Haden v Police
[2019] NZHC 1399
•19 June 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-15
[2019] NZHC 1399
BETWEEN GRACE HADEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: on the papers Counsel:
Appellant in Person
C R Stuart for the Respondent
Judgment:
19 June 2019
JUDGMENT OF CULL J
[1] Ms Haden seeks leave to appeal out of time her sentence of $5,000 on five charges of publishing the name of a person who had been granted non-publication orders, contrary to the provisions of ss 241(c) and 263(1) and (2) of the Lawyers and Conveyancers Act 2006 (the Act). Ms Haden unsuccessfully appealed her convictions,1 and now seeks leave to appeal her sentence which was imposed on 11 December 2017, 16 months out of time.2
[2] The grounds for Ms Haden’s leave to appeal out of time have been brought under s 9 of the New Zealand Bill of Rights Act 1990 (the right not to be subjected to torture or cruel treatment). Ms Haden submits that other events and circumstances have brought about the need to appeal the sentence on the grounds of the
1 Haden v New Zealand Police [2018] NZHC 498.
2 Criminal Procedure Act 2011, s 231(2).
HADEN v NEW ZEALAND POLICE [2019] NZHC 1399 [19 June 2019]
disproportionately severe punishment which the Court did not intend, but which has occurred.
Background facts
[3] Ms Haden was charged with breaching an order made under s 240(1)(c) of the Act, which prohibited the publication of the name or any particulars of the affairs of a person charged before the Disciplinary Tribunal. Under s 263(1) of the Act, every person commits an offence who, without lawful excuse, acts in contravention of any order made by the Disciplinary Tribunal under s 240(1)(a) to (c).
[4] Ms Haden faced five charges of breaching the Disciplinary Tribunal’s order because similar conduct was alleged to have taken place on five consecutive occasions from 18 April to 24 May 2017. Ms Haden was convicted in the District Court on 11 December 2017 and was fined $1,000 on each charge, with Court costs and witnesses’ expenses, totalling the sum of $6,000.3 Breaches of a non-publication order by the Disciplinary Tribunal are punishable by fine only under s 263(2), with a maximum fine not to exceed $25,000.
[5]In imposing sentence on Ms Haden, the District Court Judge said as follows:
[13] These matters are finable only. They involve matters of considerable public importance and the maximum fine has been pitched accordingly at
$25,000 per offence. The ability to defy suppression orders in the electronic age is at the fingertips of virtually anybody computer literate. And it is perfectly clear that this defendant has a borderline obsessive desire to bring down the now deceased subject of her publications.
[14] I impose fines on each matter of $1000, Court costs of $130 and if those are beyond your means, Ms Haden, you do have some remedies that you are able to take. There will be witnesses’ expenses of $500.00 toward the cost of producing the Tribunal’s Registrar.
[6] Ms Haden’s appeal against her convictions was unsuccessful.4 This decision considers Ms Haden’s application for leave to appeal only.5
3 New Zealand Police v Haden [2017] NZDC 28419, 11 December 2017.
4 Haden v New Zealand Police, above n 1.
5 Haden v New Zealand Police HC Wellington CRI-2019-441-15, 21 May 2019 (Minute of Mallon J).
Ms Haden’s position
[7] In discussing her charge and the penalty, Ms Haden submits that the police have chosen to use the words “suppression order” instead of “non-publication order” as the offence reads. As such, she submits the inference has become that she committed an offence against the Criminal Procedure Act 2011 – namely a breach of a suppression order under s 211 – where the penalty includes imprisonment. As well as this, on finding that she had been charged with breaching an order under s 240 of the Act, at her first appearance Ms Haden submits she was taken into custody when she was bailable as of right and there was no provision for being taken into custody.
[8] The “bail” and the “suppression order” breach were reported in national newspapers and broadcast nationwide over public radio, naming Ms Haden and stating she had breached “suppression orders”. As a result of the news publicity, Ms Haden says she has lost the support of her business networking group which led to the demise of her business and has suffered repercussions within the community, including the loss of her membership of a community service organisation.
[9]Ms Haden is now retired and receives a pension of $383.00 per week, of which
$50.00 is contributed weekly to repay the fine. She has also recently suffered a stroke, which she says has been brought on by the stress which was set off by the conviction and its repercussions, and the disproportionate sum which she is paying out of her pension.
[10] Ms Haden further submits that a businessman of means in Auckland has since been charged with the same offence relating to the same circumstance, and was fined only $100.00 per charge as opposed to her $1,000.00 per charge, showing gross disparity in sentencing.
[11] Finally, she submits that the publication for which was convicted of making relates to a lawyer who misappropriated $20,000.00 from a client and then invoiced her for the time that it took to locate this. She submits this is fraud or theft by a person in a special relationship, which both carry terms of imprisonment, but these offences were never addressed in Court and Ms Haden considers it unfair that she has
committed a lesser offence than the “original offender”, but her penalty has been greater.
[12] Ms Haden seeks that the Court allow a reduction in the remaining sum of the penalty in recognition of the chain of events set off by the conviction, which she claims resulted in a punishment far greater than the Court could have foreseen.
[13] In particular, Ms Haden submits that the District Court Judge did not consider the following facts:
(a)Ms Haden had told the police that she would comply with any order that they could show her;
(b)The police did not have an order and could not produce one, but prosecuted her and did so without providing her with a reasonable opportunity to comply with a request to remove the name from the blog;
(c)The Court did not consider that it is difficult comply with an order which is not produced, cannot be shown to exist, and does not indicate what its terms are.
[14] Ms Haden accepts the application made is out of time, and submits it should be allowed for the reasons stated above.
The respondent’s position
[15] The respondent opposes the granting of leave principally because of the delay and that the appellant’s submissions largely mirror the submissions made in the conviction appeal, which was dismissed.
Discussion
[16] The Court of Appeal in R v Knight,6 and were recently confirmed in R v Lee,7 outlined the criteria to be applied in determining applications to extend time. In R v Knight, the Court determined that the “touchstone” for granting an application to extend time is the interests of justice in any particular case.8 Assessing the interests of justice requires the wider interests of society in the finality of decisions to be balanced against the interest of the individual applicant.9 Factors relevant to the overall balancing test include “the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.”10
[17] More recent authorities focus on the reasons for the delay and the merits of the proposed appeal as being the primary factors in extension of time applications.11
[18] In this case, Ms Haden’s delay in bringing her application for leave to appeal is significant. It is 16 months since the imposition of the sentence. Further, the grounds upon which Ms Haden relies relate to changes to her health and/or financial situation during those 16 months since her conviction and sentence. This is, in effect, a retrospective submission that the sentence was manifestly excessive due to circumstances which occurred in the 16 months following the imposition of the sentence.
[19] By contrast, the commonly-accepted reasons for delay are where the delay is caused by excusable difficulties in obtaining adequate legal advice,12 where filing an appeal has been delayed while expert advice is obtained,13 and where the legal point
6 R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA).
7 R v Lee [2006] 3 NZLR 42, (2006) 22 CRNZ 568 (CA).
8 At 587.
9 At 587.
10 At 589.
11 Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].
12 R v Osborne [2009] NZCA 168.
13 Jones v R [2015] NZCA 601.
in issue did not become apparent until after other appellate proceedings.14 None of these reasons are relevant nor is the reason for delay similar.
[20] I turn, then, to consider whether the sentence is manifestly excessive, wrong in principle, or incorrectly calculated. Ms Haden submits that the level of fine in her case was out of line with the authorities and, in support, points to one case in which the imposition of the fine was $100.00 for the breach in contrast to the $1,000.00 for each of Ms Haden’s breaches. The example Ms Haden relies upon was a ruling following an application for discharge under s 147 of the Criminal Procedure Act. As the Act makes plain, each charge attracts a maximum penalty of $25,000.00. I accept the police submission that the appellant’s sentence (before costs) represents 4 per cent of the maximum penalty that could have been imposed. The District Court Judge had regard to the brazen nature of the offending in imposing the penalty of $1,000.00 per charge, and in the circumstances I do not consider that the end sentence is manifestly excessive.
[21] The real gravamen of Ms Haden’s case is that her circumstances following the imposition of sentence renders her unable to afford to pay the fines at the current rate of repayment. Currently, Ms Haden is travelling to Europe for two months and it does not appear that she has explored alternative payment plans with the Ministry of Justice, which the District Court Judge referred to when he imposed the fines.
[22] I consider that in addition to the significant delay of 16 months since the imposition of sentence, the grounds of Ms Haden’s appeal largely mirror the submissions that were made in her unsuccessful appeal against conviction. The retrospective nature of her submissions reflect changes to her health or financial situation 16 months after conviction and sentence, which is not a basis upon which to challenge the sentence as being manifestly excessive or wrong in principle.
[23] Ms Haden has the ability to renegotiate her repayments with the Ministry of Justice if her circumstances are financially precarious.
14 R v Smail [2008] NZCA 6, [2008] 2 NZLR 448.
[24] Finally, I consider that Ms Haden’s appeal has no perceived merit. Ms Haden’s actions were flagrant breaches of a non-publication order by the Disciplinary Tribunal and I can see no error in principle in the District Court’s imposition of the fines of
$1,000.00 per charge.
[25] On the basis of the principles to be applied to a grant of leave out of time, I consider Ms Haden’s application for leave in these circumstances should not be granted.
Result
[26] The application for leave to appeal 16 months out of time by Ms Haden is declined.
Cull J
0
4
0