B v Police HC Wellington CRI-2007-485-143
[2008] NZHC 188
•22 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2007-485-143
CRI-2007-485-144
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 19 February 2008
Counsel: S J Gill for Appellant
M W C Snape for respondent
Judgment: 22 February 2008
JUDGMENT OF DOBSON J
Introduction
[1] On 26 November 2007, Mr B was sentenced on nine charges, on three of which he was found guilty at a defended hearing. He received a sentence of
100 hours community work and two years’ intensive supervision. Walsh DCJ also declined to exercise his discretion as per s 140 of the Criminal Justice Act 1985 to grant final name suppression, and it is this decision that is at issue in this appeal.
[2] Mr B appeals the decision on three grounds:
B V NEW ZEALAND POLICE HC WN CRI-2007-485-143 22 February 2008
• The Judge erred in regarding the offending of Mr B as serious and involving sexual offending;
• The Judge erred in giving insufficient weight to the need to rehabilitate Mr B and the negative impact that the publication of his name would have upon that treatment; and
• The Judge failed to take into account the serious health issues which arise in respect of the appellant’s father.
Background
[3] Mr B was convicted of burglary, intentional damage and possession of burglary tools on 17 September 2007. These convictions relate to an incident on
19 April 2007. On that day Mr B entered female toilets in the Westfield Queensgate shopping complex, occupied a cubicle and drilled a hole in the cubicle’s partition. Mr B admitted his intention was to observe the women using the adjacent cubicle and that he did so, but Walsh DCJ held that, whilst clearly offensive, this behaviour did not constitute an indecent act.
[4] Up until sentence, Mr B had interim suppression of his name given various issues in relation to his mental health.
District Court decision
[5] Walsh DCJ did not consider that the same mental health issues justified a more expansive final name suppression order. For Mr B , Mr Gill argued that he would suffer a “dramatic rebound effect” should publication occur, which would hinder motivation to rehabilitate and have an impact on his parents’ health. However, the Judge held:
[39] Against that I must weigh the other factors I have set out in support of publication. In this case I have reached the view the public interest requires publication. I say that having regard to the nature of your offending and the need for the protection of the public. I appreciate the hardship this
may cause your parents, but I hope that will be only a transitory matter for them.
[6] The Judge had earlier quoted MacKenzie J in Prentice v Police HC WN CRI-
2007-485-90 13 November 2007:
[5] Embarrassment to the family in cases involving sexual offending can be expected and could not, of itself, be considered unusual out of the ordinary or disproportionate to the public interest.
Grounds of Appeal
[7] The power to make orders for name suppression under s 140 is discretionary. It is only open to this Court to disturb the exercise of that discretion by Walsh DCJ if Mr B can demonstrate the decision was clearly wrong or wrong in principle: Curran v Police HC HAM CRI 2005-463-12 4 March 2005 Laurenson J. R v Liddell [1995] 1 NZLR 538 and Lewis v Wilson and Horton Limited [2000] 3 NZLR 546 are the leading authorities on the exercise of this discretion. The Court of Appeal stated in Liddell at 546 that:
…the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates” of the public.
[8] The Court of Appeal in Lewis at 558-559 supplemented this proposition with criteria that should be part of the discretionary exercise, including:
• The seriousness of the offending;
• The adverse impact upon the prospects for rehabilitation of a person convicted;
• The public interest in knowing the character of the person seeking name suppression, an interest which has been acknowledged in cases involving sexual offending; and
• Circumstances personal to the person appearing before the Court including the impact on his family.
Mischaracterisation of offending as serious sexual in nature
[9] As per Lewis, where sexual or serious offending is present, it will only be a rare case where name suppression is ordered. Mr Gill argued that Walsh DCJ incorrectly characterised this case as one of sexual offending, and therefore assumed an improper presumption that such a suppression order should not be granted.
[10] Mr B was not convicted of a sexual offence; although it was alleged that he committed indecent acts, these charges were unproven. Notwithstanding this, his counsel responsibly acknowledges that the offending was “sexual in character”. Walsh DCJ did not explicitly characterise this case as involving sexual offending. Rather, it is an inference based on his mentioning of Prentice and the paragraph that precedes this mention:
[35] The Courts have also noted the public interest in knowing the identity of those involving sexual offending, dishonesty and drug use.
[11] Prentice itself was not a case involving serious sexual offending. It involved the offender meeting a young person after sexually grooming him and permanent name suppression was declined. Walsh DCJ was justified in finding an analogy with that case. Although Mr B was not convicted of indecent acts, his offending was of a sexual character, and he acknowledged that the purpose of his presence in female toilets, and drilling a hole to observe an adjoining cubicle, was “to perve” at women using the toilets. Accordingly, the policy arguments enunciated in Lewis still apply. The public has a heightened interest in the publication of those offenders who have committed sexual offences, or those of a sexual character, because of the risk that it will occur in future, or to encourage other complainants to come forward. That was a legitimate policy consideration for the sentencing Judge, and I am not persuaded that he made a mistake as to the character of Mr B ’s convictions.
[12] I am also satisfied that Walsh DCJ made an accurate characterisation of the crime as being serious. Burglary attracts a potential penalty of 10 years’ imprisonment. This particular burglary involved considerable embarrassment to the women involved. For these reasons, it is a serious offence.
The adverse impact on Mr B ’s rehabilitation
[13] Mr Gill argued that the publication of Mr B ’s name will hinder his rehabilitation and the treatment he is receiving. Mr B is somewhat of a social recluse who unfortunately suffers from bipolar disorder. I have had the benefit of reading a recommendation by Dr Rex Faulknor, GP, which was not before Walsh DCJ. Dr Faulknor states his concern that publication could exacerbate Mr B ’s depression and social isolation, which he sees as triggers of his criminal behaviour. However, on the basis of other medical certificates and what appears to have been a strongly expressed submission on the point, Walsh DCJ did acknowledge that lifting of name suppression created a real risk of adverse impact on his rehabilitation.
[14] The impact on an offender’s physical or mental health and chances of rehabilitation is a legitimate criterion in this exercise. However, the impact must be exceptional to outweigh the public interest: Jacks v Hastings District Court [2005] NZAR 736 (CA). In Lutomski and Mackiewicz v Accident Compensation Corporation HC WN AP 119/02 2 July 2002 Hammond J, there was evidence of a high risk that the two offenders (who were convicted of fraud) would commit suicide should name suppression be lifted. Hammond J nevertheless declined to grant final name suppression, because the risk was not clearly substantiated: such was the importance that open justice should prevail. In a less dramatic example, in Lerner v Department of Internal Affairs HC AK CRI 2003-404-299 20 May 2004 Priestley J, the offender suffered from depression and narcissistic personality traits, but this fell short of suggesting lifting of suppression would cause these conditions to manifest themselves in extreme forms.
[15] Similarly, while Mr B ’s mental health and successful rehabilitation are very important, the extent of that risk is not sufficient to displace the public interest in lifting name suppression. Dr Faulknor suggests that his depression may get worse if his name is released, but this falls well short of establishing that his prospects of rehabilitation will be significantly harmed. Lutomski sets this threshold at a high level, one that is not met by this instance. I am therefore not satisfied that Walsh DCJ erred on the approach adopted on this factor.
The impact on Mr B ’s family
[16] Walsh DCJ was presented with several medical reports which indicated an adverse impact on Mr B ’s family should his name be published. An earlier assessment by Dr Faulknor on Mr B ’s parents stated that his father, whose health is “rather fragile” suffers from numerous back complaints and hypertension. In his opinion, lifting of name suppression could reflect badly on his and his wife’s health. A clinical psychologist, Jane Dyne, reports that the couple could not cope with the social embarrassment should their son’s name suppression be lifted. Dr Alan Chin reports that lifting of name suppression could have an adverse effect on Mr B ’s frail grandmother.
[17] The impact on Mr B ’s family is most unfortunate. However, the threshold for such a factor to displace the lifting of name suppression is high. In T v Police HC DUN CRI-412-12 22 April 2005, Chisholm J noted a “highly unusual combination of factors” necessitated final name suppression. The offender, in committing fraud, had not acted for personal benefit, there was no likelihood of future offending, and his father, the offender’s namesake, was in very poor health. There was a high risk that publication could prove disastrous to the father’s health; it was a matter of “life and death”. This was an exception to the rule. In Liddell, name suppression was lifted despite compelling evidence of the anguish it would cause to the offender’s family. Curran also expresses the principle clearly:
[59] On the evidence available it does seem that the detrimental impact arising from the removal of the suppression order on the appellant’s family in the context of their particular vulnerability, is likely to be increased. Despite this, I cannot agree that the detriment (or further detriment) to these unfortunate people can be labelled as damage out of the ordinary and disproportionate to the public interest in open justice and enough to displace the presumption in favour of reporting.
[18] These comments, and those made in Prentice, establish that the circumstances must be exceptional, such as those in T v Police, before the adverse impact on an offender’s family will tip the balance against disclosure. It is clear that the sentencing Judge was cognisant of these adverse impacts, and had regard to them. Accordingly, on this challenge as well, there is no scope for finding that the discretion was applied on a wrong principle, or in a way that was clearly wrong.
Result
[19] I am satisfied that Walsh DCJ’s balancing exercise was executed correctly. There is a very high threshold to meet before final name suppression is justified, and I agree with Walsh DCJ that it was not met in this instance. The s 140 discretion has a prima facie presumption of open justice and the factors in this case are not enough to dislodge this presumption. The appeal is dismissed.
Suppression Order in relation to witnesses
[20] During argument I was advised that a suppression order was made in the course of the District Court proceedings, suppressing publication of the names or any identifying details in respect of witnesses appearing in the trial. It was argued that that order should not be revisited. Accordingly, for the avoidance of doubt I confirm
that that order is to continue on its original terms.
Dobson J
Solicitors:
Gill & McAsey, Lower Hutt for appellant
Luke Cunningham & Clere, Wellington for respondent
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