H (SC 43/2020) v NEW ZEALAND POLICE [2020] NZSC 82

H (SC 43/2020) v NEW ZEALAND POLICE [2020] NZSC 82 [13 August 2020]NOTE: HIGH COURT ORDER IN [2019] NZHC 2664 PROHIBITINGPUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYINGPARTICULARS OF APPLICANT PURSUANT TO S 200 CRIMINALPROCEDURE ACT 2011 REMAINS IN FORCE. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlNOTE: DISTRICT COURT ORDER IN [2019] NZDC 16211 PROHIBITINGPUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFAPPLICANT'S WIFE AND CHILDREN REMAINS IN FORCE.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 43/2020[2020] NZSC 82BETWEEN H (SC 43/2020)ApplicantAND NEW ZEALAND POLICERespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: C Mitchell for ApplicantP D Marshall and J M Irwin for RespondentJudgment: 13 August 2020JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] The applicant pleaded guilty to one charge of knowingly distributing anobjectionable publication,1 six charges of possessing objectionable publications with1 Films, Videos, and Publications Classification Act 1993, s 124(1) (the maximum penalty is14 years' imprisonment).knowledge,2 and one charge of indecency with an animal.3 For this offending he wassentenced by Judge Dawson to a term of 26 months' imprisonment.4 The applicantappealed unsuccessfully to the High Court against sentence.5 He later sought the leaveof the Court of Appeal to appeal against the High Court judgment. The Court ofAppeal dismissed the application for leave to appeal, albeit the Court also addressedthe merits of the appeal.6 The applicant now seeks leave to appeal to this Court.Background[2] By way of background, the first point to note is that the distribution chargerelated to an image of what the District Court Judge described as "child exploitationmaterial" which was sent to another user through an instant messaging application.7Second, the other charges related to items found when, some time later, policeexecuted a search warrant at the applicant's home. They found an iPad and a cellphone with over 1,100 images depicting sexual conduct involving young people andchildren (some very young) and bestiality.[3] Finally, it is helpful to summarise briefly the approach to sentencing in theDistrict Court. Relevantly, from a starting point of 33 months' imprisonment, theDistrict Court Judge gave a discount for the applicant's guilty pleas of six months (20per cent, as rounded up). There was a further one-month (approximately four per cent)discount for the applicant's "relatively limited" remorse.8 The Judge accepted theapplicant may suffer from attention deficit hyperactivity disorder (ADHD) andimpulsive behaviour but did not consider that mitigated his actions.The proposed appeal[4] The applicant submits that leave to appeal should be granted because otherwisethere is a risk of a miscarriage of justice. He wishes to argue that in the circumstances,2 Section 131A(1) (the maximum penalty is 10 years' imprisonment or a $50,000 fine). Three ofthese charges were representative.3 Crimes Act 1961, s 144 (the maximum penalty is three years' imprisonment).4 New Zealand Police v [H] [2019] NZDC 16211 [Sentencing remarks].5 H v New Zealand Police [2019] NZHC 3349 (Gwyn J) [HC judgment].6 H (CA36/2020) v New Zealand Police [2020] NZCA 155 (Clifford, Mallon and Dobson JJ)[CA judgment].7 Sentencing remarks, above n 4, at [2].8 At [18].where it was apparent from the outset he would plead guilty, a discount of 25 per centwas appropriate. The applicant also seeks to argue that the discount given for remorseshould have been 17 per cent reflecting, among other things, both his willingness toplead and the impact of his ADHD.9Our assessment[5] The issues the applicant wishes to raise concern the particular circumstancesof his case. No issue of general or public importance arises.10 Nor does any matterraised by the applicant indicate a risk of a miscarriage of justice.11 The matters theapplicant wishes to pursue would repeat arguments addressed in the High Court, aswell as in the Court of Appeal.[6] In the High Court, the Judge rejected the submission that the discount for theguilty plea should have been 25 per cent because the guilty pleas were not entered atthe earliest available opportunity. (They were entered nearly six months after the firstappearance.) Nor did the Judge accept the submission that the discount for remorseshould have been about 17 per cent. In considering the weight to be placed on theapplicant's ADHD, the Judge said that, "[g]enerally", for this to be a mitigating factorthere has to be some relationship between the ADHD and the offending.12 There wasno evidence establishing that relationship or why that should increase the discount forremorse. The other issue on remorse related to the applicant's general level ofremorse. The Judge did not consider the factors identified warranted a greaterdiscount.[7] In declining leave to appeal, the Court of Appeal concluded, first, that thediscount for guilty pleas was within range because the pleas were not entered at thefirst opportunity and the Crown case was strong. Second, the Court considered the9 The applicant submits a "robust evaluation of all the circumstances" that may show remorse wasrequired, relying on Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]. He also says hiscase is on all fours with that of R v Gallie HC Auckland CRI-2010-044-514, 20 September 2011where a discount of 17 per cent was given along with a discount of 25 per cent for the guilty plea.In addressing this submission in the High Court, the Judge noted that in that case "ADHD was notthe key feature": HC judgment, above n 5, at [22].10 Senior Courts Act 2016, s 74(2)(a).11 Section 74(2)(b).12 HC judgment, above n 5, at [21].discount for remorse was within the available range. The Court accepted that if adiscount for remorse was available it should be "meaningful" and "not a token one".13But, having considered further letters from medical practitioners, the Court did not seeany prospect of a miscarriage because the discount given in this case was not greater.[8] We see no error in the assessment of these points by the High Court. We addthat the evidence on which the applicant would rely on the question of the impact ofhis ADHD does not appear to advance the position.14 The criteria for leave to appealare not met.[9] In addition, we note that because this is an application for leave to appeal directfrom the High Court, this Court must also be satisfied there are exceptionalcircumstances justifying that course.15 That criterion is also not met.Result[10] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent13 CA judgment, above n 6, at [17].14 Because of our view that the proposed appeal does not meet the threshold for a grant of leave, wedo not need to deal with the question of whether leave to adduce fresh evidence is necessary.15 Section 75(b).