O v New Zealand Police

[2025] NZHC 2517

THIS JUDGMENT HAS BEEN REDACTED TO COMPLY WITH THE SUPPRESSION ORDER BELOW.

A PERMANENT ORDER IS MADE SUPPRESSING THE NAME, ADDRESS AND OCCUPATION OF THE APPELLANT AS PER [37] OF THIS

JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-19

[2025] NZHC 2517

BETWEEN

O

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing:	25 August 2025
Appearances:	J A Westgate for Appellant J C Collins for Respondent
Judgment:	1 September 2025
Reissued:	3 November 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 September 2025 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

O v NEW ZEALAND POLICE [2025] NZHC 2517 [1 September 2025]

Introduction

[1]                 O, aged 23, pleaded guilty to a charge of doing an indecent act and was sentenced to 12 months supervision with 100 hours community work.1 Applications for a discharge without conviction and permanent name suppression were declined at sentencing.2 Mr O now appeals those decisions.

Facts

[2]                 On 28 February 2024, at about 4.30 pm, Mr O was sitting in his parked car next to a public park which contains a children’s playground. He was seen masturbating while holding a cell phone, by two women who were walking laps of the park. At one point, one of the women made eye contact with Mr O but he was undeterred and continued masturbating.

Supporting material

STOP report

[3]                 Mr O began a STOP programme prior to sentencing and a detailed assessment report was prepared by that organisation in September 2024 following interviews with Mr O and other relevant people. The report writer said Mr O appeared remorseful and guilty for his actions, accepted responsibility for his behaviour and demonstrated a desire to get the support he needs. Mr O has no previous relevant convictions. However, there was an incident when he was 17 years old where he received a formal warning from police after his neighbour observed him masturbating through his bedroom window.

[4]                 Mr O reported some bullying in high school which led him to begin using cannabis. The report writer identified a clear link between Mr O’s use of cannabis and his sexual behaviours. These behaviours included uploading videos or live streaming himself masturbating. Mr O’s account was that he did not intend to involve non-consenting bystanders in the behaviour and he had been engaging in this public

1      Crimes Act 1961, s 125(1)—maximum penalty two years’ imprisonment.

2      Police v [O] [2025] NZDC ....

masturbation, or “cruising”, for some time. His poor management of risk had resulted in “unintentional HSB” (harmful sexual behaviour).

[5]The report writer’s opinion was that:

… [Mr O’s] strong interest in amateur pornography and sexual behaviours have escalated over recent years (from pornography to real life), and through these behaviours he has received gratification from others and has had some sexual needs met that he was not receiving in his relationship. The substance use appears to have helped his anxiety and made him more comfortable in engaging in these behaviours, but consequently has also led to a carelessness or disregard of risk, putting [Mr O] in high-risk situations.

[6]                 Mr O reported significant anxiety and distress over his actions after he was charged and stated that he “slowed down on the marijuana use and stopped the cruising behaviour”.

[7]                 The report writer administered the Violence Risk Scale – Sexual Offence Version (VRS-SO), a risk assessment tool, but only considered dynamic (or changeable) factors as Mr O had not yet been sentenced. On those factors alone, he was assessed as posing a “below average risk”. He was also assessed as having a moderate-to-high level of protective factors, including positive social supports, a long-term relationship with a supportive girlfriend, and positive, realistic goals for his future and his work. Mr O was recommended eight sessions of an intervention programme which he completed in January 2025. The report at the end of the programme said he was “open” and had “engaged well”.

Letter from employer

[8]                 Mr O is an [employee of a charitable organisation] and has been in this role for two and a half years. His manager wrote a letter in support. He said that Mr O is a “reliable and valued member of our team” and that the people he works with reported that “he builds excellent rapport, is patient and empathetic”. However, the letter noted that:

If there is a conviction and/or cause to be concerned (beyond the information we have been provided), the future of [Mr O’s] employment would be considered. Likewise, if name suppression is removed, this could put [the organisation] in disrepute and action may be taken as a result.

District Court decision

[9]                 In assessing the application for a discharge without conviction, the Judge assessed the gravity of the offending itself as “serious”.3 This is because the Judge was satisfied that he was intending to be seen and continued masturbating even after realising he had been seen. His guilty plea and lack of relevant previous convictions were mitigating factors, as was his remorse and his efforts to address his offending. However, that was tempered by the fact that Mr O had previously been given a formal warning for similar behaviour as a 17-year-old. The Judge considered that he should have “got a real fright and realised the potential consequences and refrained from any repetition of the behaviour”.4 Taking all those matters into account the Judge considered the offending was of “low-moderate” seriousness.5

[10]              Turning to the consequences of conviction, the Judge accepted that a conviction, given the field he worked in, had a “very real potential” to impact on his future.6 Other consequences, such as embarrassment and loss of pride, were put to one side as inevitable consequences of conviction. Although the Judge accepted counsel’s submission that a conviction would disadvantage Mr O in the job market, she considered that it should, as employers had a right to prefer candidates without any marks against their character. Overall, the Judge was of the view that, given the need to protect the public from any similar behaviour, she could not conclude that the consequences of conviction were out of all proportion to the gravity of the offending.

[11]              As for the application for name suppression, the risk of suicide was raised however the Judge was not satisfied, on the information from Mr O’s counsellor, that was a real likelihood. Nor was the Judge satisfied that extreme hardship existed. Furthermore, the Judge considered there was a need for the public to be aware of the name of an offender who had acted in that way.

[12]              Ultimately, the Judge declined both applications.  The  end  sentence  was 100 hours community work and 12 months’ supervision.

3 At [19].

4 At [22].

5 At [26].

6 At [28].

Discharge without conviction

Applicable law

[13]              Section 107 of the Sentencing Act 2000 provides that the court may discharge an offender without conviction under s 106 only where the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The assessment involves a well-settled three step process.7 First, the gravity of the offending is determined by reference to the aggravating and mitigating features of the offence and the offender. Second, the direct and indirect consequences of conviction are identified. There must be a “real and appreciable risk” that the identified consequences will occur. Third, the Court must evaluate whether those consequences are out of all proportion to the gravity of the offence. Once that threshold has been met,  the Court moves to consider the residual discretion under    s 106.

[14]              The decision under s 107 involves a matter of fact, requiring judicial assessment. Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.8 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.9

Submissions

[15]              Mr Westgate accepts that the gravity of the offending is moderately serious but submits that the compelling personal factors in this case, being his age, guilty plea, prior  good  character,  and  rehabilitation  efforts,  reduce  that   gravity  to   low.   Mr Westgate also submits that the Judge erred in taking into account the earlier warning Mr O received for similar behaviour when he was 17 years old.

7      Prasad v R [2018] NZCA 537 at [11].

8      H (CA680/2011) v R [2012] NZCA 198 at [35]–[36].

9      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

[16]              In assessing the consequences of a conviction, Mr Westgate submits that the Judge erred in placing particular weight on the need for future employers and vulnerable people to know about the offending. Mr Westgate submits that was an error in light of Mr O’s low risk of reoffending as identified by the STOP report.

[17]              Mr Collins, for the Crown, submits that the Judge was correct in his assessment of the gravity of the offending and properly took account of the previous warning for similar behaviour, which reduced the mitigation of Mr O’s  prior good character.    Mr Collins also notes that this is not Mr O’s first conviction, having been convicted of driving with excess breath alcohol in 2020. Thus, this is not the first “black mark” on his record.

[18]              Mr Collins submits that a conviction ought not to be withheld on the grounds of Mr O’s employment or future employment. There does not seem to be a risk to his employment at present, and any future employers in the same field should be aware of the conviction given Mr  O’s  role  in  working  with  vulnerable  people.  Overall, Mr Collins submits that the consequences are low level, and arise from the offending itself rather than a conviction, noting that many roles require police vetting which reveals not just convictions, but all interactions with police.

Analysis

[19]              In terms of gravity of the offending, the behaviour itself was offensive and was aggravated by the fact he was undeterred even when he made eye contact with one of the women. I also agree that the prior warning Mr O received is relevant. In receiving a warning for that similar behaviour, Mr O should have been put on notice that it was a behaviour that could cause real offence and upset in the community, for non-consenting bystanders.

[20]              However, on the spectrum of possible offending it is far from the most serious offending. Furthermore, there can be no doubt Mr O has done all that is possible to address his offending behaviour since he was charged and the reports from STOP and from Mr O’s counsellor are extremely positive. As his counsellor says, Mr O has “displayed remorse for his actions and an awareness of how they affect not just his own wellbeing but also those around him”. He has also stopped using cannabis which

was clearly identified as linked to his offending behaviour. In all the circumstances, I consider the gravity of the offending is low.

[21]              Turning then to the consequences of a conviction, on appeal Mr Westgate solely presses the issue of Mr O’s employment. Mr O is currently employed [with a charitable organisation] and has held that role since December 2022. His employer is aware of his offending and guilty pleas. While his employer was supportive prior to sentencing, the employer makes it clear that the position may be different if Mr O is convicted given the reputational risk to the organisation. Inevitably, too, his future employment opportunities would be negatively affected.

[22]              I accept that, for young offenders, a conviction may have more of an impact on their future career than an older person who is more established in their career.10 This is particularly so where the conviction is linked to sexual misbehaviour rather than youthful error. There is a risk the former can be seen as an irredeemable character flaw, not as a phase of risk-taking behaviour that the individual will grow out of as compared to other types of offending such as a drink driving conviction.

[23]              As for future employment, it is inevitable that if Mr O seeks alternative employment in [the type of role he is currently in], he will be looked upon unfavourably due to his conviction. That may well be an acceptable consequence if the behaviour put his clients at risk, but that is not the evidence I have before me. The STOP report expressly says that “Mr O’s risk profile is very different to the clients he works with and therefore does not put [those] clients at risk”. Furthermore, Mr O is assessed to pose a low risk of reoffending by both the pre-sentence report writer and the STOP report writer. While I acknowledge that the fact he was charged will still be revealed if he is police vetted for a future role, that is a very different consequence when compared with a conviction. It readily conveys the message that the offending, when seen in context, including the steps taken to rehabilitate himself, did not warrant a conviction being entered.

[24]              In my view, the almost certain loss of his current employment and a serious impediment to gaining alternative employment is, for a young person such as Mr O, a

10     Walker v Police [2016] NZHC 1450 at [22].

consequence which is out of all proportion to the gravity of the offending. The discharge without conviction is granted.

Name suppression

Applicable law

[25]              Section 200(2)(a) of the Criminal Procedure Act 2011 provides that the Court may suppress an offender’s name if satisfied that publication would be likely to cause extreme hardship to the offender. Section 200 involves a two-step inquiry.11 First, whether the relevant threshold requirement has been met. In the case of extreme hardship, a very high level of hardship must exist before the threshold is established.12 Second, the court must consider whether, in the exercise of the court’s discretion, a suppression order ought to be made. At this step the court weighs the competing interests of the applicant and the public, including the public interest in an open and transparent criminal justice process.

[26]              On appeal, the mandated two-step test must be conducted afresh. An appeal court is required to undertake its own assessment of whether the threshold test is met.13 If satisfied that the criteria at this first stage has been met, the Court must then determine whether suppression should be granted or not. In doing so, the Court assesses whether the Judge acted on a wrong principle, failed to account for a relevant matter, considered an irrelevant matter, or was plainly wrong.14 The first appeal court must confirm, vary or set aside the decision appealed against or make any other order it considers appropriate.15

Submissions

[27]              Mr Westgate again emphasises any potential consequences to Mr O’s employment would cause extreme hardship. Relying on Mr O’s employer’s letter,  Mr Westgate submits there is the “clear potential for the appellant to lose his employment if his name is published in relation to this offending”. Mr Westgate

11     Robertson v Police [2015] NZCA 7 at [39].

12 At [48].

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

14     O (CA680/2014) v R [2014] NZCA 579 at [21].

15     Criminal Procedure Act, s 287.

submits that this would result in a “very high level of hardship” for Mr O and also negatively impact the people whom he supports.

[28]              Mr Westgate also submits that the Judge erred in the second stage of the test (which the Judge considered despite concluding no extreme hardship arose) by considering that there was a need for members of the public to be aware of Mr O’s offending. Mr Westgate submits that this was an error because of the low risk Mr O poses.

[29]              Mr Collins submits the courts have routinely observed that something beyond loss of employment is required to meet the high threshold of extreme hardship and there was no error in the Judge’s approach.

Analysis

[30]              It is well-established that, in general, loss of employment on its own is insufficient to amount to extreme hardship.16 Furthermore, in order to satisfy the test in s 200 Mr O must satisfy the court that there is a real and appreciable possibility17 the consequences he asserts will materialise.

[31]              Mr O’s manager has said that if he is not granted name suppression, “action may be taken as a result”. This suggests that publication would be as much of an issue as the offending itself.

[32]              The issue is finely balanced but, as I have already accepted, there is a real risk to Mr O’s current employment if his name is not suppressed. Coupled with the likely flow-on effects on Mr O’s mental health and rehabilitation if he loses his current job as a result of publication, I am satisfied that the high threshold of extreme hardship has been met.

[33]              Turning to the exercise of discretion, although there is a public interest in knowing the identity of those convicted of sexual offences, there is also a public interest in the rehabilitation of those offenders. The material in the STOP report makes

16     Stephens v R [2021] NZHC 1902 at [26].

17     Farish v R [2024] NZSC 65, [2024] 1 NZLR 223 at [27].

it clear that much of Mr O’s sexual preoccupation comes from isolation, anxiety, and a history of bullying. If Mr O’s name is published and he experiences further social isolation or negative attention, there would be a real risk to his rehabilitation. If he loses his job as a result, that will also seriously undermine his rehabilitation, particularly as his employment was identified as a protective factor by the STOP report writer. On the material before the court, Mr O has made excellent progress thus far and has shown an admirable commitment to the rehabilitation process. I consider that progress would be undermined by the removal of name suppression and the almost inevitable loss of his current employment as a result.

[34]              I therefore allow the appeal against the refusal to grant permanent name suppression.

Result

[35]              The appeal against the refusal to grant a discharge without conviction is allowed and the conviction is set aside.

[36]The appeal against the refusal to grant name suppression is allowed.

[37]              A permanent order is made suppressing the name, address and occupation of Mr O.

Solicitors:

Crown Law, Dunedin

Copy to:
Mr Westgate, Barrister, Dunedin