Gonzalez v Police
[2020] NZHC 2810
•28 October 2020
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE VICTIM IS PROHIBITED BY S 39 OF THE HARASSMENT ACT 1997. SEE
SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 39 OF THE HARASSMENT ACT 1997: SEE PARAGRAPH [105].
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2020-418-000002
[2020] NZHC 2810
BETWEEN OSVALDO ANTONIO REYES GONZALEZ
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 October 2020 Appearances:
K I Jefferies for the Appellant A M Harvey for the Respondent
Judgment:
28 October 2020
JUDGMENT OF NATION J
[1] The appellant, Mr Gonzalez, pleaded guilty to a charge of criminal harassment in respect of a person he had previously been in a relationship with for approximately one year. He appeals against a Judge’s refusal of a discharge without conviction and the refusal to suppress his name.1
1 Police v Gonzalez [2020] NZDC 15064.
GONZALEZ v POLICE [2020] NZHC 2810 [28 October 2020]
Background
[2] Mr Gonzalez’ one year relationship with the victim was ended by her in April 2019.
[3] The summary of facts stated that, after this, Mr Gonzalez engaged in persistent and unwanted electronic harassment of the victim in the form of emails and text messages.
[4] On 11 September 2019, he was warned for criminal harassment by a constable. The summary said he was served with papers clearly defining what amounted to harassment and advised to have no contact with the victim “or he may be committing harassment and could be charged”.
[5] He was charged in the District Court at Greymouth on 22 January 2020 under s 8(1)(a) Harassment Act 1997 that between 8 October 2019 and 25 December 2019 at Dunedin he harassed the victim by regular unwanted electronic contact in the form of emails and text messages, having already persistently harassed the victim by email and text messaging between April 2019 and July 2019, intending that harassment to cause the victim to fear for her safety.
[6]Section 6 Harassment Act states:
6 Object
(1) The object of this Act is to provide greater protection to victims of harassment by—
(a)recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and
(b)ensuring that there is adequate legal protection for all victims of harassment.
(2) This Act aims to achieve its object by—
(a)making the most serious types of harassment criminal offences:
(b)empowering the court to make orders to protect victims of harassment who are not covered by family violence legislation:
(c)providing effective sanctions for breaches of the criminal and civil law relating to harassment.
(3) Any court which, or any person who, exercises any power conferred by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).
[7]Section 3(1) states:
3 Meaning of harassment
(1) For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
[8]Safety in relation to any person includes that person’s mental wellbeing.2
[9]Section 8 states:
8 Criminal harassment
(1) Every person commits an offence who harasses another person in any case where—
(a)the first-mentioned person intends that harassment to cause that other person to fear for—
(i)that other person’s safety; or
(ii)the safety of any person with whom that other person is in a family relationship; or
(b)the first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—
(i) that other person’s safety; or
(ii) the safety of any person with whom that other person is in a family relationship.
(2) Every person who commits an offence against this section is liable, on conviction, to imprisonment for a term not exceeding 2 years.
2 Harassment Act 1997, s 2 definition of “safety”.
[10] Mr Gonzalez was charged with criminal harassment in terms of s 8(1)(a)(i). That meant Mr Gonzalez was charged with offending through intending his contact with the victim to cause her to fear for her safety. In this case, safety was with reference to her mental wellbeing.
[11] Had Mr Gonzalez been charged under s 8(1)(b)(i), he would have offended if he had harassed the victim knowing this was likely to cause her to reasonably fear for her mental wellbeing, even if that was not what he intended.
[12] The charge also referred to Mr Gonzalez having harassed the victim between April and July 2019. The summary of facts said Mr Gonzalez had engaged in persistent unwanted electronic harassment of the victim in the form of emails and text messages after the relationship ended.
[13] On the Court file was a victim impact statement dated February 2020. It described the way in which Mr Gonzalez’ contact had caused the victim intense anxiety and the way her life was affected by that anxiety. […]
[14] The summary of facts did not include any information as to what may have been said to Mr Gonzalez, either by the victim or the Police, to ensure he was aware that if he continued to contact her, as he had been doing, that would cause her real distress.
[15] Mr Gonzalez appeared in Court on 22 January 2020. He was remanded on bail on conditions that ensured he would have no contact with the victim. On 12 February 2020, he entered a plea of not guilty. On 12 March 2020, he pleaded guilty but indicated he would be applying for a discharge without conviction. He was granted interim suppression of name. He was sentenced and his application for a discharge was ultimately heard on 31 July 2020.
The District Court decision
[16] The Judge said, in considering whether a discharge should be granted, he first had to assess the gravity of the offending. In doing that, he considered it relevant that the maximum sentence for the offending was two years’ imprisonment. Secondly, he
considered that the charge was of harassment. He deliberately did not read out the contents of the communications in open court. He summarised them as showing:
[5] … attempts to contact the employer and various professions of affection for the complainant. There is also one where there is a suggestion you have moved on. There is another that talks about your being dissatisfied with another relationship she was in. There is another where you say you have been told not to contact her by the police, but you were contacting to let her know that you would be at a certain place in a city that she was residing in, and you wanted to let her know you were going to be there just in case you ran into each other.
[6] That is not the exact wording you have used in the communications, it is just giving the flavour of the communications, and while on an individual level, those communications could be said to be innocuous, the general picture or flavour I get from them is being communications from someone who is infatuated and is, to an extent, trying to manipulate the situation to try to maintain contact with someone who had made it very clear that they did not want any further contact. This is a situation, as I see it, that the Harassment Act is clearly and squarely designed for in terms of protecting the complainant in this case.
[17] The Judge then referred to the victim’s impact statement. He said this was a case of persistent contact. He referred to the potential impact of persistent contact with complainants, in a general sense, to be very significant. He said “that is certainly the intent set out in the victim impact statement”. He considered he was entitled to take that effect into account when assessing the gravity of the offending. As to the gravity of the offending, the Judge concluded:
[8] In my view, this is not at the low end of the scale in terms of offending under the Harassment Act. As I have said, you have been charged with harassment. That carries a maximum sentence of two years. I assess the gravity, taking into account all of those factors, at the middle of the range, moderate.
[18] The Judge then said he had to consider the consequences of a conviction upon Mr Gonzalez. He referred to his 10 years as a lay member of the New Zealand Health Practitioners Disciplinary Tribunal. He said, with the benefit of that background, he would be “extremely surprised” if Mr Gonzalez would face any disciplinary outcome that might involve suspension or cancellation of his registration. He said, on the material before him, there was no question around the competency of Mr Gonzalez’ work as a professional so there would not be any concern in that regard in terms of professional discipline. He said there was no suggestion that the harassment had taken place in the context of a practitioner-patient relationship. Next, he noted that
professional discipline was not an appropriate context for dealing with issues arising from personal relationships. He considered that, while there might be consequences that would flow in terms of professional discipline, his assessment of the degree of that risk and the likely outcome was “relatively minimal given the particular facts of this case”.
[19] The Judge next considered as a potential consequence the loss of Mr Gonzalez’ employment. As to that, the Judge noted the employer’s concern seemed to relate to potential difficulties that might arise from publication as to the conviction, rather than any concern over what Mr Gonzalez had actually done.
[20] He considered that potential consequence was more appropriately considered in terms of the application for name suppression.
[21] The Judge said, based on his personal experience coming from a small centre and employing lawyers, and given the comments that were made around Mr Gonzalez being “a very competent practitioner” and the difficulties of finding a competent practitioner in limited fields, if the Judge were the employer, he would not let Mr Gonzalez go.
[22] The Judge then said he had to stand back and consider proportionality and whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending. At that point, he took into account the impact of granting the application on the victim and the “sense that the general public may well have in seeing what has resulted in this case”. He suggested that granting the application “would send a clear signal to the complainant and the wider community that there is no accountability in this case, given the nature of it”. Taking all those factors into account, he considered a conviction would not be out of all proportion to the gravity of the offending.
[23] As to suppression, the Judge considered, applying “the usual rules around name suppression”, name suppression was not appropriate. However, in the interests of protecting the victim, the Judge limited the information that could be published to Mr Gonzalez’ name, the charge and the outcome. He said that, in limiting publication
of information in that way, he was protecting the interests of the victim but said such suppression should also “mitigate” the views of Mr Gonzalez’ employer who he suggested might take a different view as to what the employer had indicated would be concerns arising out of publication.
[24]The Judge imposed a fine of $500.
[25]The Police must then have applied for a protection order. The Judge said:
There are some circumstances that must be satisfied for that to apply. I have asked Mr Jefferies [Mr Gonzalez’ counsel]. There is no opposition to the protection order being made and it is made accordingly.
[26]The Judge granted interim suppression pending an appeal.
Approach on appeal
[27] An appeal against a refusal to grant a discharge is an appeal against conviction and sentence.3 The proportionality test under s 107 is a question of fact requiring a judicial assessment.4 If an appellant can show the first instance decision was wrong, evaluation of the s 107 factors is considered afresh.5
Submissions
[28] For Mr Gonzalez, Mr Jefferies in his written submissions said Mr Gonzalez is a 56 year old registered dentist who, at the time, was employed as a dentist at a dental practice in Greymouth. He is now unemployed and living in Ashburton. He submitted that, although not wishing to undermine any impact the offending may have had on the victim, the offending was at “the very low end of the scale” as far as criminal offending is concerned. He suggested discharges without conviction have been routinely granted for far more serious conduct, including where there has been physical assault of varying degrees.
3 Jackson v R [2016] NZCA 627, [2016] 28 CRNZ 144 at [8]-[9] and [16].
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
5 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[29] Mr Jefferies submitted the Judge erred in placing undue emphasis on the impact of the offending and perhaps failing to recognise the offending did not involve threats, intimidation or sexual references, but was in the context of a clumsy attempt to save a relationship.
[30] In assessing the consequences of a conviction, Mr Jefferies submitted the Judge was plainly wrong in contemplating the employer should reconsider whether or not Mr Gonzalez’ employment would be terminated if there was a conviction and had erred in pre-judging what might be the consequence of a disciplinary process with the Dental Council. Counsel submitted the Judge failed to follow the approach which the Court of Appeal has said has to be taken in assessing consequences. In DC (CA47/2013) v R, the Court of Appeal said:6
[43] With respect, we consider that the Judge’s approach was wrong. The sentencing Judge must decide, not to any legal standard of proof, what the consequences of the offending will be. 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.7
[31] Counsel submitted the Judge should also have recognised that, although Mr Gonzalez is academically well-qualified, at his age, employment in his chosen profession might be difficult to obtain and it would be disappointing for both him and the wider public that advantage could not be taken of his qualification and skills. He said Mr Gonzalez was remorseful, had sought voluntary counselling and had agreed to a protection order being made against him. He had engaged in a non-violence programme which is mandatory when such an order is made, and was cooperative with the Police.
[32] Mr Jefferies submitted that, following the three-stage approach in considering whether there should be a discharge as set out in Blythe v R,8 the Judge should have been satisfied that the consequences of conviction would be out of all proportion to
6 DC (CA47/2013) v R [2013] NZCA 255.
7 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and Currie v Police HC Auckland CRI-2008- 404-307, 27 May 2009 at [49].
8 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
the gravity of the offence so that a discharge without conviction should have been the appropriate outcome.
[33] For the Police, Mr Harvey submitted the Judge had followed the accepted method for considering a discharge application. He submitted the Judge had been correct to find the offending was moderately serious. He submitted the Judge had been correct to assess the consequences of a conviction by focusing on Mr Gonzalez’ employment rather than the potential outcome of a disciplinary process through the Dental Council. That submission was made on the basis it should be for the professional body to consider the gravity of the offending and whether there should be a censure as recognised or other consequences, as he submitted had been the approach taken by the High Court in other cases.9
[34] Mr Harvey did however say in submissions before me that it was “hard to see why the Board would be troubled by a conviction for this sort of offending”.
[35] Mr Harvey submitted that, on the information provided from Mr Gonzalez’ employer, it was open to the Judge to find that loss of employment was not a likely consequence of conviction but of publication as to the convictions, and that consequence was better considered in determining whether a potential loss of employment satisfied the test of extreme hardship that would have justified an order for suppression of his name.
[36] Mr Harvey also noted that a protection order had been made under s 123B Sentencing Act 2002. A prerequisite for such an order is that a conviction is entered for a family violence offence. If a discharge were to be granted on appeal, the protection order would also need to be set aside.
Discussion
[37] I consider there was an error in the Judge’s assessment of the seriousness of the offending. This may have been partly caused by the way the case was put before him.
9 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011;
Blythe, above n 8; and Daleszak v Police [2015] NZHC 1853.
The charge and associated communications
[38] Mr Gonzalez had pleaded guilty to a charge that specifically said he had intended his communications with the victim between 8 October 2019 and 25 December 2019 to cause her to fear for her wellbeing. […].
[39] The Harassment Act recognises the way in which communications or behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context. The Act is intended to provide protection for those who are the victims of unwanted communications and contact.
[40] One way the Act provides protection for a person who is the victim of harassment is through the making of a restraining order. A court can order a person not to do any act or threaten to do any act to the person for whom the protection is made.10 If there were to be a breach of such an order, the person committing the breach would commit an offence and be liable, on conviction, to imprisonment for a term not exceeding six months or a fine not exceeding $5,000.11 Someone who continued to breach restraining orders could become liable, on conviction, to imprisonment for a term not exceeding two years.12
[41] In considering a criminal charge, the Court had to be guided by the Act’s object of “making the most serious types of harassment criminal offences”.13
[42] Crucially, whether a criminal offence had been committed depended not just on the effect of the harassment on the victim but also whether Mr Gonzalez, in his actions, either intended the victim to fear for her safety or wellbeing14 or knew that his harassment was likely to cause the victim to reasonably fear for her safety or wellbeing.15
10 Sections 16 and 19.
11 Section 25(2).
12 Section 25(3).
13 Section 6(2)(a).
14 Section 8(1)(a)(i).
15 Section 8(1)(b)(i).
[43] Here, Mr Gonzalez pleaded guilty to the charge of harassment on the basis he had intended his actions to cause the victim to fear for her wellbeing. There was however no information in the summary of facts to indicate he had such an intention, had acknowledged he had such an intention or to any facts consistent with him having such an intention.
[44] The charge was that Mr Gonzalez had harassed the victim between 8 October 2019 and 25 December 2019 through regular unwanted electronic contact. Over that time, the communications were reasonably sporadic but were a sequel to earlier more frequent contact.
[45] […]
[46] It is apparent from these earlier emails that the victim had blocked email communication and was not responding to the emails or messages Mr Gonzalez had sent to her. It is also apparent, when Mr Gonzalez was trying to make contact with her, that he knew she was blocking such communications. Even before 11 September 2019, a Police constable had told him on several occasions he must stop trying to communicate with the victim as he had been. He must thus have known she did not want him to be communicating with her.
[47] […]
[48] Also on 11 September 2019, the same Police constable served Mr Gonzalez with papers clearly outlining that his communications amounted to criminal harassment and attaching the relevant provisions of the Harassment Act. The notice warned Mr Gonzalez that, if he continued to communicate with the victim in this way, he may be charged with criminal harassment.
[49] […]
[50] […]
[51] […]
[52] […]
[53] There was nothing in the specific communications put before the Judge to indicate Mr Gonzalez’ intention had been to cause the victim grief. Indeed, the communications were to the contrary. Neither the Judge nor Mr Gonzalez had the benefit of submissions from Mr Gonzalez’ counsel as to this. Mr Jefferies had not represented Mr Gonzalez when he pleaded guilty. Mr Jefferies told me that, at the time of the sentencing, he had not seen any of the messages the District Court Judge was referring to.
[54] It troubled me that Mr Gonzalez had pleaded guilty to a charge, pursuant to s 8(1)(a)(i), which appeared at odds with both the summary of facts and the evidence of messaging provided to the Judge. He may well have been willing to accept he had committed an offence in terms of s 8(1)(b)(i). The potential penalty for such an offence would have remained the same. However, Mr Gonzalez pleaded guilty to an offence under s 8(1)(a)(i). He had legal representation at the time he entered his guilty plea. It is also apparent from the Court file that, by that time, the Police had provided disclosure of relevant documents so he and his then lawyer should have been able to consider the communications that had taken place.
[55] Nevertheless, on the basis of the information before the Court, I consider the evidence was not such to justify a conviction on a charge under s 8(1)(a)(i) Harassment Act. The conviction should have been a charge framed in terms of ss 8(1)(b)(i) and 8(2). It is on that basis I consider whether Mr Gonzalez should have been discharged without conviction.
Gravity of the offending
[56] Mr Gonzalez did attempt to communicate with the victim after being warned not to do so. At least some of his attempted communications were in a form which she was able to block and did block. She therefore had the ability to reduce the impact of them. Nevertheless, she was undoubtedly caused considerable distress through his attempting to communicate with her as he did. She did not want any contact at all and there should have been none of this communication. However, it was not of a frequency or intensity as to constitute moderate or serious offending of this nature.
[57] In none of the specific contact that occurred did Mr Gonzalez threaten to have physical contact with the victim. There was no indication he would bring about such contact. Such contact, as he had, indicated she was free to reject his continuing romantic interest in her. He did communicate with a work association that she was potentially interested in but, in doing so and in conveying the communications he had to her, he left it to her as to how, if at all, she would make use of those communications and indicated she could do so without his being further involved.
[58] His communications about Christmas indicated he was still thinking of her in a way she did not want or welcome but, at the same time, she knew he would be in another country.
[59] Although Mr Gonzalez did not heed the warning not to communicate with the victim at all, following his being charged with criminal harassment on 22 January 2020, as required by the conditions of bail, he made no further attempt to communicate with her.
[60] At the time of Mr Gonzalez’ sentencing, the Judge had confirmation that Mr Gonzalez had sought medical assistance and engaged in counselling to help find strategies to deal with his distress at the situation he had been in and to recognise the decisions which had led to him facing prosecution.
[61] The harassment which occurred here and which was the subject of the specific charge brought against Mr Gonzalez was certainly a marked contrast to the offending in Moss v Police.16 There, an appellant had been served with a harassment warning letter listing the types of behaviour he was not to engage in. After that, he had messaged the complainant several times offering her a ride home from university, waited at her bus stop after she had declined those offers, ignored her telling him to leave and had entered her home. He then made 70 phone calls to her in one evening. After appearing in Court for that offending, he breached a condition of bail that he not have contact with her, by sending her approximately 300 text messages and making 120 phone calls over a period of nearly two months. He subsequently went to her home and entered it without consent, staying there after multiple pleas from her that
16 Moss v Police [2020] NZHC 1065.
he leave. A few weeks later he approached her in a shop. The sentencing Judge considered the offending was in the low to moderate range of gravity.
[62] On appeal against the refusal of a discharge, Gordon J said the Judge had erred in not taking account of the fact that “the offence itself carries a maximum penalty of two years’ imprisonment. In the overall scheme of criminal offences it is at the lower end.”17 Gordon J then considered mitigating factors both of the offending and the appellant. In relation to the offending, the Judge noted it was causally linked to the appellant’s mental illness and emotional breakdown, which reduced his culpability. She had regard to his cooperation with the Police, early guilty pleas, genuine remorse and the particular steps he had taken to reduce the risk of reoffending through obtaining treatment from a psychiatrist, having counselling and completing an appropriate programme. Taking those matters into account, Gordon J considered the offending overall could properly be classified as being of low seriousness. She considered the Judge to have erred in finding it was low to moderate.
[63] In the present case, at the conclusion of the Judge’s sentencing remarks, with the agreement of Mr Gonzalez, the Judge made a protection order in favour of the victim. It appears from the sentencing remarks that this would have happened without the opportunity for Mr Gonzalez to have any detailed discussion with his counsel as to whether the grounds for the making of such an order had been made out.
[64] A protection order may be made at sentencing when an offender is convicted of a family violence offence and the court is satisfied such an order is necessary for the protection of the victim of that offence.18 A family violence offence includes harassment of a person with whom the offender has been in a family relationship.19
[65] Mr Jefferies explained that Mr Gonzalez agreed to the making of a protection order because he (and presumably his counsel) considered he would, in some way, get credit for that, albeit the sentencing had been completed at the time the Police asked for the making of such an order.
17 At [60].
18 Sentencing Act 2002, s 123B.
19 Sentencing Act, s 123A definition of “family violence offence”; and Family Violence Act 2018, ss 9(1)(b), 9(2)(c) and 11(1)(b).
[66] I do give Mr Gonzalez credit for the fact he agreed to the making of a protection order and thus accepted the obligation to attend an appropriate counselling programme to reduce the risk of any future harassment of the victim. Consistent with Mr Jefferies’ explanation, the Court does recognise there are occasions when those who are subject to applications for a protection order choose to disengage from post-relationship conflict and to demonstrate that choice to the other partner by not contesting the need for a protection order, even when the need for that order might be disputed. In this case, through the making of the protection order, the victim should have been further assured that Mr Gonzalez would be unlikely to try to make contact with her again.
[67] The Judge was acutely aware of the distress the victim had suffered through the continuing contact and the intensity of her fear that this unwanted communication would continue. The particular harm to this victim had to be taken into account. I also have regard to it in assessing the seriousness of what happened but, in assessing the seriousness of Mr Gonzalez’ conduct as a criminal offence, the Judge needed to consider with care the actual conduct Mr Gonzalez had admitted. Assessing matters in that way, I consider his offending was significantly lower in seriousness than the District Court Judge did in deciding whether a discharge was appropriate.
Consequences of conviction
[68] The next step is to decide what the consequences of conviction will be, bearing in mind I do not have to be satisfied that the direct and indirect consequences will inevitably or probably occur. It is sufficient if I am satisfied there is a real and appreciable risk of such consequences.
[69] In the District Court and before me, Mr Gonzalez referred first to the potential for him to face some sanction from the Dental Council for his conduct in relation to his admitted offence. In his affidavit in support of his application for a discharge, Mr Gonzalez said, if convicted, he would be subject to a significant disciplinary process that would involve being reported to the Dental Council who would then be required, under the Health Practitioners Competence Assurance Act 2003, to appoint a Professional Conduct Committee (PCC) to investigate the matter. He says this could
result in his suspension or striking off as a dentist or he could be fined which, in any event, would create difficulties for his future employment as a dentist.
[70] Attached to Mr Gonzalez’ affidavit was a letter to him from the Dental Council dated 10 June 2020. It is apparent from that letter Mr Gonzalez has already advised the Council that he has pleaded guilty to a charge of criminal harassment. The entering of a conviction will thus not alter the fact that they have become aware of the charge to which he has pleaded guilty and thus may enquire further into what happened, whether or not he is discharged. It is also apparent from the Council’s response to his notification of the guilty plea that his conduct would not necessarily have to be the subject of investigation by a PCC. The Council advised, in accordance with pt 4 Health Practitioners Competence Assurance Act 2003 (“Complaints and discipline”), where a practitioner has been convicted of an offence, the Council must, as soon as reasonably practicable, refer the practitioner to a PCC or make an order requiring the practitioner to undergo or attend a form of examination, treatment, counselling or therapy.
[71] It is clear from the provisions of the Health Practitioners Competence Assurance Act that, if convicted and if the Council were to refer the matter to a PCC, Mr Gonzalez could, theoretically, be at risk of suspension, although there is a significant threshold that would have to be met for such a suspension to occur.20
[72] Following investigation, a PCC could have to make recommendations which might ultimately put Mr Gonzalez’ ability to carry on his profession at risk, but they could also arrive at recommendations or determinations which would avoid this, for instance a recommendation that he be counselled by the Dental Council21 or that no further steps be taken under the Act in relation to the matter.22
[73] It is not for a court to determine how a practitioner’s conduct should be treated by the professional body to which he belongs, particularly so where that body has particular responsibilities in terms of relevant legislation. It was however clear, from
20 Section 79.
21 Section 80(2)(e).
22 Section 80(3)(a).
the response Mr Gonzalez received from the Council in its letter of 10 June 2020, that the Council will want to see a copy of court decisions relating to the matter before deciding whether to refer his conduct and conviction to a PCC. Here, the District Court Judge has, for reasons set out in his decision, explained why he did not consider Mr Gonzalez’ conduct would put him at risk of the most serious sanctions of which Mr Gonzalez is fearful of and which Mr Gonzalez says there is a sufficient risk for those consequences to be weighed in the balance on his application for a discharge.
[74] This Court also notes the information provided by the practitioner with whom Mr Gonzalez was employed from May 2019 to at least 30 June 2020, the date of the affidavit the employer provided for the Court in connection with Mr Gonzalez’ sentencing. In that affidavit, the employer stated:
3. Dr Osvaldo Reyes Gonzalez is a very good clinician and I am most impressed with his performance. Osvaldo is an excellent dentist, he consistently achieves excellent results in what at times can be pretty chaotic situations.
4. Osvaldo has excellent communication skills and empathy for patients. Dr Gonzalez has a good and generous disposition which extends to his patients and he constantly strives to achieve the best results for his patients. He is definitely not motivated by greed or pecuniary gain.
5. His patients so far without exceptions, like him and seen [sic] very happy with his treatment. Osvaldo’s patients have left numerous positive feedback comments on our google website.
[75] I note also that Mr Gonzalez has already participated in counselling to address the issues which caused him and his former partner difficulties after their relationship ended. On his sentencing, he also agreed to the making of a protection order which provided further security for the victim of his offending that there would be no repetition of the actions which caused her such anxiety. With that order, he also had to participate in a counselling programme to reduce the risk of any further conduct of the sort which led to the charge against him.
[76] Mr Gonzalez has already had the burden of having to tell the Dental Council of his guilty plea and presumably of the conviction that was entered against him in the District Court, even though that conviction has been the subject of an appeal. If that conviction remains, he will face uncertainty and no doubt be anxious as to how the
Council will deal with that conviction. Those consequences are not however so serious as to, themselves, require a discharge without conviction. There is a risk of further consequences if his conduct is to be the subject of investigation by a PCC but the potential for that would not, of itself, justify a discharge without conviction.
[77] Given the low level of seriousness of Mr Gonzalez’ offending and the fact his conduct was in relation to a personal relationship and not connected with his work, it does seem unlikely that a conviction would ultimately result in his being unable to practice as a dentist in the way he fears. Even if the risk of such a consequence does remain and should be weighed in the balance, on the ultimate balancing exercise that is required of a court, his potential exposure to such a risk would not be reason to discharge Mr Gonzalez. It should be the Dental Council, or the appropriate body that has the responsibility of doing so, that considers how his conduct and conviction might impact on his ability or fitness to practice.23
[78] It was also submitted that a conviction would have such consequences, as far as future employment was concerned, that a discharge should be granted to avoid those consequences.
[79] In his affidavit in support of his application for a discharge Mr Gonzalez said, based on a statement provided by his then employer, if convicted, there was a clear expectation his employment would be terminated. Given his age and the COVID-19 pandemic environment, Mr Gonzalez considered, if he lost his then job, he would find it extremely difficult to obtain any type of employment either on the West Coast where he had been working or in South Canterbury.
[80] In a letter, later confirmed as an affidavit, the owner of the practice where he was working said:
Notwithstanding of his excellent dental skills and friendly personally [sic] with his patients, if Osvaldo is convicted of criminal harassment, I would have no choice but to terminate his contract with our clinic. Greymouth is a small town and a conviction of this type will bring very negative publicity for our clinic. It would be a shame to lose Osvaldo and I am well aware that is going to be difficult for him to find work anywhere with such a criminal conviction.
23 Consistent with the approach taken by the courts in Zhang, above n 9; Blythe, above n 8; and
Daleszak, above n 9.
[81] On the face of it, there seemed to be a lack of logic in the opinion expressed by the employer. He noted that Mr Gonzalez’ conduct, which was the subject of the charge, had nothing to do with the dental practice. The employer had been positive about Mr Gonzalez’ skills as a dentist and the way he related to his patients. There was thus no reason why a conviction would result in adverse publicity for the practice Mr Gonzalez was working in. The employer knew of the difficulties Mr Gonzalez faced as a result of the charge brought against him, of his guilty plea and of at least the potential involvement with the Dental Council. The employer’s concern, which he said would leave him with “no choice but to terminate his employment”, seemed to relate not to any concern as to Mr Gonzalez’ conduct with the victim of his offence but the associated publicity.
[82] In the District Court, Mr Gonzalez was not granted a discharge without conviction but presumably the employer was told that Mr Gonzalez was appealing that decision.
[83] The Judge refused to suppress Mr Gonzalez’ name but granted interim suppression pending the appeal. Accordingly, there should have been no publication as to Mr Gonzalez’ conviction.
[84] Given those opinions and the employer’s “strong support” for Mr Gonzalez’ application for a discharge, it might have been thought the employer would have been able to retain Mr Gonzalez in his employment.
[85] Despite that, in his appeal submission, Mr Jefferies said Mr Gonzalez “is now unemployed and living in Ashburton”. Mr Jefferies did not seek to put before the Court any affidavit explaining the circumstances in which Mr Gonzalez’ employment ended.
[86] It concerned me that Mr Jefferies began his oral submissions by saying Mr Gonzalez’ contract had not been renewed, a statement which suggested his employment may always have been for a limited time only. While Mr Jefferies resiled from that, the problem remains that I was not provided with evidence as to the terms of his original employment and the reasons why that employment came to an end. Mr
Jefferies suggested I should draw the inference that it was because of the decisions made in the District Court. I cannot do so because those decisions were the subject of an appeal.
[87] Mr Gonzalez sought a discharge on the basis a conviction would put in jeopardy his then employment as a dentist on the West Coast. With that employment having now been terminated, the risk of that happening can no longer be a potential consequence that could justify a discharge.
[88] I must therefore decide whether a conviction has the potential to affect his future employment prospects generally in a way that requires a discharge. I am not satisfied that it will or should, particularly given the circumstances of the offending and what has been said in both this judgment and in the District Court decision as to the positive aspects of Mr Gonzalez’ work as a dentist.
[89] If seeking future employment as a dentist, Mr Gonzalez will be seeking employment in a profession where an employer and his patients must be able to place the utmost trust in him as a dental practitioner. The particular offending which led to the charge to which he pleaded guilty does not, of itself, suggest he could not be trusted in that professional relationship, but the Court should not hinder a prospective employer in making their own assessment as to that by making it more difficult for that employer to know that he committed this offence.
[90] I have weighed the low gravity of this offence against the way in which a conviction might affect Mr Gonzalez’ future employment prospects. In the particular circumstances of this case, I do not consider those potential consequences justify a discharge so that Mr Gonzalez avoids a conviction for his admitted offending.
[91]Mr Gonzalez’ appeal against the refusal of a discharge is dismissed.
Appeal against refusal to grant name suppression
[92] Mr Gonzalez also appealed against the refusal of the District Court Judge to suppress publication of his name.
[93] The only submission Mr Jefferies made about suppression was that, if a discharge without conviction was granted, name suppression should be made permanent. There had been interim suppression only because of the pending appeal against the refusal of both the discharge and name suppression.
[94] In his decision, the Judge said “in my view, the application for name suppression does not satisfy the applicable test”. That would appear to have been a reference to the particular grounds on which a court can grant suppression, as set out in s 200 Criminal Procedure Act 2011. However, without reference to those particular grounds or thresholds, the Judge limited the information that could be published about the matter to Mr Gonzalez’ name, the charge and the outcome. He did this “in the interests of protecting the complainant”. He said “the complainant might be distressed if the summary of facts was published”.
[95] Mr Harvey, for the Police, made a brief submission suggesting he thought the issue should be considered in terms of s 200 Criminal Procedure Act. He submitted it was unclear why further publication of the current matter would cause Mr Gonzalez “extreme hardship” or justify the termination of his employment. He also pointed out that, in applying s 200, loss of employment would not automatically justify name suppression.24
[96] In the District Court, Mr Gonzalez sought suppression on the basis publicity of the matter could cause loss of custom to the practice that employed him “and thus undue commercial hardship” to himself and the business.
[97] There was no reference in submissions or in the District Court decision to the fact that the Harassment Act has particular provisions allowing suppression which could be applied without having to address s 200 or the thresholds for suppression referred to there.
[98]Section 39 Harassment Act states:
39 Power to clear court and restrict publication of proceedings
24 Citing Robertson v Police [2015] NZCA 7.
(1) Where, in any proceedings under this Act, the court is of the opinion that it is desirable to do so, after having regard to the interests of any person (including, without limitation, the privacy of the applicant) and to the public interest, the court may make any 1 or more of the following orders:
(a)an order forbidding publication of any report or account of the whole or any part of—
(i)the evidence adduced:
(ii)the submissions made:
(b)an order forbidding the publication of—
(i)the name of any person, or any name or particulars likely to lead to the identification of that person:
(ii)the affairs of any person:
(c)an order excluding all or any persons other than the parties to the proceedings, any lawyer engaged in the proceedings, and any officer of the court, from the whole or any part of the proceedings.
(2) The court may make an order under this section on its own motion or on the application of any party to the proceedings.
(3) Every application to the court for an order under this section may be heard in open court or in chambers.
(4) An order made under subsection (1)(a) or subsection (1)(b),—
(a)may be made for a limited period or permanently; and
(b)if it is made for a limited period, may be renewed for a further period or periods by the court under section 40; and
(c)if it is made permanently, may be reviewed by the court at any time under section 40.
(5) Nothing in this section limits or restricts any other power of the court—
(a)to prohibit or restrict the publication of reports or particulars relating to proceedings; or
(b)to hear proceedings in private or to exclude any person from the court.
[99] The District Court Judge may have been conscious of that provision when he significantly limited what could be reported as to the proceedings and his decision.
[100] These criminal proceedings arise out of difficulties that the parties to a relationship have faced after the ending of that relationship. Such difficulties are more
often the subject of proceedings in the Family Court. In proceedings there, any application for suppression must be considered with due regard to the principle of open justice but there are specific provisions to protect the interests of children or other vulnerable persons.25
[101] In considering what suppression orders might be made, the Court must endeavour to ensure there is adequate legal protection for a victim of harassment.26
[102] Consistent with the decision reached in the District Court, I recognise that publication of the details of Mr Gonzalez’ offending could be distressing to the victim.
[103] On the other hand, if there is publication of only the fact that Mr Gonzalez has been convicted of harassment without any details of the offending, such publication could be unfair to him. Such limited information might understandably cause members of the public to speculate that his offending was more serious or sinister than was in fact the case. Publication of just the matters allowed in the District Court could therefore be more damaging to Mr Gonzalez than the circumstances of the case warrant.
[104] The Harassment Act allows comprehensive suppression orders to be made for the benefit of any person involved in the proceedings. The Court is empowered to make suppression orders on its own initiative.
[105] I therefore quash the suppression order made in the District Court and make a new order as follows. The victim’s name, the detail of the communications which Mr Gonzalez had with her and any information as to her particular circumstances or the effect the communications had on her are suppressed. Subject to that, there can be publication of this judgment, including Mr Gonzalez’ name, his relationship to the victim and the general nature of the harassment. This suppression order is not to restrict the release of this judgment or the District Court decision in full to the Dental Council or to a PCC appointed by the Dental Council. The order is also not to restrict
25 See Family Court Act 1980, ss 11A-11D; and Sanders v Sanders HC Auckland CIV-2009-404- 7812, 30 April 2010 at [58]-[59].
26 Harassment Act, ss 6(3) and (1)(b).
the release of those judgments in full to any employer or prospective employer of Mr Gonzalez who may enquire as to any previous convictions he may have.
[106] This judgment will be released publicly with redactions consistent with the suppressions made in para [105]. Publication of the unredacted judgment in Law Report or Law Digest is permitted.
Result
[107] The appeal against the refusal to grant a discharge without conviction is dismissed.
[108] The appeal against the refusal to grant name suppression is allowed in order to substitute the order at [105] above.
Solicitors:
Jefferies Law, Wellington
Crown Solicitor’s Office, Christchurch.
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