GONZALEZ v POLICE [2020] NZHC 2810

GONZALEZ v POLICE [2020] NZHC 2810 [28 October 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE VICTIM IS PROHIBITED BY S 39OF THE HARASSMENT ACT 1997. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlSUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THISJUDGMENT PURSUANT TO S 39 OF THE HARASSMENT ACT 1997:SEE PARAGRAPH [105].http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360354.htmlIN THE HIGH COURT OF NEW ZEALANDGREYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROAMĀWHERA ROHECRI-2020-418-000002[2020] NZHC 2810BETWEEN OSVALDO ANTONIO REYESGONZALEZAppellantAND NEW ZEALAND POLICERespondentHearing: 1 October 2020Appearances: K I Jefferies for the AppellantA M Harvey for the RespondentJudgment: 28 October 2020JUDGMENT OF NATION J[1] The appellant, Mr Gonzalez, pleaded guilty to a charge of criminal harassmentin respect of a person he had previously been in a relationship with for approximatelyone year. He appeals against a Judge's refusal of a discharge without conviction andthe refusal to suppress his name.11 Police v Gonzalez [2020] NZDC 15064.Background[2] Mr Gonzalez' one year relationship with the victim was ended by her in April2019.[3] The summary of facts stated that, after this, Mr Gonzalez engaged in persistentand unwanted electronic harassment of the victim in the form of emails and textmessages.[4] On 11 September 2019, he was warned for criminal harassment by a constable.The summary said he was served with papers clearly defining what amounted toharassment and advised to have no contact with the victim "or he may be committingharassment and could be charged".[5] He was charged in the District Court at Greymouth on 22 January 2020 unders 8(1)(a) Harassment Act 1997 that between 8 October 2019 and 25 December 2019at Dunedin he harassed the victim by regular unwanted electronic contact in the formof emails and text messages, having already persistently harassed the victim by emailand text messaging between April 2019 and July 2019, intending that harassment tocause the victim to fear for her safety.[6] Section 6 Harassment Act states:6 Object(1) The object of this Act is to provide greater protection to victims ofharassment by—(a) recognising that behaviour that may appear innocent or trivial whenviewed in isolation may amount to harassment when viewed incontext; and(b) ensuring that there is adequate legal protection for all victims ofharassment.(2) This Act aims to achieve its object by—(a) making the most serious types of harassment criminal offences:(b) empowering the court to make orders to protect victims ofharassment who are not covered by family violence legislation:(c) providing effective sanctions for breaches of the criminal and civillaw relating to harassment.(3) Any court which, or any person who, exercises any power conferred byor under this Act must be guided in the exercise of that power by theobject specified in subsection (1).[7] Section 3(1) states:3 Meaning of harassment(1) For the purposes of this Act, a person harasses another person if he or sheengages in a pattern of behaviour that is directed against that otherperson, being a pattern of behaviour that includes doing any specified actto the other person on at least 2 separate occasions within a period of 12months.[8] Safety in relation to any person includes that person's mental wellbeing.2[9] Section 8 states:8 Criminal harassment(1) Every person commits an offence who harasses another person in anycase where—(a) the first-mentioned person intends that harassment to cause thatother person to fear for—(i) that other person's safety; or(ii) the safety of any person with whom that other person is in afamily relationship; or(b) the first-mentioned person knows that the harassment is likely tocause the other person, given his or her particular circumstances, toreasonably fear for—(i) that other person's safety; or(ii) the safety of any person with whom that other person is in afamily relationship.(2) Every person who commits an offence against this section is liable, onconviction, to imprisonment for a term not exceeding 2 years.2 Harassment Act 1997, s 2 definition of "safety".[10] Mr Gonzalez was charged with criminal harassment in terms of s 8(1)(a)(i).That meant Mr Gonzalez was charged with offending through intending his contactwith the victim to cause her to fear for her safety. In this case, safety was withreference to her mental wellbeing.[11] Had Mr Gonzalez been charged under s 8(1)(b)(i), he would have offended ifhe had harassed the victim knowing this was likely to cause her to reasonably fear forher mental wellbeing, even if that was not what he intended.[12] The charge also referred to Mr Gonzalez having harassed the victim betweenApril and July 2019. The summary of facts said Mr Gonzalez had engaged inpersistent unwanted electronic harassment of the victim in the form of emails and textmessages after the relationship ended.[13] On the Court file was a victim impact statement dated February 2020. Itdescribed the way in which Mr Gonzalez' contact had caused the victim intenseanxiety and the way her life was affected by that anxiety. [][14] The summary of facts did not include any information as to what may havebeen said to Mr Gonzalez, either by the victim or the Police, to ensure he was awarethat if he continued to contact her, as he had been doing, that would cause her realdistress.[15] Mr Gonzalez appeared in Court on 22 January 2020. He was remanded on bailon conditions that ensured he would have no contact with the victim. On 12 February2020, he entered a plea of not guilty. On 12 March 2020, he pleaded guilty butindicated he would be applying for a discharge without conviction. He was grantedinterim suppression of name. He was sentenced and his application for a dischargewas ultimately heard on 31 July 2020.The District Court decision[16] The Judge said, in considering whether a discharge should be granted, he firsthad to assess the gravity of the offending. In doing that, he considered it relevant thatthe maximum sentence for the offending was two years' imprisonment. Secondly, heconsidered that the charge was of harassment. He deliberately did not read out thecontents of the communications in open court. He summarised them as showing:[5] attempts to contact the employer and various professions ofaffection for the complainant. There is also one where there is a suggestionyou have moved on. There is another that talks about your being dissatisfiedwith another relationship she was in. There is another where you say you havebeen told not to contact her by the police, but you were contacting to let herknow that you would be at a certain place in a city that she was residing in,and you wanted to let her know you were going to be there just in case youran into each other.[6] That is not the exact wording you have used in the communications,it is just giving the flavour of the communications, and while on an individuallevel, those communications could be said to be innocuous, the general pictureor flavour I get from them is being communications from someone who isinfatuated and is, to an extent, trying to manipulate the situation to try tomaintain contact with someone who had made it very clear that they did notwant any further contact. This is a situation, as I see it, that the HarassmentAct is clearly and squarely designed for in terms of protecting the complainantin this case.[17] The Judge then referred to the victim's impact statement. He said this was acase of persistent contact. He referred to the potential impact of persistent contactwith complainants, in a general sense, to be very significant. He said "that is certainlythe intent set out in the victim impact statement". He considered he was entitled totake that effect into account when assessing the gravity of the offending. As to thegravity of the offending, the Judge concluded:[8] In my view, this is not at the low end of the scale in terms of offendingunder the Harassment Act. As I have said, you have been charged withharassment. That carries a maximum sentence of two years. I assess thegravity, taking into account all of those factors, at the middle of the range,moderate.[18] The Judge then said he had to consider the consequences of a conviction uponMr Gonzalez. He referred to his 10 years as a lay member of the New Zealand HealthPractitioners Disciplinary Tribunal. He said, with the benefit of that background, hewould be "extremely surprised" if Mr Gonzalez would face any disciplinary outcomethat might involve suspension or cancellation of his registration. He said, on thematerial before him, there was no question around the competency of Mr Gonzalez'work as a professional so there would not be any concern in that regard in terms ofprofessional discipline. He said there was no suggestion that the harassment had takenplace in the context of a practitioner-patient relationship. Next, he noted thatprofessional discipline was not an appropriate context for dealing with issues arisingfrom personal relationships. He considered that, while there might be consequencesthat would flow in terms of professional discipline, his assessment of the degree ofthat risk and the likely outcome was "relatively minimal given the particular facts ofthis case".[19] The Judge next considered as a potential consequence the loss of Mr Gonzalez'employment. As to that, the Judge noted the employer's concern seemed to relate topotential difficulties that might arise from publication as to the conviction, rather thanany concern over what Mr Gonzalez had actually done.[20] He considered that potential consequence was more appropriately consideredin terms of the application for name suppression.[21] The Judge said, based on his personal experience coming from a small centreand employing lawyers, and given the comments that were made around Mr Gonzalezbeing "a very competent practitioner" and the difficulties of finding a competentpractitioner in limited fields, if the Judge were the employer, he would not let MrGonzalez go.[22] The Judge then said he had to stand back and consider proportionality andwhether the direct and indirect consequences of conviction would be out of allproportion to the gravity of the offending. At that point, he took into account theimpact of granting the application on the victim and the "sense that the general publicmay well have in seeing what has resulted in this case". He suggested that grantingthe application "would send a clear signal to the complainant and the wider communitythat there is no accountability in this case, given the nature of it". Taking all thosefactors into account, he considered a conviction would not be out of all proportion tothe gravity of the offending.[23] As to suppression, the Judge considered, applying "the usual rules aroundname suppression", name suppression was not appropriate. However, in the interestsof protecting the victim, the Judge limited the information that could be published toMr Gonzalez' name, the charge and the outcome. He said that, in limiting publicationof information in that way, he was protecting the interests of the victim but said suchsuppression should also "mitigate" the views of Mr Gonzalez' employer who hesuggested might take a different view as to what the employer had indicated would beconcerns arising out of publication.[24] The Judge imposed a fine of $500.[25] The Police must then have applied for a protection order. The Judge said:There are some circumstances that must be satisfied for that to apply. I haveasked Mr Jefferies [Mr Gonzalez' counsel]. There is no opposition to theprotection order being made and it is made accordingly.[26] The Judge granted interim suppression pending an appeal.Approach on appeal[27] An appeal against a refusal to grant a discharge is an appeal against convictionand sentence.3 The proportionality test under s 107 is a question of fact requiring ajudicial assessment.4 If an appellant can show the first instance decision was wrong,evaluation of the s 107 factors is considered afresh.5Submissions[28] For Mr Gonzalez, Mr Jefferies in his written submissions said Mr Gonzalez isa 56 year old registered dentist who, at the time, was employed as a dentist at a dentalpractice in Greymouth. He is now unemployed and living in Ashburton. He submittedthat, although not wishing to undermine any impact the offending may have had onthe victim, the offending was at "the very low end of the scale" as far as criminaloffending is concerned. He suggested discharges without conviction have beenroutinely granted for far more serious conduct, including where there has beenphysical assault of varying degrees.3 Jackson v R [2016] NZCA 627, [2016] 28 CRNZ 144 at [8]−[9] and [16].4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].5 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.[29] Mr Jefferies submitted the Judge erred in placing undue emphasis on theimpact of the offending and perhaps failing to recognise the offending did not involvethreats, intimidation or sexual references, but was in the context of a clumsy attemptto save a relationship.[30] In assessing the consequences of a conviction, Mr Jefferies submitted the Judgewas plainly wrong in contemplating the employer should reconsider whether or notMr Gonzalez' employment would be terminated if there was a conviction and haderred in pre-judging what might be the consequence of a disciplinary process with theDental Council. Counsel submitted the Judge failed to follow the approach which theCourt of Appeal has said has to be taken in assessing consequences. In DC(CA47/2013) v R, the Court of Appeal said:6[43] With respect, we consider that the Judge's approach was wrong. Thesentencing Judge must decide, not to any legal standard of proof, what theconsequences of the offending will be. The Judge does not have to be satisfiedthat the direct and indirect consequences will inevitably or probably occur; itis sufficient if he or she is satisfied there is a real and appreciable risk of suchconsequences.7[31] Counsel submitted the Judge should also have recognised that, although MrGonzalez is academically well-qualified, at his age, employment in his chosenprofession might be difficult to obtain and it would be disappointing for both him andthe wider public that advantage could not be taken of his qualification and skills. Hesaid Mr Gonzalez was remorseful, had sought voluntary counselling and had agreedto a protection order being made against him. He had engaged in a non-violenceprogramme which is mandatory when such an order is made, and was cooperative withthe Police.[32] Mr Jefferies submitted that, following the three-stage approach in consideringwhether there should be a discharge as set out in Blythe v R,8 the Judge should havebeen satisfied that the consequences of conviction would be out of all proportion to6 DC (CA47/2013) v R [2013] NZCA 255.7 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; Alshamsi v Police HCAuckland CRI-2007-404-62, 15 June 2007 at [20]; and Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009 at [49].8 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.the gravity of the offence so that a discharge without conviction should have been theappropriate outcome.[33] For the Police, Mr Harvey submitted the Judge had followed the acceptedmethod for considering a discharge application. He submitted the Judge had beencorrect to find the offending was moderately serious. He submitted the Judge had beencorrect to assess the consequences of a conviction by focusing on Mr Gonzalez'employment rather than the potential outcome of a disciplinary process through theDental Council. That submission was made on the basis it should be for theprofessional body to consider the gravity of the offending and whether there should bea censure as recognised or other consequences, as he submitted had been the approachtaken by the High Court in other cases.9[34] Mr Harvey did however say in submissions before me that it was "hard to seewhy the Board would be troubled by a conviction for this sort of offending".[35] Mr Harvey submitted that, on the information provided from Mr Gonzalez'employer, it was open to the Judge to find that loss of employment was not a likelyconsequence of conviction but of publication as to the convictions, and thatconsequence was better considered in determining whether a potential loss ofemployment satisfied the test of extreme hardship that would have justified an orderfor suppression of his name.[36] Mr Harvey also noted that a protection order had been made under s 123BSentencing Act 2002. A prerequisite for such an order is that a conviction is enteredfor a family violence offence. If a discharge were to be granted on appeal, theprotection order would also need to be set aside.Discussion[37] I consider there was an error in the Judge's assessment of the seriousness ofthe offending. This may have been partly caused by the way the case was put beforehim.9 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011;Blythe, above n 8; and Daleszak v Police [2015] NZHC 1853.The charge and associated communications[38] Mr Gonzalez had pleaded guilty to a charge that specifically said he hadintended his communications with the victim between 8 October 2019 and 25December 2019 to cause her to fear for her wellbeing. [].[39] The Harassment Act recognises the way in which communications orbehaviour that may appear innocent or trivial when viewed in isolation may amountto harassment when viewed in context. The Act is intended to provide protection forthose who are the victims of unwanted communications and contact.[40] One way the Act provides protection for a person who is the victim ofharassment is through the making of a restraining order. A court can order a personnot to do any act or threaten to do any act to the person for whom the protection ismade.10 If there were to be a breach of such an order, the person committing the breachwould commit an offence and be liable, on conviction, to imprisonment for a term notexceeding six months or a fine not exceeding $5,000.11 Someone who continued tobreach restraining orders could become liable, on conviction, to imprisonment for aterm not exceeding two years.12[41] In considering a criminal charge, the Court had to be guided by the Act's objectof "making the most serious types of harassment criminal offences".13[42] Crucially, whether a criminal offence had been committed depended not juston the effect of the harassment on the victim but also whether Mr Gonzalez, in hisactions, either intended the victim to fear for her safety or wellbeing14 or knew that hisharassment was likely to cause the victim to reasonably fear for her safety orwellbeing.1510 Sections 16 and 19.11 Section 25(2).12 Section 25(3).13 Section 6(2)(a).14 Section 8(1)(a)(i).15 Section 8(1)(b)(i).[43] Here, Mr Gonzalez pleaded guilty to the charge of harassment on the basis hehad intended his actions to cause the victim to fear for her wellbeing. There washowever no information in the summary of facts to indicate he had such an intention,had acknowledged he had such an intention or to any facts consistent with him havingsuch an intention.[44] The charge was that Mr Gonzalez had harassed the victim between 8 October2019 and 25 December 2019 through regular unwanted electronic contact. Over thattime, the communications were reasonably sporadic but were a sequel to earlier morefrequent contact.[45] [][46] It is apparent from these earlier emails that the victim had blocked emailcommunication and was not responding to the emails or messages Mr Gonzalez hadsent to her. It is also apparent, when Mr Gonzalez was trying to make contact withher, that he knew she was blocking such communications. Even before 11 September2019, a Police constable had told him on several occasions he must stop trying tocommunicate with the victim as he had been. He must thus have known she did notwant him to be communicating with her.[47] [][48] Also on 11 September 2019, the same Police constable served Mr Gonzalezwith papers clearly outlining that his communications amounted to criminalharassment and attaching the relevant provisions of the Harassment Act. The noticewarned Mr Gonzalez that, if he continued to communicate with the victim in this way,he may be charged with criminal harassment.[49] [][50] [][51] [][52] [][53] There was nothing in the specific communications put before the Judge toindicate Mr Gonzalez' intention had been to cause the victim grief. Indeed, thecommunications were to the contrary. Neither the Judge nor Mr Gonzalez had thebenefit of submissions from Mr Gonzalez' counsel as to this. Mr Jefferies had notrepresented Mr Gonzalez when he pleaded guilty. Mr Jefferies told me that, at thetime of the sentencing, he had not seen any of the messages the District Court Judgewas referring to.[54] It troubled me that Mr Gonzalez had pleaded guilty to a charge, pursuant to s8(1)(a)(i), which appeared at odds with both the summary of facts and the evidence ofmessaging provided to the Judge. He may well have been willing to accept he hadcommitted an offence in terms of s 8(1)(b)(i). The potential penalty for such anoffence would have remained the same. However, Mr Gonzalez pleaded guilty to anoffence under s 8(1)(a)(i). He had legal representation at the time he entered his guiltyplea. It is also apparent from the Court file that, by that time, the Police had provideddisclosure of relevant documents so he and his then lawyer should have been able toconsider the communications that had taken place.[55] Nevertheless, on the basis of the information before the Court, I consider theevidence was not such to justify a conviction on a charge under s 8(1)(a)(i) HarassmentAct. The conviction should have been a charge framed in terms of ss 8(1)(b)(i) and8(2). It is on that basis I consider whether Mr Gonzalez should have been dischargedwithout conviction.Gravity of the offending[56] Mr Gonzalez did attempt to communicate with the victim after being warnednot to do so. At least some of his attempted communications were in a form whichshe was able to block and did block. She therefore had the ability to reduce the impactof them. Nevertheless, she was undoubtedly caused considerable distress through hisattempting to communicate with her as he did. She did not want any contact at all andthere should have been none of this communication. However, it was not of afrequency or intensity as to constitute moderate or serious offending of this nature.[57] In none of the specific contact that occurred did Mr Gonzalez threaten to havephysical contact with the victim. There was no indication he would bring about suchcontact. Such contact, as he had, indicated she was free to reject his continuingromantic interest in her. He did communicate with a work association that she waspotentially interested in but, in doing so and in conveying the communications he hadto her, he left it to her as to how, if at all, she would make use of those communicationsand indicated she could do so without his being further involved.[58] His communications about Christmas indicated he was still thinking of her ina way she did not want or welcome but, at the same time, she knew he would be inanother country.[59] Although Mr Gonzalez did not heed the warning not to communicate with thevictim at all, following his being charged with criminal harassment on 22 January2020, as required by the conditions of bail, he made no further attempt to communicatewith her.[60] At the time of Mr Gonzalez' sentencing, the Judge had confirmation that MrGonzalez had sought medical assistance and engaged in counselling to help findstrategies to deal with his distress at the situation he had been in and to recognise thedecisions which had led to him facing prosecution.[61] The harassment which occurred here and which was the subject of the specificcharge brought against Mr Gonzalez was certainly a marked contrast to the offendingin Moss v Police.16 There, an appellant had been served with a harassment warningletter listing the types of behaviour he was not to engage in. After that, he hadmessaged the complainant several times offering her a ride home from university,waited at her bus stop after she had declined those offers, ignored her telling him toleave and had entered her home. He then made 70 phone calls to her in one evening.After appearing in Court for that offending, he breached a condition of bail that he nothave contact with her, by sending her approximately 300 text messages and making120 phone calls over a period of nearly two months. He subsequently went to herhome and entered it without consent, staying there after multiple pleas from her that16 Moss v Police [2020] NZHC 1065.he leave. A few weeks later he approached her in a shop. The sentencing Judgeconsidered the offending was in the low to moderate range of gravity.[62] On appeal against the refusal of a discharge, Gordon J said the Judge had erredin not taking account of the fact that "the offence itself carries a maximum penalty oftwo years' imprisonment. In the overall scheme of criminal offences it is at the lowerend."17 Gordon J then considered mitigating factors both of the offending and theappellant. In relation to the offending, the Judge noted it was causally linked to theappellant's mental illness and emotional breakdown, which reduced his culpability.She had regard to his cooperation with the Police, early guilty pleas, genuine remorseand the particular steps he had taken to reduce the risk of reoffending throughobtaining treatment from a psychiatrist, having counselling and completing anappropriate programme. Taking those matters into account, Gordon J considered theoffending overall could properly be classified as being of low seriousness. Sheconsidered the Judge to have erred in finding it was low to moderate.[63] In the present case, at the conclusion of the Judge's sentencing remarks, withthe agreement of Mr Gonzalez, the Judge made a protection order in favour of thevictim. It appears from the sentencing remarks that this would have happened withoutthe opportunity for Mr Gonzalez to have any detailed discussion with his counsel asto whether the grounds for the making of such an order had been made out.[64] A protection order may be made at sentencing when an offender is convictedof a family violence offence and the court is satisfied such an order is necessary forthe protection of the victim of that offence.18 A family violence offence includesharassment of a person with whom the offender has been in a family relationship.19[65] Mr Jefferies explained that Mr Gonzalez agreed to the making of a protectionorder because he (and presumably his counsel) considered he would, in some way, getcredit for that, albeit the sentencing had been completed at the time the Police askedfor the making of such an order.17 At [60].18 Sentencing Act 2002, s 123B.19 Sentencing Act, s 123A definition of "family violence offence"; and Family Violence Act 2018,ss 9(1)(b), 9(2)(c) and 11(1)(b).[66] I do give Mr Gonzalez credit for the fact he agreed to the making of a protectionorder and thus accepted the obligation to attend an appropriate counselling programmeto reduce the risk of any future harassment of the victim. Consistent with Mr Jefferies'explanation, the Court does recognise there are occasions when those who are subjectto applications for a protection order choose to disengage from post-relationshipconflict and to demonstrate that choice to the other partner by not contesting the needfor a protection order, even when the need for that order might be disputed. In thiscase, through the making of the protection order, the victim should have been furtherassured that Mr Gonzalez would be unlikely to try to make contact with her again.[67] The Judge was acutely aware of the distress the victim had suffered throughthe continuing contact and the intensity of her fear that this unwanted communicationwould continue. The particular harm to this victim had to be taken into account. Ialso have regard to it in assessing the seriousness of what happened but, in assessingthe seriousness of Mr Gonzalez' conduct as a criminal offence, the Judge needed toconsider with care the actual conduct Mr Gonzalez had admitted. Assessing mattersin that way, I consider his offending was significantly lower in seriousness than theDistrict Court Judge did in deciding whether a discharge was appropriate.Consequences of conviction[68] The next step is to decide what the consequences of conviction will be, bearingin mind I do not have to be satisfied that the direct and indirect consequences willinevitably or probably occur. It is sufficient if I am satisfied there is a real andappreciable risk of such consequences.[69] In the District Court and before me, Mr Gonzalez referred first to the potentialfor him to face some sanction from the Dental Council for his conduct in relation tohis admitted offence. In his affidavit in support of his application for a discharge, MrGonzalez said, if convicted, he would be subject to a significant disciplinary processthat would involve being reported to the Dental Council who would then be required,under the Health Practitioners Competence Assurance Act 2003, to appoint aProfessional Conduct Committee (PCC) to investigate the matter. He says this couldresult in his suspension or striking off as a dentist or he could be fined which, in anyevent, would create difficulties for his future employment as a dentist.[70] Attached to Mr Gonzalez' affidavit was a letter to him from the Dental Councildated 10 June 2020. It is apparent from that letter Mr Gonzalez has already advisedthe Council that he has pleaded guilty to a charge of criminal harassment. The enteringof a conviction will thus not alter the fact that they have become aware of the chargeto which he has pleaded guilty and thus may enquire further into what happened,whether or not he is discharged. It is also apparent from the Council's response to hisnotification of the guilty plea that his conduct would not necessarily have to be thesubject of investigation by a PCC. The Council advised, in accordance with pt 4Health Practitioners Competence Assurance Act 2003 ("Complaints and discipline"),where a practitioner has been convicted of an offence, the Council must, as soon asreasonably practicable, refer the practitioner to a PCC or make an order requiring thepractitioner to undergo or attend a form of examination, treatment, counselling ortherapy.[71] It is clear from the provisions of the Health Practitioners CompetenceAssurance Act that, if convicted and if the Council were to refer the matter to a PCC,Mr Gonzalez could, theoretically, be at risk of suspension, although there is asignificant threshold that would have to be met for such a suspension to occur.20[72] Following investigation, a PCC could have to make recommendations whichmight ultimately put Mr Gonzalez' ability to carry on his profession at risk, but theycould also arrive at recommendations or determinations which would avoid this, forinstance a recommendation that he be counselled by the Dental Council21 or that nofurther steps be taken under the Act in relation to the matter.22[73] It is not for a court to determine how a practitioner's conduct should be treatedby the professional body to which he belongs, particularly so where that body hasparticular responsibilities in terms of relevant legislation. It was however clear, from20 Section 79.21 Section 80(2)(e).22 Section 80(3)(a).the response Mr Gonzalez received from the Council in its letter of 10 June 2020, thatthe Council will want to see a copy of court decisions relating to the matter beforedeciding whether to refer his conduct and conviction to a PCC. Here, the DistrictCourt Judge has, for reasons set out in his decision, explained why he did not considerMr Gonzalez' conduct would put him at risk of the most serious sanctions of whichMr Gonzalez is fearful of and which Mr Gonzalez says there is a sufficient risk forthose consequences to be weighed in the balance on his application for a discharge.[74] This Court also notes the information provided by the practitioner with whomMr Gonzalez was employed from May 2019 to at least 30 June 2020, the date of theaffidavit the employer provided for the Court in connection with Mr Gonzalez'sentencing. In that affidavit, the employer stated:3. Dr Osvaldo Reyes Gonzalez is a very good clinician and I am mostimpressed with his performance. Osvaldo is an excellent dentist, heconsistently achieves excellent results in what at times can be prettychaotic situations.4. Osvaldo has excellent communication skills and empathy for patients.Dr Gonzalez has a good and generous disposition which extends to hispatients and he constantly strives to achieve the best results for hispatients. He is definitely not motivated by greed or pecuniary gain.5. His patients so far without exceptions, like him and seen [sic] very happywith his treatment. Osvaldo's patients have left numerous positivefeedback comments on our google website.[75] I note also that Mr Gonzalez has already participated in counselling to addressthe issues which caused him and his former partner difficulties after their relationshipended. On his sentencing, he also agreed to the making of a protection order whichprovided further security for the victim of his offending that there would be norepetition of the actions which caused her such anxiety. With that order, he also hadto participate in a counselling programme to reduce the risk of any further conduct ofthe sort which led to the charge against him.[76] Mr Gonzalez has already had the burden of having to tell the Dental Councilof his guilty plea and presumably of the conviction that was entered against him in theDistrict Court, even though that conviction has been the subject of an appeal. If thatconviction remains, he will face uncertainty and no doubt be anxious as to how theCouncil will deal with that conviction. Those consequences are not however soserious as to, themselves, require a discharge without conviction. There is a risk offurther consequences if his conduct is to be the subject of investigation by a PCC butthe potential for that would not, of itself, justify a discharge without conviction.[77] Given the low level of seriousness of Mr Gonzalez' offending and the fact hisconduct was in relation to a personal relationship and not connected with his work, itdoes seem unlikely that a conviction would ultimately result in his being unable topractice as a dentist in the way he fears. Even if the risk of such a consequence doesremain and should be weighed in the balance, on the ultimate balancing exercise thatis required of a court, his potential exposure to such a risk would not be reason todischarge Mr Gonzalez. It should be the Dental Council, or the appropriate body thathas the responsibility of doing so, that considers how his conduct and conviction mightimpact on his ability or fitness to practice.23[78] It was also submitted that a conviction would have such consequences, as faras future employment was concerned, that a discharge should be granted to avoid thoseconsequences.[79] In his affidavit in support of his application for a discharge Mr Gonzalez said,based on a statement provided by his then employer, if convicted, there was a clearexpectation his employment would be terminated. Given his age and the COVID-19pandemic environment, Mr Gonzalez considered, if he lost his then job, he would findit extremely difficult to obtain any type of employment either on the West Coast wherehe had been working or in South Canterbury.[80] In a letter, later confirmed as an affidavit, the owner of the practice where hewas working said:Notwithstanding of his excellent dental skills and friendly personally [sic]with his patients, if Osvaldo is convicted of criminal harassment, I would haveno choice but to terminate his contract with our clinic. Greymouth is a smalltown and a conviction of this type will bring very negative publicity for ourclinic. It would be a shame to lose Osvaldo and I am well aware that is goingto be difficult for him to find work anywhere with such a criminal conviction.23 Consistent with the approach taken by the courts in Zhang, above n 9; Blythe, above n 8; andDaleszak, above n 9.[81] On the face of it, there seemed to be a lack of logic in the opinion expressedby the employer. He noted that Mr Gonzalez' conduct, which was the subject of thecharge, had nothing to do with the dental practice. The employer had been positiveabout Mr Gonzalez' skills as a dentist and the way he related to his patients. Therewas thus no reason why a conviction would result in adverse publicity for the practiceMr Gonzalez was working in. The employer knew of the difficulties Mr Gonzalezfaced as a result of the charge brought against him, of his guilty plea and of at leastthe potential involvement with the Dental Council. The employer's concern, whichhe said would leave him with "no choice but to terminate his employment", seemedto relate not to any concern as to Mr Gonzalez' conduct with the victim of his offencebut the associated publicity.[82] In the District Court, Mr Gonzalez was not granted a discharge withoutconviction but presumably the employer was told that Mr Gonzalez was appealing thatdecision.[83] The Judge refused to suppress Mr Gonzalez' name but granted interimsuppression pending the appeal. Accordingly, there should have been no publicationas to Mr Gonzalez' conviction.[84] Given those opinions and the employer's "strong support" for Mr Gonzalez'application for a discharge, it might have been thought the employer would have beenable to retain Mr Gonzalez in his employment.[85] Despite that, in his appeal submission, Mr Jefferies said Mr Gonzalez "is nowunemployed and living in Ashburton". Mr Jefferies did not seek to put before theCourt any affidavit explaining the circumstances in which Mr Gonzalez' employmentended.[86] It concerned me that Mr Jefferies began his oral submissions by saying MrGonzalez' contract had not been renewed, a statement which suggested hisemployment may always have been for a limited time only. While Mr Jefferies resiledfrom that, the problem remains that I was not provided with evidence as to the termsof his original employment and the reasons why that employment came to an end. MrJefferies suggested I should draw the inference that it was because of the decisionsmade in the District Court. I cannot do so because those decisions were the subject ofan appeal.[87] Mr Gonzalez sought a discharge on the basis a conviction would put injeopardy his then employment as a dentist on the West Coast. With that employmenthaving now been terminated, the risk of that happening can no longer be a potentialconsequence that could justify a discharge.[88] I must therefore decide whether a conviction has the potential to affect hisfuture employment prospects generally in a way that requires a discharge. I am notsatisfied that it will or should, particularly given the circumstances of the offendingand what has been said in both this judgment and in the District Court decision as tothe positive aspects of Mr Gonzalez' work as a dentist.[89] If seeking future employment as a dentist, Mr Gonzalez will be seekingemployment in a profession where an employer and his patients must be able to placethe utmost trust in him as a dental practitioner. The particular offending which led tothe charge to which he pleaded guilty does not, of itself, suggest he could not be trustedin that professional relationship, but the Court should not hinder a prospectiveemployer in making their own assessment as to that by making it more difficult forthat employer to know that he committed this offence.[90] I have weighed the low gravity of this offence against the way in which aconviction might affect Mr Gonzalez' future employment prospects. In the particularcircumstances of this case, I do not consider those potential consequences justify adischarge so that Mr Gonzalez avoids a conviction for his admitted offending.[91] Mr Gonzalez' appeal against the refusal of a discharge is dismissed.Appeal against refusal to grant name suppression[92] Mr Gonzalez also appealed against the refusal of the District Court Judge tosuppress publication of his name.[93] The only submission Mr Jefferies made about suppression was that, if adischarge without conviction was granted, name suppression should be madepermanent. There had been interim suppression only because of the pending appealagainst the refusal of both the discharge and name suppression.[94] In his decision, the Judge said "in my view, the application for namesuppression does not satisfy the applicable test". That would appear to have been areference to the particular grounds on which a court can grant suppression, as set outin s 200 Criminal Procedure Act 2011. However, without reference to those particulargrounds or thresholds, the Judge limited the information that could be published aboutthe matter to Mr Gonzalez' name, the charge and the outcome. He did this "in theinterests of protecting the complainant". He said "the complainant might be distressedif the summary of facts was published".[95] Mr Harvey, for the Police, made a brief submission suggesting he thought theissue should be considered in terms of s 200 Criminal Procedure Act. He submitted itwas unclear why further publication of the current matter would cause Mr Gonzalez"extreme hardship" or justify the termination of his employment. He also pointed outthat, in applying s 200, loss of employment would not automatically justify namesuppression.24[96] In the District Court, Mr Gonzalez sought suppression on the basis publicity ofthe matter could cause loss of custom to the practice that employed him "and thusundue commercial hardship" to himself and the business.[97] There was no reference in submissions or in the District Court decision to thefact that the Harassment Act has particular provisions allowing suppression whichcould be applied without having to address s 200 or the thresholds for suppressionreferred to there.[98] Section 39 Harassment Act states:39 Power to clear court and restrict publication of proceedings24 Citing Robertson v Police [2015] NZCA 7.(1) Where, in any proceedings under this Act, the court is of the opinion thatit is desirable to do so, after having regard to the interests of any person(including, without limitation, the privacy of the applicant) and to thepublic interest, the court may make any 1 or more of the following orders:(a) an order forbidding publication of any report or account of the wholeor any part of—(i) the evidence adduced:(ii) the submissions made:(b) an order forbidding the publication of—(i) the name of any person, or any name or particulars likely tolead to the identification of that person:(ii) the affairs of any person:(c) an order excluding all or any persons other than the parties to theproceedings, any lawyer engaged in the proceedings, and any officerof the court, from the whole or any part of the proceedings.(2) The court may make an order under this section on its own motion or onthe application of any party to the proceedings.(3) Every application to the court for an order under this section may be heardin open court or in chambers.(4) An order made under subsection (1)(a) or subsection (1)(b),—(a) may be made for a limited period or permanently; and(b) if it is made for a limited period, may be renewed for a further periodor periods by the court under section 40; and(c) if it is made permanently, may be reviewed by the court at any timeunder section 40.(5) Nothing in this section limits or restricts any other power of the court—(a) to prohibit or restrict the publication of reports or particulars relatingto proceedings; or(b) to hear proceedings in private or to exclude any person from thecourt.[99] The District Court Judge may have been conscious of that provision when hesignificantly limited what could be reported as to the proceedings and his decision.[100] These criminal proceedings arise out of difficulties that the parties to arelationship have faced after the ending of that relationship. Such difficulties are moreoften the subject of proceedings in the Family Court. In proceedings there, anyapplication for suppression must be considered with due regard to the principle of openjustice but there are specific provisions to protect the interests of children or othervulnerable persons.25[101] In considering what suppression orders might be made, the Court mustendeavour to ensure there is adequate legal protection for a victim of harassment.26[102] Consistent with the decision reached in the District Court, I recognise thatpublication of the details of Mr Gonzalez' offending could be distressing to the victim.[103] On the other hand, if there is publication of only the fact that Mr Gonzalez hasbeen convicted of harassment without any details of the offending, such publicationcould be unfair to him. Such limited information might understandably causemembers of the public to speculate that his offending was more serious or sinister thanwas in fact the case. Publication of just the matters allowed in the District Court couldtherefore be more damaging to Mr Gonzalez than the circumstances of the casewarrant.[104] The Harassment Act allows comprehensive suppression orders to be made forthe benefit of any person involved in the proceedings. The Court is empowered tomake suppression orders on its own initiative.[105] I therefore quash the suppression order made in the District Court and make anew order as follows. The victim's name, the detail of the communications which MrGonzalez had with her and any information as to her particular circumstances or theeffect the communications had on her are suppressed. Subject to that, there can bepublication of this judgment, including Mr Gonzalez' name, his relationship to thevictim and the general nature of the harassment. This suppression order is not torestrict the release of this judgment or the District Court decision in full to the DentalCouncil or to a PCC appointed by the Dental Council. The order is also not to restrict25 See Family Court Act 1980, ss 11A-11D; and Sanders v Sanders HC Auckland CIV-2009-404-7812, 30 April 2010 at [58]-[59].26 Harassment Act, ss 6(3) and (1)(b).the release of those judgments in full to any employer or prospective employer of MrGonzalez who may enquire as to any previous convictions he may have.[106] This judgment will be released publicly with redactions consistent with thesuppressions made in para [105]. Publication of the unredacted judgment in LawReport or Law Digest is permitted.Result[107] The appeal against the refusal to grant a discharge without conviction isdismissed.[108] The appeal against the refusal to grant name suppression is allowed in order tosubstitute the order at [105] above.Solicitors:Jefferies Law, WellingtonCrown Solicitor's Office, Christchurch.