New Zealand Customs Service v Ray [2018] NZDC 22964 (10 October 2017)

Last Updated: 18 May 2018

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-004-001208 [2017] NZDC 22964

NEW ZEALAND CUSTOMS SERVICE

Prosecutor v

DAVID THOMAS RAY

_Defendant

Hearing:	10 October 2017
Appearances:	C McDiarmid for the Prosecutor A Kashyap for the Defendant
Judgment:	10 October 2017

_{NOTES OF JUDGE D J SHARP ON SENTENCING}

[1] Mr Ray, you are for sentence today in relation to two charges, one of possession of offensive material under the Films, Videos and Publications Classification Act

1993, having a 10 year maximum sentence. And the other of knowingly importing objectionable material, pursuant to the Customs and Excise Act 1996, again having a

10 year maximum penalty. Both charges are representative which means that the prosecution are able to prove one or more instances of the alleged offences. It is common for representative charges in cases of this kind.

[2] Your counsel has acknowledged in the submissions and I think realistically, that imprisonment is the least restrictive outcome in this particular situation.

NEW ZEALAND CUSTOMS SERVICE v DAVID THOMAS RAY [2017] NZDC 22964 [10 October 2017]

[3] As regards the facts, you had been subject to a period of imprisonment in Croatia. During this time you had a change of heart and had been endeavouring to rid yourself of material from your former life. That you had made strides in terms of dealing with your alcohol problems and that you were intending to come to New Zealand to settle your mother’s estate and move on with your life.

[4] It is clear that before you came back to New Zealand there was some activity in relation to the Internet. Files of an objectionable nature were viewed by you. I know you say that you felt you were a long way away, when you viewed this material and that you looked at these items out of interest.

[5] Sadly, the view I took is that you still retained an interest in this material. You may be trying to do something about it but there is still an interest present. This is represented by your history. Your history contains convictions of a similar nature. In addition you recently served the term of imprisonment in Croatia for similar offending.

[6] At 63 years of age, the question about rehabilitation is one that is open. You have written a detailed letter expressing your desires for rehabilitation. But you will be aware I have to deal with you on the material which is present.

[7] You are probably aware that in the United Kingdom they created categories in relation to objectionable material.

[8] Our Court of Appeal has said that those categories are of use in terms of assessing culpability or how serious things are. There are effectively three categories. In the first category, Category A there is penetration type sexual activity with children, sometimes involving animals and/or sadism. Category B is a non-penetrative type sexual activity involving children and Category C are indecent images, not falling into Category A or B.

[9] In terms of the images which Customs found when you appeared at the border in relation to the USB stick, there were 68 images. Some of the images fall into the Category A type which are regarded as the most serious.

[10] The situation was that when you were investigated at the border, you knew you were likely to be investigated because of your previous history. Your view is that you deleted everything. It may have been a trap in the system itself that led to material to go into the unencrypted files found by customs. There is still a volume of material retained in encrypted files. I cannot accept that you had no access to that material. The authorities have no access to them. As I said to your counsel, your explanation is that this is harmless material. I do not hold the material particularly against you as an aggravating factor but I cannot take your assistance to the authorities as something which will give you substantial credit. And this material, amongst other material that was significantly objectionable, remains outside the consideration of the authorities.

[11] When I look at this offending, I have to take some principles and purposes of the Sentencing Act 2002 into account. I have to have regard to deterrence and denunciation. Clearly you recognise now yourself, there are victims in relation to objectionable material. The children who are depicted in the material suffer ongoing victimisation. For them the images being shown over and over are something which must be truly horrendous. Many of the images that are obtained in those categories involve sadism, real pain to real victims and the offending is regarded as pernicious.

[12] For that reason I denounce it and I must do what I can to deter people from falling into the addictive types of behaviour that involve their use of this material on a compulsive basis. To have it have it available for exchange and have it in possession is terrible. Of course you are not charged with supplying the material but having the material and being engaged in the type of activity that you were, such as the use of the Internet, use of exchanges and the presence of the material, all are matters that need to be deterred. That of course is an important part of the sentence.

[13] I am bound to take into account prospects of rehabilitation. At 63 this is probably your last chance to do anything about this kind of problem. It may be that when the Parole Board read these sentencing notes, they take my view into account, that is that you are very much someone in the balance, past history counts against your rehabilitation. What you have said in your letter of remorse and the things that you have expressed about wanting to change, are positive things in your favour. Any help

that you can be given to rehabilitation is something which will count in your favour. I will take into account prospects of rehabilitation, when I reach the final sentence.

[14] I have to impose the least restrictive outcome. But in this particular case s 132B Films, Videos, and Publications Classification Act applies and there is a presumption of imprisonment for people who re-offend in the way that you have. That is one of the factors that leads to concession from your counsel, that imprisonment is the least restrictive outcome.

[15] There is no tariff for offending of this kind, but in R v Zhu.1 the Court of Appeal did endorse the United Kingdom Sentencing Advisory Board guidelines, referring to those categories which I have already outlined. They tend to have a starting point in relation to Category A material of three years, but that really is a guideline only.

[16] I will apply the usual method for sentencing, which is, I have to identify the factors which makes your offending more significant. There are a significant number of images; the images reflect what was saved in respect of your engagement with this material. As counsel for the Crown have mentioned there were Internet connections with others. You had the Tor function in relation to your Internet access, which meant you were able to consider the material on the Internet in an anonymous way. As you said, that could be for legitimate reasons but it is something of concern when somebody has material of the kind which you were in possession.

[17] In addition, you had encryption included in your software, that required a function to activate and the expert for the Crown said you displayed a facility with computers that indicated that you were able to access things at a level that was of at least average sophistication. The material which was obtained contained 11 files of Category B, two files of Category A, there were stills and there were movie aspects to the stored material which was discovered by the Customs Department.

[18] The age of victims is a factor which aggravates matters. The victims were vulnerable, there were a number of victims. The majority were pre-pubescent females.

_{Those are all aggravating aspects to the offending. I saw nothing in relation to the}

1 R v Zhu [2007] NZCA 470

offending that would be truly mitigating. It can be said that there are less images that are stored as in some cases and that is a factor I have to weigh when I consider the other New Zealand cases.

[19] Tilgard v Police.2 involves charges that are more serious than yours, maximum penalty of 14 years in that case, but the images, as contended by the Crown, tended to have been less serious and less material which would have fitted within Category A of the UK categorisation was prersent.

[20] In Stewart v Department of Internal Affairs.3 Katz J, the point was made that access to and facility to access electronic media means that less resort should be had to actual numbers of images that are stored and more to the ability of the person to have access to and to move through the various exchanges of indecent images that can be found. In your case, there is a degree of sophistication and a degree of use of the materials that indicates, at least before you left from overseas, a continuing interest and an ability to access a wide range of materials.

[21] When I take into account the aggravating aspects in some other like cases, I come to the view that a starting point of two years and three months’ imprisonment is required. Turning to your particular characteristics, I have to uplift the starting point to take into account previous convictions and the offending overseas. This is not an effort to re-punish you for other matters to which you have already been sentenced, but you have to be aware that you are someone who is marked out by what appears to be a repetitive pattern of offending which is regarded as serious. I uplift the sentence by six months.

[22] Then I turn to the factors that may be said to count in your favour, prospects of rehabilitation, the Provision of Advice to Courts reports speaks of a high risk of re-offending and a high risk of harm. Your past matters clearly are factors that have to be taken into account when I consider the words that you have put in your letter to the Court. The letter to the Court speaks of remorse and a desire for rehabilitation. It

_{is difficult to give remorse a great deal of credit, when you did attempt to deny}

2 Tilgard v Police [2016] NZHC 1377

3 Stewart v Department of Internal Affairs [2014] NZHC 2209

responsibility. I heard the application and I saw the material and as you have said, you received proper advice and I could not see that there was true basis for an absence of knowledge.

[23] That said, I will set aside remorse because I cannot be sure that it is genuine, but I will give you credit for the ability to rehabilitate. You have demonstrated that at least in part measure in respect to the fact that you have done something yourself without much assistance in relation to alcohol and that was a significant problem to face.

[24] Accordingly, I will reduce the 33 months’ sentence of imprisonment by three months and that is for prospects of rehabilitation, which takes the sentence to

30 months. Then I move to consider the credit which you are entitled to in relation to your guilty plea. I would have allowed 25 percent, had the guilty plea remained, but we have had to have a further proceeding which you argued unsuccessfully that I should set aside those pleas. For that reason I will not allow the full credit for plea that I would have ordinarily and I reduce the sentence further by three months in relation to your guilty pleas.

[25] That takes me to the point where a sentence of 27 months’ imprisonment results. That will be the sentence in relation to possession of objectionable material. In relation to the importation charge, that will be a sentence of 24 months’ imprisonment, at the same time. So the total sentence is one of 27 months’ imprisonment. There will be orders for destruction of the USB stick and the laptop computer that was imported.

[26] I will make an order for you to be entered into the Child Sex Register in relation to the conviction which has been imposed.

D J Sharp

District Court Judge