Jail term shows development of New Zealand’s censorship law

23/8/2005

An important court decision made earlier this year began to bite today with the jailing of an Invercargill man for collecting and distributing on the Internet pictures and videos of children being sexually abused.

In the Invercargill District Court Judge Peter Butler sentenced the man to six months imprisonment and declined leave for him to apply for home detention. Judge Butler also ordered forfeiture and destruction of his computer and the objectionable material.

Department of Internal Affairs Deputy Secretary Andrew Secker said that in convicting him, Judge Butler had specifically referred to the earlier decision made by Judge Carolyn Henwood in the Wellington District Court.

Judges Butler and Henwood rejected arguments that the offenders in these two unlinked cases were not guilty because by using file-sharing software known as “peer-to-peer” applications they got around legal definitions used in the Films Videos and Publications Classification Act.

“This is a good example of how prosecutions can help develop New Zealand’s censorship law to ensure that we keep up with the challenges of the Internet,” Mr Secker said.

“By far the majority of New Zealand offenders now use peer-to-peer software and in several cases they are making arguments that the software somehow allows them to get around the law.

“These court decisions are making it harder for people who collect and distribute child sex abuse images to hide behind legal technicalities.”

Summary of offending

This case began in March 2003 when the Department received information from an overseas agency that a person who appeared to be a New Zealander was using the Internet to share electronic pictures of children being sexually abused. Further similar information was received in August 2003.

The Department was able to combine the information from the two intelligence reports, investigate, identify the person, and track him to his home in Invercargill.

Department Inspectors and a Police officer executed a search warrant in March 2004. The Inspectors seized his computers and disks.

The Department’s analysis of his computers showed his history of using the Internet, including details of how he had been deliberately searching for child sex abuse images. The analysis revealed his collection of 163 objectionable files on the computers, including videos and pictures of girls aged between six and twelve years being sexually abused by adult men.

Nine of those files were the subject of representative possession charges. He pleaded guilty to these nine charges.

Of the 163 objectionable files, 75 were found in the shared folder of his file sharing software. Anyone in the world using the same software could download those files to their own computer. Ten of these images were the subject of representative distribution charges.

He pleaded not guilty to these 10 charges, making unsuccessful technical arguments about how peer-to-peer applications work and the meanings of the phrases “makes available” and “for gain”.

Judge Butler found him guilty on 27 May 2005 and sentenced him today. He is a 26-year-old part-time clerical worker.

The victims

Earlier this year Parliament increased the penalties for collecting child sex abuse images to up to five years jail (it had been a fine only offence) and those for distribution to up to 10 years jail (the maximum had been up to one year). This man's offending occurred before the Act was amended and he faced the old penalties.

Mr Secker said that to understand the reasons for such penalties people have to understand what the offending involves.

“The victims are tragically real. They are children who are filmed while adults sexually abuse them and force them into sexual poses.

“Collectors and distributors take gratification from that abuse and then incite more abuse as they demand more images and more extreme images. Every time they copy and share images they spread a false message: ‘sex with children is acceptable’.

“The Department’s actions are not about pictures on a computer. They are part of New Zealand’s commitment to protect children from abuse, both here and overseas.”


Media contact

Andrew Secker
Deputy Secretary Phone 04 495 9329, Cellular 027 281 5211

Vince Cholewa
Communications Advisor Phone 04 495 9350, Cellular 027 272 4270