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R v Coles [2019] NZDC 5440

Published 06 October 2021

Sentencing — distributing an objectionable publication — possessing objectionable material — child porn — sexual abuse — exploitation — bestiality — Films, Videos and Publications Classification Act 1993, ss 132 & 136 — Robinson v Police [2017] NZHC 2655 — Tilyard v Police [2016] NZHC 1377 — Barnes v Police [2013] NZHC 3510 — Pattison v Police [2018] NZHC 2163 — Stewart v Department of Internal Affairs [2014] NZHC 2209. The defendant appeared for sentence on 11 charges of distributing an objectionable publication and 12 charges of possessing objectionable material. He was found to have 50 images and 50 partially downloaded video files, all of which depicted children (aged from one year old to 14) being sexually abused and exploited. The Judge noted the harm this type of offending causes as the demand for images results in a continuing cycle of abuse for existing victims and the demand for new victims. Photographing, filming and distribution of images of sexual assaults means that the victim is re-victimised every time the image is viewed or shared via the Internet. The Crown submitted the appropriate starting point was a sentence of four years' imprisonment for the distribution charges with a 12-month uplift for the possession and a 20 per cent discount for the defendant's guilty plea. Counsel for the defendant submitted a two-year starting point was appropriate with a six-month concurrent sentence for the possession charges, 40 per cent discount for good character and 25 per cent discount for guilty plea, resulting in an end sentence of 10 months' imprisonment which should be converted to a shorter sentence of home detention. The Judge adopted a starting sentence of two years and nine months' imprisonment for the lead charges of distribution. This was uplifted by six months for the possession charges. A 15 per cent discount was given for his lack of previous convictions, letters of support and alleged motivation to address his sexual perversions. A 25 per cent discount was given for his guilty plea, resulting in an end sentence of 25 months' imprisonment. This was not low enough to allow the Judge to consider converting the sentence to one of home detention and the Judge noted that he would not have done so, even had the final sentence fallen under the 24 month threshold. The defendant's risk of reoffending had been assessed at a medium level and there was a strong need to denounce and deter this kind of offending. Judgment Date: 25 March 2019.