R v Moody

[2024] NZHC 1024

INTERIM ORDER FOR THREE DAYS FROM PUBLICATION DATE OF THIS JUDGMENT PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT

PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-296-031

[2024] NZHC 1024

THE KING

v

MASON MOODY

Hearing:

30 April 2024

Appearances:

A J Brosnan for the Crown

L M Sziranyi and G J Ross for Defendant

Judgment:

30 April 2024

JUDGMENT OF GRICE J

(Application for permanent name suppression of defendant)

[1]Mason Moody, who has recently turned 17, applies for final name suppression.

[2]                 On 15 March 2024 I sentenced Mr Moody to 12 months’ home detention with post-detention conditions in respect of one charge of attempted murder, committed when he was aged 15.1 I adjourned the application for final name suppression to allow the defence to obtain further material. Specifically, a psychological opinion from registered clinical psychologist Mr Nev Trainor dated 16 April 2024.

1      R v M [2024] NZHC 576.

R v MOODY [2024] NZHC 1024 [30 April 2024]

[3]                 I now decide the application for final name suppression, having considered Mr Trainor’s psychological opinion and the submissions of counsel.

Background

[4]                 At sentencing, I explained the background to the charge. I will briefly canvas those facts.

[5]                 In May 2022, when Mr Moody was aged 15, his relationship with his former girlfriend ended. One of Mr Moody’s friends, the victim, started a relationship with his former girlfriend. Mr Moody had told the victim that he was okay with the new relationship when in fact it upset him.

[6]                 Mr Moody set out to kill the victim, making Google searches about discrete clothing, Molotov cocktails  and  running  away  from  home.  On  12  May  2022, Mr Moody told a friend he wanted to hurt the victim and the following day he brought a knife to school, causing him to be sent home.

[7]                 On 15 May 2022 Mr Moody unsuccessfully tried to arrange a fight with the victim. Later that evening, he went to the victim’s address wearing discrete clothing with a machete bearing a 45.5 cm blade. He called the victim outside and swung the machete at him, causing large cuts to his chest and right forearm, and minor cuts to his forehead. The victim required emergency and plastic surgeries. In sentencing I noted that the offending was premeditated, caused serious injuries (although the victim had made a full physical recovery) and use of a weapon were aggravating factors.

Submissions

For the Crown

[8]                 Ms Brosnan, for the Crown, submits the defendant should not receive final name suppression because he and the people connected to him are not likely to experience extreme hardship if his name is published.

[9]                 The Crown refers to the recent decision in M (SC 13/2023) v R2 where the Supreme Court held that consideration of the young person’s best interests must occur at all stages of the name suppression inquiry. The Court affirmed that open justice is the starting point in determining name suppression questions and it would be inconsistent with the statutory scheme to impose a governing presumption in favour of name suppression for youth. The Court did not preclude that the scale of offending could be taken into account when determining whether the extreme hardship threshold is met in stage one of the analysis, and in determining whether to exercise discretion in the second stage. This means that a defendant who has committed more serious offences can expect greater inquiry and what amounts to hardship may be proportionally linked to the crimes committed. The defendant has committed attempted murder and therefore what amounts to extreme hardship should be proportionally linked to that crime.

[10]The Crown refers to five comparator cases which I outline below.

[11]             In Harris v R,3 the 15-year-old appellant was convicted of manslaughter in an incident involving a premeditated attempt to steal a car. The appellant killed the victim with two stab wounds inflicted by a knife. The appellant had made good progress with rehabilitation but did not persuade the High Court that publication would impede his rehabilitation or otherwise cause him hardship. The High Court declined his application for final name suppression,  and  this  decision  was  upheld  in  the  Court of Appeal.

[12]             In DP v R,4 a 13-year-old was found guilty of manslaughter. He stabbed a shopkeeper to death. The Court of Appeal considered that the appellant was vulnerable due to a brain injury, his disadvantaged upbringing, risk of self-harm and lack of a support network. The Court also noted New Zealand’s obligations under the New Zealand Bill of Rights Act 1990 and the United Nations Convention on the Rights of the Child. Additional risks for the appellant in that case were that he could suffer

2      M (SC 13/2023) v R [2024] NZSC 29.

3      Harris v R [2023] NZCA 462.

4      DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306.

harm at the youth justice facility as the facility could not adequately that risk and his rehabilitation would therefore be impeded. The Court granted final name suppression.

[13]             In X v R,5 an 18-year-old pleaded guilty to common assault against two people after he became intoxicated at a political party’s youth camp and touched other people inappropriately. He was discharged without conviction. The Court of Appeal granted final name suppression because publishing his name in social media carried the risk of unfair or inaccurate reporting, he had an unusual name, the case had attracted high public interest given the political party’s youth camp context, and he had received labels and threats on social media.

[14]             In R v UGT,6 a 15-year-old pleaded guilty to manslaughter by stabbing his friend following a dispute contributed to by drug and alcohol intoxication, that the defendant’s mother had encouraged. The High Court granted final name suppression because it found that the defendant had strong rehabilitative prospects and publication of his name would be highly detrimental to his reintegration.

[15]             In M (SC 13/2023) v R, the defendant pleaded guilty to sexual offending against six victims when he was aged between 14 and 17. After the offending he had been diagnosed with autism spectrum disorder and attention deficit hyperactivity disorder. The defendant argued he would be likely to experience extreme hardship and endangered safety due to the effect that publication would have on his mental health. The defendant was particularly concerned about negative commentary about him and his offending on social media and in the mainstream media, the risk of vigilantism, and the effect on his future employment and social prospects. The Supreme Court declined final name suppression, finding the threshold for extreme hardship had not been reached. The Court noted the defendant was received psychiatric treatment, had family support towards rehabilitation, had not experienced the same abusive and threatening commentary on social media as in X v R, and the only vigilantism that had occurred had been during the period of name suppression from people who knew the defendant. At the second, discretionary, stage of the analysis, the Court balanced the

5      X (CA226/2020) v R [2020] NZCA 387.

6      R v UGT HC Rotorua CRI-2011-263-73, 21 July 2011 (judgment of Whata J on suppression orders).

risk of harm to the defendant and the desirability of his reintegration and rehabilitation against the public interest in publication, the seriousness of the offending and the victims’ views. The Court concluded that the circumstances did not displace the principle of open justice because the public has an interest in knowing his identity and name suppression impeded the victims’ abilities to recover.

[16]             The Crown submits he should not receive final name suppression. He is newly 17 and is unlikely to have a wide social and professional network. He has not been vilified on social media. He is likely to be embarrassed by the publication of his name, but embarrassment is insufficient to establish extreme hardship. Moreover, the Crown submits that public interest in this case is likely to have waned by the time he finishes his sentence and reintegrates into the community. Any concern about “inevitable” personal attacks from “keyboard warriors” or social media backlash is purely speculative and the harm of this could be mitigated by the defendant’s mother moderating his internet and social media use in the months following publication. Moderation would be consistent with art 17 of the United Nations Convention on the Rights of the Child which states that adults should make sure children do not receive harmful information from digital sources.

[17]             The defendant is likely complete NCEA level two and three through home schooling. Therefore, the Crown says that publication of his name is unlikely to cause him extreme hardship with respect to his education. Further, the Crown notes that any hardship he would experience by way of disclosure to prospective future employers of his conviction would be owing to the fact of his conviction, not owing to the fact of publication. Any concern that prospective future colleagues would attempt to search his name and cause him intimidation or fear is pure speculation, without an evidential basis.

[18]             The Crown asks the Court not to lose sight of the seriousness of the offending in this case and how the Youth Court transferred the matter for sentencing to the High Court, in part, because of its seriousness.

[19]             Commenting on Mr Trainor’s report Crown says it is significant that the defendant himself is not overly concerned by the prospect of publication. The Crown

submits his parents’ concerns are understandable, but evidence has not been provided to justify them such as substantiating the risk of vigilante justice. The Crown suggests that Mr Trainor’s discussion of the risks of publication does not consider the strong support mechanisms the defendant has in place.

[20]             In the event that extreme hardship is established, the Crown submits I should exercise my discretion to decline final name suppression. The comparator cases wherein youth applicants received final name suppression involve a particular vulnerability, such as mental illness, isolation from family or risk of self-harm. The defendant does not share those vulnerabilities; the Crown submits he is not vulnerable. The victim does not support final name suppression. The presumption of open justice should not be displaced.

For the defendant

[21]             Ms Sziranyi, for the defendant, submits final name suppression should be granted under s 200(2)(a) of the Criminal Procedure Act 2011. Counsel says publication of the defendant’s name would cause him extreme hardship such that he would struggle to rehabilitate and reintegrate to society after serving his sentence.

[22]             If Mr Moody had been sentenced in the Youth Court, counsel says he would have effectively had final name suppression given the publication restrictions of proceedings in that Court.

[23]             Counsel notes that the psychological report of Mr Trainor assesses Mr Moody’s maladaptive schema as likely  to  be  activated  if  his  name  suppression  lapsed.  Mr Trainor suggests this would occur in response to the stressors, isolation and exclusion Mr Moody would be likely to experience if the public knows who he is and what he has done. The enduring nature of information on the internet will extend long past the duration of the defendant’s sentence.

[24]             Mr Trainor also suggests Mr Moody may experience a deterioration of mental health and mood if his name suppression lapsed because of the maladaptive schema, particularly for failure and self-punishment. Mr Trainor believes Mr Moody may not

share his emotional distress with others because he has a propensity for emotional inhibition.

[25]             Ms Sziranyi submits that the Crown incorrectly suggests Mr Moody would be unlikely to experience extreme hardship as a result of name suppression lapsing. The defendant will build a social and professional network as he completes his sentence and reintegrates into society. Creating and maintaining strong and healthy relationships with other people will be an important factor for his ongoing rehabilitation. Publication of his name would be more than embarrassing for him; it would cause him extreme hardship.

[26]             Ms Sziranyi submits that Mr Moody will be required to disclose to his conviction to prospective future employers. There is a difference between making this disclosure to his employer in confidence and having all staff know about his offending and this having a prejudicial impact on him. This impact on his employment would cause him extreme hardship. Counsel pointed out that two articles have already been published in the media about Mr Moody’s sentencing. They focus on the offending and largely do not address the rehabilitative progress he has made in the time since. She submits Mr Moody would inevitably experience directed personal attacks from people online with such abbreviated media reporting.

[27]             Although Mr Moody has not been vilified online at present, he has had interim name suppression and no access to the internet for the majority of his time on remand pending sentencing. As the Court of Appeal has recognised, there can be no reasonable expectation that comments about the offending on social media will be fair and accurate. Online vilification would leave Mr Moody vulnerable to deterioration of his mental health because he is not equipped to deal with those challenges.

[28]             Counsel submits that the comparator cases referred to by the Crown are distinguishable from  Mr  Moody’s  circumstances  for  the  reasons  provided  by  Mr Trainor in his psychological opinion.

[29]             Ms Sziranyi submits that because the defendant is 17, the Court must recognise the United Nations Convention on the Rights of the Child and s 25(i) of the

New Zealand Bill of Rights Act. Accordingly, the Court should prioritise Mr Moody’s rehabilitation and reintegration into society, which final name suppression would give effect to. Counsel submits that the above factors demonstrating extreme hardship is likely to occur if name suppression lapses, the Court should not exercise its discretion in the second step of the analysis to displace the principle of open justice. Counsel submits the psychological opinion makes it clear that Mr Moody will suffer significantly if his name became public, and he is ill-equipped to deal with the stress associated with publication. This would risk undoing the rehabilitative progress he has made. The community is best served by reducing Mr Moody’s risk of reoffending. His risk is low if he stays in his prosocial environment with supportive relationships.

Relevant law

[30]             The recent decision of the Supreme Court in M (SC 13/2023) v R provides helpful and thorough commentary about the interaction of youth justice principles and the presumption of open justice in name suppression applications under s 200 of the Criminal Procedure Act. The Court’s approach guides the application of the usual two-step analysis for name suppression applications. Most relevantly to this application, the Court said:

[64]   Drawing these threads together, the various obligations to which    New Zealand is committed recognise the desirability of rehabilitation and reintegration of young offenders. Those obligations, and what we know from the expert evidence relating to youth offending, support a requirement to treat the interests of youth as a primary consideration in name suppression decisions. There is nothing in the wording of the Criminal Procedure Act precluding recognition of the particular interests of youth in either the threshold inquiry or at the second stage of the s 200 analysis, and giving these interests what will, necessarily, be powerful weight. There is also nothing new in recognising that the child’s best interests should weigh powerfully in the context of s 200. …

…

[66]  We  summarise our approach to youth justice principles in this way.  The framework of the Criminal Procedure Act reflects, as we have said, that open justice is the starting point in determining questions of name suppression. Within that statutory framework, youth principles are a primary consideration to be given powerful weight. The Court must therefore carefully assess what those principles require in terms of name suppression in each case where youth are involved. Interpreting the Act in this way is consistent with New Zealand’s relevant international obligations, with the Bill of Rights, and with the policy considerations embodied in those obligations; particularly, the desirability of rehabilitating and reintegrating into society youth who commit

offences. It is also aligns with what the expert evidence tells us about offending involving young people and their development. Finally, we agree with the respondent and NZME that it would not be consistent with the statutory scheme to interpose a governing presumption in favour of name suppression for youth.

[31]             Courts may suppress the identity of a defendant under s 200 of the Criminal Procedure Act. The starting point for a s 200 analysis is the principle of open justice. Courts have consistently emphasised a presumption in favour of openness in reporting. Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high.

[32]             Section 200 contemplates a two-stage test. The first stage is a threshold determination. The Court may only order name suppression if it is satisfied that one of the consequences listed in s 200(2) would be “likely” to follow if no order were made. This first stage is met if the Court is satisfied there is a real or appreciable risk that the consequence will follow from publication. It is not necessary to establish that the risk of harm is more likely than not to occur.

[33]             The Court of Appeal has explained “extreme” and “undue” hardship under subss 200(2)(a) and (b) in the following terms:7

This Court in Robertson v Police observed in the context of extreme hardship:

[30]      An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published.

It must be something beyond the ordinary associated consequences. …

[31]      The same necessity for a relative comparison applies in relation to the lower test of undue hardship. The assessment of undue hardship in this case is contextual and involves a comparison between the hardship contended for on behalf of Vodafone, and those normal hardship consequences that will follow publication of Mr Sansom’s name.

[32]      Any publication of a defendant’s name in connection with a serious charge will cause a measure of hardship to a defendant and those connected to that defendant. Publication will generally excite curiosity and criticism (or support), and will cause embarrassment. Relationships will be affected, and in the commercial world where the allegation is commercial misconduct, commercial relationships and transactions arising from them inevitably will be affected. This sort of hardship is not undue hardship. Undue hardship must

7      Samson v R [2018] NZCA 49 (footnotes omitted).

involve hardship that is greater than that which will inevitably follow publication. As this Court also stated in Robertson v Police:

The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.

[34]             The Supreme Court confirmed this approach is the correct way to assess extreme hardship in youth name suppression applications in M v R. If one of the threshold grounds under s 200(2) is met, the Court must then determine whether to exercise its discretion to suppress the defendant’s name. At this point, the Judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victim(s) and the public interest in knowing the character of the offender. In exercising its discretion, the Court must weigh the competing interests of the applicants and the public interest in open justice. An acquittal can give rise to a legitimate public interest. There is a high threshold to be reached before suppression is justified, and the balance must “come down clearly in favour of suppression”. As the Supreme Court noted in M v R, there is no presumption in favour of suppression for youth name suppression cases.

Analysis

[35]             My primary consideration is the best interests of the child. At age 17, the defendant is entitled to the protection provided by the United Nations Convention on the Rights of the Child and s 25(i) of the New Zealand Bill of Rights Act. These considerations are part of and guide my analysis, but they are not determinative. I must decide objectively whether publication of the defendant’s name would be likely to cause him or people connected to him extreme hardship such that I should grant final suppression.

[36]             It is accepted there will be media interest in this matter as there was following the sentencing. Ms Sziranyi emphasised the interest shown in the case on social media and produced screenshots of comments that followed articles in the newspaper. As Ms Brosnan noted these messages did not call for vigilante action or threatening but were largely directed at the sentence. Ms Sziranyi however pointed out that at that

stage the defendant was not named and submitted that this explains the lack of significant personal vilification.

[37]             Whether Mr Moody’s circumstances demonstrate extreme hardship is ultimately an objective assessment on its own merits, comparison to recent case law is helpful in assessing where the boundary of what constitutes extreme hardship should lie.

[38]             I have compared the facts of this case to M v R where the Supreme Court declined final name suppression for a defendant who offended between the ages of 14 and 17. That defendant there, LF, had the additional vulnerabilities of disability through autism spectrum disorder and attention deficit hyperactivity disorder. LF also suffered from mental health issues, had been bullied in a Zoom chatroom, had been threatened through comments on Reddit, and had experienced vigilante incidents including items being thrown at the family house.

[39]               In Mr Moody’s circumstances, I accept he has a degree of inherent vulnerability owing to his young age. However, displacing this vulnerability is the positive and prosocial environment that he is serving his home detention sentence in. He has a very supportive whānau, access to remote schooling and programmes to assist his rehabilitation and reintegration into the community. Although the victim does not want to see him again, he says he still considers the defendant a friend. Mr Moody has not received threats, experienced bullying or been subjected to vigilantism by those who know his identity.

[40]             Ms Brosnan also emphasised that the defendant has some further 11 months to serve on home detention. He is now 17 years of age and is receiving the supports which Mr Trainor emphasised has assisted the defendant’s progress to date. Therefore any removal of the interim suppression order would not coincide with his home detention release. Therefore if there were to be publication the home detention and supports would be in place. She noted the defendant had supportive whānau and good social supports which would assist in managing the risks to him of publication of his name. Mr Trainor indicated the defendant is now stable emotionally and relationally.

Although I accept both Mr Trainor and the defendant’s parents are concerned about that equilibrium being upset by publication of his name.

[41]             I also take into account the victim’s view and the psychological opinion of Mr Trainor. The victim wishes for the defendant’s name to be published to protect people in the future. On the other hand, Mr Trainor recommends that the defendant receive final name suppression because of the risk of Mr Moody finding it extremely difficult to achieve his potential and rehabilitate and reintegrate into society effectively if the public knows his identity.

[42]             Mr Trainor notes that the defendant’s mood is generally “good” and he has not experienced any strong negative emotional impacts since his sentencing last month. When asked about his opinion regarding his name suppression application, Mr Moody told Mr Trainor “I don’t really mind too much” and expressed his main concern is the effect on his prospective future employment. He had not considered whether the publication of his name would endanger him or people connected to him.

[43]             The defendant’s mother expressed concern that Mr Moody’s mental health could deteriorate if his name suppression lapses, particularly in response to the negative reactions from other people and prospective employers. His mother worries that in these circumstances Mr Moody would isolate himself from other people and would not communicate his emotions. He may also contemplate self-harm. However Mr Trainor does not refer to any mental health issues nor indications of self-harm tendencies nor intent to  harm others.   Mr Moody is not currently medicated and   Mr Trainor found no “perceptual disturbance or thought or major mood disorder”,

[44]             The defendant’s father expressed concern about the defendant being reminded of his offending if his name became public and the impact on his mental health which could corrode his ambitions in life. Both parents expressed concern about the risk of retaliation and retribution towards the defendant and his family members through vigilantism if his identity became public alongside images and articles in the media. Moreover, the defendant’s father is concerned about the risk of bullying, teasing and other punishment that could be directed towards the defendant’s younger siblings, many of whom have the same surname.

[45]             Mr Trainor concurred with the opinion of the defendant’s father that he is not a risk to the general public and therefore the public does not need to know the defendant’s name to protect themselves against him. Mr Moody has accepted responsibility for his offending and is deterred from offending in the future.

[46]             Mr Trainor says the defendant significantly underestimates the challenges that will lie ahead for him if his name is connected to the existing media portrayals of his sentencing. This lack of thinking about consequences is attributable to his age; teenage brains tend to think in terms of rewards and benefits without giving sufficient weight to risks and costs. Mr Trainor also suggests that because the defendant is “emotionally and relationally, in perhaps the best place he has been in for a number of years”, he is sheltered and experiencing an optimistic view of his future. Mr Trainor believes that the defendant’s maladaptive schema would be activated if his name suppression lapses, and the defendant is ill equipped to deal with the stressors associated with publication, being emotionally inhibited and susceptible to deterioration of mood and mental health.

[47]             The Supreme Court in M v R noted that the nature of the offending affects the usual consequences of publication. It noted for that reason it may be taken into account in the first and second stage of consideration. It did not take it into account in the first stage in that decision but noted that what amounts to hardship may be proportionately linked to the crimes committed and an individual who has committed more serious offences may expect greater inquiry. In this case the offending involving an attempted murder was serious.

[48]             Weighing up the above factors, I am not satisfied that the defendant would be likely to experience extreme hardship from the publication of his name. Nor would the people connected with him be likely to suffer undue hardship nor is there any likelihood that those persons’ safety would be endangered.

[49]             There is no evidence before the Court that the defendant would face difficulties accessing education or other training if the interim name suppression that he has enjoyed to date lapsed. I appreciate that publication of his name may cause him some embarrassment, and he would benefit from therapeutic programmes to teach him

healthy coping mechanisms, but this is an ordinary consequence of the serious criminal offending he has been sentenced for. The same can be said for the consequences associated with disclosure of his criminal record to prospective future employers. His future will not be the same after committing an attempted murder. Disclosing his criminal record and ongoing rehabilitative efforts will become necessary.

[50]             Reference was made to the siblings of the defendant being associated by virtue of their name and concerns by the parents that they will be targeted as a result of publication. This was not pursued with any vigour in submissions. I do not consider that these raise serious issues in relation to those persons. The defendants name is common and there is no basis other the natural concern about possible association with the defendant and his offending which supports suppression for those reasons.

[51]             There is significant public interest in serious criminal offending and knowing the identity of such offenders. There is a presumption of open justice, including in applications by youth offenders, which I am not satisfied is displaced by the defendant’s circumstances. In my view, the public interest in the publication of the defendant’s name outweighs the personal consequences for him.

[52]             For the avoidance of doubt, even if the extreme hardship threshold had been met, I would not exercise my discretion to grant the defendant final name suppression.

Conclusion

[53]The application for final name suppression is declined.

[54]             The interim name suppression will remain in force for three days from the date of this decision to enable the defendant time to consider it.

Grice J

Solicitors:

Luke Cunningham & Clere, Wellington

Thomas Dewar Sziranyi Letts, Lower Hutt