Biernat v R [2013] NZHC 3478 (18 December 2013)

Last Updated: 28 March 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000033 [2013] NZHC 3478

MYRON ROY BIERNAT

v

REGINA

Hearing: 18 December 2013

Counsel: J A Westgate for Appellant

R D Smith for Crown

Judgment: 18 December 2013

_{JUDGMENT OF PANCKHURST J}

The appeal

[1] The appellant Myron Biernat entered a plea of guilty to a charge of doing an indecent act on a girl aged under 16 years of age. This occurred between October 2007 and October 2008. On 27 November the appellant was sentenced by Judge Crosbie to six months home detention, subject to certain special conditions, and also ordered to undertake 150 hours of community work.

[2] This appeal is confined to the Judge’s decision to refuse permanent name suppression. The appellant had enjoyed the anonymity of an interim suppression order until he was sentenced.

The District Court sentencing

[3] Mr Biernat is 69 years of age. This was his first conviction for a criminal offence. The complainant, who was about 10 years of age at the relevant time, is a

BIERNAT v R [2013] NZHC 3478 [18 December 2013]

family member. She was induced by him to place her head in his lap, in circumstances that he knew had “crossed the line”. He also spoke of his actions to the Probation Officer who prepared the pre-sentence report as having resulted in a “huge guilt complex”. Although there was only one charge, I am told that it was intended to cover two discrete incidents of a similar nature.

[4] With reference to name suppression Judge Crosbie observed that the starting point is the presumption in favour of openness. He also observed that the complainant had signified she favoured publication of the appellant’s name, albeit in many cases that is not the case where the complainant and a defendant are related. Judge Crosbie paid regard to letters provided by the appellant’s general practitioner and a psychotherapist. Both considered that there was a risk of suicide and that this risk would be increased in the event that Mr Biernat’s name was published.

[5] However, as the Judge rightly noted, a risk of self-harm is never to be treated as determinative in relation to final name suppression. It is rather a relevant factor to be weighed in the balance.

[6] In the end result, Judge Crosbie expressed his conclusion in this way:¹

[33] I do have some concern about issues of management of risk.

However, in my assessment, given the support that you have, coupled with some other factors, that risk can be managed. One of

the factors is the level at which I have placed this offending on the

continuum. I have noted where it sits and I have noted how it is to be distinguished from other and more serious offending.

[34] I am of the view that, despite the concerns being shared with the Court, those concerns are able to managed. In fact, the Court’s experience is that often those who know and care for you will be greater able to assist you by knowing what has occurred.

The grounds of appeal

[7] In a written submission Mr Westgate identified a number of grounds of appeal, but it seems to me that his argument today was effectively reduced to two principal submissions. The first was a challenge to the Judge’s conclusion that the risk of self-harm or suicide was manageable, on account of the level of family

support enjoyed by the appellant and the circumstance that this was relatively low level offending. The second ground of appeal was directed to new evidence to which I will turn shortly.

[8] As to the first argument I am unpersuaded. As I read the Judge’s sentencing remarks he was influenced by the good level of family support which the appellant enjoys, including from a faithful wife, and also by the fact that this is relatively low level offending in terms of the sexual offending calendar. By reference to the latter factor, I understood the Judge to be saying that this was not offending at a level which was likely to capture the attention of the public at large, and hence that the likelihood of the appellant taking a drastic step was lessened.

[9] To my mind, this was orthodox thinking and an approach which was available in the circumstances of this case unless it can be said that the new evidence makes an appreciable difference.

The new evidence

[10] Mr Westgate placed quite some reliance upon a decision which it appears was not made available to Judge Crosbie in November. This is the case of BL v R² decided on 31 October 2013 by Winkelmann J. In that case, new psychiatric evidence was adduced on appeal. I will refer to the tenor of that evidence shortly. There has been a similar development in this case.

[11] Dr Christopher Wiseley, a consultant psychiatrist, has provided a report. It is undated, but I assume was prepared recently and certainly since the sentencing on

27 November. Without going into fine detail the report contains a full account of the appellant’s background, his upbringing, his family history, his work experience and of the assessed impacts of the present conviction.

[12] It contains two conclusions which I shall quote. The first, with reference to his mental state at examination, the doctor said this:

He was understandably stressed and at times emotional. He has an understating style but spoke clearly, distinctly and with good insight. He does not have psychomotor retardation. He did not strike me as being clinically depressed, but rather chronically stressed.

Towards the end of the report Dr Wiseley expressed this view:

In my firm view, ongoing and permanent name suppression would be extremely useful to prevent irreparable damage in the areas indicated above. I think the issue of potential suicide will be made much more likely as a result of name publication.

[13] There was some expert evidence before Judge Crosbie in the District Court. This came, firstly, in the form of a letter from the appellant’s general practitioner dated 12 November 2013. The letter contained this:

I have consulted with Myron (seen on 5 November 2013) in relation to his current mental health and I have grave concerns about the potential consequences that may result if his name suppression was to be lifted. The stress of recent events have led to a depressive episode and I would judge him to be of moderate suicidal risk, and am sure that that would be worsened if his name was to be made public.

[14] The second letter was from a registered psychotherapist and dated

19 November 2013. The therapist saw the appellant on 14 November 2013 and expressed this opinion:

By his report, he has experienced significant stress related to the court case and has struggled with strong suicidal impulses on occasion. Whilst he is utilising strategies effectively to manage these impulses at present, it is conceivable that the lifting of name suppression would significantly increase his challenge in resisting these impulses.

The relevant test

[15] The test to be applied in relation to an order for permanent suppression of name is contained in s 200 of the Criminal Procedure Act 2011. That section relevantly provides:

(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted

... of, an offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to-

(a) cause extreme hardship to the person charged with, or convicted of, ... the offence, or ...

...

(e) endanger of the safety of any person; or

...

These are the relevant portions of the section, although I also note that subs (6)

requires the Court to take into account any views of the victim of the offence.

[16] I return to the case of BL v R. In that case BL had been convicted of multiple sexual offences against two young boys. He was sentenced to 12 months home detention but as in this case permanent suppression was declined in the District Court. Winkelmann J, sitting on appeal, concluded that the decision reached by the District Court Judge was plainly wrong. She did so only on account of the new evidence. That evidence was a report from a psychiatrist who specifically addressed what the District Court Judge had described as ‘support structures’ sufficient to mitigate the risk of suicide. The psychiatrist seriously doubted this.

[17] I note two portions of Winkelmann J’s decision, the first at para [8]. She

noted that BL had been treated by a psychologist and a psychiatrist and continued:

Both had diagnosed BL as having suffered from a major depressive episode triggered by post traumatic stress disorder, with uncontrollable flashbacks a feature of the disorder.

And later, at para [29], the Judge expressed her conclusion in these terms:

There may be circumstances where the risk of reoffending is so great that, notwithstanding that it will result in a heightening of a high risk of suicide, name suppression will be declined. I do not consider that this is such a case. Having read all the material, it is apparent that BL’s risk of reoffending is to be assessed as low. He is a man in his mid 60s who has never offended in this fashion before. His offending occurred in the immediate aftermath of a traumatic episode, and has been assessed by both (a psychologist and a psychiatrist) as being linked to the post traumatic stress disorder and depression that followed. That this was a consequence of BL’s mental illness is now known and treatment can be directed to it, both through his mental health providers, and most likely, through probation-directed rehabilitation programmes. I also note that BL has been suspended from medical practice, which further addresses concerns regarding public safety.

[18] These quotations, and the little I have said about the facts of BL, are probably sufficient to paint the flavour of that case. In my view it is a different case to this one. The first and perhaps most significant point of distinction is that BL was suffering from post-traumatic stress disorder which had led to depression existing at the time of the offending. There had been a diagnosis to that effect before the District Court hearing and emphasised in the subsequent report produced as new evidence on appeal.

[19] Secondly, the new evidence from the psychiatrist was specifically directed to the support structures and whether the District Court Judge was correct in thinking that they would guard against the risk of suicide. Again, that is not a feature of the further evidence to which I have had regard in this case. Indeed, in my view the expert evidence adduced both by way of the two letters in the District Court and now the further letter from a psychiatrist has a flavour of expediency about it. It was sought shortly before the sentencing, or in the aftermath of the sentencing and in anticipation of this appeal. This led Mr Smith to submit that the evidence of risk “appeared situational to the sentencing process”, and was not something which was the subject of a diagnosis and had existed at the time of the offending.

[20] I note as well that the most recent report from the registered psychiatrist refers to an actual attempted suicide by drowning. There is no mention of this in the other reports, or in the pre-sentence report, and like Mr Smith I think it is difficult not to have a degree of cynicism about this development. There could be an explanation, namely that the attempt occurred after the sentencing, meaning the other report writers could have no knowledge of it. If that was the case it would certainly have been helpful for some information concerning when this attempt occurred.

[21] Another significant difference between the two cases is obviously the level of stress suffered by the defendants. I have already referred to BL suffering from significant depression as a result of post-traumatic stress disorder. By contrast here the diagnosis is of chronic stress, or at its highest significant depression which is related to the offending and the Court process, not a pre-existing condition dating back to the time of the offending.

[22] Mr Smith submitted that to the extent that stress and depression have been diagnosed they are typical of that found in the aftermath of a conviction for sexual offending of this kind. I think there is weight in that submission.

[23] Finally I note that the Judge accepted that in this case there was an element of future risk in relation to further offending. This was confined to young females who may come within the appellant’s sphere of influence. That finding resulted in the imposition of special conditions of home detention; that the appellant should undergo psychological assessment and that he may as a result be required to participate in treatment programmes.

Conclusion

[24] Looking at all these factors in the round I am by no means satisfied that the test in s 200 is met. I am not of the view that publication would cause extreme hardship to the appellant, nor that publication will endanger his safety. To the contrary, I agree with the assessment reached by Judge Crosbie, including his analysis that this is low level offending and that the support he enjoys is such that it is highly unlikely he will act on suicidal impulses.

[25] Moreover, with regard to the new evidence, I am of the view that it does not greatly advance matters. I have spent some time comparing it to that in BL, but ultimately that is not the test. The test is whether the evidence in relation to this case is sufficient to meet the requirements of s 200 and, as I have already said, I do not consider that it does.

[26] For these reasons, the appeal is dismissed.

Solicitors:

J A Westgate, Barrister, Dunedin

Wilkinson Adams, Dunedin