The King v Rene Bell
[2024] NZHC 2674
•16 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8205
[2024] NZHC 2674
THE KING v
RENE BELL
Hearing: 16 September 2024 Appearances:
B Hawes for Crown
A C Kelland for Defendant
Sentenced:
16 September 2024
SENTENCING REMARKS OF OSBORNE J
Introduction
[1] Mr Bell, I am going to ask you to remain seated. Because we have got a number of matters to deal with, the sentencing will take a bit longer than would normally be the case so, I am afraid, you will have to just bear with me. At the end I will ask you to stand when I am indicating the outcome.
[2] Mr Bell, you appear at 46 years of age for sentence, having pleaded guilty to one charge of money laundering.1 A conviction has not yet been entered on the basis you are applying for a discharge without conviction. You also seek name suppression on a permanent basis. I will first consider what I consider an appropriate sentence would be, were you not to be discharged without conviction. I will then discuss your
1 Crimes Act 1961, s 243(2); maximum penalty seven years’ imprisonment.
R v BELL [2024] NZHC 2674 [16 September 2024]
application for discharge without conviction and, finally, I will consider name suppression.
The offending
[3] Your offending arises out of a significant police investigation, code-named ‘Operation Mist’, into the importation and supply of cocaine into New Zealand from South America. The investigation involved co-operation with overseas drug enforcement authorities and commenced after New Zealand Customs intercepted a number of cocaine importations destined for rural Canterbury addresses. The drug syndicate operated from at least January 2018 to December 2021. It is estimated
42.5 kilograms of cocaine with a street price of over $19 million was imported into New Zealand. A further 59.1 kilograms of cocaine with a street value of more than
$26 million was also intercepted.
[4] When the operation was terminated in November 2021, you were one of those arrested and charged. Your offending involved one discrete money laundering transaction in September 2021. You are not said to be otherwise involved in Operation Mist.
[5] At the time you pleaded guilty, you agreed with the summary of facts presented by the Crown which I will now summarise.
[6] In September 2021, an arrangement was made to launder $200,500 in Christchurch and remit the money back to Colombia. A drug enforcement agent working with police picked up the “contract” to launder the money. The cash was proceeds from the sale of cocaine.
[7] On 16 September 2021, you met an undercover police officer at a café in Heathcote, Christchurch. You gave the police officer $200,500 cash packaged in a shoe box. As a token of receipt of the handover, the police officer gave you a $5 note with a serial number on it. You signed, dated and wrote the figure “$200,400” on the
$5 note before sending to a third party a photo of it as confirmation the drop had
occurred.2 That photo was then forwarded by the third party to the undercover police officer for further confirmation that the money had been received.
[8] Upon a later search of your vehicle by police, the note signed and dated by you was located tucked inside a document in the sun visor of the driver’s seat.
[9] Your explanation when interviewed was that the box had been left for you at your business and you dropped it off to a stranger at a café. You denied money laundering. You stated the box contained a pair of shoes and the $5 note was change from a cup of coffee.
[10] The summary of facts did not provide further background or context to your offending.
[11] You have since filed an affidavit dated 2 July 2024 that records your account of these events. You say you became acquainted with a man from Colombia, Mr Roldan Osorno, through one of your businesses, an inner-city bar. He would often talk to you about Bitcoin and encouraged you to invest and trade in it. You say you were not interested but, when Mr Roldan Osorno returned to Colombia, he asked you to hold some money to buy Bitcoin. You agreed and a bag of money was delivered to your bar which you kept in the safe. You say you believed it was money to buy Bitcoin and expected the money to be picked up at 5 pm that same day. Mr Roldan Osorno told you to hold onto the money and, when you asked how much was in the bag, you were startled to learn it was $154,000.
[12] You say Mr Roldan Osorno said he had lost the buyer. You say a combination of changing COVID-19 levels, him being in Colombia and language difficulties made things complicated. In early September, after some weeks of holding the money, you say you disposed of $20,000 to Mr Bonilla Casanas, a co-defendant and member of the drug syndicate who was living in a container on your property at the time. In mid- September, Mr Roldan Osorno organised another acquaintance to deliver a further
$66,000 to you. You kept it in your safe with the remaining $134,000, again expecting
2 The defendant’s reference to “$200,400” in his note has not been explained — he admits the sum delivered to the police officer was $200,500.
it to be picked up that day. After that buyer fell through, Mr Roldan Osorno asked you to deliver the cash to a buyer you would meet at the café. That led to the events recorded in the summary of facts which make up the basis of the charge against you.
[13] Ms Kelland, on your behalf, submits this all shows your motive was to assist your friend and that you were naïve and well-meaning. She states you were unaware the money was the proceeds of cocaine sales, but you accept you took an initial action (in accepting the money) that a reasonable person would know was likely tied to criminal offending.
[14] I disagree in relation to your suggested naïveté. The events recorded in your affidavit do not render your overall offending naïve. While your charge refers to a single sum of $200,500, that money was not delivered to you on one date in one package. Rather, there were a number of dealings with money, including you disposing of some of the money only to receive more later. That you were “startled” to learn the first bag of money contained $154,000, that it was not picked up at the time you were first told it would be and instead you had to hold onto the money for a much longer period, and the significant amount of cash involved are all factors that suggest from an early point you must have been conscious of the dubious character of the money you were receiving and holding. Any reasonable person would have made the connection with illegal activity.
[15] The token is a key feature of “handovers” such as the one the subject of your charge. That is because it acts as a receipt to prove the transaction occurred. You signed and dated the $5 token. Your explanation to police that the note was change from a cup of coffee was quite simply untrue, as your admission of the summary of facts indicates. I note you have identified in your first affidavit that when you handed
$20,000 of the first tranche of money to Mr Bonilla Casanas, you followed a similar method of immediately sending a screenshot recording the transaction to Mr Roldan Osorno.
[16] Your explanation to police that the box contained shoes was also untrue. Your lies in relation to these matters reinforce the conclusion that you had a significant level
of awareness that the money you received and later handed over was criminally tainted. There was a high level of recklessness involved on your part.
Approach to sentencing
[17] The Sentencing Act 2002 sets out the purposes and principles of sentencing that I am required to take into account in sentencing. Relevant purposes include accountability, denunciation, deterrence and rehabilitation. I must consider the protection of the community that is harmed by the drug trade, the gravity of your offending, the degree of your culpability, and the general desirability of consistency in imposing sentences for like offending. I am required to impose the least restrictive outcome that is appropriate in the circumstances.
Sentence
[18] The approach I will take today is to determine the sentence I would impose, first by setting a starting point for the charge you have pleaded guilty to with regard to comparable cases, and then by considering whether there are aggravating or mitigating features that warrant adjustments to the sentence to reach an end sentence. I will then consider your application for a discharge without conviction.
Starting point sentence
[19] There is no guideline judgment for money laundering due to the wide range of circumstances that offending of this kind can involve. The Court of Appeal has commented that “those who launder money for drug dealers are nearly as culpable as those who actually participate in the dealing” and therefore the sentence imposed for money laundering should “bear a relationship to sentences for the particular principal offending”.3
3 R v Wallace CA415/98, 16 December 1998 at 8.
[20] In sentencing for money laundering, there are a number of factors which influence the starting point. These include:4
(a)the total amount laundered;
(b)the extent to which the operation was sophisticated;
(c)the motivation for the offending;
(d)the length of time over which it occurred; and
(e)the extent to which a defendant benefits from it personally.
[21] Both Ms Kelland, on your behalf, and Mr Hawes, on behalf of the Crown, have referred me to a number of cases which are of assistance.
[22] In Huang v R, Mr Huang had been sentenced for six charges of money laundering, involving a total amount of $420,000.5 The offending was part of a wider operation concerning the dealing of Class A drugs by a gang. Mr Huang was not a member of the gang nor did he have any direct dealings with them, but his offending was ongoing and he was reckless as to the source of the money. This Court allowed his appeal against a starting point of three years six months’ imprisonment because the evidence did not establish Mr Huang had derived commercial profits from the sales, adopting instead a starting point of three years.6
[23] In Zhang v R, Ms Zhang laundered $700,000 over an 18-month period and derived a personal benefit of a $50,000 vehicle, accommodation in a house purchased with the laundered money, and designer clothes and accessories.7 The Court of Appeal upheld the starting point of five and a half years’ imprisonment, agreeing with the High Court’s finding that Ms Zhang knew she was laundering drug money.8
4 R v Wilson [2022] NZHC 1901 at [12].
5 Huang v R [2023] NZHC 2337.
6 At [46].
7 Zhang v R [2010] NZCA 481.
8 At [11]–[12] and [18].
[24] This Court adopted a starting point of one year and six months’ imprisonment in R v Amani.9 Mr Amani there had facilitated the purchase of a vehicle valued at
$215,000 with the proceeds of criminal activity. He was sentenced on the basis that, although he did not know for certain the funds came from criminal activity, he appreciated that might be the case.
[25] One of your co-defendants, Ms Escorcia Marin, was sentenced in April of this year for her role in laundering $102,500 of the syndicate’s money.10 Dunningham J found there was “some sophistication to the offending” and that Ms Escorcia Marin understood the token system. But as found by her Honour, Ms Escorcia Marin was not aware of the wider operation. Nor was her motivation for the offending clear, although the pre-sentence report suggested it was out of obligation to her partner who supported her lifestyle.11 Her offending involved a one-off transaction rather than an ongoing course of conduct. Ms Escorcia Marin’s starting point sentence was one of 20 months’ imprisonment.
[26]In your case, the total amount laundered was substantial, being in excess of
$200,000, received in two consignments, and there was some sophistication to the offending. As in the case of your co-defendant, Ms Escorcia Marin, I consider you understood the use of the token system. I accept by recording $200,400 on the token note as the sum of money being handed over, and the date, and taking a photograph of it and transmitting it, your already existing suspicions as to the unlawful nature of the transaction must have been confirmed. Even though you were unaware of the origins of the money or of the drug syndicate’s broader operations, you proceeded with a reckless indifference as to the part you were playing.
[27] I consider your affidavit evidence represents in part an attempt to minimise the role you played.
[28] However, while the syndicate’s operation was extensive, you are charged with being involved in relation to a single transaction. I do not treat you as being aware of
9 R v Amani [2010] NZHC 3260.
10 R v Marin [2024] NZHC 996.
11 At [12].
the wider drug operation. There is no reliable evidence about your motivation for your offending, so your level of culpability is not affected by a motive of financial gain.
[29] Your offending is clearly less serious than that in Huang and Zhang, which both involved substantially greater amounts of money, greater elements of knowledge and a continuing pattern of offending.
[30] Ms Kelland, on your behalf, submits your offending is less serious than your co-defendant’s, Ms Escorcia Marin. The Crown disagrees and submits I should adopt a starting point of two years six months’ imprisonment. I recognise, as Ms Kelland submitted, that the lifestyle support Ms Escorcia Marin received from a co-offender involved a degree of financial gain for her (albeit indirect) that is absent in your case. But in light of the factors I have identified, particularly that the instalments of cash involved in your offending amounted to almost double the single sum laundered by Ms Escorcia Marin, I consider your offending is more serious than hers, and accordingly a higher starting point than the 20 months’ imprisonment she received is required.
[31]I adopt a starting point of 22 months’ imprisonment.
Personal aggravating factors
[32]Counsel agree there are no personal aggravating factors. I also agree.
Personal mitigating features
Guilty plea
[33] You pleaded guilty. While this generally warrants a discount at sentencing, you entered your plea on the eve of trial. The preparation for trial both by counsel and the Court had already been undertaken, which significantly limits the benefits of a guilty plea. It also indicates no appreciable level of remorse. The Crown case against you was overwhelming. But, as Mr Hawes responsibly recognises, the Crown case against you had unusual features, particularly relating to the need for a key witness to be involved. There was a significant public interest in the trial not having to proceed.
In this case, I do consider your plea warrants a credit and I allow a credit of 15 per cent.
Background and good character
[34] Your counsel did not provide submissions on credits for mitigating factors in her written submissions as her focus was on the discharge without conviction application. I have considered the other material before the Court, including your pre- sentence report, your criminal record and the letters filed in support of you. I consider your rehabilitative prospects are strong and warrant a credit. Your rehabilitative prospects are connected to a level of awareness that you appear to have of the consequences of your offending. I observe it appears at least some of the “shame” you express, however, is about the consequences that you face, including the effects on your family and your business reputation.
[35] An additional factor that warrants credit is your history. Although you have five convictions for cannabis and driving offending, they are distinctly dated and you have not offended since 2000. You have no criminal record for offences of dishonesty. You have been assessed by the pre-sentence report writer as having a low risk of reoffending. I have also read the letters in support of you and that speak of your good character, including from your two daughters, your friends and your business partner. The common theme is that you are a person who helps others.
[36] For these matters, I apply a global credit of 15 per cent. This with the guilty plea credit of 15 per cent would take the starting point of 22 months’ imprisonment to one of 15 months’ imprisonment.
[37] Because your sentence would be less than two years’ imprisonment, I must then consider whether it should be commuted to, instead of a sentence of imprisonment, a community-based sentence such as home detention or community detention.
[38] Due to your rehabilitative prospects, your lack of criminal history and the desirability of your being able to continue working in the businesses with your partner, I consider you are an appropriate candidate for a community-based sentence. The pre-
sentence report writer assessed you as suitable for home detention and community detention and the proposed address, where you currently reside with one of your daughters and your partner, is also suitable.
[39]If I convict you, I would sentence you to six months’ community detention.12
Discharge without conviction
Principles
[40] You have applied under s 106 of the Sentencing Act 2002 to be discharged without conviction. The Court has a discretion whether to grant such an application.13 In deciding whether a defendant should be discharged without conviction, I have to follow s 107 of the Sentencing Act 2002. A discharge without conviction is available to the Court only if the direct and indirect consequences of a conviction would be out of all proportion to the gravity of your offence. The assessment involves a three-stage test.14
[41] First, I must determine the gravity of your offending by reference to the aggravating and mitigating factors of the offending, as well as those factors personal to yourself.15 I have essentially just done this. I assess the culpability of your offending, as Ms Kelland does, as moderate.
[42] The two remaining steps are first to identify the direct and indirect consequences of conviction, and secondly make a proportionality assessment to determine whether the consequences would be out of all proportion to the gravity of your offending.
[43] In determining whether something is a consequence of a conviction, it is not necessary that I be satisfied it is an inevitable outcome.16 Rather, what is required is
12 Initially in my sentencing remarks identified as “seven months” but amended to “six months” as explained in the Addendum at [88].
13 Sentencing Act 2002, s 106(1).
14 Scott v R [2019] NZCA 261 at [79], citing Prasad v R [2018] NZCA 537 at [11].
15 Z v R [2012] NZCA 599, [2013] NZAR 142 (CA) at [27], citing Blythe v R [2011] NZCA 190,
[2011] 2 NZLR 620 at [13].
16 Noori v Police [2023] NZHC 3799 at [14].
must be a real and appreciable risk that the consequence will occur.17 If there is such a risk, the nature and seriousness of the consequence will be material to my assessment of whether the consequences are out of all proportion to the gravity of the offence, as too will the degree of likelihood of it occurring.18 That is, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test will be satisfied.19 However, it is insufficient if the consequences simply outweigh the gravity of the offending — “significantly more” is required.20
Consequences to be considered
[44] Ms Kelland submitted there is a real and appreciable risk that you, your family and employees will suffer profound consequences should you be convicted. She identified this under two headings, namely “economic consequences” and “insurance consequences”. I will adopt the same headings. My references will be to your second affidavit.
Economic consequences
[45] You identify that you and your relationship partner became business partners in hospitality businesses in 2011. Although you are no longer relationship partners, you remain good friends and business partners.
[46] You depose that should you receive a conviction for money laundering you will no longer be able to have any input into running the businesses. You assert you would be prohibited from being a director of or managing companies by reason of s 382(1)(b) Companies Act 1993.
[47] I will reproduce in the typed version of these remarks the provisions of s 382(1)(b):
382 Persons prohibited from managing companies
(1) Where—
17 At [14].
18 At [14], citing Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
19 Iosefa v Police, above n 18, at [35].
20 R v Smyth [2017] NZCA 530 at [12].
…
(b)a person has been convicted of an offence under any of sections 377 to 380 or of any crime involving dishonesty as defined in section 2(1) of the Crimes Act 1961; or
…
that person shall not, during the period of 5 years after the conviction or the judgment, be a director or promoter of, or in any way, whether directly or indirectly, be concerned or take part in the management of, a company, unless that person first obtains the leave of the court which may be given on such terms and conditions as the court thinks fit.
[48] You depose that your businesses will fold if you are unable to run them. You explain that your partner’s English is not good and her role is in organising the food
— you depose that you manage everything else in the businesses. You have exhibited a letter from your partner (completed with the assistance of her daughter) which confirms that you handle many critical tasks that she is not equipped to manage on her own. She is afraid that, without your input and leadership, she will not be able to continue and the business “may ultimately have to close its doors”.
[49] You depose that, as an accredited immigrant employer, you currently employ 35 people who would lose their jobs if the businesses close. If your employees are not offered work by another accredited employer, they must return home.
Insurance consequences
[50] You depose that, should you be convicted, you will lose all insurance, including for your businesses, your home and your car. You explain that, to obtain evidence in relation to this, you did not want to approach your own insurance broker but instead emailed another broker by emailing under a pseudonym. You have exhibited an email chain in that regard in which your email referred to a recent conviction for money laundering. The broker in question responded that with the insurers he deals with it would be extremely unlikely they would provide insurance terms due to the recent dishonesty conviction.
[51]You do not know if your partner can get insurance for the business.
General consequences
[52] You state more generally that without your business, you will be unemployed and your prospects of finding other work would be slim.
[53] You refer also to the implication a conviction would carry, with your family having to contend with “the general slur”, both in relation to money laundering and association with a Colombian drug cartel.
Submissions
[54] Ms Kelland has submitted the evidence as to economic and insurance consequences establishes that a conviction for money laundering would be out of all proportion to the seriousness of your offending, with the result that you should be granted a discharge without conviction.
Further information
[55] You raised your concerns over the future of your businesses with the pre- sentence report writer. They reported, upon further investigation of the Companies Register, that in 2021 your company made a return indicating you were no longer a director and had become a minority shareholder.
[56] In the further written submissions filed by Ms Kelland on your behalf on 30 August 2024, she explained that you pleaded guilty to the money laundering charge and were of the view the Crown would support your application for a discharge without conviction. You then “reapplied to go on the Register as a director”. Ms Kelland attached a screenshot of a Companies Register entry showing that you were a “pending director”. Ms Kelland notes your belief that the Companies Office will be awaiting “resolution of this charge”.
[57] In relation to insurance, Ms Kelland attached additional email correspondence (again entered into under a pseudonym) to her further written submissions. The emails were intended to support the proposition that, with the mortgage finance on your house being conditional on insurance, you are unlikely to obtain the required insurance.
[58] In relation to your business insurance, Ms Kelland observes that your partner, if running the businesses, would still have to disclose to the business insurer the fact that you have a conviction for money laundering, rendering the availability of business insurance “speculative”.
Discussion
[59] I will first focus on the consequences of your conviction for your business interests.
[60] I note that it is not of assistance to your credibility or your credit generally that you had counsel initially present submissions on the basis you would, if convicted, have to step down from being a director of your company. The fact, as discovered by the Probation Officer, that you had stepped down as a director in 2021 and had become a minority shareholder at that time, points to the company having been able to function, employing 35 people, since then. Given your partner’s experience in business with you for 15 years, even allowing for language limitations, the continued effective operation of the business does not appear surprising.
[61] I am not satisfied on the evidence you have provided that your not being involved as a director will have a significant impact on the business.
[62]That brings me to your involvement in the management of the business.
[63] The correct legal position, contrary to what you stated in your second affidavit, is that your conviction will not automatically disqualify you from being involved in the management of the business. The provision for the Court to grant leave under s 382(1) of the Companies Act, notwithstanding a conviction for a crime of dishonesty, provides the appropriate route by which an informed decision can be made, in the light of all relevant information pertaining to the company, as to whether you are a fit and proper person to be involved either as director or manager of the company. It is in that context, not this, that such an informed decision should be made. The Court would then have the benefit, under s 382(3), of hearing from the Registrar of Companies as to any issues that would arise were leave to be granted to you.
[64] Given the significant dishonesty involved in your offending, I do not consider such consequences as would flow in relation to your directorship or management of the business to be disproportionate.
[65]I then turn to issues of insurance.
[66] The Court appreciates the sensitivity that attaches to any enquiry directed towards the current insurer or insurance broker of an affected business. That difficulty is not uncommonly met by obtaining informed evidence from an unrelated person with expertise in the relevant industry, in this case, the insurance industry.
[67] In this case you have essentially relied on email responses to your brief enquiries relating to the prospects of obtaining or maintaining insurance. What is lacking is reliable evidence as to what would happen in the most likely scenario, namely that your partner would continue as she has been for some years as the sole director of the company and that she might also, at least for some time, be the principal manager.
[68] I am not satisfied on the evidence that the company will not obtain insurance in that situation and am accordingly not satisfied that such concerns as arise from the email correspondence you have been entering into represent a real and appreciable risk. On the contrary, I conclude on the information that is reliable and before the Court that the likelihood is that the company will continue to have access to insurance as it apparently has in the most recent years.
[69]Finally, you have raised an issue in relation to private insurance.
[70] The basis of your concerns again arise from the anonymous email correspondence you entered into.
[71] I am not satisfied on the scant information provided in relation to your house property and the level of mortgage debt that any issues that would arise from your conviction cannot be dealt with by other means. There is, for instance, in the
information before the Court, reference to the fact your older daughter, aged 24, lives with you and is supportive of you. Residential rearrangements would appear feasible.
[72] I assess, overall, the likely consequences of the entry of a conviction in your case as low to moderate. It follows that I am not satisfied that the consequences of a conviction being entered would be out of all proportion to the gravity of your offending.
Name suppression
Principles
[73] I now consider your application for name suppression. Under s 200(1) of the Criminal Procedure Act 2011, the Court may make an order prohibiting publication only if satisfied that publication would be likely to cause one of the outcomes specified in s 200(2). You seek suppression under s 200(2)(a), namely, that publication will cause you, your family and your company extreme hardship.
[74] The test for suppression is in two stages.21 First, I must consider whether the threshold of extreme hardship is met. Secondly, if that first stage is established, I must weigh the competing interests of suppression for you against the public interest and the principle of open justice, there being a presumption in favour of openness in reporting.22
[75] Hardship is described as “severe suffering or privation”, with the use of “undue” in s 200(2)(c) suggesting something more.23 “Extreme” (as in extreme hardship) suggests something more again.24 Typically, something more than loss of livelihood or employment is required to meet the stage one threshold.25 The Court
21 Robertson v Police [2015] NZCA 7 at [40].
Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]; R v Liddell [1995] 1 NZLR 538,
(1994) 12 CRNZ 458 (CA) at 546, 466; Proctor v R [1997] 1 NZLR 295 (CA); and Lewis v Wilson
& Horton Ltd [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA).
23 M v R [2024] NZSC 29, [2024] 1 NZLR 83, at [69].
24 Robertson v Police, above n 21, at [48].
25 Stephens v R [2021] NZHC 1902 at [26]; Blackwood v R [2017] NZHC 1262 at [10]–[12]; and DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306 at [6].
must be satisfied the pleaded consequence is “likely” to result, meaning there must be “a real and appreciable possibility that it will happen”.26
Your application
[76] Ms Kelland’s submissions focus on the prior publication in late 2021 and early 2022 of your name when you were charged, particularly the media’s report of you being connected to a criminal gang. At that time, you faced an additional charge of participating in an organised criminal group. Ms Kelland submits the taint of that association remains. As well, Ms Kelland records you are worried that further publication will attract the attention of the South American cartel to you and your family, the cartel being known for their brutality, and being people not likely to view the loss of $200,000 kindly.
[77] You deposed that publication caused you reputational damage, including to your company, resulting in a 20 per cent downturn and a rival hospitality business owner sharing the media articles on Facebook alongside what you describe as “ill- informed, derogatory and offensive comments”. Ms Kelland submits that example, together with other instances of derogatory social media posts, added to the hardship involves. She cited the Court of Appeal’s decision in X v R, which focused on potential hardship if the offender is named on social media.27 The Court granted name suppression there, noting the “…potential hardship caused by the pernicious, judgemental, exponential, indelible, and often ill-informed publication on social media platforms” is relevant.28
Discussion
[78] I consider the fact publication has already occurred is a strong factor against granting suppression. Where, as Mr Hawes termed it, the “horse has bolted”, this may be a determinative factor.29 The consequences of further publication now have already largely occurred — the media articles will not uncover any “new” information in relation to the charge of money laundering. Publication of the sentence imposed for
26 Farish v R [2024] NZSC 65 at [27].
27 X v R [2020] NZCA 387, (2020) 30 CRNZ 296.
28 At [52].
29 See, for example, R v Wallace [2021] NZHC 870 at [11].
that offending is unlikely to result in further detriment to either your personal or your business reputation. To the contrary, publication now will likely clarify the fact the organised criminal group charge was withdrawn and there is no evidence you were otherwise associated with the cartel. This in itself may go some way to improve your reputation. It will certainly clarify the public record.
[79] In any event, the extent to which your business may be impacted is a natural consequence of conviction. It does not add significantly to establishing the threshold of extreme hardship. I observe as well that, despite your reported 20 per cent downturn in 2022, there has since been a gradual increase again, indicating any further damage is unlikely to be permanent or of such a severe nature that it may, for example, result in its closure.
[80] I have read the letters from your daughters and your sister which outline the effects of the earlier publication on them. Your daughters both describe the publication resulting in social isolation, awkward and uncomfortable situations, and as having a negative impact on their emotional wellbeing. The concern of the effects of publication on your family, including “awkward and uncomfortable” situations are, unfortunately, consequences normally associated with publication of a family member’s convictions; much more is required to make out extreme hardship.30 Likewise, so too is the potential hardship that may be caused by social media posts. The case of X v R, as cited by Ms Kelland on this point, is distinguishable because in that case, there was “unusually high [public interest] because of the Labour party camp context” and the misinformation available prior to publication which contended that the applicant was a paedophile who preyed on underage children, none of which was true.31 The facts of your case are well removed from the effects that justified suppression in that case.
[81] Based on these factors, I find you have failed to establish the consequences of publication required to meet stage one of the test for extreme hardship. It is therefore unnecessary to consider the second stage of the test.
30 Robertson v Police, above n 21, at [49].
31 X v R, above n 27, at [55].
Result
[82]Mr Bell, I ask you to stand now.
[83] I convict you on the charge of money laundering. On the charge of money laundering, I sentence you to six months’ community detention.32
[84] The sentence of community detention is to be served at the community detention address identified in the Department of Corrections report dated 31 July 2024. You will be required to be present at the address and be subject to an electronically-monitored curfew between the hours of 9 pm and 7 am each day of the week. The first curfew period will commence on Tuesday 17 September 2024.
[85] You are to complete to the satisfaction of the Probation Officer all interventions, treatment, programmes, and counselling as directed by the Probation Officer.
[86]Name suppression is declined.
[87]You may stand down.
ADDENDUM
[88] My sincere apologies to you all. I will be revising my judgment to read that it is a sentence of six months’ community detention that is imposed, being the maximum term permitted. Thank you to the Registrar for drawing it to my attention.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
A C Kelland, Barrister, Christchurch
32 Initially in my sentencing remarks identified as “seven months” but amended to “six months” as explained in the Addendum at [88].