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R v UGT HC Rotorua CRI-2011-263-000073 [2011] NZHC 1011 (14 July 2011)

Last Updated: 30 September 2011

NOTE: ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF THE PRISONER, THE VICTIM AND THEIR FAMILIES.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2011-263-000073}

THE QUEEN

v

_UGT

Hearing: 14 July 2011

Appearances: A F Pilditch and C H Macklin for Crown

A M M Schulze for Prisoner

Judgment: 14 July 2011

Reasons: 21 July 2011

JUDGMENT OF WHATA J ON SUPPRESSION ORDERS

Solicitors:

Gordon Pilditch, Crown Solicitors, PO Box 740, Rotorua 3040

Lance Lawson, PO Box 2279, Rotorua

R V UGT HC ROT CRI-2011-263-000073 14 July 2011

[1] This concerns an application for permanent name suppression.

[2] UGT pleaded guilty to a charge of manslaughter. He was sentenced to a term of imprisonment of three years. At the time of sentence he was granted interim name suppression.

Facts

[3] In somewhat tragic circumstances UGT stabbed his close and perhaps best friend TT in the leg. TT subsequently died.

[4] In sentencing UGT I had particular regard to his youth (he was only 15 at the time of the incident) and his upbringing. It was evident to me that UGT’s mother encouraged his consumption of alcohol immediately prior to the incident and that this was a mitigating factor when arriving at a final sentence.

[5] I also observed that UGT was plainly remorseful over his conduct, having actively participated in a restorative justice process. It was also plain to me that UGT had the support of TT’s mother, who sought leniency in terms of a sentence on UGT.

[6] Against this background, I consider that there are strong prospects of rehabilitation and reincorporation of UGT back within his community at the end of his sentence.

Principles

[7] UGT was initially granted name suppression pursuant to s 438 of the

Children, Young Persons, and Their Families Act 1989. That jurisdiction does not extend to proceedings in the District Court or the High Court.[1] It is therefore a

matter of discretion for me under the auspices of the Criminal Justice Act 1985 to determine whether or not there should be name suppression.

[8] Section 140 provides:

140 Court may prohibit publication of names

(1) Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification.

(2) Any such order may be made to have effect only for a limited period, whether fixed in the order or to terminate in accordance with the order; or if it is not so made, it shall have effect permanently.

(3) If any such order is expressed to have effect until the determination of an intended appeal, and no notice of appeal or of application for leave to appeal is filed or given within the time limited or allowed by or under the relevant enactment, the order shall cease to have effect on the expiry of that time; but if such a notice is given within that time, the order shall cease to have effect on the determination of the appeal or on the occurrence or non- occurrence of any event as a result of which the proceedings or prospective proceedings are brought to an end.

(4) The making under this section of an order having effect only for a limited period shall not prevent any court from making under this section any further order having effect either for a limited period or permanently.

(4A) When determining whether to make any such order or further order in respect of a person accused or convicted of an offence and having effect permanently, a court must take into account any views of a victim of the offence, or of a parent or legal guardian of a victim of the offence, conveyed in accordance with section 28 of the Victims’ Rights Act 2002.

(5) Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who commits a breach of any order made under this section or evades or attempts to evade any such order.

[9] There is a strong presumption that when considering suppression applications, the law favours open reporting.

[10] As set out in the submissions for UGT, the Court of Appeal in Lewis v Wilson

_{& Horton Ltd}[2] _{identified the following matters for consideration:}[3]

• whether the person whose name is suppressed is acquitted or convicted. If acquitted, the Court may more readily apply the power to prohibit publication, although in R v Liddell the Court recognised (in adoption of R v D (G) (1991) 63 CCC (3d) 134) that the public has an interest in acquittals also;

• the seriousness of the offending. Where a person is convicted of a serious crime it will only be in rare cases that name suppression will be ordered. Where the charge is “truly trivial”, particular damage caused by publicity may outweigh any real public interest (R v Liddell at p 547);

• adverse impact upon the prospects for rehabilitation of a person convicted: see, for example, B v B (High Court, Auckland, HC 4/92,

6 April 1993, Blanchard J);

• the public interest in knowing the character of the person seeking name suppression, an interest which has been acknowledged in cases involving sexual offending, dishonesty, and drug use (see, for example, R v Liddell; M v Police (1991) 8 CRNZ 14; Roberts v Police (1989) 4 CRNZ 429); and

• circumstances personal to the person appearing before the Court, his family, or those who work with him and impact upon financial and professional interests. As it is usual for distress, embarrassment, and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.

[11] A review of the authorities suggests that there need to be compelling reasons and/or very special circumstances for making an order for permanent suppression.[4]

[12] As I noted in my sentencing, a special feature of this case is the age of the accused. That triggers consideration of the United Nations Convention on the Rights of the Child 1989 (“UNCROC”), to which New Zealand is a party. That Convention defines “child” as everyone below 18 years unless under domestic law majority is attained earlier (which is not the case in New Zealand).[5] While keeping in mind the presumption inherent in s 140 and the Court’s commitment to open justice, I consider that I must have regard to the Convention and in particular I should treat

_{young persons “best interests” as a “primary consideration”.}[6]

[13] In R v Rawiri[7] Fisher J broadly agreed with the premise that “in the exercise of judicial discretions New Zealand Courts must take into account the moral force of internationally recognised human rights norms”.[8] As counsel for the applicant put it, included in this is the recognition of the need for young persons to receive special treatment.

[14] I agree but for my part it is not a question of moral force, but of interpreting legislation conferring a discretion in a manner consistent with international covenants and international human rights norms. [9] In saying that, I do need to be equally cognisant of common law convention and international rights which seek to affirm the principles of open justice and freedom of expression (and within that access to information).

[15] I also find the following rationale of the High Court in R v Rawiri,[10] again cited by the applicant, compelling:

... the fact that children are still in their formative years suggests that all else being equal there will be a greater prospect of rehabilitation following any conviction. Public identification may interfere with the opportunity to start a fresh life, and hence rehabilitation later.

[16] Given the foregoing, and in light of my findings set out above at paragraph [5] and [6], I am compelled to the view that suppression would better serve not only the interests of the accused, but also the principled recognition of:

(a) the law’s commitment to the rights of the child in accordance with the

UNCROC;[11] and

(b) the purpose of rehabilitation, as captured in s 7(h) of the Sentencing

Act.

[17] I further agree that given the proximity of UGT’s release, publication of his

_{name at this stage could be highly detrimental to his reintegration. That reintegration}

has already commenced through the restorative justice process, and the acceptance at least by the victim’s mother that UGT is entitled to a fresh start.

_{[18] Permanent name suppression is granted accordingly.}

Whata J

[1] R v Hansen CA24/86, 20 March 1986.
[2] _{Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).}
[3] At [42].

[4] See Re Victim X [2003] 3 NZLR 220 (CA) at [37] and R v B (CA4/05) CA4/05, 21 April 2005 at _[30].

[5] Convention on the Rights of the Child (opened for signature 20 November 1989, entered into force 2

_{September 1990), art 1.}

[6] Ibid, art 3.1.

[7] _{R v Rawiri HC Auckland T014047, 3 July 2002 ([2002] BCL 735).}
[8] _{At [7].}
[9] _{Refer Tavita v Minister of Immigration [1994] NZFLR 97 (CA) at 106-107.}
[10] _{R v Rawiri, above n 7, at [20].}

[11] Refer art 3.