McIlroy v Police
[2020] NZHC 1414
•22 June 2020
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 decision
[7] On 12 December 2019 Judge O’Driscoll issued a comprehensive sentence indication setting out his reasons for arriving at the indicated sentence of 23 months’ imprisonment.2 At sentencing on 26 February 2020 the Judge directed that this sentencing indication was to form part of the sentencing remarks. Mr McIlroy accepted that indication and pleaded guilty.3
[8] In his sentencing indication the Judge considered the lead offending to be the charges under the Films, Videos, and Publications Classification Act 1993. He noted there is no tariff decision for offending involving objectionable material charges. He considered the starting point must therefore be assessed with regard to the maximum sentence of 14 years’ imprisonment and the guidance offered by the Court of the Appeal in Patel v R4 and Arps v Police.5
2 Police v McIlroy DC Christchurch CRI-2019-009-2745, 12 December 2019.
3 R v McIlroy [2020] NZDC 3574 at [9].
4 Patel v R [2017] NZCA 234.
5 Arps v Police [2019] NZCA 592.
[9] Referring to Arps, which concerned similar offending, the Judge noted the video had been assessed as at the “high end of the scale of extreme violence or cruelty.”6 Therefore the offending in this case ought to be viewed as being at the high end of the scale of offensiveness.
[10] His Honour considered the volume of material involved placed the offending at a similar level to Arps. However the number of people to whom the material was distributed to was less than the 30 recipients in Arps. An added feature in Mr McIlroy’s offending was that he edited the video into smaller files, increasing the ease (and accordingly risk) with which widespread dissemination could occur. Further, Mr McIlroy took an active role in making the publications.
[11] In addressing the harm caused, the Judge considered the analysis undertaken in Arps to be applicable, that being that the offending took place immediately after the attack, which would have been highly distressing to the victims’ families. The Judge considered Mr McIlroy demonstrated a “cavalier attitude” towards to the attacks. Further, he was still in possession of the material after it had been deemed objectionable.
[12] Considering the aggravating factors, the Judge accepted there was no evidence that the offending was motivated by hostility towards people of Muslim faith as opposed to simply being cavalier or thoughtless to the victims of the offending. The only mitigating factor was that the making and distributing charges occurred before the livestream video was classified as objectionable.
[13] A starting point of two years’ imprisonment was considered appropriate in light of the circumstances discussed. The Judge then applied an uplift of 12 months’ imprisonment to account for the other charges. A discount of four months to reflect the time spent in custody and on bail was applied. A further three months’ discount was given to reflect the fact that Mr McIlroy has no prior relevant convictions. This brought the sentence to 29 months’ imprisonment. A guilty plea discount of 20 per cent was applied. This brought the end sentence to 23 months’ imprisonment.
6 At [65].
[14] At sentencing the Judge relied on the reasoning set out in his sentence indication to support the sentence of 23 months imprisonment and focused instead on whether home detention ought to be imposed, having regard to the pre-sentence report. The Judge considered it would not be appropriate due to a combination of factors. Firstly, Mr McIlroy, at the age of 42, was not a young or youthful offender; home detention would not enhance any rehabilitative prospects; he did not appear remorseful; he had served a sentence of imprisonment before (in 2003); there were three sets of discrete charges; and the sentence of home detention would not achieve the purposes and principles of sentencing. In that regard, the Judge considered the need for deterrence and denunciation to be high. Accordingly, he considered a term of imprisonment to be the least restrictive sentence.
[15] Standard and special conditions of release were imposed, as set out in the pre-sentence report, and an application for final name suppression was declined.7
Principles on appeal
[16] Home detention is an alternative to a short-term of imprisonment.8 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieve by any less restrictive sentence.9
[17] On an appeal against the refusal to grant home detention, rather than a short term sentence of imprisonment, the appellant will have to demonstrate that the Judge erred in exercising his sentencing discretion given the discretionary nature of the decision. As was said in Manikpersadh v R:10
[11] This Court identified the appropriate approach in James v R in this way:
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can
7 Although an appeal was signalled, so name suppression was extended to allow time for an appeal, that time period has now expired and name suppression has lapsed.
8 Sentencing Act 2002, s 15A(1)(b).
9 Section 15A(1)(a).
10 Manikpersadh v R [2011] NZCA 452.
satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”
[18] Error can include where the purpose of deterrence “has been given complete priority without regard to any of the countervailing purposes of sentence.”11 The proper approach, as was articulated in Fairbrother v R, is for the Judge to:12
[30] … make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] As this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”.
Submissions
Appellant’s submissions
[19] Mr Matthews, counsel for Mr McIlroy, submits the District Court Judge erred in imposing a sentence of imprisonment and refusing to commute that sentence to one of home detention.
[20] Mr Matthews submits the Judge erred in, seemingly, relying on Arps as authority for the proposition that home detention was not appropriate in this case. Mr Matthews distinguishes that case on the basis that Mr Arps held far right views and had previous convictions for offences against the Muslim community. Therefore, the need to deter and denounce the offending was greater in that case.
11 Fairbrother v R [2013] NZCA 340 at [29].
12 At [30] and [31]. See also R v D (CA253/2008) [2008] NZCA 254 at [66].
[21] He also submits Mr McIlroy’s age is not a factor that should tell against home detention. He has demonstrated the ability to comply with restrictive bail conditions and he does not have a lengthy criminal history.
[22] While the Judge did not consider home detention would enhance Mr McIlroy’s rehabilitative prospects, Mr Matthews submits that imprisonment has less ability to promote rehabilitation than home detention. While Mr McIlroy has started drug and alcohol treatment in prison, there is no reason that this cannot be continued in the community. Further, he contends imprisonment could simply serve to ensconce the ideas and attitudes that led to Mr McIlroy’s offending, noting that Mr McIlroy’s attitudes towards the offending were borne out of utter ignorance, rather than being politically motivated.
[23] Mr Matthews submits the fact that Mr McIlroy has not expressed remorse ought not to have counted against a sentence of home detention being imposed. He had expressed remorse through his counsel at sentencing. Mr Matthews distinguishes Arps, where the offender continued to express hate towards the Muslim community. Mr Matthews notes that in this case Mr McIlroy has been on bail for nearly a year pending sentence and no further acts have occurred that would suggest hate towards the Muslim community.
[24] It is submitted the sentence of imprisonment in 2003 for unrelated offending (excess breath alcohol third or subsequent) ought not to have bearing on the appropriateness of home detention. Further, being sentenced for multiple charges is not something that ought to have counted against home detention.
[25] Mr Matthews submits there is no reason why home detention would not have carried sufficient denunciative and deterrent impact. He submits the Judge erred in not having regard to s 16(1) of the Sentencing Act 2002, which states “the court must have regard to the desirability of keeping offenders in the community as far as that is practicable”. Mr Matthews points to a number of reasons why it is desirable to keep Mr McIlroy in the community including that he had been on bail for an extended period of time with no reoffending, he had full-time employment, he had a suitable address for home detention and a daughter who suffers mental health issues. Home
detention is said to have represented a real restriction on his liberty and one that would carry substantial denunciative and deterrent impact. Further, Mr McIlroy has now spent over three and a half months in prison, which in itself will have carried significant deterrent effect.
[26] Mr Matthews submits the Judge erred in stating that home detention would not be appropriate for offending which made use of technology, where the offender had access at home. He notes that Mr McIlroy had been on bail with restricted access to technology and no further offending arose. Secondly, there can be no rule that offending involving technology cannot be punished by way of home detention. Cases involving child pornography and harmful digital communications are two examples where home detention has been imposed.
[27] Finally, it is submitted that, unlike in Arps, there is not a high risk of Mr McIlroy offending in a similar manner and home detention is appropriate.
Respondent’s submissions
[28] Miss Dayal, for the Crown, submits the District Court Judge made no error and a sentence of home detention was not appropriate given the seriousness of the offending and the personal circumstances of Mr McIlroy.
[29] In response to Mr Matthew’s objections to the reliance on Arps Miss Dayal notes that Mr McIlroy was one of the recipients of the video from Mr Arps and Mr McIlroy sent edited/shortened versions of the full mosque attack video to Mr Arps on 17 March 2019. Because their offending is connected to a degree, the Judge was justified in taking Mr Arps’ matter into account when determining a starting point. In any event, the Judge acknowledged the offending was not identical and adopted a lower starting point for Mr McIlroy. More importantly, the Judge did not use Mr Arps’ matter as authority for the proposition that home detention would not be appropriate.
[30] Accordingly, while Mr Arps’ matter is relevant to setting the starting point, the question of whether to convert the sentence to one of home detention is a matter that turns on the characteristics of the offender and the offending alone, and this is how the judge approached it.
[31] Miss Dayal submits Mr McIlroy’s age was one of many factors considered by the Judge. It is relevant as it goes to the premeditated nature of the offending, which was not an act of youthful impulsivity. It was deliberate, planned and sophisticated. Furthermore, she submits that age is also relevant to the prospects of rehabilitation. In the Crown’s submission, Mr McIlroy has not been deterred from further offending by his previous sentences including a sentence of imprisonment, and despite having been given the opportunity to address underlying causes of offending with previous sentences.
[32] Miss Dayal refers to a number of observations made by the pre-sentence report writer, including Mr McIlroy’s distinct lack of remorse or understanding of the impact on his victims, minimisation of his actions, belief that the offending was not that serious, denial of holding any anti-Muslim or white supremacist views and the belief that immigrants coming into our country is excessive. Mr McIlroy also states he discovered the video on social media, which is contrary to the evidence that he was sent the video by Mr Arps.
[33] Miss Dayal submits Mr McIlroy’s lack of remorse and understanding are relevant and to, and will inhibit, his prospects of rehabilitation.
[34] Miss Dayal submits the comments made in Arps characterising the video as very disturbing and at the high end of extreme violence or cruelty are relevant as Mr McIlroy, too, distributed the video and edited it to make a game. This demonstrates his callous attitude.
[35] Miss Dayal submits that deterrence and denunciation are also significant for the firearm charge and, when combined with the drug charges, raises significant concern.
[36] In response to Mr Matthew’s submission that the Judge failed to consider s 16 of the Sentencing Act, Miss Dayal points out the Judge acknowledged home detention is a real alternative to imprisonment and Mr McIlroy’s time in custody was reflected by the Judge applying a four month discount to the starting point. Further, it is noted
that where the matter is on the cusp of home detention, appellate courts will defer to the sentencing Judge provided the purposes and principles are taken into account.
Analysis
[37] In approaching this appeal I focus on whether the Judge made a considered and principled choice between the two forms of sentence having regard to all the principles and purposes of sentencing. I start by considering the submissions made on behalf of Mr McIlroy.
[38] The first issue is the relevance of the Arps decision to the sentencing exercise. The Court of Appeal in Arps characterised the video footage as “very disturbing” and affirmed with view of Judge O’Driscoll that it was at the “high end of the scale of extreme violence or cruelty” of objectionable material.13 Mr McIlroy edited the same video footage and disseminated that footage and a screenshot. The Arps decision was clearly relevant to the assessment of the seriousness of the offending.
[39] That said, I agree that an assessment of whether home detention is appropriate involves a nuanced analysis of Mr McIlroy’s individual position. While the offending in Arps and in this case is linked, it does not provide assistance in determining whether it is appropriate that Mr McIlroy’s sentence be commuted to home detention. However, I do not think the Judge relied on it to decide this issue. His decision on imprisonment was based solely on discussion of Mr McIlroy’s personal circumstances and offending. While the Judge considered the same factors as in Arps, he focused on their relevance to Mr McIlroy’s circumstances, which was appropriate.
[40] I do not consider the District Court Judge erred in considering Mr McIlroy’s age. While not a critical factor, I accept Miss Dayal’s submission that age is relevant as it goes to the premediated nature of the offending, which was not an impulsive act borne out of youthful immaturity. That is a factor which is relevant both to prospects of rehabilitation and the need for deterrence.
13 Arps v Police, above n 5, at [65].
[41] A third factor considered by the Judge was whether home detention would enhance Mr McIlroy’s rehabilitative prospects. In the pre-sentence report Mr McIlroy is recorded as acknowledging he is an alcoholic. Mr Matthews notes that Mr McIlroy has recently begun treatment for drug and alcohol issues in prison. While I acknowledge that this form of rehabilitation can take place in the community, it is encouraging that Mr McIlroy has engaged in treatment while in prison, and I consider he may benefit from the more structured environment there, particularly when he advised the pre-sentence report writer that he would not alter his cannabis use. This supports my view that without the structure of prison he is less likely to make meaningful changes to his drug and alcohol use which relates to at least one aspect of his current offending.
[42] I do not consider the Judge erred in concluding that home detention would not enhance Mr McIlroy’s rehabilitative prospects.
[43] In respect of Mr Matthew’s submission that the 2003 sentence of imprisonment was for unrelated offending and ought not to have bearing on whether to commute the sentence to home detention, the Judge acknowledged that this term of imprisonment was of some vintage. I consider it had some, albeit modest, relevance, in that Mr McIlroy had received the most serious sentence in the sentencing hierarchy on a previous occasion, but had subsequently offended.
[44] The sentencing purposes of accountability, denunciation, and deterrence are highly relevant in this case. The pre-sentence report records Mr McIlroy has a distinct lack of remorse and minimises his actions. He is also said to have a lack of empathy and understanding for the impact that his offending has had on his victims. I consider this indicates that he does not understand the seriousness of his offending nor the impact on his victims and the wider community. While I accept he is not at particularly high risk of committing similar offences involving objectionable publications if he is granted home detention given his apparent compliance while on bail, that is not the only relevant factor. As I have said, Mr McIlroy does not resile from his cannabis related offending.
[45] Given the gravity of the offending, which does not just include the objectionable publication offending, but also possession of an illegal firearm and drug-related offending, the need to denounce and deter such conduct is high. In the absence of countervailing factors which make home detention the more appropriate option, I agree that a sentence of home detention would not sufficiently meet the purpose and principles of sentencing in this case.
[46] A short-term of imprisonment is the least restrictive sentence in this case and there was no error in the Judge’s decision.
Conclusion
[47] The appeal against the decision to decline leave to apply for home detention is dismissed.
Solicitors:
Public Defence Service, Christchurch Raymond Donnelly & Co., Christchurch
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