Department of Internal Affairs v Abraham [2021] NZDC 12877 (29 June 2021)

Last Updated: 28 April 2022

IN THE DISTRICT COURT AT NEW PLYMOUTH I TE KŌTI-Ā-ROHE KI NGĀMOTU

CRI-2020-043-001457 CRI-2020-043-002058

[2021] NZDC 12877

DEPARTMENT OF INTERNAL AFFAIRS DEPARTMENT OF CORRECTIONS

Prosecutors v

DAVID GEOFFREY ABRAHAM Defendant

Hearing:	29 June 2021
Appearances:	G Milne for the Prosecutor Department of Internal Affairs N Bradley-Archer for the Prosecutor Department of Corrections N Laird for the Defendant
Judgment:	29 June 2021

NOTES OF JUDGE G F HIKAKA ON SENTENCING

[1] Mr Abraham, you are 48 years of age. You are for sentence today on 13 charges. Twelve of the charges are under the Films, Videos and Publications Classification Act 1993. Three of them charge that you distributed objectionable publications using various digital platforms. Nine of the charges relate to you being in possession of objectionable publications.

[2] The final charge is that you breached release conditions by entering an area you were prohibited from entering without prior written approval of your probation officer. It appears, by way of clarification received this morning, that you went to your mother’s address and your mother lives within an area that makes access

DEPARTMENT OF INTERNAL AFFAIRS v DAVID GEOFFREY ABRAHAM [2021] NZDC 12877 [29 June 2021]

to schools and such other places children frequent. That was essentially what that condition was aimed at; in other words, keeping you out of those sorts of areas.

[3] The most concerning of the charges you are to be sentenced on is the distribution of objectionable material. Those charges, and they are all representative, carry a maximum penalty of 14 years’ imprisonment. The nine charges of possessing such material carry a maximum penalty of 10 years’ imprisonment. Breach of release conditions has a maximum penalty of one year’s imprisonment.

[4] I have considered the law and submissions with reference to impact on victims, your previous convictions, the advice to court report, the s 27 of the Sentencing Act 2002 report, letters that you have written to the presiding judge, police and Internal Affairs, correspondence from your alcohol and drug counsellor, a letter you wrote to your counsel advising of the progress you have made during your time remanded in custody, documents relating to The Bible correspondence courses you are undertaking, and information regarding the nine counselling sessions you had undertaken at the time the report relating to them was dated. That report refers to your improving mental health, that you have been involved with cognitive behavioural therapy and dialectical behaviour therapy. A lot of those documents relate to things you have done while remanded in custody.

[5] There is also a document attached to your counsel’s submissions indicating at today’s date you have spent 202 days remanded in custody on these charges.

[6] Sentencing is a two-step process, Mr Abraham. The first step is to look at the offending itself, the aggravating and mitigating features of it, identifying the lead charge and recognising that there is more than one charge to deal with. The second step is to consider your personal circumstances and any aggravating or mitigating factors as they relate to you.

[7] The law refers to the purposes and principles of the Sentencing Act 2002 and factors that have been identified as aggravating and mitigating. I have also been referred to cases that have provided some sort of guidance with respect to appropriate sentencing levels for these sorts of charges, though it is acknowledged there is no tariff

case as such. It is also acknowledged that the general approach is to take a global approach to this sort of offending.

[8] The most serious of the charges, as I have noted, are the three for distributing objectionable material. One of those charges refers to you sending seven images in a video file. The victims were aged between four and 12 years. They were female victims. Some were posing in sexually provocative poses. There are also images of penetration of these children by adult erect penises either orally or genitally. With one of the charges, you received a message from a person you had sent the images to. You received a positive comment in response to you providing those images. You replied to that comment with the comment: “Always looking to please others,” with a smiley face emoji at the end of that comment.

[9] The second of those three charges referred to you having a registered account on your mobile device and sending 15 images. This time, males and females aged between four and 12 years, again, penetration by adult erect penises.

[10] The final of those three charges refers to two images that you sent.

[11] The possession of objectionable material charges. There is a particularly concerning one. You used various social media platforms and Internet sites and again, the most serious of the objectionable material in line with the United Kingdom sentencing guidelines. Those guidelines categorise particular types of images as A, B or C and 40 per cent of the images you were dealing with over the time of your offending from September 2018 through to August 2019 were Category A. Those are images involving penetrative sexual activity or images and/or images involving sexual activity with animals or sadism. Those UK guidelines have been adopted as useful guidelines by the New Zealand Court of Appeal in R v Zhu.1

[12] The concerning feature of your offending is that the images involved exploitation of the children. The worst was the sexual torture of an 18 month old female child. The concern is for the vulnerability of these victims and the impact on them is immeasurable. By distributing the material you are seen as one who had

1 R v Zhu [2007] NZCA 270.

encouraged that sort of behaviour, further offending of others and the ongoing abuse and exploitation of children.

[13] It has been made clear that the impact on children is significant. There has been reference in the prosecution submissions from a UK-based expert on sexual offending, Michael Sheath. No issue has been taken with the comments attributed to Mr Sheath and the damage caused to children who are sexually abused, the stigmatising that comes their way, their difficulty in trusting people because of the way they have been betrayed, their premature sexualisation and their disempowerment. The production of images is said to amplify the trauma of the abuse, and what might have started out as a private and time-limited shame, becomes public shame and stigma that has no end.

[14] With respect to the seriousness of the charges, the prosecution have referred to a comment of his Honour Priestley J in Waugh v New Zealand Police where his Honour, and I am paraphrasing, says the seriousness of the offending of this type is not to be minimised.2 He goes on to refer to people who choose to download the images in the privacy of their own home, far from being repulsed and disgusted, are instead gratifying their serious sexual deviancies and they tend to obscure the fact that the production of objectionable materials relies on the exploitation and defilement of children. Probably on the other side of the world, vulnerable children are being exploited for commercial gain and the possessors of such material may be remote in time or place, but their deviancy fuels the demand.

[15] If you were under any illusions with respect to the seriousness of the offending you should not be under such illusions any longer. Obviously, with respect to the ages, children aged 18 months through to 12 years of age, are all vulnerable.

[16] Your online behaviour would indicate that you actively searched for images that showed a particular deviant approach to this sort of behaviour and just the names of the Internet sites you accessed is enough of a clear indication of what you anticipated finding there. Terms such as “paedophiles”, “daddy it hurts” and “kidnapped”.

2 Waugh v New Zealand Police HC Auckland CRI-2010-404-178, 15 October 2010 at [22].

[17] I mention those in particular because you have a very long history of offending before the courts, including two previous convictions for kidnapping. A number of your previous convictions indicate that you can be violent, threatening and dishonest. When I consider some of the information provided with respect to the type of sites you were accessing, they tend to present an ongoing type of behaviour. That view is available to someone considering your situation by way of the 151 previous convictions you have from 1989 through to September 2020.

[18] I have already referenced the type of images and material, the possessing or distributing to show the serious nature of the acts and offending. I have already referred to the September 2018 through to August 2019 duration and frequency of your offending. There are quite a number, 44 images uploaded to your Instagram. The prosecution submit that this is a repeated course of conduct throughout this particular offending you are to be sentenced on.

[19] The prosecution get to the point of assessing your overall culpability as moderately serious and, again, referring to 40 per cent of the images concerned in this offending relate to Category A as per the UK guidelines.

[20] There is no issue with respect to the cases that have been referred to reliance on them by way of guidance. The main one that is most closely related is the Department of Internal Affairs v Stainger.3 That is similar to the charges you face: one for possession of images, three for distribution, whereas you face nine of possession and three for distribution. There were 315 images there. In your case, 268 and the prosecution say that the start point there was four years and yours should be four and a half.

[21] Your counsel distinguishes that case by saying, while it was similar in nature to your offending, it was a larger collection over a longer period of time and there was reference in the case to a large number of images that had been deleted. But nonetheless, using that case and other aspects of what has been said in support of you, your counsel says the start point should be three and a half years.

3 Department of Internal Affairs v Stainger [2018] NZDC 1679.

[22] The main departure point is the end sentence. Your counsel is submitting that as a result of the steps you have taken while remanded in custody, your personal circumstances and the remorse that you have expressed, you should get to about a 23 months’ prison sentence and you would seek leave to apply for home detention.

[23] The prosecution take a different approach and have an end sentence of imprisonment outside an electronically monitored range. But recognising that the point they got to, which was a start point of four and a half years, you would be entitled to a maximum discount of 25 per cent for your guilty pleas.

[24] With respect to where to pitch the start point on a principled basis, section 8(b) refers to the seriousness of the type of offending as indicated by the maximum penalty. Section 8(c) refers to imposing the maximum within the most serious of that sort of offending unless it is inappropriate because of the person’s circumstances or near the maximum for near the most serious. So when the prosecution say it is moderately serious, I would have to agree, but toward the upper end of moderate.

[25] The essence of the charges themselves for offending over 11 months, included a variety of devices and social media platforms and other Internet platforms to access what you were accessing, downloading it, and on three occasions distributing it and holding onto images – so having them in your possession. There appears an approach that the courts have moved away from just focusing on quantity of offending items and more toward looking at the nature of the offence of possessing and distributing objectionable material.

[26] The most concerning ones are the three of distribution and they have a maximum penalty of 14 years. The halfway point would be seven. I do not go to the halfway point but move a little from that to see five years as the start point for the distribution charges.

[27] In my view, you have a high level of culpability and the search of the sites that I have already referred to tend to be reflected in the nature of some of the convictions and there are a significant number of convictions that you bring to this process, albeit these are the only convictions you will have for this sort of offending.

[28] With respect to the possession of images, I see that as a start point of two years’ imprisonment. The maximum discount for an early guilty plea is available to you.

[29] Your personal circumstances are a childhood that was marked by abuse, both physical and sexual, early involvement with alcohol and drug abuse in your own life and a series of circumstances or situations in your upbringing that you did not ask for. You were born into a lot of that and have suffered as a result. That said, your lengthy history before the courts and a variety of responses to your offending have failed to make a connection for you with respect to self-management in a way that you will be offence-free in the future.

[30] You have made all sorts of positive comments, including expressions of remorse and the various processes you have been involved with while remanded in custody. I have not overlooked those. When it comes to remorse, such a well-established history of behaviour, Mr Abraham, coupled with the nature of this offending and also the comments made to the probation officer during the time you were interviewed, led the report writer of the advice to court report to indicate your remorse has more to do with the situation you now find yourself in. Indeed, that “his remorse is not evident.”

[31] That comment has been informed by your counsel’s submissions that it was a half hour interview with a probation officer. A lot of the time was spent talking about potential home detention addresses and that you did not really have an opportunity to open up to the report writer in the same way that you did open up to the person who provided the s 27 report. Within that report is a lot of detail about the negative circumstances of your upbringing, including reference to ACC counselling that you did begin at some time in the past but did not continue, but you have since recommenced, I am told.

[32] I have not overlooked the reports, Mr Smith, of the alcohol and drug counsellor, Dr Jones, the psychiatrist, the chaplain, the involvement you have had with the chaplain and your passionate view about following a good path made available through access to your bible studies.

[33] All that, your personal circumstances and the steps you have taken and whatever can be accorded to you for remorse, I allow a total of 15 per cent discount. That gets to four years and three months.

[34] I accept that a global approach is appropriate and see a further discount to get to a final sentence of three years and nine months’ imprisonment.

[35] The next issue. Because of that end sentence, this issue is defunct, you will be registered on the child sex offender’s register.

[36] The final point is one that was raised with your counsel by you last week for final name suppression. You wrote a letter to support that instruction to your counsel advising that your mother is not in a good state of health. Further information indicated she has respiratory and mental health issues. There is also a concern that publication of your name would wreck her personal circumstances.

[37] The prosecution oppose that application. It is one that has been made at the last minute without any evidence to support it. Two approaches have been suggested. First, that interim suppression of your identity details could be ordered at this point to give you a chance to provide evidence in support of your application. The second approach is presumably to grant the application now.

[38] The one that I am more in favour of in light of the nature of the application, its timing, the criteria that need to be satisfied, the fact that there is no evidence in support of the application and, indeed, that it would appear on the face of it a limited likelihood of success given that I would need to be satisfied that publication would cause extreme hardship to yourself or any person connected with you, I will not grant the application.

[39] The third approach that you have now got to is that you can appeal that decision if that is your wish.

[40] I must say, part of the purposes and principles of the Sentencing Act that the sentence should assist with, is not only holding you accountable for the harm caused to the victims and the community, encouraging you to accept responsibility for the

harm but you have done that through your guilty plea, so there is no issue there, but there is denunciation and deterrence. Particularly for those who distribute material of this sort. I am not sure whether those you distributed the material to have been called to account. But clearly, some of the comments referred to in the summary of facts and the nature of the exchanges you had with people you have shared material with would indicate the need for deterrence is high. And therefore, if those people you have provided material to are aware of the outcome of you being apprehended and convicted for such offending, then the deterrence factor will be more meaningful in your case and that would be thwarted by suppressing your identity details.

[41] The final issue is the destruction of the laptop and mobile phone, as well as whatever images were seized as a result of the prosecution, which I order.

[42] The probation charge, that will be six months’ imprisonment.

Judge G F Hikaka

District Court Judge

Date of authentication: 06/07/2021

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