R v G - [2023] NZHC 1048

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…

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 R v G

Details

AGLC: R v G [2023] NZHC 1048
Case: [2023] NZHC 1048
Decision Date: 5 May 2023

CaseChat Overview and Summary

The case of R v G involved a defendant who had pleaded guilty to multiple charges, including threatening to kill, distributing and possessing objectionable publications. The defendant was sentenced to two years and five months' imprisonment. The central issue before the court was whether to grant a permanent suppression order to prevent the publication of the defendant's name and other identifying details. The application for suppression was supported by several expert reports highlighting the defendant's diagnoses of Foetal Alcohol Spectrum Disorder (FASD), intellectual disability, and other mental health issues. These reports emphasised the potential for extreme hardship and risk of re-offending if the defendant's identity were made public.

The court considered the overlap between the grounds for suppression, particularly the risk of re-offending and the impact on the defendant's mental health and rehabilitation. The expert evidence indicated that the defendant's high suggestibility and history of social alienation and abuse could be exacerbated by public identification, leading to further offending and deterioration of his mental health. The court found that the cumulative impact of these factors constituted extreme hardship and a real risk to public safety, satisfying the threshold for a suppression order under section 200(2) of the Criminal Procedure Act 2011. Furthermore, the principles of open justice supported the suppression order as it would allow for the reporting of the defendant's diagnoses and the reasoning behind the sentencing decision without compromising public safety.

Ultimately, the court exercised its discretion to grant the permanent suppression order, prohibiting the publication of the defendant's name and other identifying details. However, the order does not extend to the publication of the defendant's diagnoses, including FASD and intellectual disability, as these details are critical for understanding the context of the sentencing and the rationale for the suppression order. The interim suppression order regarding these diagnoses was revoked, allowing for their publication alongside the reasons for the permanent name suppression.

Orders