany stage been seeking to "buy" a lesser sentence. Mr Laurenson takes responsibilityfor the payment not being made until this week. He says he thought it appropriate toput the proposal before the District Court Judge.[36] I am not persuaded that the donation now made should result in a furtherreduction to Mr Jones' sentence. The fact that payment has been completed is not thedefining factor, indeed, the District Court Judge's concern about making a donation in20 Above n 1, at [31]–[32].exchange for a lesser sentence might be seen as even more acute if payment before thehearing of an appeal was accepted as sufficient to justify a reduction. The Judge couldhave required the payment to be made but he did not, because he had alreadyconcluded that no reduction for this factor was appropriate.[37] I do not consider there was any identifiable error in the Judge's analysis northat the position changes following the actual payment of the donation. Again, I amsatisfied that an appropriate reduction for remorse and rehabilitative efforts has alreadybeen given.Is the end sentence manifestly excessive?[38] I have concluded above that the District Court Judge did not err in hisconsideration of the mitigating circumstances in this case. As such, I am satisfied thatthe end sentence is not manifestly excessive. It is therefore not necessary for me toconsider whether leave should be granted to apply for home detention in the DistrictCourt, and I am satisfied that Mr Jones' appeal should be dismissed.Result[39] For the reasons above, the appeal is dismissed.McQueen JSolicitors:Crown Solicitor, New Plymouth for Respondent