THE QUEEN v GRANT KERE SMITH AND EMARAINA FILIILA HAWEA [2002] NZCA 232 (4 September 2002)

IN THE court of appeal of new zealand

ca 174/02 CA 180/02

THE QUEEN

V

GRANT KERE SMITH

AND

EMARAINA FILIILA HAWEA

Hearing:	28 August 2002
Coram:	Blanchard J Robertson J Panckhurst J
Appearances:	G W Calver for Appellants
	J Jelaoe for Crown
Judgment:	4 September 2002

judgment of the court DELIVERED BY PANCKHURST J

Introduction

[1] The one issue raised in this appeal is whether the Judge in the District Court erred in the exercise of his discretion in relation to name suppression. In sentencing the appellants, a husband and wife, for separate benefit frauds final name suppression was refused.The appellants challenge that outcome.

Background

[2] Mr Smith pleaded guilty on arraignment to one charge of using a document with intent to defraud.He obtained from the Accident Compensation Corporation earnings-related compensation of $107,885.61 between July 1993 and January 1998.The gist of the fraud was a misrepresentation concerning the appellant's earnings in the twelve month period prior to May 1993 the date of the accident, which set the basis for his claim to lost earnings.Fraudulently he represented that he had received wages in excess of $38,000 during the relevant period.Weekly compensation of $644 was assessed.In fact Mr Smith had no relevant income history during the previous twelve months.He was variously in receipt of a sickness benefit or working in a voluntary capacity.

[3] Ms Hawea likewise pleaded guilty on arraignment although to two charges of using a document with intent to defraud.She obtained earnings-related compensation in relation to an accident which occurred in April 1996.Such compensation was based upon an assertion that in the twelve months prior to the accident she had been in work and had received regular wages.This was not the case.In fact Ms Hawea had been in receipt of a domestic purposes benefit. She had no relevant wage history upon which to call with reference to earnings-related compensation.

[4] In 1995 Ms Hawea also obtained reimbursement from the Accident Compensation Corporation for home help expenses.Again, the claim was fraudulent.Home help expenses had not been paid and, hence, reimbursement was not properly available.The fraudulent claims for earnings-related compensation and home help reimbursement totalled $32,802.89.

[5] The appellants were both sentenced in the District Court at Napier on 28 May 2002.Ms Hawea had the benefit of a generally favourable pre-sentence report which recommendeda sentence of periodic detention.She was aged 39 years.Her only previous convictions were in 1995 upon two charges of failing to furnish income tax returns.

[6] The sentencer adopted the pre-sentence report recommendation and imposed six months periodic detention.This was coupled with an order that the appellant pay reparation of $15,000 at a rate to be determined administratively.

[7] Mr Smith's personal circumstances were somewhat different.He was aged 52 years.Although his pre-sentence report was also generally favourable, it concluded with a recommendation for imprisonment with leave to apply for home detention.Mr Smith had a number of previous convictions mainly for traffic offences, but also for offences of dishonesty, albeit committed in the early to mid 1970s.

[8] In the event the Judge imposed a sentence of nine months imprisonment, suspended for two years, and ordered the appellant to undertake periodic detention for six months.He also ordered payment of reparation in the sum of $50,000, again leaving the terms of payment at large.

[9] Counsel sought name suppression for both prisoners.In the case of Ms Hawea primary reliance was placed upon the circumstance that her mother was elderly, frail and in poor health.It was suggested that publication of her daughter's name would place the mother at unacceptable risk.

[10] In relation to Mr Smith the reasons advanced were business-related.He was the founder and driving force behind a small company which employed five persons.Counsel argued that publication of Mr Smith's name in a provincial community would probably result in the failure of the company, with a consequent loss of jobs.Mr Smith would also be unable to make reparation in that event.

[11] The Judge was unmoved.He explained his view concerning suppression in these terms:

I have given the issue quite a lot of consideration.I have decided that in this particular case the public interest is not outweighed by the personal circumstances which have been presented.I do not believe that the consequences to this company will be as perilous as has been submitted, and accordingly I am not prepared to make any order prohibiting publication of either of your names.You will simply have to go to the people who may be affected by publication of your name and be open about that.

This involves money which has been taken from a corporation which administers a fund to pay compensation to the general public, and where sums are defrauded to this extent and in this way, it is clear that the public has an entitlement to know who the offenders are and that outweighs any personal circumstances which may have been presented to me today.

[12] Subsequent to the sentencing it transpired that for medical reasons neither Mr Smith nor Ms Hawea was able to serve a sentence of periodic detention.A review of sentence was initiated.Sentences of community work were substituted for the previous terms of periodic detention.

The arguments

[13] Mr Calver advanced the appeal on much the same grounds as those relied upon in seeking suppression in the District Court.The business background was amplified by the filing of affidavits from Mr Smith, two managers of companies with which he is in trade and from the trustee of a housing trust of which Mr Smith is a co-ordinator.The respective deponents expressed views concerning the possible impact of name publication.

[14] Mr Smith's company processes stock food utilising bi-products obtained from various meat processing and agricultural companies.His company is also involved in recycled sawdust for use by garden centres and within the racing industry.Negotiations are in train to source a supply of canned products (originally for human consumption) which have become unsaleable, but are suitable for recycling as stock food.The business employs five full-time workers.We accept that Mr Smith is the manager and driving force behind the company.

[15] Mr Smith's affidavit detailed the failure of a second company which he operated at the time of his sentencing.It too was involved in processing stock food using a bi-product from a particular agricultural source.That source dried up upon the proprietors learning of Mr Smith's conviction.His company failed as a result.

[16] A similar fate is suggested in relation to the remaining company, should publication of Mr Smith's name occur.Particular emphasis was placed upon the negotiations which are occurring with a national company concerning the supply of unsaleable canned foodstuffs, for recycling.Such negotiations are said to be sensitive and likely to be imperilled in the event of name publication.

[17] The supporting affidavits are to similar effect.One company manager deposed that his firm is a customer of Mr Smith's company and would not wish to lose the benefit of the inward product which is supplied to it.Another manager of a national company which supplies edible waste to Mr Smith's company suitable for conversion into stock food does not want publication of his name to occur either.Such, it is said, would result in public association of the company with Mr Smith, which would be "simply highly embarrassing for us and potentially damaging to our business".

[18] In relation to Ms Hawea counsel re-emphasised the vulnerability of the appellant's mother.He also submitted that since there has already been publicity in which the appellants were identified as husband and wife, publication of Ms Hawea's name would lead to identification of Mr Smith (assuming his appeal succeeded and hers did not).In other words counsel contended that practically the appellants needed to be treated in a like manner if a meaningful suppression order was to be made.

[19] Crown counsel submitted that the discretion to refuse name suppression was exercised on a reasoned and principled basis, leaving no basis to disturb it. The offending was serious.Moreover, companies and persons in trade were entitled to know of the character of those with whom they may engage in business.In short it would be wrong in principle for this Court to lend itself to an order for name suppression designed to hide from the public gaze fraudulent conduct on this scale.The more so in the case of Mr Smith, given that he has twice been adjudicated bankrupt, once prohibited from involvement in the management of any company and also associated with a company which was placed in liquidation.

[20] Counsel challenged the assessment that name publication would precipitate the failure of Mr Smith's company.Doubt was expressed that in a provincial setting word of the convictions had not already spread within the business community.If so, name suppression would serve only to disguise the association between Mr Smith and the companies with which he deals, hardly a principled basis for final name suppression.

Conclusions

[21] We are able to express our conclusions quite shortly.As was stated to counsel in the course of submissions, shorn of detail the Court was effectively being asked to lend itself to the making of an order designed to conceal convictions for fraud from a national company presently involved in negotiations with Mr Smith in relation to a significant commercial contract. This analysis served immediately to indicate the inappropriateness of a suppression order in this case.

[22] The jurisdiction to order name suppression is conferred by s140 of the Criminal Justice Act 1985.This is not the occasion to restate the guiding principles.They are in any event well known, R v Liddell [1995] 1 NZLR 538 (CA) and Proctor v R [1997] 1 NZLR 295 (CA) being the leading cases. It is sufficient to say that on an application of such principles we are wholly satisfied that name suppression was inappropriate in this case.

[23] The offending was serious.Significant dishonesty was involved.Mr Smith's position in the business community dictated that his name be published, rather than the reverse.Save perhaps in very exceptional circumstances, in a case involving substantial dishonesty those who are likely to have business transactions with the offender, be they large corporations or more modest operations, are entitled to know of the conviction and the light that may shed on the offender's character.There was nothing in relation to Ms Hawea's personal circumstances sufficient to justify name suppression in her case either.We agree with the reasons and conclusions of the Judge below.

[24] The appeal was audacious, without merit and is dismissed.

Solicitors:

Gresson Grayson & Calver, Hastings for Appellants

Crown Law Office, Wellington