W v NEW ZEALAND POLICE [2019] NZHC 2933

W v NEW ZEALAND POLICE [2019] NZHC 2933 [11 November 2019]ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OFAPPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANTTO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-322[2019] NZHC 2933BETWEEN WAppellantAND NEW ZEALAND POLICERespondentHearing: 1 October 2019Appearances: M L Jepson for the AppellantD Muratbegovic for the CrownJudgment: 11 November 2019JUDGMENT OF POWELL JThis judgment was delivered by me on 11 November 2019 at 3.30 pmRegistrar/Deputy RegistrarDate:Solicitors/Counsel: M L Jepson, AucklandKayes Fletcher Walker, Auckland[1] On 11 July 2019, the appellant was sentenced to 26 months' imprisonment1 byJudge Bergseng in the Manakau District Court after pleading guilty to two charges ofindecent exposure;2 eight charges (three representative) of indecent communicationwith a young person;3 one charge of an indecent act in a public place;4 and threecharges of knowledgeable possession of objectionable publications.5[2] The appellant appeals his sentence on the basis it is manifestly excessive. Inparticular the appellant argues Judge Bergseng:(a) adopted a starting point that was manifestly excessive;(b) applied the maximum penalty for an uplift for the offence committedon bail;(c) failed to apply appropriate and/or any discounts for identifiedmitigating factors; and(d) did not consider the gravity of the effect of imposing a sentence greaterthan 24 months, and in particular the:(i) ability of the appellant to complete the Safe NetworkProgramme;(ii) ability of the appellant to serve the sentence as home detention;(iii) automatic registration on the Child Sex Offender Register,preventing the appellant from employment within hisprofession of information technology.1 Police v W [2019] NZDC 13584.2 Summary Offences Act 1981, s 23(1): maximum penalty of three months' imprisonment/$2,000fine.3 Crimes Act 1961, s 124A: maximum penalty of three years' imprisonment.4 Crimes Act 1965, s 125: maximum penalty of two years' imprisonment.5 Films, Videos and Publications Classification Act 1993, s 131A: maximum penalty of 10 years'imprisonment and to a fine not exceeding $50,000.[3] In the event that any of these arguments are accepted and the end sentence isreduced below two years' imprisonment, the appellant submits he should be sentencedto home detention rather than imprisonment on the basis that that is not onlyappropriate but would enable him to undertake the treatment he acknowledges that heneeds.[4] The Crown in contrast submits that there is no error in the sentence; the startingpoint, uplift and discounts were all within range, and that given the end point of thesentence there was no issue with regard to the appellant's inability to access treatmentor for his name to be included on the Child Sex Offender Register.[5] An appeal of this type must be allowed if the Judge is satisfied that there is anerror in the sentence imposed, and a different sentence should be imposed.6Otherwise, the appeal must be dismissed.7 The measure of error is the sentence be"manifestly excessive", a principle "well engrained" in the Court's approach tosentence appeals.8 Whether a sentence is manifestly excessive is to be determined byreference to the final sentence, not the route adopted to reach it,9 as how the sentencewas structured is not material.10The offending[6] There is no significant dispute with regard to what happened. The detail is setout in an extensive and detailed summary of facts, comprising some 29 pages.[7] The first offence, an indecent act, took place between 1 October 2017 and 28February 2018 at a sports club. The appellant took his two children, aged 8 and 6, toa sports club. The appellant set up a chess set in the club rooms. He had a hiddencamera up his sleeve. He then targeted a young girl, aged three to four years, who wasplaying on a pool table. He exposed his penis down the side of his shorts leg so thatthe girl could see it. He gained her attention by stroking her arm and asking her about6 Criminal Procedure Act 2011, s 250(2).7 Section 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].9 Ripia v R [2011] NZCA 101 at [15].10 Mita v R [2012] NZCA 137.the game she was playing. He grabbed a pool ball and held it next to his exposedpenis. The appellant used a bag to shield the view of his penis from others.[8] The second offence, obscene exposure in public, took place on 2 July 2018.On that day the appellant picked up his own children from school and supervised themwhile playing on the school playground. While sitting at the playground and lookingat his phone, the appellant exposed his penis out of the side of his shorts to a girlplaying on the playground.[9] The eight counts of exposure of young person to indecent material ("the s 124Aoffending") occurred on 7,8 and 15 July 2018, at a children's playground at arestaurant. To carry out his offending, the appellant put two mobile phones in the samephone case. The first phone was innocuous and designed to make it look as thoughthe appellant was looking at his phone. The second phone was held at an angle so thatonly a person standing to the right and below the appellant could see the screen. Itwas also fitted with a privacy device, a "privacy screen protector" so that onlysomeone standing directly in front of it could see the images. The appellant used thissecond phone to play pornographic video loop to children.11 While doing so, theappellant would conceal a small portable video camera up his sleeve to record eachchild's reaction to watching the content.[10] The appellant directed his own children to play with, or nearby, his targets andon specific playground equipment. This gave the appearance to other adults of havinga bona fide excuse to be near the children. The appellant also had a drink bottle withhim. When his children were thirsty, they would stand on top of specific equipmentwhile the appellant offered them a drink. With his other hand, the appellant wouldthen show a pornographic image to a targeted victim. Using this method, the appellanttargeted 41 young girls, aged between three and 10 years of age.[11] Following the discovery of the s 124A offending a search warrant was executedand on 26 July 2018 three objectionable images were found downloaded on a laptopowned by the appellant. All three images were close up images of what appeared to11 I note that the pornography was not classified objectionable pursuant to s 3 of the Films, Videos,and Publications Classification Act 1993.be pre-pubescent vagina, resulting in the possession of objectionable material withknowledge charge ("the objectionable image offending").[12] On 9 June 2019, the appellant was on bail and awaiting sentence for the aboveoffences. Despite his conditions of bail including a condition not to attend places thatchildren are likely to frequent the appellant entered a public swimming pool becausethe main pool was closed and began swimming in the children's pool. While insidethe pool, the appellant exposed his genitals to a seven-year-old girl on more than oneoccasion ("the swimming pool offence").The District Court judgment[13] After a long preliminary section that summarised the offending, noted thevictim impact statements and the mitigating factors identified on behalf of theappellant, Judge Bergseng approached the sentencing on the basis that the s 124Aoffending was the lead offending. His Honour commented:12I agree with counsel that the lead charge for sentencing are the 124A charges.In this case there are eight charges, three of those charges are representativeand there were 41 victims of your offending. All of your victims werevulnerable due to their young age, between three and 10 years. The offendingtook place in a public setting where children should be safe. The public settingthat you choose being a child's playground within a fast food restaurant, thatis an area that children should be safe in, and it is an area that parents shouldbe confident in allowing their children to go and play in a manner that childrenshould be able to play.The extent of the harm, in respect of most of the victims we simply do notknow what has happened to them, but of those that we do know, the victimimpact statements speak powerfully as to the real and ongoing impact thatyour offending has had. It has resulted in children who have lost their publicconfidence. It has resulted in those children losing their freedom so that theyare now being closely watched by their parents. The impact on the widerfamily cannot be ignored. It is very real and will be ongoing, and it is almostinevitable that many of those parents will be holding themselves responsiblein some way that they somehow did not pick up on what was going on withtheir children.[14] After further discussion which included considering the limited number ofcases under the section His Honour stated:1312 Police v W [2019] NZDC 13584 at [48]–[49].13 At [57]. When I look at the features of your offending, which I have identified andthe sheer volume of the number of victims, the starting point has to be towardsthe upper end of the range. It was highly planned and premediated and theeffect on numerous very young children will be significant and ongoing. Theapproach I have taken is that all of the s 124A charges need to be approachedon a global basis, and the starting point is one of two years and nine months'imprisonment.[15] Judge Bergseng then considered what he described as the totality of theoffending which in this case led to an uplift of four months' imprisonment beingapplied for the school and objectionable image offending,14 with His Honour notingin particular:15 The indecent act and the indecent exposure charges on their own are notthe worst of their type. However, the aggravating features are that theyinvolved targeted very young female children. I am therefore going to upliftthe starting point by a further four months. That also covers the possession ofthe objectionable material charges. In terms of the scale of the offending theyare towards the lower end of the scale.[16] The uplift took the Judge to a global starting point for the offending of 37months' imprisonment before adding a further uplift of three months for the swimmingpool offence committed on bail. On that charge Judge Bergseng considered:16[the swimming pool offence] involved the targeting of a young female child.It took place while you were on bail, and specifically in breach of a bailcondition that you not go to any place where children are likely to congregate.You knew your bail conditions. Despite the fact that you were due for sentenceon these charges you committed this further offending. For that offending, andthe fact that it was offending while on bail, there will be a further uplift ofthree months. That gets me to 40 months' imprisonment.[17] After noting that there were no personal aggravating factors, Judge Bergsengwent on to apply a global discount of four months (10 per cent) for the appellant'sprevious good character; rehabilitative steps taken to that point; and mental healthissues, including issues arising from the appellant's previous employment and familycircumstances.1714 At [58].15 At [58].16 At [59].17 At [61]-[62].[18] No specific deduction was given for remorse. The Judge considered:18 there is not the type of remorse that would warrant a discrete reduction.There is reference in the Provision of Advice report to concerns held by thereport-writer, which I discussed earlier. In the SAFE assessment that initiallyproceeded on the basis that you were only facing two charges and it was notuntil the end of the second session that you disclosed that there were additionalcharges to be laid. You also gave a reason for your offending being to achievea technical challenge and as was noted to vaccinate, inoculate and protect themfrom the view that sex was bad for later in life. You are said to have describedthe situation as not wanting to shock or harm your victims, but you wanted toinform, educate and show sexual activity in a positive light.That description of your reason for the offending is a worrying factor in termsof what you have done and the fact that you have gone out and furtheroffended in a similar way, while on bail, specifically selecting a young childas the victim is a very concerning factor. Accordingly, there is no reductionfor remorse.I give you the full credit that is available for your plea of guilty, that is 25percent. From 36 months I take off nine months. The end sentence thereforeis two years and two months' imprisonment.[19] As the end sentence exceeded two years' imprisonment Judge Bergseng notedthat a community-based sentence was not available and that registration on the ChildSex Offender Register was mandatory.19 Finally His Honour suppressed theappellant's name to protect his children and also suppressed details of the sports club,restaurant and school where the offending took place.Issues raised by the appellantStarting point[20] It was submitted by Mr Jepson, on behalf of the appellant, that the two yearsand nine months' starting point adopted for the s 124A offending was manifestlyexcessive. Instead he submitted the s 124A offending, before applying anyaggravating factors, fell at the lower end of the scale and, therefore, a starting pointfalling short of imprisonment was appropriate. In particular Mr Jepson submitted thatthe starting point should be assessed by reference to the gravity of "archetypal" s 124Aoffending against more serious offences under the Films, Videos and PublicationsClassification Act 1993, or the Crimes Act 1961.18 At [63]-[64].19 Child Sex Offender Government Agency Registration Act 2016, s 7(1(a).Discussion – starting point[21] The discussion on this point was dominated by the parties' competingsubmissions as to whether the appellant's s 124A offending was amongst the mostserious offending possible given the acceptance by both parties that this is not"archetypal" s 124A offending in terms of what the offence was designed to achieve.[22] The reality is that the appellant's offending must be considered against whatthe section actually provides rather than either the explanatory note to s 124A or indeedother types of offences which sanction similar forms of behaviour. In this case theappellant's s 124A offending was clearly caught by s 124A, hence the guilty pleas. Itis clearly serious and disquieting offending given that it involves offending against alarge number of victims who are amongst the most vulnerable members of our societyin an area where they should feel safe, and in circumstances where their parents arealso victimised. Such a conclusion is not alleviated by the fact that the offending tookplace in plain sight nor that the nature of offending (that there was no opportunity forthe appellant to be alone with the targeted children) did not lend itself to more seriousconsequences than that which occurred.[23] More fundamentally it should not be lost sight of that the lead offendingidentified by Judge Bergseng for which he set a starting point of two years and ninemonths' imprisonment was not a single s 124A offence but rather the eight s 124Aoffences. The starting point therefore represented a cumulative total for the eights 124A charges that constituted the s 124A offending. It was therefore not necessaryfor Judge Bergseng to conclude that the s 124A offending was the most seriousoffending of its type to get to a starting point close to the three-year maximum for asingle s 124A charge. The subsequent uplift of four months in respect of the remainingcharges other than the s 124A offending is unremarkable, and uplift for the offendingon bail is considered below. As a result, while the starting point could have beenconstructed differently I am satisfied the end point reached by Judge Bergsengappropriately recognises the seriousness of the s 124A offending in respect of all eightcharges, and that as a result the two years and nine months' starting point was not inerror.Uplift for offending on bail[24] Mr Jepson submitted that, although aggravating factors are present in theappellant's offending while on bail, the offending was not within the most serious ofcases so as to warrant a three-month uplift. While Mr Jepson accepted that the factthe swimming pool offence occurred while the appellant was on bail is an aggravatingfactor, he submitted that it was not enough to place the actions within the most seriousof cases. Instead, it was submitted a one-month uplift was sufficient.Discussion – uplift for offending on bail[25] As with the starting point there can likewise be no issue with whetherJudge Bergseng was entitled to impose a three-month uplift for the offending on bail.While the offence committed on bail, a charge of indecent exposure pursuant to s 27of the Summary Offences Act 1981 carried only a maximum possible sentence of threemonths' imprisonment, it is clear that the uplift imposed did not represent theimposition of a maximum sentence on this charge. On the contrary, because theoffending on bail was treated as an uplift to the lead s 124A offending, as is specificallyprovided for in s 9(1) of the Sentencing Act 2002, the three months represented boththe seriousness of the offending and the fact that it occurred while on bail prior tosentencing, and as such there can be no dispute that such an uplift was within theavailable range.Mitigating factors[26] Mr Jepson submitted that the global four months or 10 per cent discount givenby Judge Bergseng did not appropriately reflect the large number of matters raised onbehalf of the appellant at the time he was sentenced including his:(a) remorse;(b) previous good character;(c) personal circumstances at the time of the offending;(d) the steps taken toward rehabilitation including enquiries into servicesavailable for treatment and obtaining a psychological report; and(e) the offer to attend restorative justice and to provide reparation to thosevictims where it was appropriate to do so.[27] In summary, Mr Jepson submitted that the 10 per cent given by Judge Bergsengreally only put the appellant into the same position as any other defendant with noprevious convictions who retained the support of his family, and in this case theappellant should not have ended up in a similar or worse position than if he had takenno steps to obtain treatment or seek rehabilitation.[28] In contrast, Mr Muratbegovic submitted that while some credit was appropriatefor the appellant this had been adequately reflected in the discount given byJudge Bergseng. Significantly, the Crown submitted that no further discount forprevious good character was justified given the spread of the offending, whileevidence showed no causative link between any mental health issues experienced bythe defendant and the offending. In addition, no further discount for rehabilitativesteps taken or remorse was warranted, given the offending on bail and the conclusionsreached in the Provision of Advice to Courts (PAC) Report.Discussion – mitigating factors[29] Having had the opportunity to consider the mitigating factors, I am satisfiedthat overall there should in fact have been a greater allowance given for the factorsthat have been identified.[30] Judge Bergseng was clearly entitled not to give a discrete discount for remorsegiven the somewhat evasive nature of the appellant's responses recorded in the PACReport as well as equally implausible explanations for his conduct apparent from boththe SAFE assessment and psychological reports, and indeed in the appellant's lack ofwillingness to discuss his offending with the counsellor he was seeing at the sametime.[31] Despite those matters, I am satisfied greater credit should have been given tothe other mitigating factors identified, namely the appellant's previous good characterand, in particular, the appellant's attempts to obtain treatment, and, linked with this,his prospects of rehabilitation. Similarly, I am also satisfied credit should have beengiven for the appellant's stated willingness to engage in restorative justice and providerestitution where it was appropriate to do so.[32] In this regard I accept Mr Jepson's submission that in the particularcircumstances of this case, the appellant should get a greater discount for the lack ofprevious offending. While the school offending took place in approximately late 2017,and the swimming pool offending on bail immediately before sentencing in June 2019,the overwhelming majority of the offending occurred within a very discrete period inJuly 2018. I do not therefore consider the offending is of the type of prolonged orhidden offending that would preclude recognition of his previous lack of offending.Likewise, while the appellant also pleaded guilty to the objectionable image offending,this too must be seen in a context where the appellant had what can only be describedas a vast library of legal pornography across a large number of devices and storagesystems which did not include any other such images. The three objectionable imageswere in fact found in the download section of one of the appellant's many computerdevices, and there was no evidence before the Court to suggest the appellant hadotherwise sought out or accessed such material, with the relative seriousness of thisoffending recognised by the fact that it formed part of the overall four month uplift forthe remaining offending.[33] The appellant also deserves proper credit for undertaking an assessment at hisown expense and, however reluctantly, accepting that he requires treatment throughthe identified Safe Network Programme, and has taken concrete steps to enable thattreatment to occur.[34] The fact that the appellant offended on bail notwithstanding the steps he hadtaken should not be overstated. That offending, as noted, has been recognised by athree-month uplift and it is important not to double-count the effect of the offendingon bail. The fact of that offending on bail makes it clear the importance of theappellant receiving the treatment programme identified in order to minimise thechance of further offending at the time he completes his sentence.[35] While restorative justice and reparation were not appropriate with regard to thechild victims and indeed their parents, it was a possible option in respect of the sportsclub which had identified monetary losses arising from a number of cancelledmemberships.[36] Taking these matters together, I am satisfied that a total discount of 20 per centshould have been applied. While this is not greatly different from the discount givenby Judge Bergseng, in the particular circumstances of this case the limited discountapplied has led to a sentence which is manifestly excessive. Instead, applying a 20 percent discount to the final uplifted starting point of 40 months this results in a sentenceof 32 months' imprisonment before deduction of the guilty plea. Deducting the 25 percent for the guilty plea (which is not challenged) results in a notional end sentence of24 months' imprisonment.[37] As 24 months' imprisonment allows consideration of the appropriateness of anon-custodial sentence and also means the appellant's registration n on the Child SexOffender Register is discretionary, it is not necessary to consider whether a furtherdiscount should have been allowed for the effect imprisonment and/or registrationwould have had. Instead it is necessary to consider whether a non-custodial sentenceis appropriate for the balance of the appellant's sentence and whether or notregistration on the Child Sex Offender Register is appropriate.Home detention?[38] When considering whether to impose a sentence of home detention instead ofimprisonment, it is in particular necessary to bear in mind the desirability of keepingoffenders in the community so far as it is practicable and consonant with the safety ofthe community.20 Home detention has been recognised by the Courts as being itselfserious punishment and is regarded as meeting the need for a deterrent sentence in anappropriate case.20 Section 16(1).[39] In this case I accept Mr Jepson's submissions that the interests of justice arebest served in this case by the substitution of a sentence of home detention for theappellant's remaining term of imprisonment. In particular, I note the proposed homedetention address is located in a rural area with the appellant's parents who have beenassessed as pro-social influencers upon the appellant. Given the nature of theappellant's offending I am satisfied the proposed home detention location significantlyreduces the possibility of re-offending but at the same time will mean the appellantcan immediately commence the SAFE programme at his own expense, in order tomaximise the chance of successful rehabilitation, as well as his future reintegrationback into the community.[40] As I have concluded that home detention is appropriate, I note that had theappellant been required to serve out his sentence of imprisonment he would now beentitled to an early release after having served only half of that period. Early releasedoes not however apply to home detention, and as it is customary to have the periodon home detention to reflect that. As a result, taking into account the four months'imprisonment served to date, the final sentence is eight months' home detention.Registration on the Child Sex Offender Register?[41] In the event that the appellant's registration on the Child Sex Offender Registerwas discretionary it was Mr Jepson's submission that such registration was bothunnecessary and inappropriate. First, Mr Jepson submitted that the appellant'soffending was not sufficiently serious to warrant registration and that, in addition, theinformation required by registration was inconsistent with future employment in theIT industry, and would therefore preclude him from pursuing his career.Discussion – Child Sex Offender Register[42] Notwithstanding Mr Jepson's submissions, I am satisfied that it is appropriatefor the appellant to be registered on the Child Sex Offender Register. First, as noted,the appellant's offending was serious involving as it did predatory behaviour.Secondly, and most importantly, in granting the appellant name suppression primarilyin order to protect the identity of his sons, Judge Bergseng noted that the victims couldnonetheless rely on the fact that the appellant would be registered on the Child SexOffender Register.21 In circumstances where the appellant otherwise has his namesuppressed, it is important that he be subject to ongoing monitoring throughregistration to further assist in his rehabilitation so as to ensure he is aware he willcontinue to be monitored for a significant period. Furthermore, in the absence of anycredible supporting evidence it is difficult other than to conclude that the objections toregistration identified by Mr Jepson are overstated. In particular, while the appellanthas held a senior IT role in the past he has in fact been unemployed for nearly twoyears and had not attempted to re-engage in the field for the considerable period beforethis offending. Likewise, Mr Jepson appeared to be taking a fairly expansive view ofboth the systems that the appellant would have to disclose as including all thosebelonging to other employers for which he was responsible for maintenance, as wellas the extent that information about those systems would have to be disclosed in amanner contrary to any employers' interests.[43] Instead I conclude that registration is both appropriate and necessary.Decision[44] The appeal is allowed. Taking into account the appellant has spent four monthsimprisonment since sentence this results in a substituted end sentence of eight months'home detention to be served at the address and on the conditions as set out in the PACReport dated 11 April 2019._______________________________Powell J21 Police v W [2019] NZDC 13584 at [79].