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 justice.  That principle finds its expression in the pre-condition for

any grant of permanent  name suppression found in s 200(2)(a) of the Criminal

3 At [9].

4      DC v R [2013] NZCA 255.

Procedure Act  2011,  namely that  of  publication  being  “likely to  cause  extreme hardship to the person convicted of an offence”.  That principle is also recognised in subs (3) of s 200, which provides:

200     Court may suppress identity of defendant

…

(3)       The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

[9]      Against that background, the Judge was not persuaded that Mr Houpt had established that  publication  of his  name  would  be likely to  cause him  extreme hardship.   The Judge recognised that publication could cause embarrassment, and could have some effect on his work due to the possible stigma associated with “sexual offending”.  On the other hand, the Judge reasoned that a conviction such as this  might  attract  some  sympathy,  as  many  people  would  not  be  aware  that Mr Houpt’s actions constituted an offence.  The Judge, correctly in my view, noted the complexity of the public policy underlying the criminalisation of Mr Houpt’s conduct and, therefore, the different perceptions members of the public would have of such offending.   Whilst publication would be embarrassing, it did not in the Judge’s view reach the level of extreme hardship.

Submissions on appeal

[10]     For Mr Houpt, Mr Antunovic submits that real and significant stigma would attach to Mr Houpt if his name were published.  This would affect his chances of employment as a real estate agent.   When he had disclosed to his then current employer that he was the person involved in this offending, the employer had, in effect,  encouraged  him  to  resign.    Mr  Houpt  had  done that,  and  was  currently overseas.  Were his name to be published, he would face similar difficulties when he returned from overseas, as he intends to do.

[11]     The following extract from Mr Antunovic’s written submissions captures the

core of his argument:

18.His case was that this offending would likely be seen by others as involving an element of sexual offending and that there would be a significant stigma  attached  to his  having sex  with a  prostitute  – although a legal activity – but one which inherently involves secrecy and  discretion.    Clearly  most  citizens  would  prefer  any  sexual liaisons with prostitutes to be kept strictly confidential.  The stigma might be seen as having more significance in circumstances where there has not only been sex with a prostitute, but that condoms had not been used.

19.Accordingly, the Defence case was that if his name was published, it would cause him more than mere embarrassment in his employment.

[12]     The very considerations that had led the Judge to discharge Mr Houpt without conviction are ones that support the conclusion that publication of his name would cause him extreme hardship.

Analysis

[13]     Section 3 of the Prostitution Reform Act 2003 reads:

3        Purpose

The purpose of this Act is to decriminalise prostitution (while not endorsing or morally sanctioning prostitution or its use) and to create a framework that—

(a)     safeguards the human rights of sex workers and protects them from exploitation:

(b)     promotes the welfare and occupational health and safety of sex workers:

(c)     is conducive to public health:

(d)     prohibits the use in prostitution of persons under 18 years of age:

(e)     implements certain other related reforms.

[14]     Within that context, s 9(1) provides:

9        Sex workers and clients must adopt safer sex practices

(1)       A person must not provide or receive commercial sexual services unless he or she has taken all reasonable steps to ensure a prophylactic sheath or other appropriate barrier is used if those services involve vaginal, anal, or oral penetration or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible infections.

[15]     As can be seen, therefore, s 9 promotes the health of sex workers and is conducive to public health.

[16]     The threshold for name suppression provided now in the Criminal Procedure Act is a high one.  The codification of statutory powers of exclusion and suppression was intended to, and has, narrowed the grounds upon which such orders can be made. As Whata J observed in R v Wilson:5

Plainly a high level of hardship is contemplated and something more than undue or simply disproportionate to the circumstances.    The Law Commission referred to hardship “out of all proportion to the public interest in open justice in the particular case, especially if the person suffers from physical or mental ill health”.

[17]     Generally, the stigma that attaches to a conviction, and the effects of that stigma as argued here on a person’s terms of employment, reflect public disapproval of the criminalised conduct.  In this case, and reflecting the Act’s neutrality on the morality of participation in commercial sexual activities, the stigma that Mr Houpt is concerned with would appear to be more to do with the private, and non-criminal, aspects of Mr Houpt’s behaviour, than it is with those aspects of that behaviour that have been criminalised.

[18]   Seen from either perspective, I think Judge Hastings’ assessment of embarrassment, as opposed to extreme hardship, was an accurate one.   I am not persuaded that there would be such an impact on Mr Houpt’s prospects of employment as a real estate agent as to give rise to extreme hardship.  Again, and as Judge Hastings also recognised, the complexities of private moral and public policy considerations in this area count against such a conclusion.

Result

[19]     I therefore dismiss Mr Houpt’s appeal.  Mr Antunovic advised me that, if I did so, Mr Houpt would not appeal further.   There is, therefore, no need for any interim order.

“Clifford J”

5      R v Wilson [2014] NZHC 32 at [24] (footnotes omitted).

Solicitors:

Antunovic Law, Mana, Wellington

Luke Cunningham & Clere, Crown Solicitors, Wellington