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Brittin v Police

Brittin v Police

Case [2017] NZHC 2410 2 October 2017

Criminal Liability

Sentencing

Deterrence

Aggravating and Mitigating Factors

Imprisonment

Home Detention

Criminal Law

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-470-27 [2017] NZHC 2410

BETWEEN
TYLA BRITTIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 September 2017 (Heard at Rotorua)

Appearances:

C Tuck and B Hall for the Appellant A Shore for the Respondent

Judgment:

2 October 2017

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 2 October 2017 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr C Tuck, Barrister, Tauranga
Ms A Shore, Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

BRITTIN v POLICE [2017] NZHC 2410 [2 October 2017]

[1] Tyla Brittin appeals against a sentence of 12 months imprisonment for an offence of causing harm by posting a digital communication.1 This is an offence against s 22 of the Harmful Digital Communications Act 2015 (the Act). The maximum penalty for an offence by a natural person is imprisonment for two years
or a fine of $50,000.

[2] This appears to be the first appeal against sentence to come before this Court.2

The facts

[3] In November 2015 Mr Brittin and the victim made contact through a Facebook dating site. Mr Brittin was then 20 years old. The victim was a 30 year old single woman. They communicated for about two weeks by phone and text messages. Over this period the victim sent Mr Brittin several photographs of her naked breasts and of her sitting naked in a bath with her fingers by her genitals. It appears from the summary of facts, to which Mr Brittin pleaded guilty, that the victim and Mr Brittin met twice. The victim travelled from her home town to Mr Brittin’s home in another town. On each occasion there was some intimacy, but the victim declined Mr Brittin’s requests that she have sex with him. On the second occasion there was an argument before the victim left and returned to her home.

[4] The relationship soured. It ended in December 2015 when the victim made clear one day, by text message and phone calls, that the relationship was over. What then occurred is conveniently taken from the sentencing notes of Judge P G Mabey QC:

[3] Later that night one of her friends alerted her that there were naked photographs of her on the Facebook website NZ Kinky Temptations R18+. These were the photographs that she had sent you via Facebook messenger previously. They were of her breasts and of her in the bath with her fingers in or about her genitals. You posted a comment to go with the photographs. “She’s DTF boys, … [the victim’s name and mobile phone number were then recorded].” … is her name, which will be suppressed, the phone number was hers 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 Brittin v Police

Details

AGLC: Brittin v Police [2017] NZHC 2410
Case: [2017] NZHC 2410
Decision Date: 2 October 2017

CaseChat Overview and Summary

Tyla Brittin appeals against his sentence of 12 months imprisonment for causing harm by posting a digital communication, a violation of section 22 of the Harmful Digital Communications Act 2015. The appeal focuses on the starting point of 18 months imprisonment set by Judge P G Mabey QC and the refusal of home detention in place of imprisonment. The core issues are whether the starting point was manifestly excessive and if home detention should have been imposed instead of imprisonment.

The starting point of 18 months imprisonment was deemed excessive because it did not appropriately balance the various sentencing purposes, particularly deterrence, denunciation, and accountability. The court found that the Judge had erred by giving undue weight to deterrence, failing to consider other sentencing purposes and principles. Additionally, the court noted that the gravity of Brittin's offence, while serious, did not justify a starting point that was double the sentences in other similar cases. The impulsiveness of the act and Brittin's young age at the time of the offence were mitigating factors that should have been considered.

Regarding the refusal of home detention, the court found that the Judge had failed to adequately weigh the principles of sentencing, particularly the principle that imprisonment should be a measure of last resort. The Judge's focus on deterrence without considering other purposes such as rehabilitation and the least restrictive sentence led to an error of law. The court concluded that a sentence of home detention should have been imposed, reflecting a more balanced consideration of the sentencing purposes.

As a result, the sentence of 12 months imprisonment was quashed, and a sentence of seven months imprisonment was imposed. Brittin was granted leave to apply to the District Court for cancellation of the imprisonment sentence and substitution of a home detention sentence if he finds a suitable residence. If such an application is made and granted, the length of the home detention sentence will be calculated by deducting the number of days already served from 30 days, ensuring it is not less than 14 days.

Orders