Houpt v Police - [2015] NZHC 2557

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-66 [2015] NZHC 2557

BETWEEN
ANDREW DAVID HOUPT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 October 2015

Counsel:

I M Antunovic for Appellant
M J Ferrier for Respondent

Judgment:

19 October 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] Mr Houpt pleaded guilty to two charges of, being a person receiving commercial sex services, not taking all reasonable steps to use a prophylactic.1 Both charges arose out of the same occasion. On 1 September 2015 Judge Hastings discharged Mr Houpt without conviction. His Honour refused, however, to grant Mr Houpt permanent name suppression.2

[2] Mr Houpt now appeals against that refusal.

Facts

[3] On the night of Saturday 18 October 2014, Mr Houpt was staying at a hotel in central Wellington. He hosted a party at his suite that went on throughout the
night.

1 Prostitution Reform Act 2003, s 9(4), the maximum punishment being a fine not exceeding
$2,000.
2 Police v Houpt [2015] NZDC 17268.

HOUPT v NEW ZEALAND POLICE [2015] NZHC 2557 [19 October 2015]

[4] At around 8am, Mr Houpt arranged for Ms A, a sex worker, to come to his suite at the hotel.

[5] Ms A performed oral sex on Mr Houpt, and the pair engaged in sexual intercourse. Both occurred without the use of a condom. Ms A did have condoms in her bag. It appears there was some discussion and agreement not to use condoms, although this occurred after the oral sex, and before the intercourse.

[6] Ms A subsequently complained to the police. Mr Houpt was charged and first appeared in Court on 20 March of this year. Mr Houpt pleaded guilty to the charges on 11 May and applied to be discharged without conviction pursuant to s 106 of the Sentencing Act. Mr Houpt was granted interim suppression of his name and occupation, pending the determination of that application. After a hearing on
1 September 2015 Judge Hastings granted that application, but declined permanent name suppression.

[7] In reaching his decision to discharge Mr Houpt without conviction, the Judge accepted that the gravity of Mr Houpt’s offending was low, as the police had acknowledged. He accepted there was some stigma attached that could have some consequence on Mr Houpt’s employment, at least in the short term. The Judge was more concerned, however, with the consequence that a conviction would have under the clean slate legislation. Mr Houpt has a number of convictions for offences committed between 2005 and 2009, when he was between the ages of 17 and
21 years. Convictions for this offending would effectively keep alive those convictions for another seven years. Judge Hastings considered that to be “a significant consequence of convictions for fineable only offences”.3 The Judge also noted the consequence of the black mark reflected by a conviction, as recognised by the Court of Appeal in DC v R.4

[8] On the question of name suppression, the Judge correctly started with the principle of open…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Houpt v Police

Details

AGLC: Houpt v Police [2015] NZHC 2557
Case: [2015] NZHC 2557
Decision Date: 19 October 2015

CaseChat Overview and Summary

The High Court of New Zealand dealt with an appeal by Andrew David Houpt against the refusal of the District Court to grant him permanent name suppression. Houpt had pleaded guilty to charges of receiving commercial sex services without taking reasonable steps to use a prophylactic. The District Court discharged Houpt without conviction but refused to grant permanent name suppression, a decision Houpt sought to appeal. The legal issue before the court was whether the refusal to grant permanent name suppression was correct, given the potential for significant stigma and its impact on Houpt's employment prospects.

The court examined the statutory framework, including the principle of open justice and the high threshold for granting name suppression under the Criminal Procedure Act 2011. The court noted that the principle of open justice underpins the requirement for publication to cause "extreme hardship" for name suppression to be granted. While acknowledging that publication could cause embarrassment and some employment difficulties, the court found that it did not reach the level of extreme hardship. The court also considered the purpose of the Prostitution Reform Act 2003, which does not morally sanction prostitution, and the complexities of public policy and private moral considerations in this area.

In dismissing the appeal, the court held that Judge Hastings' assessment of the potential hardship was accurate and that the embarrassment caused by publication did not equate to extreme hardship. The court concluded that the stigma and employment impacts, while significant, did not meet the statutory threshold for name suppression. As a result, the appeal was dismissed, and no further appeal was indicated by Houpt's counsel.

Orders