Hope v Police
[2022] NZHC 2707
•19 October 2022
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2022-418-06
[2022] NZHC 2707
BETWEEN JOSEPH HOPE
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2022-418-07 BETWEEN
JOSEPH HOPE
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 8 September 2022 Appearances:
M Zintl for Appellant
J E Lancaster for Respondent
Judgment:
19 October 2022
JUDGMENT OF EATON J
This judgment was delivered by me on 19 October 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HOPE v NZ POLICE [2022] NZHC 2707 [19 October 2022]
Introduction
[1] On 23 June 2022, Mr Joseph Hope was sentenced in the District Court to two years and nine months’ imprisonment on a charge of sexual violation1 and three charges of indecent assault on a female under 12 years old,2 one of which was a representative charge.3 Mr Hope appeals against this sentence on the grounds that the starting point was too high and further discounts were available for co-operation with the authorities and previous good character, such that an end sentence of home detention is appropriate.
[2] Mr Hope also appeals against the refusal to grant permanent suppression of his name and identifying particulars.
Facts
[3] Mr Hope was a resident at the Gloriavale Christian Community. He was born into and raised within the community. […]. This offending was disclosed following a screening process of all female residents in the Gloriavale Community between the ages of five and 17 years for sexual offending, completed by Police and Oranga Tamariki in May 2021. During this process, on […], the victim disclosed that they had been touched inappropriately by Mr Hope sometime between […]. The victim described the offending occurring over a one to two-year period, when they would have been […].
[4] Mr Hope, on becoming aware the victim had spoken to Oranga Tamariki, presented himself voluntarily to the police station and admitted the facts as outlined below, claiming full responsibility for his actions. He apologised to the victim in person before making the decision to go and speak to police.
[5] The first indecent assault took place when Mr Hope was in his bedroom watching a movie with his wife, their children and the victim. Mr Hope was positioned behind his wife and their children. He started touching the victim, moving his hand
1 Crimes Act 1961, s 128(1)(b) and 128B: maximum penalty of 20 years’ imprisonment.
2 Section 132(3): maximum penalty of 10 years’ imprisonment.
3 R v Hope [2022] NZDC 11639.
under her dress and rubbing his hand up her leg towards her vagina for approximately two minutes. Once his hand was near the top of her legs, he pushed his hand inside the victim’s underwear and began touching her vagina. The victim knew she needed to get away, so told Mr Hope she needed to go to the toilet and then left the bedroom and returned to her own home.
[6] The unlawful sexual connection offending took place while Mr Hope was sitting on a chair using the computer in the family bedroom. The victim approached Mr Hope and stood between his legs, facing the computer so that she could see what he was doing. Both Mr Hope and the victim were fully dressed. While the victim stood in front of him, Mr Hope reached around to the front of the victim with his hand and placed it up and under her dress. He moved his hand up the victim’s leg and then stroked the victim’s underwear over her vagina. Mr Hope then shifted the victim’s underwear. He began feeling the victim’s vagina with his fingers, stroked across her vagina lengthways and felt her clitoris. These actions lasted for a few minutes before there was a knock on the door.
[7] The representative charge of indecent assault relates to offending that occurred in Mr Hope’s family bedroom while he was either lying or sitting on the bed. He would grab hold of the victim around the waist and push her down onto the area near his penis. The victim would be facing away from Mr Hope, sitting on the area of his penis as he moved her up and down in a thrusting motion as if simulating sex. This occurred on four to five occasions. Each time Mr Hope and the victim were fully clothed. Mr Hope recalled one of these incidents, saying he remembered bouncing the victim up and down and rocking her side to side in a simulated sex motion, rubbing his penis against the victim’s leg.
[8] The last indecent assault occurred when Mr Hope was, again, using the computer and the victim stood between his legs facing the computer screen. As Mr Hope sat behind the victim, he started to simulate the movements of sex behind her and rubbed his erect penis into the area of her bottom, moving it up and down. Both Mr Hope and the victim were fully clothed. The victim pushed Mr Hope away and he stopped. No further offending occurred past this point.
Appeal against sentence
District Court decision
[9] The Judge identified the charge of sexual violation as the lead offence. He considered the aggravating factors of that offending were victim vulnerability, breach of trust, an element of premeditation and harm caused to the victim. He considered these aggravating factors placed the offending towards the top end of band one of R v AM(CA27/2009), despite the degree of penetration being slight.4 The Judge adopted a starting point of four years’ imprisonment for the charge of sexual violation.
[10] In relation to the indecency charges, the Judge noted they involved an element of force and occurred on multiple occasions over a one to two-year period. He found there was a significant breach of trust and victim vulnerability, and there was a level of premeditation. With regard to totality, the Judge applied an uplift of 18 months, arriving at a global starting point of five and a half years’ imprisonment.
[11] The Judge allowed a full guilty plea discount and a further five per cent for Mr Hope’s co-operation with the police after the victim disclosed the offending. The Judge did not allow a discount for previous good character because he considered Mr Hope had engaged in prolonged offending. He did, however, allow a 10 per cent discount for willingness to rehabilitate and the difficulties experienced by Mr Hope’s family because of his offending behaviour. Mr Hope had already paid $2,600 to the victim by way of emotional harm reparation and offered to pay a further $2,000. For that, the Judge allowed a further five per cent credit. Another five per cent credit was granted to reflect remorse.
[12] After applying the discounts set out above, which total to 50 per cent, the Judge arrived at an end sentence of two years and nine months’ imprisonment.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An
4 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Submissions
Appellant’s submissions
[14] Mr Zintl submitted the starting point of four years’ imprisonment for the sexual violation charge was too high. No issue is taken with the fact the offending falls within band one of AM,7 however Mr Zintl contended that the offending falls towards the middle of the band as opposed to the top end.8 He submitted the cases of R v Nerjo and Parfoot v R have similarities to the current offending, although in those cases Mr Zintl submitted there was a greater degree of penetration.9 However, Mr Zintl acknowledged that as Mr Hope was […], there was a greater breach of trust here than in those authorities. Mr Zintl submitted a starting point of no more than three years was appropriate. No issue was taken with the Judge’s 18-month uplift for the indecent assault offending.
[15] Mr Zintl submitted the five per cent discount for Mr Hope’s co-operation with the authorities was insufficient. He emphasised that Mr Hope voluntarily presented at the police station, admitted everything he could remember and claimed full responsibility. Mr Zintl submitted a discount of 10 to 15 per cent ought to have been allowed.10 Mr Zintl submitted the circumstances here are similar to those in the case of Lowenstein v Police, in which the appellant had pleaded guilty to two charges of arson.11 Those charges were denied at interview, but approximately three weeks later
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Ripia v R [2011] NZCA 101 at [15].
7 R v AM, above n 4.
8 With reference to Parfoot v R [2018] NZHC 2702; R v McNicholl CA176/02, 29 October 2002;
R v Neroj [2008] NZCA 184; and R v Fisher CA305/91, 18 November 1991.
9 Parfoot v R, above n 8; and R v Neroj, above n 8.
10 With reference to the following authorities: R v Strickland [1989] 3 NZLR 47 (CA); R v Sanday CA146/99, 29 July 1999; D v Police (2000) 17 CRNZ 454 (HC) at [24]; Ringrose v R [2011] NZCA 634 at [24]; Lowenstein v Police [2020] NZHC 786; S v R [2017] NZHC 205; and R v Lynch HC Hamilton CRI-2010-019-3449, 9 September 2010.
11 Lowenstein v Police, above n 10.
the appellant approached the police and admitted his guilt. Dunningham J allowed a 10 per cent discount for the confession.
[16] As to previous good character, Mr Zintl submitted the Judge erred in refusing to give a discount for good character because the offending occurred over a one to two-year period. He emphasised Mr Hope was aged approximately 32 to 35 at the time of the offending and has no previous convictions. Mr Zintl referred to the “tsunami” of character refences filed in support of Mr Hope, which detail that he was a family man who contributed positively to the community. Additionally, Mr Zintl highlighted that Mr Hope brought the offending to an end by himself in […] and then went eight years without reoffending.
[17] Mr Zintl referenced R v Hockley, a decision in which the Court of Appeal held a discount for good character is “very much a matter of impression”.12 He also referenced R v Carruthers, a decision in which the Court of Appeal held that where, in the years that have passed since the offending, the offender has demonstrated they have settled into a normal and law-abiding life without any further offending, that fact must be recognised.13 Mr Zintl cited other authorities in which discounts were given for previous good character in similar circumstances.14 He submitted a discount of 10 per cent is appropriate for this factor.
[18] Taking into account the unchallenged credits, Mr Zintl seeks a total sentence deduction of 65 – 70 per cent.
[19] If this Court were to consider the appropriate end sentence is short-term, then Mr Zintl submitted home detention would be appropriate here. Mr Hope, as at the date of the hearing, has spent over two and a half months in custody and Mr Zintl submitted that strong mitigating features and the assessment of a low risk of reoffending point to home detention being appropriate. Mr Zintl noted that sentences
12 R v Hockley [2009] NZCA 74, at [32].
13 R v Carruthers CA401/94, 10 April 1995.
14 R v Webb CA13/04, 17 June 2004; Manawaiti v R [2013] NZCA 88 at [19]; and Solicitor-General v Rawat [2021] NZHC 2129.
less than imprisonment are sometimes imposed for sexual offending against children.15
Respondent’s submissions
[20] Ms Boshier submitted the Judge was correct to place the sexual violation offending towards the top end of band one in AM.16 She submitted that, as noted by the Judge, although the penetration was minor, the other aggravating features were significant. Ms Boshier highlighted that the Judge considered the cases cited by counsel, as well as numerous additional cases.17 With reference to those cases, Ms Boshier submitted the four-year starting point adopted by the Judge was well within range. Similarly, Ms Boshier submitted the 18-month uplift applied for the remaining charges was appropriate and reflected the totality principle.
[21] As to credit for co-operation with the authorities, Ms Boshier emphasised that when arriving at the appropriate discount, the Court considers the type and seriousness of the offending, the nature and value of the assistance, the situation in which the assistance was given, and the consequences of the defendant giving assistance, such as personal danger.18 Ms Boshier submitted the value of assistance here is substantially lower than in any of the cases cited by Mr Zintl. She noted the victim had already disclosed the offending and participated in a full video interview before Mr Hope confessed. Mr Hope’s confession did not disclose offending that may not otherwise have been discovered or attributed to him. In essence, Ms Boshier submitted Mr Hope’s confession was equivalent to an early guilty plea in terms of the extent to which Mr Hope’s immediate taking of responsibility saved investigation and court resources. In this sense, Ms Boshier submitted the only additional assistance given by Mr Hope was that he voluntarily presented at the police station rather than being arrested, which was appropriately recognised by the five per cent discount.
15 Metua v R [2018] NZHC 246; Fowler v R [2017] NZHC 1892; Bird v Police [2017] NZHC 1296; and Goose v Police [2017] NZHC 2453.
16 R v AM, above n 4.
17 R v Smith [2020] NZHC 2793; R v Farrell [2013] NZHC 1877; and Solicitor-General v Mazahrih
[2017] NZHC 943.
18 Citing Williams v R [2011] NZCA 384; Waihape v R [2012] NZCA 425; and R v C CA319/99, 25 November 1999.
[22] Ms Boshier submitted it was open to the Judge to find a discount for previous good character was inappropriate as Mr Hope sexually offended against a child over a prolonged period of time.19 She also submitted that the time that had elapsed since the offending was taken into account in allowing a discount for rehabilitative prospects.
[23] Ms Boshier submitted that, as the end sentence was not manifestly excessive, home detention was not available. She submitted that even if the end sentence were to fall below two years, home detention would not be appropriate. Ms Boshier notes Mr Hope is subject to s 128B(2) of the Crimes Act 1961, which provides that he must be sentenced to imprisonment unless, having regard to his particular circumstances and the particular circumstances of the offence, the Court thinks he should not be sentenced to imprisonment.
Analysis
Starting point and uplift
[24] The Judge identified the sexual violation charge as the lead offence and found the facts of the offending attracted a starting point within band one, as set out in the tariff case of AM. 20 The starting point range for unlawful sexual connection offending that falls within band one is two to five years. 21 In AM, the Court of Appeal indicated that band one will cover offending at the lower end of the spectrum. The Judge recognised that the degree of penetration in this case was low. However, and as found by the Judge, if particular aggravating features are present to either a low or moderate degree, a starting point closer to the top of the band will be required.
[25] There are two significant aggravating factors in this offending, although I accept that they overlap. The victim was aged between […] at the time of the offending. She was a vulnerable child. What is more, she was […]. Given this context, the offending also constituted a significant breach of trust. Having regard to these aggravating factors alone, I consider the sentencing Judge was entitled to adopt a starting point towards the upper end of band one.
19 See Payne v R [2016] NZCA 284; Britow v R [2017] NZCA 229; R v Hockley, above n 12; and
Hamilton v R [2015] NZCA 28.
20 R v AM, above n 4.
21 At [114].
[26] The Judge was very thorough in his assessment of the relevant cases presented by counsel. Having also considered these cases, I find that although the starting point of four years’ imprisonment was towards the higher end of the range available for this type of offending, it was still appropriate.
[27] The 18-month uplift adopted by the Judge in relation to the indecency charges (with regard to totality) has, responsibly, not been challenged on appeal. That offending included four or five acts of simulated sex, touching the victim on the vagina (both over and under her underwear) and Mr Hope rubbing his erect penis on the victim. I agree with both counsel that an 18 month uplift was appropriate and a global starting point of five and a half years was within range.
Unchallenged discounts
[28] No issues were raised by Mr Zintl as to the discounts afforded by the Judge in relation to Mr Hope’s guilty plea (entered six months after a first appearance), emotional harm reparation payments, remorse, willingness to rehabilitate and the consequences Mr Hope’s offending behaviour on his family.
Credit for co-operation
[29] Mr Zintl referred to a range of cases in which significant discounts were provided for co-operation with the authorities.22 These authorities suggest a discount higher than five per cent might be available for co-operation with the police.
[30] However, the key determinative factor in making an assessment as to whether a discount is appropriate for such co-operation is generally the value of the assistance.23 Mr Hope’s confession was made after he learnt the victim had made disclosures to Oranga Tamariki and had been evidentially interviewed. His confession did not disclose offending that would not otherwise have come to light. That factor distinguishes this case from those where more generous discounts have been allowed.
22 Lowenstein v Police, above n 10; R v Strickland, above n 10; R v Sanday, above n 10; D v Police, above n 10; S v R, above n 10; and R v Lynch, above n 10.
23 Williams v R, above n 18, R v Ringrose, above n 10.
[31] I accept the confession saved the authorities some time and work and that it is important to recognise and encourage genuine admissions to offending. Another judge might have allowed a greater discount to recognise co-operation, however, I consider a five per cent discount in these circumstances is adequate to reflect the limited value of assistance provided by the timing of Mr Hope’s confession. I am cognisant that a further five per cent credit was given to reflect remorse
Credit for previous good character
[32] The victim described Mr Hope having offended over a period of one to two years. In the period described by the victim, Mr Hope was aged approximately 32 - 35 years. One charge of indecent assault was representative and linked to offending that occurred on four to five occasions. The summary of facts records there was no offending beyond […]. The offending came to light on […] when the victim disclosed the offending to police. Mr Hope had ceased offending without intervention and had not re-offended for over seven years.
[33] In similar circumstances a discount for previous good character has been provided.24 Conversely, there is clear case law that prolonged offending “necessarily calls good character into question”.25 In Britow v R26 the Court of Appeal considered offending against a child over a three year period (albeit not the entire period) was a factor against a credit for previous good character. The Court explained:27
… it is much more difficult to put offending behaviour that continues over a long period of time down to a momentary (and out of character) lapse in judgement by an otherwise upstanding member of the community.
[34] There can be little doubt that prolonged offending necessarily calls good character into question. Very prolonged offending will likely negate any credit for previous good character. Mr Hope committed seven or eight offences over one to two years when he was aged in his early 30’s. I accept Mr Hope’s offending could not be described as a momentary lapse in judgement. His offending was repetitive and
24 R v Carruthers, above n 13; R v Webb, above n 14; Manawaiti v R, above n 14, at [19]; and
Solicitor-General v Rawat, above n 14.
25 Taylor v R [2022] NZCA 70 at [21], citing Britow v R, above n 19, at [10].
26 Britow v R, above n 19 at [10].
27 At [10].
relatively prolonged. However, I do not consider that scale of offending to necessarily disqualify any credit for previous good character.
[35] Mr Hope has no previous convictions. The character evidence put before the sentencing Judge was impressive. Mr Hope had made a significant contribution to his community. I accept the offending was out of character. I also acknowledge Mr Hope ceased offending absent formal intervention and has lived a blameless life since.
[36] In those circumstances I consider some credit to recognise previous good character was appropriate. I agree with Ms Boshier that the 10 per cent allowance for rehabilitative measures is relevant in fixing the level of credit. I would have allowed a further credit of five per cent for Mr Hope’s previous good character. However, to adjust the sentence to reflect my view would amount to tinkering.28
Was the end sentence manifestly excessive?
[37] In considering whether the sentence imposed was manifestly excessive, it is the end sentence that should determine my assessment, not the mechanism by which the sentencing Judge arrived at that sentence. Stepping back and considering all of the circumstances, the end sentence is not manifestly excessive. This is especially apparent when the overall discount applied by the Judge, being 50 per cent, is taken into account.
Home detention
[38] Even if I had concluded that further credits ought to have been allowed so as to result in an end sentence of 24 months’ imprisonment or less, I would not have commuted the sentence to one of home detention. Firstly, I do not accept that the presumption of imprisonment for cases involving sexual violation has been displaced.29 Secondly, I do not accept that the applicable sentencing purposes of accountability, denunciation and deterrence and, of course, rehabilitation, are appropriately met by a sentence of home detention in this case, which involves repeated sexual abuse of a young and vulnerable child.
28 Westall v R [2021] NZHC 3440, at [51].
29 Crimes Act, s 128B.
Conclusion
[39]I dismiss the appeal against sentence.
Suppression appeal
District Court decision
[40] Mr Hope sought permanent suppression of his name and identifying particulars on the grounds that publication would cause extreme hardship to himself, his family, and others in the Gloriavale community. He also sought name suppression on the ground that undue hardship would be caused to the victim because of the likelihood of their identification. Judge Garland noted the same arguments were being advanced before him as were advanced on appeal before Mander J in this Court for interim name suppression.30
[41] The Judge adopted the reasons he expressed in the Police v Disciple case in determining that there would not be extreme hardship to Mr Hope, his family, or other members of the community if Mr Hope’s name were published.31 The Judge considered that members of the Gloriavale community are unlikely to have free access to social media to view any comments from the public, limiting the impact of outside ridicule or embarrassment on the community. The Judge also considered that if suppression was granted there was a risk this would cast aspersions on other male members of the Gloriavale community, which would be unfair and not in the interests of justice.
[42] On the second ground of undue hardship to the victim, and distinct from the issues raised in Disciple, the Judge recorded a range of concerns about a second victim impact statement provided to the Court. This victim impact statement was sent via email to the police and enclosed a document recording that the victim supports suppression as a means to protect Mr Hope and his family, later adding that it would also avoid her being identified. The Judge acknowledged that normally the Court would give considerable weight to this. However, he noted the stark contrast between
30 Discovery New Zealand Ltd v FB [2021] NZHC 2903.
31 Police v Disciple [2022] NZDC 11586.
this email (dated 22 February 2022) and the victim impact statement given in May 2021, in which the victim spoke of the negative impacts the offending had on her. The Judge also referenced a restorative justice conference in which the victim had very limited involvement, leading to Police and Crown concern that the victim was not able to express her feelings free of other influence.
[43] In determining whether the publication of the summary of facts would be likely to identify the victim, the Judge noted Mr Hope has nine siblings and an extensive family, […]. Mr Hope has five children of his own and there are around 300 children within the community. The Judge considered that if other relevant details were suppressed, then it would be unlikely the publication of Mr Hope’s name and particulars would lead to the victim’s identification.
[44] The Judge distinguished this case from H(CA300/12) v R,32 where pre-trial suppression was in issue. In H v R the town where the defendant and victims resided had 100 members, whereas the Gloriavale community has approximately 600 members, meaning there are vast avenues of speculation about potential victims here. The Judge also considered that speculation as to who the victims are is not as significant of a concern given the number of victims in the Gloriavale community that have been uncovered by recent police investigations.
[45] The Judge declined to grant Mr Hope final name suppression or suppression of identifying particulars. However, to mitigate any risk that the victim would be identified, he ordered suppression of the […] between Mr Hope and the victim, the age of the victim at the time of the offending (other than that she was under 12) and the fact the victim has […].
Legal principles
[46] The starting point when considering the suppression of a defendant’s name or the particulars of criminal proceedings is the presumption of open justice.33 The business of the courts should be conducted publicly and any departure from this
32 H (CA300/12) v R [2012] NZCA 514.
33 Robertson v Police [2015] NZCA 7 at [43]; and D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [9]–[10].
general rule is required to be “only to the extent necessary to serve the ends of justice”.34 The grounds for the making of an order suppressing the identity of a defendant are set out in s 200 of the Criminal Procedure Act, which relevantly provides:
200 Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(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
…
(c) cause undue hardship to any victim of the offence; or
…
(f) lead to the identification of another person whose name is suppressed by order or by law; or
[47] The approach to be taken to suppression involves a two-step inquiry.35 First, the Court must determine whether any of the threshold grounds set out in s 200(2) are met. In the absence of the statutory criteria being fulfilled, the Court does not have jurisdiction to exercise its discretion. Second, if the Court is satisfied that one of the threshold criteria has been met, it must decide whether to exercise its discretion and forbid publication of the defendant’s details.36 It is at this stage that the presumption of open justice must be considered. In order to displace that presumption the balance must clearly favour suppression.37
[48] An appeal court is required to undertake its own assessment and form its own opinion as to whether the statutory threshold has been met.38 That evaluation will
34 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
35 D v Police, above n 33, at [10].
36 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 33 at [40]– [41]; and D v Police, above n 33.
37 D v Police, above n 33, at [12].
38 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
involve an assessment of fact and degree. While the appellate court must not defer to the lower court’s assessment, it remains incumbent on the appellant to identify error in the court’s decision and satisfy the appeal court that it should reach a different result.39 If satisfied that the statutory criteria has been met, the appeal court’s review of the second step, which involves the exercise of the trial court’s discretion, will be more limited. It must be focussed on whether the lower court, in exercising its discretion: erred in principle; failed to take into account a relevant matter or took into account an irrelevant matter; or was plainly wrong.40
Submissions
Appellant’s submissions
[49] Mr Zintl applied to adduce fresh evidence on appeal. This relates to an affidavit of Melody Hope, which describes how Gloriavale members have access to the internet within the community, and from Peter Jameson, that highlights a recent television documentary on Gloriavale.
[50] Mr Zintl submitted the Judge erred in finding there were no grounds for name suppression. He highlighted that the uniqueness of Mr Hope’s name makes him easily identifiable both now and in the future.
[51] Mr Zintl noted that the Judge partly based his decision on the premise that members of the Gloriavale community did not have free access to the internet and consequently would not be exposed to media articles and social media comments about Mr Hope. Mr Zintl submitted this finding was not available on the evidence before the Judge. Mr Zintl said this conclusion also failed to take into account the fact that former family members and friends of Mr Hope who had left the community could access the media and social media.
[52] Mr Zintl submitted that publication of Mr Hope’s name, even with the suppression of the […] between Mr Hope and the victim, would lead to the
39 Austin, Nichols & Co Inc v Stichting Lodestar, above n 38.
40 Wilson v R [2018] NZHC 1778 at [14], citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[33].
identification of the victim. He relied on the case of H v R, in which name suppression was granted because it was likely to lead to identification of the complainants.41 Mr Zintl said the victim would have been seen with Mr Hope and his family, increasing the risk of their identification.
Respondent’s submissions
[53] Ms Boshier accepted the affidavit of Mr Jameson is fresh evidence and should be admitted. She submitted the evidence from Melody Hope could have been obtained at the time of sentencing and accordingly is not fresh evidence. She accepted it is cogent and credible, but submitted it does not make any material difference to the decision on appeal because the Judge’s finding that Gloriavale members have limited access to the internet was only part of a broader finding that Mr Hope was part of an exclusive community that does not interact extensively with the outside world and supports him.
[54] Ms Boshier cited the decision of Mander J in Discovery New Zealand Ltd v FB where Mr Hope was granted interim name suppression pending trial, primarily to protect his fair trial rights.42 Ms Boshier notes that Mander J explicitly did not make a finding as to extreme hardship for Mr Hope in that case, and commented:43
The approach taken to the issue to name suppression in respect of the four members of Gloriavale currently facing active charges in respect of charges of child sexual abuse should not be conflated with the question of suppression in respect of an individual defendant convicted of such offending. The other defendants’ trials will not take place for some time and consideration of whether publicity relating to one of more of the defendants pleading guilty or whether that will materially add to the prejudicial effect of information already in the public domain will have to be subject of separate assessment. The Court of Appeal’s approach in Standfast is likely to be influential.
[55] Ms Boshier submitted the threshold of extreme hardship is not met because Mr Hope failed to identify any particular hardship to himself or his family beyond that ordinarily expected. She acknowledged that social media increases the risk of hardship, and that the Gloriavale community attracts a high degree of media interest. However, Ms Boshier submitted the fact publication will generally excite curiosity
41 H v R, above n 32.
42 Discovery New Zealand Ltd v FB, above n 30.
43 At [70].
and criticism and will cause embarrassment are usual consequences of a criminal offence being reported. Ms Boshier accepted that while high volume media reporting may impact fair trial rights, that is not relevant to a decision relating to final suppression.
[56] As to the risk of identifying the victim, Ms Boshier submitted the Judge was correct to be careful in placing weight on the second victim impact statement, given the unusual circumstances. Ms Boshier submitted that given the extent of Mr Hope’s familial relations and the fact there are 300 children within the Gloriavale community, the Judge was correct to find that suppression of […], the exact age of the victim, and the fact she […] make it very unlikely the victim would be identified through publication of Mr Hope’s name.
[57] Even if the grounds for name suppression are made out, Ms Boshier submitted that this Court should not exercise its discretion to allow suppression because publication is in the interests of justice. She submitted the public have an interest in knowing about serious offending against young family members and people should be able to identify Mr Hope so they can safeguard their families. She further submitted that publication may also encourage other victims to come forward.
Media submissions
[58] Mr Stewart—for Radio New Zealand Ltd, Stuff Ltd and Television New Zealand Ltd—supported and adopted the Crown submissions. He emphasised that on an assessment of the evidence and submissions in relation to hardship, cumulatively and in context, this case does not reach the very high threshold for extreme hardship.
[59] Mr Stewart further submitted that media articles and social media comments in the public domain that are critical of the Gloriavale Community (even sharply so) do not of themselves create extreme hardship for either Mr Hope or his family. He states the release of the documentary film adds to the commentary on Gloriavale in the public domain but does not make any material contribution to the hardship matrix for Mr Hope as an individual. In this sense, Mr Stewart distinguishes the facts in this
case from those in X (CA226/2020) v R44 and DV (CA451/2021) v R,45 in which there was evidence of comments on social media directed at the defendant personally, these comments contained inaccuracies and abusive content, and there was evidence of psychological harm suffered by both defendants as a result of those social media comments.
[60] Mr Stewart submitted the risk of identifying the victim has been appropriately addressed by the suppressions as to […] and other matters ordered by the Judge. In relation to the views of the victim, he submitted the Court must be satisfied a threshold ground has been made out before taking into account the views of a victim as part of the discretionary exercise. Mr Stewart submitted the weight given to those views is a matter for the Court. He notes the public interest in publication may outweigh those views.46 Mr Stewart submitted that as the Judge was not satisfied that a threshold ground had been made out, the victim’s views as to whether Mr Hope should be granted permanent name suppression were arguably irrelevant.
Analysis
Application to adduce fresh evidence
[61] I grant the application to adduce fresh evidence on appeal. Mr Jameson’s affidavit refers to recent media articles and, in particular, a documentary that was broadcast post-sentencing and so could not have been addressed by the appellant in the District Court. I agree it has relevance to the question of suppression. Similarly, I am satisfied the evidence of Ms Hope, whilst clearly available when suppression was considered in the District Court, only assumed relevance given the observation made by the Judge as to the likelihood of the Gloriavale Community having access to the internet and social media.
44 X (CA226/2020) v R [2020] NZCA 387 at [40].
45 DV (CA451/2021) v R [2021] NZCA 700.
46 Citing A (CA605/2016) v R [2017] NZCA 49.
Suppression
[62] Mr Zintl submitted publication of Mr Hope’s name would cause Mr Hope and his family extreme hardship and would be likely to lead to identification of the victim and thereby cause them undue hardship.
[63] It is well established that the threshold for “extreme hardship” is very high.47 The Court of Appeal has clarified that an assessment of whether the identified hardship is “extreme” is a contextual one and entails a “relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published.”48 The consequences must be something more than those that would ordinarily be associated with publication of a defendant’s name.
[64] In making this assessment, a defendant’s cultural and religious beliefs, the characteristics of their community, and their place within it, are all considerations that form part of the assessment of whether that person will suffer extreme hardship from publication.49
[65] Mr Zintl claimed Mr Hope and his family would experience extreme hardship if his name was published given the uniqueness of his name and the likelihood of high media interest.
[66] I accept that publication of such a distinct name is likely to draw public attention to the Gloriavale community, especially in the form of media reporting. However, this appeal concerns the effects on Mr Hope and his family, rather than the Gloriavale community as a whole. I have not had submissions on behalf of the community.
[67] Much of Mr Zintl’s submissions focus on the role of social media in suppression determinations. This submission is logically linked to the uniqueness of Mr Hope’s name.
47 Robertson v Police, above n 33, at [48].
48 At [49].
49 Beshara v R [2018] NZCA 66 at [7].
[68] The Court of Appeal in X v R made the following statements about social media and “cancel culture”:50
[49] But commentary about a case or about a defendant on social media is a very different matter. There can be no reasonable expectation that such reportage will be fair or accurate. And there is no realistic way of controlling its content or its spread, particularly in a high profile and politically controversial case. In our view this is a problem with which the Courts have yet fully to grapple, particularly in the context of suppression under s 200(2)(a), where a defendant is young and, so, especially vulnerable to trolling, doxing, and internet vigilantism.
…
[51] … In the context of the proposed reforms, the Law Commission was aware of, and discussed the difficulties posed by, social media in terms of maintaining and respecting suppression orders. But no consideration was (or could have been) given to the universality and toxicity of social media’s current form. Nor could consideration have been given to the even more recent phenomenon of “cancel” or “call-out” culture, in which social media is weaponised against those deemed to have transgressed the norms of any online group (or mob). And there can be no doubt that this new culture of public shaming has the potential to be mercilessly inflicted on young people who become embroiled in the criminal justice system — particularly in the context of alleged sexual offending — however briefly, and whatever the legal outcome of the case.
[69] In his dissenting comments in DV v R, Downs J warned against X v R being applied broadly.51 He considered that would present a risk of X v R becoming a “Trojan Horse in relation to name suppression, thereby allowing suppression when that would not otherwise be justified”52. Downs J emphasised that, although people publish outrageous things on social media, people are well aware that social media is a platform for such comments. He warned against the vocal minority on social media being allowed to overwhelm the legitimate public interest in the publication of the defendant’s name.53
[70] I do not consider the facts of this case give rise to the concerns voiced by the Court of Appeal in X v R.54
50 X v R, above n 44 (footnotes omitted).
51 DV v R, above n 45, at [77]–[78].
52 At [78].
53 At [78].
54 X v R, above n 44.
[71] The case of X v R concerned a young man who had assaulted others at a camp. He was originally charged with indecent assault, but the charge was subsequently lowered. He was granted a discharge without conviction on two common assault charges. The Court of Appeal were concerned about his youth and the effect social media would have on him in light of his age and unique name. These factors meant the offending would follow him for the rest of his life, and therefore likely impact his ability to find employment. The Court of Appeal was also concerned about “cancel culture” in the sense that X had received a discharge without conviction, and it was therefore possible that people on social media would attempt to bring him to justice in the view that the courts had not. The Court of Appeal pointed to many specific social media comments that were inaccurate and prejudicial about X.
[72] The facts here differ in the sense that Mr Hope is not a young man, so the impacts of social media on a young person are not relevant. I also do not consider there is anything suggesting inaccurate of unfairly prejudicial comments specific to Mr Hope and his family (rather than the community in general) will be published. Even with the heightened interest this case may receive, the consequences of social media comments would not likely go beyond that ordinarily expected in a case where a defendant’s name is published in relation to criminal offending. As raised by Mr Stewart, the Court must exercise care to distinguish responsible media from the social media “keyboard warriors”.
[73] Further, Mr Hope plans to return to the Gloriavale community, where he is supported, and so the long-term impacts of social media on him are also lesser. Mr Zintl has provided evidence of comments on social media about Gloriavale related to the sexual offending that has been written about in the media. These comments call Gloriavale a “cult” and demand that it is shut down. Putting to one side the issue of whether these comments would reach Mr Hope and his family, even if they did, they show vitriol towards the Gloriavale community generally, and not towards Mr Hope personally. Furthermore, it seems inevitable that many in the Gloriavale community already know about Mr Hope’s offending.
[74] No evidence has been provided, or persuasive submission advanced, of any particular extreme hardship to Mr Hope or his family beyond that which would
normally stem from publication of a defendant’s name. This reflects the position as it was before Mander J in Discovery New Zealand Ltd (in which the issue of interim name suppression was considered), where it was noted that “no … particular form of hardship as it relates to the individual defendants was identified”.55
[75] It follows that I do not consider any of the grounds raised by Mr Zintl, either separately or cumulatively, amount to extreme hardship.
Risk of identifying / undue hardship to victim
[76] Mr Zintl also submitted that publication of Mr Hope’s name is likely to cause undue hardship to the victim by identifying them. In support of this submission, he noted that the victim would often have been seen with Mr Hope, making her easily identifiable.
[77] As was noted by Mander J in Discovery New Zealand Ltd, the Gloriavale community is relatively small and tight-knit.56 There are approximately 300 children in the community. More specifically, Ms Boshier has appropriately highlighted that the victim is one of […] children. […].
[78] Mr Hope also has a large family, with nine siblings. Police estimate […]. Mr Hope has five children of his own.
[79] The Judge suppressed publication of the […] between Mr Hope and the victim, the age of the victim at the time of the offending (other than that they were under 12) and the fact the victim […]. As discussed with counsel, an order suppressing the dates of the offending would further broaden the pool so as to mitigate any real risk of identifying the victim.
[80] I consider these suppression orders adequately mitigate the issues identified by Mr Zintl. Any of the many children related to Mr Hope or within the wider Gloriavale community could have been seen spending time with Mr Hope.
55 Discovery New Zealand Ltd v FB, above n 30, at [27].
56 At [39].
[81] As I have found the victim is unlikely to be identified from the publication of Mr Hope’s name, it follows that Mr Zintl’s submission concerning publication leading to the identification of another person whose name is suppressed does not succeed.
[82] Overall, Mr Hope has failed to establish that the threshold for granting name suppression under s 200(2) of the Criminal Procedure Act has been established. It is therefore unnecessary to consider the second step as set out above at [48], however I consider there is no discernible error in principle, failure to take into account a relevant matter, consideration of an irrelevant matter or plainly wrong decision. I recognise the importance of the principle of open justice, particularly in relation to sexual offending against children and young people.
Victim impact statements
[83] A victim impact statement was prepared shortly after the charges were laid in June 2021. The victim was then aged […] years. It described the victim’s confusion at the time of the offending, their avoidance of Mr Hope and a dislike of being touched.
[84] An email dated 22 February 2022, attaching a second victim impact statement was presented to Judge Garland through the victim’s father. The attached statement records that Mr Hope’s offending had little impact on the victim, that the events were in the past, and expressed their forgiveness of Mr Hope. The email from the victim’s father records the victim’s expressed desire for a suppression order to protect Mr Hope and his family, and to avoid their identification.
[85] The police had no involvement in the preparation of either document. The Judge expressed concern and reservation as to whether the victim was expressing her feelings free from the influence of others.
[86] Late in the evening prior to the hearing of this appeal, Mr Zintl received a further email from the victim’s father expressing similar views to those recorded in the 22 February 2022 material and taking issue with comments made by the Judge. The further email had been sent to the police very shortly prior to it being sent to Mr Zintl. In response, the police took steps to speak directly with the victim, without success. Ms Boshier submitted it was inappropriate for the prosecution to be offering
the father’s email as a victim impact statement and submitted the Court should not place weight on the email. She referred to non-compliance with ss 18 to 21 of the Victims’ Rights Act 2002. Whilst that Act provides for a process for a victim impact statement to be considered by a sentencing court, the position as regards a victim’s views on an application for permanent name suppression is less prescriptive. Section 28 of the Act simply provides that in the event of an application for permanent name suppression, the prosecutor must make all reasonable efforts to ensure the views of the victim are ascertained and must inform the court of those views.
[87] I raised the possibility of adjourning the appeal in order for a compliant updated victim impact statement to be provided or for the prosecution to take appropriate steps to be satisfied that the views expressed on behalf of the victim are in fact their own. On further reflection, I do not regard an adjournment or further inquiries to be either necessary or appropriate.
[88] In sentencing Mr Hope, the Judge did not place particular weight on the victim’s views either as an aggravating factor or otherwise. In my view, the more recently expressed victim’s view that the offending has had no lasting impact on her is properly recognised as the absence of an aggravating factor rather than a mitigating factor. Mr Zintl did not suggest otherwise. Even accepting the emails and the attachment do reflect the victim’s present views, I do not find the victim’s views to be of such moment as to impact on the sentence appeal.
[89] As regards name suppression, I am content to take into account the most recent email from the victim’s father purporting to record the victim’s view that publication of Mr Hope’s name could identify the victim, and her desire for ongoing suppression to protect the broader Hope family. I have concluded that the current suppression order, together with suppression of the dates of offending provide adequate safeguards to ensure the victim is not identified if Mr Hope’s name is published. I have regard to the victim’s sympathetic views towards the appellant’s family but do not consider those views override the broader public interest considerations and, in particular, the presumption of open justice.
Conclusion
[90] The appeal against refusal to grant suppression of Mr Hope’s name and identifying particulars is dismissed. As a further precautionary measure to ensure the victim is not identified, I make an order suppressing the dates of the offending.
[91] At the request of Mr Zintl, I order that the interim suppression order is to remain in place until 5 pm 21 October 2022 to allow time for consideration of a further appeal.
...................................................
Eaton J
Solicitors:
Crown Solicitor’s Office, Christchurch
Copy to:
Marcus Zintl, Barrister, Blenheim
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