Molloy v Police

[2021] NZHC 2055

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-218

[2021] NZHC 2055

BETWEEN

LEO JOHN MOLLOY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 August 2021
Counsel:	D P H Jones QC for Appellant E C Rutherford for Respondent
Judgment:	10 August 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 August 2021 at 2 pm

Registrar/Deputy Registrar

Solicitors:

Bruce Dell Law (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

MOLLOY v POLICE [2021] NZHC 2055 [10 August 2021]

Introduction

[1]                 Mr Molloy pleaded guilty to one charge of knowingly publishing a name in breach of a suppression order.1 The maximum sentence is six months’ imprisonment.

[2]                 On 29 April 2021, Judge P Winter refused Mr Molloy’s application to be discharged without conviction.2 The Judge sentenced him to 350 hours’ community work and fined him $15,000.

[3]Mr Molloy now appeals Judge Winter’s decisions. He contends:

(a)The Judge erred in not discharging Mr Molloy without conviction.

(b)In any event, the sentence was manifestly excessive.

[4]                 An appeal against a refusal of a Court to grant a discharge without conviction is a composite appeal against both conviction and sentence.3 Mr Molloy’s appeal against the entry of a conviction will succeed only if I am satisfied that a miscarriage of justice has occurred. A miscarriage of justice will have occurred if there has been a material error or Judge Winter materially “erred in applying the principles”4 for discharging an offender without conviction.

[5]                 An appeal against sentence will succeed if an error is identified such that a different sentence should be imposed. If a sentence is manifestly excessive then that is an error which must be corrected.

Background

[6]                 Mr Kempson stood trial for the murder of Ms Millane. He was also charged with raping two other women. Separate trials were scheduled to determine those charges, to take place after the murder trial. To preserve Mr Kempson’s fair trial rights

1      Criminal Procedure Act 2011, s 211(1).

2      Police v Molloy [2021] NZDC 7886.

3      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]-[8].

4      Jackson v R, above n 3, at [12].

in relation to the rape charges, this Court made an interim order suppressing publication of his name.

[7]                 On the last day of Mr Kempson’s murder trial, Mr Molloy deliberately breached the interim name suppression order by making two posts on social media. The first post, made at 4.54 am on Friday, 22 November 2019, was titled: “This is the Grace Mullane (sic) murderer”. The post read:

He got name suppression because he’s also up on another independent rape charge … he needs a bullet.

Scooby I put it here because this forum has the traffic and people need to know about this dog.

[8]                 The jury, after 5 pm on 22 November 2019, found Mr Kempson guilty of murdering Ms Millane. At 8.58 pm, Mr Molloy made a further post in breach of the interim name suppression order:

Jesse Kempson was an employee of my sisters at her restaurant bar, Oyster & Chop, and he flatted with my niece for a short period before he was asked to leave due to his inappropriate behaviour. Just saying, and that is a fact.

[9]                 The posts were made to a website called Race Cafe. The owner of the website, Mr McKenzie (Scooby), removed the posts after being contacted by the police. In his affidavit of 3 August 2020, Mr McKenzie said  he believes  this  also  occurred  on 22 November 2019.

Should Mr Molloy have been discharged without conviction?

[10]              The Sentencing Act 2002 (“the Act”) empowers a Judge to discharge an offender without conviction. Section 107 provides:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[11]              Accordingly, there are three steps a court must take in deciding whether there should be a discharge without conviction. It must:

(a)Assess the gravity of the offence. This requires not only an assessment of the offending itself but also of any factors personal to the offender which aggravate or mitigate the gravity of the offending.

(b)Identify the direct and indirect consequences of conviction for the offender.

(c)Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.

[12]Judge Winter took these three steps.

[13]              On the first step, the Judge assessed the gravity of the offending as moderately serious:

[22] … That is for the reasons that this information was published at a critical time. The contents of the publications were serious. The defendant had knowledge of the ongoing prosecution involving the defendant in the Grace Millane trial. The defendant had an awareness of the consequences of his publication, in that he must have known that he was breaching a High Court order. He is an intelligent man, has trained as a veterinarian and practices as one. He would be aware that the High Court had imposed the name suppression on the defendant in the Grace Millane trial for a very good reason. Despite that, and for reasons best known to himself, he decided to make the publication that he did, against the background of the ongoing order in force from the High Court.

[14]              Mr Jones QC, for Mr Molloy, submits that the Judge should have assessed the gravity of the offending as being low:

19.The Judge assessed gravity as “moderately serious”. It is submitted this assessment by Judge Winter was incorrect for the following reasons:

a.The defendant’s name was already widely known. At the time of the posts, publication of Mr Kempson’s name had previously occurred on a number of high profile sites. The name was easily accessible through any search on Google. Judge Winter stated that some of these sources were overseas companies or organisations over which the Courts have little control. The internet is ubiquitous; the location of the organisation or company is irrelevant. In fact, one of these entities was  the  New  Zealand  Herald  which  published  Mr Kempson’s identity to its readership before it was later retracted. Whatever the position, Mr Kempson’s identity was

an “open secret” for all intents and purposes. For this reason, the effect of the breach could never have been “considerable” as stated by Judge Winter.

b.Public access to any post by Mr Molloy was negligible. Race Café is a website with a relatively small number of viewers. This was confirmed by Mr McKenzie, who stated that the general chat forum on which the posts were made is a low traffic area. He received no other feedback about the posts other than that of the police.

c.It is submitted that Judge Winter placed too much weight on the affidavit of Detective Andrea Quinn, who speculated that the posts may have had many views because of Mr Molloy’s following on the website and standing in the racing community. The reality is that there is no evidence the posts were seen by any significant number of people; such a finding was contradicted by the evidence of Mr McKenzie.

d.Remorse. Mr Molloy has acknowledged his behaviour was wrong and pleaded guilty. He now properly understands the reason the suppression order was in place was to ensure the fair trial rights of Mr Kempson in his forthcoming trials. Contrary to Judge Winter’s decision, while Mr Molloy is an intelligent man, he has limited knowledge of this area of the criminal justice system and was not aware of the reasoning behind the suppression order. Why suppression was in place was a common topic for many outside the legal profession, particularly after Mr Kempson was convicted. Many articles were published of the opinion that name suppression was unfair, or questioning why it was in existence. Given the highly intimate details that were broadcast about Ms Millane, the contrast between the treatment of the victim and her killer was stark.

e.Judge Winter stated that Mr Molloy made the posts “for reasons best known to himself”. These reasons were in fact made plain in Mr Molloy’s affidavit and were the subject of submissions at the sentencing hearing. Mr Molloy’s reasons for making the post came from a desire for justice and fairness. He did not have, as the prosecution argued and the Judge included in his decision, a deliberate desire to publicise the fact that the defendant was facing another allegation. He felt outrage at the treatment of Ms Millane by the media. This is in contrast to the purpose behind the blog as in Nottingham, which was a purposeful, planned breach of a permanent suppression order and included photos and descriptions of the subjects of that order.

(Footnotes omitted)

[15]              I consider first the offending itself. The posts were made to a website available to be accessed by the public. A website on which Mr Molloy published frequently and

on which he had a following. I accept that the website was a specialist one and that Mr Molloy would not have expected his posts to be viewed by the wider public. However, information posted on social media can be shared widely and easily by even a single reader who decides to do so. There is no allegation that this occurred, but the risk was there.

[16]              The part of the first post which reads “Scooby I put it here because this forum has the traffic and people need to know about  this  dog” makes  it  very clear that  Mr Molloy intended his post to be read by “the traffic”.

[17]              The timing of the posts is significant. They were made at the final stage of the murder trial when public interest in the trial was at its height. Mr Molloy’s posts, with the title “This is the Grace Mullane murderer” were more likely to attract readers because of the timing.5

[18]              Further, the breaches were not limited to the publication of Mr Kempson’s name. In the first post Mr Molloy tells the reader that the name suppression is because of “another independent rape charge”. Counsel have not asserted that this information was widely available. Mr Molloy’s point that anyone with internet access could identify Mr Kempson as the defendant being tried for Ms Millane’s murder is not relevant to Mr Molloy’s post because it linked name suppression to the existence of “another independent  rape  charge”.  Similarly,  Mr Molloy’s  second  post  links  Mr Kempson’s name to “inappropriate behaviour”.

[19]              Accordingly, those breaches go directly to a risk of infringing Mr Kempson’s right to fair trial on the outstanding rape charges. The seriousness of the breaches does not, therefore, lie solely in their tendency “to deprive the Court of the power of doing that which is the end for which it exists – namely, to administer justice duly, impartially, and with reference to the facts judicially brought before it”.6 Fair trial rights go beyond that:7

5      Mr Molloy deposes in his affidavit of 11 August 2020 that he had no intention of affecting the outcome of the jury trial and had no thought that the posts would be seen by jurors. There is no suggestion to the contrary.

6      Solicitor-General v TV3 Network Services Ltd (1998) 16 CRNZ 401 (HC) at 413, quoting from

R v Parke [1903] 2 KB 432 at 436-437.

7      Solicitor-General v TV3 Network Services Ltd, above n 6, at 413.

We need to emphasise, and the penalty has to recognise, the importance of preservation of the right to fair trial. This is not a matter of an affront to the Court, or the protection of Judges. The right to a fair trial is a community value. The identity or background of the person whose trial is affected is irrelevant. One of the measures of the standards of human rights available in a community is the value it places upon the rights of all citizens to a fair trial. Dilution of that right weakens community values. See generally R v David Syme & Co Ltd [1982] VR 173, 177. The entire community has an interest in ensuring the fair trial of persons accused of criminal offences. Outside influences affecting jury deliberations would result in a loss of confidence in the judicial system: see A-G for NSW v United Telecasters, at p 43.

[20]Mr Molloy’s perspective is set out in his affidavit, dated 11 August 2020:

16.I had also learned that the defendant was facing other charges relating to a sexual assault on a woman he had not killed. I had great difficulty understanding how he was being protected by the law and Grace was not. I am not legally trained but I could not understand how the law protected this guy by keeping his identity hidden.

17.At the time I felt I was justified in posting these messages from a moral perspective. I have since realised that the suppression order was in place to ensure a fair trial can happen in the future. I now understand that it was wrong to post as I did and breach suppression. Having said that, his name was known to anyone who had access to an internet connection and wanted to find out.

[21]              I accept that Mr Molloy’s motive in publishing the posts did not extend to preventing Mr Kempson from having a fair trial. But, as is evidenced by the quoted passages from his affidavit, he wanted to stop Mr Kempson from “being protected by the law”.

[22]I find that the offending itself was serious.

[23]              I now turn to whether factors personal to Mr Molloy aggravate or mitigate the offending.

[24]There are no personal factors which aggravate the gravity of the offending.

[25]There are personal factors which mitigate the gravity of the offending:

(a)Mr Molloy    pleaded    guilty    to    the    charge    thereby    accepting responsibility for his offending. He has expressed remorse.

(b)Mr Molloy is entitled to credit for good character. As the references put before Judge Winter testify, Mr Molloy is a community-spirited person. He contributes generously to charity. He is, effectively, a first offender.

[26]              I find that  these factors  reduce the characterisation of the seriousness  of   Mr Molloy’s offending from serious to moderately serious. That was also Judge Winter’s characterisation.

[27]There is no error in the first step.

[28]              Judge Winter, in the second step, identified the direct and indirect consequences of conviction for Mr Molloy. The Judge reminded himself that for consequences to count it is not necessary that they would inevitably or even probably occur. It is sufficient that there is a real and appreciable risk that a consequence will occur.

[29]The consequences advanced for Judge Winter’s consideration were:8

(a)Mr Molloy is a veterinarian. A conviction might cause him to be disqualified.

(b)Mr Molloy is a businessman involved with two hospitality venues which require liquor licences. He holds a general manager’s licence. A conviction might cause him to lose his licence and cause significant disruption to his business.

(c)A conviction might restrict Mr Molloy’s ability to  travel  overseas. Mr Molloy has a particular need to undertake continuing education overseas in connection with his professional veterinary interests.

8      I list only those matters relevant to the appeal. The submission to Judge Winter that adverse media publicity was a consequence was not repeated to me.

[30]              Judge Winter acknowledged that the Veterinary Council of New Zealand can disqualify a person from registration as a veterinarian if they are convicted of an offence that would affect their ability to practice as a veterinarian. The Judge did not consider there was any evidence that a conviction for breaching a suppression order would cause the Veterinary Council to disqualify Mr Molloy from registration.

[31]              Similarly, Judge Winter noted that although a conviction would cause the police, as a matter of standard practice, to oppose Mr Molloy holding a general manager’s licence, there is no evidence that such opposition would be successful. In any event, Mr Molloy has a team of qualified and experienced managers who could fulfil the role. The Judge said:

[32]               I am not satisfied that the loss of either licence will flow as a direct or indirect consequence of the conviction for breaching a court suppression order. This will be a matter for the licensing authority to decide. This offending is not the type of offending, it would seem, that would per se disqualify the defendant from holding those licences, in that it does not reflect on his ability to conduct licensed premises in an orderly and proper way. However, that will be a decision for a licensing authority, should his application be declined.

[32]             So far as a conviction potentially jeopardising Mr Molloy’s overseas travel is concerned, the Judge pointed to the lack of any evidence that would take Mr Molloy’s concerns beyond the speculative.

[33]             On appeal, Mr Jones submitted there is  a  real  and  appreciable  risk  that  Mr Molloy’s ability to travel will be substantially hindered. Mr Jones reiterated that Mr Molloy needs to travel overseas, customarily in each year to Australia and the United States, for training conferences. Mr Jones submits that if the conviction stands, Mr Molloy “is likely to encounter problems travelling to some countries”.

[34]             Mr Molloy, in support of his appeal, filed a further affidavit dated 19 July 2021. It is in the category of updating evidence and I accept it as evidence in the appeal on that basis.

[35]             In the affidavit, Mr Molloy deposes that following his conviction he completed the “Consent to Disclosure of Convictions form on the Australian High Commission

website”. He exhibits the High Commission’s response. This advises Mr Molloy that he:

… has been pre-assessed for a Special Category Visa (SCV). Based on your New Zealand offences, it appears you should be eligible for the grant of a Special Category Visa.

[36]             The letter from the High Commission goes on to say that a SCV may be granted on arrival in Australia:

You should be aware, however that this letter is not a guarantee of entry to Australia, as the decision to grant or refuse a SCV is one that is made at the time of each entry to Australia. On arrival in Australia, you will need to complete the Incoming Passenger Card (IPC), declaring that you have previous criminal convictions, and present the completed IPC, your passport and this letter to the airport officer.

[37]             Mr Jones submits that this  letter  demonstrates  that  a  conviction  means  Mr Molloy will have no certainty about travel to Australia. Every trip would be conditional on the particular border official deciding whether to let Mr Molloy into the country.

[38]             Mr Jones submits that Mr Molloy’s affidavit remedies the evidence deficiency identified by Judge Winter. Mr Jones repeats the submission that access to the United States and Canada will also be significantly more difficult for Mr Molloy if he is convicted.

[39]             I accept that a direct consequence of conviction for Mr Molloy is that he will have to satisfy an Australian border official on each occasion that he travels to Australia that he should be permitted entry. There is no evidence as to how likely it is that Mr Molloy would be denied entry to Australia. I infer from the letter from the High Commission that the nature of the conviction is not one which would be likely to disqualify Mr Molloy from entering Australia to continue his pattern of attending educational conferences.

[40]             I have no basis for finding that there is a real risk that a conviction of this nature would seriously impede Mr Molloy travelling to the United States of America or Canada.

[41]             Mr Jones submits that Judge Winter erred in his consideration of the potential jeopardy to Mr Molloy’s veterinary registration  and  general  manager’s  licence.  Mr Jones submits that Judge Winter simply left consequences to the relevant professional or licensing authority.

[42]             I do not accept this submission. So far as the right to practice as a veterinarian is concerned, Judge Winter, in the absence of any evidence to the contrary, took the view that a conviction of this nature is unlikely to cause the veterinary body to withdraw a registration which Mr Molloy has held for 30 years.

[43]             So far as the general manager’s licence is concerned, the Judge considered the affidavit of Joanne Howard filed in support of Mr Molloy. Ms Howard is an experienced hospitality liquor licensing consultant. Judge Winter considered that, ultimately, Mr Molloy’s fitness to retain his licence was properly a matter for the licensing authority. The Judge was not faced with a situation where the evidence established a high likelihood that Mr Molloy would lose his licence as a result of a conviction and, in my view, it was entirely appropriate for the Judge to decide that this was not an identified consequence to which he should give weight.

[44]It follows that I find no error in the Judge’s decision on the second step.

[45]             That being the case, the third step, of determining whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending, must go against Mr Molloy. The direct and indirect consequences of conviction for Mr Molloy are not significantly beyond the commonplace and they are not out of all proportion to the gravity of his moderately serious offending.

[46]             The appeal against the refusal by Judge Winter to discharge Mr Molloy without conviction does not succeed.

Was Mr Molloy’s sentence manifestly excessive?

[47]             Judge Winter considered a usual starting point in respect of a breach of a court order of this type would be a sentence of imprisonment. The Judge adopted a starting point of three months’ imprisonment, allowed a 15 per cent discount for Mr Molloy’s

good character, and awarded a full discount of 25 per cent for the plea of guilty. This reduced the starting point to one of less than two months’ imprisonment.

[48]             Judge Winter commuted the sentence to 350 hours’ community work and ordered Mr Molloy to pay a fine of $15,000. The Judge did not say why and neither did he explain how he determined the components of the sentence.

[49]             Mr Jones submits that the starting point of three months’ imprisonment was out of all proportion to the actual offending. He submits the Judge should not have adopted a notional starting point of imprisonment at all. Further, the Judge failed to consider whether a fine was an appropriate penalty as mandated by s 13 of the Act. In Mr Jones’s submission, Mr Molloy’s record of support for community groups and charities does not indicate that a sentence of community work is appropriate. The appropriate sentence, he submits, was a fine.

Discussion

[50]             First, I do not accept the submission that the starting point should have been one less than imprisonment. Section 211(1) of the Criminal Procedure Act 2011 prescribes only a sentence of imprisonment (to a maximum of six months) as the penalty  for  knowingly  publishing  a  name  in  breach  of  a  suppression  order.  Mr Molloy’s offending was moderately serious. The starting point had to be a sentence of imprisonment. The Judge chose the mid-point of the sentencing range. For moderately serious offending of this type, that was clearly within range.

[51]             As I have said, the Judge did not explain why he commuted the sentence as he did, or how he determined its components. I infer that the Judge was influenced, as he should have been, by Mr Molloy’s good character.

[52]             The Judge did consider home detention and community detention as sentence options, but passed them by because calculating them from a commutable sentence of less than two months’ imprisonment would not be practical.

[53]             The maximum sentence of community work is 400 hours.9 Section 56 of the Act gives guidance on the use of a sentence of community work:

56       Guidance on use of sentence of community work

(1)In considering whether to impose a sentence of community work, the court must give particular consideration to—

(a)whether the nature and circumstances of the offending make it appropriate for the offender to be held accountable to the community by making compensation to it in the form of work, in addition to, or instead of, making reparation to any person in respect of the offending; and

(b)whether the sentence is appropriate having regard to the offender’s character and personal history, and to any other relevant circumstances.

(2)A sentence of community work is inappropriate if the court is satisfied that—

(a)the offender has alcohol, drug, psychiatric, or intellectual problems that indicate that it is unlikely that he or she would complete a sentence of community work; or

(b)for any other reason it is unlikely that the offender would complete a sentence of community work.

(3)The court may assume that suitable work is available for the offender to perform under the sentence unless the court is advised otherwise by a probation officer.

[54]             Therefore, a sentence of community work entails “payment” back to the community in the form of work. It is a means of holding an offender accountable for the harm done to the community by the offending.

[55]             In my view, a sentence of community work was an appropriate sentence for Mr Molloy’s offending. His offending went directly to harming the community by undermining the system of justice which underpins our society. As I have already cited,10 “the right to a fair trial is a community value… One of the measures of the standards of human rights available in a community is the value it places upon the rights of all citizens to a fair trial. Dilution of that right weakens community values.”

9      Sentencing Act 2002, s 55(3).

10 At [19].

[56]             I do not accept the submission that Mr Molloy’s involvement in the community and his charitable pursuits mean that a sentence of community work is inappropriate. Mr Molloy’s good character is primarily the reason why the sentence has been commuted from imprisonment. The sentence of community work responds directly to his offending and has nothing to do with Mr Molloy’s other community-spirited activities.

[57]             As to the duration of the community work, I find that 350 hours is within the range available to the Judge. The offending was moderately serious and of a type which undermines the community. The step-down from imprisonment required the non-custodial sentence to be a significant one.

[58]             I note that s 67 of the Act empowers a probation officer, if they are satisfied that the offender has a good record of compliance with a sentence of community work, to remit up to 10 per cent from the number of hours of community work imposed by the court. I have little doubt that Mr Molloy will be able to lessen the (appropriate) burden of his sentence accordingly.

[59]             The Judge was entitled to combine the sentence of community work with a fine.11

[60]             It is not uncommon to combine a sentence of community work (the purpose of which is to provide “payment” to the community in the form of work) with a fine, which is a direct sanction of the offender.

[61]             In determining the amount of the fine, the Judge had to consider the purposes and principles of sentencing in ss 7 and 8 of the Act and the aggravating and mitigating factors of the offending. The financial capacity of Mr Molloy must be taken into account.

[62]             In this case, a fine is appropriate for the purposes of holding Mr Molloy accountable for the harm he has done the community, denouncing his conduct, and deterring others from committing similar offending.

11     Sentencing Act 2002, s 19(3).

[63]             The combination of community work and a fine serves the principles of properly taking into account the gravity of Mr Molloy’s offending and the seriousness of the type of his offending.

[64]             As to quantum, I do not have any evidence as to Mr Molloy’s financial position. However, there was no suggestion that Mr Molloy is not in a position to pay the fine and no submission that it was excessive (other than Mr Jones’s description of it as “chunky”).

[65]I am satisfied that the sentence of 350 hours’ community work and a fine of

$15,000 is not manifestly excessive.

Decision

[66]The appeal is dismissed.

Brewer J