Important Court decision strengthens action against distributors of child sex abuse images

18/7/2005

In sentencing a Wellington man today, the Wellington District Court has made an important decision that will strengthen New Zealand’s action against people distributing pictures and movies of children being sexually abused.

A 40 year old student was sentenced to nine months imprisonment and fined $2,000. Judge Carolyn Henwood said that offending like the accused's is serious and courts have a duty on behalf of the community to impose deterrent sentences.

Judge Henwood refused to grant leave to apply for home detention because all his offending had occurred from his home and had been covert, secretive and difficult to detect.

Department of Internal Affairs Deputy Secretary Andrew Secker said that this was the first case in which an offender had pleaded not guilty arguing that by using file-sharing software known as “peer-to-peer” applications he got around legal definitions used in the Films Videos and Publications Classification Act.

Mr Secker said that the case was important because most offending by New Zealanders now involves the use of such software and similar not guilty pleas are being entered in many other cases.

The man had argued unsuccessfully that he was not guilty based on technical arguments about how peer-to-peer applications work and the meanings of the phrases “makes available” and “for gain”.

Similar legal arguments had previously been used unsuccessfully about other ways of using the Internet but had not been tested in relation to peer-to-peer applications.

Usefully for other prosecutions, Judge Henwood commented specifically on how such software is used.
“The Internet is constantly developing,” Mr Secker said, “and so are ways of misusing it. The courts are showing that the law is keeping up with those changes and will not let offenders hide behind technicalities.”

Summary of offending

This case began in November 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 and sexually posed.

The Department investigated and was able to identify the person, and track him to his home in Wellington.

Department Inspectors and a Police officer executed a search warrant in December 2003. The Inspectors seized his computer system and several videos.

The Department’s analysis of the computer system revealed about 300 objectionable electronic pictures and movies. They were of children being sexually abused and sexually posed, bestiality and extreme torture and cruelty.

Ten of those images were the subject of representative possession charges. He pleaded guilty to these 10 charges.

Of the 300 objectionable files, 49 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. Five of these images were the subject of representative distribution charges. He pleaded not guilty to these five charges.

A defended hearing was held in March this year and in May Judge Henwood found the man guilty, stating in her decision:

“The Court is satisfied that the prosecution have proved the ingredients of this charge in every respect and there is no doubt in the Court’s mind that the defendant knew exactly what he was doing. He knew the publications that were in his shared file were objectionable. He knew that other persons would have access to them if he made them available in his shared file and he did this in order to achieve further objectionable material from other kazaa users.” [Kazaa was the software he used.]

Today he was fined $2,000 on the possession charges and imprisoned on the distribution charges.

The victims

“While this case centred on technical legal arguments, people should never forget what such offending is about,” Mr Secker said. “The victims are heartbreakingly real. They are children who are filmed while adults sexually abuse them and force them into sexual poses.

“Every time offenders copy and share these images on the Internet they are, in effect, re-enacting that abuse for their own gratification.

“The existence of the images continues the harm. They haunt the victims in future years and encourage more abuse. They spread the false message that sex with children is acceptable, and collectors demand more images and more extreme images.

“The Department’s actions are not about pictures on a computer. They are part of New Zealand’s commitment to international efforts to protect children from abuse.”


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