Folster v Police
[2023] NZHC 292
•24 February 2023
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 from that assessment. These requirements were consistent with the Provision of Advice to Courts (PAC) report.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R, quoting 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”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
4 Sentencing Act 2002, ss 7(a), (b), and (f).
5 Criminal Procedure Act 2011, ss 250(2) and (3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101, at [15].
Submissions
Appellant’s submissions
[11] Mr Tupaea, for the appellant, submitted Judge Brandts-Giesen erred by imposing the no-alcohol condition because the condition was not connected to the offending and there was no basis for believing it would deter the appellant from re-offending. Mr Tupaea submitted the remaining conditions, including the prohibition on non-prescription drugs, were sufficient to reduce further offending. He referred to the Court of Appeal’s decision in R v Riri that reiterated the requirement to identify a significant risk of re-offending but for the special condition.8
[12] Mr Tupaea submitted the Judge erred by imposing the condition prior to Mr Folster being assessed by a psychologist. He explained that if a need is identified from the assessment, Mr Folster would need to be provided tools to address behaviour, make changes, and be given time to do so, in order to deter him from re-offending.
[13] Mr Tupaea further submitted the no-alcohol condition would not meet the “significant risk” of further offending threshold nor would it reduce the likelihood of further offending.9 Mr Tupaea pointed out Mr Folster has no convictions for alcohol related offending, and alcohol was not involved in this offending; rather, Mr Folster’s motivation was financial in nature.
[14] Mr Tupaea also drew attention to the PAC report which identified Mr Folster’s involvement with drugs as a driver of previous offending. Alcohol, however, was not mentioned as an issue. That, Mr Tupaea submitted, sits in contrast against the PAC report’s recommendation to include the no-alcohol condition. Furthermore, the no-alcohol condition likely sets Mr Folster “up to fail” by potentially breaching the no-alcohol condition and thereby frustrating the purpose of the imposed conditions.
8 R v Riri [2008] NZCA 441, at [16]; above n 4, ss 54F, 54G and 54I.
9 Above n 4, s 54I(1).
Respondent’s submissions
[15] Mr Brand, for the respondent, submitted it was open to the Judge to impose the no-alcohol condition. Mr Brand noted Mr Folster had been subject to a no-alcohol condition whilst on home detention for four months following “multiple alerts” for family violence between him and his wife, both of whom were intoxicated at the time. It was a result of these incidents that an earlier no-alcohol condition was imposed.
[16] Mr Brand emphasised the obligation to support Mr Folster’s rehabilitation and reintegration, and mentioned the Judge’s comments that, although alcohol was not connected to the present offending, alcohol would act to disinhibit Mr Folster “particularly around the festive season” and he needed “the least disinhibition possible”. He also noted that, given alcohol’s impact on decision making, the Judge was right to conclude the condition would support Mr Folster’s own desires to become a better husband and make better life decisions.
[17] Mr Brand further submitted a nexus to the offending and alcohol was not required to impose the condition; instead, the Judge must be satisfied there is a significant risk of further offending, the standard conditions do not adequately reduce that risk, and the imposition of the condition would reduce the likelihood of reoffending.10 He submitted Mr Folster’s offending whilst subject to post detention conditions meant there was a real risk of further offending which the standard conditions did not adequately reduce. The family violence incidents which gave rise to the earlier no-alcohol condition meant the current condition stood to reduce the likelihood of further offending.
Analysis
[18] When a defendant receives a sentence of intensive supervision, standard conditions are imposed.11 In addition to these standard conditions, the Court may also impose both special conditions related to programmes,12 or other special conditions, and it is the latter I am concerned with here.13
10 Above n 4, s 54I(1).
11 Section 54F.
12 Section 54G.
13 Section 54I.
[19] Section 54I of the Sentencing Act sets out the basis on which special conditions may be imposed:
54I Other special conditions
(1)A court may impose any of the special conditions described in subsection (3) if the court is satisfied that—
(a)there is a significant risk of further offending by the offender; and
(b)standard conditions alone would not adequately reduce that risk; and
(c)the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[20] The special conditions which may be attached to an intensive supervision order are set out in s 54I(3) and include a prohibition on consuming alcohol,14 as well as anything else the “court thinks fit to reduce the likelihood of further offending”.15
[21] Accordingly, to impose a no-alcohol special condition, the Judge must first be satisfied there was a significant risk of further offending by Mr Folster. The Judge noted Mr Folster’s extensive criminal history, the fact Mr Folster was on post-detention conditions when he committed this offending, and that he had previously completed the High-Risk Burglary Prevention Programme. Given these factors, it was clear there was a significant risk of further offending, and this requirement was met.
[22] The Court may also only impose a special condition if it is satisfied that the standard conditions of intensive supervision alone would not adequately reduce that significant risk of further offending, and that a special condition would reduce that likelihood through rehabilitation. This is consistent with the principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances.16 The Court of Appeal in Mason v R said there “must be a logical connection between a sentence of intensive supervision and any special conditions that are imposed”.17
14 Above n 4, s 54I(3)(ba)(iii).
15 Section 54I(3)(e).
16 Section s 8(g).
17 Mason v R [2021] NZCA 185, at [49].
[23] As noted in the probation report, Mr Folster identified his drug involvement and the need to finance that involvement as a driver of his previous offending. Considering the admitted problem with drug use and the clear connection to offending, a prohibition on drugs was appropriate. The same cannot be said in respect of the no-alcohol condition. Alcohol was not connected to the offending on this occasion nor to any of Mr Folster’s past convictions. Mr Folster has no prior alcohol convictions. He has not stated he has an alcohol problem. While I am advised by counsel that both Mr Folster and his wife have family harm incidents recorded where the respondent says that alcohol was involved, that report was not before the Judge, nor do I have it. That means I have no details about those incidents, when they took place, or the degree to which alcohol consumption by Mr Folster was a contributing factor.
[24] I agree with the District Court Judge that alcohol acts to disinhibit people. That applies across the board to every person, albeit some appear more susceptible than others. For a special condition to be imposed, however, more than this generality is required. There is no specific issue Mr Folster has concerning alcohol, bar the reference in the respondent’s submissions to family violence callouts to his address on which no detail is known and nor did they lead to any charges being laid. Alcohol has not been a contributor to his offending.
[25] In my view, there is insufficient evidence to demonstrate that such a condition would reduce the likelihood of reoffending through rehabilitation and the test for its imposition is not met.
Conclusion
[26] The appeal is allowed. The condition prohibiting him from consuming alcohol is set aside. The balance of the special conditions remain in place including the condition not to possess or use controlled drugs or psychoactive substances except controlled drugs prescribed by a health professional.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
Mr Tupaea, Barrister, Christchurch
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