R v Wilson [2014] NZHC 32 (3 February 2013)

Last Updated: 13 February 2014

PERMANENT ORDER PROHIBITING PUBLICATION OF DETAILS OF PSYCHOLOGICAL ASSESSMENT EXCEPT WITH LEAVE OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-009-014082 [2014] NZHC 32

REGINA

v

ANGIE ROSE WILSON

Hearing: 11 December 2013

(Counsel given until 20 December 2013 to obtain victim's family's view on name suppression)

Counsel: P Currie for Crown

K H Cook for Prisoner

Judgment: 3 February 2013

_{JUDGMENT OF WHATA J}

Note: This is an anonymised version removing all reference to the psychological details as reported in the original judgment

[1] Ms Wilson was convicted of blackmail. She sent texts to a victim threatening to expose their (alleged) sexual relationship. The victim shortly after having discussed the texts with his de facto partner, committed suicide. Ms Wilson accepts that the blackmail was a contributing factor to his suicide. Ms Wilson, however, was not charged or convicted with any offending said to cause the death of the victim. At the conclusion of sentence I invited submissions on whether Ms Wilson’s name should be suppressed. Ultimately I considered that it was necessary to obtain an

_{expert assessment of Ms Wilson’s emotional health. After hearing from counsel I}

R v WILSON [2014] NZHC 32 [3 February 2013]

reserved my decision given its significance to Ms Wilson, the victims of her crime and to the public generally.

[2] This judgment therefore concerns whether Ms Wilson’s name should be

permanently suppressed.

Facts

[3] The following is taken from my findings of fact for the purpose of sentence.

[4] In June 2012 the victim, A, met with Ms Wilson through his business selling chaff. Between June and August 2012 there were numerous text exchanges between them. On 25 August 2012 Ms Wilson sent a text to the victim stating “I need more money”. The victim replied “Sorry I cant help I got none”. Ms Wilson then threatened the victim by texting “try or I’ll just go round saying your paying for sex from a 17 yr old”. Ms Wilson sent another text to the victim “id txt back ae or Ill tell everyone ur a sick pedo and I have all the txts to proof it”.

[5] Later still the victim texted Ms Wilson “what u want frm me”.

[6] Ms Wilson replied “money I won’t tel anyone”. The victim replied “tel them what”. Ms Wilson replied “ur trying to get it on I have all the txts and u wont to pay for it im only 17 it will look bad”.

[7] Then on 26 August Ms Wilson sent another text to the victim stating “I wont money in my account by wed or ill tell everyone”. The victim did not respond and Ms Wilson followed up with “3k and don’t think I wont coz I will as soon as I tell my mum shit will hit the fan”.

[8] Between 26 and 28 August Ms Wilson continued to send text messages to the

victim threatening to expose his relationship with her to the victim’s partner. On the

28^th the victim told his partner what was happening and on the morning of

Wednesday, 29 August 2012, the victim took his own life.

[9] On 29 August Ms Wilson sent a text message to the victim’s cellphone. The text message stated “I’ve warned my dad lol so make sure there’s 4k in there tomorrow ur will tell everyone ur a dirty old man”.

[10] For this offending, I sentenced Ms Wilson to a period of home detention of ten months together with 100 hours community work.

Process

[11] Following sentencing I sought submissions on name suppression. Mr Cook identified the need to obtain expert medical advice and I endorsed that he should obtain such advice. Unfortunately a significant amount of time elapsed between sentence, obtaining the report and then argument. Nevertheless, a comprehensive and helpful report has been produced by Ghazi Metoui, a Forensic Clinical Psychologist.

Psychological assessment

[12] [Paragraphs [12]-[18] of original judgment, details of psychological assessment, suppressed and omitted from this judgment.]

Victims’ views

[13] As required by the Act, the views of the victims were sought on the question of suppression. The family of the deceased, including his de facto spouse, are firmly opposed to permanent suppression.

Submissions

[14] The Crown opposes permanent name suppression, given the seriousness of the blackmail offence and the ordinary presumption in favour of open reporting. The Crown accepts that the risk of suicide is a relevant factor but not determinative,

_{citing various appellate authorities.}¹

¹ R v McDonald CA84/98, 24 August 1998; R v M CA52/96, 8 July 1996; R v Suttie [2007] NZCA

201; and K v Inland Revenue Department [2013] NZHC 2426.

[15] Mr Cook for Ms Wilson also highlighted relevant factors including: (a) The strong presumption of open reporting;

(b) Damage out of the ordinary (disproportionality) is often required for suppression to be granted;

(c) Adverse impacts upon rehabilitation can be a relevant factor in the granting of suppression.

[16] Mr Cook agreed that the risk of suicide of the applicant is a factor but is not determinative.

[17] Mr Cook also referred to my judgment in R v UGT² where permanent name suppression was granted to a young man who had killed his best friend in tragic circumstances. That judgment referred to R v Rawiri³ where the rights of the child and rehabilitation were emphasised as important considerations.

[18] Mr Cook then identified passages of Mr Metoui’s report signalling the significant concern about Ms Wilson’s mental health and the effect that publication would have on her.

[19] He also emphasises significant progress Ms Wilson had made with her rehabilitation and the concerns expressed by the Probation Officer if Ms Wilson’s name were to be published. He then highlights the likely media attention will have a disproportionate impact on Ms Wilson, especially as it will likely attribute the victim’s death to Ms Wilson.

[20] Overall he says that the:

Counterveiling interest which the community has in a young person being rehabilitated and reintegrated into society is the interest which prevails in the

² _{R v UGT HC Rotorua CRI 2011-263-73, 21 July 2011.}

³ R v Rawiri HC Auckland T014047, 3 July 2002.

circumstances of the case and therefore Ms Wilson’s name should be

suppressed.

Framework

[21] The Court’s power to suppress is now circumscribed by s 200 of the Criminal

Procedure Act 2011. That section states:

200 Court may suppress identity of defendant

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

(b) cast suspicion on another person that may cause undue hardship to that person; or

(c) cause undue hardship to any victim of the offence; or

(d) create a real risk of prejudice to a fair trial; or

(e) endanger the safety of any person; or

(f) lead to the identification of another person whose name is suppressed by order or by law; or

(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(h) prejudice the security or defence of New Zealand.

...

[22] Subsection (6) also states:

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims' Rights Act 2002.

[23] For present purposes only subs (2) (a) extreme hardship and (f) identification of a person whose name is suppressed, are directly engaged by the facts.⁴ However, as the victim’s family do not consider identification to be a factor that should weigh in favour of suppression, I do not propose to address it further.

[24] A corollary of this is that a finding of extreme hardship is a gateway threshold that must be satisfied in the exercise of the discretion to permanently suppress Ms Wilson’s name. Authority on the meaning of extreme in this context is relatively sparse. Plainly a high level of hardship is contemplated, and something more than undue or simply disproportionate to the circumstances. The Law Commission referred to hardship “out of all proportion to the public interest in open justice in the particular case, especially if the person suffers from physical or mental

ill health.”⁵ It also stated:⁶

Extreme hardship has been described as hardship that is excessive in the particular circumstances of the case, even when viewed in relation to the context of the concerns underlying the legislation (such as preventing repeat offenders having access to vehicles, and preventing accidents and injuries on the roads).

[25] The Law Commission also opined that it is an objective test, not based on the how the particular offender may perceive the extent of the hardship.

[26] Collins J in R v N also observed that a “very high level of hardship must be established”,⁷ and cited Adams on Criminal Law, where it is said that it may be helpful to consider whether the hardship would be out of all proportion to the public interest in open justice.⁸

[27] I agree with Collins J that a very high level of hardship must be established. I

express no concluded view on whether it must reach a level “out of all proportion to the public interest”. But plainly it must be something out of the ordinary.⁹ It also

⁴ Section 200(2)(e) (endanger the safety of any person) could be said to be triggered – see K v Inland Revenue Department [2013] NZHC 2426. In any event its broad thrust is addressed in my judgment at [45] and [46] dealing with s 200(2)(a).

⁵ _{Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [3.36].}

⁶ _{At [3.38] citing Police v Rihari HC Whangarei AP10/98 23 July 1998.}

⁷ _{R v N [2012] NZHC 2042 at [21].}

⁸ _{At [24].}

⁹ Refer also Stewart v Police [2013] NZHC 1280 at [13].

seems to me that the key issue is whether I am satisfied that publication will result in extreme hardship to the defendant, having regard to the characteristics of the defendant and to the circumstances of the offending. The first limb is concerned with the likely effect of publication on the defendant, and the second limb is concerned with whether that effect is excessive in light of the offending.

[28] The Court must then address the wider question of proportionality, having regard to the public interest generally in open reporting and in terms of the specific facts of the case. For this reason, even if “extreme hardship” is established, I must in any event still be satisfied that the strong presumption in favour of open reporting is

displaced.¹⁰

[29] In this regard it is apt to recall the following important matters identified by the Court of Appeal for consideration in Lewis v Wilson and Horton Ltd, namely:¹¹

• 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

¹⁰ _{BL v R [2013] NZHC 2878.}

¹¹ Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].

open justice in the particular case is required to displace the presumption in favour of reporting. (Footnotes omitted)

[30] This guiding authority, and subsequent appellate authority, confirm that there must be compelling reasons and or very special circumstances for making an order for permanent suppression.¹²

[31] A special factor in this case is Ms Wilson’s youth. Ms Wilson was 17 at the time of the offending and 18 at the time of sentencing. She turned 19 in October last year. I consider that her age triggers consideration of the United Nations Convention on the Rights of the Child (UNCROC) 1989, to which New Zealand is a party. UNCROC defines a child as everyone below 18 years unless under domestic law is attained earlier, which is not the case in New Zealand. While Ms Wilson is now 19, her offending for which she is now accountable occurred when she was, by definition, a child. I do not think that the short time that has elapsed since then should preclude the application of the principle that a young person’s “best interests” is a primary consideration.

[32] Further support for the proposition that youth is a important consideration can be found in the decision of the Court of Appeal in Churchward v R¹³ dealing with sentencing of youth. Ms Churchward was found guilty of murder. She was 17 at the time. She was (by my reckoning) about 19 when the Court’s decision on the appeal on her sentence was released. The Court observed:¹⁴

Effect of youth

[76] We accept the submission made on behalf of Ms Churchward that, although there is no automatic displacement of a 17 year minimum period on the basis of youth alone, the age of a defendant can be a mitigating factor and falls naturally for consideration under the broadly worded test of “manifestly unjust”. We refer to s 8(g) of the Sentencing Act, and s 25(i) of the New Zealand Bill of Rights Act 1990 (Bill of Rights), which affirms:

The right, in the case of a child, to be dealt with in a manner that takes account of the child‟s age.

¹² As I said in R v UGT, above n 8, and see Re Victim X [2003] 3 NZLR 220 (CA) at [37] and

_{R v B CA4/05, 21 April 2005 at [30].}

¹³ Churchward v R [2011] NZCA 531.

[77] Youth has been held to be relevant to sentencing in the following ways:

(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

[78] Additional factors recognised by the England and Wales Sentencing Guidelines Council are: offending by a young person is frequently a phase which passes fairly rapidly and thus a well-balanced reaction is required in order to avoid alienating the young person from society; and criminal convictions at this stage of a person‟s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society.

[79] Looking at these related factors in more detail, we note first the matters discussed by Dr Chaplow as to the differences between young people and adults. As he notes, there is a growing body of scientific evidence on adolescent brain development that demonstrates that young people are significantly different to adults.

(Footnotes omitted)

[33] The Court also cited with apparent approval the following observations

(among others):¹⁵

(a) The ability to make wise judgments is the last part of the brain to develop;

(b) Adolescents are prone to react with gut instincts and impulsive and aggressive behaviour;

(c) The potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law;

(d) From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed;¹⁶

(e) Children’s crimes may stem from immature judgment, from youthful

vulnerability to error, impulse and to influence;¹⁷

(f) The effect of imprisonment on youth differs from the effect of imprisonment on youth in that adolescents experience high levels of depression, anxiety, suicidal ideation and self injury behaviour, and victimisation from other inmates whilst incarcerated;¹⁸

(g) The young first offender should not be regarded as beyond help even after serious offending unless there is no escape from the conclusion;¹⁹

(h) The gravity of a young offender’s offending has necessarily to be balanced against the need to consider his rehabilitation and reintegration into society.²⁰

[34] Balanced against this the Court also observed:ⁱ

[84] As was noted in R v Rapira, however, where the offending is grave, the scope to take account of youth may be greatly circumscribed. This is because the very factors that may lead young people to offend may cause concerns about future public safety. There is also the need for denunciation and deterrence, both specific to the offender and general. This Court summarised the relevance of youth to sentencing in Pouwhare v R as follows:

... the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness

¹⁶ _{Quoting from Roper v Simmons [2005] USSC 2017; 543 US 551 (2005) at 570.}

¹⁷ Quoting from Centre for Child Law v Minister for Justice and Constitutional Development

_{[2009] ZACC 18, (2009) Z SACR 477.}

¹⁸ _{Citing R v Slade [2005] 2 NZLR 526 (CA).}

¹⁹ _{Citing R v Cuckow CA312/91, 17 December 1991 at 10.}

²⁰ Citing R v K (2003) 20 CRNZ 62 (CA) at [22].

of the offending, the young person’s part in it, anything aggravating

_{and otherwise mitigating must also be weighed.}

Assessment

[35] Given the foregoing, I propose to:

(a) Examine whether publication of Ms Wilson’s name would result in

extreme hardship to her; and

(b) If so, whether the presumption in favour of the open reporting is displaced in the circumstances.

Extreme hardship?

[36] There are two related factors calling for consideration in terms of the issue of hardship. First, it is claimed that Ms Wilson will suffer significant emotional distress if her name is published. Second, publication may greatly set back Ms Wilson’s rehabilitation.

Emotional distress

[37] There can be no bright line threshold for when emotional distress will amount to extreme hardship. But I consider that where emotional distress is raised as a basis for suppression, there must be probative evidence that publication may result in a severe impact on the mental health of the offender.

[38] In the present case, Mr Metoui observes that it is highly probable that Ms Wilson’s mental health would acutely decline and in the form of a relapse of the anxiety and depressive symptoms she previously experienced. He concludes that her “risk of suicide can certainly not be excluded in the event of publication of her name”. In reaching this conclusion he has drawn on the static risks factors for suicide, noting among other things that her age alone places her in the highest risk band whilst acknowledging that other factors are not present. It is also observed that Ms Wilson did not present with a history of mental disorder and does not have a history of suicidal or deliberate self harm behaviour.

[39] Mr Metoui’s very careful analysis is to be commended and I am satisfied that Ms Wilson is likely to suffer significant emotional distress if her name is published. But I am not persuaded that publication is likely to result in the type or scale of extreme emotional hardship contemplated by s 200(2)(a). The vast majority of offenders will be greatly affected by the publication of their offending, especially of the kind currently under scrutiny, and this may result in significant emotional distress, including depressive symptoms such that the risk of suicide cannot be discounted. In my view however, something more than this is necessary in order to

qualify as extreme, as was the case in BL v R²¹ where there was evidence of a high

risk of suicide and post traumatic stress syndrome that could not be mitigated by available protective structures. By comparison, Mr Metoui’s conclusion that the risk of suicide cannot be excluded is not sufficiently compelling to signal the need for suppression.

[40] Relevantly, Ms Wilson will be subject to ongoing home detention for some two to three months. This, together with counselling should provide some (though I accept limited) protection against the latent risk of suicide identified by Mr Metoui.²²

Rehabilitation

[41] Both Mr Metoui and Ms Wilson’s probation officer have expressed concern about the effect of publication on Ms Wilson’s rehabilitation. This is relevant to the assessment of extreme hardship, as well as the residual discretion to suppress. I have detailed above the many reasons why it is important to consider the impact on youth of criminal processes and I think that the same principles and factual observations apply with equal force to the assessment of the effect of publication on youth. Furthermore, in exercising any discretion that affects a young person, I am obliged to have regard to UNCROC and the values it espouses, unless directed not to do so by

_Parliament.²³

²¹ _{BL v R, above n 16.}

²² _{Compare with R v Suttie [2007] NZCA 201.}

²³ It is now orthodox to interpret legislation where possible consistently with international convention. See Tavita v Minister for Immigration CP 422/93, 3 November 1993; Ye v Minister of Immigration [2009] 2 NZLR 596 (CA). Note: successfully appealed on unrelated grounds (Ye v Minister of Immigration [2009] NZSC 76).

[42] There can be little doubt that publication of Ms Wilson’s name will affect her rehabilitation. While I am not convinced by the evidence that there is a serious risk of suicide, I accept that she will suffer significant emotional distress if her name is published and that this, combined with the fact of publication, will greatly impair her ability to re-integrate into the community and start afresh. Exacerbating matters, the blackmail offending implies (at least) moral culpability for the victim’s death. While Ms Wilson accepted that her blackmailing must have contributed to the circumstances leading to the death of the victim, I am unable to form a view as to the full circumstances of the victim’s apparent suicide and it would be improper to draw any greater adverse inference against Ms Wilson than the concession she has rightly made. So to attribute greater culpability to her now would be unfair and unjustified. Yet, there is a real risk that significant if not full culpability will be attributed to her on publication of her name, without prospect of the full facts emerging. That is likely to have an effect on her ability to socialise and among other things obtain employment, beyond the ordinary effect of a conviction for blackmail. When her youth is then taken into account, the effect of publication is likely to be disproportionate to her circumstances and conviction.

[43] I am nevertheless obliged to apply the threshold test of “extreme” hardship, and I am unable to say that the consequences for Ms Wilson qualify. While there is likely to be a period of public opprobrium and consequential hardship to Ms Wilson, the scale of effect is not so severe or disproportionate to the insidious nature of the blackmail offending to be said to be extreme. I distinguish this from the case of R v UGT where the offending occurred in the most tragic of circumstances and the manslaughter of a close friend. In that case, the impact on UGT of publication would have been in my assessment extreme and utterly disproportionate to his culpability.

[44] I wish to record however that my assessment is finely balanced. Furthermore, this judgment should serve as a record as to Ms Wilson’s culpability and rehabilitation – that is of a young immature woman who unfortunately had learned from her familial context to gain control over others through blackmailing but without clear forethought for the potential consequences of her actions. She has now also made significant inroads into understanding her offending and according to her

probation officer is making genuine attempts to take responsibility for the offending and is committed to not reoffending in the future. I am advised that the probation officer in fact recommended ongoing suppression in light of this progress.

[45] For the reasons given I consider that I am unable to exercise what residual discretion I have to suppress Ms Wilson’s name. I nevertheless propose to record my view on suppression in the event I am wrong on the issue of extreme hardship.

Residual discretion

[46] Open reporting is inherently valuable to our system of justice.²⁴ It is also aligned to freedom of speech, a fundamental right affirmed both by the common law and by statute. Blackmail is an insidious form of offending. It will be rare for permanent suppression to be afforded to blackmailers.²⁵ In combination therefore, the prospect of Ms Wilson obtaining permanent suppression was always small. But in light of her youth, and the potential for suicide, well documented in relation to the young, an assessment of her mental health was undertaken before reaching a final view. Further, as I essayed above, youth is a special factor warranting care. Given

where I have got to on the assessment of the risk presented by Mr Metoui, even with the factors of youth brought into account and the potential effect on her rehabilitation, the nature of her offending demands open justice, and relevantly, the affirmation of the right of the victim’s family to speak freely about the circumstances of A’s death. This further accords with the statutory policy that the views of victims must be taken into account.

[47] I would simply reiterate that the reporting of this matter must be careful to accurately record Ms Wilson’s culpability and acknowledge her youth. The value placed on open reporting is undermined by even the slightest hyperbole and the

_{unfair harm caused by it.}

²⁴ _{R v Liddell [1995] 1 NZLR 538 (CA).}

²⁵ Though I have done so: R v G [2013] NZHC 673.

Outcome

[48] Interim name suppression shall be lifted. I will defer the publication of this judgment for five working days from the date of this judgment to enable Ms Wilson to consider whether she wishes to appeal this judgment. If she does, she must advise this Court accordingly and suppression shall remain in place pending the resolution of the appeal.

[49] I also invite submissions within that period on whether the details of

Ms Wilson’s psychological assessment should be suppressed.

Addendum

[50] The Crown did not oppose suppression of the details of Ms Wilson’s psychological assessment. I consider that to be appropriate in all of the circumstances.

[51] Accordingly there shall be an order suppressing the details of the psychological assessment but otherwise interim name suppression is revoked.

Solicitors:

Raymond Donnelly & Co, Christchurch

K H Cook, Christchurch

ⁱ Churchward v R, above n 19, at [84].