Raynes v NZ Custom Service - [2024] NZHC 1209

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2024-419-000039

[2024] NZHC 1209

BETWEEN
DANIEL JAMES RAYNES

Appellant

AND

NZ CUSTOMS SERVICE

Respondent

Hearing: 14 May 2024

Appearances:

G D Prentice for the Appellant

S R Hartstone for the Respondent

Judgment:

15 May 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 15 May 2024 at 4.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Hamilton
G D Prentice, Barrister, Hamilton

RAYNES v NZ CUSTOMS SERVICE [2024] NZHC 1209 [15 May 2024]

Introduction

[1] The appellant appeals the decision of Judge R P Marshall declining his application for permanent name suppression.1

[2] The appellant was convicted of 11 charges: seven charges of distributing objectionable publications knowing or having reasonable cause to believe the publication was objectionable;2 two charges of without wilful authority or reasonable excuse possession of objectionable publication knowing that the publication is objectionable;3 and two charges of making an objectionable publication knowing or having reasonable cause to believe that the publication is objectionable.4

[3]The appellant appeals on the grounds that:

(a)publication of his name would cause extreme hardship to H and the three children; and

(b)publication of his name would lead to identification of H whose name has been suppressed.

[4] I therefore need to determine whether the Judge erred in finding that there was no risk of extreme hardship to H or the children, and/or declining to grant name suppression despite ordering that H’s name be suppressed.

Offending

Classification of objectionable publications

[5] The 2014 UK sentencing guidelines for sexual offences are applied when classifying the seriousness of objectionable publications, as follows:5

1      R v Raynes [2024] NZDC 7060.
2      Films, Videos and Publications Classifications Act 1993, s 124(1) and (2)(a). Maximum penalty of 14 years’ imprisonment.
3      Section 131A(1) and (2)(a). Maximum penalty of 14 years’ imprisonment.
4      Section 124(1) and (2)(a). Maximum penalty of 14 years’ imprisonment.
5      United Kingdom Sentencing Council Sexual Offences Definitive Guideline (April 2014) as referred to in B v Dept of Internal Affairs [2023] NZHC 3558; Magill v R [2022] NZHC 2455; and Snell v R [2022] NZHC 1627.

(a)Category A describes penetrative sexual activity, bestiality and/or sadism.

(b)Category B describes non-penetrative sexual activity.

(c)Category C describes otherwise indecent images not falling within category A or B.

[6] Mr Raynes operated a number of social media usernames across six social media accounts.

[7] The details of the offending are set out in the summary of facts. In summary, on various dates between 2020 and 2023, the appellant uploaded and/or distributed objectionable publications of child sexual exploitation material (CSEM). Some publications were distributed to others via private messages. The appellant also made CSEM publications by screen recording publications. The publications were categorised with different publications falling within category A, B or C. The appellant was found in…

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 Raynes v NZ Custom Service

Details

AGLC: Raynes v NZ Custom Service [2024] NZHC 1209
Case: [2024] NZHC 1209
Decision Date: 15 May 2024

CaseChat Overview and Summary

Daniel James Raynes appeals against the decision of Judge R P Marshall, who declined his application for permanent name suppression. Raynes was convicted of 11 charges related to the distribution and possession of objectionable publications, specifically child sexual exploitation material (CSEM). Raynes argues that publication of his name would cause extreme hardship to his partner, H, and their three children, and would lead to the identification of H, whose name has been suppressed. The High Court must determine whether the Judge erred in finding that there was no risk of extreme hardship to H or the children, and/or in declining to grant name suppression despite ordering that H’s name be suppressed.

The court must consider whether the publication of Raynes' name would likely cause extreme hardship to H and/or the children. The Court of Appeal has defined "extreme hardship" as something more than "undue hardship" and something more again than "hardship." The court must be satisfied that publication would be "likely" to result in extreme hardship, which means a "real and appreciable possibility." The Judge found that while publication would cause hardship, it did not meet the very high level that is extreme. The court found that H's concerns, though valid, were based on potential consequences that were not supported by expert evidence or any extraordinary circumstances indicating a real risk of extreme hardship.

The court also considered whether the publication of Raynes' name would lead to the identification of H, whose name has been suppressed. The court noted that while the threshold for suppression under s 200(2)(f) of the Criminal Procedure Act 2011 had been met, the balance of factors did not clearly favour suppression. The court referenced the Court of Appeal and Supreme Court decisions, which found that the balance did not justify name suppression when the connected person was not likely to suffer extreme hardship. The court found that the significant public interest in the nature of Raynes' offending, involving child sexual exploitation, weighed against permanent suppression.

The appeal is dismissed, and the decision of the District Court stands.

Orders