|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand |
Last Updated: 18 June 2018
|
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
|
|
CRI-2018-404-000070
CRI-2018-404-000194 [2018] NZHC 1343
|
|
BETWEEN
|
DARREN ALBERT JOLLY
Appellant
|
|
AND
|
NEW ZEALAND POLICE
Respondent
|
|
Hearing:
|
29 May 2018
|
|
Appearances:
|
N G Cooke for Appellant K E Tuialii for Respondent
|
|
Judgment:
|
8 June 2018
|
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 8 June 2018 at 2.30 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar
Date...........................
JOLLY v NEW ZEALAND POLICE [2018] NZHC 1343 [8 June 2018]
Introduction
[1] Darren Jolly pleaded guilty to eight charges of possession of objectionable material,1 one charge of failing to comply with reporting obligations2 and one of breaching an extended supervision order.3 Judge Andreé Wiltens imposed sentences totalling two-and-a-half years’ imprisonment.4 Mr Jolly appeals his sentence on the basis that it is manifestly excessive. He also asserts that the Judge displayed judicial bias.
[2] As the argument progressed before me, a further ground of appeal emerged. Ms Tuialii, for the Crown, acknowledged that the Judge had made no reference to a discount for Mr Jolly’s guilty plea and it appeared that no allowance had been made for this. I therefore proceed on the basis of that error, and consider the sentencing afresh.
Background
[3] Mr Jolly has a history of sexual offending dating back to 1996. Most of the offences involved indecent assault and doing or permitting an indecent act. In 2004, however, he was convicted of sexual intercourse with a female between the ages of 12 and 16 as well as doing an indecent act with a girl between 12 and 16. In December 2011, at the end of his term of imprisonment, he became subject to an extended supervision order (“ESO”) for ten years and, subsequently, to the reporting obligations under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.
[4] One of the conditions of the ESO was that Mr Jolly was:
Not to possess or use any computers or electronic equipment or device capable of capturing and storing images except for content publicly broadcast in New Zealand, or any device capable of capturing and storing images, unless supervised by an approved adult who has been approved in writing by the Probation Officer for each and every instance where the use of such a device has been requested for approval.
3 Parole Act 2002, s 107T. The maximum penalty is two years’ imprisonment.
4 New Zealand Police v Jolly [2018] NZDC 4087.
[5] The charges to which the appeal relates arose from a visit by the police to Mr Jolly’s residence on 8 August 2017. The police found a Chromecast device plugged into the back of his television, and they left the property with the appellant to determine whether that was a breach of the ESO conditions. The appellant denied owning an internet-capable device and then absconded from the police interview. The next day the police returned to his property and found a cellphone on the windowsill outside a communal toilet. The appellant admitted that the phone was his, that he had possessed it for two years and that he had hidden it. He was arrested for breaching his ESO by possessing the cellphone, and for failing to disclose that he was in possession of the mobile phone, as required by the Child Protection (Child Sex Offender Government Agency Registration) Act.
[6] The cell phone contained 3942 images and 20 videos. A sample of 12 images were sent to the Films, Videos, Publications and Classification Office. Seven images and one video were deemed objectionable. The images showed females whose appearance suggested they were either pre-pubescent or young teenagers engaging in sexual acts. The video depicted a woman being drugged and raped.
District Court decision
[7] Judge Andreé Wiltens referred to the UK sentencing guidelines for offending involving possession of objectionable images, and the fact that the penalties for this offending have recently doubled in New Zealand, so the starting points indicated by the guidelines would need to be increased.5
[8] After considering the relevant principles and purposes of sentencing, the Judge indicated starting points as follows, which totalled four years’ imprisonment:6
(a) two years’ imprisonment for the eight counts of possession of objectionable material;
(b) 18 months’ imprisonment for the breach of the extended supervision order; and
5 New Zealand Police v Jolly, above n 4, at [8].
6 At [14].
(c) six months’ imprisonment for the breach of the Child Sex Offender Register conditions.
[9] However, the Judge considered that, on a totality basis, four years’ imprisonment was too high and that the least restrictive outcome would be two-and- a-half years’ imprisonment. He therefore imposed concurrent terms of two-and-a-half years’ imprisonment in relation to the eight counts of possession of objectionable material and six months’ imprisonment on each of the remaining charges, which were to be served concurrently with one another and the sentence for possession of objectionable material.
Possession of objectionable material
[10] The charges of possession of objectionable material is the most serious and, as the Judge did, I consider them to be the lead offences for sentencing purposes.
[11] The approach to objectionable material offending in New Zealand has generally followed the United Kingdom’s Sentencing Guidelines Council’s Definitive Guidelines on the Sexual Offences Act 2003 (“2007 guidelines”).7 They identify five levels of seriousness for objectionable publications, and outline the recommended sentences for each level. Of relevance here is Level 4, which involves images showing penetrative sexual activity between adults and children, and Level 5, which involves images depicting sadism or bestiality.
[12] The 2007 UK guidelines recommend:
(a) Six to 12 months’ imprisonment for showing or distributing a large number of images at level 2 or 3, or possessing a small number of level 4 or 5 images.
(b) Twelve months to three years’ imprisonment for possession of a large amount of level 4 or 5 material, showing or distributing a large number a large number of images at level 3, or producing or trading material at levels 1 to 3.
7 See R v Zhu [2007] NZCA 470 at [15]; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312.
(c) More than three years’ imprisonment for showing or distributing images at levels 4 or 5, active involvement in production of images at levels 4 or 5, or commissioning or encouraging the production of such images.
[13] In 2014, new UK guidelines were introduced (“New Sexual Offences Definitive Guidelines”) which reduced the categories of offending to three:
(a) Category A images involve penetrative sexual activity, or possession of images involving sexual activity with an animal or sadism.
(b) Category B includes possession of images involving non-penetrative sexual activity.
(c) Category C includes any image not falling within categories A or B.
[14] The New Zealand Court of Appeal has yet to indicate whether the 2014 guidelines should be considered in New Zealand cases (rather than the 2007 guidelines). The new categories have been referred to in some District Court and High Court decisions.8 However, generally the approach in New Zealand has been that, while the categorisation of offending is of assistance, the recommended levels of sentencing are less so, given the 2015 increase in the maximum penalty for offending relating to objectionable materials from five years’ imprisonment to ten years’ imprisonment.9 For example, in Stewart v DIA, Katz J observed that to apply the 2007 guidelines would not accord with the intention of Parliament when it significantly increased the maximum penalties.10
[15] The significant increase in the maximum penalty also means that pre- amendment New Zealand case law is of less assistance.11
[16] Mr Cooke, for Mr Jolly, submitted that the starting point ultimately taken by the Judge for the objectionable material charges of two years six months was excessive because the images formed part of a relatively small collection depicting girls who
8 See Stewart v DIA [2014] NZHC 2209; Robinson v Police [2017] NZHC 2655 at [20].
10 Stewart v DIA, above n 8, at [23].
11 Tilyard v Police [2016] NZHC 1377 at [37].
were young to mid-teens who could not properly be regarded as vulnerable children, and that it was “standard pornography” not involving any violence or bestiality.
[17] This submission overlooks the fact that the possession of child pornography causes inestimable harm to the children depicted, who are re-victimised every time their abuse is viewed.12 Further, other than the video, while I accept that the reported images do not involve violence or other extreme behaviour, I do not accept that they involve children who are not vulnerable. The summary of facts to which Mr Jolly pleaded referred to the girls in the images as “a young teen”, “a girl ... [of] immature physical development and ... small size ... at most in her mid-teens, a girl who appears to be an older child or young teen”, “a younger person whose gender is uncertain but who presents as an older child or young teenager”, “a girl ... [whose] immature physical development and ... small size ... indicate that she is at most in her mid- teens”, “a girl who appears to be an older child or young teen”. The only image involving an obviously adult woman is the video of a woman being drugged and raped.
[18] The Crown relies on Tilyard v New Zealand Police and R v Stevens as helpful comparator cases.13 In Tilyard the appellant had pleaded guilty to eight representative charges of knowingly distributing an objectionable publication and eight representative charges of possession of an objectionable publication. He had shared
128 files of child sex abuse online, and the police seized approximately 700 objectionable images. They were, generally, less serious than the present case. Most of the images were category C, but one was in category A and two were in category
B. On appeal, a starting point of one year’s imprisonment was considered appropriate for the possession charges.
[19] In R v Stevens, the defendant pleaded guilty to, inter alia, eight representative charges of knowingly possessing objectionable publications. There were 1,474 objectionable still images (although a further 3,267 objectionable images were found, charges were not laid in relation to them) and eight objectionable videos. The images predominantly involved young pre-pubescent boys as young as five years old. Two images involved bestiality (category A). Toogood J adopted a starting point of two years’ imprisonment for each of the eight charges, to be served concurrently. I note
12 R v Stevens [2016] NZHC 1574 at [25](d).
13 Tilyard v New Zealand Police, above n 11; R v Stevens, above n 12.
that the large quantity of the images, the degree to which they were offensive, the premeditation in the offending and the harm the offending caused were accepted as aggravating features. This case was, clearly, more serious than the present one.
[20] In New Zealand Customs Service v Praditsin,14 the defendant had over 2,000 images and videos that were objectionable. 172 were category A, involving children engaged in penetrative sexual activity or sadism. There were 18 in category B, showing children involved in sexual activity, and 2022 images in category C, showing children in sexualised positions. The District Court Judge took a starting point of two years’ imprisonment, but considered that the range could be higher still.15
[21] I also note the case of Dayaratne v Police, in which a starting point of two- and-a-half years’ imprisonment was imposed for a representative charge of being in possession of objectionable material and a charge of making an objectionable publication.16 The defendant had accepted a sentence indication. The appellant unsuccessfully appealed the District Court Judge’s decision to place him on the register.17 The convictions arose as a result of Mr Dayaratne holding 1,260 video files and 1,890 photographs. They featured young children, particularly boys, in various states of undress posing and engaging in sexual activities with themselves and adults.
[22] Here, 3,942 images and 20 videos were located on the appellant’s phone. But only 12 were assessed and of those, seven images and one video were deemed objectionable. This case therefore involves far fewer images than the comparator cases though it is acknowledged that, given the ease of reproducing images, quantity alone should not detract from the nature of the images. The descriptions indicate both category A and B, showing a violent rape and both penetrative and non-penetrative sexual activity with children. I respectfully agree with Dobson J’s observations in Doran v Police that:18
The extent of exploitation and defilement of children, including their age, must rank in qualitative terms as a measure of seriousness not fully accounted
14 New Zealand Customs Service v Praditsin [2017] NZDC 19973. The defendant appealed the sentencing Judge’s decision that he be placed on the register. The appeal failed, see: Praditsin v New Zealand Customs Service [2017] NZHC 48.
15 At [11].
16 New Zealand Police v Dayaratne [2018] NZDC 665.
17 Dayaratne v Police [2018] NZHC 563.
18 Doran v Police [2012] NZHC 468 at [17] and [20].
for in the five levels that have been adopted. Quantitative measurement in isolation could be inadequate to reflect the relative seriousness.
... The number of images in particular categories should not, of themselves, dictate the starting point ...
[23] Given Mr Jolly’s history and length of time he had the phone, I also need to treat the offending as having a level of premeditation.
[24] I consider that a starting point of one year and six months’ imprisonment is appropriate. From that, there must be an allowance for Mr Jolly’s guilty plea which the Crown acknowledges was entered at the earliest possible stage. Mr Jolly is entitled to a 25 per cent reduction, which would reduce the sentence on the possession charges to 13 months’ imprisonment.
[25] There are no relevant mitigating features.
Sentence for breach of the ESO and reporting obligations
[26] The maximum penalty for breach of an ESO is two years’ imprisonment. Contending for a low starting point, Mr Cooke submitted that Mr Jolly also used the phone to contact his family so it had a lawful purpose, at least in part; the breach was not of the most serious kind, because the aim of the ESO was to prevent the appellant contacting young females; it had not been used to communicate with dating sites, users of pornography or “chat clubs” and removing the use of the phone created a sense of loneliness and isolation.
[27] I acknowledge the difficulties inherent in Mr Jolly’s situation. Nevertheless, I consider that the breach was serious because:
(a) it was sustained; Mr Jolly had possessed the phone for two years;
(b) it went directly to the very purpose of the ESO, to reduce the appellant’s risk of sexual re-offending;
(c) Mr Jolly initially denied that he possessed the cellphone and attempted to hide it; and
(d) Mr Jolly had 18 previous convictions for breaching the ESO, including similar offending in 2014 for possessing a smartphone and using
Facebook to contact a teenage girl.19 Whatever the starting point, an uplift would be required to reflect the previous breaches.
[28] In terms of a comparison for the purposes of a starting point, I note Otene v Department of Corrections,20 where six months’ imprisonment was imposed on the defendant for one charge of breaching an ESO by drinking alcohol. The ESO had been imposed for offences of a sexual nature. The defendant had breached the ESO on seven prior occasions. Here, where the nature of the breach was long-term, and was much more directly related to the type of offending which gave rise to the ESO in the first place, I consider the appropriate starting point is 12 months, uplifted by two months to reflect Mr Jolly’s previous similar offending.
[29] An allowance of 25 per cent to reflect the guilty plea would reduce the sentence to 10 months.
[30] A concurrent sentence of six months’ imprisonment on the breach of reporting obligation charge would be appropriate.
Judicial bias
[31] The conclusion I have reached as to the error in sentencing means that it is unnecessary to consider the allegation of judicial bias. I do so only briefly, for completeness.
[32] On the recommendation of counsel, the Judge referred the matter to the High Court for consideration of preventive detention. The High Court remitted the matter back to the District Court because none of the offences the appellant was charged with was a qualifying preventive detention offence. This was a matter that the Judge and counsel must both have overlooked.
[33] Mr Cooke submitted that the Judge’s decision to refer the matter to the High Court gave rise to an inference that he was prejudiced against the appellant. Mr Cooke also submitted that, in referring to 11 instances of prior convictions involving
19 See R v Jolly DC Nelson CRI-2013-042-001945, 11 June 2014.
20 Otene v Department of Corrections [2013] NZHC 766.
indecencies or intercourse with young children, the Judge was showing bias and wrongly sentenced Mr Jolly for sexual offending that pre-dated the ESO.
[34] The Supreme Court in Saxmere Company Ltd v Wool Board Establishment Company Ltd confirmed that:21
... a Judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. As that judgment proceeds to observe, that principle gives effect to the requirement that justice should both be done and be seen to be done ...
[35] Two steps are required:22
(a) identification of what was said that might lead a judge to decide a case other than on its legal and factual merits; and
(b) an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
[36] I do not consider the test has been made out. The decision to refer the proceeding to the High Court in the mistaken belief that one or more of the offences were qualifying offences for the purposes of preventive detention does not suggest any bias nor an inability to bring an open mind to the sentencing exercise. Nor is there any indication in the sentencing itself to suggest a deviation from the proper approach. The Judge’s error in overlooking a discount for the guilty plea does not indicate bias.
[37] I agree that the Judge’s reference to 11 previous convictions for indecencies and intercourse with young children mischaracterises the previous convictions. In fact, there were 13 such convictions but none appears to have involved “young children”, rather young people aged 12 – 16 years. But this history was clearly relevant to the sentencing process and the Judge’s error is not a basis on which to assert bias.
21 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3], citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (HCA) at [6].
22 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 21, at [4]. See also
Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62].
Result
[38] The appeal is allowed. The sentences are quashed and substituted with:
(a) 13 months’ imprisonment on the charges of possessing objectionable material, to be served concurrently;
(b) 10 months on the charge of breaching extended supervision order conditions, to be served cumulatively on the term imposed for possessing objectionable material; and
(c) six months on the charge of breaching reporting obligations, to be served concurrently with the sentence imposed for breaching ESO conditions.
[39] The total end sentence will therefore be one year and 11 months’ imprisonment. I do not consider that any further adjustment is required for totality.
P Courtney J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/1343.html