D v Police
[2025] NZHC 1890
•11 July 2025
NOTE: THIS JUDGMENT HAS BEEN REDACTED TO COMPLY WITH S 182 OF THE FAMILY VIOLENCE ACT 2018 IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2025-412-41
[2025] NZHC 1890
BETWEEN D
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 July 2025 Appearances:
B P Stephenson for Appellant J C Collins for Respondent
Judgment:
11 July 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 11 July 2025 at 9.45 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
D v NEW ZEALAND POLICE [2025] NZHC 1890 [11 July 2025]
Introduction
[1] D pleaded guilty to two charges: possession of cannabis for supply1 and assault with intent to injure.2 On 29 April 2025, Mr D was sentenced by Judge Robinson to a short-term sentence of imprisonment and including a release condition not to associate with the victim of his offending without prior approval of a probation officer.3
[2] Mr D now appeals the decision to impose this release condition on the ground it was not reasonably necessary and proportional to the risk of further harm or offending against the victim.
Facts
[3] Mr D had been in a relationship with the victim for about six months. On 5 September 2024, a verbal argument began after the victim opened a can of soft drink which spilled on the bed. Mr D became angry, believing she had done this on purpose.
[4] He grabbed the can and hit the victim in the eye and face a few times. This caused a large bruise and swelling to her right eye and she later suffered vomiting and a sore head over a period of days. Medical attention was sought. The victim impact statement confirms she suffered a delayed concussion.
[5] The police were called. While at Mr D’s address, they noted a strong smell of cannabis and invoked their warrantless search powers. Mr D told the police he had a large amount of cannabis in the house. That cannabis was located in a reusable shopping bag, inside a shared wardrobe. It was in various sealed plastic bags, with a total weight of 156 grams of cannabis.
District Court decision
[6] When sentencing Mr D, the Judge took a combined starting point of 30 months’ imprisonment (being 18 months on the drug charge and 12 months on the assault). He then uplifted this by 10 per cent for the appellant’s relevant history.
1 Misuse of Drugs Act 1975, s 6; maximum penalty eight years’ imprisonment.
2 Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3 Police v [D] [2025] NZDC 9390.
[7] The Judge then reduced the sentence by 20 per cent to reflect the appellant’s guilty plea, five per cent to recognise remorse, and 10 per cent to reflect the appellant’s background and insight. This resulted in an end sentence of 22 months’ imprisonment.
[8] Both home detention and intensive supervision were considered, but the Judge determined these would not provide sufficiently for deterrence or for the safety of the victim. In that regard, the Judge noted the victim impact statement where the victim spoke of her physical injuries but was conciliatory towards Mr D. The Judge recorded that her support of Mr D “actually reflects her own vulnerabilities and need for financial support as well as support for her background”4 and went on to say that he was concerned “that in a large part her conciliatory statements are more about her needs which are contrary to her interests.”5
[9] The Judge acknowledged Mr D’s “appalling history of attendances in family violence matters” which directly informed the release conditions he decided to impose.6 One of the special conditions he imposed was “not to associate or contact with the victim of your offending without the prior written approval of a probation officer”.7 The Judge also imposed a final protection order in favour of the victim.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
4 At [8].
5 At [9].
6 At [9].
7 At [28(d)].
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
[11] The power to impose a special condition is limited by s 93(3) of the Criminal Procedure Act.11 A special condition must not be imposed unless it is designed to reduce the risk of reoffending; facilitate or promote rehabilitation and reintegration; or provide for the reasonable concerns of victims.12 The Court of Appeal in Patterson confirms this power must be exercised consistently with the principles and purposes of sentencing, and that special conditions must be reasonably necessary and proportional.13
Submissions
Appellant’s submissions
[12] Mr Stephenson, for the appellant, does not seek to challenge any aspect of the sentencing other than the non-association condition.
[13] Counsel accepts there is a rational nexus between the non-association condition and reducing the risk of reoffending, in particular the risk of violent offending against the victim. However, counsel submits this condition is not necessary and proportionate to the risk posed.
[14] Counsel says the Judge, in assessing the appellant’s risk profile, should have taken into account the safety plan prepared by the appellant and his expressions of insight into the cause of his violent offending. Mr Stephenson submits that Mr D’s safety plan is considered and detailed. He has thought carefully about the relationship dynamics and what triggers him.
[15] Counsel accepts that there are concerns about co-dependency with the appellant and the victim, recognising the victim outlined her financial struggles and said she needs ongoing support from the appellant. However, Mr Stephenson notes the victim holds the appellant accountable for his offending, standing by her decisions to report the incident to police and request a protection order. Counsel submits that the victim would retain control over whether the appellant could associate with her
11 Patterson v R [2017] NZCA 66 at [15].
12 Criminal Procedure Act, s 93(3).
13 Patterson v R, above n 11, at [16]–[17].
through the protection order and that this is not a situation where a special condition is required to control this association.
[16] Importantly, both the victim and the appellant have shown they have a good understanding of the needs of the other party. Mr Stephenson submits that leaving the power in the hands of the victim will likely aid in Mr D’s rehabilitation as well. In his letter to the Court, Mr D has expressed a willingness to engage in counselling, and to attend Narcotics Anonymous meetings. His willingness to do this will be reinforced by the other special conditions that are in place, and having the victim in his life will provide emotional support to keep him focused on those goals.
Respondent’s submissions
[17] Mr Collins, for the respondent, submits the non-association condition is necessary and proportionate to manage the risk of reoffending, in light of the appellant’s history of family violence offending against this and other victims. The appellant also has five previous convictions for contravening protection orders. Mr Collins submits this contradicts any submission that the protection order alone will be fully protective of this victim, given that such orders have been disregarded by Mr D in the past.
[18] Mr Collins refers to cases where non-association conditions were upheld on appeal as follows:
(a)Thompson v Police:14 where the appellant had a history of family violence against the same victim, the imposition of the condition was considered necessary to create a framework to reduce the appellant’s high risk of reoffending and promote the rehabilitation and reintegration of the appellant.
(b)Tuhakaraina v Police:15 where conditions were imposed that separated the appellant from his partner for six months (following a minor assault charge), and the conditions were regarded on appeal as having a rational
14 Thompson v Police [2020] NZHC 20.
15 Tuhakaraina v Police [2021] NZHC 1937.
nexus to the offence and being proportionate to the offence because they were designed to facilitate his staged reintegration back into the family home in the context of a substantial history of family violence.
(c)Patterson v R:16 where similar conditions were justified on the need to reintegrate and rehabilitate offenders following their release and to prevent the risk of reoffending while they re-establish themselves in the community.
[19] Mr Collins says that concerns remain about the victim’s vulnerability. This is heightened by the content of both her victim impact statement and the appellant’s letter.
Analysis
[20] The only issue on appeal is whether the condition limiting Mr D’s ability to associate with the victim is necessary or proportionate to the risk he poses to her.
[21] All counsel accept, and I agree, there is a rational nexus between the non-association condition and the risk of reoffending. The only issue is whether it is a disproportionate response given the existence of the protection order and in light of the other steps the Mr D has taken to address the root causes of the offending and the victim’s views.
[22] The starting point is that the victim is clearly vulnerable. She acknowledges that she does “have a vulnerability disorder” and says she has been known to have had “Stockholm syndrome”.17 While she says that she is working on keeping herself safe, and learning how to set “new and improved boundaries”, it appears that her primary reason for wanting Mr D to live with her is financial, saying “if he does not come out within the next few weeks … I will be homeless once again”, as she is behind in payments for rent, storage and bills.
16 Patterson v R, above n 11, at [22].
17 Being a term used to describe the psychological response where a person develops positive feelings towards their captor or abuser despite the trauma or abuse they are suffering.
[23] While Mr Stephenson says they will not be able to live together because of the condition as to residence, in my view, this is still the very antithesis of a situation where the victim can exercise control and independent decision making. If, as she says, she is entirely financially dependent on Mr D, it is entirely conceivable that she would not be able to exercise autonomy should he offend against her again.
[24] Similarly, while it is commendable that Mr D is now participating in counselling and has developed a safety plan to avoid the anger management issues that led to an assault, it is clear that managing his addictions is a critical element of his rehabilitation.18
[25] Given their respective vulnerabilities, it was, in my view, entirely reasonable for the Judge to place constraints on their interactions in the first six months after Mr D’s release from prison. It does not preclude their interaction, but such interactions will only occur in situations which are considered by a probation officer to be appropriately managed.
[26] The thrust of Mr D’s and the victim’s representations to the Court seem to envisage that he would be able to contact her freely as long as she agrees, with the only protection being her ability to rescind that permission, relying on the protection order. However, in my view, Mr D needs to demonstrate his commitment and motivation to change before he is allowed to interact with the victim without any independent controls. That should only occur once a suitable period of supervision and reintegration has occurred, under the oversight of a probation officer.
[27] For all these reasons, I am satisfied the Judge did not err in imposing the non-association condition.
Result
[28]The appeal is dismissed.
Solicitors:
Public Defence Service, Dunedin Crown Solicitor, Dunedin
18 See the alcohol and other drug report prepared for Mr D for sentencing.
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