Police v L [2016] NZHC 455 (16 March 2016)

Last Updated: 20 April 2016

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-77 [2016] NZHC 455

BETWEEN	NEW ZEALAND POLICE Appellant
AND	L Defendant

Hearing:	8 March 2016
Counsel:	I S Auld for Appellant I M Antunovic for Respondent
Judgment:	16 March 2016

_{JUDGMENT OF ELLIS J}

_{I direct that the delivery time of this judgment is}

_{4 pm on the 16}^th _{day of March 2016}

NEW ZEALAND POLICE v L [2016] NZHC 455 [16 March 2016]

[1] On 28 August 2015 L pleaded guilty to 47 charges of possessing an objectionable publication, knowing or having reasonable cause to believe that the publication is objectionable, under s 131A of the Films, Videos, and Publications Classification Act 1993 (the FVPCA). An offence against s 131A is punishable by up to five years imprisonment.

[2] On 27 November 2015 Judge Butler discharged L without conviction under s 106 of the Sentencing Act 2002. The Police appeal against that discharge. Leave to bring such an appeal is required.

Background

[3] L’s offending was discovered when a USB stick containing sexualised images of children was found on a bus and handed in to Police, who subsequently searched his home. In total, the Police found approximately 2412 images and one movie which were deemed to be objectionable. They selected 47 images as the basis of the charges. The images are photographs of children engaged in a variety of sexual acts, including sexual violation of the children by adults, children engaged in sexual acts

with other children, and children performing sexual acts on animals.¹

The District Court decision

[4] A decision to discharge without conviction under the Sentencing Act 2002 (the SA) involves consideration (under s 107) of whether the direct and indirect consequences of a conviction are out of all proportion to the gravity of the particular offence. If the relevant disproportionality is established then the court may in its discretion (under s 106) order a discharge.

[5] It is convenient to set out the relevant part of learned District Court Judge’s

notes in full. He said:

[3] The first thing I have to do is assess the gravity of the offending itself. The aggravating features are pointed out by counsel for the police and I agree with what they say but accept there is nothing beyond what is inherent in each offence. The victims were children. Some of the images

1. The basis upon which the 47 images were selected was not explained by the Crown but there is a suggestion (which I am inclined to accept) that they were the worst of the much larger group.

involved aspects of restraint and some included what was obviously sexual violation of the children.

[4] On the mitigating side of things you entered prompt guilty pleas to these charges. You have no previous convictions and since you were charged you have taken meaningful steps to address an addiction to pornography which is long-seated and deep-rooted in your case.

[5] Then I assess the gravity of the offending, not that the bottom of the scale but at the lower range of the scale. That will be relevant as you hear when I come to the third step in the process. The second step is to assess the consequences of a conviction for you or convictions.

[6] Your circumstances are that you are in a long-term marriage with two young children. Your employment has been in IT, working as a business analyst. ... You fear that convictions for you would lead to the loss of fresh employment opportunities and/or prospects of promotion with flow-on effects on your marriage, your ability to play a full financial part in household affairs, it would have an effect on your children and so on.

[7] Currently you are resigned from the employment you held at the time of the offending. You cannot go back to that employer no matter what the outcome of today’s application is. You lost a $10,000 employment bonus as a result of having to leave your job and you will have to reapply for employment. In your area I accept Mr Antunovic’s submission that you will have to disclose whether you have previous convictions of any kind and of course convictions for child pornography speak for themselves.

[8] Your own personal situation is that you have been addicted to pornography for most of your adult life. You have taken professional advice. An extensive clinical psychologist’s report is available and I have read it carefully. You have undertaken so far, or at least by the time the report was written, 11 hours of therapy and the WellStop programme is recommended to you.

[9] Mr Antunovic read a passage from the psychologist’s report that I in fact had marked for reading to the Court myself, so I will not repeat that, but I just add from the postscript to the report as follows:

The defendant has the capacity to be a good father and husband and a productive member of society. He has currently got good support from his wife and family. He has developed good boundaries against re-offending and these will strengthen with additional treatment which he is well-motivated to complete. He does, however, have significant depressive symptoms.

...

[11] Police opposition centres on the test which is set down in s 107 of the Sentencing Act. Firstly the police claim that a consequence of the convictions for you are not out of all proportion to the gravity of the offence. The police place the gravity of this offending at a high point in the scale.

[12] I agree for the reasons submitted by the police but there are elements which are inherent in the nature of this offence which have to be proved in

any event and s 106 Sentencing Act does not preclude pornographers from applying for discharge.

[13] Secondly the police refer to the dehumanising of the victims caused by child pornography and thirdly they say that there is no material corroborating your claim of consequences of conviction on job or future prospects. Consequences do not have to be proved like the essential elements of a criminal defence [sic] have to be proved. It will suffice if there is a real and appreciable risk of the claimed consequence occurring. It is a matter of common sense to me that a defendant’s employment, his future prospects of promotion and new job with a new employer would be at risk if he had convictions for offences of child pornography. If your employment is affected it stands to reason that the ability to contribute to the household and child raising responsibilities which both parents have would also be affected.

[6] After weighing all these matters the Judge concluded that the balancing exercise fell “narrowly” in L’s favour and discharged him without conviction accordingly.

The appeal

[7] The Police seek to appeal on a question of law pursuant to s 296 of the Criminal Procedure Act 2011. The question of law identified was “whether it was open to the Judge” to conclude that the consequences of a conviction would be out of proportion to the gravity of the offending, and in particular:

(a) whether the Judge erred in assessing the gravity of the offending as

“at the lower range of the scale”; and

(b) whether there was sufficient material to enable the Judge to conclude as “a matter of common sense” that the consequences were out of proportion to the gravity of the offending.

[8] The “lower range of the scale” remark is made at [5] of the notes above.

[9] The “common sense” remark is made at [13] of the notes in the context of the Judge’s acceptance of the submission for L about the effect of convictions on his future employment prospects.

Discussion

[10] At the outset I reject the second ground of the proposed appeal as untenable. I acknowledge that in some cases a specific evidentiary foundation might be required in order to draw a conclusion about the adverse effects of a conviction on a particular defendant. But in this case, I consider it was open to the Judge to reach the conclusion he did on the material before him.² Indeed, I agree with him that it is self-evident that 47 convictions for possession of child pornography would make it essentially impossible for L to get a job in the IT field and would have a devastating effect on his family.

[11] Nor am I entirely persuaded that the first ground of the proposed appeal involves a fair reading of the Judge’s notes as a whole. Running through his notes in order:

(a) at [3] he agrees that L’s offending has the aggravating features

identified by counsel for the Police and records what they are; (b) at [4] he notes mitigating matters relating to L himself;

(c) at [5] he concludes that when the aggravating and mitigating features are taken together the offending is at the “lower range of the scale”;

(d) at [6] to 9] he deals with L’s personal circumstances and the consequences of a conviction;

(e) at [11] and [12] he refers to the s 107 threshold and repeats the Police submission on the gravity of the offending (which appears to revert back to the aggravating features identified, with which the Judge

_{again records his agreement);}

² The material included L’s own account of the circumstances in which he had left his former job

following his arrest and his knowledge of recruitment processes in the IT field.

(f) at [13] he refers to the effects of the offending on the victims and then goes on to address the Police submission about the absence of corroborating material relating to the adverse effects of a conviction.

[12] On that analysis it seems to me that the Judge’s approach was an orthodox one in which no error of law is discernible. In particular, it is only after he has taken into account the mitigating factors relating to L personally that he classifies the gravity of the offending at the lower end of the scale. That methodology is precisely the one approved by the Court of Appeal in DC v R, namely that when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to both the offending and the offender, by reference to ss 9

and 10 of the SA.³

[13] In my view, the only arguable error in the Judge’s analysis is where he says (at [3] and later at [12]) that the aggravating features of L’s offending identified by the Police are inherent, or largely inherent, in offending of this kind. I assume what is meant is that the objectionability of the material is an element of the s 131A offence.

[14] That statement is, of course true, as far as it goes. Only material which is objectionable (as that term is extensively defined in s 3 of the FVPCA)⁴ can form the basis for a charge under s 131A. But to the extent the Judge was suggesting that objectionable material does not form a continuum, or that distinctions are not drawn between different types of material for sentencing purposes, that is wrong, for the

_{reasons that follow.}

³ _{DC (CA47/13) v R [ 2013] NZCA 255.}

4. The cornerstone of the s 3 definition is found in subs (2) which deems a publication to be objectionable if it promotes or supports, or tends to promote or support,—

(a) the exploitation of children, or young persons, or both, for sexual purposes; or

(b) the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or

(c) sexual conduct with or upon the body of a dead person; or

(d) the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or

(e) bestiality; or

(f) acts of torture or the infliction of extreme violence or extreme cruelty.

[15] The starting point is that a range of subject matter is captured by the term “objectionable”.⁵ As a matter of logic, it seems likely that there will be qualitative differences between the different categories of objectionable material.

[16] Notwithstanding the breadth of the definition, however, it seems that most prosecutions under s 131A are for possessing child pornography rather than other kinds of objectionable publications. And sentencing decisions in those cases show that distinctions can be and are routinely drawn between the different sub-categories of such material.

[17] Although there is no tariff sentencing case for such offending, the issues were considered by the Court of Appeal in R v Zhu.⁶ The Court regarded as “useful” the

1992 report of the Sentencing Advisory Board in the United Kingdom which sets out categories of offending for possession (and supply) of child pornography. From least to most serious, these were:⁷

(a) Images depicting nudity or erotic posing, with no sexual activity. (b) Sexual activity between children or solo masturbation by a child. (c) Non penetrative sexual activity between adults and children.

(d) Penetrative sexual activity between children and adults. (e) Sadism or bestiality.

[18] In New Zealand, the juridical basis for drawing such distinctions is s 9 of the Sentencing Act. Included in the aggravating features which s 9 requires a sentencing court to take into account are:⁸

_{(a) the extent of harm resulting from the offence: s 9(1)(d);}

⁵ _{See the definition of objectionable in s 3.}

⁶ _{R v Zhu [2007] NZCA 470.}

⁷ _{As set out in Zhu at [13].}

⁸ These were applied to s 131A in Hulme v R [2012] HC 86 at [29].

(b) victim vulnerability: s 9(1)(g); and

(c) premeditation: s 9(1)(i). [19] Thus:

(a) the fact that children are the victims is an aggravating feature (in terms of both subss (1)(d) and (g)) which will not be present in charges involving the possession of other kinds of objectionable material;

(b) the nature of the sexual activity portrayed in the objectionable material will be relevant to an assessment of the harm to the victims in terms of subs (1)(d); and

(c) offending which involves downloading or storing the objectionable material has the additional aggravating feature of premeditation (which would not be present where objectionable material of a similar kind has merely been viewed by the offender).

[20] As I have said, in the present case it remains unclear to me whether Judge Butler was of the view that the only aggravating features of L’s offending were those which were inherent in the offences themselves. If he was, he proceeded on the basis of an error of law. I acknowledge that in light of his twice recorded acceptance of the Police submissions in that respect he may well not have been of that mind. Equally, however, he also made the “inherent” observation twice.

[21] In the end, however, I have formed the view that any such error is immaterial. That is because even if I were to consider the matter afresh I would, narrowly (like the Judge) grant L a discharge without conviction, for the reasons that follow.

[22] Applying the three step DC v R analysis to the present case, I begin with an

_{assessment of the gravity of L’s offending.}⁹ _{As I have noted already, this requires}

⁹ DC (CA47/13) v R, above n 3.

consideration of both the aggravating and mitigating features relating to the offending and those relating to L personally.

[23] In terms of aggravating features of the offending:

(a) the offending involved some material that would qualify as level 4 or

5 material under the United Kingdom Guidelines. There were several images involving either bestiality or sadism, and several involving anal or vaginal penetration. There were also a large number of images showing penile penetration of the mouth. The rest of the images fall within categories 1-3;

(b) in terms of s 9, the aggravating features are as I have noted at [19]

above.

(c) in terms of an assessment of the gravity of the offending overall it may be observed that the Courts have noted that possession of child pornography is serious offending.¹⁰

[24] But in terms of L’s personal culpability, his own explanation for downloading the objectionable material was that it was fuelled by an obsessive-compulsive desire to collect and store images that were only rarely and momentarily available on the website that he accessed. While this explanation is unusual, the analysis by L of its causes shows insight and is credible. Perhaps more importantly, the analysis is supported by the psychologist who assessed him, whose view was that while L is addicted to pornography he is not sexually attracted to children. The most pertinent of the psychologist’s conclusions were that:

[L] has had long-standing issues with accessing a range of pornography on the internet. However particularly over the last year he has collected child sexual abuse images. While he was accessing the illegal material [L] was able to convince himself that he was not doing harm as the abuse shown in the images had already occurred and he was not paying any money to access

¹⁰ In R v Z (CA604/07) [2008] NZCA 246, [2008] NZLR 342, the Court of Appeal stressed that the s 107 analysis involves an assessment of the gravity of the offence committed, not where this particular conduct sits among offences of its type. Offending involving child pornography is regarded as serious in that wider context see Waugh v Police HC Auckland CRI-2014-404-178,

15 October 2010.

the images. He would rationalise to himself that because of this he was not supporting the abuse. He accepts that this is a cognitive distortion and that looking at child sexual abuse images is ongoing abuse of the children involved.

[L’s] obsessional characteristics meant that obtaining and categorising images became an end in itself. This behaviour also resulted in him wanting a more complete collection so he was less discriminating regarding the seriousness of the images collected.

[25] The Police did not seek to call expert psychological evidence that contradicted these conclusions. And it is also relevant to note that CYFS assessment of the family did not identify any concerns regarding his two young daughters.

[26] Although it was submitted that mitigating features of the offending included the absence of involvement by L in either creating the images or in distributing them. I would not be inclined to attach significant separate weight to these.

[27] There are no aggravating features relating to L personally. As the Judge noted, however, there are a number of mitigating features. L has lived an otherwise exemplary life. He has no previous convictions of any kind. He is a family man who is devoted to his two young children. He has formerly been the principal bread- winner. Mr Antunovic also emphasised that L:

(a) had cooperated fully with Police, admitted his offending and entered guilty pleas at an early stage; and

(b) was assessed as being genuinely remorseful, a low risk of harm to others and unlikely to reoffend.

[28] But in my view the most important of the mitigating personal factors are:¹¹

(a) the steps that L has taken himself to address the causes of his offending. His enrolment and participation in WellStop which was noted by the learned District Court Judge has continued. As I

_{understand it he has now attended some 16 sessions. As well, he is}

¹¹ These are relevant factors in terms of ss 9 and 10 of the SA.

attending weekly meetings of a 12 step addiction programme and has a sponsor; and

(b) the response of his family and friends to his offending which manifests itself not only in the support he is receiving but also the steps they are taking to ensure that he recovers and does not offend again.

[29] By way of summary, therefore, there can be little doubt that the offending itself was serious. But after taking all these mitigating factors into account, as the court is required to, I agree with Judge Butler that the overall gravity is properly assessed as being “at the lower range of the scale”.

[30] It then becomes necessary to consider the consequences for L in the event that 47 s 131A convictions were entered against him. I have already recorded my acceptance that these would be significant. In particular I agree that such convictions would almost certainly operate as a complete bar to his future employment in the IT field. Proceeding on the assumption that L would honestly declare his criminal record when applying for a job, the suggestion that the fact of

47 convictions relating to objectionable images of children would not completely deter a prospective employer is, with respect, facile.¹²

[31] As well, he is fortunate enough to be in a position where in future he can contribute positively to his family and to society as a whole. That opportunity to contribute would be severely curtailed if convictions are entered against him.

[32] I also necessarily accept that the indirect consequences for L include the consequences for his family. The effects on his wife and two young daughters would be severe. I record that for associated reasons, Wellington Rape Crisis also supports

_{his discharge without conviction.}

12. It seems relevant to note that the suppression of L’s name was neither opposed by the Crown at first instance nor challenged on appeal.

Conclusion

[33] Like the learned District Court Judge I have found this a difficult and finely balanced case. I do not for one moment underestimate the terrible and lasting harm that is wrought by the child pornography industry and those who support it – whether by viewing, downloading, distributing or creating such material.

[34] But in the end, I also agree with Judge Butler that in the unusual circumstances of L’s case the direct and indirect consequences of 47 convictions under s 131A would be out of all proportion to the gravity of his offending, when that gravity is assessed in the broad sense that is required by law. In my view the discretion to discharge should be exercised in his favour.

[35] Leave to appeal is granted but the appeal is dismissed. L’s discharge without

_{conviction is confirmed.}

Solicitors: Crown Solicitor, Wellington, for Appellant

I M Antunovic, Solicitor, Wellington, for Respondent

“Rebecca Ellis J”