Folster v Police - [2023] NZHC 292

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-188

[2023] NZHC 292

BETWEEN
NICHOLAS MURRAY FOLSTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 February 2023

Appearances:

J Tupaea for Appellant

P J Brand for Respondent

Judgment:

24 February 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 24 February 2023 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

FOLSTER v NEW ZEALAND POLICE [2023] NZHC 292 [24 February 2023]

Introduction

[1] Mr Folster was sentenced in the District Court1 on 17 November 2022 to 14 months’ intensive supervision and 120 hours’ community work in relation to one charge of attempted burglary,2 and one charge of possession of instruments for burglary.3

[2] The following special conditions were added to the sentence: (1) not to possess, consume, or use any alcohol or drugs not prescribed; (2) to attend an assessment for a departmental psychologist, and attend any counselling, treatment or programme recommended; and (3) to attend and complete an intervention programme for alcohol and drugs as specified by a probation officer.

[3] Mr Folster appeals the Judge’s decision on the basis that the special condition prohibiting him from consuming alcohol (the no-alcohol condition) should not have been imposed.

Facts

[4] At approximately 3 am on 30 August 2022, Mr Folster drove to an industrial yard owned by City Firewood on Gardiners Road, Christchurch, and parked outside an entry. He took 21 fuel containers, ranging from four to 20 litres in size, and a set of bolt cutters.

[5] Mr Folster approached the gate and used the bolt cutters to cut the padlock. He then returned to his vehicle to uplift some of the fuel containers and was arrested by Police.

[6]Mr Folster admitted he went to City Firewood to steal diesel.

1      New Zealand Police v Folster [2022] NZDC 22904.
2      Crimes Act 1961, ss 72 and 231; maximum penalty 10 years’ imprisonment.
3      Section 233(1)(a); maximum penalty three years’ imprisonment.

District Court decision

[7] In his sentencing decision, Judge Brandts-Giesen placed emphasis on the sentencing purposes of accountability, deterrence, and responsibility.4 The Judge noted Mr Folster’s criminal record, particularly of dishonesty, burglary, receiving, and theft, and questioned the genuineness of Mr Folster’s apology. The Judge had regard to the number of containers Mr Folster took with him to the yard and the value of the theft had he successfully carried it out, as well as his premeditation.

[8] Although the Judge adopted a starting point of imprisonment, the end sentence he imposed was 14 months’ intensive supervision and 120 hours’ community work. An emotional harm payment of $250 was also added.

[9] The Judge disqualified Mr Folster from driving for nine months because a vehicle was used in the burglary and was the reason for committing the offending in the first place. The Judge also required Mr Folster to attend an assessment for a departmental psychologist, and complete any treatment recommended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Folster v Police

Details

AGLC: Folster v Police [2023] NZHC 292
Case: [2023] NZHC 292
Decision Date: 24 February 2023

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, Nicholas Murray Folster appealed against his sentence imposed by the District Court. The appeal centred on the imposition of a special condition prohibiting Mr Folster from consuming alcohol, which he contended should not have been imposed. The central legal issue for the Court was whether the Judge correctly exercised their discretion to impose a special condition under section 54I of the Sentencing Act 2002. The Court considered whether there was a significant risk of further offending, whether the standard conditions alone would not adequately reduce that risk, and whether the special condition would reduce the likelihood of reoffending through rehabilitation.

The Court found that while there was a significant risk of further offending, the no-alcohol condition was not appropriately connected to the offending or to Mr Folster's criminal history. The Court noted alcohol was not involved in the present offending nor in Mr Folster's past convictions. The family violence incidents, which involved alcohol, were not before the Court and lacked sufficient detail to establish a clear connection between alcohol consumption and Mr Folster's offending behaviour. The Court concluded that there was insufficient evidence to demonstrate that the no-alcohol condition would reduce the likelihood of reoffending through rehabilitation.

The appeal was allowed, and the condition prohibiting Mr Folster from consuming alcohol was set aside. The remaining special conditions, including the prohibition on possessing or using controlled drugs or psychoactive substances, remained in place. The Court emphasised the need for a logical connection between the sentence of intensive supervision and any special conditions imposed, in line with the principles established in Mason v R. The balance of the special conditions were considered appropriate to address Mr Folster's identified risk factors and support his rehabilitation and reintegration.

Orders