Disciple v Police
[2022] NZHC 2797
•28 October 2022
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2022-418-04
[2022] NZHC 2797
BETWEEN TIMOTHY DISCIPLE
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2022-418-05 BETWEEN
TIMOTHY DISCIPLE
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 8 September 2022 Appearances:
M Zintl for Appellant
C J Boshier for Respondent R Stewart for Stuff Limited
Judgment:
28 October 2022
JUDGMENT OF EATON J [REDACTED]
This judgment was delivered by me on 28 October 2022 at 10 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
DISCIPLE v NZ POLICE [2022] NZHC 2797 [28 October 2022]
Introduction
[1] Timothy Disciple pleaded guilty to one charge of indecently assaulting a boy aged 12 to 16 years,1 three charges of indecently assaulting a child under 12 years of age (one representative),2 two charges of indecent assault on a young person under the age of 163 and one charge of indecent assault.4 Mr Disciple was sentenced by Judge Garland on 23 June 2022 to two years and five months’ imprisonment.5 The Judge declined an application for permanent name suppression and for suppression of the fact that the offending took place in the Gloriavale community, but ordered suppression of the familial links between Mr Disciple and the victims. After the sentencing, on 10 August 2022, Judge Garland made a final suppression order of the portions of the summary of facts relating to Victims One and Three.
[2] Mr Disciple appeals his sentence and the refusal to order permanent name suppression.
Facts
[3]The following facts are taken from the summary of facts.
[4] The appellant is a 41-year-old man who lived in the Gloriavale Christian community. There are five victims to his offending, all of whom lived in the Gloriavale community at the time of the offending.
[5] […]
[6] In December 2005, Victim Two and her family travelled by van with Mr Disciple and his family. The families were on holiday together. Victim Two was 12 years old at the time. Mr Disciple was 24 years old and was recently married. Mr Disciple and Victim Two sat in the back row of the van. Mr Disciple placed his hand on the victim’s lower back and bottom over her clothing and squeezed and rubbed
1 Crimes Act 1961, s 140A(1): maximum penalty seven years’ imprisonment.
2 Section 132(3): maximum penalty 10 years’ imprisonment.
3 Section 134(3): maximum penalty seven years’ imprisonment.
4 Section 135: maximum penalty seven years’ imprisonment.
5 Police v Disciple [2022] NZDC 11586.
her. Victim Two told her parents she was feeling car sick in order to get away from Mr Disciple.
[7] Victim Three was then asked to sit in the back seat next to Mr Disciple. She was 10 years old at the time. Mr Disciple placed his right arm around her shoulder and his left hand on her knee. He then moved his left hand up the victim’s leg underneath her dress and began rubbing her bare thigh and her vagina over her underwear.
[8] […]
[9] […]
[10] […]
[11] Also in 2006, Mr Disciple offended against Victim Four, aged 15 or 16 at the time, and Victim Five, aged 16 or 17 at the time. Mr Disciple and Victim Four worked together at the moss plant. After work, they would walk back to the accommodation block together and would often go into Mr Disciple’s bedroom. In the bedroom, Mr Disciple put his arms around the victim from behind before moving them down to her breasts.
[12] The indecent assault against Victim Five was very similar. Mr Disciple and Victim Five were in the main building in the preschool area. Mr Disciple was standing in a doorway so he could see in both directions. He was chatting to the victim when he put his arms around her from behind and placed his hands on her breasts.
[13] Mr Disciple presented himself to the police and was interviewed. He admitted offending against all victims. He volunteered details of his offending against Victims One, Four and Five who had not made police complaints.
Sentence appeal
District Court decision
[14] In sentencing Mr Disciple, the Judge considered the relevant purposes of sentencing in s 7 of the Sentencing Act 2002 to be to hold Mr Disciple accountable for the harm caused to the victims, to promote a sense of responsibility, to bear in mind the interests of the victims, and denunciation and deterrence, especially considering this offending was sexual offending against children.
[15] The Judge took […], as the lead offending. The Judge considered the aggravating features were the age disparity between the […], the vulnerability of the victim, the significant breach of trust, the intrusiveness and repetitiveness of the offending, the significant degree of premeditation, the prolonged period the offending took place over and the effect on the victim. A starting point of four and a half years’ imprisonment was adopted after consideration of a number of cases.6
[16] The Judge considered the offending against the other four victims warranted at least an 18-month uplift, bringing the overall starting point to six years’ imprisonment. The Judge then accounted for totality, and reduced the starting point to one of four years and six months’ imprisonment.
[17] A 25 per cent credit for guilty pleas was allowed and a further five per cent for Mr Disciple’s cooperation with police in making disclosures about three of the victims where the police would not have otherwise known about the offending. The Judge observed that Mr Disciple only made disclosures when he became aware that the other victims had made disclosures, and that his disclosures were made 14 to 15 years after the offending. The Judge allowed a further five per cent reduction for remorse and a
10 per cent reduction for willingness to rehabilitate and the consequences of imprisonment for Mr Disciple’s family.
6 Anson v R [2014] NZCA 135; R v Thorpe [2012] NZHC 229; O (CA643/2009) v R [2010] NZCA
609; Frank v Police [2021] NZHC 1926; R v De Kwant [2017] NZHC 2291; Wild v R [2019] NZCA 189; R v Shaw [2013] NZCA 142; Hishon v R [2016] NZCA 558; and R v Hulks HC
Auckland CRI-2009-090-9262, 10 September 2010.
[18] The Judge declined to allow a discount for previous good character given Mr Disciple had engaged in prolonged offending. His Honour also refused to allow a discount for youth, Mr Disciple being […] at the time of the first offence.
[19] A total discount of 45 per cent was applied leading to an end sentence of two years and five months’ imprisonment.
Principles on appeal
[20] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal said in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Submissions
Appellant’s submissions
[21] Mr Zintl, for Mr Disciple, submitted that the starting point for the offending against Victim Three should have been no higher than three years’ imprisonment.10 He submitted that the overall starting point should have been no higher than four years’ imprisonment after considering the principle of totality.11
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
10 With reference to: Britow v R [2017] NZCA 229; O (CA643/2009) v R, above n 6; R v De Kwant, above n 6; R v Lynch [2014] NZHC 1788; and R v N HC Auckland CRI-2006-092-2334, 29 July 2008.
11 With reference to: R v Hulks, above n 6; and R v Tyson CA141/95, 6 July 1995.
[22] Mr Zintl also submitted that Mr Disciple should have received a larger discount, of 10 to 15 per cent, for cooperation with authorities.12 He noted the offending was highly unlikely to have come to light but for Mr Disciple’s confession. He submitted that higher discounts would incentivise offenders volunteering information about further offending to the police.
[23] Counsel submitted a 10 per cent discount for previous good character was appropriate to reflect the absence of previous convictions and the fact Mr Disciple had not offended in the 16 years after his offending and prior to his arrest.13 The Judge was presented with numerous character references detailing how the offending was out of character for the appellant.
[24] Mr Zintl also contended Mr Disciple should have received a five per cent discount for his youth at the time of the offending.14
[25] Finally, he submitted the appropriate end sentence was less than two years imprisonment. He submitted that, given the passage of time since the offending, the mitigating features of the offender and the low risk of re-offending, home detention was the appropriate sentence for Mr Disciple.
Respondent’s submissions
[26] Ms Boshier, for the Crown, submitted the starting point adopted for the offending against Victim Three was within range having regard to the cases cited by counsel and the Judge. She submitted that the uplift of 18 months was appropriate given the number of victims involved, and suggested that if the charges were taken in isolation then a greater starting point on each would have been warranted. Ms Boshier stressed that the Judge then reduced the starting point back down to the original
12 With reference to: R v Strickland [1989] 3 NZLR 47 (CA); R v Sanday CA146/99, 29 July 1999; D v Police (2000) 17 CRNZ 454 (HC); Ringrose v R [2011] NZCA 634 at [24]; Lowenstein v Police [2020] NZHC 786; S v R [2017] NZHC 205; and R v Lynch HC Hamilton CRI-2010-019- 3449, 9 September 2010.
13 With reference to: R v Hockley [2009] NZCA 74; R v Carruthers CA401/94, 10 April 1995; R v Webb CA13/04, 17 June 2004; Manawaiti v R [2013] NZCA 88; and Solicitor-General v Rawat [2021] NZHC 2129.
14 With reference to Solicitor-General v Rawat, above n 13, at [40].
starting point to reflect totality. She submitted the overall starting point cannot be seen to be manifestly excessive given the substantial totality discount.
[27] Regarding the discounts given at sentencing, Ms Boshier acknowledged that a discount to reflect Mr Disciple having volunteered offending otherwise unknown to the police was appropriate. She noted that relevant considerations for determining the appropriate discount are the type and seriousness of the offending, the nature and value of the assistance, the situation in which the assistance was given and the consequences of the defendant giving assistance.15 She acknowledged that Mr Disciple’s assistance identified victims that had not made disclosures, but argued that the fact the confession came 15 years after the offending and only after Mr Disciple was aware of other disclosures to the authorities suggests a significant credit is inappropriate. In those circumstances, she submitted that a five per cent discount, especially when combined with the five per cent discount for remorse, was appropriate.
[28] Counsel submitted that it was open to the Judge to refuse a good character discount in a case where the offending took place over a prolonged period.16 She also submitted that the time elapsed since the offending was taken into account in allowing a discount for rehabilitative prospects.
[29] Ms Boshier submitted that any discount available for youth was neutralised as a consequence of the offending continuing into Mr Disciple’s 20s. His continued offending makes it clear that this was not impulsive or youthful behaviour, and there is no need to recognise that youth have a greater capacity for rehabilitation or that long sentences may be crushing on youth because Mr Disciple is now in his 40s. The rationale for a youth discount does not arise in this case.
[30] Ms Boshier therefore submitted that the end sentence was not manifestly excessive and so home detention was not available. She submitted that home detention would not, in any event, be appropriate as it would not appropriately account for the purposes of deterrence and denunciation.
15 With reference to: Williams v R [2011] NZCA 384; Waihape v R [2012] NZCA 425; and R v C
CA319/99, 25 November 1999.
16 With reference to: Payne v R [2016] NZCA 284; Britow v R [2017] NZCA 229; R v Hockley, above n 13; and Hamilton v R [2015] NZCA 28.
Analysis
[31] I agree with the Judge it is appropriate to take the offending against Victim Three as the lead offending. The aggravating features of this offending are: […], the repetition of offending, […], the level of premeditation, […], and the profound effect on the victim.
[32] […].
[33] It appears the Judge has erred in his assessment as to the duration of this offending.
[34] The summary of facts records the offending the subject of the representative charge as […]. It also refers to the age of the victim being between […].
[35] Both the summary of facts and the findings of the Judge are at odds with the charging documents. […]
[36] […].
[37] […].
[38] Mr Disciple is entitled to be sentenced in accordance with the offences as charged. On my analysis, the Judge was wrong in his assessment of the frequency and duration of the overnight offending. That is not to suggest the offending was not relatively prolonged, but that the offending was not as prolonged as the Judge found based on the charging documents. […].
[39] The Judge considered a number of cases in setting the starting point. I have reviewed those cases. The following cases provided useful guidance:
(a)Anson v R:17 Mr Anson was found guilty of two counts of indecent acts and one count of an indecent assault against his step-grandchildren. All charges were representative. Over four years the appellant had been
17 Anson v R, above n 6.
getting into the shower with the young victims and masturbating himself and touching one of the victim’s genitalia. The starting point of four years’ imprisonment was seen as lenient on appeal.
(b)O (CA643/2009) v R:18 The 54-year-old offender committed six indecencies on his 10–11-year-old niece on four separate days over a seven-month period by touching the girl’s vagina, sometimes under her clothing, squeezing her breast and kissing her on the lips. A starting point of three years’ imprisonment was confirmed on appeal, albeit described as stern.
(c)R v De Kwant:19 The 52-year-old offender masturbated the victim, an eight-year-old boy, on at least 12 occasions over an 18-month period. This Court considered the aggravating circumstances to be the vulnerability of the victim, the disparity in age, the period of time, the abuse of trust and the harm to the child. A starting point of four years’ imprisonment was adopted.
(d)R v Thorpe:20 The offender pleaded guilty to eight charges of indecently assaulting a child under the age of 12 years and one charge of indecently assaulting a young person under the age of 16 years. These offences were committed against four different victims (aged between seven and 13) over a six-year period. The victims were left in Mr Thorpe’s care by their parents. The offending included rubbing his penis against one of the victims while they were both clothed, touching the children inappropriately while they were clothed and masturbating three of the victims, one of them on multiple occasions. The starting point was four years and three months’ imprisonment for the lead offending, which was four incidents where the offender masturbated the victim. The overall starting point for all the offending was seven years’ imprisonment.
18 O (CA643/2009) v R, above n 6.
19 R v De Kwant, above n 6.
20 R v Thorpe, above n 6.
[40] Considering those authorities, and my finding as to the duration and frequency of the offending against Victim Three, I accept the submission that the starting point of four and a half years was too high. I see this offending as falling between O (CA643/2009) v R and R v Thorpe and slightly below R v De Kwant. I assess the appropriate starting point for the offending against Victim Three as three years and six months’ imprisonment.
[41] The Judge added an 18-month uplift for the offending against the other four victims. This was not challenged on appeal. I agree that level of uplift was appropriate. That leads to a global starting point of five years’ imprisonment.
[42] The Judge considered the totality principle and adjusted the sentence down by 18 months. That was a generous deduction. Having regard to the lesser starting point I have adopted, I consider the appropriate totality reduction to be one of 12 months, and an adjusted starting point of four years’ imprisonment.
[43] Mr Zintl has argued that Mr Disciple should have received further discounts for co-operation with authorities, previous good character, and his youth. I will deal with each matter in that order.
Credit for co-operation
[44] Mr Zintl referred to a range of cases in which significant discounts were provided for co-operation with the authorities.21 These authorities suggest a discount higher than five per cent might be available for co-operation with the police. The key determinative factor in making an assessment as to whether a discount is appropriate for such co-operation is generally the value of the assistance.22
[45] Mr Disciple’s confessions led to charges being laid for his offending against three victims who had not made complaints. This was undoubtedly valuable to the Police. However, the context of the assistance given is also important. As observed by the Judge, Mr Disciple confessed to the offending relating to the three victims after
21 Lowenstein v Police, above n 12; R v Strickland, above n 12; R v Sanday, above n 12; D v Police, above n 12; S v R, above n 12; and R v Lynch, above n 12.
22 Williams v R, above n 15; and R v Ringrose, above n 12.
it was clear that he was going to be charged in relation to the other two. This can be contrasted with an offender who is not under investigation but, of their own volition attends on the police to make a confession. That level of co-operation has been described as “totally self referred”.23
[46] Further, Mr Disciple’s confession arose around 15 years after the offending, not at the time of the offending. That delay diminishes the credit that might otherwise be available.
[47] Finally, there is an overlap between assistance, remorse and guilty plea discounts. Mr Disciple received a discrete discount for remorse and also a full guilty plea discount.
[48] I am however conscious that the Judge allowed a second defendant, sentenced on the same day in relation to sexual offending within Gloriavale, a deduction of five percent for co-operation that did not disclose offending that would otherwise not have come to light.24 In my view Mr Disciple’s co-operation was deserving of a greater credit than that given to that offender.
[49] I consider a five per cent deduction to be on the light side. I consider a ten per cent discount is appropriate to reflect Mr Disciple’s co-operation with and assistance to authorities.
Previous good character
[50] The Judge refused to allow a deduction for previous good character because the offending “occurred over a prolonged six-year period”.25 The Judge found the positive contribution Mr Disciple had made in his community was offset against the harm he had caused.
[51] In considering the extent to which the prolonged nature of the offending impacts on the credit for previous good character, the Court must first quantify the
23 As was the case in R v Sanday, above n 12, at [15], where a 33 per cent discount was given.
24 R v Hope [2022] NZDC 11639.
25 R v Disciple, above n 5, at [68].
period of offending. The charging documents record the dates of the offending. […]. I do not agree that reflects offending over a prolonged six-year period. There was however regular offending over a period of about 18 months following a discrete offence several years earlier.
[52] In similar circumstances a discount for previous good character has been provided.26 Conversely, there is clear case law that prolonged offending “necessarily calls good character into question”.27 In Britow v R the Court of Appeal considered offending against a child over a three-year period was a factor against a credit for previous good character. The Court explained:28
… it is much more difficult to put offending behaviour that continues over a long period of time down to a momentary (and out of character) lapse in judgement by an otherwise upstanding member of the community.
[53] There can be little doubt that prolonged offending necessarily calls good character into question. Very prolonged offending will likely negate any credit for previous good character.
[54] As was observed by the Court of Appeal in R v Hockley, the appropriate level of discount for previous good character is very much a matter of impression.29 Mallon J in Solicitor-General v Rawat affirmed a statement from the Court of Appeal that defendants who have shown themselves to be “generally law-abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the Courts, even for quite serious offences”.30 This recognises the greater prospects for rehabilitation of an offender who is otherwise a positive contributor to their community and is unlikely to re-offend.31
[55] Mr Disciple has no previous convictions. Several character references referred to his contribution to the Gloriavale Community and spoke to his otherwise law-
26 R v Carruthers, above n 13; R v Webb, above n 13, at [71]; and Solicitor-General v Rawat,
above n 13.
27 Taylor v R [2022] NZCA 70 at [21], citing Britow v R, above n 10, at [10].
28 Britow v R, above n 10, at [10].
29 R v Hockley, above n 13, at [32].
30 Solicitor-General v Rawat, above n 13, at [45] citing R v Howe [1982] 1 NZLR 618 (CA) at 629.
31 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA9.23]. See also R v Findlay [2007] NZCA 553 at [91]; and Davidson v R [2011] NZCA 356 at [16].
abiding life. Mr Zintl stressed that Mr Disciple was a young man, […], when he first offended, but had ceased offending at the […] and had not re-offended over the […].
[56] I accept this offending occurred at a time Mr Disciple lacked maturity and that he has, over the past […], shown himself to law-abiding and a contributing member of his community. He has demonstrated his risk of re-offending is low. Although, this offending was relatively prolonged, my overall impression is that an allowance for previous good character was appropriate. I am mindful that the Judge allowed a credit of 10 per cent in recognition of Mr Disciple’s rehabilitative measures. I allow a further five per cent for previous good character.
Youth
[57] It is well established that youth can be a substantial mitigating factor. Young persons are more prone to make poor and impulsive decisions. Youth might also reflect a greater capacity for rehabilitation. However, as observed by Downs J in a case of historical sexual offending:32
[42] Contrary to popular misconception, a discount for youth is not automatic. It requires the presence of a feature or features referable to the defendant’s age at the time of the offence. For example, the offending may constitute a youthful indiscretion or impulsive act. Or, a young person may be influenced by older offenders to have committed the offence. Sometimes the discount reflects greater rehabilitative prospects, or the potentially harsher effect of prison on an adolescent.
(footnotes omitted)
[58] Mr Disciple first offended when he was […]. He re-offended when aged […]. This offending was not youthful indiscretion, it was not impulsive. Mr Disciple offended against four of the victims at an age that would not generally fall under the umbrella of “youth”. He is also now aged in his 40s. There is no basis of a discount reflecting his ability to rehabilitate as a young person. Furthermore, the Judge already allowed him a discount based on his willingness to rehabilitate.
[59]The Judge did not err in refusing to allow a deduction for youth.
32 R v LB [2020] NZHC 94.
Adjusted sentence
[60] No issue is taken with the 25 per cent guilty plea credit, the 10 per cent credit for rehabilitation and difficulties for family, nor the five per cent discount for remorse. With an increased deduction of 10 per cent for co-operation and of five percent for previous good character, the total allowance is one of 55 per cent. From a starting point of four years imprisonment, the end sentence, rounded down, is one of 21 months imprisonment. That requires the Court to consider whether the sentence should be commuted to one of home detention.
Should the sentence be commuted to home detention?
[61] In support of a sentence of home detention, Mr Zintl referred to Mr Disciple being assessed as a low risk of re-offending, his level of remorse, the consequences for his family of a sentence of imprisonment, his employment opportunities (dairy farmer) and the fact he had, as at the date of the hearing, spent about two and a half months in custody. Realistically, however, Mr Zintl acknowledged that it would be a “big call” for the Court to commute a sentence of imprisonment to home detention for an offender convicted of sexually offending against five victims.
[62] I accept there is no presumption against a sentence of home detention for offending of this nature, however, I am of the clear view that this offending is simply too serious to warrant a sentence of home detention. The short point is that the offending involved multiple victims and repeated offending over a relatively prolonged period. Although I accept that, from a rehabilitative perspective, a sentence of home detention might be seen as appropriate, that factor is outweighed by the need to impose a sentence that both denounces Mr Disciple’s conduct and deters any others.
Conclusion
[63] The appeal against sentence is allowed. The sentence of two years and five months’ imprisonment is quashed and substituted by a sentence of 21 months’ imprisonment.
Suppression appeal
District Court decision
[64] Mr Disciple sought permanent name suppression on the grounds that publication would cause extreme hardship to himself, his family and others in the Gloriavale community, and that undue hardship would be caused to the victims because of the likelihood that they would be identified.
[65] The Judge noted that Mr Zintl, for Mr Disciple, had essentially raised the same arguments for suppression that were raised in Discovery New Zealand Ltd v FB.33 The Judge commented that Mander J’s reasoning for granting name suppression in that case related to the risk of prejudicing the defendants’ fair trial rights because of their distinctive names linking them to the Gloriavale community. The Judge distinguished that case, which considered interim name suppression, and a case where final name suppression was sought post-conviction and sentencing. The Judge also noted that in that case, the connections with Gloriavale were suppressed, whereas those connections are no longer suppressed, meaning those connections are no longer a factor pointing towards extreme hardship.
[66] The Judge considered that members of the Gloriavale community are unlikely to have free access to social media to view social media comments from the public, which would limit the impact of outside ridicule or embarrassment on Mr Disciple when he is in the community. The Crown submitted, and the Judge agreed, that there was a risk that if suppression was granted, it would cast suspicion on other male members and ex-members of the Gloriavale community, which would be unfair and not in the interests of justice.
[67] Regarding the likelihood that the victims would be identified if Mr Disciple’s name was not suppressed, the Judge accepted that the victims were all in some way related to Mr Disciple. However, none of them shared his last name, and none of them have a close relationship with him. Victims Two and Three made statements to the
33 Discovery New Zealand Ltd v FB [2021] NZHC 2903.
police expressing their views as to suppression and were not concerned about being identified if Mr Disciple’s name is published.
[68] The Judge distinguished this case from H (CA300/2012) v R, where pre-trial suppression was in issue.34 In H (CA300/2012) v R, the town where the defendant and victims resided had less than 100 members, whereas the Gloriavale community has approximately 600 members, meaning there are considerable avenues of speculation about potential victims here. The Judge also considered that speculation as to who the victims are was not as significant of a concern given the number of victims in the Gloriavale community that have been uncovered by recent police investigations.
[69] The Judge ordered suppression of the familial connection between Mr Disciple and the victims to mitigate the risk that the victims be identified. The application for permanent name suppression was refused.
[70] Following sentencing and the refusal to grant final suppression of name, the Crown applied for orders suppressing all references within the summary of facts that related to Victims One and Three. That application followed concern expressed by those victims that the publication of details including the sexual acts, and specifically their ages at particular dates, could identify them within the Gloriavale community. They explained to the Police that while some people within the community know about the offending, many do not. They also explained that others would be able to relay the information to those inside the community and use that to identify them as victims. Information in the summary of facts relating to Victims One and Three was suppressed by Judge Garland on 9 August 2022. No issue is taken with that suppression order on appeal.
Principles on appeal
[71] The starting point when considering the suppression of a defendant’s name or the particulars of criminal proceedings is the presumption of open justice.35 The business of the courts should be conducted publicly and any departure from this
34 H (CA300/2012) v R [2012] NZCA 514.
35 Robertson v Police [2015] NZCA 7 at [43]; and D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [9]–[10].
general rule is required to be “only to the extent necessary to serve the ends of justice”.36 The grounds for the making of an order suppressing the identity of a defendant are set out in s 200 of the Criminal Procedure Act 2011 (the Act), which relevantly provides:
200 Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
…
[72] The approach to be taken to suppression involves a two-step inquiry.37 First, the court must determine whether any of the threshold grounds set out in s 200(2) are met. In the absence of the statutory criteria being fulfilled, the court does not have jurisdiction to exercise its discretion. Second, if the court is satisfied that one of the threshold criteria has been met, it must decide whether to exercise its discretion and forbid publication of the defendant’s details.38 It is at this stage that the presumption of open justice must be considered. In order to displace that presumption the balance must clearly favour suppression.39
36 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
37 D (CA443/2015) v Police, above n 35, at [10].
38 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 35, at [40]– [41]; and D (CA443/2015) v Police, above n 35.
39 D (CA443/2015) v Police, above n 35, at [12].
[73] An appeal court is required to undertake its own assessment and form its own opinion as to whether the statutory threshold has been met.40 That evaluation will involve an assessment of fact and degree. While the appellate court must not defer to the lower court’s assessment, it remains incumbent on the appellant to identify error in the court’s decision and satisfy the appeal court that it should reach a different result.41 If satisfied that the statutory criteria has been met, the appeal court’s review of the second step, which involves the exercise of the trial court’s discretion, will be more limited. It must be focussed on whether the lower court, in exercising its discretion: erred in principle; failed to take into account a relevant matter or took into account an irrelevant matter; or was plainly wrong.42
Submissions
Appellant’s submissions
[74] Mr Zintl submitted the Judge erred in finding that publication of Mr Disciple’s name was not likely to cause extreme hardship to Mr Disciple and his family and hinder his rehabilitative prospects, cause undue hardship to the victims, and lead to the identification of the victims, whose identity is suppressed by law. There is very significant overlap between the submissions Mr Zintl has advanced on behalf of Mr Disciple and the submissions he advanced on behalf of another member of the Gloriavale Community convicted of sexually assaulting a child within the community.43 Both suppression applications were dealt with on the same day by Judge Garland.
[75] Mr Zintl submitted the Judge partly based his decision to not grant suppression on the premise that members of the Gloriavale community did not have free access to the internet and therefore would not see media articles and social media comments about Mr Disciple. There was no evidence before the Court supporting this statement. Mr Zintl said this conclusion also overlooked the effect on former family members and friends of Mr Disciple who had left the community. This could easily be reported
40 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
41 Austin, Nichols & Co Inc v Stichting Lodestar, above n 40.
42 Wilson v R [2018] NZHC 1778 at [14], citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[33].
43 R v Hope, above n 24.
back to Mr Disciple and his family. Mr Zintl also submitted the Judge was incorrect to conclude that name suppression would cast suspicion on other male members of the Gloriavale community as there was no evidence to support this conclusion.
[76] He submitted that publication of Mr Disciple’s name, even with the suppression of the familial relationship between Mr Disciple and the victims, would lead to the identification of the victims. He relied on the case of H (CA300/2012) v R, which he also relied on in the District Court.44 He said that the victims were part of Mr Disciple’s family, and he would regularly interact and be seen with them.
[77] Mr Zintl applied to adduce fresh evidence on appeal. This relates to an affidavit of Melody Hope, which describes how Gloriavale members have access to the internet within the community, and from Peter Jameson, that highlights a recent television documentary on Gloriavale.
Respondent’s submissions
[78] Ms Boshier accepted the affidavit of Mr Jameson is fresh evidence and should be admitted. She submitted the evidence from Melody Hope could have been obtained at the time of sentencing and accordingly is not fresh evidence. She accepted it is cogent and credible, but submitted it does not make any material difference to the decision on appeal because the Judge’s finding that Gloriavale members have limited access to the internet was only part of a broader finding that Mr Hope was part of an exclusive community that does not interact extensively with the outside world and supports him.
[79] Ms Boshier cited the decision of Mander J in Discovery New Zealand v FB where Mr Disciple was granted name suppression pending trial, primarily to protect his fair trial rights.45 She noted that Mander J explicitly did not make a finding as to extreme hardship for Mr Disciple in that case, and commented:46
The approach taken to the issue to name suppression in respect of the four members of Gloriavale currently facing active charges in respect of charges
44 H (CA300/2012) v R, above n 34.
45 Discovery New Zealand v FB, above n 33.
46 At [70].
of child sexual abuse should not be conflated with the question of suppression in respect of an individual defendant convicted of such offending. The other defendants’ trials will not take place for some time and consideration of whether publicity relating to one of more of the defendants pleading guilty or whether that will materially add to the prejudicial effect of information already in the public domain will have to be subject of separate assessment. The Court of Appeal’s approach in Standfast is likely to be influential.
[80] Ms Boshier submitted that the threshold of extreme hardship was not met because Mr Disciple failed to identify any particular hardship to himself or his family beyond that ordinarily expected. She accepted that social media does increase the risk of hardship, and also that it is fair to say that the Gloriavale community attracts a high degree of media interest. However, Ms Boshier submitted that this could put fair trial rights at risk, but this is a very different circumstance from permanent name suppression for extreme hardship.
[81] As to the risk of identifying the victims through the publication of Mr Disciple’s name, Ms Boshier submitted this can only concern Victims Two, Four and Five, in the light of the suppression orders made in relation to Victims One and Three. Ms Boshier highlighted that none of the victims asked that Mr Disciple’s name be suppressed to prevent them from being identified. Ms Boshier submitted that because Victims Two, Four and Five no longer live in the community and do not have close familial links to, or share a surname with the appellant, there is no risk of victim identification if Mr Disciple’s name is published.
[82] Even if the grounds for name suppression are made out, Ms Boshier submitted that this Court should not exercise its discretion to allow suppression because publication is in the interests of justice. She submitted the public have an interest in knowing about serious offending against young persons and Mr Disciple should be identified so persons who might associate with him safeguard their families. She further submitted that publication may also encourage other victims to come forward.
Media submissions
[83] Mr Stewart—for Radio New Zealand Ltd, Stuff Ltd and Television New Zealand Ltd—supported and adopted the Crown submissions. He emphasised that on an assessment of the evidence and submissions in relation to hardship,
cumulatively and in context, this case does not reach the very high threshold for extreme hardship.
[84] Mr Stewart further submitted that media articles and social media comments in the public domain that are critical of the Gloriavale Community (even sharply so) do not of themselves create extreme hardship for either Mr Disciple or his family. He states the release of the documentary film adds to the commentary on Gloriavale in the public domain but does not make any material contribution to the hardship matrix for Mr Disciple as an individual. In this sense, Mr Stewart distinguishes the facts in this case from those in X (CA226/2020) v R and DV (CA451/2021) v R, in which there was evidence of comments on social media directed at the defendant personally, these comments contained inaccuracies and abusive content, and there was evidence of psychological harm suffered by both defendants as a result of those social media comments.47
[85] Mr Stewart submitted the risk of identifying the victim has been appropriately addressed by the suppressions as to familial link and the further suppression orders made post-sentencing.
Analysis
[86] Recognising almost identical issues arose in the Hope case, the following analysis and reasoning closely follows my decision in that case.48
Application to adduce fresh evidence
[87] I grant the application to adduce fresh evidence on appeal. Mr Jameson’s affidavit refers to recent media articles and, in particular, a documentary that was broadcast post-sentencing and so could not have been addressed by the appellant in the District Court. I agree it has relevance to the question of suppression. Similarly, I am satisfied the evidence of Ms Hope, whilst clearly available when suppression was considered in the District Court, only assumed relevance given the observation made
47 X (CA226/2020) v R [2020] NZCA 387 at [40]; and DV (CA451/2021) v R [2021] NZCA 700.
48 Hope v R [2022] NZHC 2707.
by the Judge as to the likelihood of the Gloriavale Community having access to the internet and social media.
Suppression
[88] Mr Disciple has sought permanent name suppression on the basis that publication would cause him and his family extreme hardship, and that publication would cause undue hardship to the victims of his offending by identifying them.
[89] The threshold for “extreme hardship” is very high, as detailed by Court of Appeal in Robertson v Police:49
… the phrase “extreme hardship” … connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
[90]The Court said:50
An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences.
[91] A defendant’s cultural and religious beliefs, the characteristics of their community, and their place within it, are all considerations that form part of the assessment of whether that person will suffer extreme hardship from publication.51
[92] Mr Zintl submitted Mr Disciple would experience extreme hardship if his name was published because of the uniqueness of his name, the religious group he belongs to, the likelihood of unbalanced and prejudicial media articles and social media comments, the fact that he has a wife and 10 children, and the fact that his future rehabilitation and reintegration would be hampered by publication.
49 Robertson v Police, above n 35, at [48] (footnotes omitted).
50 At [49].
51 Beshara v R [2018] NZCA 66 at [7].
[93] The Court of Appeal in X (CA226/2020) v R made the following statements about social media and “cancel culture”:52
[49] But commentary about a case or about a defendant on social media is a very different matter. There can be no reasonable expectation that such reportage will be fair or accurate. And there is no realistic way of controlling its content or its spread, particularly in a high profile and politically controversial case. In our view this is a problem with which the Courts have yet fully to grapple, particularly in the context of suppression under s 200(2)(a), where a defendant is young and, so, especially vulnerable to trolling, doxing, and internet vigilantism.
…
[51] … In the context of the proposed reforms, the Law Commission was aware of, and discussed the difficulties posed by, social media in terms of maintaining and respecting suppression orders. But no consideration was (or could have been) given to the universality and toxicity of social media’s current form. Nor could consideration have been given to the even more recent phenomenon of “cancel” or “call-out” culture, in which social media is weaponised against those deemed to have transgressed the norms of any online group (or mob). And there can be no doubt that this new culture of public shaming has the potential to be mercilessly inflicted on young people who become embroiled in the criminal justice system — particularly in the context of alleged sexual offending — however briefly, and whatever the legal outcome of the case.
(footnotes omitted)
[94] In his dissenting comments in DV (CA451/2021) v R, Downs J warned against X (CA226/2020) v R being applied broadly.53 He considered that would present a risk of X (CA226/2020) v R becoming a “Trojan Horse in relation to name suppression, thereby allowing suppression when that would not otherwise be justified”54. Downs J emphasised that, although people publish outrageous things on social media, people are well aware that social media is a platform for such comments. He warned against the vocal minority on social media being allowed to overwhelm the legitimate public interest in the publication of the defendant’s name.55
[95] I do not consider the facts of this case give rise to the concerns voiced by the Court of Appeal in X (CA226/2020) v R. That case concerned a young man who had assaulted others at a camp. He was originally charged with indecent assault, but the
52 X (CA226/2020) v R, above n 47.
53 DV (CA451/2021) v R, above n 47, at [77]–[78].
54 At [78].
55 At [78].
charge was subsequently lowered. He was granted a discharge without conviction on two common assault charges. The Court of Appeal was concerned about his youth and the effect social media would have on him in light of his age and unique name. These factors meant the offending would follow him for the rest of his life, and therefore likely impact his ability to find employment. The Court of Appeal was also concerned about “cancel culture” in the sense that X had received a discharge without conviction, and it was therefore possible that people on social media would attempt to bring him to justice in the view that the courts had not. The Court of Appeal pointed to many specific social media comments that were inaccurate and prejudicial about X.
[96] Mr Disciple is now aged 41 years, so the concerns about the impacts of social media on a young person are not relevant. He intends to return to the Gloriavale community, where he is supported, and so the long-term impacts of social media on him are also lesser. Mr Zintl has provided evidence of comments on social media about Gloriavale related to the sexual offending that has been written about in the media. These comments call Gloriavale a “cult” and demand that it is shut down. Putting to one side the issue of whether these would reach him and his family, even if they did, they show vitriol towards the Gloriavale community generally, and not towards Mr Disciple personally. Furthermore, as detailed by Mr Disciple’s wife’s comments to the s 27 report writer, many in the Gloriavale community already know about Mr Disciple’s offending. This is because it was dealt with internally in the community some time ago, and also because Mr Disciple lived separately to his family while he has been on bail. Mrs Disciple said publication will add “stress” to the Gloriavale community. I accept it is almost certain to do so. However, this falls well short of the standard of extreme hardship, especially given this Court has not been provided with particular details about how publication would specifically affect Mr Disciple and his family.
[97] I do not consider there is anything suggesting inaccurate or unfairly prejudicial comments specific to Mr Disciple and his family (rather than the community in general) will be published. Even with the heightened interest this case may receive, the consequences of social media comments would not likely go beyond that ordinarily expected in a case where a defendant’s name is published in relation to criminal
offending. As submitted by Mr Stewart, the Court must exercise care to distinguish responsible media from the social media “keyboard warriors”.
[98] The other grounds raised as amounting to extreme hardship have not been particularised in any detail. I accept that Mr Disciple has a unique name, and that might add to the hardship he suffers as a consequence of publication. There have not been specific reasons advanced, as there were in X (CA226/2020) v R, as to why the uniqueness of his name contributes to publication causing extreme hardship. The harm to Mr Disciple’s wife and family, as traversed in the s 27 report, is caused by Mr Disciple’s offending leading to a sentence of imprisonment, not due to publication. There has been no evidence or substantiated submission that publication would affect Mr Disciple’s ability to rehabilitate or reintegrate into the community. In fact, it appears the Gloriavale community is very supportive of Mr Disciple and would welcome him back into the community.
[99] Mr Disciple was one of the defendants before Mander J in Discovery New Zealand Ltd v FB.56 Mr Zintl was also his counsel in that case, and advanced very similar arguments to the ones he makes in this appeal. In that case, Mander J considered the ground of extreme hardship was not made out because there was no evidence of the particular hardship the defendants would face outside of the effect of publication on their fair trial rights.57 As Mr Disciple has been convicted and sentenced, his fair trial rights are no longer a concern. It is not suggested that the publication of Mr Disciple’s name will prejudice the fair trial rights of other members of Gloriavale facing trial. No evidence has been provided, or persuasive submission advanced, of any particular extreme hardship to Mr Disciple or his family beyond that which would normally stem from publication of a defendant’s name.
[100] It follows that I do not consider any of the grounds raised by Mr Zintl, either separately or cumulatively, amount to extreme hardship.
[101] Mr Disciple also raised the ground of undue hardship to the victims, through their identification, as justifying the granting of permanent name suppression for
56 Discovery New Zealand v FB, above n 33, at [27].
57 At [27].
Mr Disciple. The identification of complainants under s 200(2)(f) can justify the granting of name suppression for a defendant.
[102] As he did in Discovery New Zealand v FB, Mr Zintl relied heavily on the case of H (CA300/2012) v R, which was also considered by Judge Garland.58 That case concerned a man charged with sexually abusing four of his step-grandchildren and his stepdaughter. He lived in a small, rural town of less than 100 people. The complainants were known to visit him and be part of the family, although they did not share the same surname. The Court of Appeal suppressed the name of the offender, as it held that the risk of the identification of the victims could not be mitigated by suppressing the nature of the offending, because that would just lead to speculation and inevitably identification in such a small town.
[103] In Discovery New Zealand v FB, it was not necessary for Mander J to fully consider the risk of identifying the victims as justification for granting name suppression. The Court did not have enough information at that point to make a considered decision. Mander J did say, however:
[39] The Gloriavale community is relatively small and obviously tight- knit. Both sides have sought to use the approximate figure of 300 children who reside within the community to support their respective views as to whether identification of the defendants would lead to the identification of the complainants. I accept that the risk of exposing the identity of adult complainants who have distanced themselves from the community may be less of a concern, but even then I do not consider at this time that it can be completely put to one side. Presently, there appears to be a genuine risk of identification, at least as it related to those complainants who still reside at Gloriavale and who are likely to be known to be associated with a named defendant or have a familial relationship with that person.
[40] To that extent the circumstances are not dissimilar to H v R. Gloriavale can arguably be viewed as a larger community in which everyone lives and works together, unlike a small town where family members of a defendant can easily be singled out and identified as the likely complainants. Equally, however, in a closed community most members are likely to be privy to the individual circumstances of each defendant so as to potentially identify young relatives or children within a particular defendant’s orbit.
(footnote omitted)
58 H (CA300/2012) v R, above n 34.
[104] The familial connections and the summary of facts for the victims who still reside in Gloriavale are the subject of suppression orders. Victims One and Three did not request Mr Disciple’s name be suppressed, but rather the summary of facts due to a concern they could be identified based on their age at the time of the offending.
[105] This threshold ground must therefore only be considered for those who live outside of Gloriavale. As the Judge observed, none of the victims requested Mr Disciple have name suppression.59 Mr Disciple does not have a close relationship with the victims, which distinguishes this case from H (CA300/2012) v R, where the victims were heavily linked to the offender in their community. He does not share a last name with them. They are now adults. In those circumstances, it is unlikely that they will be identified through Mr Disciple’s name being published, especially considering the suppression orders already in place.
[106] Mr Disciple has failed to establish that the threshold for granting name suppression under s 200(2) of the Act has been established. It is therefore unnecessary to consider the discretion to grant name suppression, but I do note the importance of the principle of open justice, particularly in relation to sexual offending against children and young people.
Conclusion
[107] The appeal against the refusal to grant permanent name suppression is dismissed.
[108] I order that the interim suppression order is to remain in place until 5 pm on 1 November 2022 to allow time for consideration of a further appeal.
...................................................
Eaton J
59 R v Disciple, above n 5, at [93].
Solicitors:
Crown Solicitor’s Office, Christchurch
Copy to:
Marcus Zintl, Barrister, Blenheim Robert Stewart for Stuff Limited
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