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…

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 Jung v Police

Details

AGLC: Jung v Police [2014] NZHC 949
Case: [2014] NZHC 949
Decision Date: 8 May 2014

CaseChat Overview and Summary

This appeal concerns the refusal of the District Court to grant final name suppression of the appellant, John Michael Jung, in relation to a conviction of indecent assault on a child under the age of 12 years. The District Court's decision was based on the conclusion that the appellant had not established the statutory threshold of "extreme hardship" required to justify suppression. The appeal was heard by Manderson J in the High Court at Invercargill. The appeal was dismissed and the decision of the District Court was confirmed. The court held that the appellant had not established that the statutory criteria permitting suppression had been met. The court found that the potential loss of employment was not sufficient to establish "extreme hardship". The court also found that the appellant had not established that suppression was necessary to avoid endangering his safety or to assist in his rehabilitation. The court held that the statutory criteria for suppression had not been made out and in the absence of that the decision not to suppress the appellant's name was correct. The court confirmed the decision of the District Court declining the application for final name suppression and dismissed the appeal. An order was made prohibiting publication of the appellant's name until 5.00 pm on Monday 12 May 2014.

Orders