GUY v POLICE [2016] NZHC 27

GUY v POLICE [2016] NZHC 27 [28 January 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI-2015-485-76[2016] NZHC 27BETWEEN JARED GUYAppellantAND NEW ZEALAND POLICERespondentHearing: 27 January 2016Counsel: B A Crowley for appellantA R Winsley for respondentJudgment: 28 January 2016RESERVED JUDGMENT OF DOBSON J[1] Mr Guy pleaded guilty to three charges of attempting to make an intimate visual recording of another person and two charges of intentionally making an intimate visual recording of another person. He was sentenced on 11 December 2015 by Judge W K Hastings to four months' home detention. At sentencing,Mr Guy applied for permanent name suppression, which was declined by the Judge. Mr Guy has now appealed from that decision.[2] In his application for name suppression, Mr Guy argued that the publication of his name would cause extreme hardship to his mother, who suffers from a medical condition that is exacerbated by stress. His mother filed an affidavit explaining hercondition, the stress that she expects would be caused by her son's name being published, and the effects that would have on her health. She annexed a medical report from 2007, and deposed that she has made numerous lifestyle changes to minimise stress, which is a cause of her condition. Her specific concern is that additional stress could trigger the worsening of her condition into multiple sclerosis.[3] In declining the application, the Judge said:[20] I have every sympathy for your mother's health. You say that youhave put her under a lot of stress and stress is the one thing she needs to avoid with her medical condition. She has provided an affidavit and adoctor's report to confirm this but as you say you have already put her understress. It is your own behaviour that had caused her stress. The publication of your name would add very little to the stress you have already caused her. I also note that her surname differs from yours.[21] To my mind none of this amounts to extreme hardship for you or your mother. Nor is there sufficient nexus between the claimed hardship and publication of your name as distinct from the hardship caused by your offending.[4] Section 200 of the Criminal Procedure Act 2011 provides for situations wherea defendant's name may be suppressed. Relevantly, that includes:(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[5] The settled approach to such applications involves a two-stage analysis. The first is a threshold determination as to whether publication would be likely to cause extreme hardship, in this case to Mr Guy's mother. The Court of Appeal has described that as an "only if" threshold, so that if the applicant for name suppressiondoes not make it out, then the application must fail.1[6] If the threshold of the likelihood of extreme hardship is made out, then the second stage is for the Court to weigh the competing interests of the applicant for name suppression and the public. That assessment is likely to include consideration of the position of any victims of the offending, the relative seriousness and nature of the offending, and the nature of the public interest in knowing the character of the offender.21 Robertson v Police [2015] NZCA 7 at [40].2 Robertson at [41].[7] For Mr Guy, Mr Crowley submitted that the Judge had rejected the evidence of Mr Guy's mother's own opinion that the incremental stress caused by publication was likely to cause a serious deterioration in her medical condition. He submitted there was no basis for rejecting that opinion, which he characterised as reasonable and credible on its own terms. Mr Crowley argued that if the mother's opinion wasaccepted, it necessarily made out the threshold of the likelihood of extreme hardship.[8] I do not accept that the Judge rejected the opinion evidence of Mr Guy'smother in the absolute sense that Mr Crowley suggested. The Judge was obliged to evaluate all the evidence before him, and I am not persuaded that he erred in the views he came to about it.[9] In the course of argument, Mr Crowley accepted that additional evidence from a medical specialist would be unlikely to advance the prospects of making out a likelihood of extreme hardship. Mr Guy's mother has not recently been attended by a doctor, and the extent of any causal link between the risk of deterioration and the additional stress caused by publication would be speculative from anyone venturing an opinion on the point.[10] The Judge was correct to identify the fact of Mr Guy's offending as a materialcause of stress to his mother. The incremental impact of her having to address the consequences of publication with family and friends is speculative and, on the evidence, could not be made out as a likely cause of extreme hardship for her.[11] Mr Guy's mother does not share his name and lives well away from theWellington region in which the offending occurred. Those factors might be expected to somewhat lessen the impact of publication as it affects her.[12] Given the Judge's finding that the threshold was not met, his reasoning did not extend to the second stage of a discretionary evaluation weighing the interests of Mr Guy and his mother against those of the community. Had the threshold been met, the second stage discretionary assessment might well have gone against him in any event.[13] As Mr Winsley submitted in opposing the appeal, the public interest in knowing the material circumstances of offending of this type is relatively high. It was voyeuristic offending involving an invasion of privacy. The summary of facts on which Mr Guy was sentenced stated that the Police had found 163 intimate visual recordings on Mr Guy's laptop, with 267 attempted intimate visual recordings. Only one of the victims of this conduct was identified. However, the specific complainant who was involved at the point Mr Guy was apprehended stated firmly in her victim impact statement that she thought the community should be aware of Mr Guy and what he has been doing. These discretionary considerations would likely tell against a grant of name suppression in any event.[14] Accordingly, the appeal is dismissed.Dobson JSolicitors:Crown Solicitor, WellingtonCounsel:Brett Crowley, Wellington