Pattison v Police
[2018] NZHC 2163
•22 August 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2018-463-000041
[2018] NZHC 2163
IN THE MATTER OF an appeal against sentence BETWEEN
MARTIN GEORGE PATTISON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 August 2018 Counsel:
J D Munro for the Appellant
M S Jenkins for the Respondent
Judgment:
22 August 2018
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 22 August 2018 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel: J D Munro, Auckland
Solicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua
PATTISON v POLICE [2018] NZHC 2163 [22 August 2018]
[1] Mr Pattison pleaded guilty to one representative charge of distributing,1 and one representative charge of possessing,2 an objectionable publication, knowing or having reasonable cause to believe the publication was objectionable.
[2] The distribution charge related to two video files and one image involving children engaged in sexual activity, and one image of a child in an erotic pose. The possession charge related to 874 images of children undertaking sexual and non-sexual acts, including bestiality and sadism, computer-generated children undertaking sexual acts, and adult bestiality.
[3] Mr Pattison was sentenced to four years and two months’ imprisonment by Judge G C Hollister-Jones in the District Court at Rotorua.3 He appeals against sentence on the grounds that the Judge erred in his categorisation of the publications and adopted a starting point that was inconsistent with applicable High Court authorities. Those errors are said to have led to a sentence that was manifestly excessive in the circumstances.
The offending
[4] Mr Pattison was part of an online chat group named “daughterlover”. He posted two images and two video files to this chat group:
(a)The first video file was 41 seconds long. It depicted a partially naked female child, estimated to be 12 to 13 years old, wearing only underpants and performing oral sex on an adult penis.
(b)The second video file was 29 seconds long. It depicted a naked female child estimated to be eight to 10 years old. There was an adult penis near the child’s face with an adult hand masturbating the penis. The penis then ejaculated over the child’s face and the child then performed oral sex on the penis.
1 Films, Videos, and Publications Classification Act 1993, ss 123(1)(d) and 124(1).
2 Films, Videos, and Publications Classification Act 1993, ss 131(1) and 131A(1).
3 R v Pattison [2018] NZDC 7373.
(c)One of the image files depicted a female child estimated to be 10 to 14 years old. The image is of the child’s face. Also in the image are two adult penises. One of the penises has ejaculated over the child’s face.
(d)The other image file depicted a female child estimated to be between eight and 12 years old. The image is of the child in an erotic pose while wearing a bra and underpants.
[5] On 2 March 2017, the police executed a search warrant at Mr Pattison’s home address and located a computer hard-drive. That computer hard-drive was found to contain 874 objectionable publications. Of these:
(a)325 images depicted children engaged in bestiality, sadism, penetrative and non-penetrative sexual activity, and erotic posing. The particular categorisation of these 325 images (from most to least serious) is as follows:
(i)Four images involving bestiality or sadism involving children;
(ii)124 images of penetrative sexual activity between children and adults;
(iii)126 images of non-penetrative sexual activity between children and adults;
(iv)17 images of sexual activity between children or solo masturbation; and
(v)54 images of erotic posing, with no sexual activity;
(b)258 images depicted computer-generated penetration and non- penetration of children; and
(c)291 images depicted adult bestiality.
[6] On completion of the search of Mr Pattison’s home, the police contacted Mr Pattison and indicated that they wished to speak to him. Numerous attempts were made to interview Mr Pattison but he indicated that he was unavailable. Mr Pattison was stopped at Auckland International Airport on 17 May 2017 attempting to leave the country. As between the date of the police search and Mr Pattison’s arrest, it appears that Mr Pattison had applied for, and been issued with, a new passport. Mr Pattison subsequently declined to speak to police.
Personal circumstances
[7] Mr Pattison is 43 years of age. The pre-sentence report records that he denies the offending despite having pleaded guilty to the current charges. He told the report- writer that he did not do any of it and he had to plead guilty or risk getting a longer sentence.
[8] Prior to arrest, Mr Pattison was living alone but also spent time with his partner of two years. He had previously been employed as an LPG delivery truck driver for approximately one year. The report identifies Mr Pattison as being at moderate risk of abusing alcohol although whether that was a factor in his offending could not be ascertained. Although Mr Pattison disclosed to the report-writer that he was diagnosed with bipolar disorder in 1999, that was not verified and Mr Pattison was not medicated at the time of interview.
[9] Mr Pattison was assessed as being at moderate risk of reoffending, but as presenting a high risk of harm to others given the nature of his offending.
The District Court sentence
[10] The District Court Judge was satisfied that the three aggravating factors listed in s 132A of the Films, Videos, and Publications Classification Act 1993 were present in this case.4 That is, he found the publications tended to promote or support the exploitation of children for sexual purposes; depict sexual conduct with children; and exploit the nudity of children. The Judge also identified that the age of the children in
4 R v Pattison [2018] NZDC 7373 at [6].
many of the images was less than 10 years old. He did not identify any mitigating features of the offending.5
[11] The gravity of the offending was assessed in accordance with the three categories of publication set out in the guidelines on child pornography offending issued by the Sentencing Council for England and Wales in 2014 (UK guidelines) being (in descending order of seriousness):6
(a)Category A: images involving penetrative sexual activity, and images involving sexual activity with an animal or sadism.
(b)Category B: images involving non-penetrative sexual activity.
(c)Category C: other indecent images not falling within categories A or B.
[12] The Judge assessed the offending as grave due to the number of category A images either distributed or possessed.7 For the distribution charges, he assessed the images as involving three category A images and one category C image, noting that two of the images involved children under 10 years of age. He adopted a starting point of three-and-a-half years’ imprisonment for those charges.8
[13] The images the subject of the possession charge were categorised by the Judge as follows:
(a)418 category A images;
(b)143 category B images; and
(c)258 category C images.
5 At [7].
6 Sentencing Council for England and Wales “Sexual Offences Definitive Guideline” (April 2014) at 76.
7 At [10].
8 At [10].
[14] On the basis of this categorisation, the starting point adopted for the distribution charge was uplifted by two years for the possession charge.9
[15] The Judge then considered that the adjusted starting point of five-and-a-half years, viewed against the maximum penalties of 14 years and 10 years’ imprisonment respectively, was proportionate and in line with Parliament’s intention for deterrent sentences to be imposed when the offending is grave and involves children.10
[16] From that starting point, the Judge allowed a three-month discount for prior good character, and a discount of 20 per cent for the guilty pleas. The 20 per cent discount reflected the fact that the late disclosure of expert evidence on a key aspect of proof warranted such a deduction.11
[17]The end sentence was four years and two months’ imprisonment.12
Approach on appeal
[18] Section 250(2) of the Criminal Procedure Act 2011 provides that the court must allow an appeal against sentence if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[19] In any other case, the court must dismiss the appeal.13 An appeal court will not intervene unless there is a material error, and if so, the court will then go on to form its own view of an appropriate sentence.14
9 At [11].
10 At [12].
11 At [13].
12 At [14].
13 Criminal Procedure Act 2011, s 250(3).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; citing R v Shipton [2007] 2 NZLR 218 (CA) at [140].
Did the Judge err in categorising the objectionable publications?
[20] The Court of Appeal has endorsed previous versions of the UK guidelines as providing assistance for New Zealand Judges when sentencing for child pornography offending.15 The 2007 version of the guidelines outlined five categories of child pornography from least serious to most serious.16 These guidelines were updated in 2014 and the five categories were replaced by the three categories set out at [11] of this judgment.
[21] The UK guidelines also draw a distinction between possession, distribution and production of child pornography. The former being relatively less serious, and the latter being the most serious of the three forms of offending. The UK guidelines also indicate that the intrinsic character of the most serious of the offending images will initially determine the appropriate category. However, if the most serious images are unrepresentative of the defendant’s conduct, a lower category may be appropriate.17
[22] The Court of Appeal has not yet considered whether the 2014 version of the guidelines should be used in New Zealand, although the new categorisations have been referred to in both District Court and High Court decisions. The parties and the District Court Judge in this case proceeded on the basis of these categorisations and I approach the appeal on that basis also.
[23] Mr Munro submits that the Judge wrongly categorised the objectionable publications as comprising three category A publications and one category C publication. He submits the image of a 10 to 14-year-old female, pictured with two penises one of which has ejaculated on her face, is category B and not category A, because it does not involve penetrative sexual activity. Accordingly, Mr Munro submits that the correct categorisation of the publications is two category A, one category B, and one category C.
15 R v Zhu [2007] NZCA 470 at [15]; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [52].
16 Sentencing Guidelines Criminal Sexual Offences Act 2003 – Definitive Guideline (April 2007) at 109.
17 Sentencing Council for England and Wales “Sexual Offences Definitive Guideline” (April 2014) at 76.
[24] On a strict application of the UK guidelines, Mr Munro’s submission is correct. But the categories provided in those guidelines are not to be prescriptively or rigidly applied. As Katz J observed in Stewart v Department of Internal Affairs, the UK guidelines need to be applied flexibly, and only to the extent that they are considered helpful in any given case.18
[25] I consider the age of the child (between 10 and 14), and the fact that there are two adult penises in the picture, one ejaculating over the child’s face, place this image at the very top of the category B range, and on the cusp of category A. When the nature of this image is considered in the context of the other publications distributed by Mr Pattison, its re-categorisation does not make any substantial difference to the overall assessment of the gravity of the offending. Considered as a whole, the intrinsic character of the four publications is consistent with predominantly category A type offending.
[26] Next, Mr Munro submits that the Judge erred in his categorisation of the images the subject of the possession charge. The Judge assessed 418 of the 874 images as falling within category A. However, this included the 291 images that depicted adult bestiality. Those bestiality images are by any measure objectionable, but because they do not involve children, the UK guidelines do not apply.19 Therefore, for categorisation purposes, these 291 images, relatively speaking, are not as serious as the three categories of publication which relate to child pornography.
[27] The Crown accepts that the Judge’s inclusion of the 291 images in category A was in error. Accordingly, the parties agree that the possessed material should be categorised as follows:
(a)128 images in category A;
(b)143 images in category B; and
18 Stewart v Department of Internal Affairs [2014] NZHC 2209 at [17].
19 R v Henderson [2008] NZCA 305 at [10]. See also Harding v Department of Internal Affairs HC Hamilton CRI-2008-419-53, 29 October 2008, in which Cooper J said that material which included bestiality, urination and sadism involving adults was in a less serious category than if children had been involved: at [37].
(c)603 images at or below category C.
[28] I accept that this error in categorisation may have led the Judge to consider the offending to be more serious than other cases involving comparable offending. The issue is whether that wrong categorisation led the Judge to fix a starting point for both the distribution and possession charges outside the applicable range for offending of this type. That issue is considered next.
Was the starting point too high?
[29] Mr Munro submits that the three-and-a-half-year starting point adopted for the distribution charge, and the two-year uplift applied for the possession charge, was excessive when compared to cases of comparable offending.
[30] The UK guidelines contain suggested starting points for each of the three categories identified. At the time the initial guidelines were published, the maximum penalties for such offending in both New Zealand and the United Kingdom were the same. Nevertheless, the courts were cautious about applying those starting points given the different New Zealand context.20
[31] However, the maximum penalties for these offences are no longer the same, casting further doubt on the relevance of the sentencing levels in the UK guidelines. In April 2015, the maximum penalties for both the distribution and possession offences in New Zealand were substantially increased. The maximum penalties for distribution rose from 10 years to 14 years’ imprisonment. For possession, the maximum penalty was doubled from five years to 10 years’ imprisonment.
[32] At the third reading of the Films, Videos, and Publications Classification (Objectionable Publications) Amendment Bill, the then Minister of Justice made it clear that the aim of the increased penalties was to disrupt the cycle of possession, production and distribution of child exploitation material. The amendment was intended to send a strong message that possessing and trading in images depicting the sexual exploitation of children is grave offending warranting stronger penalties than
20 Stewart v Department of Internal Affairs [2014] NZHC 2209 at [23]–[26].
other types of objectionable publications.21 That policy was also reflected in the explanatory note for the Bill.22
[33] The Court of Appeal has yet to consider the appropriate starting points with reference to the increased maximum penalties for these offences. Further, there has been relatively few High Court decisions in this area since the maximum penalties were increased. The parties relied on the decisions in Tilyard v Police,23 Robinson v Police24 and R v Stevens25 in determining the appropriate starting point. Each of those decisions is considered below. Another decision of this Court, Webb v R, was also referred to me, but neither party placed any reliance on it.26
[34] The appellant in Tilyard v Police was charged with distributing 128 images depicting child exploitation and possessing about 700 objectionable images that could be classed as objectionable.27 The images included boys aged between 10 and 15 years old, naked or partially naked, showing their genitals and/or anus. The three most serious images involved a half-naked boy with a thermometer inserted backwards into his anus; a boy looking back between his legs with his anus and genitals visible and the hand of an adult male on one of his buttocks; and two boys aged between 10 and 12, clad only in underwear, lying down and kissing with their arms around each other.
[35] The remaining images were of naked or partially naked boys posing with their genitals exposed but with no penetration and no adult present. On appeal, Nicholas Davidson J concluded that the image with the thermometer fell within category A, and the others within category B. He accepted that these images were not numerically or in-kind representative of the bulk of the other images which fell within category C.28 The effect of that finding was that culpability was assessed by reference to most of the images being within category C.
21 (2 April 2015) 704 NZPD 2891.
22 Objectionable Publications and Indecency Legislation Bill 2013 (124-1) (explanatory note).
23 Tilyard v Police [2016] NZHC 1377.
24 Robinson v Police [2017] NZHC 2655.
25 R v Stevens [2016] NZHC 1574.
26 Webb v R [2016] NZHC 2966.
27 Tilyard v Police [2016] NZHC 1377.
28 At [21]–[23].
[36] The Judge considered the changes to the UK guidelines in 2014, the 2015 increase to the maximum penalties, and relativity to starting points adopted in cases prior to the maximum penalty increase. The Judge adopted a starting point of two- and-a-half years for the distribution charges. That starting point was reached by taking a two-year starting point for an image at the lower end of category A, and further uplifting that by six months for the two category B images and the most represented category C images. That starting point recognised that the bulk of the offending was, in the Judge’s words, “of a different hue” to the three most serious images and accordingly a lower starting point than the three years adopted by the District Court Judge in that case was appropriate.
[37] His Honour did not apply a separate uplift for the possession charges. He agreed with the District Court Judge that a one-year concurrent sentence for the possession charges was appropriate. That meant that the two years and six months adopted was effectively a global starting point for both the distribution and possession charges.
[38] The case of Robinson v Police is at the other end of the scale to Tilyard.29 Mr Robinson was charged with the distribution of 15 digital video files of child pornography comprising a total of one hour and 40 minutes of footage, and possession of 20 digital video files involving child pornography comprising four hours and 35 minutes of footage. The nature of those videos was summarised by Fitzgerald J as follows:
[9] The 35 videos are on any view extremely objectionable. All involve young girls between the (estimated) ages of three and fourteen years (many being well under ten years old). The majority depict adult males subjecting the young children to penetrative sexual activity, including anal intercourse. One video Mr Robinson shared recorded a young girl, naked but wearing a dog collar, performing oral sex on a dog. Another he possessed showed a young female child being subjected to acts of sadism.
[10] A number of the images which do not depict vaginal, anal or oral penetration of young girls by adult men nevertheless depict the children inserting (or having inserted) objects into their vagina or anus.
29 Robinson v Police [2017] NZHC 2655.
[39] After considering the UK guidelines, the increase in the maximum penalties, and relevant case law (including Tilyard), Fitzgerald J upheld the global starting point of seven years’ imprisonment for both the distribution and the possession charges. However, her Honour noted that such a starting point was at the upper end of the permissible range.30
[40] In R v Stevens, Toogood J sentenced Mr Stevens on a raft of charges including eight charges of knowingly possessing objectionable publications.31 These charges related to 1,474 still images and eight videos predominantly involving young pre- pubescent boys, some as young as four years old. The more serious content involved penetration of the boys, including by adult male penises. Two of the images involved sadism or bestiality against children.
[41] Mr Stevens was charged on the basis of seven images and one video recording as being representative of the total material in his collection. After Mr Stevens was charged, he voluntarily provided police with a further 3,267 images. Although charges were not laid in relation to this material, the content of the images, and the fact it had been voluntarily disclosed, was taken into account in sentencing.
[42] Toogood J adopted a starting point of two years’ imprisonment for the possession charges. That starting point reflected the large quantity of objectionable images; the seriously offensive nature of the images involving children aged as young as four, sadism and bestiality; a high degree of pre-mediation; and the inestimable harm to the children depicted.32
[43] In reliance on these cases, Mr Munro submits that Mr Pattison’s offending is closer to the Tilyard end of the scale, and he suggests a starting point of two years and six months relative to that case. Further, he submits that the two-year uplift for the possession charges was excessive by comparison to the two-year starting point adopted in R v Stevens which involved significantly more serious offending than in this case. Mr Munro submits that a global starting point of two years and six months
30 At [51].
31 R v Stevens [2016] NZHC 1574.
32 At [25].
to three years’ imprisonment for both the distribution charge and the possession charge is appropriate.
[44] Mr Jenkins submits that the overall gravity of the offending is closer to Robinson than Tilyard, and the overall starting point adopted by the Judge is justified on that basis.
[45] The comparison of the starting points in these cases involves a consideration of the aggravating features of the offending. As these cases show, the content of the images, as reflected in their categorisation, is clearly a key marker of overall gravity. But it is not the only one. In Stewart, Katz J considered the United States Sentencing Commission Report on Child Pornography Offenses, in which relevant sentencing factors were identified.33 These include the content of the offender’s child pornography collection and the nature of an offender’s collecting behaviour. Indicators of an offender’s collecting behaviour include the volume of material; types of sexual conduct depicted in the images; the age of the victims depicted; and the extent to which an offender has organised, maintained and protected a collection over time, including through sophisticated technologies. The degree of an offender’s involvement with other offenders and the degree of engagement with the images concerned are also considered relevant to the gravity of the overall offending. Another aggravating feature is a history of engaging in sexually abusive, exploitative or predatory conduct in addition to child pornography offending.
[46] The quantity of images in an offender’s possession requires separate comment. The volume of material will often be relevant in assessing culpability, but caution is to be exercised in putting too much weight on this factor. Katz J explained the reasoning for that caution as follows:34
[42] Traditionally courts have tended to view the size of an offender’s child pornography collection as a key aggravating factor. Due to developments in modern technology, however, it is now necessary to take a somewhat more nuanced view of this issue. Child pornography offending is now almost exclusively internet enabled. Cases involving hard copy print materials are
33 Stewart v Department of Internal Affairs [2016] NZHC 2209 at [31]; citing United States Sentencing Commission Report to Congress: Federal Child Pornography Offenses (December 2012) at 320.
34 Stewart v Department of Internal Affairs [2014] NZHC 2209.
rare to non-existent. The use of modern internet based technologies, such as P2P file sharing, facilitates the collection of high volumes of child pornography material with relative ease and within a short space of time. On the other hand, many offenders now appear to also be using modern technology to attempt to disguise their offending behaviour, including by storing material in the cloud. Accordingly the size of a collection in itself is now a somewhat blunt tool in assessing culpability. It is necessary to consider the size of a collection in the broader context of everything that is known about an offender’s online behaviour in order to assess the appropriate level of culpability.
[47] Those observations were affirmed by Mander J in Webb35 and by Fitzgerald J in Robinson.36 I do likewise.
[48] Bearing in mind those aggravating factors, I turn to consider the starting point for the offending in this case. I consider the starting point for the distribution charge, as the lead charge, first. Mr Pattison’s offending has several features that make it significantly more serious than the distribution offending in Tilyard:
(a)First, and most importantly, the nature of the sexual activity depicted in the publications was significantly more serious than in Tilyard. As Nicholas Davidson J found, the images in Tilyard involved children posing, but they were not otherwise involved in sexual activity. In Mr Pattison’s case, two of the images involved children performing oral sex, and one image involved two adult penises with one having ejaculated over a child’s face. The degree of victimisation and child exploitation was significantly greater in these images than in Tilyard as reflected in their higher classification.
(b)Second, Mr Pattison’s offending involved the distribution of videos, as well as still images. The offending in Tilyard only involved the latter. Video content is potentially more serious than still images in my view. The nature of the medium draws the viewer into the abuse of the child in a more direct and immediate way. In that sense, video content is more exploitative of the child victim, and can reflect a greater degree of engagement with the material by the offender. The fact that the
35 Webb v R [2016] NZHC 2966 at [51].
36 Robinson v Police [2017] NZHC 2655 at [34].
overall length of video material is taken into account in assessing gravity (as it was in Robinson37) is a further aggravating aspect of this medium of objectionable publications.
(c)Third, the age of the children in two of the four images was estimated to be younger than 10 years old. In Tilyard, all of the images involved children over 10 years old. All exploitation of children is reprehensible, but the younger the age of the child, the greater the aggravating nature of the offending.
[49] As Mr Munro stressed, the quantity of the material distributed was significantly less in Mr Pattison’s case than in Tilyard (four images in this case, compared to 128 images in Tilyard). Whilst that difference is relevant, for the reasons set out above, the size of the collection is not necessarily probative of culpability. I consider the other factors in this case are a better marker of Mr Pattison’s overall engagement with child exploitation material and other objectionable images. Overall, I consider a starting point significantly higher than the two years and six months adopted in Tilyard is warranted in Mr Pattison’s case.
[50] On the other hand, I accept that the offending in Robinson was graver than that in Mr Pattison’s case. The distribution charges in that case related to 15 video files which comprised 100 minutes of footage. The nature, number and length of those videos make the offending in Robinson significantly more serious than in this case.
[51] Taking all these factors into account, I consider the starting point of three years and six months adopted by the Judge to be within range for offending of this nature. There was no error in the Judge’s approach.
[52] Next, I consider the uplift for the possession charges. Again, I consider the possession charges to be more serious than in Tilyard. The possession charges in Tilyard related to 700 images which predominantly fell within category C. In this case, the possession charges relate to 874 images with 128 images falling within
37 Robinson v Police [2017] NZHC 2655 at [35].
category A, 143 images within category B, and the remaining images at or below category C.
[53] I do not consider the starting point for the distribution charge adequately reflects the gravity of the possession of these objectionable images. The possession of such images is not victimless. It involves physical and emotional harm of the most vulnerable in our society in the most degrading, demeaning and repulsive ways. The possession of such material feeds the demand which perpetuates the cycle of abuse and exploitative behaviour. I consider the number of images falling within categories A and B in this case requires separate denouncement and deterrence by way of an uplift from the starting point of three years and six months.
[54] As to the extent of the applicable uplift, I accept that Mr Pattison’s possession offending is not as serious as in Robinson. The possession charges in that case involved possession of 20 videos comprising 275 minutes of footage involving offending against children of a more serious nature than in this case.
[55] Similarly, the possession offending in R v Stevens is also more serious given the age of the children involved, and the fact that the materials included eight videos which were representative of the overall offending. The offending in Stevens also involved a greater quantity of images than in Mr Pattison’s case, which was reflective of the extent to which he was engaged in the offending. That factor was reinforced by the fact that Mr Stevens also faced one charge of doing an indecent act on a child under 12, one charge of indecent communication with a young person under 16, and two charges of breaching an extended supervision order.
[56] If Mr Pattison’s offending was being sentenced alone, I consider a starting point of up to 18 months’ imprisonment may have been justified. But taking into account principles of totality, I consider an uplift of 12 months’ imprisonment appropriately reflects the gravity of Mr Pattison’s possession offending.
[57] That brings the total global starting point to four years and six months’ imprisonment. Standing back and considering the nature of the material the subject of both the distribution charge and the possession charge, I am satisfied that this
starting point reflects the overall gravity of the offending and is consistent with the maximum penalties imposed for offending of this nature.
[58] It follows that the starting point adopted by the Judge was outside the applicable range. But to ascertain whether this error resulted in a manifestly excessive sentence, it is necessary to take into account the adjustments made for personal mitigating factors. That aspect of the sentence is considered next.
Was the end sentence manifestly excessive?
[59] The District Court Judge applied a three-month discount for previous good character, and a 20 per cent discount for the guilty pleas. In the face of Mr Pattison’s denial of his offending (despite his guilty pleas), there were no other available discounts for remorse or rehabilitation.
[60] There is no reason to review the application of the 20 per cent discount for the guilty plea. That discount was justified given the late service of the expert brief and the point in time at which the plea was entered.
[61] However, I consider the three-month discount given for previous good character was generous to Mr Pattison given the following circumstances:
(a)Mr Pattison has one previous conviction from 2007 for producing a logbook with omissions. He was fined $500, ordered to pay court costs of $130, and disqualified from driving heavy vehicles for one month for that offence. Although that conviction was minor, historical, and bears no correlation to the current offending, Mr Pattison did not have an entirely unblemished record before the current offending.
(b)More recently, the pre-sentence report notes that Mr Pattison currently owes $820.60 in outstanding fines, and a warrant to arrest in relation to his fines was issued on 23 October 2017.
(c)Finally, as recorded in the summary of facts to which Mr Pattison pleaded guilty, he was unavailable to speak to police on the numerous
occasions that they contacted him. He was also stopped at Auckland International Airport attempting to leave the country. He had applied for, and been issued with, a new passport between the date of the police search at his residence and his arrest.
[62] I consider the District Court Judge could have declined to apply a discount for previous good character in these circumstances. However, because the discounts were not addressed as part of the appeal, and neither party focused on them in their submissions, I am reluctant to interfere with the exercise of the Judge’s discretion. I proceed on the basis that the three-month discount should be applied on appeal.
[63] Applying the three-month discount for previous good character and the 20 per cent discount for the guilty pleas results in an end sentence of three years and five months’ imprisonment. It follows that the sentence of four years and two months’ imprisonment imposed by the Judge was manifestly excessive and must be set aside.
Result
[64] The appeal is allowed. The sentence of four years and two months’ imprisonment is set aside and substituted with a sentence of three years and five months’ imprisonment.
Edwards J
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