PHILLIP BARNES v NEW ZEALAND POLICE [2021] NZSC 46

PHILLIP BARNES v NEW ZEALAND POLICE [2021] NZSC 46 [24 May 2021]NOTE: THE ORDER MADE BY THE DISTRICT COURT SUPPRESSINGTHE NAME OF THE GYM WHERE THE OFFENDING OCCURREDREMAINS IN FORCE.ORDER CONTINUING SUPPRESSION OF THE APPLICANT'S NAME,ADDRESS, OCCUPATION AND ANY IDENTIFYING PARTICULARS UNTIL2 PM ON TUESDAY 25 MAY 2021.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 20/2021[2021] NZSC 46BETWEEN PHILLIP BARNESApplicantAND NEW ZEALAND POLICERespondentCourt: O'Regan, Ellen France and Williams JJCounsel: R M Mansfield for ApplicantB C L Charmley and R E King for RespondentR K P Stewart for NZME Publishing Ltd and RadioNew Zealand LtdJudgment: 24 May 2021JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B We make an order continuing suppression of theapplicant's name, address, occupation and any identifyingparticulars until 2 pm on Tuesday 25 May 2021.Suppression will lapse at that time.____________________________________________________________________REASONS[1] The applicant pleaded guilty to a representative charge of intentionally makingan intimate visual recording of another person under s 216H of the Crimes Act 1961.The Crown case was that the applicant had, on four separate occasions, placed a hiddenvideo camera in the changing rooms of a gym he attended and made recordings ofthose using the changing rooms in various states of undress. The applicant is a manin his mid-60s, and held a senior position in a Crown entity at the time of the offending.He later became its acting chief executive. He had no previous record of offending.[2] In the District Court, the applicant was discharged without conviction andgranted permanent name suppression.1[3] The police successfully appealed against the District Court judgment. TheHigh Court reversed both aspects of the District Court judgment, entered a conviction,quashed the suppression order and remitted the matter to the District Court forre-sentencing.2[4] The applicant applied to the Court of Appeal for leave to appeal against theHigh Court judgment. The Court of Appeal granted leave but dismissed the appeal.3[5] The applicant now seeks leave to appeal to this Court. He argues that there hasbeen a miscarriage of justice and also that there are points of public importance thatcould be addressed by the Court in the event that leave were granted.Refusal of discharge without conviction[6] The application for leave to appeal against the aspect of the Court of Appealjudgment dealing with the refusal to discharge the applicant without conviction isadvanced on the basis that matters of public importance arise and that a substantialmiscarriage of justice has occurred.4Miscarriage[7] The miscarriage ground is based on the applicant's submission that the HighCourt and the Court of Appeal overlooked his personal mitigating features when1 New Zealand Police v Barnes [2020] NZDC 11260 (Judge Bennett) [DC judgment].2 New Zealand Police v Barnes [2020] NZHC 2682 (Moore J) [HC judgment].3 Barnes v New Zealand Police [2021] NZCA 16 (Kós P, Thomas and Gendall JJ) [CA judgment].4 Senior Courts Act 2016, s 74(2)(a) and (b).assessing the gravity of his offending and in finding that it was serious offending (incontrast to the District Court Judge's assessment that it was moderate only).5 Theapplicant argues that the High Court and the Court of Appeal miscalculated theconsequences of a conviction because both courts worked on the basis that theconsequences advanced by the applicant arose from the offending itself rather thanfrom being convicted for the offending. The applicant says the approach adopted bythe High Court and Court of Appeal meant they identified what was not a consequenceof conviction, but did not identify what the consequences actually were. So theessential test in the relevant provision (s 107 of the Sentencing Act 2002), namely thatthe consequences of the conviction were out of all proportion to the gravity of theoffending, became meaningless because neither of the balancing factors had beenproperly assessed by either Court.[8] We do not discount that submission completely. But we do not think there isany proper basis for giving leave on this ground because we do not consider that theargument the applicant wishes to pursue, that the consequences were, in fact, out ofproportion to the gravity of the offending, has sufficient prospect of success to justifya further appeal.Matters of general or public importance[9] The applicant's argument that matters of general or public importance arise isconfronted by the reality that cases under s 106 of the Sentencing Act are essentiallyfact-specific. Faced with that, he argues that, if leave were given, it would give theCourt "an opportunity to consider discharges in circumstances which will give thejudgment relevance beyond its particular facts". He says the present case would be "asuitable vehicle for considering discharges", enabling the Court to engage with factors5 The applicant's counsel says the applicant was negotiating a period of intense personal turmoilwhen the offending occurred. Having previously battled depression, the applicant found himselfcombatting addictions to alcohol and pornography, addictions which had their origin in anunfortunate medical diagnosis. Furthermore, counsel pointed to the applicant's guilty plea, lackof previous convictions, respectable career, concerted efforts to rehabilitate, and the completionof community work, all of which he submits were not adequately taken into account by either theHigh Court or Court of Appeal when assessing the gravity of the applicant's offending.relevant to the assessment of gravity, including the relevance of personal mitigatingfactors in assessing this inquiry.6[10] Although the applicant identifies a number of issues that he says could usefullybe addressed by this Court, we do not see any of them as justifying the grant of leave.In all of them, the real issue is the application of the law to the particular facts, and wedo not see that addressing these issues in the applicant's case will have any significantprecedential effect for other cases.Name suppression[11] In relation to name suppression, the applicant says he wishes to argue on appealthat the decisions of both the High Court and the Court of Appeal focused on the typeas opposed to the extent of the hardship the applicant would suffer if his name werepublished. He also wishes to argue that both Courts erred by not taking into accounthis personal mitigating factors. We do not see these issues as matters of general orpublic importance and we do not consider that the arguments the applicant wishes tomake have sufficient prospect of success to justify the grant of leave.[12] The applicant argues that a matter of general or public importance arises,namely the interpretation of the expression "extreme hardship" in s 200(2)(a) of theCriminal Procedure Act 2011. This was the provision under which the District Court'sorder suppressing the applicant's name was made. We see the grounds the applicantwishes to raise about that issue as essentially fact-specific points that are unlikely tobe of more general application.Entry of conviction in High Court[13] The applicant argues that the High Court Judge erred in entering a convictiononce he had found errors in the District Court decision. He wishes to argue on appealthat the High Court Judge should have remitted the case to the District Court so thatthe whole process could start again, leaving open the possibility that a discharge6 In Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27], the Court of Appeal saidpersonal mitigating factors were relevant to the assessment of the gravity of the offending, eventhough they were personal to the offender.without conviction could be granted by the District Court when dealing with the matterafter remission. We do not see this as a matter of general importance nor do we see itas a sufficiently compelling point to justify the grant of leave.[14] The application for leave to appeal is dismissed. This means that the interimsuppression order made by the Court of Appeal will lapse.7 However, in order toprovide the applicant with the opportunity to communicate the result as he needs to,we make an order continuing suppression of the applicant's name, address, occupationand any identifying particulars until 2 pm on Tuesday 25 May 2021. After that time,there will be no impediment to the reporting of the applicant's name.Solicitors:Crown Law Office, Wellington for Respondent7 The Court of Appeal made an interim order suppressing the applicant's name, address, occupationand identifying particulars for ten working days after the date of its judgment (16 February 2021)unless renewed by further order. On 2 March 2021, Kós P made an order extending interim namesuppression until determination of the applicant's leave application to this Court, or determinationof the appeal if leave were granted.