JK v Police

[2024] NZHC 3648

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 in his pocket. He then went upstairs and entered a bedroom where

he took other items of underwear from a set of drawers. As he was returning downstairs, the appellant was confronted by an occupant. Her victim impact statement records that he acted dazed and confused as if he was intoxicated or lost, could provide no explanation for his presence and left when asked. This victim took a photo of him on her phone before he left.

[10]              Later that day, the Police spoke to the appellant. He admitted that he had been involved in the incidents outlined above. The Police were investigating an unrelated incident, so it was the appellant's frank admission that identified the prior incidents that night and the incident several days earlier. When asked, the appellant said that taking the items of underwear and going onto the properties excited him.

[11]              The appellant was charged with unlawfully being in an enclosed yard (the 18 April offending) and with burglary (the three incidents on 21 April). He pleaded guilty to the charges at the earliest opportunity.

Impact of the offending on the victims

[12]              Four victim impact statements from female residents of the properties the appellant went onto and into in the early hours of 18 and 21 April were provided to the Court at sentencing.

[13]              An occupant of the first property (the 18 April offending) said that the incident had a profound impact on all those living at the address. She described them as living in a state of constant fear and anxiety. They have become hyper-vigilant, monitoring their surroundings and keeping their doors and windows locked at all times after the incident. She described how the occupants changed their daily routines, including avoiding leaving the house after dark. She said they found it difficult to relax or feel at ease at the property, describing the impact of the offending as amounting to "severe psychological and emotional effects".

[14]              The second victim impact statement (the first incident on 21 April 2024, when underwear was taken from the laundry box) outlines how the incident had made the author and her flatmates feel anxious and unsafe in their flat. She said they no longer felt secure walking around the property at night, leaving their laundry out or going for

runs on their own. After the incident, they took to locking their laundry shed and doing their laundry during the day. She said they felt wary and vigilant of their surroundings in the dark and felt uncomfortable sleeping alone. She said:

This experience has caused significant emotional distress and the theft has heightened out concerns for the safety of our belongings. By sharing these details, we hope the impact of this incident on our daily lives and wellbeing, especially as young female students, is understood.

[15]              The third victim impact statement was made on behalf of seven residents living at the second property the appellant went to on 21 April. This was where he took an item of underwear lying on the ground under the clothesline in the backyard. The author referred to each of the residents being impacted on "a mental and emotional level". The statement described them feeling vulnerable, scared and unsafe, and referred to their privacy being "violated". This victim said:

It would be an injustice not only to us, but any other flat that has been affected in the same way if the person responsible for this comes back into the community without any restorative justice.

[16]              The final victim impact statement was made on behalf of nine residents living at the property which the appellant actually entered on 21 April 2024. I have referred to this victim's observations and interactions with the appellant that night in [9] above.

[17]              The victim said the incident left the residents with a very uneasy feeling; they all felt personally violated and unsafe in their home and many of them experienced difficulties going to sleep at night. The residents were concerned that the appellant had been watching the property. They did not feel safe walking around their flat at night or being home alone. However, the victim impact statement ends with the following:

We all believe that, due to his intentions of stealing only bras and underwear, the offender needs some serious mental health intervention. This was not a regular burglary, and we all collectively hope that he will have to take steps to alter these behaviours to ensure it does not happen again.

[18]              In line with that view, it is hoped that the reasons contained in this judgment help to explain that the appellant's deviant behaviour was an attempt by him to deal with his own, now diagnosed, psychological distress and that the victims can see this

offending, while repugnant, has enabled him to take significant steps to address his psychological distress in a meaningful and rehabilitative way.

[19]              The final victim impact statement shows considerable maturity in recognising and foreshadowing these matters, particularly as it correctly, in my view, observes the offending that occurred at their property did not comprise a regular burglary. This offending was the most invasive of all the offending. The reference to, and hope for, a rehabilitative outcome by these victims is a mature and compassionate one.

Decision under appeal

[20]              The Judge's decision was careful and considered. For this reason, I have outlined what he decided in more detail than would normally be required.

[21]              As well as the victim impact statements referred to above, the Judge had a memorandum indicating that restorative justice, while requested by the appellant, had not proceeded. The Judge had written submissions from both the Police and the appellant's counsel, as well as various reports, character references, letters of support and letters written by the appellant to the victims of his offending expressing remorse for his actions. The reports addressed the appellant's psychological issues and outlined the treatment he had voluntarily undertaken since the offending and was continuing to undertake. There was also a Provision of Advice to Courts (PAC) report.

[22]              The Judge outlined the statutory test that applies to discharges without conviction3 and the sentencing principles engaged in this case.4

Gravity of the offending

[23]              The Judge addressed the gravity of the appellant's offending, focussing on his culpability for it, and he outlined the aggravating and mitigating factors he considered were relevant both in relation to the offending and the appellant himself. The Judge identified the aggravating factors as the deviant nature, number and escalation of the appellant's offending, and the fact the properties were residential, with the associated

3      Criminal Procedure Act 2011, ss 106 and 107.

4      Sentencing Act 2002, ss 8(g)-(h), 10A and 11(1)(a).

invasion of privacy. The Judge also determined that the offending involved a degree of premeditation and described the occupants of the addresses as vulnerable.

[24]              With reference to similar cases, the Judge said a starting point of 12–15 months’ imprisonment could be adopted. He used this as a point of reference to help him to determine the gravity of the offending.5

[25]              The Judge referred to the appellant's guilty plea and youth as mitigating factors, before addressing mental health and remorse. He said:

[41]   There are certainly matters in your background that reflect poor mental health, and I hope I do not do you a disservice by not going through the details of the two reports I have in open court.

[42]   I think I can summarise the background as originating in bullying while at school, leading onto social anxiety which has effectively led you on a downward spiral, causing you to view pornography, indeed in increasing volumes, and leading towards a fetish that has involved you purchasing underwear and then going beyond that, entering onto property to seek out women’s underwear and indeed, particularly on that final occasion, into a dwelling.

[43]   That risk-taking behaviour has provided some measure of relief through you engaging or acting out or escapism, so that explains but does not justify the offending. You have done all the right things in responding to this, including engaging with the STOP programme, seeking support through your general practitioner and engaging in counselling through the university.

[44]   You have demonstrated remorse. That is clearly evident in the letters that you have written. Certainly, it goes without saying that this offending is entirely out of character. In saying that, I draw heavily on what your mum has said to me in the letter that she has written.

[26]              Taking into account the aggravating and mitigating factors he had referred to, the Judge characterised the offending to be at the “lower end of the serious category” and “certainly more than moderate”.6

Direct and indirect consequences

[27]              In assessing consequences, the Judge referred to the Criminal Records (Clean Slate) Act 2004 (Clean Slate Act), observing that the convictions would be subject to

5      With reference to Police v Crofts [2024] NZDC 14285; Police v McEwan DC Invercargill CRI- 2010-017-77, 15 June 2010.

6 At [46].

it, meaning that after seven years the appellant could answer a question about his criminal record by stating that he didn’t have one. The Judge found this counteracted the contention that a conviction would permanently mark the appellant as dishonest and deviant.

[28]              The Judge then addressed the consequences (described as immediate) in relation to future employment, whether the appellant will be able to continue with his studies at university and whether he would be able to undertake post-graduate research, for which he is a candidate, being in the top 10 per cent of his cohort and described as a "diligent engaged student who takes his studies seriously".

[29]As to the appellant's employment prospects, the Judge said:

[56]   Employment is always a vexed issue for the Court. That is because one of the reasons why we have the entry of a conviction is that it carries a social stigma, which the law sustains by recording and publishing convictions.7 It is immediately accepted that a conviction can impact on a person’s career, but what the authorities say is that the consequence of conviction must normally yield to the employer’s right to know.8

[57]   The authorities also suggest, or confirm, that this principle applies to all offenders for whom convictions are recorded, including the young.9

[58]   The authorities go on to say that the Court should be hesitant to usurp the role of a particular employer or training body to decide the significance of a particular conviction.10 Certainly, there is a body of authority that confirms that it is not the function of the Court to pre-empt decisions by employers about the suitability of prospective employees.11

[30]              The Judge referred to the impact on travel as well as the general consequences of matters going to the appellant's reputation, self-esteem, ability to obtain insurance and the like. In relation to the consequences of a conviction on the appellant's ability to travel, while recognising that this is a difficult matter to assess, particularly because the appellant is still in the early stages of his career, and with reference to Edwards v R,12 the Judge accepted that travel to the United States and possibly Australia may be

7      R v Taulapapa [2018] NZCA 414 at [42](a).

8      At [42](a).

9      At [42](a)

10     Stewart v Police [2015] NZHC 165 at [30]; Maraj v Police [2016] NZCA 279 at [36]; Kahu v R

[2018] NZHC 2521 at [41](c).

11     C(CA210/2020) v R [2020] NZCA 443 at [26]; Graham v Police [2018] NZCA 172 at [29]. See

also Police v Roberts [1991] 1 NZLR 205 (CA).

12     Edwards v R [2015] NZCA 583.

difficult, but also found there was “not sufficient evidence to meet the criteria that [he was] required to consider”.

[31]              In concluding his discussion about consequences and proportionality, the Judge said:

[64]      I get to the point in my consideration of the consequences that there is certainly an appreciable risk of you being unable to find employment that is commensurate with your abilities or indeed to continue in education, and there is some risk that travel will be inhibited.

[65]      Those are consequences that in my judgment are moderate, so not out of all proportion to the seriousness of the offence.

[66]      It follows that, while giving as much weight to your background as I can, this is still serious offending, such that you do not satisfy me that the consequences of conviction would be disproportionate to the seriousness of the offence. I am therefore bound to enter convictions on each of those charges.

Sentencing outcome

[32]              Although the recommendation in the PAC report was for the appellant to be convicted and discharged on all charges (with separate alternatives of community detention or community work provided), the Judge decided that, given the number and nature of the charges and his view that there needed to be a “measure of restriction on [the appellant's] liberty”, a sentence of community detention for four months with a curfew from 7 pm to 7 am, seven days a week, and 150 hours' community work was imposed.

Suppression

[33]              The Judge next addressed whether he could be satisfied that one of the consequences in s 200(2) of the Criminal Procedure Act 2011 (CPA) would likely follow if he did not make an order suppressing the appellant's name.

[34]              In assessing whether there was a likelihood of extreme hardship, the Judge addressed the appellant's risk of self-harm and matters relating to his mental health, which had been included in a report prepared for the Court. He said:

[78]   Taking into account the factors that are identified there and noting that the opinions of medical professionals deserve respect, the Court is not required to defer to those without adequately addressing alternative ways in which the risk might be managed.

[79]   The Court observes that there are normally ways of managing the risk and, generally, the Court will be assisted by recommendations for evaluating how risks can be managed.

[80]   In this case, what is clear is that you have a supportive family environment and are well engaged with the appropriate professionals. Those matters to me suggest that the risks are not at the level of extreme hardship. That is because you have the ability to seek out assistance and you have shown your ability to do that.

[35]The application for name suppression was dismissed.

By refusing the application for a discharge without conviction, has a miscarriage of justice occurred?

Legal principles

[36]              The legal principles that apply to discharges without conviction are not in contention and the Judge correctly referred to not only them but to the way in which the test is to be addressed. The Judge appropriately referred to the case authorities that apply. Nonetheless, I must identify the principles on appeal and recap the principles relating to discharges without conviction.

[37]              The guideline to granting a s 106 order is outlined in s 107 of the Sentencing Act, which states that a court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences “would be out of all proportion to the gravity of the offence”. In determining whether something is a consequence, all that is required is a “real and appreciable risk” of it occurring.13

[38]              An appeal against a refusal to discharge without conviction is characterised as an appeal against both conviction and sentence.14 Such appeals are brought under s 232(2)(b) or (c) of the CPA on the basis that a miscarriage of justice has occurred either because there has been a material error by the sentencing Judge in entering a

13     DC(CA47/2013) v R [2013] NZCA 255 at [43]; R v Taulapapa, above n 7, at [46].

14     Jackson v R [2016] NZCA 627 at [16]; Ovtcharenko v Police [2017] NZCA 65 at [5].

conviction or if, for any reason, the Judge has erred in applying the principles for discharging an offender without conviction found in s 107.15

Did the Judge err in his assessment of the gravity of the offending?

Submissions

[39]              Mrs Stevens does not challenge the Judge’s assessment of the aggravating factors, but submits the Judge erred in failing to mention the appellant's willingness to personally apologise to the victims of his offending as a mitigating factor, an offer that, given his major depressive disorder and quiet nature was “very much to his credit”.

[40]              Mrs Stevens submitted that the Judge incorrectly characterised the offending as at the "lower end of serious” and “certainly more than moderate".

[41]              Mrs Stevens stressed that the offending originated from the appellant's depression and anxiety disorders which, she submitted, are “analogous to an intellectual disability in [their] mitigating effect on culpability”. She submitted that the offending operated as a form of relief for the appellant from these difficulties and referred to a recent decision of this Court where the gravity of offending was reduced to low in light of the serious deterioration in mental health that led to the offending as well as the appellant’s strong rehabilitative prospects.16 Mrs Stevens also highlighted the actions taken by the appellant since the offending, including his self-referral and engagement with mental health services, his general practitioner and the STOP programme.

[42]              But, as well, Mrs Stevens submitted that the Judge did not give sufficient weight to the appellant's youth and potential for rehabilitation, particularly given that the offending was out of character. This, together with his remorse, means that the offending was incorrectly categorised by the Judge. She highlighted the PAC report writer's recommendation to convict and discharge the appellant on each charge which, as she correctly noted, is a most unusual recommendation for burglary offending.

15     Ghahraman v Police [2024] NZHC 3035 at [13].

16     H v Police [2024] NZHC 2714.

[43]              Ms Norman submitted the Judge correctly evaluated the offending, noting it occurred by night and while most of the victims were likely asleep. She referred to the significant impact the offending has had on the occupants of the addresses.

[44]              Ms Norman disputed the level of mitigation contended for by Mrs Stevens. She highlighted that, when explaining his offending to the psychologist, the appellant referred to six university deadlines due simultaneously. While accepting that the Judge did not refer to the appellant's offer to attend restorative justice, Ms Norman submitted this would ordinarily be included as part of the remorse assessment, something the Judge expressly considered.

Discussion

[45]              The phrase “gravity of the offence” is informed by the culpability of the offender’s conduct determined on an assessment of the facts.17 It is not the gravity of the type of offence,18 nor the gravity of the offending compared to other cases involving the same offence.19 As noted by the Judge, the aggravating and mitigating factors of both offending and offender are to be taken into account at this stage.20

[46]              While accepting the deviant nature of the offending, its escalating nature and the violation of the victims' privacy, I do not agree this offending should be characterised as at the lower end of serious, absent mitigating factors. Of the four instances, one involved the appellant entering the actual residence of the occupants. Had each of the four instances been as grievous as the final one, I would agree that the offending was at the lower end of serious absent consideration of mitigating factors, but that is not the case. Two of the burglaries are at the very low end of the scale and the first charge is, of its kind, de minimis. While the nature of the property taken does raise concern, its value is low to negligible.

[47]              The offending occurred on two days relatively close in time to each other and some premeditation is accepted. I accept that a key factor in assessing the seriousness

17     J (CA32/21) v R [2021] NZCA 690 at [36].

18     Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7]

19     Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [31]

20 At [27].

of this offending is its deviant nature and the concerns regarding the escalation of it over a short period of time. Prior to the mitigating factors assessment, the offending is moderate.

[48]              As against this, this was hardly sophisticated offending. The appellant appears to have made no attempt to conceal his identity or to enter the relevant properties in an overly clandestine manner. I accept the appellant's explanation that this offending was largely spur of the moment and I agree with the Judge’s summary of the offending as risk taking in order to relieve the mental distress the appellant was experiencing in circumstances where he did not have the appropriate tools to deal with that distress. The observations of the young woman who apprehended the appellant at the last address are consistent with this.

[49]              Importantly, the extent of the appellant's offending was only revealed by what he told the Police. Such cooperation must have a potent mitigatory effect.

[50]              I agree with Mrs Stevens that the appellant's offer, to meet with and apologise to the victims of his offending by way of restorative justice, is a factor that merits separate consideration. The weight of this factor must be diminished in light of the fact such a conference did not occur, but, nonetheless, I accept that the offer was not made lightly. It seems to me that the victims may have been assisted in moving on from the offending had a restorative justice conference occurred and the appellant been given the opportunity to apologise directly to the victims and explain face-to-face his personal difficulties, including what he had done and was doing to get help.

[51]              While the Judge noted this factor, it is worth stressing what the appellant is doing and has done to ensure he receives the help he needs. He has:

(a)        contacted STOP (a community-based service for adults and adolescents engaging in sexual behaviour) of his own volition before being advised he needed a referral from counsel (he has since fully engaged with this service);

(b)       sought medical help and accepted medication after being diagnosed as meeting the criteria of major depressive disorder (moderate and recurrent) with anxious distress (moderate and recurrent);

(c)        attended counselling through the University, with the counsellor reporting he engaged “proactively”;

(d)       undertaken therapy with a forensic psychologist; and

(e)        though self-reported, he says he has ceased the behaviours (viewing online pornography) that culminated in this offending.

[52]              It is difficult to see what more the appellant could have done to respond to his offending.

[53]              The two reports authored by STOP have been of considerable assistance to this Court in understanding the appellant and the offending. The latest report, authored on 15 October 2024, outlines that the intervention programme recommended for the appellant was the low intensity programme of no more than 16 sessions. The report notes that the appellant is engaging well in this programme and, in relation to risk, the specialist clinician states he has no concerns about the appellant undertaking further harmful sexual or antisocial behaviour. He reported:

… [the appellant is] very remorseful, accepting of responsibility, and motivated to understand why he engaged in a behaviour that was so out of character for him, ensuring that he does not engage in this behaviour again in the future.

[54]The report from the psychologist has also been invaluable.

[55]              I agree with Ms Norman's submission that Mrs Stevens’s characterisation of the appellant's disability, as analogous to a mental impairment in terms of mitigating the appellant's culpability for the offending, is overstated. Nonetheless, the first psychological report is clear that the appellant suffers from a major depressive disorder and anxious distress, and he has suffered from suicidal thoughts on occasion. It is also clear that he was the victim of significant but undisclosed bullying at school because

his legitimate leisure interests did not align with the more conventional leisure interests of other students.

[56]              But, as well, Ms Norman's emphasis on the appellant's referral to imminent university deadlines as an explanation for his offending oversimplifies matters. While the pressure of university deadlines may not appear, on an objective basis, to be the most compelling reason for offending, the appellant's underlying mental illness acts to exacerbate such stress and provides an explanation on a subjective basis. The appellant's psychological makeup should be taken into account in the assessment of his culpability for the offending.

[57]              All factors considered, I assess the gravity the offending to be at the lowest end of the moderate scale. It follows that the Judge erred in his assessment of this matter.

Did the Judge err in placing insufficient weight on consequences?

Submissions

[58]              Mrs Stevens submitted that the most direct consequence of a conviction here is the loss of the appellant's future as a graduate in his chosen field of scientific endeavour. Mrs Stevens submitted that to convict the appellant would be to “condemn him to a life less than his potential and to deprive science and society of that same potential forever”.

[59]              The evidence to support this submission consists of statements from the two professors (one an emeritus professor) who oversee his double major disciplines.

[60]              The appellant is described as an excellent student, with an A average, putting him in the top 10 per cent of his cohort. Given his academic achievements, his career and tertiary education prospects are described as very strong. Both professors outline that the ability to work and travel internationally would be greatly beneficial to the appellant's career prospects and would, in all likelihood, be severely curtailed by criminal convictions.

[61]              The Emeritus Professor, after referring to the appellant's "immense potential", notes that he is consistently showing the qualities that would make him a valuable contributor to both the academic community and the scientific industry in which he may become involved. Appreciating the seriousness of the situation, he opines that convictions would disproportionately affect the appellant's career trajectory, where opportunities for research, employment and collaboration often rely on maintaining a clear record.

[62]              Both professors refer to the limitations the appellant would inevitably face if convicted, including his ability to participate in fieldwork and secure internships, scholarships and employment.

[63]              Mrs Stevens submitted that the effect of the Clean Slate Act is minimal, as any internet search will reveal the appellant's offending for many years, the Act does not apply in overseas jurisdictions and the provisions will not permit or assist to recover seven years’ worth of lost opportunities.

[64]              Mrs Stevens also referred to the separate university disciplinary process which is in abeyance pending the outcome of this appeal. The worst-case scenario is that the appellant is excluded from further study. While this outcome is far from certain, the fact that the university has decided to defer any disciplinary process pending the outcome of this appeal means it cannot be ruled out.

[65]              Ms Norman acknowledged the appellant may struggle to find employment, but submitted the risk, and evidence provided of that risk, is speculative and accordingly not a consequence that is out of all proportion to the gravity of his offending.21 As well, Ms Norman submitted the Judge was correct to defer to any employer and/or professional body the right to decide the significance of these convictions.22

[66]              Ms Norman submitted the Judge correctly approached the travel issue in finding the appellant had not met the required criteria for this to qualify as a consequence of great significance, noting the Court has been reluctant in the past to

21     Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]–[35].

22     Sterjov v Police [2015] NZHC 3103 at [30].

accord significant weight to tentative travel plans.23 She submitted that the appellant has no specific travels plans, dates, times or reasons beyond a stated intention to travel to the United States and Australia at some point.

Discussion

[67]              As well as being relevant to the culpability analysis, it would be artificial to fail to recognise the aggravating effect the appellant's mental health factors will have on any consequences of conviction. The Judge referred to “general consequences such as matters going to [the appellant's] reputation [and] self-esteem” but does not appear to have considered these factors beyond that statement.

[68]              The effect of conviction on self-esteem and the tarnish of a black mark on an otherwise clean record are factors recognised by this Court that have relevance here.24 Convictions will lead to the appellant's offending arising in numerous occasions throughout his life, potentially bringing the difficulties he already struggles with to the surface each time although, given the therapeutic input he is being provided with, this may abate over time. From insurance applications to travel to employer background checks, if convicted, this offending will constantly present adversity. I agree with Mrs Stevens’ argument that the Clean Slate Act provisions have very little bearing on the assessment of consequences in this case, given the appellant's age and the fact that he has not yet completed his studies. For him, the immediate consequences of convictions are the most life changing.

[69]              The nature of this offending must also be considered. Requiring the appellant to continue to revisit and explain his offending to interested parties will be a significant burden. Further, any fulsome explanation of the offending may require some explanation of his mental health issues and other sensitive information that provides important context to the offending, such as his addiction to pornography at that time or the bullying he suffered at a vulnerable stage of his life.

23     Walker v New Zealand Customs [2021] NZHC 3380 at [54].

24     Nattrass v R [2024] NZHC 2091 at [58]; Gaunt v Police [2017] NZCA 590 at [14]–[15].

[70]              While these submissions were advanced in favour of the name suppression application, the risks of self-harm and exacerbation of the appellant's psychological condition are also relevant to the analysis of the consequences of convictions on the appellant. These very serious consequences underlie all others.

[71]              Regarding employment, I agree with the Judge’s assessment that this consequence can be viewed as moderately serious, but it is necessary to expand on this finding. The Court is required to identify a given consequence, assess the evidence offered for it, evaluate the risk the consequence will materialise and then form an overall assessment of seriousness.25 With respect, the Judge, in this case, appears to have over-emphasised the right of prospective employers to be aware of the appellant's offending at the expense of other points identified by the Court of Appeal in R v Taulapapa.

[72]              In Taulapapa, the Court acknowledged that the stigma of a conviction must normally yield to an employer’s right to know of it, and that this principle applies to the young as well. However, that will not always be the end of the enquiry. As the Court went on to observe:26

The court may assume that applicants with convictions are likely to be excluded without inquiry where employers must filter many applications before arriving at a shortlist for interview …

The consequences of conviction may be severe where an offender points to a specific career or job to which conviction is likely to present a barrier; and that may be especially so where the offender has already spent some time training for that career.

(footnotes omitted)

[73]              Both statements apply to the appellant, and both professors have highlighted the likelihood of employment consequences should the appellant be convicted.

[74]              Consequences that are difficult to predict can, and have been, regarded as consequences the Court may take into account.27 The risk of something occurring in the future always contains an element of uncertainty, but this does not mean it should

25     R v Taulapapa, above n 7, at [46]; Doyle v R [2022] NZCA 307 at [39].

26 At [42].

27     Goggin v Police [2013] NZHC 2710 at [15]; Nattrass v R, above n 24, at [56].

be characterised as speculative. What is important in each case is to carefully analyse the evidence put before the Court to explain the likelihood of this risk occurring. The Court often receives the submission that an unidentified risk is speculative; a submission which, in itself, is a generality and conclusory. The Court is most helped by submissions inviting conclusions that have an evidential foundation and for counsel to focus on the evidence or lack of it before inviting a conclusion.

[75]              In this case, the evidence establishes the academic and employment consequences advanced for the appellant can properly be characterised as very real and appreciable.

[76]              I have found the recent case of Nattrass v R to also be of assistance. Both cases involve young students who asserted that employment consequences would arise from a conviction. In Nattrass, Eaton J held:28

[52] Mr Harvey contends that the evidence offered of the consequences of a conviction for Ms Nattrass is speculative. That is unfair to Ms Nattrass. The strength of her evidence reflects her youth, the very early stage of her tertiary studies and the reality that a modern world presents someone in Ms Nattrass' position with many and varied opportunities. I acknowledge the challenges a young person may face in putting before the Court evidence, in support of an application for a discharge without conviction, regarding future hopes for travel and employment.

[77]Those observations readily apply here.

[78]              Finally, there is a potentially greater employment consequence for a young person who does not yet have a “foothold in a career”.29 In this case, the consequences for the appellant must be viewed in the context of his obvious talents in his chosen fields of study which, as his professors note, are unlikely to be realised with the barrier of convictions of this kind.

[79]              In my view, there is sufficient nexus between the travel consequences and the appellant's employment prospects to bundle them together. I conclude there is a real and appreciable risk that convictions will engender moderately serious risks to both.30

28     Nattrass v R, above n 24.

29     Walker v Police [2016] NZHC 1450 at [22]; Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [22].

30     DC(CA47/2013) v R, above n 13, at [43].

These consequences are exacerbated by the appellant's mental health, self-esteem, his prospects of recovery and his rehabilitation.

[80]              When taken into account along with all other consequences, these consequences overall can be properly characterised as significant and serious, a conclusion that differs from that reached by the District Court Judge.

Did the Judge err in his proportionality assessment?

[81]              In my assessment, the gravity of the offending is at the lowest end of the moderate scale and the likely consequences are serious and significant. The Judge erred in assessment of both limbs of the test. I find that, for the appellant, the consequences of convictions are wholly out of proportion with the gravity of the offending.

[82]              The next question is whether I should exercise my discretion to discharge the appellant without conviction on the charges. There is no reason why not, and every reason to do so. I refer to the principles espoused by the District Court Judge in the Sentencing Act. I do not agree that deterrence is as important in this case given the immediate and ongoing steps taken by the appellant to address the root causes of his offending. His prospects of rehabilitation are very good, if not excellent. I find the discretionary exercise consistent with the relevant principles.

[83]              I have found that the District Court Judge erred in refusing to discharge the appellant without conviction and that a miscarriage of justice has occurred.31 I therefore do not need to consider whether the sentence imposed by the Judge was manifestly excessive.

31     Jackson v R, above n 14, at [12].

Have grounds for name suppression been made out?

Legal principles

[84]              The appellant applied for suppression orders under ss 200 and 205 of the CPA. The application is made on the basis that publication of the appellant's name would be likely to cause him extreme hardship.32

[85]              The starting point is the presumption of open justice.33 The business of the courts should be conducted publicly and any departure from this general rule ought only to be to the extent necessary to serve the ends of justice.34

[86]              The principles that apply to applications for suppression are well known and need not be repeated in detail. The court is required to undertake a two-step inquiry;35 first to establish whether any of the threshold grounds in s 200(2) are met and, if so, the court must decide whether to exercise its discretion and forbid publication of a defendant’s details.36 The presumption of open justice is considered at the second stage. To displace the presumption, the balance must clearly favour the suppression.37

Submissions

[87]              Mrs Stevens referred to the first report from the appellant's psychologist, that recommended the need for name suppression and the next report affirming that name suppression is necessary. The very clear evidence is that publication of the appellant's name would be likely to exacerbate his diagnosed depression and anxiety, heightening the risk of harm to self.

[88]              Mrs Stevens referred to D v Police, where name suppression was refused for an appellant who had displayed suicidal tendencies, but she noted that the charges in that case were “perfectly ordinary”,38 unlike, she submitted, the charges faced by the

32     Criminal Procedure Act, s 200(2)(a).

33     Robertson v Police [2015] NZCA 7 at [43]; D(CA443/2015) v Police [2015] NZCA 541, (2015)

27 CRNZ 614 at [12].

34     Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].

35     D (CA443/2015) v Police, above n 33, at [10].

36 At [11].

37 At [12].

38 At [16].

appellant, a compelling difference. The appellant in that case suffered from depression and anxiety, said to be the result, principally, of difficulties in his relationship with his girlfriend. The appellant’s resort to alcohol, and the resultant emotional dysregulation, meant he worked himself into hysterical states, leading to him punching a female campus patrol officer.

[89]              Mrs Stevens referred to the significant attention the appellant's offending has already attracted, and the language in the newspaper article published on the offending that sought to “demonise and ostracise” the appellant. I refer to this article in more detail shortly.

[90]              Ms Norman submitted that the psychologist's evidence did not offer alternative mechanisms to manage the appellant's risk to himself other than name suppression. She submitted delaying publication and allowing the appellant to implement a safety plan would be an example of an alternative way to mitigate the effects of any publication on the appellant.

[91]              While Ms Norman recognised that the claimed outcomes of publication may be possible, she submitted they do not meet the extreme hardship threshold, particularly in light of the protective factors that are in place to support the appellant. She noted there is a lack of evidence of actual self-harm and submitted the appellant appears to be coping better, taking medication and engaging with appropriate services, as well as receiving support from his pro-social family. These factors, she submitted, further lower his risk.

Discussion

[92]              The way the appellant's offending was reported in the media following the District Court Judge's decision is relevant as it provides some basis against which the impact on the appellant's mental health can be assessed. The media article describes the appellant's offending as a “descent into depravity” and contains emotive language to describe the offending. Even though the article refers to some of the relevant mitigating matters, in my view, they are minimised by the context in which they are mentioned and the language used to describe the offending.

[93]              The psychologist made her recommendation in the knowledge that the appellant has a supportive home environment and is receiving treatment. Her updated report refers to the media article. She maintains her professional opinion that publication will likely exacerbate the appellant's depression and anxiety. Her expert opinion is that publication of the appellant's name will severely compromise his ability to seek ongoing support and to continue to engage with counselling and STOP.

[94]              I agree that D v Police is readily distinguishable. The offending and mental health factors present in this case have far greater interrelation than that exhibited in D v Police. Furthermore, while publication was acknowledged, in that case, to possibly be “extensive initially”, that was a consequence of the appellant’s family connections as opposed to the “quite ordinary” offending.39 The risk of suicide was “closely associated with other major stressors or triggers that are absent” as the appellant’s relationship had come to an end.40

[95]              The appellant's offending in this case cannot be categorised as "quite ordinary". Neither is it a case where it was triggered by what seems to have been a one-off externality, as was the case in D v Police.

[96]              Much has been made of the psychologist's lack of explanation as to alternative ways to manage the potential risks to the appellant that could arise from the publication of his name. The Court in D v Police said there “normally are ways of managing risk” and “where possible, medical reports…should recommend and evaluate those options”.41 Here, no other options have been identified and none are readily apparent. The methods suggested in D v Police, such as a brief period of suppression to reconcile the defendant with the possibility of publicity or the identification of support structures, will not be sufficient given the psychologist's opinion in this case which remains the same despite the existence of support networks. The evidence is clear that publication could jeopardise the appellant’s engagement and personal safety.

39     D (CA443/2015) v Police, above n 33, at [32](c).

40     At [32](d).

41     At [30](g).

[97]              But as well as further media reporting, the appellant has some online presence due to his past achievements.42 His age and online presence means social media must also be considered in the analysis of potential consequences. The Court of Appeal’s comments in X v R, set out below, are pertinent:43

[51]      …in 2009, Facebook had been around for five years, Reddit for four, and Twitter for three. Instagram did not yet exist. Those platforms were even newer at the time of the release of the Issues Paper that preceded the Law Commission's report (the response to which informed the Law Commission's recommendations) in 2008. 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.

[52]      So ten or so years ago, even young defendants might reasonably be expected to endure the “hardship” ordinarily caused by the publication of their names in the mainstream media. But now, we think the potential hardship caused by the pernicious, judgemental, exponential, indelible, and often ill- informed publication on social media platforms is of a quite different magnitude. Public shaming of this or any kind forms no part of our criminal justice system. It is not the object of open justice. It serves no useful rehabilitative or other social purpose. Its object is humiliation and degradation.

[53]      As we have said, young people are particularly vulnerable in this regard. That vulnerability is no doubt psychological, but it has both practical and temporal aspects, too. The temporal aspect is simply that, by virtue of being young, the effects of internet shaming will last for longer—potentially for the remainder of the young person's life. The practical aspect is that the only way a person can protect or shield him or herself from ongoing exposure to online shaming is to go, themselves, offline. And as Danielle Citron has noted:

When individuals go offline or assume pseudonyms to avoid bigoted cyber attacks, they miss innumerable economic and social opportunities. They suffer feelings of shame and isolation. Cyber mobs effectively deny people the right to participate in online life as equals.

[54]      So we think that, in a case such as the present, it is time to recognise these realities. In our view such recognition can play out both in the

42     These achievements are of a niche nature that to explicitly state them would likely lead to identification.

43     X(CA226/2020) v R [2020] NZCA 387, (2020) 30 CRNZ 296.

assessment of whether hardship will, in any given case, be “extreme” and in the ultimate weighing exercise required in the exercise of discretion.

[98]              I have already referred to some of the language used in the media article put before me. The appellant could expect responses from ill-informed peers with likely far less restraint. The appellant's psychological makeup and age coupled with the unique circumstances and current reporting of this offending means the hardship suffered is likely to be far greater.

[99]              I am satisfied that the threshold for name suppression has been met. In my view, the evidence establishes that the appellant is likely to suffer extreme hardship if his name and identifying details are published.

[100]Regarding the exercise of my discretion, I again refer to X v R:44

These factors—X's youth, his lack of previous involvement in the criminal justice process and the fact of his effective acquittal—all, individually, favour suppression. As well, those factors speak strongly to X's prospects of rehabilitation. And, in turn, those prospects then also weigh strongly in favour of suppression.

[101]          The appellant has not been acquitted but he, like X, he was 20 at the time of his offending and he also had no previous criminal convictions. His engagement with various agencies speaks strongly to his prospects of rehabilitation.

[102]          There is no real public interest in knowing the appellant's identity. Were he a recidivist offender and of a more mature age, this would be different. In my view, justice here requires a departure from the principle of open justice.

[103]          I conclude that the Court’s discretion should be exercised in favour of suppression in this case.

Result

[104]The appeal is allowed both in relation to outcome and suppression.

44     X(CA226/2020) v R, above n 43, at [65].

[105]          The convictions entered in the District Court are set aside and the sentences imposed quashed. On all four charges, the appellant is discharged without conviction.

[106]          I make a permanent order prohibiting publication of the name, address or identifying particulars of the appellant pursuant to s 200 of the Criminal Procedure Act 2011.

Harland J

Solicitors:

M A Stevens KC, Barrister, Dunedin RPB Law, Dunedin.