POLOSAK v NEW ZEALAND POLICE [2022] NZHC 2131

POLOSAK v NEW ZEALAND POLICE [2022] NZHC 2131 [25 August 2022]ORDER PROHIBITING PUBLICATION OF APPELLANT'S NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS AS PER [49]OF THIS JUDGMENTIN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-86CRI-2022-409-87[2022] NZHC 2131BETWEEN CASSANDRA POLOSAKAppellantAND NEW ZEALAND POLICERespondentHearing: 18 August 2022Appearances: E Huda for AppellantC M Hallaway for RespondentJudgment: 25 August 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 25 August 2022 at 2 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 3 May 2022 Cassandra Polosak was sentenced to three months' communitydetention and ordered to pay $1,000 in emotional harm reparation to the victim afterpleading guilty to charges of posting a harmful digital communication,1 offensive useof a telephone2 and breaching a protection order.3 Judge Callaghan declined todischarge her without conviction and declined to grant permanent name suppression.4She appeals that decision.Facts[2] Ms Polosak was in a domestic relationship with the victim from mid-2018 toearly January 2021. During 2019, they had a relationship difficulties,5 and she woulduse email addresses and phone numbers unfamiliar to the victim to send him oddmessages. He was not sure who was sending them. In January 2021, the victim endedthe relationship.[3] Ms Polosak then purchased SIM cards and cell phones and created new emailaddresses and Facebook accounts to send more anonymous messages.[4] On 29 January, using a fictitious Facebook account, she sent messages to thevictim's employer. She told the employer the victim was under police investigationfor inappropriately touching girls at his bar and, while this was occurring, she wouldnot be going back. The employer messaged her back asking for more information butwas sceptical of the allegations. On 30 March 2021 she started to post the sameallegations on various public Facebook music pages the victim was associated with.She also mentioned the bar and that they were covering up the matter. These postswere seen by numerous members of the public and caused the victim serious emotionaldistress.1 Harmful Digital Communications Act 2015, s 22; maximum penalty two years' imprisonment.2 Telecommunications Act 2001, s 112(1); maximum penalty three months' imprisonment.3 Family Violence Act, ss 90(b) and 112(1)(a); maximum penalty three years' imprisonment.4 Police v Polosak [2022] NZDC 7685.5 The summary of facts says they "had a few issues in their relationship". Ms Polosak now submitsthere was something more serious.[5] Between 11 March 2021 and 16 June 2021, Ms Polosak sent the victim variousoffensive messages. On 11 March she sent the text message "50k hit on u watch out"from a phone number he was unfamiliar with. She continued to send offensive andthreatening messages from this number until 1 April 2021. On 3 April she used adifferent phone and SIM card to send more messages threatening his friends, dog andex and stating she had poisoned him, was watching him and that she was armed. Shecontinued using this number until 20 April. On 19 April 2021 she sent an email to thevictim's employer using a false name and accused the victim of being under theinfluence of drugs at work and driving recklessly. She suggested they hire someoneelse.[6] On 6 May 2021 a temporary protection order was issued with the victim asapplicant and Ms Polosak as respondent. On 8 May this was served on her. Between23 May and 16 June, she breached the protection order by sending further offensivemessages including one message in which she said "I will stab u in ur sleep". She alsocreated email addresses and sent the victim offensive emails.District Court decision[7] In reaching his decision the Judge considered the views of the victim, whoopposed a discharge without conviction. In his victim impact statement he saidMs Polosak subjected him to ongoing psychological abuse through their relationshipand used the anonymous harassment and false police messages as a tactic tomanipulate him. He said they had the potential to destroy his career, his livelihoodand his relationships.[8] The Judge noted the pre-sentence report writer's view Ms Polosak wantedrehabilitation, had done the stopping violence programme and was a low risk first timeoffender. The Judge considered her statements to the pre-sentence report writer thatthe victim "never committed to the relationship", was "unpredictable in theirrelationship", and that she was burnt out at the time of the offending. The Judgeaccepted she suffered from depression and anxiety and possibly complex post-traumatic stress disorder.[9] The Judge also considered and referred to a report from a psychologist,Mr Craig Prince, suggesting Ms Polosak behaved in the way she did as a form ofrevenge for what she believed the victim did to her. He considered submissions fromher counsel to the effect that she had been in an abusive relationship with the victim.He noted she had made a complaint to police about the victim and there was evidenceshe had lodged a sensitive claim with ACC which the Judge inferred related to thevictim.[10] The Judge was provided with text messages exchanged during the relationshipwhich he summarised as follows:[20] The point of those being raised by the defence was that the defendantwas motivated by the unsatisfactory responses to her complaints about theintimacy difficulties that they were having seemed to be brushed off by thevictim, and a reading of the various text messages does not necessarilyobjectively mean that that is the stance that he took. In any event, theyoccurred during the course of a relationship which continued on despite thepurported difficulties that were said to have been occasioned by Ms Polosakin those various text messages.[11] In assessing the gravity of the offending, the Judge considered the volume ofthe messages and the fact that they were persistent. He found the messages wereabusive and threatening in nature, involving direct threats to kill and alleging thevictim was a sexual offender. They were also made publicly and involved a level ofpremeditation. The Judge found they were malicious and amounted to psychologicalabuse.[12] The Judge determined the offending could be met with an overall starting pointin the range of 18 to 20 months' imprisonment, though noted there would be discountsfor her guilty pleas, the psychologist's report, the rehabilitative steps she has taken andher lack of previous convictions. Ultimately, he considered the offending could bemet by a starting point of 11 months' imprisonment and, after discounts, a sentence inthe region of five months would result.[13] In terms of the consequences of conviction, the Judge noted the real prospectMs Polosak would lose her employment as a police communicator. However, theJudge determined there was no certainty she would not lose her employment even ifdischarged without conviction because of the nature of her employment and her actualoffending. He noted her employer, the New Zealand Police, was fully aware of hercircumstances and would take those circumstances into account whether or not aconviction was entered. In his view, the loss of employment for criminal offending ofthis nature could be seen as a normal consequence of moderately serious criminaloffending.[14] The Judge did not consider the consequences of conviction were out of allproportion to the gravity of the offending so declined to grant a discharge withoutconviction.[15] The Judge also declined to grant suppression of her name. He noted her namewas unusual and would be associated with her on the internet. Furthermore, her fatherwas involved in unusual offending and that comes up when an internet search is doneof her surname. Prospective employers would no doubt check the internet where shewould be linked to this offending. That may affect whether she got furtheremployment. However, the Judge determined this was the position a lot of defendantsfind themselves in and did not amount to extreme hardship.[16] The Judge sentenced her to three months' community detention and orderedshe pay $1,000 reparation to the victim.Principles on appeal[17] The Court may grant a discharge without conviction under s 106 of theSentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffending.6[18] Appeals against the proportionality test under s 107 are by way of rehearing,with this court making its own assessment of whether the criteria are established.7 If adischarge without conviction should have been granted, then there will have been a6 Sentencing Act 2002, s 137.7 H v R [2012] NZCA 198 at [35]-[36].material error by the sentencing Judge, or a miscarriage of justice will have occurredfor any other reason, and so the appeal against conviction must be allowed.8[19] Name suppression is governed by s 200 of the Criminal Procedure Act 2011.A person applying for name suppression must satisfy a two stage test:(a) the Court must be satisfied that publication would be likely to lead toone of the grounds listed in s 200(2); and(b) if so, the Court must also be satisfied that it is appropriate to exerciseits discretion to grant name suppression, taking into account theinterests of the applicant, the victim, and the public.[20] On an appeal relating to the first step of the application, as here, the principlesrelating to a general appeal apply, and this Court is entitled to form its own view ofthe merits.9SubmissionsAppellant's submissions[21] Mr Huda, for Ms Polosak, submitted the Judge erred in failing to consider theextent to which the victim's conduct mitigated Ms Polosak's offending. In particular,he argued by using the phrase "intimacy difficulties", the Judge had mischaracterisedMs Polosak's affidavit evidence that the victim choked her during sexual intercoursewithout warning or prior discussion, engaged in penetrative sexual intercourse despiteprotest and inflicted psychological abuse by treating her like a de facto partner butrefuting the existence of a relationship. Mr Huda provided Facebook Messengercommunications from times closer to the alleged incidents that he maintained confirmMs Polosak's account of the relationship and her allegations that aspects of theirsexual relationship were non-consensual. Mr Huda effectively characterisedMs Polosak as a victim of family violence who had retaliated by her offending, and hesubmitted it was an error for the Judge not to consider her offending on this basis.8 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].9 Austin, Nicols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.[22] Mr Huda accepted her offending merited a starting point in the region of11 months' imprisonment but submitted circumstances relating to her upbringing, thevictim's conduct, her mental impairment and the rehabilitative steps she had takensince the offending, all reduced that gravity. He submitted, overall, it was at the topend of a low-level or bottom end of a moderate-level protection order breach.[23] Mr Huda submitted the consequence of conviction was the "real andappreciable risk" Ms Polosak would lose her employment as a police communicator,a role she has performed for six years. Similarly, he submitted there was a real andappreciable risk she would struggle to secure meaningful employment in the future.He maintained this met the threshold for granting a discharge without conviction.[24] Mr Huda also submitted the Judge erred in determining her circumstances didnot meet the extreme hardship threshold required to warrant name suppression of adefendant.10 He argued if her identifying particulars are published, prospectiveemployers will be able to learn of her offending even once the protection offered bythe Criminal Records (Clean Slate) Act 2004 becomes operative.11 He submitted,given she is financially self-reliant as she has no family support and is likely to applyfor semi-skilled jobs, the effect of publication on her employment prospects will meanshe will suffer extreme hardship.Respondent's submissions[25] Ms Hallaway submitted the Judge did not err in characterising Ms Polosak'sallegations as "intimacy difficulties". She submitted, as counsel did in the DistrictCourt, this was not the appropriate forum for determination of those allegations. Shenoted the victim was not represented by counsel and could not respond. Indeed therewas a risk of re-victimisation should Ms Polosak's allegations be accepted on the basisof her self-report, especially given part of the offending involved false claims of sexualassault. Ms Hallaway submitted the Facebook messages were equivocal andconsistent with boundaries being pushed in a BDSM relationship. She submitted theuse of the words "intimacy difficulties" reflected the fact the Judge could not10 Criminal Procedure Act 2011, s 200(2)(a).11 Criminal Records (Clean Slate) Act 2004, ss 7 and 14.responsibly characterise the relationship as one involving psychological or sexualabuse.[26] Even if the Judge had placed weight on the allegations, Ms Hallaway submittedthe consequences of conviction would still not be out of all proportion to the gravityof the offending having regard to the scale of the offending, the premeditation, thesophistication, the harm caused and the breach of the protection order. She submittedthe offending was such that the police may consider she was not an appropriate personto remain in her role as police communicator. The fact of conviction would not bedeterminative.[27] Ms Hallaway submitted the adverse effects on Ms Polosak's futureemployment were ordinary consequences of conviction that do not meet the relevantstatutory threshold. She referred to Russell v Police where the Court of Appeal heldthe operation of the Clean Slate regime does not alter the heavy onus on an applicantfor name suppression.12Analysis[28] The key issue in this appeal is whether the Judge erred in his assessment of thegravity of the offending by mischaracterising the relationship between Ms Polosak andthe victim and insufficiently considering her allegations about acts perpetrated againsther in the relationship.[29] However, the starting point for this analysis is the gravity of Ms Polosak'saccepted and proven criminal conduct. In my view the Judge was right to find thiswas premeditated and persistent offending including threats to kill, threats of watchingthe victim's house, obtaining a gun, stabbing him in his sleep and poisoning him.These continued to be made after a protection order issued. It was offending thatjustified a starting point of imprisonment.[30] In his victim impact statement, the victim stated Ms Polosak's offendingcaused deep distress to him, his co-workers and his friends. He felt her behaviour12 Russell v Police [2020] NZCA 103.meant their relationship was built on gaslighting and psychological abuse. He felt shewanted to maintain control over him and her methods became more extreme after heterminated their relationship. He felt her offending had the potential to destroy hiscareer, livelihood and relationships. I accept these are severe and harmfulconsequences of her offending and were correctly treated as an aggravating factor ofthe offending.[31] The next question is whether Ms Polosak's personal circumstances, includingher alleged treatment by the victim, reduced the overall gravity of the offending to thepoint where the consequences of conviction outweighed it. In that regard, I accept theJudge was required to take into account the victim's conduct to the extent it wasrelevant.13[32] In her affidavit, Ms Polosak deposed her father was an alcoholic and she hadvivid childhood memories of him acting violently towards her mother and her. Shestated her mother had suffered a traumatic brain injury and became unusually irritable,impulsive and irrational. She said she effectively had to look after herself during herhigh school years and was independent from about 18 years old.[33] In terms of her relationship with the victim, she said at the beginning they datedcasually but over time she thought the relationship matured and developed. She saidshe started to care for him and from her perspective they were in a romanticrelationship. She acknowledged his perspective was that it was a casual relationship.She said he choked her during sexual encounters without warning or discussion.Initially she was apprehensive but then she says she consented. She said she wantedto earn his affection and please him. She referred to an incident in 2018 (althoughthere is no suggestion the choking was not consensual) where he choked her so hardshe could not breathe and genuinely thought she was going to die, although he stoppedwhen she struggled physically. She also alleged the victim had penetrated her despiteher protesting she was not ready. She provided a schedule of Facebook Messageswhere she said she confronted the victim about these events during the relationship.She said there were other incidents of physical and psychological abuse.13 Sentencing Act 2002, s 9(2)(c).[34] I have considered these messages but agree with Ms Hallaway'scharacterisation of them as reflecting communication difficulties over the extent towhich BDSM practices were agreed between them, with the victim apologising if hehad been "inconsiderate". Nothing in them goes so far as to demonstrate abuse suchas would materially mitigate the gravity of the offending.[35] I have also considered the formal statement of Mr Prince, a psychologist whoassessed Ms Polosak for the purpose of determining whether there was a connectionbetween her mental health disorders and her offending behaviour. Mr Prince madethree points. First, while Ms Polosak may suffer from PTSD (allegedly as a result ofthe victim's actions), he did not consider there was a connection between that and theoffending. Second, he did not consider she suffered from Borderline PersonalityDisorder (BPD), disagreeing with Dr Dudek-Hodge. He considered it was safer toconclude she had displayed traits consistent with that disorder. Third, he consideredthere was a connection between her BPD traits and her offending. He said heroffending was consistent with her instability (repeated, rapid and abrupt mood shifts)and her intense anger arising from the victim's reported treatment of her whereby shefelt like a "placeholder" which was "discarded when [the victim] got a better offer".Mr Prince believed she offended as a form of revenge.[36] Mr Huda also sought to introduce a further report on appeal which wasprepared by Dr Suzanne Blackwell dated 27 July 2022. He had requested she reviewthe documentation and provide an opinion in relation to the issues he identified as tothe dynamics of relationships where there is abuse. Dr Backwell did not examine orinterview Ms Polosak and, at the outset of her report, she made it clear she was simplyoffering observations about the dynamics which are frequently present in situationssimilar to those described to her.[37] Dr Blackwell reviewed the reports of Dr Dudek-Hodge and Mr Prince. Sheadvised that people who are subjected to traumatic abuse sometimes form and continueto maintain close and unhealthy attachments to their abusers. Such behaviour is oftenintermittent and Dr Blackwell referred to it as "traumatic bonding". During theabusive and rejecting stage she said the victim may be afraid of or fear the abuser. Atother times the relationship may have positive aspects. In the context of Ms Polosak'schildhood marred by physical abuse, emotional/psychological abuse and neglect, andgiven Ms Polosak's identification of the alleged behaviour as intermittent,Dr Blackwell's opinion was that she may have sought to tolerate and remain in therelationship because of the hope she would be loved and that the abusive aspects willcease.[38] Dr Blackwell's opinion was tendered in response to the Judge's observationthat Ms Polosak had remained in the relationship despite the purported difficulties. Itwas not evidence that was before the Judge at first instance and there is no presumptionit should be admitted. To be admitted on appeal it should usually be fresh, cogent andcredible.14 While the evidence was obtained after the hearing there is nothing tosuggest it could not have been obtained earlier. That said the appellant would arguethat she only realised it was required given the Judge's observation that she stayed inthe relationship despite the alleged difficulties. However, in my view the real issue iswhether it is sufficiently cogent to warrant its admission. I do not consider it is.Dr Blackwell has not met nor interviewed Ms Polosak and cannot assist the Court onMs Polosak's individual circumstances and how they should be weighed in theassessment of the gravity of the offending.[39] This court regularly takes note of the fact victims of intimate partner violenceand/or sexual violence may remain in relationships with the perpetrators of thatviolence and delay in complaining about such violence. Dr Blackwell's evidence saysthe fact Ms Polosak remained in the relationship may not have a bearing on thecredibility of her allegations. However, that is well-understood. Given a decision todischarge without conviction is a very fact-driven assessment, generic counterintuitiveevidence is of little assistance and I therefore decline leave to adduce this furtherevidence. Furthermore, even if I had admitted it, I record it would have had no realbearing on the final decision which accepts Ms Polosak viewed the relationship asabusive, but refrains from making firm findings of abuse.[40] The real issue is whether the Judge erred in failing to characterise Ms Polosakas a primary victim in this manner, which is the characterisation Mr Huda seeks. I do14 R v Bain [2004] 1 NZLR 638 (CA) at [22] and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273at [117]–[119].not consider he did. In my view, the Judge's summary that the Facebook messagesshowed both Ms Polosak and the victim were "somewhat understanding of theirparticular positions" and that there was some "difficulty in the intimate relationship",was accurate. The Judge was not suggesting that the fact Ms Polosack wanted therelationship to continue undermined the validity of the allegations. Indeed, heacknowledged the ACC sensitive claim and inferred that it arose within therelationship, and, by implication, that she perceived the relationship as harmful andabusive.[41] Beyond that, I accept the Judge could go no further and Ms Hallaway is correctthat this appeal is an inappropriate forum for Ms Polosak's allegations to bedetermined. The victim has not been represented nor heard. It was sufficient that theJudge acknowledged her perception of the relationship as abusive which he did.[42] The remaining grounds of appeal are subsidiary. The Judge plainly accountedfor Ms Polosak's background circumstances, including her upbringing, in hisassessment of the gravity of her offending. He considered her mental impairment andthe rehabilitative steps she had taken. Ultimately, I agree with the Judge's assessmentof the gravity of Ms Polosak's offending. I do not consider her perception of therelationship as harmful and abusive materially detracted from the gravity of heroffending.[43] Likewise, I agree with the Judge's analysis of the consequences of conviction.Mr Huda referred to the same consequences on appeal as before the Judge, being thereal or substantial risk Ms Polosak would lose her employment as a policecommunicator.[44] A letter dated 12 April 2022 from Harley Dwyer of the New Zealand PoliceAssociation confirms the existence of a conviction is likely to have a material bearingon whether or not she is dismissed from her employment with the police. The sameletter indicated the conduct is considered to be sitting at the upper end of seriousmisconduct and that dismissal was a possibility. At its highest, this consequence ofconviction can be expressed as exacerbating an existing risk (resulting from heroffending as opposed to conviction) that she will be dismissed. The letter indicates aconviction will not be determinative. In any event, the Judge was right to concludeeven a loss of employment would not be out of all proportion to the gravity ofMs Polosak's offending.[45] I turn now to the appeal against the refusal to grant name suppression. Indetermining whether to exercise its discretion under s 200 of the Criminal ProcedureAct 2011, the Court is required to undertake a two-step inquiry.15 The first step iswhether a threshold ground under s 200(2) must be met.[46] The threshold ground relied upon here is extreme hardship. A very high levelof hardship is required before the threshold of extreme hardship can be established.16It must be something greater than "severe suffering or privation".17 A loss ofemployment or livelihood is insufficient.18[47] I accept Ms Polosak is likely to suffer some hardship as a result of her namebeing published. It may be difficult for her to conceal her offending from futureemployers and this will almost certainly have a detrimental effect on her futureemployment prospects. This is exacerbated by the fact she has a distinctive surnamewhich will mean her offending could still be discovered through internet searchesdespite the protections of the Clean Slate regime. Ultimately, though, any hardshipfalls well short of the "extreme hardship" which is required for fulfilment of thethreshold ground, and the Judge did not err in his assessment of the name suppressionapplication.Conclusion[48] The appeal is dismissed.[49] Mr Huda advised that if name suppression was not granted on appeal, he wouldwant time to take instructions on whether leave to bring a second appeal should besought. Accordingly, I make an order extending name suppression until:15 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].16 Bond v R [2015] NZCA 488 at [33].17 Robertson v Police [2015] NZCA 7 at [48].18 Stephens v R [2021] NZHC 1902 at [26]; and Blackwood v R [2017] NZHC 1262 at [10]-[12].(a) the expiry of the period specified in s 291(2) CPA for filing a notice ofapplication for leave to appeal; or(b) if a notice of application for leave to appeal is filed within that specifiedperiod and leave is given, until the appeal is finally determined.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:E Huda, Barrister, Christchurch