PUNA v R [2016] NZCA 455

PUNA v R [2016] NZCA 455 [23 September 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA223/2016[2016] NZCA 455BETWEEN TUAKEU PUNAAppellantAND THE QUEENRespondentHearing: 1 September 2016Court: Kós P, Mallon and Whata JJCounsel: M Meyrick for the AppellantK Grau and S Graham for RespondentJudgment: 23 September 2016 at 10 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Puna was convicted following trial before Judge McNaughton and a jury on charges of intentionally making an intimate visual recording,1 attempting to make an intimate visual recording2 and possessing an intimate visual recording.3 He was1 Crimes Act 1961, s 216I(2) (eight counts).2 Sections 216I and 72 (one count).3 Section 216H (17 counts).sentenced to 20 months' imprisonment.4 He appeals against his conviction and sentence.Background facts[2] On 20 February 2015 a woman caught a man using his mobile phone to film underneath her dress at a store in Auckland. She alerted the staff who followed the man out of the store. He was seen leaving in a blue Nissan van. They obtained the registration details of the van. The police were contacted and were provided with the registration number of the van and a description of the man. The police also obtained CCTV footage from the store.[3] The police identified Mr Puna as a possible suspect. He matched the description the police had obtained and the van was registered to a member of his family. The complainant positively identified Mr Puna pursuant to the photomontage procedure under the Evidence Act 2006. She was 100 per cent sure that Mr Puna was the man she had caught filming up her dress in the store earlier that day.[4] On 9 March 2015 the police observed Mr Puna driving the identified van. He was the sole occupant of the vehicle. The police stopped the vehicle. They asked for his details, including his mobile phone number. Mr Puna provided those details. He was arrested and taken back to the police station for processing. He did not have a mobile phone on him. He said he must have left it in his vehicle. Mr Puna was taken back to his vehicle. The police carried out a warrantless search of the vehicle. The police found a laptop, SD card, digital camera, three mobile phones, three external hard drives, and two USB thumb drives. The police seized these items.[5] One of the mobile phones was found on the driver's side of the vehicle. Thepolice asked Mr Puna who the phone belonged to. He said it must belong to a work colleague. They called the mobile phone number Mr Puna had earlier provided, but this phone did not ring. When they returned to the police station they discovered the4 R v Puna [2016] NZDC 8659.phone was set to flight mode. Once flight mode was deactivated, the police called the number Mr Puna had provided again and the phone rang.[6] Not all of the electronic items seized were analysed due to security systems on those items. However the external hard drives and the laptop were able to be analysed. They contained numerous intimate visual recordings. Many of these were recorded at two Auckland shopping centres. The recordings ranged from 20 seconds to 10 minutes in length. Most of them recorded slow motion zoom shots up the skirts of young woman revealing their genitals or underwear. There were also closeup shots of women's bottoms or cleavage. Some of the videos were set to music.[7] A number of the women in the videos were able to be identified. Many of them worked at the retail stores in the shopping centres. Some of them recognised Mr Puna as having spent long periods of time in their stores. One of the recordings captured the reflection of a man in a mirror who appeared to be recording the image. The Crown contended this man was Mr Puna. One of the recordings was of a young girl related to Mr Puna.Conviction appeal[8] The conviction appeal is on the basis that the evidence obtained pursuant to the warrantless search was unlawfully obtained and should not have been admitted at trial. This had been the subject of a pre-trial ruling by the District Court (Judge Blackie).5 The Judge found the search was lawful and reasonable. The evidence was therefore admissible.6[9] This ruling was one of a number of pre-trial issues considered at a hearing on 9 October 2015. Mr Puna says that hearing was inadequate. He says he did not have the opportunity to cross-examine witnesses and no written submissions were filed. His counsel anticipated the Judge would first deal with disclosure and a formal hearing on the lawfulness of the search would take place later.5 R v Puna [2015] NZDC 24111.6 At [30].[10] We are satisfied, however, that Mr Puna had an adequate opportunity to be heard on this application. On 3 September 2015 timetabling directions were made for the hearing of the pre-trial applications on 9 October 2015, including the defence challenge to the search. Mr Puna's submissions were not filed in accordance withthose directions. On 8 October 2015 the Court sought confirmation from counsel that the challenge to the search was proceeding. It does not appear that the defence replied to this enquiry. The Crown advised that it had received no submissions from the defence but it was prepared to proceed. It also filed submissions on the search and attached the statements of the officer who investigated the incident and the arresting officer. The defence, therefore, must have known the hearing on the search was proceeding. The defence did not seek an adjournment, nor request a further opportunity to file written submissions, nor make any request to cross-examine the officers.[11] The arresting officer conducted the search of Mr Puna's vehicle under s 84 ofthe Search and Surveillance Act 2012. That section authorises a warrantless searchwhere a person has been arrested and there are "reasonable grounds to believe thatevidential material relating to the offence for which the person was arrested is in oron a vehicle". Mr Puna contends the search could only be carried out in respect ofthe photo of the woman in the store which had led to the investigation. It did not therefore authorise the officer to seize any of the other electronic equipment found in the car.[12] We do not accept this submission. Mr Puna was arrested for making an intimate visual recording. There were reasonable grounds for the arresting officer to believe that evidential material relating to the making of an intimate visual recording would be in the vehicle that Mr Puna was driving. This was the same vehicle Mr Puna had been seen driving away from the store when the complaint was made by the woman. Her complaint was that Mr Puna had used a mobile phone to attempt to film up her dress. Any mobile phone capable of making a visual recording and any electronic equipment that could be used to store a visual recording made by the phone was relevant evidential material. Mr Puna did not have a mobile phone on him when he was arrested. He told the officer it must have been in his van. Therewas therefore a proper basis for the officer to believe that a search of his van would locate relevant evidence.[13] We also accept the Crown's submission that the police were entitled to seize all the electronic equipment that was found, even though they did not know whethersuch items would be in the vehicle when they were searching for Mr Puna's mobilephone.7 In this case three mobile phones were located and the police were not ableto identify which of them was Mr Puna's phone. The arresting officer's evidencewas that it was unusual to come across multiple mobile phones, a lap top, external hard drives and thumb drives when searching a vehicle. He said that while he wasnot a "computer whizz" he understood it was easy to transfer digital files from onedevice to another. For that reason all the electronic equipment in the vehicle was seized.[14] We therefore agree with the District Court ruling that the search was lawful. It is not contended that it was unreasonable in some other way. The evidence was rightly admitted at the trial.Sentence appeal[15] The Judge considered the aggravating features of Mr Puna's offending werethe number of charges, the duration of the offending (which spanned more than ayear), the number of victims and the significant impact on them, and the "quite sleazy and exploitive" editing of the recordings for Mr Puna's own sexualgratification.8 He considered the offending involved a gross breach of the victim'sprivacy and was of a premeditated and determined nature. He considered this put the offending towards the top end of the range. He considered the appropriate startingpoint to be 16 months' imprisonment.[16] The Judge uplifted this starting point to 20 months' imprisonment because of Mr Puna's previous offending. That involved an indecent assault of a shop assistant7 Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [SS123.01]. The common law position before the Search and Surveillance Act 2012was that an officer could seize any evidential material whether or not it was specified in the warrant or contemplated at the commencement of the search. This position remains unchanged.8 R v Puna, above n 4, at [29].at one of the stores in which the present offending occurred. Mr Puna, while in a crouched position, put his hand up the young woman's skirt, stroked her thighs and placed his hand between her legs. The Judge considered this offence to be "eerily similar" to the present offending.9 The other relevant offending involved domestic violence against his then partner on a number of occasions. The Judge considered this offending showed a callous disregard for his partner at the time, and the current offending showed a callous disregard for women generally.[17] Despite the verdicts, Mr Puna denied responsibility for the offending and expressed no remorse. There were no other personal mitigating factors warranting any discount to the sentence. The Judge considered it was not appropriate to substitute a sentence of home detention because of the need for deterrence and public protection and because of Mr Puna's denial of his offending in the face of overwhelming evidence. He therefore imposed a sentence of 20 months'imprisonment subject to release conditions for six months after the expiry of the sentence.[18] Mr Puna submits the starting point adopted by the Judge was too high. He submits it lacks proportionality with offending under the Films, Videos and Publications Classification Act 1993. He submits offending under that Act is similar in kind but is more serious.[19] Mr Puna refers to Ibbetson v R in support of his submission.10 This case involved convictions on one count of distributing an objectionable publication and 13 counts of possessing objectionable publication. These convictions related to a folder of movie files on Mr Ibbetson's computer which were up to 13 minutes induration and featured girls between three and 14 years old being sexually violated and raped by men. He had made one of these movies available to internet users by way of a file sharing program. The starting point adopted by the District Court forthis offending was 12 months' imprisonment. An appeal to the Court of Appeal thatthe sentence should have been one of home detention was dismissed.9 At [30].10 Ibbetson v R [2011] NZCA 228.[20] We consider it is not helpful to compare the offending in this case against that sentence. The issue in the Court of Appeal was whether Mr Ibbetson should be sentenced to home detention. The starting point was not challenged and the Court did not discuss it. Further, the offending arose before amendments to the penalties for that offending were introduced.11 Most importantly, the offences are different in nature. The harm in child pornography cases is the sexual exploitation of children. Those who possess and distribute child pornography provide the market for that to occur. The offending of the kind in the present case involves the covert filming of another person in intimate circumstances without their consent. The offence is directed at the affront to privacy which occurs with this activity.12[21] The starting point for offending of this kind is more appropriately considered with reference to the aggravating features involved as against the maximum penalty. In the present case the offending had the aggravating features the Judge identified. We consider that the starting point of 16 months' imprisonment, which places theoffending just below half the maximum for the offence, cannot be faulted in light of these features.[22] Mr Puna also submits the sentence was out of line with other cases involving offences of this kind. In so far as that submission concerns the starting point, we do not agree with it. There is no guideline judgment for this offending and there is limited Court of Appeal authority in respect of it.13 However there are a number of High Court decisions. The most similar is F v Police and the starting point in that11 Mr Ibbetson was charged under ss 124 and 131A of the Films, Videos and PublicationsClassification Act 1993. At the time of his offending the maximum penalties were 10 years'imprisonment under s 124 and 5 years' imprisonment under s 131A. These were subsequently increased on 7 May 2015. The maximum penalties are now 14 years' imprisonment under s 124and 10 years' imprisonment under s 131A.12 Law Commission Intimate Covert Filming (NZLC SP15, 2004) at [2.40] and Crimes (Intimate Covert Filming) Amendment Bill 2006 (257-1) (explanatory note) at 1. Covert filming may often be carried out for the sexual gratification of the person making or possessing the film, but it is not an essential element of the offence. Compare with, for example, the UK where the comparable offence requires that the observation, operation of equipment or recording be "for the purpose of obtaining sexual gratification": Sexual Offences Act 2003 (UK), s 67. In New Zealand the offence captures, for example, covert filming undertaken to embarrass the victim or amuse others. The material may not meet the test of "objectionable" under the Films, Videosand Publications Classification Act and it is not necessary for that to be proven: Law Commission, above n 12, at [3.21], [4.33] and [4.39].13 In a number of the cases there are other lead offences, for example R v Ford [2008] NZCA 64,Hartley v R [2014] NZCA 162 and F v R [2014] NZCA 313. In Graham v R [2015] NZCA 568 there was no appeal against the sentence.case of 15 months' imprisonment sits comfortably alongside the starting point in thiscase.14 The uplift for Mr Puna's previous offending did not take it out of range.15[23] Insofar as this submission concerns the imposition of imprisonment rather than home detention, we also do not agree with it. A community based sentence has often been imposed in cases of this kind. But it is not always appropriate, particularly where the offending is sustained over a period of time, responsibility for the offending is not accepted and there are other personal factors which count against a community based sentence as was the case here. Mr Puna seeks to distinguishF v Police, where the High Court upheld an end sentence of 12 months'imprisonment, on the basis that the defendant had previous convictions for this kind of offending and had carried out the further offending while subject to release conditions. However, in this case Mr Puna also had previous convictions which the District Court Judge was right to regard as relevant. The sentences for that offending gave Mr Puna an opportunity to engage in rehabilitation. Despite that opportunity,the strong case assembled against him and the jury's verdict, he vehemently denied his offending. We are not satisfied the Judge made any error in declining to sentence Mr Puna to home detention.Result[24] The appeal against conviction and sentence is dismissed.Solicitors:Berman & Burton, Auckland for AppellantCrown Law Office, Wellington for Respondent14 F v Police [2016] NZHC 1638.15 It sits below, for example, the starting point in Spark v Police HC Wanganui CRI-2010-483-37, 25 June 2010 at [18] and [19] which was offending regarded as being at the most serious end for this category of offence.