WITTIG v R [2021] NZCA 100

WITTIG v R [2021] NZCA 100 [14 April 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA435/2020[2021] NZCA 100BETWEEN STEVEN JAMES WITTIGAppellantAND THE QUEENRespondentHearing: 16 February 2021Court: Cooper, Wylie and Katz JJCounsel: C R Horsley for AppellantZ A Fuhr for RespondentJudgment: 14 April 2021 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] The appellant pleaded guilty to 50 charges brought against him which may beplaced in four broad categories.[2] The first category concerned sexual offending against a young complainant, A.Linked to that offending was a charge of attempting to pervert the course of justice.[3] The second group of charges related to possession and supply of a substantialcollection of objectionable publications. Third was a large group of charges relatingto sexual offending in which the appellant participated remotely in, and sometimesdirected, events occurring in the Philippines. Related to these charges was anallegation of money laundering. Finally, there were charges under the Misuse of DrugsAct 1975 concerning the cultivation and supply of cannabis.[4] On 16 June 2020 Judge Ingram sentenced the appellant to an effective term of13 years' imprisonment.1 Mr Horsley, counsel for the appellant, submits on appealthat in constructing the sentence the Judge adopted starting points for the objectionablepublications charges and the Philippines offending that were too high. He also arguesthat a reduction given by the Judge of six months' imprisonment to reflect totality wasinadequate.[5] The appeal was filed approximately three weeks out of time. This Courtpreviously granted an application to extend the time for appealing.The offending[6] Before dealing directly with Mr Horsley's argument on appeal it is appropriateto outline the offending for which the appellant was sentenced, and the way in whichthe Judge constructed the sentence.Sexual offending against A/attempting to pervert the course of justice[7] The offending against A occurred when she was about five years old. At thetime, the appellant was in a close relationship with A placing him in a position of trust.It was alleged against the appellant that on numerous occasions he removed A'sunderwear and licked and touched her genitalia. On approximately two occasions, theappellant procured A to touch his penis with her hand and there were a number ofoccasions on which he would touch her genital area when she was seated on his knee.1 R v Wittig [2020] NZDC 11223 [District Court sentencing notes].[8] In November 2017 when A was 13 years of age, she told her father that theappellant had touched her sexually when she was younger. Her father spoke to theappellant. Shortly after that, the appellant contacted A's mother, via Facebookmessenger. In the course of the discussion the appellant told A's mother to get herdaughter under control. He said that they needed to stop the situation before it wentany further and warned her to be careful not to say anything incriminating.Subsequently, A's mother contacted her asking her not to go to the police. Despitethis, A gave an evidential interview in December 2017.[9] The police arrested the appellant for his offending against A in October 2018.The charges to which he subsequently pleaded guilty comprised sexual violation byunlawful sexual connection,2 two charges of indecent assault on a child under 12,3 andinducing an indecent act with a child.4 All were representative charges.Objectionable publications[10] In the course of executing search warrants at the appellant's house the policeuncovered evidence of further offending. The police identified a Facebook messengerconversation between the appellant and his partner in November 2017, in which thepair fantasised about having babies together and sexually violating them, andexchanged three objectionable photographs of prepubescent girls' vaginas.This discovery gave rise to a charge of supplying objectionable publications.5[11] The police also found a USB containing 25 videos of sexual activity involvinginfants and children. In addition, there was a box containing images of young females(likely to be under 16) in sexually explicit poses. There were also documents referringto incest and sexual activity between adult males and children. The documents relatedto a forum where participants discussed their sexual fantasies about young children.This material formed the basis of two charges of unlawful possession of objectionablematerial.62 Crimes Act 1961, ss 128(1)(b) and 128B.3 Section 132(3).4 Section 132(3).5 Films Videos and Publications Classification Act 1993, ss 123(1)(d) and 124.6 Sections 131(1) and 131A.[12] An examination of the appellant's Skype conversation records showed that hehad shared seven videos with an unidentified person. These depicted adult males andyoung girls engaged in penetrative intercourse, and oral sex and masturbation betweenyoung children. Six of the seven videos showed penetrative sexual activity involvingchildren. This was the basis of a further charge of supplying objectionablepublications.7[13] Two further charges of unlawful possession of objectionable material were laidas a consequence of forensic analysis of the appellant's computer hard drive.8This revealed objectionable images, videos and computer-generated images showinginfants and children engaged in sexual activity and posing sexually with other childrenand adults. A sample set of 30 files was viewed. Over half the images involvedpenetrative activity with children and sexual activity involving an animal or sadism.A computer program was used to analyse the other files stored electronically.This analysis established that 1071 files contained child exploitation material, ten filescontained objectionable material involving adults and 201 files were objectionablecomputer-generated images.The Philippines offending[14] Police investigations established that over a period of 17 months from31 January 2016 the appellant made 48 payments to account-holders based in thePhilippines in exchange for them supplying him with sex shows in which infants andyoung children were sexually abused. The appellant watched the shows from his homeover Skype. He gave instructions as to what should be done, for example directingthat a baby's vagina be penetrated with a candle, and that a baby's mother pourbreastmilk on her infant and then lick it from the baby's vagina. During the livestreaming, the appellant would comment on the content he was viewing and directwhere he wanted the camera to be focused. He also paid to receive still images ofyoung children being sexually abused.7 Sections 123(1)(d) and 124.8 Sections 131(1) and 131A.[15] This offending gave rise to 17 charges for entering into dealings involvingpersons under the age of 18 years for the purposes of sexual exploitation,9 and18 charges of being a party to sexual violation by unlawful sexual connection outsideNew Zealand.10[16] Between November 2016 and January 2017, the appellant received andtransferred funds acting as a middleman for the purpose of concealing the origin ofpayments made for the production and purchase of live streamed child sexual abuseshows. This offending gave rise to the charge of money laundering.11Cannabis offending[17] In addition, the appellant was charged with cultivating cannabis,12 producingcannabis oil,13 and selling cannabis.14 He was discharged in respect of another chargeof possession of cannabis oil for the purposes of supply.15District Court sentence[18] Before making adjustments for totality the Judge imposed discrete sentencesfor each individual charge beginning with the charge of sexual violation against A forwhich he sentenced the appellant to imprisonment for a period of four years.16In respect of each of the other charges for offending against A the sentence imposedwas three years' imprisonment in each case.17 The Judge imposed a sentence of oneyear's imprisonment cumulative on the sentence for sexual violation in respect of theoffence of attempting to pervert the course of justice.18[19] In respect of the objectionable publications offending, the Judge considered anappropriate sentence would be in the region of five years.19 He imposed that sentence9 Crimes Act, s 98AA(1)(a).10 Sections 69(3) and 128(1)(b).11 Section 243.12 Misuse of Drugs Act 1975, s 9(1).13 Section 6(1)(b) and (2)(b).14 Section 6(1)(e) and (2)(c).15 Section 6(1)(c) and (f) and (2)(b); and District Court sentencing notes, above n 1, at [5].16 District Court sentencing notes, above n 1, at [22(a)]17 At [22(b)–(d)].18 At [22(e)].19 At [17].on the charge of supplying objectionable material over Facebook messenger, togetherwith concurrent terms of four years' imprisonment in respect of the two charges ofpossession of objectionable material detailed at [11] above.20[20] Turning to the Philippines offending,21 the Judge considered a starting point ofeight years was appropriate, given that there were at least 17 separate identifiableincidents, 13 of them involved sexual violation and there were multiple victims.22He imposed the sentence of eight years' imprisonment in respect of each of the chargesof dealing in people under 18 for sexual exploitation.23 In respect of the charges ofbeing a party to sexual violation outside New Zealand, the Judge imposed sentencesof four years' imprisonment in each case.24 He imposed a term of one year'simprisonment in respect of the money laundering charge.25[21] The Judge considered that the cannabis offending was "relatively low-level"and imposed terms of two years' imprisonment, in each case concurrent on the sexualviolation sentence.26[22] The Judge noted that the accumulation of the sentences imposed would resultin a sentence of 18 years' imprisonment.27 He considered a 25 per cent discount wouldbe appropriate for the appellant's guilty pleas, even though not all of them were enteredpromptly.28[23] The Judge considered an overall end sentence of 13 years' imprisonment wasappropriate having assessed the totality of the offending.29 He arrived at that outcomeon the basis set out in the following passage from his sentencing remarks:3020 At [22(f)–(h)].21 The Judge treated the charge of supplying objectionable material detailed at [12] above andthe two charges of possession of objectionable material described at [13] above as part ofthe Philippines offending.22 At [19].23 At [22].24 At [22].25 At [22(yy)].26 At [18] and [22(i), (j) and (l)].27 At [20].28 At [24].29 At [24].30 At [23].That can be adequately accomplished by having a sentence of four years'imprisonment imposed on charge 1 with charge 5 the attempting to pervert thecourse of justice being cumulative upon that four year sentence which willtake us to five years. And then in relation to the remainder of the charges, allof the publications charges should be cumulative on charge 5, and likewise inrelation to the Philippines charges, they should all likewise be cumulative oncharge 5. That will produce four years with an uplift of one year for theattempting to pervert the course of the justice and a total of eight years' upliftto account for all the remainder of the offending.[24] The 13-year sentence evidently included a deduction of six months for totality,in addition to the allowance for the guilty pleas.31The appeal[25] As noted earlier, the issues on appeal are the starting points adopted for theobjectionable publications offending and for the Philippines offending and thededuction of six months for totality.[26] In relation to the objectionable publications offending Mr Horsley noted thatthe Judge had dealt with the offending by making brief observations, without analysingrelevant authorities and, he submitted, without giving a proper explanation of how thesentence of five years' imprisonment was arrived at. He accepted that the nature ofthe images involved meant that the offending was properly described as in Category Awithin the ambit of the Sentencing Council for England and Wales's Sexual Offences:Definitive Guideline,32 having regard to the size and nature of the collection ofobjectionable material, the nature of the sexual acts depicted and the fact that theappellant engaged with others with an interest in objectionable material.[27] However, Mr Horsley submitted that the size and extent of the collection of thematerial was no longer in itself an aggravating feature given the comparative ease withwhich such material can now be accumulated and distributed.33 He submitted that theoffending was similar to that in R v Nielson where a starting point of four years'imprisonment had been adopted,34 and less serious than that in Pattison v Police wherean effective starting point of five years' imprisonment (before a reduction for totality)31 At [24].32 Sentencing Council for England and Wales Sexual Offences: Definitive Guideline (2014).33 Citing Webb v R [2016] NZHC 2966 at [57].34 R v Nielson [2019] NZHC 685 at [55].was considered appropriate where the distribution of the material had been to a widergroup.35[28] In relation to the Philippines offending, Mr Horsley contended that the startingpoint of eight years' imprisonment was the same as that adopted in R v Lawes,36 inwhich he submitted the offending was of a significantly greater duration, and involveda significantly greater number of occasions and payment of a greater sum of moneythan in the present case. He submitted the offending in that case was, overall, muchmore serious than the present. He argued that on this basis a starting point of no morethan five to six years' imprisonment would be appropriate.[29] On the issue of totality, Mr Horsley contended that an end starting point ofbetween 14 and 15 years' imprisonment should have been adopted in contrast to the18 years arrived at by the Judge. Allowing a 25 per cent reduction for guilty pleaswould result in a sentence of between 10 years and six months' and 11 years and threemonths' imprisonment, as opposed to 13 years and six months' imprisonment asadopted by the Judge. Mr Horsley accepted that if this Court reduced the sentence toa term of imprisonment of approximately that length any further adjustment for totalitycould be "relatively minor". However, if this Court upheld the 18-year starting point,Mr Horsley suggested we should follow the approach taken in Lawes and allow adeduction of approximately 15 per cent for totality. This would mean a final sentenceof approximately 11 years and six months' imprisonment.[30] For the Crown, Ms Fuhr submitted the starting points adopted by the Judgewere appropriate and had not resulted in an excessive final sentence. Much of thematerial which was the subject of the objectionable publications offending involvedinfants and young children engaged in bestiality, sadism and penetrative sexualactivity with adults. She submitted that the starting point adopted by the Judge wasconsistent with other sentences imposed in respect of similar (and in fact more serious)offending, including the sentences in Pattison and Nielson to which Mr Horsleyreferred. She also referred to Robinson v Police, where a starting point of seven years'35 Pattison v Police [2018] NZHC 2163 at [56]–[57]. Leave to bring a second appeal againstsentence was rejected by this Court: Pattison v Police [2019] NZCA 48.36 R v Lawes [2018] NZHC 2448.imprisonment had been adopted in respect of offending which Ms Fuhr claimed wasonly slightly more serious.37[31] Ms Fuhr also submitted, in relation to the Philippines offending, that theappellant's offending was on par with that in Lawes and justified the eight-year startingpoint adopted by the Judge. She argued that the five-year starting point sought by theappellant would not reflect the seriousness of the offending.[32] On the issue of totality, Ms Fuhr again submitted the six-month reductionallowed by the Judge was sufficient. She submitted that while there were similaritiesbetween the offending in Lawes and the appellant's offending, the appellant had to besentenced for other and unrelated offences. When the other offending was taken intoaccount there could be no suggestion that the end sentence of 13 years' imprisonmentwas outside the range properly available to the Judge.Decision[33] We consider that, having regard to the offending overall, the final sentence of13 years' imprisonment was not excessive.[34] Dealing first with the objectionable publications offending, we note that inR v Clode this Court observed that in the absence of a relevant New Zealand guideline,sentencing judges could usefully refer to the relevant guideline of the United KingdomSentencing Guidelines Council in cases involving child pornography.38 More recently,in Pattison v Police this Court suggested that sentencing for these types of offendinghad become "less settled" as a result of changes to the England and Wales sentencingguidelines and because of increases in the maximum sentencing levels introduced inNew Zealand from 2015.39 Nevertheless, in the absence of a guideline judgment ofthis Court, the relevant sentencing guideline of the Sentencing Council for Englandand Wales can still afford assistance, not in terms of actual sentencing levels but in37 Robinson v Police [2017] NZHC 2655 at [51], upholding the starting point adopted bythe District Court in Police v Robinson [2017] NZDC 11422.38 R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [52]. At the relevant time, that guideline wasthe United Kingdom Sentencing Guidelines Council's Definitive Guideline on the SexualOffences Act 2003. The United Kingdom Sentencing Guidelines Council was replaced by theSentencing Council for England and Wales in 2010.39 Pattison v Police, above n 35, at [7].terms of the guideline's description of the kinds and relative seriousness ofobjectionable content.40 There is ongoing value in an objective assessment of thoseissues and no reason to question the guideline's relevance to offending of this naturein New Zealand.[35] The guideline delineates three categories of indecent images, and describestheir possession, distribution and production. Category A images are those involvingpenetrative sexual activity, and images involving sadism or sexual activity with ananimal. In Category B are images involving non-penetrative sexual activity.[36] In this case, the two supply charges related to images and videos of youngchildren. One of the charges was based on the appellant having sent three close-upimages of the genitalia of female infants or young children to his partner. This materialwould be considered as falling within Category B. The other supply charge howeverinvolved Category A content: six of the seven videos sent to another unidentifiedperson by Skype showed penetrative sexual activity involving children aged betweenthree and 10 years. Similarly, the possession charges related to both Category A andCategory B material. In the former category was footage showing penetrative sexualactivity, including a male penetrating a very young female's genitalia, an adult femaleperforming oral sex on a female baby, children performing oral sex on an adult maleand children performing oral sex on each other. The charges relating to the hard driveswhich contained 1071 child exploitation files also included a substantial number ofimages which would be within Category A. There were also instances of bestialityand sadism. The appellant admitted engaging in chat groups with other paedophilesand searching on the dark web to obtain images. It appears that he assembled hiscollection over a period lasting from at least June 2017 to October 2018. There is nodoubt that this was serious offending of its kind.[37] Mr Horsley's principal contention about this offending was that the five-yearstarting point was too high compared with the four-year starting point adopted inNielson. 41 In that case, Mr Nielson had taken seven still images of the seven oreight-year-old daughter of his partner in sexualised poses, shared seven images and40 R v Clode, above n 38, at [52]. See also Zhu v R [2007] NZCA 470 at [15].41 R v Nielson, above n 34.12 videos depicting adult and child sexual activity, and had in his possession over 1000objectionable files involving children of all ages, some of which depicted adultssexually violating children, orally and by rape. Mr Horsley suggested that the materialshared and possessed by Mr Nielson was more serious than the material involved inthis case, but the brief description of the material involved in Nielson does not allowthat conclusion to be drawn. If anything, our impression is that the material possessedand shared by the appellant was worse, and involved a wider range of egregiousconduct. The sentence in Nielson makes no reference to bestiality and sadism, forexample.[38] Mr Horsley also endeavoured to draw a distinction between the appellant andMr Nielson based on the fact that Mr Nielson only distributed the objectionablematerial to a random stranger, whereas the appellant distributed the material to hispartner. However, one of the charges brought against the appellant did involve thesharing of videos with an unidentified person. Those videos depicted young boys andgirls in penetrative intercourse and masturbation, and penetrative intercourse betweenadult males and young girls.[39] Mr Horsley also suggested that the appellant's offending was similar to thatinvolved in Pattison v Police, in which the High Court affirmed a starting point ofthree and a half years' imprisonment for distributing objectionable publicationspredominantly within Category A.42 Mr Pattison also possessed a range ofobjectionable images in Categories A, B and C in respect of which there was an upliftof 12 months' imprisonment.43 However, as Ms Fuhr pointed out, the appellantdistributed a greater number of Category A videos than Mr Pattison and possessed agreater amount of child exploitation materials.[40] We also agree with her submission that the appellant's offending was onlyslightly less serious than that involved in Robinson v Police where a seven-yearstarting point was adopted.44 Overall, we are satisfied that the starting point adopted42 Pattison v Police, above n 35, at [51]. As noted at n 35, leave to bring a second appeal wasdeclined by this Court.43 At [56]. The Judge noted that if Mr Pattison was to be sentenced on this offending alone, a startingpoint of up to 18 months' imprisonment may have been justified.44 Robinson v Police, above n 37, at [51].by the Judge in respect of the appellant's objectionable publications offending wasavailable to him, and not inconsistent with the approach taken in other cases.[41] Turning to the Philippines offending, we do not accept Mr Horsley's maincontention that the offending in this case was less serious than that involved inR v Lawes and that the Judge erred by adopting the same eight-year starting point ashad been taken in that case.45[42] In Lawes, there were three representative charges of entering into a dealinginvolving a person aged under 18 for the purposes of sexual exploitation. Some ofthose depicted adults, but "several" involved children aged between seven and 17.46In these, the children would typically perform sexual acts on themselves or one anotherdirected by Mr Lawes. In other cases, Mr Lawes engaged with two women, one ofwhom performed sexual acts on young females under 18 at his direction. The otherwoman sent images and videos of her three children and a neighbour (believed to bebetween three and 13) in sexual poses.[43] As Mr Horsley pointed out, the offending in Lawes took place over a muchlonger period, in the sense that during a nine-year period Mr Lawes remittedapproximately $100,000 to the Philippines apparently for the purpose of watching anddirecting various sex acts over the internet. However, the specific charges broughtagainst him were for offending that occurred in three separate periods, totalling aroundone year and nine months. This may be contrasted with the appellant's offendingwhich took place over a period of one year and five months. Importantly, as noted byWylie J, who was the sentencing Judge in Lawes, it was only established that "several"of the shows watched involved children between the ages of seven and 17 years.47In this case, there were 17 identifiable incidents with infants and young children, mostof which involved sexual violation. In addition, the youngest of the victims of45 R v Lawes, above n 36. We note that the eight-year starting point in Lawes to which both counselreferred relates to the starting point adopted for three representative charges of entering intoa dealing involving a person under the age of 18 for the purpose of sexual exploitation.The starting point adopted by the Judge after considering other charges of being knowinglyconcerned in the importation of objectionable publications and being in possession ofobjectionable publications was eight years and six months' imprisonment, after taking into accounttotality.46 At [5(h)].47 At [5(h)].Mr Lawes was three years old. The appellant's victims included infants who weresexually abused when they were just months old. In this case, the six shows for whichthe appellant must be held responsible almost all included the penetration of thevaginas of infants and children, involving both digital penetration and the use ofobjects (candles, USB cables and in one case an eggplant).[44] In the circumstances, we do not accept Mr Horsley's proposition thatthe offending in Lawes was more serious than in the present case. In our view, thecomparison with Lawes is sufficient to indicate that the starting point adopted by theJudge for the Philippines offending was not excessive.[45] As a result, the totality argument for the appellant must be approached on thebasis that the starting point of 18 years' imprisonment for the overall offending waswholly out of proportion to its gravity. We think that is a difficult argument to sustainin the context that the Judge took a comparatively lenient approach in adopting a oneyear starting point for the charge of attempting to pervert the course of justice and inaddition had to sentence the appellant for serious sexual offending in circumstancesinvolving breach of trust against A. The charge of sexual violation by unlawful sexualconnection was a representative one. Mr Horsley accepted that the Judge's approachin respect of these charges could not be questioned.[46] While Mr Horsley correctly noted that there was a significant deduction fortotality in Lawes, that case did not involve other unrelated offending which is a featureof the present case. In the result, we are not persuaded that a further reduction isnecessary for totality reasons.Result[47] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent