Jung v Police

[2014] NZHC 949

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL 5.00 PM ON MONDAY 12 MAY 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-002 [2014] NZHC 949

BETWEEN

JOHN MICHAEL JUNG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 May 2014
Appearances:	K L McHugh for Appellant S N McKenzie for Respondent
Judgment:	8 May 2014

RESERVED JUDGMENT OF MANDER J

Introduction

[1]      This is an appeal against the decision of Judge Turner refusing to grant the appellant final name suppression on a charge of indecent assault on a child under the age of 12 years.

Factual background

[2]      Some years ago the appellant and his then wife became friends with the victim’s family.  It was arranged for the appellant to take photographs of the friend’s house and of the nine year old victim and her younger sister.   Photographs were taken of the children in their backyard and in nearby parks.   Subsequently, the appellant took the victim and her younger sister to the beach and photographed them

there.  At the beach and under the observation of the appellant, the victim changed

JUNG v NEW ZEALAND POLICE [2014] NZHC 949 [8 May 2014]

into her swimmers.   He took further photographs of the child and her sister while they were playing at the beach.

[3]      After the victim had changed back into her clothes, the appellant gave her a piggyback to the car.  The appellant placed his hands on the child’s bottom and then moved them to her vaginal area and touched her over the top of her clothing.  The appellant asked if she minded what he was doing and when she told him that she did, he stopped.  The children were returned to their mother but not before the appellant told the victim not to tell her mother what had happened.  The nine year old however did tell her mother shortly after the appellant left the family address.

[4]      The  appellant  was  subsequently  spoken  to  by  the  Police.    He  admitted touching the victim on her vagina over her clothing which as the appellant admitted, despite his attempts, prevented him from directly touching the girl’s vagina.   In explanation the appellant said that something had happened to him when he saw the child getting changed and that he was seeking help for that.

[5]      The appellant pleaded guilty at an early stage in the proceeding.  He attended a restorative justice conference.  Despite his wife leaving him and the loss of his job as a consequence of this offending, he maintained the support of his church and began taking steps to address the underlying causes of his offending.  The appellant has no previous convictions.

[6]      Judge Turner, after reviewing the circumstances of the offending, relevant authorities and mitigating factors personal to the appellant, arrived at a sentence of some nine months imprisonment.   Notwithstanding the normal starting point for sexual offending on children being one of imprisonment, the sentencing Judge was prepared to commute the sentence to home detention.  In that regard, Judge Turner was influenced by the appellant’s prior good record, the steps he was taking to address the drivers of his offending, that he was presently in employment and had the support of the community, particularly his church.

Basis for application for name suppression before the District Court

[7]      The appellant made application for final name suppression in the District Court   based on a submission that extreme hardship would result if his name was published.   Reference was made to the possibility of the appellant losing an engineering job he had recently acquired after being dismissed by his former employer.  At the time of sentencing that job was temporary and was in jeopardy depending upon the outcome of the sentencing hearing.  On behalf of the appellant emphasis was placed on the loss not only of the appellant’s job but the possible loss of his career.  The application for name suppression was supported by the appellant’s present employer who advised that his organisation may face considerable hardship if the appellant’s name was published and the identity of the employer disclosed to the public.

[8]      The application for name suppression was accompanied by a submission that if the appellant’s name was not suppressed it may endanger his safety.  In that regard, reference was made to counselling that the appellant was undertaking.   Name suppression was said to be of assistance to the appellant’s rehabilitation and would advance that objective.

[9]      Judge Turner declined the application for suppression.  In the learned Judge’s view there was nothing in the material presented or put in argument that persuaded him that the presumption in favour of publication and open justice should be displaced.

The appeal

[10]     The appeal is brought on the basis that Judge Turner erred in his finding that the appellant would not suffer extreme hardship.  In particular, it is submitted that the District Court erred in its assessment of the risk to the appellant’s employment in the absence of name suppression.  Further, that the appellant’s rehabilitation would be detrimentally affected and his mental health would suffer.

The statutory test

[11]     Section 200 of the Criminal Procedure Act 2011 provides as far as it is relevant to this appeal:

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

…

(e)      endanger the safety of any person; or

[12]     In Fagan v Serious Fraud Office,1 Simon France J delivering the judgment of the Court observed:

[9]       The structure of the section is plain and need not be made complex. Subsection (2) sets out the preconditions to a Court having jurisdiction to suppress the name of a defendant.   One of the consequences listed in paragraphs (a)–(h) must be established to the satisfaction of the Court as being likely to follow if no suppression order is made, before any discretion to forbid publication of a defendant’s name arises. Obviously if none of (a)– (h) is established, necessarily the matter ends there.

[13]     Whether the statutory prerequisites are established is a matter of judicial evaluation.  In this case, whether the publication would be likely to cause extreme hardship to the appellant.

[14]     Section 200 provides a more stringent test for name suppression.  In requiring the threshold to be one of “extreme hardship”, Parliament required a higher threshold to be reached before Courts can legitimately suppress an offender’s identity.2   In RM

v Police, Priestley J observed:

1      Fagan v Serious Fraud Office [2013] NZCA 367.

2      RM v Police [2012] NZHC 2080 at [43]; and K v Inland Revenue Department [2013] NZHC

2426.

[43]     ... Obviously the test is a high one. Obviously too, the threshold is higher for all offenders, well known or not, than it was before the legislation came into force. Courts must evaluate carefully the effect of publication of an offender’s name. The principle of open justice in criminal courts and the need for media scrutiny must, in terms of previous Court of Appeal authorities, be given appropriate weight and is the starting point. Publication of any offender’s name will cause hardship to the offender and his or her family. Publication will excite curiosity, criticism, social ostracism, and embarrassment. But a suppression order can be made legitimately only if the damaging effects on the offender causes hardship which is extreme. The necessary extremity is contextual and will depend on the unique factual and personal circumstances surrounding each s 200 application.

[15]     The previous Court of Appeal authorities referred to by Priestley J are well- known.  In R v Liddell,3 the Court held:

In considering whether the powers given by s 140 should be exercised, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”. These principles have been stressed by this Court in a line of cases…   The basic value of freedom to receive and impart information has been re-emphasised by s 14 of the New Zealand Bill of Rights Act 1990…

The  Court  of Appeal  went  on  to  stress  that  the  prima  facie  presumption  as  to reporting is always in favour of openness.

[16]     In Police v Rihari,4  Laurenson J had cause to examine the meaning of the words “extreme hardship” in the context of the confiscation of a motor vehicle pursuant  to  s 84(2)A  of  the  Criminal  Justice  Act  1985.    An  exception  to  the mandatory confiscation of a motor vehicle was whether in the circumstances extreme hardship would result to the offender.   Laurenson J held that a very high level of hardship had to be demonstrated and that what amounts to “extreme hardship” must be determined in a commonsense way in relation to the facts of a particular case.  Of relevance,  the  Court  observed  that  a  factor  bearing  on  the  issue  of  “extreme hardship” was whether the resulting consequences went beyond those normally attendant  in  the  given  situation.    It  is  hardship  which  in  the  circumstances  is excessive even when viewed in relation to the policy considerations underlying the

enactment concerned.5

3      R v Liddell [1995] 1 NZLR 538 at 456.

4      Police v Rihari HC Whangarei AP10/98, 23 July 1998.

5      Above at 8.

[17]     The  test  of  “extreme  hardship”  provides  a  higher  threshold  than  that  of “undue hardship” which is referred to in s 200(2)(b) and (c), where in the absence of suppression suspicion is likely to be cast on another person or undue hardship caused to any victim of the offence. As noted by the authors of Adams on Criminal Law, the likely hardship said to result from publication must be significantly greater than the

“undue hardship” required under those paragraphs.6

[18]     In R v Wilson,7 Whata J observed that a very high level of hardship must be established  which  is  something  out  of  the  ordinary  and  referred  to  Collins  J’s remarks in R v N,8  where the commentary in Adams on Criminal Law was cited to the effect that it may be helpful to consider whether the hardship would be out of all proportion to the public interest in open justice.9   Whata J concluded that something more  than  undue  or  simply disproportionate  hardship  in  the  circumstances  was required.

The effect on the appellant’s employment

[19]     The appellant submits that Judge Turner failed to find that the appellant’s employment was at risk and erred in finding that loss of employment would not cause the appellant extreme hardship.  In support of this submission, leave is sought to adduce further evidence from the appellant’s employer who prepared a letter in support  of  the  appellant  for  the  purposes  of  the  original  name  suppression application.  An affidavit is sought to be presented in addition to and clarification of this original material regarding the jeopardy to the appellant’s employment should his name not be suppressed.   As the affidavit is sufficiently fresh and obviously credible, I admitted it for the purposes of the appeal without demur from the Crown.

[20]     As a result of the appellant being charged, the appellant lost his original employment.  At the time of sentencing however he had been engaged by an engineering firm on a part-time basis in the knowledge of his sexual offending.  In

the letter to the District Court, his employer, apart from attesting to the appellant’s

6      Bruce Robertson, Adams on Criminal Law –  Procedure (online looseleaf ed, Brookers) at

CPA200.02.1

7      R v Wilson [2014] NZHC 32.

8      R v N [2012] NZHC 2042 at [21].

9 Above at [24].

abilities as a tradesman, advised that the firm employed many men with families including young daughters and that the employer considered it would face considerable hardship if the appellant’s name was published and the identity of his employer disclosed to the public.  The appellant’s application was supported by the employer to avoid any difficulties in the workshop as between the appellant and his fellow colleagues and to avoid what was considered to be negative consequences for the firm’s reputation.

[21]     The Judge did not accept that just because the appellant’s name was disclosed to the public it would automatically lead to the employer’s name being revealed.  Of concern to Judge Turner was the employer’s apparent wish to avoid others, particularly men with families and young children employed in its workshop becoming aware of the appellant’s offence.   The appellant’s wish to keep his offending from his fellow employees was considered to be at odds with representations made by him at a restorative justice conference which appeared to be premised on other people knowing what he had done.   Of particular note was a report arising out of the conference which recorded that a temporary safety plan included informing key people about his difficulty and the need for him never to be left alone with children.   Judge Turner observed that he would have thought that “key people” would have included those with whom he was working, especially those with young families.

[22]     Judge Turner was prepared to order that the appellant’s employers name not be published in mitigation of its position but did not consider that considerations relating to the appellant’s employment gave rise to either undue hardship to the employer or extreme hardship to the appellant.

[23]     On appeal it is submitted on behalf of the appellant that the learned District Court Judge had not appreciated that there was no certainty that the appellant would retain  his  current  employment  following  sentencing  and  the  Judge  erred  in  not finding that the appellant’s employment was at risk.   Judge Turner however was aware that the appellant’s current temporary position was in jeopardy, commenting that it may or may not remain available to him depending upon the outcome of the hearing before him.  Further, the Judge acknowledged the submission made on the

appellant’s behalf that publication of his name had consequences not just in respect of his prospects in relation to his present job but more generally for his career in the field of engineering.  I therefore do not accept the appellant’s criticism in this regard.

[24]     Reliance  is  placed  by  the  appellant  on  the  contents  of  the  employer’s affidavit.  The appellant has now secured a full time position.  The employer deposes that  the business  would  face  considerable hardship  if  the appellant’s  name was published and its identity as the appellant’s employer disclosed to the public.  The Invercargill engineering community is described as being a very small one and the appellant is now becoming well-known within it and to business clients.  There is a concern  that  the  business  would  accordingly  suffer.    The  employer  repeats  the concern that difficulties may arise in the workshop between the appellant and his fellow colleagues should they learn of the nature of his offending.   The deponent again refers to staff who are parents or grandparents of young children and have strong views about sex offending and those who offend against children.

[25]     Ms McHugh on behalf of the appellant submits on the basis of the employer’s affidavit a foundation has been established which shows that extreme hardship is likely to follow for the appellant if his name is not suppressed.  Counsel is critical of the Judge’s conclusion that the appellant’s position at the restorative justice conference is  at  odds with  the employer’s  views and  his  determination  to  seek permanent name suppression.  It is submitted that the appellant’s statement was not an acceptance of the inevitability of publication of his name but that key persons within his future safety plan would need to be aware of the offending.

[26]    The concerns of the appellant’s employer are no doubt genuine and the motivation for its support of the appellant’s name being suppressed in order to remove the risk of the appellant losing his position is no doubt well intentioned.  The support they have offered the appellant to date shows an enlightened approach which is to be respected.  The potential risk however to the appellant’s employment is not one which gives rise to extreme hardship to the appellant.

[27]     The employer’s affidavit does not materially change the position from that which was before Judge Turner in the District Court.  It does not persuade me that

the  learned  District  Court  Judge  was  wrong  in  his  assessment  of  whether  the statutory criteria which permits a Court to exercise its discretion to suppress an offender’s name has been made out.  As was observed by Laurenson J in Police v Rihari,10  “extreme hardship” denotes something more than a consequence normally associated with a person’s conviction for a particular type of offending.   Sexual offending on children denotes serious criminal conduct and, as is apparent from the

appellant’s own experience in having lost his original position with his former employer,  is  a  consequence  which  may  follow  from  the  entry  of  a  criminal conviction.   That does not mean that in particular circumstances consequences relating to an individual’s employment may not give rise to extreme hardship.  Each case will depend upon its unique factual and personal circumstances as to whether in the particular context the statutory test is made out.   In this case, however, the potential consequences for the appellant’s employment does not establish extreme hardship.

[28]     I agree with Judge Turner that suppression at the behest of an employer in order to allow it to keep the appellant’s offending from co-workers is flawed. Reputational considerations to the appellant’s employer are matters for it to assess but of itself do not provide a sufficient basis in the circumstances of this case to overcome the fundamental presumption of open justice.

Apparent inconsistency in suppressing the identity of the appellant’s employer but not the appellant’s name

[29]     Judge Turner in his decision on the question of suppression indicated that he was  prepared  to  order  the  employer’s  name  not  be  published  as  part  of  any publication of the sentencing.   That offer was made in an attempt to mitigate the concerns of the employer in the knowledge that the appellant’s name was not going to be suppressed.  I agree with Ms McHugh’s observation that with the publication of the appellant’s  name  it  is  perhaps  inevitable that a  link  will  be made with  the employer and to that extent the effect of such an order is of marginal value.  That however was always going to be the case, and while qualified it does not render a

suppression order in favour of the employer’s name completely redundant.  It does

10     Above n 4.

not provide a basis to justify a consequential suppression of the appellant’s name. The case of W v R11  was a different situation involving an accused who had been acquitted of a charge of rape.   The circumstances heavily weighed in favour of permanent suppression.  In particular, the accused’s personal interests were said to outweigh any public interest in knowing his identity.  That is not the situation in the present case.

Perceived  inconsistency  between  the  name  suppression  decision  and  the rationale for the sentence imposed

[30]     The  appellant  submits  that  Judge  Turner’s  decision  to  decline  name suppression was inconsistent with the reasoning he gave for the end sentence of home detention.  The appellant submits that in deciding to impose home detention reliance was placed by the sentencing Court on the appellant’s employment as a protective factor assisting in his rehabilitation.  Reliance is placed on RM v Police where Priestley J concluded that the effect of the sentences imposed on the appellant in that case which reflected that he was a first offender with a low risk of reoffending would be largely undone if he was to lose his job.   As a result, the threshold of extreme hardship was held to have been met.

[31]     The appellant submits there are parallels in the present case to the situation in RM v Police.  The appellant has a prior good character with no previous convictions and is considered to present a low risk of reoffending.  The fact the appellant was in employment and proactively engaged in significant rehabilitation are factors that led the District Court to impose an ultimate sentence of home detention.  It is submitted that refusal to grant final name suppression would largely undo the benefits of that end sentence if he were to lose his employment and career path.

[32]     In my view, such an a approach conflates the two different steps that are required to be undertaken by a sentencing Court when considering final name suppression.   Firstly, an evaluation as to whether the statutory criteria set out in s 200(2) has  been  satisfied.    If  it  has,  the second  step  involves  whether in  the

exercise of its discretion the Court is prepared to suppress the offender’s name.12

11     W v R [2013] NZHC 489.

12     Fagan v Serious Fraud Office [2013] NZCA 367; R v Wilson [2014] NZHC 32 at [28].

[33]     Assessment of the appropriate sentence for an offender cannot circumscribe the normal principle of open judicial proceedings and the public interest in the media being able to report matters before the Court including a defendant’s name.  Where a sentencing Court has chosen to adopt an approach which fosters the rehabilitation of the offender, it is likely to have arrived at that decision in the knowledge that the offender’s name will be published.  The extent to which subsequent publication may detract from the rehabilitative purposes of the sentence imposed may be a factor taken into account by a Court in the exercise of its discretion but does not bear on

whether the statutory criteria of extreme hardship has been established.13

[34]     As is apparent from the present case, a sentencing Judge almost invariably will consider the question of sentence in isolation from the discrete issue of name suppression,  proceeding  on  the  basis  that  the  normal  rules  will  apply  and  that freedom to publish will follow as a matter of course.  It is a post facto construct on the part of the appellant to submit that the subsequent refusal by Judge Turner to suppress the appellant’s name undermines the sentence which he himself was responsible for imposing.

Risk to the appellant’s rehabilitation

[35]     The appellant submits that the Judge erred in concluding that the appellant’s rehabilitation would not be put at risk should his name be published.  Reference is made to the Judge’s conclusion in respect of the report prepared by the psychologist, Mr O’Donoghue, as not going so far as saying that the appellant’s mental or physical wellbeing, or ability to engage in counselling would be put at risk should his name be published.

[36]    Ms McHugh submits that Mr O’Donoghue referred to the effect on the appellant’s rehabilitation as a result of his name not being suppressed, to his progress and success being contingent on the appellant having a “clear idea of his future” and not having to “face any further catastrophic losses and/or ordeals”.  It is submitted

that   Mr   O’Donoghue   considered   that   final   name   suppression   would   assist

13     R v Wilson [2014] NZHC 32 at [28] and [29].

rehabilitation and provide the appellant with the resilience needed to continue with therapy.

[37]     The difficulty for the appellant in relation to this point is the passage in Judge Turner’s decision relied upon as being in error related to a separate issue, namely whether the appellant’s mental or physical wellbeing or ability to engage in counselling would be put at risk.  It is apparent that this observation was made in the context of whether publication of the appellant’s name would endanger his safety which was a live ground argued in the District Court but now abandoned on appeal. The  learned  Judge  in  fact  acknowledged  Mr O’Donoghue’s  opinion  that  name suppression “could only assist” in the appellant’s rehabilitation and that it would be advantageous to him.  I am therefore not able to discern any error or omission in the way Judge Turner approached the material provided by Mr O’Donoghue.

[38]     A reading of Mr O’Donoghue’s report of 10  February 2014 outlines the progress that the appellant has made in counselling and is supportive of the type of rehabilitative sentence ultimately imposed which would allow the appellant to continue with his programme of counselling with the psychologist.  Mr O’Donoghue puts final name suppression as being no more that “advantageous” to the appellant in furtherance of his rehabilitation.   There is no statement however that refusal of suppression would prevent the appellant from making further progress.  Shame and embarrassment is the ordinary consequence of conviction for sexual offending on children  and  while it  no  doubt  presents  a further challenge to  be faced  by the appellant  of itself,  it  does  not  provide  a basis  for suppression  on  the  available material.

[39]   In oral argument, Ms McHugh developed a submission based on the consequences of the appellant potentially losing his job and therefore his income and his   ability   to   fund   the   ongoing   therapy   with   which   he   is   engaged   with Mr O’Donoghue.  This it was submitted will put his effective rehabilitation at risk. The appellant until recently has had the benefit of psychotherapy funded by his former employer.  He is approximately halfway through the programme.

[40]     This  potential  outcome  may  have  been  the  reason  for  Judge  Turner’s comment that to some extent the appellant is the author of his own misfortune in terms of his financial predicament as he has chosen not to seek his entitlement to relationship property on the breakup of his marriage.   Be that as it may, while it would indeed be unfortunate if the appellant could not continue to have Mr O’Donoghue’s  professional  assistance,  this  consequence  would  not  constitute extreme hardship.

[41]     Ms McHugh stressed the public interest in the effective rehabilitation of the appellant which is undoubtedly correct but in terms of the issue of name suppression, before such a factor becomes relevant to the exercise of the discretion, the statutory prerequisite is required to be met.   I also note that as part of the home detention sentence the appellant is required to attend psychological assessment as directed by a probation officer and complete any treatment and/or counselling as recommended by the assessment. There is therefore some backup resource available albeit not perhaps of the preferred choice which has to date assisted the appellant to make progress.

[42]     While s 200(2)(e) was initially relied upon for the purposes of this appeal, namely that publication would be likely to endanger the safety of the appellant, that was not pursued on the hearing of the appeal, nor was it advanced in the written submissions filed.  In the material I have read there is no basis for such a submission and, as noted by Judge Turner, it was the psychologist’s view that the appellant’s “worst challenges” to his mental health were now behind him.

Conclusion

[43]     It follows from my consideration of the grounds put forward on behalf of the appellant, both individually and collectively, that I have concluded that Judge Turner did not err in his assessment that the likelihood of extreme hardship to the appellant had not been established in the circumstances of this case.  The updated information provided from the employer does not advance the position beyond that which was before the District Court and I have concluded that Judge Turner’s assessment of the potential effect on the appellant’s rehabilitation as a consequence of his name not

being published was properly acknowledged and considered by him.  My assessment of that material largely accords with that of the learned District Court Judge.

[44]     In the absence of the statutory criteria being established, it follows that the decision not to suppress the appellant’s name was correct.  Accordingly, the decision of Judge Turner declining the application for final name suppression is confirmed and the appeal dismissed.

[45]     In order to allow the appellant the opportunity to inform his employer of the result of the appeal, I will make an order prohibiting publication of the appellant’s name until 5.00 pm on Monday 12 May 2014.

Solicitors:

AWS Legal, Invercargill

Crown Solicitor, Invercargill