Coleman v Police - [2015] NZHC 1265

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000032 [2015] NZHC 1265

KIM COLEMAN

v

NEW ZEALAND POLICE

Hearing: 2 June 2015

Appearances:

John Munro for the Appellant
Zoe Hamill for the Respondent

Judgment:

8 June 2015

JUDGMENT OF MOORE J [Appeal against conviction and sentence]

This judgment was delivered by me on 8 June 2015 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

COLEMAN v NEW ZEALAND POLICE [2015] NZHC 1265 [8 June 2015]

Introduction

[1] On six occasions in the first part of 2014 Mrs Coleman supplied alcohol to three young persons. Additionally, over a period of about three weeks in March
2014 she sent five sexually explicit images to her 14 year old daughter and her

daughter’s 15 year old boyfriend.

[2] Mrs Coleman pleaded guilty in the District Court. She applied for a discharge without conviction under s 106 of the Sentencing Act 2002.

[3] Judge Gibson declined her application. He convicted and fined her $700 on the representative charge relating to the indecent images and $350 on each of the charges of supplying alcohol to a minor. She appeals that sentence.

Background

[4] Mrs Coleman is a 41 year old woman with no previous convictions. She has two daughters who, at the time of the offending, were aged 14 and 12. In early 2014
Mrs Coleman’s older daughter began a relationship with a 15 year old boy. Mrs Coleman became increasingly involved in the relationship. She communicated directly with both her daughter and the boyfriend.

[5] Between 10 and 31 March 2014, Mrs Coleman sent the couple five sexually explicit images. These have been classified as restricted by the Office of Film and Literature Classification.

[6] Three of the images showed genitalia, both male and female, infected by sexually transmitted diseases. Another of the images was pornographic and included a video link. The fifth image depicted a woman’s face and neck, digitally altered so as to depict the mouth and nose as a vagina and labia.

[7] The three images depicting sexually transmitted diseases were classified as objectionable only if distributed to those under the age of 16. The latter two were classified as objectionable only if distributed to those under 18 years. In respect of these offences Mrs Coleman was charged with a single representative charge brought

under s 125(1)(a) of the Films, Videos and Publications Classification Act 1993. It is a fine-only offence and is punishable by a maximum penalty of $3,000.

[8] Mrs Coleman was also charged with supplying alcohol to minors contrary to s 241 of the Sale and Supply of Alcohol Act 2014. This offence, too, is a fine only offence carrying a maximum penalty of $2,000.

[9] The summary of facts reveals that the Police’s investigation uncovered a pattern of behaviour by Mrs Coleman involving the supply of alcohol to young people. This included communicating with the young people about the choice of alcohol, the purchase price and what particular type…

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.

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Details

Case: [2015] NZHC 1265
Decision Date: 8 June 2015

CaseChat Overview and Summary

Coleman appealed against her conviction and sentence in the District Court. The appeal was against the District Court Judge's decision to decline her application for a discharge without conviction under s 106 of the Sentencing Act 2002. Coleman had supplied alcohol to minors and sent sexually explicit images to her 14-year-old daughter and her daughter's boyfriend. The legal issues in this case were whether the consequences of the offending were out of all proportion to the gravity of the offence, and if so, whether the court should exercise its residual discretion to grant a discharge. The court considered the gravity of the offence, the circumstances of the offender, and the direct and indirect consequences of conviction. The court found the offending to be moderately serious, and the consequences of conviction were not out of all proportion to the gravity of the offence. The appeal was dismissed, and the convictions and sentences imposed by the District Court were upheld.

Final orders:
1. The appeal is dismissed.
2. The convictions and sentences imposed by the District Court are upheld.

Orders