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JK v Police

JK v Police

Case [2024] NZHC 3648 11 December 2024

Discharge Without Conviction

Name Suppression

Criminal Law

Mental Health Law

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF THE APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-52

CRI-2024-412-53 [2024] NZHC 3648

BETWEEN
JK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 November 2024

Appearances:

M A Stevens KC for the Appellant P A Norman for the Respondent

Judgment:

11 December 2024

JUDGMENT OF HARLAND J

Introduction

[1] On 24 September 2024, the appellant, having pleaded guilty to one charge of being unlawfully in an enclosed yard1 and three charges of burglary,2 was sentenced in the District Court to four months' community detention and 150 hours' community work. He now appeals, seeking a discharge without conviction and name suppression, both applications having been unsuccessfully advanced before the District Court Judge.

1 Summary Offences Act 1981, s 29(1)(b); maximum penalty three months’ imprisonment.
2 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

JK v POLICE [2024] NZHC 3648 [11 December 2024]

[2]The Crown opposes the appeal.

[3] The appellant sought leave to produce further evidence on appeal. This was not opposed by the respondent. The new evidence is relevant, and I allow the application for its production.

[4] I have decided to allow the appeal both as to sentence and as to name suppression. This judgment sets out my reasons for doing so.

The offending

[5] In 2024, the appellant, a 20-year-old student, was flatting in Dunedin. He attends the University of Otago, undertaking a double major degree in the sciences. He has no previous convictions and is otherwise of good character. The appellant is likely to have been suffering from a major depressive disorder with anxious distress at the time of his offending. The offending occurred in April 2024.

[6] Around 10.40 pm on 18 April, the appellant entered a property in Dunedin and walked down the side of the house, where items of clothing belonging to the female occupants were hanging on a clothesline. The CCTV at the property alerted the occupants to the appellant's presence. They yelled at him and he ran away.

[7] On 21 April, in the early hours of the morning, the appellant entered another property in Dunedin. He walked to the rear of the yard and entered an open laundry shed. He took two items of underwear from the laundry box.

[8] The appellant went to another property on the same street. Again, he walked to the rear of the property and took an item of underwear that was lying on the ground under the washing line.

[9] The appellant then went to a third property on the same street. He walked to the rear of this property and entered the dwelling through an unlocked door. Several of the flat's female residents were home at the time and asleep in their rooms. The appellant began searching the lounge and found an item of underwear under the couch, which he placed…

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 JK v Police

Details

AGLC: JK v Police [2024] NZHC 3648
Case: [2024] NZHC 3648
Decision Date: 11 December 2024

CaseChat Overview and Summary

The appellant, a 20-year-old student with no prior convictions, was convicted and sentenced in the District Court to four months' community detention and 150 hours of community work for one charge of unlawful entry into an enclosed yard and three charges of burglary. He now appeals the District Court's decision on two grounds: first, the refusal to discharge him without conviction, and second, the refusal to grant name suppression. The Crown opposed the appeal. The High Court allowed the appeal on both grounds.

The appellant, suffering from a major depressive disorder with anxious distress, entered several properties in Dunedin to steal women's underwear. The victims were significantly impacted by the incidents. The District Court assessed the offending to be at the lower end of serious and found that the consequences of a conviction were not out of proportion to the seriousness of the offence. The appellant was sentenced to community detention and community work.

The appellant's counsel argued the gravity of the offending was overstated and that the consequences of conviction would be disproportionately severe for the appellant. The High Court found the offending to be at the lowest end of moderate, rather than at the lower end of serious as the District Court had found. It also found the consequences of conviction were serious and significant, particularly in relation to the appellant's mental health, self-esteem, employment prospects, and ability to travel. The High Court concluded the consequences of conviction were out of proportion to the seriousness of the offending and allowed the appeal as to outcome, discharging the appellant without conviction.

The appellant also sought name suppression, arguing that publication of his name would likely cause him extreme hardship due to the exacerbation of his mental health issues and the potential for social media shaming. The Crown argued that the appellant's support networks and the lack of evidence of actual self-harm meant the threshold for extreme hardship was not met. The High Court found that the appellant's mental health issues and the unique circumstances of the case, including the language used in media reports, meant publication was likely to cause him extreme hardship. It exercised its discretion in favour of suppression, making a permanent order prohibiting the publication of the appellant's name, address, or identifying particulars.

Orders