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…

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 Endicott v Police

Details

AGLC: Endicott v Police [2024] NZHC 647
Case: [2024] NZHC 647
Decision Date: 22 March 2024

CaseChat Overview and Summary

In Endicott v Police, the High Court of New Zealand was tasked with reviewing an appeal against a sentence imposed by the District Court. Mr Endicott, the appellant, had pleaded guilty to intentionally making an intimate visual recording of his wife, a breach of trust that occurred over a 30-year marriage. The District Court sentenced him to 175 hours of community work and 12 months of supervision. Mr Endicott appealed, arguing that the community work component of his sentence was manifestly excessive, contending that the sentence should have been limited to the supervision period alone.

The legal issues before the High Court revolved around the appropriateness and proportionality of the sentence, with a focus on whether the community work component was justified and whether the sentence was manifestly excessive. The Court had to consider the principles of accountability, deterrence, and denunciation, as well as the specific circumstances of the offending and the appellant's personal history.

In delivering the judgment, the Court noted that while the District Court had appropriately considered the principles relevant to sentencing, there were concerns about the basis on which the sentence was imposed. The Court found that the District Court had considered material beyond the agreed summary of facts, including allegations in the Victim Impact Statement that were contested by the appellant. The High Court also observed that, despite the appellant's lack of remorse as perceived by the District Court, the sentence was not manifestly excessive when considering the discount for the guilty plea and the appellant's otherwise good character. The Court concluded that a sentence of 96 hours of community work, incorporating discounts for the plea of guilty and good character, was appropriate given the seriousness of the breach of trust and the mitigating factors.

The appeal was allowed, and the sentence of 175 hours of community work was quashed and replaced with a sentence of 96 hours of community work, with the supervision sentence remaining unchanged.

Orders