Arps v Police - [2019] NZHC 2113

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000079

[2019] NZHC 2113

BETWEEN
PHILIP ARPS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 August 2019

Appearances:

AMS Williams for Appellant S Dayal for Respondent

Judgment:

27 August 2019

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 August 2019 at 12.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date 27 August 2019

Introduction

[1] The appellant, Philip Arps, was sentenced to 21 months’ imprisonment on two charges of distributing an objectionable publication.1 He appeals that sentence on the grounds that it was manifestly excessive and that a community-based sentence or a sentence of home detention should have been imposed instead.

1 Under ss 124(1) and 123(1)(d) of the Films, Videos, and Publications Classification Act 1993.

ARPS v NEW ZEALAND POLICE [2019] NZHC 2113 [27 August 2019]

Facts

[2] On 15 March 2019, a male armed with several firearms entered two mosques in Christchurch, shooting and killing 51 Muslim people and injuring many more. He filmed the entire attack on a Go-Pro branded camera attached to the helmet he was wearing. The video showing the murder and wounding of his victims was livestreamed on Facebook. It was subsequently distributed by Facebook users and, within a short period of time, became widely available.

[3] Mr Arps was sent an electronic copy of the video on the day of the shooting. The following day he sent the video to another unknown person and instructed them to modify the video to include crosshairs and a “kill count”. This would mimic a first-person shooter video game, with the “kill count” increasing as people were killed. Mr Arps had the modifications completed so he could distribute the video. Mr Arps also distributed the unmodified video to approximately 30 of his associates.

[4] When spoken to, Mr Arps admitted distributing the video to multiple people and requesting that the video be modified so that he could distribute it as a meme.2 He also confirmed that the video was modified as requested and he received a copy of the modified version. When asked about his opinion on the objectionable video, he replied that “it was awesome”. When asked about the deaths of the victims of the attacks, he replied “I could not give a fuck mate”.

District Court decision

[5] Mr Arps sought a sentence indication on the two charges and that was delivered on 17 April 2019. Mr Arps accepted that indication and was sentenced on 18 June 2019.

[6] The reasons for sentence were traversed in detail in the sentence indication and reiterated, briefly, at sentencing. The sentence indication was then attached to the

2 A meme is an image, video or piece of text, typically humorous in nature, that is spread rapidly by internet users.

sentencing remarks given on 18 June 2019 and forms part of the Judge’s sentencing notes.3

[7] In recognition of the unique circumstances of…

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] NZHC 2113
Case: [2019] NZHC 2113
Decision Date: 27 August 2019

CaseChat Overview and Summary

The appellant, Philip Arps, appealed against his 21-month sentence for distributing objectionable publications. Arps submitted that the sentence was manifestly excessive and should be replaced with a community-based sentence or, alternatively, one of home detention. The Crown submitted that both the starting point and the final sentence were in range with regard to Patel. The Court held that the two and a half year starting point adopted by the District Court Judge properly reflected the seriousness of the offending. The Court agreed with the Judge that home detention would not serve the sentencing purposes of denunciation and deterrence. The Court concluded that the District Court's decisions on the starting point, end sentence and refusal to convert to home detention were all justified. The appeal was therefore dismissed.

Orders