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R v Huizinga [2022] NZDC 8571

Published 01 February 2023

Sentencing — making a false document — discharge without conviction — name suppression — cultural appropriation — freedom of expression — online bullying. Two defendants were for sentence on a charge of making a false document. They both applied for discharge without conviction and permanent name suppression. The first defendant was an artist who had received threats and criticism on social media, alleging that she had misappropriated Maori culture in her artworks. She had also been visited at her gallery by people who were aggrieved over her artworks. Subsequently the defendants became convinced that two individuals (the victims) were responsible for the harassment. The defendants chose to retaliate by creating a poster with threatening messages and distributing it to various local businesses late at night. The defendants deliberately created the impression that it was the victims who had made and distributed the poster. The aim of the offending was to get revenge for the harassment of the first defendant by prompting a police investigation of the victims. The business owners were alarmed at receiving the poster and thought that they were being personally threatened. The victims were upset by the offending and felt misrepresented and disrespected. The Court considered that the defendants had reason to be aggrieved by the harassment that they had been subjected to. However, they were wrong to assert that the police had not acted on their complaints. Also, the defendants did not show true remorse for their offending. The offending was moderately serious, given that it was intended to prompt a criminal investigation of the victims for something that the defendants had actually done. The Court found that the consequences of a conviction did not outweigh the seriousness of the offending. The applications for discharge without conviction were declined. In spite of the defendants' genuine concerns of online harassment, the Court found that the public interest in publishing their names outweighed the risk of extreme hardship to them. To allow publication would provide relief to other local artists and gallery owners who were subject to public rumours about having committed the offending. The name suppression applications were declined. The Court imposed no further penalty apart from convicting the defendants. Judgment Date: 10 May 2022.