Kelly v Police
[2014] NZHC 3168
•11 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000349 [2014] NZHC 3168
MICHAEL RAYMOND FRANCIS KELLY Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 1 December 2014 Appearances:
Martin Hislop and Aieyah Shendi for the Appellant
Kylie Cooper for the RespondentJudgment:
11 December 2014
RESERVED JUDGMENT OF MOORE J [Appeal against sentence]
This judgment was delivered by on 11 December 2014 at 12:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
KELLY v NEW ZEALAND POLICE [2014] NZHC 3168 [11 December 2014]
Introduction
[1] The appellant, Michael Raymond Francis Kelly, met a young woman, Ms W, online. After some weeks of correspondence she travelled to Auckland to meet him for the weekend.
[2] In preparation for going out later that evening Ms W took a shower. Unbeknownst to her Mr Kelly had taped a small pen camera to the bathroom wall so that its coverage included the area of the shower. He activated the camera before she entered the bathroom. The camera recorded her showering.
[3] Mr Kelly’s flatmates discovered the pen camera on the wall before he had an opportunity to retrieve it. They examined the camera and located the images it had recorded. They referred it to the Police.
[4] The first Ms W knew of this was when the Police called her to tell her what had happened.
[5] Mr Kelly, in an attempt to avoid investigation and prosecution, convinced a friend to tell the Police that the recorded images were of her and that she had agreed to being recorded and did not wish to make a complaint against Mr Kelly. When the Police spoke to Mr Kelly he claimed the images were of his friend rather than someone else.
[6] It seems that this strategy initially worked. Mr Kelly was not arrested. However, after further enquiries which included the Police asking for and obtaining photographs of Ms W the correct position emerged and Mr Kelly was charged with both intentionally making an intimate video recording and wilfully attempting to obstruct the course of justice.
[7] Furthermore, no doubt as a result of discussions with Ms W, the Police discovered that over the weekend she had been with him Mr Kelly had driven his car. At the time he was a disqualified driver.
[8] Mr Kelly was charged with making an intimate visual recording, attempting to obstruct the course of justice and driving while disqualified.
[9] Following pleas of guilty he was sentenced on both charges to four months’ home detention with special conditions totalling eight months’ home detention. On the driving while disqualified charge he was sentenced to a total of 150 hours community work in lieu of a further disqualification.
[10] He appeals the sentence of eight months’ home detention on the grounds it is manifestly excessive.
Procedural history
[11] Given some of the issues which have emerged in this appeal it is helpful to review its procedural history.
[12] Mr Kelly first appeared in the District Court on 16 January 2014. He was remanded to 7 February 2014 for a plea. That day he entered pleas of not guilty. His next appearance was for a case review hearing on 20 March 2014. He obtained an adjournment on the grounds of the late transfer of the case to the Crown and the receipt of extra disclosure.
[13] The case management memorandum was filed on 30 April 2014 for his next appearance on 1 May 2014. The not guilty pleas on the charges of making an intimate visual recording and wilfully attempting to obstruct the course of justice were vacated and guilty pleas entered.
[14] At the case review hearing the possibility of restorative justice was raised but
Ms W declined to engage.
[15] On 26 June 2014 Mr Kelly pleaded guilty to the charge of driving while disqualified. The sentencing date of 1 July 2014 was adjourned to 19 August 2014 so that Mr Kelly could undertake community work.
[16] On 19 August 2014 a further remand of eight weeks was sought to allow Mr Kelly to complete counselling. The Crown opposed this course but the Court granted the adjournment due to the negative pre-sentence report.
[17] The pre-sentence report was, indeed, negative. Mr Kelly missed the first two interviews with the report writer. The author recorded that Mr Kelly had a high sense of entitlement, exhibited lack of insight into the consequences of his offending on the victim and appeared to be egocentric and concerned principally about the effects any punishment would have on him. While expressing sorrow for the victim he was emphatic that he would not make an emotional harm payment.
[18] Mr Kelly also claimed that over drinks he had suggested to Ms W that he should record them having a shower together and that she laughed it off. Perhaps most telling was the probation officer’s comment that Mr Kelly did not accept responsibility for the offending claiming that he believed that she had consented to the recording despite evidence to the contrary. He was assessed as being at a medium risk of re-offending and posing a medium risk of harm to others. Home detention was recommended.
[19] The victim impact statement discloses the sense of violation and shock which Ms W felt when the Police first approached her. Further insult followed when she was required to provide photographs of herself to the Police to link her to the images recorded on the camera. She described feeling disgusted and frightened by what had happened.
District Court decision
[20] On 14 October 2014 Mr Kelly was sentenced in the District Court at Auckland. The Judge discussed the contents of the pre-sentence report and rejected Mr Kelly’s explanations for the offending as “unbelievable and illogical”. He noted that the intimate visual recording involved an abuse of trust and given the intimate nature of the material and degree of premeditation involved, caused considerable emotional harm to the victim.
[21] The Judge was of the view that in respect of the two principal charges each justified a starting point of 12 months’ imprisonment but in an assessment of totality an overall starting point of 20 months was justified. His Honour took into account the mitigating factors and in particular the community work which, at the time of sentencing, was 30 hours but which, by the time this appeal was heard, now totals 71 hours.
[22] He also took into account Mr Kelly’s remorse, albeit expressed late in the Judge’s view, his willingness to take part in a restorative justice process and his pleas of guilty. He allowed a 20 per cent discount for the guilty pleas resulting in an end sentence of 16 months’ imprisonment. He concluded that it was appropriate to commute that term to home detention which represented a sentence of eight months’ home detention.
[23] His Honour then granted an unopposed application under s 94 of the Land Transport Act 1998 ordering 150 hours of community work in lieu of disqualification.
Approach to sentencing
[24] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[25] In any other case, the Court must dismiss the appeal.1
[26] The Court of Appeal in Tutakangahau v R recently confirmed that s 250(2)
was not intended to change the previous approach taken by the courts under the
Summary Proceedings Act 1957.2 Further, despite s 250 making no express reference
1 Criminal Procedure Act 2011, s 250(3).
2 Tutakangahau v R [2014] NZCA 279 at [26]-[27].
to “manifestly excessive”, this principle is “well-engrained” in the court’s approach
to sentence appeals.3
[27] The approach under the Summary Proceedings Act was set out in
R v Shipton:4
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[28] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. 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 is reached.5
Appellant’s submissions
[29] Mr Hislop, for Mr Kelly, submits that the Judge erred in setting an overall starting point of 20 months’ imprisonment. He submits that this is manifestly excessive and that a starting point of no more than 12 months would have been appropriate. He further submits that the Judge failed to impose the least restrictive sentence available and that community work should have been ordered.
[30] For the driving while disqualified charge the appellant submits the Judge failed to consider the s 94 application would be impractical if a sentence of home
detention was imposed.
3 At [33], [35].
4 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
5 Ripia v R [2011] NZCA 101 at [15].
[31] On the charge of attempting to obstruct the course of justice Mr Hislop submits that the offending should be placed at the lower end of the scale and that Mr Kelly’s culpability was less serious than the offenders in the cases cited by the Crown.
[32] Mr Hislop submits that the full 25 per cent guilty plea discount should have been given in recognition of the point at which Mr Kelly’s guilty pleas were confirmed. He submits that the pleas were entered as soon as the full implications of the plea were known and disclosure had been completed and assessed.
[33] Finally, Mr Hislop submits that the sentencing Judge failed to award appropriate discounts in recognition of Mr Kelly’s rehabilitative effects, his voluntary community work and his expressions of remorse. He submits that the Judge placed undue weight on the pre-sentence report and failed to give sufficient weight to the matters of mitigation which occurred after that report had been prepared and completed.
Analysis
[34] In determining what the correct starting point is it is necessary to consider the decisions of this Court and the Court of Appeal in relation to the two principal charges: intentionally making an intimate visual recording and attempting to pervert the course of justice.
Making an intimate visual recording (s 216H of the Crimes Act 1961)
[35] The maximum penalty is three years’ imprisonment. There are no guideline judgments in respect of this type of offending. However, Ms Cooper for the Crown submits that there are several judgments which provide assistance and support the Crown’s position that the Judge’s starting point of 10 months’ imprisonment was available.
[36] In R v L the appellant had been in a relationship with the complainant.6
Following separation, the appellant filmed herself and the complainant engaged in
6 R v L [2014] NZHC 1229.
sexual activity. The recording was made without the complainant’s knowledge. Following separation the appellant indicated to the complainant that she wished to move to another city with their child. The complainant objected. The appellant threatened to show the recorded images to the complainant’s fiancé if he did not consent. Asher J noted that there was an element of seeking to pervert the course of justice in the appellant’s act of blackmail despite the fact that no judicial proceedings were engaged. Asher J took the blackmail charge as the lead offence and adopted a combined starting point of 12 to 15 months’ imprisonment.
[37] In SNP v Police the appellant surreptitiously set up a video recorder in his bathroom to record the intimate use of these facilities by his teenager stepdaughters and one of their friends.7 Six intimate recordings and three attempts (i.e. the subject remained clothed) were made. A further charge of filming his 17 year old stepdaughter’s naked breasts while she was asleep was included. The starting point of 18 months was not challenged and was described by this Court as lenient.
[38] In Hartley v R the Court of Appeal referred to SNP when endorsing a starting point of 15 months’ imprisonment for surreptitiously recording a young couple having sex.8
[39] In S F v R the Court of Appeal upheld a starting point of 18 months’ imprisonment for unlawfully entering a house and making a recording of a female occupant who was sleeping in her underwear on the couch.9 While making the recording, the appellant masturbated. He fled from the address when the victim awoke. The intimate recording charge was bundled with other charges in relation to the charge of burglary. A concurrent sentence of 18 months’ imprisonment was
imposed.
[40] The aggravating features of the present offending permit comparisons with the cases referred to above. These include:
7 SNP v Police HC Rotorua CRI-2011-463-7, 8 March 2011.
8 Hartley v R [2014] NZCA 162 at [157].
9 S F v R [2014] NZCA 313.
(a) the taking of highly intimate visual recordings in a place where the complainant had a reasonable expectation of privacy;
(b) it was deliberate and pre-meditated; (c) it involved an abuse of trust; and
(d)it has caused considerable emotional harm and distress to the complainant.
[41] Accordingly a starting point of 12 months’ imprisonment was well within the
range available to the sentencing Judge.
Attempting to pervert the course of justice
[42] The maximum penalty is seven years’ imprisonment.
[43] The Court of Appeal’s decision in R v Clutterbuck is often cited in the context of sentencing levels for attempting to pervert the course of justice.10 In that case the appellant unsuccessfully appealed against a sentence of 12 months’ imprisonment. He made a written threat to his former partner directing that she withdraw her application for protection order. It appears that the sentencing Judge took a starting point of two years’ imprisonment which was halved for personal mitigating factors. On appeal, the Court observed:11
In terms of the appropriate length of sentence to be imposed, the decision in Hillman clearly establishes a benchmark of three years imprisonment for relatively serious cases and a sentence in the range of 18 months to two years for a case such as this.
[44] More recently the Court of Appeal in Fitzgerald v R said:12
Attempts to pervert the course of justice usually attract a moderately lengthy term of imprisonment. A cumulative sentence is usually appropriate, and starting points commonly fall within the range of 18 months to three years imprisonment.
10 R v Clutterbuck CA372/99, 17 November 1999.
11 At [13].
12 Fitzgerald v R [2012] NZCA 558 at [15].
[45] In R v Churchward, the Solicitor-General successfully appealed against a sentence of 250 hours of community service on one charge of attempting to pervert the course of justice following a conviction on trial. 13 The appellant’s partner was charged with wounding with intent to injure. The appellant contacted the victim’s partner asking if he would sign a statement saying that the appellant had not committed the assault. She then made further calls including a request the victim make an affidavit to that effect in the absence of which her partner “would hold a grudge forever”. The Court of Appeal was satisfied that the sentencing Judge erred
and a starting point of 12 months was adopted.
[46] Mr Hislop referred me to Young v Police. 14 He submits this case is an example of where a 12 month starting point was adopted in relation to more serious offending. In that case the appellant was caught drinking and driving and falsely identified himself to the Police as his brother. As a result his brother was recorded as convicted. On the charge of attempting to pervert the course of justice, Brewer J considered that an appropriate starting point was 12 months’ imprisonment rather than the 18 months adopted in the District Court.
[47] I do not agree that Young is more serious offending. The impersonation of another to avoid prosecution is comparable and, in the present case, the aggravating conduct of recruiting a third party to give a false account to the Police elevates the seriousness of the offending.
[48] I am of the view that the starting point of 12 months adopted by the sentencing Judge was entirely within his sentencing discretion.
Adjusting the starting point
[49] After reaching a provisional starting point of 24 months his Honour stepped back to consider the totality of the offending and reduced the starting point to 20
months’ imprisonment.
13 R v Churchward CA439/05, 2 March 2006.
14 Young v Police HC Auckland CRI-2011-404-318, 21 November 2011.
[50] Mr Hislop submits that on the authority of R v L this starting point is excessive. However, direct factual comparison is difficult. In the present case the purpose of the conduct was to avoid prosecution. In R v L the appellant was charged with blackmail presumably because there was no course of justice to obstruct. In that case the purpose was to prevent resistance to removing the child to another city. Although the charge of blackmail carries a more serious penalty, no doubt reflecting the range of conduct the crime can accommodate, Courts have frequently and properly stated that attempting to defeat the course of justice is a crime which strikes at the very heart of our criminal justice system.
[51] Mr Hislop further submits that the Judge failed to provide discounts for any countervailing mitigating factors other than the pleas of guilty. In particular, Mr Hislop submits that a separate discount should have been given for Mr Kelly’s remorse beyond that implicit in his plea of guilty and the fact that Mr Kelly was given no effective credit for the genuine efforts which he has engaged in to turn his life around and to take effective steps towards rehabilitation.
[52] Mr Hislop emphasised that contrary to the unflattering pre-sentence report the letters of apology were sincere and indicate remorse. He submits that their lateness can be explained on the basis that Mr Kelly had no real or effective opportunity to write earlier. However in my view it was open to the Judge not to give a discount for remorse.
[53] Mr Kelly was enrolled with Shore Therapy to undertake therapeutic counselling in relation to his attitudes to women and how this has affected his relationships. It would appear from a report dated 8 October 2014 that significant progress has been made through the various psychotherapy sessions he has completed providing an insight into his conduct. At the time of sentencing Mr Kelly had completed 30 hours of therapy.
[54] Mr Kelly has now completed 71 hours of therapy which is of course considerably more than was before the Judge at sentence. Since 24 July 2014 he has been attending weekly sessions which, I understand, have continued. The other factors, including apologies to the victim and the Police, his expressed willingness to
participate in the restorative justice process and the extensive voluntary community work which he has completed, do justify an additional, albeit modest, further discount of 10 per cent. This reduces the starting point to 18 months’ imprisonment.
Guilty plea
[55] Mr Hislop submits that Mr Kelly was entitled to the full benefit of a 25 per cent discount.15
[56] In all the circumstances I am satisfied that the 20 per cent discount for the guilty plea was open to the sentencing Judge. The plea did not come at the first reasonable opportunity. It was entered approximately three and a half months after Mr Kelly was first charged. Given the very strong prosecution case against him, Mr Kelly had no realistic option other than to acknowledge his guilt.
[57] With a 20 per cent discount the provisional end sentence is 14 months.
[58] For the same reasons as the sentencing Judge I agree that home detention is
appropriate. A term of seven months’ home detention is substituted.
Driving while disqualified
[59] Mr Kelly applied for community work in lieu of a further disqualification period under s 94 of the Land Transport Act 1988 (“the LTA”). It appears it was unopposed and was granted “by a thin margin”. He was ordered to undertake 150 hours of community work.
[60] Mr Kelly now appeals that order on the grounds the Judge erred by failing to consider the impracticability of the s 94 order on a sentence of home detention. Ms Cooper submits the Court had no jurisdiction to make such an order in any event. I agree with that submission.
[61] Under s 94 the Court has the power not to make an order of disqualification and instead impose a community-based sentence. In doing so it is required to take
15 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification.16 Furthermore, this section does not limit the Court’s power to impose any other sentence it may in addition to the community- based sentence.17
[62] More specifically, s 94(4) does not apply if the offender is prohibited for applying for a limited licence under s 103(2)(a), (b) or (d).18
[63] Section 103(2)(d) prohibits various classes of persons applying for the grant of a limited licence. Included in those classes is, by reason of s 103(2)(d)(ii), any person who is disqualified by an order made on their conviction for an offence against s 56 of the LTA committed within five years after the commission of any other offence specified in the paragraph (which includes s 56) arising from a different incident.
[64] Mr Kelly was convicted in April 2013 of driving with excess breath alcohol. Thus, it would appear that the order under s 94 for community work was made without jurisdiction.
[65] In the circumstances it is appropriate for me to re-sentence Mr Kelly. I make an order that Mr Kelly is disqualified from holding or obtaining a driver’s licence effective from the date of his sentence in the District Court, namely 14 October 2014 for six months and he is fined $350.
Result
[66] The appeal is allowed.
[67] The sentence of eight months’ home detention is quashed.
[68] A sentence of five months’ home detention on the charge of making an intimate visual recording and two months’ home detention on the charge of
attempting to obstruct the course of justice is substituted.
16 Land Transport Act 1988, s 94(3)(c).
17 Section 94(3)(b).
18 Section 94(4).
[69] Those sentences are to be served cumulatively.
[70] The order under s 94 is vacated and substituted with a fine of $350 and an order disqualifying Mr Kelly from holding or obtaining a driver’s licence for six months effective from 14 October 2014.
[71] The orders made in the District Court for destruction remain.
Moore J
Solicitors:
Mr Hislop/Ms Shendi, Auckland
Crown Law Office, Auckland
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