HADEN v NEW ZEALAND POLICE [2019] NZHC 1399

HADEN v NEW ZEALAND POLICE [2019] NZHC 1399 [19 June 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-15[2019] NZHC 1399BETWEEN GRACE HADENAppellantAND NEW ZEALAND POLICERespondentHearing: on the papersCounsel: Appellant in PersonC R Stuart for the RespondentJudgment: 19 June 2019JUDGMENT OF CULL J[1] Ms Haden seeks leave to appeal out of time her sentence of $5,000 on fivecharges of publishing the name of a person who had been granted non-publicationorders, contrary to the provisions of ss 241(c) and 263(1) and (2) of the Lawyers andConveyancers Act 2006 (the Act). Ms Haden unsuccessfully appealed herconvictions,1 and now seeks leave to appeal her sentence which was imposed on 11December 2017, 16 months out of time.2[2] The grounds for Ms Haden's leave to appeal out of time have been broughtunder s 9 of the New Zealand Bill of Rights Act 1990 (the right not to be subjected totorture or cruel treatment). Ms Haden submits that other events and circumstanceshave brought about the need to appeal the sentence on the grounds of the1 Haden v New Zealand Police [2018] NZHC 498.2 Criminal Procedure Act 2011, s 231(2).disproportionately severe punishment which the Court did not intend, but which hasoccurred.Background facts[3] Ms Haden was charged with breaching an order made under s 240(1)(c) of theAct, which prohibited the publication of the name or any particulars of the affairs of aperson charged before the Disciplinary Tribunal. Under s 263(1) of the Act, everyperson commits an offence who, without lawful excuse, acts in contravention of anyorder made by the Disciplinary Tribunal under s 240(1)(a) to (c).[4] Ms Haden faced five charges of breaching the Disciplinary Tribunal's orderbecause similar conduct was alleged to have taken place on five consecutive occasionsfrom 18 April to 24 May 2017. Ms Haden was convicted in the District Court on 11December 2017 and was fined $1,000 on each charge, with Court costs and witnesses'expenses, totalling the sum of $6,000.3 Breaches of a non-publication order by theDisciplinary Tribunal are punishable by fine only under s 263(2), with a maximumfine not to exceed $25,000.[5] In imposing sentence on Ms Haden, the District Court Judge said as follows:[13] These matters are finable only. They involve matters of considerablepublic importance and the maximum fine has been pitched accordingly at$25,000 per offence. The ability to defy suppression orders in the electronicage is at the fingertips of virtually anybody computer literate. And it isperfectly clear that this defendant has a borderline obsessive desire to bringdown the now deceased subject of her publications.[14] I impose fines on each matter of $1000, Court costs of $130 and ifthose are beyond your means, Ms Haden, you do have some remedies that youare able to take. There will be witnesses' expenses of $500.00 toward the costof producing the Tribunal's Registrar.[6] Ms Haden's appeal against her convictions was unsuccessful.4 This decisionconsiders Ms Haden's application for leave to appeal only.53 New Zealand Police v Haden [2017] NZDC 28419, 11 December 2017.4 Haden v New Zealand Police, above n 1.5 Haden v New Zealand Police HC Wellington CRI-2019-441-15, 21 May 2019 (Minute ofMallon J).Ms Haden's position[7] In discussing her charge and the penalty, Ms Haden submits that the policehave chosen to use the words "suppression order" instead of "non-publication order"as the offence reads. As such, she submits the inference has become that shecommitted an offence against the Criminal Procedure Act 2011 – namely a breach ofa suppression order under s 211 – where the penalty includes imprisonment. As wellas this, on finding that she had been charged with breaching an order under s 240 ofthe Act, at her first appearance Ms Haden submits she was taken into custody whenshe was bailable as of right and there was no provision for being taken into custody.[8] The "bail" and the "suppression order" breach were reported in nationalnewspapers and broadcast nationwide over public radio, naming Ms Haden and statingshe had breached "suppression orders". As a result of the news publicity, Ms Hadensays she has lost the support of her business networking group which led to the demiseof her business and has suffered repercussions within the community, including theloss of her membership of a community service organisation.[9] Ms Haden is now retired and receives a pension of $383.00 per week, of which$50.00 is contributed weekly to repay the fine. She has also recently suffered a stroke,which she says has been brought on by the stress which was set off by the convictionand its repercussions, and the disproportionate sum which she is paying out of herpension.[10] Ms Haden further submits that a businessman of means in Auckland has sincebeen charged with the same offence relating to the same circumstance, and was finedonly $100.00 per charge as opposed to her $1,000.00 per charge, showing grossdisparity in sentencing.[11] Finally, she submits that the publication for which was convicted of makingrelates to a lawyer who misappropriated $20,000.00 from a client and then invoicedher for the time that it took to locate this. She submits this is fraud or theft by a personin a special relationship, which both carry terms of imprisonment, but these offenceswere never addressed in Court and Ms Haden considers it unfair that she hascommitted a lesser offence than the "original offender", but her penalty has beengreater.[12] Ms Haden seeks that the Court allow a reduction in the remaining sum of thepenalty in recognition of the chain of events set off by the conviction, which she claimsresulted in a punishment far greater than the Court could have foreseen.[13] In particular, Ms Haden submits that the District Court Judge did not considerthe following facts:(a) Ms Haden had told the police that she would comply with any orderthat they could show her;(b) The police did not have an order and could not produce one, butprosecuted her and did so without providing her with a reasonableopportunity to comply with a request to remove the name from the blog;(c) The Court did not consider that it is difficult comply with an orderwhich is not produced, cannot be shown to exist, and does not indicatewhat its terms are.[14] Ms Haden accepts the application made is out of time, and submits it shouldbe allowed for the reasons stated above.The respondent's position[15] The respondent opposes the granting of leave principally because of the delayand that the appellant's submissions largely mirror the submissions made in theconviction appeal, which was dismissed.Discussion[16] The Court of Appeal in R v Knight,6 and were recently confirmed in R v Lee,7outlined the criteria to be applied in determining applications to extend time. In R vKnight, the Court determined that the "touchstone" for granting an application toextend time is the interests of justice in any particular case.8 Assessing the interestsof justice requires the wider interests of society in the finality of decisions to bebalanced against the interest of the individual applicant.9 Factors relevant to theoverall balancing test include "the strength of the proposed appeal and the practicalutility of the remedy sought, the length of the delay and the reasons for delay, theextent of the impact on others similarly affected and on the administration of justice,that is floodgates considerations, and the absence of prejudice to the Crown."10[17] More recent authorities focus on the reasons for the delay and the merits of theproposed appeal as being the primary factors in extension of time applications.11[18] In this case, Ms Haden's delay in bringing her application for leave to appealis significant. It is 16 months since the imposition of the sentence. Further, thegrounds upon which Ms Haden relies relate to changes to her health and/or financialsituation during those 16 months since her conviction and sentence. This is, in effect,a retrospective submission that the sentence was manifestly excessive due tocircumstances which occurred in the 16 months following the imposition of thesentence.[19] By contrast, the commonly-accepted reasons for delay are where the delay iscaused by excusable difficulties in obtaining adequate legal advice,12 where filing anappeal has been delayed while expert advice is obtained,13 and where the legal point6 R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA).7 R v Lee [2006] 3 NZLR 42, (2006) 22 CRNZ 568 (CA).8 At 587.9 At 587.10 At 589.11 Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].12 R v Osborne [2009] NZCA 168.13 Jones v R [2015] NZCA 601.in issue did not become apparent until after other appellate proceedings.14 None ofthese reasons are relevant nor is the reason for delay similar.[20] I turn, then, to consider whether the sentence is manifestly excessive, wrong inprinciple, or incorrectly calculated. Ms Haden submits that the level of fine in hercase was out of line with the authorities and, in support, points to one case in whichthe imposition of the fine was $100.00 for the breach in contrast to the $1,000.00 foreach of Ms Haden's breaches. The example Ms Haden relies upon was a rulingfollowing an application for discharge under s 147 of the Criminal Procedure Act. Asthe Act makes plain, each charge attracts a maximum penalty of $25,000.00. I acceptthe police submission that the appellant's sentence (before costs) represents 4 per centof the maximum penalty that could have been imposed. The District Court Judge hadregard to the brazen nature of the offending in imposing the penalty of $1,000.00 percharge, and in the circumstances I do not consider that the end sentence is manifestlyexcessive.[21] The real gravamen of Ms Haden's case is that her circumstances following theimposition of sentence renders her unable to afford to pay the fines at the current rateof repayment. Currently, Ms Haden is travelling to Europe for two months and it doesnot appear that she has explored alternative payment plans with the Ministry of Justice,which the District Court Judge referred to when he imposed the fines.[22] I consider that in addition to the significant delay of 16 months since theimposition of sentence, the grounds of Ms Haden's appeal largely mirror thesubmissions that were made in her unsuccessful appeal against conviction. Theretrospective nature of her submissions reflect changes to her health or financialsituation 16 months after conviction and sentence, which is not a basis upon which tochallenge the sentence as being manifestly excessive or wrong in principle.[23] Ms Haden has the ability to renegotiate her repayments with the Ministry ofJustice if her circumstances are financially precarious.14 R v Smail [2008] NZCA 6, [2008] 2 NZLR 448.[24] Finally, I consider that Ms Haden's appeal has no perceived merit. Ms Haden'sactions were flagrant breaches of a non-publication order by the Disciplinary Tribunaland I can see no error in principle in the District Court's imposition of the fines of$1,000.00 per charge.[25] On the basis of the principles to be applied to a grant of leave out of time, Iconsider Ms Haden's application for leave in these circumstances should not begranted.Result[26] The application for leave to appeal 16 months out of time by Ms Haden isdeclined.Cull J