P v Police HC Napier CRI-2009-441-34 [2009] NZHC 2434 (21 October 2009)

Last Updated: 29 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI-2009-441-000034}

BETWEEN P

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 20 October 2009

Counsel: G W Calver for the Appellant

R J Collins for the Respondent

Judgment: 21 October 2009

_{JUDGMENT OF WILD J}

Introduction

[1] On 1 September Mr P appeared in the Hastings District Court for sentencing, having earlier pleaded guilty to four charges of selling cannabis to people under the age of 18. Rather than convicting and sentencing Mr P , the Judge remanded him to 1 December. The Judge explained:

[9] ..you will be remanded at large now until 1^st December when you will appear in front of me again and I will get an update as to what you have put forward into the community, not what you have talked about doing which is where we are at now, not what your parents and others who support you have talked about doing, but what you’ve actually done. And once we get to that situation we will reflect again on how the final outcome should occur here.

[2] The Judge refused to suppress Mr P ’ name, even until 1 December. It is against that refusal that Mr P brings this appeal.

P V NEW ZEALAND POLICE HC NAP CRI-2009-441-000034 21 October 2009

[3] Mr P is a schoolboy. On four occasions in June he sold cannabis to three boys at his school, Lindisfarne College. He sold it for a total of $210 and swapped some for an I-Pod.

[4] When apprehended, Mr P was initially not forthcoming about this offending. He gave several conflicting accounts as to how he had obtained the cannabis, most of them obviously untrue. Subsequently, he thought better and cooperated fully with the Police.

[5] Some other boys were also involved in selling cannabis at Lindisfarne. Mr Calver contended that Mr P had sold less cannabis than those other boys, but Mr Collins was emphatic that Mr P was the primary offender. In fact, Mr Collins contended his offending was serious, and the Judge’s treatment thus far most lenient.

[6] The other boys were under 17. Accordingly, they were dealt with by the Youth Court. Pursuant to s 438 Child, Young Persons, and Their Families Act 1989 the names of those other boys were automatically suppressed.

The Judge’s decision

[7] Referring to the automatic suppression of the other boys’ names, the Judge’s view was that Mr P fell on the wrong side of an arbitrary line. The Judge recognised that s 140 Criminal Justice Act 1985 gave him a discretion to suppress Mr P ’ name. He could see absolutely no grounds at all to do that. The Judge said:

[9] ... You got yourself involved in criminal offending. It was, as I said, done deliberately. It was done for profit and it was done more than once. You are in no different position than anybody of your age and stage who comes before the Court in those circumstances. ...

[8] Mr Calver had five main submissions. First, he argued strongly that the Judge’s refusal to suppress Mr P ’ name, at least until 1 December, was premature. He argued that the optimum time for the Judge to make a decision on name suppression was at the time the Judge decided whether or not to enter convictions and, if he did, imposed sentences.

[9] Secondly, Mr Calver suggested it was tough, and simply unfair, that the other boys had automatic name suppression, but not Mr P . He drew my attention to the way the Judge dealt with this aspect:

[5] The others that were involved in this were under the age of 17 and, therefore, they are dealt with in the Youth Court. They are subject to the protection, as far as publicity and penalty are concerned, that that particular Court provides. You do not come under that. There is an arbitrary line drawn by our Parliament between ages 16 and 17 and, unfortunately for you, you have fallen on the wrong side of it.

Elaborating, Mr Calver made the point that Mr P , who turned 18 on 18 July and is still at school, is no less vulnerable than the other schoolboys who happened to be under 17 at the time they offended.

[10] Thirdly, Mr Calver acknowledged that Mr P has sold cannabis on four occasions in June. But he put it to me that that was simply stupid, stupid behaviour by a schoolboy. It was far from sinister drug dealing.

[11] Mr Calver’s fourth point was that Mr P had shown every sign that he will mature into a fine young New Zealander. He drew my attention to the many testimonials that were before Judge Rea indicating that. Mr Calver argued that the real public interest here was in suppressing Mr P ’ name and thus allowing him to fulfil his potential, rather than exposing this young man to public opprobrium, and risking damage to Mr P ’ prospects.

[12] Mr Calver’s fifth point was a reply one. In his submissions for the Police, Mr Collins referred to Mr P ’ privileged upbringing, and stressed that the Courts should avoid a two-tiered system of justice – one for the privileged, another for the

less privileged. Mr Calver countered this by urging that the Court should not treat Mr P less favourably than it would a young man from a less privileged background. In other words, the advantages he may have had in life thus far should not count against him.

Decision

[13] As with every case involving a school pupil, this one warrants anxious consideration. Young people do do stupid things – things they will forever regret. But, first time round, they deserve a second chance.

[14] Here, though not without considerable regret, I conclude that there is no basis on which I can allow this appeal, and interfere with the Judge’s decision. There are three main factors.

[15] The first is a legal, jurisdictional point. I have mentioned that the Judge’s jurisdiction to suppress Mr P ’ name lay under s 140 Criminal Justice Act. That is a discretionary jurisdiction: a Court may make an order prohibiting publication. To succeed with this appeal, Mr Calver needed to demonstrate that the Judge made an error of principle, overlooked some relevant consideration, factored in some irrelevant matter, or made a decision that was plainly wrong. He has not demonstrated any of those things. Indeed, I did not understand Mr Calver to submit that the Judge had erred in principle i.e. had misunderstood s 140 or the well known case law that guides its application. Rather, Mr Calver’s argument has really been tantamount to seeking to persuade me, on the basis of everything the Judge had, that the decision should have gone the other way. A different Judge may well have reached a different decision. I may have done so myself. But that is not the test, and therefore not the point. As Mr Calver has not persuaded me that the Judge incorrectly exercised his discretion, it is – strictly – unnecessary for me to go further. I do so only in the hope that what follows may assist Mr P and his family to understand the position.

[16] The second consideration is Mr P ’ youth. Arbitrary though it may be, age 17 is the cut off point for automatic name suppression. It is a bright line. In R v

Fenton HC AK T992412 1 February 2000 Chambers J took the view that the “spirit” of the Child, Young Persons, and their Families Act does not “carry over”. I agree, and I agree also with Chambers J’s comment in Fenton that age is not, in and of itself, a reason for name suppression. Other decisions of this Court which have grappled with this difficult area are those of Doogue J in I v Police (1991) 7 FRNZ

674 and Fisher J in R v Rawiri HC AK T014047 3 July 2002 (the Michael Choy murder case). Each of Fenton, I and Rawiri dealt with interim name suppression pending trial. A significant distinguishing factor here is that Mr P has pleaded guilty to the four charges.

[17] Further points relating to youth are that Mr P was 17 – almost 18 – at the time he sold the cannabis. He was not a juvenile 10 or 12 year old, or even in his low teens – 13 or 14. Further, this was not a single offence, but four separate offences. Mr P cannot claim to have slipped up just once.

[18] The third factor concerns Mr P ’ future prospects. Mr Calver argued forcefully that the public interest is best served by fostering and encouraging promising young New Zealanders (even when they have erred), and not by jeopardising or even destroying their prospects. That is a persuasive point.

[19] I accept that publishing Mr P ’ name will be acutely embarrassing to him, and to his family. But the sting of publicity will fade, and I think quite rapidly. Today’s news is supplanted by tomorrow’s news. It is the entry of convictions that would be the really damaging blot on Mr P ’ record, and may affect his prospects. The course Judge Rea took acknowledges that. What the Judge might do on 1 December is now very much in Mr P ’ hands. I was heartened by Mr Calver’s advice that Mr P is well on the way to completing a substantial amount of community work, and to saving a significant amount of money to donate to an appropriate cause, by way of amends for his offending.

Result

[20] The appeal fails. Suppression of Mr P ’ name ends at 5pm this Friday,

23 October.

Solicitors:

Bake McCallum, Havelock North for the Appellant

Crown Solicitor, Napier for the Respondent