Polosak v Police - [2022] NZHC 2131

ORDER PROHIBITING PUBLICATION OF APPELLANT’S NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS AS PER [49] OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-86 CRI-2022-409-87

[2022] NZHC 2131

BETWEEN
CASSANDRA POLOSAK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 August 2022

Appearances:

E Huda for Appellant

C M Hallaway for Respondent

Judgment:

25 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 25 August 2022 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

POLOSAK v NEW ZEALAND POLICE [2022] NZHC 2131 [25 August 2022]

Introduction

[1] On 3 May 2022 Cassandra Polosak was sentenced to three months’ community detention and ordered to pay $1,000 in emotional harm reparation to the victim after pleading guilty to charges of posting a harmful digital communication,1 offensive use of a telephone2 and breaching a protection order.3 Judge Callaghan declined to discharge her without conviction and declined to grant permanent name suppression.4 She appeals that decision.

Facts

[2] Ms Polosak was in a domestic relationship with the victim from mid-2018 to early January 2021. During 2019, they had a relationship difficulties,5 and she would use email addresses and phone numbers unfamiliar to the victim to send him odd messages. He was not sure who was sending them. In January 2021, the victim ended the relationship.

[3] Ms Polosak then purchased SIM cards and cell phones and created new email addresses and Facebook accounts to send more anonymous messages.

[4] On 29 January, using a fictitious Facebook account, she sent messages to the victim’s employer. She told the employer the victim was under police investigation for inappropriately touching girls at his bar and, while this was occurring, she would not be going back. The employer messaged her back asking for more information but was sceptical of the allegations. On 30 March 2021 she started to post the same allegations on various public Facebook music pages the victim was associated with. She also mentioned the bar and that they were covering up the matter. These posts were seen by numerous members of the public and caused the victim serious emotional distress.

1      Harmful Digital Communications Act 2015, s 22; maximum penalty two years’ imprisonment.
2      Telecommunications Act 2001, s 112(1); maximum penalty three months’ imprisonment.
3      Family Violence Act, ss 90(b) and 112(1)(a); maximum penalty three years’ imprisonment.
4      Police v Polosak [2022] NZDC 7685.
5      The summary of facts says they “had a few issues in their relationship”. Ms Polosak now submits there was something more serious.

[5] Between 11 March 2021 and 16 June 2021, Ms Polosak sent the victim various offensive messages. On 11 March she sent the text message “50k hit on u watch out” from a phone number he was unfamiliar with. She continued to send offensive and threatening messages from this number until 1 April 2021. On 3 April she used a different phone and SIM card to send…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Polosak v Police

Details

AGLC: Polosak v Police [2022] NZHC 2131
Case: [2022] NZHC 2131
Decision Date: 25 August 2022

CaseChat Overview and Summary

In the appeal brought forth by Cassandra Polosak against the decision of the New Zealand Police, the High Court was tasked with determining whether the District Court had erred in its assessment of the gravity of Ms Polosak's offending and in its refusal to grant a discharge without conviction or name suppression. The key issues revolved around the characterization of the relationship between Ms Polosak and the victim, the consideration of the victim's conduct in mitigating the gravity of the offending, and the assessment of the consequences of conviction against the gravity of the offending.

The Court found that the District Court was correct in its assessment of the gravity of Ms Polosak's offending, which included persistent, premeditated threats and harassment against the victim. The Court held that while the District Court was required to take into account the victim's conduct to the extent it was relevant, the appeal was not an appropriate forum for determining the validity of Ms Polosak's allegations of abuse. The Court also concluded that the consequences of conviction, including the risk of losing her employment as a police communicator, did not outweigh the gravity of the offending. Finally, the Court determined that the District Court did not err in refusing to grant name suppression, as the hardship Ms Polosak would face did not meet the threshold of "extreme hardship" required under the Criminal Procedure Act 2011.

The appeal was dismissed, and the Court made an order extending name suppression until the expiry of the period specified in the Criminal Procedure Act for filing a notice of application for leave to appeal, or until the appeal is finally determined if leave is granted.

Orders