Whitehead v Police

[2021] NZHC 3421

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-75

[2021] NZHC 3421

BETWEEN

SHANE COLIN WHITEHEAD

Appellant

AND

POLICE

Respondent

Hearing:	23 November 2021 via VMR
Appearances:	O Crosse for Appellant N Azam for Respondent
Judgment:	14 December 2021

JUDGMENT OF CULL J

[1]                 On 12 October 2021, Mr Whitehead pleaded guilty to a representative charge of accessing a computer system without authorisation.1 The Judge ordered him to come up for sentence if called upon within 12 months and imposed a Protection Order.2 The appeal concerns the imposition of the Protection Order only.

The offending

[2]                 Between 17 January to 16 February 2021, Mr Whitehead logged into the victim’s Snapchat account 156 times through his own mobile phone. Mr Whitehead had previously been in a relationship with the victim for approximately two and a half years. This relationship was intermittent before ending just prior to the offending. The victim’s username and password had been pre-saved on Mr Whitehead’s phone, allowing him to access the account by simply clicking on the phone application.

1      Crimes Act 1961, s 252(2); maximum penalty two years’ imprisonment.

2      Police v Whitehead [2021] NZDC 20574.

WHITEHEAD v POLICE [2021] NZHC 3421 [14 December 2021]

[3]                 On one occasion, in which Mr Whitehead accessed the victim’s Snapchat account, he took screenshots of an intimate conversation between the victim and another, and sent these to a mutual friend. He originally faced an additional charge of causing harm by posting digital communications,3 but this charge was withdrawn following discussions with the prosecution.

District Court decision

[4]                 The Judge observed that while Mr Whitehead’s conduct did not involve any physical violence, it was still very intrusive, evinced by the victim’s ongoing distress.4

[5]                 The Judge imposed the Protection Order because of the proximity between Mr Whitehead and the victim’s social circles. As noted in the victim’s impact statement, the pair live in the same remote coastal suburb in Wellington, train at the same sports club, and often go to the same sports events and meetings. The victim made it clear that she did not want any further contact from Mr Whitehead, and did not want to see him at sports events.

[6]                 The Judge was not convinced that the making of a Protection Order would unreasonably interfere with Mr Whitehead’s sport and recreational activities. He observed that any “faint risk” of intrusion into his personal life was outweighed by the need to provide the victim with assurance she will not have to interact with Mr Whitehead again.5

Approach on appeal

[7]                 Under s 250 of the Criminal Procedure Act 2011, the appeal must be allowed if this Court is satisfied that there is an error in the sentence and a different sentence should be imposed. It must be shown that there was an error which requires the imposition of another sentence. The focus is on whether the sentence imposed is within range, rather than the process by which it has been reached.6

3      Harmful Digital Communication Act 2015, s 22; maximum penalty two years’ imprisonment or a

$50,000 fine.

4      Police v Whitehead, above n 2, at [1].

5 At [2].

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

Parties’ positions

[8]                 Mr Crosse for Mr Whitehead says that Mr Whitehead’s conduct did not meet the criteria for imposing a Protection Order. The necessity of the order was not assessed by the Judge against the family violence offending and the Judge erred by placing too much emphasis on the interference a Protection Order may have in his life, rather than whether a Protection Order was necessary. The Judge also failed, he submits, to have regard to the fact that any future offending of this nature cannot occur as the victim’s log-in details are no longer on Mr Whitehead’s phone.

[9]                 The Police oppose the appeal. Mr Azam submits the very nature of the offending, being an intentional and persistent breach of the victim’s privacy and security, creates a prima facie need for a protection. Mr Azam refutes any characterisation of Mr Whitehead’s offending as “opportunistic”, describing it as coercive and controlling behaviour amounting to a systematic invasion of the victim’s privacy. He says that accessing the victim’s account was not simply as easy as opening the application, referring to an unsuccessful attempt made by the appellant to access the victim’s account on 15 February 2021. He also notes that Mr Whitehead was accessing the victim’s account on average five times a day during this period.

Issue

[10]              The issue on appeal is whether a Protection Order is necessary for the protection of the victim under s 123B(2)(a) of the Act. It is accepted that the three other requirements under s 123B are met in this case.

Discussion

[11]              Section 123B of the Sentencing Act 2002 (the Act) governs the Court’s ability to make a Protection Order at sentencing:

123B Protection Order

(1)This section applies if—

(a)    an offender is convicted of a family violence offence; and

(b)    there is not currently in force a protection order against the offender made under the Family Violence Act 2018 for the

protection of the victim of the offence.

(2)The court may make a protection order against the offender if—

(a)    it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and

(b)    the victim of the offence does not object to the making of the order.

[12]              The necessity inquiry is the same as that undertaken under s 79 of the Family Violence Act 2018 (FVA).7 The test for necessity was addressed by the Court of Appeal in Surrey v Surrey8 and affirmed in SN v MN9 in the context of the former Domestic Violence Act 1995. The Court of Appeal in SN v MN confirmed this judicial assessment is an evaluative inquiry that need not be overly refined.10

[13]              An order will likely be made where a person’s past conduct has led to reasonable fears held by the victim of future violence.11 Particular regard must be had to the nature and seriousness of the past inflicted violence. The greater the degree of violence, the more likely it will be necessary to make an order.12 However, there is no specific standard of threat that is required to be met before the imposition of an order. What is required is an evaluation of all the evidence. If there has been past violence and there is a reasonable subjective fear of future violence, an evidential burden passes to the offender to raise countervailing factors that weigh against the need for a Protection Order.13

[14]              The Judge did not conduct an assessment of the necessity for the protection order. The Judge said that no sentence would compensate for the victim’s distress, but that the sentence should be a warning to Mr Whitehead that should he ever be tempted to do something similar again, the consequences for him would be significant.14 Having asked about the effects a Protection Order might have on Mr Whitehead’s legitimate participation in sport, the Judge made the Protection Order, as he was not

7      Formerly s 14 of the Domestic Violence Act 1995.

8      Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.

9      SN v MN [2017] NZCA 289, [2017] 3 NZLR 448.

10     At [22]–[24].

11     Surrey v Surrey, above n 8, at [37].

12 At [40].

13 At [43].

14     Police v Whitehead, above n 2, at [1].

convinced that the Order would reasonably interfere with Mr Whitehead’s sport, recreation or pleasure. In convicting Mr Whitehead and ordering him to come up for sentence if called upon within 12 months, the Judge warned that if there was any repetition of this kind of behaviour, Mr Whitehead could be brought back before the Court and penalised again on the same charge.15 This was the extent of the Judge’s reasoning, which did not involve him being satisfied a protection order was necessary in the circumstances, in light of Surrey and SN v MN.

[15]              The family violence offending here involved the access by Mr Whitehead of the victim’s snapchat account on Mr Whitehead’s phone. He did not need to use a password for access, but needed to just tap the application. He did this approximately 156 times. It was an unacceptable invasion of the victim’s privacy, which he did intentionally and persistently. Since that offending, the victim’s log-in details into her social media accounts are no longer on Mr Whitehead’s phone. He can no longer access any of the victim’s accounts. The risk of Mr Whitehead re-offending in this way against the victim is no longer possible. I accept Mr Crosse’s submission that the risk of Mr Whitehead using family violence against the victim again is “almost non- existent” given he no longer has the ability to offend in this way.

[16]              During the course of argument, Counsel drew my attention to the Victim Impact Statement and the Family Violence report. In her statement, the victim confirmed she had to change all her passwords for all of her social media applications and increase security protocols wherever she could. The victim stated she did not want any future contact from Mr Whitehead at all because it would be harmful to her. She acknowledged that Mr Whitehead lives close to her in the same suburb and advised that they train at the same sports club often. Through that sport they often go to the same events and meetings. She said that she did not want to see him at those venues either.

[17]              The Family Violence report, which was not before the Judge, contains the victim’s reports to the Police in November 2020 on incidents which had occurred during arguments with Mr Whitehead when they were in a relationship. I was advised

15 At [3].

that their relationship had broken down in November 2020 and the reports by the victim related to that period of time. The relationship resumed shortly thereafter and continued into January, when the relationship finally broke down and this offending took place.

[18]              Mr Crosse submits that caution should be used in relying on the statements in the Family Violence report, when those accounts are disputed by Mr Whitehead, were made at a time of turbulence in the parties’ relationship, and his response was never sought. The context therefore, he submits, is not relevant to an assessment of necessity for the victim’s ongoing protection.

[19]              I accept Mr Crosse’s submission that the context of the reporting and the nature of the matters raised were not synonymous with this offending. More importantly, the victim is not expressing any fear of Mr Whitehead using family violence against her in the future. Her concern is that she does not want to see him in the future at mutual sporting events or have any contact from him at all.

[20]              Counsel advised the Court that the imposition of the Protection Order has had significant impact on Mr Whitehead. He has not been able to attend his sport’s club, where he was a trainer, if the victim was present. Since the imposition of the Order he has not resumed his position as a trainer. Further, he cannot attend sporting events if the victim is present.

[21]              I have reviewed the material, some of which was not before the sentencing Judge. I am not satisfied in these circumstances that the Protection Order is necessary for the protection of the victim against future family violence offending by Mr Whitehead. There is no doubt the breach of the victim’s privacy was egregious. Mr Whitehead has accepted responsibility for this family violence offending by pleading guilty and now has a conviction as a result. He cannot re-offend in the same way, as any future access to the victim’s social media accounts has been removed. With no risk of future similar offending, there is no necessity for an Order to protect the victim from further offending.

[22]              Although it is understandable that the victim does not wish to see Mr Whitehead, that is not the purpose of a Protection Order, where there is no risk of further offending. The effect of the imposition of a Protection Order on Mr Whitehead in these circumstances render the sentence imposed on him to be manifestly excessive in my assessment and should be quashed.

[23]              In making my finding, however, I endorse the Judge’s concern that if there is any future repetition of this kind of behaviour, then Mr Whitehead can be brought back before the Court and penalised again on this charge. The remainder of the sentence therefore will serve as a strong deterrent from any further similar offending.

Result

[24]The appeal is upheld. The Protection Order against Mr Whitehead is quashed.

Cull J

Solicitors:

Public Defence Service, Wellington, for Appellant Crown Solicitor, Wellington, for Respondent