McIlroy v Police - [2020] NZHC 1414

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-65

[2020] NZHC 1414

BETWEEN
ASPINE JARVIS LEE MCILROY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 June 2020

Appearances:

D J Matthews for Appellant S L Dayal for Respondent

Judgment:

22 June 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 June 2020 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date 22 June 2020

Introduction

[1] The appellant, Mr McIlroy, pleaded guilty to, and was sentenced to 23 months’ imprisonment on, the following six charges:

(a)possession of objectionable publications;

(b)making an objectionable publication (edited screenshot of video);

MCILROY v NEW ZEALAND POLICE [2020] NZHC 1414 [22 June 2020]

(c)distributing an objectionable publication (video);

(d)possession of a cannabis plant;

(e)possession of utensils for methamphetamine; and

(f)unlawful possession of a firearm.

[2] Mr McIlroy does not appeal the length of his sentence; the appeal solely concerns the refusal to commute his sentence of imprisonment to home detention.

[3] Leave to appeal out of time is required. Mr Matthews explains that there were delays in his appointment to act for Mr McIlroy. He filed the appeal promptly once appointed. The Crown does not object to leave being granted. Accordingly, as I advised at the hearing, leave to appeal out of time is granted.

Facts

[4] On 15 March 2019 a gunman entered two mosques in Christchurch, shooting and killing 51 Muslim people and injuring many more. The entire attack was filmed by the gunman and livestreamed to the internet. On 18 March 2019 the Chief Censor classified the 16 minute 55 second video as objectionable.1 The gunman’s manifesto document was also classified as objectionable.

[5] On 25 March 2019 police executed a search warrant at Mr McIlroy’s home in Burnside, in relation to the Christchurch terror attacks. Mr McIlroy was the sole occupant of the property. In a cupboard in Mr McIlroy’s bedroom police located a cut down 0.22 calibre bolt action rifle and two methamphetamine glass pipes. In the kitchen 64.55 grams of cannabis was located. Mr McIlroy’s cell phone was seized.

[6] On 12 April 2019 a forensic examination of Mr McIlroy’s cell phone was completed. Located on the phone was:

1 Decision of the Chief Censor “Christchurch Mosque Attack Livestream” OFLC Ref: 1900148.000, 18 March 2019.

(a)numerous pictures and videos of the footage from the Christchurch mosque attack on 15 March 2019;

(b)four copies of the manifesto authored by the gunman;

(c)a video of the mosque shooting recorded by the gunman;

(d)a screenshot of the mosque shooting with the text “Call of Duty Black Mosque NZ Edition” overlaid over the image;

(e)evidence the image was sent multiple times via Facebook messenger;

(f)copies of the video cut down into smaller files, all saved on 17 March 2019;

(g)eight emails sent on 17 March 2019 in the sent items in the Gmail application, one of which had the smaller videos attached.

District Court…

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 McIlroy v Police

Details

AGLC: McIlroy v Police [2020] NZHC 1414
Case: [2020] NZHC 1414
Decision Date: 22 June 2020

CaseChat Overview and Summary

The appeal by Aspin Jarvis Lee McIlroy against the refusal to commute his sentence to home detention was dismissed by the High Court. Mr. McIlroy had pleaded guilty to multiple charges, including possession and distribution of objectionable publications, possession of cannabis and utensils for methamphetamine, and unlawful possession of a firearm. The District Court had sentenced him to 23 months' imprisonment. The appeal concerned the refusal to convert his sentence to home detention.

The court considered whether the District Court Judge had erred in exercising his discretion in declining to impose home detention. The court noted that home detention is an alternative to a short term of imprisonment, and it must be determined whether the purposes of the sentence could not be achieved by any less restrictive means. The appeal against the refusal to grant home detention does not allow for a review of the merits but focuses on whether the judge erred in exercising his sentencing discretion.

The court found that the District Court Judge had not erred in his decision. The offending involved highly objectionable material, which was considered at the high end of the scale of extreme violence or cruelty. The judge considered Mr. McIlroy's lack of remorse, his previous imprisonment, and the seriousness of the offending in determining that imprisonment was the least restrictive sentence. The purposes of denunciation and deterrence were deemed highly relevant in this case. Therefore, the appeal against the decision to decline leave to apply for home detention was dismissed.

Orders