Pattison v Police

[2019] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA558/2018
 [2019] NZCA 48

BETWEEN	MARTIN GEORGE PATTISON Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Clifford, Mallon and Wylie JJ
Counsel:	J D Munro for Applicant K L Kensington for Respondent
Judgment: (On the papers)	13 March 2019 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. Martin Pattison pleaded guilty to representative charges of distributing and possessing an objectional publication, knowing it to be such, and was sentenced on conviction to four years and two months’ imprisonment.[1]  On appeal, Mr Pattison’s sentence was reduced to three years and five months’ imprisonment.[2]

   [1]R v Pattison [2018] NZDC 7373.

   [2]Pattison v Police [2018] NZHC 2163.

2. Mr Pattison now applies for leave to bring a second appeal against sentence.

3. Leave to bring a second appeal may only be granted where the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless that appeal is heard.[3]  The test is a high one.[4]

   [3]Criminal Procedure Act 2011, s 253(3).

   [4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

4. For Mr Pattison, Mr Munro submits that this proposed appeal does raise a matter of general or public importance as it would provide this Court with an opportunity to issue a guideline judgment for the offences of distribution and possession of child pornography.  In 2015 the maximum penalties for the offences of possession and distribution were increased from five to 10 years’ and from 10 to 14 years’ imprisonment respectively.[5] There have, Mr Munro further submits, been only three High Court judgments dealing with distribution under the new maximum penalty,[6] and only two deal with possession.[7]  That lack of appellate authority had led, in Mr Munro’s submission, to significant disparity of sentencing in the District Court. 

   [5]Films, Videos, and Publications Classification (Objectional Publications) Amendment Act 2015, ss 4 and 6.

   [6]Tilyard v Police [2016] NZHC 1377; Robinson v Police [2017] NZHC 2655; and Webb v R [2016] NZHC 2966.

   [7]Tilyard v Police, above n 6; R v Stevens [2016] NZHC 1574. However, Robinson v Police, above n 6, and Webb v R, above n 6, also included charges for possession.

5. Furthermore, and although Edwards J had allowed Mr Pattison’s appeal against sentence imposed in the District Court, the substituted sentence of three years and five months’ imprisonment remained manifestly excessive.

Analysis

1. It is not a ground of appeal against sentence in a particular case that the appellant is of the view that this Court should, in the exercise of its oversight role, issue a guideline judgment in a particular area.  An appeal may be based on the proposition that a particular sentence is, by reference to previous sentencing decisions, beyond the available range and hence is manifestly excessive.  Alternatively, in a particular appeal a sentence may be challenged on the basis of its disparity with other sentences for like offending, and an according need for adjustment.  An appeal on that latter basis may indicate to this Court that a guideline judgment might be considered.  That is an administrative decision for this Court, and not itself the basis for an appeal.

2. As the Crown acknowledged, and as has been observed by the High Court, sentencing for these types of offending has recently become less settled.[8] That has resulted from changes to the England and Wales sentencing guidelines for sexual offences, an earlier version of which had been said by this Court to provide a useful guide to sentencing in this area,[9] and from the 2015 increase in maximum sentencing levels noted above which themselves make further distinctions between the position in New Zealand and that applying in England and Wales. Be that as it may, and as the Crown submitted, in our view Mr Pattison’s sentence cannot be seen as manifestly excessive. Comparing, as is appropriate when disparity is submitted, starting point sentences, Mr Pattison’s offending was clearly more serious than that in Tilyard,[10] where a starting point of two years and six months’ imprisonment was identified, but at the same time was less serious than that in Robinson,[11] where a starting point of seven years’ imprisonment was identified. 

   [8]R v Lawes [2018] NZHC 2448 at [30].

   [9]Sentencing Council for England and Wales Sexual Offences: Definitive Guideline (1 April 2014); and R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [51]–[52].

   [10]Tilyard v Police, above n 6.

   [11]Robinson v Police, above n 6.

3. We are therefore neither satisfied that an issue of general or public importance is raised by this appeal, nor that a miscarriage of justice may have occurred or may occur unless this appeal were to be heard.  We therefore decline to grant Mr Pattison leave to bring a second appeal against sentence.

Solicitors:
Crown Law Office, Wellington for Respondent