H v NEW ZEALAND POLICE [2019] NZHC 3349

H v NEW ZEALAND POLICE [2019] NZHC 3349 [17 December 2019]1. ORDER PROHIBITING PUBLICATION OF APPELLANT'S NAME ORANY PARTICULARS WHICH MAY LEAD TO HIS IDENTIFICATION.2. PURSUANT TO THE ORDER MADE IN THE DISTRICT COURT ON16 AUGUST 2019, PUBLICATION OF THE NAMES OR ANYIDENTIFYING DETAILS OF THE APPELLANT'S SPOUSE AND CHILDRENIS ALSO PROHIBITEDIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2019-404-000383[2019] NZHC 3349BETWEEN HAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: C Mitchell for the AppellantD Becker for the RespondentJudgment: 17 December 2019Reissued: 15 July 2020JUDGMENT OF GWYN JThis judgment was delivered on 17 December 2019 at 2.00pm andre-delivered by me on 15 July 2020 at 4.00pm as per minute of Gwyn J of 15 July 2020.Registrar/Deputy RegistrarSolicitors/Counsel:C Mitchell, Barrister, AucklandMeredith Connell AucklandBackground[1] Mr H pleaded guilty to one charge of knowingly distributing an objectionablepublication,1 six charges of possessing objectionable publications with knowledge,2and one charge of indecency with an animal.3[2] On 16 August 2019, Mr H was sentenced to 26 months' imprisonment by JudgeDawson in the North Shore District Court. He appeals against that sentence on thebasis that:(a) A full discount of 25 per cent should have been given for his early guiltyplea; and(b) A further reduction for remorse should have been given of around 17per cent.[3] Mr Mitchell submits that these have led to a sentence that was manifestlyexcessive in the circumstances.The offending[4] At about 9.25am on 29 December 2017, Mr H uploaded and sent an image ofchild exploitation material to another user through an instant messaging applicationnamed 'Kik'. This image depicted a girl less than 15 years old lying naked on herback with a naked male, also under the age of 15, leaning over the top of her in themissionary position. The female was holding the males' penis in her right hand aboutone centimetre from her vagina.[5] On 26 June 2018, the Police executed a search warrant at the defendant's home.An Apple iPad and Samsung Galaxy phone were seized by Police and delivered to theDigital Forensics Unit for examination. There were a total of 1,127 unique images1 Films, Videos, and Publications Classification Act 1993, s 124(1); 14 years imprisonmentmaximum penalty.2 Crimes Act 1961. S 131A(1); maximum penalty of 10 years imprisonment. Three charges arerepresentative charges, the other three are not.3 Section 144; maximum penalty of 3 years imprisonment.identified on these devices as objectionable as they depicted sexual conduct with andbetween young persons and children, children posing erotically, and bestiality.[6] Seven of these images were chosen as a sample:(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;(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 semen aroundher mouth;(e) A completely naked girl under 5 sitting on an adult male's lap with themale reaching over the girl from behind touching her vagina with hisfingers;(f) A girl under 15 completely naked sitting on a couch with her legs spreadopen, 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.The sentence under appeal[7] The District Court Judge called Mr H's behaviour "utterly abhorrent". Heemphasised the need to denounce Mr H's behaviour, protect the community from thedistribution of these "appalling publications", and consider rehabilitation. He notedthat while the risk of Mr H re-offending was low, the risk of harm was said to be high.[8] Aggravating features to Mr H's offending included that the very large numberof objectionable publications included images of penetrative sex, oral sex, and digitalpenetration of young girls under 15 years of age, including babies and children underfive years old. This material was sent to an audience of potentially up to hundreds ofviewers, which could then be shared to reach thousands of others. There was a highdegree of pre-meditation and use of vulnerable victims. Mr H also has 18 previousconvictions, including one for obscene exposure.[9] In mitigation, the Judge recognised that Mr H entered a guilty plea and awardeda 20 per cent discount for that plea. He did not take into account the fact Mr H hadbeen under the influence of alcohol when he sent the objectionable image of himselfand his dog to another person over the internet, noting that "the voluntary consumptionof alcohol is not an aspect of mitigation. You are responsible for what you do whetheryou were drunk or whether you were sober".4 He awarded a further one monthdiscount for his "relatively [limited]" remorse.Personal circumstances[10] Mr H is married with several teenage children and lives with his family. He isthe manager of a business.[11] Assessments indicate Mr H may suffer from mild ADHD and impulsivebehaviour. He had been taking anti-depressants to assist with depression.Approach on appeal[12] An appeal court must allow an appeal against sentence if it is satisfied that, forany reason, there is an error in the sentence imposed on conviction and that a differentsentence should have been imposed.5 Whether a sentence is manifestly excessive isto be examined in terms of the end sentence given, rather than the process by whichthe sentence was reached.64 NZ Police v H [2019] NZDC 16211, at [14].5 Criminal Procedure Act 2011, s 250.6 Ripia v R [2011] NZCA 101 at [15].AnalysisGuilty Plea Discount[13] The Judge allowed a 20 per cent discount for Mr H's entry of a guilty plea.7When the sentence was imposed, this amounted to a six month reduction.8[14] The appellant submits that the Judge should have imposed the full possiblediscount of 25 per cent because:(a) His guilty plea was made at a relatively early stage of the proceeding;(b) He admitted the offences to the Police immediately;(c) Any lateness in the guilty plea was because medical specialists wereconsulted.[15] The maximum possible discount available for a guilty plea is 25 per cent. Thisis only to be awarded where an offender has entered their guilty plea at the earliestreasonable opportunity. In Hessell, the Supreme Court defined this as the point atwhich an accused "has had the opportunity to be informed of all implications of theplea".9[16] I do not consider that Mr H entered his plea at the earliest available opportunity.As noted by the Crown, the appellant's first appearance was on 2 November 2018.His guilty pleas were not entered until 15 April 2019, after the case review hearingand almost six months after the first appearance. By this point, Mr H knew about thecharges he was facing, and knew about the strength of the prosecution case he wasfacing. This included evidence that Mr H was the subscriber of the IP address linkedto the Kik account; that the Kik account was accessed using Mr H's address and hiscell phone number; the appellant's devices contained over 1200 objectionablepublications; he had admitted to having objectionable images on both devices; and that7 At [13].8 The six month reduction actually results in the reduction being 18 per cent, not 20 per cent. Thisis presumably in order to reach a round number.9 Hessell v R [2010] NZSC 135 at [75].he owned two dogs. As the Supreme Court noted in Hessell, the extent of the truemitigatory effect of the plea needs to reflect "all the circumstances in which the pleais entered, including the strength of the prosecution case". In this case, the timing ofMr H's guilty plea is no coincidence. He did not make his plea at the earliest possibleopportunity. Instead, he entered his plea only once he knew of the strength of theprosecution case against him. As the Crown submits, the time spent consultingmedical specialists should not have prevented the appellant from pleading guilty at theearliest opportunity. Mr Mitchell for the appellant concedes that the medical reportswould not have informed guilty pleas. Rather, as he put it, it seemed important for theappellant to "look behind the scenes" to see from a medical perspective what wasmaking H tick and what might have driven this behaviour.[17] I do not consider the Judge was in error in awarding a six month discount forMr H's guilty plea. On the spectrum of possible reductions for early guilty pleas, thisreflected the fact it was six months into the proceeding, but also that Mr H did notenter his plea at the earliest opportunity.Failure to allow a discount in the region of 17 per cent for remorse[18] The one month discount allowed by the Judge for remorse amounted to a fourper cent discount. The appellant submits that a further discount for remorse shouldhave been given.[19] The Court will look for "hard evidence of genuine regret and remorse".10Where there is "tangible evidence" of genuine remorse a discount of around five toeight per cent may be appropriate.11[20] The first issue here concerns the weight that should be placed on Mr H'sADHD. Mr Mitchell takes issue with the fact the Judge all but ignored Mr H's ADHDcondition. In doing so, the Judge ignored the fact that ADHD can be a mitigatingfactor where there is some contribution to the offending.1210 R v Senior (2000) 18 CRNZ 340 (HC), at [21].11 See eg McArthur v R [2013] NZCA 600 at [13]-[14], Rowles v R [2016] NZCA 208 at [18] and Poiv R [2015] NZCA 300 at [7].12 Arlidge v Police [2014] NZHC 2202.[21] Generally, for ADHD to be a mitigating factor, there needs to be somerelationship between the ADHD and the offending. That relationship has beenrecognised by the courts in relation to drug dealing and substance abuse relatedoffences,13 but not specifically in relation to the possession and distribution ofobjectionable material and bestiality. Even if it might in theory be a mitigating factor,there is no evidence before the Court that establishes any such relationship, or whythis should increase any reduction Mr H receives for remorse. Mr H is described ashaving "a combination of mild ADHD predisposing to impulsive behaviours"14 and"It is my impression that Mr H has ADHD"15 but no direct link is drawn to show thatthe condition was causative of or related to his offending. Mr Mitchell's submissionwas that the appellant's actions, which he characterised as "bizarre" behaviour in aman in Mr H's situation, could only have been driven by a medical cause such as this.[22] The appellant relies on R v Gallie as an example of where a greater discountwas given for remorse where the offender had ADHD.16 But in that case, ADHD wasnot the key feature. Rather it was that the offender clearly felt a "depth of remorse"and had taken "significant steps to turn [his] life around".17 The same cannot be said,at least not to the same degree, for Mr H.[23] The second issue concerns the general level of remorse that Mr H had for hisoffending. Mr Mitchell submits that Mr H showed remorse for his actions, and thisshould result in a greater reduction. This remorse was evident in the fact he admittedthe offence to the police, sought specialist medical help, and entered an early guiltyplea. I do not think these factors should justify a greater discount for remorse. I havealready discussed the timing of the guilty plea. Consulting medical specialists does notof itself indicate remorse. Nor does the substance of the medical reports assist Mr H.They certainly do not demonstrate "exceptional remorse" as submitted by theappellant.13 At [13].14 Report of Dr Greg Finucane, 21 August 2018, at p 3.15 Report of Dr Caleb Armstrong, 6 June 2019, at p 2.16 R v Gallie HC Auckland CRI-2010-044-514, 20 September 2011.17 At [21] and [22].[24] There are three medical records before the Court concerning Mr H. As awhole, they describe Mr H as impulsive, as able to understand that what he did waswrong, but do not refer to him being remorseful for the offending. For example:(a) "After a crisis, he will be remorseful, manage to control his behavioursfor some months, then around six months later he will again indulge insuch behaviours". It is not apparent that Dr Finucane was even awareof the current offending;18(b) He admits the photos he downloaded were "really disturbing", that "heknew it wasn't right and got rid of it and kept it secretive". He also"says it was a once only impulsive action". 19(c) He "has engaged in negative and poorly thought through behaviours,which now land him in Court. Mr [H] would like to change the way hedoes things, and wonders whether treatment for ADHD might behelpful".20[25] As the Supreme Court said in Hessell21 " a proper and robust evaluation ofall the circumstances may demonstrate a defendant's remorse." In this case, on arobust evaluation it is difficult to discern any acceptance by Mr H of the gravity of hiswrongdoing or any insight into the impact on the victims and how his behaviourcontributed to that impact. In fact, while it is admirable that Mr H has sought medicaladvice and treatment, his focus on ADHD as an exculpatory factor appears to havedetracted from any reflection which might truly be categorised as remorseful.[26] I find that the Judge was correct to find that some discount for remorse wasjustified, but I conclude that the one month discount was adequate in thecircumstances.18 Finucane Report, above n 13.19 Report of Lynn Berresford, November 2018.20 Armstrong Report, above n 14.21 Hessell v R, above n 9, at [64].Result[27] The sentence is not manifestly excessive. The appeal is dismissed.______________________Gwyn J