R v T

[2022] NZHC 1039

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI2019-063-3764

[2022] NZHC 1039

THE QUEEN

v

T

Hearing:	13 May 2022
Appearances:	A Gordon for Crown S Gray for Defendant
Judgment:	13 May 2022
Reasons:	13 May 2022

JUDGMENT OF LANG J

[on application for permanent suppression of name]

This judgment was delivered by me on 13 May 2022 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Rotorua

R v T [2022] NZHC 1039 [13 May 2022]

[1]                 Ms T pleaded guilty in this Court to charges of murder, injuring with intent to injure and wilful ill-treatment of a child (x2). On 13 May 2022, I sentenced her to life imprisonment on the charge of murder and ordered her to serve a minimum term of 17 years before being eligible for parole.1 I imposed concurrent sentences on the remaining charges.

[2]                 Prior to sentencing Ms T had applied for an order permanently suppressing her name and identifying features from publication. I dismissed that application at the commencement of the sentencing hearing on 13 May 2022. However, at the Crown’s suggestion I made an order suppressing the names of her children from publication. I now give my reasons for these decisions.

Background

[3]                 The charges arise out of the physical abuse and ultimate death of Ms T’s 18 month old daughter. The post-mortem examination revealed that her death had been caused by blunt force trauma that was sufficient to cause both subdural and subarachnoid haemorrhaging. In addition, the victim was found to be malnourished and to have suffered from numerous other injuries inflicted earlier. The most significant of these was a fractured clavicle. She also had scratch marks all over her body, a torn frenulum, missing and loosened teeth and severe nappy rash.

[4]                 I considered that a minimum term of imprisonment of 18 and a half years would ordinarily have been appropriate to reflect the overall gravity of Ms T’s offending.2 I accepted that this should be reduced to reflect very late guilty pleas and Ms T’s appalling upbringing. However, Ms T’s offending engaged s 104 of the Sentencing Act 2002 because of the vulnerability of the victim. This meant I was required to impose a minimum term of imprisonment of not less than 17 years imprisonment unless I considered it was manifestly unjust for such an order to be made. The mitigating factors that I identified would ordinarily have reduced the minimum term to one of 16 years three months. Notwithstanding this fact I was

1      R v T [2022] NZHC [Redacted].

2 At [21].

satisfied it would not be manifestly unjust to require Ms T to serve a minimum term of 17 years imprisonment before being eligible to apply for parole.3

The application for permanent suppression

[5]                 Ms T contends she will suffer extreme hardship if name suppression is not granted because any publication of her name and identifying particulars at this stage will significantly impede her rehabilitative prospects. She also contends her children will suffer extreme hardship because the public will learn that their mother has pleaded guilty to killing their sibling. She says this is likely to have significant negative consequences for them in the future.

Jurisdiction

[6]                 Ms T relies on s 200 (2)(a) of the Criminal Procedure Act 2011 as providing the Court with jurisdiction to make the order she seeks. Section 200 relevantly provides as follows:

200     Court may suppress identity of defendant

(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

(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

(b)cast suspicion on another person that may cause undue hardship to that person; or

(c)cause undue hardship to any victim of the offence; or

(d)create a real risk of prejudice to a fair trial; or

(e)endanger the safety of any person; or

(f)lead to the identification of another person whose name is suppressed by order or by law; or

3 At [32].

(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(h)prejudice the security or defence of New Zealand.

(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

…

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims' Rights Act 2002.

[7]                 It is now well established that an application for suppression under s 200 requires the Court to undertake a two-step process.4 The first step involves a determination as to whether any of the threshold criteria described by s 200 have been established. If one or more of these have been established, the Court will exercise its discretion by undertaking a balancing process that weighs the qualifying criteria against the principles that favour the open reporting of criminal proceedings.

Reasons

[8]                 I am satisfied Ms T’s application does not meet the statutory criteria to justify an order for suppression for several reasons. First, Ms T’s name and photograph have already been published on numerous occasions in the news media. There was also significant publicity when she absconded in February 2021 just days before her trial was originally scheduled to commence. It would be a simple matter for members of the public to link this publicity with that given to the sentencing. Suppression at this stage will therefore be of little practical utility.

[9]                 Secondly, Ms T is 28 years of age and has already endured significant publicity about these proceedings. There is no evidence that this has had any impact on her beyond what would ordinarily be expected in a case of this type.

4      Fagan v Serious Fraud Office [2013] NZCA 367 at [9].

[10]              Thirdly, any publicity about the sentencing is unlikely to last for more than a few days. During this period Ms T will be in prison where she can take steps to ensure she is not exposed to such publicity as occurs.

[11]              Fourthly, Ms T will not be eligible to apply for parole for many years. She therefore has ample time within which to undertake such rehabilitative and therapeutic measures as she and the prison authorities consider appropriate.

[12]              Fifthly, Ms T has not provided any medical or other evidence to support her contention that her rehabilitative prospects will be significantly diminished if publication occurs at this stage. In the absence of such evidence I do not consider there is any material risk that publication of Ms T’s name at this stage will seriously harm her rehabilitative prospects.

[13]              Sixthly, I ameliorated the impact of sentencing for Ms T by declining applications by news media organisations to film and/or take still photographs of her during the sentencing hearing. Those organisations already have ample photographic images of Ms T in their archives. I did not consider it was necessary for them to augment these by filming or photographing Ms T as she was being sentenced.

[14]              Finally, as I understand the position, Ms T’s other children are now residing with family members in another region. At least two of them have a different surname to Ms T. Their caregivers can take steps to ensure the children are shielded from any publicity about the sentencing. Furthermore, there is nothing before the Court to suggest the children are likely to be affected by publicity about their mother’s sentencing to any greater extent than would ordinarily be the case involving offending of this type.

[15]              The Crown points out that two of the children are named in the summary of facts. There is no public interest in their names being published and they may suffer undue hardship if that occurs. I therefore accept the Crown’s submission that it is appropriate to make an order that their names are not to be published. I made an order accordingly.

Result

[16]              For these reasons I dismissed Ms T’s application for permanent suppression of her name and identifying particulars.

Lang J