Police v Leach [2021] NZDC 10856 (31 May 2021)

Last Updated: 12 March 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 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

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

IN THE DISTRICT COURT AT TAUPO I TE KŌTI-Ā-ROHE KI TAUPŌ-NUI-A-TIA

CRI-2020-069-000982

[2021] NZDC 10856

NEW ZEALAND POLICE

Prosecutor v

[KIERAN LEACH] Defendant

Hearing:	31 May 2021
Appearances:	Sergeant T Morgan for the Prosecutor M Kirkeby for the Defendant
Judgment:	31 May 2021

NOTES OF JUDGE R L B SPEAR ON SENTENCING

[1] [Kieran Leach], you are for sentence today having pleaded guilty to four charges of posting a digital communication, specifically intimate photographs of a woman, knowing that this would cause harm to that woman. These charges carry a

NEW ZEALAND POLICE v [KIERAN LEACH] [2021] NZDC 10856 [31 May 2021]

maximum penalty of two years’ imprisonment. Regrettably, this is a type of offending that has become all too prevalent.

[2] You take no issue with the summary of facts. It explains that you were in a relationship with this woman, the complainant, for a period of time and, indeed, had plans to make the relationship more permanent. During the time that you were with the complainant, intimate photographs were taken and recorded digitally. There is no suggestion that this was other than consensual on both of your parts.

[3] I say now that there is an order suppressing from publication the name of the complainant and any particulars that might lead to her identification. Additionally, the facts of the offending as detailed in the summary of facts are suppressed.

[4] To put it bluntly, the images were of a highly intimate nature and publication of them would clearly have been appreciated by you to cause a great deal of distress to the complainant.

[5] I said that the photographs were taken consensually and there is no suggestion that that was other than the case and there is nothing unlawful about taking photographs of that nature, although it comes with a real risk.

[6] I make no criticism of the complainant but it is necessary for this Court to sound a very clear warning to those who wish to have intimate images taken that the risk is that there is no absolute safeguard against misuse, and the risk is ongoing, particularly once the images are uploaded on to the Web or a social media site. Then it is virtually impossible to expunge the images.

[7] This case needs to be seen as a warning, not just to those who might contemplate misusing intimate images they have taken of others, but to those who might contemplate allowing intimate images to be taken. As I have said, it is not illegal to take these photos, as they say “whatever floats your boat”, but the risk that people run of being harmed in this way by images being taken digitally is substantial, as has been evident in this case.

[8] Now, these images were published by you on four separate occasions through January and February, then April through to September. The harm that was done is set out very, very exactly by the complainant in her victim impact statement. She explains that she is a strong and resilient person but this has knocked her confidence, particularly as it came from a man whom she not only trusted but in fact had the intention to marry prior to the parting of the ways. She is concerned that this offending is going to follow her, the threat that images might pop up at any time is going to follow her for the rest of her life and that can be well understood.

[9] So, while there is nothing unlawful about having intimate images taken, there are real issues around the safeguarding of those images and the risk that people run if they do not secure them.

[10] You are [deleted] years of age and you have no previous convictions. You are in good employment [in location deleted]. You are remorseful, by all accounts. You are well regarded by others with whom you work and who know you. You are in a new relationship with a woman who has a child and, clearly, it is your hope to put this behind you and move on with your life. Of course, the complainant does not have the confidence that she can do that.

[11] You were prepared to go to a Restorative Justice conference, but the complainant declined to meet with you, and one can understand her attitude in that respect. You offer reparation of $1,000 as a contribution towards the harm that you have done her. That, of course, is really a token gesture considering the degree of harm that you have caused to her and continue to cause her. Initially, I was going to decline to make that order because it had not been discussed with the complainant and I was concerned that it might cause her offence. But, in the end, it is something, and so I will be making that order.

[12] In the pre-sentence report, and also in your letters, you have explained that when you did post these images you were not in a good state of mind. You had had that horrific experience in [country deleted], and you have had mental health issues that have also seen you in the [Centre name deleted] on one occasion. I can tell you now that because there have been these mental health issues, which in some way go

to explain why someone with a clean record has committed horrible offending like this, that is the only reason you are not going to prison today.

[13] When I started to prepare this sentencing case, I considered that a starting point of 24 months’ imprisonment was appropriate. You pleaded guilty at the first available opportunity and you are entitled to full credit of 25 per cent for that. There are the mental health issues. There is your remorse which I accept is genuine, evidenced by your pleas of guilty, by your offer of paying reparation and, also, you have no previous convictions and are otherwise considered of good character. That justifies a further 25 per cent discount which would have brought me down to a sentence of 12 months’ imprisonment.

[14] It is because of that mental health issue that I am prepared to move to home detention. There is a need for offending of this nature to be denounced with emphasis. There is a need for you to be held fully to account for what you have done, and there is a need for people who hear about this case to understand that they run the real risk of going to prison if they publish intimate images of another person.

[15] For all these reasons, you are sentenced to six months’ home detention. That will start today. The address is [deleted]. You are subject to standard post-detention conditions and special post-detention conditions for six months after your detention end date.

[16] The conditions relating to home detention are a little more extensive than set out in the pre-sentence report. Those special conditions were to undertake any counselling programmes or treatment that your probation officer considered, and not to possess, consume or use any alcohol or drugs not prescribed to you. I impose a further condition that you are not associate with or have contact directly or indirectly with the complainant.

[17] Those will be the post-detention conditions as well, to complete any programmes and not to associate with the complainant.

[18] You will pay reparation of $1,000 at the rate of $200 per fortnight. The first payment is to be on 14 June 2021.

[19] Mr [Leach], you have come very close to going to prison today for this horrible offending and I hope you are thoroughly ashamed of yourself for what you have done.

Judge RLB Spear

District Court Judge

Date of authentication: 01/07/2021

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