Judge Coyle in the Dunedin District Court on 3 July 2014 for the following charges: (a) possession of objectionable image (x 23);1
(b) publishes an intimate visual recording (x 5);2

(c) knowingly makes an objectionable publication (x 1);3 and

(d) knowingly distributes an objectionable publication (x 4).4

1      Films, Videos, and Publications Classification Act 1993, s 131. Maximum penalty of fine of
$2000.
2      Crimes Act 1961, s 216J. Maximum penalty of three years’ imprisonment.
3      Films, Videos, and Publications Classification Act 1993, s 124. Maximum penalty of 10 years’
imprisonment.
4      Section 124(1). Maximum penalty of 10 years’ imprisonment.

NN v NEW ZEALAND POLICE [2014] NZHC 2355 [26 September 2014]

[2] Mr NN appeals on grounds that the sentence was manifestly excessive as a

result of Judge Coyle’s following errors:

(a) incorrect use of the UK Sentencing Council Guidelines in relation to child pornography through adopting changes made in guidelines on 1
April 2014, those changes not having been adopted by a higher

New Zealand court;

(b) failing to follow the UK Sentencing Guidelines adopted in New

Zealand by the Court of Appeal in R v Zhu;5

(c) breach of s 25(g) of the New Zealand Bill of Rights Act 1990 (NZBORA) by adopting higher UK guidelines that came into effect in the UK after the commission of the offences;

(d)incorrect application of the Supreme Court principles in Hessell v R in relation to a discount for remorse;6 and

(e) the sentence was excessive when viewed alongside comparable cases.

Background

Intimate visual recordings

[3] Up until 24 February 2014 Mr NN lived with his wife and eight year old daughter.

[4] On about 20 December 2013 Mr NN’s wife was in bed one night when she heard Mr NN come into the bedroom and stand near the end of the bed. She was lying on top of the bed and was wearing only a pair of panties. Mr NN believed that his wife was asleep at the time and took photographs of her without her knowledge
or consent.

5 R v Zhu [2007] NZCA 470.
6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[5] The following morning she checked Mr NN’s cell phone and found that he had used his cell phone to send a photograph of her lying semi-naked on the bed to an associate of his. He had done this without her knowledge or permission.

[6] Subsequent examination of Mr NN’s cell phone by police revealed that he had made a large number of intimate visual recordings of his wife lying asleep on the bed, and of his naked wife standing in their…

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 NN v Police

Details

AGLC: NN v Police [2014] NZHC 2355
Case: [2014] NZHC 2355
Decision Date: 26 September 2014

CaseChat Overview and Summary

Mr NN appeals against a sentence of two years’ imprisonment imposed by Judge Coyle in the Dunedin District Court on 3 July 2014. He was convicted of various offences including possession of objectionable image, publishes an intimate visual recording, knowingly makes an objectionable publication and knowingly distributes an objectionable publication. He appealed on grounds that the sentence was manifestly excessive as a result of Judge Coyle’s following errors: incorrect use of the UK Sentencing Council Guidelines in relation to child pornography; failing to follow the UK Sentencing Guidelines adopted in New Zealand; breach of s 25(g) of the New Zealand Bill of Rights Act 1990 by adopting higher UK guidelines that came into effect in the UK after the commission of the offences; incorrect application of the Supreme Court principles in Hessell v R in relation to a discount for remorse; and the sentence was excessive when viewed alongside comparable cases. The appeal was dismissed. In dismissing the appeal, Gendall J held that Judge Coyle was justified in using the Guidelines as a guide when setting the starting point and that it did not matter if Judge Coyle applied the Guidelines that were referred to in Zhu and Clode, the starting point he settled upon was entirely open to him. Gendall J further held that the starting point of two years, which was adjusted upward by eight months to reflect the totality of offending, was not manifestly excessive in the circumstances of the offending. As to ground five of the appeal, Gendall J held that Judge Coyle’s starting point was one of two years and it was within an appropriate range given the extra elements in the present case over and above those present in S v R. This ground of appeal must also fail. Gendall J held that this ground of appeal must also fail because the Guidelines however are not New Zealand legislation. The incorporation of the use of the Guidelines in New Zealand is governed entirely by New Zealand case law. Gendall J also held that Judge Coyle approached this issue correctly and that there was no reason to interfere with Judge Coyle’s decision not to allow Mr NN a further discount for remorse.

Orders