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Jolly v Police

Jolly v Police

Case [2018] NZHC 1343 8 June 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000070

CRI-2018-404-000194 [2018] NZHC 1343

BETWEEN
DARREN ALBERT JOLLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 May 2018

Appearances:

N G Cooke for Appellant K E Tuialii for Respondent

Judgment:

8 June 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 8 June 2018 at 2.30 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar
Date………………………

JOLLY v NEW ZEALAND POLICE [2018] NZHC 1343 [8 June 2018]

Introduction

[1] Darren Jolly pleaded guilty to eight charges of possession of objectionable material,1 one charge of failing to comply with reporting obligations2 and one of breaching an extended supervision order.3 Judge Andreé Wiltens imposed sentences totalling two-and-a-half years’ imprisonment.4 Mr Jolly appeals his sentence on the basis that it is manifestly excessive. He also asserts that the Judge displayed judicial bias.

[2] As the argument progressed before me, a further ground of appeal emerged. Ms Tuialii, for the Crown, acknowledged that the Judge had made no reference to a discount for Mr Jolly’s guilty plea and it appeared that no allowance had been made for this. I therefore proceed on the basis of that error, and consider the sentencing afresh.

Background

[3] Mr Jolly has a history of sexual offending dating back to 1996. Most of the offences involved indecent assault and doing or permitting an indecent act. In 2004, however, he was convicted of sexual intercourse with a female between the ages of 12 and 16 as well as doing an indecent act with a girl between 12 and 16. In December 2011, at the end of his term of imprisonment, he became subject to an extended supervision order (“ESO”) for ten years and, subsequently, to the reporting obligations under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.

[4]One of the conditions of the ESO was that Mr Jolly was:

Not to possess or use any computers or electronic equipment or device capable of capturing and storing images except for content publicly broadcast in New Zealand, or any device capable of capturing and storing images, unless supervised by an approved adult who has been approved in writing by the Probation Officer for each and every instance where the use of such a device has been requested for approval.

1      Films, Videos and Publications Classification Act 1993, s 131A. The maximum penalty is 10 years’ imprisonment or a $50,000 fine.
2      Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39. The maximum penalty is one year’s imprisonment or a fine not exceeding $2,000.
3      Parole Act 2002, s 107T. The maximum penalty is two years’ imprisonment.
4      New Zealand Police v Jolly [2018] NZDC 4087.

[5] The charges to which the appeal relates arose from a visit by the police to Mr Jolly’s residence on 8 August 2017. The police found a Chromecast device plugged into the back…

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 Jolly v Police

Details

AGLC: Jolly v Police [2018] NZHC 1343
Case: [2018] NZHC 1343
Decision Date: 8 June 2018

CaseChat Overview and Summary

Darren Jolly appeals against his sentence, imposed by Judge Andreé Wiltens in the District Court, on the basis that it is manifestly excessive. Jolly pleaded guilty to multiple charges including possession of objectionable material, failing to comply with reporting obligations and breaching an extended supervision order. Jolly argues that the sentence was excessive and that the Judge displayed bias. The appeal was heard by Justice Courtney, who found that the Judge had failed to make any reference to a discount for Jolly's guilty plea. The court found that the sentence should be reconsidered based on this error.

The court considered the appropriate starting points for each of the charges. The court found that the most serious charge was that of possessing objectionable material, and that the appropriate starting point for this offence was one year and six months’ imprisonment. The court took into account the number of images, their nature, and the premeditation of the offence. The court also found that the breach of the extended supervision order was serious, and that the appropriate starting point for this offence was 12 months’ imprisonment, uplifted by two months to reflect Jolly’s previous similar offending. The court found that a concurrent sentence of six months’ imprisonment on the breach of reporting obligation charge was appropriate.

The court found that the allegation of judicial bias was not made out. The court found that the Judge’s error in overlooking a discount for the guilty plea did not indicate bias. The court also found that the Judge’s reference to 11 previous convictions for indecencies and intercourse with young children, when there were actually 13 such convictions, was not a basis on which to assert bias.

The appeal is allowed. The sentences are quashed and substituted with: 13 months’ imprisonment on the charges of possessing objectionable material, to be served concurrently; 10 months on the charge of breaching extended supervision order conditions, to be served cumulatively on the term imposed for possessing objectionable material; and six months on the charge of breaching reporting obligations, to be served concurrently with the sentence imposed for breaching ESO conditions. The total end sentence is one year and 11 months’ imprisonment.

Orders