R v Bevins [2019] NZDC 7407 (17 April 2019)

Last Updated: 3 October 2019

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

IN THE DISTRICT COURT AT PALMERSTON NORTH I TE KŌTI-Ā-ROHE KI TE PAPAIOEA

CRI-2018-054-000988

[2019] NZDC 7407

THE QUEEN

v

CONNOR WILLIAM BEVINS

Hearing:	17 April 2019
Appearances:	J Harvey for the Crown T Thackery for the Defendant
Judgment:	17 April 2019

NOTES OF JUDGE J D LARGE ON SENTENCING

[1] Connor William Bevins, you appear for sentence today on six charges. Five are causing harm by posting digital communications, where the maximum penalty is two years’ imprisonment, and one charge of attempting to cause harm by posting a digital communication, where the maximum penalty is one year’s imprisonment.

[2] Prior to the sentencing submissions by counsel commencing, I raised with your counsel, Mr Thackery, my concerns that neither counsel had addressed in their written submissions the issue of cumulative sentences being imposed and I expressed the view that a sentence of two years’ imprisonment was inadequate, given the extent of the offending.

[3] I am obliged to give reasons for the sentence I have decided is appropriate.

R v CONNOR WILLIAM BEVINS [2019] NZDC 7407 [17 April 2019]

[4] I say at the outset that you and your associates were members of a vigilante group. Your actions were vindictive, they were cruel, and they were clearly premeditated.

[5] You may have thought that you were wanting to protect children but vigilante law in New Zealand is not how New Zealand law works.

[6] Mr Thackery has said that there is no service or facility for people who have concerns about paedophiles to let their concerns be known and, in some way, you thought your actions would be reasonable. But you clearly got it totally wrong. You clearly got the wrong people. Paedophiles are people who offend against children.

[7] The Crown is correct when it says the person you were purporting to be was far from a child.

[8] Mr Thackery mentioned your offending was amateurish and you were a party to the offending of others, where you were dealing with like-minded people.

[9] You were willing to vilify people in the most public way.

[10] You decided what you thought they were and you made that public, as widely as you possibly could.

[11] You were effectively Judge, jury and executioner when it came to your deciding what you thought the people were and how they should be dealt with.

[12] It is really important, as the Crown have said, that it be publicly acknowledged that the victims were in no way culpable or to blame for the harm you caused to them.

[13] It may be some members of the public will not understand why what you have done is criminal and they may believe that you were just trying to expose people with paedophilic tendencies.

[14] Those people may try to blame the complainants for their involvement in your falsely labelling them as paedophiles.

[15] As I say, the complainants or victims are not at trial here, they are not being sentenced here. They are innocent victims of your vigilante action.

[16] The general facts are, in respect of each case, you had contacted the victims via an Internet dating site or application. You would tell the victims you were 14 or 15 years old on two occasions despite by law having to be older to use those particular sites or having pictures and profiles of older people.

[17] You would then arrange to meet the victim in a public space, such as The Square or in the Plaza here in Palmerston North.

[18] You would then approach and confront the victim, yelling and screaming that the victim was there to meet an underage boy or girl.

[19] This was all filmed and then later uploaded to Facebook, usually to your Palmy Creep Catchers Facebook page, and/or to YouTube.

[20] In some cases, the victim would be identified further by being tagged or having their profile linked to the video.

[21] As I say, there are six charges.

[22] In relation to charge 1, the complainant is [in his 20s] and has an intellectual disability from a brain injury. He was friendly and trusting and was contacted via a dating app by a female asking to meet him at the Plaza. Upon arriving, you and another person cornered him and accused him of coming to meet a 15-year-old girl for sex and said if the girl’s father were here, he would want to hurt the complainant. That was videoed and posted by you to Facebook.

[23] The harm there, in respect of that victim, was that the complainant did not like cameras and he is susceptible to seizures. He felt as though he had almost lost consciousness and returned home distraught.

[24] The second charge, charge 2, relates to the complainant meeting a person on a dating app with a stated age of 20 but then during communications saying he was 13.

[25] When at the arranged meeting place, The Square, you and another person approached him while filming and started yelling that the complainant was here to meet an underage boy.

[26] You followed the complainant around for eight minutes, yelling about the complainant being there to meet an underage boy, saying that you would upload the video to Facebook and YouTube, which you did.

[27] A number of people made threatening comments and assisted in identifying the complainant uploading his profile to the Palmy Creep Catchers page and linking his account. The video was also sent to some of the complainant’s family and friends.

[28] The harm caused in respect of charge 2, to that victim, was the complainant was upset when he went home and after the video was uploaded, felt suicidal and rang Lifeline.

[29] The third charge relates to the complainant meeting a person he believed to be

25 in an online chat. There were arrangements made to meet outside the Palmerston North Courthouse.

[30] The complainant was in his car and you opened the passenger door and presented a phone at him, yelling that you were from Palmy Creep Catchers and the complainant was there to meet a 15-year-old girl for underage sex.

[31] The complainant drove off. You uploaded the video to Facebook and the complainant’s LinkedIn page was copied and posted onto the Creep Catchers Facebook page alongside the video and there was a further post claiming to identify him from his previous job. That complainant was contacted by his former boss and family members to tell him that the video had been uploaded.

[32] The harm caused on that occasion was that the complainant was seriously concerned about the impact on his professional profile and about undoing the damage caused to him and he did not know what would happen. He committed suicide.

[33] Charge 4 relates to a complainant who met a person on an Internet dating site whose profile said she was 24. She called him and said she was 15 but the complainant did not believe her due to her voice sounding mature.

[34] Again, there was an agreement to meet in The Square, where the complainant was approached by a group of six to eight people.

[35] You ran up to the complainant’s car and said if he, the complainant, attempted to leave, your friends would assault him. The group were recording the meeting. You yelled at him, saying that he was there to meet an underage girl for sex and he needed to get help.

[36] That video was posted to the Creep Catchers Facebook page. The complainant’s daughter told him he needed to close his Facebook account.

[37] The harm there was the complainant suffered distress with his family about that whole matter.

[38] Charge 5 related to a complainant who met a person on a dating app who said they were 15 but the complainant said he did not look 15 and assumed he was in his 20s because of the pictures exchanged and the language of the communication.

[39] Again, an arranged meeting in The Square where you had a number of people with you and you filmed the interaction, during which you stood on a concrete seat and said the complainant was there to meet an underage boy for sex.

[40] The complainant walked away but you followed him, continuing to ask the complainant if he had ever met an underage boy for sex before. That video was not posted online and you accidentally deleted it. That is the attempt charge rather than posting charge.

[41] The harm caused by that action was that the complainant found the event extremely shocking and felt harassed and belittled. He was very concerned about the thought of the recording going on the Internet and felt threatened and sickened by the consequences for his private, public, and professional life. He had suicidal thoughts

and believed the potential humiliation of the publishing would be unbearable for him, his family and friends, and would make his work situation untenable.

[42] The final charge, charge 6, relates to your travelling to Taupo with a support crew and making arrangements there to meet up with a complainant with whom you had been talking to online. You posed as a 15-year-old boy but sent a photograph of yourself to the complainant. You met the complainant, despite the complainant saying that he and you could not do anything sexual due to your “age”. You approached the complainant with your friends filming and said the complainant was under a citizen’s arrest.

[43] Fearing for his safety, the complainant retreated to his car and tried to leave but you and your friends surrounded the car, preventing the complainant from leaving. You jumped onto the bonnet and another person onto the boot of the car. The complainant, still fearing for his safety, drove down the road a way, then stopped to let you and the other person off his car. In a rage, you opened the complainant’s door and tried to remove him. The complainant drove off, causing you and the associate to fall onto the road as the vehicle sped off. Again, that video was posted online.

[44] There, the complainant feared for his physical safety.

[45] That summarises the facts and the effects. I have been very careful to not go into the effects in great detail, out of respect for the complainants, the victims, here. You have acknowledged that they were wronged by you and I think it appropriate that I go no further than I have, in terms of their victim impact statements but I want them to know that the victim impact statements were read by me and I have taken on board what those victim impact statements said.

[46] You need to hear that, Mr Bevins, because you have been shown those victim impact statements, as well. You have not seen those? [I don’t want to.] You do not want to? [I can’t handle it.]

[47] Mr Bevins has indicated that he has not seen those because he cannot handle the contents. That is a matter for him but the Court must read those and I must take into account the victims’ rights to express their views clearly to me.

[48] These offences are under the Harmful Digital Communications Act 2015, and Crimes Act 1961 s 66.

[49] The Harmful Digital Communications Act is new and there is a very limited case law about people sentenced under it and there are fewer cases in the High Court. The cases that I have found are nowhere near as serious as your offending.

[50] Police v Tamihana where there was a volatile relationship between a defendant and his partner.1 There was a Facebook message sent to the mother of the complainant, including a video attachment with a comment, “What your daughter’s really up to,” which shows a sexual scene between the partner and another. That was one publication, one event. The Judge noted there that the legislation was new and he did not make the assumption that it was the worst kind of case but it was difficult for him to think of a worse one at the time. He adopted a starting point of nine months’ imprisonment.

[51] Police v Forester where at the conclusion of a 10-year relationship, the defendant posted a full frontal naked image of a victim on a work-related Facebook page, the page of a significant corporation, on her own personal page, and on a Facebook page of a friend.2 That attracted a starting point of six to seven months’ imprisonment.

[52] Brittin v Police, referred to by both counsel in their submissions, where the defendant made contact with a victim via a Facebook dating site and during the communication, the victim sent him intimate photographs of herself.3 They met twice and were intimate but she refused to have sex. She indicated the relationship was over. The defendant posted the photographs on a number of websites with a message that suggested the victim was available for sex. She received a number of phone calls. In

1 Police v Tamihana [2016] NZDC 6749, [2016] DCR 240.

2 Police v Forester [2016] NZDC 16010.

3 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147.

that case, the District Court Judge adopted a starting point of 18 months imprisonment, but in the High Court, Woodhouse J concluded a starting point ought to have been 12 months’ imprisonment.

[53] Other cases, such as Butler v Police, are different, clearly.4 Butler, where there was an appeal against a District Court decision to impose imprisonment. The High Court dismissed the appeal, indicating imprisonment was not inappropriate.

[54] In Police v Carr, where the defendant posted intimate pictures of the victim on Facebook and provided some text, which was insulting.5 It was held not to be at the top end for this type of offending but was comparative to Brittin and the same starting point of 12 months was adopted.

[55] The final case that I could locate was R v Millar.6 The defendant messaged the victim, saying he would put naked pictures of her on Facebook. Seven photographs were posted with no clothes, clearly showing her face. They also contained a reference which, in the vernacular used in modern times, indicated she was available for sex. The Judge considered that was significantly worse than Brittin as the victim communicated with the defendant and told him not to post, and he went on and did it. The Judge there supposed worse cases were conceivable and that the language and photos could be more explicit but, overall, held the case fell towards the upper end rather than the middle of the scale. He adopted a starting point of 18 months’ imprisonment.

[56] It is important that I recite those because I have to now say that, in my view, the facts of the current case are more serious than any of those previous cases that have been sentenced under the Act:

• (a) Here, the publications were videos rather than photos.
  

4 Butler v Police [2017] NZHC 2972.

5 Police v Carr [2018] NZDC 15609.

6 R v Millar [2018] NZDC 16646.

(b) The videos aggressively suggested the victims are paedophiles, actively seeking out underage children, which carries huge stigma and is a criminal offence, thereby insinuating that the victims were criminals.

(c) The videos were captured specifically to humiliate and out the victims to the public. While you may have thought your actions were for the public good, there is also no doubt in my mind that you intended to harm the victims rather than as the defence submitted at paragraph 39 of the sentencing indication submissions, that there was a simple reckless disregard for their safety.

(d) The videos were taken without the victims’ permission, they were aggressive, and they were harassing.

(e) The effect of the videos had a much higher chance of impacting the victims’ life beyond mere embarrassment as it could affect employment, relationships, and life in the community as a whole, due to the nature of the stigma attached to child sex offenders.

(f) The harm caused, while to a degree inherent in the charge, was as bad as it could get, with one of the victims committing suicide as a direct response to the publication, and others contemplating suicide.

(g) The final difference and aggravating factor is the videos were made and posted in an attempt at vigilante justice, based on a very flawed method of targeting people believed to have paedophilic tendencies. Many of the victims claimed to have not believed you were the young age you claimed to be in the communication.

[57] It is hard to think of a worse example of causing harm by posting digital communications. Compared to the earlier cases, posting intimate pictures out of spite, which seems to be a common theme to those ones I read before, seems a lot less serious. While those pictures may have been embarrassing and distressing, there was unlikely to be any impact on their employment or standing in the community.

[58] This case is, as I say, different, completely. Given the schedule of cases I referred to before, where intimate pictures were posted and the starting points vary between six to 18 months and were said to sit around the middle of the scale in terms of seriousness, it is clear that the current offending, if not sitting at the top of the range, should be very close to it.

[59] Sentencing at the top of the range requires me to acknowledge and refer to s 8(c) Sentencing Act 2002 which states that the Court must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate. That does not mean that the maximum penalty can only be given to the single most serious case imaginable. It must just be within the most serious of cases.

[60] The Court in R v Xie stated:7

First, s 8(c) does not confine the injunction to impose the maximum penalty to only the most serious case it is possible to imagine. That paragraph merely requires the offending to be “within the most serious of cases.” Secondly, it is always possible to think of more serious cases; if that were the test, no one could ever be sentenced to the maximum penalty, and that is clearly not the parliamentary intention.

[61] Salmon J in Joass v Police found it unclear whether s 8(c) and (d) required consideration of just a single offence or whether a series of offences may be taken into account in making a judgment as to whether the offending is within the most serious of cases or near the most serious.8 He was inclined to take the view that multiple offences could be taken into account because of the fact that totality must also be considered; however, he noted that such an approach would present difficulties if the seriousness of the offending was such that it would be appropriate to impose cumulative sentences with a total in excess of the maximum.

[62] In this case, each charge by itself would fall within the most serious of cases and therefore each would justify a sentence towards, if not at, the maximum available.

7 R v Xie [2006] NZCA 201; [2007] 2 NZLR 240.

8 Joass v Police HC Whangarei AP56/02, 13 December 2002.

[63] The issues of cumulative and totality must now be addressed. Case law has made it clear that the guidelines to concurrent and cumulative sentences, found in s 84, do not trump the overriding principle of totality found in s 85. I refer to R v O.9

[64] The total sentence must represent the overall criminality of the offending and how this total is made up, whether cumulative, concurrent, or a mixture, is a matter of individual discretion and assessment. That was the approach in R v Williams & Ors.10

[65] In the case of multiple offences, a total sentence can be given which is greater than the maximum penalty for any one offence allows; however, this can only be achieved by imposing cumulative sentences. Hughes v R, at paragraph 35.11

[66] Concurrent sentences greater than the maximum penalty cannot be imposed as they are subject to the maximum penalty provided for that offence. That is s 85(4)(a) Sentencing Act.

[67] As was said in R v Mackwood, “Sometimes, the maximum available for a particular offence may not be sufficient to mark the culpability of the offending without recourse to cumulative sentencing.”12

[68] In R v Bradley, the Court of Appeal held that while that Judge did not consider totality as he should have, the seriousness and diversity of the criminal conduct was such as to require an effective term longer than would be appropriate for the worse individual offence.13

[69] The case of R v Bradley was referred to by Holland J, in Benbow v Police, where Holland J said:14

It certainly does not amount to a proposition that the sentence for cumulative sentences should not exceed the maximum which would be imposed for the major offence among that number. Such a conclusion would be in direct contradiction to the obligation to have regard to the totality of the offending.

9 R v O CA 258/05, 3 March 2006.

10 R v Williams CA91/00, 31 May 2000.

11 Hughes v R [2012] NZCA 388.

12 R v Mackwood CA197/95, 28 March 1996.

13 R v Bradley [1979] NZLR 262.

14 Benbow v Police HC Christchurch AP 107/93, 2 July 1993.

[70] And on that, again, more recently in the case which I have recited already,

R v Xie, the Court of Appeal held at 19:

In this case, concurrent sentencing would have been appropriate, provided that concurrent sentencing could lead to an appropriate total sentence. But it could not, at least in Mr Xie’s case. In circumstances where the total sentence appropriate to the totality of the offending exceeds the maximum penalty for any one offence, cumulative sentencing must be used. This is a circumstance where concurrent sentencing is not appropriate because it prevents the implementation of the fundamental tenets of sentencing for multiple offending (referring back to R v Mackwood).

[71] The approach I have just referred to in Xie was adopted in R v Douglas and R (SFO) v Robinson where both involved multiple charges of theft by a person in a special relationship.15

[72] In both of those cases, it was held that if concurrent sentences are inadequate to reflect the totality of the offending, cumulative sentences must be applied and a starting point set that reflected the totality of the offending.

[73] The Starting point. There are two ways this offending can be viewed. It can be seen as separate offenses similar in kind but not forming a connected series of events due to their being unconnected in time and in some cases unconnected in location. If viewed as such, cumulative sentences will be appropriate.

[74] As mentioned by the Crown and Mr Thackery, cumulating all of the charges would cause a maximum sentence available to be 11 years. A sentence that high is clearly manifestly excessive and so rather than reduce each cumulated sentence to a degree that no longer reflects the seriousness of each charge, so as to reflect overall totality, a sentence of cumulative and concurrent sentencing will be adopted by me.

[75] The current offences may also be seen as separate criminal acts, similar in kind, that represent a connected series of events or a continuing course of conduct, as each victim was targeted in a similar way and were all part of the defendant’s mission to out paedophiles to the public.

15 R v Douglas [2012] NZHC 2271; and R (SFO) v Robinson [2015] NZHC 1673.

[76] When offences are of a similar and connected kind, concurrent sentences are usually appropriate but here, in this case, concurrent sentences on all matters would not provide a high enough sentence when regard is had to the totality of the offending. As I mentioned, cumulative offences may be applied to set a starting point that adequately represents the totality of offending.

[77] Therefore, regardless of whether I find the offending to be connected in a series of events or not, the combination of concurrent and cumulative sentences is utilised to achieve a sentence that is appropriate for the totality of the offending.

[78] To achieve that and assess the starting point: in respect of charge 1, a starting point of two years; in respect of count 3, a starting point of two years, cumulative on 1.

[79] Charge 1 relates to the victim who was more vulnerable, perhaps, than others, in that he had an intellectual disability from a brain injury that would have been apparent to you but you continued nonetheless. Charge 3, the cumulative sentence of two years, relates to the complainant who committed suicide. It is hard to imagine any worse case than those two.

[80] The others, I do not wish to minimise the effect on the victims, they are still in the most serious kind but not necessarily the most serious. And so, on charges 2, 4, 5, and 6, concurrent sentences will be imposed.

[81] The cumulative start point, therefore, is four years’ imprisonment for totality, looking at the totality principle.

[82] I am now obliged, in terms of Sentencing Act, to take into account your personal circumstances. I have not referred to any of that yet but that does not mean that I have ignored it and omitted, and you will receive the appropriate credits for that.

[83] I read the s 38 report that was obtained. That indicates matters which may go to explain, perhaps, why you undertook things but it does not, in any way, justify what you did.

[84] You have given me a letter today, which Mr Thackery read out, indicating that the person today is not the person who offended. I hope that is right but I must sentence you on the basis of what you did.

[85] I accept that you are receiving counselling and you will continue to receive counselling for the matters referred to in the s 38 report. That is important, that you receive that assistance. I accept, also, your age as a factor.

[86] When I look at your personal circumstances, particularly those referred to in the pre-sentence report, and factor in your age, I deduct three months for your personal circumstances, three months’ imprisonment for the youth factors. From the four year total start point, deducting six brings me to 42 months’ imprisonment.

[87] You are then entitled to a credit for a guilty plea. I think the Crown are correct that a credit of 20 percent, in terms of a decision R v Hessell, is appropriate and that is echoed by Mr Thackery, your counsel.16 I intend to give you credit for your guilty plea by reduction of a further 10 months.

[88] The end sentence is this:

• (a) In respect of count 1, you are sentenced to 16 months’ imprisonment.
  
• (b) In respect of count 3, you are sentenced to 16 months’ imprisonment. That 16 months is cumulative to the first 16 months.
  
• (c) On charge 2, 16 months’ imprisonment which is concurrent.
  
• (d) Charge 4, 16 months’ imprisonment concurrent.
  
• (e) Charge 5, nine months’ imprisonment concurrent.
  
• (f) Charge 6, 16 months’ imprisonment concurrent.
  

16 R v Hessell [2009] NZCA 450.

[89] The net result is an end sentence of 32 months’ imprisonment.

[90] I direct that a copy of the s 38 report be provided to the Parole Board.

Judge J D Large

District Court Judge

Date of authentication: 05/05/2019

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