Arps v New Zealand Police
| Jurisdiction | New Zealand |
| Judge | Collins J |
| Judgment Date | 28 November 2019 |
| Neutral Citation | [2019] NZCA 592 |
| Docket Number | CA469/2019 |
| Court | Court of Appeal |
[2019] NZCA 592
Collins, Brewer and Gendall JJ
CA469/2019
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Procedure, Criminal Sentencing — application for leave to pursue a second appeal against sentence — distribution of objectionable material contrary to Films, Videos, and Publications Classification Act 1993 — video footage of terrorist attack at Mosque — whether the hate crime provision in the Sentencing Act 2002 was engaged — whether the appellant was engaged in protected speech at the time of distributing the video — limits on freedom of expression under the New Zealand Bill of Rights Act 1990 — Criminal Procedure Act 2011
A M S Williams and J D Lucas for Appellant
F R J Sinclair and V McCall for Respondent
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A The application for leave to appeal against sentence is granted.
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B The appeal against sentence is dismissed.
(Given by Collins J)
On 16 March 2019, Mr Arps distributed to approximately 30 of his associates video footage which showed Mr Tarrant shooting a large number of people in two Christchurch mosques on 15 March. The actions of Mr Tarrant have led to him facing 51 charges of murder, 40 charges of attempted murder and one charge under the Terrorism Suppression Act 2002. On 16 March, Mr Arps also sent the video footage to another person and arranged for them to modify the video to include an image of rifle “crosshairs” and a “kill-count”. Later, on 16 March, the Prime Minister made a statement to the effect that it was likely an offence for anyone to distribute the video footage. Thereafter, Mr Arps deleted the modified video footage and refrained from any further distribution of the unmodified video footage.
Mr Arps was charged with two offences alleging that he had supplied or distributed objectionable material contrary to s 124(1) of the Films, Videos, and Publications Classification Act 1993. The maximum penalty for breaching that section is 14 years' imprisonment.
Mr Arps sought a sentence indication, which was given by Judge O'Driscoll in the District Court at Christchurch on 17 April 2019. The indication was that if Mr Arps pleaded guilty the Judge would adopt a starting point of 2 1/2 years' imprisonment. The Judge said he would make deductions totalling 9 months from the starting point to reflect, amongst other matters, a 25 per cent discount for an early guilty plea. The Judge told Mr Arps that he would not convert the sentence to one of home detention. Mr Arps accepted the sentence indication and pleaded guilty. He was sentenced by Judge O'Driscoll on 18 June 2019 to 21 months' imprisonment. 1
Mr Arps appealed his sentence to the High Court. His appeal was dismissed by Dunningham J on 27 August 2019. 2
Mr Arps now seeks leave to pursue a second appeal against his sentence.
Before this Court can grant leave for Mr Arps to pursue a second appeal against sentence, we need to be satisfied that: 3
The criteria for granting leave for a second appeal against sentence are disjunctive. Mr Arps' application can therefore be granted if he satisfies just one of the leave criteria.
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(a) the appeal involves a matter of general or public importance; or
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(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
If leave is granted we must allow the appeal if satisfied that: 4
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(a) for any reason, there is an error in the sentence imposed on conviction; and
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(b) a different sentence should be imposed.
If an appeal is allowed, our powers include the ability to vary the sentence imposed upon Mr Arps. 5
The grounds of the application for leave to appeal can be distilled to four points.
First, it is argued the Courts below erred when they held that s 9(1)(h) of the Sentencing Act 2002 was engaged in this case. Section 9(1) of the Sentencing Act says that when sentencing a defendant, the Court must take into account the aggravating factors listed in that subsection to the extent they are applicable. Section 9(1)(h) identifies offending motivated by hate as being an aggravating factor when sentencing a defendant. It applies where:
(h) the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and
(i) the hostility is because of the common characteristic; and
(ii) the offender believed that the victim has that characteristic.
Second, it is said the Courts below erred by failing to take into account s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA), which affirms the right of
Third, it is contended on behalf of Mr Arps that it is of general or public importance that leave be granted to Mr Arps to pursue a second appeal because other cases of a similar nature are coming before the Courts and sentencing Judges will benefit from knowing how we assess the sentence imposed on Mr Arps.
Fourth, it is submitted that the sentence imposed was manifestly excessive and ought to be replaced with either a sentence of home detention or a lesser period of imprisonment.
Before examining the basis upon which it is contended leave to pursue a second appeal should be granted, we will briefly explain the reasons for Mr Arps' sentence and why his appeal to the High Court was dismissed.
When sentencing Mr Arps, Judge O'Driscoll referred to his comprehensive sentence indication, which formed part of his sentencing notes. The Judge observed that the relevant sentencing purposes were the need to hold Mr Arps accountable for his offending, to denounce his conduct, to deter him and others from further or similar offending, to protect the community and to provide for the interests of the victims. The Judge noted the Crown had argued for a starting point of 3 years' imprisonment while Mr Williams, counsel for Mr Arps, had urged a starting point of 18 months' imprisonment.
The key factors that influenced the sentence imposed by Judge O'Driscoll were:
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(a) Mr Arps' motive for distributing the video, which the Judge said “was to endorse and support attacks on Muslims and to encourage others to endorse [Mr Arps' views about Muslim people]”. 6
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(b) Mr Arps' previous conviction was relevant to his motivation and culpability. In 2016, Mr Arps was convicted of offensive behaviour for having placed a severed pig's head at the door of a mosque. He was fined by Justices of the Peace. His appeal was dismissed by Judge Gilbert, who described Mr Arps' offending as a deliberate hate crime against Muslims. 7 Thereafter, Mr Arps made a video blog in which he said:
Obviously [Judge Gilbert] knows me well. White Power, my friends, my family, my people get those fuckers out.
Bring on the cull. Get the fuckers out. The rules are changing White Power.
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(c) Comparisons drawn between Mr Arps' offending and that considered by this Court in Patel v R. 8 In that case the appellant distributed to 52 people material which portrayed gross gratuitous violence, including beheadings, torture, limb amputation, mutilation, immolation, and victims being run over by tanks. Mr Patel had received a warning from his telecommunications provider after he first distributed this material. He nevertheless did so on a second occasion, days after having been warned not to do so. This Court agreed with the starting point of 5 years' imprisonment in that case. In doing so, it was noted Mr Patel's purpose in distributing the material was to endorse terrorist activities and to encourage others to do the same. Judge O'Driscoll was persuaded that Mr Patel's offending was more serious than that of Mr Arps' and that a lower starting point than that adopted in Mr Patel's case was justified in Mr Arps' circumstances.
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(d) The harm caused by Mr Arps' offending. Judge O'Driscoll rejected an argument advanced by Mr Arps' counsel that no harm was caused by his offending. The Judge explained that the distribution of images of extreme violence caused immense distress to all who were associated with Mr Tarrant's actions, particularly as the video was distributed very soon after the shootings.
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(e) Mr Arps' lack of remorse. When interviewed by the police and asked about the video Mr Arps said it was “awesome”. When asked about the victims of the shooting he said, “I could not give a fuck mate”. In his pre-sentence interview with a probation officer Mr Arps said that he requested the addition of the “crosshairs” and “kill-count” to the video to “lighten it up a bit, make it a bit funny because it was so heavy”. He maintained his position with the pre-sentence report writer that his crimes were “victimless”.
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(f) Mr Arps' lack of rehabilitative prospects. It was noted by Judge O'Driscoll that Mr Arps was 44 years old with deeply entrenched ideological views that diminished his prospects of rehabilitation.
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(g) Mr Arps ceased distributing the offending video on 16 March after the Prime Minister indicated it was likely to be classified as objectionable and he did not distribute the modified video. 9
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(h) Mr Arps' personal circumstances. He is married with a family and has a small business. His employees and family were dependent on Mr Arps being able to continue his business.
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(i) Judge O'Driscoll said there were four reasons why he would decline to convert the prison sentence to one of home detention: 10
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(i) “an electronically monitored sentence would [not] achieve the purposes and...
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