Hearing:	18 November 2019
Court:	Collins, Brewer and Gendall JJ
Counsel:	A M S Williams and J D Lucas for Appellant F R J Sinclair and V McCall for Respondent
Judgment:	28 November 2019 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal against sentence is granted.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

On 16 March 2019, Mr Arps distributed to approximately 30 of his associates video footage which showed Mr Tarrant shooting a large number of people in two Christchurch mosques on 15 March. The actions of Mr Tarrant have led to him facing 51 charges of murder, 40 charges of attempted murder and one charge under the Terrorism Suppression Act 2002. On 16 March, Mr Arps also sent the video footage to another person and arranged for them to modify the video to include an image of rifle “crosshairs” and a “kill-count”. Later, on 16 March, the Prime Minister made a statement to the effect that it was likely an offence for anyone to distribute the video footage. Thereafter, Mr Arps deleted the modified video footage and refrained from any further distribution of the unmodified video footage.
Mr Arps was charged with two offences alleging that he had supplied or distributed objectionable material contrary to s 124(1) of the Films, Videos, and Publications Classification Act 1993. The maximum penalty for breaching that section is 14 years’ imprisonment.
Mr Arps sought a sentence indication, which was given by Judge O’Driscoll in the District Court at Christchurch on 17 April 2019. The indication was that if Mr Arps pleaded guilty the Judge would adopt a starting point of 2½ years’ imprisonment. The Judge said he would make deductions totalling 9 months from the starting point to reflect, amongst other matters, a 25 per cent discount for an early guilty plea. The Judge told Mr Arps that he would not convert the sentence to one of home detention. Mr Arps accepted the sentence indication and pleaded guilty. He was sentenced by Judge O’Driscoll on 18 June 2019 to 21 months’ imprisonment.[1]
[1]R v Arps [2019] NZDC 11547 [Sentencing Notes].
Mr Arps appealed his sentence to the High Court. His appeal was dismissed by Dunningham J on 27 August 2019.[2]
[2]Arps v Police [2019] NZHC 2113 [High Court judgment].
Mr Arps now seeks leave to pursue a second appeal against his sentence.

Criteria for granting leave to appeal

Before this Court can grant leave for Mr Arps to pursue a second appeal against sentence, we need to be satisfied that:[3]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arps v Police

Details

AGLC: Arps v Police [2019] NZCA 592
Case: [2019] NZCA 592
Decision Date: 28 November 2019 at 3.30 pm

CaseChat Overview and Summary

Philip Neville Arps was convicted of two charges of distributing objectionable material contrary to s 124(1) of the Films, Videos, and Publications Classification Act 1993. Arps was sentenced to 21 months’ imprisonment by Judge O’Driscoll in the District Court. Arps appealed his sentence to the High Court but his appeal was dismissed by Dunningham J. Arps now seeks leave to pursue a second appeal against his sentence. The Court found that Arps’ application for leave to appeal involved a matter of general or public importance and therefore granted his application for leave to appeal. However, the Court dismissed Arps’ appeal against sentence as it found that the sentence imposed was not manifestly excessive.

Orders