Guy v Police

[2016] NZHC 27

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-76 [2016] NZHC 27

BETWEEN

JARED GUY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 January 2016
Counsel:	B A Crowley for appellant A R Winsley for respondent
Judgment:	28 January 2016

RESERVED JUDGMENT OF DOBSON J

[1]      Mr Guy pleaded guilty to three charges of attempting to make an intimate visual recording of another person and two charges of intentionally making an intimate visual recording of another person.   He was sentenced on 11 December

2015 by Judge W K Hastings to four months’ home detention.   At sentencing, Mr Guy applied for permanent name suppression, which was declined by the Judge. Mr Guy has now appealed from that decision.

[2]      In his application for name suppression, Mr Guy argued that the publication of his name would cause extreme hardship to his mother, who suffers from a medical condition that is exacerbated by stress.  His mother filed an affidavit explaining her condition, the stress that she expects would be caused by her son’s name being published, and the effects that would have on her health.   She annexed a medical report from 2007, and deposed that she has made numerous lifestyle changes to minimise stress, which is a cause of her condition.   Her specific concern is that

additional stress could trigger the worsening of her condition into multiple sclerosis.

GUY v POLICE [2016] NZHC 27 [28 January 2016]

[3]      In declining the application, the Judge said:

[20]     I have every sympathy for your mother’s health.  You say that you have put her under a lot of stress and stress is the one thing she needs to avoid with her medical condition.   She has provided an affidavit and a doctor’s report to confirm this but as you say you have already put her under stress.  It is your own behaviour that had caused her stress.  The publication of your name would add very little to the stress you have already caused her. I also note that her surname differs from yours.

[21]      To my mind none of this amounts to extreme hardship for you or your mother.  Nor is there sufficient nexus between the claimed hardship and publication  of  your  name  as  distinct  from the  hardship  caused  by  your offending.

[4]      Section 200 of the Criminal Procedure Act 2011 provides for situations where

a defendant’s name may be suppressed.  Relevantly, that includes:

(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

…

[5]      The settled approach to such applications involves a two-stage analysis.  The first is a threshold determination as to whether publication would be likely to cause extreme  hardship,  in  this  case  to  Mr Guy’s  mother.    The  Court  of Appeal  has described that as an “only if” threshold, so that if the applicant for name suppression

does not make it out, then the application must fail.1

[6]      If the threshold of the likelihood of extreme hardship is made out, then the second stage is for the Court to weigh the competing interests of the applicant for name suppression and the public.  That assessment is likely to include consideration of the position of any victims of the offending, the relative seriousness and nature of the offending, and the nature of the public interest in knowing the character of the

offender.2

1      Robertson v Police [2015] NZCA 7 at [40].

2      Robertson at [41].

[7]      For Mr Guy, Mr Crowley submitted that the Judge had rejected the evidence of Mr Guy’s mother’s own opinion that the incremental stress caused by publication was likely to cause a serious deterioration in her medical condition.  He submitted there was no basis for rejecting that opinion, which he characterised as reasonable and credible on its own terms.  Mr Crowley argued that if the mother’s opinion was accepted, it necessarily made out the threshold of the likelihood of extreme hardship.

[8]      I do not accept that the Judge rejected the opinion evidence of Mr Guy’s mother in the absolute sense that Mr Crowley suggested.  The Judge was obliged to evaluate all the evidence before him, and I am not persuaded that he erred in the views he came to about it.

[9]      In the course of argument, Mr Crowley accepted that additional evidence from a medical specialist would be unlikely to advance the prospects of making out a likelihood of extreme hardship.  Mr Guy’s mother has not recently been attended by a doctor, and the extent of any causal link between the risk of deterioration and the additional stress caused by publication would be speculative from anyone venturing an opinion on the point.

[10]     The Judge was correct to identify the fact of Mr Guy’s offending as a material cause of stress to his mother.  The incremental impact of her having to address the consequences of publication with family and friends is speculative and, on the evidence, could not be made out as a likely cause of extreme hardship for her.

[11]     Mr Guy’s mother does not share his name and lives well away from the Wellington region in which the offending occurred.  Those factors might be expected to somewhat lessen the impact of publication as it affects her.

[12]     Given the Judge’s finding that the threshold was not met, his reasoning did not extend to the second stage of a discretionary evaluation weighing the interests of Mr Guy and his mother against those of the community.  Had the threshold been met, the second stage discretionary assessment might well have gone against him in any event.

[13]     As  Mr Winsley  submitted  in  opposing  the  appeal,  the  public  interest  in knowing the material circumstances of offending of this type is relatively high.  It was voyeuristic offending involving an invasion of privacy.  The summary of facts on which Mr Guy was sentenced stated that the Police had found 163 intimate visual recordings on Mr Guy’s laptop, with 267 attempted intimate visual recordings.  Only one of the victims of this conduct was identified.  However, the specific complainant who was involved at the point Mr Guy was apprehended stated firmly in her victim impact statement that she thought the community should be aware of Mr Guy and what he has been doing.  These discretionary considerations would likely tell against a grant of name suppression in any event.

[14]     Accordingly, the appeal is dismissed.

Dobson J

Solicitors:

Crown Solicitor, Wellington

Counsel:

Brett Crowley, Wellington