Fry v R [2014] NZCA 174 (8 May 2014)

Last Updated: 14 May 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA102/2014 [2014] NZCA 174
BETWEEN	RICHARD JOHN EMERY FRY Appellant
AND	THE QUEEN Respondent

Hearing:	28 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	S G Vidal for Appellant G R Kayes for Respondent
Judgment:	8 May 2014 at 3 pm

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. The sentence of two years and one month imprisonment is quashed and substituted with a sentence of one year and nine months imprisonment.

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REASONS OF THE COURT

(Given by Harrison J)

[1] Richard Fry pleaded guilty in the District Court at Invercargill to 22 charges of possessing objectionable material, knowing it to be objectionable.^[1] He had earlier pleaded guilty to charges of driving with excess breath alcohol (a third or subsequent charge) and driving while disqualified. Judge Turner sentenced Mr Fry to two years and one month imprisonment, comprised of 20 months imprisonment for the objectionable material charges cumulative upon five months imprisonment for the driving charges.^[2]
[2] The objectionable material charges arose from a police search of Mr Fry’s laptop computer. A preliminary examination revealed 56 objectionable images, 11 of which involved penetrative sexual activity between adults and children – that is, boys under the age of 12 years. The remaining 45 images were of non-penetrative sexual activity between adults and children or between children. Further examination disclosed 1,000 images of naked boys and male teenagers. A random sample of 100 of those images showed that 12 involved penetrative sexual activity between boys. Another 59 involved boys aged between seven and 16 years either engaged in solo masturbation or sexual activities with other boys, or in erotic poses.^[3]
[3] In sentencing Mr Fry, Judge Turner adopted a starting point of two years imprisonment for the objectionable material charges, which was the lead or index offending. Ms Vidal takes no issue with this figure. Nor does she challenge the cumulative sentence of five months imposed for the driving charges. What she challenges is the Judge’s uplift of the starting point on the objectionable material charges by six months or 25 per cent on account of Mr Fry’s convictions in Australia in 1998 on charges of sexual penetration of a child under 16 and indecent dealing with a child under that age. He was sentenced to four years and two months imprisonment for that offending which had actually occurred some years earlier. The Judge did not explain why he imposed the uplift or its length except to say that it was necessary “for personal aggravating features”,^[4] and available “[i]n the absence of authority to the contrary”.^[5]
[4] Ms Vidal submits that the Judge erred in two respects. First, she says, a New Zealand court has no proper jurisdictional basis to take into account convictions and sentences imposed by extra-territorial authorities. That is because, for the purposes of s 9(1)(j) of the Sentencing Act 2002, the term “conviction” should be limited to a conviction in New Zealand. However, we agree with Mr Kayes that there is no warrant for reading down the word “conviction” where used in s 9(1)(j). That provision refers to “any conviction”. And as this Court has previously observed:^[6]

Convictions are but evidence of prior misconduct. Prior misconduct, wherever it occurs, can be relevant when determining the appropriate sentence for New Zealand offending.

[5] Second, Ms Vidal submits, even if the Court had jurisdiction to impose an uplift, there was no proper basis for following that course here. Mr Kayes accepts that the Judge did not give an explicit reason for the uplift but submits it is justifiable on the ground that a greater deterrent response was required given Mr Fry’s previous history. He responsibly accepts also that the size of any uplift had to take into account the period of time which had elapsed between the Australian convictions and the present offending – at least 13 and a half years – and had to be proportionate to the starting point – in this case it was about 25 per cent. Mr Kayes also observes that the Judge reduced the cumulative sentence for the driving offences by a month and two weeks to ensure that the end sentence was not disproportionate to the gravity of Mr Fry’s overall offending.
[6] We agree with Ms Vidal. Mr Fry was sentenced on discrete charges to which he pleaded guilty. In principle, the sentence imposed should relate solely to the circumstances of that offending. As a general practice, care must be exercised to ensure that a sentence does not include a significant component which is in effect attributable to previous offending for which the defendant has served a term of imprisonment. Otherwise he or she would be punished twice for the same offending.
[7] It is well settled that where appropriate a Court may uplift the starting point to take account of previous offending of essentially the same nature but only if that is required for deterrent purposes or because it reflects on character. Mr Fry’s offending on both occasions involved sexual activities with children under 16 years of age. But the Australian offending was of a much more serious nature, including direct sexual penetration and indecency. The New Zealand offending, while also exploitative of children, did not include any physical contact by Mr Fry. That is a significant distinction. In any event, the time which has elapsed between the two sets of offending diminishes the case for an uplift.
[8] We are satisfied that the Judge erred by uplifting the starting point for Mr Fry’s sentence. The appeal must be allowed to that extent. A substituted sentence must leave the essence of the other components adopted by the Judge in place.^[7]
[9] In our judgment the proper approach is to adopt the original starting point of two years imprisonment, allow a discount of one third as applied by the Judge for mitigating factors including pleas of guilty and add five months for the driving charges. The end result is a sentence of one year and nine months imprisonment.

Result

[10] The appeal is allowed. The sentence of two years and one month imprisonment is quashed. A sentence of one year and nine months is substituted.

Solicitors:
Southern Law, Arrowtown for Appellant
Crown Law Office, Wellington for Respondent

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^[1] Films, Videos and Publications Classification Act 1993, s 131A(1).

^[2] R v Fry DC Invercargill CRI-2013-059-496, 14 February 2014 at [46] and [49]..

^[3] The remaining 10 images were seen to be non-objectionable.

^[4] At [27].

^[5] At [27].

^[6] R v Patterson [2008] NZCA 75 at [35]. An application for leave to appeal on the ground that previous convictions in other countries should not have been taken into account was declined in Patterson v R [2008] NZSC 70 at [3]: “The Judge was fully entitled to take into account the previous convictions.”

^[7] These include all orders made by the sentencing judge at [46]–[54] of the sentencing notes.