DISCIPLE v NZ POLICE [2022] NZHC 2797

DISCIPLE v NZ POLICE [2022] NZHC 2797 [28 October 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF 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-2022-418-04[2022] NZHC 2797BETWEEN TIMOTHY DISCIPLEAppellantAND NEW ZEALAND POLICERespondentCRI-2022-418-05BETWEEN TIMOTHY DISCIPLEAppellantAND NEW ZEALAND POLICERespondentHearing: 8 September 2022Appearances: M Zintl for AppellantC J Boshier for RespondentR Stewart for Stuff LimitedJudgment: 28 October 2022JUDGMENT OF EATON J[REDACTED]This judgment was delivered by me on 28 October 2022 at 10 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] Timothy Disciple pleaded guilty to one charge of indecently assaulting a boyaged 12 to 16 years,1 three charges of indecently assaulting a child under 12 years ofage (one representative),2 two charges of indecent assault on a young person under theage of 163 and one charge of indecent assault.4 Mr Disciple was sentenced byJudge Garland on 23 June 2022 to two years and five months' imprisonment.5 TheJudge declined an application for permanent name suppression and for suppression ofthe fact that the offending took place in the Gloriavale community, but orderedsuppression of the familial links between Mr Disciple and the victims. After thesentencing, on 10 August 2022, Judge Garland made a final suppression order of theportions of the summary of facts relating to Victims One and Three.[2] Mr Disciple appeals his sentence and the refusal to order permanent namesuppression.Facts[3] The following facts are taken from the summary of facts.[4] The appellant is a 41-year-old man who lived in the Gloriavale Christiancommunity. There are five victims to his offending, all of whom lived in theGloriavale community at the time of the offending.[5] [][6] In December 2005, Victim Two and her family travelled by van withMr Disciple and his family. The families were on holiday together. Victim Two was12 years old at the time. Mr Disciple was 24 years old and was recently married.Mr Disciple and Victim Two sat in the back row of the van. Mr Disciple placed hishand on the victim's lower back and bottom over her clothing and squeezed and rubbed1 Crimes Act 1961, s 140A(1): maximum penalty seven years' imprisonment.2 Section 132(3): maximum penalty 10 years' imprisonment.3 Section 134(3): maximum penalty seven years' imprisonment.4 Section 135: maximum penalty seven years' imprisonment.5 Police v Disciple [2022] NZDC 11586.her. Victim Two told her parents she was feeling car sick in order to get away fromMr Disciple.[7] Victim Three was then asked to sit in the back seat next to Mr Disciple. Shewas 10 years old at the time. Mr Disciple placed his right arm around her shoulderand his left hand on her knee. He then moved his left hand up the victim's legunderneath her dress and began rubbing her bare thigh and her vagina over herunderwear.[8] [][9] [][10] [][11] Also in 2006, Mr Disciple offended against Victim Four, aged 15 or 16 at thetime, and Victim Five, aged 16 or 17 at the time. Mr Disciple and Victim Four workedtogether at the moss plant. After work, they would walk back to the accommodationblock together and would often go into Mr Disciple's bedroom. In the bedroom,Mr Disciple put his arms around the victim from behind before moving them down toher breasts.[12] The indecent assault against Victim Five was very similar. Mr Disciple andVictim Five were in the main building in the preschool area. Mr Disciple was standingin a doorway so he could see in both directions. He was chatting to the victim whenhe put his arms around her from behind and placed his hands on her breasts.[13] Mr Disciple presented himself to the police and was interviewed. He admittedoffending against all victims. He volunteered details of his offending against VictimsOne, Four and Five who had not made police complaints.Sentence appealDistrict Court decision[14] In sentencing Mr Disciple, the Judge considered the relevant purposes ofsentencing in s 7 of the Sentencing Act 2002 to be to hold Mr Disciple accountable forthe harm caused to the victims, to promote a sense of responsibility, to bear in mindthe interests of the victims, and denunciation and deterrence, especially consideringthis offending was sexual offending against children.[15] The Judge took [], as the lead offending. The Judge considered theaggravating features were the age disparity between the [], the vulnerability of thevictim, the significant breach of trust, the intrusiveness and repetitiveness of theoffending, the significant degree of premeditation, the prolonged period the offendingtook place over and the effect on the victim. A starting point of four and a half years'imprisonment was adopted after consideration of a number of cases.6[16] The Judge considered the offending against the other four victims warranted atleast an 18-month uplift, bringing the overall starting point to six years' imprisonment.The Judge then accounted for totality, and reduced the starting point to one of fouryears and six months' imprisonment.[17] A 25 per cent credit for guilty pleas was allowed and a further five per cent forMr Disciple's cooperation with police in making disclosures about three of the victimswhere the police would not have otherwise known about the offending. The Judgeobserved that Mr Disciple only made disclosures when he became aware that the othervictims had made disclosures, and that his disclosures were made 14 to 15 years afterthe offending. The Judge allowed a further five per cent reduction for remorse and a10 per cent reduction for willingness to rehabilitate and the consequences ofimprisonment for Mr Disciple's family.6 Anson v R [2014] NZCA 135; R v Thorpe [2012] NZHC 229; O (CA643/2009) v R [2010] NZCA609; Frank v Police [2021] NZHC 1926; R v De Kwant [2017] NZHC 2291; Wild v R [2019]NZCA 189; R v Shaw [2013] NZCA 142; Hishon v R [2016] NZCA 558; and R v Hulks HCAuckland CRI-2009-090-9262, 10 September 2010.[18] The Judge declined to allow a discount for previous good character givenMr Disciple had engaged in prolonged offending. His Honour also refused to allow adiscount for youth, Mr Disciple being [] at the time of the first offence.[19] A total discount of 45 per cent was applied leading to an end sentence oftwo years and five months' imprisonment.Principles on appeal[20] 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. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 As the Court of Appeal said in Tutakangahau v R, quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".8 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.9SubmissionsAppellant's submissions[21] Mr Zintl, for Mr Disciple, submitted that the starting point for the offendingagainst Victim Three should have been no higher than three years' imprisonment.10He submitted that the overall starting point should have been no higher than four years'imprisonment after considering the principle of totality.117 Criminal Procedure Act 2011, ss 250(2) and 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].10 With reference to: Britow v R [2017] NZCA 229; O (CA643/2009) v R, above n 6; R v De Kwant,above n 6; R v Lynch [2014] NZHC 1788; and R v N HC Auckland CRI-2006-092-2334, 29 July2008.11 With reference to: R v Hulks, above n 6; and R v Tyson CA141/95, 6 July 1995.[22] Mr Zintl also submitted that Mr Disciple should have received a largerdiscount, of 10 to 15 per cent, for cooperation with authorities.12 He noted theoffending was highly unlikely to have come to light but for Mr Disciple's confession.He submitted that higher discounts would incentivise offenders volunteeringinformation about further offending to the police.[23] Counsel submitted a 10 per cent discount for previous good character wasappropriate to reflect the absence of previous convictions and the fact Mr Disciple hadnot offended in the 16 years after his offending and prior to his arrest.13 The Judgewas presented with numerous character references detailing how the offending wasout of character for the appellant.[24] Mr Zintl also contended Mr Disciple should have received a five per centdiscount for his youth at the time of the offending.14[25] Finally, he submitted the appropriate end sentence was less than two yearsimprisonment. He submitted that, given the passage of time since the offending, themitigating features of the offender and the low risk of re-offending, home detentionwas the appropriate sentence for Mr Disciple.Respondent's submissions[26] Ms Boshier, for the Crown, submitted the starting point adopted for theoffending against Victim Three was within range having regard to the cases cited bycounsel and the Judge. She submitted that the uplift of 18 months was appropriategiven the number of victims involved, and suggested that if the charges were taken inisolation then a greater starting point on each would have been warranted. Ms Boshierstressed that the Judge then reduced the starting point back down to the original12 With reference to: R v Strickland [1989] 3 NZLR 47 (CA); R v Sanday CA146/99, 29 July 1999;D v Police (2000) 17 CRNZ 454 (HC); Ringrose v R [2011] NZCA 634 at [24]; Lowenstein vPolice [2020] NZHC 786; S v R [2017] NZHC 205; and R v Lynch HC Hamilton CRI-2010-019-3449, 9 September 2010.13 With reference to: R v Hockley [2009] NZCA 74; R v Carruthers CA401/94, 10 April 1995; R vWebb CA13/04, 17 June 2004; Manawaiti v R [2013] NZCA 88; and Solicitor-General v Rawat[2021] NZHC 2129.14 With reference to Solicitor-General v Rawat, above n 13, at [40].starting point to reflect totality. She submitted the overall starting point cannot be seento be manifestly excessive given the substantial totality discount.[27] Regarding the discounts given at sentencing, Ms Boshier acknowledged that adiscount to reflect Mr Disciple having volunteered offending otherwise unknown tothe police was appropriate. She noted that relevant considerations for determining theappropriate discount are the type and seriousness of the offending, the nature and valueof the assistance, the situation in which the assistance was given and the consequencesof the defendant giving assistance.15 She acknowledged that Mr Disciple's assistanceidentified victims that had not made disclosures, but argued that the fact the confessioncame 15 years after the offending and only after Mr Disciple was aware of otherdisclosures to the authorities suggests a significant credit is inappropriate. In thosecircumstances, she submitted that a five per cent discount, especially when combinedwith the five per cent discount for remorse, was appropriate.[28] Counsel submitted that it was open to the Judge to refuse a good characterdiscount in a case where the offending took place over a prolonged period.16 She alsosubmitted that the time elapsed since the offending was taken into account in allowinga discount for rehabilitative prospects.[29] Ms Boshier submitted that any discount available for youth was neutralised asa consequence of the offending continuing into Mr Disciple's 20s. His continuedoffending makes it clear that this was not impulsive or youthful behaviour, and thereis no need to recognise that youth have a greater capacity for rehabilitation or that longsentences may be crushing on youth because Mr Disciple is now in his 40s. Therationale for a youth discount does not arise in this case.[30] Ms Boshier therefore submitted that the end sentence was not manifestlyexcessive and so home detention was not available. She submitted that home detentionwould not, in any event, be appropriate as it would not appropriately account for thepurposes of deterrence and denunciation.15 With reference to: Williams v R [2011] NZCA 384; Waihape v R [2012] NZCA 425; and R v CCA319/99, 25 November 1999.16 With reference to: Payne v R [2016] NZCA 284; Britow v R [2017] NZCA 229; R v Hockley,above n 13; and Hamilton v R [2015] NZCA 28.Analysis[31] I agree with the Judge it is appropriate to take the offending againstVictim Three as the lead offending. The aggravating features of this offending are:[], the repetition of offending, [], the level of premeditation, [], and theprofound effect on the victim.[32] [].[33] It appears the Judge has erred in his assessment as to the duration of thisoffending.[34] The summary of facts records the offending the subject of the representativecharge as []. It also refers to the age of the victim being between [].[35] Both the summary of facts and the findings of the Judge are at odds with thecharging documents. [][36] [].[37] [].[38] Mr Disciple is entitled to be sentenced in accordance with the offences ascharged. On my analysis, the Judge was wrong in his assessment of the frequency andduration of the overnight offending. That is not to suggest the offending was notrelatively prolonged, but that the offending was not as prolonged as the Judge foundbased on the charging documents. [].[39] The Judge considered a number of cases in setting the starting point. I havereviewed those cases. The following cases provided useful guidance:(a) Anson v R:17 Mr Anson was found guilty of two counts of indecent actsand one count of an indecent assault against his step-grandchildren. Allcharges were representative. Over four years the appellant had been17 Anson v R, above n 6.getting into the shower with the young victims and masturbatinghimself and touching one of the victim's genitalia. The starting pointof four years' imprisonment was seen as lenient on appeal.(b) O (CA643/2009) v R:18 The 54-year-old offender committed sixindecencies on his 10–11-year-old niece on four separate days over aseven-month period by touching the girl's vagina, sometimes under herclothing, squeezing her breast and kissing her on the lips. A startingpoint of three years' imprisonment was confirmed on appeal, albeitdescribed as stern.(c) R v De Kwant:19 The 52-year-old offender masturbated the victim, aneight-year-old boy, on at least 12 occasions over an 18-month period.This Court considered the aggravating circumstances to be thevulnerability of the victim, the disparity in age, the period of time, theabuse of trust and the harm to the child. A starting point of four years'imprisonment was adopted.(d) R v Thorpe:20 The offender pleaded guilty to eight charges ofindecently assaulting a child under the age of 12 years and one chargeof indecently assaulting a young person under the age of 16 years.These offences were committed against four different victims (agedbetween seven and 13) over a six-year period. The victims were left inMr Thorpe's care by their parents. The offending included rubbing hispenis against one of the victims while they were both clothed, touchingthe children inappropriately while they were clothed and masturbatingthree of the victims, one of them on multiple occasions. The startingpoint was four years and three months' imprisonment for the leadoffending, which was four incidents where the offender masturbatedthe victim. The overall starting point for all the offending was sevenyears' imprisonment.18 O (CA643/2009) v R, above n 6.19 R v De Kwant, above n 6.20 R v Thorpe, above n 6.[40] Considering those authorities, and my finding as to the duration and frequencyof the offending against Victim Three, I accept the submission that the starting pointof four and a half years was too high. I see this offending as falling betweenO (CA643/2009) v R and R v Thorpe and slightly below R v De Kwant. I assess theappropriate starting point for the offending against Victim Three as three years and sixmonths' imprisonment.[41] The Judge added an 18-month uplift for the offending against the other fourvictims. This was not challenged on appeal. I agree that level of uplift wasappropriate. That leads to a global starting point of five years' imprisonment.[42] The Judge considered the totality principle and adjusted the sentence down by18 months. That was a generous deduction. Having regard to the lesser starting pointI have adopted, I consider the appropriate totality reduction to be one of 12 months,and an adjusted starting point of four years' imprisonment.[43] Mr Zintl has argued that Mr Disciple should have received further discountsfor co-operation with authorities, previous good character, and his youth. I will dealwith each matter in that order.Credit for co-operation[44] Mr Zintl referred to a range of cases in which significant discounts wereprovided for co-operation with the authorities.21 These authorities suggest a discounthigher than five per cent might be available for co-operation with the police. The keydeterminative factor in making an assessment as to whether a discount is appropriatefor such co-operation is generally the value of the assistance.22[45] Mr Disciple's confessions led to charges being laid for his offending againstthree victims who had not made complaints. This was undoubtedly valuable to thePolice. However, the context of the assistance given is also important. As observedby the Judge, Mr Disciple confessed to the offending relating to the three victims after21 Lowenstein v Police, above n 12; R v Strickland, above n 12; R v Sanday, above n 12; D v Police,above n 12; S v R, above n 12; and R v Lynch, above n 12.22 Williams v R, above n 15; and R v Ringrose, above n 12.it was clear that he was going to be charged in relation to the other two. This can becontrasted with an offender who is not under investigation but, of their own volitionattends on the police to make a confession. That level of co-operation has beendescribed as "totally self referred".23[46] Further, Mr Disciple's confession arose around 15 years after the offending,not at the time of the offending. That delay diminishes the credit that might otherwisebe available.[47] Finally, there is an overlap between assistance, remorse and guilty pleadiscounts. Mr Disciple received a discrete discount for remorse and also a full guiltyplea discount.[48] I am however conscious that the Judge allowed a second defendant, sentencedon the same day in relation to sexual offending within Gloriavale, a deduction offive percent for co-operation that did not disclose offending that would otherwise nothave come to light.24 In my view Mr Disciple's co-operation was deserving of agreater credit than that given to that offender.[49] I consider a five per cent deduction to be on the light side. I consider a ten percent discount is appropriate to reflect Mr Disciple's co-operation with and assistanceto authorities.Previous good character[50] The Judge refused to allow a deduction for previous good character becausethe offending "occurred over a prolonged six-year period".25 The Judge found thepositive contribution Mr Disciple had made in his community was offset against theharm he had caused.[51] In considering the extent to which the prolonged nature of the offendingimpacts on the credit for previous good character, the Court must first quantify the23 As was the case in R v Sanday, above n 12, at [15], where a 33 per cent discount was given.24 R v Hope [2022] NZDC 11639.25 R v Disciple, above n 5, at [68].period of offending. The charging documents record the dates of the offending. [].I do not agree that reflects offending over a prolonged six-year period. There washowever regular offending over a period of about 18 months following a discreteoffence several years earlier.[52] In similar circumstances a discount for previous good character has beenprovided.26 Conversely, there is clear case law that prolonged offending "necessarilycalls good character into question".27 In Britow v R the Court of Appeal consideredoffending against a child over a three-year period was a factor against a credit forprevious good character. The Court explained:28 it is much more difficult to put offending behaviour that continues over along period of time down to a momentary (and out of character) lapse injudgement by an otherwise upstanding member of the community.[53] There can be little doubt that prolonged offending necessarily calls goodcharacter into question. Very prolonged offending will likely negate any credit forprevious good character.[54] As was observed by the Court of Appeal in R v Hockley, the appropriate levelof discount for previous good character is very much a matter of impression.29 MallonJ in Solicitor-General v Rawat affirmed a statement from the Court of Appeal thatdefendants who have shown themselves to be "generally law-abiding citizens of goodcharacter are usually entitled to invoke their creditable record in mitigation when theycome before the Courts, even for quite serious offences".30 This recognises the greaterprospects for rehabilitation of an offender who is otherwise a positive contributor totheir community and is unlikely to re-offend.31[55] Mr Disciple has no previous convictions. Several character references referredto his contribution to the Gloriavale Community and spoke to his otherwise law-26 R v Carruthers, above n 13; R v Webb, above n 13, at [71]; and Solicitor-General v Rawat,above n 13.27 Taylor v R [2022] NZCA 70 at [21], citing Britow v R, above n 10, at [10].28 Britow v R, above n 10, at [10].29 R v Hockley, above n 13, at [32].30 Solicitor-General v Rawat, above n 13, at [45] citing R v Howe [1982] 1 NZLR 618 (CA) at 629.31 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at[SA9.23]. See also R v Findlay [2007] NZCA 553 at [91]; and Davidson v R [2011] NZCA 356at [16].abiding life. Mr Zintl stressed that Mr Disciple was a young man, [], when he firstoffended, but had ceased offending at the [] and had not re-offended over the [].[56] I accept this offending occurred at a time Mr Disciple lacked maturity and thathe has, over the past [], shown himself to law-abiding and a contributing memberof his community. He has demonstrated his risk of re-offending is low. Although, thisoffending was relatively prolonged, my overall impression is that an allowance forprevious good character was appropriate. I am mindful that the Judge allowed a creditof 10 per cent in recognition of Mr Disciple's rehabilitative measures. I allow a furtherfive per cent for previous good character.Youth[57] It is well established that youth can be a substantial mitigating factor. Youngpersons are more prone to make poor and impulsive decisions. Youth might alsoreflect a greater capacity for rehabilitation. However, as observed by Downs J in acase of historical sexual offending:32[42] Contrary to popular misconception, a discount for youth is notautomatic. It requires the presence of a feature or features referable to thedefendant's age at the time of the offence. For example, the offending mayconstitute a youthful indiscretion or impulsive act. Or, a young person maybe influenced by older offenders to have committed the offence. Sometimesthe discount reflects greater rehabilitative prospects, or the potentially harshereffect of prison on an adolescent.(footnotes omitted)[58] Mr Disciple first offended when he was []. He re-offended when aged [].This offending was not youthful indiscretion, it was not impulsive. Mr Discipleoffended against four of the victims at an age that would not generally fall under theumbrella of "youth". He is also now aged in his 40s. There is no basis of a discountreflecting his ability to rehabilitate as a young person. Furthermore, the Judge alreadyallowed him a discount based on his willingness to rehabilitate.[59] The Judge did not err in refusing to allow a deduction for youth.32 R v LB [2020] NZHC 94.Adjusted sentence[60] No issue is taken with the 25 per cent guilty plea credit, the 10 per cent creditfor rehabilitation and difficulties for family, nor the five per cent discount for remorse.With an increased deduction of 10 per cent for co-operation and of five percent forprevious good character, the total allowance is one of 55 per cent. From a startingpoint of four years imprisonment, the end sentence, rounded down, is one of 21 monthsimprisonment. That requires the Court to consider whether the sentence should becommuted to one of home detention.Should the sentence be commuted to home detention?[61] In support of a sentence of home detention, Mr Zintl referred to Mr Disciplebeing assessed as a low risk of re-offending, his level of remorse, the consequencesfor his family of a sentence of imprisonment, his employment opportunities (dairyfarmer) and the fact he had, as at the date of the hearing, spent about two and a halfmonths in custody. Realistically, however, Mr Zintl acknowledged that it would be a"big call" for the Court to commute a sentence of imprisonment to home detention foran offender convicted of sexually offending against five victims.[62] I accept there is no presumption against a sentence of home detention foroffending of this nature, however, I am of the clear view that this offending is simplytoo serious to warrant a sentence of home detention. The short point is that theoffending involved multiple victims and repeated offending over a relativelyprolonged period. Although I accept that, from a rehabilitative perspective, a sentenceof home detention might be seen as appropriate, that factor is outweighed by the needto impose a sentence that both denounces Mr Disciple's conduct and deters anyothers.Conclusion[63] The appeal against sentence is allowed. The sentence of two years and fivemonths' imprisonment is quashed and substituted by a sentence of 21 months'imprisonment.Suppression appealDistrict Court decision[64] Mr Disciple sought permanent name suppression on the grounds thatpublication would cause extreme hardship to himself, his family and others in theGloriavale community, and that undue hardship would be caused to the victimsbecause of the likelihood that they would be identified.[65] The Judge noted that Mr Zintl, for Mr Disciple, had essentially raised the samearguments for suppression that were raised in Discovery New Zealand Ltd v FB.33 TheJudge commented that Mander J's reasoning for granting name suppression in thatcase related to the risk of prejudicing the defendants' fair trial rights because of theirdistinctive names linking them to the Gloriavale community. The Judge distinguishedthat case, which considered interim name suppression, and a case where final namesuppression was sought post-conviction and sentencing. The Judge also noted that inthat case, the connections with Gloriavale were suppressed, whereas those connectionsare no longer suppressed, meaning those connections are no longer a factor pointingtowards extreme hardship.[66] The Judge considered that members of the Gloriavale community are unlikelyto have free access to social media to view social media comments from the public,which would limit the impact of outside ridicule or embarrassment on Mr Disciplewhen he is in the community. The Crown submitted, and the Judge agreed, that therewas a risk that if suppression was granted, it would cast suspicion on other malemembers and ex-members of the Gloriavale community, which would be unfair andnot in the interests of justice.[67] Regarding the likelihood that the victims would be identified if Mr Disciple'sname was not suppressed, the Judge accepted that the victims were all in some wayrelated to Mr Disciple. However, none of them shared his last name, and none of themhave a close relationship with him. Victims Two and Three made statements to the33 Discovery New Zealand Ltd v FB [2021] NZHC 2903.police expressing their views as to suppression and were not concerned about beingidentified if Mr Disciple's name is published.[68] The Judge distinguished this case from H (CA300/2012) v R, where pre-trialsuppression was in issue.34 In H (CA300/2012) v R, the town where the defendant andvictims resided had less than 100 members, whereas the Gloriavale community hasapproximately 600 members, meaning there are considerable avenues of speculationabout potential victims here. The Judge also considered that speculation as to who thevictims are was not as significant of a concern given the number of victims in theGloriavale community that have been uncovered by recent police investigations.[69] The Judge ordered suppression of the familial connection between Mr Discipleand the victims to mitigate the risk that the victims be identified. The application forpermanent name suppression was refused.[70] Following sentencing and the refusal to grant final suppression of name, theCrown applied for orders suppressing all references within the summary of facts thatrelated to Victims One and Three. That application followed concern expressed bythose victims that the publication of details including the sexual acts, and specificallytheir ages at particular dates, could identify them within the Gloriavale community.They explained to the Police that while some people within the community know aboutthe offending, many do not. They also explained that others would be able to relaythe information to those inside the community and use that to identify them as victims.Information in the summary of facts relating to Victims One and Three was suppressedby Judge Garland on 9 August 2022. No issue is taken with that suppression order onappeal.Principles on appeal[71] The starting point when considering the suppression of a defendant's name orthe particulars of criminal proceedings is the presumption of open justice.35 Thebusiness of the courts should be conducted publicly and any departure from this34 H (CA300/2012) v R [2012] NZCA 514.35 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".36 The grounds for the making of an order suppressing the identity of adefendant are set out in s 200 of the Criminal Procedure Act 2011 (the Act), whichrelevantly provides: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(d) create a real risk of prejudice to a fair trial; or(e) endanger the safety of any person; or(f) lead to the identification of another person whose name issuppressed by order or by law; or[72] The approach to be taken to suppression involves a two-step inquiry.37 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.38 It is at this stage that the presumptionof open justice must be considered. In order to displace that presumption the balancemust clearly favour suppression.3936 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].37 D (CA443/2015) v Police, above n 35, at [10].38 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 35, at [40]–[41]; and D (CA443/2015) v Police, above n 35.39 D (CA443/2015) v Police, above n 35, at [12].[73] An appeal court is required to undertake its own assessment and form its ownopinion as to whether the statutory threshold has been met.40 That evaluation willinvolve 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.41 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.42SubmissionsAppellant's submissions[74] Mr Zintl submitted the Judge erred in finding that publication of Mr Disciple'sname was not likely to cause extreme hardship to Mr Disciple and his family andhinder his rehabilitative prospects, cause undue hardship to the victims, and lead tothe identification of the victims, whose identity is suppressed by law. There is verysignificant overlap between the submissions Mr Zintl has advanced on behalf ofMr Disciple and the submissions he advanced on behalf of another member of theGloriavale Community convicted of sexually assaulting a child within thecommunity.43 Both suppression applications were dealt with on the same day byJudge Garland.[75] Mr Zintl submitted the Judge partly based his decision to not grant suppressionon the premise that members of the Gloriavale community did not have free access tothe internet and therefore would not see media articles and social media commentsabout Mr Disciple. There was no evidence before the Court supporting this statement.Mr Zintl said this conclusion also overlooked the effect on former family membersand friends of Mr Disciple who had left the community. This could easily be reported40 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].41 Austin, Nichols & Co Inc v Stichting Lodestar, above n 40.42 Wilson v R [2018] NZHC 1778 at [14], citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR1 at [31]–[33].43 R v Hope, above n 24.back to Mr Disciple and his family. Mr Zintl also submitted the Judge was incorrectto conclude that name suppression would cast suspicion on other male members of theGloriavale community as there was no evidence to support this conclusion.[76] He submitted that publication of Mr Disciple's name, even with thesuppression of the familial relationship between Mr Disciple and the victims, wouldlead to the identification of the victims. He relied on the case of H (CA300/2012) v R,which he also relied on in the District Court.44 He said that the victims were part ofMr Disciple's family, and he would regularly interact and be seen with them.[77] 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.Respondent's submissions[78] 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.[79] Ms Boshier cited the decision of Mander J in Discovery New Zealand v FBwhere Mr Disciple was granted name suppression pending trial, primarily to protecthis fair trial rights.45 She noted that Mander J explicitly did not make a finding as toextreme hardship for Mr Disciple in that case, and commented:46The approach taken to the issue to name suppression in respect of the fourmembers of Gloriavale currently facing active charges in respect of charges44 H (CA300/2012) v R, above n 34.45 Discovery New Zealand v FB, above n 33.46 At [70].of 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.[80] Ms Boshier submitted that the threshold of extreme hardship was not metbecause Mr Disciple failed to identify any particular hardship to himself or his familybeyond that ordinarily expected. She accepted that social media does increase the riskof hardship, and also that it is fair to say that the Gloriavale community attracts a highdegree of media interest. However, Ms Boshier submitted that this could put fair trialrights at risk, but this is a very different circumstance from permanent namesuppression for extreme hardship.[81] As to the risk of identifying the victims through the publication ofMr Disciple's name, Ms Boshier submitted this can only concern Victims Two, Fourand Five, in the light of the suppression orders made in relation to Victims One andThree. Ms Boshier highlighted that none of the victims asked that Mr Disciple's namebe suppressed to prevent them from being identified. Ms Boshier submitted thatbecause Victims Two, Four and Five no longer live in the community and do not haveclose familial links to, or share a surname with the appellant, there is no risk of victimidentification if Mr Disciple's name is published.[82] 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 persons and Mr Disciple should beidentified so persons who might associate with him safeguard their families. Shefurther submitted that publication may also encourage other victims to come forward.Media submissions[83] Mr Stewart—for Radio New Zealand Ltd, Stuff Ltd and TelevisionNew Zealand Ltd—supported and adopted the Crown submissions. He emphasisedthat on an assessment of the evidence and submissions in relation to hardship,cumulatively and in context, this case does not reach the very high threshold forextreme hardship.[84] 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 Disciple 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 Disciple as an individual. In this sense, Mr Stewart distinguishes the facts inthis case from those in X (CA226/2020) v R and DV (CA451/2021) v R, 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.47[85] Mr Stewart submitted the risk of identifying the victim has been appropriatelyaddressed by the suppressions as to familial link and the further suppression ordersmade post-sentencing.Analysis[86] Recognising almost identical issues arose in the Hope case, the followinganalysis and reasoning closely follows my decision in that case.48Application to adduce fresh evidence[87] 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 made47 X (CA226/2020) v R [2020] NZCA 387 at [40]; and DV (CA451/2021) v R [2021] NZCA 700.48 Hope v R [2022] NZHC 2707.by the Judge as to the likelihood of the Gloriavale Community having access to theinternet and social media.Suppression[88] Mr Disciple has sought permanent name suppression on the basis thatpublication would cause him and his family extreme hardship, and that publicationwould cause undue hardship to the victims of his offending by identifying them.[89] The threshold for "extreme hardship" is very high, as detailed by Court ofAppeal in Robertson v Police:49 the phrase "extreme hardship" connotes a very high level of hardship.The word "hardship" on its own means "severe suffering or privation". Theaddition of the qualifier "undue" in s 200(2)(c) indicates that something morethan hardship simple is required, while the word "extreme" in s 200(2)(d)indicates something more again.[90] The Court said:50An assessment of whether the contended hardship is "extreme" cannot takeplace in a vacuum. It is self-evidently contextual and in our view must entaila relative comparison between the contended hardship and the consequencesnormally associated with a defendant's name being published. It must besomething beyond the ordinary associated consequences.[91] A defendant's cultural and religious beliefs, the characteristics of theircommunity, and their place within it, are all considerations that form part of theassessment of whether that person will suffer extreme hardship from publication.51[92] Mr Zintl submitted Mr Disciple would experience extreme hardship if his namewas published because of the uniqueness of his name, the religious group he belongsto, the likelihood of unbalanced and prejudicial media articles and social mediacomments, the fact that he has a wife and 10 children, and the fact that his futurerehabilitation and reintegration would be hampered by publication.49 Robertson v Police, above n 35, at [48] (footnotes omitted).50 At [49].51 Beshara v R [2018] NZCA 66 at [7].[93] The Court of Appeal in X (CA226/2020) v R made the following statementsabout social media and "cancel culture":52[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 under s200(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.(footnotes omitted)[94] In his dissenting comments in DV (CA451/2021) v R, Downs J warned againstX (CA226/2020) v R being applied broadly.53 He considered that would present a riskof X (CA226/2020) v R becoming a "Trojan Horse in relation to name suppression,thereby allowing suppression when that would not otherwise be justified"54. Downs Jemphasised that, although people publish outrageous things on social media, peopleare well aware that social media is a platform for such comments. He warned againstthe vocal minority on social media being allowed to overwhelm the legitimate publicinterest in the publication of the defendant's name.55[95] I do not consider the facts of this case give rise to the concerns voiced by theCourt of Appeal in X (CA226/2020) v R. That case concerned a young man who hadassaulted others at a camp. He was originally charged with indecent assault, but the52 X (CA226/2020) v R, above n 47.53 DV (CA451/2021) v R, above n 47, at [77]–[78].54 At [78].55 At [78].charge was subsequently lowered. He was granted a discharge without conviction ontwo common assault charges. The Court of Appeal was concerned about his youthand the effect social media would have on him in light of his age and unique name.These factors meant the offending would follow him for the rest of his life, andtherefore likely impact his ability to find employment. The Court of Appeal was alsoconcerned about "cancel culture" in the sense that X had received a discharge withoutconviction, and it was therefore possible that people on social media would attempt tobring him to justice in the view that the courts had not. The Court of Appeal pointedto many specific social media comments that were inaccurate and prejudicial about X.[96] Mr Disciple is now aged 41 years, so the concerns about the impacts of socialmedia on a young person are not relevant. He intends to return to the Gloriavalecommunity, where he is supported, and so the long-term impacts of social media onhim are also lesser. Mr Zintl has provided evidence of comments on social mediaabout Gloriavale related to the sexual offending that has been written about in themedia. These comments call Gloriavale a "cult" and demand that it is shut down.Putting to one side the issue of whether these would reach him and his family, even ifthey did, they show vitriol towards the Gloriavale community generally, and nottowards Mr Disciple personally. Furthermore, as detailed by Mr Disciple's wife'scomments to the s 27 report writer, many in the Gloriavale community already knowabout Mr Disciple's offending. This is because it was dealt with internally in thecommunity some time ago, and also because Mr Disciple lived separately to his familywhile he has been on bail. Mrs Disciple said publication will add "stress" to theGloriavale community. I accept it is almost certain to do so. However, this falls wellshort of the standard of extreme hardship, especially given this Court has not beenprovided with particular details about how publication would specifically affectMr Disciple and his family.[97] I do not consider there is anything suggesting inaccurate or unfairly prejudicialcomments specific to Mr Disciple and his family (rather than the community ingeneral) will be published. Even with the heightened interest this case may receive,the consequences of social media comments would not likely go beyond that ordinarilyexpected in a case where a defendant's name is published in relation to criminaloffending. As submitted by Mr Stewart, the Court must exercise care to distinguishresponsible media from the social media "keyboard warriors".[98] The other grounds raised as amounting to extreme hardship have not beenparticularised in any detail. I accept that Mr Disciple has a unique name, and thatmight add to the hardship he suffers as a consequence of publication. There have notbeen specific reasons advanced, as there were in X (CA226/2020) v R, as to why theuniqueness of his name contributes to publication causing extreme hardship. The harmto Mr Disciple's wife and family, as traversed in the s 27 report, is caused byMr Disciple's offending leading to a sentence of imprisonment, not due to publication.There has been no evidence or substantiated submission that publication would affectMr Disciple's ability to rehabilitate or reintegrate into the community. In fact, itappears the Gloriavale community is very supportive of Mr Disciple and wouldwelcome him back into the community.[99] Mr Disciple was one of the defendants before Mander J in Discovery NewZealand Ltd v FB.56 Mr Zintl was also his counsel in that case, and advanced verysimilar arguments to the ones he makes in this appeal. In that case, Mander Jconsidered the ground of extreme hardship was not made out because there was noevidence of the particular hardship the defendants would face outside of the effect ofpublication on their fair trial rights.57 As Mr Disciple has been convicted andsentenced, his fair trial rights are no longer a concern. It is not suggested that thepublication of Mr Disciple's name will prejudice the fair trial rights of other membersof Gloriavale facing trial. No evidence has been provided, or persuasive submissionadvanced, of any particular extreme hardship to Mr Disciple or his family beyond thatwhich would normally stem from publication of a defendant's name.[100] It follows that I do not consider any of the grounds raised by Mr Zintl, eitherseparately or cumulatively, amount to extreme hardship.[101] Mr Disciple also raised the ground of undue hardship to the victims, throughtheir identification, as justifying the granting of permanent name suppression for56 Discovery New Zealand v FB, above n 33, at [27].57 At [27].Mr Disciple. The identification of complainants under s 200(2)(f) can justify thegranting of name suppression for a defendant.[102] As he did in Discovery New Zealand v FB, Mr Zintl relied heavily on the caseof H (CA300/2012) v R, which was also considered by Judge Garland.58 That caseconcerned a man charged with sexually abusing four of his step-grandchildren and hisstepdaughter. He lived in a small, rural town of less than 100 people. Thecomplainants were known to visit him and be part of the family, although they did notshare the same surname. The Court of Appeal suppressed the name of the offender, asit held that the risk of the identification of the victims could not be mitigated bysuppressing the nature of the offending, because that would just lead to speculationand inevitably identification in such a small town.[103] In Discovery New Zealand v FB, it was not necessary for Mander J to fullyconsider the risk of identifying the victims as justification for granting namesuppression. The Court did not have enough information at that point to make aconsidered decision. Mander J did say, however:[39] The Gloriavale community is relatively small and obviously tight-knit. Both sides have sought to use the approximate figure of 300 childrenwho reside within the community to support their respective views as towhether identification of the defendants would lead to the identification of thecomplainants. I accept that the risk of exposing the identity of adultcomplainants who have distanced themselves from the community may beless of a concern, but even then I do not consider at this time that it can becompletely put to one side. Presently, there appears to be a genuine risk ofidentification, at least as it related to those complainants who still reside atGloriavale and who are likely to be known to be associated with a nameddefendant or have a familial relationship with that person.[40] To that extent the circumstances are not dissimilar to H v R.Gloriavale can arguably be viewed as a larger community in which everyonelives and works together, unlike a small town where family members of adefendant can easily be singled out and identified as the likely complainants.Equally, however, in a closed community most members are likely to be privyto the individual circumstances of each defendant so as to potentially identifyyoung relatives or children within a particular defendant's orbit.(footnote omitted)58 H (CA300/2012) v R, above n 34.[104] The familial connections and the summary of facts for the victims who stillreside in Gloriavale are the subject of suppression orders. Victims One and Three didnot request Mr Disciple's name be suppressed, but rather the summary of facts due toa concern they could be identified based on their age at the time of the offending.[105] This threshold ground must therefore only be considered for those who liveoutside of Gloriavale. As the Judge observed, none of the victims requestedMr Disciple have name suppression.59 Mr Disciple does not have a close relationshipwith the victims, which distinguishes this case from H (CA300/2012) v R, where thevictims were heavily linked to the offender in their community. He does not share alast name with them. They are now adults. In those circumstances, it is unlikely thatthey will be identified through Mr Disciple's name being published, especiallyconsidering the suppression orders already in place.[106] Mr Disciple has failed to establish that the threshold for granting namesuppression under s 200(2) of the Act has been established. It is therefore unnecessaryto consider the discretion to grant name suppression, but I do note the importance ofthe principle of open justice, particularly in relation to sexual offending againstchildren and young people.Conclusion[107] The appeal against the refusal to grant permanent name suppression isdismissed.[108] I order that the interim suppression order is to remain in place until 5 pm on1 November 2022 to allow time for consideration of a further appeal....................................................Eaton J59 R v Disciple, above n 5, at [93].Solicitors:Crown Solicitor's Office, ChristchurchCopy to:Marcus Zintl, Barrister, BlenheimRobert Stewart for Stuff Limited