POLOSAK v R [2023] NZCA 40

POLOSAK v R [2023] NZCA 40 [7 March 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA496/2022[2023] NZCA 40BETWEEN CASSANDRA POLOSAKApplicantAND THE KINGRespondentCourt: Gilbert, Ellis and Davison JJCounsel: R J T George for ApplicantB So for RespondentJudgment:(On the papers)7 March 2023 at 9.30 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal against the refusal to granta discharge without conviction is declined.B The application for leave to bring a second appeal against the refusal to grantname suppression is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Ms Polosak pleaded guilty to representative charges of posting digitalcommunications with intent to cause harm, use of a telephone to send offensive textmessages and emails with intent to offend, and breaching a protection order.[2] Ms Polosak pleaded guilty to these offences. Judge M J Callaghan declinedMs Polosak's application for a discharge without conviction.1 The Judge sentencedher to three months' community detention and ordered her to pay reparation of$1,000.2 The Judge also declined Ms Polosak's application for permanent suppressionof her name.3[3] Ms Polosak appealed to the High Court against the refusal to discharge herwithout conviction and for permanent name suppression. The appeal was dismissedby Dunningham J on 25 August 2022.4[4] Ms Polosak now applies for leave to bring a second appeal. She contends thatthe gravity of the offending was not correctly assessed, and the Courts below failed toconsider three of the consequences of the convictions. She maintains that she willsuffer extreme hardship if her name is not suppressed. Ms Polosak argues thata miscarriage of justice will occur if leave is not granted for a second appeal.The facts[5] Ms Polosak was in a relationship with the complainant until he terminated it inJanuary 2021. The summary of facts to which Ms Polosak pleaded guilty relevantlyreads:[Ms Polosak] then purchased more SIM cards, cell phones, created new emailaddresses, and Facebook accounts for her use to send anonymous messages.CAUSING HARM BY POSTING COMMUNICATIONOn 29 January 2021 [Ms Polosak] used a fake Facebook account and sentmessages to [the complainant's employer] She told [the employer] thatthe [complainant] was under Police investigation for inappropriately touchinggirls at his bar, and while this was occurring, she wouldn't be going back tohis bar. [The employer] messaged her back asking for further information butwas sceptical of the allegation.On 30 March 2021 [Ms Polosak] started to post the same allegation on variouspublic Facebook music pages [the complainant] was associated with.She also mentioned [the bar] and that they are covering this matter up.1 Police v Polosak [2022] NZDC 7685 [District Court judgment] at [37].2 At [44]–[45].3 At [41].4 P v Police [2022] NZHC 2131 [High Court judgment].These posts were seen by numerous members of the public causing[the complainant] serious emotional distress.OFFENSIVE USE OF TELEPHONEBetween 11 March 2021 [and] 16 June 2021 [Ms Polosak] sent[the complainant] various offensive messages.On 11 March 2021 [Ms Polosak] sent the text message "50k hit on u watchout" to [the complainant] from a phone number he was unfamiliar with.She continued to send offensive and threatening messages from this numberuntil 1 April 2021.On 3 April 2021 [Ms Polosak] used a different phone and SIM card to send[the complainant] text messages, starting with "I'm gonna do what the personyou hate can't", "Gonna get rid of you". She continued to send messagesthreatening his friends, dog, ex, also stating she had poisoned[the complainant], was watching him, and that she was armed. [Ms Polosak]continued using this number until 20 April 2021.On 19 April 2021 [Ms Polosak] sent an email to [the complainant's] employer.[Ms Polosak] used the fake name 'Stephen', and accused [the complainant] ofbeing under the influence of drugs whilst at work, driving recklessly, andsuggested they consider hiring someone else.CONTRAV[E]NES PROTECTION ORDEROn 6 May 2021 the Christchurch District Court issued a Temporary ProtectionOrder [against Ms Polosak in favour of the complainant]. [The police servedthis order on Ms Polosak on 8 May 2021].Between 23 May 2021 [and] 16 June 2021 [Ms Polosak] breached theProtection order.On 23 May [Ms Polosak] used another new phone number and sent moremessages to [the complainant]; these were generally offensive messages andincluded one message in which she said, "I will stab u in ur sleep".During this period, [Ms Polosak] also created various email addresses and sent[the complainant] offensive emails.Discharge without convictionGravity of the offending[6] Judge Callaghan observed that the offending was highly premeditated andmalicious. It persisted over a period of months and caused the complainant significantdistress, as was intended. The anonymous messages included threats to kill, ofobtaining a gun, that a $50,000 contract had been out on his life, he was being watched,he would be stabbed in his sleep and that he had been poisoned. Threats were alsomade to harm his friends, his former partner, and his dog. Messages were also sent tohis employer and posted on social media alleging he was a sexual offender.5 The Judgeassessed the gravity of the offending as being at the "moderate end of serious" andconsidered that a starting point of 11 months' imprisonment would be justified forbreaching the protection order and for sending the digital posts in breach of theHarmful Digital Communications Act 2015.6 Taking account of Ms Polosak'spersonal circumstances, the efforts she had made to address the causes of heroffending, her previous good character and guilty plea, the Judge considered that anend sentence of around five months' imprisonment would be appropriate.7[7] Dunningham J rejected Ms Polosak's submission on appeal that the Judge erredin his assessment of the gravity of the offending by mischaracterising the relationshipand giving insufficient weight to her allegations about acts perpetrated against her inthe relationship.8 The Judge agreed that the offending justified a starting point ofimprisonment.9 The offending had the potential to destroy the complainant's career,livelihood, and relationships.10 The consequences of the offending were harmful andsevere.11 Dunningham J carefully reviewed the evidence relating to Ms Polosak'spersonal circumstances.12 She agreed with Judge Callaghan's assessment of theoverall gravity of the offending taking account of the personal mitigatingcircumstances.13 The Judge rejected Ms Polosak's submission that her perception ofthe relationship as being harmful and abusive materially detracted from the gravity ofher offending.14[8] Ms Polosak argues that both the High Court and the District Court failed toconsider as mitigating factors her remorse and efforts to address her offending.She also argues that insufficient credit was given for her previous good character.We do not consider these points are seriously arguable. Judge Callaghan applied5 District Court judgment, above n 1, at [30]–[31].6 At [33].7 At [34].8 High Court judgment, above n 4, at [28] and [40]–[43].9 At [29].10 At [30].11 At [30].12 At [31]–[35].13 At [42].14 At [42].a generous discount of 55 per cent for personal mitigating factors, includingrehabilitative efforts, her previous good character, and her guilty pleas. While aspecific allowance for remorse was not given, the discount allowed by the Judge forpersonal mitigating factors was more than adequate to account for any remorsereflected by the offer to pay reparation and participate in restorative justice.Any specific discount for remorse would also need to be tempered by the fact thatMs Polosak was still seeking to ascribe blame to the complainant for her actions.Consequences of conviction[9] Ms Polosak argued in the District Court that the consequences of a convictionwould be out of all proportion to the gravity of her offending. The allegedconsequence was the potential loss of her employment as a police communicator,a position she had held for six years. It was argued that loss of this employment wouldhave a "devastating effect" on her given her lack of support in the community.[10] Judge Callaghan concluded that the likely consequences of a conviction wouldnot be out of all proportion to the gravity of the offending. His reasoning is capturedin the following paragraphs of his judgment:15[35] In terms of consequences, the only consequence relied upon is the factthat she will lose her employment if convicted. She has already been subjectto an employment enquiry, and while a conviction may have an effect uponthe outcome of that, the employer, the New Zealand Police, is fully aware ofher circumstances and they will take into account the circumstances ofthe offending with or without a conviction being entered.[36] I believe the loss of employment for criminal offending of this naturecould be warranted. It is a consequence which would happen to other peopleemployed at other forms of employment. The fact that she is employed bythe police is only one aspect of it. Most employers would be dismayed thatan employee would act as [Ms Polosak] has done in these particularcircumstances. Loss of employment can be seen as a normal consequence ofmoderately serious criminal offending.[37] On that basis I therefore assess that the consequences are not out ofall proportion to the gravity of the offending, and I am not prepared to granta discharge without conviction.15 District Court judgment, above n 1.[11] The same argument was advanced before Dunningham J and rejected onappeal:16[43] Likewise, I agree with the Judge's analysis of the consequences ofconviction, [Counsel for Ms Polosak] referred to the same consequences onappeal as before the Judge, being the real or substantial risk Ms Polosak wouldlose her employment as a police communicator.[12] Dunningham J was undoubtedly correct when she said:17At its highest, this consequence of conviction can be expressed asexacerbating an existing risk (resulting from her offending as opposed toconviction) that she will be dismissed.[13] Ms Polosak does not argue otherwise in seeking leave for a second appeal.Rather, she complains that neither of the Courts below considered three otherconsequences of a conviction being entered, even though these appear not to have beenrelied on in submissions to those Courts. These asserted consequences are:(a) A conviction generally will be a barrier to her achieving her potential.(b) The effect of a conviction on her fragile mental state.(c) The existence of her convictions will mean that she will likely have toexplain the circumstances of her relationship and "re-live" the traumashe claims to have experienced.[14] We do not consider it is seriously arguable that these potential consequencesnow identified could have any material bearing on the disproportionality analysis.[15] It is apparent that the Courts below carefully assessed all relevant factors andapplied well-settled principles in determining whether it would be appropriate todischarge Ms Polosak without conviction. The proposed second appeal raises no issueof public importance and nothing put before us suggests that a miscarriage of justicemay have occurred. The present application falls far short of meeting the high16 High Court judgment, above n 4.17 At [44].threshold required to justify the grant of leave for a second appeal.18 The applicationfor leave to bring a second appeal against the refusal to grant a discharge withoutconviction must accordingly be declined.Name suppression[16] Ms Polosak supported her application for name suppression with an affidavitin which she stated that it would be "almost impossible" for her to secure meaningfulemployment "following dismissal from Police" because prospective employers wouldfind articles about her and her offending by searching on the internet. Ms Polosak wasalso concerned that her future employment prospects could be compromised byprospective employers finding reference to her father's offending.[17] Judge Callaghan was not persuaded that Ms Polosak would be likely to sufferextreme hardship if her name was published.19 Dunningham J agreed with thisassessment. She noted that extreme hardship means something greater than severesuffering or privation.20 The Judge noted that loss of employment or livelihood is notgenerally sufficient. She considered that any hardship resulting from publication ofMs Polosak's name would fall "well short" of the extreme hardship threshold.21[18] The application for leave to bring a second appeal against the refusal to grantname suppression largely relies on the same arguments advanced in support ofthe proposed conviction appeal. We see no seriously arguable error in the concurrentassessments made in the Courts below that publication of Ms Polosak's name will notbe likely to cause her extreme hardship. The main consequences she is concernedabout are likely to result from her offending and, to a lesser extent, her convictionfor it. Her offending is likely to come to the attention of prospective employerswhether or not her name is published. If it is relevant, she may well need to disclose it.In any event, we are not persuaded there is any risk that justice has miscarried and thatleave for a second appeal on the question of name suppression can be justified.18 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.19 District Court judgment, above n 1, at [41].20 High Court judgment, above n 4, at [46] citing Robertson v Police [2015] NZCA 7 at [48].21 At [47].Result[19] The application for leave to bring a second appeal against the refusal to granta discharge without conviction is declined.[20] The application for leave to bring a second appeal against the refusal to grantname suppression is declined.Solicitors:Crown Law Office, Wellington for RespondentResult[21] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent