Arps v Police
[2024] NZHC 1536
•12 June 2024
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 Mr C.
conditions to fully charge his OBC before attaching it to his EM anklet. In respect of the misuse of a telephone charges, it is alleged the Judge erred in finding those charges had been adequately particularised and the elements of those offences proved.
Breach of release conditions
Background
[6] It is uncontroversial that the release licence provided to Mr Arps contained the two special conditions regarding electronic monitoring. These were discussed with Mr Arps and, as part of his induction, he signed an EM induction checklist which confirmed that an EM information booklet had been issued to him and discussed. The booklet set out the requirement on Mr Arps to ensure the tracker was charged and warns it must be charged for two hours each day and that a failure to do so is an offence.
[7] Mr Arps’ probation officer, Ms B, gave evidence that she explained to Mr Arps he must charge his tracker every day for at least two hours and emphasised the requirement that it be charged if it was vibrating (indicating the battery was at a low level). She recalled having “numerous conversations” with Mr Arps about this. However, not long after his release, issues emerged with Mr Arps charging the device. This led to Ms B having to further explain the requirements of charging the tracker, including the need to “charge more than two hours a day if [Mr Arps] is outside of his home address for lengthy periods of time”.
[8] Mr Arps was written to by Corrections on 19 November 2020 to explain the charging requirements. It followed a request by him that the information be provided to him in writing when Corrections staff had further attempted to explain his obligations. This letter was couriered to him. Its content included the following:
In order to ensure that your GPS tracker is charged you must ensure that you connect a fully charged ‘on body charger’ (OBC) for a minimum period of two hours each time you are required to charge. This OBC must then be connected to a power supply after each tracker charge to ensure that it is fully charged for the next time you are required to charge your GPS tracker. If you fail to fully charge your OBC, then this will impact on your ability to charge your GPS tracker as required. You are reminded that it is your responsibility to comply with the requirements of electronic monitoring.
[9] A further letter was sent to Mr Arps following an incident on 6 December 2020 when the appellant was in a rural area for a significant period and his tracker went flat. That letter of 15 December 2020 stated:
You are reminded that in order to comply with the requirements of GPS monitoring you need to ensure that you are connecting a fully charged OBC in order to charge your GPS tracker as required.
[10] On 8 January the following year, the tracker’s power was allowed to run low and it ran out at 8.30 am. As a result, Mr Arps remained unmonitored for over two hours until the tracker was provided with power at 10.51 am the same day. It is this incident which gave rise to the charge of breaching the release conditions.
District Court decision
[11] The Judge found that Ms B had explained to Mr Arps that he must charge his tracker every day for at least two hours. Further, that the issue of needing to charge the tracker from a fully charged OBC had been discussed numerous times with him. The Judge concluded that Mr Arps was well aware the OBC had to be charged and that he had acted intentionally in allowing the tracker to go flat. In reaching that conclusion, the Judge accepted the Crown’s submissions that Mr Arps:
(a)had, at his insistence, received directions in writing about the charging of the tracking and EM equipment but then told probation officers he would not open the correspondence sent to him;
(b)continued to charge the electronic tracker from a not fully charged OBC when he had been told by probation officers orally and in writing that this was not an effective process;
(c)had denied he had received text messages reminding him that a fully charged OBC was required when he had responded to those messages;
(d)regularly complained about the equipment which had been replaced on six separate occasions, despite the evidence given by an expert of the robust nature of this equipment; and
(e)his attitude, displayed in his messages and correspondence with Corrections, indicated an intentional course of conduct on his part.
[12] Expert evidence had been received that there was no technical fault with any of the equipment issued to Mr Arps and that charging the tracker for two hours a day from a fully charged OBC would provide more than sufficient power for a day’s use. Analysis of data generated by the tracker was consistent with the device being charged from an OBC that was not fully charged.
[13] The Judge found Mr Arps had breached his release conditions as alleged without reasonable excuse and convicted him on that charge.
The appeal
[14] Mr Williams, who appeared for Mr Arps both in the District Court and on his appeal, submitted it had not been made sufficiently clear to Mr Arps that a failure to fully charge his OBC before attaching it to his tracker would constitute a breach of his release conditions. He argued the criminal law must be predictable and clear and that a person is entitled to know in advance whether their conduct is illegal.4 To that end, he argued that for a probation officer’s instruction to become a binding part of a person’s release conditions, it must be clear they constitute a part of those conditions and need to be in writing.
[15] Mr Williams submitted it is well established that release conditions are limitations on the liberty of those subject to them and must be read restrictively to avoid the unnecessary infringement of a person’s rights.5 It followed, in Mr Williams’ submission, that such requirements be given in written form. He drew an analogy with an electronic monitoring condition imposed by the Parole Board under the Parole Act 2002. Section 15A(3) of that Act provides that an offender who is subject to such a condition must comply with written instructions from a probation officer that are reasonably necessary for the effective administration of the electronic monitoring (for
4 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [38], citing R v Lohnes [1992] 1 SCR 167 at 180.
5 Citing Wilson v New Zealand Parole Board [2012] NZHC 2247 at [61]–[70]; and Te Whatu v Department of Corrections [2017] NZHC 3233, [2018] 2 NZLR 822 at [28].
example, an instruction to regularly charge the equipment), and that an offender will breach the condition if they do not comply with the written instructions.
[16] Mr Williams argued there was no evidence Mr Arps was instructed to fully charge the OBC before attaching it to the tracker. He emphasised that Mr Arps was provided with an information booklet that stipulated the tracker was required to be charged for two hours every day and explicitly stated that it was an offence not to charge the tracker. However, he argued that neither the introduction booklet, nor the letters written to Mr Arps on 19 November and 15 December 2020, informed him that if he failed to fully charge the OBC he would be in breach of his release conditions and therefore in breach of the Sentencing Act. It was submitted this was an important requirement in order to allow the person the subject of the special condition to distinguish between what was a strict requirement of that release condition and what was simply a “recommendation” or best practice.
[17] Mr Williams submitted there was no evidence of Mr Arps having read the letters sent to him and that his probation officers were aware he was not reading letters sent to his home. It was suggested that required an alternative means of communication, either involving a face-to-face meeting or an oral explanation followed by a requirement that Mr Arps sign an acknowledgement he had understood the meaning of what he had been told. Mr Williams argued the Judge erred in suggesting any oral indications by Corrections officers to Mr Arps had created obligations under the release conditions. Further, that the Judge had erred in concluding it was clear what was required of Mr Arps, particularly in the absence of evidence he had been informed of the implications of failing to fully charge his OBC.
Analysis
[18] Ms B gave evidence of undertaking an induction with Mr Arps in which she explained the requirement that he charge his tracker. She had numerous conversations with Mr Arps about ensuring he charged that device, and that the tracker was to be charged every day for at least two hours. Not long after Mr Arps’ release there were issues about him adequately charging the tracker, which required Ms B to again engage with him and remind him of this requirement.
[19] As a result of the further involvement of Corrections with Mr Arps about his tracker, Ms B again engaged with him on 14 October 2020. However, he was unwilling to enter into discussion and requested she put the charging requirements in writing. This resulted in the written direction, set out at [8], contained in Ms B’s letter of 19 November 2020. A subsequent letter was sent to Mr Arps on 15 December 2020 which repeated the charging requirements and set out an unchallenged narrative of events that not only illustrated to Mr Arps how allowing his tracker to go flat would cause him to be in breach of his release conditions, but that to comply with the requirements of GPS monitoring he needed to ensure he connected a fully charged OBC to his tracker. The letter read:
On 19 November 2020, you were couriered a letter which clearly outlined your GPS charging requirements. I have copied an exert from this letter:
As you are aware from previous discussions had during your report ins, you are required to charge your GPS tracker for a minimum of two hours every day. We have also previously discussed that you may be required to charge more often if you are away from your home unit for long periods of time, as your tracker will be continuously seeking GPS satellites which could decrease your battery capacity faster than if it was working off radio frequency (as it does when in range of your home unit). In order to ensure that your GPS tracker is charged you must ensure that you connect a fully charged ‘on body charger’ (OBC) for a minimum period of two hours each time you are required to charge. This OBC must then be connected to a power supply after each tracker charge to ensure that it is fully charged for the next time you are required to charge your GPS tracker. If you fail to fully charge your OBC, then this will impact on your ability to charge your GPS tracker as required. You are reminded that it is your responsibility to comply with the requirements of electronic monitoring.
On 6 December 2020, it was noted that you were in a rural area for a significant period of time, and subsequently your GPS battery drained quickly. The GPS Immediate Response Team (GIRT) attempted communication with you numerous times on this day between 1532 and 1633, in order to get you to charge your tracker, but were unable to make contact. At 1844 you responded to GIRT communication. In order to comply with the requirements of GPS you are encouraged to remain contactable by GIRT and other members of corrections. If corrections are unable to make contact with you and your tracker goes flat, then this will necessitate a response from the Police as you will be in breach of your release conditions. Furthermore, on 6 December 2020 it was noted that you had your OBC connected to your tracker from 0528 to 0909, however at the end of this period when you disconnected your OBC, your tracker was only charged to 50%. This indicates that you did not charge your OBC appropriately prior to connecting this to your tracker and therefore it did not charge your tracker to a sufficient level. You are reminded that in
order to comply with the requirements of GPS monitoring you need to ensure that you are connecting a fully charged OBC in order to charge your GPS tracker as required.
[20] It follows from this narrative that Mr Arps must have been aware of his obligation to ensure the tracker was charged and that failing to charge his OBC before attaching it to the tracker risked failing to comply with the requirements of electronic monitoring and breaching his release conditions. Mr Arps was expressly told if he failed to fully charge his OBC that would impact on his ability to charge the tracker as required.
[21] The letter of 15 December also made it clear that it was a requirement to charge the OBC before attaching it to the tracker. These are express instructions. In any event, it is axiomatic that charging a tracker from a flat or deficiently charged OBC (which is essentially a power unit or battery) for whatever length of time, be it two hours or more, would result in the tracker being inadequately charged. Any resulting failure in the tracker remaining charged would constitute a failure to comply with the requirements of electronic monitoring and a breach of the condition.
[22] Mr Williams argued the letters did not inform Mr Arps that, if he failed to take these steps, he would be in breach of his release conditions. However, I consider it clear, particularly from the letter of 15 December, that Mr Arps was explicitly informed that compliance with the requirements of electronic monitoring required him to connect his tracker to a fully charged OBC in order to ensure the tracker was charged as required. As already observed, it was an indisputable requirement of electronic monitoring, about which Mr Arps was directed by his probation officer, to keep the tracker charged. He failed to comply with that direction. There is no other evidence or reasonable inference to be drawn from the circumstances that this was other than as a result of Mr Arps’ failure and, as found by the District Court Judge, the result of deliberate action or inaction on his part.
[23] I do not consider Mr Williams’ submission that there is no evidence of Mr Arps having read these letters is persuasive. The letters were sent to Mr Arps at his request after phone calls were made to reiterate his obligations. He was unwilling to discuss this information and requested it be put in writing. Any subsequent wilful blindness
by Mr Arps will not absolve him of those obligations.6 This need for written instructions was the very requirement which Mr Williams submitted was necessary for the probation officer’s directions to be considered part of a person’s release conditions, and it was argued the Judge had erred in suggesting oral statements by probation officers created obligations as part of Mr Arps’ release conditions.
[24] I accept, as a matter of good practice, that the requirements of electronic monitoring with which an offender must comply that are the subject of directions by a probation officer, preferably should be stipulated in writing. However, I do not consider that to be an essential prerequisite. As was contended was the case with Mr Arps, the offender may simply refuse to read written directions. The suggestion was made, perhaps somewhat contradictorily, that a “face-to-face” meeting should occur at which time such directions can be explained and the offender required to certify their understanding of those requirements. In large part, I consider that is what occurred at the time of the induction, at least insofar as Mr Arps was made aware of his obligation to keep the tracker charged. It was that ultimate failure by Mr Arps that gave rise to his breach.
Decision
[25] I do not consider the District Court erred in finding Mr Arps was aware of what was required of him. Nor that he had been inadequately informed of those requirements or was unaware that failing to charge his OBC in order to ensure his tracker remained charged would result in him breaching a condition of his release. There is no indication Mr Arps was labouring under any misunderstanding of this requirement or held any misconception that, for the OBC to keep the tracker adequately charged, it needed to have been fully charged — so much is common sense.
[26] Having regard to the information provided to Mr Arps about his release conditions and, moreover, the directions he received regarding the requirements of electronic monitoring, to which he was required to submit, I consider it was more than adequately made clear to Mr Arps that a failure by him to ensure his tracker was
6 R v Martin [2007] NZCA 386, citing A P Simester and W J Brookbanks Principles of Criminal Law (online ed, Thomson Reuters) at [20.4.5.1], as discussed in R v Banks [2014] NZHC 1244, [2014] 3 NZLR 256 at [43].
charged would constitute non-compliance with his special conditions and constitute a breach. Further, that the need to ensure the tracker was being connected to a fully charged OBC in order to ensure it was adequately charged was a requirement of the GPS monitoring and that to allow his tracker to go flat would result in him being in breach of his release conditions. I consider that was the clear, predictable consequence of such non-compliance, about which Mr Arps would have been fully aware.
[27] Mr Arps’ obligations under the special conditions of his release required him “to comply with the requirements of electronic monitoring ... as directed by the probation officer” and “to submit to electronic monitoring ... as directed by a probation officer ...”. There is no dispute Mr Arps signed an acknowledgement he understood the special conditions of his release licence. The most fundamental requirement of his electronic monitoring, about which Mr Arps was directed by his probation officer, was to keep the tracker charged. There is no scope on the available evidence to conclude Mr Arps was not made aware of that obligation, or that he did not appreciate what he was required to do to ensure the tracker remained charged. The evidence is entirely to the contrary. In the absence of any evidence from Mr Arps, the only reasonable inference to be drawn was that his conduct in failing to do so was deliberate. This ground of the appeal must therefore be dismissed.
The telecommunications charges
[28] Mr Arps was found guilty of three charges of misusing a telephone device, in breach of s 112(1) of the Telecommunications Act 2001. It was alleged he had used obscene or indecent language when using the telephone device with the intention of offending a named Corrections staff member.
[29] The first charge concerned a series of text messages sent to the recipient, [Ms A]. Twenty text messages were sent between 11.16 pm on 6 October 2020 and 1.31 am the following morning. In the messages, Ms A is repeatedly called a “cunt” or “gunt”, prefaced with various adjectives; reference is made to asking “[Ms B] if she needs a supremast fucking in the arse”; to Ms A’s physique; and antisemitic language and derogatory references to the Muslin faith are used.
[30] The second charge concerns statements made to Ms B by Mr Arps during a phone call on 27 October 2020. The record Ms B made of the telephone call documents Mr Arps telling her to “go get fucked” numerous times and calling her a “dumb cunt”. He also referred to Corrections being “cowardly dogs” and proceeded to growl like a dog. Mr Arps made a number of derogatory statements about women and entered into a barrage of abuse: “dumb cunt”, “queer cunt”, “go get fucked ...”.
[31] The third charge concerned a set of 18 texts messages sent over the working day of 10 March 2021, between 3.18 pm and 4.47 pm. These were sent to another Corrections staff member, Mr C. The language directed at the recipient included “dumb cunts”, “piss weak cunt”, “fuk off” and “worthless cunt”. The messages also include an adaptation of Mr C’s first name to “germy” and a reference to him being a “dirty virus”. The messages also include a statement that Mr Arps wished to “shoot [Mr C] in the face” with a suggested time being “around midday” on the anniversary of the 15 March 2019 terrorist attack in Christchurch.
[32] The content of the two sets of text messages and the record of Mr Arps’ telephone call to Ms B, which she gave in evidence, are annexed to the judgment.
Particularisation of the telecommunications charges
[33] Mr Williams argued the charges laid against Mr Arps under the Telecommunications Act were not adequately particularised as each charge incorporated a large number of messages and statements, and had been drafted in too broader terms. Counsel argued that Mr Arps was not informed as to which specific messages or comments were being relied upon to prove the charge. In that regard, he noted there were 20 text messages sent to Ms A to which the first charge related.
[34] Mr Williams submitted the three charges failed to “fully and fairly inform the defendant of the substance of the offence” that it was alleged the defendant had committed, in accordance with the requirements of s 17(4) of the Criminal Procedure Act 2011. It was argued the charging documents had not particularised the language upon which the prosecution relied to prove the charge, and that left Mr Arps unable to know the parts of the messages he should be seeking to defend and those being relied upon to establish the charge.
[35] It was submitted there were multiple defences available to Mr Arps, including that he did not send the particular message, that a particular message was not sent with the requisite intention, or that the particular message was not indecent or obscene. Mr Williams argued that, in order for Mr Arps to be able to defend himself, he needed to know the specific language suggested to constitute the offence, and this could have been done by filing separate charges for the different language used, or by the charging documents particularising the language relied upon. In the absence of this being done, it was argued each of the charges had not been adequately particularised and that the convictions should be quashed.
[36] This same objection to the charges was advanced before the trial Court and rejected. The Judge held that, having regard to the number of messages and their content, and the way in which the issues had been able to be addressed before him, he considered the charges had been laid appropriately and in accordance with the legislation and case law. The Judge observed that no objection had been made at the commencement of the prosecution, and he rejected the proposition that Mr Arps had been unable to address the allegations against him as a result of the way in which the charges had been laid. It was considered to be “relatively standard practice” for charges of this type, involving multiple messages, to be the subject of a single charge.
Analysis
[37]Section 17 of the Criminal Procedure Act provides:
17 Content of charge
(1) A charge must relate to a single offence.
...
(4)A charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed.
(5)Without limiting subsection (4), the particulars provided under that subsection must include—
(a)a reference to a provision of an enactment creating the offence that it is alleged that the defendant has committed; and
(b)if the charge is a representative charge, the information specified in subsection (6).
...
[38] Mr Arps was charged with an offence against s 112(1) of the Telecommunications Act, which provides:
Misuse of telephone device
(1)Every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient.
[39] It was argued on behalf of Mr Arps that each of the text messages represents the individual use of a telephone and that each “use” be amenable to a discrete charge. However, the term “use” can extend to a series of calls or, as in this case, a course of conduct involving the use of a telephone device. Depending upon the circumstances, the requirements of s 17 are capable of including a set of actions that can be encompassed by a single offence. In Mason v R, the Supreme Court observed, when considering the predecessor to s 17 (s 329(6) of the Crimes Act 1961) which required that every count in an indictment “shall in general apply only to a single transaction”, that:7
[9] ...
The qualification “in general” and the relatively indefinite word “transaction”, which can encompass both a single event or a course of conduct, recognise the difficulty of application of any precise rule to the charging of the many different fact situations in which acts of offending may occur. They indicate the need for some flexibility. The essential requirement emerging from case law is that, if particular acts of alleged offending can sensibly be charged separately without undesirably lengthening the indictment (overcharging), then that should be done. It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count. On the one hand, the use of a multiplicity of counts is to be avoided where fewer would suffice for the interests of justice. On the other, overly complex counts may prejudice the defence or make it difficult to frame fair and accurate directions to the jury. If necessary trial Judges should intervene if either problem arises.
[10] We repeat what Anderson J said for this Court in R v Qiu. The Court endorsed the practice of not charging as separate offences a continuing course of conduct which it would be artificial to characterise as separate offences. But the Court said that it was another thing to charge as a single count
7 Mason v R [2010] NZSC 129, [2011] 1 NZLR 296.
repetitive acts which can be distinguished from each other in a meaningful way, even if they relate to more than one act of a certain class or character. ...
(footnotes omitted)
[40] Since the enactment of the Criminal Procedure Act, the Court of Appeal has confirmed the approach taken in Mason.8 It follows that it will be appropriate to charge as a single count a continuing course of conduct where it would be artificial to characterise individual actions as separate offences. This is to be contrasted with situations where repetitive acts can be distinguished from each other in a meaningful way and/or are of a different character and seriousness, or need to be distinguished for the purpose of focusing on issues of fact and law.
[41] I do not consider the charging documents were defective for a lack of particularisation, nor that Mr Arps was not adequately informed of the offences he was alleged to have committed. I consider the charges concerning the text messages involved an allegation of a continuing course of conduct and that it would have been artificial to have made each text the subject of an individual charge, or to have required each message to be isolated from the other as a separate offence. Nor do I consider Mr Arps was prejudiced in his defence of any of the Telecommunications Act charges by the way the charges were drafted or, in respect of two of those charges, the fact they encompassed a series of texts.
[42] Mr Arps is required on his appeal to demonstrate that “a miscarriage of justice has occurred for any reason”.9 A miscarriage of justice means any error, irregularity or occurrence in, or in relation to, the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial. I do not consider the way the charging documents were framed in respect of the telecommunications charges, nor the particulars they contain has given rise to any miscarriage of justice.
8 Fungavaka v R [2017] NZCA 195 at [13]–[14]; Gamble v R [2012] NZCA 91 at [51]; Hunter v R
[2021] NZCA 75 at [27]; and Balfour v R [2013] NZCA 429.
9 Criminal Procedure Act, s 232.
Charge 1: Misuse of a telephone — [Ms A]
[43] Ms A, who was Mr Arps probation officer at the time, received unsolicited text messages over little more than a two-hour period overnight, between 6 and 7 October 2020. The charging document provides the dates of the alleged offence and the allegation that, in using a telephone device, Mr Arps used indecent language with the intention of offending Ms A. Copies of the text messages the subject of this charge were supplied to Mr Arps, and there can be no suggestion he was unaware of the nature of the allegation, or that the charge of misusing a telephone in respect of the recipient, Ms A, on the stipulated date(s) concerned his use of a telephone device to send this series of overnight texts, to which no response was made. Ms A’s formal statement was disclosed to Mr Arps, in which she stated:
I am speaking with Detective Constable Jenna Taylor in relation to some offensive text messages that Mr Arps sent to my work cell phone on the 6th and 7th of October 2020.
Between 11:16 pm on the 6th of October and 1:31 am on the 7th of October, I received 21 text messages from phone number [number].
This is a number which I have used to contact Mr Arps previously. These messages were unsolicited and I did not reply to them.
The language that Mr Arps used was abusive and indecent and I was offended by these messages.
[44] No miscarriage of justice has arisen from making this course of conduct the subject of a single charge. I do not consider there is any basis upon which to conclude Mr Arps was other than in receipt of particulars that fully and fairly informed him of the substance of the offence with which he was charged, or that any miscarriage of justice has arisen from any inadequate particularisation of the charge. It would have been artificial to have characterised each text as a separate offence and needlessly complicated the proceeding. The prosecution, as it was entitled, sought to rely upon the combined effect of the series of texts sent in the middle of the night to prove the telephone device was being used with an intention to offend the recipient. It is apparent from the timing of the messages and their content they are linked and are the product of a continuing course of conduct. They represent a stream of consciousness and a continuing communication over a relatively short period of time that was unsolicited. The chain of texts was not interrupted by any reply. They can properly
be viewed collectively as one action or the use of a telephone device on this identifiable occasion.
[45] I do not consider Mr Arps was placed at any disadvantage in not facing individual charges in relation to each text. It was suggested Mr Arps was prevented from running certain defences. These included being able to deny he sent particular messages, that particular messages had not been sent with the required criminal intention, or that particular messages were neither indecent or obscene. However, Mr Arps was free to raise any defence he wished in respect of individual texts, but that did not disentitle the prosecution from relying on the probative value of their collective effect and the reasonable inferences to be drawn from the texts when collectively assessed. It is unrealistic to suggest the texts were required to be read in isolation from each other, or that each is not relevant and of probative value in respect of the other.
[46] Neither in the District Court or on the appeal was any evidence identified to suggest the messages had been sourced from more than one person, or why such a defence could not have been advanced on the basis of the charge as framed in an endeavour to cast doubt on the prosecution’s allegation that Mr Arps was the person using the telephone during the identified period of its use.
[47] There are several examples of valid prosecutions having been brought for this type of offending where a single charge has incorporated multiple messages or acts.10 I am satisfied no miscarriage of justice has arisen from the use of a single charge to allege Mr Arps’ misuse of a telephone device as a continuing course of conduct over a defined period in respect of an identified recipient.
Charge 2: Misuse of a telephone — [Ms B]
[48] This charge concerned Mr Arps’ use of a telephone to communicate with Ms B when it is alleged he used obscene language with the intention of offending her. The charging document was not specific as to the date of this alleged offence, describing it as having taken place between 29 September 2020 and 23 February 2021. While
10 P v Police [2022] NZHC 2131; Modise v Police [2018] NZHC 2737; and Lawson v Police [2013] NZHC 3230.
the recipient is identified as Ms B, I acknowledge that, on the face of the charging document, it would not be possible to identify the particular occasion to which the allegation relates. The offence is not categorised as a representative charge so I accept the particulars provided in the body of the document are deficient. However, I do not consider any miscarriage has arisen as a result.
[49] At the commencement of the trial, the prosecution identified the telephone call of 27 October 2020, about which Ms B had prepared a full note, was the use of the telephone device by Mr Arps that was relied upon to prove this charge. The details of that telephone call had been earlier disclosed in the ordinary way. No complaint was made that Mr Arps had been embarrassed in his defence by the reliance on this particular telephone call for the purpose of proving the charge in the District Court, or was advanced in support of the appeal.
[50] Insofar as Ms B’ evidence of this phone call referred to those parts where language was used upon which the prosecution relied to prove both that obscene language was used and that Mr Arps’ intention was to offend Ms B, I consider it would have been artificial to have divided up the single call for the purpose of laying individual charges. Mr Arps was charged with having used such language during that call, and the prosecution could fairly rely upon the whole of the telephone call for the purpose of proving that in using the telephone device on that occasion he used obscene language with the intention to offend. Mr Arps use of such language during the telephone call represented an ongoing course of conduct which collectively constituted the prohibited act. Again, I do not consider any miscarriage of justice has arisen from the wording of the charging document.
Charge 3: Misuse of telephone — [Mr C]
[51] The third charge concerns a series of texts sent by Mr Arps on 10 March 2021, initially in an exchange between Mr C and himself but which culminated in Mr Arps sending a chain of 14 messages over the course of an hour in the afternoon of that day. The charging document particularises the date of the offending and the allegation that in using a telephone device Mr Arps used obscene language with the intention to offend the recipient, Mr C. The same considerations apply as were discussed in
respect of the charge involving Ms A. When the particulars of the charge are considered together with the disclosed evidence, in particular the schedule of the text messages of 10 March 2021, it is not apparent Mr Arps could have been labouring under any difficulty as to the details of the alleged offending or have been anything other than sufficiently informed of the particulars of the allegation to be able to defend the charge.
[52] Insofar as the prosecution relied upon the collective effect of the serial use of different pieces of obscene language to prove that Mr Arps’ intention was to offend the recipient, the same observations already reviewed in respect of the first charge equally apply. The messages were initially sent during an exchange of texts with Mr C and subsequently as a series of unsolicited texts by Mr Arps in the late afternoon of 10 March 2021. They can properly be viewed as a continuing course of conduct which may appropriately be the subject of a single charge. Any other approach would have been artificial in the circumstances and did not limit or qualify any defence Mr Arps may have wished to have advanced, either in denial that he was the author of all or any of the particular texts, or that his use of the telephone device on this occasion did not involve the use of obscene language, or was not intended to offend Mr C. I do not consider any miscarriage of justice arises from the use of a single charge to encompass Mr Arps’ use of a telephone device to send messages to Mr C on the afternoon of the stipulated date.
[53]It follows from my findings that this ground of the appeal must be dismissed.
Proof of the elements of the Telecommunications Act charges
[54] The final ground of appeal is that the District Court erred in finding the elements of the Telecommunications Act charges had been proved. A number of submissions were made in support of this argument. Broadly, these included an alleged failure to properly identify the test for indecent or obscene language. It was argued the language used in the communications the subject of the three charges did not meet the threshold for indecent or obscene language as those terms were used in the offence provision to warrant the intervention of the criminal law. It was also argued the evidence did not permit a finding that it was Mr Arps who had sent the
texts, and that the prosecution had failed to prove, if it had been Mr Arps, that he intended to offend the recipient of those communications.
The meaning of “obscene” and “indecent”
[55] The prosecution relied upon a number of statements made in cases concerning prosecutions laid under the Summary Offences Act 1981 that involved the alleged use of obscene or indecent language and offensive behaviour in a public place.11 The test for such conduct focused on whether the language or behaviour offended against contemporary standards of propriety in the community, the circumstances in which the language was spoken, and whether persons hearing it were likely to be offended. The degree of offence must be sufficient to warrant the intervention of the criminal law.12
[56] Counsel for Mr Arps submitted that caution needed to be exercised when applying these legal tests which are derived from cases that address public disorder offences. For an offence to have been committed there needed to be an “objective tendency to disrupt public order, by behaviour or because the effect of words used”.13 This was necessary to ensure the alleged offending was conduct deserving of condemnation through the criminal law and the need to protect the right to protest by ensuring the freedoms of expression and movement guaranteed by the New Zealand Bill of Rights Act (NZBORA) were not infringed.14
[57] While it was acknowledged this is not a case that engages questions of public order, it was submitted it involved the interpretation and application of a provision that creates a criminal offence and carries a sentence of imprisonment. It was emphasised that it must be read in a NZBORA consistent way and in a manner that conforms to the principle that the criminal law must be certain. In this regard, Ms Stitely, who advanced this part of the argument on behalf of Mr Arps, referred to the approach taken by Fisher J, in Spooner v Police, to the fundamental interpretative step of ascertaining a provision’s meaning from its text and purpose.15 That case concerned
11 Summary Offences Act 1981, s 4.
12 Daylight v Police [2012] NZHC 3337; Jeffery v Police (1994) 11 CRNZ 507 (HC); and Police v Drummond [1973] 2 NZLR 263 (CA).
13 Brooker v Police [2007] NZSC 30 at [41].
14 Brooker v Police, above n 13; and Morse v Police [2011] NZSC 45 at [24].
15 Spooner v Police (1992) 8 CRNZ 666 (HC).
a prosecution under the present Act’s predecessor, s 8(2) of the Telecommunications Act 1987, which shared the same statutory purpose, “to regulate the supply of telecommunications services ...”, as the present Act. In examining the purpose of the legislation, Fisher J observed:16
... s 8(2)(a) itself appears in the context of a section which also deals with profane, indecent, or obscene calls and knowingly giving fictitious orders, instructions and messages. The context, I think is a series of provisions designed to prevent the wilful abuse of telephone services to the detriment of the recipient. That would accord with the fact that having a telephone is a voluntary arrangement. One would expect a subscriber to install a telephone only so that it could be used directly or indirectly for the benefit of the subscriber and his or her nominees. It seems to me that in that situation the subscriber confers an implied licence upon other persons to place telephone calls to the subscriber only for purposes which will directly or indirectly benefit the subscriber. ...
Some latitude would obviously be expected in the use which could properly be made of telephone calls in the cut and thrust of every day life, one would not expect that every trifling statement intended to irritate the listener would attract potential prosecution. ... When installing the phone the subscriber would expect, and impliedly agree to, minor irritations of that nature. One might think that only serious attempts to disturb or annoy would fall outside the implied licence and inside the scope of s 8. Usually, although not invariably, it would involve calls which had been lodged for the specific purpose of disturbing, annoying, or irritating, as opposed to spontaneous and fleeting remarks in the course of an otherwise legitimate conversation.
Accordingly, one would expect the legislation to prohibit use of a telephone only in circumstances where everyone ought to realise that the subscriber would not have intended or agreed to such use when the subscriber voluntarily installed the equipment and allowed others to call. That approach would seem fully consistent with an Act whose overall purpose is not to duplicate the crimes of Police Offences Acts but merely “to regulate the supply of telecommunications services and equipment and to provide for the licensing and regulation of radio apparatus” (long title). It would also be consistent with a section whose other provisions are all evidently designed to prevent the wilful abuse of telephone services to the detriment of the recipient.
[58] That case is now of some 33 years vintage and the technology of telecommunications has changed greatly in the intervening years. However, I consider the same considerations apply to the interpretation of s 112(1) of the current Act. The prohibition on the use of indecent or obscene language when using a telephone device is for the purpose of preventing the wilful abuse of telecommunications services. To constitute a criminal offence the language must go beyond that which must be tolerated
16 Spooner v Police, above n 15, at 669.
in the course of legitimate conversation, messaging or other communications that receivers must be taken to have accepted they may be exposed to in the ordinary course of using telecommunications as part of their personal, business or occupational lives.
[59] Ms Stitely submitted the language Mr Arps used did not meet the standard of what could be considered indecent or obscene for the purpose of being sanctioned by the criminal law pursuant to s 112(1) of the Telecommunications Act. It was submitted that Mr Arps and Corrections were in dispute regarding the management of his release conditions. This was an ongoing grievance and Mr Arps was experiencing considerable frustration and anger about his treatment. It was argued the content of Mr Arps communications with Corrections staff needed to be considered in that context, and that notwithstanding the words used, he was entitled to exercise his freedom of expression when pursuing his dispute with Corrections through its representatives.
[60] In furtherance of this submission it was argued that not all the messages and communications were directed at the recipient of the message but, rather, expressed frustration at Corrections. In this regard, reference was made to “u lot”, “your lot” and calling Corrections “Corruptions”. It was argued the communications were made to representatives of Corrections and that “fraught” or “harsher” language could be anticipated to be expressed given the situation. It was submitted that something more than simply using common swear words or calling a person derogatory names was required to meet the threshold of being indecent or obscene to warrant the criminalisation of such language. It was further argued that, having regard to the role of probation officers and the people and issues with which they must deal, a certain level of robustness and tolerance is required.
[61] While, as noted, it was accepted the present case arose in a different context, some reliance was placed on the remarks of Kós J in Taueki v Police,17 that abusive or insulting behaviour is still capable of involving the exercise of rights of free expression to protest protected by NZBORA which will attract a higher threshold for constraint by the criminal law.18 Those observations were made in the context of public protest
17 Taueki v Police [2013] NZHC 1710.
18 At [22].
and the need to tolerate expressions of opinion which may be ill-mannered and obtrusive. To the extent a comparison was attempted to be made with communications made by use of a telephone device, I consider the analogy is necessarily limited. However, even in the context of public protest, Kós J observed that:
[24] ... sheer vituperative abuse, which neither seeks to convey information nor to persuade the listener to the speaker's point of view, is unlikely to engage the augmented threshold protection. Such communication lacks the inherent democratic process values s 14 [NZBORA] in particular sets out to protect. ...
[62] I proceed on the basis the assessment of language as indecent or obscene must be undertaken in accordance with the purpose of the Telecommunications Act and NZBORA. However, I do not consider there is any realistic argument available to suggest the language used by Mr Arps was neither indecent or obscene, nor that it was not otherwise directed at the recipient of those communications. I accept the use of swear words or offensive names may not in isolation be sufficient to meet the threshold but context is everything. The nature and circumstances of the communications the subject of the charges and the collective effect of the language must be assessed to determine whether the telephone device is being wilfully abused by the use of such language.
[63] Ms A was repeatedly called a “cunt” or “gunt”, prefaced with such adjectives as “fat”, “worthless”, “piss weak” in a series of unsolicited texts sent to her overnight. She is described in the texts as “violently disgusting because of your gunt”. There is a reference to Ms A’s colleague and to performing a sexual act on her, and to Ms A’s physique which is stated as “violently disgusting because of your gunt”. There are other statements such as “stick any faults up your gunt which means cunt without
the C you dumb lying cunt/fat-belly gunt”. This is not protected speech.
[64] Having regard to the nature and repetition of this abuse in successive messages sent over an approximate two-hour period in the early hours of the morning, I consider when the texts are read collectively they amount to an indecent diatribe clearly directed at the recipient. Mr Arps may well have held a longstanding grievance with Corrections which motivated him to use such language. However, this rancour did not entitle him to use that language to personally attack particular staff members. In the
circumstances, I consider the Judge was correct to conclude the language was indecent.
[65] In respect of the use of the telephone on 27 October 2020, I consider the Judge’s finding that the language was obscene was also correct. Ms B described receiving a barrage of abuse that included being told to “go get fucked” numerous times and being referred to repeatedly as a “dumb cunt”. Mr Arps told Ms B that “you cunts aren’t even women”. He said to Ms B that he cannot talk to women as “[they] don’t have the capacity to understand” and that he was “gunning for those cunts”. They will be up against the wall when answering questions”. The phone call was described in evidence as ending amidst another barrage of abuse: “dumb cunt, queer cunt and go get fucked, etc”.
[66] As noted by the Judge, the language was directed to Ms B personally. She is the person described as a “dumb cunt”. She is the woman to whom the statement “you cunts aren’t even women” is directed. She is the person being told repeatedly to “get fucked”. It was again argued that the language used by Mr Arps was for the purpose of protesting the way he was being unfairly treated by Corrections that caused him to respond in the manner he did. I do not consider this argument advances Mr Arps case when the language, as I have noted, was personally directed to the recipient and constituted gratuitous intentional abuse.
[67] It did not “convey information”, nor was it used in an endeavour to persuade, or advance the speakers point of view. I accept the words “fuck” and “cunt” are often accepted or tolerated pieces of language depending on the context and situation. It is the way the language is used in this situation and the purpose for which it is uttered that qualifies it as “sheer vituperative abuse”. Its repeated use to directly target the recipient, who was attempting to carry out her professional duties, renders the language indecent in that situation.
[68] Turning to the second set of texts sent to Mr C on 10 March 2021, again, the content largely speaks for itself. As noted by the Judge, in the course of this set of text messages Mr C was described as “a dumb piss weak cunt” and “another worthless cunt to me”. Mr Arps states, “I’m tired of putting the effort into a worthless cunt such as
yourself”. He refers to Mr C as “you dirty virus” and states, “you dumb cunts aren’t really AA” and “the piss weak cunt you seem to be”. This is but a sample. Mr Arps states that he wishes to shoot Mr C in the face and the suggested time is “about midday” on the anniversary of the 15 March 2019 terrorist attack in Christchurch. All the texts need to be read in context and collectively assessed when determining whether the language used was obscene. I consider these various statements were directed at Mr C and that the words used in the texts, which were at times laced with antisemitic and Islamophobic references, were obscene.
Proof that Mr Arps was using the telephone device
[69] It was submitted the Judge failed to find it proved that Mr Arps sent the texts the subject of charges. It was argued that because the texts were spread over a period of time, it was conceivable another member of Mr Arps’ family sent the messages, particularly because it was accepted that other members of his family shared phones and that when the device in question was seized at the time Mr Arps was arrested, it was Mr Arps’ son who had possession of it.
[70] I consider the evidence was sufficient to prove the element of attribution of the texts to Mr Arps. The Judge outlined how Mr Arps had come to be using a phone with a SIM card number from which the subject texts were received, about which there was no dispute. Mr Arps was prohibited by his post-release conditions from possessing an internet capable device such as a smart phone. However, because Corrections needed to maintain contact, arrangements were made for him to be supplied with such a phone. The first of these telephone devices was seized by police on 15 October 2020, but Corrections purchased another phone and SIM card. Ms B had numerous conversations with Mr Arps on this phone, which utilised the number associated with the SIM card that Corrections had provided. When called by Corrections staff, Mr Arps would answer this phone by saying “Phil Arps beneficial insulation”. All the text messages the subject of charges were sent from this number. Against that background there is also the content of the text messages.
[71] The set of overnight text messages to Ms A include several messages which are signed off as being from Mr Arps. A message at 11.45 pm on 6 October 2020
finishes, “Warmest regards Phil Arps”. The penultimate message concludes with “Warm regards, ARPSY THE NAZI!!!”. The content of the text messages is highly indicative of them having been sent by Mr Arps, as is apparent from the following two examples:
Oi' dumb cunt.why was i givin a 2nd hand tracker and battery? If this jew shit fucks out when im fishing...that becomes your problem seeing as the braclett tollerated is your jew weapon. ...
My jew leg is vibrating?ive already chaged for 2hrs? Ill recharge ...
[72] When spoken to by the police, Mr Arps did not contest the messages were other than those which he had sent. He claimed he was entitled to use the language he used due to the way he had been treated and claimed he was referring to Corrections as a collective in his messages. It is notable the messages that were sent in the early hours of the morning, contain language similar to that used by Mr Arps when he spoke on the phone to Ms B and concerned the grievances he had with Corrections regarding his electronic monitoring. Ms A was Mr Arps probation officer at the time and she is referred to by name.
[73] A further relevant piece of evidence is Mr Arps statement to police in January 2021, when he was arrested for having failed to charge his tracker. On the way to the police station, Mr Arps referred to his current probation officer by her first name (Ms B) but that she was just as bad as his last one, who he also referred to by her first name (Ms A). He said he was sick of dealing with female probation officers, but that he knew how to get rid of them now. When asked how, Mr Arps replied, “All I have to do is send them messages like I did to [Ms A], then she gets labelled a victim and they move her on.”
[74] I consider that assessing all this evidence in combination establishes beyond reasonable doubt that Mr Arps was the author of the series of texts sent over the night of 6 and 7 October 2020. In the absence of evidence to the contrary, such a conclusion is reasonably available, if not inevitable.
[75] In relation to the set of texts sent to Mr C on 10 March 2021, the Judge found the evidence established beyond any doubt that it was Mr Arps who was using the
telephone device on this occasion. I agree. The texts initially comprise an exchange of messages between Mr Arps and his probation officer, Mr C. The first of the afternoon is sent by Mr C to Mr Arps using the number he regularly used to contact Mr Arps. The reply references the sender passing the documents referred to in the preceding text to his lawyer and having a court ordered condition “to which I adhere”. There is no reason to doubt Mr C is communicating with Mr Arps, during which the user of the phone refers to a previous phone call the sender had with Mr C, about which only he would be aware of the details.
[76] The initial exchange is followed by a series of texts to which Mr C does not respond. The timing and sequence of that series of texts, which follows directly from the exchange of messages between Mr Arps and Mr C, demonstrates the author is Mr Arps, as does its content. Having regard to all the circumstances, the context and content of the text messages and the absence of any contrary indicator in the evidence, I consider it was clearly established beyond reasonable doubt that it was Mr Arps who was using the telephone device to send this set of messages to Mr C on 10 March 2021.
Intention to offend the recipient
[77] It was further argued that the prosecution had failed to prove the requisite intention to offend the recipient of the messages. Again, it was emphasised the texts were sent amidst the ongoing dispute Mr Arps was having with Corrections regarding his electronic monitoring and the frustrations he was experiencing regarding the restrictions on his freedom of movement. It was argued Mr Arps’ intention was not to target an individual probation officer but to express his feelings and frustration. While it was submitted the language used by Mr Arps would be considered impolite or inappropriate, it was submitted the fact he used common four letter words did not make his behaviour illegal, nor establish an intention to offend the persons receiving this language.
[78] To the extent Mr Arps has suggested his statements were the product of his anger and frustration at Corrections and were directed at that department rather than the persons to whom he messaged or spoke, such a motive is not mutually exclusive with an intention to offend the recipients. This was confirmed by this Court in Lawson
v Police, where Williams J observed, in the context of a charge laid pursuant to s 112(2) of the Telecommunications Act:19
[25] The court must also have been satisfied beyond a reasonable doubt that Ms Lawson’s facsimiles were each intended to offend their respective recipients — [named recipients]. As the authorities confirm, this additional mental element shifts focus from the sender’s general purpose in making the communications, to her specific intention in respect of the actual recipient. The relevant intention is in relation to that person and not anyone else who might receive the communication in some incidental or derivative way – for example, if the facsimiles had been sent to a wrong number and received by an unintended recipient.
[26] In this case, the communications were aimed at the organisations with which Ms Lawson was in dispute. More particularly, they were aimed at all and any individuals working within those organisations. ...
[79] It is readily apparent the abuse that was directed to the recipients in this case was because they held positions within Corrections and their duties to supervise Mr Arps, including his electronic monitoring. However, that fact does not alter Mr Arps’ intent in speaking or sending messages to those persons in the manner he did. Whatever Mr Arps motivations may have been, I have little doubt in concluding, when regard is had to the context and content of his communications, that his intention was to offend the recipients.
[80] The series of messages that were sent to Ms A were well outside of working hours, late at night and into the following morning. They were clearly from their content directed at her and intended to be abusive and offensive. The context and circumstances of this messaging and the content of these texts, which are entitled to be viewed collectively when assessing Mr Arps intention, leave no reasonable doubt they were intended to be taken personally by the recipient and were made with the intention to offend that person — so much I consider to be an obvious and reasonable inference.
[81] Similarly, the telephone call involving Ms B on 27 October 2020 in which she was subject to several barrages of abuse, with the use of such phrases as “go get fucked” and references made to her as a “dumb cunt” or similar epithet, which were repeated numerous times, was clearly intended to be offensive. There are other parts
19 Lawson v Police [2013] NZHC 3139.
of this telephone call which go far beyond being rude or simply involved the use of expletives in the course of communication. Mr Arps repeatedly used a range of offensive epithets to abuse and belittle the recipient with the obvious intention to cause offence. This did not occur in the course of a heated exchange or a lapse during an angry conversation. The apparent excuse put forward that the language was directed at Corrections and not the individual personally is spurious. It was Ms B who was told to “get fucked”, called a “dumb cunt” and informed that “you cunts aren’t even women”. There is evidence of this being part of a deliberate tactic by Mr Arps to have female probation officers replaced but, whatever his designs, the use of this language during the telephone call is patently directed at the recipient and intended to cause offence. It is an inference reasonably available on the evidence.
[82] In relation to the set of texts sent to Mr C on the afternoon of 10 March 2021, I consider the Judge was entitled to conclude the abuse contained in the texts was sustained and specifically tailored to be offensive toward the recipient. The language was directed personally at Mr C, who was variously described as a “worthless cunt” and a “dirty virus”. Mr Arps stated, “I really want to shoot you in the face germy”. I agree with the Judge’s conclusion that Mr Arps’ intention in the circumstances was to offend Mr C by the personal abuse he directed at him.
Conclusion
[83] I consider each of the elements of the Telecommunications Act charges were established on the evidence beyond reasonable doubt and that Mr Arps was properly convicted of each charge. Having dismissed each of the grounds raised, the appeal against conviction is dismissed.
Result
[84]Leave to appeal out of time is granted.
[85]The appeal against conviction is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Charge one: misuse of a telephone device ([Ms A])
Text messages from Arps to [Ms A]
Date Time From To Content 6/10/2020 11.16
pm
Arps [Ms A] Oi' dumb cunt.why was i givin a 2nd hand tracker and battery? If this jew shit fucks out when im fishing...that becomes your problem seeing as the braclett tollerated is your jew weapon.2hrs min per day charging...stick any faults up your gunt...which means cunt without the C. U dumb lying cunt/fat belly gunt. 6/10/2020 11.32
pm
Arps [Ms A] My jew leg is vibrating?ive already chaged for 2hrs? Ill recharge when the jew battery is delivered on midnight unless you useful idiots instruct otherwise,lol this phone has chinese time as default. I can only work with what you dumb cunts instruct/dictate gunt!fleas work with me,lol! 6/10/2020 11.38
pm
Arps [Ms A] Its 7.4jpm on mine...feel free to correct me,lol dumb gunt...wouldnt want to breach these jewed instructions you preach.
Warmest regards Phil Arps BIIG Ltd.
6/10/2020 11.45
pm
Arps [Ms A] Oh,i also want a burka to show muslim tolerance to transgender and islamic crossdressing acceptance for diversity and to show my personal toleranaces to such...as a tolerant muslime. God is great,SIEG HEIL ADOLF HITLER! 6/10/2020 11.46
pm
Arps [Ms A] Now 7.55 gunt 6/10/2020 11.47
pm
Arps [Ms A] Are corruptions having troubles now? 6/10/2020 11.50
pm
Arps [Ms A] gunt=fat cunts guts being one with a cunt...sums u lot up correctly...it aint perosnal probie. 7/10/2020 12.01
am
Arps [Ms A] Im sitting where i sit waiting for you to do ya job big bellied gunt,i insist on your help by a reply...it is ya job at stake. 7/10/2020 12.47
pm
Arps [Ms A] Far out,the girt team show more professionalism like i live Nationalism.stick that that up ur arse gunts! 7/10/2020 12.49
am
Arps [Ms A] Btw,i still dont know the time cunts.
7/10/2020 12.57
am
Arps [Ms A] Lol.gunt...dont start with c, lying governmental cunt? 7/10/2020 12.58
am
Arps [Ms A] lmwao! 7/10/2020 1.02 am Arps [Ms A] U should ask [Ms B] if she needs a supremast fucking in the arse for me...im shy sometimes,but im sure it would if u asked for me? 7/10/2020 1.12 am Arps [Ms A] Being a muslime,more than one whore is acceptable after taking a wife,dont feel left out gunt but i personally find your stature violently disgusting because of your gunt,please dont breed! Only the fitest and finest warrent respect once earned,your lot are owed only what id give to traitors lol. Ask winston what i want and mean as to what youre owed.trust my word. 7/10/2020 1.13 am Arps [Ms A] Lol,i share too gunty mc'guntyson. 7/10/2020 1.19 am Arps [Ms A] Lol,it was only yesterday that once again i named you worthless cunts collectivly, guntists.is my tracker working you worthless lying 'cunt' with a C? Please respond for your dept pipC. 7/10/2020 1.24 am Arps [Ms A] U cud always defect and be welcomed into the river and White Bait,come learn my
endgame gunts! I have patience to teach.
7/10/2020 1.24 am Arps [Ms A] Share and record that.smiles! 7/10/2020 1.25 am Arps [Ms A] Lol,lol,lol nity nite. 7/10/2020 1.29 am Arps [Ms A] Your not the only cunts sharing my sincerities,dumb cunts. Warm regards, ARPSY THE NAZI!!! 7/10/2020 1.31 am Arps [Ms A] C u cowards in court ya piss weak cunts.BOOM BOOM says Basil the fox at
all jokes.smiles.
Charge two: misuse of a telephone device ([Ms B]) Note made by [Ms B]:
Circumstances: phone report in completed with Phil. Alongside myself, [named person] was present. It was challenging again today to get many words in before phil spoke over me. Similar to previous weeks Phil did not wish to disclose any information about how his week had been or how he is in general. I indicated that I understood he had some issues with his charger over the weekend. Phil wasn’t willing to discuss this
so I asked him whether from his perspective the issues had been resolved to which he replied that I should know as I monitor the jewish shit, followed by a barrage of abuse ‘go get fucked’ numerous times and ‘dumb cunt’. I informed Phil that it wasn’t okay to call me such a name to which he informed me that he wasn’t calling me this and that he was referring to corruptions and not me personally. He also made references to us being cowardly dogs and proceeded to growl like a dog. I informed Phil that I was finding what he was saying offensive to which he indicated that I should get a job which I could handle. Phil raised concerns around him being forced to use a corrections’ phone. I informed Phil that the phone has been offered to him so that he can meet his reporting requirements. Later in the report in Phil mentioned that he would turn the phone off after this until next week, however, I suggested that it would be necessary for GIRT to be able to get in contact with him. I talked to Phil about the fact it appeared from his communication with GIRT over the weekend that he is still not charging his OBC appropriately after each tracker charge and reminded him that following our recent discussion about this I had also text him this. Phil initially stated that he didn't get these text messages, however, when I informed him that he had replied to them he then said he didn't remember. He said that he still required this in writing and that we need to still – we need to still to the procedure so I indicated that I would text him this to his current phone and that we are currently drafting a letter for him as well. I asked him whether he would get the letter if I was to send it to his home address as I was aware that he hasn’t been spending much time there recently. He indicated he would get it eventually and that it would just be placed with the other unopened mail from corrections. Phil engaged in a barrage of abuse for a good couple of minutes at one point through the reporting. It was challenging to follow all of what he said, however, he did say: ‘You cunts aren’t even women. I hope she’s fucken fired,’ which I took in relation to [Ms A], and again: ‘Go get fucked, on numerous occasions. He stated that he was very happy and he is smiling about how worthless and: ‘Over the top you cunts are.’ I informed Phil that I needed to raise his request for a recent GIRT recording with him and wondered whether he would be happy to listen to this over the phone. Phil took exception to the fact we were aware of this as in his eyes this was a privacy request to GIRT. He stated that he wanted a copy, not to listen to this over the phone. Phil stated he is part of the BDS movement and that it was highly offensive to have the stuff of Israel on me, referring to his EM tracker. He again reiterated that he wanted copies and stated he has been sent USB sticks. I suggested that we probably wouldn’t send this to him on a USB stick given at present he doesn’t have permission to use an internet capable device and this is what would be required to listen to the recording via USB. I attempted to explore what he had been sent via USB. However, Phil took this as not understanding what he had said and referenced the fact that he can't talk to women as we don’t have the capacity to understand. He then stated: ‘I'm gunning for those cunts. They’ll be up against the wall answering questions.’ When I attempted to clarify what he meant by this Phil again stated that I was too thick to understand him and how was he supposed to work with someone who doesn’t understand him? How was I meant to assist in reintegrating him?’ I suggested to Phil that in order to assist him with reintegration he would have to be willing to discuss things which he doesn’t appear willing to do. He said that he did at first but that changed when we took things away from him. The phone call was ended in amidst another barrage of abuse: ‘Dumb cunt, queer cunt, go get fucked,’ etc. DA: provide feedback to governance regarding GIRT information request and in order for this to be appropriately provided for.”
Charge three: misuse of a telephone device ([Mr C])
Text messages between Arps and [Mr C]
Date Time From To Content 10/03/2021 8.44 am [Mr C] Arps Hi Phil, I cannot ring you at 9.30am today
sorry, that appointment was made without knowing. I can call you at 1.30pm today.
10/03/2021 3.08 pm [Mr C] Arps Direction notices and case notes are in a courier bag and heading to your address.
Talk on Friday at 9.30am.
10/03/2021 3.18 pm Arps [Mr C] I'll pass them to my lawyer,you dumb cunts can send them to Anselm if you want them opened and read as I dont understand your non-sence germy 'the virus' [Mr C]. I have my court ordered conditions to which I adhere, you dumb
piss weak cunt. So once again...fuk off!
10/03/2021 3.24 pm [Mr C] Arps If you read the wording of your court ordered conditions then you will know that imposing additional exclusion zones is in line with the condition. Not my responsibility to send it to your lawyer, I will send it to you and you can pass onto your lawyer should you choose.
Nonetheless, the zones stand and have been added to the electronic portal. Talk
Friday.
10/03/2021 3.27 pm Arps [Mr C] What imaginary zone? And again… Fuk
off and get a flu jab.
10/03/2021 3.32 pm Arps [Mr C] A lot of people laughed at you whilst I described you on the phone at the shops…you are just another worthless
cunt to me and my openly shared opinion. Carry on Mr 2 lil,2 l8
10/03/2021 3.42 pm [Mr C] Arps Its not imaginary and I was going to explain where it is as it is important for you to know where it is so you don't
breach. The letters should be with you within the next day or so.
10/03/2021 3.44 pm Arps [Mr C] I wanna request to see an iman again too and request again to play airsoft,you are invited tooif you wish, so I can shoot you in the face in the name of sport and good fun,it is reciprocal. I'll arrange a time for us at Area 67 if you want…hows the 15th March suit,around midday? I look forward to your piss weak response
germy
10/03/2021 3.46 pm [Mr C] Arps As per your previous requests, they are declined. 10/03/2021 3.47 pm Arps [Mr C] And again,i make non-sence of your bullshit text? Im turning my phone off as
I am tired of putting the effort in for a
worthless cunt such as yourself, ya dirty virus.
10/03/2021 3.50 pm Arps [Mr C] Some so called judge said i only need to request? so as not to breech my rights,you dumb cunts aint readers ae? 10/03/2021 3.52 pm Arps [Mr C] Go on,come out with me. I really want to shoot you in the face germy. You might
enjoy it as much as me.
10/03/2021 3.55 pm Arps [Mr C] Go on, i dare ya 10/03/2021 3.56 pm Arps [Mr C] Or 4eva b the piss weak cunt you seem 2
b. Your choice. Carry on.
10/03/2021 3.58 pm Arps [Mr C] Its good these moments,they are for the public record soon enough. 10/03/2021 4.00 pm Arps [Mr C] Much like your report in session you
useful idiots conduct,lmwao.
10/03/2021 4.05 pm Arps [Mr C] Oh,my lawyer said i can tell you to fuck off. You are an agravating pissweak cunt so…fuck off and import me a jihadi
whore immediately! Jewcinders ardurn will help im sure.
10/03/2021 4.05pm Arps [Mr C] Rightio? 10/03/2021 4.07 pm Arps [Mr C] Oi,cunt. What are your work hours? 10/03/2021 4.24 pm Arps [Mr C] I'm a concrete worker by your claim? Harden up then,you piss weak cunt. 10/03/2021 4.27 pm Arps [Mr C] Oh,and a White Supremast too? My nigga. 10/03/2021 4.31 pm Arps [Mr C] You do realize that much like the fizless [Ms A],you too will be described in full
by myself. Carry on.
10/03/2021 4.47 pm Arps [Mr C] Think i seen a fellow musie while shopping,couldve been a veiled christian for all i know,i didnt discriminate and tipped my cap. How do i dissern between a good jew wise Orthodox Christian and my kind? Serious question to avoid Dept
of Corruptions 'construing' another breech. Carry on.
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