Police v M HC Christchurch A9/02

[2002] NZHC 169

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY A9/02

BETWEEN THE POLICE
Appellant

AND “M”
Respondent

Hearing: 27 February 2002

Counsel: M N Zarifeh and S C Poore for the Crown
J H M Eaton for the Respondent

Judgment: 5 March 2002

JUDGMENT OF PANCKHURST AND CHISHOLM JJ

Solicitors: Crown Solicitor, Christchurch for the Crown
J H M Eaton Barrister, Christchurch for the Respondent

Introduction:

[1] On 28 January 2002 an order for final suppression of name was made in the District Court when the respondent was sentenced on a charge of attempted involvement in an act of prostitution with a child. The suppression order engendered considerable public debate. Moreover, the Crown initiated the present appeal seeking to overturn the order. In the meantime there has been speculation as to the identity of the offender which has impacted upon two other men in Christchurch, who are completely innocent of any involvement. In these circumstances it was considered appropriate to convene a Full Court to hear the appeal.

[2] The notice of appeal was filed promptly, on 30 January. However it was not until some weeks later that a final decision to proceed with the appeal was taken. But for that delay, particularly given the circumstances to which we have referred, the appeal would have been accommodated before now.

Background:

[3] The respondent was charged that between 28 April and 11 May 2001 he did attempt to be a client in an act of prostitution with a person under the age of 18 years, an offence against s 149A of the Crimes Act 1961. That section was only enacted in April 2001. Counsel indicated this was the first prosecution under it. The penalty is five years imprisonment for the full offence, which means that an attempt carries a maximum of two and a half years.

[4] The charge was the subject of a defended hearing on 7 December 2001. The Judge reserved his decision to enable legal submissions to be filed. These concerned whether the evidence in support of the prosecution case was admissible in the face of an objection that the respondent had been entrapped by the police. A further issue was whether the circumstances disclosed an attempt, including whether an act of prostitution in terms of the section was indicated.

[5] On 28 January 2002 the Judge delivered his reserved decision. Each of the legal issues was determined against the respondent with the result that a conviction was entered. We shall refer further to the Judge’s reasons for entering a conviction shortly. Immediately after delivery of the decision the Judge acceded to a request of defence counsel to proceed to immediately sentence the respondent without a pre-sentence report. Considerable material relevant to sentencing was available, including medical reports from doctors who had examined the respondent.

[6] The Judge imposed a fine of $2,500 and placed the respondent on supervision for twelve months upon the special conditions:

(a) that he was undertake an assessment as to his suitability to participate in a STOP programme, and

(b) that he undertake any counselling directed by, and complete it to the satisfaction of, his probation officer.

In addition, of course, an order for final suppression of name was also granted.

[7] The facts as found by the learned Judge may be summarised as follows. At the relevant time the respondent was a regular client of a licensed massage parlour in Christchurch. His inclination was to hire the services of a masseuse to whom he spoke while sexually gratifying himself. The masseuse remained clothed.

[8] In the course of a session of this nature the respondent indicated his interest in “younger girls”. He further explained that he had in mind twelve year old girls whom he referred to as innocent and flat-chested. The respondent indicated that he would pay the masseuse $400 if she could secure an introduction to a girl who fitted his requirements.

[9] At a subsequent session matters developed to the point where the respondent indicated he was willing to pay $2,500 to be alone with a young girl in a motel for an hour and $5,000 for the night. He added that the money would be split three ways between the masseuse, the girl’s mother whose consent would be required, and the girl herself.

[10] The masseuse was concerned at the tone of the conversation. She contacted the police. In the event a meeting was arranged at which the respondent was to meet the supposed “mother” of a twelve year old child. In fact that person was an undercover police constable. The respondent’s requirements were further discussed at that meeting.

[11] As a result on 11 May 2001 the respondent, the masseuse, and the “mother” met at a Christchurch hotel. Because of its significance we record the discussion which ensued in the Judge’s own words:

“Once inside the unit the (respondent) asked ‘Annie’ (the ‘mother’) whether she was still willing to go through with it as it could be called off if she was worried but she said that it was all right with her. She then asked what he had planned for (the child) and he said that he had nothing planned. He indicated then that it was not just a sexual thing. When asked if he wanted the condoms he said yes, taking the three proferred by ‘Annie’ but then said that he might not even need them.”

[12] At that point the respondent paid the “mother” $700 and advised the masseuse that her money, also $700, would not be paid until the child arrived at the motel. At this point police officers entered the motel unit and arrested the respondent. His immediate response was “I am sorry, I am sorry. Please don’t hurt me.” When searched he was found to be in possession of $700 in an envelope, $110 in loose notes, four condoms, and seven bottles of alcoholic mixes.

[13] In his decision the Judge held that the respondent had not been entrapped into committing an offence. Assisted by a covert recording of the discussion at the initial meeting of the three persons, he was satisfied that the respondent was “the initiator” and that he “controlled the flow of conversation”.

[14] Then followed a finding that the respondent’s actions went beyond mere preparation and were sufficient to constitute attempted involvement in an act of prostitution with a child. The Judge applied the accepted definition of prostitution in New Zealand namely “a woman’s offering of herself as a participant in a physical act of indecency for the gratification of men in return for money”: R v Robinson [1978] 1 NZLR 709 (CA). With reference to this finding the Judge noted “it is conceded by defence counsel that masturbation in the presence of a prostitute would constitute an act of prostitution”. We assume the word “child” may be substituted for “prostitute”.

The Sentencing:

[15] The sentencing remarks of the learned Judge are full and obviously carefully considered. He noted that s 149A was intended to catch men who engaged in acts of prostitution with someone under 18 years, but in this case the intended victim was as young as 12 years. This he described as a “serious aggravating feature”. The Judge next recorded that the offence was premeditated, indeed planned over a reasonable period of time, and he was also satisfied that despite his medical condition the respondent well appreciated his intended action was morally wrong.

[16] The Judge continued:

“On the other hand, because of the way in which this offending was brought about, there is no actual victim and no harm has been or was ever likely to be caused to any person. Moreover, there is a distinct air of unreality about the whole offending.”

With reference to his earlier ruling the Judge commented that while the police did not initiate or encourage the offence “they certainly were removing obstacles”. In explanation of his description of the offence as having an air of unreality the Judge referred to the respondent’s active involvement in fantasy talk for his own gratification and expressed the view that if “real people” had been involved it was difficult to credit that events would have proceeded the distance that they did.

[17] Attention was then turned to the risk which the respondent represented. This passage is also of significance so we set it out in full:

“[12] The principal factor for me in determining penalty -and indeed in determining suppression of name which has been sought - is to assess the defendant’s risk of re-offending. I have had the benefit of hearing all of the evidence from the people involved and, in particular, of listening to a lengthy discussion between the parties at McDonald’s. It is clear from all of that evidence that the defendant did exhibit some moral reluctance. Firstly there was his insistence on obtaining the mother’s consent. Secondly, I heard on several occasions undertones which indicated to me that the defendant was actually hoping that the detective constable who he believed to be the child’s mother might wish to back away from the arrangements. The last such occurrence was in the motel room when he asked her really was it all right with her because, if not, he would be happy if she called it off. That indicates to me that he was (a) aware that it was wrong and (b) was struggling with his conscience.

[13] The second factor in relation to his risk of re-offending is that there is no evidence that he had in his possession at the time, either on his person, at home, or at his office, any other evidence of an interest in paedophilia. He had a computer with access to the internet and yet nowhere on his computer was there evidence of him visiting sites on which offensive material can be obtained. Nor is there any evidence of his downloading images onto his computer. Nor was there anywhere in his possession hard copy material of photographs or magazines involving young people engaged in sexual activities.”

[18] Finally the Judge accepted that the respondent had “expressed keen remorse” and had indicated his willingness to participate in a treatment programme. The Judge then proceeded to impose the fine which he referred to as a penalty coupled with supervision which he saw as facilitating treatment so that the respondent would not offend further in any way involving young people.

[19] The respondent had enjoyed the benefit of an interim suppression order to that point. The prosecutor and defence counsel made submissions concerning final suppression. As to this aspect the Judge began by noting, correctly, the overriding right of the public to know the names of persons convicted in open court. He reminded himself that “compelling reasons” were required to justify final name suppression, the more so in a case of sexual offending in relation to under-age girls. In the course of submissions reference had been made to the fact that in 1993 the respondent had received a police warning about approaching two fourteen year old girls in a way which indicated an untoward interest in sexual matters. With apparent reference to this, the Judge said that “there is the possibility that he may already have offended against (under-age) girls . . . and that publication could bring these matters to light”.

[20] The two factors which persuaded the Judge to grant final suppression were then analysed. Again, on account of their importance, we repeat them in the Judge’s own words:

“. . . I consider that, with the penalties imposed and with the disclosure that the defendant has had to make to others, there is only a low risk of his re-offending. I am satisfied that he has already made disclosure of his offending to the people most likely to be affected. His father and his partner are aware of it; a number of his closest and oldest friends are aware, as they have written testimonials; and at least one of his employees - a female - has been told by him. This shows that he has told those people who matter and are most at risk. He has shown a genuine desire for treatment.”

[21] In the next paragraph of his remarks the Judge continued:

“The matter that weighs the most with me is the effect that publication will have on the people who work for him. I am not concerned that publication will cause him hardship because that often goes with conviction. . . . The defendant’s sexual fantasies have nothing to do with his ability to run a business and to supply his services as a businessman to the wider community, yet those with whom he deals may well use today’s conviction to cease their dealings with him. That would inevitably lead to his employees having their own financial futures put in jeopardy by something which has nothing really to do with them or his business.”

[22] Finally the Judge noted the high profile of the case which he inferred would ensure wide circulation in the media. He said that while the public had a right to know of the conviction and the penalty imposed “the wider public does not necessarily need to know the defendant’s name in this particular case”. Hence final suppression of name was ordered.

The Relevant Legal Principles:

[23] Section 140(1) of the Criminal Justice Act 1985 contains the power to grant name suppression. No test is prescribed, rather an unfettered discretion conferred. The order may extend to the address, occupation, and any particulars likely to lead to a person’s identification. In this instance the Judge suppressed all information that might identify the respondent and the company he operates. Nonetheless, we note that subsequent reports contained the information that the offender was 37 years of age and a company director.

[24] Albeit the section is silent as to criteria, in fact an established body of principles guides the judicial exercise of discretion. The first matter is the principle of open justice. With limited exceptions the criminal law is applied in open court. The public is entitled to be present and, of more practical importance, to read fair and accurate reports of cases. Hence there is a prima facie presumption in favour of open reporting. As to these matters see: R v Liddell [1995] 1 NZLR 538 (CA) and Lewis v Wilson & Horton Ltd & Ors [2000] 3 NZLR 546 (CA). We shall refer to examples of the application of these general principles in specific cases, shortly.

The Submissions of Counsel:

[25] Mr Zarifeh rightly accepted that since the suppression order represented an exercise of discretion it was necessary for the appellant to demonstrate that the learned Judge erred in principle, failed to weigh some relevant consideration, or brought to account some irrelevant factor. Further, he submitted that new material was properly before this Court, being the affidavits of two Christchurch company directors upon whom suspicion had wrongly fallen, which must be weighed on appeal. Our reading of such affidavits was not opposed.

[26] We think the substance of Mr Zarifeh’s argument was that the conviction for this particular offence, involving a sexual interest in a young girl, was of such legitimate public interest that the presumption in favour of open reporting could not properly be displaced. As counsel put it the attempted involvement in an act of prostitution with a child was premeditated and serious, involving as was intended a twelve year old girl. The offence could not be characterised as a brief aberration, which was out of character for the offender, particularly given the fact of the warning in 1993.

[27] In further developing this central submission counsel argued that the learned Judge had accorded undue weight to the assessment that there was only a low risk of the respondent reoffending. Conversely, that the Judge had erred in giving undue weight to the respondent’s business interests, in particular the risk that the jobs of employees may be put at risk in the event of publication. In this regard attention was drawn to observations of the Court of Appeal in Proctor v R [1997] 1 NZLR 295 that an impact on employment was to be expected in a case of a professional or self-employed person. Equally that an adverse effect upon family members may be anticipated, but such hardships were commonplace and not ordinarily a basis for name suppression.

[28] While counsel accepted that the interests of employees may be a valid consideration, such detriment must be established by proper evidence: Lewis v Wilson & Horton Ltd & Ors. Such was not the case in this instance since the only evidence of risk to employment was that contained by way of comment in a letter from one of the respondent’s employees.

[29] Finally Mr Zarifeh relied upon the affidavit evidence which demonstrated that two local company directors of similar age to the respondent were rumoured to be the offender. Both men were prominent in business. Both deposed that the speculation and rumour was potentially harmful to their business interests. We accept this evidence.

[30] Mr Eaton for the respondent argued that on a proper reading of the Judge’s decision the seriousness of the offence had been correctly assessed at a level where name suppression was not inappropriate. Counsel stressed the Judge’s observations that there was an “air of unreality” to the circumstances of the case and that the involvement of the police had resulted in the removal of obstacles which would ordinarily exist. Hence, said Mr Eaton, the assessment of a low risk of further offending was appropriate, particularly given the respondent’s insistence that the mother of the child must consent to her daughter’s involvement in the prohibited act.

[31] Second, counsel argued that the sentencing remarks must be read as a whole and once that was done it was evident this was a rehabilitative sentence. The Judge had before him medical reports which confirmed that the respondent was clinically depressed at the relevant time. His remorse was accepted, as was his willingness to accept treatment. Hence, counsel submitted, the final suppression order was an integral aspect of a sentencing package where the emphasis was upon rehabilitation of the offender. To at this stage dismantle an important aspect of the sentence would be counter-productive and not in the public good in the long run. We were referred to High Court decisions in which rehabilitation including name suppression was accepted as appropriate.

[32] With regard to post-decision matters counsel was strongly critical of sensational reporting of the case. We were provided with examples of media reporting drawn from the print media, radio, and television. Mr Eaton, while acknowledging the unfortunate consequences for others, submitted that the publicity gave added weight to the need for final suppression in this case. Without it the offender would face heightened publicity, his rehabilitation would be rendered less likely and the very purpose of the sentence imposed would be undermined.

Our Conclusions:

[33] We agree with the conclusions of the District Court Judge concerning the unusual features of this case. The evidence indicated that the respondent obtained sexual gratification without actual physical contact with another person. Sexual discussion and fantasy were plainly of great appeal to him. With reference to the offence itself it is striking that the respondent insisted the mother agreed to the involvement of her child before he would proceed. This requirement, we accept, introduced an air of unreality into the whole transaction. We note also the Judge’s findings that although the offence was not incited by the police, the recorded conversation indicated hesitation on the respondent’s part and it was the ready removal of normal “obstacles” which allowed matters to proceed the distance they did. All these factors made this a most unusual offence.

[34] However, we are unable to accept that the offence could be assessed as one in relation to which final name suppression was appropriate. Its seriousness must be judged by reference to all the facts of the case. Despite the features to which we have referred, the fact remains that this was an attempted involvement in an act of prostitution with a child. The intended victim was to be twelve years of age. The respondent participated in the transaction to the point of payment of a considerable sum and took condoms into his possession. Fortunately there was no child and no sexual act took place.

[35] In reaching this assessment we were assisted by a passage from an unreported decision of the Court of Appeal in McDonald v R CA84/98, 24 August 1998. The Court said this:

“In every case, the sentencing Judge must determine in his or her discretion whether the detrimental effect of publication upon the accused would be disproportionate to the gravity of the offending and outweigh the public’s general right to know of the activities of the Courts. It is for that reason that this Court has avoided laying down specific guidelines or what was described by Cooke P in R v Liddell (at 547) as a ‘fettering code’. Each case must be decided on its own circumstances. Name suppression, for example, could be justified in some circumstances where the offending is relatively less serious, or where the victim’s peers might be identified, or where an innocent third party (other than a family member) might be caused undue suffering, or where publication might prejudice a fair trial on other charges which are pending. It may also be appropriate where the personal circumstances of the offender are sufficiently serious or exceptional to outweigh ‘the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates of the public’”.

We do not consider this offending, or the personal circumstances of this offender, qualify in terms of the above criteria. Where there is the element of risk to children we think the public’s right to know the identity of the offender must prevail.

[36] It may be that if the attempt was isolated the case might have been able to be viewed in a different light. But the Judge also had before him the circumstance of the police warning in 1993. Rightly, he considered that this factor could not be given weight in relation to the assessment of penalty because he knew so little of the relevant details. However in relation to weighing the risk which the respondent represented, we do not consider that it could be ignored. A single act at a time when the respondent was clinically depressed may be viewed in one light, but that act against the background of a warning also referable to under-age girls necessitated a less benevolent assessment of risk.

[37] Undoubtedly the situation now is markedly different to that which prevailed on the day the respondent was sentenced. There is clear evidence that suspicion fell on others. This must be confronted. That such has occurred illustrates why open reporting of criminal proceedings is accorded such primacy in this country. In cases of serious offending experience has shown that the most healthy course is to allow outcomes to be fully reported. Otherwise the possibility exists that others may be put at risk.

[38] The publicity which this case has aroused is also of concern in relation to the offender. He is obviously vulnerable. The medical reports confirm as much. In the recent debate sight has been lost of certain of the central facts of the case. There is now a perception in some quarters that the respondent is a paedophile when in fact there is no evidence he has actually committed any sexual act upon a young person. The most which can be said is that in the most unusual circumstances, which we have endeavoured to restate, he set out to offend. We agree with the view of the Judge that there was such an air of unreality about it as to remove this case from the run of cases before the courts involving abuse of children.

[39] Nonetheless for the reasons we have endeavoured to explain we are unable to agree that this was an appropriate case for final name suppression. The respondent may indeed pose a lesser risk than many offenders, but risk exists and given the serious nature of the offence the presumption in favour of open reporting should have prevailed. We have a good deal of sympathy for the respondent on account of the momentum which this case has now gathered, which will probably mean that publication of his name at this time will be of greater consequence than would have been the case in January. Regrettably that circumstance cannot stand in the way of our allowing the appeal. We have, however, endeavoured to restate the salient features of the offence so that the offender’s true criminality is in the public domain.

[40] The appeal is allowed. The order for final name suppression is quashed.