HOPE v NZ POLICE [2022] NZHC 2707

HOPE v NZ POLICE [2022] NZHC 2707 [19 October 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDGREYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROAMĀWHERA ROHECRI-2022-418-06[2022] NZHC 2707BETWEEN JOSEPH HOPEAppellantAND NEW ZEALAND POLICERespondentCRI-2022-418-07BETWEEN JOSEPH HOPEAppellantAND NEW ZEALAND POLICERespondentHearing: 8 September 2022Appearances: M Zintl for AppellantJ E Lancaster for RespondentJudgment: 19 October 2022JUDGMENT OF EATON JThis judgment was delivered by me on 19 October 2022 at 3 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] On 23 June 2022, Mr Joseph Hope was sentenced in the District Court to twoyears and nine months' imprisonment on a charge of sexual violation1 and threecharges of indecent assault on a female under 12 years old,2 one of which was arepresentative charge.3 Mr Hope appeals against this sentence on the grounds that thestarting point was too high and further discounts were available for co-operation withthe authorities and previous good character, such that an end sentence of homedetention is appropriate.[2] Mr Hope also appeals against the refusal to grant permanent suppression of hisname and identifying particulars.Facts[3] Mr Hope was a resident at the Gloriavale Christian Community. He was borninto and raised within the community. []. This offending was disclosed followinga screening process of all female residents in the Gloriavale Community between theages of five and 17 years for sexual offending, completed by Police and OrangaTamariki in May 2021. During this process, on [], the victim disclosed that theyhad been touched inappropriately by Mr Hope sometime between []. The victimdescribed the offending occurring over a one to two-year period, when they wouldhave been [].[4] Mr Hope, on becoming aware the victim had spoken to Oranga Tamariki,presented himself voluntarily to the police station and admitted the facts as outlinedbelow, claiming full responsibility for his actions. He apologised to the victim inperson before making the decision to go and speak to police.[5] The first indecent assault took place when Mr Hope was in his bedroomwatching a movie with his wife, their children and the victim. Mr Hope was positionedbehind his wife and their children. He started touching the victim, moving his hand1 Crimes Act 1961, s 128(1)(b) and 128B: maximum penalty of 20 years' imprisonment.2 Section 132(3): maximum penalty of 10 years' imprisonment.3 R v Hope [2022] NZDC 11639.under her dress and rubbing his hand up her leg towards her vagina for approximatelytwo minutes. Once his hand was near the top of her legs, he pushed his hand insidethe victim's underwear and began touching her vagina. The victim knew she neededto get away, so told Mr Hope she needed to go to the toilet and then left the bedroomand returned to her own home.[6] The unlawful sexual connection offending took place while Mr Hope wassitting on a chair using the computer in the family bedroom. The victim approachedMr Hope and stood between his legs, facing the computer so that she could see whathe was doing. Both Mr Hope and the victim were fully dressed. While the victimstood in front of him, Mr Hope reached around to the front of the victim with his handand placed it up and under her dress. He moved his hand up the victim's leg and thenstroked the victim's underwear over her vagina. Mr Hope then shifted the victim'sunderwear. He began feeling the victim's vagina with his fingers, stroked across hervagina lengthways and felt her clitoris. These actions lasted for a few minutes beforethere was a knock on the door.[7] The representative charge of indecent assault relates to offending that occurredin Mr Hope's family bedroom while he was either lying or sitting on the bed. Hewould grab hold of the victim around the waist and push her down onto the area nearhis penis. The victim would be facing away from Mr Hope, sitting on the area of hispenis as he moved her up and down in a thrusting motion as if simulating sex. Thisoccurred on four to five occasions. Each time Mr Hope and the victim were fullyclothed. Mr Hope recalled one of these incidents, saying he remembered bouncingthe victim up and down and rocking her side to side in a simulated sex motion, rubbinghis penis against the victim's leg.[8] The last indecent assault occurred when Mr Hope was, again, using thecomputer and the victim stood between his legs facing the computer screen. AsMr Hope sat behind the victim, he started to simulate the movements of sex behindher and rubbed his erect penis into the area of her bottom, moving it up and down.Both Mr Hope and the victim were fully clothed. The victim pushed Mr Hope awayand he stopped. No further offending occurred past this point.Appeal against sentenceDistrict Court decision[9] The Judge identified the charge of sexual violation as the lead offence. Heconsidered the aggravating factors of that offending were victim vulnerability, breachof trust, an element of premeditation and harm caused to the victim. He consideredthese aggravating factors placed the offending towards the top end of band one of R vAM(CA27/2009), despite the degree of penetration being slight.4 The Judge adopteda starting point of four years' imprisonment for the charge of sexual violation.[10] In relation to the indecency charges, the Judge noted they involved an elementof force and occurred on multiple occasions over a one to two-year period. He foundthere was a significant breach of trust and victim vulnerability, and there was a levelof premeditation. With regard to totality, the Judge applied an uplift of 18 months,arriving at a global starting point of five and a half years' imprisonment.[11] The Judge allowed a full guilty plea discount and a further five per cent forMr Hope's co-operation with the police after the victim disclosed the offending. TheJudge did not allow a discount for previous good character because he consideredMr Hope had engaged in prolonged offending. He did, however, allow a 10 per centdiscount for willingness to rehabilitate and the difficulties experienced by Mr Hope'sfamily because of his offending behaviour. Mr Hope had already paid $2,600 to thevictim by way of emotional harm reparation and offered to pay a further $2,000. Forthat, the Judge allowed a further five per cent credit. Another five per cent credit wasgranted to reflect remorse.[12] After applying the discounts set out above, which total to 50 per cent, the Judgearrived at an end sentence of two years and nine months' imprisonment.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. An4 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.appeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5 It is only appropriate for this Court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.6SubmissionsAppellant's submissions[14] Mr Zintl submitted the starting point of four years' imprisonment for the sexualviolation charge was too high. No issue is taken with the fact the offending falls withinband one of AM,7 however Mr Zintl contended that the offending falls towards themiddle of the band as opposed to the top end.8 He submitted the cases of R v Nerjoand Parfoot v R have similarities to the current offending, although in those casesMr Zintl submitted there was a greater degree of penetration.9 However, Mr Zintlacknowledged that as Mr Hope was [], there was a greater breach of trust here thanin those authorities. Mr Zintl submitted a starting point of no more than three yearswas appropriate. No issue was taken with the Judge's 18-month uplift for the indecentassault offending.[15] Mr Zintl submitted the five per cent discount for Mr Hope's co-operation withthe authorities was insufficient. He emphasised that Mr Hope voluntarily presented atthe police station, admitted everything he could remember and claimed fullresponsibility. Mr Zintl submitted a discount of 10 to 15 per cent ought to have beenallowed.10 Mr Zintl submitted the circumstances here are similar to those in the caseof Lowenstein v Police, in which the appellant had pleaded guilty to two charges ofarson.11 Those charges were denied at interview, but approximately three weeks later5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Ripia v R [2011] NZCA 101 at [15].7 R v AM, above n 4.8 With reference to Parfoot v R [2018] NZHC 2702; R v McNicholl CA176/02, 29 October 2002;R v Neroj [2008] NZCA 184; and R v Fisher CA305/91, 18 November 1991.9 Parfoot v R, above n 8; and R v Neroj, above n 8.10 With reference to the following authorities: R v Strickland [1989] 3 NZLR 47 (CA); R v SandayCA146/99, 29 July 1999; D v Police (2000) 17 CRNZ 454 (HC) at [24]; Ringrose v R [2011]NZCA 634 at [24]; Lowenstein v Police [2020] NZHC 786; S v R [2017] NZHC 205; and R vLynch HC Hamilton CRI-2010-019-3449, 9 September 2010.11 Lowenstein v Police, above n 10.the appellant approached the police and admitted his guilt. Dunningham J allowed a10 per cent discount for the confession.[16] As to previous good character, Mr Zintl submitted the Judge erred in refusingto give a discount for good character because the offending occurred over a one totwo-year period. He emphasised Mr Hope was aged approximately 32 to 35 at thetime of the offending and has no previous convictions. Mr Zintl referred to the"tsunami" of character refences filed in support of Mr Hope, which detail that he wasa family man who contributed positively to the community. Additionally, Mr Zintlhighlighted that Mr Hope brought the offending to an end by himself in [] and thenwent eight years without reoffending.[17] Mr Zintl referenced R v Hockley, a decision in which the Court of Appeal helda discount for good character is "very much a matter of impression".12 He alsoreferenced R v Carruthers, a decision in which the Court of Appeal held that where,in the years that have passed since the offending, the offender has demonstrated theyhave settled into a normal and law-abiding life without any further offending, that factmust be recognised.13 Mr Zintl cited other authorities in which discounts were givenfor previous good character in similar circumstances.14 He submitted a discount of10 per cent is appropriate for this factor.[18] Taking into account the unchallenged credits, Mr Zintl seeks a total sentencededuction of 65 – 70 per cent.[19] If this Court were to consider the appropriate end sentence is short-term, thenMr Zintl submitted home detention would be appropriate here. Mr Hope, as at thedate of the hearing, has spent over two and a half months in custody and Mr Zintlsubmitted that strong mitigating features and the assessment of a low risk ofreoffending point to home detention being appropriate. Mr Zintl noted that sentences12 R v Hockley [2009] NZCA 74, at [32].13 R v Carruthers CA401/94, 10 April 1995.14 R v Webb CA13/04, 17 June 2004; Manawaiti v R [2013] NZCA 88 at [19]; and Solicitor-Generalv Rawat [2021] NZHC 2129.less than imprisonment are sometimes imposed for sexual offending againstchildren.15Respondent's submissions[20] Ms Boshier submitted the Judge was correct to place the sexual violationoffending towards the top end of band one in AM.16 She submitted that, as noted bythe Judge, although the penetration was minor, the other aggravating features weresignificant. Ms Boshier highlighted that the Judge considered the cases cited bycounsel, as well as numerous additional cases.17 With reference to those cases,Ms Boshier submitted the four-year starting point adopted by the Judge was wellwithin range. Similarly, Ms Boshier submitted the 18-month uplift applied for theremaining charges was appropriate and reflected the totality principle.[21] As to credit for co-operation with the authorities, Ms Boshier emphasised thatwhen arriving at the appropriate discount, the Court considers the type and seriousnessof the offending, the nature and value of the assistance, the situation in which theassistance was given, and the consequences of the defendant giving assistance, suchas personal danger.18 Ms Boshier submitted the value of assistance here issubstantially lower than in any of the cases cited by Mr Zintl. She noted the victimhad already disclosed the offending and participated in a full video interview beforeMr Hope confessed. Mr Hope's confession did not disclose offending that may nototherwise have been discovered or attributed to him. In essence, Ms Boshier submittedMr Hope's confession was equivalent to an early guilty plea in terms of the extent towhich Mr Hope's immediate taking of responsibility saved investigation and courtresources. In this sense, Ms Boshier submitted the only additional assistance given byMr Hope was that he voluntarily presented at the police station rather than beingarrested, which was appropriately recognised by the five per cent discount.15 Metua v R [2018] NZHC 246; Fowler v R [2017] NZHC 1892; Bird v Police [2017] NZHC 1296;and Goose v Police [2017] NZHC 2453.16 R v AM, above n 4.17 R v Smith [2020] NZHC 2793; R v Farrell [2013] NZHC 1877; and Solicitor-General v Mazahrih[2017] NZHC 943.18 Citing Williams v R [2011] NZCA 384; Waihape v R [2012] NZCA 425; and R v C CA319/99, 25November 1999.[22] Ms Boshier submitted it was open to the Judge to find a discount for previousgood character was inappropriate as Mr Hope sexually offended against a child over aprolonged period of time.19 She also submitted that the time that had elapsed since theoffending was taken into account in allowing a discount for rehabilitative prospects.[23] Ms Boshier submitted that, as the end sentence was not manifestly excessive,home detention was not available. She submitted that even if the end sentence wereto fall below two years, home detention would not be appropriate. Ms Boshier notesMr Hope is subject to s 128B(2) of the Crimes Act 1961, which provides that he mustbe sentenced to imprisonment unless, having regard to his particular circumstancesand the particular circumstances of the offence, the Court thinks he should not besentenced to imprisonment.AnalysisStarting point and uplift[24] The Judge identified the sexual violation charge as the lead offence and foundthe facts of the offending attracted a starting point within band one, as set out in thetariff case of AM. 20 The starting point range for unlawful sexual connection offendingthat falls within band one is two to five years. 21 In AM, the Court of Appeal indicatedthat band one will cover offending at the lower end of the spectrum. The Judgerecognised that the degree of penetration in this case was low. However, and as foundby the Judge, if particular aggravating features are present to either a low or moderatedegree, a starting point closer to the top of the band will be required.[25] There are two significant aggravating factors in this offending, although Iaccept that they overlap. The victim was aged between [] at the time of theoffending. She was a vulnerable child. What is more, she was []. Given thiscontext, the offending also constituted a significant breach of trust. Having regard tothese aggravating factors alone, I consider the sentencing Judge was entitled to adopta starting point towards the upper end of band one.19 See Payne v R [2016] NZCA 284; Britow v R [2017] NZCA 229; R v Hockley, above n 12; andHamilton v R [2015] NZCA 28.20 R v AM, above n 4.21 At [114].[26] The Judge was very thorough in his assessment of the relevant cases presentedby counsel. Having also considered these cases, I find that although the starting pointof four years' imprisonment was towards the higher end of the range available for thistype of offending, it was still appropriate.[27] The 18-month uplift adopted by the Judge in relation to the indecency charges(with regard to totality) has, responsibly, not been challenged on appeal. Thatoffending included four or five acts of simulated sex, touching the victim on the vagina(both over and under her underwear) and Mr Hope rubbing his erect penis on thevictim. I agree with both counsel that an 18 month uplift was appropriate and a globalstarting point of five and a half years was within range.Unchallenged discounts[28] No issues were raised by Mr Zintl as to the discounts afforded by the Judge inrelation to Mr Hope's guilty plea (entered six months after a first appearance),emotional harm reparation payments, remorse, willingness to rehabilitate and theconsequences Mr Hope's offending behaviour on his family.Credit for co-operation[29] Mr Zintl referred to a range of cases in which significant discounts wereprovided for co-operation with the authorities.22 These authorities suggest a discounthigher than five per cent might be available for co-operation with the police.[30] However, the key determinative factor in making an assessment as to whethera discount is appropriate for such co-operation is generally the value of theassistance.23 Mr Hope's confession was made after he learnt the victim had madedisclosures to Oranga Tamariki and had been evidentially interviewed. His confessiondid not disclose offending that would not otherwise have come to light. That factordistinguishes this case from those where more generous discounts have been allowed.22 Lowenstein v Police, above n 10; R v Strickland, above n 10; R v Sanday, above n 10; D v Police,above n 10; S v R, above n 10; and R v Lynch, above n 10.23 Williams v R, above n 18, R v Ringrose, above n 10.[31] I accept the confession saved the authorities some time and work and that it isimportant to recognise and encourage genuine admissions to offending. Another judgemight have allowed a greater discount to recognise co-operation, however, I considera five per cent discount in these circumstances is adequate to reflect the limited valueof assistance provided by the timing of Mr Hope's confession. I am cognisant that afurther five per cent credit was given to reflect remorseCredit for previous good character[32] The victim described Mr Hope having offended over a period of one to twoyears. In the period described by the victim, Mr Hope was aged approximately 32 -35 years. One charge of indecent assault was representative and linked to offendingthat occurred on four to five occasions. The summary of facts records there was nooffending beyond []. The offending came to light on [] when the victim disclosedthe offending to police. Mr Hope had ceased offending without intervention and hadnot re-offended for over seven years.[33] In similar circumstances a discount for previous good character has beenprovided.24 Conversely, there is clear case law that prolonged offending "necessarilycalls good character into question".25 In Britow v R26 the Court of Appeal consideredoffending against a child over a three year period (albeit not the entire period) was afactor against a credit for previous good character. The Court explained:27 it is much more difficult to put offending behaviour that continues over a longperiod of time down to a momentary (and out of character) lapse in judgement by anotherwise upstanding member of the community.[34] There can be little doubt that prolonged offending necessarily calls goodcharacter into question. Very prolonged offending will likely negate any credit forprevious good character. Mr Hope committed seven or eight offences over one to twoyears when he was aged in his early 30's. I accept Mr Hope's offending could not bedescribed as a momentary lapse in judgement. His offending was repetitive and24 R v Carruthers, above n 13; R v Webb, above n 14; Manawaiti v R, above n 14, at [19]; andSolicitor-General v Rawat, above n 14.25 Taylor v R [2022] NZCA 70 at [21], citing Britow v R, above n 19, at [10].26 Britow v R, above n 19 at [10].27 At [10].relatively prolonged. However, I do not consider that scale of offending to necessarilydisqualify any credit for previous good character.[35] Mr Hope has no previous convictions. The character evidence put before thesentencing Judge was impressive. Mr Hope had made a significant contribution to hiscommunity. I accept the offending was out of character. I also acknowledge Mr Hopeceased offending absent formal intervention and has lived a blameless life since.[36] In those circumstances I consider some credit to recognise previous goodcharacter was appropriate. I agree with Ms Boshier that the 10 per cent allowance forrehabilitative measures is relevant in fixing the level of credit. I would have alloweda further credit of five per cent for Mr Hope's previous good character. However, toadjust the sentence to reflect my view would amount to tinkering.28Was the end sentence manifestly excessive?[37] In considering whether the sentence imposed was manifestly excessive, it isthe end sentence that should determine my assessment, not the mechanism by whichthe sentencing Judge arrived at that sentence. Stepping back and considering all ofthe circumstances, the end sentence is not manifestly excessive. This is especiallyapparent when the overall discount applied by the Judge, being 50 per cent, is takeninto account.Home detention[38] Even if I had concluded that further credits ought to have been allowed so asto result in an end sentence of 24 months' imprisonment or less, I would not havecommuted the sentence to one of home detention. Firstly, I do not accept that thepresumption of imprisonment for cases involving sexual violation has beendisplaced.29 Secondly, I do not accept that the applicable sentencing purposes ofaccountability, denunciation and deterrence and, of course, rehabilitation, areappropriately met by a sentence of home detention in this case, which involvesrepeated sexual abuse of a young and vulnerable child.28 Westall v R [2021] NZHC 3440, at [51].29 Crimes Act, s 128B.Conclusion[39] I dismiss the appeal against sentence.Suppression appealDistrict Court decision[40] Mr Hope sought permanent suppression of his name and identifying particularson the grounds that publication would cause extreme hardship to himself, his family,and others in the Gloriavale community. He also sought name suppression on theground that undue hardship would be caused to the victim because of the likelihoodof their identification. Judge Garland noted the same arguments were being advancedbefore him as were advanced on appeal before Mander J in this Court for interim namesuppression.30[41] The Judge adopted the reasons he expressed in the Police v Disciple case indetermining that there would not be extreme hardship to Mr Hope, his family, or othermembers of the community if Mr Hope's name were published.31 The Judgeconsidered that members of the Gloriavale community are unlikely to have free accessto social media to view any comments from the public, limiting the impact of outsideridicule or embarrassment on the community. The Judge also considered that ifsuppression was granted there was a risk this would cast aspersions on other malemembers of the Gloriavale community, which would be unfair and not in the interestsof justice.[42] On the second ground of undue hardship to the victim, and distinct from theissues raised in Disciple, the Judge recorded a range of concerns about a second victimimpact statement provided to the Court. This victim impact statement was sent viaemail to the police and enclosed a document recording that the victim supportssuppression as a means to protect Mr Hope and his family, later adding that it wouldalso avoid her being identified. The Judge acknowledged that normally the Courtwould give considerable weight to this. However, he noted the stark contrast between30 Discovery New Zealand Ltd v FB [2021] NZHC 2903.31 Police v Disciple [2022] NZDC 11586.this email (dated 22 February 2022) and the victim impact statement given in May2021, in which the victim spoke of the negative impacts the offending had on her. TheJudge also referenced a restorative justice conference in which the victim had verylimited involvement, leading to Police and Crown concern that the victim was not ableto express her feelings free of other influence.[43] In determining whether the publication of the summary of facts would be likelyto identify the victim, the Judge noted Mr Hope has nine siblings and an extensivefamily, []. Mr Hope has five children of his own and there are around 300 childrenwithin the community. The Judge considered that if other relevant details weresuppressed, then it would be unlikely the publication of Mr Hope's name andparticulars would lead to the victim's identification.[44] The Judge distinguished this case from H(CA300/12) v R,32 where pre-trialsuppression was in issue. In H v R the town where the defendant and victims residedhad 100 members, whereas the Gloriavale community has approximately 600members, meaning there are vast avenues of speculation about potential victims here.The Judge also considered that speculation as to who the victims are is not assignificant of a concern given the number of victims in the Gloriavale community thathave been uncovered by recent police investigations.[45] The Judge declined to grant Mr Hope final name suppression or suppressionof identifying particulars. However, to mitigate any risk that the victim would beidentified, he ordered suppression of the [] between Mr Hope and the victim, theage of the victim at the time of the offending (other than that she was under 12) andthe fact the victim has [].Legal principles[46] The starting point when considering the suppression of a defendant's name orthe particulars of criminal proceedings is the presumption of open justice.33 Thebusiness of the courts should be conducted publicly and any departure from this32 H (CA300/12) v R [2012] NZCA 514.33 Robertson v Police [2015] NZCA 7 at [43]; and D (CA443/2015) v Police [2015] NZCA 541,(2015) 27 CRNZ 614 at [9]–[10].general rule is required to be "only to the extent necessary to serve the ends ofjustice".34 The grounds for the making of an order suppressing the identity of adefendant are set out in s 200 of the Criminal Procedure Act, which relevantlyprovides:200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name,address, or occupation of a person who is charged with, or convictedor acquitted of, an offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or any personconnected with that person; or(c) cause undue hardship to any victim of the offence; or(f) lead to the identification of another person whose name issuppressed by order or by law; or[47] The approach to be taken to suppression involves a two-step inquiry.35 First,the Court must determine whether any of the threshold grounds set out in s 200(2) aremet. In the absence of the statutory criteria being fulfilled, the Court does not havejurisdiction to exercise its discretion. Second, if the Court is satisfied that one of thethreshold criteria has been met, it must decide whether to exercise its discretion andforbid publication of the defendant's details.36 It is at this stage that the presumptionof open justice must be considered. In order to displace that presumption the balancemust clearly favour suppression.37[48] An appeal court is required to undertake its own assessment and form its ownopinion as to whether the statutory threshold has been met.38 That evaluation will34 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].35 D v Police, above n 33, at [10].36 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 33 at [40]–[41]; and D v Police, above n 33.37 D v Police, above n 33, at [12].38 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].involve an assessment of fact and degree. While the appellate court must not defer tothe lower court's assessment, it remains incumbent on the appellant to identify errorin the court's decision and satisfy the appeal court that it should reach a differentresult.39 If satisfied that the statutory criteria has been met, the appeal court's reviewof the second step, which involves the exercise of the trial court's discretion, will bemore limited. It must be focussed on whether the lower court, in exercising itsdiscretion: erred in principle; failed to take into account a relevant matter or took intoaccount an irrelevant matter; or was plainly wrong.40SubmissionsAppellant's submissions[49] Mr Zintl applied to adduce fresh evidence on appeal. This relates to anaffidavit of Melody Hope, which describes how Gloriavale members have access tothe internet within the community, and from Peter Jameson, that highlights a recenttelevision documentary on Gloriavale.[50] Mr Zintl submitted the Judge erred in finding there were no grounds for namesuppression. He highlighted that the uniqueness of Mr Hope's name makes him easilyidentifiable both now and in the future.[51] Mr Zintl noted that the Judge partly based his decision on the premise thatmembers of the Gloriavale community did not have free access to the internet andconsequently would not be exposed to media articles and social media commentsabout Mr Hope. Mr Zintl submitted this finding was not available on the evidencebefore the Judge. Mr Zintl said this conclusion also failed to take into account the factthat former family members and friends of Mr Hope who had left the community couldaccess the media and social media.[52] Mr Zintl submitted that publication of Mr Hope's name, even with thesuppression of the [] between Mr Hope and the victim, would lead to the39 Austin, Nichols & Co Inc v Stichting Lodestar, above n 38.40 Wilson v R [2018] NZHC 1778 at [14], citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR1 at [31]–[33].identification of the victim. He relied on the case of H v R, in which name suppressionwas granted because it was likely to lead to identification of the complainants.41Mr Zintl said the victim would have been seen with Mr Hope and his family,increasing the risk of their identification.Respondent's submissions[53] Ms Boshier accepted the affidavit of Mr Jameson is fresh evidence and shouldbe admitted. She submitted the evidence from Melody Hope could have been obtainedat the time of sentencing and accordingly is not fresh evidence. She accepted it iscogent and credible, but submitted it does not make any material difference to thedecision on appeal because the Judge's finding that Gloriavale members have limitedaccess to the internet was only part of a broader finding that Mr Hope was part of anexclusive community that does not interact extensively with the outside world andsupports him.[54] Ms Boshier cited the decision of Mander J in Discovery New Zealand Ltd v FBwhere Mr Hope was granted interim name suppression pending trial, primarily toprotect his fair trial rights.42 Ms Boshier notes that Mander J explicitly did not makea finding as to extreme hardship for Mr Hope in that case, and commented:43The approach taken to the issue to name suppression in respect of the fourmembers of Gloriavale currently facing active charges in respect of chargesof child sexual abuse should not be conflated with the question of suppressionin respect of an individual defendant convicted of such offending. The otherdefendants' trials will not take place for some time and consideration ofwhether publicity relating to one of more of the defendants pleading guilty orwhether that will materially add to the prejudicial effect of information alreadyin the public domain will have to be subject of separate assessment. The Courtof Appeal's approach in Standfast is likely to be influential.[55] Ms Boshier submitted the threshold of extreme hardship is not met becauseMr Hope failed to identify any particular hardship to himself or his family beyond thatordinarily expected. She acknowledged that social media increases the risk ofhardship, and that the Gloriavale community attracts a high degree of media interest.However, Ms Boshier submitted the fact publication will generally excite curiosity41 H v R, above n 32.42 Discovery New Zealand Ltd v FB, above n 30.43 At [70].and criticism and will cause embarrassment are usual consequences of a criminaloffence being reported. Ms Boshier accepted that while high volume media reportingmay impact fair trial rights, that is not relevant to a decision relating to finalsuppression.[56] As to the risk of identifying the victim, Ms Boshier submitted the Judge wascorrect to be careful in placing weight on the second victim impact statement, giventhe unusual circumstances. Ms Boshier submitted that given the extent of Mr Hope'sfamilial relations and the fact there are 300 children within the Gloriavale community,the Judge was correct to find that suppression of [], the exact age of the victim, andthe fact she [] make it very unlikely the victim would be identified throughpublication of Mr Hope's name.[57] Even if the grounds for name suppression are made out, Ms Boshier submittedthat this Court should not exercise its discretion to allow suppression becausepublication is in the interests of justice. She submitted the public have an interest inknowing about serious offending against young family members and people should beable to identify Mr Hope so they can safeguard their families. She further submittedthat publication may also encourage other victims to come forward.Media submissions[58] Mr Stewart—for Radio New Zealand Ltd, Stuff Ltd and Television NewZealand Ltd—supported and adopted the Crown submissions. He emphasised that onan assessment of the evidence and submissions in relation to hardship, cumulativelyand in context, this case does not reach the very high threshold for extreme hardship.[59] Mr Stewart further submitted that media articles and social media commentsin the public domain that are critical of the Gloriavale Community (even sharply so)do not of themselves create extreme hardship for either Mr Hope or his family. Hestates the release of the documentary film adds to the commentary on Gloriavale inthe public domain but does not make any material contribution to the hardship matrixfor Mr Hope as an individual. In this sense, Mr Stewart distinguishes the facts in thiscase from those in X (CA226/2020) v R44 and DV (CA451/2021) v R,45 in which therewas evidence of comments on social media directed at the defendant personally, thesecomments contained inaccuracies and abusive content, and there was evidence ofpsychological harm suffered by both defendants as a result of those social mediacomments.[60] Mr Stewart submitted the risk of identifying the victim has been appropriatelyaddressed by the suppressions as to [] and other matters ordered by the Judge. Inrelation to the views of the victim, he submitted the Court must be satisfied a thresholdground has been made out before taking into account the views of a victim as part ofthe discretionary exercise. Mr Stewart submitted the weight given to those views is amatter for the Court. He notes the public interest in publication may outweigh thoseviews.46 Mr Stewart submitted that as the Judge was not satisfied that a thresholdground had been made out, the victim's views as to whether Mr Hope should begranted permanent name suppression were arguably irrelevant.AnalysisApplication to adduce fresh evidence[61] I grant the application to adduce fresh evidence on appeal. Mr Jameson'saffidavit refers to recent media articles and, in particular, a documentary that wasbroadcast post-sentencing and so could not have been addressed by the appellant inthe District Court. I agree it has relevance to the question of suppression. Similarly,I am satisfied the evidence of Ms Hope, whilst clearly available when suppression wasconsidered in the District Court, only assumed relevance given the observation madeby the Judge as to the likelihood of the Gloriavale Community having access to theinternet and social media.44 X (CA226/2020) v R [2020] NZCA 387 at [40].45 DV (CA451/2021) v R [2021] NZCA 700.46 Citing A (CA605/2016) v R [2017] NZCA 49.Suppression[62] Mr Zintl submitted publication of Mr Hope's name would cause Mr Hope andhis family extreme hardship and would be likely to lead to identification of the victimand thereby cause them undue hardship.[63] It is well established that the threshold for "extreme hardship" is very high.47The Court of Appeal has clarified that an assessment of whether the identified hardshipis "extreme" is a contextual one and entails a "relative comparison between thecontended hardship and the consequences normally associated with a defendant'sname being published."48 The consequences must be something more than those thatwould ordinarily be associated with publication of a defendant's name.[64] In making this assessment, a defendant's cultural and religious beliefs, thecharacteristics of their community, and their place within it, are all considerations thatform part of the assessment of whether that person will suffer extreme hardship frompublication.49[65] Mr Zintl claimed Mr Hope and his family would experience extreme hardshipif his name was published given the uniqueness of his name and the likelihood of highmedia interest.[66] I accept that publication of such a distinct name is likely to draw publicattention to the Gloriavale community, especially in the form of media reporting.However, this appeal concerns the effects on Mr Hope and his family, rather than theGloriavale community as a whole. I have not had submissions on behalf of thecommunity.[67] Much of Mr Zintl's submissions focus on the role of social media insuppression determinations. This submission is logically linked to the uniqueness ofMr Hope's name.47 Robertson v Police, above n 33, at [48].48 At [49].49 Beshara v R [2018] NZCA 66 at [7].[68] The Court of Appeal in X v R made the following statements about social mediaand "cancel culture":50[49] But commentary about a case or about a defendant on social media isa very different matter. There can be no reasonable expectation that suchreportage will be fair or accurate. And there is no realistic way of controllingits content or its spread, particularly in a high profile and politicallycontroversial case. In our view this is a problem with which the Courts haveyet fully to grapple, particularly in the context of suppression unders 200(2)(a), where a defendant is young and, so, especially vulnerable totrolling, doxing, and internet vigilantism.[51] In the context of the proposed reforms, the Law Commission wasaware of, and discussed the difficulties posed by, social media in terms ofmaintaining and respecting suppression orders. But no consideration was (orcould have been) given to the universality and toxicity of social media'scurrent form. Nor could consideration have been given to the even morerecent phenomenon of "cancel" or "call-out" culture, in which social media isweaponised against those deemed to have transgressed the norms of anyonline group (or mob). And there can be no doubt that this new culture ofpublic shaming has the potential to be mercilessly inflicted on young peoplewho become embroiled in the criminal justice system — particularly in thecontext of alleged sexual offending — however briefly, and whatever the legaloutcome of the case.[69] In his dissenting comments in DV v R, Downs J warned against X v R beingapplied broadly.51 He considered that would present a risk of X v R becoming a"Trojan Horse in relation to name suppression, thereby allowing suppression whenthat would not otherwise be justified"52. Downs J emphasised that, although peoplepublish outrageous things on social media, people are well aware that social media isa platform for such comments. He warned against the vocal minority on social mediabeing allowed to overwhelm the legitimate public interest in the publication of thedefendant's name.53[70] I do not consider the facts of this case give rise to the concerns voiced by theCourt of Appeal in X v R.5450 X v R, above n 44 (footnotes omitted).51 DV v R, above n 45, at [77]–[78].52 At [78].53 At [78].54 X v R, above n 44.[71] The case of X v R concerned a young man who had assaulted others at a camp.He was originally charged with indecent assault, but the charge was subsequentlylowered. He was granted a discharge without conviction on two common assaultcharges. The Court of Appeal were concerned about his youth and the effect socialmedia would have on him in light of his age and unique name. These factors meantthe offending would follow him for the rest of his life, and therefore likely impact hisability to find employment. The Court of Appeal was also concerned about "cancelculture" in the sense that X had received a discharge without conviction, and it wastherefore possible that people on social media would attempt to bring him to justice inthe view that the courts had not. The Court of Appeal pointed to many specific socialmedia comments that were inaccurate and prejudicial about X.[72] The facts here differ in the sense that Mr Hope is not a young man, so theimpacts of social media on a young person are not relevant. I also do not considerthere is anything suggesting inaccurate of unfairly prejudicial comments specific toMr Hope and his family (rather than the community in general) will be published.Even with the heightened interest this case may receive, the consequences of socialmedia comments would not likely go beyond that ordinarily expected in a case wherea defendant's name is published in relation to criminal offending. As raised byMr Stewart, the Court must exercise care to distinguish responsible media from thesocial media "keyboard warriors".[73] Further, Mr Hope plans to return to the Gloriavale community, where he issupported, and so the long-term impacts of social media on him are also lesser.Mr Zintl has provided evidence of comments on social media about Gloriavale relatedto the sexual offending that has been written about in the media. These comments callGloriavale a "cult" and demand that it is shut down. Putting to one side the issue ofwhether these comments would reach Mr Hope and his family, even if they did, theyshow vitriol towards the Gloriavale community generally, and not towards Mr Hopepersonally. Furthermore, it seems inevitable that many in the Gloriavale communityalready know about Mr Hope's offending.[74] No evidence has been provided, or persuasive submission advanced, of anyparticular extreme hardship to Mr Hope or his family beyond that which wouldnormally stem from publication of a defendant's name. This reflects the position as itwas before Mander J in Discovery New Zealand Ltd (in which the issue of interimname suppression was considered), where it was noted that "no particular form ofhardship as it relates to the individual defendants was identified".55[75] It follows that I do not consider any of the grounds raised by Mr Zintl, eitherseparately or cumulatively, amount to extreme hardship.Risk of identifying / undue hardship to victim[76] Mr Zintl also submitted that publication of Mr Hope's name is likely to causeundue hardship to the victim by identifying them. In support of this submission, henoted that the victim would often have been seen with Mr Hope, making her easilyidentifiable.[77] As was noted by Mander J in Discovery New Zealand Ltd, the Gloriavalecommunity is relatively small and tight-knit.56 There are approximately 300 childrenin the community. More specifically, Ms Boshier has appropriately highlighted thatthe victim is one of [] children. [].[78] Mr Hope also has a large family, with nine siblings. Police estimate [].Mr Hope has five children of his own.[79] The Judge suppressed publication of the [] between Mr Hope and the victim,the age of the victim at the time of the offending (other than that they were under 12)and the fact the victim []. As discussed with counsel, an order suppressing the datesof the offending would further broaden the pool so as to mitigate any real risk ofidentifying the victim.[80] I consider these suppression orders adequately mitigate the issues identified byMr Zintl. Any of the many children related to Mr Hope or within the wider Gloriavalecommunity could have been seen spending time with Mr Hope.55 Discovery New Zealand Ltd v FB, above n 30, at [27].56 At [39].[81] As I have found the victim is unlikely to be identified from the publication ofMr Hope's name, it follows that Mr Zintl's submission concerning publication leadingto the identification of another person whose name is suppressed does not succeed.[82] Overall, Mr Hope has failed to establish that the threshold for granting namesuppression under s 200(2) of the Criminal Procedure Act has been established. It istherefore unnecessary to consider the second step as set out above at [48], however Iconsider there is no discernible error in principle, failure to take into account a relevantmatter, consideration of an irrelevant matter or plainly wrong decision. I recognisethe importance of the principle of open justice, particularly in relation to sexualoffending against children and young people.Victim impact statements[83] A victim impact statement was prepared shortly after the charges were laid inJune 2021. The victim was then aged [] years. It described the victim's confusionat the time of the offending, their avoidance of Mr Hope and a dislike of being touched.[84] An email dated 22 February 2022, attaching a second victim impact statementwas presented to Judge Garland through the victim's father. The attached statementrecords that Mr Hope's offending had little impact on the victim, that the events werein the past, and expressed their forgiveness of Mr Hope. The email from the victim'sfather records the victim's expressed desire for a suppression order to protect Mr Hopeand his family, and to avoid their identification.[85] The police had no involvement in the preparation of either document. TheJudge expressed concern and reservation as to whether the victim was expressing herfeelings free from the influence of others.[86] Late in the evening prior to the hearing of this appeal, Mr Zintl received afurther email from the victim's father expressing similar views to those recorded inthe 22 February 2022 material and taking issue with comments made by the Judge.The further email had been sent to the police very shortly prior to it being sent toMr Zintl. In response, the police took steps to speak directly with the victim, withoutsuccess. Ms Boshier submitted it was inappropriate for the prosecution to be offeringthe father's email as a victim impact statement and submitted the Court should notplace weight on the email. She referred to non-compliance with ss 18 to 21 of theVictims' Rights Act 2002. Whilst that Act provides for a process for a victim impactstatement to be considered by a sentencing court, the position as regards a victim'sviews on an application for permanent name suppression is less prescriptive.Section 28 of the Act simply provides that in the event of an application for permanentname suppression, the prosecutor must make all reasonable efforts to ensure the viewsof the victim are ascertained and must inform the court of those views.[87] I raised the possibility of adjourning the appeal in order for a compliantupdated victim impact statement to be provided or for the prosecution to takeappropriate steps to be satisfied that the views expressed on behalf of the victim are infact their own. On further reflection, I do not regard an adjournment or furtherinquiries to be either necessary or appropriate.[88] In sentencing Mr Hope, the Judge did not place particular weight on thevictim's views either as an aggravating factor or otherwise. In my view, the morerecently expressed victim's view that the offending has had no lasting impact on heris properly recognised as the absence of an aggravating factor rather than a mitigatingfactor. Mr Zintl did not suggest otherwise. Even accepting the emails and theattachment do reflect the victim's present views, I do not find the victim's views to beof such moment as to impact on the sentence appeal.[89] As regards name suppression, I am content to take into account the most recentemail from the victim's father purporting to record the victim's view that publicationof Mr Hope's name could identify the victim, and her desire for ongoing suppressionto protect the broader Hope family. I have concluded that the current suppressionorder, together with suppression of the dates of offending provide adequate safeguardsto ensure the victim is not identified if Mr Hope's name is published. I have regard tothe victim's sympathetic views towards the appellant's family but do not considerthose views override the broader public interest considerations and, in particular, thepresumption of open justice.Conclusion[90] The appeal against refusal to grant suppression of Mr Hope's name andidentifying particulars is dismissed. As a further precautionary measure to ensure thevictim is not identified, I make an order suppressing the dates of the offending.[91] At the request of Mr Zintl, I order that the interim suppression order is toremain in place until 5 pm 21 October 2022 to allow time for consideration of a furtherappeal....................................................Eaton JSolicitors:Crown Solicitor's Office, ChristchurchCopy to:Marcus Zintl, Barrister, Blenheim