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Arps v Police

Arps v Police

Case [2024] NZHC 1536 12 June 2024

Criminal Liability

Misuse of a Telephone Device

Obscene Language

Intent to Offend

Breach of Release Conditions

Criminal Law

Telecommunications Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-82

CRI-2023-409-83 [2024] NZHC 1536

BETWEEN
PHILIP NEVILLE ARPS

Appellant

AND

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing: 2 May 2024

Appearances:

A M S Williams and K N Stitely for Appellant W S Taffs for Respondent

Judgment:

12 June 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 12 June 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

ARPS v POLICE [2024] NZHC 1536 [12 June 2024]

[1] Following a judge alone trial, Philip Arps was found guilty by Judge Phillips in the Christchurch District Court of a charge of breaching his release conditions1 and three charges of misusing a telephone device.2 He appeals those convictions and seeks leave to do so out of time. The reasons for the delay in filing the appeal were explained and the respondent claimed no prejudice. Accordingly, leave is granted.

[2] The charges arise from Mr Arps’ alleged conduct while subject to special release conditions imposed following his release from a term of imprisonment for distributing objectionable material relating to the 15 March 2019 terror attack in Christchurch. The relevant special conditions were:

(a)to comply with the requirements of electronic monitoring, and to provide access to the approved residence to the probation officer and the representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment, as directed by the probation officer; and

(b)to submit to electronic monitoring in the form of GPS technology, as directed by a probation officer, to monitor his compliance with any condition relating to his whereabouts.

[3] Mr Arps was charged with breaching these special conditions as a result of having failed to comply with the requirements of electronic monitoring, as directed by a probation officer. It is alleged he failed to keep his electronic monitoring (EM) anklet (the tracker) charged by failing or refusing to fully charge his on-body charger (OBC). This is a rechargeable battery that attaches to the EM anklet and charges the tracker.

[4] The misuse of a telephone charges arise from three sets of text messages sent by Mr Arps to different Department of Corrections (Corrections) staff members responsible for supervising Mr Arps’ compliance with his release conditions.3 Mr Arps was alleged to have used obscene and indecent language when using a telephone device with the intention of offending these Corrections officers.

[5] Mr Arps brings his appeal on three grounds. In relation to the breach of release conditions, he alleges Judge Phillips erred in finding it was a requirement of his release

1      Sentencing Act 2002, s 96(1) – maximum penalty one year’s imprisonment or a fine of $2,000.
2      Telecommunications Act 2001, s 112(1) – maximum penalty of three months’ imprisonment or a fine of $2,000.
3      The three Corrections staff members are referred to in this judgment as Ms A, Ms B, and…

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 [2024] NZHC 1536
Case: [2024] NZHC 1536
Decision Date: 12 June 2024

CaseChat Overview and Summary

Philip Neville Arps has appealed against his convictions for breaching his release conditions and misusing a telephone device. He argues that the District Court erred in finding it was a requirement of his release conditions to fully charge his on-body charger (OBC) before attaching it to his electronic monitoring (EM) anklet. He also argues that the charges under the Telecommunications Act 2001 were not adequately particularised and that the elements of those offences were not proved. The High Court dismissed Arps' appeal against conviction. In relation to the breach of release conditions, the Court found that Arps was well aware of the requirement to ensure his tracker was charged and that he had acted intentionally in allowing the tracker to go flat. The Court found that Arps had been adequately informed of the requirement to fully charge his OBC before attaching it to the tracker and that he had deliberately failed to do so. In relation to the misuse of a telephone charges, the Court found that the charges had been adequately particularised and that the evidence was sufficient to prove that Arps intended to offend the recipients of the offensive communications. The Court found that the language used by Arps was indecent and obscene and that it was directed personally at the recipients with the intention to offend. The Court concluded that each of the elements of the Telecommunications Act charges were established on the evidence beyond reasonable doubt.

Orders