Endicott v Police

[2024] NZHC 647

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-120

[2024] NZHC 647

BETWEEN

PAUL HENRY ROBERT ENDICOTT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 March 2024
Counsel:	W T Nabney for Appellant H J Speight for Respondent
Judgment:	22 March 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 22 March 2024 at 2.15 pm

Registrar/Deputy Registrar

Solicitors/Counsel:

W T Nabney (Tauranga) for Appellant Pollett Legal (Tauranga) for Respondent

ENDICOTT v POLICE [2024] NZHC 647 [22 March 2024]

Introduction

[1]        Mr Endicott pleaded guilty to a charge of intentionally making an intimate visual recording of another person.1 The maximum sentence is three years’ imprisonment.

[2]        The victim of his offending was his wife of some 30 years. Mr Endicott used his mobile telephone to covertly video her as she emerged from the shower and got dressed.

[3]        On 6 September 2023, Judge S J Coyle sentenced Mr Endicott to 175 hours’ community work and to supervision for 12 months.2

[4]        Mr Endicott now appeals the sentence as being manifestly excessive. It is the imposition of community work which he submits makes the sentence manifestly excessive. He contends that the sentence should have been limited to the sentence of supervision.

[5]        I must allow Mr Endicott’s appeal if I am satisfied that there is an error in the sentence and that a different sentence should be imposed. A manifestly excessive sentence is one that must be corrected.

The District Court sentence

[6]        Judge Coyle emphasised the harm done to Mr Endicott’s victim by the offending:

[6]        I hope you, in listening today to what your wife said, were able to comprehend in some way the devastation and destruction that you caused because of your actions, which can only have been centred in your own self- gratification. It was an appalling breach of trust. As she put it in her victim impact statement, yours was a lengthy marriage and yet you breached probably one of the biggest strengths and factors in an intimate relationship and that is mutual trust and respect of each other.

1      Crimes Act 1961, s 216H.

2      Police v Endicott [2023] NZDC 22936.

[7]        In the absence of a guideline judgment, the Judge took into account principles in the Sentencing Act 2002 which he considered relevant. These were the need to instil in Mr Endicott a sense of responsibility for his offending, to hold him accountable, to provide for deterrence and to denounce this type of offending. The Judge said:

[10] … For the community has a justifiable expectation that no one would ever take such an intimate video of anyone and no one in an intimate relationship has a right to take such videos or photos of someone with whom they are in an intimate relationship by virtue of the fact that they are in an intimate relationship.

[8]       The Judge rejected the PAC report writer’s conclusion that Mr Endicott demonstrated a degree of insight and remorse. He rejected counsel’s written submissions to that effect:

[11]  … Others may well have seen that, but I have seen nothing today, or nothing that has been put forward to me to indicate that you are in any way remorseful, apart from the fact you have been caught. I watched you while your former wife gave her victim impact statement and it concerned me that there did not appear to be a flicker of understanding, empathy or emotion from you as you listened to her.

[9]        Judge Coyle, in considering counsel’s submission that community work is not justified, distinguished the decision of this Court in Pradhan v Police.3 The Judge said:

[14] Your situation is entirely different. This was not a stranger to you, it  was your wife, and you breached her trust. This was not offending that was unsophisticated and untargeted. It was clearly thought out by you as to how to do it in a surreptitious manner and a way in which your wife would not be aware of what you were doing. It was targeted at her and is quite different therefore in terms of the facts of your case than the facts in the decision of Whata J in Pradhan v Police.

[10]      The Judge, at this point, referred to comments made by the victim in her Victim Impact Statement and did so with evident fervour:

[15] I also note with concern the comments by your wife that when she confronted you, you made comments to her to the effect that if she was young and slim she would not have minded. What part, Mr Endicott, do you not get that for anyone being filmed naked without their knowledge is unacceptable, humiliating and demeaning. What part do you not get of the effect on your

3      Pradhan v Police [2018] NZHC 2966.

wife of trivialising her feelings and emotion and her distress at which occurred by saying that if she looked different she would be up for it. That is nothing more than victim blaming and trying to deflect responsibility from you and off you.

[11]      The Judge then recorded his disagreement with the submissions that community work is not warranted. The Judge said:

[16]   … In order to meet the principles of denunciation and deterrence and to sheet home to you your need to be accountable and responsible for your offending a punitive aspect of community work needs to be imposed.

[12]      Before imposing his sentence, the Judge stated that Mr Endicott was entitled to full credit for his guilty plea and that the Judge would give that credit.

The appeal

[13]      In support of his appeal, Mr Endicott filed his affidavit sworn on 5 March 2024. I will have regard to it to the extent that it assists me with determining the appeal. The part I find relevant is that Mr Endicott deposes that he was not aware of the contents of the victim’s Victim Impact Statement until she read  it  in  Court.  Mr Nabney confirms that counsel was given a copy immediately before the hearing and had no opportunity to discuss it with Mr Endicott.

[14]      Mr Endicott deposes that much of what the victim said is untrue. In particular, he denies making the statement referred to at [10], for which he was upbraided by the Judge.

[15]      Mr Endicott also filed an affidavit by his son. It identifies passages in the Victim Impact Statement which the deponent says are untrue. However, I put the affidavit to one side as not being relevant to the decision I have to make on this appeal.

[16]The Crown supports the Judge’s decision:

a.His Honour Judge Coyle had regard to and properly considered all circumstances of the offending. This includes the fact that the appellant and the victim were in a marriage relationship at the time of the offending.

b.The final sentence imposed was appropriate and was not manifestly excessive, particularly when considering that the maximum penalty

was one of three years’ imprisonment and that the appellant received the full discount for his guilty plea.

[17]      I, like Judge Coyle, have not been referred to any cases which are factually close to the current one. I therefore assess Judge Coyle’s sentence on first principles.

[18]      First, and as Judge Coyle acknowledged, Mr Endicott’s culpability had to be assessed on the contents of the agreed summary of facts. The Victim Impact Statement went well beyond the summary of facts and contained quite a number of accusations against Mr Endicott.

[19]      One of the factors that the Judge had to take into account in deciding the appropriate sentence was the harm done to the victim. The Judge appears to have accepted some of the allegations contained in the Victim Impact Statement which were not in the summary of facts. The passage quoted at [10] is the principal one. The problem with this is that, unlike the agreed summary of facts, the defendant has not indicated acceptance of the contents of the Victim Impact Statement. In this case he has filed an affidavit contesting the contents. There is at least an appearance that the Judge took into account material not properly available to him for setting the sentence.

[20]      Mr Nabney also criticises the  Judge’s  reliance  upon  the  demeanour  of  Mr Endicott during the victim’s reading of the Victim Impact Statement as going against a discount for remorse. Mr Nabney submits that Mr Endicott was comporting himself as he had been advised to do. In other circumstances this might be a point impacting the appeal. However, having considered all the other material I do not see the Judge was in error in denying a discount for remorse.

[21]Against that background, I make the following findings:

(a)The Judge was correct to find that the sentence needed to have an element which properly gave  effect  to  the  principles  of  holding  Mr Endicott accountable to the community for his actions, denouncing them and providing a deterrence. A sentence of supervision alone would not do that. A sentence of community work would do that having

regard to Mr Endicott’s character, personal history and all the circumstances.

(b)The length of the sentence of community work had to be proportionate with the breach of trust which is the principal aggravating factor in  Mr Endicott’s offending. That breach was made worse by its context, namely a marriage of nearly 30 years. However, Mr Endicott was a first offender, it was an isolated instance of offending, and, despite a relatively minor conviction at the age of 18 years, he could claim credit for a good and productive life.

(c)The Judge had to allocate the community work sentence on the legal spectrum of 40 hours to 400 hours.4  The Judge said he would give   Mr Endicott full credit for his plea of guilty. But he did not say how he did that. Assuming that the sentence of 175 hours is the discounted sentence, then the starting point was 233 hours.

(d)There should also have been a discount for Mr Endicott’s good character.

[22]      There is no formula for deciding how many hours of community work should be imposed on an offender. It is a matter for judicial evaluation having regard to the seriousness of the offending and the personal circumstances of the offender. The purpose of a sentence of community work is to hold the offender accountable to the community by making compensation to it in the form of work. As the Court of Appeal has said, it has a punitive aspect and should not be regarded as a minor or insignificant response to offending.5

[23]      I assess Mr Endicott’s offending overall as warranting a starting point somewhere below the midpoint of the community work sentencing range.

4      Sentencing Act 2002, s 55(2).

5      R v Rawiri [2011] NZCA 244.

[24]      In my view, the appropriate starting point for the sentence of community work was the 175 hours the Judge took as the final sentence. A discount of 20 per cent was available for good character and personal circumstances. He was entitled to a 25 per cent discount for the plea of guilty.   That reduces the sentence by 45 per  cent to   96 hours.

[25]      Standing back and considering a sentence of 96 hours’ community work against the seriousness of the offending itself and taking into account the mitigating factors, I think it is appropriate. It is sufficient to bring home to Mr Endicott that, despite his good character and his plea of guilty, his breach of trust in a relationship of nearly 30 years’ duration required a sentence with a punitive element.

Decision

[26]The appeal is allowed.

[27]      The sentence of 175 hours’ community work is quashed. It is replaced by a sentence of 96 hours’ community work. The sentence of supervision remains unchanged.

Brewer J