R v G
[2023] NZHC 1048
•5 May 2023
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT. THIS ORDER DOES NOT PROHIBIT THE PUBLICATION OF THE DEFENDANT’S DIAGNOSES (INCLUDING FASD AND INTELLECTUAL DISABILITY). SEE PARA [52] OF JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-044-2849
[2023] NZHC 1048
THE KING v
G
Hearing: 2 May 2023 Appearances:
HDL Steele and J D Dalton for the Crown
A C Cresswell and S J Galler for the Defendant
Judgment:
5 May 2023
JUDGMENT OF EDWARDS J
(Application for permanent suppression)
This judgment was delivered by me on 5 May 2023 at 9:00 am.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr HDL Steele and Mr J D Dalton, Meredith Connell, Office of the Crown Solicitor, Auckland Ms A C Cresswell and Mr S J Galler, Barristers, Auckland
R v G [2023] NZHC 1048 [5 May 2023]
[1] The defendant pleaded guilty to one charge of threatens to kill, two charges of distributing objectionable publications, and six charges of possessing objectionable publications. He was convicted and sentenced to two years and five months’ imprisonment.1
[2] An application for permanent name suppression was advanced at sentencing. It was adjourned pending receipt of further evidence directed at the impact of publication on the defendant’s rehabilitation and reintegration, and on any additional risks posed to the safety of the public. Interim suppression orders were continued in the meantime.
[3] A report from Prof. Allely was filed on behalf of the defendant last week. In her expert opinion, the consequences of publication could be devastating for the defendant, and lead to an increased risk of re-offending.
[4] Following receipt of Prof. Allely’s report, the Crown no longer oppose the application. Media organisations present did not oppose the application either. Indeed, it is accepted that permanent name suppression in this case will advance the principles of open justice by allowing full reporting of the reasons for sentencing, and for this decision.
Offending
[5] Details of the offending are set out in my sentencing notes which should be read together with this judgment. I provide only a high-level summary of the offending here.
[6] In 2017, when the defendant was about 16 or 17 years old, he became radicalised towards the extremist views and beliefs of Islamic State (ISIS), a designated terrorist entity. As a result of his online activities, the defendant came to the attention of law enforcement agencies.
1 R v G [2023] NZHC 434.
[7] In 2020, the defendant stored numerous documents, photographs and videos relating to violent extremism on a Google Cloud account. They were stored and organised in various folders.
[8] In July 2021, the defendant began exchanging messages with an individual using the name “Ozarikon”. The defendant did not know that Ozarikon was an undercover police officer. The defendant directed Ozarikon to download a chat application which had advanced security settings to continue their exchange.
[9] The defendant messaged Ozarikon in 2021, stating that he wanted to carry out an attack on members of the public in Auckland. Various options for such an attack were discussed including using a knife, a car, or explosives known as TATP.
[10] Further messages were sent indicating a desire to commit an attack on non- Muslims, and instructions on how to make TATP. An attack kit was put together, including camouflage clothing, flick knives, and a list of 80 possible locations for the attack. This list of locations was sent to Ozarikon, and the defendant kept diary notes of his reconnaissance of these locations.
[11] After the terror attack in a New Lynn supermarket on 3 September 2021, the defendant messaged Ozarikon and said he felt inspired by what had happened and wished to bring the attack forward.
[12] Articles and videos showing step-by-step guides on how to create an explosive device, and clips of ISIS terror attacks overseas were also sent to Ozarikon. The videos sent included a demonstration on how to carry out a decapitation with a live person.
[13] A police search located approximately 600 videos on the defendant’s Google Cloud account, 360 of which related to ISIS material. These included footage of terror attacks, ISIS executions, and a copy of the Christchurch terrorist’s manifesto. Three videos that the defendant made of himself were also located. In these videos, the defendant swore allegiance to ISIS, claimed retribution against the New Zealand Government, New Zealand society, and the West in general.
Personal circumstances
[14] The defendant is 21 years of age. He is of Cook Island and Māori descent. At 15 months old he was whāngaied to friends of his grandmother. Things were stable until he was nine years of age when his parents separated.
[15] In the years that followed there was drug taking, negative associates, and abuse by a relative. One parent was imprisoned for drug-related offending. The defendant struggled at school and was bullied. He eventually left school at age 14.
[16] Since being in prison, the defendant has taken steps towards his rehabilitation and reintegration. This includes meeting with Dr Mustafa Farouk, and with one of the victims of the Christchurch Mosque shooting. He has successfully participated in the Dynamics of Whanaungatanga programme and had regular sessions with a Māori mental health practitioner and a psychologist.
[17] In material prepared for sentencing, the defendant attributed the cause of his offending to deep hurt from his time at high school, extreme isolation during COVID- 19 lockdowns, and self-loathing and negative feelings towards himself. He described a sense of belonging when engaging with other members of ISIS, saying it felt “like a brotherhood full of like-minded outcasts”.
[18] Finally, the defendant has expressed hope for a normal life in the future, with a job, a loving partner, children, and a desire to go fishing.
Legal framework
[19] A suppression order may be made under s 200 of the Criminal Procedure Act 2011 (CPA). The relevant parts of that section provide:
200 Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
[20] Sections 200(2)(a) and (e) are engaged by this appeal. The Crown say that s 200(2)(h) is also engaged.
[21] The Court’s approach to suppression orders involves a two-stage enquiry.2 The first stage is to determine whether any of the threshold grounds in s 200(2) are met. If so, the second stage involves deciding whether to exercise the discretion to grant suppression.
[22] Before granting a suppression order, the Court must be persuaded that the risk in s 200(2) would be “likely”. “Likely” means “a real and appreciable possibility”.3
[23] “Extreme hardship” in s 200(2)(a) requires a very high level of hardship. The Court must undertake a comparison between the contended hardship and the consequences normally associated with the publication of the defendant’s name. Extreme hardship is something well beyond the ordinary associated consequences.4
[24] There is an overlap between each of the s 200 subsections engaged in this case. Damaged prospects of rehabilitation and reintegration may constitute extreme
2 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]; Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
3 Stuff Ltd v R [2021] NZCA 86, (2021) 29 CRNZ 658 at [17].
4 Robertson v Police [2015] NZCA 7 at [48].
hardship. That may lead to a risk of re-offending which may endanger the safety of any person. Given the nature of the offending, that could also prejudice the security or defence of New Zealand. I have approached the application on the basis of this overlap.
Threshold question
[25] There are several reports before the Court which the defendant relies on in support of the application for permanent name suppression. These include a comprehensive pre-sentence report; expert reports prepared by Dr McGinn and Prof. Allely; and a psychological assessment prepared for prison services.
[26] These reports are consistent in their diagnoses of the defendant as having Foetal Alcohol Spectrum Disorder (FASD) and a mild intellectual disability. He is also reported as showing some features of Autistic Spectrum Disorder (ASD), generalised anxiety and bipolarism. All reports note the defendant’s background of severe deprivation, abuse, and social alienation.
[27] Dr McGinn and Prof. Allely’s expert reports address the defendant’s FASD and intellectual disability.
[28] Dr McGinn is a clinical neuropsychologist with expertise in brain impairment and FASD. She explains that FASD is a diagnostic term used to describe the impacts on the brain (and body) of individuals exposed to alcohol during their mother’s pregnancy. It is a lifelong disability. Those with FASD experience challenges in their daily living and need support with various aspects of everyday life, including emotional regulation and social skills.
[29] Prof. Allely is a Professor of Forensic Psychology at the University of Salford, a global leader in FASD research. In addition to expertise in FASD, Prof. Allely has expertise in investigating how ASD symptomology can contribute to different types of offending behaviour. Prof. Allely explains that there is an overlap between some of the symptoms of ASD and FASD. Both Prof. Allely and Dr McGinn agree that the defendant shows some features of ASD in addition to his FASD.
[30] Prof. Allely describes some of the features commonly associated with ASD and FASD in her report. She says that these features are evident in the defendant’s obsession with mass shootings; his violent and vengeful fantasies; his inability to make friends; and social isolation. Prof. Allely explains that it is clear that the defendant found the world confusing and socially chaotic, and the extremist groups he was attracted to offered him explanations for the world and gave him a sense of belonging.
[31] As already noted, the defendant has an intellectual disability in addition to his FASD. Dr McGinn reports that testing revealed the defendant’s IQ to be below average, and at a level that he is eligible to access disability support services. He also has impaired executive function, which affects the skills needed to make sound decisions and reason.
[32] One of the features of the defendant’s diagnoses is his high suggestibility. Dr McGinn has assessed the defendant as being more likely to yield to suggestion than 98 per cent of the normal population. That means the defendant is easily led and influenced by others. He is prone to say what others suggest in order to please people and make friends. This leaves him exposed to the negative influences of others.
[33] Prof. Allely expresses concerns that publication of the defendant’s name may lead to extremist groups or others with negative agendas reaching out to the defendant for nefarious purposes. His high level of suggestibility leaves him extremely vulnerable to this approach.
[34] Adding to this vulnerability is the defendant’s background of social isolation and alienation. The defendant described his bullying at school, lack of friends, and the COVID-19 lockdowns as contributing to his feeling of anger and his violent fantasies of revenge.
[35] Publication of the defendant’s name is likely to lead to additional social dislocation. It is not the mainstream media which is the problem. It is the public vitriol he will receive once his name is known publicly. While there is no direct evidence he will attract negative attention, I accept that this seems likely given the nature of the offending.
[36] The toxicity of social media in this context was discussed by the Court of Appeal in X (CA 226/2020) v R.5 The Court noted that young people are particularly vulnerable to “pernicious, judgmental, exponential, indelible and often ill-informed publication on social media”.6 The defendant is already vulnerable due to his young age, but that vulnerability is compounded due to his FASD and intellectual disability.
[37] The significance of this impact goes beyond the individual. In this case, it could lead to further offending. The defendant attributes one of the causes of his offending to a sense of isolation, lifelong feelings of anger, rejection, and frustration at an inability to fit into society. He described a sense of validation from the response he was receiving online and a sense of belonging. Further alienation arising from publication of the defendant’s name, combined with the defendant’s susceptibility to negative influence, risks leading him down the same path.
[38] Prof. Allely also expresses concerns about the impact of publication on the defendant’s mental health. She refers to the defendant’s history of paranoia which she considers could worsen from publication. She also states that publication will likely lead to anxiety and depression. That would result in the defendant becoming even more socially isolated, which would result in a further deterioration of his mental health.
[39] Prof. Allely also records that it is now well-established in peer reviewed literature that individuals with FASD are at risk for high rates of suicide. The defendant has described thoughts of intense self-loathing and suicide in the past. There have been incidences of self-harm. While his mental health appears to be relatively stable at present, that is likely due to the support he has received in prison. Absent that support, there is a real and appreciable risk of self-harm arising out of publication.
[40] The cumulative impact of social alienation and deteriorating mental health on the defendant’s rehabilitation and reintegration also needs to be considered. In Prof. Allely’s expert opinion, publication of the defendant’s name will be detrimental to his
5 X (CA 226/2020) v R [2020] NZCA 387 at [51]
6 At [52]
mental health which in turn is likely to detrimentally affect his rehabilitation and reintegration back into society. She says that permanent name suppression is critical to ensure that does not occur.
[41] Rehabilitation and reintegration into society are integral to mitigating the risk of further offending. The defendant has been assessed as having a moderate to high risk of future engagement with online negative influences and mitigating this risk will require long term wrap around support.
[42] In George v R,7 Dunningham J considered the risk to the appellant’s rehabilitation met the threshold of extreme hardship, justifying name suppression in that case. Like this case, George involved a charge of distributing objectionable material, being footage of the Christchurch Mosque attack. The defendant in that case was radicalised online and had also made a threat of further attacks. Dunningham J accepted expert evidence in that case which identified a real risk that publication could jeopardise the defendant’s rehabilitation because it would be likely to entrench a sense of persecution and enhance the cognitive biases that had led him to adhere to conspiracy theories. Dunningham J considered such a consequence to constitute extreme hardship as it would anchor the defendant in that case “in an entirely negative and unproductive life”.8
[43] Those concerns apply equally in this case. There is a real and appreciable risk that publication will lead to the same set of circumstances that contributed to the defendant’s offending. Unlike the position in George, however, this is not a situation where it is sufficient to supress the defendant’s name for a short period to allow rehabilitation to occur. In this case, the nature of the defendant’s vulnerabilities mean that long term intensive support is required. Permanent name suppression is required to maintain the integrity of the rehabilitative efforts over time.
[44] Finally, Prof. Allely opines that permanent name suppression is critical to avoid inspiring others who are motivated by fame and notoriety to offend in the same way. The quest for notoriety and fame is a feature of the defendant’s offending in this case.
7 George v R [2021] NZHC 2681.
8 At [49]
The pre-sentence report produced for sentencing recorded the defendant as saying that he wanted to achieve media and internet headlines with an attack. He also spoke about feelings of excitement at the potential attention he would receive, stating:
I would have been excited about the attention. I would have loved the attention. Everyone would know me.
Similar sentiments are expressed in the most recent psychological assessment prepared for prison services.
[45] While there is no evidence that this remains the defendant’s desire (indeed the application for permanent name suppression is the very opposite of this objective), it would nevertheless be perverse for publication to fulfil one of the motivating forces for the offending. Publication of the defendant’s name may also inspire others who are similarly motivated to act as the defendant did. As such, publication of the defendant’s name may endanger public safety and prejudice the security of New Zealand.
[46] Most of these factors are likely to be sufficient to at least meet the threshold of extreme hardship or a risk to public safety. Taken together, however, there is no doubt that they meet the necessary threshold for the Court to make a permanent suppression order. Accordingly, the first stage of the test for suppression is met.
The exercise of the discretion
[47] The second stage of the test requires the Court to consider whether to exercise the discretion to make the suppression order.
[48] Somewhat unusually, this is a case where the principles of open justice favour ordering suppression. As counsel for the defendant accepts, permanent name suppression will allow publication of the defendant’s medical diagnoses and associated vulnerabilities to be published. These details are important to explain how the sentence was determined, and the reasons for the decision on permanent name suppression.
[49] Mr Gaye, from Stuff Ltd, submitted at the hearing that the public interest in being able to report on these key facts outweighed any public interest in publication of the defendant’s name. I agree.
[50] In these circumstances, the principles of open justice and the public interest weigh in favour of permanent name suppression and the discretion should be exercised accordingly.
Result
[51]The application for permanent name suppression is granted.
[52] I make an order permanently prohibiting the publication of the defendant’s name and other identifying details. This order does not extend to publication of the defendant’s diagnoses (including his FASD and intellectual disability). The interim suppression order prohibiting publication of those details is revoked.
Edwards J