Noble v Police - [2020] NZHC 1781

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-55

[2020] NZHC 1781

BETWEEN
DAVID JOHN NOBLE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 July 2020 (Heard at Tauranga)

Appearances:

R E Nabney for the appellant S J Revell for the respondent

Judgment:

22 July 2020

ORAL JUDGMENT OF PALMER J

(Reissued with postscript)

Counsel/Solicitors:
R E and W T Nabney, Barristers, Tauranga Pollett Legal, Crown Solicitor, Tauranga

NOBLE v NEW ZEALAND POLICE [2020] NZHC 1781 [22 July 2020]

What happened?

[1] On 15 March 2019, the Christchurch terrorist livestreamed his offending. On 16 March 2019, the Prime Minister advised in a public statement that it would likely be an offence for anyone to distribute the live video footage. At 8 am 20 March 2019, Mr David Noble, aged 36, posted on Facebook “Ive got the video if anyone ways it. Just ask an I’ll pm it to you.” Other users on Facebook abused Mr Noble for this, to which he responded in like terms and also said “I have the right to watch it and so does everyone else to make an informed decision about gun law reform.” He forwarded a link to the video footage to eight people who requested it. He told the Police he knew it had been censored but believed he had the right to freedom of information.

[2] On 12 April 2019, the Police executed a search warrant at Mr Noble’s address under the Films, Video and Publications Act 1993. They found approximately
2.2 kilograms of dried cannabis in storage containers, with more cannabis head being dried over a clothing rack. Mr Noble was charged with possession of cannabis for sale, which carries a maximum penalty of eight years’ imprisonment, and possession of an objectionable publication, which carries a maximum penalty of 10 years’ imprisonment. A charge in relation to five cannabis plants was withdrawn. Mr Noble initially pleaded not guilty but then sought a sentencing indication.

[3] On 2 March 2020, Judge C J Harding gave a sentencing indication.1 Although the lead charge was commercial cannabis dealing he considered it was not sophisticated high level dealing and there was a suggestion Mr Noble was a user. The Judge considered he was entitled to adopt a starting point of less than the normal two years but did not consider anything less than 18 months appropriate.2 On the objectionable publication charge, the Judge considered R v Arps, where the starting point was two years and six months, involved a more serious charge, was sent to more people and had a more serious purpose in sharing the video.3 He considered Police v

1 New Zealand Police v Noble DC Tauranga CRI-2019-070-1605, 2 March 2020.
2 At [6].
3 At [10]-[11] citing R v Arps [2019] NZCA 592 R v Arps [2019] NZHC 2113; R v Arps [2019]
NZDC 11547.

Gunderson was more serious because of other material having been sent.4 The Judge adopted a…

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 Noble v Police

Details

AGLC: Noble v Police [2020] NZHC 1781
Case: [2020] NZHC 1781
Decision Date: 22 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, David John Noble appealed against a sentence imposed by the District Court, Tauranga, where he was found guilty of possession of cannabis for sale and possession of an objectionable publication. The appeal was heard on 22 July 2020 by Palmer J. The central issue in the appeal was whether the District Court judge erred in sentencing Noble beyond the indication given and whether the starting point and sentence were appropriate.

The court found that although there was an error in the sentencing process, the sentence indicated was within the available range and should be imposed. The court noted that the starting point for the objectionable publication charge was consistent with other cases and not manifestly excessive. The 25% discount for the guilty plea was deemed generous but was the basis upon which Noble pleaded guilty. The court also found that home detention was not appropriate given Noble’s previous history with similar offences. The appeal was upheld, and the sentence of imprisonment imposed by the District Court was set aside. The court imposed a sentence of imprisonment of one year, ten months and two weeks, comprising, cumulatively, one year, one month and two weeks for the cannabis offence and nine months for the objectionable publication offence.

Orders