Petersen v Department of Internal Affairs [2014] NZHC 2024 (25 August 2014)

Last Updated: 1 September 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-61 [2014] NZHC 2024

BETWEEN	RAYMOND CHARLES PETERSEN Appellant
AND	DEPARTMENT OF INTERNAL AFFAIRS Respondent

Hearing:	29 July 2014
Counsel:	S Pettett and K F Preston for the Appellant W S Taffs and T M Badland for the Respondent
Judgment:	25 August 2014

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Petersen pleaded guilty to possession and distribution of objectionable material.¹ He was sentenced to seven and a half months imprisonment on both charges. He appeals against his sentence on the ground that it is manifestly excessive. The principal issue on this appeal concerns whether the Judge erred in rejecting United Kingdom sentencing guidelines for offending of this kind. Had the guidelines been followed Mr Petersen would have received a lesser sentence.

The offending

[2] Mr Petersen made 753 images available to internet users via a file sharing programme.² All of the images depicted young girls. Around 630 of them would be

_{classified as objectionable. Those images are photographs of girls aged between 10}

¹ Possession of objectionable publications involving knowledge: Films, Videos and Publications Classification Act 1993, ss 131 and 131A; distribution of objectionable publications involving knowledge, ss 123(1)(d) and 124.

² _{The summary contains little other detail of what was involved.}

PETERSEN v DEPARTMENT OF INTERNAL AFFAIRS [2014] NZHC 2024 [25 August 2014]

and 14 years old, in highly sexualised poses and with many exposing the anus or genitals of the girls. The images are in what is called the “Lolita” style, whereby the girls are heavily made up and are photographed in contrived situations.

[3] The images were accessed online and downloaded by the Department of Internal Affairs (the Department). The Department obtained Mr Petersen’s details from his internet service provider and executed a search warrant at his address. Pursuant to that search 168 images of a similar kind were found on Mr Petersen’s laptop.

[4] The distribution charge relates to the downloading of images by the Department via the file sharing programme. The possession charge relates to the images on the laptop.

The offender

[5] Mr Petersen is 47 years old. He has no previous convictions. He was cooperative during the search of his home and directed the investigators to his laptop, where the images were located. He pleaded guilty at the first opportunity.

[6] In her pre-sentence report, the probation officer said that Mr Petersen claimed to have downloaded the files out of curiosity, that he said he was unaware of their contents at first, and that he unsuccessfully attempted to delete them. The probation officer also reported that Mr Petersen expressed immense remorse, deeply regretted his actions and was deeply ashamed. Mr Petersen indicated a willingness to undertake an assessment to determine his suitability for treatment. He was assessed as suitable for home detention.

District Court sentence

[7] Mr Petersen was sentenced in the District Court.³ In assessing the gravity of the offending the Judge commented as follows:

[7] Those who produce such images are sexually abusing those girls for their own commercial gain or their own sexual gratification. Those such as

³ Department of Internal Affairs v Petersen DC Porirua CRI-2014-091-737, 4 July 2014.

you, who view and share such images, are complicit in that abuse; you are part of it. By viewing and sharing, you create a market and perpetuate the abuse of these children.

[8] The damage to young people who suffer such exploitation is very substantial and long-lasting and has a huge impact on societies. Involvement in this exploitation, at whatever stage, is to be condemned in the strongest terms, and deterrence is the primary purpose of sentencing for such offending.

[8] In relation to guidelines from the United Kingdom the Judge said this:

[9] The widespread nature of child sexual abuse is perhaps more obvious now than it was even in 1992,⁴ when the United Kingdom sentencing guidelines were published. The Court of Appeal in New Zealand regarded those guidelines in 2007 as a useful guide and no more. The United Kingdom in 2014, this year, has issued further guidelines. Those penalties seem to me to be an inadequate response. The range even for distribution of images, such as in this case, on those guidelines range from high level community orders to six months’ imprisonment. There is no guideline judgment in New Zealand.

[9] The Judge noted that the informant proposed a starting point of 12 months imprisonment. He commented that this was lower than what he would regard as appropriate. However, noting the need for consistency with other sentencing decisions, he decided on a starting point of 12 months imprisonment.⁵ He reduced that to 10 months imprisonment because Mr Petersen was a first offender. He further reduced the sentence to seven and half months imprisonment for Mr Petersen’s guilty plea and his cooperation with the investigators.

[10] The Judge declined to impose home detention. He noted that the primary purpose of sentencing for this offending was deterrence. He considered that home detention would not serve that purpose and was inappropriate for this offending.

[11] Special conditions were imposed for six months from the sentence end date. These conditions prevent Mr Petersen from possessing any internet-capable electronic device without the prior written approval of the probation officer; require

_{him to attend an assessment for Wellstop and to complete any other counselling,}

⁴ Counsel for both parties agree that this date is an error. The United Kingdom guidelines arose from a 2002 report of the Sentencing Advisory Panel that was discussed and approved in R v Oliver [2002] EWCA Crim 2766. R v Zhu [2007] NZCA 470 and Harding v Department of Internal Affairs HC Hamilton CRI-2008-419-05, 29 October 2008, it seems erroneously, refer to

_{1992 rather than 2002.}

⁵ No specific reference was made to any comparable case.

treatment or programme as directed by the probation officer; and forbid him from having contact with any person under 16 years of age except in the presence and under the supervision of an Approved Informed Adult (that is, a person who is pre- approved in writing by the probation officer).

The starting point

United Kingdom guidelines

[12] There is no New Zealand guideline judgment for offending of this kind. There are guidelines in the United Kingdom. These were issued in 2007⁶ and were updated in 2014.⁷ The 2014 guidelines divide offending into three categories as follows:

[13] Once the appropriate category is determined, an appropriate starting point is chosen within the range for that category as set out below:

⁶ Sentencing Guidelines Council “Sexual Offences Act 2003 – Definitive Guideline” (April 2007)

<sentencingcouncil.judiciary.gov.uk>. See also Sentencing Advisory Panel The Panel’s Advice to the Court of Appeal on Offences involving Child Pornography (Sentencing Advisory Panel, London, 2002) and R v Oliver, above n 4.

⁷ Sentencing Council for England and Wales “Sexual Offences – Definitive Guideline” (1 April

2014) <sentencingcouncil.judiciary.gov.uk>.

[14] The offending in this case would fall within category C. For the possession charge the starting point under these guidelines would be a high level community order. With adjustment for aggravating and mitigating factors, the sentencing range would be a medium level community order to 26 weeks custody.⁸ For the distribution charge the starting point would be 13 weeks custody and with adjustment for aggravating and mitigating factors, the sentencing range would be a

high level community order to 26 weeks custody.

[15] The 2007 guidelines had five categories, rather than three. The least serious of the categories included “images depicting nudity or erotic posing, with no sexual activity”. Under those guidelines the starting points and sentencing ranges for the present offending were similar but a little below the starting points and ranges set out in the 2014 guidelines: for the possession charge the starting point and sentencing range was a community order; and for the distribution charge the starting point was

12 weeks custody with a sentencing range of 4 to 6 weeks custody.

New Zealand approach to UK guidelines

[16] Our Court of Appeal has commented that the work of the Sentencing

Guidelines Council in the United Kingdom, which issues the sentencing guidelines, has been influential in the approach to sentencing in this country.⁹ In sentencing for

⁸ The aggravating factors include those relevant to the offending (for example if the children depicted are young and vulnerable or suffering pain and distress, and the period over which the images were possessed) and to the offender (for example, the offender was on bail or has previous convictions).

⁹ R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [18].

other kinds of offending the guidelines have been regarded as providing a useful reference point.¹⁰ In relation to the 2007 guidelines for offending of the present kind, the Court of Appeal consistently has said they are a “useful guide” in cases involving child pornography¹¹ and it has encouraged trial judges to use them in that way.¹² High Court decisions have followed this direction.¹³

[17] In light of this direction from the Court of Appeal and the approach taken in the High Court, District Court sentencing for this kind of offending should be guided by the United Kingdom guidelines. The use of the guidelines, in the manner encouraged by the Court of Appeal and as applied in the High Court, helps to ensure

consistency in sentencing.¹⁴ If the guidelines are not to be given weight in a

particular case there should be a particular feature of the case which justifies that approach.

[18] Counsel for the respondent notes that the 2014 guidelines have not been considered by the Court of Appeal. He questions whether they still offer appropriate guidance in the New Zealand context. He does not point to any reason why they are inappropriate for the present type of offending. Advances in technology are universal and there is no reason to think that our societal values are now different.¹⁵

Unless and until the Court of Appeal indicates otherwise, the 2014 guidelines should

_{be considered a useful guide.}

¹⁰ _{R v Davidson [2008] NZCA 484 at [24], dealing with s 131B of the Crimes Act 1961.}

11. R v Zhu, above n 4, (referring to the Sentencing Advisory Panel’s report in 2002, above n 6, which later influenced the 2007 guidelines issued by the Sentencing Guidelines Council, above

n 6); R v Henderson [2008] NZCA 305 at [10]; R v Clode [2008] NZCA 421, [2009] 1 NZLR

_{312 at [52]; and S v R [2011] NZCA 324, [2011] 3 NZLR 606 at [31].}

¹² _{R v Clode, above n 11, at [52]; S v R, above n 11, at [31].}

¹³ Harding v Department of Internal Affairs, above n 4; Barnes v Police [2013] NZHC 3510;

Thompson v Police [2012] NZHC 2029; Doran v Police [2012] NZHC 468; Stevens v Police HC Wellington CRI-2008-406-007, 15 July 2008; Department of Internal Affairs v Wigzell HC Wellington CRI-2007-485-110, 20 November 2007. Compare with Clark v Police [2013] NZHC 141, where the Judge considered there were reasons for departing from the guidelines in that case.

¹⁴ _{Sentencing Act 2002, s 8(e).}

¹⁵ Harding v Department of Internal Affairs, above n 4, at [31].

The Judge’s approach in this case

[19] In the present case the District Court Judge rejected the 2014 guidelines because “those penalties seem[ed] to [him] to be an inadequate response”.¹⁶ In my view he was incorrect to do so. In so doing he has not followed the Court of Appeal’s direction that they are a “useful guide”.

[20] The guidelines were particularly useful in this case. That is because it seems that there are no High Court or Court of Appeal decisions which have specifically considered offending involving solely category C (under the 2014 guidelines)/category 1 (under the 2007 guidelines) material.¹⁷ The Judge was not therefore assisted by any such cases to assess where the offending before him might fit as against other offending of this kind.

[21] As counsel for Mr Petersen submits, that the Judge’s rejection of the UK

guidelines has led to a manifestly excessive sentence, is illustrated by Ibbetson v R.¹⁸

That case concerned possession of 13 movie files on Mr Ibbetson’s computer which featured girls, between three and 14 years old, being sexually violated by men. There was also one charge of distribution for making a video available to internet users via a file sharing program. A starting point (and end sentence) of 12 months imprisonment was adopted. The nature of the material in that case made the

offending distinctly more serious than in the present case.¹⁹

The starting point in this case

[22] The lead offence here is the distribution charge. It relates to one instance of distribution, that being the download by the Department from the file sharing

_{program. An aggravating factor is that the images were easily accessible by anyone}

¹⁶ _{Department of Internal Affairs v Petersen, above n 3, at [9].}

17. Counsel for both parties cited a number of cases. None of them involved images solely in category C/category 1. They were all more serious than the present case.
18. Ibbetson v R [2011] NZCA 228. The appeal against sentence concerned whether home detention should have been granted. The Court of Appeal rejected that appeal.

¹⁹ The images were inspected by the District Court Judge in the present case to enable him to

assess the gravity of the offending. They were also made available to me on this appeal. I considered it appropriate that I also view them given that I have reached the view that the Judge was in error in rejecting the UK guidelines as inadequate. I have accordingly done so. Whilst certainly abhorrent because of the exploitation involved and its harmful consequent effects, there is nothing in particular to take these images outside of category C of the 2014 guidelines.

with an internet connection and a wish to access them. There is also the possession charge. There are no other particularly aggravating features. For example, the girls are not at the youngest end of the spectrum and the number of images is not especially large. There is no evidence of other aggravating factors.²⁰ In light of these matters I consider the appropriate starting point was 6 months’ imprisonment. There were no personal aggravating factors to uplift the sentence further.

Discount for remorse

[23] The Judge allowed a total discount of four and a half months (approximately

37 per cent) because Mr Petersen was a first offender, had entered an early guilty plea and cooperated with the Department. Counsel for Mr Petersen submits that a further discount should have been allowed for remorse. The main concern is the Judge’s reference to Mr Petersen’s explanation for the offending as referred to in the pre-sentence report. The Judge viewed that as an attempt to minimise the offending. Mr Petersen considers the probation writer may have taken his comments out of context and his counsel sought to clarify this at the sentencing.

[24] In my view no error is shown in this respect. The Judge took into account all relevant mitigating factors. Irrespective of whether Mr Petersen claimed to have found the images inadvertently, the discount of 37 per cent for all mitigating factors was appropriate. Applying that discount here would mean an end sentence of just under four months imprisonment.

Home detention

[25] Counsel for Mr Petersen submits that the Judge was wrong to reject home detention. I agree. It is not the case that home detention is never appropriate for this kind of offending. While the trend of the authorities is against home detention those

_{authorities involve more serious offending than here.}²¹ _{Counsel refers to two}

²⁰ See, for example, the list of aggravating factors in the 2014 guidelines: Sentencing Co uncil for

_{England and Wales, above n 7, at 78.}

²¹ Harding v Department of Internal Affairs, above n 4, at [11]; Thompson v Police, above n 13, at [21]-[26]; Ibbetson v R, above n 18, at [47]-52]; Hulme v R [2012] NZHC 86 at [38]- [41]; Doran v Police [2012] NZHC 468 at [25]- [28]; Waugh v Police HC Auckland CRI-2010-404-178, 15

October 2010 at [39]-[40].

examples where home detention has been ordered.²² In each of those cases conditions were imposed to address the risk of reoffending in the home.²³ Mr Petersen is a first offender, his offending was not at the most serious end of the spectrum for this type of offending, and there was no reason to consider that he

would not comply with home detention conditions.

[26] Mr Petersen has been in prison serving his sentence since 4 July 2014. On a sentence of four months imprisonment he would be due for release in about a week. It is therefore no longer appropriate to replace his sentence with one of home detention. A sentence that achieves close to his immediate release is the appropriate outcome in these circumstances. A sentence of 15 weeks imprisonment is therefore imposed.

Result

[27] The appeal is allowed. Mr Petersen’s sentence of seven and a half months imprisonment is quashed. It is replaced with a sentence of 15 weeks imprisonment (allocated as 15 weeks imprisonment on the distribution charge and a concurrent sentence of seven weeks imprisonment on the possession charge). The special conditions imposed in the District Court remain in place and apply for six months from Mr Petersen’s release.

_{Mallon J}

²² Petersen v Department of Internal Affairs [2012] NZHC 1934; Kent v Department of Internal

_{Affairs HC Christchurch CRI-2009-409-139, 17 September 2009.}

23. For example, the appellants were required to attend treatment programmes and not to have access to a computer or any internet-capable device.