PATTISON v POLICE [2018] NZHC 2163

PATTISON v POLICE [2018] NZHC 2163 [22 August 2018]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2018-463-000041[2018] NZHC 2163IN THE MATTER OF an appeal against sentenceBETWEEN MARTIN GEORGE PATTISONAppellantAND NEW ZEALAND POLICERespondentHearing: 14 August 2018Counsel: J D Munro for the AppellantM S Jenkins for the RespondentJudgment: 22 August 2018JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 22 August 2018 at 4.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: J D Munro, AucklandSolicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua[1] Mr Pattison pleaded guilty to one representative charge of distributing,1 andone representative charge of possessing,2 an objectionable publication, knowing orhaving reasonable cause to believe the publication was objectionable.[2] The distribution charge related to two video files and one image involvingchildren engaged in sexual activity, and one image of a child in an erotic pose. Thepossession charge related to 874 images of children undertaking sexual and non-sexualacts, including bestiality and sadism, computer-generated children undertaking sexualacts, and adult bestiality.[3] Mr Pattison was sentenced to four years and two months' imprisonment byJudge G C Hollister-Jones in the District Court at Rotorua.3 He appeals againstsentence on the grounds that the Judge erred in his categorisation of the publicationsand adopted a starting point that was inconsistent with applicable High Courtauthorities. Those errors are said to have led to a sentence that was manifestlyexcessive in the circumstances.The offending[4] Mr Pattison was part of an online chat group named "daughterlover". Heposted two images and two video files to this chat group:(a) The first video file was 41 seconds long. It depicted a partially nakedfemale child, estimated to be 12 to 13 years old, wearing onlyunderpants and performing oral sex on an adult penis.(b) The second video file was 29 seconds long. It depicted a naked femalechild estimated to be eight to 10 years old. There was an adult penisnear the child's face with an adult hand masturbating the penis. Thepenis then ejaculated over the child's face and the child then performedoral sex on the penis.1 Films, Videos, and Publications Classification Act 1993, ss 123(1)(d) and 124(1).2 Films, Videos, and Publications Classification Act 1993, ss 131(1) and 131A(1).3 R v Pattison [2018] NZDC 7373.(c) One of the image files depicted a female child estimated to be 10 to 14years old. The image is of the child's face. Also in the image are twoadult penises. One of the penises has ejaculated over the child's face.(d) The other image file depicted a female child estimated to be betweeneight and 12 years old. The image is of the child in an erotic pose whilewearing a bra and underpants.[5] On 2 March 2017, the police executed a search warrant at Mr Pattison's homeaddress and located a computer hard-drive. That computer hard-drive was found tocontain 874 objectionable publications. Of these:(a) 325 images depicted children engaged in bestiality, sadism, penetrativeand non-penetrative sexual activity, and erotic posing. The particularcategorisation of these 325 images (from most to least serious) is asfollows:(i) Four images involving bestiality or sadism involving children;(ii) 124 images of penetrative sexual activity between children andadults;(iii) 126 images of non-penetrative sexual activity between childrenand adults;(iv) 17 images of sexual activity between children or solomasturbation; and(v) 54 images of erotic posing, with no sexual activity;(b) 258 images depicted computer-generated penetration and non-penetration of children; and(c) 291 images depicted adult bestiality.[6] On completion of the search of Mr Pattison's home, the police contactedMr Pattison and indicated that they wished to speak to him. Numerous attempts weremade to interview Mr Pattison but he indicated that he was unavailable. Mr Pattisonwas stopped at Auckland International Airport on 17 May 2017 attempting to leavethe country. As between the date of the police search and Mr Pattison's arrest, itappears that Mr Pattison had applied for, and been issued with, a new passport.Mr Pattison subsequently declined to speak to police.Personal circumstances[7] Mr Pattison is 43 years of age. The pre-sentence report records that he deniesthe offending despite having pleaded guilty to the current charges. He told the report-writer that he did not do any of it and he had to plead guilty or risk getting a longersentence.[8] Prior to arrest, Mr Pattison was living alone but also spent time with his partnerof two years. He had previously been employed as an LPG delivery truck driver forapproximately one year. The report identifies Mr Pattison as being at moderate riskof abusing alcohol although whether that was a factor in his offending could not beascertained. Although Mr Pattison disclosed to the report-writer that he was diagnosedwith bipolar disorder in 1999, that was not verified and Mr Pattison was not medicatedat the time of interview.[9] Mr Pattison was assessed as being at moderate risk of reoffending, but aspresenting a high risk of harm to others given the nature of his offending.The District Court sentence[10] The District Court Judge was satisfied that the three aggravating factors listedin s 132A of the Films, Videos, and Publications Classification Act 1993 were presentin this case.4 That is, he found the publications tended to promote or support theexploitation of children for sexual purposes; depict sexual conduct with children; andexploit the nudity of children. The Judge also identified that the age of the children in4 R v Pattison [2018] NZDC 7373 at [6].many of the images was less than 10 years old. He did not identify any mitigatingfeatures of the offending.5[11] The gravity of the offending was assessed in accordance with the threecategories of publication set out in the guidelines on child pornography offendingissued by the Sentencing Council for England and Wales in 2014 (UK guidelines)being (in descending order of seriousness):6(a) Category A: images involving penetrative sexual activity, and imagesinvolving sexual activity with an animal or sadism.(b) Category B: images involving non-penetrative sexual activity.(c) Category C: other indecent images not falling within categories A or B.[12] The Judge assessed the offending as grave due to the number of category Aimages either distributed or possessed.7 For the distribution charges, he assessed theimages as involving three category A images and one category C image, noting thattwo of the images involved children under 10 years of age. He adopted a starting pointof three-and-a-half years' imprisonment for those charges.8[13] The images the subject of the possession charge were categorised by the Judgeas follows:(a) 418 category A images;(b) 143 category B images; and(c) 258 category C images.5 At [7].6 Sentencing Council for England and Wales "Sexual Offences Definitive Guideline" (April 2014)at 76.7 At [10].8 At [10].[14] On the basis of this categorisation, the starting point adopted for thedistribution charge was uplifted by two years for the possession charge.9[15] The Judge then considered that the adjusted starting point of five-and-a-halfyears, viewed against the maximum penalties of 14 years and 10 years' imprisonmentrespectively, was proportionate and in line with Parliament's intention for deterrentsentences to be imposed when the offending is grave and involves children.10[16] From that starting point, the Judge allowed a three-month discount for priorgood character, and a discount of 20 per cent for the guilty pleas. The 20 per centdiscount reflected the fact that the late disclosure of expert evidence on a key aspectof proof warranted such a deduction.11[17] The end sentence was four years and two months' imprisonment.12Approach on appeal[18] Section 250(2) of the Criminal Procedure Act 2011 provides that the court mustallow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[19] In any other case, the court must dismiss the appeal.13 An appeal court will notintervene unless there is a material error, and if so, the court will then go on to formits own view of an appropriate sentence.149 At [11].10 At [12].11 At [13].12 At [14].13 Criminal Procedure Act 2011, s 250(3).14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; citing R v Shipton [2007] 2NZLR 218 (CA) at [140].Did the Judge err in categorising the objectionable publications?[20] The Court of Appeal has endorsed previous versions of the UK guidelines asproviding assistance for New Zealand Judges when sentencing for child pornographyoffending.15 The 2007 version of the guidelines outlined five categories of childpornography from least serious to most serious.16 These guidelines were updated in2014 and the five categories were replaced by the three categories set out at [11] ofthis judgment.[21] The UK guidelines also draw a distinction between possession, distribution andproduction of child pornography. The former being relatively less serious, and thelatter being the most serious of the three forms of offending. The UK guidelines alsoindicate that the intrinsic character of the most serious of the offending images willinitially determine the appropriate category. However, if the most serious images areunrepresentative of the defendant's conduct, a lower category may be appropriate.17[22] The Court of Appeal has not yet considered whether the 2014 version of theguidelines should be used in New Zealand, although the new categorisations havebeen referred to in both District Court and High Court decisions. The parties and theDistrict Court Judge in this case proceeded on the basis of these categorisations and Iapproach the appeal on that basis also.[23] Mr Munro submits that the Judge wrongly categorised the objectionablepublications as comprising three category A publications and one category Cpublication. He submits the image of a 10 to 14-year-old female, pictured with twopenises one of which has ejaculated on her face, is category B and not category A,because it does not involve penetrative sexual activity. Accordingly, Mr Munrosubmits that the correct categorisation of the publications is two category A, onecategory B, and one category C.15 R v Zhu [2007] NZCA 470 at [15]; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [52].16 Sentencing Guidelines Criminal Sexual Offences Act 2003 – Definitive Guideline (April 2007) at109.17 Sentencing Council for England and Wales "Sexual Offences Definitive Guideline" (April 2014)at 76.[24] On a strict application of the UK guidelines, Mr Munro's submission is correct.But the categories provided in those guidelines are not to be prescriptively or rigidlyapplied. As Katz J observed in Stewart v Department of Internal Affairs, the UKguidelines need to be applied flexibly, and only to the extent that they are consideredhelpful in any given case.18[25] I consider the age of the child (between 10 and 14), and the fact that there aretwo adult penises in the picture, one ejaculating over the child's face, place this imageat the very top of the category B range, and on the cusp of category A. When thenature of this image is considered in the context of the other publications distributedby Mr Pattison, its re-categorisation does not make any substantial difference to theoverall assessment of the gravity of the offending. Considered as a whole, the intrinsiccharacter of the four publications is consistent with predominantly category A typeoffending.[26] Next, Mr Munro submits that the Judge erred in his categorisation of theimages the subject of the possession charge. The Judge assessed 418 of the 874 imagesas falling within category A. However, this included the 291 images that depictedadult bestiality. Those bestiality images are by any measure objectionable, but becausethey do not involve children, the UK guidelines do not apply.19 Therefore, forcategorisation purposes, these 291 images, relatively speaking, are not as serious asthe three categories of publication which relate to child pornography.[27] The Crown accepts that the Judge's inclusion of the 291 images in category Awas in error. Accordingly, the parties agree that the possessed material should becategorised as follows:(a) 128 images in category A;(b) 143 images in category B; and18 Stewart v Department of Internal Affairs [2014] NZHC 2209 at [17].19 R v Henderson [2008] NZCA 305 at [10]. See also Harding v Department of Internal Affairs HCHamilton CRI-2008-419-53, 29 October 2008, in which Cooper J said that material whichincluded bestiality, urination and sadism involving adults was in a less serious category than ifchildren had been involved: at [37].(c) 603 images at or below category C.[28] I accept that this error in categorisation may have led the Judge to consider theoffending to be more serious than other cases involving comparable offending. Theissue is whether that wrong categorisation led the Judge to fix a starting point for boththe distribution and possession charges outside the applicable range for offending ofthis type. That issue is considered next.Was the starting point too high?[29] Mr Munro submits that the three-and-a-half-year starting point adopted for thedistribution charge, and the two-year uplift applied for the possession charge, wasexcessive when compared to cases of comparable offending.[30] The UK guidelines contain suggested starting points for each of the threecategories identified. At the time the initial guidelines were published, the maximumpenalties for such offending in both New Zealand and the United Kingdom were thesame. Nevertheless, the courts were cautious about applying those starting pointsgiven the different New Zealand context.20[31] However, the maximum penalties for these offences are no longer the same,casting further doubt on the relevance of the sentencing levels in the UK guidelines.In April 2015, the maximum penalties for both the distribution and possession offencesin New Zealand were substantially increased. The maximum penalties for distributionrose from 10 years to 14 years' imprisonment. For possession, the maximum penaltywas doubled from five years to 10 years' imprisonment.[32] At the third reading of the Films, Videos, and Publications Classification(Objectionable Publications) Amendment Bill, the then Minister of Justice made itclear that the aim of the increased penalties was to disrupt the cycle of possession,production and distribution of child exploitation material. The amendment wasintended to send a strong message that possessing and trading in images depicting thesexual exploitation of children is grave offending warranting stronger penalties than20 Stewart v Department of Internal Affairs [2014] NZHC 2209 at [23]–[26].other types of objectionable publications.21 That policy was also reflected in theexplanatory note for the Bill.22[33] The Court of Appeal has yet to consider the appropriate starting points withreference to the increased maximum penalties for these offences. Further, there hasbeen relatively few High Court decisions in this area since the maximum penaltieswere increased. The parties relied on the decisions in Tilyard v Police,23 Robinson vPolice24 and R v Stevens25 in determining the appropriate starting point. Each of thosedecisions is considered below. Another decision of this Court, Webb v R, was alsoreferred to me, but neither party placed any reliance on it.26[34] The appellant in Tilyard v Police was charged with distributing 128 imagesdepicting child exploitation and possessing about 700 objectionable images that couldbe classed as objectionable.27 The images included boys aged between 10 and 15 yearsold, naked or partially naked, showing their genitals and/or anus. The three mostserious images involved a half-naked boy with a thermometer inserted backwards intohis anus; a boy looking back between his legs with his anus and genitals visible andthe hand of an adult male on one of his buttocks; and two boys aged between 10 and12, clad only in underwear, lying down and kissing with their arms around each other.[35] The remaining images were of naked or partially naked boys posing with theirgenitals exposed but with no penetration and no adult present. On appeal,Nicholas Davidson J concluded that the image with the thermometer fell withincategory A, and the others within category B. He accepted that these images were notnumerically or in-kind representative of the bulk of the other images which fell withincategory C.28 The effect of that finding was that culpability was assessed by referenceto most of the images being within category C.21 (2 April 2015) 704 NZPD 2891.22 Objectionable Publications and Indecency Legislation Bill 2013 (124-1) (explanatory note).23 Tilyard v Police [2016] NZHC 1377.24 Robinson v Police [2017] NZHC 2655.25 R v Stevens [2016] NZHC 1574.26 Webb v R [2016] NZHC 2966.27 Tilyard v Police [2016] NZHC 1377.28 At [21]–[23].[36] The Judge considered the changes to the UK guidelines in 2014, the 2015increase to the maximum penalties, and relativity to starting points adopted in casesprior to the maximum penalty increase. The Judge adopted a starting point of two-and-a-half years for the distribution charges. That starting point was reached by takinga two-year starting point for an image at the lower end of category A, and furtheruplifting that by six months for the two category B images and the most representedcategory C images. That starting point recognised that the bulk of the offending was,in the Judge's words, "of a different hue" to the three most serious images andaccordingly a lower starting point than the three years adopted by the District CourtJudge in that case was appropriate.[37] His Honour did not apply a separate uplift for the possession charges. Heagreed with the District Court Judge that a one-year concurrent sentence for thepossession charges was appropriate. That meant that the two years and six monthsadopted was effectively a global starting point for both the distribution and possessioncharges.[38] The case of Robinson v Police is at the other end of the scale to Tilyard.29Mr Robinson was charged with the distribution of 15 digital video files of childpornography comprising a total of one hour and 40 minutes of footage, and possessionof 20 digital video files involving child pornography comprising four hours and35 minutes of footage. The nature of those videos was summarised by Fitzgerald J asfollows:[9] The 35 videos are on any view extremely objectionable. All involveyoung girls between the (estimated) ages of three and fourteen years (manybeing well under ten years old). The majority depict adult males subjectingthe young children to penetrative sexual activity, including anal intercourse.One video Mr Robinson shared recorded a young girl, naked but wearing adog collar, performing oral sex on a dog. Another he possessed showed ayoung female child being subjected to acts of sadism.[10] A number of the images which do not depict vaginal, anal or oralpenetration of young girls by adult men nevertheless depict the childreninserting (or having inserted) objects into their vagina or anus.29 Robinson v Police [2017] NZHC 2655.[39] After considering the UK guidelines, the increase in the maximum penalties,and relevant case law (including Tilyard), Fitzgerald J upheld the global starting pointof seven years' imprisonment for both the distribution and the possession charges.However, her Honour noted that such a starting point was at the upper end of thepermissible range.30[40] In R v Stevens, Toogood J sentenced Mr Stevens on a raft of charges includingeight charges of knowingly possessing objectionable publications.31 These chargesrelated to 1,474 still images and eight videos predominantly involving young pre-pubescent boys, some as young as four years old. The more serious content involvedpenetration of the boys, including by adult male penises. Two of the images involvedsadism or bestiality against children.[41] Mr Stevens was charged on the basis of seven images and one video recordingas being representative of the total material in his collection. After Mr Stevens wascharged, he voluntarily provided police with a further 3,267 images. Although chargeswere not laid in relation to this material, the content of the images, and the fact it hadbeen voluntarily disclosed, was taken into account in sentencing.[42] Toogood J adopted a starting point of two years' imprisonment for thepossession charges. That starting point reflected the large quantity of objectionableimages; the seriously offensive nature of the images involving children aged as youngas four, sadism and bestiality; a high degree of pre-mediation; and the inestimableharm to the children depicted.32[43] In reliance on these cases, Mr Munro submits that Mr Pattison's offending iscloser to the Tilyard end of the scale, and he suggests a starting point of two years andsix months relative to that case. Further, he submits that the two-year uplift for thepossession charges was excessive by comparison to the two-year starting pointadopted in R v Stevens which involved significantly more serious offending than inthis case. Mr Munro submits that a global starting point of two years and six months30 At [51].31 R v Stevens [2016] NZHC 1574.32 At [25].to three years' imprisonment for both the distribution charge and the possession chargeis appropriate.[44] Mr Jenkins submits that the overall gravity of the offending is closer toRobinson than Tilyard, and the overall starting point adopted by the Judge is justifiedon that basis.[45] The comparison of the starting points in these cases involves a considerationof the aggravating features of the offending. As these cases show, the content of theimages, as reflected in their categorisation, is clearly a key marker of overall gravity.But it is not the only one. In Stewart, Katz J considered the United States SentencingCommission Report on Child Pornography Offenses, in which relevant sentencingfactors were identified.33 These include the content of the offender's childpornography collection and the nature of an offender's collecting behaviour.Indicators of an offender's collecting behaviour include the volume of material; typesof sexual conduct depicted in the images; the age of the victims depicted; and theextent to which an offender has organised, maintained and protected a collection overtime, including through sophisticated technologies. The degree of an offender'sinvolvement with other offenders and the degree of engagement with the imagesconcerned are also considered relevant to the gravity of the overall offending. Anotheraggravating feature is a history of engaging in sexually abusive, exploitative orpredatory conduct in addition to child pornography offending.[46] The quantity of images in an offender's possession requires separate comment.The volume of material will often be relevant in assessing culpability, but caution isto be exercised in putting too much weight on this factor. Katz J explained thereasoning for that caution as follows:34[42] Traditionally courts have tended to view the size of an offender's childpornography collection as a key aggravating factor. Due to developments inmodern technology, however, it is now necessary to take a somewhat morenuanced view of this issue. Child pornography offending is now almostexclusively internet enabled. Cases involving hard copy print materials are33 Stewart v Department of Internal Affairs [2016] NZHC 2209 at [31]; citing United StatesSentencing Commission Report to Congress: Federal Child Pornography Offenses (December2012) at 320.34 Stewart v Department of Internal Affairs [2014] NZHC 2209.rare to non-existent. The use of modern internet based technologies, such asP2P file sharing, facilitates the collection of high volumes of childpornography material with relative ease and within a short space of time. Onthe other hand, many offenders now appear to also be using moderntechnology to attempt to disguise their offending behaviour, including bystoring material in the cloud. Accordingly the size of a collection in itself isnow a somewhat blunt tool in assessing culpability. It is necessary to considerthe size of a collection in the broader context of everything that is known aboutan offender's online behaviour in order to assess the appropriate level ofculpability.[47] Those observations were affirmed by Mander J in Webb35 and by Fitzgerald Jin Robinson.36 I do likewise.[48] Bearing in mind those aggravating factors, I turn to consider the starting pointfor the offending in this case. I consider the starting point for the distribution charge,as the lead charge, first. Mr Pattison's offending has several features that make itsignificantly more serious than the distribution offending in Tilyard:(a) First, and most importantly, the nature of the sexual activity depicted inthe publications was significantly more serious than in Tilyard. AsNicholas Davidson J found, the images in Tilyard involved childrenposing, but they were not otherwise involved in sexual activity. InMr Pattison's case, two of the images involved children performing oralsex, and one image involved two adult penises with one havingejaculated over a child's face. The degree of victimisation and childexploitation was significantly greater in these images than in Tilyard asreflected in their higher classification.(b) Second, Mr Pattison's offending involved the distribution of videos, aswell as still images. The offending in Tilyard only involved the latter.Video content is potentially more serious than still images in my view.The nature of the medium draws the viewer into the abuse of the childin a more direct and immediate way. In that sense, video content ismore exploitative of the child victim, and can reflect a greater degreeof engagement with the material by the offender. The fact that the35 Webb v R [2016] NZHC 2966 at [51].36 Robinson v Police [2017] NZHC 2655 at [34].overall length of video material is taken into account in assessinggravity (as it was in Robinson37) is a further aggravating aspect of thismedium of objectionable publications.(c) Third, the age of the children in two of the four images was estimatedto be younger than 10 years old. In Tilyard, all of the images involvedchildren over 10 years old. All exploitation of children is reprehensible,but the younger the age of the child, the greater the aggravating natureof the offending.[49] As Mr Munro stressed, the quantity of the material distributed was significantlyless in Mr Pattison's case than in Tilyard (four images in this case, compared to 128images in Tilyard). Whilst that difference is relevant, for the reasons set out above,the size of the collection is not necessarily probative of culpability. I consider theother factors in this case are a better marker of Mr Pattison's overall engagement withchild exploitation material and other objectionable images. Overall, I consider astarting point significantly higher than the two years and six months adopted in Tilyardis warranted in Mr Pattison's case.[50] On the other hand, I accept that the offending in Robinson was graver than thatin Mr Pattison's case. The distribution charges in that case related to 15 video fileswhich comprised 100 minutes of footage. The nature, number and length of thosevideos make the offending in Robinson significantly more serious than in this case.[51] Taking all these factors into account, I consider the starting point of three yearsand six months adopted by the Judge to be within range for offending of this nature.There was no error in the Judge's approach.[52] Next, I consider the uplift for the possession charges. Again, I consider thepossession charges to be more serious than in Tilyard. The possession charges inTilyard related to 700 images which predominantly fell within category C. In thiscase, the possession charges relate to 874 images with 128 images falling within37 Robinson v Police [2017] NZHC 2655 at [35].category A, 143 images within category B, and the remaining images at or belowcategory C.[53] I do not consider the starting point for the distribution charge adequatelyreflects the gravity of the possession of these objectionable images. The possessionof such images is not victimless. It involves physical and emotional harm of the mostvulnerable in our society in the most degrading, demeaning and repulsive ways. Thepossession of such material feeds the demand which perpetuates the cycle of abuseand exploitative behaviour. I consider the number of images falling within categoriesA and B in this case requires separate denouncement and deterrence by way of anuplift from the starting point of three years and six months.[54] As to the extent of the applicable uplift, I accept that Mr Pattison's possessionoffending is not as serious as in Robinson. The possession charges in that caseinvolved possession of 20 videos comprising 275 minutes of footage involvingoffending against children of a more serious nature than in this case.[55] Similarly, the possession offending in R v Stevens is also more serious giventhe age of the children involved, and the fact that the materials included eight videoswhich were representative of the overall offending. The offending in Stevens alsoinvolved a greater quantity of images than in Mr Pattison's case, which was reflectiveof the extent to which he was engaged in the offending. That factor was reinforced bythe fact that Mr Stevens also faced one charge of doing an indecent act on a child under12, one charge of indecent communication with a young person under 16, and twocharges of breaching an extended supervision order.[56] If Mr Pattison's offending was being sentenced alone, I consider a startingpoint of up to 18 months' imprisonment may have been justified. But taking intoaccount principles of totality, I consider an uplift of 12 months' imprisonmentappropriately reflects the gravity of Mr Pattison's possession offending.[57] That brings the total global starting point to four years and six months'imprisonment. Standing back and considering the nature of the material the subjectof both the distribution charge and the possession charge, I am satisfied that thisstarting point reflects the overall gravity of the offending and is consistent with themaximum penalties imposed for offending of this nature.[58] It follows that the starting point adopted by the Judge was outside theapplicable range. But to ascertain whether this error resulted in a manifestly excessivesentence, it is necessary to take into account the adjustments made for personalmitigating factors. That aspect of the sentence is considered next.Was the end sentence manifestly excessive?[59] The District Court Judge applied a three-month discount for previous goodcharacter, and a 20 per cent discount for the guilty pleas. In the face of Mr Pattison'sdenial of his offending (despite his guilty pleas), there were no other availablediscounts for remorse or rehabilitation.[60] There is no reason to review the application of the 20 per cent discount for theguilty plea. That discount was justified given the late service of the expert brief andthe point in time at which the plea was entered.[61] However, I consider the three-month discount given for previous goodcharacter was generous to Mr Pattison given the following circumstances:(a) Mr Pattison has one previous conviction from 2007 for producing alogbook with omissions. He was fined $500, ordered to pay court costsof $130, and disqualified from driving heavy vehicles for one monthfor that offence. Although that conviction was minor, historical, andbears no correlation to the current offending, Mr Pattison did not havean entirely unblemished record before the current offending.(b) More recently, the pre-sentence report notes that Mr Pattison currentlyowes $820.60 in outstanding fines, and a warrant to arrest in relation tohis fines was issued on 23 October 2017.(c) Finally, as recorded in the summary of facts to which Mr Pattisonpleaded guilty, he was unavailable to speak to police on the numerousoccasions that they contacted him. He was also stopped atAuckland International Airport attempting to leave the country. He hadapplied for, and been issued with, a new passport between the date ofthe police search at his residence and his arrest.[62] I consider the District Court Judge could have declined to apply a discount forprevious good character in these circumstances. However, because the discounts werenot addressed as part of the appeal, and neither party focused on them in theirsubmissions, I am reluctant to interfere with the exercise of the Judge's discretion. Iproceed on the basis that the three-month discount should be applied on appeal.[63] Applying the three-month discount for previous good character and the 20per cent discount for the guilty pleas results in an end sentence of three years andfive months' imprisonment. It follows that the sentence of four years and two months'imprisonment imposed by the Judge was manifestly excessive and must be set aside.Result[64] The appeal is allowed. The sentence of four years and two months'imprisonment is set aside and substituted with a sentence of three years and fivemonths' imprisonment.___________________Edwards J