New Zealand Customs Service v Urquhart [2019] NZDC 9822

Published 19 June 2020

Sentencing — exportation of objectionable publications — importation of objectionable publications into New Zealand — possessing objectionable publications — sexual exploitation and abuse of children — Tilyard v Police [2016] NZHC 1377 — Police v Westeneng [2016] NZDC 7214 — R v Webb [2016] NZHC 2966 — Robinson v Police [2017] NZHC 2655 — Dayaratne v Police [2019] NZCA 30. The defendant appeared for sentence having pled guilty to four charges (one representative) of being knowingly concerned in the exportation from New Zealand of objectionable publications, two representative charges of being knowingly concerned in importation into New Zealand of objectionable publications and one representative charge of knowingly possessing objectionable publications. The maximum sentence for all of the charges was 10 years imprisonment. The defendant's offending came to light after American authorities detected a large number of objectionable publications being uploaded to an image hosting and filesharing website by a New Zealand user (the defendant). Reports were forwarded on to New Zealand authorities and Customs executed a search warrant on the defendant's address. They discovered around 96,000 objectionable images and video files. The files depicted the "terrible" sexual exploitation, abuse and degradation of children and young people. The victims ranged from infants to teenagers. In coming to a starting point the Judge referred to sentencing principles, in particular the need to deter this type of offending. The victims depicted in the files are revictimised over and over as the material is traded and viewed multiple times. Also relevant was the principle that the least restrictive sentence outcome available in the circumstances must be adopted. The Judge considered case law, the class of victims (infant children to teenagers), the 10 month period of offending and the significant degradation of victims in the files, and adopted a starting point of five years' imprisonment. There were no aggravating features that warranted an uplift of the starting point. A 12 month reduction was given for the defendant's clean history and co-operation with the prosecution. A 12 month reduction was given for the defendant's youth (24 at the time of the hearing and 23 at the time of offending). A reduction was given for the defendant's psychological condition and for showing some remorse. A 25 per cent discount was given for his early guilty plea, taking the sentence down to a point where home detention could be considered. The Judge imposed the maximum home detention sentence available: 12 months. The defendant was also to undertake counselling and any departmental programmes as directed by his probation officer, he was not to have contact with anyone under 16 and was not to possess any computers or electronic equipment capable of accessing the internet. The Judge decided not to register the defendant on the Child Sex Offenders Register, due to his youth and travel plans. Finally, all items involved in the offending and the objectionable material was to be forfeited. Judgment Date: 20 May 2019.