X v NEW ZEALAND POLICE [2017] NZHC 3298

X v NEW ZEALAND POLICE [2017] NZHC 3298 [22 December 2017]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH,COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OFWHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF AJUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES.THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND IT MAY BEPUBLISHED IN THIS FORM.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000148[2017] NZHC 3298BETWEEN XAppellantAND NEW ZEALAND POLICERespondentHearing: 28 November 2017Appearances: S Bonnar QC and T Greenwood for the AppellantL J Fraser for the RespondentJudgment: 22 December 2017JUDGMENT OF HINTON JThis judgment was delivered by me on 22 December at 3.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:Stephen Bonnar Queens Counsel, AucklandDoug Cowan, Barristers & Solicitors, AucklandMeredith Connell, AucklandIntroduction[1] On 22 February 2017, Mr X pleaded guilty in the Auckland District Court toone charge of indecent assault under s 135 of the Crimes Act 1961.1 On 10 April 2017,Mr X applied for a discharge without conviction and permanent name suppression, butJudge Thomas refused both applications and Mr X was sentenced to 12 months'supervision and was ordered to pay the victim reparation of $7,000.2[2] Mr X appeals his conviction and the refusal to grant name suppression.Factual background[3] Mr X is 71 years old. He and his family are friends (and/or businesscolleagues) of the victim's family. The victim, aged 21, had started working forMr X's business.[4] At approximately 10.30pm on 18 March 2016, Mr X called the victim askingto meet her. The victim was at her mother's house at the time. She reluctantly agreedand he picked her up in his vehicle. A few minutes into the journey, Mr X put his handon the victim's leg. She removed it and told him not to touch her. Mr X thenimmediately grabbed the victim's breasts. The victim again removed his hand andtold him not to touch her. Mr X apologised to the victim and blamed his medicationfor his actions. They continued to drive for approximately ten minutes before turningaround. On the drive back in the direction they had come, Mr X asked to hold thevictim's hand, which she allowed him to do out of fear of what he might do if sherefused. She held his hand for approximately one minute before letting go. Mr Xdropped the victim back at her mother's house and thanked her for holding his hand.[5] Two days later Mr X called the victim, apologising again for his actions.[6] Mr X was charged with indecent assault on 3 June 2016.[7] On 22 February 2017, Mr X pleaded guilty.1 The maximum penalty is 7 years' imprisonment.2 Police v X [2017] NZDC 7551.[8] Mr X sought a discharge without conviction, and supporting affidavits weresworn by Mr X (on 20 March 2017) and by his wife (on 10 April 2017), who firstfound out about the offending the day before.[9] Mr X was sentenced on 10 April 2017. His application for a discharge withoutconviction and name suppression failed.[10] The notice of appeal was filed in May 2017.[11] Various medical reports were obtained on which Mr X seeks to rely.[12] A Dr Immelman wrote a psychiatric report dated 27 June 2017. In anaddendum to his report, dated 29 June 2017, Dr Immelman expressed concernregarding whether Mr X had been fit to plead guilty.[13] The appeal was initially set down to be heard on 3 July 2017. However, anadjournment was sought and obtained on the basis that Mr X may not have been fit toplead. A further notice of appeal was filed on 7 July 2017, out of time, setting out asa further ground of appeal that there was a miscarriage of justice on that basis.[14] A new fixture for the appeal was set down on 28 November 2017, to allowfurther psychiatric reports to be filed.[15] Two further psychiatric reports were commissioned. The first, by Dr Casey, isdated 25 September 2017. The second, by Dr Galpin, is dated 24 October 2017.[16] An additional report by Dr Immelman, dated 26 November 2017, was also filedwith the Court in response to the Crown submissions on appeal.[17] In two of these reports, Mr X is recorded as denying the offending.[18] The appellant seeks leave to adduce all four reports on appeal.[19] The victim swore an affidavit expressing her views on 6 November 2017. TheCrown seeks leave to adduce this evidence on appeal.[20] Prior to this hearing, the ground of appeal that Mr X was unfit to plead guiltywas abandoned, and only the appeals against the refusal to grant a discharge withoutconviction, and permanent name suppression, were pursued.[21] I was advised at the hearing that the reparation sum had not been paid.Victim impact statement[22] The victim recorded in her victim impact statement that she has suffered fromanxiety as a result of what happened and had to take time off work because of it. Shealso attended counselling paid for by ACC.[23] Both Mr X and the victim lived in a small community in the Auckland region.The victim moved to Auckland City the day after the offending, leaving her home andjob, because of how she felt after the incident. She has since found it difficult to goback to their community to visit, as it has caused her to become anxious. Thisdifficulty has made it hard for her to visit her friends and family, which means she nolonger has their support close at hand. She also refers to the financial cost involved inrelocating to Auckland City.[24] The victim says that she does not want Mr X to have name suppression becausethe community needs the opportunity to know of the charge, to protect othervulnerable people. She says that her life has not been the same since Mr X harmedher, and she is not the same person she used to be. She would like to see that he hasconsequences for his actions and would be disappointed if he were given a dischargewithout conviction and given permanent name suppression.Applications to adduce fresh evidence[25] Mr Bonnar, QC for Mr X, seeks the leave of the Court to adduce furtherevidence. As referred to earlier, the evidence is the psychiatric reports prepared by DrAndrew Immelman, Dr Jane Casey, and Dr Grant Galpin.[26] The Crown similarly seeks to adduce evidence on appeal, namely the affidavitfurther outlining the victim's views, filed with the Court on 10 November 2017.[27] Section 335 of the Criminal Procedure Act 2011 allows the Court to receivenew evidence in an appeal if it thinks it necessary or expedient in the interests ofjustice. Generally, "new" evidence will need to be credible, and it will need to befresh.3 Evidence that with reasonable diligence could have been called at trial will notqualify as fresh.4 However, the overriding criterion is what course will best serve theinterests of justice.5 If there is a risk of a miscarriage of justice were the evidence tobe excluded, the evidence should be admitted, notwithstanding that the evidence is notfresh.6New psychiatric reports[28] In Dr Immelman's first report dated 27 June 2017, he notes that Mr X wasdiagnosed with Parkinson's disease at age 49 (in 1994). He found Mr X meets thecriteria for a major neurocognitive disorder due to Parkinson's disease, and in additionwas suffering a major depressive episode. Mr X was identified as having a number ofcognitive difficulties including demonstrable deficits in memory, naming, attention,language, abstraction, delayed recall and frontal executive function. Frontal executivedysfunction deals with, inter alia, impulsivity and anticipating consequences. DrImmelman considered that this dysfunction was likely to have been present at the timeof Mr X's offending.[29] Dr Immelman also considered as at June 2017 that Mr X's emotional statemeans he is at significant risk of "completed suicide", should he be unsupervised, andwith access to the means to achieve it. Mr X told Dr Immelman that he contemplatedsuicide several times every day, and while Dr Immelman could not establish when thesuicidal thoughts began, he considered that it seemed to occur in relation to the chargeof indecent assault. Mr X told Dr Immelman that he would not act on his ongoingthoughts of ending his life by suicide, because he had not "sorted things out yet formy wife and family". Dr Immelman recorded that there was no history of deliberateself-harm, such as cutting. Dr Immelman wrote that despite Mr X's cognitive3 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA)at [22].4 R v Bain [2004] 1 NZLR 638 (CA) at [22].5 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA)at [22].6 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [120].impairment, he is acutely aware of, and very sensitive to, his being identified as aconsequence of the conviction and publication of his name. As I read his report,Dr Immelman says that this sensitivity places Mr X at a higher risk of distress andpossible completed suicide.[30] Dr Casey interviewed Mr X on 25 August 2017 in preparation for her 25September 2017 report. She is a consultant psychiatrist specialising in old agepsychiatry. Dr Casey reported that Mr X presented with Parkinson's diseasecomplicated by moderate cognitive impairment, depression and intermittentbehavioural symptoms. She considered he had frontal lobe impairment which "alongwith the temporal lobe or memory impairment, may impact on judgement anddecision-making, rendering it difficult to understand, retain, and manipulate relevantinformation and to foresee the consequences of decision-making".[31] The intermittent behavioural changes she referred to include REM sleepbehaviour disorder (where Mr X may act out his dreams and fall out of bed); andimpulse control disorder, specified as hypersexuality, and a tendency to gamble. Shenoted that "the symptoms of hypersexuality are a well-known impulse control disorderassociated with treatment for Parkinson's disease, with the majority of reportedpatients being on adjuvant dopamine agonists such as ropinirole, which is one of theforms of medication [Mr X] takes". She also said that Mr X continues to havesymptoms consistent with hypersexuality which impacts on his wife and they try tomanage it within their relationship.[32] Mr X told Dr Casey that he has considered suicide by way of drowning, cuttinghis wrists or even car fumes. He went on to say that "my wife keeps me going mychildren".[33] Dr Galpin interviewed Mr X and his wife on 18 October 2017. His report isdated 24 October 2017. Dr Galpin concluded, as it had been a potential issue, that MrX was fit to have pleaded guilty. He also provided an opinion on the effects of theconditions diagnosed by Dr Casey, namely:I note the combination of dementia disorder, frontal lobe dysfunction, poorjudgment and decision-making, and difficulty in terms of capacity to foreseeconsequences in decision-making in combination with drugs that promotehypersexuality and the committal of a sexual offence in the absence of otherhistory of pervasive sexual offending and related convictions. Whilst I am nota neurological specialist and have no experience with the treatment of patientswith Parkinson's disease who have developed hypersexuality, I note that theseare well described in medical literature. On the other hand, although hisspouse does not make a good case for the emergence of hypersexuality ingeneral terms post Parkinsonian medications, I consider that it is very likelythat his Dementia disorder would lower the threshold for impulse control andsuch behaviours [Mr X's] judgment, his insight into what the victim wasthinking may have been impaired due to his dementia and accordingly hisimpulse control to at least some extent diminished.[34] Dr Immelman wrote a second report dated 26 November 2017, filed inresponse to the Crown's submission that the reports were not credible because theydid not assess Mr X's state of mind at the time of his offending. He states:The Dementia is now of moderate severity; the usual pattern is a progressivedeterioration over years from mild through to moderate and then to severe.Although it is not possible to have absolute certainty that [Mr X] was sufferingfrom dementia in 2016 in the absence of a diagnosis at the time, there is apreponderance of evidence pointing in that direction, including the naturalhistory of Parkinson's Disease complicated by Dementia and that significantothers had already taken steps to compensate for his cognitive deficits. Inaddition to the Dementia, as Dr Casey has pointed out in her report symptomsof hypersexuality are a well-known impulse control disorder associated withtreatment for Parkinson's disease, with the majority of reported cases beingon adjuvant dopamine agonists such as Ropinirole, which [Mr X] was takingat the time of the offending.In 2016, albeit in the absence of frontal executive function testing at the time,it is highly likely that [Mr X] had impairments in this domain. The basis forthis retrospective extrapolation, is that the cause of impairment is aprogressive neurological disease; it has not arisen suddenly, as it would occurwith a traumatic brain injury.If it is accepted that at the time of the offending [Mr X] was impaired in hisjudgement and decision-making (as can be demonstrated now), it followslogically that this would have impacted on [Mr X's] state of mind at the timeof the offending.[35] Mr Bonnar submits that the evidence is credible and fresh: credible, as it wasprovided by qualified experts, and fresh because the extent of Mr X's impairment wasnot apparent to counsel in the District Court.[36] In the alternative, if the evidence is not considered fresh, Mr Bonnar submitsthat there is a strong risk of miscarriage of justice if the evidence is excluded. Hesubmits that the evidence concerns Mr X's mental condition now and at the time ofhis offending. The second is relevant to the gravity of offending, the argument beingthat it is more likely than not to have affected Mr X's judgment, decision-making andbehavioural control, and caused him to act in the way he did. Evidence as to Mr X'scondition now is relevant to consequences of a conviction and to name suppressionbecause it also concerns the risk of Mr X committing suicide following entry of theconviction and consequent publicity. Mr Bonnar therefore submits that the evidencehas an impact on the "safety" of the conviction such that its exclusion would risk amiscarriage of justice.[37] The Crown submits that the evidence is not fresh, because it could have, withany degree of diligence, been called at sentencing. The Crown points to the fact thatmedical evidence of Mr X's neurologist, Dr McAuley, was adduced at sentencing, toillustrate this point.[38] The Crown submits further that no "miscarriage of justice" concerns arise andthat the broad assessments made in the reports do not give rise to an issue ofmiscarriage of justice if the reports are not admitted. The reports were preparedfollowing a significant lapse in time after the offending. The offending occurred on18 March 2016. The earliest of the psychiatric reports is dated 27 June 2017. TheCrown submits that it follows that the report writers' ability to assess Mr X's mentalstate at the time of the offending is significantly compromised, which undermines thecredibility of the new evidence.[39] To a material extent the new evidence is fresh as, although viewedretrospectively, there was clear mental deterioration. This had been accommodatedand probably put down to Parkinson's disease. Dementia was not diagnosed until June2017. The new evidence is certainly credible. Further, I consider there is a risk of amiscarriage of justice if the reports are not admitted. For example, the expert evidenceis that Mr X presents as at June/September 2017 as a suicide risk, and these reportsare evidence of that risk. That is a highly material consideration to both appeals. Iconsider admission of the reports is necessary for determination of the appeals.[40] Turning to the medical reports, I accept the points raised by the Crown that thecomments made about hypersexuality appear to be somewhat general, and in respectof Mr X's exhibiting symptoms of hypersexuality, there is no evidence as to whenthese symptoms began, or whether he was exhibiting them at the time of the offending.His wife was the one who told Dr Casey on 25 August 2017 about the symptoms ofhypersexuality, but she did not mention them in her affidavit sworn 10 April 2017,though Mr X and his wife were obviously alive to that as a side effect of Parkinson'smedication. Nor do Dr Casey's or Dr Galpin's reports comment on Mr X's cognitionat the time of the offending, which reduces the relevance of their comments maderegarding hypersexuality. While Dr Immelman's view in his second report, dated26 November 2017, is that it is highly likely that Mr X suffered from dementia/frontallobe dysfunction at the time of his offending, Dr Immelman has not directly linkedthat to symptoms of hypersexuality.[41] I note also the evidence of Dr David McAuley, who has acted as Mr X'sneurologist since 2005. He wrote in a letter, which was before the District Court, thatin respect of the medication Mr X was taking: "a well-recognised, but fortunately veryuncommon side effect of both drugs (more particularly ropinirole) is to inducehypersexuality".[42] I accept the evidence that Mr X is currently suffering from moderately seriousdementia, and while I note the Crown's point that the psychiatrist reports werecompleted some time after the offending, I also accept Dr Immelman's view that it ishighly likely Mr X suffered from dementia at the time of the offending, which mayhave contributed to his offending. I accept it is possible, though the evidence isunclear, that the Parkinson's medication had a part to play in the offending. I alsoaccept Dr Galpin's view that in any event the dementia disorder would diminish MrX's impulse disorder and impair his insight.[43] Before leaving the medical reports, I note that Mr X, in his discussions withboth Dr Casey and Dr Galpin, asserted his innocence regarding the offending. Neitherdoctor suggested that he may have forgotten or been easily confused by suggestion.The interviews were only six months or so after he pleaded guilty.New affidavit from victim as to views on name suppression[44] In addition to the earlier victim impact statement, an affidavit outlining thevictim's views was filed with the Court on 10 November 2017, some of it repeatingher earlier statement.[45] The victim wrote that Mr X should not retain name suppression because itwould only be in the interests of self-preservation. She also made some commentsabout name suppression in general, a need for "public stigmatisation" and theimbalance of power of men over women.[46] She considers that Mr X has faced no consequences other than financial costsfor his offending, and that lifting name suppression will see Mr X face the realconsequences of his actions. She says, if it is not lifted, she will feel as though thepain she has endured, both through his offending and the court process, will be in vain.[47] Mr Fraser, for the Crown, accepts that the victim's affidavit is not fresh, as itcould have been obtained at sentencing, but submits that under s 200(6) of the CriminalProcedure Act 2011, the Court "must" take into account any views of the victim whendetermining whether to make an order for permanent name suppression, and theprosecutor must inform the Court of any views ascertained from the victim regardingan application for permanent name suppression under s 28 of the Victim's RightsAct 2002. Because that requirement is mandatory, the Crown is obliged to submit,and the Court can admit, the further views of the victim on name suppression.[48] I agree with the Crown that the victim's views should be put before the Court.However, I also accept the point made by Mr Bonnar that some of the generalstatements in the report are not properly part of a victim's view on whether a dischargewithout conviction and permanent name suppression should be granted.Appeal against refusal to grant a discharge without convictionDistrict Court decision[49] Judge Thomas identified the aggravating factors of the offending. He said,first, Mr X had abused the trust of the victim and the victim was vulnerable. Herecorded that she was an employee of Mr X and her family was close to his. Herparents were close business associates of his. Second, the impact on the victim wasnoted. Judge Thomas said that she had to leave behind her life and everything that shehad known, she "left behind her innocence trust her ability to believe in people her self-esteem her confidence. She was only 21".7[50] Judge Thomas then noted that this sort of offending constitutes a seriousviolence offence that warrants a warning under the three-strikes legislation.Judge Thomas considered the offending to be serious.[51] The Judge said that Mr X suffers from Parkinson's, and has been treated for itfor 23 years. He noted Mr X's neurologist's evidence (the only evidence then beforethe Court), that the medication can cause hypersexuality, resulting in inappropriatesexual behaviour such as spontaneous touching. However, Judge Thomas said thatthis was described in a general way, and there was no evidence that the medicationhad affected Mr X such that it had caused hypersexuality, nor any evidence of Mr X'sreaction history to the medication. Judge Thomas also considered that the offendingwas persistent after Mr X had been told no by the victim. Overall, he was prepared totake Mr X's condition into account, but only to a limited degree.[52] Significant weight was given to Mr X's age, as he was 71, and had neveroffended before. Judge Thomas considered he was a person of otherwise goodcharacter, had pleaded guilty at an early opportunity and had always acknowledgedwhat he had done – apologising on the night and since then. Judge Thomas consideredMr X was genuinely remorseful, and this reduced the gravity of the offending to whatJudge Thomas described as "moderate".[53] In terms of the consequences of a conviction, Judge Thomas did not considerthat Mr X had met the threshold required for an impediment to overseas travel to beconsidered a consequence of a conviction.8 Mr X had also submitted that because he7 Police v X [2017] NZDC 7551 at [3].8 The Court in Edwards v R [2015] NZCA 583 discussed the threshold that must be established onowns a local family business in the community, which is a small market whereeveryone knows everyone, he would lose some customers and suffer embarrassment.Judge Thomas expected that he would, and said that in the end that is, of course, whatParliament intended. People commit offences. They get convictions. They have tolive with the consequences of those convictions. They have to explain themselves topeople."9 Judge Thomas considered that these were ordinary consequences ofconviction, and also noted that Mr X had not, and could not, substantiate how muchhis business would suffer. Judge Thomas was prepared to accept that it would sufferto a certain degree, but concluded that these ordinary consequences would not be outof all proportion to the gravity of the offending, and given that is required for adischarge without conviction to be granted, he refused the application.Submissions[54] Mr X appeals the District Court Judge's decision to refuse to grant a dischargewithout conviction, on the basis that the District Court:(a) failed to properly assess the aggravating and mitigating factors of theoffending;(b) erred in accepting the impact the offending had on the victim asoutlined in her victim impact statement, without having regard towhether that impact was reasonable;(c) incorrectly determined the seriousness of the offending based on theconsequences suffered by the victim, rather than the actual conduct ofMr X; and(d) inappropriately utilised the three-strikes legislation as a basis to assessthe seriousness of the offence of indecent assault.Relevant lawthat ground in discharge without conviction applications.9 Police v X [2017] NZDC 7551 at [11].[55] Section 106 of the Sentencing Act 2002 provides that a court may discharge anoffender without conviction.[56] Section 107 provides that:The court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[57] Section 107 requires consideration of three factors:10(a) the gravity of the offence, having regard to both aggravating andmitigating factors, and the factors that apply to the offender;(b) the direct and indirect consequences of a conviction, for which theCourt must be satisfied that there is a real and appreciable risk of suchconsequences;11 and(c) whether those consequences are out of all proportion to the gravity ofthe offence.[58] If the s 107 test is met, the Court then has a discretion to discharge under s 106.[59] Section 107 requires judicial assessment of the threshold criteria, as opposedto the exercise of a discretion. Therefore, an appeal against the proportionality testunder s 107 is by way of rehearing with the appellate Court making its own assessmentof whether the criteria are established.12[60] This appeal concerns whether the s 107 criteria are established, and is thereforea general appeal.Analysis10 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8] and [27]. See also G S M v Police[2017] NZHC 896 at [28]-[32].11 Davis v Police [2016] NZHC 1216 at [17].12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11] and [66]. See Austin, Nichols & Co Incv Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 for the approach to general appeals.[61] Considering the "discharge without conviction" application afresh, I first turnto assess the gravity of the offending. Mr Bonnar submits that the gravity of theoffending viewed overall is low, whereas the Crown submits that Judge Thomascorrectly identified the gravity of the offending as serious, reducing to moderate.Gravity of the offending[62] Mr Bonnar submits that Judge Thomas placed undue weight on theconsequences to the victim, this approach being illustrated by Judge Thomas' openingreference to the fact that Mr X had "shattered the [victim's] life" and thereafter. MrBonnar submits that it is difficult to objectively correlate the levels of anxietydescribed by the victim to the offending, and that the Court was obliged to objectivelyassess the conduct of Mr X, when it appears Judge Thomas simply adopted thevictim's subjective assessment of that conduct.[63] Mr Bonnar submits that Judge Thomas overstated the seriousness of theoffending by classifying it as serious. He submits that Mr X's conduct was at thebottom of the range of conduct which can constitute indecent assault. Mr Bonnar saysthat Mr X's actions in resting his hand on the victim's knee and touching her breastover her clothing were non-invasive, fleeting and in close succession. He also saysthat contrary to Judge Thomas' view, Mr X's offending was not persistent. The secondincident occurred immediately after the first incident, and after that Mr X did come tohis senses almost immediately and stopped, save for asking (and succeeding) inholding the victim's hand.[64] Mr Bonnar refers to four cases where the offending was considered to be lowlevel, and submits that this offending is less serious than in those cases. In Stephensonv Police, the defendant grabbed the victim's buttocks with one hand over the top ofthe victim's clothing. Mr Bonnar says that the Court noted the touching was relativelyminor and on appeal considered that the offending was at the lower end of the scale.13In Marshall v Police, Mr Marshall placed his hand underneath the victim's underwearon her skin and rubbed her left buttock. Mr Bonnar says the Court noted that this13 Stephenson v Police [2015] NZHC 3101 at [20] and [22].action was at the low end of the scale of offending of this nature.14 In Edwards v R,Mr Edwards, after having his expression of sexual attraction rebuffed, lay down besidethe complainant and placed his hand on her breast saying he wanted to have sex withher. According to Mr Bonnar, the Court accepted that was low-level offending.15 InB v NZ Police, Mr B had touched each of the three victims' penises over the top oftheir swimwear and clothing. Mr Bonnar submits that the offending was initiallyconsidered to be moderately serious, but was assessed as low after mitigating factorspersonal to the defendant were taken into account.16[65] Mr Bonnar also submits that Judge Thomas erred by saying that Mr X createda pretext to be with the victim, and finding that the victim was vulnerable. In respectof the latter, Mr Bonnar submits that Judge Thomas failed to consider the victim's age,maturity, and her free choice in going to see Mr X and holding his hand when asked.He submits further that the victim impact statement erroneously referred to Mr X asthe victim's employer, when that was not the case.[66] Mr Bonnar also refers to mitigating factors personal to Mr X, and submits thatJudge Thomas failed to give sufficient weight to the probability that Mr X wassuffering from hypersexuality from his medication. (Dementia was not thenevidenced.) Mr Bonnar submits that Judge Thomas' decision that the evidence hadnot established that Mr X was unable to make conscious decisions about what he wasdoing was not the test he was required to consider, rather his Honour was to assess theoverall culpability of Mr X.[67] I agree with Mr Bonnar that the Court must come to its own view of the gravityof the offending, taking into account aggravating and mitigating features of both theoffending and those personal to the offender. In that sense, the victim's subjectiveperspective of the seriousness of the offending is important, but it is one factoramongst others. Having reviewed Judge Thomas' decision, I agree that Judge Thomasoverstated the seriousness of the offending by relying too heavily on the subjectiveviews of the victim. The victim's experiences and views are not to be read down, but14 Marshall v Police [2014] NZHC 2681 at [18].15 Edwards v R [2015] NZCA 583 at [11].16 B v Police [2016] NZHC 1118 at [27].are to be taken into account alongside the other features of the offending and thefactors personal to the offender.[68] The seriousness of the actual offending itself must be considered. In relationto the three cases Mr Bonnar cites, I note that in Stephenson, which involved thedefendant grabbing the victim's buttocks after he had been following her, the offendingwas said to be moderate, taking into account the premeditation.17 While the actualtouching was relatively minor, Brewer J did note that indecent assault is a seriousoffence. After assessing all factors, he concluded that the offending was at the lowerend of the scale of indecent assault.18[69] Similarly, in Edwards, the appellant had placed his hand on the victim's breast.The Court of Appeal held that it was low-level offending of its kind, but nonethelesswas moderately serious. The Court noted that in relation to indecent assault:19At one extreme it encompasses assaults that are tantamount to sexualviolation. At the other, it protects personal autonomy in sexual matters,policing an important social boundary by proscribing non-consensual sexualtouching. So courts always take the offence seriously. But it does not fall intoa separate category for discharge purposes. A fleeting touch may qualify asan assault in law and in context it may be only just indecent. Each caserequires assessment on its own facts.[70] The offending here included grabbing both breasts, not touching one, and thevictim only allowed Mr X to hold her hand because she was concerned about refusing.Taking into account the facts and the cases Mr Bonnar refers to, the offending in thiscase was somewhere in the moderate to low range, but noting that indecent assault isa serious offence.[71] The aggravating features of the offending in this case include the position oftrust Mr X had with the victim. During the course of the hearing the Crown reassertedthat the victim was an employee of Mr X, and Mr Bonnar did not contradict that. MrX was therefore in a position of trust. He was also in such a position because he hada close relationship to the victim's family, and was part of the victim's localcommunity. I consider that Mr X abused his position of trust.17 Stephenson v Police [2015] NZHC 3101 at [20].18 At [23].19 Edwards v R [2015] NZCA 583 at [9].[72] I also consider that the victim was vulnerable insofar as she was in a movingvehicle during the offending, which was driven by Mr X. (I have already noted shefelt she had to hold Mr X's hand after he had touched her because she was scared ofwhat he might otherwise do.)[73] Some care needs to be taken with respect to these two aggravating features, asthey are likely to already be a material contributor to the very strong views expressedby the victim.[74] I disagree with Judge Thomas that the offending was premeditated. The actsconstituting the offending occurred over a short period of time and the touching itselfwas brief and relatively minor.[75] After taking account of the relevant aggravating factors of the offending in thismatter, and the comparable cases above, I consider the offending was moderatelyserious.[76] I now turn to mitigating factors.[77] In respect of Mr X's mental health problems, I consider the various medicalreports to be of limited assistance as to whether Mr X was suffering fromhypersexuality at the time of his offending, and I do not consider it appropriate to makeany finding that he was, although clearly it was possible.[78] But, the evidence is clear that Mr X suffers from Parkinson's diseaseaggravated by moderately serious dementia, and that he suffers from frontal executivedysfunction specifically, which affects the ability of the brain to filter behaviour. Iaccept Dr Immelman's evidence that it is highly likely that he suffered from dementia,including frontal executive dysfunction, at the time of the offending, and I accept hisand Dr Galpin's evidence that Mr X's dementia issues likely had a role in hisoffending. I therefore place materially greater weight on Mr X's medical conditionthan Judge Thomas was in a position to do, as he had only the one medical report.There was no dementia diagnosis at that stage.[79] However, contrary to Judge Thomas's view that Mr X remained remorsefulafter apologising to the victim, I do not consider that Mr X has shown continuingremorse to the extent that any weight should be placed on it. He did apologiseimmediately and again a few days later. But the new psychiatric reports show that MrX maintains that he is innocent. Dr Casey wrote that Mr X said that he had been "setup" and that he had been advised to plead guilty so as not to go through with a trial.[80] I consider Mr X's surprising non-payment of the reparation sum of $7,000 alsoindicative of a lack of true remorse. His counsel accepts that the penalties imposedwill stand if the convictions are lifted, so Mr X is not expecting the money order to goaway.[81] Judge Thomas also considered Mr X's "early" guilty plea should be givenweight as a mitigating factor. The Crown says that Mr X's first appearance was on 3June 2016, but he only pleaded guilty on the morning of his trial before Judge Collinson 22 February 2017. On that basis, only limited weight should be placed on the factthat Mr X pleaded guilty.[82] Judge Thomas also considered Mr X's "otherwise good character" was amitigating factor. Judge Thomas did not take into account Mr X's previous dishonestyconvictions for use of a document for pecuniary advantage. Those convictions dateback to 1995, and while Mr X has a completely clean record from then until the presentoffending, those convictions are still relevant in this respect. It is also completelydifferent to the much earlier offending. There is also evidence that the offending hereis out of character. Overall I am prepared to agree with Judge Thomas that goodcharacter is a mitigating factor in these circumstances.[83] Overall, taking into account the factors addressed above, I consider that thegravity of the offending was reduced from moderate to low, particularly because ofMr X's medical condition, but bearing in mind that the charge itself is serious. I aminfluenced somewhat by the Churchward v R20 thinking in reverse, whereby in asimilar way that youth is a mitigating factor, in part on the basis that brain development20 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.is not complete, the proven deterioration of brain function should be treated as amitigating factor that reduces culpability.Consequences of a conviction[84] In relation to the consequences of a conviction, the defence submitted at theDistrict Court that because of Mr X's Parkinson's disease, he has limited time withany mobility and so he and his wife intended to cruise to numerous different countriesover the next few years. One country he intended to visit is Canada. In their writtensubmissions on the appeal, the defence said that Judge Thomas was wrong to rejecttravel difficulties as a consequence Mr X would likely face. However, in oralargument on appeal, Mr Bonnar immediately offered that this may not be a strongpoint. I do not consider it is for a number of reasons. First, Mr X has convictionsalready, which are admittedly old, but may or may not be surmountable. Second, therewas evidence in the District Court that short-term travel to Canada might still bepossible. In any event, whereas effect on travel with work and income consequenceswould be more relevant, it is unappealing for someone to seek a discharge on anoffence of this nature on the basis of a wish to take a cruise to Canada, even with aserious Parkinson's condition.[85] Overall, I place no weight on travel consequences.[86] Mr Bonnar also points to the effect on the family-run businesses, and theembarrassment Mr X's family would suffer.[87] I agree there is a risk of harm to Mr X's family businesses (although it seemshis own involvement in them is much reduced), and there would be embarrassment toMr X and his family (although I would not categorise it as "extreme embarrassment").[88] Most significantly, Mr Bonnar points to serious potential damage to Mr X'smental health and a significant risk of self-harm as the consequence of a conviction.In respect of the risk of self-harm and suicide, I accept that Mr X has providedevidence of an appreciable risk that this could occur. I have relied on the psychiatricreports in reaching this view. In Dr Immelman's first report in June 2017, he notedthat Mr X's emotional state at that time meant Mr X was at significant risk, should hebe unsupervised with access to the means, of "completed suicide". Dr Immelman alsonoted that Mr X's wife undertook to ensure Mr X's whereabouts, including regularsupervision, and that there are other family members in their local community.Dr Galpin noted that Mr X started on antidepressants in June/July this year. Sincetrialling antidepressants there has been a measure of success as he is no longer tearful,more able to cope, and has become more active as opposed to sitting on the couchstaring vacantly into space, although he still lacks appetite. He later noted that Mr Xhas had, in relation to treatment, a response of some degree with respect to depressivesymptoms.[89] In her 25 September 2017 report, Dr Casey reported that Mr X's mood was lowand he spoke of different means of suicide. Dr Casey also noted that Mr X has nohistory of self-harm and there is no other evidence that he has attempted suicide orself-harming behaviour.[90] Although it is hard to divide up the consequences of a conviction and the effectof publication in a case like this, it is really the latter, in my view, that brings the mostserious health and safety risks. Mr X has had the conviction now since April this year.It seems to have been the partial publication and the period that followed it thattriggered the suicide response.Are the consequences of a conviction out of all proportion to the gravity of theoffending?[91] I do not consider that the likely financial harm to Mr X's businesses, or theembarrassment Mr X's family will face, are other than ordinary consequences of aconviction.[92] The impact of Mr X's living as part of a small community does not aggravatethe consequences of financial harm to Mr X's businesses or the embarrassment hisfamily will face to beyond those that normally follow the fact of a conviction. Evenin large cities, people tend to live in smaller communities. In these circumstanceswhere being in a small community has operated so much in the victim's disfavour,because she felt she had to leave to avoid seeing Mr X, it would be unacceptable totake this point in favour of Mr X. He could himself ameliorate the consequences byleaving the small community for a bigger one.[93] As stated above, I accept there is a real risk to Mr X's mental health from aconviction, but I consider the risk of suicide from a conviction alone is not high.Further damage to Mr X's mental health is something I consider he has to endure inthe circumstances of the offending he has committed.[94] On that basis, while I have found that the gravity of the offending is low, adischarge without conviction is not appropriate as the consequences are not out of allproportion to the gravity of the offending.[95] Even if I had not reached that conclusion, I would have refused a dischargewithout conviction in circumstances where Mr X, in discussions with doctors, ispurporting to strongly dispute a charge to which he pleaded guilty. Regardless ofMr X's Parkinson's disease and dementia diagnosis, in my view, a discharge is notappropriate in those circumstances. Mr X has pleaded guilty and been convicted, andthat is that. An application for a discharge without conviction is not a vehicle to, ineffect, plead not guilty.Name suppression appealDistrict Court decision[96] In relation to Mr X's name suppression application, Judge Thomas noted thatMr X again relied on the embarrassment that would be caused, and the effect on hisbusinesses. Judge Thomas accepted that publication again might affect thebottom-line profit for Mr X's businesses and the income to him and his family, butagain it would be speculation as to how much. Judge Thomas also noted that they areconsequences that exist for everyone who is convicted of a serious offence and whoruns a business.21 Judge Thomas did not consider that Mr X had proved that any21 Police v X [2017] NZDC 7551 at [13].hardship that he or his family might suffer as a result of publication would beextreme.22[97] On that basis, Judge Thomas refused Mr X's application for permanent namesuppression.[98] Again, Judge Thomas did not have the medical evidence which I have allowedto be adduced.Submissions[99] Mr X appeals the District Court Judge's refusal to grant name suppression onthe basis that Judge Thomas overstated the seriousness of the offending and failed toassess the relative seriousness of Mr X's conduct when considering whether namesuppression should be granted.Relevant law[100] This appeal is a first appeal from the decision in the District Court which isgoverned by ss 282—287 of the Criminal Procedure Act 2011. Pursuant to s 283, anapplicant for a suppression order may appeal against the decision of a court to refuseto make a suppression order. This court can determine the appeal by:23(a) confirming the decision appealed against; or(b) varying the decision appealed against; or(c) setting aside the decision appealed against; or(d) making any other order it considers appropriate.[101] Suppression of a person's identity may be ordered by the Court pursuant tos 200 of the Criminal Procedure Act 2011.[102] Section 200 of the Act provides, inter alia, as follows:22 At [13].23 Criminal Procedure Act 2011, s 287.(1) A court may make an order forbidding publication of the name, address, oroccupation of a person who is charged with, or convicted or acquitted of, anoffence.(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, or convictedof, or acquitted of the offence, or any person connected with thatperson; or(b) cast suspicion on another person that may cause undue hardship tothat 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(g) prejudice the maintenance of the law, including the prevention,investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.[103] The first stage of the two-stage analysis requires the Judge to determinewhether one of the threshold grounds under s 200(2) of the Act is made out. As theCourt of Appeal recorded in Robertson v Police when it expanded on this stage: 24That is to say, whether publication would be likely to lead to one of theoutcomes listed in subs (2). The listed outcomes are prerequisites to a courthaving jurisdiction to suppress the name of a defendant. It is "only if" one ofthe threshold grounds has been established that the judge is able to go on tothe second stage.[104] In accordance with Austin, Nichols & Co Inc v Stichting Lodestar, the appellateCourt must come to its own view on the merits when deciding whether one of thethreshold grounds in s 200(2) has been met. The weight given to the decision of thelower Court is a matter of judgment.2524 Robertson v Police [2015] NZCA 7 at [40].25 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].[105] The second stage of the two-stage test requires the Judge to exercise theirdiscretion as to whether suppression should be granted or not. The Court of Appeal inRobertson v Police noted that at this stage, the:26 judge weighs the competing interests of the applicant and the public, takinginto account such matters as whether the applicant has been convicted, theseriousness of the offending, the views of the victims and the public interestin knowing the character of the offender.[106] This appeal is concerned with the first stage of the two-stage analysis, and istherefore a general appeal.[107] When assessing whether to make a name suppression order, there is a settledpresumption in favour of open reporting. This is based on "the two fundamentalprinciples of open justice and freedom of expression and extend[s] to all aspects of thecriminal process including public identification of a person convicted of an offence."27This presumption has been given statutory form in the first stage of the two-stageprocess, whereby the presumption applies unless the applicant can establish one of thegrounds to displace it.28 It is also relevant at the second stage, whereby the principleof open justice must be considered in exercising the discretion, notwithstanding thatthe threshold has been crossed.29[108] In R v Liddell, the Court of Appeal stated that "the starting point must alwaysbe the importance in a democracy of freedom of speech, open judicial proceedings,and the right of the media to report the latter fairly and accurately as surrogates of thepublic."30Analysis[109] Mr Bonnar submits that Judge Thomas failed to assess hardship to Mr X andhis family relative to the nature of the offence and the facts of that offending.26 Robertson v Police [2015] NZCA 7 at [41].27 DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306 at [9(a)].28 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].29 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].30 R v Liddell [1995] 1 NZLR 538 (CA) at 546.[110] In Tiwari v NZ Police the Court of Appeal said that the court must considerwhether the effect of publication is excessive, given the nature of the offence and thespecific facts of each case.31[111] Mr Bonnar submits that in these circumstances, the consequencesJudge Thomas assessed as being ordinary are in fact extreme in terms of s 200(2)(a),when considered relative to Mr X's offending, which he submits is minor. He alsosubmits that failure to grant name suppression would endanger the safety of Mr X, interms of s 200(2)(e), because Mr X presents as a suicide risk.[112] As will be clear, I do not consider that financial harm to the family businessesis likely to cause extreme hardship. There is no clear evidence of what financial effectpublication would have, and so any order for permanent name suppression wouldtherefore be made on the basis of speculation. Further, as Duffy J said in H v R, "in themajority of cases, name suppression should not be viewed as a tool to protect one'scommercial interests."32 Even if financial loss is a likely consequence, it is an ordinaryconsequence. The embarrassment that Mr X's family may face is also an ordinaryconsequence. The fact that I have assessed the gravity of the offending as low forserious offending of its kind, does not mean these consequences are elevated beyondordinary consequences such that they constitute likely extreme hardship. As GendallJ said in the High Court decision of Robertson v Police, I do not consider theseconsequences "fall outside the ordinary experience".33[113] Therefore, the threshold ground under s 200(2)(a) is not met based on theconsequences of financial loss or embarrassment.[114] However, I do accept that publication of Mr X's name would be likely toendanger his safety or for similar reasons cause him extreme hardship. There is strongevidence from Dr Immelman of Mr X's being at significant risk of suicide followinghis conviction and the previous publication of his identity. Dr Immelman said that thecombination of Mr X's mental impairment, (now moderately serious dementia and31 Tiwari v Police [2014] NZHC 2509 at [55].32 H v R [2015] NZHC 1501 at [41]-[42].33 Robertson v Police [2014] NZHC 1302 at [60], noted on appeal in Robertson v Police [2015]NZCA 7 at [49].becoming progressively serious) and a high sensitivity to publication, heightens hisrisk of distress and possible completed suicide. I accept that name suppression doesnot automatically follow a risk of suicide34 and that the risk can be addressed to somedegree with medication, but where there has already been publication following thesentencing (so it would be a repeat), and given Mr X's serious mental and physicalimpairments, I consider the threshold grounds under s 200(a) and (e) are met.[115] I accept the Crown's submission that the Court must take into account theviews of the victim, who is strongly opposed to name suppression. In this regard, thefact that Mr X has been convicted and that there has already been at least partial publicidentification of him is relevant.[116] I also note, without diminishing the seriousness of the crime, that there is noperceived likelihood of repeat offending by Mr X.[117] The Crown points to prior publicity of Mr X's offending as a relevantconsideration in favour of publication. The New Zealand Herald published an articlethat was shared with members of the local community Facebook page. It includeddetails of Mr X's age, occupation, place of residence and medical condition. TheCrown submits that "the horse has bolted"35 and so there is little value in preventingfurther publicity in the present case. As will be apparent, I disagree with this point. Ido not consider that Mr X should be disadvantaged in terms of a name suppressionapplication, by the media's breaching a suppression order.[118] I record that the Crown also submitted that Mr X's other criminal convictionsare able to be made public, and so any risk of extreme hardship already exists on thebasis of previous offending. Therefore, publication of this offending does not add ina significant way to that risk. Mr Fraser, for the Crown, withdrew that submission atthe hearing. I do not consider such a submission to be appropriate. The earlyoffending is historical and of a totally different nature. I cannot see that publicationof that offending is in the public interest or that it is relevant to the argument.34 Robertson v Police [2014] NZHC 1302 at [49].35 R v X (No 2) [2015] NZHC 1245 at [12].[119] Overall, I consider that the threshold criteria under s 200(2)(a) and (e) of theCriminal Procedure Act have been made out. In all of the circumstances, I considerthat it is appropriate to exercise my discretion to order permanent name suppression.Result[120] The applications for leave to adduce fresh evidence are granted.[121] The appeal against conviction is dismissed.[122] The appeal against refusal to grant name suppression is allowed. I orderpermanent suppression of the defendant's name.-------------------------------------------------Hinton J