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…

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 H v Police

Details

AGLC: H v Police [2019] NZHC 3349
Case: [2019] NZHC 3349
Decision Date: 17 December 2019

CaseChat Overview and Summary

H appealed against the sentence imposed on him by the District Court, arguing that the court should have awarded a greater discount for his early guilty plea and for remorse. The High Court of New Zealand heard the appeal and examined the legal issues surrounding the sentence. The court found that while H had entered a guilty plea, it was not at the earliest reasonable opportunity, and therefore, the six-month discount awarded by the District Court was appropriate. The court also found that the one-month discount for remorse was adequate, as there was insufficient evidence of genuine remorse to warrant a greater reduction. The appeal was ultimately dismissed, and the sentence imposed by the District Court was upheld.

This case demonstrates the importance of considering the timing of a guilty plea and the presence of genuine remorse when determining an appropriate sentence. The court emphasised that a robust evaluation of all the circumstances is necessary to determine the level of discount for these factors. In this case, the court found that the sentence imposed was not manifestly excessive, and therefore, the appeal was dismissed.

Orders