Police v Bidder [2020] NZDC 18559 (9 September 2020)

Last Updated: 25 July 2022

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

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.html

IN THE DISTRICT COURT AT LEVIN I TE KŌTI-Ā-ROHE KI TAITOKO

CRI-2020-031-000079 [2020] NZDC 18559

NEW ZEALAND POLICE Prosecutor

v

[CAMERON BIDDER] Defendant

Hearing:	9 September 2020 [Heard at Palmerston North]
Appearances:	Sergeant M Yates for the Prosecutor D O’Neill for the Defendant
Judgment:	9 September 2020

ORAL JUDGMENT OF JUDGE D G SMITH

NEW ZEALAND POLICE v [CAMERON BIDDER] [2020] NZDC 18559 [9 September 2020]

[1] Mr [Bidder], you have been charged and pleaded guilty to two charges of causing harm by posting digital communications and two charges of offensive use of a telephone.

[2] I am told that you previously worked at [deleted] in Levin with the victims of this offending. You were part of a Snapchat group with two of the victims. You had previously been in a relationship with [a relative] of one of the victims. The behaviour which has led to these charges began about a month after the victim’s [relative] ended her relationship with you.

[3] At approximately midnight on 27 March last year you made a Facebook Messenger call to the [relative of the person] that you were having a relationship with and you stated some explicit sexual matters that you would like to occur. She recognised your voice and you ended the call.

[4] Then at about 8 o’clock on 14 October last year you made a call to the fourth victim and made a similar sort of explicit sexual statement on the phone and again your voice was recognised, and she also ended the call.

[5] Then moving to the other types of offending which is the Snapchat. On 27 October at about nine to 10 at night you sent a Snapchat image of your genitals to two of the victims and they both recognised the Snapchat account ID as your account due to having communicated with you in the past. In explanation you said: “There was no reason that it was okay, I just done it at the time, I was unaware of the consequences.” So that Snapchat to two victims led to the two other charges.

[6] The maximum penalty on each of the posting digital communications is two years’ imprisonment and the offensive use of a telephone each carries three months’ imprisonment.

[7] You have made an application under s 106 of the Sentencing Act 2002 for a discharge without conviction.

[8] The Act provides in s 107 guidance as to what the Court must do when a discharge under s 106 is sought. The section states:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[9] So, what that s 107 requires is a balancing exercise when considering whether or not to exercise the direction under s 106. Clearly s 107 considerations are a prerequisite to deciding whether or not to invoke s 106.

[10] In this case it is submitted that a s 106 discharge can be granted due to the following. You engaged in a process of restorative justice with Project Restore which is an organisation that deals with restorative justice for sexual violence. Present were a survivor specialist, an offender specialist, a facilitator, yourself and in support of you your sister. The actual victims themselves were not present but their views had been made known to the survivor specialist and she referred to their views during the course of the session that you had.

[11] The report I have which is some 14 pages long makes it clear that this was a reasonably comprehensive discussion. It finished at half past three in the afternoon, but the start time does not appear to be here. But nonetheless it certainly was a full session and talked about a number of the issues that you have had in terms of this type of offending but also your life in general. You were forced to confront your offending in that process and whilst you were unable in that session to apologise directly to the victims I am proceeding on the basis that the outcome and this report was provided to them.

[12] The second issue is that you are now [age deleted], you were [in your late teens] at the time of this offending. You have no previous convictions at all and at your start of your working life. The submission is that the lifetime negative effect on your prospects in life opportunities will be out of all proportion to the offending in question. There is concern that it will affect your ability to get employment, engaging with banks, telco providers or other institutions during the course of your life. It has been emphasised to me that you come from a family which has not had the advantages that many have and that it has been a struggle to get where you are today.

[13] The Court of Appeal in a decision of R v Hughes upheld a three step approach in considering the disproportionality test under s 107.1 The Court of Appeal in Blythe v R has held that R v Hughes is correct in that respect, however, the content of the Sentencing Act is to be considered during the residual discretion under s 106: “Because all those sections apply, not only in sentencing but also in otherwise dealing with the offender.”2

[14] In considering the disproportionality test this court must consider all relevant circumstances of the offence, the offending, the offender and the wider interests of the community. In 2002 the Court of Appeal clarified its approach in a case of Z v R where in paragraph [27] the Court said:3

...when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[15] The Court there was of the view that it would be wrong in principle to leave the personal aggravating and mitigating factors out of the s 107 analysis and to address them only in the context of the s 106 discretion. The proportionality analysis required by s 107 cannot be carried out without taking into account an offender’s personal, aggravating and mitigating circumstances. The Court also pointed out the precise point at which these factors are considered, whether at the first or third step of analysis is immaterial, what is important is that all relevant factors are considered in the s 107 context.

[16] So, the first step I have to do is to identify the gravity of the offending in its particular factual context considering all the aggravating and mitigating factors relating to the offending and to you the offender. Examples of what may constitute personal, aggravating and mitigating features include injuries suffered by a victim,

1 R v Hughes [2008] NZCA 546.

2 Blythe v R [2011] NZCA 190.

3 Z v R [2013] NZAR 142.

whether the offending was an isolated incident, the age of the victim, age of the defendant, that is you, whether you have previous convictions, whether there was a prompt entry of a guilty plea, expressions of remorse and participation in a restorative justice conference.

[17] Ultimately this court must consider the gravity of the offending committed by the person in the particular case before the court not the gravity of other cases involving the same offences. The Court is then able to assess whether the offending is minor or serious.

[18] Factors which identify the gravity of the offence including the nature of the offence, the circumstances of the commission of the offence and the matters occurring after the offence in the present case are that the offending took place in a workplace context. You had had a personal relationship with the [relative] of one of the victims, but your offending in relation to these victims was primarily driven by the fact that you were on a Snapchat connection with them. Given that one of them was the [relative of the person] that you had had a relationship with at one stage there is an incongruity as to why that offending took place and that then leads into the consideration of what led to this type of offending.

[19] In the restorative justice process which took place those issues were explored at some length with the professional facilitators that were available to you. You appear to have had an interest in pornography as a source of sexual release and that appears to have mis orientated your approach to matters of this nature. You have been forced in the process of that restorative justice context to confront those matters. This is against a background, in your case, of coming from a low socioeconomical home without the resources available to you that would be perhaps found in others who were in better circumstances.

[20] The offending had consequences in terms of distress for the victims. One of the strong points though which assists you in this application is that their concern primarily was to see that you can get some help and that you do not carry out this behaviour again. One of them has noted that prior to this occurring you were a well-

liked young man and there was shock when it was learnt that you had engaged in this type of behaviour.

[21] The offending is serious in the sense of the inappropriateness of what has occurred, but you are fortunate that the harm caused to the victims was not huge, it was more a concern for you rather than for themselves. Fortunately, they are old enough to be able to handle it in a sensible way, if the people involved had been younger you could have caused some irreparable harm.

[22] The second step is that I must identify the direct and indirect consequences of a conviction. It is not necessary that the identified consequences would inevitably or probably occur, it is sufficient the Court comes to a judicial decision that if there is a real and appreciable risk that such consequences would occur, and I refer to Iosefa v Police.4

[23] At this stage you do not have a career mapped out in front of you, you essentially have a blank page which you need to fill. Where your future life will take you could involve travel, it could involve work in an industry where you will be precluded from working because of convictions for matters such as this. What is certain is that at your age convictions of this nature will have an effect on your prospects if and when it becomes known to people that you are working for or with. What you will be required to do is to be honest about the charges being laid should you be asked. It is not the same as having a conviction, it is so that the person employing you is not taking you on false pretences. Clearly travel to some countries overseas will be prohibited if you have these convictions. Those consequences need to be out of all proportion to the gravity of the offending.

[24] Having assessed the gravity of the offence I need to consider whether the direct and indirect consequences are out of all proportion and I may not grant a discharge unless I am satisfied that those are out of all proportion.

4 Iosefa v Police (HC Christchurch CIV-2005-409-64 21 April 2005 Randerson J) at [34]

[25] My assessment is this. The matter has best been dealt with by way of the restorative justice process which has taken place. That you at this young age of your life need to have a clean sheet in terms of offending to enable you to make some progress in life. You need to take the time to ensure that you get whatever help you need to ensure that this does not occur again. If you do not, then the consequence will be that all the hard work that has been done in assisting you in this case will be lost.

[26] In my assessment convictions for this type of offending, given the particular nature of them and the particular victims involved, would be out of all proportion.

[27] I am required then to decide whether a discretion should be exercised, as I have referred to in Blythe v R it is unlikely that where it is found to be out of proportion that the Court will not discharge when that criteria is met.

[28] I am prepared to discharge you without conviction on each of these four charges. I have taken into account the following matters that are significant. Your socioeconomic background, the fact that you came from a fractured family. Your father was violent with your mother in your presence, you have had a particularly difficult upbringing in that regard, and you have not been able to develop properly relationships with other people which would have avoided this type of offending. You have now got a mentor and that I urge you to ensure that you continue to have the benefit of his advice while you start to make your way after this.

[29] I do not believe that there is any public interest in this matter which would prevent me from exercising my discretion. There would be a general kickback from people saying that when there are sexual matters involved that there should be some form of retribution. I see this more as a developmental issue with your development as opposed to a criminal intent. I am referring it in that way as the victims have dealt with it in that way also.

[30] Having decided those matters, you are discharged without conviction on each charge.

[31] There will be name suppression of all persons involved in these matter otherwise the benefit of this discharge is lost.

Judge D G Smith

District Court Judge

Date of authentication: 15/09/2020

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