R v New Zealand Customs Service

[2019] NZHC 1878

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE APPELLANT PROHIBITED UNTIL ANY APPEAL IS DETERMINED OR THE APPEAL PERIOD EXPIRES, PER PARAGRAPH [15].

SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-132

[2019] NZHC 1878

BETWEEN

Mr. R

Appellant

AND

NEW ZEALAND CUSTOMS SERVICE

Respondent

Hearing:	2 August 2019
Appearances:	R D Butler for the appellant D Becker for the respondent
Judgment:	2 August 2019

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:

C G Tuck, Barrister, Tauranga R D Butler, Barrister, Tauranga Meredith Connell, Auckland

Mr. R v NEW ZEALAND CUSTOMS SERVICE [2019] NZHC 1878 [2 August 2019]

What happened?

Offending

[1]                Mr R, aged 32, pleaded guilty to, was convicted and sentenced for 13 offences involving objectionable publications and sex with children:

(a)four offences of being knowingly concerned in exporting objectionable publications;

(b)one offence of entering a contract for commercial sexual services from a person under 18 years of age,

(c)one representative offence of knowingly making an objectionable publication;

(d)one representative offence of knowingly importing an objectionable publication;

(e)five offences of knowingly supplying or distributing an objectionable publication; and

(f)one representative offence of knowingly possessing an objectionable publication.

[2]This was serious offending, over the course of almost two years, involving:

(a)uploading two images of children performing oral sex on adult men, a video of an adult engaging in penetrative sex with a 16-month old child and a video of children having sexual intercourse with each other;

(b)travelling to the Philippines, paying for sexual services from a child there, making 10 objectionable images and videos of that and distributing four of those via Twitter;

(c)possessing 14,067 objectionable publications on various digital devices and internet accounts, of which 12,508 depicted sexual exploitation or abuse of children or young persons and 3,573 were in the most serious category.

[3]In July 2019, Mr R was sentenced to six years and five months’ imprisonment.1

Previous suppression application

[4]                Before his sentencing in the Waitākere District Court, Mr R applied for permanent name suppression. Judge Jelas declined the application.2 She considered the starting point is the importance of freedom of speech, open judicial proceedings and fair and accurate reporting by the media.3 She considered medical certificates and a psychologist’s report about the impact of the release of Mr R’s name on his parents, especially his mother who had recently been diagnosed with cancer. She accepted the level of emotional stress would be significant but was not persuaded the consequences of publication reached the high threshold of extreme hardship.4 She considered that, “with continued and appropriate medical oversight, their mental health or physical health will not deteriorate significantly to the point where the effects [on] them as individuals or together would be unduly harsh”.5 The Judge noted two elders of their church had provided the parents with support and she expressed hope the parents’ immediate social support group would adhere to the Christian values that lay at the core of the group.6

[5]                Mr R appealed that decision to the High Court. On 16 April 2019, Whata J received further evidence about Mr R’s mother having had one surgical operation, and facing another, and granted temporary suppression for three months.7 He quoted a letter from Mr R’s mother’s doctor stating she “has a long and difficult treatment and recovery ahead of her and I have grave concerns that lifting her son’s name suppression will add to the suffering she is already experiencing and will adversely

1      New Zealand Customs Service v R [2019] NZDC 13307.

2      New Zealand Customs Service v R [2019] NZDC 6939.

3 At [8].

4      At [17] and [21].

5 At [17].

6      At [18]–[19].

7      R v New Zealand Customs [2019] NZHC 882.

affect her chances of making a complete recovery.”8 The clinical psychologist observed there was a strong relationship between physical and mental health and that “[a]ny deterioration in [the mother’s] mental health would lead to further decompensation in her physical health, in particular her capacity to recover from cancer”.9

[6]                In his reasons, released on 18 April 2019, Whata J was satisfied “that, right now, there is an appreciable risk that her recovery will be impaired and with it the potential for a curative outcome”.10 He was satisfied “while [the mother] is in the early stages of her recovery, a cautious approach is justified to best secure a potentially curative outcome” otherwise there could be “an appreciable risk of extreme harm” to her.11 Whata J was not satisfied that provided a proper basis for permanent suppression because the evidence fell short of showing Mr R’s mother would remain as vulnerable as she then was.12 And he considered the nature and seriousness of the offending provided a very strong basis for publication. He reserved leave for Mr R to reapply for permanent suppression and stated:13

I wish to clearly signal, however, to R that this decision is a precautionary one at the outer boundary of the threshold for ongoing suppression. The public interest in publication of his name is very strong. There should be no expectation of ongoing suppression beyond this timeframe. Indeed, but for the fact [the mother] is in the early stages of her recovery, I would have been disinclined to make a suppression order.

Law of suppression

[7]                Relevantly, s 200 of the Criminal Procedure Act 2011 provides a court may suppress “publication of the name, address or occupation of a person who is … convicted … of an offence”, “only if the court is satisfied that publication would be likely to … cause extreme hardship to the person … convicted … of the offence, or any person connected with that person”.

8 At [7].

9 At [8].

10 At [11].

11 At [13].

12 At [12].

13 At [14].

[8]                There are two stages to assessing whether this test is met.14 The first is whether the publication is likely to cause extreme hardship. “Likely” means there is an appreciable and/or real risk.15 “Extreme hardship” was characterised by the Court of Appeal in Robertson v Police as “a very high level of hardship”; hardship meaning “severe suffering or privation”.16 The Court stated the assessment is self-evidently contextual and “must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published”, being “something beyond the ordinary associated consequences”.17 The second stage is assessing the competing interests, in my discretion.18 The balance must “clearly favour” suppression for it to be granted.19

[9]                In NN v Police, a general practitioner stated the offender’s mother was “at significant risk of severe adverse health impacts” and was concerned “that if suppression is not granted his patient’s health will be even more affected, which might cause her crippling anxiety and severe depression with a risk of self-harm”.20 Asher J did not “consider it likely that publication will endanger NN’s mother’s safety or cause extreme hardship to her”. He agreed with the District Court that what had brought about the stress had been publicity surrounding her son to date, and while publication of his name would undoubtedly be a distressing event, it “must be seen as just one event in a sequence of distressing events”.21

[10]            In Q v Customs, the High Court allowed an appeal and granted permanent name suppression.22 There was expert medical evidence there that the wife of an objectionable publication offender suffered from a rare heart condition in which stress triggered episodes of irregular heartbeat which could cause her sudden death. Thomas J was not satisfied the nature of the offending meant any greater weight should be attached to the public interest in openness than with any other type of offending.23 But

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

15     NN v Police [2015] NZHC 589 at [20]-[21].

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

17 At [49].

18     At [40]-[41].

19     D (CA443/2015) v Police, above n 14, at [12].

20     NN v Police, above n 15, at [45].

21 At [47].

22     Q v New Zealand Customs [2014] NZHC 2398.

23 At [26].

she considered “the stated harm or risk of harm is a real and appreciable possibility”, “must endanger [her] safety” and constituted extreme hardship for her and her children.24

Application here

[11]            Mr R now applies for permanent name suppression, pursuant to the leave reserved by Whata J. Ms Butler, for Mr R, submits there is fresh medical evidence available which shows that Mr R’s mother remains at least as vulnerable to publication harm as she was at the time of Whata J’s decision. She submits the same reasoning as applied by Whata J means the court can be satisfied there is a proper basis for name suppression. His mother had a further operation in May 2019 and is on a waitlist for double-strength chemotherapy. Her general practitioner says she has “a long and difficult treatment and recovery ahead of her” and she has “grave concerns that lifting her son’s name suppression will add to the suffering she is already experiencing” and “will adversely affect her chances of making a complete recovery”.25 The oncologist’s report says it is an unusual situation and she at high risk for further microscopic disease.26 Ms Butler relies on the psychologist’s previous research-based statement that:

Research constantly identifies the strong relationship between physical and mental health. Any deterioration in [the mother’s] mental health would lead to further decompensation in her physical health, in particular her capacity to recover from cancer.

[12]            Ms Butler also relies on an affidavit from the mother saying her family support is no longer well placed to buffer her from the consequences of name suppression being lifted because her son is in prison. Mr R’s appeals for permanent name suppression “to keep me from further damage, severe depression and uncertainties”.27 Ms Butler submits, relying on Q v Customs, Mr R’s mother could be exposed to potentially fatal consequences of publication and the consequences of publication for her recovery are a grave situation and an appreciable and avoidable risk. She submits the evidence demonstrates a real and appreciable risk to her health, sufficient to tip the

24     At [54] and [56].

25     Letter of 17 June 2019.

26     Letter of 26 June 2019 at 2.

27 Affidavit of 3 July 2019 at [19].

balance in favour of permanent name suppression. She acknowledges the offending is at the high end of the scale but submits this is an exceptional case where the interests of justice require name suppression.

[13]            Mr Becker, for Customs, distinguishes Q v Customs on the basis of a more substantial and closer causative link between publication and the effect on health there. He relies on NN v Police. He acknowledges publication may be stressful and upsetting for Mr R’s mother, exacerbated by her current medical diagnosis. But he submits the medical evidence does not meet the high threshold for name suppression in relation to these serious offences. He points to the note in the medical evidence now before the Court that recovery was uneventful. He submits the evidence is too vague and falls short of the Court deciding the consequences are likely to represent extreme hardship. He also submits there are strong counterbalancing reasons why name suppression should not be continued: there is a presumption in favour of openness; particularly here given the gravity of the offending; and there are no identifiable victims.

Should Mr R’s name be suppressed?

[14]            I do not consider the threshold, of publication of Mr R’s name being likely to cause extreme hardship, is met here. I have no doubt publication will be distressing to his mother. And I accept there is a strong relationship between physical and mental health. But in order to be satisfied the threshold is met I have to be satisfied there is a real and appreciable risk that publication of Mr R’s name will cause extreme hardship to his mother, over and above the inevitably stressful consequences that would normally be associated with the name of such an offender being published. That requires a direct causal link to a specifically identified consequence constituting extreme hardship and a real and appreciable risk that consequence will occur. Unusually, that was satisfied in the circumstances of Q v Customs. I consider this case is more like that of NN v Police, where it was not. The medical evidence now before the Court does not satisfy me there is a real or appreciable risk that publication of Mr R’s name will directly cause his mother extremely severe suffering or privation over and above the inevitable consequences of such publication. I also note the value of public interest in open justice is important. The seriousness of the offending here adds

to that. My decision is consistent with the signal given by Whata J in his judgment of what may happen after the interim order he made expired.

[15]            I decline the application. Because Ms Butler indicates Mr R will appeal my decision, I continue interim suppression of his name under s 200 of the Criminal Procedure Act 2011, until the appeal period of 20 working days after today (or any extended period that may be set by the Court of Appeal) has expired or, if an appeal is filed, until the appeal is determined.

Palmer J