H (CA36/2020) v NEW ZEALAND POLICE [2020] NZCA 155

H (CA36/2020) v NEW ZEALAND POLICE [2020] NZCA 155 [12 May 2020]NOTE: HIGH COURT ORDER AT [2019] NZHC 2664 PROHIBITINGPUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFAPPLICANT REMAINS IN FORCE.NOTE: DISTRICT COURT ORDER AT [2019] NZDC 16211 PROHIBITINGPUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFAPPLICANT'S WIFE AND CHILDREN REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA36/2020[2020] NZCA 155BETWEEN H (CA36/2020)ApplicantAND NEW ZEALAND POLICERespondentCourt: Clifford, Mallon and Dobson JJCounsel: C Mitchell for ApplicantP D Marshall for RespondentJudgment:(On the papers)12 May 2020 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] The applicant pleaded guilty to one charge of knowingly distributingan objectionable publication, six charges of possessing objectionable publicationswith knowledge and one charge of indecency with an animal. On 16 August 2019, hewas sentenced in the North Shore District Court to a term of 26 months'imprisonment.1[2] A first appeal against that sentence was dismissed in the High Court inDecember 2019.2 The applicant has now sought leave to bring a second appeal againstthe sentence imposed. He was granted bail between the District Court sentencing andthe decision in the High Court appeal, and has since then commenced serving thesentence of imprisonment.[3] The application for leave to bring a second appeal has been dealt with on thepapers. Not all of the materials referred to in the District Court Judge's sentencingnotes were provided and we have called for and considered the pre-sentence reports inaddition to all the materials that were filed with the application for leave.[4] Under s 253 of the Criminal Procedure Act 2011, this Court must not grantleave for a second appeal unless satisfied that the appeal involves either a matter ofgeneral or public importance, or that a miscarriage of justice may have occurred ormay occur unless a second appeal is heard.The nature of the offending[5] No issue is taken with the summary of the offending, as set out in theHigh Court judgment of Gwyn J.3 In June 2018, the Police executed a search warrantat the applicant's home, where they seized an Apple iPad and a Samsung Galaxyphone. On analysis, the devices contained 1,127 unique images that were classifiedas objectionable because they depicted sexual conduct with and between youngpersons and children, children posing erotically, and bestiality. Seven of the images,which were chosen as a sample, were described by Gwyn J as follows:4(a) A female under the age of 10 lying naked on her back with a nakedadult male standing between her spread legs rubbing his penis on topof the female's vagina;1 Police v [H] [2019] NZDC 16211.2 H v Police [2019] NZHC 3349.3 At [4]–[5].4 At [6].(b) A female dog lying on her back with a naked adult male kneelingbetween her back legs, holding both back legs apart with his handswhile penetrating the dog's vagina with his penis;(c) A baby boy lying on his back with an adult female sucking his penis;(d) A girl under 10 with a man standing in front of her, holding her facewith one of his hands and his penis inside her mouth with semenaround her mouth;(e) A completely naked girl under 5 sitting on an adult male's lap withthe male reaching over the girl from behind touching her vagina withhis fingers;(f) A girl under 15 completely naked sitting on a couch with her legsspread open, exposing her vagina, masturbating with her right hand;and(g) The defendant lying on his back, holding his exposed penis in his righthand with his dog licking his penis.[6] The last of these images was the basis for the charge of indecency with ananimal.[7] The charge of knowingly distributing an objectionable publication related toan image that the applicant had uploaded and sent to another user through an instantmessaging application in December 2017. That image depicted a girl less than15 years old lying naked on her back with a naked male, also under the age of 15,leaning over the top of her. The female was holding the male's penis in her hand aboutone centimetre from her vagina.Sentencing analysis[8] Judge Dawson ranked the gravity of the offending and the applicant'sculpability for the offences as "of a medium level".5 On the most serious charge ofknowingly distributing objectionable material the Judge adopted a starting point oftwo years' imprisonment, uplifting that by nine months to reflect the other charges.The applicant had pleaded guilty to the charges some six months after his firstappearance, and after the matter had been set down for a judge-alone trial. From thetotal of two years and nine months' imprisonment, the Judge acknowledged asix month discount (approximately 20 per cent) for the guilty pleas and a further5 Police v [H], above n 1, at [11].one month discount for "relatively limited" remorse.6 The end sentence imposed wastwo years and two months' imprisonment. That sentence was imposed concurrentlyon each of the convictions for distributing and possessing objectionable publications.A six month concurrent sentence was also imposed on the charge of indecency withan animal.The High Court appeal[9] In the High Court, Mr Mitchell argued for the applicant that the sentencingJudge had erred in not allowing the full discount of 25 per cent for the guilty pleas, asrecognised by the Supreme Court in Hessell v R.7 Also, that a greater discount shouldhave been given for remorse. Mr Mitchell submitted that the extent of remorse oughtto have been assessed in light of reports from mental health practitioners who haveassessed the applicant, which opine that he shows symptoms of attentiondeficit/hyperactivity disorder (ADHD). Mr Mitchell submitted that the decision inR v Gallie is directly comparable and a discount of 17 per cent for an offenderrecognised as having ADHD in that case ought to have applied here.8[10] Gwyn J rejected both grounds of challenge to the sentences imposed inthe District Court. Her Honour did not accept that the guilty pleas were entered at theearliest possible opportunity, coming almost six months after the applicant's firstappearance. Mr Mitchell explained that in that period the applicant had soughtopinions from mental health practitioners about his mental health, but the Judgeaccepted the Crown submission that the time spent consulting those medicalspecialists need not have prevented the applicant from pleading guilty at the earliestopportunity. Instead, that occurred when he became aware of the strength of theprosecution case against him.[11] Gwyn J assessed the evidence of remorse reflected in his early informaladmission of the offending to the Police, the fact he had sought specialist medical helpand his guilty pleas. Having already rejected the claim that there had been early guiltypleas, her Honour rejected the applicant's conduct in consulting medical specialists as6 At [18].7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.8 R v Gallie HC Auckland CRI-2010-044-514, 20 September 2011.indicating remorse, and certainly not "exceptional remorse". Gwyn J distinguishedthe features of the offender in Gallie where a drug offender had clearly demonstrateda depth of remorse and taken significant steps to turn his life around, in circumstanceswhere the offending had occurred at least in part because of a personality impaired byADHD. The Judge treated the description of the defendant in Gallie as not rankingADHD as the key feature. Gwyn J accordingly agreed with the discount ofapproximately four per cent given for remorse.Grounds for the application for leave[12] Mr Mitchell contends that a miscarriage of justice has occurred, primarilybecause of the lack of recognition of the impact of ADHD on the applicant, and thematerially more generous allowance which he argues should be given for remorse. Hewould also seek to argue, as he did in the High Court, that the discount for guilty pleaswas five per cent less than it should have been.[13] Neither the District Court nor the High Court was prepared to recognise acausative link between the applicant's ADHD and the present offending. Subsequentto the High Court appeal, Mr Mitchell has obtained further letters from two of themental health practitioners who had assessed the applicant, confirming that they wereaware of the nature of the offending with which the applicant had been charged, andopining that a causative link appears to exist between the ADHD symptoms theapplicant demonstrates, and the offending with which he has been charged.[14] The Crown opposed leave to bring a second appeal. Inarguably, there was noissue of general or public importance. The respondent contended that neither of thearguments Mr Mitchell sought to run on a second appeal gave rise to any risk of amiscarriage.A risk of a miscarriage of justice?[15] On the somewhat equivocal terms of the medical reports available onsentencing, and before Gwyn J, we accept that it was reasonably open to both judgesto dismiss Mr Mitchell's contention that a causative link was made out between theoffending and the applicant's ADHD. That proposition has now been put in moredirect terms by the two mental health practitioners who have supplemented theircomments on their previous assessments of the applicant. These more recent letterswere before us informally, having been appended by Mr Mitchell to his submissionsin support of the application. There was no application to adduce fresh evidence andthere is an issue as to whether they would qualify as fresh and cogent. Withoutimpugning in any way the practitioners providing them, the content of the letters is apredictable response to specific questions posed, understandably cast in positive termsintended to support the applicant. We note from the pre-sentence report that theapplicant attributed his offending to his alcohol consumption.[16] Mr Mitchell submitted that the circumstances of the present offending andoffender are similar to those in Gallie, where a 17 per cent discount was given forfactors including a causative link between ADHD and the drug offending. However,we do not accept that the circumstances are sufficiently similar to treat 17 per cent asthe measure of discount the applicant should receive for those factors. In that case, a26 year old was being sentenced for serious drug offending. His upbringing had beenadversely impacted by ADHD, leading to abuse of alcohol and drugs. Morecompelling personal factors were his genuine remorse, his impressive achievementsin turning his life around and the support he enjoyed from family members.9[17] Nor do we see any compelling argument of an error that could contribute to apotential miscarriage of justice in the extent of discount granted for the guilty pleasentered when they were. We do accept that there may be scope to characterise adiscount of four per cent for remorse as inadequate. If qualifying remorse is found toexist, then it warrants a meaningful discount, and not a token one. However, theprospect of recognising an increase from four per cent in the discount given forremorse cannot raise the spectre of a miscarriage of justice, either when consideredseparately, or as a component of other arguments possibly available to the applicant.[18] It was clear guilty pleas were always intended to be entered. The only issuewas whether the prosecution was willing to withdraw the distribution charge, but itwas always clear there would be guilty pleas regardless of this because the prosecution9 R v Gallie, above n 8, at [21]–[27].case was strong. While some judges may have allowed more than a 20 per centdiscount, the discount allowed was nevertheless within range because guilty pleaswere not in fact entered at the first opportunity and the prosecution case was strong.Similarly, it was open to the lower courts to find there was no exceptional remorse.It was therefore within range to allow a one month discount in light of the applicantseeking help from mental health professionals and the shame he expressed to them forhis offending. We consider neither discount raises a compelling case that a miscarriageof justice occurred.[19] We accordingly decline leave to bring a second appeal.Solicitors:Crown Law Office, Wellington for Respondent