PATTISON v NEW ZEALAND POLICE [2019] NZCA 48

PATTISON v NEW ZEALAND POLICE [2019] NZCA 48 [13 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA558/2018[2019] NZCA 48BETWEEN MARTIN GEORGE PATTISONApplicantAND NEW ZEALAND POLICERespondentCourt: Clifford, Mallon and Wylie JJCounsel: J D Munro for ApplicantK L Kensington for RespondentJudgment:(On the papers)13 March 2019 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] Martin Pattison pleaded guilty to representative charges of distributing andpossessing an objectional publication, knowing it to be such, and was sentenced onconviction to four years and two months' imprisonment.1 On appeal, Mr Pattison'ssentence was reduced to three years and five months' imprisonment.21 R v Pattison [2018] NZDC 7373.2 Pattison v Police [2018] NZHC 2163.[2] Mr Pattison now applies for leave to bring a second appeal against sentence.[3] Leave to bring a second appeal may only be granted where the appeal involvesa matter of general or public importance, or a miscarriage of justice may have occurredor may occur unless that appeal is heard.3 The test is a high one.4[4] For Mr Pattison, Mr Munro submits that this proposed appeal does raise amatter of general or public importance as it would provide this Court with anopportunity to issue a guideline judgment for the offences of distribution andpossession of child pornography. In 2015 the maximum penalties for the offences ofpossession and distribution were increased from five to 10 years' and from 10 to14 years' imprisonment respectively.5 There have, Mr Munro further submits, beenonly three High Court judgments dealing with distribution under the new maximumpenalty,6 and only two deal with possession.7 That lack of appellate authority had led,in Mr Munro's submission, to significant disparity of sentencing in the District Court.[5] Furthermore, and although Edwards J had allowed Mr Pattison's appeal againstsentence imposed in the District Court, the substituted sentence of three years andfive months' imprisonment remained manifestly excessive.Analysis[6] It is not a ground of appeal against sentence in a particular case that theappellant is of the view that this Court should, in the exercise of its oversight role,issue a guideline judgment in a particular area. An appeal may be based on theproposition that a particular sentence is, by reference to previous sentencing decisions,beyond the available range and hence is manifestly excessive. Alternatively, in aparticular appeal a sentence may be challenged on the basis of its disparity with othersentences for like offending, and an according need for adjustment. An appeal on that3 Criminal Procedure Act 2011, s 253(3).4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.5 Films, Videos, and Publications Classification (Objectional Publications) Amendment Act 2015,ss 4 and 6.6 Tilyard v Police [2016] NZHC 1377; Robinson v Police [2017] NZHC 2655; and Webb v R [2016]NZHC 2966.7 Tilyard v Police, above n 6; R v Stevens [2016] NZHC 1574. However, Robinson v Police, aboven 6, and Webb v R, above n 6, also included charges for possession.latter basis may indicate to this Court that a guideline judgment might be considered.That is an administrative decision for this Court, and not itself the basis for an appeal.[7] As the Crown acknowledged, and as has been observed by the High Court,sentencing for these types of offending has recently become less settled.8 That hasresulted from changes to the England and Wales sentencing guidelines for sexualoffences, an earlier version of which had been said by this Court to provide a usefulguide to sentencing in this area,9 and from the 2015 increase in maximum sentencinglevels noted above which themselves make further distinctions between the positionin New Zealand and that applying in England and Wales. Be that as it may, and as theCrown submitted, in our view Mr Pattison's sentence cannot be seen as manifestlyexcessive. Comparing, as is appropriate when disparity is submitted, starting pointsentences, Mr Pattison's offending was clearly more serious than that in Tilyard,10where a starting point of two years and six months' imprisonment was identified, butat the same time was less serious than that in Robinson,11 where a starting point ofseven years' imprisonment was identified.[8] We are therefore neither satisfied that an issue of general or public importanceis raised by this appeal, nor that a miscarriage of justice may have occurred or mayoccur unless this appeal were to be heard. We therefore decline to grant Mr Pattisonleave to bring a second appeal against sentence.Solicitors:Crown Law Office, Wellington for Respondent8 R v Lawes [2018] NZHC 2448 at [30].9 Sentencing Council for England and Wales Sexual Offences: Definitive Guideline (1 April 2014);and R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [51]–[52].10 Tilyard v Police, above n 6.11 Robinson v Police, above n 6.