R v H - [2021] NZHC 2793

ORDER PROHIBITING PUBLICATION OF THE DEFENDANT’S NAME AND ANY IDENTIFYING PARTICULARS PURSUANT TO S 200(2)(f) OF THE CRIMINAL PROCEDURE ACT 2011. SEE [20] OF THE JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-012-2009

[2021] NZHC 2793

THE QUEEN

v

H

Hearing: On the papers

Appearances:

MR Harborow and HE Macdonald for the Crown J-A Kincade QC for the Defendant

Judgment:

19 October 2021

JUDGMENT OF FITZGERALD J

[As to permanent name suppression]

This judgment was delivered by me on 19 October 2021 at 12.30pm

Registrar/Deputy Registrar Date……………

Solicitors: Meredith Connell, Auckland To: J-A Kincade QC, Auckland

R v H [2021] NZHC 2793 [19 October 2021]

Introduction and background

[1] Ms H faced two representative charges of ill treatment of a child1 and one charge of theft.2 After a sentence indication given by Gordon J on 26 March 2021, Ms H pleaded guilty to those charges. She was sentenced by Gordon J on 13 August 2021 to a term of 11 months’ home detention.3

[2] The factual background to Ms H’s offending is fully set out in Gordon J’s sentencing notes and is not repeated here. In summary, the representative charges related to a number of incidents between 16 August 2019 and 26 August 2019. They involved Ms H giving her 15 month old son, S, a toxic concoction of either non- prescription eye drops or antidepressant medication prescribed to Ms H, or a combination of both those substances. The offending occurred in two phases: first while S was admitted to Dunedin Hospital on 16 August 2019, and second, while he was at Starship Hospital in Auckland between 18 August 2019 and 26 August 2019. The theft charge relates to Ms H stealing those same non-prescription eye drops from the pharmacy at Starship Hospital on six occasions.

[3] It is clear that Ms H has had mental health issues in the past, and after having reviewed various medical expert reports prepared prior to sentencing, Gordon J was satisfied that Ms H suffers from Factitious Disorder Imposed on Another (FDIA).4 However, in a disputed facts hearing, Gordon J concluded that the necessary causative link between the FDIA diagnosis and Ms H’s offending had not been established.5 No reduction in the starting point was therefore made on that basis.

[4] Ms H had been granted interim name suppression on 22 June 2020 until the disposition of her trial, on the basis that there would be extreme hardship to her children if her name were published. Obviously in light of Ms H’s guilty pleas, the trial did not proceed. Accordingly, at the conclusion of Ms H’s sentencing, Gordon J noted that Ms H sought permanent name suppression. A formal application had not,

1      Crimes Act 1961, s 195(1). The maximum penalty for this charge is 10 years’ imprisonment.
2      Crimes Act 1961, ss 219(1)(a) and 223(d). The maximum penalty is three months’ imprisonment.
3      R v H [2021] NZHC 2116.
4…

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 H

Details

AGLC: R v H [2021] NZHC 2793
Case: [2021] NZHC 2793
Decision Date: 19 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v H [2021] NZHC 2793 involved a defendant, Ms H, who was facing charges of ill treatment of a child and theft. Following her guilty plea, Ms H was sentenced to 11 months’ home detention. The court granted her interim name suppression pending the disposition of her trial, which was subsequently not required due to her guilty plea. Ms H then applied for permanent name suppression, arguing that publication of her name would likely lead to the identification of her son, S, who benefits from automatic statutory name suppression, and cause undue hardship to her, her children, and her father. The Crown did not oppose the application for permanent name suppression.

The court examined the statutory framework for applications for name suppression and determined that the threshold of "undue hardship" had been met. The court then exercised its discretion in favour of making an order for permanent name suppression of Ms H’s identity. The court found that publication of Ms H’s name would likely lead to the identification of S, and that the nature of the offending, the potential for media and social media attention, and the potential impact on S’s future should his identity become known all weighed in favour of suppression. The court did not need to address the other grounds for suppression as it had already decided in favour of permanent name suppression.

The final orders of the court permanently suppressed Ms H’s name and identifying details. The court considered the competing interests of the defendant, the broader public interest in open reporting, and the interests of the connected person (S) whose name suppression may be rendered ineffective by publication of the defendant’s identity. The court determined that the discretion should be exercised in favour of name suppression of Ms H’s identity.

Orders