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

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

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…

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 Pattison v Police

Details

AGLC: Pattison v Police [2019] NZCA 48
Case: [2019] NZCA 48
Decision Date: 13 March 2019 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Martin George Pattison, the appellant, for leave to bring a second appeal against his sentence for distributing and possessing an objectionable publication. The case was decided by Clifford, Mallon, and Wylie JJ. Pattison was initially sentenced to four years and two months’ imprisonment, a sentence that was later reduced to three years and five months’ imprisonment on appeal. Pattison sought to appeal this sentence again, arguing that the appeal involved a matter of general or public importance and that a miscarriage of justice may have occurred or may occur unless the appeal was heard.

The legal issues the court had to decide were whether Pattison’s proposed appeal involved a matter of general or public importance or a miscarriage of justice, and whether leave to bring a second appeal should be granted. Pattison argued that the appeal involved a matter of general or public importance as it would provide the Court with an opportunity to issue a guideline judgment for the offences of distribution and possession of child pornography. Pattison also argued that the sentence was manifestly excessive. The Crown argued that the sentence was not manifestly excessive and that the Court should not grant leave to bring a second appeal.

The Court declined to grant Pattison leave to bring a second appeal. The Court found that while it was 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. However, the Court was not satisfied that an issue of general or public importance was raised by this appeal, nor that a miscarriage of justice may have occurred or may occur unless this appeal were to be heard. The Court found that Pattison’s sentence could not be seen as manifestly excessive and declined to grant Pattison leave to bring a second appeal against sentence.

The Court of Appeal of New Zealand declined to grant Mr Pattison leave to bring a second appeal against his sentence for distributing and possessing an objectionable publication. The Court found that the appeal did not involve a matter of general or public importance or a miscarriage of justice. The Court was not satisfied that an issue of general or public importance was raised by this appeal, nor that a miscarriage of justice may have occurred or may occur unless this appeal were to be heard. The Court found that Pattison’s sentence could not be seen as manifestly excessive and declined to grant Pattison leave to bring a second appeal against sentence.

Orders