H v Police

[2019] NZHC 3349

1.         ORDER PROHIBITING PUBLICATION OF APPELLANT'S NAME OR ANY PARTICULARS WHICH MAY LEAD TO HIS IDENTIFICATION.

2.          PURSUANT TO THE ORDER MADE IN THE DISTRICT COURT ON 16 AUGUST 2019, PUBLICATION OF THE NAMES OR ANY

IDENTIFYING DETAILS OF THE APPELLANT’S SPOUSE AND CHILDREN

IS ALSO PROHIBITED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000383

[2019] NZHC 3349

BETWEEN

H

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 December 2019
Appearances:	C Mitchell for the Appellant D Becker for the Respondent
Judgment:	17 December 2019
Reissued:	15 July 2020

JUDGMENT OF GWYN J

This judgment was delivered on 17 December 2019 at 2.00pm and

re-delivered by me on 15 July 2020 at 4.00pm as per minute of Gwyn J of 15 July 2020.

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

C Mitchell, Barrister, Auckland Meredith Connell Auckland

H v NEW ZEALAND POLICE [2019] NZHC 3349 [17 December 2019]

Background

[1]        Mr H pleaded guilty to one charge of knowingly distributing an objectionable publication,1 six charges of possessing objectionable publications with knowledge,2 and one charge of indecency with an animal.3

[2]        On 16 August 2019, Mr H was sentenced to 26 months’ imprisonment by Judge Dawson in the North Shore District Court. He appeals against that sentence on the basis that:

(a)A full discount of 25 per cent should have been given for his early guilty plea; and

(b)A further reduction for remorse should have been given of around 17 per cent.

[3]        Mr Mitchell submits that these have led to a sentence that was manifestly excessive in the circumstances.

The offending

[4]        At about 9.25am on 29 December 2017, Mr H uploaded and sent an image of child exploitation material to another user through an instant messaging application named ‘Kik’. This image depicted a girl less than 15 years old lying naked on her back with a naked male, also under the age of 15, leaning over the top of her in the missionary position. The female was holding the males’ penis in her right hand about one centimetre from her vagina.

[5]        On 26 June 2018, the Police executed a search warrant at the defendant’s home. An Apple iPad and Samsung Galaxy phone were seized by Police and delivered to the Digital Forensics Unit for examination. There were a total of 1,127 unique images

1      Films, Videos, and Publications Classification Act 1993, s 124(1); 14 years imprisonment maximum penalty.

2      Crimes Act 1961. S 131A(1); maximum penalty of 10 years imprisonment. Three charges are representative charges, the other three are not.

3      Section 144; maximum penalty of 3 years imprisonment.

identified on these devices as objectionable as they depicted sexual conduct with and between young persons and children, children posing erotically, and bestiality.

[6]Seven of these images were chosen as a sample:

(a)A female under the age of 10 lying naked on her back with a naked adult male standing between her spread legs rubbing his penis on top of the female’s vagina;

(b)A female dog lying on her back with a naked adult male kneeling between her back legs, holding both back legs apart with his hands while penetrating the dog’s vagina with his penis;

(c)A baby boy lying on his back with an adult female sucking his penis;

(d)A girl under 10 with a man standing in front of her, holding her face with one of his hands and his penis inside her mouth with semen around her mouth;

(e)A completely naked girl under 5 sitting on an adult male’s lap with the male reaching over the girl from behind touching her vagina with his fingers;

(f)A girl under 15 completely naked sitting on a couch with her legs spread open, exposing her vagina, masturbating with her right hand; and

(g)The defendant lying on his back, holding his exposed penis in his right hand with his dog licking his penis.

The sentence under appeal

[7]        The District Court Judge called Mr H’s behaviour “utterly abhorrent”. He emphasised the need to denounce Mr H’s behaviour, protect the community from the distribution of these “appalling publications”, and consider rehabilitation. He noted that while the risk of Mr H re-offending was low, the risk of harm was said to be high.

[8]        Aggravating features to Mr H’s offending included that the very large number of objectionable publications included images of penetrative sex, oral sex, and digital penetration of young girls under 15 years of age, including babies and children under five years old. This material was sent to an audience of potentially up to hundreds of viewers, which could then be shared to reach thousands of others. There was a high degree of pre-meditation and use of vulnerable victims. Mr H also has 18 previous convictions, including one for obscene exposure.

[9]        In mitigation, the Judge recognised that Mr H entered a guilty plea and awarded a 20 per cent discount for that plea. He did not take into account the fact Mr H had been under the influence of alcohol when he sent the objectionable image of himself and his dog to another person over the internet, noting that “the voluntary consumption of alcohol is not an aspect of mitigation. You are responsible for what you do whether you were drunk or whether you were sober”.4 He awarded a further one month discount for his “relatively [limited]” remorse.

Personal circumstances

[10]      Mr H is married with several teenage children and lives with his family. He is the manager of a business.

[11]      Assessments indicate Mr H may suffer from mild ADHD and impulsive behaviour. He had been taking anti-depressants to assist with depression.

Approach on appeal

[12]      An appeal court must allow an appeal against sentence if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should have been imposed.5 Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence was reached.6

4      NZ Police v H [2019] NZDC 16211, at [14].

5      Criminal Procedure Act 2011, s 250.

6      Ripia v R [2011] NZCA 101 at [15].

Analysis

Guilty Plea Discount

[13]      The Judge allowed a 20 per cent discount for Mr H’s entry of a guilty plea.7 When the sentence was imposed, this amounted to a six month reduction.8

[14]      The appellant submits that the Judge should have imposed the full possible discount of 25 per cent because:

(a)His guilty plea was made at a relatively early stage of the proceeding;

(b)He admitted the offences to the Police immediately;

(c)Any lateness in the guilty plea was because medical specialists were consulted.

[15]      The maximum possible discount available for a guilty plea is 25 per cent. This is only to be awarded where an offender has entered their guilty plea at the earliest reasonable opportunity. In Hessell, the Supreme Court defined this as the point at which an accused “has had the opportunity to be informed of all implications of the plea”.9

[16]      I do not consider that Mr H entered his plea at the earliest available opportunity. As noted by the Crown, the appellant’s first appearance was on 2 November 2018. His guilty pleas were not entered until 15 April 2019, after the case review hearing and almost six months after the first appearance. By this point, Mr H knew about the charges he was facing, and knew about the strength of the prosecution case he was facing. This included evidence that Mr H was the subscriber of the IP address linked to the Kik account; that the Kik account was accessed using Mr H’s address and his cell phone number; the appellant’s devices contained over 1200 objectionable publications; he had admitted to having objectionable images on both devices; and that

7 At [13].

8      The six month reduction actually results in the reduction being 18 per cent, not 20 per cent. This is presumably in order to reach a round number.

9      Hessell v R [2010] NZSC 135 at [75].

he owned two dogs. As the Supreme Court noted in Hessell, the extent of the true mitigatory effect of the plea needs to reflect “all the circumstances in which the plea is entered, including the strength of the prosecution case”. In this case, the timing of Mr H’s guilty plea is no coincidence. He did not make his plea at the earliest possible opportunity. Instead, he entered his plea only once he knew of the strength of the prosecution case against him. As the Crown submits, the time spent consulting medical specialists should not have prevented the appellant from pleading guilty at the earliest opportunity. Mr Mitchell for the appellant concedes that the medical reports would not have informed guilty pleas. Rather, as he put it, it seemed important for the appellant to “look behind the scenes” to see from a medical perspective what was making H tick and what might have driven this behaviour.

[17]      I do not consider the Judge was in error in awarding a six month discount for Mr H’s guilty plea. On the spectrum of possible reductions for early guilty pleas, this reflected the fact it was six months into the proceeding, but also that Mr H did not enter his plea at the earliest opportunity.

Failure to allow a discount in the region of 17 per cent for remorse

[18]      The one month discount allowed by the Judge for remorse amounted to a four per cent discount. The appellant submits that a further discount for remorse should have been given.

[19]      The Court will look for “hard evidence of genuine regret and remorse”.10 Where there is “tangible evidence” of genuine remorse a discount of around five to eight per cent may be appropriate.11

[20]      The first issue here concerns the weight that should be placed on Mr H’s ADHD. Mr Mitchell takes issue with the fact the Judge all but ignored Mr H’s ADHD condition. In doing so, the Judge ignored the fact that ADHD can be a mitigating factor where there is some contribution to the offending.12

10    R v Senior (2000) 18 CRNZ 340 (HC), at [21].

11   See eg McArthur v R [2013] NZCA 600 at [13]-[14], Rowles v R [2016] NZCA 208 at [18] and Poi v R [2015] NZCA 300 at [7].

12     Arlidge v Police [2014] NZHC 2202.

[21]      Generally, for ADHD to be a mitigating factor, there needs to be some relationship between the ADHD and the offending. That relationship has been recognised by the courts in relation to drug dealing and substance abuse related offences,13 but not specifically in relation to the possession and distribution of objectionable material and bestiality. Even if it might in theory be a mitigating factor, there is no evidence before the Court that establishes any such relationship, or why this should increase any reduction Mr H receives for remorse. Mr H is described as having “a combination of mild ADHD predisposing to impulsive behaviours”14 and “It is my impression that Mr H has ADHD”15 but no direct link is drawn to show that the condition was causative of or related to his offending. Mr Mitchell’s submission was that the appellant’s actions, which he characterised as “bizarre” behaviour in a man in Mr H’s situation, could only have been driven by a medical cause such as this.

[22]      The appellant relies on R v Gallie as an example of where a greater discount was given for remorse where the offender had ADHD.16 But in that case, ADHD was not the key feature. Rather it was that the offender clearly felt a “depth of remorse” and had taken “significant steps to turn [his] life around”.17 The same cannot be said, at least not to the same degree, for Mr H.

[23]      The second issue concerns the general level of remorse that Mr H had for his offending. Mr Mitchell submits that Mr H showed remorse for his actions, and this should result in a greater reduction. This remorse was evident in the fact he admitted the offence to the police, sought specialist medical help, and entered an early guilty plea. I do not think these factors should justify a greater discount for remorse. I have already discussed the timing of the guilty plea. Consulting medical specialists does not of itself indicate remorse. Nor does the substance of the medical reports assist Mr H. They certainly do not demonstrate “exceptional remorse” as submitted by the appellant.

13 At [13].

14    Report of Dr Greg Finucane, 21 August 2018, at p 3.

15    Report of Dr Caleb Armstrong, 6 June 2019, at p 2.

16     R v Gallie HC Auckland CRI-2010-044-514, 20 September 2011.

17     At [21] and [22].

[24]       There are three medical records before the Court concerning Mr H. As a whole, they describe Mr H as impulsive, as able to understand that what he did was wrong, but do not refer to him being remorseful for the offending. For example:

(a)“After a crisis, he will be remorseful, manage to control his behaviours for some months, then around six months later he will again indulge in such behaviours”. It is not apparent that Dr Finucane was even aware of the current offending;18

(b)He admits the photos he downloaded were “really disturbing”, that “he knew it wasn’t right and got rid of it and kept it secretive”. He also “says it was a once only impulsive action”. 19

(c)He “has engaged in negative and poorly thought through behaviours, which now land him in Court. Mr [H] would like to change the way he does things, and wonders whether treatment for ADHD might be helpful”.20

[25]      As the Supreme Court said in Hessell21 “… a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse.” In this case, on a robust evaluation it is difficult to discern any acceptance by Mr H of the gravity of his wrongdoing or any insight into the impact on the victims and how his behaviour contributed to that impact. In fact, while it is admirable that Mr H has sought medical advice and treatment, his focus on ADHD as an exculpatory factor appears to have detracted from any reflection which might truly be categorised as remorseful.

[26]      I find that the Judge was correct to find that some discount for remorse was justified, but I conclude that the one month discount was adequate in the circumstances.

18     Finucane Report, above n 13.

19     Report of Lynn Berresford, November 2018.

20     Armstrong Report, above n 14.

21    Hessell v R, above n 9, at [64].

Result

[27]The sentence is not manifestly excessive. The appeal is dismissed.

Gwyn J