F v Police - [2016] NZHC 1638

NOTE PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-44 [2016] NZHC 1638

IN THE MATTER of s 200 Criminal Procedure Act 2011

BETWEEN

F Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 July 2016

Counsel:

M W Anderson for Appellant
S T Ellis for Respondent

Judgment:

19 July 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4.45 pm on the 19th day of July 2016

F v NEW ZEALAND POLICE [2016] NZHC 1638 [19 July 2016]

[1] F appeals against an effective sentence of 12 months’ imprisonment on eight charges of making an intimate visual recording.1 He says a sentence of home detention should have been imposed.

[2] I record at the outset that the District Court Judge granted F permanent name suppression on the grounds that he was satisfied that F’s wife’s mental state was such that extreme hardship would result if his name was published.

Facts

[3] Put crudely, F used a camera secreted inside a shopping basket or bag to film up the skirts of young women while they were in busy public places. The recordings he made were between four and 30 seconds in length. F downloaded them onto a computer or storage device. He was caught when he was seen doing this by a security guard in a Farmers store. He ran out of the store and was arrested. Police later searched his home and seized computers and storage devices. They found videos of 27 young women, most of which had been made in late 2014 and 2015.

[4] Three of the videos found were, however, made in 2012, prior to F’s convictions on six charges of making intimate visual recordings in the same way. On that occasion he had been sentenced to 10 months’ home detention. Those three earlier videos were uploaded onto F’s computer while he was still subject to post- detention conditions in relation to that home detention sentence.

District Court decision

[5] Judge Mill was the sentencing Judge. He noted: (a) that F had entered early guilty pleas;
(b) that the identification of a starting point was difficult because of the

variation in the facts and circumstances of offending of this kind;

1 Police v [F] [2016] NZDC 10053. Making an intimate visual recording is an offence under s 216H of the Crimes Act. One charge related to offending in 2012. The others related to offending in 2014 and 2015. He was sentenced to 12 months’ imprisonment for the later offending, and three months’ imprisonment (concurrent) for the 2012 offending.

(c) that F’s recordings were less intimate than in some of the other cases;

(d)the persistence of F’s offending, the number of offences, and the number of victims;

(e) the level of planning involved in the offending; (f) the relative length of some of the recordings; and
(g)that the offending occurred within a…

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 F v Police

Details

AGLC: F v Police [2016] NZHC 1638
Case: [2016] NZHC 1638
Decision Date: 19 July 2016

CaseChat Overview and Summary

In this case, F appeals against the District Court's decision to sentence him to 12 months’ imprisonment for eight charges of making an intimate visual recording. He argues that a sentence of home detention should have been imposed instead. The appellant, F, was found to have used a concealed camera to film up the skirts of young women in public places. The recordings were downloaded onto a computer or storage device. F was arrested when caught by a security guard. Police later searched his home and seized computers and storage devices. They found videos of 27 young women, most of which had been made in late 2014 and 2015. The District Court Judge granted F permanent name suppression on the grounds that his wife's mental state would result in extreme hardship if his name was published.

The legal issue before the court was whether the District Court Judge erred in declining to impose a sentence of home detention. The appeal against a refusal to impose home detention is an appeal against the exercise of a fettered discretion. The sentencing principle requires the Court to impose the least restrictive outcome appropriate in the circumstances. The weight accorded by the sentencing judge to a particular relevant factor and the balancing of competing considerations will not usually constitute an error. The Court found that the District Court Judge had not disregarded rehabilitation as a factor but rather considered it outweighed in this case by other sentencing purposes and principles. The appeal was dismissed accordingly.

Orders