Kerr v Police

[2022] NZHC 190

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000054

[2022] NZHC 190

BETWEEN

NICHOLAS SCOTT KERR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 February 2022
Appearances:	A de Jager for the Appellant C Power for the Respondent
Judgment:	16 February 2022

JUDGMENT OF NATION J

Introduction

[1]    Mr Kerr was sentenced1 to three years and two months’ imprisonment by Judge Robinson on 14 charges of burglary,2 four charges of unlawfully being in a yard3 and one charge of peeping into a dwelling house.4 The Judge also declined an application for permanent name suppression.5 Mr Kerr appeals that decision.

Background

[2]    Between July 2018 and November 2020 Mr Kerr burgled or was unlawfully in the yard of student flats in the Queen Street and Harbour Terrace areas of north

1      R v Kerr [2021] NZDC 24526.

2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Summary Offences Act 1981, s 29(1)(b); maximum penalty three months’ imprisonment.

4      Summary Offences Act, s 30(1)(a); maximum penalty $500 fine.

5      R v Kerr [2021] NZDC 24552.

KERR v POLICE [2022] NZHC 190 [16 February 2022]

Dunedin. He would wear dark, loose fitting clothing in addition to bandannas around his hair and mouth to conceal his identity. If confronted, he would immediately run from properties, jumping fences and using alleyways. Following a burglary, Mr Kerr would sell stolen property to associates or via a fictitious Facebook profile Samantha Peek.

[3]    Mr Kerr appeared to target student flats, particularly those occupied by young women. On two occasions in 2018, Mr Kerr stole occupants’ underwear. On one occasion, in September 2020, Mr Kerr ran directly up to a female student’s window. She had just exited the shower and was only wearing a towel. On several occasions, he also cut holes in the victim’s bedroom curtains. As a result of these factors the sentencing Judge found a sexual element was an aggravating factor of Mr Kerr’s offending.6

District Court decision

[4]    Judge Robinson carefully set out the principles governing a grant of name suppression.

[5]    The principles that stood out as relevant in this case were that publication may help prevent Mr Kerr reoffending and it carries with it an element of personal deterrence.7 The Judge also referred to D v Police, where the Court of Appeal made a number of points relevant to a name suppression application where a risk of self-harm arises.8

[6]    The primary argument in support of the application considered by the Judge was that Mr Kerr would self-harm if not granted name suppression and thereby publication would be likely to cause extreme hardship to him and/or endanger his safety.9 In support of that argument was a report from Dr Sellbom, a clinical psychologist. The Judge noted Dr Sellbom’s opinion that Mr Kerr would be of substantially higher risk for self-harm than the average offender, were he pictured and

6      R v Kerr, above n 1, at [100].

7      Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CPA200.01] cited with approval in R v Police [2014] NZHC 2178 at [30].

8      D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614.

9      Criminal Procedure Act 2011, ss 200(2)(a) and 200(2)(e).

named in an article describing the case. Conversely, the Judge found the authorities suggested a heightened risk of suicide would not necessarily lead to suppression where the person is held in custody. He referred to Mr Kerr’s experience in the Intervention Support Unit. The Judge did note that prison authorities might not be able to guard against a risk beyond the normal level of any convicted prisoner, citing F v R.10

[7]    The Judge accepted there was evidence of prior self-harm but noted Mr Kerr was safely maintained in custody during periods of particular stress, for example in the immediate aftermath of his arrest. He considered, although there was a substantial risk of harm, it could be managed in the prison environment. Overall, the Judge found Mr Kerr came close to satisfying the risk criterion but ultimately had not done so.

[8]    Had Mr Kerr met the risk threshold, the Judge indicated he would have exercised his discretion to decline name suppression. As to that, he referred to the seriousness of the offending, the likelihood of Mr Kerr reoffending, the deterrence and protective nature of publication, the public’s right to know and the fact Mr Kerr bragged about his offending on social media. The Judge considered a statement from the High Court in King v Police which recognised the protective and deterrent nature of publicity in a case such as Mr Kerr’s:11

[30]   The offending in this case targeted members of the public. Offending of the sort Mr King was guilty of is most unsettling and can create long-term increased feelings of insecurity for those whose privacy has been so significantly invaded. Where members of the public have been so affected by such offending, the public are entitled to know of how this has been dealt with through the courts.

[9]    The Judge considered, while there was an appreciable risk to Mr Kerr’s safety, that risk could be mitigated, and the consequences and risks associated with publication would not be out of all proportion to the circumstances of the offending. The Judge refused the application for suppression of Mr Kerr’s name but ordered that he not be photographed.

10     F v R [2020] NZHC 1653.

11     King v Police [2020] NZHC 1213.

Principles on appeal

[10]   The starting point for consideration of a suppression order is the presumption of open justice.12 The business of the courts should be conducted publicly and any departure from this general rule ought only be “to the extent necessary to serve the ends of justice.”13 A suppression order may be made under s 200 of the Criminal Procedure Act 2011, which provides:

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

…

[11]   The approach to suppression involves a two-step inquiry.14 First, the Court must determine whether a threshold ground set out in s 200(2) is met. If the threshold is not met, the Court does not have jurisdiction to grant name suppression. Second, if the Court is satisfied one of the threshold grounds has been met, it must determine whether to exercise its discretion and forbid publication of the defendant’s details.15 The presumption of open justice is considered at this stage. To displace the presumption, the balance must clearly favour suppression.16

12     Robertson v Police [2015] NZCA 7 at [43]-[47]; D (CA443/2015) v Police, above n 8.

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

14     D (CA443/2015) v Police, above n 8, at [10].

15     Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 12; D (CA443/2015) v Police, above n 8.

16     D (CA443/2015) v Police, above n 8, at [17].

[12]   An appeal court is required to undertake its own assessment of whether the threshold test is met.17 That will involve an assessment of fact and degree. While the appeal court must not defer to the lower court’s assessment, it remained incumbent on the appellant to identify error in the lower court’s decision and satisfy the appeal court it should reach a different result.18 If satisfied the statutory criteria has been met, the appeal court’s review of the second step, which in the lower court involved the exercise of a discretion, will be more limited. It must be focused on whether the lower court, in exercising its discretion: erred in principle; failed to take into account a relevant matter; took into account an irrelevant matter; or was plainly wrong.19

[13]   To determine the appeal the Court will confirm, vary or set aside the decision appealed against or make any other order it considers appropriate.20

Submissions

Appellant’s submissions

[14]The grounds of appeal were:

(a)   the Judge’s decision was plainly wrong; and

(b)     the Judge failed to take into account the full extent of Mr Kerr’s mental health and, in doing so, overemphasized factors relating to public interest considerations.

[15]   Mr de Jager, for Mr Kerr, submitted the Judge erred in finding Mr Kerr’s risk, including documented history of attempted suicides, could be adequately mitigated by management in the prison environment. In support of this submission, he referred to Dr Sellbom’s psychological report in detail. Mr de Jager also submitted the Judge failed to have due regard to previous decisions of the High Court that have recognised prison authorities may not be able to guard adequately against suicide risk in cases

17     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

18     Austin, Nichols & Co Inc v Stichting Lodestar, above n 17.

19     Wilson v R [2018] NZHC 1778 at [14], citing K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[33].

20     Criminal Procedure Act, s 287.

where psychiatric evidence suggested publication would endanger a defendant significantly beyond the normal level a convicted prisoner may experience.

[16]   In relation to the second stage of the test, Mr de Jager, referring to the pre- sentence report, submitted the Judge failed to consider that Mr Kerr was found to be at a low to moderate risk of reoffending.

Respondent’s submissions

[17]   With regard to s 200(6) of the Criminal Procedure Act, the Crown put before this Court information as to the views of victims of the offending. Three victims indicated they had no strong opinion either way. Five victims were strongly of the view that Mr Kerr’s name should not be kept secret. In expressing their opinion, several referred to the nature of his offending and the risk of further offending. One said people need to know who he is to prevent this happening again in the future.

[18]   Mr Power, for the Crown, emphasised the fact Mr Kerr reported counselling had been helpful and that stress around his sentencing was a major risk factor. He also noted Dr Sellbom’s statements that Mr Kerr’s diagnosis needed to be interpreted with some caution as there was some evidence of symptom exaggeration by Mr Kerr.

[19]   Mr Power submitted the Judge took into account Dr Sellbom’s statement, if pictured and named in an article Mr Kerr would be at a substantially higher risk for self-harm than the average offender, by ordering that Mr Kerr not be photographed.

[20]   Overall, Mr Power submitted Mr Kerr’s risk of self-harm appears to have been managed in the prison environment. He also submitted, in relation to the exercise of discretion, the Judge considered all matters relevant to Mr Kerr’s application and considered the public interest supported publication, a conclusion he was entitled to reach.

Analysis

[21]   It is not suggested the Judge made any error as to the relevant principles to be considered on an application for suppression of name or as to the two stage approach to be adopted in accordance with those principles.

[22]   In the discussion that follows I have been mindful of the views expressed by the victims of Mr Kerr’s offending as conveyed to me.

Stage one

[23]   I first consider stage one of the test, namely whether publication would cause extreme hardship or endanger Mr Kerr’s safety. The psychological report and supplementary memorandum by Dr Sellbom contain the evidence relied on to establish these grounds. The Court of Appeal made a number of points that must be considered in cases of self-harm risk in D (CA443/2015) v Police:21

(a)   The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at- risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility.

(b)   Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.

(c)   For these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may be coupled with evidence that the case will attract unusually extensive or critical media publicity.

…

(e)    Anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self-harm or suicide.

21     D (CA443/2015) v Police, above n 8, at [30] (footnotes omitted).

(f)   The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant's condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.

(g)   There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. Sensitive information of a personal nature may be suppressed.

(h)   Suppression does not follow automatically from the court being satisfied that a relevant risk exists. The court must further consider the second issue: whether an order ought to be made in the exercise of discretion.

[24]   It was and is appropriate for the Court to exercise due caution in assessing the degree of risk for Mr Kerr.

[25]   I accept there was and probably remains a risk that, by reason of matters referred to in detail in Dr Sellbom’s initial report and subsequent memoranda, Mr Kerr might self-harm while a prisoner or at some other time following his release. I accept, as Mr de Jager emphasised, there is a documented history of suicide ideation, that is of Mr Kerr contemplating suicide.

[26]   In his supplementary memorandum of 1 December 2021, Dr Sellbom said there was:

… documented evidence for suicide risk in Department of [Corrections’] records. He has reportedly attempted suicide on multiple previous occasions and has been monitored in the ARU or ISU during every imprisonment.

[27]   In his first 17 page report of 29 November 2021, Dr Sellbom did not refer to any Department of Corrections record that stated in clear and definitive terms Mr Kerr had actually “attempted suicide”. The only documentary evidence of an attempt, referred to by Dr Sellbom, was in records from Forbury Corner Health Centre noting a suicide attempt in 2007 during which Mr Kerr was admitted to Emergency Psychiatric Services (EPS). However, it is unclear whether this record arose as a result of Mr Kerr’s self-report or reference to EPS records.

[28]   I accept there is a documented history of instances of self-harm but the information is not sufficient for me to find there have been actual attempts at suicide. The injuries in the instances of self-harm do not appear to have been life-threatening.

[29] In a second supplementary memorandum of 6 December 2021, Dr Sellbom referred to information in medical reports that referred to Mr Kerr’s engagement with EPS in 2007 for, amongst other matters, “suicidal ideation, and minor self-injury with a knife”. This appears to be a reference to the “suicide attempt” reported by the health centre. The minor nature of this incident is supportive of my findings at [28]. There was also information of his having multiple contacts with EPS between 2015 and 2016 “after suicide threats and altercations”.

[30]   Dr Sellbom said Department of Corrections’ records indicated that, throughout his stay in Intervention Support Unit, Mr Kerr had been on close suicide monitoring as he would make intermittent threats about suicide should he be moved to a different unit. The records indicated he engaged in self-harming behaviour, including hitting a window with his elbow which required medical attention.

[31]   In his initial report, Dr Sellbom referred to Corrections’ staff being of the opinion that, at times, “suicide threats were made without intent and for them to leave him alone”.

[32]   In the memorandum of 6 December 2021, Dr Sellbom referred to information from medical records which had just been made available to him. He noted that a psychiatrist had reported that Mr Kerr had disclosed to her instances of suicidal gestures and threats including threatening suicide to prevent a relationship from ending.

[33]   Dr Sellbom referred to Mr Kerr’s counsellor having advised him that Mr Kerr “has a tendency to catastrophise”.

[34]   Dr Sellbom said, with regard to Mr Kerr’s legal history, which includes a total of 27 convictions, Mr Kerr had provided “self-serving accounts for the common

assault, burglary and blackmail convictions in particular, with outright denying any wrongdoing in the latter instance”.

[35]   The information before the Court also indicates it was not previously important to Mr Kerr to keep his offending secret from people he was close to. As referred to by Dr Sellbom, Mr Kerr referred to the burglaries he committed as “missions” and would message associates on Facebook advising that he was on a mission. He also sent these associates images of property he had recently stolen. Mr Kerr told Dr Sellbom that, once he had stolen property, he would give the items to someone named “Anna” who operated the Facebook profile of “Samantha Peek” through which the items would be sold. He told Dr Sellbom he wanted to obtain money to pay for things for partners he was involved with and he would occasionally steal clothing and jewellery for them.

[36]   I also consider, as the District Court Judge did, that Dr Sellbom had acknowledged, although there was some inconsistency through the tests that had been applied, there was some indication in one of the tests used that Mr Kerr was over- reporting his mental health difficulties. Mr de Jager emphasised there had been three tests and only one of those tests suggested this. He also pointed out that, even if there was some over-reporting, there could nevertheless be evidence of genuine mental health issues and a risk of suicide. I accept this.

[37]   I also recognise that, although Dr Sellbom qualified his diagnosis as to particular mental disabilities Mr Kerr suffered from in this way, in a subsequent memorandum of 6 December 2020 he said he had received medical records for Mr Kerr. These showed that his diagnosis was consistent with opinions reached by a psychiatrist who had previously dealt with Mr Kerr.

[38]   Nevertheless, Dr Sellbom stated in his report, because there was some evidence for symptom exaggeration on the MMPI-3 reporting scale, that tool could not be used to compile a profile as to his emotional and personality functioning. This was significant as Dr Sellbom said the MMPI instrument was “among the most frequently used measures of their kind in clinical, forensic, and correctional psychology practice”. Dr Sellbom later said, because of the MMPI-3 validity scale results, the results of further checklist symptoms for a particular mental disability had to be

“interpreted with some caution as it is possibly exaggerated”. Later, Dr Sellbom referred again to the psychological test results which showed evidence for possible over-reporting of mental health difficulties as an important qualification to be considered with regard to his diagnosis of mental disorders he considered Mr Kerr suffered from.

[39]   As Moore J was in a judgment from 2020, I have been mindful of the statement of the Court of Appeal in R v Suttie:22

… the Court must be alert to the offender’s manipulating or influencing the Court process, whether calculatedly or not, in disclosing suicidal thoughts. Diagnosable psychiatric conditions are often present at sentencing and a high proportion of prisoners suffer from such conditions. Suicidal ideation is commonly present at sentencing.

[40]   In assessing the degree of risk, I also have regard to the fact that, with his acknowledged history of suicide ideation and actual attempts at self-harm, Mr Kerr considered he was robust enough to embark on offending which Dr Sellbom acknowledged “took considerable planning and careful execution for [Mr Kerr] to commit these offences while going undetected for over two years”.

[41]   On all the information before the Court, it is also reasonable to assume, to the extent there is a risk of suicide, that risk can be mitigated through Corrections exercising their responsibility to keep him safe while he is serving his prison sentence. Based on what Mr Kerr told Dr Sellbom, as referred to by Dr Sellbom at one point in his report, the District Court Judge referred to the fact Mr Kerr had been in isolation within prison for some three months. Other information in the report indicated he had been in protective custody in this way for 180 days. Assuming it was for the latter period, there is thus evidence that, while at risk of suicide with the stress of the criminal proceedings and all the associated consequences, Corrections had been able to keep Mr Kerr safe. Even if he had been in protective custody for 180 days, the record indicates that Mr Kerr’s mental state had improved to a point where he had been safely able to mix with other prisoners and not be in isolation for much of the period he had been remanded in custody.

22     R v Suttie [2007] NZCA 201 at [27], referred to by Moore J in the High Court in H v R [2020] NZHC 3093 at [35].

[42]   Here, the information shows that Corrections had been able to ensure Mr Kerr was safe, particularly from suicidal self-harm, knowing there was some risk of both.

Corrections’ ability to do so was and remains a relevant consideration.23

[43]   Dr Sellbom advised that Mr Kerr had started seeing his mental health counsellor in April 2021. He was being supported by her on a fortnightly basis and had been prescribed antidepressant medication. Mr Kerr told Dr Sellbom that the counselling had been “very helpful to him”.

[44]   At the conclusion of his first report of 29 November 2021, Dr Sellbom made recommendations as to how Mr Kerr could benefit from mental health treatment. He did not suggest any particular steps should be taken to protect Mr Kerr from the risk of suicide or self-harm. Dr Sellbom referred to Mr Kerr’s expressed “chronic suicidal endorsed ideation” but, in that context, referred to Mr Kerr acknowledging that his counselling sessions had been helpful. Dr Sellbom went on to say:

The defendant denied any current intent to harm himself and does not have a plan to do so. He stated that he knows whom to contact should the intensity of his ideation increase, and staff are aware and monitor him. Mr Kerr reported that intensification of the stress surrounding his sentencing is a major risk factor. He denied any homicidal ideation.

[45]   It was only after Dr Sellbom had been asked by Mr Kerr’s counsel to consider the risks for self-harm if there was publication of Mr Kerr’s name and picture that Dr Sellbom offered the opinion that publication would excessively elevate his already high risk for self-harm. There was nothing in that memorandum to indicate this opinion was based on further discussions he had with Mr Kerr. Dr Sellbom referred back to the comments he made as to Mr Kerr’s psychological vulnerability, personality and history, as previously referred to. In particular, he referred to the stress which would result from publication and Mr Kerr’s belief that publication would result in the complete rejection of him by his entire family and children, and the stress that would result from this, whether or not his belief was rational.

[46]   The information in the initial report however indicates Mr Kerr has been coping with that dislocation throughout the time he has been in prison in relation to

23     Consistent with the observations of Winkelman J in BL v R [2013] NZHC 2878 at [27].

these charges and probably for a considerable time before then. Dr Sellbom referred to Mr Kerr’s counsellor telling him Mr Kerr had lost contact with his teenage children and his youngest daughter who was currently in the United Kingdom. The information was that Mr Kerr does not have a close relationship with any of his siblings or parents. His closest relationship was with his grandmother who died about seven years ago.

[47]   Dr Sellbom reported that Mr Kerr had said his relationships with women he had been involved with ended with his being remanded in custody. The only member of his family who he was having contact with had been his father. The information was that his father had been visiting him in prison so must already know of the admitted offending.

[48]   It is thus apparent that, over a significant period, Mr Kerr was dealing with social abandonment and was understandably distressed at the way he was socially isolated. Over that time, Corrections was able to keep him safe. His mental state had improved to a point where, at the time of his sentencing, he had no “current intent to harm himself, did not have a plan to do so and denied any homicidal ideation”.

[49]   It may be that Mr Kerr is at a greater risk of suicide than the average offender. However, the issue for this Court, as it was for the District Court, was whether publication of Mr Kerr’s name in connection with the admitted offending would likely make suicide or serious harm a real and appreciable possibility so as to establish the grounds for a suppression order.

[50]   It was not suggested there should be suppression because of a particular risk of suicide or self-harm when Mr Kerr is released from prison and no longer in the protective prison environment. I have however considered this. The information from Dr Sellbom is that, over the time Mr Kerr has been in prison, his mental health had improved to a point where he was no longer thinking about suicide and said he had no plan to do so, as the Judge at sentencing anticipated. He has now faced and survived the stress of sentencing. He must have come to terms with the reality of that sentence. Mr Kerr has also known that suppression was refused in the District Court and this might not change with his appeal. He has the benefit of a helpful relationship with a counsellor who he has been able to see on a regular basis. She should be available to

assist him on his release if he continues to need that support. It seems there will be some support for him from his father with whom he wishes to develop a relationship, a father who already knows of this offending. There is nothing in the information before me to suggest that, because of the circumstances he will face at the time of his release, publication now of his name in connection with the offending would, on his release, increase the risk of suicide or self-harm to a level that meets the threshold for the making of a suppression order.

[51]   The Judge determined that, with publication of Mr Kerr’s name in connection with his admitted offending, the risk of suicide or self-harm was not such as to meet the threshold for the making of a suppression order. There was no error in that determination. In light of all the information the Judge had to consider, I make the same decision.

Stage two

[52]   Because Mr Kerr had not established at the first stage the threshold for the making of a suppression order, it was not necessary for the Judge to decide how he would have exercised the discretion at this stage had it been necessary. It is also not necessary for me to do so. For completeness, I do say that, had the threshold at the first stage been established, I would have exercised the Court’s discretion in the same way.

[53]   There was no error of law or principle in the Judge’s decision. It was not suggested the Judge took account of any irrelevant consideration. The only errors referred to was the Judge’s reference to Mr Kerr having been in the Intervention Support Unit for a period of about three months when there was information he had been in such isolation for 180 days,24 and the fact the Judge had not referred to the fact the pre-sentence report had assessed Mr Kerr as being at a low-moderate risk of reoffending.

24 The Judge referred to the period of about three months, no doubt relying on Dr Sellbom saying in his report that Mr Kerr had said he had been in the Intervention Support Unit “for the first several months of his current detention”. Later, Dr Sellbom said the counsellor had reported to him that, when Mr Kerr first arrived at the prison, “he had considerable suicidal thinking and was in ISU for the first 180 days before being placed with the mainstream population”.

[54]   I do not consider the likely mistake as to the length of time Mr Kerr had been in the ISU meant the Judge exercised his discretion on a materially incorrect basis. The Judge was mindful that Mr Kerr had been in protective custody for a significant period after being charged with these offences. He took that into account in assessing the extent to which Mr Kerr would be at risk of suicide or self-harm if there was publication of his name.

[55]   There was no material error in the Judge not expressly referring to Corrections’ assessment as to there being a low to moderate risk of Mr Kerr reoffending. The Judge considered there was some risk of reoffending. This was consistent with the assessment that had been made by Corrections. Referring to the statement from the High Court in King v Police, the Judge had considered that publication would have a deterrent and protective effect as far as further possible offending was concerned.25 There was no error in that regard. With publication of Mr Kerr’s name, it would be more likely Mr Kerr will tell people who might be close to him, both now and in the future, of this previous offending. With knowledge of what occurred, such people would be better able to protect themselves and others from the risk of any similar offending. They would also be better able to provide him with the support he might need to reduce the risk of any similar offending in the future.

[56]   In any event, publication of a defendant’s name is not solely to deter an offender from further offending or others from similar offending, or to protect the public from such further offending. The starting point is the presumption of open justice and the right of the media to be able to observe and report on what happens in court.

[57]   The relevant factors that counted against the exercise of discretion referred to by the Judge in this case were the seriousness of the offending, the deterrent aspect of publication, the likelihood of reoffending, the public’s right to know and thus the presumption of open justice. The Judge had also noted that Mr Kerr had bragged about the offending on social media. I do not consider there was any error in the way the Judge weighed these matters when he said how he would have exercised his discretion.

25     King v Police, above n 11.

[58]   At the second stage, the Judge’s decision was not plainly wrong. The legal principles were set out and applied correctly. It was a reasoned and thorough decision in which all relevant considerations were canvassed and without resort to irrelevant considerations.

[59]   Mr Kerr’s appeal against the refusal of an order for name suppression in the District Court is dismissed.

Suppression

[60]   Apart from the Judge’s recognition of the need for continued interim suppression of Mr Kerr’s name pending this appeal, no suppression orders were made as to either what was said in Court or in the Judge’s decision over suppression. With media present at the hearing of the appeal, I did make an interim order for suppression of all that was said in Court on the hearing of the appeal.

[61]   In D v Police, the Court of Appeal indicated that, where there is some evidence of a risk of suicide or self-harm, a court should consider whether that risk might be mitigated through suppressing information of a personal nature.26 For that reason, there is some information of a personal nature which has not been expressly referred to in this judgment. I have also not referred in detail to Dr Sellbom’s discussion as to the mental disabilities he considered Mr Kerr suffers from.

[62]   Mr Kerr had not raised any issue over continuing suppression until I suggested this required consideration.

[63]   Despite the principle of open justice, Mr Kerr sought continued suppression of his name primarily on the basis that, with publication, the risk of suicide or self-harm was sufficient so as to necessitate some suppression. Inevitably, in doing so, he was putting before the Court, and thus before the media who were in Court, information of a highly personal nature. I consider that, consistent with the principle of open justice, the media should be free to report the decision that was made over suppression in the

26     D (CA 443/2015) v Police, above n 8.

District Court and what is said in this judgment in such manner as they consider appropriate.

[64]   There will be a final order for suppression of what was said in this Court on the hearing of the appeal except to the extent there has been a reference to that in this judgment. There is no suppression order as to any aspect of this judgment.

Solicitors:

Public Defence Service, Dunedin Crown Solicitor’s Office, Dunedin