Successful appeal against refusal to grant discharge without conviction – s 106 Sentencing Act 2002 – discharge without conviction – possession of objectionable material – s 131(1) Films, Videos and Publications Classifications Act 1993 – knowledge of objectionable material on device – pre sentence report – rehabilitation – intellectual and physical disability – Asperger’s syndrome – attention deficit hyperactivity disorder – consequences of conviction – future employment – gravity of offending – low culpability – giving sufficient regard to circumstances of actual offending

Gordon-Stables v R [2023] NZHC 345 (van Bohemen J) 

Gordon-Stables pleaded guilty to 10 charges of possessing objectionable material under s 131(1) of the Films, Videos and Publications Classification Act 1993. The maximum penalty for this offence is a $2000 fine. The District Court judge declined the application for a discharge without conviction. Gordon-Stables appealed this decision on the basis that the District Court judge exaggerated the severity of his offending.

In July 2019, Gordon-Stables had received 508 videos and 178 image files through a social networking platform called Mega.  As a result of a police-executed search warrant in 2021, further child exploitative material was revealed on Gordon-Stable’s devices. He admitted receiving the material but advised police he had deleted it shortly after receiving it.

Gordon-Stables was originally charged with possession of an objectionable publication with knowledge under s 131A(1) of the Act which carries a maximum penalty of 10 years’ imprisonment. This charge requires that a person to have known, or had reasonable cause to believe, the publication was objectionable. The police amended the charges to possession of objectionable material alone under s 131(1) to which Gordon-Stables pleaded guilty.

The pre-sentence report noted Gordon-Stables had Asperger’s syndrome and attention deficit hyperactivity disorder (ADHD). Whilst he was receiving a social welfare benefit, Gordon-Stables was seeking full-time employment as a supermarket shelf filler.

His lifestyle was described in the pre-sentence report as “slavishly demeaning”, consisting primarily of “looking after his invalid mother and pushing her around town in a wheelchair”. Furthermore, it was recorded that he had “never had the opportunity to develop the confidence needed to make an independent life”.

In terms of rehabilitation, the pre-sentence report noted Gordon-Stables had no rehabilitative needs that he was not already addressing through his engagement with Wellstop. When assessing the application, the District Court judge recounted discussions with a New Zealand detective who had visited Thailand and seen the reality of the lives of children who are sexually exploited by their images. The judge observed that such children were victims created for sexual gratification, usually of European men.

Whilst the District Court judge accepted a conviction would create a problem for Gordon-Stables’ future employment prospects, he said this was the purpose of a conviction. “We used to brand people’s faces and cut their noses and ears off, and this is the modern equivalent. It is to provide a warning. It does create a stigma and a conviction of this nature is particularly stigmatizing.” The application was declined in the District Court.

On appeal, it was submitted that the judge had erred in assessing the gravity of Gordon-Stable’s offending and had regarded the objectionable material as so egregious that it precluded a discharge without conviction.

In the High Court it was noted that it was apparent from the remarks made by the District Court judge that he was concerned about the general nature of the offending for which Gordon-Stables had been charged, regardless of his actual offending.

Although the District Court judge did consider Gordon-Stables particular circumstances, the references to the conviction as the modern-day equivalent of branding and cutting off noses and ears suggested a focus on conveying a moral opprobrium rather than addressing the gravity of the specific offending at hand. In Gordon-Stables circumstances, the High Court considered the gravity of his offending to be low.

The High Court determined that while possession of such material cannot be condoned, for a man in Gordon-Stables’ position they did not warrant social opprobrium and did not warrant cutting him off from the few opportunities he may have to develop a measure of economic and social self-sufficiency.

Held: The consequences, when considered against the low gravity of the offending, are out of all proportion to the offending and weigh in favour of a discharge without conviction. Gordon Stables is discharged without conviction.

Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law Committee