Department of Internal Affairs v Crockett [2017] NZDC 7422 (6 April 2017)

Last Updated: 4 September 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED}

IN THE DISTRICT COURT AT NAPIER

CRI-2016-041-001751 [2017] NZDC 7422

DEPARTMENT OF INTERNAL AFFAIRS

Prosecutor

v

NEVILLE BRUCE CROCKETT

_Defendant

Hearing:	6 April 2017
Appearances:	Ms T Badland for the Prosecutor Mr S Jefferson for the Defendant
Judgment:	6 April 2017

_{NOTES OF JUDGE G A REA ON SENTENCING}

[1] Mr Crockett, you are here for sentence on:

(a) two representative charges of possessing objectionable publications under the Films, Videos and Publications Classification Act 1993; and

(b) seven charges of making copies of objectionable publications for the purpose of distributing to other persons.

[2] As has been recognised, this is one of the rare cases where the possession of this material is the lead offence rather than the distribution of it. There are, as I said, seven charges dealing with distribution. They each relate to an image which you have put to an email to send to a like-minded individual in this area. My

_{understanding is that even if the email was sent, it was not actually received.}

NEW ZEALAND POLICE v NEVILLE BRUCE CROCKETT [2017] NZDC 7422 [6 April 2017]

[3] As a result of investigations, in July last year the Department of Internal Affairs became aware of your operations. They executed a search warrant and during the course of that you have obstructed one of the inspectors by making an attempt to either destroy or hide a computer drive. Eventually you did provide that to those undertaking the search.

[4] During the course of the investigation, it was revealed that you had accumulated a collection of 5833 files. Of those, 1058 showed unique images, either by video or by a still image, of sexual abuse on real children and the balance, 4285 files, were computer-generated images of sexual abuse of children.

[5] In this case, a great deal of the material dealing with real people involved penetrative sex with both male and female children as young as two. When I say “penetrative sex,” that quite frankly glosses over the reality of what is in this material. We are dealing with children here from wherever in the world they were living at the time and the fact is, Mr Crockett, that no matter how it is dressed up, these images revealed multiple rape and sexual violation of children as young as two. There are no issues of consent involved in this. There are no issues of willingness on the part of the children. They are being exploited in the most sexually perverse way that could be imagined and you had a significant collection of this material at your disposal whenever you wished to look at it which, as I understand from the material before me, was on an extremely regular basis.

[6] I am told that in terms of its gravity, in other words what is depicted, and the amount of files that you had dealing with real children, this is the worst case to come before a Court on possession of this material since the penalties for possession were doubled by Parliament in 2015. This is a situation where the law for some time has imposed significant penalties on people who have accessed, possessed, stored or distributed this sort of material and it needs to be drawn to the public’s attention the basis upon which Parliament has approached this because that is the starting point for any sentencing that any Court is engaged in.

[7] During the course of the discussion in Parliament about the increase in the penalties for this sort of offence in 2015, the Minister of Justice had this to say. She said that the storage and distribution of this objectionable material:

Fuels a market, encouraging those who create the material to produce more of it which, in turn, results in more children being abused.

And again with respect to the Minister the use of the word “abuse” simply sugar- coats what is actually occurring and, as I have said, it is multiple rape and sexual violation of young children. The Minister went on:

This is a cycle we are aiming to disrupt by increasing the penalties for the possession, production and distribution of child exploitation material... This legislation sends a clear message that it is a repugnant series of conduct that encourages the abuse of children, for which New Zealand has zero tolerance... The legislation seeks to address this increased connectivity by criminalising indecent communications with children and ensuring those who possess or trade in child exploitation material receive a sentence that reflects the very grave nature of the offending... Possessing and trading in images depicting the sexual exploitation of children is grave offending that, in my view, warrants stronger penalties than other types of objectionable publications.

[8] As a result of that, Mr Crockett, the Parliament of this country two years ago doubled the penalty for possessing this material from a maximum of five years to one of 10 years and that is something that I am bound to take into account when sentencing you.

[9] There are a number of aggravating features in this case which I need to go over because this is not only a case about you having this material, but it is also a case about how you have got it, how you have engaged with those who are involved in it and the steps that you have taken to prevent the authorities from knowing about it.

[10] As I have already indicated, distribution charges are generally more serious than possession and a higher maximum penalty is available for them. In this case, however, the distribution charges simply form part of the narrative as far as you are concerned and I treat them, essentially, as an aggravating feature to the possession charges rather than as stand-alone offences that are more serious.

[11] The aggravating features in this case are obviously the number of victims. The 1058 images that I have already spoken of include real children of varying ages. The age of the children, of course, is a major aggravating feature in itself. As I have said, they range in age from around 13 to 14 years as the oldest down to two year olds as the youngest. It is also noteworthy that the computer-generated images that were found also depict children spanning the same age ranges as those of the real children engaged in this activity.

[12] The nature of the sexual acts depicted is important. Some of the cases have dealt with situations which can be described as provocative posing by young children. The material that you have is in an entirely different category altogether. As I have said, it portrays the rape and sexual violation of children and other indecencies being inflicted on them in circumstances where they are little more than chattels and prisoners. The total collection size of what you had which is in excess of 5000 images is significant, but as I will mention shortly, the sheer size of the collection does not necessarily equal culpability.

[13] The diversity of the material in your case is significant as well. You possessed both still images and video files. You had images that were computer-generated. You had images and videos with real children involved in a wide variety of despicable conduct.

[14] The length of the offending here is also a factor. The Department’s investigation showed that you had been offending in May of 2015 and you were continuing to do so right up until you were apprehended; however, due to the fact that you had sophisticated cleaning and encryption software, it cannot be determined how far back this offending goes. It is likely from the way that you have engaged with this material that it has gone back some time, but I cannot sentence you on that basis and I am simply sentencing you on the charges that are before me.

[15] The frequency of access is regular. Again, it is difficult to assess that in totality because of the deletion and encryption devices that you had available.

[16] One of the significant features in this case, in my view, is the encryption and deletion software that you had. You used a large number of applications for encryption, locking, concealing, deleting or cleaning and to mask the activity that you were undertaking. You had purchased licences to enable you to do this. The Department’s investigation was able to bypass some of the programmes, but other drives seized remain encrypted and inaccessible so it is unknown as to whether there is more material available in drives that simply cannot be accessed at the present time. There appears to have been frequent transfer of material from computers to other storage drives and that is perhaps indicative of the obstruction charge that I have already mentioned. The forensic examination undertaken has determined that at least one encrypted device in existence has not been found by the Department and its whereabouts is currently unknown.

[17] The major significance of all of that, Mr Crockett, is that it makes a complete lie of the comment that you made to the probation officer about not really looking at this material as it has come through and only having done so on a limited number of occasions. This set-up speaks of somebody who has made something of an industry for himself with this sort of material. You have done what you could to ensure you were not apprehended and you would only go to these sorts of lengths to have this sort of encryption, locking, concealing and deleting abilities if you were single- minded in your wish to access this material.

[18] You were also involved in other online activity that points to your interest in this sort of material including what are described as “fantasy chats” with other individuals and attempting to distribute material as I have already indicated. You have also gone to the extent of accessing two child sex abuse sites on what is described as the “Dark Web.” That is a part of the Internet that I understand requires some application to reach, but you were able to do that and to access a site that was regarded, until it was taken down by the FBI in March of 2015, as the most significant Internet child abuse site in the world.

[19] Lastly, as I have already indicated, you have been prepared to distribute this material as is evident by your plea of guilty to those seven charges.

[20] In 2014, Katz J in Stewart v Department of Internal Affairs1 made the comment that collection size alone was a blunt tool in assessing culpability and the overall assessment of culpability needed to be considered in the broader context of everything that is known about an offender’s online behaviour. I have gone over what has been a feature of your conduct. You, in my view, have been single-minded in accessing this material to a very significant degree and accessing material at the very extreme end of the conduct against children of this age.

[21] As both counsel have outlined, it is difficult in the absence of appellate guidance to arrive at what is an appropriate starting point for this offending. That is doubly the case because a sentencing Court is dealing with essentially new legislation in the sense that the penalty for it has been doubled since almost all of the cases that have been referred to me. The maximum penalty for each of these individual offences is 10 years’ imprisonment and it is a question of judgment based on all of the features as to where the starting point should be and then what factors should be taken into account to your advantage in mitigation.

[22] In the end, after considering a number of cases and I include in those the decisions of Davidson J in Tilyard2, Judge Farish in Firth3, and all of the other cases provided to me by both counsel, I have concluded that the starting point here for what I regard as significant offending is a term of five and a half years’ imprisonment. You are entitled to a reduction for the fact that you have pleaded guilty to the charges. It is to be noted that you do not get the maximum discount because you did not plead guilty at the initial calling of these charges; you did so after having entered a plea of not guilty originally.

[23] I consider that there are no other mitigating factors that need to be taken into account here. This is not a situation where you are a first offender who can draw on good conduct and neither is there anything about the overall circumstances that would lead to any further reduction. I am mindful of the letter that your wife has

_{sent, but one of the unfortunate consequences of involvement in serious criminal}

1 _{Stewart v Department of Internal Affairs [2014] NZHC 2209}

2 _{Tilyard v Police [2016] NZHC 1377}

3 Firth

offending is that the results of the sentencing always impact not only on the offender, but on those who are closest to them. That, in the end, cannot have a sway in the sentence that the Courts must impose to ensure that the clear statutory intention revealed by the increase in the penalty is to be met.

[24] I consider that you are entitled to a reduction down to four and a half years’ imprisonment to take into account your late plea and the remorse that you have expressed to the probation officer and in relation to each of these charges with the exception of the obstruction you will be sentenced to four and a half years’ imprisonment.

[25] On the obstruction charge you will be convicted and discharged.

[26] There will be an order that all of the material that was recovered of an objectionable nature is to be destroyed and all of the computer and associated equipment enabling access to that material is forfeit to the Crown.

[27] You are by this sentence of imprisonment subject to s 12

Child Protection (Child Sex Offender Government Agency Registration) Act 2016. You will be regard as an offender and the effect of that will be provided to you in the written material supplied.

G A Rea

District Court Judge