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 A charge in relation to five cannabis plants was withdrawn.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 starting point of 12 months’ imprisonment for the objectionable publication charge. So he set a “collective starting point” of two years and six months’ imprisonment.5 He noted a discount for a guilty plea would be available and mentioned the figure of 25 per cent.6 He did not consider home detention would be appropriate.7 A 25 per cent discount on a starting point of two years and six months (30 months) imprisonment would have been seven and a half months, resulting in a sentence of 22.5 months, or one year, ten months and two weeks.

[4]    On the basis of the sentence indication, Mr Noble pleaded guilty. But, in sentencing him on 19 May 2020, Judge Harding said of the indication:8

The net result of that after considering the aggravating and mitigating features and your personal circumstances was a sentence indication of two years and two weeks’ imprisonment from a starting point of three years.

[5]    A 25 per cent discount on a three-year starting point would have been an end sentence of 27 months. The Judge said no further factors had come to light justifying a reduction and sentenced Mr Noble to two years and two weeks’ imprisonment (with 12 months imposed for the publication charge and 12 months and two weeks for the cannabis charge, cumulatively). Unsurprisingly, Mr Noble appeals. The appeal was out of time but I grant leave for it to be filed, by consent.

Submissions

[6]    Mrs Nabney, for Mr Noble, submits the end sentence was greater than that indicated, the starting point referred to was an error, the Judge did not indicate a different sentence length was to be imposed, Mr Noble was not given the opportunity to withdraw his guilty plea and nothing indicated additional information had become available. She submits the starting point for the objectionable material charge should have been less than 12 months by comparison to the other cases. Mrs Nabney submits

4      At [11] citing Police v Gunderson [2020] NZDC 2294.

5 At [12].

6      At [12] and [15].

7 At [12].

8      Police v Noble [2020] NZDC 8739 at [1].

the Judge should have considered home detention though she acknowledges the objections to that.

[7]    Mr Revell, for the Police, agrees that there appears to have been an inadvertent error and, and in the absence of any justification by the Judge, it must be assumed he intended to follow the indication given. He submits the end point should have been one year, ten months and two weeks’ imprisonment, as per the sentence indication. Mr Revell submits the 12-month starting point for the objectionable publication charge, which leads to a nine-month end sentence with a 25 per cent discount, is low, and not manifestly excessive. He submits home detention is not appropriate because Mr Noble’s cannabis offending was undertaken at home and there has been a previous sentence of home detention for similar offending.

Should Mr Noble’s appeal succeed?

[8]    Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. My focus is on whether the end sentence is within the available range.

[9]    Mr Noble’s right to appeal is not affected by the fact he received a sentencing indication, under s 245 of the Criminal Procedure Act 2011. But s 116 provides that a sentence indication is binding on the judge who gave it unless new information becomes available which materially affects the basis on which  it  is  given.  In Taylor v R, the Court of Appeal stated that, where an appellant contends a judge has not followed a sentencing indication, the focus on appeal is whether the sentence indication created an expectation the appellant relied upon, not on the merits of the sentence actually imposed.9 As I held in Makiri v R, where an appellant does not seek to vacate their guilty plea in light of a sentence indication going awry, the Court must be persuaded the sentence is wrong and a different sentence should be imposed for an appeal to be successful.10

9      Taylor v R [2013] NZCA 55.

10     Makiri v R [2019] NZHC 1811 at [15].

[10]   The Judge here appears to have proceeded on the basis he was implementing the sentence indication, but he was not. This was an error. But I consider the sentence indicated was within the available range and should be imposed. It was the same starting point for the same offence of possession in relation to the same material in Police v Raikoti which the Judge mentioned.11 It is somewhat less serious than that in Gunderson for a more serious charge of distribution. It was certainly less serious than that in Arps. The 25 per cent discount for the guilty plea was generous but that was the basis upon which Mr Noble pleaded guilty and no one now takes issue with that.

[11]   I do not consider Judge Harding erred in considering home detention was not appropriate. Mr Noble’s previous home detention sentence for possession and cultivation of cannabis appears to have made no difference to his behaviour. And either sort of offending could be committed again while on home detention.

[12]   I uphold the appeal, set aside the sentence of imprisonment imposed in the District Court and impose 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).

Palmer J

Postscript: After I delivered the judgment, the Registry drew my attention to the fact that Judge made directions for special release conditions to apply, after sentence expiry date as per a pre-sentence report, though that was not mentioned in his sentencing notes. For the avoidance of doubt, that aspect of the District Court’s decision remains intact.

11     Police v Raikoti [2020] NZDC 1909.