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 more messages threatening his friends, dog and ex and stating she had poisoned him, was watching him and that she was armed. She continued using this number until 20 April. On 19 April 2021 she sent an email to the victim’s employer using a false name and accused the victim of being under the influence of drugs at work and driving recklessly. She suggested they hire someone else.

[6]    On 6 May 2021 a temporary protection order was issued with the victim as applicant and Ms Polosak as respondent. On 8 May this was served on her. Between 23 May and 16 June, she breached the protection order by sending further offensive messages including one message in which she said “I will stab u in ur sleep”. She also created email addresses and sent the victim offensive emails.

District Court decision

[7]    In reaching his decision the Judge considered the views of the victim, who opposed a discharge without conviction.   In his victim impact statement he said    Ms Polosak subjected him to ongoing psychological abuse through their relationship and used the anonymous harassment and false police messages as a tactic to manipulate him. He said they had the potential to destroy his career, his livelihood and his relationships.

[8]    The Judge noted the pre-sentence report writer’s view Ms Polosak wanted rehabilitation, had done the stopping violence programme and was a low risk first time offender. The Judge considered her statements to the pre-sentence report writer that the victim “never committed to the relationship”, was “unpredictable in their relationship”, and that she was burnt out at the time of the offending. The Judge accepted she suffered from depression and anxiety and possibly complex post- traumatic stress disorder.

[9]    The Judge also considered and referred  to  a  report  from  a psychologist, Mr Craig Prince, suggesting Ms Polosak behaved in the way she did as a form of revenge for what she believed the victim did to her. He considered submissions from her counsel to the effect that she had been in an abusive relationship with the victim. He noted she had made a complaint to police about the victim and there was evidence she had lodged a sensitive claim with ACC which the Judge inferred related to the victim.

[10]   The Judge was provided with text messages exchanged during the relationship which he summarised as follows:

[20] The point of those being raised by the defence was that the defendant was motivated by the unsatisfactory responses to her complaints about the intimacy difficulties that they were having seemed to be brushed off by the victim, and a reading of the various text messages does not necessarily objectively mean that that is the stance that he took. In any event, they occurred during the course of a relationship which continued on despite the purported difficulties that were said to have been occasioned by Ms Polosak in those various text messages.

[11]   In assessing the gravity of the offending, the Judge considered the volume of the messages and the fact that they were persistent. He found the messages were abusive and threatening in nature, involving direct threats to kill and alleging the victim was a sexual offender. They were also made publicly and involved a level of premeditation. The Judge found they were malicious and amounted to psychological abuse.

[12]   The Judge determined the offending could be met with an overall starting point in the range of 18 to 20 months’ imprisonment, though noted there would be discounts for her guilty pleas, the psychologist’s report, the rehabilitative steps she has taken and her lack of previous convictions. Ultimately, he considered the offending could be met by a starting point of 11 months’ imprisonment and, after discounts, a sentence in the region of five months would result.

[13]   In terms of the consequences of conviction, the Judge noted the real prospect Ms Polosak would lose her employment as a police communicator. However, the Judge determined there was no certainty she would not lose her employment even if discharged without conviction because of the nature of her employment and her actual

offending. He noted her employer, the New Zealand Police, was fully aware of her circumstances and would take those circumstances into account whether or not a conviction was entered. In his view, the loss of employment for criminal offending of this nature could be seen as a normal consequence of moderately serious criminal offending.

[14]   The Judge did not consider the consequences of conviction were out of all proportion to the gravity of the offending so declined to grant a discharge without conviction.

[15]   The Judge also declined to grant suppression of her name. He noted her name was unusual and would be associated with her on the internet. Furthermore, her father was involved in unusual offending and that comes up when an internet search is done of her surname. Prospective employers would no doubt check the internet where she would be linked to this offending. That may affect whether she got further employment. However, the Judge determined this was the position a lot of defendants find themselves in and did not amount to extreme hardship.

[16]   The Judge sentenced her to three months’ community detention and ordered she pay $1,000 reparation to the victim.

Principles on appeal

[17]   The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.6

[18]   Appeals against the proportionality test under s 107 are by way of rehearing, with this court making its own assessment of whether the criteria are established.7 If a discharge without conviction should have been granted, then there will have been a

6      Sentencing Act 2002, s 137.

7      H v R [2012] NZCA 198 at [35]-[36].

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.8

[19]   Name suppression is governed by s 200 of the Criminal Procedure Act 2011. A person applying for name suppression must satisfy a two stage test:

(a)the Court must be satisfied that publication would be likely to lead to one of the grounds listed in s 200(2); and

(b)if so, the Court must also be satisfied that it is appropriate to exercise its discretion to grant name suppression, taking into account the interests of the applicant, the victim, and the public.

[20]   On an appeal relating to the first step of the application, as here, the principles relating to a general appeal apply, and this Court is entitled to form its own view of the merits.9

Submissions

Appellant’s submissions

[21]   Mr Huda, for Ms Polosak, submitted the Judge erred in failing to consider the extent to which the victim’s conduct mitigated Ms Polosak’s offending. In particular, he argued by using the phrase “intimacy difficulties”, the Judge had mischaracterised Ms Polosak’s affidavit evidence that the victim choked her during sexual intercourse without warning or prior discussion, engaged in penetrative sexual intercourse despite protest and inflicted psychological abuse by treating her like a de facto partner but refuting the existence of a relationship. Mr Huda provided Facebook Messenger communications from times closer to the alleged incidents that he maintained confirm Ms Polosak’s account of the relationship and her allegations that aspects of their sexual  relationship  were  non-consensual.  Mr  Huda   effectively   characterised  Ms Polosak as a victim of family violence who had retaliated by her offending, and he submitted it was an error for the Judge not to consider her offending on this basis.

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

9      Austin, Nicols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[22]   Mr Huda accepted her offending  merited  a starting  point in the region  of  11 months’ imprisonment but submitted circumstances relating to her upbringing, the victim’s conduct, her mental impairment and the rehabilitative steps she had taken since the offending, all reduced that gravity. He submitted, overall, it was at the top end of a low-level or bottom end of a moderate-level protection order breach.

[23]   Mr Huda submitted the consequence of conviction was the “real and appreciable risk” Ms Polosak would lose her employment as a police communicator, a role she has performed for six years. Similarly, he submitted there was a real and appreciable risk she would struggle to secure meaningful employment in the future. He maintained this met the threshold for granting a discharge without conviction.

[24]   Mr Huda also submitted the Judge erred in determining her circumstances did not meet the extreme hardship threshold required to warrant name suppression of a defendant.10 He argued if her identifying particulars are published, prospective employers will be able to learn of her offending even once the protection offered by the Criminal Records (Clean Slate) Act 2004 becomes operative.11 He submitted, given she is financially self-reliant as she has no family support and is likely to apply for semi-skilled jobs, the effect of publication on her employment prospects will mean she will suffer extreme hardship.

Respondent’s submissions

[25]   Ms Hallaway submitted the Judge did not err in characterising Ms Polosak’s allegations as “intimacy difficulties”. She submitted, as counsel did in the District Court, this was not the appropriate forum for determination of those allegations. She noted the victim was not represented by counsel and could not respond. Indeed there was a risk of re-victimisation should Ms Polosak’s allegations be accepted on the basis of her self-report, especially given part of the offending involved false claims of sexual assault. Ms Hallaway submitted the Facebook messages were equivocal and consistent with boundaries being pushed in a BDSM relationship. She submitted the use of the words “intimacy difficulties” reflected the fact the Judge could not

10     Criminal Procedure Act 2011, s 200(2)(a).

11     Criminal Records (Clean Slate) Act 2004, ss 7 and 14.

responsibly characterise the relationship as one involving psychological or sexual abuse.

[26]   Even if the Judge had placed weight on the allegations, Ms Hallaway submitted the consequences of conviction would still not be out of all proportion to the gravity of the offending having regard to the scale of the offending, the premeditation, the sophistication, the harm caused and the breach of the protection order. She submitted the offending was such that the police may consider she was not an appropriate person to remain in her role as police communicator. The fact of conviction would not be determinative.

[27]   Ms Hallaway submitted the adverse effects on Ms Polosak’s future employment were ordinary consequences of conviction that do not meet the relevant statutory threshold. She referred to Russell v Police where the Court of Appeal held the operation of the Clean Slate regime does not alter the heavy onus on an applicant for name suppression.12

Analysis

[28]   The key issue in this appeal is whether the Judge erred in his assessment of the gravity of the offending by mischaracterising the relationship between Ms Polosak and the victim and insufficiently considering her allegations about acts perpetrated against her in the relationship.

[29]   However, the starting point for this analysis is the gravity of Ms Polosak’s accepted and proven criminal conduct. In my view the Judge was right to find this was premeditated and persistent offending including threats to kill, threats of watching the victim’s house, obtaining a gun, stabbing him in his sleep and poisoning him. These continued to be made after a protection order issued. It was offending that justified a starting point of imprisonment.

[30]   In his victim impact statement, the victim stated Ms Polosak’s offending caused deep distress to him, his co-workers and his friends. He felt her behaviour

12     Russell v Police [2020] NZCA 103.

meant their relationship was built on gaslighting and psychological abuse. He felt she wanted to maintain control over him and her methods became more extreme after he terminated their relationship. He felt her offending had the potential to destroy his career, livelihood and relationships. I accept these are severe and harmful consequences of her offending and were correctly treated as an aggravating factor of the offending.

[31]   The next question is whether Ms Polosak’s personal circumstances, including her alleged treatment by the victim, reduced the overall gravity of the offending to the point where the consequences of conviction outweighed it. In that regard, I accept the Judge was required to take into account the victim’s conduct to the extent it was relevant.13

[32]   In her affidavit, Ms Polosak deposed her father was an alcoholic and she had vivid childhood memories of him acting violently towards her mother and her. She stated her mother had suffered a traumatic brain injury and became unusually irritable, impulsive and irrational. She said she effectively had to look after herself during her high school years and was independent from about 18 years old.

[33]   In terms of her relationship with the victim, she said at the beginning they dated casually but over time she thought the relationship matured and developed. She said she started to care for him and from her perspective they were in a romantic relationship. She acknowledged his perspective was that it was a casual relationship. She said he choked her during sexual encounters without warning or discussion. Initially she was apprehensive but then she says she consented. She said she wanted to earn his affection and please him. She referred to an incident in 2018 (although there is no suggestion the choking was not consensual) where he choked her so hard she could not breathe and genuinely thought she was going to die, although he stopped when she struggled physically. She also alleged the victim had penetrated her despite her protesting she was not ready. She provided a schedule of Facebook Messages where she said she confronted the victim about these events during the relationship. She said there were other incidents of physical and psychological abuse.

13     Sentencing Act 2002, s 9(2)(c).

[34]   I have considered these messages but agree with Ms Hallaway’s characterisation of them as reflecting communication difficulties over the extent to which BDSM practices were agreed between them, with the victim apologising if he had been “inconsiderate”. Nothing in them goes so far as to demonstrate abuse such as would materially mitigate the gravity of the offending.

[35]   I have also considered the formal statement of Mr Prince, a psychologist who assessed Ms Polosak for the purpose of determining whether there was a connection between her mental health disorders and her offending behaviour. Mr Prince made three points. First, while Ms Polosak may suffer from PTSD (allegedly as a result of the victim’s actions), he did not consider there was a connection between that and the offending. Second, he did not consider she suffered from Borderline Personality Disorder (BPD), disagreeing with Dr Dudek-Hodge. He considered it was safer to conclude she had displayed traits consistent with that disorder. Third, he considered there was a connection between her BPD traits and her offending. He said her offending was consistent with her instability (repeated, rapid and abrupt mood shifts) and her intense anger arising from the victim’s reported treatment of her whereby she felt like a “placeholder” which was “discarded when [the victim] got a better offer”. Mr Prince believed she offended as a form of revenge.

[36]   Mr Huda also sought to introduce a further report on appeal which was prepared by Dr Suzanne Blackwell dated 27 July 2022. He had requested she review the documentation and provide an opinion in relation to the issues he identified as to the dynamics of relationships where there is abuse. Dr Backwell did not examine or interview Ms Polosak and, at the outset of her report, she made it clear she was simply offering observations about the dynamics which are frequently present in situations similar to those described to her.

[37]   Dr Blackwell reviewed the reports of Dr Dudek-Hodge and Mr Prince. She advised that people who are subjected to traumatic abuse sometimes form and continue to maintain close and unhealthy attachments to their abusers. Such behaviour is often intermittent and Dr Blackwell referred to it as “traumatic bonding”. During the abusive and rejecting stage she said the victim may be afraid of or fear the abuser. At other times the relationship may have positive aspects. In the context of Ms Polosak’s

childhood marred by physical abuse, emotional/psychological abuse and neglect, and given  Ms  Polosak’s  identification  of  the   alleged   behaviour   as   intermittent, Dr Blackwell’s opinion was that she may have sought to tolerate and remain in the relationship because of the hope she would be loved and that the abusive aspects will cease.

[38]   Dr Blackwell’s opinion was tendered in response to the Judge’s observation that Ms Polosak had remained in the relationship despite the purported difficulties. It was not evidence that was before the Judge at first instance and there is no presumption it should be admitted. To be admitted on appeal it should usually be fresh, cogent and credible.14 While the evidence was obtained after the hearing there is nothing to suggest it could not have been obtained earlier. That said the appellant would argue that she only realised it was required given the Judge’s observation that she stayed in the relationship despite the alleged difficulties. However, in my view the real issue is whether it is sufficiently cogent to warrant its admission.   I do not consider it is.    Dr Blackwell has not met nor interviewed Ms Polosak and cannot assist the Court on Ms Polosak’s individual circumstances and how they should be weighed in the assessment of the gravity of the offending.

[39]   This court regularly takes note of the fact victims of intimate partner violence and/or sexual violence may remain in relationships with the perpetrators of that violence and delay in complaining about such violence. Dr Blackwell’s evidence says the fact Ms Polosak remained in the relationship may not have a bearing on the credibility of her allegations. However, that is well-understood. Given a decision to discharge without conviction is a very fact-driven assessment, generic counterintuitive evidence is of little assistance and I therefore decline leave to adduce this further evidence. Furthermore, even if I had admitted it, I record it would have had no real bearing on the final decision which accepts Ms Polosak viewed the relationship as abusive, but refrains from making firm findings of abuse.

[40]   The real issue is whether the Judge erred in failing to characterise Ms Polosak as a primary victim in this manner, which is the characterisation Mr Huda seeks. I do

14     R v Bain [2004] 1 NZLR 638 (CA) at [22] and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273

at [117]–[119].

not consider he did. In my view, the Judge’s summary that the Facebook messages showed both Ms Polosak and the victim were “somewhat understanding of their particular positions” and that there was some “difficulty in the intimate relationship”, was accurate. The Judge was not suggesting that the fact Ms Polosack wanted the relationship to continue undermined the validity of the allegations. Indeed, he acknowledged the ACC sensitive claim and inferred that it arose within the relationship, and, by implication, that she perceived the relationship as harmful and abusive.

[41]   Beyond that, I accept the Judge could go no further and Ms Hallaway is correct that this appeal is an inappropriate forum for Ms Polosak’s allegations to be determined. The victim has not been represented nor heard. It was sufficient that the Judge acknowledged her perception of the relationship as abusive which he did.

[42]   The remaining grounds of appeal are subsidiary. The Judge plainly accounted for Ms Polosak’s background circumstances, including her upbringing, in his assessment of the gravity of her offending. He considered her mental impairment and the rehabilitative steps she had taken. Ultimately, I agree with the Judge’s assessment of the gravity of Ms Polosak’s offending. I do not consider her perception of the relationship as harmful and abusive materially detracted from the gravity of her offending.

[43]   Likewise, I agree with the Judge’s analysis of the consequences of conviction. Mr Huda referred to the same consequences on appeal as before the Judge, being the real or substantial risk Ms Polosak would lose her employment as a police communicator.

[44]   A letter dated 12 April 2022 from Harley Dwyer of the New Zealand Police Association confirms the existence of a conviction is likely to have a material bearing on whether or not she is dismissed from her employment with the police. The same letter indicated the conduct is considered to be sitting at the upper end of serious misconduct and that dismissal was a possibility. At its highest, this consequence of conviction can be expressed as exacerbating an existing risk (resulting from her offending as opposed to conviction) that she will be dismissed. The letter indicates a

conviction will not be determinative. In any event, the Judge was right to conclude even a loss of employment would not be out of all proportion to the gravity of      Ms Polosak’s offending.

[45]   I turn now to the appeal against the refusal to grant name suppression. In determining whether to exercise its discretion under s 200 of the Criminal Procedure Act 2011, the Court is required to undertake a two-step inquiry.15 The first step is whether a threshold ground under s 200(2) must be met.

[46]   The threshold ground relied upon here is extreme hardship. A very high level of hardship is required before the threshold of extreme hardship can be established.16 It must be something greater than “severe suffering or privation”.17 A loss of employment or livelihood is insufficient.18

[47]   I accept Ms Polosak is likely to suffer some hardship as a result of her name being published. It may be difficult for her to conceal her offending from future employers and this will almost certainly have a detrimental effect on her future employment prospects. This is exacerbated by the fact she has a distinctive surname which will mean her offending could still be discovered through internet searches despite the protections of the Clean Slate regime. Ultimately, though, any hardship falls well short of the “extreme hardship” which is required for fulfilment of the threshold ground, and the Judge did not err in his assessment of the name suppression application.

Conclusion

[48]The appeal is dismissed.

[49]   Mr Huda advised that if name suppression was not granted on appeal, he would want time to take instructions on whether leave to bring a second appeal should be sought. Accordingly, I make an order extending name suppression until:

15     D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].

16     Bond v R [2015] NZCA 488 at [33].

17     Robertson v Police [2015] NZCA 7 at [48].

18     Stephens v R [2021] NZHC 1902 at [26]; and Blackwood v R [2017] NZHC 1262 at [10]-[12].

(a)the expiry of the period specified in s 291(2) CPA for filing a notice of application for leave to appeal; or

(b)if a notice of application for leave to appeal is filed within that specified period and leave is given, until the appeal is finally determined.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To:
E Huda, Barrister, Christchurch