Lawson v Police
[2013] NZHC 3139
•27 November 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2013-443-022 [2013] NZHC 3139
SONJA MARIE LAWSON
v
NEW ZEALAND POLICE
Hearing: 25 September 2013
Counsel: R J Leith for Appellant
J Woodcock for Crown
Judgment: 27 November 2013
JUDGMENT OF WILLIAMS J
Introduction
[1] Ms Lawson was charged with three counts of using a telephone device for the purpose of annoying a person and with the intention of offending the recipient. These charges arose because Ms Lawson sent facsimiles to the Ministry of Social Development (MSD), C&M Legal (the Crown Solicitors in New Plymouth) and Laser Electrical (a Taranaki whiteware firm). These facsimiles were abusive in nature and derogatory in content.
[2] Ms Lawson was convicted following a defended hearing in the District Court at Hawera. Ms Lawson appealed her convictions but it transpired that neither the notes of evidence nor the learned Judge’s oral reasons for her decision had been properly recorded. As a result Heath J allowed the appeal and directed that all three
charges be remitted to the District Court for rehearing.1 The matter was reheard in
1 Lawson v New Zealand Police [2012] NZHC 3571.
LAWSON v NEW ZEALAND POLICE [2013] NZHC 3139 [27 November 2013]
the District Court at Hawera before Judge Ross. Ms Lawson was again convicted.2
She was sentenced by way of an order to come up if called upon within 12 months and to pay witness expenses and court costs.3
The facts
[3] The first complainant was Roger Wells, an employee of MSD. Between 2010 and 2012, WINZ (an agency within MSD) investigated and prosecuted Ms Lawson. During that time Ms Lawson began sending lengthy facsimiles to the Remote Client Unit of WINZ. The facsimiles contained what can only be described as abusive and derogatory remarks. During a three week period in April 2012, Ms Lawson sent them on a regular basis.
[4] On 3 April 2012, Ms Lawson sent the same four-page facsimile nine times over 35 minutes. Mr Wells believed some of the facsimiles were offensive because of the derogatory language used to refer to himself and others. The facsimiles also contained accusations about himself and others. The facsimiles are addressed to the Remote Client Unit, but Mr Wells is explicitly referred to in the facsimiles along with a number of others. These facts gave rise to one charge of using a telephone device for the purpose of annoying a person with the intention of offending the recipient.
[5] The second complainant was the practise manager at C&M Legal, a Thomas Foggerty. C&M Legal represented WINZ (or MSD) in the prosecution. That prosecution related to late November and December 2011 when MSD began to receive facsimiles from Ms Lawson. These were directed at a former MSD employee, James Gurnick. The messages were often in excess of 10 pages. Sometimes the facsimiles related to the WINZ matter but they also related to various other organisations.
[6] Ms Lawson also sent C&M Legal a message on 30 April 2012 which contained a number of similarly derogatory comments. The message was sent a
further four times on the following three days. And then between 7 and 8 May 2012,
2 New Zealand Police v Lawson DC Hawera CRI-2013-021-110, 13 May 2013 (conviction).
3 New Zealand Police v Lawson DC Hawera CRI-2013-021-110, 13 May 2013 (sentencing).
Ms Lawson sent C&M Legal over 70 pages of facsimiles of a similar ilk. Mr Foggerty said he found these facsimiles “offensive and unacceptable”. These facts gave rise to the second charge of using a telephone device for the purpose of annoying a person with the intention of offending the recipient.
[7] The third complainant was Christine Corrigan, a director and employee of Laser Electrical, a whiteware firm. In July 2011, Ms Lawson arranged for Dimocks Appliances in Stratford to repair an LG fridge which she had purchased from them. Laser Electrical loaned Ms Lawson a fridge to use in the meantime. The appliance could not be repaired to Ms Lawson’s satisfaction. After a period of months Dimocks offered Ms Lawson a cheque for $849. It was thought that Ms Lawson’s acceptance of the cheque would resolve the issues between the three parties regarding the repairs to the fridge. Laser Electrical subsequently made attempts to contact Ms Lawson so it could reclaim its fridge it had lent to her. Ms Lawson refused to return the fridge despite having accepted the cheque. In March/April 2012
Ms Lawson began sending facsimile messages to Laser Electrical. According to Mrs Corrigan, the facsimiles contained allegations that Laser Electrical had “wrecked her fridge” and “[set] the cops on her” as well as “abusive language and threats of Fair Go and Court”. She says that the facsimiles included language that Mrs Corrigan considered to be offensive. These facts gave rise to the third charge of using a telephone device for the purpose of annoying a person with the intention of offending the recipient.
[8] Ms Lawson says that her purpose in sending these facsimiles to MSD was to gain their assistance. She says that she sent the facsimiles to Laser Electrical because she had an unresolved dispute with them over her fridge. She did not recall sending facsimiles to C&M Legal.
District Court decision
[9] Ms Lawson’s defended hearing took place before Judge Ross in the Hawera District Court. Judge Ross found that the elements of the charges had been proven beyond reasonable doubt and convicted Ms Lawson. He was satisfied that:
(a) A “telephone device” was used and that all of the facsimiles received by the three complainants were sent by Ms Lawson. He noted that the facsimiles could be identified via Ms Lawson’s MSD number and she was also the only person who had the knowledge to send material of that kind to the three groups with whom she had disagreements.
(b)Ms Lawson’s purpose in sending the facsimiles was to disturb or annoy.
(c) Ms Lawson intended to offend the recipients. Counsel for Ms Lawson argued that it was not possible to prove Ms Lawson had the requisite intent on the evidence before the court. Nor could it be shown that the communication was designed to offend. Judge Ross held that the facsimiles fell into the “self-determining category” in that “it is not hard to move from the nature of the expressions that have been used to a finding by inference that the intention in using them was to offend”. He noted that there did not need to be proof that the recipients were themselves offended, but there was evidence to that effect from Mr Foggerty, Mrs Corrigan and Mr Wells.
(d)The three named complainants in the information and the three witnesses retained statutory recipient status. The Judge noted that Mr Foggerty and Mr Wells both worked close to the facsimile machines through which they received the facsimiles. Mrs Corrigan was also a recipient because the company could only act through the “agency of the eyes, mind and hands of its officers and employees of whom she is one”.
(e) The facsimiles sent by Ms Lawson were “far more than was necessary to make a point so far as the issues with the individuals were concerned”.
[10] Judge Ross sentenced Ms Lawson to come up for sentence if called upon, and ordered her to pay court costs and witness expenses.
Nature of the appeal
[11] Ms Lawson was convicted summarily in the District Court. As a result the appeal provisions in the Summary Proceedings Act 1957 apply. Sections 115 and
119 of the Summary Proceedings Act 1957 state this is a general appeal to be heard by way of rehearing. The onus is on the appellant to satisfy the court that the grounds of appeal have been made out and that it should differ from the original decision, but the appellate court must come to its own view on the merits.4
[12] Section 121(2) provides that in the case of an appeal against conviction, the court may confirm the conviction, set it aside, or amend it, and if the court thinks fit, quash the sentence imposed and either impose a different sentence or deal with the offender in any other way.
Offence provision
[13] Section 112(2) of the Telecommunications Act 2001 relevantly provides that:
(2) Every person commits an offence who –
(a) uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient.
[14] Thus the court must be satisfied that this prosecution has proved beyond a reasonable doubt, the following elements of the offence:5
(a) a telephone device was used;
(b)that the reason the device was used was to disturb, annoy or irritate any person;
(c) that the device was used by means of calling up without speech or by wantonly or maliciously transmitting communication or sounds; and
4 Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141.
(d)that the device was used with the intention of offending the recipient of the communications.
Submissions
[15] Counsel on behalf of Ms Lawson does not dispute the use of a telephone device by Ms Lawson, but notes the concern raised by Ms Lawson’s previous counsel at the rehearing regarding the chain of evidence. That matter was not pursued before me. Counsel disputes the other elements of the offences. He says that:
(a) the Judge erred in finding that Ms Lawson’s purpose was to annoy and that the transmission of the communications was malicious. Counsel says that Ms Lawson’s purpose was to obtain assistance and to express her frustration, and therefore the transmission was not malicious. Counsel further says that there was no intention to annoy because the intention must be to annoy the actual recipients of the facsimiles. He submits that the evidence shows that Ms Lawson did not intend particularly to annoy the complainants. He says it is clear from the majority of the facsimiles that the complainants were not the intended recipients of the facsimiles. He says the observations of
Fogarty J in Kazakos v Police apply.6 Those were that the trial in that
case proceeded on the basis of the evidence of two witnesses as to 71 calls, and that the witnesses for the police accepted that a lot of the content of the calls at issue in that case was “harmless nonsense”;7
(b)the Judge erred by failing to allow Ms Lawson to present evidence which demonstrated the context in which the facsimiles were sent. Ms Lawson intended to have two friends give evidence regarding her conflict with WINZ but counsel says that the Judge intervened on three occasions while one of the witnesses was giving evidence, which prevented the witness elaborating on his answers. The Judge
also prevented the second witness from giving evidence. Counsel
6 Kazakos v Police HC Christchurch CRI-2009-409-130, 11 November 2009.
says that context is central to an assessment of the elements of the charges themselves, so the evidence was relevant and should not have been excluded. Counsel further submits that the Judge’s actions breached Ms Lawson’s right to justice pursuant to s 27(1) of the New Zealand Bill of Rights Act 1990.
[16] Counsel for the Crown submits that:
(a) Ms Lawson’s claims that her purpose was not to annoy were not accepted in light of the evidence available to the court. Counsel says that the key evidence relied on by the prosecution for what Ms Lawson intended was the facsimiles themselves. Evidence was given by each of the recipients that they received the facsimiles and they were produced as exhibits. Counsel says that there was no real challenge to the witnesses’ evidence and the Judge was entitled to rely on the facsimiles produced in evidence. Counsel refers to the Judge’s observation that Ms Lawson’s explanations for sending the facsimiles were inconsistent with the wide dissemination of the facsimiles and her use of “extreme terms and descriptions”.
(b)Ms Lawson’s argument that the Judge prevented her from establishing the context in which the facsimiles were sent is not borne out on the evidence because Ms Lawson and Mr Coxhead gave evidence on this. Furthermore, irrespective of the context, the elements of the charges were made out and the court was entitled to exclude evidence that would needlessly prolong the proceeding.
(c) Although there was no specific reference in the District Court decision to wanton or malicious transmission, this element was also established given the number and content of the facsimiles.
(d)The Judge carefully considered whether Ms Lawson’s intention was to offend the recipients. In response to Ms Lawson’s argument that she did not intend to offend the actual recipients of the facsimiles, the
Crown submits that it only has to prove that at the time the communication was made Ms Lawson intended to offend the person who received it not that the appellant intended to offend a particular person. Counsel says that the narrow interpretation advocated for by Ms Lawson’s counsel would mean that any disgruntled person could use a fax machine to send generally offensive communications to an organisation where employees were offended and avoid liability. Counsel says that this could not have been what the legislature intended.
(e) This case is distinguishable from Kazakos v Police because in that case the witnesses accepted that the content of the telephone calls were harmless and non-sensical, whereas the witnesses in this case say they found the facsimiles offensive. Ms Lawson specifically targeted Mr Wells, referring to him as a sexual predator.
Assessment
[17] As with the case in Spooner v Police8 (Fisher J), McLachlan v Police9 (Miller J), and Kazakos v Police10 (Fogarty J) the issue in this appeal relates to aspects of the triple mental element in this complex offence provision.
[18] There is no question that the facsimiles were sent via a telephone device. Nor is there any question that they were transmitted communications within the meaning of the section. The questions relate to the following:
(a) The general purpose of the communications: were the facsimiles intended by Ms Lawson to disturb, annoy or irritate any person?
(b)The extra intent requirement: were the facsimiles wanton or malicious?
8 Spooner v Police HC Hamilton AP19/92, 29 June 1992.
9 McLachlan v Police HC Auckland CRI-2010-404-106, 29 June 2010.
10 Kazakos v Police, above n 6.
(c) Intention in relation to the recipients: were the facsimiles intended specifically to offend the recipients?
[19] I accept that Ms Lawson’s intention in sending the facsimiles was, in each case, to bring attention to what she perceived to be terrible injustices being visited upon her by the target organisations. Mr Leith pointed to Fogarty J’s treatment of this general purpose element in the Kazakos decision. It was, the Judge said, insufficient to show the sender (or speaker in that case) knew that constant phone calls would disturb, annoy or irritate another. Rather, that outcome had to be the
point in the communication.11 I agree with that analysis up to a point (no pun
intended at all).
[20] Fisher J in Spooner suggests that the proscribed purposes must be dominant in the mind of the sender. In my view, the reality can sometimes be a little more subtle than that. I consider that it will be sufficient to meet the standard in the section if disturbing, annoying or irritating is a substantial and material purpose of the communication. I do not have any doubt that in this case it was.
[21] Now I accept that one of Ms Lawson’s aims in the three batches of communication was merely to draw attention to disputes between herself and MSD, C&M Legal and Laser Electrical. The facsimiles expressed her deep frustration at the inability of those organisations to see her point of view. No issue can be taken with such a purpose. It does not breach the section. But, crucially, Ms Lawson’s strategy was to achieve her objective by using language so inflammatory that it would annoy, disturb or irritate those in each of the organisations into paying attention to her plight. That purpose is in breach. Not only did Ms Lawson know that the facsimiles would have one or more of the proscribed effects (the threshold reached in Kazakos), she actually intended the communications to have these effects. In short, annoying, disturbing and irritating were central elements of her communication strategy.
[22] Nor is there any doubt that the facsimiles were wanton and malicious. As
Fisher J notes in Spooner, wanton may be defined as maliciously and unnecessarily
11 At [16].
cruel and destructive, while malicious means “motivated by wrongful vicious or mischievous purpose”. These terms, the Judge notes, are used in the section to emphasise “the seriousness of the culpability required”, and to exclude trifling but still irritating communications. “Wanton” and “malicious” imply over the top disproportionality, or the use of indiscriminately vicious or destructive language. This is the element that ensures that the incursion of the criminal law into the right to free speech is tightly constrained. The right to communicate one’s point of view in robust and firm terms is untouched. Only communications that are so disproportionately cruel, vicious or destructive as to be considered wanton and malicious are caught.
[23] The words used in each case here, easily meet this standard. For example:
... I hope you fuckin cunts rot in hell ... [to the Ministry of Social
Development]
... rot in hell you arseholes ... [to Laser Electrical]
... you really are a pack of cunts ... [to C&M Legal]
[24] These communications are not the nonsensical stream of consciousness (but ultimately harmless) chatter that was excused by Fogarty J in Kazakos. There is an over the top nastiness about Ms Lawson’s communications that well fits the descriptors malicious and wanton.
[25] The court must also have been satisfied beyond a reasonable doubt that Ms Lawson’s facsimiles were each intended to offend their respective recipients – in this case, Roger Wells at WINZ, Thomas Foggerty at C&M Legal, and Christine Corrigan at Laser Electrical. As the authorities confirm, this additional mental element shifts focus from the sender’s general purpose in making the communications, to her specific intention in respect of the actual recipient. The relevant intention is in relation to that person and not anyone else who might receive the communication in some incidental or derivative way – for example, if the facsimiles had been sent to a wrong number and received by an unintended recipient.
[26] In this case, the communications were aimed at the organisations with which
Ms Lawson was in dispute. More particularly, they were aimed at all and any
individuals working within those organisations.12 That intention is made plain by the following words:
(a) sent to Ministry of Social Development:
URGENT ATTENTION: Remote Client Unit
I hope you fucking cunts rot in hell with firecrackers up your arseholes
(b) sent to C & M Legal:
The whole lot of you pigs are to blame for ruining my life including
... C&M Legal
(c) sent to Laser Electrical:
URGENT ATTN: Laser Electrical
I am going to sue the living daylights out of you you effin arseholes
... I will see you in Court of Appeal you wankers... go rot in hell you arseholes
[27] In that general sense, Ms Lawson did indeed intend to offend the actual recipients named as complainants, because each of them was employed within the relevant target organisation.
[28] I am therefore satisfied that the learned Judge was correct to enter convictions in respect of the three counts. The appeal against conviction is dismissed accordingly.
Appeal against sentence
[29] Section 121(3) of the Summary Proceedings Act 1957 provides that in the case of an appeal against sentence, the court may confirm the sentence; or if the sentence is one in which is “clearly excessive, inadequate or inappropriate” (“manifestly excessive”) or has no jurisdiction to impose, may quash or vary the
sentence or part of it.
12 Although, in Mr Wells’ case he is named in several of the facsimiles.
[30] Counsel for Ms Lawson submits that a sentence requiring the appellant to appear for sentence if called upon is manifestly excessive. He says that Ms Lawson was charged with other offences on the day after she was convicted and sentenced on these charges. She therefore fears that MSD will continue its “campaign” against her and seek to prosecute her again to activate the order to come up for sentence. Counsel for the Crown submits that this sentence was not manifestly excessive. She says that to come up for sentence if called upon is the lowest penalty available to the court in the hierarchy of sentences. She says that the sentence imposed was within range and may be seen as lenient in the circumstances.
[31] Perhaps it was within range, but in light of the structure of Judge Ross’ sentence in this case, it is very troubling indeed that the day after the Judge entered convictions and sentenced Ms Lawson, further charges were laid in relation to previous matters involving WINZ. These charges seem to relate to earlier texts allegedly sent by Ms Lawson. These (I understand) were the subject of evidence in this case. I have not been told what these texts contained, but I fear that the Ministry may be losing its own sense of proportion here. Ms Lawson clearly has coping issues in her life. They are reflected in the content and number of her communications with those with whom she is in conflict. And she has proved herself unable to mediate her way through these various disputes.
[32] In short, she feels got at. And she does not feel able to back out of the various messes in which she finds herself. It would be most unfortunate indeed if the Ministry displayed an equal inability to cope with persons of unusual or eccentric perception. That might lead one to conclude that the Ministry has also lost its sense of proportion with this individual.
[33] In these circumstances, a conviction and discharge is a just outcome. I agree that Judge Ross’ requirement to come up for sentence if called upon is, in the peculiar circumstances of this case, manifestly excessive. This arises through no fault of the learned Judge. He was not aware of the potential (and I accept it is only potential) impact of that sentence given the steps the Ministry subsequently took.
[34] The appeal is allowed to that extent. The sentence imposed is set aside and
the appellant is convicted and discharged accordingly.
Williams J
Solicitors:
R J Leith, Wanganui
Armstrong Barton, Wanganui