Ellis v The Queen

[2020] NZHC 1969

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-458-70

CRI-2019-458-71 [2020] NZHC 1969

AARON PATRICK JOHN ELLIS

v

THE QUEEN

Hearing:

4 August 2020

Appearances:

S J Fraser for the Appellant

G J Burston for the Respondent

Judgment:

6 August 2020

JUDGMENT OF COOKE J

[1]                 The appellant, Mr Ellis, was sentenced on 11 October last year to a range of charges.1 The sentence under appeal is 17 months’ imprisonment imposed for two charges of breach of protection order.2 Seven special release conditions were imposed, to be in place for six months after the sentence expiry date.

[2]                 Mr Ellis appeals his sentence on the grounds the sentence did not fairly reflect the sentence indication he accepted and which he entered guilty pleas to, and that the release conditions had no proper basis for being imposed. He invites the Court to cancel the special release conditions, or alternatively, to change the end date of the

1      R v Ellis [2019] NZDC 20881.

2      Family Violence Act 2018, s 112, maximum penalty three years’ imprisonment.

ELLIS v R [2020] NZHC 1969 [6 August 2020]

special conditions so they terminate at the end of the sentence rather than six months’ after the sentence expires.

Factual background

[3]                 Mr Ellis pleaded guilty to two representative charges of breach of protection order occurring over a 14 month period between May 2018 and July 2019. The charges relate to a number of occasions where Mr Ellis breached the order by contacting the victim via voicemail, text, and letters.

[4]                 The victim is Mr Ellis’ former partner. The two were in a relationship for 12 months and have two young children together. They separated in March 2018. There have been eight previous family harm incidents between them. On Friday 23 March 2018 a temporary protection order was issued from the Levin District Court. The order named the victim as the protected person and Mr Ellis as the defendant.

[5]                 Between Sunday 13 May 2018 and Wednesday 16 May 2018 Mr Ellis called and texted the victim multiple times. On Wednesday 16 May at 11.15 am the victim sent Mr Ellis a text saying “don’t contact me ever again or come to my house Aaron aka Matama you have been warned”.

[6]                 Over the following nine days Mr Ellis sent the victim 139 text messages and called her 40 times. The victim did not reply to any of those text messages or return his calls.

[7]                 On Friday 25 May 2018 the victim sent Mr Ellis a text saying “the love I had for you is long gone so just leave me alone”. Mr Ellis continued to text and call the victim. The messages ranged from “I miss you and love you” to “you’re not fit to be a mother” and threatening to adopt their child out.

[8]                 On Friday 1 June 2018 the victim was at her home address caring for her children. Mr Ellis phoned her at 9.30 am. He began verbally abusing her, calling her derogatory names and making threats, saying “all it takes is for me to push a button and you’re over (…)”. He also made a veiled threat about her father, saying he was

going to visit her father and to “watch out” as Mr Ellis had something for him. The victim told Mr Ellis not to contact her and to stay away from her family.

[9]                 On Sunday 3 June 2018 over a 12 hour period the defendant sent 34 texts to the victim, verbally abusing her. During the same period he phoned her multiple times, leaving abusive voice messages about her and her family. The victim did not reply to any of the texts and did not answer any calls. The victim then contacted police and Mr Ellis was located and spoken to.

[10]             On 18 October 2018 a final protection order was issued from the Hawera District Court.

[11]             Between Friday 15 March and Tuesday 16 April Mr Ellis sent the victim a number of abusive emails:

(a)At 8 am on Friday 15 March 2019, while on active charges for breach of protection order, Mr Ellis sent the victim an email. He asked if she was okay and if she needed anything. She ignored the email. Shortly after she received another email from him, in which he called her derogatory names.

(b)Over the course of the weekend of the 19–20 March he sent her several more emails, some sent to her, some sent to others but copying in the victim. The victim ignored all the emails and notified police.

(c)On 10 April 2019 Mr Ellis sent further emails to the victim and to Oranga Tamariki, the Ministry of Justice and news sites. The emails contained insults regarding the victim and accused her of being a terrible mother. She did not respond.

(d)On Saturday 13 April Mr Ellis sent her a further abusive email in which he wished that she would kill herself. She did not respond.

(e)On Tuesday 16 April Mr Ellis sent the victim a further abusive email.

[12]             There are also certain driving related offences for which Mr Ellis was sentenced. I do not describe those as they are not challenged on appeal.

Procedural background and decision under appeal

[13]             Before the District Court Mr Ellis faced Crown charges and non-Crown charges. Those included a range of driving offences and the breach of protection order charges. On 4 October 2019 he sought a sentence indication under s 61 of the Criminal Procedure Act 2011 in respect of two representative charges of breach of a protection order and the driving charges. The “batches” of charges were as follows:

(a)Driving while disqualified, dangerous driving, reckless driving and failing to stop all relating to an incident on 15 October 2018,

(b)A standalone charge of driving while disqualified from an incident on 20 January 2019, and

(c)Two representative charges of breach of a protection order.

[14]             The Judge took the protection order charges as the lead offence, and indicated a starting point of 18 months. He then noted there would be a six month uplift for driving charges, and a two month uplift for previous convictions. That amounted to a global starting point of 26 months’ imprisonment. After guilty pleas, the Judge indicated a notional end sentence of 18 to 19 months’ imprisonment. He left open the question of discounts for any mitigating factors that might arise in the pre-sentence reports.3

[15]             Mr Ellis then entered guilty pleas to the charges on the afternoon of 4 October 2019. He was convicted and remanded in custody to the following Friday 11 October for sentencing. Mr Burston notes the primary reason for the adjournment was to allow Corrections to draft a brief pre-sentence report proposing release conditions.

3      R v Ellis DC Wellington CRI-2019-031-000138, 4 October 2019.

[16]             At sentencing Mr Ellis was self-represented but counsel filed submissions as stand-by counsel. The District Court Judge noted the indicated sentence with a starting point of 26 months’ imprisonment made up of:4

(a)18 months’ imprisonment in respect of the two charges of breach of protection order,

(b)Six months’ imprisonment in respect of the driving charges, and

(c)Two months’ imprisonment as an uplift for conviction history.

[17]             The Judge noted there was nothing in the material to indicate that an adjustment to that indicated starting point was needed. Turning to discounts for mitigating factors, there was limited evidence of remorse but Mr Ellis’ medical condition justified a discount of three months from the overall starting point.5 After 25 per cent discount for early entry of guilty plea, that resulted in an end sentence of 17 months’ imprisonment.

[18]             The Judge ordered standard and special release conditions to expire “six months after the sentence expiry date”.6 Those conditions were as follows:

(a)To not associate with, or have contact with, the complainant directly or indirectly without the prior knowledge of his probation officer,

(b)To not to enter Patea without the prior written approval of his probation officer,

(c)To submit to electronic monitoring in the form of GPS technology as directed by his probation officer in order to monitor his compliance with any condition relating to his whereabouts,

4      R v Ellis, above n 1, at [6].

5      At [20]–[12].

6 At [14].

(d)To live at an address approved by his probation officer and not to move to any new residential address without the prior written approval of his probation officer,

(e)To attend a psychological assessment with a departmental psychologist as directed by his probation officer and to complete any treatment and counselling as recommended and directed by the probation officer to the probation officer’s satisfaction,

(f)To undertake such drug and alcohol assessment, treatment and counselling as his probation officer might direct,

(g)To undertake assessment for and completion of such non-violence programmes as directed by his probation officer.

[19]             Mr Ellis filed an appeal against the imposition of the special release conditions at the end of 2019. He also filed an application to suspend the release conditions pending determination of the substantive appeal pursuant to s 343 of the Criminal Procedure Act 2011. That application was declined by Doogue J on 6 November 2019.7 She also appointed standby counsel for Mr Ellis’ substantive appeal. Since then Mr Ellis has instructed Mr Fraser.

Approach to appeal

[20]             This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if there is an error in the sentence imposed and the Court is satisfied a different sentence should be imposed.8 A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion.9 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.10

7      Ellis v R [2019] NZHC 2887 at [33].

8      Criminal Procedure Act 2011, s 250.

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482; B v R [2011] NZCA 331 at [9]; and

Lawrence v R [2011] NZCA 272 at [11].

10     Ripia v R [2011] NZCA 101 at [15].

Analysis

[21]             At the time of sentencing Mr Ellis had already served some eight months in custody. I understand that the reason why there were only seven days between the sentencing indication and the sentence was because of that — in effect Mr Ellis was being released on time served. This means that the proposed sentence had two important components. First, it effectively confirmed that Mr Ellis was to be released as a consequence of time served. Second it would then cover the future restrictions to apply to Mr Ellis, imposed as release conditions.

[22]             In the sentence the Judge imposed special conditions under s 93 of the Sentencing Act 2002 and s 15 of the Parole Act 2002 that he had not outlined in the indication. That included electronic monitoring. The Judge specified that the special release conditions were to expiry “six months after the sentence expiry date”.11 Section 82(1) of the Parole Act 2002 defines sentence expiry date as “the date that is reached when the offender who is subject to the sentence has served the full term of the sentence”. Mr Ellis’ sentence expiry date is 15 July 2020. His special conditions therefore are accordingly not due to expire until 15 January 2021.

[23]             Mr Fraser for the appellant submits the sentence imposed differed from the sentence indicated as the sentence indication did not make reference to any restrictive special release conditions.

The statutory provisions

[24]             Here the sentence indication, and the sentence were given by the same Judge. Section 116 of the Criminal Procedure Act 2011 provides:

116     Effect of sentence indication

(1)This section applies to a sentence indication given under section 61 if the defendant pleads guilty to the offence in respect of which it was given within the period that it has effect.

(2)The sentence indication is binding on the judicial officer that gave it unless—

11     R v Ellis, above n 1, at [14].

(a)information becomes available to the court after the sentence indication was given but before sentencing; and

(b)the judicial officer is satisfied that the information materially affects the basis on which it was given.

…

[25]             Where a proposed sentence departs from the sentence indication, the defendant must be given an opportunity to vacate the guilty plea. Section 115 provides:

115     Plea of guilty may be withdrawn by leave of court

(1)A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.

(2)The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—

(a)the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication;

…

[26]As the Court of Appeal in Taylor v R held:12

… where there is a significant disparity between indication and final sentence, and where the plea has flowed from the indication, the accused person must be offered the opportunity to withdraw his or her plea. An expectation has been created and not met, and the accused should not be held to his or her plea.

Was the sentence of a different type or greater quantum?

[27]             The question whether a sentence is of a different type, or greater quantum than that indicated is not something that should be narrowly interpreted. Like all legislation the text of the enactment must be interpreted in light of its purpose. If a sentence is materially more restrictive, or of a different kind, the opportunity to vacate the guilty plea should be given. Adams notes whether the sentence indication gives rise to a proper expectation that significantly differs from the actual sentence imposed requires a factual inquiry in each case.13 The ultimate question is whether there has been a

12     Taylor v R [2013] NZCA 55 at [18], citing R v Gemmell [2000] 1 NZLR 695 (CA).

13     Adams on Criminal Law (online loose-leaf edition) at CPA115.03.

material departure from the sentencing indication, and whether the sentence actually imposed is materially more restrictive than indicated.

[28]             Sentence is defined broadly under s 212 of the Criminal Procedure Act 2011 as “any method of disposing of a case following conviction”.14 Given that the standard release conditions are imposed in any event the inclusion of release conditions does not by itself involve a sentence of a different type. But here the special conditions included electronic monitoring, a requirement to attend psychological assessment, and a condition not to enter Patea. Those might be seen to involve a sentence of a different type, particularly as Mr Ellis was being released when the sentence was imposed.

[29]             If the Court is to reserve certain questions for later consideration on actual sentencing, and these can be material in terms of the significance of the sentence actually imposed, then the Court should make that clear in the sentencing indication. The District Court Judge said in the sentence indication here that “there would be release conditions” but there was no mention of the potential for restrictive special conditions such as electronic monitoring, or geographic restrictions. Special conditions are not a standard aspect of release and must not be imposed on a short term sentence of imprisonment unless the Judge is satisfied such conditions are necessary to reduce the risk of reoffending, facilitate rehabilitation or provide for the reasonable concerns of the victim.15 Mr Fraser submits the lack of reference to the possibility of such special conditions meant the indication was not sufficiently clear and the appellant was not able to make a fully informed decision to plead guilty.

[30]             There was discussion in the indication recording that Mr Ellis hoped that the sentence would involve time served, on which the Judge made “a few comments”.16 One of the Judge’s observations was that a therapeutic relationship could develop between a defendant and a Probation Officer, and this would be an important aspect of sentencing in accordance with Sentencing Act principles. Given the emphasis the Judge gave in that discussion to that relationship, and that the term of imprisonment

14     See also Green v New Zealand Police [2016] NZHC 745.

15     Sentencing Act 2002, s 93.

16     R v Ellis, above n 1, at [29].

was to be treated as time served, it seems to me that the potential for restrictive conditions being imposed could also have been raised.

[31]             Mr Burston argued that the Judge could not have done so as he would not have been aware what special conditions might be appropriate at that stage. In terms of electronic monitoring,  for example,  such  conditions  can  only  be imposed  under  s 93(3A) of the Sentencing Act 2002 once a report has been provided by the Chief Executive. He contended that the sentencing process had appropriately followed the statutory procedure. He also submitted that sentencing indication did not normally address the topic of special conditions, and that it would set a problematic precedent to suggest that they should do so.

[32]             In my view the question is very fact dependent. The reality was that, in the present case, the period of imprisonment that was being imposed was to be treated as time served. From the defendant’s point of view what now mattered was what was to happen to him if he pleaded guilty. He understood he was to be released. If there were to potentially be other material restrictions that would apply if he were to plead guilty they should probably  have  been  foreshadowed.  I  accept  that  there  is  force  in Mr Burston’s submissions that what the conditions would be may not have been apparent at the stage of the indication. For example at that stage the victim impact statement was not available, and it has plainly influenced the imposition of the special conditions. On the other hand the Judge could have specifically referred to the potential for special release conditions. The domestic violence character of the offending made special release conditions a potential issue. Mr Ellis was self- represented. The Court could have more fully outlined that restrictive release conditions might be involved, but that the Court could not specify at that stage what they might be.

[33]             I accept the above points are made with the considerable benefit of hindsight. I do not suggest that the Judge was necessarily in error in failing to more fully address the potential for restrictive special conditions in the indication. He may well not have anticipated them at that stage. The more significant point is what should have occurred when the more restrictive conditions became apparent at sentencing.

Should an opportunity to vacate the plea been given?

[34]             It seems to me that Mr Ellis should have been given the opportunity to vacate his plea. Notwithstanding Mr Burston’s arguments it seems to me that s 116 of the Criminal Procedure Act 2011 was engaged. Information had become available to the Court after the indication that materially affected the basis of the sentence and the District Court Judge was no longer bound by it.

[35]             The victim impact statement and PAC report squarely raised the potential for restrictive special conditions. In terms of the victim impact statement the Judge said:

[8] The victim impact statement which I did not have last week but now have, is concerning, but it is not of sufficient moment to justify any revisiting of the starting point.

[36]             The PAC report recommended electronic monitoring in light of concerns from police and the victim regarding the threat Mr Ellis posed to the victim and her children. The report also said of the interview with Mr Ellis:

Mr Ellis engaged well with the report writer, he maintained eye contact, was at times suspicious, but not hostile. There were elements of victim blaming in the dialogue and limited remorse offered. Three Court ordered psychiatric reports were made available pre sentence, these may speak more to the victim themes covered at this interview than this report writer is able to.

Whilst Mr Ellis participated in the interview, it was somewhat difficult to maintain a line of questioning, pertinent to the summary of facts. As previously stated, this is perhaps more appropriately covered by the psychiatric reports available to the Court. As a result, the specific summary of facts were not discussed in depth, as Mr Ellis would branch off into other matters. Therefore the focus of this report is more in line with conditions available, should the Court be minded.

[37]             I have no doubt that the new information influenced the Judge, and that the restrictive special conditions were imposed as a consequence. Mr Ellis remains agitated, and has wider issues. Even in the hearing before me his counsel was instructed to raise matters concerning the administration of justice, and from time to time he made his disagreement with Mr Burston’s submissions apparent from the back of the Court.

[38]             It was not just the starting and end points of the term of imprisonment that were important. The special release conditions were as well. They were materially more

restrictive  than  what  Mr Ellis  would  have  anticipated  on  his  guilty  plea.     An opportunity to vacate the plea should have been given.

[39]             Mr Burston argued that even after the further information was obtained, and it became apparent that electronic monitoring and other geographical limitations would become part of the sentence, there was no jurisdiction to vacate the guilty plea under s 115 as the new information did not materially affect the basis upon which the indication was given. These were just release conditions that could not have been earlier indicated. In my view this submission demonstrates why the more limited interpretation of the provisions is not the appropriate one.

[40]             I accordingly conclude that the ultimate sentence was unfair as the sentence imposed was a different type, and/or on more restrictive terms than that outlined in the sentencing indication as a consequence of new information, and an opportunity to vacate the plea was not given. That was not consistent with s 115(2)(a).

What is the appropriate remedy?

[41]             Where on appeal it is held that the final sentence is not consistent with the sentence indication, ordinarily the proper course would be to quash the conviction and remit the matter back to the District Court.17 But here Mr Ellis does not want to vacate his guilty pleas and instead proposes the Court reduce the period for which he is subject to special release conditions.

[42]             There are conflicting High Court authorities as to the correct approach where the defendant does not wish to vacate their guilty plea in these circumstances. Some cases have simply replaced the sentence to conform with the sentence indication.18 Other more recent cases have held that the approach is the ordinary one for a sentence appeal — that an error is only appealable if it results in an end sentence that is manifestly excessive.19 Mander J explained the approach fully in Nuku v R:20

17     See for example Te Namu v New Zealand Police [2013] NZHC 3443 at [10].

18     At [10]; Te Tau v New Zealand Police [2015] NZHC 1716.

19     Wilson v R [2015] NZHC 298 at [37]; Appuhamilage v New Zealand Police [2015] NZHC 2355 at [32]; Nuku v R [2016] NZHC 2255.

20     Nuku v R, above n 19.

[19]      This Court has taken a varied approach to the situation where a sentence imposed differs from the sentence indicated and the defendant does not wish to vacate his or her plea. In some cases, notwithstanding the sentence imposed being within the available range, it was considered appropriate to adjust the sentence on appeal to conform with the indication.21 In other cases, while satisfied an error had occurred insofar as the sentence failed to conform with that previously indicated, the Court held that to allow the appeal it would also need to be satisfied a different sentence should have been imposed when considering the matter afresh.22

[20]      In my view, the latter course will ordinarily be the appropriate approach, although, as the Court of Appeal observed in Tutakangahau v R , that may not always be the case, citing the example of an arithmetical error in the sentence which ought to be able to be corrected without difficulty on appeal. Mr Nuku submitted that this is such a case. However, as I have already observed, the arithmetical error related to the sentence indication not in calculating the sentence imposed.

[21]      The danger that arises when a sentence does not match that indicated is that because a defendant's expectations have not been met the plea has been entered on a false or mistaken premise. In order to meet that expectation it is necessary for an appellate Court to provide the appellant with the opportunity to vacate his or her plea in order to remedy the error and purge the potential injustice arising from the faulty process.

[22]      Because Mr Nuku does not wish to avail himself of that course despite being offered the opportunity to do so, any potential miscarriage resulting from a causal connection between the error and the entry of the plea can be discounted. However, there may be occasions where a defendant has served part of his or her sentence, such that the option of vacating the plea may no longer be a realistic option and a residual concern remains.

[43]             In Mokaraka v New Zealand Police I suggested there might be another approach:23

[14] There is potentially a middle ground. A failure to apply the sentencing indication means that there has been an error in the overall sentencing process. This means that the Court on appeal can impose the sentence that it thinks appropriate given an error has been established. An appellant does not also have to demonstrate that it was manifestly excessive, or outside an available range. But equally the Court is not required to make the sentence conform to the initial indication if the Court does not think that sentence is appropriate. That approach seems to me to be consistent with s 250(2) of the Criminal Procedure Act 2011 for this particular category of case when the appellant does not seek to vacate the guilty plea. …

21     Te Tau v New Zealand Police, above n 18; and Te Namu v New Zealand Police, above n 17.

22     Wilson v R, above n 19; Appuhamilage v New Zealand Police, above n 19; and Scoles-Young v Police [2016] NZHC 1120.

23     Mokaraka v New Zealand Police [2020] NZHC 718.

[44]             This may also be consistent with the view of the Court of Appeal in Tutakangahau v R who said that “… there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range.”24 It needs to be remembered that vacating the guilty plea may not always be a fully effective remedy for a defendant. As Mander J indicated in Nuku time may have gone by since the plea and the imposition of the sentence, and it may have partly been served.

[45]             I intend to approach the appeal on that basis. That is that I will consider whether the sentence is the appropriate one, rather than whether it was manifestly excessive.

Was the end sentence appropriate?

[46]             There is no dispute between the parties in relation to the sentence of imprisonment. The only dispute appears to be in relation to the length and nature of the special conditions. In Patterson v R Williams J held that an appeal against special conditions can be brought as an appeal against sentence pursuant to s 244 of the Criminal Procedure Act.25

[47]             There can be no issue with the non-contact conditions. Whilst they repeat what is covered by the protection order, it nevertheless seems to me that they are appropriate in the circumstances.

[48]             The conditions concerning the attendance for a psychological assessment, and to complete any treatment and counselling as recommended, and to undertake drug and alcohol and non-violence programmes as directed all seem to me to be appropriate. Indeed these steps are very important, and may assist Mr Ellis to not only deal with the impact of this particular offending and the risk of reoffending, but also the wider issues that he has raised. There is an associated point in relation to these requirements that I turn to below.

24 Tutakangahau v R, above n 9, at [36].

25 Patterson v R [2017] NZHC 49, cited with approval (although on the point of a sentence appeal against special conditions being approved by variation to the sentence) in Woods v New Zealand Police [2019] NZCA 446.

[49]             The condition not to enter Patea is obviously protective of the victim. The release conditions require Mr Ellis to live at an address with the consent of a Probation Officer. He was originally released to Christchurch, and with the Probation Officer’s consent, now resides in Wellington. That indirectly covers much of what is needed. But there is additional protection given to the victim arising from a specific requirement that Mr Ellis not enter Patea, and in any event I do not understand that Mr Ellis had any intention to do so. Accordingly this condition seems to me to be appropriate.

[50]             The condition concerning electronic monitoring is the most controversial. That is because it is the most restrictive, and it is plainly concerning to Mr Ellis. It has already operated for some time, and there is still some time to go. But it seems to me, as it may have been to the Judge, that Mr Ellis is not in a fully stable state. Indeed he presents as a person who is agitated by a number of matters. Mr Burston explained that the psychological assessment required by the special conditions had not taken place because Mr Ellis had not consented to participating in that process, and that a psychologist would not engage with somebody without consent. Mr Ellis made it apparent from the back of the Court that he did not agree with Mr Burston’s submission on that point. But it is apparent that a meeting with a psychologist for the purpose of counselling and treatment has not yet taken place. No doubt the impact of COVID-19 has interfered with the ability to do so but it has been nine months since Mr Ellis was sentenced and released. In the absence of this already having taken place it seems to me that electronic monitoring is still necessary as a protective measure.

[51]             I have given careful consideration to whether Mr Ellis’ compliance with his release conditions since October 2019 means it would now be appropriate to remove the electronic monitoring as part of a graduated process for managing his transition back into the community. There was force in Mr Fraser’s submissions on this point. There is some justification for adopting this approach,  in  part  to  demonstrate  to Mr Ellis that his good work can be recognised. But I have ultimately determined that it would be unwise to take that step without having the benefit of psychological inputs into Mr Ellis’ rehabilitation as contemplated by the other conditions.

[52]             For these reasons, having reviewed the release conditions, and the length of those conditions, I agree with the approach adopted by the District Court Judge.

Result

[53]             For the above reasons I accept that there has been an error in the sentencing process, but having considered the sentence as a consequence, and in particular the special release conditions imposed by the District Court, I am satisfied that they are appropriate, and for these reasons the appeal is dismissed.

Cooke J

Solicitors:

Liberty Chambers, Wellington for the Appellant Crown Law Office, Wellington for the Respondent