Police v Greathead [2018] NZDC 22799 (30 October 2018)

Last Updated: 23 May 2019

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT

PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.h tml

IN THE DISTRICT COURT AT HASTINGS I TE KŌTI-Ā-ROHE KI HERETAUNGA

CRI-2018-020-000569

[2018] NZDC 22799

NEW ZEALAND POLICE

Prosecutor v

TONY MARK GREATHEAD Defendant

Hearing:	30 October 2018
Appearances:	S Manning for the Prosecutor M J Phelps for the Defendant
Judgment:	30 October 2018

NOTES OF JUDGE B M MACKINTOSH ON SENTENCING

[1] Tony Greathead, you are now aged 37 appear for sentence today in relation to

69 charges. 51 charges of making intimate visual recordings, four charges of publishing intimate visual recordings, seven charges of knowingly making objectionable publications and seven charges of knowingly distributing objectionable publications.

[2] The charges involve the recording and/or publication of videos in relation to 34 female victims. Basically, what you did was you used a hidden camera in your bathroom to film women as they got undressed to get into and out of the shower. The

NEW ZEALAND POLICE v TONY MARK GREATHEAD [2018] NZDC 22799 [30 October 2018]

women were guests of yours as you and your family operated an Airbnb accommodation. What you did you uploaded, I believe, 11 videos of the women to a pornographic website. Seven of those videos were objectionable and in respect of those seven you have added commentary to the images and the commentary, as submitted by the Crown I agree with the summation there, that it was degrading and dehumanising for those women.

[3] I have read the victim impact statements. There were 34 victims in total. In summary, really they feel humiliated and embarrassed from knowing that they were filmed naked and in some instances images being posted on a website for the world to see. They express, as one would expect, shock and disgust at your actions. Some no longer feel safe in homestay accommodation. They felt the breach of trust because you had held yourself out to be something completely different obviously than what you were. Of course, they felt they were in a safe place to stay because you were working as a prison officer at the time. You had previously worked for the police in the UK and to all intense and purposes you were living happily there with your wife and children.

[4] The other flow on effect of course is the tourists who were filmed and now there could now be flow on effect locally in regard to that because they now express a lack of faith in New Zealand and believe it is not a safe place to be. Of course, ultimately there has been devastating consequences for your own wife and family who had no idea about what you were doing.

[5] I have read the pre-sentence report which sets out your own background. It describes you as actually having suffered a number of traumatic incidents over the years to try and put this offending into some context. It appears that you became introduced to and addicted to online pornography. You were then looking for something more than pornography and that led to filming of your Airbnb guests. The report says really that you do show not much insight and at this point not real empathy for your victims. Initially you did not really regard them, who you filmed as being victims, and you did express shock to the probation officer at the number of victims. You have obviously got some serious issues that you have to address. Mr Phelps, and I can see this from the report, tells me and I know, that you have been trying to do

something about that. You have been engaged in counselling and taking what steps you can.

[6] In your life-time you have always been employed. You have had responsible positions. Most recently as a corrections officer here in Hawke's Bay. Now I have read your lawyer submissions very carefully and I have listened carefully to what he has had to say in Court today and a lot of that really relates to his sort of interpretation of the legislation under which you have been charged and where your offending sits in terms of the wider context of offending that is dealt with under the relevant legislation.

[7] The difficulty is that there is no sort of tariff or no express hierarchy of sentencing within the relevant legislation and whilst he has made a number of submissions in relation to the reason behind the legislation which was to increase penalties for those involved in exploitation of children and child pornography that is not really the end of it. The sections themselves, I agree with the Crown are intended to cover a wide variety of behaviour. So, it is not simply a case of slotting the kind of conduct into a hierarchy with child pornography higher and other forms of activity lower. What it does require is an overall assessment of the context of the offending, the nature and scale of the offending and a number of other factors that have been referred to in R v Patel and I will come to those within a short period of time.1

[8] But really what he has been saying to me today is that you accept responsibility now for what you did. You have pleaded guilty early. You have fully co-operated with the police. You have been undertaking what counselling and treatment you can in the meantime and that you understand what the consequences of your offending are and you essentially are facing up to those. He also asks that I do give you some credit for your good character to date and it is fair to say you do not have any other previous convictions and I will come to that and how that fits into the scheme of things in a moment or two.

[9] He also referred of course to your own personal issues and it seems to me that you did have an intense addiction to pornography that then escalated obviously into

1 R v Patel [2016] NZHC 2260.

the behaviour that has led to these charges. But ultimately the basis for sentencing comes from the purposes and principles of sentencing which of course in cases like this to deter would have to be one of the main purposes of sentencing and to denounce this kind of conduct. I also have to bear in mind of course the need to impose the least restrictive outcome in the circumstances and the prospect of rehabilitation.

[10] But as I say an assessment of the starting point in this case, in my view really, fairly can be made by applying the broad principles in Patel (supra) to the individual facts of your case. The Court of Appeal in that case have observed that there is no hierarchy of objectionable material, each case is to be assessed on its own merits. The extent to which the possession and distribution is injurious to the public, good frames the issues for consideration at sentencing. So, the factors to be considered relative to an assessment of the gravity of offending essentially are the nature of the publications, the volume of the material involved, the number of people to whom they were distributed, your role and harm caused by the offending. Also, the purpose which affects the extent of harm caused by the objectionable material. So when I come to those I will consider each in turn.

[11] But of course the nature of the publications, as the Crown has highlighted, these videos do significantly degrade and demean the victims by exposing them naked and making them identifiable. The derogatory comment is strongly sexually objectified and the commentary of course heightened the demeaning nature of the images and the videos then encouraged the criminal acts of making and distributing the intimate visual recordings.

[12] As far as the volume is concerned, you uploaded seven objectionable publications to pornographic websites. Well it is hard to know how many people the material has been distributed of course because they were put on the website so they are there for all the world to see but there are some figures that have been given to me by the Crown and it seems that the website, referred to as a motherless website, was examined by the police when you were arrested. Videos posted of victims to the site have been viewed 2552 times and 6851 times. Seven of the 11 videos had been viewed in excess of 4000 times so it is not possible to contact the actual number of views as the images were able to be downloaded by the users of course and shared by them so

they are all out there. Your role was significant in everything. You created the videos, you edited them, you uploaded them, so you were responsible at every level.

[13] The harm, well Mr Manning has referred to the victim impact statements and I also have broadly. Seven of the victims featured in the objectionable videos, the victim impact statements make distressing reading all round and obviously this offending has had a significant effect on them. They do report as being shocked, ashamed and degraded. And the purpose for which the material was distributed I do not agree that there was no sexual gratification in distributing that material, clearly by the nature of the comments there was. You were providing them for the sexual gratification of others and enjoyment at the objective occasion and humiliating that you were inflicting on the victims. Clearly there was a sense of satisfaction about what you could achieve in all of that at the time. So it is simply more than a thrill and risk of being caught.

[14] As far as the starting point itself is concerned, I think really I have considered all the cases that have been put forward to me by counsel. But really all of these cases are so different and yours is in quite a different category from the others. So I think the most sensible analysis and the way to deal with it is by making a comparison with Patel and doing the best I can to take a starting point from there. I actually do agree with the Crown that your case is ultimately must be worse than Patel, that is because of course of the amount of involvement you had in the whole process. The huge audience that these videos were available to. So, the starting point there was said to be five years and well within the available range. I take a starting point in your case of five and a half years for the objectionable publication charges.

[15] As far as the intimate visual recording charges are concerned, a totality assessment has to be made. There is not a lot of difference between your lawyer and the Crown lawyer in that regard and it seems to me that on totality an appropriate uplift would be 12 months’ imprisonment, that would get us to an appropriate starting point of six and a half years’ imprisonment.

[16] As far as mitigating features are concerned and your lawyer has talked to me about those and made submissions. You do not have any previous convictions and

you have been of good character. Any reduction for that can only be very small though really in my view because of in some ways you were trading on that, as I have discussed with Mr Phelps, to enable you and it enabled you to offend in the way that you did.

[17] You did fully co-operate with the police and you do deserve credit for that. You have also undertaken some form of rehabilitation and really since all this came to light in February of this year you have been doing what you can but obviously there is still some way to go in that regard but I do believe you do deserve some credit for that.

[18] Overall what I am prepared to do is from a starting point of 78 months reduce 10 percent or back to 70 months’ imprisonment for those matters. You are entitled to a full discount of 25 percent for your guilty plea and that will be obviously the reduction today. So that gets us back to a term of four years and four months’ imprisonment. That will be in relation to all of the 14 year maximum charges. The other one will note 12 months concurrent on those charges.

[19] In respect of any other orders there will be no further name suppression. That is not sought to be extended from today but I do reiterate that any details of course leading to the identification of any of the victims is of course is suppressed from any further orders or from publication.

[20] And I make an order for destruction of any device or property relevant to the offending.

B M Mackintosh District Court Judge