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Goodley v Police

Goodley v Police

Case [2022] NZHC 3174 30 November 2022

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-66

[2022] NZHC 3174

BETWEEN
BRENDON JAY GOODLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 November 2022

Appearances:

J Tarrant for Appellant D Young for Respondent

Judgment:

30 November 2022

JUDGMENT OF WYLIE J

(Appeal against conviction and sentence)

This judgment was delivered by Justice Wylie On 30 November 2022 at 11.00 am
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Hamilton Legal, Crown Solicitor at Hamilton J Tarrant, Hamilton

GOODLEY v NEW ZEALAND POLICE [2022] NZHC 3174 [30 November 2022]

Introduction

[1] The appellant, Brendon Goodley, pleaded guilty to a representative charge of possessing an objectionable publication knowing or having reasonable cause to believe that it was objectionable.1 On 6 October 2022, he appeared before Judge D J McDonald in the Hamilton District Court for sentence.2 Mr Goodley applied for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The application was declined and a conviction was entered. Mr Goodley was sentenced to a term of imprisonment of 14 months.

[2] Mr Goodley appeals against the Judge’s refusal to discharge him without conviction. If the Court upholds his conviction, he appeals his sentence, arguing that it is manifestly excessive.

[3] The Crown submits that the Judge was correct to decline the application for a discharge without conviction. It did not, in its written submissions, address the end sentence imposed but in its oral submissions, it submitted that the end sentence was within the available range and that the Judge did not err in imposing it.

The offending

[4] On 1 August 2019, Mr Goodley entered a WhatsApp chat group with a person identified by the name “Jas”. Between 1 August 2019 and 19 November 2019, Jas and Mr Goodley exchanged 367 electronic messages. A number of images and some videos were attached to some of the messages. In others, Mr Goodley commented on this material and discussed how he and Jas could meet each other in person.

[5] During the course of the message exchange, Jas sent Mr Goodley 22 images and videos depicting young children, both male and female and ranging in age from toddlers to prepubescent children, engaging in sexual acts with other children or with adults. Ten of the images portrayed penetrative sexual activity; eight images and one video portrayed non-penetrative sexual activity; three images and one video were indecent, but did not fall within either of the first two categories.

1 Films, Videos, and Publications Classification Act 1993, s 131A. Maximum penalty 10 years’ imprisonment.
2 Police v Goodley [2022] NZDC 19760.

[6] Jas and Mr Goodley discussed this material. By way of example, Mr Goodley responded to one image portraying penetrative sexual activity with the comment: “If only I had a cock like that”. Jas replied: “So didn’t scare you off”. Mr Goodley responded: “Nope”. When Jas sent another image showing a child involved in penetrative sexual activity, Mr Goodley replied: “Mmmm yum”. In a later…

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 Goodley v Police

Details

AGLC: Goodley v Police [2022] NZHC 3174
Case: [2022] NZHC 3174
Decision Date: 30 November 2022

CaseChat Overview and Summary

Brendon Jay Goodley appeals against his conviction and sentence imposed by the Hamilton District Court for possession of objectionable publications. The appeal is brought under the Criminal Procedure Act 2011, arguing that the refusal to discharge him without conviction was erroneous, and that the sentence was manifestly excessive. The Crown contends that the Judge correctly declined the application for a discharge without conviction and that the sentence was within the available range.

The legal issues pertain to the application of the disproportionality test under the Sentencing Act 2002 for a discharge without conviction, and whether the sentence imposed was erroneous. The test requires that the direct and indirect consequences of conviction must be out of all proportion to the gravity of the offence for a discharge without conviction to be granted. The appeal against the sentence hinges on whether the starting point and mitigating factors were appropriately considered by the Judge.

The Court found that the Judge did not err in declining to discharge Mr Goodley without conviction. The gravity of the offending was appropriately categorised as serious, considering the nature, number, and duration of possession of the objectionable material. While there were direct and indirect consequences for Mr Goodley, the Court was not satisfied that they were out of all proportion to the gravity of the offence.

Regarding the sentence, the Court found that the starting point of two years' imprisonment was too high, and a more appropriate starting point would have been 18 months' imprisonment. The Court also found that the Judge erred by not allowing Mr Goodley a discount for his previous good character, in addition to the 25% discount for his guilty plea. A five per cent discount should have been allowed for previous good character. Furthermore, the Court found that Mr Goodley should have been allowed a further 10% discount to recognise the factors outlined in the psychologist's report, for a total discount of 40% from the starting point sentence. Therefore, the appropriate end sentence is 10 months and two weeks' imprisonment, which is within the range where a sentence of home detention can be substituted.

The appeal against the refusal to enter a discharge without conviction is dismissed. The appeal against sentence is allowed, and the sentence of 14 months' imprisonment is quashed and substituted with a sentence of 10 months and two weeks' imprisonment. Leave is reserved to Mr Goodley to apply for home detention if a suitable address can be found.

Orders