X v Police

[2017] NZHC 3298

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES.

THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND IT MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000148

[2017] NZHC 3298

BETWEEN

X

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 November 2017
Appearances:	S Bonnar QC and T Greenwood for the Appellant L J Fraser for the Respondent
Judgment:	22 December 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 22 December at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

X v NEW ZEALAND POLICE [2017] NZHC 3298 [22 December 2017]

Counsel/Solicitors:

Stephen Bonnar Queens Counsel, Auckland Doug Cowan, Barristers & Solicitors, Auckland Meredith Connell, Auckland

Introduction

[1]    On 22 February 2017, Mr X pleaded guilty in the Auckland District Court to one charge of indecent assault under s 135 of the Crimes Act 1961.1 On 10 April 2017, Mr X applied for a discharge without conviction and permanent name suppression, but Judge Thomas refused both applications and Mr X was sentenced to 12 months’ supervision and was ordered to pay the victim reparation of $7,000.2

[2]Mr X appeals his conviction and the refusal to grant name suppression.

Factual background

[3]    Mr X is 71 years old. He and his family are friends (and/or business colleagues) of the  victim’s family.  The victim, aged  21, had started working for  Mr X’s business.

[4]    At approximately 10.30pm on 18 March 2016, Mr X called the victim asking to meet her. The victim was at her mother’s house at the time. She reluctantly agreed and he picked her up in his vehicle. A few minutes into the journey, Mr X put his hand on the victim’s leg. She removed it and told him not to touch her. Mr X then immediately grabbed the victim’s breasts. The victim again removed his hand and told him not to touch her. Mr X apologised to the victim and blamed his medication for his actions. They continued to drive for approximately ten minutes before turning around. On the drive back in the direction they had come, Mr X asked to hold the victim’s hand, which she allowed him to do out of fear of what he might do if she refused. She held his hand for approximately one minute before letting go. Mr X dropped the victim back at her mother’s house and thanked her for holding his hand.

[5]Two days later Mr X called the victim, apologising again for his actions.

[6]Mr X was charged with indecent assault on 3 June 2016.

[7]On 22 February 2017, Mr X pleaded guilty.

1      The maximum penalty is 7 years’ imprisonment.

2      Police v X [2017] NZDC 7551.

[8]    Mr X sought a discharge without conviction, and supporting affidavits were sworn by Mr X (on 20 March 2017) and by his wife (on 10 April 2017), who first found out about the offending the day before.

[9]    Mr X was sentenced on 10 April 2017. His application for a discharge without conviction and name suppression failed.

[10]The notice of appeal was filed in May 2017.

[11]Various medical reports were obtained on which Mr X seeks to rely.

[12]   A Dr Immelman wrote a psychiatric report dated 27 June 2017. In an addendum to his report, dated 29 June 2017, Dr Immelman expressed concern regarding whether Mr X had been fit to plead guilty.

[13]   The appeal was initially set down to be heard on 3 July 2017. However, an adjournment was sought and obtained on the basis that Mr X may not have been fit to plead. A further notice of appeal was filed on 7 July 2017, out of time, setting out as a further ground of appeal that there was a miscarriage of justice on that basis.

[14]   A new fixture for the appeal was set down on 28 November 2017, to allow further psychiatric reports to be filed.

[15]   Two further psychiatric reports were commissioned. The first, by Dr Casey, is dated 25 September 2017. The second, by Dr Galpin, is dated 24 October 2017.

[16]   An additional report by Dr Immelman, dated 26 November 2017, was also filed with the Court in response to the Crown submissions on appeal.

[17]In two of these reports, Mr X is recorded as denying the offending.

[18]The appellant seeks leave to adduce all four reports on appeal.

[19]   The victim swore an affidavit expressing her views on 6 November 2017. The Crown seeks leave to adduce this evidence on appeal.

[20]   Prior to this hearing, the ground of appeal that Mr X was unfit to plead guilty was abandoned, and only the appeals against the refusal to grant a discharge without conviction, and permanent name suppression, were pursued.

[21]I was advised at the hearing that the reparation sum had not been paid.

Victim impact statement

[22]   The victim recorded in her victim impact statement that she has suffered from anxiety as a result of what happened and had to take time off work because of it. She also attended counselling paid for by ACC.

[23]   Both Mr X and the victim lived in a small community in the Auckland region. The victim moved to Auckland City the day after the offending, leaving her home and job, because of how she felt after the incident. She has since found it difficult to go back to their community to visit, as it has caused her to become anxious. This difficulty has made it hard for her to visit her friends and family, which means she no longer has their support close at hand. She also refers to the financial cost involved in relocating to Auckland City.

[24]   The victim says that she does not want Mr X to have name suppression because the community needs the opportunity to know of the charge, to protect other vulnerable people. She says that her life has not been the same since Mr X harmed her, and she is not the same person she used to be. She would like to see that he has consequences for his actions and would be disappointed if he were given a discharge without conviction and given permanent name suppression.

Applications to adduce fresh evidence

[25]   Mr Bonnar, QC for Mr X, seeks the leave of the Court to adduce further evidence. As referred to earlier, the evidence is the psychiatric reports prepared by Dr Andrew Immelman, Dr Jane Casey, and Dr Grant Galpin.

[26]   The Crown similarly seeks to adduce evidence on appeal, namely the affidavit further outlining the victim’s views, filed with the Court on 10 November 2017.

[27]   Section 335 of the Criminal Procedure Act 2011 allows the Court to receive new evidence in an appeal if it thinks it necessary or expedient in the interests of justice. Generally, “new” evidence will need to be credible, and it will need to be fresh.3 Evidence that with reasonable diligence could have been called at trial will not qualify as fresh.4 However, the overriding criterion is what course will best serve the interests of justice.5 If there is a risk of a miscarriage of justice were the evidence to be excluded, the evidence should be admitted, notwithstanding that the evidence is not fresh.6

New psychiatric reports

[28]   In Dr Immelman’s first report dated 27 June 2017, he notes that Mr X was diagnosed with Parkinson’s disease at age 49 (in 1994). He found Mr X meets the criteria for a major neurocognitive disorder due to Parkinson’s disease, and in addition was suffering a major depressive episode. Mr X was identified as having a number of cognitive difficulties including demonstrable deficits in memory, naming, attention, language, abstraction, delayed recall and frontal executive function. Frontal executive dysfunction deals with, inter alia, impulsivity and anticipating consequences. Dr Immelman considered that this dysfunction was likely to have been present at the time of Mr X’s offending.

[29]   Dr Immelman also considered as at June 2017 that Mr X’s emotional state means he is at significant risk of “completed suicide”, should he be unsupervised, and with access to the means to achieve it. Mr X told Dr Immelman that he contemplated suicide several times every day, and while Dr Immelman could not establish when the suicidal thoughts began, he considered that it seemed to occur in relation to the charge of indecent assault. Mr X told Dr Immelman that he would not act on his ongoing thoughts of ending his life by suicide, because he had not “sorted things out yet … for my wife and family”. Dr Immelman recorded that there was no history of deliberate self-harm,  such  as  cutting.    Dr  Immelman  wrote  that  despite  Mr X’s   cognitive

3      R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA)

at [22].

4      R v Bain [2004] 1 NZLR 638 (CA) at [22].

5      R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA)

at [22].

6      R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

impairment, he is acutely aware of, and very sensitive to, his being identified as a consequence of the conviction and publication of his name.   As I read his report,   Dr Immelman says that this sensitivity places Mr X at a higher risk of distress and possible completed suicide.

[30]   Dr Casey interviewed Mr X on 25 August 2017 in preparation for her 25 September 2017 report. She is a consultant psychiatrist specialising in old age psychiatry. Dr Casey reported that Mr X presented with Parkinson’s disease complicated by moderate cognitive impairment, depression and intermittent behavioural symptoms. She considered he had frontal lobe impairment which “along with the temporal lobe or memory impairment, may impact on judgement and decision-making, rendering it difficult to understand, retain, and manipulate relevant information and to foresee the consequences of decision-making”.

[31]   The intermittent behavioural changes she referred to include REM sleep behaviour disorder (where Mr X may act out his dreams and fall out of bed); and impulse control disorder, specified as hypersexuality, and a tendency to gamble. She noted that “the symptoms of hypersexuality are a well-known impulse control disorder associated with treatment for Parkinson’s disease, with the majority of reported patients being on adjuvant dopamine agonists such as ropinirole, which is one of the forms of medication [Mr X] takes”. She also said that Mr X continues to have symptoms consistent with hypersexuality which impacts on his wife and they try to manage it within their relationship.

[32]   Mr X told Dr Casey that he has considered suicide by way of drowning, cutting his wrists or even car fumes. He went on to say that “my wife keeps me going … my children”.

[33]   Dr Galpin interviewed Mr X and his wife on 18 October 2017. His report is dated 24 October 2017. Dr Galpin concluded, as it had been a potential issue, that Mr X was fit to have pleaded guilty. He also provided an opinion on the effects of the conditions diagnosed by Dr Casey, namely:

I note the combination of dementia disorder, frontal lobe dysfunction, poor judgment and decision-making, and difficulty in terms of capacity to foresee

consequences in decision-making in combination with drugs that promote hypersexuality and the committal of a sexual offence in the absence of other history of pervasive sexual offending and related convictions. Whilst I am not a neurological specialist and have no experience with the treatment of patients with Parkinson’s disease who have developed hypersexuality, I note that these are well described in medical literature. On the other hand, although his spouse does not make a good case for the emergence of hypersexuality in general terms post Parkinsonian medications, I consider that it is very likely that his Dementia disorder would lower the threshold for impulse control and such behaviours … [Mr X’s] judgment, his insight into what the victim was thinking may have been impaired due to his dementia and accordingly his impulse control to at least some extent diminished.

[34]   Dr Immelman wrote a second report dated 26 November 2017, filed in response to the Crown’s submission that the reports were not credible because they did not assess Mr X’s state of mind at the time of his offending. He states:

The Dementia is now of moderate severity; the usual pattern is a progressive deterioration over years from mild through to moderate and then to severe.

Although it is not possible to have absolute certainty that [Mr X] was suffering from dementia in 2016 in the absence of a diagnosis at the time, there is a preponderance of evidence pointing in that direction, including the natural history of Parkinson’s Disease complicated by Dementia and that significant others had already taken steps to compensate for his cognitive deficits. In addition to the Dementia, as Dr Casey has pointed out in her report symptoms of hypersexuality are a well-known impulse control disorder associated with treatment for Parkinson’s disease, with the majority of reported cases being on adjuvant dopamine agonists such as Ropinirole, which [Mr X] was taking at the time of the offending.

…

In 2016, albeit in the absence of frontal executive function testing at the time, it is highly likely that [Mr X] had impairments in this domain. The basis for this retrospective extrapolation, is that the cause of impairment is a progressive neurological disease; it has not arisen suddenly, as it would occur with a traumatic brain injury.

If it is accepted that at the time of the offending [Mr X] was impaired in his judgement and decision-making (as can be demonstrated now), it follows logically that this would have impacted on [Mr X’s] state of mind at the time of the offending.

[35]   Mr Bonnar submits that the evidence is credible and fresh: credible, as it was provided by qualified experts, and fresh because the extent of Mr X’s impairment was not apparent to counsel in the District Court.

[36]   In the alternative, if the evidence is not considered fresh, Mr Bonnar submits that there is a strong risk of miscarriage of justice if the evidence is excluded. He submits that the evidence concerns Mr X’s mental condition now and at the time of his offending. The second is relevant to the gravity of offending, the argument being that it is more likely than not to have affected Mr X’s judgment, decision-making and behavioural control, and caused him to act in the way he did. Evidence as to Mr X’s condition now is relevant to consequences of a conviction and to name suppression because it also concerns the risk of Mr X committing suicide following entry of the conviction and consequent publicity. Mr Bonnar therefore submits that the evidence has an impact on the “safety” of the conviction such that its exclusion would risk a miscarriage of justice.

[37]   The Crown submits that the evidence is not fresh, because it could have, with any degree of diligence, been called at sentencing. The Crown points to the fact that medical evidence of Mr X’s neurologist, Dr McAuley, was adduced at sentencing, to illustrate this point.

[38]   The Crown submits further that no “miscarriage of justice” concerns arise and that the broad assessments made in the reports do not give rise to an issue of miscarriage of justice if the reports are not admitted. The reports were prepared following a significant lapse in time after the offending. The offending occurred on 18 March 2016. The earliest of the psychiatric reports is dated 27 June 2017. The Crown submits that it follows that the report writers’ ability to assess Mr X’s mental state at the time of the offending is significantly compromised, which undermines the credibility of the new evidence.

[39]   To a material extent the new evidence is fresh as, although viewed retrospectively, there was clear mental deterioration. This had been accommodated and probably put down to Parkinson’s disease. Dementia was not diagnosed until June 2017. The new evidence is certainly credible. Further, I consider there is a risk of a miscarriage of justice if the reports are not admitted. For example, the expert evidence is that Mr X presents as at June/September 2017 as a suicide risk, and these reports are evidence of that risk. That is a highly material consideration to both appeals. I consider admission of the reports is necessary for determination of the appeals.

[40]   Turning to the medical reports, I accept the points raised by the Crown that the comments made about hypersexuality appear to be somewhat general, and in respect of Mr X’s exhibiting symptoms of hypersexuality, there is no evidence as to when these symptoms began, or whether he was exhibiting them at the time of the offending. His wife was the one who told Dr Casey on 25 August 2017 about the symptoms of hypersexuality, but she did not mention them in her affidavit sworn 10 April 2017, though Mr X and his wife were obviously alive to that as a side effect of Parkinson’s medication. Nor do Dr Casey’s or Dr Galpin’s reports comment on Mr X’s cognition at the time of the offending, which reduces the relevance of their comments made regarding hypersexuality. While Dr Immelman’s view  in his second report, dated  26 November 2017, is that it is highly likely that Mr X suffered from dementia/frontal lobe dysfunction at the time of his offending, Dr Immelman has not directly linked that to symptoms of hypersexuality.

[41]   I note also the evidence of Dr David McAuley, who has acted as Mr X’s neurologist since 2005. He wrote in a letter, which was before the District Court, that in respect of the medication Mr X was taking: “a well-recognised, but fortunately very uncommon side effect of both drugs (more particularly ropinirole) is to induce hypersexuality”.

[42]   I accept the evidence that Mr X is currently suffering from moderately serious dementia, and while I note the Crown’s point that the psychiatrist reports were completed some time after the offending, I also accept Dr Immelman’s view that it is highly likely Mr X suffered from dementia at the time of the offending, which may have contributed to his offending. I accept it is possible, though the evidence is unclear, that the Parkinson’s medication had a part to play in the offending. I also accept Dr Galpin’s view that in any event the dementia disorder would diminish Mr X’s impulse disorder and impair his insight.

[43]   Before leaving the medical reports, I note that Mr X, in his discussions with both Dr Casey and Dr Galpin, asserted his innocence regarding the offending. Neither doctor suggested that he may have forgotten or been easily confused by suggestion. The interviews were only six months or so after he pleaded guilty.

New affidavit from victim as to views on name suppression

[44]   In addition to the earlier victim impact statement, an affidavit outlining the victim’s views was filed with the Court on 10 November 2017, some of it repeating her earlier statement.

[45]   The victim wrote that Mr X should not retain name suppression because it would only be in the interests of self-preservation. She also made some comments about name suppression in general, a need for “public stigmatisation” and the imbalance of power of men over women.

[46]   She considers that Mr X has faced no consequences other than financial costs for his offending, and that lifting name suppression will see Mr X face the real consequences of his actions. She says, if it is not lifted, she will feel as though the pain she has endured, both through his offending and the court process, will be in vain.

[47]   Mr Fraser, for the Crown, accepts that the victim’s affidavit is not fresh, as it could have been obtained at sentencing, but submits that under s 200(6) of the Criminal Procedure Act 2011, the Court “must” take into account any views of the victim when determining whether to make an order for permanent name suppression, and the prosecutor must inform the Court of any views ascertained from the victim regarding an application for permanent name suppression under s 28 of the Victim’s Rights  Act 2002. Because that requirement is mandatory, the Crown is obliged to submit, and the Court can admit, the further views of the victim on name suppression.

[48]   I agree with the Crown that the victim’s views should be put before the Court. However, I also accept the point made by Mr Bonnar that some of the general statements in the report are not properly part of a victim’s view on whether a discharge without conviction and permanent name suppression should be granted.

Appeal against refusal to grant a discharge without conviction

District Court decision

[49]   Judge Thomas identified the aggravating factors of the offending. He said, first, Mr X had abused the trust of the victim and the victim was vulnerable. He recorded that she was an employee of Mr X and her family was close to his. Her parents were close business associates of his. Second, the impact on the victim was noted. Judge Thomas said that she had to leave behind her life and everything that she had known, she “left behind her innocence … trust … her ability to believe in people

… her self-esteem … her confidence. She was only 21”.7

[50]   Judge Thomas then noted that this sort of offending constitutes a serious violence offence that warrants  a  warning  under  the  three-strikes  legislation. Judge Thomas considered the offending to be serious.

[51]   The Judge said that Mr X suffers from Parkinson’s, and has been treated for it for 23 years. He noted Mr X’s neurologist’s evidence (the only evidence then before the Court), that the medication can cause hypersexuality, resulting in inappropriate sexual behaviour such as spontaneous touching. However, Judge Thomas said that this was described in a general way, and there was no evidence that the medication had affected Mr X such that it had caused hypersexuality, nor any evidence of Mr X’s reaction history to the medication. Judge Thomas also considered that the offending was persistent after Mr X had been told no by the victim. Overall, he was prepared to take Mr X’s condition into account, but only to a limited degree.

[52]   Significant weight was given to Mr X’s age, as he was 71, and had never offended before. Judge Thomas considered he was a person of otherwise good character, had pleaded guilty at an early opportunity and had always acknowledged what he had done – apologising on the night and since then. Judge Thomas considered Mr X was genuinely remorseful, and this reduced the gravity of the offending to what Judge Thomas described as “moderate”.

[53]   In terms of the consequences of a conviction, Judge Thomas did not consider that Mr X had met the threshold required for an impediment to overseas travel to be considered a consequence of a conviction.8 Mr X had also submitted that because he

7      Police v X [2017] NZDC 7551 at [3].

8      The Court in Edwards v R [2015] NZCA 583 discussed the threshold that must be established on

owns a local family business in the community, which is a small market where everyone knows everyone, he would lose some customers and suffer embarrassment. Judge Thomas expected that he would, and said that in the end that is, of course, what Parliament intended. People commit offences. They get convictions. They have to live with the consequences of those convictions. They have to explain themselves to people.”9 Judge Thomas considered that these were ordinary consequences of conviction, and also noted that Mr X had not, and could not, substantiate how much his business would suffer. Judge Thomas was prepared to accept that it would suffer to a certain degree, but concluded that these ordinary consequences would not be out of all proportion to the gravity of the offending, and given that is required for a discharge without conviction to be granted, he refused the application.

Submissions

[54]   Mr X appeals the District Court Judge’s decision to refuse to grant a discharge without conviction, on the basis that the District Court:

(a)failed to properly assess the aggravating and mitigating factors of the offending;

(b)erred in accepting the impact the offending had on the victim as outlined in her victim impact statement, without having regard to whether that impact was reasonable;

(c)incorrectly determined the seriousness of the offending based on the consequences suffered by the victim, rather than the actual conduct of Mr X; and

(d)inappropriately utilised the three-strikes legislation as a basis to assess the seriousness of the offence of indecent assault.

Relevant law

that ground in discharge without conviction applications.

9      Police v X [2017] NZDC 7551 at [11].

[55]   Section 106 of the Sentencing Act 2002 provides that a court may discharge an offender without conviction.

[56]Section 107 provides that:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[57]Section 107 requires consideration of three factors:10

(a)the gravity of the offence, having regard to both aggravating and mitigating factors, and the factors that apply to the offender;

(b)the direct and indirect consequences of a conviction, for which the Court must be satisfied that there is a real and appreciable risk of such consequences;11 and

(c)whether those consequences are out of all proportion to the gravity of the offence.

[58]If the s 107 test is met, the Court then has a discretion to discharge under s 106.

[59]   Section 107 requires judicial assessment of the threshold criteria, as opposed to the exercise of a discretion. Therefore, an appeal against the proportionality test under s 107 is by way of rehearing with the appellate Court making its own assessment of whether the criteria are established.12

[60]   This appeal concerns whether the s 107 criteria are established, and is therefore a general appeal.

Analysis

10     Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8] and [27]. See also G S M v Police

[2017] NZHC 896 at [28]-[32].

11     Davis v Police [2016] NZHC 1216 at [17].

12     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11] and [66]. See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 for the approach to general appeals.

[61]   Considering the “discharge without conviction” application afresh, I first turn to assess the gravity of the offending. Mr Bonnar submits that the gravity of the offending viewed overall is low, whereas the Crown submits that Judge Thomas correctly identified the gravity of the offending as serious, reducing to moderate.

Gravity of the offending

[62]   Mr Bonnar submits that Judge Thomas placed undue weight on the consequences to the victim, this approach being illustrated by Judge Thomas’ opening reference to the fact that Mr X had “shattered the [victim’s] life” and thereafter. Mr Bonnar submits that it is difficult to objectively correlate the levels of anxiety described by the victim to the offending, and that the Court was obliged to objectively assess the conduct of Mr X, when it appears Judge Thomas simply adopted the victim’s subjective assessment of that conduct.

[63]   Mr Bonnar submits that Judge Thomas overstated the seriousness of the offending by classifying it as serious. He submits that Mr X’s conduct was at the bottom of the range of conduct which can constitute indecent assault. Mr Bonnar says that Mr X’s actions in resting his hand on the victim’s knee and touching her breast over her clothing were non-invasive, fleeting and in close succession. He also says that contrary to Judge Thomas’ view, Mr X’s offending was not persistent. The second incident occurred immediately after the first incident, and after that Mr X did come to his senses almost immediately and stopped, save for asking (and succeeding) in holding the victim’s hand.

[64]   Mr Bonnar refers to four cases where the offending was considered to be low level, and submits that this offending is less serious than in those cases. In Stephenson v Police, the defendant grabbed the victim’s buttocks with one hand over the top of the victim’s clothing. Mr Bonnar says that the Court noted the touching was relatively minor and on appeal considered that the offending was at the lower end of the scale.13 In Marshall v Police, Mr Marshall placed his hand underneath the victim’s underwear on her skin and rubbed her left buttock. Mr Bonnar says the Court noted that this

13     Stephenson v Police [2015] NZHC 3101 at [20] and [22].

action was at the low end of the scale of offending of this nature.14 In Edwards v R, Mr Edwards, after having his expression of sexual attraction rebuffed, lay down beside the complainant and placed his hand on her breast saying he wanted to have sex with her. According to Mr Bonnar, the Court accepted that was low-level offending.15 In  B v NZ Police, Mr B had touched each of the three victims’ penises over the top of their swimwear and clothing. Mr Bonnar submits that the offending was initially considered to be moderately serious, but was assessed as low after mitigating factors personal to the defendant were taken into account.16

[65]   Mr Bonnar also submits that Judge Thomas erred by saying that Mr X created a pretext to be with the victim, and finding that the victim was vulnerable. In respect of the latter, Mr Bonnar submits that Judge Thomas failed to consider the victim’s age, maturity, and her free choice in going to see Mr X and holding his hand when asked. He submits further that the victim impact statement erroneously referred to Mr X as the victim’s employer, when that was not the case.

[66]   Mr Bonnar also refers to mitigating factors personal to Mr X, and submits that Judge Thomas failed to give sufficient weight to the probability that Mr X was suffering from hypersexuality from his medication. (Dementia was not then evidenced.) Mr Bonnar submits that Judge Thomas’ decision that the evidence had not established that Mr X was unable to make conscious decisions about what he was doing was not the test he was required to consider, rather his Honour was to assess the overall culpability of Mr X.

[67]   I agree with Mr Bonnar that the Court must come to its own view of the gravity of the offending, taking into account aggravating and mitigating features of both the offending and those personal to the offender. In that sense, the victim’s subjective perspective of the seriousness of the offending is important, but it is one factor amongst others. Having reviewed Judge Thomas’ decision, I agree that Judge Thomas overstated the seriousness of the offending by relying too heavily on the subjective views of the victim. The victim’s experiences and views are not to be read down, but

14     Marshall v Police [2014] NZHC 2681 at [18].

15     Edwards v R [2015] NZCA 583 at [11].

16     B v Police [2016] NZHC 1118 at [27].

are to be taken into account alongside the other features of the offending and the factors personal to the offender.

[68]   The seriousness of the actual offending itself must be considered. In relation to the three cases Mr Bonnar cites, I note that in Stephenson, which involved the defendant grabbing the victim’s buttocks after he had been following her, the offending was said to be moderate, taking into account the premeditation.17 While the actual touching was relatively minor, Brewer J did note that indecent assault is a serious offence. After assessing all factors, he concluded that the offending was at the lower end of the scale of indecent assault.18

[69]   Similarly, in Edwards, the appellant had placed his hand on the victim’s breast. The Court of Appeal held that it was low-level offending of its kind, but nonetheless was moderately serious. The Court noted that in relation to indecent assault:19

At one extreme it encompasses assaults that are tantamount to sexual violation. At the other, it protects personal autonomy in sexual matters, policing an important social boundary by proscribing non-consensual sexual touching. So courts always take the offence seriously. But it does not fall into a separate category for discharge purposes. A fleeting touch may qualify as an assault in law and in context it may be only just indecent. Each case requires assessment on its own facts.

[70]   The offending here included grabbing both breasts, not touching one, and the victim only allowed Mr X to hold her hand because she was concerned about refusing. Taking into account the facts and the cases Mr Bonnar refers to, the offending in this case was somewhere in the moderate to low range, but noting that indecent assault is a serious offence.

[71]   The aggravating features of the offending in this case include the position of trust Mr X had with the victim. During the course of the hearing the Crown reasserted that the victim was an employee of Mr X, and Mr Bonnar did not contradict that. Mr X was therefore in a position of trust. He was also in such a position because he had a close relationship to the victim’s family, and was part of the victim’s local community. I consider that Mr X abused his position of trust.

17     Stephenson v Police [2015] NZHC 3101 at [20].

18 At [23].

19     Edwards v R [2015] NZCA 583 at [9].

[72]   I also consider that the victim was vulnerable insofar as she was in a moving vehicle during the offending, which was driven by Mr X. (I have already noted she felt she had to hold Mr X’s hand after he had touched her because she was scared of what he might otherwise do.)

[73]   Some care needs to be taken with respect to these two aggravating features, as they are likely to already be a material contributor to the very strong views expressed by the victim.

[74]   I disagree with Judge Thomas that the offending was premeditated. The acts constituting the offending occurred over a short period of time and the touching itself was brief and relatively minor.

[75]   After taking account of the relevant aggravating factors of the offending in this matter, and the comparable cases above, I consider the offending was moderately serious.

[76]I now turn to mitigating factors.

[77]   In respect of Mr X’s mental health problems, I consider the various medical reports to be of limited assistance as to whether Mr X was suffering from hypersexuality at the time of his offending, and I do not consider it appropriate to make any finding that he was, although clearly it was possible.

[78]   But, the evidence is clear that Mr X suffers from Parkinson’s disease aggravated by moderately serious dementia, and that he suffers from frontal executive dysfunction specifically, which affects the ability of the brain to filter behaviour. I accept Dr Immelman’s evidence that it is highly likely that he suffered from dementia, including frontal executive dysfunction, at the time of the offending, and I accept his and Dr Galpin’s evidence that Mr X’s dementia issues likely had a role in his offending. I therefore place materially greater weight on Mr X’s medical condition than Judge Thomas was in a position to do, as he had only the one medical report. There was no dementia diagnosis at that stage.

[79]   However, contrary to Judge Thomas’s view that Mr X remained remorseful after apologising to the victim, I do not consider that Mr X has shown continuing remorse to the extent that any weight should be placed on it. He did apologise immediately and again a few days later. But the new psychiatric reports show that Mr X maintains that he is innocent. Dr Casey wrote that Mr X said that he had been “set up” and that he had been advised to plead guilty so as not to go through with a trial.

[80]   I consider Mr X’s surprising non-payment of the reparation sum of $7,000 also indicative of a lack of true remorse. His counsel accepts that the penalties imposed will stand if the convictions are lifted, so Mr X is not expecting the money order to go away.

[81]   Judge Thomas also considered Mr X’s “early” guilty plea should be given weight as a mitigating factor. The Crown says that Mr X’s first appearance was on 3 June 2016, but he only pleaded guilty on the morning of his trial before Judge Collins on 22 February 2017. On that basis, only limited weight should be placed on the fact that Mr X pleaded guilty.

[82]   Judge Thomas also considered Mr X’s “otherwise good character” was a mitigating factor. Judge Thomas did not take into account Mr X’s previous dishonesty convictions for use of a document for pecuniary advantage. Those convictions date back to 1995, and while Mr X has a completely clean record from then until the present offending, those convictions are still relevant in this respect. It is also completely different to the much earlier offending. There is also evidence that the offending here is out of character. Overall I am prepared to agree with Judge Thomas that good character is a mitigating factor in these circumstances.

[83]   Overall, taking into account the factors addressed above, I consider that the gravity of the offending was reduced from moderate to low, particularly because of Mr X’s medical condition, but bearing in mind that the charge itself is serious. I am influenced somewhat by the Churchward v R20 thinking in reverse, whereby in a similar way that youth is a mitigating factor, in part on the basis that brain development

20     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

is not complete, the proven deterioration of brain function should be treated as a mitigating factor that reduces culpability.

Consequences of a conviction

[84]   In relation to the consequences of a conviction, the defence submitted at the District Court that because of Mr X’s Parkinson’s disease, he has limited time with any mobility and so he and his wife intended to cruise to numerous different countries over the next few years. One country he intended to visit is Canada. In their written submissions on the appeal, the defence said that Judge Thomas was wrong to reject travel difficulties as a consequence Mr X would likely face. However, in oral argument on appeal, Mr Bonnar immediately offered that this may not be a strong point. I do not consider it is for a number of reasons. First, Mr X has convictions already, which are admittedly old, but may or may not be surmountable. Second, there was evidence in the District Court that short-term travel to Canada might still be possible. In any event, whereas effect on travel with work and income consequences would be more relevant, it is unappealing for someone to seek a discharge on an offence of this nature on the basis of a wish to take a cruise to Canada, even with a serious Parkinson’s condition.

[85]Overall, I place no weight on travel consequences.

[86]   Mr Bonnar also points to the effect on the family-run businesses, and the embarrassment Mr X’s family would suffer.

[87]   I agree there is a risk of harm to Mr X’s family businesses (although it seems his own involvement in them is much reduced), and there would be embarrassment to Mr X and his family (although I would not categorise it as “extreme embarrassment”).

[88]   Most significantly, Mr Bonnar points to serious potential damage to Mr X’s mental health and a significant risk of self-harm as the consequence of a conviction. In respect of the risk of self-harm and suicide, I accept that Mr X has provided evidence of an appreciable risk that this could occur. I have relied on the psychiatric reports in reaching this view. In Dr Immelman’s first report in June 2017, he noted

that Mr X’s emotional state at that time meant Mr X was at significant risk, should he be unsupervised with access to the means, of “completed suicide”. Dr Immelman also noted that Mr X’s wife undertook to ensure Mr X’s whereabouts, including regular supervision, and that there are other  family  members  in  their  local community.  Dr Galpin noted that Mr X started on antidepressants in June/July this year. Since trialling antidepressants there has been a measure of success as he is no longer tearful, more able to cope, and has become more active as opposed to sitting on the couch staring vacantly into space, although he still lacks appetite. He later noted that Mr X has had, in relation to treatment, a response of some degree with respect to depressive symptoms.

[89]   In her 25 September 2017 report, Dr Casey reported that Mr X’s mood was low and he spoke of different means of suicide. Dr Casey also noted that Mr X has no history of self-harm and there is no other evidence that he has attempted suicide or self-harming behaviour.

[90]   Although it is hard to divide up the consequences of a conviction and the effect of publication in a case like this, it is really the latter, in my view, that brings the most serious health and safety risks. Mr X has had the conviction now since April this year. It seems to have been the partial publication and the period that followed it that triggered the suicide response.

Are the consequences of a conviction out of all proportion to the gravity of the
 offending?

[91]   I do not consider that the likely financial harm to Mr X’s businesses, or the embarrassment Mr X’s family will face, are other than ordinary consequences of a conviction.

[92]   The impact of Mr X’s living as part of a small community does not aggravate the consequences of financial harm to Mr X’s businesses or the embarrassment his family will face to beyond those that normally follow the fact of a conviction. Even in large cities, people tend to live in smaller communities. In these circumstances where being in a small community has operated so much in the victim’s disfavour, because she felt she had to leave to avoid seeing Mr X, it would be unacceptable to

take this point in favour of Mr X. He could himself ameliorate the consequences by leaving the small community for a bigger one.

[93]   As stated above, I accept there is a real risk to Mr X’s mental health from a conviction, but I consider the risk of suicide from a conviction alone is not high. Further damage to Mr X’s mental health is something I consider he has to endure in the circumstances of the offending he has committed.

[94]   On that basis, while I have found that the gravity of the offending is low, a discharge without conviction is not appropriate as the consequences are not out of all proportion to the gravity of the offending.

[95]   Even if I had not reached that conclusion, I would have refused a discharge without conviction in circumstances where Mr X, in discussions with doctors, is purporting to strongly dispute a charge to which he pleaded guilty.  Regardless of  Mr X’s Parkinson’s disease and dementia diagnosis, in my view, a discharge is not appropriate in those circumstances. Mr X has pleaded guilty and been convicted, and that is that. An application for a discharge without conviction is not a vehicle to, in effect, plead not guilty.

Name suppression appeal

District Court decision

[96]   In relation to Mr X’s name suppression application, Judge Thomas noted that Mr X again relied on the embarrassment that would be caused, and the effect on his businesses. Judge Thomas accepted that publication again might affect the bottom-line profit for Mr X’s businesses and the income to him and his family, but again it would be speculation as to how much. Judge Thomas also noted that they are consequences that exist for everyone who is convicted of a serious offence and who runs a business.21 Judge Thomas did not consider that Mr X had proved that any

21     Police v X [2017] NZDC 7551 at [13].

hardship that he or his family might suffer as a result of publication would be extreme.22

[97]   On that basis, Judge Thomas refused Mr X’s application for permanent name suppression.

[98]   Again, Judge Thomas did not have the medical evidence which I have allowed to be adduced.

Submissions

[99]   Mr X appeals the District Court Judge’s refusal to grant name suppression on the basis that Judge Thomas overstated the seriousness of the offending and failed to assess the relative seriousness of Mr X’s conduct when considering whether name suppression should be granted.

Relevant law

[100]   This appeal is a first appeal from the decision in the District Court which is governed by ss 282—287 of the Criminal Procedure Act 2011. Pursuant to s 283, an applicant for a suppression order may appeal against the decision of a court to refuse to make a suppression order. This court can determine the appeal by:23

(a)confirming the decision appealed against; or

(b)varying the decision appealed against; or

(c)setting aside the decision appealed against; or

(d)making any other order it considers appropriate.

[101]   Suppression of a person’s identity may be ordered by the Court pursuant to    s 200 of the Criminal Procedure Act 2011.

[102]Section 200 of the Act provides, inter alia, as follows:

22 At [13].

23     Criminal Procedure Act 2011, s 287.

(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

(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.

…

[103]   The first stage of the two-stage analysis requires the Judge to determine whether one of the threshold grounds under s 200(2) of the Act is made out. As the Court of Appeal recorded in Robertson v Police when it expanded on this stage: 24

That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

[104]   In accordance with Austin, Nichols & Co Inc v Stichting Lodestar, the appellate Court must come to its own view on the merits when deciding whether one of the threshold grounds in s 200(2) has been met. The weight given to the decision of the lower Court is a matter of judgment.25

24     Robertson v Police [2015] NZCA 7 at [40].

25     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].

[105]   The second stage of the two-stage test requires the Judge to exercise their discretion as to whether suppression should be granted or not. The Court of Appeal in Robertson v Police noted that at this stage, the:26

… judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

[106]   This appeal is concerned with the first stage of the two-stage analysis, and is therefore a general appeal.

[107]   When assessing whether to make a name suppression order, there is a settled presumption in favour of open reporting. This is based on “the two fundamental principles of open justice and freedom of expression and extend[s] to all aspects of the criminal process including public identification of a person convicted of an offence.”27 This presumption has been given statutory form in the first stage of the two-stage process, whereby the presumption applies unless the applicant can establish one of the grounds to displace it.28 It is also relevant at the second stage, whereby the principle of open justice must be considered in exercising the discretion, notwithstanding that the threshold has been crossed.29

[108]   In R v Liddell, the Court of Appeal stated that “the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as surrogates of the public.”30

Analysis

[109]   Mr Bonnar submits that Judge Thomas failed to assess hardship to Mr X and his family relative to the nature of the offence and the facts of that offending.

26     Robertson v Police [2015] NZCA 7 at [41].

27     DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306 at [9(a)].

28     D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].

29     D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].

30     R v Liddell [1995] 1 NZLR 538 (CA) at 546.

[110]   In Tiwari v NZ Police the Court of Appeal said that the court must consider whether the effect of publication is excessive, given the nature of the offence and the specific facts of each case.31

[111]   Mr  Bonnar  submits  that  in  these  circumstances,  the  consequences   Judge Thomas assessed as being ordinary are in fact extreme in terms of s 200(2)(a), when considered relative to Mr X’s offending, which he submits is minor. He also submits that failure to grant name suppression would endanger the safety of Mr X, in terms of s 200(2)(e), because Mr X presents as a suicide risk.

[112]   As will be clear, I do not consider that financial harm to the family businesses is likely to cause extreme hardship. There is no clear evidence of what financial effect publication would have, and so any order for permanent name suppression would therefore be made on the basis of speculation. Further, as Duffy J said in H v R, “in the majority of cases, name suppression should not be viewed as a tool to protect one’s commercial interests.”32 Even if financial loss is a likely consequence, it is an ordinary consequence. The embarrassment that Mr X’s family may face is also an ordinary consequence. The fact that I have assessed the gravity of the offending as low for serious offending of its kind, does not mean these consequences are elevated beyond ordinary consequences such that they constitute likely extreme hardship. As Gendall J said in the High Court decision of Robertson v Police, I do not consider these consequences “fall outside the ordinary experience”.33

[113]   Therefore, the threshold ground under s 200(2)(a) is not met based on the consequences of financial loss or embarrassment.

[114]   However, I do accept that publication of Mr X’s name would be likely to endanger his safety or for similar reasons cause him extreme hardship. There is strong evidence from Dr Immelman of Mr X’s being at significant risk of suicide following his conviction and the previous publication of his identity. Dr Immelman said that the combination of Mr X’s mental impairment, (now moderately serious dementia and

31     Tiwari v Police [2014] NZHC 2509 at [55].

32     H v R [2015] NZHC 1501 at [41]-[42].

33     Robertson v Police [2014] NZHC 1302 at [60], noted on appeal in Robertson v Police [2015] NZCA 7 at [49].

becoming progressively serious) and a high sensitivity to publication, heightens his risk of distress and possible completed suicide. I accept that name suppression does not automatically follow a risk of suicide34 and that the risk can be addressed to some degree with medication, but where there has already been publication following the sentencing (so it would be a repeat), and given Mr X’s serious mental and physical impairments, I consider the threshold grounds under s 200(a) and (e) are met.

[115]   I accept the Crown’s submission that the Court must take into account the views of the victim, who is strongly opposed to name suppression. In this regard, the fact that Mr X has been convicted and that there has already been at least partial public identification of him is relevant.

[116]   I also note, without diminishing the seriousness of the crime, that there is no perceived likelihood of repeat offending by Mr X.

[117]   The Crown points to prior publicity of Mr X’s offending as a relevant consideration in favour of publication. The New Zealand Herald published an article that was shared with members of the local community Facebook page. It included details of Mr X’s age, occupation, place of residence and medical condition. The Crown submits that “the horse has bolted”35 and so there is little value in preventing further publicity in the present case. As will be apparent, I disagree with this point. I do not consider that Mr X should be disadvantaged in terms of a name suppression application, by the media’s breaching a suppression order.

[118]   I record that the Crown also submitted that Mr X’s other criminal convictions are able to be made public, and so any risk of extreme hardship already exists on the basis of previous offending. Therefore, publication of this offending does not add in a significant way to that risk. Mr Fraser, for the Crown, withdrew that submission at the hearing. I do not consider such a submission to be appropriate. The early offending is historical and of a totally different nature. I cannot see that publication of that offending is in the public interest or that it is relevant to the argument.

34     Robertson v Police [2014] NZHC 1302 at [49].

35     R v X (No 2) [2015] NZHC 1245 at [12].

[119]   Overall, I consider that the threshold criteria under s 200(2)(a) and (e) of the Criminal Procedure Act have been made out. In all of the circumstances, I consider that it is appropriate to exercise my discretion to order permanent name suppression.

Result

[120]The applications for leave to adduce fresh evidence are granted.

[121]The appeal against conviction is dismissed.

[122]   The  appeal against  refusal  to  grant name  suppression is allowed.    I order permanent suppression of the defendant’s name.

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Hinton J