Polosak v R [2023] NZCA 40 (7 March 2023)

Last Updated: 13 March 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA496/2022 [2023] NZCA 40

	BETWEEN	CASSANDRA POLOSAK Applicant
	AND	THE KING Respondent

Court:	Gilbert, Ellis and Davison JJ
Counsel:	R J T George for Applicant B So for Respondent
Judgment: (On the papers)	7 March 2023 at 9.30 am

JUDGMENT OF THE COURT

1. The application for leave to bring a second appeal against the refusal to grant a discharge without conviction is declined.
2. The application for leave to bring a second appeal against the refusal to grant name suppression is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

[1] Ms Polosak pleaded guilty to representative charges of posting digital communications with intent to cause harm, use of a telephone to send offensive text messages and emails with intent to offend, and breaching a protection order.

[2] Ms Polosak pleaded guilty to these offences. Judge M J Callaghan declined Ms Polosak’s application for a discharge without conviction.^[1] The Judge sentenced her to three months’ community detention and ordered her to pay reparation of $1,000.^[2] The Judge also declined Ms Polosak’s application for permanent suppression of her name.^[3]

[3] Ms Polosak appealed to the High Court against the refusal to discharge her without conviction and for permanent name suppression. The appeal was dismissed by Dunningham J on 25 August 2022.^[4]

[4] Ms Polosak now applies for leave to bring a second appeal. She contends that the gravity of the offending was not correctly assessed, and the Courts below failed to consider three of the consequences of the convictions. She maintains that she will suffer extreme hardship if her name is not suppressed. Ms Polosak argues that a miscarriage of justice will occur if leave is not granted for a second appeal.

The facts

[5] Ms Polosak was in a relationship with the complainant until he terminated it in January 2021. The summary of facts to which Ms Polosak pleaded guilty relevantly reads:

[Ms Polosak] then purchased more SIM cards, cell phones, created new email addresses, and Facebook accounts for her use to send anonymous messages.

CAUSING HARM BY POSTING COMMUNICATION

On 29 January 2021 [Ms Polosak] used a fake Facebook account and sent messages to [the complainant’s employer] ... She told [the employer] that the [complainant] was under Police investigation for inappropriately touching girls at his bar, and while this was occurring, she wouldn’t be going back to his bar. [The employer] messaged her back asking for further information but was sceptical of the allegation.

On 30 March 2021 [Ms Polosak] started to post the same allegation on various public Facebook music pages ... [the complainant] was associated with. She also mentioned [the bar] and that they are covering this matter up. These posts were seen by numerous members of the public causing [the complainant] serious emotional distress.

OFFENSIVE USE OF TELEPHONE

Between ... 11 March 2021 [and] 16 June 2021 [Ms Polosak] sent [the complainant] various offensive messages.

On 11 March 2021 [Ms Polosak] sent the text message “50k hit on u watch out” to [the complainant] from a phone number he was unfamiliar with. She continued to send offensive and threatening messages from this number until 1 April 2021.

On 3 April 2021 [Ms Polosak] used a different phone and SIM card to send [the complainant] text messages, starting with “I’m gonna do what the person you hate can’t”, “Gonna get rid of you”. She continued to send messages threatening his friends, dog, ex, also stating she had poisoned [the complainant], was watching him, and that she was armed. [Ms Polosak] continued using this number until 20 April 2021.

On 19 April 2021 [Ms Polosak] sent an email to [the complainant’s] employer. [Ms Polosak] used the fake name ‘Stephen’, and accused [the complainant] of being under the influence of drugs whilst at work, driving recklessly, and suggested they consider hiring someone else.

CONTRAV[E]NES PROTECTION ORDER

On 6 May 2021 the Christchurch District Court issued a Temporary Protection Order [against Ms Polosak in favour of the complainant]. [The police served this order on Ms Polosak on 8 May 2021].

Between ... 23 May 2021 [and] 16 June 2021 [Ms Polosak] breached the Protection order.

On 23 May [Ms Polosak] used another new phone number and sent more messages to [the complainant]; these were generally offensive messages and included one message in which she said, “I will stab u in ur sleep”.

During this period, [Ms Polosak] also created various email addresses and sent [the complainant] offensive emails.

Discharge without conviction

Gravity of the offending

[6] Judge Callaghan observed that the offending was highly premeditated and malicious. It persisted over a period of months and caused the complainant significant distress, as was intended. The anonymous messages included threats to kill, of obtaining a gun, that a $50,000 contract had been out on his life, he was being watched, he would be stabbed in his sleep and that he had been poisoned. Threats were also made to harm his friends, his former partner, and his dog. Messages were also sent to his employer and posted on social media alleging he was a sexual offender.^[5] The Judge assessed the gravity of the offending as being at the “moderate end of serious” and considered that a starting point of 11 months’ imprisonment would be justified for breaching the protection order and for sending the digital posts in breach of the Harmful Digital Communications Act 2015.^[6] Taking account of Ms Polosak’s personal circumstances, the efforts she had made to address the causes of her offending, her previous good character and guilty plea, the Judge considered that an end sentence of around five months’ imprisonment would be appropriate.^[7]

[7] Dunningham J rejected Ms Polosak’s submission on appeal that the Judge erred in his assessment of the gravity of the offending by mischaracterising the relationship and giving insufficient weight to her allegations about acts perpetrated against her in the relationship.^[8] The Judge agreed that the offending justified a starting point of imprisonment.^[9] The offending had the potential to destroy the complainant’s career, livelihood, and relationships.^[10] The consequences of the offending were harmful and severe.^[11] Dunningham J carefully reviewed the evidence relating to Ms Polosak’s personal circumstances.^[12] She agreed with Judge Callaghan’s assessment of the overall gravity of the offending taking account of the personal mitigating circumstances.^[13] The Judge rejected Ms Polosak’s submission that her perception of the relationship as being harmful and abusive materially detracted from the gravity of her offending.^[14]

[8] Ms Polosak argues that both the High Court and the District Court failed to consider as mitigating factors her remorse and efforts to address her offending. She also argues that insufficient credit was given for her previous good character. We do not consider these points are seriously arguable. Judge Callaghan applied a generous discount of 55 per cent for personal mitigating factors, including rehabilitative efforts, her previous good character, and her guilty pleas. While a specific allowance for remorse was not given, the discount allowed by the Judge for personal mitigating factors was more than adequate to account for any remorse reflected by the offer to pay reparation and participate in restorative justice. Any specific discount for remorse would also need to be tempered by the fact that Ms Polosak was still seeking to ascribe blame to the complainant for her actions.

Consequences of conviction

[9] Ms Polosak argued in the District Court that the consequences of a conviction would be out of all proportion to the gravity of her offending. The alleged consequence was the potential loss of her employment as a police communicator, a position she had held for six years. It was argued that loss of this employment would have a “devastating effect” on her given her lack of support in the community.

[10] Judge Callaghan concluded that the likely consequences of a conviction would not be out of all proportion to the gravity of the offending. His reasoning is captured in the following paragraphs of his judgment:^[15]

[35] In terms of consequences, the only consequence relied upon is the fact that she will lose her employment if convicted. She has already been subject to an employment enquiry, and while a conviction may have an effect upon the outcome of that, the employer, the New Zealand Police, is fully aware of her circumstances and they will take into account the circumstances of the offending with or without a conviction being entered.

[36] I believe the loss of employment for criminal offending of this nature could be warranted. It is a consequence which would happen to other people employed at other forms of employment. The fact that she is employed by the police is only one aspect of it. Most employers would be dismayed that an employee would act as [Ms Polosak] has done in these particular circumstances. Loss of employment can be seen as a normal consequence of moderately serious criminal offending.

[37] On that basis I therefore assess that the consequences are not out of all proportion to the gravity of the offending, and I am not prepared to grant a discharge without conviction.

[11] The same argument was advanced before Dunningham J and rejected on appeal:^[16]

[43] Likewise, I agree with the Judge’s analysis of the consequences of conviction, [Counsel for Ms Polosak] referred to the same consequences on appeal as before the Judge, being the real or substantial risk Ms Polosak would lose her employment as a police communicator.

[12] Dunningham J was undoubtedly correct when she said:^[17]

At its highest, this consequence of conviction can be expressed as exacerbating an existing risk (resulting from her offending as opposed to conviction) that she will be dismissed.

[13] Ms Polosak does not argue otherwise in seeking leave for a second appeal. Rather, she complains that neither of the Courts below considered three other consequences of a conviction being entered, even though these appear not to have been relied on in submissions to those Courts. These asserted consequences are:

(a) A conviction generally will be a barrier to her achieving her potential.

(b) The effect of a conviction on her fragile mental state.

(c) The existence of her convictions will mean that she will likely have to explain the circumstances of her relationship and “re-live” the trauma she claims to have experienced.

[14] We do not consider it is seriously arguable that these potential consequences now identified could have any material bearing on the disproportionality analysis.

[15] It is apparent that the Courts below carefully assessed all relevant factors and applied well-settled principles in determining whether it would be appropriate to discharge Ms Polosak without conviction. The proposed second appeal raises no issue of public importance and nothing put before us suggests that a miscarriage of justice may have occurred. The present application falls far short of meeting the high threshold required to justify the grant of leave for a second appeal.^[18] The application for leave to bring a second appeal against the refusal to grant a discharge without conviction must accordingly be declined.

Name suppression

[16] Ms Polosak supported her application for name suppression with an affidavit in which she stated that it would be “almost impossible” for her to secure meaningful employment “following dismissal from Police” because prospective employers would find articles about her and her offending by searching on the internet. Ms Polosak was also concerned that her future employment prospects could be compromised by prospective employers finding reference to her father’s offending.

[17] Judge Callaghan was not persuaded that Ms Polosak would be likely to suffer extreme hardship if her name was published.^[19] Dunningham J agreed with this assessment. She noted that extreme hardship means something greater than severe suffering or privation.^[20] The Judge also noted that loss of employment or livelihood is not generally sufficient. She considered that any hardship resulting from publication of Ms Polosak’s name would fall “well short” of the extreme hardship threshold.^[21]

[18] The application for leave to bring a second appeal against the refusal to grant name suppression largely relies on the same arguments advanced in support of the proposed conviction appeal. We see no seriously arguable error in the concurring assessments made in the Courts below that publication of Ms Polosak’s name will not be likely to cause her extreme hardship. The main consequences she is concerned about are likely to result from her offending and, to a lesser extent, her conviction for it. Her offending is likely to come to the attention of prospective employers whether or not her name is published. If it is relevant, she may well need to disclose it. In any event, we are not persuaded there is any risk that justice has miscarried and that leave for a second appeal on the question of name suppression can be justified.

Result

[19] The application for leave to bring a second appeal against the refusal to grant a discharge without conviction is declined.

[20] The application for leave to bring a second appeal against the refusal to grant name suppression is declined.



Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Police v Polosak [2022] NZDC 7685 [District Court judgment] at [37].

^[2] At [44]–[45].

^[3] At [41].

^[4] P v Police [2022] NZHC 2131 [High Court judgment].

^[5] District Court judgment, above n 1, at [30]–[31].

^[6] At [33].

^[7] At [34].

^[8] High Court judgment, above n 4, at [28] and [40]–[43].

^[9] At [29].

^[10] At [30].

^[11] At [30].

^[12] At [31]–[35].

^[13] At [42].

^[14] At [42].

^[15] District Court judgment, above n 1.

^[16] High Court judgment, above n 4.

^[17] At [44].

^[18] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[19] District Court judgment, above n 1, at [41].

^[20] High Court judgment, above n 4, at [46] citing Robertson v Police [2015] NZCA 7 at [48].

^[21] At [47].