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 possession of hundreds of publications of CSEM.

District Court decision

[8]        The Judge sentenced the appellant to three years’ imprisonment and declined permanent name suppression on 27 March 2024.

[9]        At the time of the application, the children were aged four, two, and nine months. H filed an affidavit in support of the application providing evidence of H’s concerns that publication may result in the children being isolated, ostracised, or bullied. H was also concerned that persons may assume that the children were the victims of the offending.

[10]      H also deposed as to concerns for H’s mental health and risks to the safety of the family because the family live in a small community which H considers is “judgemental.”

[11]      The Judge was not satisfied that the test for extreme hardship had been met noting that the hardship must go beyond the ordinary consequences associated with criminal offending. There was nothing in the circumstances that indicated that H or the children would be likely to suffer extreme hardship.

[12]      While declining the application for name suppression, the Judge suppressed H’s name given the evidence H had provided in support of the application.

Legal principles

[13]      Section 200 of the Criminal Procedure Act 2011 (CPA) confers a discretion on the court to grant name suppression. The appellant relies on s 200(2)(a) and (f) in arguing that permanent name suppression should have been granted, which provisions provide 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

…

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

…

[14]      Determining whether to order name suppression involves a two-stage inquiry. First, whether any of the thresholds in s 200(2) have been established, and second, whether in the exercise of the court’s discretion, an order should be made.6 At the second stage, the principle of open justice is weighed against factors in favour of

6      D (CA443/2015) v Police [2015] NZCA 541 at [10].

suppression, and the balance must “clearly favour” suppression for an order to be made.7 The ultimate question being whether open justice should yield.8

Analysis

[15]      The first stage involves consideration of the threshold question under s 200(2). I consider each ground of appeal in turn.

Is publication likely to cause extreme hardship to H and/or the children?

[16]      The Court of Appeal has provided guidance on the meaning of both “extreme hardship” and “undue hardship” in Robertson v Police:9 “Hardship” on its own means “severe suffering or privation”, the qualifier “undue” means something more, and “extreme” indicates something more again.10 An assessment of “extreme hardship” must not be undertaken in a vacuum and is contextual.11

[17]      Consequences that go beyond the natural consequences of criminal offending are required to establish “extreme hardship.” The Supreme Court has confirmed this approach in M (SC 13/2023) v R noting that the assessment is a contextual exercise and will involve some comparison between the hardship contended for and the usual consequences of publication.12 The inquiry is an objective one, in that the Court must form its own view.13

[18]      The Court must be satisfied that publication would be “likely” to result in extreme hardship. “Likely” means a “real and appreciable possibility.”14 For the Court to be satisfied it must make up its mind on reasonable grounds, that is, come to a decision on the evidence before it.15

7 At [12].

8 At [12].

9      Robertson v Police [2015] NZCA 7.

10 At [48].

11     At [49] citing Jeffries v Police [2014] NZHC 2379 at [24].

12     M (SC 13/2023) v R [2024] NZSC 29 [Supreme Court suppression decision] at [70].

13 At [70].

14     Stuff Ltd v R [2021] NZCA 86 at [17] citing W (CA639/2016) v R [2017] NZCA 580 at [18].

15     R v White [1988] 1 NZLR 264 (CA).

[19]      Mr Prentice for the appellant submitted that the Judge erred in finding that the extreme hardship test was not met by considering that the consequences to H and the children only amounted to distress and embarrassment. Mr Prentice argued that if the Court was satisfied that the children would be subjected to isolation, bullying or exclusion, that would amount to extreme hardship. Equally, the threshold would be met if, because of publicity, the family were subjected to a tirade of abuse either directly or on social media platforms.

[20]      While the Judge accepted that publication would cause hardship, the Judge was not satisfied that it met the very high level that is extreme. The Judge did not consider there was anything extraordinary about the circumstances despite the consequences giving rise to distress and embarrassment. The key issue is whether the evidence of H indicates that there is a real possibility of extreme hardship.

[21]      The children are very young (under five years’ old). There is no expert evidence as to the consequences of publication on the children. H’s evidence is based on concerns that the young children will face isolation, exclusion and bullying as they get older because of the nature of the offending. H is also concerned that the offending will have a lasting presence through the internet and that members of the community may speculate that the children are victims of the offending when they are not. H’s concerns arise by reason of the nature of the offending and the fact of the internet. I do not accept that H’s concerns alone provide a sufficient evidential foundation on which to find that those consequences are a real possibility and that they would result in extreme hardship. There is no evidence as to the potential impact of any isolation, exclusion or bullying on which the Court can find extreme hardship.

[22]      The concerns raised would equally apply to all children of offenders of this type of offending. The evidence rests on H’s concerns as to the potential consequences for her children but it does not establish a real and appreciable risk of such consequences eventuating or being “extreme.” In these circumstances, I do not consider that the Judge erred in finding that there was nothing extraordinary about the circumstances which indicate extreme hardship.

[23]      H also deposed as to concerns about her mental health if the appellant’s name is published. Again, those concerns were not supported by any medical evidence as to H’s mental health. H deposed that those concerns arise because of the small community in which they live, including that “there may be threats or anger directed at our family.” H expressed concerns about being at their address with three young children, including concerns for their safety. H referred to the community Facebook page and said people “are very judgemental.”

[24]      Again, the evidence does not disclose any extraordinary circumstances and the fact of a small community, while increasing the likelihood that people may know H and the children, does not on its own indicate that extreme hardship is a real risk.

[25]      It follows that I am satisfied the Judge did not err in finding that publication was not likely to cause extreme hardship to H and the children.

Is publication likely to lead to identification of H whose name is suppressed?

[26]      The appellant relies on the Judge’s suppression of H’s name. In that regard, the Judge held:16

[77] I decline the application for permanent name suppression, but I do suppress the name of Ms H. I do not see that there is any public interest in the publication of her name in connection with this application. That is just for the purposes of the application for permanent name suppression and the reasons I have given her name is to be suppressed.

[27]      An order for suppression of H’s  name  could only have been made under      s 202(2)(a) of the CPA on the basis that publication would cause undue hardship to H.

[28]      It is implicit in the Judge’s decision that the Judge was not satisfied that the appellant’s name should be suppressed under s 200 but was satisfied that H’s name should be suppressed under s 202(2)(a) given the evidence H had provided in support of the appellant’s application.

16     R v Raynes, above n 1 at [77].

[29]      Mr Prentice submitted that in finding that H’s name should be suppressed, the Judge should have considered whether the appellant’s name should be suppressed by reason of s 200(1) and s 200(2)(f).

[30]      Mr Prentice argued that publication will lead to the identification of H and referred to the recent Supreme Court decision in M (SC 13/2023) v R17. The High Court had not suppressed M’s name, the sibling of LF, who had argued that they would suffer extreme hardship if LF’s name was published.18 The Court of Appeal then allowed M’s  appeal, accepting that publication would cause undue hardship under    s 202(2)(a).19 The Court of Appeal dismissed M’s appeal insofar as it sought suppression of LF’s name under ss 200(1) and 200(2)(f).20

[31]      The Court of Appeal assumed (without deciding the point) that it was likely there was jurisdiction to grant name suppression where there is a connected person who has name suppression under s 202 but who cannot point to extreme hardship for the purposes of s 200(2)(a).21 The Court of Appeal considered that in those circumstances, the discretion at stage two is unlikely to be exercised in favour of granting name suppression.22 The Court of Appeal noted that the applicant could not justify suppression in his own right, and the harm that publication would cause the connected person did not reach the level of extreme hardship. The victims also opposed name suppression. The Court of Appeal declined to grant name suppression to LF.

[32]      The Supreme Court proceeded to consider M’s appeal on the same basis that the Court of Appeal did and assumed that the jurisdictional threshold was met. The Supreme Court upheld the Court of Appeal’s decision not to grant LF name suppression finding that the balance did not justify name suppression:23

[108] We are satisfied, essentially for the reasons given by the Court of Appeal, that the balance does not favour suppression of LF’s name. While, as the Court of Appeal acknowledged, it cannot be certain that suppression of

17     Supreme Court suppression decision, above n 12.

18     LF v R [2022] NZHC 254 [High Court suppression decision].

19     LF (CA596/2022) v R [2022] NZCA 656 [Court of Appeal suppression decision].

20 At [50].

21 At [44].

22     At [44] citing Solicitor-General v [A] [2016] NZHC 2643 at [60].

23 Supreme Court suppression decision, above n 12, at [108].

M’s name on its own will be effective to protect M from hardship, a court will not “lightly assume” that a suppression order will not be effective, particularly where (as in M’s case) the justification for it is obvious. The media can be expected to respect the name suppression order relating to M, with a flow-on effect to the use of their name on social media. We emphasise that M, while a connected person, has played no part in the offending.

[33]      H is in a similar position here where H has played no role in the offending. It is implicit in the Court of Appeal and Supreme Court’s analysis that the threshold under s 200(2) had been met and the application for name suppression was declined at stage two, when the principle of open justice is weighed against factors in favour of suppression. The balance must “clearly favour” suppression for an order to be made.

[34]      I accept that the threshold under s 200(f) has been reached here and the issue is whether the balance clearly favours suppression.

Was the Judge plainly wrong in declining to grant name suppression after finding that H’s name should be suppressed?

[35]      While the Judge did not appear to consider whether the appellant’s name should be suppressed after suppressing H’s name, it is implicit in the decision that the Judge was not satisfied that it should. Even if the Judge was satisfied that the threshold in s 200(2)(f) was met, it does not follow that the Judge would have suppressed the appellant’s name.

[36]      The Court of Appeal name suppression decision indicates that it is unlikely that a court would exercise its discretion in favour of granting suppression in circumstances where s 200(f) is engaged and the Court is not satisfied that the connected person is likely to suffer extreme hardship.24

[37]      Mr Prentice sought to distinguish the Supreme Court suppression decision on the basis that the offending in that case was more serious than this offending and was subject to significant commentary and criticism and hence open justice considerations had to be given greater weight. Mr Prentice argued that while the appellant’s offending was serious, it is not going to attract the level of publicity that LF’s case attracted so open justice considerations are less prevalent.

24 Court of Appeal suppression decision, above n 19, at [44].

[38]      I do not consider that the level of publicity a particular case attracts necessarily indicates the level of public interest as there is a difference between what is in the public interest and what the public might find interesting. I consider that there is significant public interest in offending that involves child sexual exploitation. LF’s offending involved sexual offending by a young person (aged 14 to 17) against victims who were mostly of his age. Here, the appellant is an adult, and the offending involves distribution of objectionable publications involving child sexual exploitation. There is significant public interest in both types of offending.

[39]      There is clearly public interest in knowing the character and identity of the appellant given the nature of the offending and the need to keep children safe. I accept the Crown’s submission that the very serious nature of the offending weighs against permanent suppression.

[40]      Further, as was the case in the Court of Appeal name suppression decision and the Supreme Court name suppression decision, it is expected that the media will respect the suppression order in place in relation to H.

[41]      Mr Prentice submitted that it may be appropriate to suppress the name of the town where the appellant resides as this may mitigate any risk of identification of H. In circumstances where there is significant public interest in the nature of the offending, I am not satisfied that the balance weighs in favour of suppressing that information. H has a different name to the appellant.

[42]      I am not therefore satisfied that the Judge erred in declining to grant permanent name suppression.

Result

[43]The appeal is dismissed.

Tahana J