Arps v New Zealand Police
28 November 2019

[2019] NZCA 592 Application for leave granted. Appeal dismissed.
Criminal law - sentence - aggravating factors.
Constitutional law - New Zealand Bill of Rights Act 1990 - freedom of expression.

Mr Arps was convicted of two charges of supplying or distributing an objectionable publication under the Films, Videos, and Publications Classifications Act 1993. He sent the video footage of the Christchurch mosque shootings to 30 associates and separately to another person to have it modified to include "crosshairs" and a "kill-count". Following a sentence indication and guilty plea, he was sentenced in the District Court to 21 months' imprisonment. He appealed this sentence to the High Court, where Dunningham J dismissed the appeal. He sought leave from this Court to bring a second appeal against his sentence.

Issue: Did the Courts below err in applying s 9(1)(h) of the Sentencing Act 2002 as an aggravating factor in Mr Arps' sentence?
Held: No. Mr Arps' statements about the offending demonstrate profound hostility towards Muslim people. His previous conviction for offensive behaviour also demonstrated this deep-seated hostility.

Issue: Did the Courts below err by not taking s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA) into account?
Held: No. The right to freedom of expression is wide-ranging and expansive. Mr Arps' opinions may be condemned by society at large, but still engage s 14 of NZBORA. Section 9(1)(h) of the Sentencing Act limits this right as it imposes a punitive consequence for the expression of opinions that are hostile to groups in society. However, this is a justified limit on the right. Legislating against hate crimes is a very important objective and giving effect to this through a specific aggravating factor in sentencing is rationally connected to this objective. It is a minimal impairment on the right as it is one of many factors in the sentencing exercise and is overall a proportionate response.

Issue: Should Mr Arps' sentence of imprisonment be replaced with a lesser period of imprisonment or a sentence of home detention?
Held: No. The starting point of two and a half years' imprisonment set by the District Court Judge was appropriate in light of the seriousness of the offending. The reasons for not commuting the sentence of imprisonment to one of home detention was correct in reference to the principles and purposes of sentencing.

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