New Zealand Customs Service v Robinson [2019] NZDC 3569 (27 February 2019)

Last Updated: 22 June 2019

IN THE DISTRICT COURT AT NEW PLYMOUTH

I TE KŌTI-Ā-ROHE KI NGĀMOTU

CRI-2018-043-000542 [2019] NZDC 3569

NEW ZEALAND CUSTOMS SERVICE

Prosecutor v

JUSTIN ANDREW ROBINSON

_Defendant

Hearing:	27 February 2019
Appearances:	J Marinovich for the Prosecutor J Hannam for the Defendant
Judgment:	27 February 2019

_{NOTES OF JUDGE G F HIKAKA ON SENTENCING}

[1] Mr Robinson, you are for sentence today on 12 charges: six that you knowingly imported objectionable publications into New Zealand, one that you knowingly exported objectionable publications, one that you supplied and distributed objectionable publications and four that you possessed without lawful authority or excuse objectionable publications. The charges carry a maximum term of imprisonment of 10 years except for the supplying and distributing charge which carries a maximum term of 14 years. This is obviously serious offending and it relates to you accessing the objectionable publications which depicted sexual exploitation of

_children.

NEW ZEALAND CUSTOMS SERVICE v JUSTIN ANDREW ROBINSON [2019] NZDC 3569 [27 February

2019]

[2] The offending is effectively in two lots. The first from August 2017, which concerned some of the importation, exportation and the supply and distribution charges. The remaining charges are from April 2018. The summary refers that you were actively seeking more such material through your communications on your Facebook account.

[3] Now, I do not intend to describe the actual images referred to in the summary of facts, which you have accepted and on that basis, pleaded guilty to the charges. Suffice to say by reference to the guidelines for sentencing, it will be clear that the images and the videos you accessed were of higher level sexual activity between adults and children.

[4] Using the guidelines from the Court of Appeal decision in R v Zhu in 2007, which endorsed the United Kingdom guidelines, therein, five levels of seriousness of such offending and those levels are:1

(1) Images depicting nudity or erotic posing.

(2) Sexual activity between children.

(3) Non-penetrative sexual activity between adults and children.

(4) Penetrative sexual activity between adults and children.

(5) Sadism and bestiality involving children.

[5] Your offending meets the criteria, as expressed, in the second, third and fourth categories.

[6] That observation was followed in later years by a significant increase in the penalties for being involved in that sort of offending and a recategorisation of the

_{United Kingdom guidelines to three categories being:}

1 R v Zhu [2007] NZCA 470.

(a) Images involving penetrative sexual activity.

(b) Images involving non-penetrative sexual activity.

(c) Other indecent images not falling within categories (a) or (b).

[7] Again, your offending was with respect to category (a) and (b) offending.

[8] There is no issue with respect to the starting point in your case and the High Court decisions that have been referred to support both the Crown and your counsel’s agreement that four years’ imprisonment is the appropriate starting point. That is reached by considering, not only the nature of the offending, per se, but also the aggravating features and the element of premeditation. There were two separate occasions of offending and the requests for more images of the same sort through your Facebook communications. Importantly, the impact of this sort of offending on the psychological wellbeing and, indeed, the physical wellbeing of the victims of this offending, the children involved. It is no understatement to say the impact would be profound, long lasting and dehumanising. The images you imported, exported, supplied and possessed amounted to rape of young children.

[9] So, that is the starting point. The issue I need to consider next is whether there are any factors which would see a reduction or an increase in that starting point. You have 16 previous convictions from 2009 through to 2017 and one of them for burglary resulted in a term of imprisonment. There are others for violence and, in my view, those previous convictions warrant an uplift of three months’ imprisonment.

[10] The next issue is whether there are any circumstances that apply to you personally that would see a reduction in that four years and three months’ imprisonment sentence. There has been a helpful s 38 Criminal Procedure (Mentally Impaired Persons) Act 2003 report. It refers to your inability to recall the offending that you pleaded guilty to and refers to you as a significant risk of future offending on that basis. It is written in the context of a lack of admitting to the offences. That is not quite correct because you have admitted the offending, but you have no recall of

it specifically. It has been suggested that it is some 18 months since the first raft of offending and that may be part of the reason.

[11] The other issue the report refers to, and which has been referred to at some length by your counsel, is what has been said is your limited culpability because of low intelligence, but not so low as to qualify for an intellectual disability. There is reference to your mother using alcohol to a significant level and thereafter, your general practitioner describing you as effected by foetal alcohol syndrome disorder.

[12] That has been a term bandied around in submissions relating to you but it is a term that, at this stage, has been offered by your general practitioner but not supported by an expert’s assessment of you and your history and, as would usually be the case in such an assessment, quite a detailed overview and enquiry with respect to how you interact with others on an ongoing basis over a period of years. But, that said, there may well be some residual concerns about your cognitive function as a result of what the GP has said and that needs to be added to reference to three head injuries you have had throughout your early part of life. There are personal factors weighing in that would lead, in my view, to see an appropriate deduction of three months’ imprisonment from where I got to.

[13] The most significant deduction is 25 percent to recognise that you have pleaded guilty as early as possible and you are willing to address issues that affected you negatively around the time of the offending, in particular alcohol abuse. That was recognised in the advice to Court report from July last year, which recommended intensive supervision. Counsel have been quite responsible in noting that that would be an inadequate response to this sort of offending, as the High Courts have recognised as well.

[14] A result from your conviction and sentence today is that you will be registered on the child sex offenders register and that will enable ongoing monitoring of you when you eventually return to the community after serving your prison sentence.

[15] I am satisfied from all the information I have received, mindful of the purposes and principles of the Sentencing Act 2002, that the appropriate end point is 36 months

_{or three years’ imprisonment concurrent.}

Judge GF Hikaka

District Court Judge

Date of authentication: 05/03/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.