Police v Brittin [2017] NZDC 16230 (24 July 2017)

Last Updated: 12 December 2017

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT TAURANGA

CRI-2016-092-008720 [2017] NZDC 16230

NEW ZEALAND POLICE

Prosecutor

v

TYLA BRITTIN

_Defendant

Hearing:	24 July 2017
Appearances:	Sergeant D Dickison for the Prosecutor C Tuck for the Defendant
Judgment:	24 July 2017

_{NOTES OF JUDGE P G MABEY QC ON SENTENCING}

[1] Tyla Brittin, you are before the Court today having pleaded guilty to a charge brought under s 22 of the Harmful Digital Communications Act 2015. The facts relating to that charge are these.

[2] You were in a domestic relationship between [dates deleted]. You met your partner in that relationship, the victim of this offending, on a Facebook site. For [duration of time deleted] you communicated with her by phone and text. During that time she took naked pictures of herself and sent them to you. You arranged to meet

_{with each other. She travelled from [location deleted] to see you in Mount Maunganui.}

NEW ZEALAND POLICE v TYLA BRITTIN [2017] NZDC 16230 [24 July 2017]

As the relationship grew you became intimate with each other. Problems arose and ultimately the relationship ended, against your will – you wanted it to continue. She made it clear to you that the relationship was over on [date deleted].

[3] Later that night one of her friends alerted her that there were naked photographs of her on the Facebook website [name of page deleted]. These were the photographs that she had sent you via Facebook messenger previously. They were of her breasts and of her in the bath with her fingers in or about her genitals. You posted a comment to go with the photographs. “She’s DTF boys, [victim’s name and phone number deleted].” [Victim’s name deleted] is her name, which will be suppressed, the phone number was hers and I am told that that DTF is an acronym for “down to fuck”. You made this digital communication from your account which had your name.

[4] Shortly after 8.00 pm on [date deleted] the victim received the first of many text messages from various males who were unknown to her. They asked her if she available for sex. She received many calls and text messages and they caused her to become mentally and emotionally stressed. She changed her number to stop the unsolicited text messages.

[5] I have a victim impact statement which tells me that she is a single woman of [age deleted]. She said she has been humiliated. She walks with her head down to avoid being recognised. She has had random people come up to her saying such things as, “Aren’t you that chick with the nude photographs on Facebook?” Her friends and family know what has happened. Some friends have deserted her. She says that her mind is affected to the point that she has lost her appetite through stress. She has lost her self-confidence. She says this:

He took a part of me and destroyed it with what he has put me through. I’ve lost all trust and faith in people. I wake up from nightmares about this, crying. When I get a message from a name or number that I don’t recognise my heart starts pounding and I hold my breath till I open it. He has destroyed the person I have spent my entire life working towards being.

[6] That, Mr Brittin, is the effect of your actions.

[7] I have a pre-sentence report which tells me that you are 21 and that you acted in the heat of the moment. You may well have acted in the heat of the moment but in

that moment you did an act which, by your plea, was intended to harm. The effect has been to humiliate, belittle, embarrass and undermine your victim.

[8] The pre-sentence report refers to your past use of cannabis and that you have had a mental break-down as a result of your offending. It says you have self-referred to a detoxification centre in Auckland. You have also attempted self-harm.

[9] All of those matters may be correct but the reality is, Mr Brittin, you are 21, you had a partner who did not want you anymore and you acted in a way which was deliberate, malicious and intended to cause harm. Looking at the victim impact statement, you have certainly achieved that.

[10] You have no previous convictions of relevance. Whilst you were willing to undertake restorative justice your victim does not want to be part of that and understandably so.

[11] The purposes of the Harmful Digital Communications Act 2015 are set out in s 3 of that Act. They are to deter, prevent and mitigate harm caused to individuals by digital communications and to provide victims of harmful digital communications with a quick and efficient means of redress. It is the first category of those purposes that I am concerned with. In sentencing today I consider that deterrence, denunciation and accountability must be paramount. That is consistent with the purposes of the Act.

[12] There are a number of aggravating features of your offending. Your victim sent the photographs to you in the context of a personal relationship. They were for you only. They were for no one else. Whether she was wise to do that or whether any young person is wise to circulate photographs of themselves naked or in intimate circumstances is not the issue. They were sent to you in a relationship of privacy. She trusted you to keep that privacy and you breached her trust in the most vile way. You have demeaned her character. You have caused significant victim harm. You gave her name and number with a direct invitation to men to contact her as “down to fuck”.

[13] The pre-sentence report recommends community work and supervision. That is an entirely unrealistic and inappropriate recommendation. It is not appropriate to the offence which you face or the gravity of your particular offending.

[14] Mr Tuck has made submissions in writing and supports the sentencing recommendation. He has referred me to the District Court decision of R v Waine1 a decision of His Honour Judge Dawson in Auckland in November 2016. Mr Tuck says that case is comparable and in fact says that it is more serious than your offending and is a good guide to what I should do with you today.

[15] I disagree with his submission as to the usefulness of the decision of His Honour Judge Dawson. In that case, in circumstances where a relationship ended, there was a threat to expose intimate digital images by digital communication. The threat was to send them to the young lady’s parents and friends but the threat was not carried out. I cannot possibly see any basis for Mr Tuck’s submission that the facts of that case are more serious than yours, indeed my view is that what you have done is very much more serious than making a mere threat to expose intimate photographs. You did expose them.

[16] I am aware of other sentencing decisions of this Court for the same offence. In

Police v Tamihana2 His Honour Judge Ruth sentenced a person in Nelson on 18 April

2016. There was a breakdown in a relationship and as a result Mr Tamihana went on Facebook and revealed intimate photographs of his former partner to her mother with the comment “what your daughter’s really up to”. The Judge sentenced Mr Tamihana to nine months’ imprisonment commenting that to do otherwise would send the totally wrong message to the defendant and others who might embark upon that sort of behaviour.

[17] In your case, Mr Brittin, you did not disclose these photographs to a member of your victim’s family, you put it on a public website with her phone number with

_{words that suggested she is available for sex to any man who wanted to call and that}

1 R v Waine [2016] NZDC 4615

2 Police v Tamihana [2016] NZDC 6749

is exactly what happened – she got calls for that purpose. Your offending is considerably more serious, in my view, than that of Mr Tamihana.

[18] In Invercargill Her Honour Judge Cook imposed a sentence on 8 July 2016 (Police v Kelly).3 Mr Kelly took photographs of his ex-partner in the shower and posted them on Facebook. They showed her fully naked and showering at her home address. The Judge considered that case less serious than the matter of Mr Tamihana that I have referred to. She adopted a start point of nine months’ imprisonment, made a reduction for remorse, an offer for reparation and guilty plea. Home detention was the ultimate outcome.

[19] Posting on Facebook is serious enough but posting intimate images on a dedicated website intended to be visited by those looking for sex with the comment that you made is in my view worse. Your offending is considerably more serious than that of Mr Kelly.

[20] The maximum penalty is reserved for the most serious cases of a particular kind. I do not know of a more serious case than this but I am prepared to accept that there probably will be or could be.

[21] I consider that when measured against the maximum penalty of two years a start point of 18 months’ imprisonment is appropriate and that will be the start point that I adopt today.

[22] You have no previous convictions and until now I am sure that you were a person of good character. Whether you were motivated by a lack of control or in the heat of the moment is not known. But as I have said to you, whatever your motivation your admitted intent was to harm and that you did.

[23] I do not give you any credit for your age at 21 but you deserve credit for the fact that until now you have had no concerns in the Courts, apart from a very minor

_{traffic matter.}

3 Police v Kelly [2016] NZDC 12912

[24] It is said in the probation report that you are remorseful and I am prepared to accept that, notwithstanding I have heard nothing from you directly and Mr Tuck has not presented me with anything that might support what the report tells me.

[25] Against a start point of 18 months I am prepared to give you three months reduction for your character and expressions of remorse. That brings me back to

15 months.

[26] You are entitled to credit for your guilty plea. There has been a significant history since the charge was brought. The record shows that there have been a number of adjournments but the fact is you have pleaded guilty and I am prepared to acknowledge a 20 percent reduction for that. That takes me to 12 months’ imprisonment.

[27] Given that, home detention is something that is potentially available to you. But as I said to you right at the outset, Mr Brittin, you are not going to have the benefit of an electronically monitored sentence. For me to impose home detention for this level of offending would, as His Honour Judge Ruth said in Nelson, send the entirely wrong message not only to you but to other people who might want to offend in this way. One of the purposes of the Act is to deter and that applies not only to you personally but to others. Your offending is grave. The effect of your offending has been severe. The least restrictive outcome is imprisonment and you will be sentenced to 12 months’ imprisonment on this charge.

[28] From the sentence end date there will be release conditions with the special provision that you attend and complete any recommended intervention for alcohol and drug use to the satisfaction of the probation officer.

[29] There will also be a condition that you attend and complete an appropriate departmental programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by the probation officer.

[30] Mr Brittin, the sentence is 12 months’ imprisonment with six months’ release conditions.

P G Mabey QC District Court Judge