F v R

Case [2020] NZHC 1653 10 July 2020

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-199

[2020] NZHC 1653

BETWEEN
F

Appellant

AND

THE QUEEN

Respondent

Hearing: 23 June 2020 (and memorandum filed 24 June 2020)

Appearances:

A Bloem for the Appellant E Smith for the Respondent

Judgment:

10 July 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 10 July 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mrs A Bloem, Barrister, Auckland
Ms E Smith, Meredith Connell, Office of the Crown Solicitor, Auckland

F v R [2020] NZHC 1653 [10 July 2020]

[1] The appellant appeals against a decision of Judge N R Dawson in the District Court at Auckland declining permanent name suppression.1 The appellant had been granted interim name suppression on 5 April 2019.

[2]The appellant pleaded guilty to the following charges:

(a)one representative charge of doing an indecent act upon a young person aged 12 to 16;2

(b)two charges of sexual connection with a young person aged 12 to 16;3 and

(c)two representative charges of sexual connection with a young person aged 12 to 16.4

[3] On 5 June 2020, he was sentenced by Judge Dawson to two years and four months’ imprisonment.

[4] At the time of sentencing, the appellant applied for permanent name suppression on the basis that publication was likely to endanger the appellant’s safety due to his mental health diagnoses and increased thoughts of suicidal intention. Reference was also made to his daughter’s risk of self-harm and suicide, and his wife’s potential loss of employment.

[5] Although the Judge declined to grant the appellant permanent name suppression, he granted the appellant’s wife and children name suppression.

[6] The appellant appeals on the ground that the Judge erred in the exercise of his discretion to refuse the appellant permanent name suppression.

1      R v F [2020] NZDC 10678.
2      Crimes Act 1961, s 134(3).
3      Section 134(1).
4      Section 134(1).

Facts of the offending

[7] The appellant was a teacher who specialised in teaching English to international students. The victim, an international student who moved to New Zealand in 2014 to complete her schooling, was the appellant’s pupil. He was 38 and she was 15 years’ old at the time of the offending.

[8] The offending began when he sent the victim a friend request on Facebook prior to Christmas in 2014. Once she accepted, the two regularly conversed and the appellant asked if the victim had a boyfriend. He made multiple FaceTime calls, which she initially ignored. When she did answer, the appellant told her she was “cute”, “pretty” and “smart”. Around Christmas time, the appellant told the victim he loved her and wanted her to be his girlfriend. The victim told the appellant she was only 15 years’ old. While that…

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.

Continue reading F v R

Details

AGLC: F v R [2020] NZHC 1653
Case: [2020] NZHC 1653
Decision Date: 10 July 2020

CaseChat Overview and Summary

In the case of F v R, the appellant, a former teacher, appeals the District Court's decision to deny him permanent name suppression. The appellant was convicted of engaging in sexual activities with a 15-year-old student and sentenced to two years and four months' imprisonment. He argued that publication of his name would endanger his safety due to his mental health issues and increased suicidal thoughts, as well as cause extreme hardship to his wife and daughter. The District Court declined to grant permanent name suppression, but did grant name suppression to the appellant's wife and children.

The legal issue in this case is whether the High Court should grant the appellant permanent name suppression. The High Court first considered the threshold grounds for suppression, which include endangering the safety of any person or causing extreme hardship to the person charged or any person connected with that person. The Court found that there was a real possibility that publication would endanger the appellant's safety due to his history of mental health issues and suicidal ideation, and that it would likely cause his daughter extreme hardship. The Court also found that publication would likely lead to the identification of the appellant's wife and children, who already have name suppression.

In considering the exercise of discretion, the Court weighed the competing interests of the appellant and the public, including the principle of open justice, the seriousness of the offending, and the views of the victim. The Court found that the balance clearly favoured suppression in this case, given the appellant's mental health issues, the potential for identifying the appellant's family members, and the devastating consequences of publication for the appellant's daughter. The Court allowed the appeal and granted the appellant permanent name suppression.

Orders