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July 11, 2010

Lawyer urges 'balance' as child pornography viewer jailed

A defence lawyer’s efforts to “bring some balance” to a child pornography prosecution have brought a sharp response from the crown at a sentencing where the judge jailed his client for two years.

Crown prosecutor Kathy Basire immediately replied: “These children do exist. They are not animations. They are real children being abused all around the world.”

She pointed out that Nicholas Doun Wogan, a 58-year-old sickness beneficiary, had amassed 22,322 still images and 76 video files, and much of the material involved serious abuse, sometimes involving children as young as five.

 “One should steady the ship a little here,” said defence counsel Gerald Lascelles after reading the crown submissions. Rather than getting carried away “on a tide of moralistic fervour” he urged the court to bring some balance to the situation.

Wogan, who had admitted 50 charges of importing objectionable publications into New Zealand, was in poor health and had been an invalid beneficiary for 12 years. He had no criminal history.

“He has downloaded some material. He’s never bought any, never sold or distributed it to anybody, never shown it to anybody else, never made additional copies for distribution,” said Mr Lascelles.

“This was from a site that was accessed 12 million times, from 144,285 different addresses, in 170 countries.”

Christchurch District Court Judge David Holderness commented: “Some might say that the Internet has done nothing for us.”

Mr Lascelles acknowledged they were distasteful images. He pointed out that New Zealand Customs had called its swoop Operation Sledgehammer, and accused the department of laying a large number of charges “simply to encourage heavier penalties”.

Prison was not an appropriate penalty for a 58-year-old man in poor health. He was now attending the Stop programme for sex offenders. He urged a sentence of home detention, arguing that a jail term would mean Wogan would lose his house and the progress he had made so far.

Miss Basire said: “Parliament has indicated that child pornography and downloading it is not something that society is willing to accept.”

She said present Opposition Leader Phil Goff had said when the bill imposing heavier penalties was passed that “every image represents actual abuse of a child”.

She said Wogan’s offending was at a very high level. The videos were up to 16min long and most depicted children, some as young as five, being penetrated by adults. Hundreds of the still images showed children five or younger, and hundreds showed children being penetrated by adults.

“The prisoner didn’t only download the images. He selected what he wanted to keep and then stored them on CD-Roms in separate folders, and disguised the names of the CD-Roms so no-one would know what was on them.”

He was detected when the website in Croatia was hacked in 2007 and in the investigation that followed people who had visited the site could be traced.

Wogan had committed the offences over three years and he was seen as a moderate to high risk of re-offending.

Fifty charges could not be seen in any way as “over-charging” bearing in mind the amount of material involved, and home detention would be completely inappropriate, she said.

Wogan had acknowledged searching for material depicting young females. The crown urged a starting point for sentencing of up to three-and-a-half years, citing the large number of files, the significant percentage that contained more serious abuse, the age of the children involved, and Wogan’s collating and organisation of the material.

The judge noted Mr Lascelles’ submission that the name of the operation, Sledgehammer, and the large number of charges reflected the heavy-handed approach.

He jailed Wogan for two years, a term that allows home detention to be considered. But he said High Court judges had said home detention was inappropriate for the nature and seriousness of this type of offending.

He noted Wogan’s state of health, with diabetes and depression, his references, and his ability to contribute as an orchestral musician. “You are plainly an intelligent man and you have seen the wisdom of engaging in the Stop programme. I am afraid all these factors don’t outweigh the very real need for deterrence in relation to this type of offending. Home detention would not be appropriate.”