Armstrong (Department of Corrections) v Nicholas
[2018] NZHC 5
•16 January 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-006230
[2018] NZHC 5
UNDER Section 94(3)(a) of the Sentencing Act 2002 BETWEEN
FRANCES ARMSTRONG
(Probation Officer on Behalf of the Department of Corrections) Applicant
AND
SEAN CLIFFORD NICHOLAS
Respondent
Hearing: 16 January 2018 Counsel:
E I Woolley and N B Porter for the Applicant A A Prasad for the Respondent
Judgment:
16 January 2018
Reasons:
17 January 2018
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 17 January 2018 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Ministry of Justice (Public Defence Service), Auckland
ARMSTRONG (on Behalf of the Department of Corrections) v NICHOLAS [2018] NZHC 5 [16 January 2018]
Introduction
[1] In June 2017, Mr Nicholas entered a high rise building with a home-made bomb and threatened to blow up himself and the building. He pleaded guilty to one charge of threats to harm people/property, and one charge of breach of release conditions.
[2] On 8 December 2017, Brewer J sentenced Mr Nicholas to 14 months’ imprisonment. Due to the time served in custody prior to sentence, he is due to be released on 17 January 2018.
[3] Ms Armstrong is Mr Nicholas’ probation officer. She applies for a variation to Mr Nicholas’ standard release conditions to impose additional special conditions on Mr Nicholas’ release.
[4] The application came before me as Duty Judge on 15 January 2017. I convened a telephone conference with counsel on that day, and subsequently scheduled a hearing on the afternoon of 16 January 2017. The matter has accordingly been dealt with under some urgency.
[5] At the conclusion of the hearing, I gave an oral results judgment and imposed additional conditions on Mr Nicholas’ release. I reserved my decision on the imposition of conditions 3 and 4 which relate to GPS monitoring of an exclusion zone. My reasons for imposing the additional conditions, and my decision on the GPS monitoring conditions, now follow.
Relevant background
[6] Mr Nicholas is a 46-year old male. He suffers from a number of health conditions, principally fibromyalgia which means that he suffers from continual pain and is confined to a wheelchair. He also has various mental health problems, and has been diagnosed with a personality disorder, with paranoia, antisocial and borderline traits.
[7] Mr Nicholas’ criminal history includes convictions for offending similar in nature to that for which he was sentenced in December, namely:
(a)On 17 June 2013, he purchased a pistol and entered a bank in the afternoon. He pointed the pistol at a staff member and demanded she call the police. The summary of facts for this offending records that when the police started to arrive, Mr Nicholas moved to the glass fronted entranceway and raised the pistol to his head whilst looking directly at police staff. The bank staff present were all hiding at the time. Mr Nicholas told staff to “get the police to shoot me in the head or my heart”. After a period of time, Mr Nicholas put the gun down and the staff members were able to leave.
(b)On the afternoon of 8 June 2015, Mr Nicholas went into The Warehouse in downtown Auckland and purchased a rope, a lighter, and some mineral turpentine. He entered the New Zealand Stock Exchange and asked to use the toilet. He then emerged a few minutes later in a distressed state and saying that he wanted to hang himself from the window. As the receptionist picked up the phone to call police, Mr Nicholas yelled out that he had a bomb and was going to blow himself up. He then removed the rope and began tying it around his neck to tighten it in an attempt to strangle himself. He then produced a lighter in his hand. Police were called. On a search of Mr Nicholas’ bag they found a large knife, handwritten material on how to make a bomb, the required ingredients, and other miscellaneous items.
[8] Mr Nicholas also has convictions for unlawfully possessing a firearm from 2014 and 2015, burglary with a weapon, assault on police, offensive behaviour and wilful damage. Relevantly, he has previous convictions for breach of release conditions.
[9] The pre-sentence report for the sentencing before Brewer J recorded Mr Nicholas as posing a high and continuing risk to the public. A number of special conditions were proposed in the pre-sentence report, including submission to
electronic monitoring in the form of GPS technology in order to monitor compliance with conditions relating to his whereabouts. The proposed special conditions also included a prohibition on entering an exclusion zone around Penrose without the prior written approval from a probation officer. Although these conditions were mentioned in the pre-sentence report, they were not specifically sought by the Crown at sentencing, and I am told they were not the subject of submissions at the sentencing hearing. Brewer J did not impose any release conditions.
[10] Prior to sentencing, the Crown had identified a residential facility which was willing to offer Mr Nicholas a place on his release. At that time, Mr Nicholas was willing to attend that facility. However, a place at that residential facility could not be confirmed. Since then, the Goodwood Park facility has been identified as a suitable place for the residential care and support for Mr Nicholas on release. That facility includes specialist services for those with mental health issues and those who have recently been released from prison.
[11] Ms Armstrong seeks the imposition of further release conditions to provide for Mr Nicholas’ residence at that facility and participation in that treatment programme. Additional conditions are also sought to mitigate Mr Nicholas’ high risk of re- offending.
Current conditions and the conditions sought
[12] Mr Nicholas is automatically subject to standard release conditions pursuant to s 93(2) of the Sentencing Act 2002. Those conditions are specified in s 14 of the Parole Act 2002 and are as follows:
(a)the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after release:
(b)the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so:
(c)the offender must not move to a new residential address in another probation area without the prior written consent of the probation officer:
(d)if consent is given under paragraph (c), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender's arrival in the new area:
(e)if an offender intends to change his or her residential address within a probation area, the offender must give the probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:
(f)the offender must not reside at any address at which a probation officer has directed the offender not to reside:
(fa)the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:
(fb)the offender must, if a probation officer directs, allow the collection of biometric information:
(g)the offender must not engage, or continue to engage, in any employment or occupation in which the probation officer has directed the offender not to engage or continue to engage:
(h)the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:
(i)the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
[13] In addition, Mr Nicholas is subject to existing release conditions in relation to previous convictions for unlawfully carrying a firearm. These conditions were imposed on 29 January 2016 and are due to expire on 6 April 2018. Those conditions are as follows:
(a)To reside at any address directed to in writing by your probation officer and not to move from that address unless approved to do so in writing by your probation officer.
(b)To treat any property appropriately and abide by the rules of the accommodation provider.
(c)Not to access websites, or possess literature relating to weapon use, including firearms and explosives.
(d)Not to be in possession of any precursor materials, in any one location that in combination can be used to create any form of explosive device.
(e)To make reasonable efforts to co-operate with any probation officer during the course of efforts to find you an approved place of residence and to remain in that residence, including (but not limited to):
(f)Attending meetings with prospective landlords and conducting yourself appropriately during those meetings.
(g)Completing the necessary paperwork and other administration tasks.
(h)Behaving appropriately while living at the residence and not giving the property owner or leaseholder reason to decide to evict you.
(i)Paying the rent on time.
[14]The conditions which are sought to be imposed are as follows:
1.To participate in, and comply with all aspects of, the re-integrative residential programme provided by the approved provider as directed by your probation officer and comply with the rules of the programme to the satisfaction of the provider and the probation officer;
2.To reside at an address as directed by the approved re-integrative residential provider and not to move to any new residential address without the prior written approval of a probation officer;
3.To submit to electronic monitoring in the form of global positioning system (GPS) technology as directed by a probation officer in order to monitor compliance with any conditions relating to your whereabouts and/or overnight;
4.To comply with the requirements of electronic monitoring, and provide access to the approved residential address to the probation officer and the representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment, as directed by the probation officer;
5.Not to leave your approved residential address between the hours of 2000 hours and 0800 hours (being between 8.00 pm and 8.00 am) without prior written permission of a probation officer;
6.Not to enter electrical and hardware stores including “The Warehouse” where chemicals or electricals components are sold, except in the presence and under the direct supervision of an adult approved in writing by a probation officer;
7.Not to be in possession of any precursor materials, in any one location that in combination can be used to create any form of explosive device;
8.Not to access websites, or possess literature relating to weapon use, including firearms or explosives;
9.To attend and complete any psychological treatment/education/ training/counselling as recommended by a probation officer and to the satisfaction of a probation officer;
10.With the consent of the defendant, take any prescribed medication as directed by health care professionals;
11.Not to consume, possess or be found under the influence of alcohol, drugs not prescribed to you, solvents or psychoactive substances; and
12 Not to enter the exclusion zone around Penrose identified as a five kilometre radius around 666 Great South Road on a map prepared by a probation officer unless you have the prior written approval from a probation officer.1
The jurisdiction to impose additional release conditions
[15] Under s 93(2)(a) of the Sentencing Act, if a court sentences an offender to a term of imprisonment between 12 months and 24 months, the standard conditions apply until the sentence expiry date unless the court specifies a different date. Furthermore, ss 94, 95 and 96 apply as if the standard conditions had been imposed by the court.
[16] Section 93(2)(b) empowers the court to impose special conditions on an offender. The special conditions include, without limitation, conditions of a kind described in s 15(3) of the Parole Act 2002 (other than a residential restriction condition of the type set out in s 15(3)(ab) which does not apply in this case). Under s 93(3), a special condition must not be imposed unless it is designed to:
…
(a)reduce the risk of reoffending by the offender; or
(b)facilitate or promote the rehabilitation and reintegration of the offender; or
(c)provide for the reasonable concerns of victims of the offender.
[17] Section 94 of the Sentencing Act provides that a court, if it sees fit, may suspend any condition or vary the duration of any condition or impose additional conditions. There are no express limits on the face of the section as to the type of the condition which may be imposed.
1 This condition was sought during the course of the hearing.
[18] However, I consider any additional conditions to be imposed must also meet the specified purposes in s 93(3) above. Furthermore, as the Court of Appeal held in Patterson v R, any condition imposed must be tailored to the offender’s circumstances, address the particular risk of re-offending, or prospects of rehabilitation, or victims. In addition, the least restrictive sentence principle would also apply. Overall, the condition to be imposed must be reasonably necessary and proportionate.2
Should the conditions be imposed?
[19] Ms Prasad submits that the conditions which are now sought effectively amount to a re-sentencing exercise, and they should have been sought at the original sentencing. She submits that special conditions were listed in the pre-sentence report which was before Brewer J but they were not imposed.
[20] I agree with Ms Prasad that many of the conditions now sought should have been sought at sentencing. Although they were listed in the pre-sentence report, they were not specifically referred to by counsel for the Crown as being sought and did not feature in the sentencing at all. However, s 94 expressly allows for additional conditions to be imposed after sentencing. Furthermore, a residential facility has now been identified for Mr Nicholas post-release and so it is appropriate that additional conditions are considered at this stage.
Conditions 2, 5, 7, 8, 10, 11 and 12
[21]Mr Nicholas does not oppose the addition of conditions 2, 5, 7, 8, 10, 11 and
12. I am satisfied that those conditions assist in Mr Nicholas’ rehabilitation and will also help mitigate the risk of re-offending. They are both reasonably necessary and proportionate. Those conditions are imposed by consent.
Condition 1
[22] Mr Nicholas opposes condition 1 unless he is provided with a mobility scooter. In addition, Ms Prasad submits that condition 1 overlaps with an existing special release condition which allows a probation officer to direct Mr Nicholas to reside at a
2 Patterson v R [2017] NZCA 66.
certain place. She also points out that the second part of condition 1 is unnecessary as it duplicates the first part of the condition.
[23] As matters currently stand, Mr Nicholas does not have a place to reside after his release from prison. He has accepted that he needs treatment and is generally open to residing at a facility. Attendance at a residential programme will assist with his reintegration and rehabilitation, and will also assist in mitigating the high risk of re- offending.
[24] Although there is some overlap with an existing special release condition, the proposed condition 1 also requires Mr Nicholas to engage with the residential treatment programme, and comply with its requirements. I accept that such engagement is necessary to assist with rehabilitation and reintegration. The Goodwood Park facility is not simply a place to live. Although the second part of the condition is somewhat repetitive of the first part of the condition, it stipulates the standard of compliance required of Mr Nicholas.
[25] In terms of the mobility scooter, Ms Woolley advises that the Department has sought funding for a mobility scooter for Mr Nicholas, but they cannot guarantee the provision of a mobility scooter. I acknowledge Mr Nicholas’ frustrations, but I do not consider the imposition of the condition without the guaranteed provision of a mobility scooter is unduly onerous or burdensome. It is essential that Mr Nicholas has a safe place to live and to receive the treatment he requires. I am satisfied that condition 1 is both necessary and proportionate.
Conditions 3 and 4
[26]Mr Nicholas opposes conditions 3 and 4 which relate to GPS monitoring.
[27] Ms Woolley submits that GPS monitoring is not sought for the purpose of ensuring that the defendant does not leave the residential provider facility. Rather, it is sought to ensure compliance with the “whereabouts” conditions imposed. Those include the curfew condition imposed by consent, and the condition relating to the exclusion zone which is also imposed by consent.
[28] Ms Prasad submits that the GPS monitoring is neither necessary, nor proportionate. She submits that it is an invasion of Mr Nicholas’ privacy.
[29] I do not consider that GPS monitoring of the curfew condition is necessary in this case. Mr Nicholas has consented to the curfew condition. That adequately mitigates his risk of re-offending in my view. Mr Nicholas’ prior offending was not committed at night. To the contrary, it was committed during the daytime in a public place. Further monitoring of the curfew condition is accordingly neither necessary, nor proportionate.
[30] There is a closer nexus between GPS monitoring of the exclusion zone condition and the risk of re-offending posed by Mr Nicholas. That exclusion zone applies to a five kilometre radius of 666 Great South Road. The index offending was committed at 666 Great South Road. Mr Nicholas has previously offended at this address. The address comprises multiple high-rise buildings containing a number of different businesses. I accept Ms Woolley’s submission that Mr Nicholas appears to have a fascination for this particular address, and the buildings located at that address.
[31] In addition, Mr Nicholas has a history of breach of his release conditions. The index offending for which he was sentenced in December included a breach of his release conditions. He has four other convictions for breach of release conditions committed since 2015. Accordingly, the condition regarding the exclusion zone does not, alone, mitigate the risk of re-offending.
[32] That risk has been assessed as being high. The nature of Mr Nicholas’ offending places members of the public directly at risk. If Mr Nicholas was to follow through on his threats of blowing up a building or business, it could cause widespread harm.
[33] If the GPS monitoring condition is limited to ensuring compliance with the exclusion zone condition only, then it will be tailored to meet the specific risks posed by Mr Nicholas post-release. Although Mr Nicholas would be required to wear an electronic anklet, it would only send an alert to the monitoring team if he entered the
five kilometre radius around the address at 666 Great South Road. In that respect, the restraint on Mr Nicholas will be the minimum required to mitigate the risk.
[34] I am satisfied that, given Mr Nicholas’ high risk of re-offending, the nature of the risk to members of the public, and his prior history of non-compliance with release conditions, the imposition of a GPS monitoring condition to ensure compliance with the exclusion zone condition is both necessary and proportionate. Therefore, I grant the application to impose conditions 3 and 4 subject to amendments to tailor it to ensure compliance with condition 12.
Condition 6
[35] Mr Nicholas consents to condition 6, with the exception of the inclusion of The Warehouse. Ms Prasad submits that the prohibition on entering The Warehouse is overly burdensome in the circumstances.
[36] Mr Nicholas’ previous offending included buying various home-made bomb materials from The Warehouse. The inclusion of The Warehouse in the condition is therefore necessary to mitigate the high risk of re-offending presented by Mr Nicholas.
[37] If the condition imposed a blanket ban on Mr Nicholas shopping at The Warehouse, then such a condition would be disproportionate to the risk of re- offending in my view. But the condition does not impose a blanket ban on Mr Nicholas. He is still free to shop at The Warehouse, but he must be in the presence and direct supervision of an adult approved in writing by a probation officer. I consider such a condition to be proportionate, and there is a reasonable nexus between the condition and the particular risk posed by Mr Nicholas.
Condition 9
[38] Mr Nicholas did not initially object to this condition except to the extent that he is directed to undertake actions (e.g. exercises) which might cause him pain. To address his concerns, Ms Woolley proposed adding the word “psychological” before the word “treatment”. Ms Woolley confirmed that there was no intention to make Mr Nicholas undertake any physical exercises. However, despite that change,
Mr Nicholas maintained his objection to this condition unless he obtained a mobility scooter.
[39] I consider the condition, with the proposed amendment, meets Mr Nicholas’ rehabilitative needs and adequately addresses his concerns about being directed to undertake actions which might cause him pain.
When will the conditions expire?
[40] Ms Woolley seeks an expiry date for the imposition of the special conditions so that they will expire at the same time as the standard conditions. Under s 93(2) of the Sentencing Act, the standard conditions apply until the sentence expiry date. Accordingly, the conditions to be imposed will expire on the sentence expiry date and I direct accordingly.
Result
[41] Pursuant to s 94 of the Sentencing Act, I order that the conditions set out in the annexed schedule are to be imposed as conditions of Mr Nicholas’ release and are to expire on the sentence expiry date.
Edwards J
CONDITIONS
1.To participate in, and comply with all aspects of, the re-integrative residential programme provided by the approved provider as directed by your probation officer and comply with the rules of the programme to the satisfaction of the provider and the probation officer;
2.To reside at an address as directed by the approved re-integrative residential provider and not to move to any new residential address without the prior written approval of a probation officer;
3.Not to leave your approved residential address between the hours of 2000 hours and 0800 hours (being between 8.00 pm and 8.00 am) without prior written permission of a probation officer;
4.To submit to electronic monitoring in the form of global positioning system (GPS) technology as directed by a probation officer, in order to monitor compliance with condition 12;
5.To comply with the requirements of electronic monitoring, and to provide access to the approved residential address to the probation officer and the representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment, as directed by the probation officer;
6.Not to enter electrical and hardware stores including “The Warehouse” where chemicals or electricals components are sold, except in the presence and under the direct supervision of an adult approved in writing by a probation officer;
7.Not to be in possession of any precursor materials, in any one location that in combination can be used to create any form of explosive device;
8.Not to access websites, or possess literature relating to weapon use, including firearms or explosives;
9.To attend and complete any psychological treatment / education / training / counselling as recommended by a probation officer and to the satisfaction of a probation officer;
10.With the consent of the defendant, take any prescribed medication as directed by health care professionals;
11.Not to consume, possess or be found under the influence of alcohol, drugs not prescribed to you, solvents or psychoactive substances; and
12.Not to enter the exclusion zone around Penrose identified as a five kilometre radius around 666 Great South Road on a map prepared by a probation officer unless you have the prior written approval from a probation officer.
2