SHANNA MAREE CROSBIE v NEW ZEALAND POLICE [2023] NZHC 1361

SHANNA MAREE CROSBIE v NEW ZEALAND POLICE [2023] NZHC 1361 [29 May 2023]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2023-425-000002[2023] NZHC 1361BETWEEN SHANNA MAREE CROSBIEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 May 2023Appearances: W J Wright for the AppellantM B Brownlie for the RespondentJudgment: 29 May 2023ORAL JUDGMENT OF GENDALL JIntroduction[1] On 22 March 2023, Ms Shanna Maree Crosbie was sentenced to 12 months'supervision and 125 hours community work by Judge Walker in the GoreDistrict Court having pleaded guilty to the following charges:(a) Forgery with intent to obtain property;(b) Forgery with intent for the forged document to be acted upon asgenuine; and(c) Using a forged document.[2] Judge Walker denied Ms Crosbie's applications for a discharge withoutconviction and permanent name suppression. Ms Crosbie now appeals against refusalto grant a discharge without conviction, the sentence, and refusal to grant permanentname suppression.Facts[3] During 2022, Ms Crosbie was employed as a health coach working out of GoreHealth Clinic. This was a non-clinical role and Ms Crosbie was not authorised to issueprescriptions of any kind. However, Ms Crosbie did have access to the patient database. Using this access, Ms Crosbie created false prescriptions for Tramadol, a strongpain medication, and forged a doctor's signature on it. She then presented the forgeddocument to a pharmacy to obtain the medication on some five occasions.[4] Subsequently, Ms Crosbie attempted to repeat this process again to obtainanother kind of pain medication, Codeine but was thwarted in her attempt by amalfunctioning printer. While Ms Crosbie did manage to obtain some Codeine, as aresult of the printer malfunctioning, Ms Crosbie's employer was alerted to thesituation. Following this, Ms Crosbie immediately resigned.[5] Ms Crosbie is 38 years of age and has one dated conviction for drink-driving.District Court's Decision[6] The District Court judgment first determined the application for a dischargewithout conviction.[7] Judge Walker considered that there was an element of premeditation in theoffending and noted that it involved a considerable breach of trust, heightening thegravity of the offending. On the reverse side of the coin, the Judge noted thatMs Crosbie had pleaded guilty at the earliest opportunity, had no relevant criminalhistory, a low likelihood of re-offending and risk to the community, showed significantremorse and had personal circumstances of addiction, health, and other matters whichmitigated her culpability. The conclusion the Judge came to after considering all thecircumstances was that the offending was of moderate seriousness.[8] The Judge assessed the consequences of conviction as low to moderate.Ms Crosbie had not substantiated her claims that the convictions would prevent herfrom travelling or obtaining future employment. In any case, prospective employersshould know about the nature of the convictions given they involved a breach of trustagainst Ms Crosbie's employer. Accordingly, the Judge determined the consequenceswere not out of proportion to the gravity of the offending and the test for a dischargewithout conviction was not made out. The Judge declined the application.[9] In coming to a sentence then, the Judge adopted a starting point of 12 months'imprisonment uplifted by four months for the second set of offending relating toCodeine. From the 16 month total starting point, the Judge deducted 25 per cent forMs Crosbie's guilty plea, 20 per cent for addiction issues and five per cent forrehabilitative steps she had taken, resulting in an eight month sentence ofimprisonment. However, keeping the focus on rehabilitation, the Judge imposed asentence of 12 months' supervision and 125 hours' community work.[10] Finally, the Judge dealt with name suppression. Ms Crosbie relied on theground of extreme hardship. The story had garnered an unusual level of media interestand given she lived in a small community, Ms Crosbie maintained publication wouldcause extreme hardship to her and to her partner and her three children in terms ofemployment and social engagement.Relevant LawDischarge without conviction[11] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, a Court may discharge the offenderwithout conviction, unless by any enactment applicable to the offence the Court isrequired to impose a minimum sentence.1[12] Section 106 is complemented by s 107. Under this provision, a Court must notdischarge an offender without conviction under s 106 unless the Court is satisfied that1 Sentencing Act 2002, s 106.the direct and indirect consequences of a conviction would be out of all proportion tothe gravity of the offence.2[13] The Court of Appeal has characterised an assessment under s 107 as athree-step test:3[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, takinginto account all aggravating and mitigating factors of theoffending and the offender;(b) identification of the direct and indirect consequences ofconviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.[14] In Z v R, the Court of Appeal clarified the approach to applying each elementof the s 107 assessment:4[W]hen considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).[15] With regard to the assessment of direct and indirect consequences of convictionon a defendant, the Court of Appeal has stated that:5The Judge does not have to be satisfied that the direct and indirectconsequences will inevitably or probably occur; it is sufficient if he or she issatisfied there is a real and appreciable risk of such consequences.2 Section 107.3 Prasad v R [2018] NZCA 537 at [11].4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].5 DC (CA47/2013) v R [2013] NZCA 255.[16] Furthermore, in relation to the final step, the Court of Appeal has affirmed inR v Smyth that: 6[12] It is not enough that the consequences of a conviction outweigh thegravity of the offending. Significantly more is required. The consequencesmust be out of all proportion to the gravity of the offending before the courthas jurisdiction to grant a discharge without conviction.Sentence appeal[17] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence isan appeal against a discretion and must only be allowed if the Court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.7[18] Generally, the focus in a sentence appeal is on the final sentence and whetherthat was in the available range, rather than the exact process by which it was reached.8The Court of Appeal has accepted, however, that there may be cases where "what hasgone wrong as such as to require correction albeit the sentence imposed is withinrange".9Name suppression[19] Courts may suppress the identity of a defendant under s 200 of theCriminal Procedure Act 2011. The starting point for a s 200 analysis is the principleof open justice.10 Courts have consistently emphasised a presumption in favour ofopenness in reporting.11 Publication is the norm. Suppression orders are only to bemade in restricted circumstances and the threshold is high.126 R v Smyth [2017] NZCA 530.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.8 Ripia v R [2011] NZCA 101, At [15].9 Tutakangahau v R, above n 7, at [36].10 Erceg v Erceg [Publication restrictions] [2016] NZSC 135, [2017] 1 NZLR 310 at [2].11 R v Liddell [1995] 1 NZLR 538 (CA) at 546. See also Proctor v R [1997] 1 NZLR 295 (CA) at298–299; Robertson v Police [2015] NZCA 7 at [43]–[47]; and Re Victim X [2003] 3 NZLR 220(CA) at 238.12 Robertson v Police, above n 11, at [44].[20] Section 200 contemplates a two-stage test.13 The first stage is a thresholddetermination. The court may only order name suppression if it is satisfied that oneof the consequences listed in s 200(2) would be likely to follow if no order weremade.14 This first stage is met if the Court is satisfied there is a real or appreciablerisk that the consequence will follow from publication.15 It is not necessary toestablish that the risk of harm is more likely than not to occur.16[21] If one of the threshold grounds under s 200(2) is met, the Court must thendetermine whether to exercise its discretion to suppress the defendant's name.17 Atthis point, the Judge weighs the competing interests of the applicant and the public,taking into account such matters as whether the applicant has been convicted, theseriousness of the offending, the views of the victim(s) and the public interest inknowing the character of the offender.18 In exercising its discretion, the Court mustweigh the competing interests of the applicants and the public interest in open justice.There is a high threshold to be reached before suppression is justified,19 and thebalance must "come down clearly in favour of suppression".20[22] The Court, on appeal, must adopt a bifurcated approach. An appeal against thefirst decision is a factual assessment and subject to the ordinary approach on a generalappeal.21 The appellate court is entitled to come to its own opinion about the facts andthe law.22 The Court must determine whether or not any of the threshold criteria ins 200(2) have been established. If the appellate court's opinion is different, the lower13 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and Robertson v Police, above n 11, at[39]–[41].14 Fagan v Serious Fraud Office, above n 13, at [9].15 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; Huang v Serious Fraud Office[2017] NZCA 187 at [10]; Peglar v Police [2014] NZHC 1184 at [23]; and JM v R [2015] NZHC426 at [33]–[36].16 Beacon Media Group Ltd v Waititi, above n 15, at [17].17 Fagan v Serious Fraud Office, above n 13, at [9]; and Robertson v Police, above n 11, at [39] and[41].18 Robertson v Police, above n 11, at [41], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546(CA) at [42].19 Robertson v Police, above n 11, at [41]–[44].20 Lewis v Wilson & Horton Ltd, above n 18, at [43], followed in D (CA443/2015) v Police [2015]NZCA 541, (2015) 27 CRNZ 614 at [12].21 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.22 At [16].court decision is regarded as erroneous even if it was a conclusion "on which mindsmight reasonably differ".23[23] An appeal against the second limb is an appeal against discretion.24 Anappellant must establish that the Judge below has "acted on some wrong principle,taken into account an irrelevant factor, ignored a relevant factor or was plainlywrong".25 If there is such an error, the appellate court considers the discretion afresh.26AnalysisDischarge without conviction[24] I do not consider this is a case where a discharge without conviction iswarranted. In my assessment, Judge Walker in the District Court made no error inassessing the gravity of the offending as moderately serious. The offending involveda significant breach of trust on Ms Crosbie's part in abusing the privilege of access tothe patient database she had obtained in her role as a health professional. I do notaccept the appellant's submission that the creating of the forged prescriptions involvedonly a click of a mouse, and therefore, should be assessed as a low level of seriousness.It is not the physical act of how the forgery was committed which determinesseriousness but the significance of what Ms Crosbie did. Ms Crosbie searched for apatient who had been prescribed the medication she was seeking, created a prescriptionfor the same, importantly she forged the signature of a doctor and then used theprescription on some six occasions to obtain the medication. She then repeated thewhole process again with a different type of medication. The offending was not aone-off mistake that was later regretted. It was a sustained attempt at obtainingmedication to which Ms Crosbie was not entitled and it was only thwarted because ofa printing malfunction.[25] Nor do I accept the submission that Judge Walker did not correctly evaluatethe whole circumstances of Ms Crosbie's offending. The Judge identified the early23 At [16].24 Wilson v R [2018] NZHC 1778 at [14].25 Saggers v R [2012] NZCA 560 at [25]; and see B (CA860/10) v R [2011] NZCA 331 at [9]; andLawrence v R [2011] NZCA 272 at [11].26 Kacem v Bashir [2010] NZSC 112, [2011] 2 NLZR 1 at [32].guilty pleas, the attempt at restoration processes, and the rehabilitative steps taken byMs Crosbie and her addiction and mental health issues, later recognising them bydiscounting the sentence by 20 per cent for these factors. Ms Crosbie's limitedcriminal history, her expression of remorse and her low likelihood of re-offendingwere all factors also considered in the judgment to come to the conclusion that theoffending was moderately serious. That assessment cannot be faulted.[26] The consequences of conviction too I am satisfied were not such as to justify adischarge without conviction. Any consequences potentially preventing Ms Crosbie'sattempts to travel were speculative and adverse employment consequences weresketchy and non-specific. Additionally, and in any event, the nature of the offendingmeant that future employers should be aware of it. The mental health effects ofconviction, while of course regrettable, do seem to me to be related more toMs Crosbie's addiction issues and, do not mean the consequences of conviction areout of all proportion to the gravity of the offending.[27] This ground of appeal must fail.Sentence appeal[28] As I note, a sentence of 12 months' supervision and 125 hours of communitywork was imposed in the District Court. Ms Crosbie says that sentence is manifestlyexcessive. The respondent says it is within range and should be upheld.[29] While I find that the consequences of conviction would not be such to justifya discharge without conviction, they are serious, nonetheless. That is part of thepenalty Ms Crosbie faces. She has clearly fallen from grace here. The Crown toodoes not dispute before me that Ms Crosbie suffers from addiction and mental healthissues and is seeking rehabilitative help, a dominant factor above. Coupled with allthis, a sentence of 12 months' supervision and 125 hours of community work mightwell be considered here to be in my view manifestly excessive. Judge Walker wasright to take a rehabilitative approach to sentencing in choosing a non-custodialsentence and I do not find any error in the discounts he imposed nor the starting pointadopted. The sentence he came to was a nominal sentence of imprisonment ofeight months. He converted this to a sentence of 12 months' supervision and125 hours' community work. While there is no mathematical conversion to befollowed when taking such an approach, considering the totality of the offending, Iconsider a sentence of nine months' supervision and 75 hours' community work ismore appropriate in all the circumstances here. That aspect of this appeal is to beallowed.Name suppression[30] Ms Crosbie submits that this case reaches the high threshold for namesuppression. The case has generated unfair publicly, she maintains. This is because itis linked to a misconstrued association between Ms Crosbie and someone who is orwas the mayor of Gore; Ms Crosbie's identity has already been an open secret in theGore community; and negative comments on social media Ms Crosbie says means thatshe—already vulnerable because of her mental health issues—and her children willsuffer extreme hardship from publication.[31] The respondent opposes all this, submitting that the threshold for extremehardship is not met here. I agree. While the somewhat public profile of Ms Crosbiemay result in a higher than average interest in the case, it is not the position that namesuppression must protect every high profile individual from negative comments in themedia. Again, I acknowledge the mental health and other health issues Ms Crosbiestruggles with. However, these it seems are related largely to addiction issues and arenot a basis for meeting the high threshold of extreme hardship. The starting point ofopen justice is not lightly to be departed from. I do not consider there to be any soundbasis here for departing from that principle. And before me Mr Wright also indicatedthat Ms Crosbie's name, and details of this offending are well-known already,especially in Gore, Invercargill and Southland generally. Judge Walker's decision onname suppression contained no error.Conclusion[32] The appeal against sentence is allowed. The sentence of 12 months'supervision and 125 hours' community work is quashed and a sentence of nine months'supervision and 75 hours' community work is imposed in its place.[33] The appeal against refusal to grant a discharge without conviction is dismissed.[34] The appeal against refusal to grant name suppression is dismissed.ADDENDUM[35] At the conclusion of this appeal hearing and following delivery of my originaljudgment herein, Mr Wright for the appellant indicated that, notwithstanding mydecision, he believed Ms Crosbie may wish to seek leave to appeal that namesuppression decision particularly to the Court of Appeal. To protect that possible rightof appeal, he sought that the Court extend for a short period name suppressionfor Ms Crosbie on an interim basis. That said, I now make an order on an interimbasis that name suppression for Ms Crosbie is to continue until 5 pm onTuesday 6 June 2023.Gendall JSolicitors:Wilkinson Rodgers Lawyers for the AppellantPR Law for the Respondent