Biernat v The Queen - [2013] NZHC 3478

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000033 [2013] NZHC 3478

MYRON ROY BIERNAT

v

REGINA

Hearing: 18 December 2013

Counsel: J A Westgate for Appellant
R D Smith for Crown

Judgment: 18 December 2013

JUDGMENT OF PANCKHURST J

The appeal

[1] The appellant Myron Biernat entered a plea of guilty to a charge of doing an indecent act on a girl aged under 16 years of age. This occurred between October 2007 and October 2008. On 27 November the appellant was sentenced by Judge Crosbie to six months home detention, subject to certain special conditions, and also ordered to undertake 150 hours of community work.

[2] This appeal is confined to the Judge’s decision to refuse permanent name suppression. The appellant had enjoyed the anonymity of an interim suppression order until he was sentenced.

The District Court sentencing

[3] Mr Biernat is 69 years of age. This was his first conviction for a criminal offence. The complainant, who was about 10 years of age at the relevant time, is a

BIERNAT v R [2013] NZHC 3478 [18 December 2013]

family member. She was induced by him to place her head in his lap, in circumstances that he knew had “crossed the line”. He also spoke of his actions to the Probation Officer who prepared the pre-sentence report as having resulted in a “huge guilt complex”. Although there was only one charge, I am told that it was intended to cover two discrete incidents of a similar nature.

[4] With reference to name suppression Judge Crosbie observed that the starting point is the presumption in favour of openness. He also observed that the complainant had signified she favoured publication of the appellant’s name, albeit in many cases that is not the case where the complainant and a defendant are related. Judge Crosbie paid regard to letters provided by the appellant’s general practitioner and a psychotherapist. Both considered that there was a risk of suicide and that this risk would be increased in the event that Mr Biernat’s name was published.

[5] However, as the Judge rightly noted, a risk of self-harm is never to be treated as determinative in relation to final name suppression. It is rather a relevant factor to be weighed in the balance.

[6] In the end result, Judge Crosbie expressed his conclusion in this way:1

[33] I do have some concern about issues of management of risk.
However, in my assessment, given the support that you have, coupled with some other factors, that risk can be managed. One of
the factors is the level at which I have placed this offending on the
continuum. I have noted where it sits and I have noted how it is to be distinguished from other and more serious offending.

[34] I am of the view that, despite the concerns being shared with the Court, those concerns are able to managed. In fact, the Court’s experience is that often those who know and care for you will be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 3478
Decision Date: 18 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Biernat v The Queen involved Myron Roy Biernat, who appealed against the refusal of permanent name suppression by Judge Crosbie. Biernat had pleaded guilty to committing an indecent act on a girl under 16 years of age between October 2007 and October 2008. The District Court sentenced Biernat to six months of home detention and 150 hours of community work. The appeal focused on Judge Crosbie's refusal of a permanent name suppression order, which had been in place until the sentencing.

The legal issues revolved around whether the Judge's decision to deny permanent name suppression was correct, particularly in light of the risk of self-harm or suicide as highlighted by the appellant's expert evidence. The grounds of appeal included challenging the Judge's conclusion that the risk of self-harm was manageable due to the level of family support and the nature of the offence being relatively low level. Additionally, the appeal considered new psychiatric evidence presented after the sentencing.

The court evaluated the new evidence from a consultant psychiatrist, Dr Christopher Wiseley, who opined that permanent name suppression would be extremely useful to prevent irreparable damage, including increased risk of suicide upon publication. However, the court found that this evidence did not significantly alter the overall assessment. The court distinguished the case from BL v R, where new psychiatric evidence led to a different outcome on appeal. The court concluded that the evidence did not sufficiently meet the criteria under section 200 of the Criminal Procedure Act 2011 for permanent name suppression. Consequently, the appeal was dismissed, and the original sentencing and name suppression decision were upheld.

Orders