H v The Queen
[2019] NZHC 1155
•24 May 2019
ORDER PROHIBITING PUBLICATION OF THE NAME, ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
PUBLICATION OF THE NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY
COMPLAINANT UNDER THE AGE OF 18 YEARS OLD PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
http.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.html
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI 2019-406-8
[2019] NZHC 1155
BETWEEN H
Appellant
AND
THE QUEEN
Respondent
Hearing: 24 May 2019 Counsel:
R A Harrison for Appellant
A R Goodison for Respondent
Judgment:
24 May 2019
JUDGMENT OF ELLIS J
H v R [2019] NZHC 1155 [24 May 2019]
[1] On 5 February 2019, H was sentenced by Judge Barry in the District Court at Blenheim to six months’ community detention on two charges of kidnapping.1 On 5 April Judge Barry declined her final name suppression under s 200 of the Criminal Procedure Act 2011 (the CPA).2
[2] H now appeals the latter decision on the grounds the Judge failed to recognise her personal circumstances which (she says) evidence a risk of extreme hardship. She seeks to adduce further evidence on the appeal.
H’s offending3
[3]H is 33 years old. She has no previous convictions.
[4] Between 14 and 16 December 2017, H had a large amount of cannabis stolen from a shed on her property. On 17 December she told police that her shed had been broken into, and that some tools had been taken.
[5] That same day, H contacted her co-offender, Mr Matthew Reece, asking for his help to find the people who had broken into her shed and stolen the cannabis.
[6] At approximately 1.30pm on 20 December 2017, H and Mr Reece went to the home of a 14 year old boy (A) whom they believed had been involved in the theft. They knocked on the door and went to his bedroom window. Mr Reece had a metal pipe with him. They entered the house and H yelled at A, asking where the cannabis was. A handed them a rubbish bag containing scraps of cannabis. H took his PlayStation, demanded to know where the remains of the cannabis were and threatened to punch the truth out of him. She demanded A leave the house and get in her car.
[7] After repeatedly being asked where the cannabis was, the boy said it was at his friend’s house. H demanded that A direct them there and he did so. A’s friend (D) was 17 at the time.
1 R v H [2019] NZDC 1923 [sentencing decision].
2 R v H [2019] NZDC 6233 [name suppression decision].
3 The following account is taken from the police Summary of Facts.
[8] On arrival at the D’s home H and Mr Reece walked him out to their car and made him get in. H continued to yell at the two boys, demanding to know where her cannabis was. She said the boys would not be allowed to go home until she got it back.
[9] After a while it became clear that the search for the cannabis had reached a dead end. Mr Reece and H drove the two boys back to their respective homes. At A’s house, the pair were confronted by A’s mother who told them that police had been contacted, and that they should leave the property.
[10] Mr Reece and H were subsequently arrested and charged. H pleaded guilty immediately upon receiving a sentence indication and was later sentenced accordingly. She was assessed as posing a low risk of reoffending.
[11] Mr Reece has not pleaded guilty and has yet to stand trial. It seems that he faces a number of other unrelated but serious drugs charges.
The name suppression decision
[12] The application for permanent name suppression was made on the grounds that publication of Ms H’s name would be likely to cause extreme hardship to her and/or her children. By agreement, the issue of name suppression was determined on the papers.
[13] The Judge had regard to the following material which had been filed on Ms H’s behalf in support of the application:
(a)A letter from a counsellor, Lois Millar, dated 12 November 2018. Ms Millar’s letter details H’s history of post-traumatic stress disorder (PTSD) manifesting in anxiety and depression.
(b)Two letters from Michael Brew, a mental health services social worker form the Nelson and Marlborough District Health Board (NMDHB), dated 22 August 2018 and 18 October 2018. These letters detail the treatment of H’s 15 year old son for a mood/anxiety disorder.
(c)A support letter from [X], a teacher at H’s children’s school, dated 13 August 2018.
(d)A support letter from Karen Burns, Women’s Refuge social worker, dated 14 August 2018.
(e)A letter from George Peart, counsellor, dated 16 August 2018. This letter attests to H having attended counselling sessions with him.
(f)A psychological assessment report from Anthony Morrison, dated 29 January 2019 for ACC purposes.
[14] Judge Barry recorded his view that the letters of support were “essentially well-meaning efforts to downplay culpability for the offending” but did not advance the application for name suppression “in any meaningful way”.4 He held that none of the other material relied on pointed to extreme hardship to Ms H’s children or to Ms H if publication of her name were to occur.
[15] The Judge then considered the case of BL v R.5 That case concerned a medical practitioner who had pleaded guilty to two counts of sexual conduct with a child under
12. Final name suppression was granted by Winkelmann J on appeal on the grounds that he would suffer extreme hardship if it were not. BL was suffering from a major depressive episode, dissociation, and was assessed as being at a high risk of suicide. The High Court found publication of his name would heighten that risk.
[16]But the Judge considered that H’s case was very different:6
This defendant was not subsumed within a depressive illness of the magnitude suffered by that appellant. There is no suggestion of suicide risk of this defendant. On the contrary, the indications were her outlook was improving with counselling.
4 Name suppression decision, above n 2, at [13](a).
5 BL v R [2013] NZHC 2878.
6 Name suppression decision, above n 2, at [13](e).
[17] The Judge recorded that the victims had not provided their views on the suppression application, but the Crown’s advice had been that they appeared indifferent on the matter.
[18] The Judge then noted that since the supporting material had been filed, H had been sentenced for two “innately serious offences of kidnapping two teenagers in order to try and recover cannabis she perceived they had stolen from her”. He said that the sentence she received “saw rehabilitative purposes trump punishment” and that presumably “the understandable stress leading up to that sentencing has dissipated in the face of the lenient sentence of community detention that was imposed.”
Approach on appeal
[19] Section 283 of the CPA provides that an appeal may be brought as of right against a name suppression decision.
[20]A decision on name suppression involves a two-stage analysis.7
[21] First, the Judge must be satisfied that there is an arguable case that one of the threshold grounds in s 200(2) of the CPA exists.
[22] Secondly, if satisfied that one of those grounds exists, the judge must make a discretionary assessment as to whether a name suppression order is necessary. At this point, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victim(s) and the public interest in knowing the character of the offender.8
7 Fagan v Serious Fraud Office [2013] NZCA 367 at [9] confirmed in Robertson v Police [2015] NZCA 7 at [39].
8 Robertson v Police, above n 7, at [41] citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA) at [42].
[23] On appeal, the Court must similarly adopt a bifurcated approach. That part of the appeal which focuses on the first stage of the analysis is to be regarded as a general appeal,9 whereas the second stage is to be treated as an appeal against the exercise of a discretion.10 In the former case, the appellate court may come to its own view on the merits. In the latter, however, an appellant must establish that the judge below has “acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong”.11
New evidence
[24] As noted above, H applies to adduce further evidence on her appeal.12 The Crown opposes the admission of such evidence.
[25] In light of my conclusions below, however, I do not think it is necessary to determine most of the application. I merely observe that by and large the new evidence would be unlikely to meet the orthodox threshold of being sufficiently fresh. That is because while the evidence is relevant to the issues at hand, most of it could have been made available at the time of the hearing in the District Court.
[26] The one exception to that is H’s evidence that she has manage to secure a part time job as a cleaner since her sentencing. In my view that is both relevant and fresh, particularly in light of the view I express below about the importance of H’s rehabilitative prospects. It underscores, I think, the overall conclusions I have reached.
9 Meaning it is determined in accordance with the principles in Austin, Nichols & Co Ltd v Stichting Lodestar Inc [2007] NZSC 103, [2008] 2 NZLR 141
10 NN v Police [2015] NZHC 589 at [13] - [14].
11 Saggers v R [2012] NZCA 560 at [25].
12 The evidence H seeks to adduce is (a) medical notes pertaining to her daughter for the period 1 March 2017 – 6 September 2018; an affidavit sworn by Lois Millar, in which she does into a little more detail about H’s history of suicidal ideation, anxiety and PTSD and an affidavit sworn by H which describes her PTSD, her relationship with her children, and the fact that after her sentencing she has gained employment as a part time cleaner.
The appeal
Was the Judge right to find that publication was not likely to cause extreme hardship to Ms H or her children?
[27] I begin by acknowledging the obvious, which is that the threshold of “extreme hardship” is a high one and deliberately so. That said, however, it must also be the case that it is a threshold which permits the court to respond to the unique circumstances of a particular applicant. As well, in a case where an offender has received a sentence which is designed to recognise and facilitate his or her rehabilitative prospects, the possibility that publication will undermine those prospects must be relevant to the inquiry.
[28] Accordingly, in the present case I think it is important to delve a little more deeply into H’s history and circumstances. It is not necessary to refer to the “new” evidence. Rather, I propose to refer to Mr Morrison’s psychological assessment, conducted for ACC purposes late last year. I record at the outset that he confirms (and ACC has accepted) a diagnosis of chronic PTSD. Mr Morrison recorded (inter alia):
[H] started her life in a difficult situation with her family living off the grid and having a distant mother and a violent and controlling father. In addition to [him] being controlling and violent, [H]’s father also sexually molested her. After running away from home at 15 years of age [H] subsequently became involved with a partner with whom she had a child. Two months after their child was born [H]’s partner hung himself. She remained with her partner’s parents for a year, but her partner's father began exposing himself to her and
[H] moved back to Blenheim. After she returned to Blenheim [H] became involved with a man with whom she would stay for 10 years and with whom she had her other two children.
This long-term partner was emotionally and sexually abusive and would regularly molest her and … rape her while she was sleeping. He would also taunt her with threats of suicide and with reminders of the sexual abuse she had experienced from her father. She recalled that multiple times she would wake to find him molesting her and then he would mock her by saying “Do I remind you of your dad.”
…
[H] identified the following current symptoms: recurrent intrusive thoughts about the abuse and nightmares about being “a little girl in a paddock crying.” She also described waking with the “same feeling I had when my father molested me” and having “flashbacks that can be triggered by a raised voice and other behaviours that are characteristic of her ex-partner. [H] reported that she has problems with emotional regulation and feels like she is ‘always on
the verge of anger and a1ways anxious.” While she has been able to avoid acting on her feelings in the past, she described herself as “just losing it” when talking about the events that led to her current legal difficulties. [H] reported avoidance of places and situations including people she does not know, and she has attempted to actively avoid her own thoughts about the past abuse.
[29] Mr Morrison goes on to report that H has no significant history of suicidal ideation or intentional self-harm and denied any intent to harm herself at the time of the assessment. However elsewhere in the report he records that H:
(a)has experienced suicidal ideation and reported that she may have chosen to end her life if she did not have children; and
(b)has little social support and is at risk for the exacerbation of the PTSD symptoms if she is exposed in high levels of situational stress particularly associated with interpersonal relationships and her “current legal difficulties”.
[30] It is of course, hardly news that many offenders who come before the courts have histories of equally traumatic childhood and/or adult abuse. But it is less common for such offenders to have the full-time care of three children (at least two of whom are themselves vulnerable). Nor is it common for such offenders to have acknowledged and relatively immediate rehabilitative prospects. The risk of harm to the family unit (which is itself integral to H’s ongoing mental health) and the risk of damaging H’s rehabilitative prospects by making H’s name public must, I think, also be relevant to the question of hardship and its degree.
[31] And while it must be accepted that it seems that H is not at an acute risk of self-harm in the event that her name is published I do not think that should be a complete answer here. Putting the issue of immediate risk to one side, H’s circumstances are not dissimilar to those of the offender in BL v R. BL, too, had had to deal with the trauma of the suicide of a close family member and suffered flashbacks. He, too. was diagnosed with PTSD although, by contrast with H, BL himself had not been the victim of any (let alone prolonged) physical or sexual abuse.
[32] In all the circumstances just discussed I am unable to agree with the District Court Judge’s conclusion that H will not suffer extreme hardship if her name is published. She is clearly very vulnerable, and with good reason. Moreover, the fact that her co-offender is yet to stand trial means that the risk of damage to her from declining suppression is ongoing. Refuge cannot fairly be taken in the adage that “today’s newspaper is tomorrow’s fish and chip paper”. There is a real risk that the harm caused to her by publication will not be a one-off thing; it is likely to be repeated when Mr Reece goes to trial.
[33]In my view the “extreme hardship” threshold is met here.
The discretion
[34] Because the Judge did not consider the s 200(2)(a) threshold was met, he did not go on to make a discretionary assessment about whether name suppression was necessary. I therefore consider that matter afresh, as well.
[35] Again, a comparison with BL is instructive. BL’s offending (sexual offending against children) was considerably more serious than H’s although, like H, BL had received a compassionate sentence (of 12 months home detention). But the nature and seriousness of BL’s offending, together with the fact that he was a doctor meant that the interests of open justice and the legitimate public interest in knowing his identity were, undoubtedly much greater. And in BL’s case (but not in the present) suppression was opposed by the victim.
[36] The potential for continued or repeated publication (and therefore harm) also has some relevance here, as is the assessment that she poses as very low risk of reoffending.
[37]All those matters weigh in favour of suppression here.
[38] Finally, before making a permanent order under s 200 of the CPA the court is required to take account of any views of the victim.13 As noted at [17] above, suppression appears to be a matter of indifference to the victims in this case. That fortifies the overall view I have reached.
Result
[39] For the reasons given above, the appeal is allowed. I therefore make an order pursuant to s 200 of the CPA permanently forbidding publication of H’s name, her address(es), occupation(s) or identifying particulars.
Rebecca Ellis J
13 Criminal Procedure Act 2011, s 200(6).
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