Crosbie v Police
[2023] NZHC 1361
•29 May 2023
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2023-425-000002
[2023] NZHC 1361
BETWEEN SHANNA MAREE CROSBIE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 May 2023 Appearances:
W J Wright for the Appellant
M B Brownlie for the Respondent
Judgment:
29 May 2023
ORAL JUDGMENT OF GENDALL J
Introduction
[1] On 22 March 2023, Ms Shanna Maree Crosbie was sentenced to 12 months’ supervision and 125 hours community work by Judge Walker in the Gore District Court having pleaded guilty to the following charges:
(a)Forgery with intent to obtain property;
(b)Forgery with intent for the forged document to be acted upon as genuine; and
(c)Using a forged document.
SHANNA MAREE CROSBIE v NEW ZEALAND POLICE [2023] NZHC 1361 [29 May 2023]
[2] Judge Walker denied Ms Crosbie’s applications for a discharge without conviction and permanent name suppression. Ms Crosbie now appeals against refusal to grant a discharge without conviction, the sentence, and refusal to grant permanent name suppression.
Facts
[3] During 2022, Ms Crosbie was employed as a health coach working out of Gore Health Clinic. This was a non-clinical role and Ms Crosbie was not authorised to issue prescriptions of any kind. However, Ms Crosbie did have access to the patient data base. Using this access, Ms Crosbie created false prescriptions for Tramadol, a strong pain medication, and forged a doctor’s signature on it. She then presented the forged document to a pharmacy to obtain the medication on some five occasions.
[4] Subsequently, Ms Crosbie attempted to repeat this process again to obtain another kind of pain medication, Codeine but was thwarted in her attempt by a malfunctioning printer. While Ms Crosbie did manage to obtain some Codeine, as a result of the printer malfunctioning, Ms Crosbie’s employer was alerted to the situation. Following this, Ms Crosbie immediately resigned.
[5]Ms Crosbie is 38 years of age and has one dated conviction for drink-driving.
District Court’s Decision
[6] The District Court judgment first determined the application for a discharge without conviction.
[7] Judge Walker considered that there was an element of premeditation in the offending and noted that it involved a considerable breach of trust, heightening the gravity of the offending. On the reverse side of the coin, the Judge noted that Ms Crosbie had pleaded guilty at the earliest opportunity, had no relevant criminal history, a low likelihood of re-offending and risk to the community, showed significant remorse and had personal circumstances of addiction, health, and other matters which mitigated her culpability. The conclusion the Judge came to after considering all the circumstances was that the offending was of moderate seriousness.
[8] The Judge assessed the consequences of conviction as low to moderate. Ms Crosbie had not substantiated her claims that the convictions would prevent her from travelling or obtaining future employment. In any case, prospective employers should know about the nature of the convictions given they involved a breach of trust against Ms Crosbie’s employer. Accordingly, the Judge determined the consequences were not out of proportion to the gravity of the offending and the test for a discharge without conviction was not made out. The Judge declined the application.
[9] In coming to a sentence then, the Judge adopted a starting point of 12 months’ imprisonment uplifted by four months for the second set of offending relating to Codeine. From the 16 month total starting point, the Judge deducted 25 per cent for Ms Crosbie’s guilty plea, 20 per cent for addiction issues and five per cent for rehabilitative steps she had taken, resulting in an eight month sentence of imprisonment. However, keeping the focus on rehabilitation, the Judge imposed a sentence of 12 months’ supervision and 125 hours’ community work.
[10] Finally, the Judge dealt with name suppression. Ms Crosbie relied on the ground of extreme hardship. The story had garnered an unusual level of media interest and given she lived in a small community, Ms Crosbie maintained publication would cause extreme hardship to her and to her partner and her three children in terms of employment and social engagement.
Relevant Law
Discharge without conviction
[11] Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, a Court may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.1
[12] Section 106 is complemented by s 107. Under this provision, a Court must not discharge an offender without conviction under s 106 unless the Court is satisfied that
1 Sentencing Act 2002, s 106.
the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.2
[13] The Court of Appeal has characterised an assessment under s 107 as a three-step test:3
[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.
[14] In Z v R, the Court of Appeal clarified the approach to applying each element of the s 107 assessment:4
[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[15] With regard to the assessment of direct and indirect consequences of conviction on a defendant, the Court of Appeal has stated that:5
The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.
2 Section 107.
3 Prasad v R [2018] NZCA 537 at [11].
4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
5 DC (CA47/2013) v R [2013] NZCA 255.
[16]Furthermore, in relation to the final step, the Court of Appeal has affirmed in
R v Smyth that: 6
[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
Sentence appeal
[17] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.7
[18] Generally, the focus in a sentence appeal is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.8 The Court of Appeal has accepted, however, that there may be cases where “what has gone wrong as such as to require correction albeit the sentence imposed is within range”.9
Name suppression
[19] Courts may suppress the identity of a defendant under s 200 of the Criminal Procedure Act 2011. The starting point for a s 200 analysis is the principle of open justice.10 Courts have consistently emphasised a presumption in favour of openness in reporting.11 Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high.12
6 R v Smyth [2017] NZCA 530.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
8 Ripia v R [2011] NZCA 101, At [15].
9 Tutakangahau v R, above n 7, at [36].
10 Erceg v Erceg [Publication restrictions] [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
11 R v Liddell [1995] 1 NZLR 538 (CA) at 546. See also Proctor v R [1997] 1 NZLR 295 (CA) at 298–299; Robertson v Police [2015] NZCA 7 at [43]–[47]; and Re Victim X [2003] 3 NZLR 220 (CA) at 238.
12 Robertson v Police, above n 11, at [44].
[20] Section 200 contemplates a two-stage test.13 The first stage is a threshold determination. The court may only order name suppression if it is satisfied that one of the consequences listed in s 200(2) would be likely to follow if no order were made.14 This first stage is met if the Court is satisfied there is a real or appreciable risk that the consequence will follow from publication.15 It is not necessary to establish that the risk of harm is more likely than not to occur.16
[21] If one of the threshold grounds under s 200(2) is met, the Court must then determine whether to exercise its discretion to suppress the defendant’s name.17 At this point, the Judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victim(s) and the public interest in knowing the character of the offender.18 In exercising its discretion, the Court must weigh the competing interests of the applicants and the public interest in open justice. There is a high threshold to be reached before suppression is justified,19 and the balance must “come down clearly in favour of suppression”.20
[22] The Court, on appeal, must adopt a bifurcated approach. An appeal against the first decision is a factual assessment and subject to the ordinary approach on a general appeal.21 The appellate court is entitled to come to its own opinion about the facts and the law.22 The Court must determine whether or not any of the threshold criteria in s 200(2) have been established. If the appellate court’s opinion is different, the lower
13 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and Robertson v Police, above n 11, at [39]–[41].
14 Fagan v Serious Fraud Office, above n 13, at [9].
15 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; Huang v Serious Fraud Office [2017] NZCA 187 at [10]; Peglar v Police [2014] NZHC 1184 at [23]; and JM v R [2015] NZHC 426 at [33]–[36].
16 Beacon Media Group Ltd v Waititi, above n 15, at [17].
17 Fagan v Serious Fraud Office, above n 13, at [9]; and Robertson v Police, above n 11, at [39] and [41].
18 Robertson v Police, above n 11, at [41], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].
19 Robertson v Police, above n 11, at [41]–[44].
20 Lewis v Wilson & Horton Ltd, above n 18, at [43], followed in D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
21 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
22 At [16].
court decision is regarded as erroneous even if it was a conclusion “on which minds might reasonably differ”.23
[23] An appeal against the second limb is an appeal against discretion.24 An appellant must establish that the Judge below has “acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong”.25 If there is such an error, the appellate court considers the discretion afresh.26
Analysis
Discharge without conviction
[24] I do not consider this is a case where a discharge without conviction is warranted. In my assessment, Judge Walker in the District Court made no error in assessing the gravity of the offending as moderately serious. The offending involved a significant breach of trust on Ms Crosbie’s part in abusing the privilege of access to the patient database she had obtained in her role as a health professional. I do not accept the appellant’s submission that the creating of the forged prescriptions involved only a click of a mouse, and therefore, should be assessed as a low level of seriousness. It is not the physical act of how the forgery was committed which determines seriousness but the significance of what Ms Crosbie did. Ms Crosbie searched for a patient who had been prescribed the medication she was seeking, created a prescription for the same, importantly she forged the signature of a doctor and then used the prescription on some six occasions to obtain the medication. She then repeated the whole process again with a different type of medication. The offending was not a one-off mistake that was later regretted. It was a sustained attempt at obtaining medication to which Ms Crosbie was not entitled and it was only thwarted because of a printing malfunction.
[25] Nor do I accept the submission that Judge Walker did not correctly evaluate the whole circumstances of Ms Crosbie’s offending. The Judge identified the early
23 At [16].
24 Wilson v R [2018] NZHC 1778 at [14].
25 Saggers v R [2012] NZCA 560 at [25]; and see B (CA860/10) v R [2011] NZCA 331 at [9]; and
Lawrence v R [2011] NZCA 272 at [11].
26 Kacem v Bashir [2010] NZSC 112, [2011] 2 NLZR 1 at [32].
guilty pleas, the attempt at restoration processes, and the rehabilitative steps taken by Ms Crosbie and her addiction and mental health issues, later recognising them by discounting the sentence by 20 per cent for these factors. Ms Crosbie’s limited criminal history, her expression of remorse and her low likelihood of re-offending were all factors also considered in the judgment to come to the conclusion that the offending was moderately serious. That assessment cannot be faulted.
[26] The consequences of conviction too I am satisfied were not such as to justify a discharge without conviction. Any consequences potentially preventing Ms Crosbie’s attempts to travel were speculative and adverse employment consequences were sketchy and non-specific. Additionally, and in any event, the nature of the offending meant that future employers should be aware of it. The mental health effects of conviction, while of course regrettable, do seem to me to be related more to Ms Crosbie’s addiction issues and, do not mean the consequences of conviction are out of all proportion to the gravity of the offending.
[27]This ground of appeal must fail.
Sentence appeal
[28] As I note, a sentence of 12 months’ supervision and 125 hours of community work was imposed in the District Court. Ms Crosbie says that sentence is manifestly excessive. The respondent says it is within range and should be upheld.
[29] While I find that the consequences of conviction would not be such to justify a discharge without conviction, they are serious, nonetheless. That is part of the penalty Ms Crosbie faces. She has clearly fallen from grace here. The Crown too does not dispute before me that Ms Crosbie suffers from addiction and mental health issues and is seeking rehabilitative help, a dominant factor above. Coupled with all this, a sentence of 12 months’ supervision and 125 hours of community work might well be considered here to be in my view manifestly excessive. Judge Walker was right to take a rehabilitative approach to sentencing in choosing a non-custodial sentence and I do not find any error in the discounts he imposed nor the starting point adopted. The sentence he came to was a nominal sentence of imprisonment of eight months. He converted this to a sentence of 12 months’ supervision and
125 hours’ community work. While there is no mathematical conversion to be followed when taking such an approach, considering the totality of the offending, I consider a sentence of nine months’ supervision and 75 hours’ community work is more appropriate in all the circumstances here. That aspect of this appeal is to be allowed.
Name suppression
[30] Ms Crosbie submits that this case reaches the high threshold for name suppression. The case has generated unfair publicly, she maintains. This is because it is linked to a misconstrued association between Ms Crosbie and someone who is or was the mayor of Gore; Ms Crosbie’s identity has already been an open secret in the Gore community; and negative comments on social media Ms Crosbie says means that she—already vulnerable because of her mental health issues—and her children will suffer extreme hardship from publication.
[31] The respondent opposes all this, submitting that the threshold for extreme hardship is not met here. I agree. While the somewhat public profile of Ms Crosbie may result in a higher than average interest in the case, it is not the position that name suppression must protect every high profile individual from negative comments in the media. Again, I acknowledge the mental health and other health issues Ms Crosbie struggles with. However, these it seems are related largely to addiction issues and are not a basis for meeting the high threshold of extreme hardship. The starting point of open justice is not lightly to be departed from. I do not consider there to be any sound basis here for departing from that principle. And before me Mr Wright also indicated that Ms Crosbie’s name, and details of this offending are well-known already, especially in Gore, Invercargill and Southland generally. Judge Walker’s decision on name suppression contained no error.
Conclusion
[32] The appeal against sentence is allowed. The sentence of 12 months’ supervision and 125 hours’ community work is quashed and a sentence of nine months’ supervision and 75 hours’ community work is imposed in its place.
[33]The appeal against refusal to grant a discharge without conviction is dismissed.
[34]The appeal against refusal to grant name suppression is dismissed.
ADDENDUM
[35] At the conclusion of this appeal hearing and following delivery of my original judgment herein, Mr Wright for the appellant indicated that, notwithstanding my decision, he believed Ms Crosbie may wish to seek leave to appeal that name suppression decision particularly to the Court of Appeal. To protect that possible right of appeal, he sought that the Court extend for a short period name suppression for Ms Crosbie on an interim basis. That said, I now make an order on an interim basis that name suppression for Ms Crosbie is to continue until 5 pm on Tuesday 6 June 2023.
Gendall J
Solicitors:
Wilkinson Rodgers Lawyers for the Appellant PR Law for the Respondent
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