R v P
[2023] NZHC 842
•19 April 2023
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-71
[2023] NZHC 842
THE KING v
P
Hearing: 19 April 2023 Appearances:
A L Mills for the Crown
M E Rout and M R Rout for the Defendant
Judgment:
19 April 2023
SENTENCING REMARKS OF HARLAND J
Introduction
[1] [P], you appear before the Court for sentence, having pleaded guilty to a charge of assault with intent to injure Jared Little. The maximum penalty for this offence is a term of three years’ imprisonment. The issue for me in sentencing you today is whether I should impose a short term of imprisonment or something less than that.
[2] There is a process I must follow in sentencing you. I will first outline the facts to which you have pleaded guilty. I must then consider the appropriate starting point
R v P [2023] NZHC 842 [19 April 2023]
for your sentence, what that should be, bearing in mind the purposes and principles of sentencing that are set out in ss 7 and 8 of the Sentencing Act 2002. After that, I will consider matters personal to you which might justify a deduction from the starting point. I will consider all of these matters before I reach my final view about what your end sentence should be. And, after that, I will consider your application for permanent name suppression.
Facts
[3]So, first, dealing with the facts.
[4] Tragically, on 20 October 2019, Jared Little was stabbed to death by Thomas Ellery. Mr Little was your eldest daughter’s former partner and Mr Ellery was her current partner. Mr Ellery and Mr Little did not know each other. However, you and Mr Little did. You told the probation officer who prepared a report for the Court that you and Mr Little became friends and your friendship continued after your daughter and his relationship ended.
[5] On 7 October 2019, a brick was thrown through the bedroom window at your daughter’s address when she and Mr Ellery were asleep in bed. The windows of a van belonging to Mr Ellery were also smashed. During this time, Mr Little had been attempting to get back together with your daughter, however she did not want to get back together with him. Your daughter and Mr Ellery believed that Mr Little was responsible for causing the damage to the window and van. They wanted to find him and pay him back for this. Your daughter spoke to other people to try to find out where Mr Little was staying. Both she and Mr Ellery visited a house he was at on 10 October 2019, but they were not able to find him there.
[6] At 8.42 pm on Saturday 12 October 2019, you sent a Facebook message to your daughter stating “get Jared at Steve place he needs a beating” and “for yr window”.
[7] During the afternoon of Sunday 20 October 2019, your daughter sent a text message to you asking if Mr Little was staying at a certain person’s address. She then
asked you in a text “is Jared still living with Steve”. You replied “yes definitely” and “go ad [sic] get him at his house”.
[8] At about 7.30 pm on the same day, your daughter and Mr Ellery travelled to the address where Mr Little was staying with his flatmate. There was an argument between Mr Ellery and Mr Little. During this argument, Mr Ellery stabbed Mr Little with a knife 13 times. Mr Little was fatally wounded and died.
[9] I acknowledge the presence today of Mr Little’s father. No doubt hearing about these terrible events brings back some of the grief that you will have experienced at the time.
[10] Mr Ellery pleaded guilty to murdering Mr Little and your daughter has pleaded guilty to his manslaughter.
[11] Your involvement is limited to the messages you sent to your daughter. Importantly, neither of the messages were sent to the main offender, Mr Ellery, who was responsible for stabbing and murdering Mr Little. You played no part in the actual assault that led to Mr Little’s death. It is relevant in my view that your daughter appeared to be aware of where Mr Little was staying when she texted you on the day Mr Little was stabbed. However, your messages to your daughter show that you clearly supported Mr Little being given a beating. Giving someone a beating is a serious thing and encouraging someone to give someone else a beating is also a serious thing.
[12] I agree with the lawyers that the circumstances of your offending are unique. There are no similar cases to help me to decide what your sentence should be. I also agree with your lawyer that people are not often charged with being a party to an assault that they took no physical part in, however the law provides, nonetheless, for this to occur. You were clearly, in my view, a party to an assault with intent to injure by, at the very least, counselling or encouraging your daughter to “get Jared” because you said to her that he needed a beating. The text message on the day Mr Little was murdered - “go and get him at his house” - also tells me that you agreed Mr Little should get a beating. But I accept that you were not aware that what your daughter
and Mr Ellery were going to do would end in Mr Little’s death. This is important because, even though the maximum penalty for your offending is a term not exceeding three years’ imprisonment, imprisonment is not automatically the sentencing outcome where a person is a party to offending like this. It all depends on the extent of the person’s involvement in the offending.
[13] I have decided that I do not need to start with a term of imprisonment for your offending. But, with your sentence, I do need to recognise the hurt you caused and strongly discourage you from behaving like this in the future. It is important for me now to consider your personal difficulties and challenges.
Personal circumstances
[14] I now address your personal circumstances. You are currently 53 years of age. You have one previous conviction in 2013 for driving with excess blood alcohol where you were fined, ordered to pay some costs and disqualified from driving for a period of six months. The previous conviction is not relevant to your offending in this case. No uplift is required.
[15] You were initially charged as a party to Mr Little’s murder. A challenge to the admissibility of your statement to the Police was raised and, once a report by Dr Jon Nuth addressing your issues was provided, the charge was amended to the charge to which you have pleaded guilty. I will address Dr Nuth’s report shortly but I agree with the lawyers that the amended charge was not before Dr Nuth’s report and therefore up to 25 per cent credit for your guilty plea is available. I agree that the maximum credit of 25 per cent should be applied for your guilty plea. I have taken this view, bearing in mind also what you told the probation officer about your daughter and Mr Ellery’s offending. I accept that you were shocked when you found out what had happened to Mr Little and you feel ashamed of your actions. You told the probation officer you wished that Mr Little was still alive. You consider you were set up by your daughter, a position I accept for the reasons I will outline in a moment.
[16] The reports prepared by Dr Nuth and Dr Olive Webb, both clinical psychologists, provide information that supports not only the reduction of the charge but they assist me to decide what the sentencing outcome for you should be. You have
intellectual and cognitive deficits in conjunction with mental health difficulties, including trauma, anxiety and a history of alcohol abuse. As the probation officer notes, it is likely that these matters explain the poor decisions you made to send the two messages to your daughter.
[17]In E v R, the Court of Appeal held:1
A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because
A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.
[18] In E v R, the Court reviewed various sentencing decisions and found that discounts of between 12 and 30 per cent were applied where mental illness or impairment has contributed to offending.2
[19] Dr Nuth’s conclusion is that you are currently functioning at a level congruent with intellectual disability.3 He states that you should be treated as someone with “significant intellectual and cognitive deficits”.
[20] The Crown accepts that credit is available for your personal background. This is an appropriate and responsible submission to have made.
[21] Your lawyer has referred to your many difficulties and challenges, and has, at paragraphs 9 to 13 of his submissions, referred to Dr Nuth’s findings after he had completed the various assessments he needed to do to understand them. And, although it may be difficult for you to hear these things, it is in the public interest, which is part of my sentencing function, that I need to now refer to them.
[22]In summary, you scored:
1 E (CA 689/2010) v R [2011] NZCA 13 at [68] (footnotes omitted).
2 At [71].
3 Dr Nuth’s report at 86.
(a) an overall IQ in the bottom 1 per cent of the population with perceptual reasoning in the bottom 3 per cent and working memory and verbal comprehension in the bottom 1 per cent;4
(b) you also scored extremely low ABAS-3 scores in “communication” and “social” areas and in the composite domain, extremely low in conceptual and social skills.5
[23] As well, you are willing to please others, have deficits in verbal comprehension and working memory, and display characteristics of impulsivity, an inability to hold more than one competing idea and you appear to be immature.6 You also display features of suggestibility and acquiescence, driven by what Dr Nuth described as your “cognitive weaknesses” and “a willingness to please”.
[24] It is also clear to me that your living situation in Christchurch at the time did not help you to deal with your underlying difficulties and challenges. You were drinking heavily and regularly, and living in a flatting situation. Although you were employed, you were vulnerable because you were not receiving the level of support you needed to responsibly function in the community.
[25] I contrast this with your living situation now. You are living with your parents [out of Christchurch]. You have a job at which you are doing well, and you have remained alcohol and drug free for almost two years. That is a considerable achievement about which you should be very proud. You are attending AA meetings regularly, which is something that has been independently confirmed by other people. You take part in the AA meetings and appear very motivated to maintain an alcohol- free life. These are all very good, positive things to have done. And, I have no doubt and acknowledge the presence and support of your parents as being a very, very important part of that.
[26] In my view, the matters referred to in the reports, particularly those I have just referred to [in paras [22] and [23] above], are what we call causatively linked to your
4 WAIS-IV scores - Dr Nuth’s report at 48 and 49.
5 At 53.
6 At 49.
offending. Because of this, your responsibility for the offending is reduced. This supports my view that a sentence of a term of imprisonment is not the appropriate starting point.
Sentence
[27]So, I am now going to outline what my sentence is.
[28] The pre-sentence report recommends a sentence of supervision but, given your difficulties, the probation officer thinks it is unlikely you will be able to participate meaningfully in programmes that are aimed at addressing your offending-related needs. However, the steps you have taken with the support you have received since you have been living back with your parents are encouraging and suggest that oversight by Community Corrections will assist you to address your difficulties and manage your behaviour appropriately.
[29] I am persuaded that a sentence of supervision is an appropriate sentencing outcome but it alone, in my view, does not fully address the need for deterrence and denunciation. I am persuaded that community detention is also required for these sentencing principles to be met.
[30] I impose a sentence of supervision for a period of 12 months with the conditions as recommended in the pre-sentence report. I also impose a sentence of community detention for a period of four months. This sentence is to be served at the address that appears in the pre-sentence report with the curfew as outlined in that report. The only matter that will need to be confirmed is when the first curfew can begin and I will need to hear from counsel about that.
[Judge has a brief discussion with counsel]
[31] I will make the first curfew to begin on 20 April 2023. If there is any difficulty with that, I will allow leave to apply to amend that curfew should it not be able to be organised in time.
Should permanent suppression of your name be granted?
[32] The next question I need to deal with and determination I need to make is about permanent suppression of your name. And this, [P], is where it gets a bit legal. I have to go through quite a few complicated matters that you can, if necessary, go through with your lawyer and communications assistant afterwards. But, again, because it is important for other people, including the Press here, I need to go through it fully.
[33] [P], you have asked me to make an order permanently suppressing your name. The application is made on the basis that the publication of your name would cause “extreme hardship” to you and to your youngest son.
The suppression regime
[34]First, dealing with the suppression regime.
[35] Suppression of names in criminal proceedings is provided for in s 200 of the Criminal Procedure Act 2011 (the CPA). Section 200(1) gives the court a discretion to prohibit publication of the name and other details of persons charged with, convicted or acquitted of an offence.
[36] The grounds for which suppression may be ordered are set out in s 200(2) of that Act. And, for the purposes of this application, s 200(2)(a) is of relevance. It provides:
200 Court may suppress identity of defendant
…
(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
…
[37] Section 200(6) requires the Court to take into account a victim’s view when making a permanent suppression order.
[38] The starting point for consideration of a suppression order on any of the grounds identified in s 200(2) is the presumption of open justice.7 Publication is the norm.8 The business of the courts should be conducted publicly, and any departure from this general rule ought only to be to the extent necessary to serve the ends of justice.9 If the offending is very serious, the presumption of open justice is favoured.10
[39]A two-stage inquiry is required.11
[40] Stage one requires the Court to consider whether any of the grounds in s 200(2) are met. In determining whether a ground is “likely to” occur, a real and appreciable risk is required.12 This stage is dependent on the facts and focuses on an applicant’s personal circumstances.13 All aspects of alleged hardship are to be considered cumulatively as factors in a “hardship calculus”.14 In relation to the level of hardship required, the Court of Appeal has explained that “extreme hardship” is a phrase which “connotes a very high level of hardship”, noting that “hardship” on its own means “severe suffering or privation”15 and that the word “extreme” indicates something more again.16 It is a high threshold.
[41] Stage two requires the Court to determine whether to exercise its discretion to forbid publication of an applicant’s details.17 The competing interests must be weighed.18 The presumption of open justice is considered at this stage. To displace the presumption, “the balance must clearly favour” suppression.19
7 Robertson v Police [2015] NZCA 7; and D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614.
8 Robertson v Police, above n 7 at [44].
9 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
10 R v Liddell [1995] 1 NZLR 538 (CA) at 547.
11 D (CA443/2015) v Police, above n 7 at [10].
12 At [30].
13 R v Shailer [2015] NZHC 2607 at [7]; and DC (CA418/2015) v R [2015] NZCA 476 at [6].
14 X v R [2020] NZCA 387 at [48].
15 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 491.
16 Robertson v Police, above n 7 at [48].
17 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 7; and D (CA443/2015) v Police, above n 7.
18 Robertson v Police, above n 7 at [41], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].
19 D (CA443/2015) v Police, above n 7 at [12].
[42] The onus is on an applicant to satisfy the Court that it should order suppression.20
Submissions
[43]The Crown takes a neutral position in relation to your application [P].
[44] Your lawyer submitted that there is a real or appreciable possibility the publication of your name would cause you extreme hardship by making your mental health conditions, intellectual disabilities and your difficulties with alcoholism worse. And, he also referred to your updated medical position relating to thyroid difficulties which have resulted from stress, in part, associated with this proceeding. Your intellectual disabilities and your difficulties with alcoholism were also referred to. In light of these particular vulnerabilities, your lawyer submitted you are at risk of jeopardising the months you have remained sober.
[45] In relation to your son, your lawyer referred to Osborne J’s decision to continue your interim name suppression.21 Osborne J referred to the effect of publication on you but also noted that the second ground of “extreme hardship” to your [child] would also have been successful on its own.22 He said your [child] is “a particularly vulnerable child who has suffered much adversity” and acknowledged he was in a “most difficult situation”.23 Your lawyer submitted that this position has not changed
- your [child] remains in the care of a State approved whānau carer and your lawyer also highlighted that your surname, which your [child] carries, is unusual. And I note at this point that your daughter, who has pleaded guilty to manslaughter in relation to Mr Little, does not carry your name.
Evidence
[46] I now refer again to the reports from Dr Webb and Dr Nuth in support, which are relevant also to this application.
20 Robertson v Police, above n 7 at [44].
21 R v P […].
22 Above n 15 at [32].
23 At [32].
Dr Webb’s Psychologist Report
[47] Dr Webb provided a report dated 9 August 2021 regarding name suppression leading up to and during the proceedings. She interviewed you for four hours and also reviewed relevant records and medical notes.
[48] In her report, Dr Webb identified that you had little understanding of the charge you faced (at the time, being accessory to murder), difficulty remembering times or sequences of events, and did not know what was meant by name suppression. Dr Webb said you described your own mental health as “overloaded”. Dr Webb also referred to the difficulties you experienced at school and the abuse you received at the hands of a former partner, with whom you share three children. Your youngest [child] was born to a different father, and you had to give him up because of your drinking problem.
[49] Dr Webb referred to you having a history of anxiety and panic attacks, violent relationships, and years of excessive drinking and illicit drug consumption. She identified you as a poor attender at ongoing interventions designed to assist you and a person who has not taken prescribed medication because you could not afford it. You also had periods of suicidality.
[50] I note now that, because of your attendance at AA and the steps that you have taken, it shows that you have the ability, at least in relation to that, to attend interventions to assist you.
Dr Nuth’s Psychologist Report
[51] I have already addressed Dr Nuth’s findings which were undertaken after Dr Webb. I do not repeat these but highlight that Dr Nuth assessed you as having areas in her life where you cope well, such as managing money and functional literacy, and others where you tend to struggle.
Caregiver affidavit
[52] Your [child’s] approved caregiver provided an affidavit on 27 October 2021 describing the potential impact on your [child] if your name was publicised. She
explained that your [child] has been diagnosed with Post Traumatic Stress Disorder (PTSD) and experienced extreme behavioural issues when he first came into her care. This meant he could only be at school for one hour at a time. At the time of this affidavit, the caregiver explained that your [child] had significantly improved and was attending school everyday for the whole day. Her view was that, if your [child] found out the charges against you, a re-emergence of his past behaviours would occur. She was concerned for him at school, as others would recognise his surname, and this could cause issues. And I also refer to your lawyer’s submissions today that your [child] has been bullied at school for other reasons.
Victim’s view
[53] The Police have spoken to Mr Little’s parents regarding your application for permanent suppression and, unsurprisingly, they oppose suppression being granted. That is an entirely natural and rational and reasonable position to have taken.
Stage one: impact of publication on [P]
[54] I now turn to the assessment I am required to undertaken, and that is the impact of publication, first of all, on you.
[55] I have referred to the reports that identify your limited intellectual functioning and that, as a result, you have difficulty comprehending what is going on around you. Indeed, there appears to be a lack of understanding about what the name suppression is and the consequences that could follow should it not be granted. Your past history of mental health issues and susceptibility to panic attacks suggest that the publication of your name would only work to make these existing problems worse.
[56] I am satisfied that these matters show you are a particularly vulnerable person and I accept that the publication of your name would likely cause you distress and make your mental health difficulties worse. Your susceptibility to experiencing panic attacks could well be made worse by the publication of your name. I accept that added stress could cause you to relapse and abuse alcohol again. In my view, there is a real and appreciable risk that you would experience hardship if I do not grant permanent name suppression.
[57] This risk, however, must be of hardship that meets the “extreme” threshold. While acknowledging that there is a real risk that you will experience a degree of hardship, I do not consider it is to the high degree required. The same consequences would likely have followed the fact of conviction, and yet you have maintained alcohol free over this period. The strain on your mental health is also an ordinary consequence of being charged and convicted of offending. And, you have also had the benefit of support from your parents and others which has resulted in you maintaining a stable position.
[58] Although you were granted continued interim name suppression by Osborne J on the basis of the impact on you, I note this was based on the impact on your right to a fair trial, in particular your ability to participate in the trial.24 Osborne J’s reasoning is therefore not applicable to the situation now.
[59] I do not find the requirements of s 200(2) are met in relation to the hardship you may experience if suppression is not granted.
Stage one: impact of publication on [P’s] son
[60]I now consider the impact of publication on your son.
[61] Alternatively, s 200(2) and the first stage of the inquiry may be satisfied in relation to hardship faced by your son. In my view, publication of your name would cause him extreme hardship. Identifying you would enable him to be identified. Your surname is likely to be published in mainstream and social media which could impact the relationship he has with peers. I agree with your lawyer that your surname is an uncommon one and your [child] would easily be connected to your offending.
[62] I doubt, from what I know about your son, that he would be able to comprehend properly what your conviction means or how to deal with it. But, given his diagnosis of PTSD, I consider there to be a real and appreciable risk that the distress caused by publication could result in past behaviours returning, impacting social relationships and his ability to attend school.
24 Criminal Procedure Act 2011, s 200(2)(d).
[63] As well, although I do not determine the potential impact publication could have on your ability to stay alcohol free, in relation to the threshold in s 200(2)(a) directly, I do count it as a cumulative factor in regard to the hardship your [child] may experience should you face setbacks in your rehabilitation. Although you are not your son’s primary caregiver, you have regular contact with him and, if you relapsed, this would impact your son.
[64] Your [child] is a very vulnerable child; this fact remains despite the positive progress he has made in recent years. Although bullying, embarrassment, and an adverse impact on the relationship he shares with you are ordinary consequences of the actions of a person convicted of serious offending, his personal circumstances mean the level of hardship is enhanced.
Stage two: balancing competing interests
[65]I now balance the competing interests.
[66] I now consider whether it is appropriate to exercise the discretion to forbid publication of your details. The presumption of open justice must be displaced in order for me to grant suppression.
[67] On the one hand, the presumption of open justice is fundamental to public confidence in the judicial system. Justice needs to be seen to be done. The identification of the defendant is a crucial piece of that puzzle. On the other hand, your involvement in the offending was very limited, consisting only of two communications sent to [your] daughter leading up to and on the day of Mr Little’s murder. It was not extensive, nor did it involve any direct harm.
[68] I acknowledge the victim’s family are opposed to you receiving permanent name suppression. Although this must be considered, it is not determinative. Due to your low level of culpability, particularly in comparison with Mr Ellery and your daughter, who were convicted of murder and manslaughter, the consequences of publishing your name would vastly outweigh the gravity of your offending.
[69] In my view, the presumption of open justice is displaced in the present circumstances as it relates to your son, and it is appropriate for the Court to exercise its discretion and grant you permanent name suppression.
Conclusion
[70] So, in conclusion, I am satisfied that your interim name suppression should be made permanent. The likely impact on your [child] is sufficient to meet the “extreme hardship” test under s 200(2)(a).
Order
[71] I make a permanent order that the publication of your name, address and details is forbidden.
[72] So, that concludes the sentencing. You will now need to stand down [P] and arrange for the orders to be served upon you.
Harland J
Solicitors:
Raymond Donnelly & Co., Christchurch Prime Legal Ltd, Christchurch.