I want to see the Criminal Procedure Act changed. I want an addition to Section 200 on suppression of names, and I’ve made it easy for the incoming government by writing the draft clause.
In proceedings related to the sexual abuse and exploitation of minors and the possession of Child Sexual Abuse Material, the name of any person sentenced to a term of imprisonment may be permanently suppressed only when the interests of the juvenile victims of the offence would be compromised by publication.
You may be able to guess what has prompted the call. Frankly, I was outraged when I saw the front page of the New Zealand Herald last Friday and the headline ‘Wealthy offender to keep name secret’.
The offender in question had been jailed for two years and five months after being found with more than 11,000 ‘objectionable publications’ depicting sexual exploitation of children ranging from toddlers to prepubescent girls. Some images were sadistic and one depicted bestiality. He was granted permanent name suppression, as were the name of his family and their high-profile company, and given a discount for making $50,000 charitable donation days before his sentencing date.
The Crown appealed the permanent suppression but last week it lost that appeal. Justice Michael Arthur’s decision said the experience of being arrested and the fear of going to prison was “stressful” for the man and had precipitated a decline in his mental health. Information put before the court showed the man had a long history of mental health difficulties, pre-dating the discovery of his crimes. Reports expressed serious concerns for the man’s mental state should he be publicly identified, and the guilt he would carry about his offending negatively affecting his family and their business. The decision supported the sentencing judge’s decision in suppressing the company’s name after ruling that publication could cause the firm undue hardship and reputational damage “because it might be unfairly linked with the offending”.
I cannot disagree more profoundly. It is yet another example of wealth proving a factor in the way the guilty are treated by the courts.
I am going to set out a number of cases where men have been sentenced to imprisonment on charges relating to child pornography and, in each case, the defendant was named. Then I will invite you to answer a question.
Last August, 20-year-old apprentice butcher Bailey Phillips was sentenced in the Oamaru District Court to three years and nine months imprisonment for the creation, possession, and distribution of material depicting the sexual abuse and exploitation of children. Phillips had had online conversations with a convicted offender.
In January 21-year-old Michael Paul Graham was sentenced in the Tauranga District Court to two years one month imprisonment (commuted to 11 months home detention) on representative charges related to possessing more than 4000 objectionable publications involving child exploitation and abuse. The court heard he had been addicted to such material since the age of 15 and a psychological report placed him on the autism spectrum.
Last December 22-year-old Storm Uriah Constable-Carter was sentenced to more than five years jail after pleading guilty in the Nelson District Court to 50 charges relating to the creation, possession and distribution of child exploitation and bestiality material. From a starting point of 12 years, he was given a combined 55 per cent discount for his guilty plea, young age, undiagnosed psychological issues and other life circumstances.
At the other end of the spectrum is 66-year-old Graeme Bruce King who has been addicted to pornography for decades. Last year he was sentenced in the Westport District Court to four years and nine months in jail after being found with 2.5 million images of child abuse, which he admitted to looking at over the past 40 years. Judge Stephen O’Driscoll said at sentencing that “the defendant is a sad, lonely man and his addiction to the type of material in his possession is reflected in the number of images downloaded”. King suffered sexual abuse as child.
In none of these cases were psychological issues and personal circumstances considered grounds for suppressing their names. Each will return to a town where they will be readily identified and potentially ostracised by a community that quite rightly will not tolerate the harm and exploitation of children. Each of their families may endure public stigma that, in relative terms, is no less than that of the “wealthy family”.
The question I want you to consider is: What makes the member of a wealthy New Zealand family who knowingly possessed similar images so manifestly different from these men?
I know my own answer to that question. The difference is money.
Wealth appears to be a factor in determining impact. In the present case it is the effect on a wealthy family and its business activities. Yet financial impact is relative: To a well-heeled individual, the loss of $100 is annoying. To a family existing on the minimum wage that loss is catastrophic, directly affecting how much food is put on the table. Money is a poor measuring stick when gauging consequence.
However, money is undoubtedly a strong factor in legal process. Those with the means can hire counsel with the talent and resources to use the limits of due process on their behalf.
We saw this in the drawn out proceedings that were used in attempts to keep secret the name of rich-lister James Wallace, accused of sexually assaulting three men. Those moves were ultimately unsuccessful, but they nonetheless went through every stage of the appellant process – up to and including the Supreme Court – which is beyond the means of the average person.
Attempts by the wealthy to hide their transgressions are not new. More than two decades ago Remuera businessman Malcolm Brian Lerner unsuccessfully appealed after a judge refused him permanent name suppression after he was sentenced to community service for possessing images of young boys in sexual poses and of girls being sexually abused by adult men. One of the grounds for seeking suppression was to protect his ability to inherit funds from a trust.
Name suppression is a particular target by well-to-do offenders in this country but their counterparts in other countries have a considerably harder job winning judicial anonymity, if it is available at all.
There was no question, for example, that Ron Brierley could hide behind name suppression when he was arrested in Australia on charges of possessing child sex abuse material. He was named at his first court appearance in 2021 but went on to use the legal system to delay his 14-month prison sentence then to truncate the time he actually spent behind bars. His counsel last year successfully argued against his prosecution on new charges after evidence of dementia was presented.
In the United Kingdom, the rich and famous resort to super-injunctions to suppress inconvenient facts. In the United States the presumption of publication takes an awful lot of effort to overcome through such devices as the sealing of files but hiding the names of those imprisoned is exceedingly rare, if it happens at all.
I believe there are three reasons why the names of those sentenced to imprisonment on child sexual exploitation and abuse should not be suppressed and only one circumstance in which secrecy is warranted.
The first ground for denying suppression is that society has a right to know who has participated in activity that has exploited and irreparably harmed children. Name and shame can have a deterrent effect. It also prevents wrong identification: Two men have so far been wrongly named on social media as the offender in the present case. However, Justice Arthur’s decision stated that avoiding suspicion falling on others is not grounds for refusing to grant suppression. The two men wrongly identified as imprisoned serial paedophiles may beg to differ.
Secondly, the nature of the crime is such that, upon release, the offender may continue to pose a risk to children. Parents have a right to ensure any environment is safe. It also allows the online community to monitor any future suspect activity to limit the ‘market’ for international child pornography (and the creation of yet more victims).
The third, and sometimes overlooked, ground is more general, and not limited to paedophilia. By ensuring those being sentenced to prison are publicly named, society limits the ability of the state to wrongfully imprison people. Open justice is a check on the power of the state, and it extends beyond the dock.
The sole caveat on naming of imprisoned child sex offenders is the circumstance where doing so may identify the victims of abuse. This can be the case, particularly when the offender is a creator or facilitator of child abuse imagery. The victim should not be re-traumatised by public association with the offender, be it a relative or family acquaintance. Suppression is a price worth paying in those circumstances, so long as it becomes mandatory for the prisoner to be placed on the child sex offenders register.
What needs to be removed from the suppression equation in these cases is a claim that identification will cause the defendant “extreme hardship”. The courts maintain that this is a high hurdle and it is certainly an improvement on the “hardship” test that preceded it. However, the “member of a wealthy family” shows the bar is not high enough.
In my opinion, there should be no bar set on hiding the identity of those imprisoned on child pornography charges – only a solid stone wall in which is set a heavy door marked ‘Victims’.