MCILROY v NEW ZEALAND POLICE [2020] NZHC 1414

MCILROY v NEW ZEALAND POLICE [2020] NZHC 1414 [22 June 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-65[2020] NZHC 1414BETWEEN ASPINE JARVIS LEE MCILROYAppellantAND NEW ZEALAND POLICERespondentHearing: 18 June 2020Appearances: D J Matthews for AppellantS L Dayal for RespondentJudgment: 22 June 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 22 June 2020 at 4.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 22 June 2020Introduction[1] The appellant, Mr McIlroy, pleaded guilty to, and was sentenced to 23 months'imprisonment on, the following six charges:(a) possession of objectionable publications;(b) making an objectionable publication (edited screenshot of video);(c) distributing an objectionable publication (video);(d) possession of a cannabis plant;(e) possession of utensils for methamphetamine; and(f) unlawful possession of a firearm.[2] Mr McIlroy does not appeal the length of his sentence; the appeal solelyconcerns the refusal to commute his sentence of imprisonment to home detention.[3] Leave to appeal out of time is required. Mr Matthews explains that there weredelays in his appointment to act for Mr McIlroy. He filed the appeal promptly onceappointed. The Crown does not object to leave being granted. Accordingly, as Iadvised at the hearing, leave to appeal out of time is granted.Facts[4] On 15 March 2019 a gunman entered two mosques in Christchurch, shootingand killing 51 Muslim people and injuring many more. The entire attack was filmedby the gunman and livestreamed to the internet. On 18 March 2019 the Chief Censorclassified the 16 minute 55 second video as objectionable.1 The gunman's manifestodocument was also classified as objectionable.[5] On 25 March 2019 police executed a search warrant at Mr McIlroy's home inBurnside, in relation to the Christchurch terror attacks. Mr McIlroy was the soleoccupant of the property. In a cupboard in Mr McIlroy's bedroom police located a cutdown 0.22 calibre bolt action rifle and two methamphetamine glass pipes. In thekitchen 64.55 grams of cannabis was located. Mr McIlroy's cell phone was seized.[6] On 12 April 2019 a forensic examination of Mr McIlroy's cell phone wascompleted. Located on the phone was:1 Decision of the Chief Censor "Christchurch Mosque Attack Livestream" OFLC Ref:1900148.000, 18 March 2019.(a) numerous pictures and videos of the footage from the Christchurchmosque attack on 15 March 2019;(b) four copies of the manifesto authored by the gunman;(c) a video of the mosque shooting recorded by the gunman;(d) a screenshot of the mosque shooting with the text "Call of Duty BlackMosque NZ Edition" overlaid over the image;(e) evidence the image was sent multiple times via Facebook messenger;(f) copies of the video cut down into smaller files, all saved on17 March 2019;(g) eight emails sent on 17 March 2019 in the sent items in the Gmailapplication, one of which had the smaller videos attached.District Court decision[7] On 12 December 2019 Judge O'Driscoll issued a comprehensive sentenceindication setting out his reasons for arriving at the indicated sentence of 23 months'imprisonment.2 At sentencing on 26 February 2020 the Judge directed that thissentencing indication was to form part of the sentencing remarks. Mr McIlroyaccepted that indication and pleaded guilty.3[8] In his sentencing indication the Judge considered the lead offending to be thecharges under the Films, Videos, and Publications Classification Act 1993. He notedthere is no tariff decision for offending involving objectionable material charges. Heconsidered the starting point must therefore be assessed with regard to the maximumsentence of 14 years' imprisonment and the guidance offered by the Court of theAppeal in Patel v R4 and Arps v Police.52 Police v McIlroy DC Christchurch CRI-2019-009-2745, 12 December 2019.3 R v McIlroy [2020] NZDC 3574 at [9].4 Patel v R [2017] NZCA 234.5 Arps v Police [2019] NZCA 592.[9] Referring to Arps, which concerned similar offending, the Judge noted thevideo had been assessed as at the "high end of the scale of extreme violence orcruelty."6 Therefore the offending in this case ought to be viewed as being at the highend of the scale of offensiveness.[10] His Honour considered the volume of material involved placed the offendingat a similar level to Arps. However the number of people to whom the material wasdistributed to was less than the 30 recipients in Arps. An added feature inMr McIlroy's offending was that he edited the video into smaller files, increasing theease (and accordingly risk) with which widespread dissemination could occur.Further, Mr McIlroy took an active role in making the publications.[11] In addressing the harm caused, the Judge considered the analysis undertakenin Arps to be applicable, that being that the offending took place immediately after theattack, which would have been highly distressing to the victims' families. The Judgeconsidered Mr McIlroy demonstrated a "cavalier attitude" towards to the attacks.Further, he was still in possession of the material after it had been deemedobjectionable.[12] Considering the aggravating factors, the Judge accepted there was no evidencethat the offending was motivated by hostility towards people of Muslim faith asopposed to simply being cavalier or thoughtless to the victims of the offending. Theonly mitigating factor was that the making and distributing charges occurred beforethe livestream video was classified as objectionable.[13] A starting point of two years' imprisonment was considered appropriate in lightof the circumstances discussed. The Judge then applied an uplift of 12 months'imprisonment to account for the other charges. A discount of four months to reflectthe time spent in custody and on bail was applied. A further three months' discountwas given to reflect the fact that Mr McIlroy has no prior relevant convictions. Thisbrought the sentence to 29 months' imprisonment. A guilty plea discount of20 per cent was applied. This brought the end sentence to 23 months' imprisonment.6 At [65].[14] At sentencing the Judge relied on the reasoning set out in his sentenceindication to support the sentence of 23 months imprisonment and focused instead onwhether home detention ought to be imposed, having regard to the pre-sentence report.The Judge considered it would not be appropriate due to a combination of factors.Firstly, Mr McIlroy, at the age of 42, was not a young or youthful offender; homedetention would not enhance any rehabilitative prospects; he did not appearremorseful; he had served a sentence of imprisonment before (in 2003); there werethree sets of discrete charges; and the sentence of home detention would not achievethe purposes and principles of sentencing. In that regard, the Judge considered theneed for deterrence and denunciation to be high. Accordingly, he considered a termof imprisonment to be the least restrictive sentence.[15] Standard and special conditions of release were imposed, as set out in thepre-sentence report, and an application for final name suppression was declined.7Principles on appeal[16] Home detention is an alternative to a short-term of imprisonment.8 The courtmust be satisfied that the purposes for which the sentence is being imposed cannot beachieve by any less restrictive sentence.9[17] On an appeal against the refusal to grant home detention, rather than a shortterm sentence of imprisonment, the appellant will have to demonstrate that the Judgeerred in exercising his sentencing discretion given the discretionary nature of thedecision. As was said in Manikpersadh v R:10[11] This Court identified the appropriate approach in James v R in thisway:[17] We record that an appeal against a refusal to grant homedetention does not provide an opportunity to revisit or review themerits. The question is whether [the judge] erred in exercising hissentencing discretion: that is, did he apply an incorrect principle, giveinsufficient or excessive weight to a factor, or was he plainly wrong?Ms Guy Kidd for the Crown properly accepts that home detention can7 Although an appeal was signalled, so name suppression was extended to allow time for an appeal,that time period has now expired and name suppression has lapsed.8 Sentencing Act 2002, s 15A(1)(b).9 Section 15A(1)(a).10 Manikpersadh v R [2011] NZCA 452.satisfy the objectives of deterrence and denunciation, but to a degree.We are satisfied, in accordance with earlier authority in this Court,that the decision about whether home detention will meet thoseobjectives in a particular case is a strictly evaluative exercise. It is amatter of judgment for the sentencing Judge to determine whetherhome detention is an adequate response to the seriousness of theoffending.[12] We agree with counsel for the respondent's assessment that the properapproach of an appellate Court in cases such as this is that "the choice betweenhome detention and a short sentence of imprisonment is the exercise of afettered discretion, with appellate review focusing on the identification oferror, if any, in the court below."[18] Error can include where the purpose of deterrence "has been given completepriority without regard to any of the countervailing purposes of sentence."11 Theproper approach, as was articulated in Fairbrother v R, is for the Judge to:12[30] make a considered and principled choice between the two forms ofsentence, recognising that both serve the principles of denunciation anddeterrence, and identifying which of them better qualifies as the leastrestrictive sentence to impose taking into account all the purposes ofsentencing.[31] As this Court said in R v D (CA253/2008), that can prove a verydifficult exercise of judgment and "the closer one gets to the dividing line, themore difficult it becomes to articulate reasons for preferring one approach tothe other".SubmissionsAppellant's submissions[19] Mr Matthews, counsel for Mr McIlroy, submits the District Court Judge erredin imposing a sentence of imprisonment and refusing to commute that sentence to oneof home detention.[20] Mr Matthews submits the Judge erred in, seemingly, relying on Arps asauthority for the proposition that home detention was not appropriate in this case.Mr Matthews distinguishes that case on the basis that Mr Arps held far right views andhad previous convictions for offences against the Muslim community. Therefore, theneed to deter and denounce the offending was greater in that case.11 Fairbrother v R [2013] NZCA 340 at [29].12 At [30] and [31]. See also R v D (CA253/2008) [2008] NZCA 254 at [66].[21] He also submits Mr McIlroy's age is not a factor that should tell against homedetention. He has demonstrated the ability to comply with restrictive bail conditionsand he does not have a lengthy criminal history.[22] While the Judge did not consider home detention would enhance Mr McIlroy'srehabilitative prospects, Mr Matthews submits that imprisonment has less ability topromote rehabilitation than home detention. While Mr McIlroy has started drug andalcohol treatment in prison, there is no reason that this cannot be continued in thecommunity. Further, he contends imprisonment could simply serve to ensconce theideas and attitudes that led to Mr McIlroy's offending, noting that Mr McIlroy'sattitudes towards the offending were borne out of utter ignorance, rather than beingpolitically motivated.[23] Mr Matthews submits the fact that Mr McIlroy has not expressed remorseought not to have counted against a sentence of home detention being imposed. Hehad expressed remorse through his counsel at sentencing. Mr Matthews distinguishesArps, where the offender continued to express hate towards the Muslim community.Mr Matthews notes that in this case Mr McIlroy has been on bail for nearly a yearpending sentence and no further acts have occurred that would suggest hate towardsthe Muslim community.[24] It is submitted the sentence of imprisonment in 2003 for unrelated offending(excess breath alcohol third or subsequent) ought not to have bearing on theappropriateness of home detention. Further, being sentenced for multiple charges isnot something that ought to have counted against home detention.[25] Mr Matthews submits there is no reason why home detention would not havecarried sufficient denunciative and deterrent impact. He submits the Judge erred innot having regard to s 16(1) of the Sentencing Act 2002, which states "the court musthave regard to the desirability of keeping offenders in the community as far as that ispracticable". Mr Matthews points to a number of reasons why it is desirable to keepMr McIlroy in the community including that he had been on bail for an extendedperiod of time with no reoffending, he had full-time employment, he had a suitableaddress for home detention and a daughter who suffers mental health issues. Homedetention is said to have represented a real restriction on his liberty and one that wouldcarry substantial denunciative and deterrent impact. Further, Mr McIlroy has nowspent over three and a half months in prison, which in itself will have carriedsignificant deterrent effect.[26] Mr Matthews submits the Judge erred in stating that home detention would notbe appropriate for offending which made use of technology, where the offender hadaccess at home. He notes that Mr McIlroy had been on bail with restricted access totechnology and no further offending arose. Secondly, there can be no rule thatoffending involving technology cannot be punished by way of home detention. Casesinvolving child pornography and harmful digital communications are two exampleswhere home detention has been imposed.[27] Finally, it is submitted that, unlike in Arps, there is not a high risk ofMr McIlroy offending in a similar manner and home detention is appropriate.Respondent's submissions[28] Miss Dayal, for the Crown, submits the District Court Judge made no error anda sentence of home detention was not appropriate given the seriousness of theoffending and the personal circumstances of Mr McIlroy.[29] In response to Mr Matthew's objections to the reliance on Arps Miss Dayalnotes that Mr McIlroy was one of the recipients of the video from Mr Arps andMr McIlroy sent edited/shortened versions of the full mosque attack video to Mr Arpson 17 March 2019. Because their offending is connected to a degree, the Judge wasjustified in taking Mr Arps' matter into account when determining a starting point. Inany event, the Judge acknowledged the offending was not identical and adopted alower starting point for Mr McIlroy. More importantly, the Judge did not use Mr Arps'matter as authority for the proposition that home detention would not be appropriate.[30] Accordingly, while Mr Arps' matter is relevant to setting the starting point, thequestion of whether to convert the sentence to one of home detention is a matter thatturns on the characteristics of the offender and the offending alone, and this is how thejudge approached it.[31] Miss Dayal submits Mr McIlroy's age was one of many factors considered bythe Judge. It is relevant as it goes to the premeditated nature of the offending, whichwas not an act of youthful impulsivity. It was deliberate, planned and sophisticated.Furthermore, she submits that age is also relevant to the prospects of rehabilitation. Inthe Crown's submission, Mr McIlroy has not been deterred from further offending byhis previous sentences including a sentence of imprisonment, and despite having beengiven the opportunity to address underlying causes of offending with previoussentences.[32] Miss Dayal refers to a number of observations made by the pre-sentence reportwriter, including Mr McIlroy's distinct lack of remorse or understanding of the impacton his victims, minimisation of his actions, belief that the offending was not thatserious, denial of holding any anti-Muslim or white supremacist views and the beliefthat immigrants coming into our country is excessive. Mr McIlroy also states hediscovered the video on social media, which is contrary to the evidence that he wassent the video by Mr Arps.[33] Miss Dayal submits Mr McIlroy's lack of remorse and understanding arerelevant and to, and will inhibit, his prospects of rehabilitation.[34] Miss Dayal submits the comments made in Arps characterising the video asvery disturbing and at the high end of extreme violence or cruelty are relevant asMr McIlroy, too, distributed the video and edited it to make a game. This demonstrateshis callous attitude.[35] Miss Dayal submits that deterrence and denunciation are also significant forthe firearm charge and, when combined with the drug charges, raises significantconcern.[36] In response to Mr Matthew's submission that the Judge failed to consider s 16of the Sentencing Act, Miss Dayal points out the Judge acknowledged home detentionis a real alternative to imprisonment and Mr McIlroy's time in custody was reflectedby the Judge applying a four month discount to the starting point. Further, it is notedthat where the matter is on the cusp of home detention, appellate courts will defer tothe sentencing Judge provided the purposes and principles are taken into account.Analysis[37] In approaching this appeal I focus on whether the Judge made a considered andprincipled choice between the two forms of sentence having regard to all the principlesand purposes of sentencing. I start by considering the submissions made on behalf ofMr McIlroy.[38] The first issue is the relevance of the Arps decision to the sentencing exercise.The Court of Appeal in Arps characterised the video footage as "very disturbing" andaffirmed with view of Judge O'Driscoll that it was at the "high end of the scale ofextreme violence or cruelty" of objectionable material.13 Mr McIlroy edited the samevideo footage and disseminated that footage and a screenshot. The Arps decision wasclearly relevant to the assessment of the seriousness of the offending.[39] That said, I agree that an assessment of whether home detention is appropriateinvolves a nuanced analysis of Mr McIlroy's individual position. While the offendingin Arps and in this case is linked, it does not provide assistance in determining whetherit is appropriate that Mr McIlroy's sentence be commuted to home detention.However, I do not think the Judge relied on it to decide this issue. His decision onimprisonment was based solely on discussion of Mr McIlroy's personal circumstancesand offending. While the Judge considered the same factors as in Arps, he focused ontheir relevance to Mr McIlroy's circumstances, which was appropriate.[40] I do not consider the District Court Judge erred in considering Mr McIlroy'sage. While not a critical factor, I accept Miss Dayal's submission that age is relevantas it goes to the premediated nature of the offending, which was not an impulsive actborne out of youthful immaturity. That is a factor which is relevant both to prospectsof rehabilitation and the need for deterrence.13 Arps v Police, above n 5, at [65].[41] A third factor considered by the Judge was whether home detention wouldenhance Mr McIlroy's rehabilitative prospects. In the pre-sentence report Mr McIlroyis recorded as acknowledging he is an alcoholic. Mr Matthews notes that Mr McIlroyhas recently begun treatment for drug and alcohol issues in prison. While Iacknowledge that this form of rehabilitation can take place in the community, it isencouraging that Mr McIlroy has engaged in treatment while in prison, and I considerhe may benefit from the more structured environment there, particularly when headvised the pre-sentence report writer that he would not alter his cannabis use. Thissupports my view that without the structure of prison he is less likely to makemeaningful changes to his drug and alcohol use which relates to at least one aspect ofhis current offending.[42] I do not consider the Judge erred in concluding that home detention would notenhance Mr McIlroy's rehabilitative prospects.[43] In respect of Mr Matthew's submission that the 2003 sentence of imprisonmentwas for unrelated offending and ought not to have bearing on whether to commute thesentence to home detention, the Judge acknowledged that this term of imprisonmentwas of some vintage. I consider it had some, albeit modest, relevance, in thatMr McIlroy had received the most serious sentence in the sentencing hierarchy on aprevious occasion, but had subsequently offended.[44] The sentencing purposes of accountability, denunciation, and deterrence arehighly relevant in this case. The pre-sentence report records Mr McIlroy has a distinctlack of remorse and minimises his actions. He is also said to have a lack of empathyand understanding for the impact that his offending has had on his victims. I considerthis indicates that he does not understand the seriousness of his offending nor theimpact on his victims and the wider community. While I accept he is not at particularlyhigh risk of committing similar offences involving objectionable publications if he isgranted home detention given his apparent compliance while on bail, that is not theonly relevant factor. As I have said, Mr McIlroy does not resile from his cannabisrelated offending.[45] Given the gravity of the offending, which does not just include theobjectionable publication offending, but also possession of an illegal firearm anddrug-related offending, the need to denounce and deter such conduct is high. In theabsence of countervailing factors which make home detention the more appropriateoption, I agree that a sentence of home detention would not sufficiently meet thepurpose and principles of sentencing in this case.[46] A short-term of imprisonment is the least restrictive sentence in this case andthere was no error in the Judge's decision.Conclusion[47] The appeal against the decision to decline leave to apply for home detention isdismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch