Ibbetson v R [2011] NZCA 228 (26 May 2011)

Last Updated: 2 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA157/2011 [2011] NZCA 228

BETWEEN ROBERT IBBETSON Appellant

AND THE QUEEN Respondent

Hearing: 16 May 2011

Court: Harrison, Simon France and French JJ

Counsel: M B Meyrick for Appellant B D Tantrum for Respondent

Judgment: 26 May 2011 at 12.30 pm

JUDGMENT OF THE COURT

A. The appeal against conviction is dismissed.

B. The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by French J)

Introduction

[1] A District Court jury found Mr Ibbetson guilty of the following charges:

• (a) One count of distributing an objectionable publication contrary to s 124 of the Films, Videos, and Publications Classification Act 1993.
• (b) Thirteen counts of possession of objectionable publications contrary to s 131A of the Films, Videos, and Publications Classification Act 1993.

[2] He was sentenced to a term of imprisonment of 12 months.[1]
[3] Mr Ibbetson now appeals against his conviction on all counts, and also appeals his sentence.

Factual background

[4] In February 2008 a Department of Internal Affairs inspector discovered that a user associated with Mr Ibbetson’s IP address had made an objectionable movie file available to internet users at large by way of a file sharing program called LimeWire. The file in question was of a three year old girl being raped by an adult male.
[5] Mr Ibbetson’s computer was seized and examined. The examiner found a folder containing 13 movie files which were considered objectionable. The files were up to 13 minutes in duration and featured girls aged between three and 14 years of age being sexually violated and raped by men in the anus, mouth and vagina.
[6] The 13 files were the basis of the 13 possession counts, while the distribution count related to Mr Ibbetson’s sharing of the movie about the three year old girl by leaving it in a shared LimeWire folder.
[7] At trial there was an agreed statement of admitted facts that any person exposed to the files in question must have had reasonable cause to believe that they were objectionable.
[8] The defence case was that other people living in the same house as Mr Ibbetson, including his sister and overseas homestay students, all had access to his computer and that he did not know that any of the objectionable material was on it. Mr Ibbetson, who gave evidence, also testified that he was unaware of critical aspects of the LimeWire software.

Appeal against conviction

[9] Mr Ibbetson raises four grounds of appeal:

• (i) The convictions were a nullity because leave to commence the prosecution had been granted by the Solicitor-General and not the Attorney-General, contrary to s 144 of the Films, Videos, and Publications Classification Act.
• (ii) The prosecution’s non-disclosure of a compact disc containing the computer files gave rise to a miscarriage of justice.
• (iii) The Judge’s summing up on the possession charge was unbalanced, excessive emphasis having been given to the prosecution case.
• (iv) The verdict on the distribution charge was not supported by the evidence.

Was leave to prosecute required to be granted by the Attorney-General himself?

[10] Section 144 of the Films, Videos, and Publications Classification Act states:

144. Leave of Attorney-General to prosecute

(1) No prosecution for an offence against any of sections 123 to 129 of this Act or against section 131 or section 131A or section 133 of this Act shall be commenced except with the leave of the Attorney-General.

(2) The Attorney-General may delegate the powers of the Attorney-General under subsection (1) of this section to the Commissioner of Police in respect of offences concerning any particular class of publications.

...

(5) No such delegation shall prevent the exercise by the Attorney-General of any power under subsection (1) of this section.

[11] In this case, it was the Solicitor-General and not the Attorney-General who gave leave to commence the prosecution. The Solicitor-General[2] did so in reliance on s 9A of the Constitution Act 1986.
[12] Section 9A of the Constitution Act provides:

The Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General.

[13] Mr Meyrick submitted that s 9A did not apply to s 144 of the Films, Videos, and Publications Classification Act because s 144 creates a mandatory requirement and the granting of leave pursuant to s 144 is not a “function or duty imposed”, nor the exercise of a power.
[14] Mr Meyrick was unable to cite any authority to support that proposition.
[15] In our view, the proposition is plainly wrong.
[16] As s 144 itself expressly recognises in subs (5), the granting of leave under s 144(1) involves the exercise of a power. It is therefore clearly within the ambit of s 9A of the Constitution Act.
[17] We are satisfied the Solicitor-General had the power to grant leave and that the prosecution was properly commenced.

Did non-disclosure of the compact disc containing the computer files give rise to a miscarriage of justice?

[18] The objectionable documents were recorded by the informant on a compact disc. Mr Ibbetson’s lawyer made a request for a copy of the disc by way of disclosure. Because of the nature of the material, the Crown was not prepared to provide a copy, but did however offer to allow inspection at its premises at any time convenient to the defence. Mr Tantrum told us that this approach is established policy of the Department of Internal Affairs.
[19] Mr Ibbetson was not prepared to accept the offer and subsequently applied for a stay of the prosecution on the grounds of non-disclosure. That application was dismissed.[3]
[20] At the hearing before us, Mr Meyrick accepted that the Crown’s offer was a reasonable one and was open-ended.
[21] However, he contended that the refusal to provide a copy was a breach of s 19 of the Criminal Disclosure Act 2008, which provides that a prosecutor must, on request by the defendant, allow the defendant to inspect any exhibit in their possession, and if reasonably capable of reproduction disclose a copy to the defendant.
[22] We are satisfied that this ground of appeal is not sustainable, for the following reasons:

• (i) The Criminal Disclosure Act did not apply to this proceeding. The Criminal Disclosure Act came into force on 29 June 2009. Its transitional provisions specifically state that the Act does not apply to criminal proceedings commenced before that date.[4] This proceeding was commenced well before then.
• (ii) A review of the computer files would not have assisted counsel in preparation of the defence. Under the Films, Videos, and Publications Classification Act, once the Classification Office had made its decision that the material was objectionable, Mr Ibbetson could not raise any defence challenging that classification. The Classification Office has exclusive jurisdiction, and any challenge must be by way of a review process under the Act.[5]
• (iii) In any event, the only issues at trial were whether Mr Ibbetson deliberately made the file available via LimeWire, and whether there was a reasonable possibility that someone else could have been responsible for downloading the files. The content of the files themselves was irrelevant to the facts in issue.

[23] The non-disclosure did not in any way prejudice the defence.
[24] This ground of appeal is also without merit.

Did the summing up adequately put the defence case on the possession counts?

[25] In his summing up, Judge Wade detailed the ten items of evidence which the Crown relied upon to prove its case, namely:

• (i) The fact that the computer was in Mr Ibbetson’s bedroom and not one of the common rooms in the house.
• (ii) The volume of internet usage. This resulted in very significant bills for Mr Ibbetson, which he paid without demur.
• (iii) Mr Ibbetson’s statement to the investigators that no-one else used his computer.
• (iv) The fact the downloading occurred over a long period of time, with the files being saved to the computer itself.
• (v) The times the items were downloaded, including the early hours of the morning, when only Mr Ibbetson could have been expected to be accessing the computer.
• (vi) It was inconceivable that short-term paying student guests could have been responsible, because there would have to have been a succession of them doing it over the time period of seven months.
• (vii) The fact searches were made while Mr Ibbetson’s email account was open.
• (viii) Mr Ibbetson’s admissions that he was interested in adult pornography, which he accessed using the LimeWire program.
• (ix) The large quantity of material found at various locations on the hard drive.
• (x) Mr Ibbetson’s conduct after the search warrant was not consistent with someone who genuinely believed others had been using his computer to download child porn in that he did not raise “merry hell in the household” and make any inquiries as to who was responsible.

[26] The Judge said to the jury:

[39] Now I have to spend some time going through the Crown case, because Mr Shaw went through those 10 points with you and I am under a duty to remind you of them.

[40] In the case of Mr Meyrick, he did not seek to contradict any particular individual point, but Mr Meyrick’s thrust was that this was a flawed investigation right from the outset. The inspectors simply made assumptions that they should not have made. They eliminated people without doing a proper enquiry and the defence say you should not rely on circumstantial evidence when there are other possibilities and Mr Meyrick says at the highest, the prosecution case is based on nothing more than suspicion and does not reach anything like the standard the defence suggests, that you could be satisfied of proof beyond a reasonable doubt. So that is a summary of the respective cases.

[27] A trial Judge is under a duty to remind the jury of both the Crown and the defence cases. It is well established that a trial Judge is not required to give equal time and emphasis to each case, but must give appropriate time and emphasis to each. As Mr Tantrum submitted, the complexities of the cases presented will invariably differ and thereby require differing degrees of explanation.
[28] There is no question that the Judge did spend more time explaining the key points of the Crown case, and it may well have been better practice for him not to have gone into the detail of the Crown case that he did. However, that said, we are satisfied that he did adequately put the defence case.
[29] Mr Meyrick’s complaints of the summing up fail to take account of an earlier passage, where Judge Wade had this to say:

[38] The defence argument is that the DIA investigation was flawed from the start and other persons who had access to the computers, who should have been eliminated, but were not. The defence say that the prosecution have made assumptions, for example, that women are not interested in pornography and therefore says the defence, both the accused’s mother and his sister were eliminated right from the start. No one tried to interview, still less, to eliminate them and the same, says the defence, applied to Hone or any other one of the short-term guests who had been staying at the house. The defence say it is plain from the evidence you heard from Mr Ibbetson’s mother, that other people did use the accused’s computer from time-to-time and their case in a nutshell, is simply that there are just too many other possibilities in this case...

[30] When asked by us to identify any specific defence points which the Judge had failed to cover in this paragraph, Mr Meyrick conceded there was none. Ultimately, his argument rested on the premise that the Judge should have devoted equal amounts of time in his explanation of each case, but that is not the obligation.

Did the evidence support the verdict on the distribution charge?

[31] As already mentioned, the first count involved an allegation that Mr Ibbetson distributed an objectionable publication by making it available on a file sharing network, LimeWire.
[32] It was common ground that in order to be found guilty of the distribution offence, the Crown was required to prove that Mr Ibbetson had deliberately made the file available.
[33] Mr Ibbetson testified that he had purchased the computer secondhand from a friend and that the friend had installed the LimeWire software for him. Mr Ibbetson stated that it was only about a month later that he became aware it was a file sharing program, meaning that he could allow his files to be shared and could obtain access to the shared files of others. He claimed, however, that he was not aware LimeWire has a default function and that when the software is placed on the computer it will automatically make the downloaded files available to other internet users unless active steps are taken to prevent that happening.
[34] There was no question that Mr Ibbetson had made the file available. The issue was whether he did so knowingly and deliberately, or whether in effect it was the software making the files available.
[35] While Mr Meyrick accepted that Judge Wade correctly directed the jury on the elements of the distribution offence, he contended there was no evidence on which the jury could have been satisfied Mr Ibbetson had the requisite intent.
[36] We disagree.
[37] In our view, there was sufficient evidence from which the jury could have drawn the necessary inferences about Mr Ibbetson’s knowledge and intent. That evidence included Mr Ibbetson’s admission that he knew it was a file sharing program and that he had used it, as well as the information that was readily available to him on his screen.
[38] It follows from all of the above that this fourth ground of appeal also fails, and that the appeal against conviction is accordingly dismissed.

Appeal against sentence

The District Court sentencing

[39] In his sentencing notes, Judge Wade referred to a United Kingdom report which this Court has held provides a useful guide for sentencing in New Zealand.[6]
[40] The report sets out five levels of seriousness so far as sexual material involving children is concerned. In ascending order, they are:

1. Images depicting nudity or erotic posing, with no sexual activity.
2. Sexual activity between children or solo masturbation by a child.
3. Non-penetrative sexual activity between adults and children.
4. Penetrative sexual activity between children and adults.
5. Sadism or bestiality.

[41] Applying those guidelines to the 13 movie files which were the subject of the possession counts, Judge Wade said six were categorised as being at level 4, one at level 3 and six at level 2, while the movie which was the subject of the distribution count was categorised as level 4. This indicated a starting point of between six and 18 months’ imprisonment.
[42] Judge Wade went on to say that for sentencing purposes he was prepared to treat the distribution count as similar to the possession counts and that an appropriate starting point in Mr Ibbetson’s case was 12 months’ imprisonment.
[43] Having come to that conclusion, the Judge then considered whether it was possible or appropriate to impose home detention or community detention as an alternative to imprisonment.
[44] He found that it was not appropriate, because of the importance of general deterrence in offending of this kind and because of Mr Ibbetson’s lack of remorse. The Judge said he was very concerned at a number of aspects of Mr Ibbetson’s behaviour including his continued denials of guilt, his attempts to put blame on the homestay guests, his attempts to obtain a copy of the movies from the Crown, his application for a stay and his technical arguments about leave being required from the Attorney-General:

[18] All that clearly demonstrates to me that there is not a shred of genuine remorse in what you say. I consider it is appropriate, again, if my sentence is to be reviewed elsewhere, that a copy of Judge Moore’s reserved judgment declining the stay of proceedings of 6 October 2009 also be attached to these sentencing remarks, so that the public can judge for themselves whether or not your behaviour has been that of a truly contrite person.

[19] All in all, in my judgment, your behaviour from start to end indicates that home detention would be a wholly inadequate sentence. Of course, there can be no discount for any plea of guilty, and therefore my end point will be the same as the start point.

[20] You will go to prison for 12 months concurrently on each of the counts before the Court.

Grounds of appeal against sentence

[45] On appeal, Mr Meyrick did not take issue with the length of the custodial sentence. His argument was that the Judge was wrong to reject home detention as an appropriate alternative. In Mr Meyrick’s submission, Mr Ibbetson was a suitable candidate for home detention, being a first offender, employed in a good job and having significant family support, and that while the offending was serious, the Judge failed to have regard or sufficient regard to the fact that home detention has a deterrent function.
[46] We do not accept that analysis.
[47] It is well established that the decision whether or not to impose home detention involves the exercise of a discretion.
[48] In this case, the Judge did expressly turn his mind to home detention, but found, principally because of the appellant’s lack of remorse and insight, that it would not be appropriate.
[49] In our view, that was a decision that was plainly open to the Judge in the circumstances before him. Offending of this kind is very serious and will generally result in a custodial sentence. The Judge was entitled to give weight to Mr Ibbetson’s continued denials which, apart from anything else, meant he would not be able to participate in any rehabilitative or treatment programme. The Judge was not denying that home detention has a deterrent function, but simply that in the circumstances home detention would not be an appropriate response for this offending and this offender.
[50] As has been said by this Court, in cases where denunciation, individual and general deterrence are of particular importance, the Court will seldom interfere in the sentencing Judge’s assessment of whether home detention is or is not a realistic alternative.[7]
[51] As has also been said before,[8] sentencing Judges from the jurisdiction in which crimes of the type in issue are frequently tried will generally be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. Those sorts of considerations are of course even stronger in cases like this one where there has been a trial and the sentencing Judge was the trial Judge.
[52] In coming to this conclusion, we have not overlooked concerns that have been expressed about Mr Ibbetson’s safety in prison. His mother has sworn an affidavit alleging that he is constantly being abused and physically assaulted by other prisoners. These are, however, matters for the prison authorities to investigate and not something which we can properly take into account.

Result

[53] The appeals against conviction and sentence are dismissed.

Solicitors:
Berman and Burton, Auckland for Appellant
Crown Solicitor, Auckland for Respondent

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[1] R v Ibbetson DC Auckland CRI-2008-004-13310, 17 March 2011.
[2] Acting through his delegate, the Deputy Solicitor-General; see s 9C of the Constitution Act.
[3] Department of Internal Affairs v Ibbetson DC Auckland CRI-2008-004-13310, 6 October 2009.
[4] Criminal Disclosure Act 2008, s 41.
[5] Films, Videos, and Publications Classification Act 1993, ss 29–31.

[6] Sentencing Advisory Panel Report (1992), cited in R v Zhu [2007] NZCA 470 at [15].
[7] R v Edmonds [2009] NZCA 152; R v Taiepa [2009] NZCA 120.
[8] R v D (CA253/2008) [2008] NZCA 254 at [66].