G v Police

[2019] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2018-463-122

[2019] NZHC 411

BETWEEN

G

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

28 February 2019

Counsel:

J Temm for Appellant

A McConachy for Respondent

Judgment:

12 March 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 12 March 2019 at 12.30 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

Jonathan Temm, Barrister, Rotorua

G v NEW ZEALAND POLICE [2019] NZHC 411 [12 March 2019]

[1]                  G appeals against his sentence of 13 months two weeks imprisonment following his conviction on two charges of breaching a protection order.1 The sentence was imposed on 29 November 2018.

Facts and appealed sentence

Facts relevant to offending

[2]                  The facts of the offending are taken from the police summaries of facts on which the two convictions rest. On occasion this has been supplemented by other material provided for the appeal.2

[3]                  G and the victim were in a relationship for approximately five years. The relationship ended in 2015. He is now 29 years old. He would, therefore, have been around twenty or twenty-one years old when the relationship began.

[4]The first child, T, was born on 22 April 2015.

[5]                  On 16 May 2015 G assaulted the victim and was subsequently convicted on 17 July 2015 of the offence of male assaults female, for which he received a sentence of nine months’ supervision with special conditions. Also, at that time, a final protection order was made prohibiting G from contacting his ex-partner as well as T.3

[6]                  G and the victim now have two sons. The oldest child T would have been less than a month old at the time the protection order was made. The youngest child, A, was born on 6 February 2017, and so was conceived during the currency of the protection order.

[7]                  Since the protection order was made in July 2015 G has acquired three convictions for breaching this order.4 None of those breaches involved violence. The first occurred on 24 November 2017 and resulted in the entry of conviction on 20

1      Domestic Violence Act 1995, S 49.

2      For example, the police summary of facts states the protection order applies to both children. In fact the protection order names only one child though its legal effect may be to apply to both children.

3      G FAM 2015-069-000112; CRI 2015-069-0007 06.

4      Convictions entered on 20 December 2017 and 03 July 2018.

December 2017, at which time G was sentenced to one years’ intensive supervision. Then on 24 June 2018 he committed two further breaches of the protection order, which led to conviction on 03 July 2018 and a further sentence of one years’ intensive supervision. It is on the same day that he was sentenced for this offending that he committed the first of the breaches now subject to this appeal against sentence.

[8]                  Earlier on in 2018 the victim had seemingly allowed G to have supervised contact with his sons. In June 2018 the victim ended this contact and made it clear she wanted no contact.

[9]                  The first breach on 3 July 2018 arose from an incident that day when G arrived at the victim’s house unannounced and asked for a book.5 Then he left two handwritten letters in the victim’s unlocked motor vehicle.6 The sentencing Judge described one of the letters as containing a “disturbing riddle”, which reads as follows:

A Bit of a riddle I might have all ready to you this one

A man goes to work in a 20 story building in the morning he catchs the ellivator from the ground floor to the 10th then takes the stairs to the top floor but when he finishs work he goes straight from the 20th to the ground floor why is this who is this man

This thing is made for you and only you and when you use it your dead. What is it

[10]              There is no evidence to establish whether the visit to the victim’s home and leaving the two letters in her motor vehicle occurred before or after the sentencing that day for the two breaches that occurred on 24 June 2018.

[11]              Approximately a week later G hand delivered two further letters the victim’s home address. These letters contain reference to his “addict nature” and his tendency to force people to do as he wants. The following week a fifth letter arrived at the victim’s home, seemingly hand delivered as well because it was not in an envelope. Those last three letters fall outside the charge period for the 3 July 2018 offending, however, they were included in the summary of facts to which G pleaded guilty. So,

5      A conviction on this offending was entered on 29 November 2018.

6 The visit is described as an error by the appellant, based on a misunderstanding of the protection order. Judge Mackenzie rejected this explanation at [5].

they provide evidence of a continuing course of conduct after this offence, which amounts to an aggravating feature of the offending.

[12]              The second breach of the protection order occurred on Saturday 7 July 2018 and arises from G’s interaction with one of his sons who is also protected by the protection order.7 On 6 July 2018, the previous day, the children’s paternal grandparents (G’s parents) asked to have the two boys the following day (7 July 2018). They were told this was not possible because other plans had been made for them; they were going to be at their maternal aunt’s home that day. The grandparents accepted this. Early on the morning of 7 July 2018 the victim took the boys to their maternal aunt’s home. G arrived at 9.30am that day unannounced and uninvited; he entered the house where he was confronted by the aunty who told him he was not allowed to be there. He became agitated, gave one of the boys a cuddle and then left abruptly in his car.

Facts relevant to sentencing in the District Court

[13]              G’s assigned legal aid counsel, Mr Roose, failed to appear at sentencing in the Taupo District Court, as he was delayed by a proceeding in the Rotorua District Court. His agent Mr Farquhar appeared instead on G’s behalf after a short briefing by Mr Roose.

[14]              At sentencing, Judge M A Mackenzie categorised the two breaches as serious. She considered the letters could only be interpreted as G wishing to “perpetuate serious psychological harm” on the victim and intimidate her. Further, the first breach happened on the very day G appeared in Court for his second and third breaches of protection order.

[15]              Finally, the breaches were G’s fourth and fifth breaches within a 12 month period, and were committed while he was subject to a sentence designed to assist and rehabilitate.8

7      The conviction on this offence was also entered on 29 November 2018.

8      New Zealand Police v G [2018] NZDC 25367 at [16].

[16]              Judge M A Mackenzie adopted a starting point of 15 months imprisonment.9 The Judge considered the primary sentencing need to be personal deterrence, and that allowing intensive supervision in combination with community detention, which is what the pre-sentence report recommended, was not the least restrictive outcome in the circumstances. She noted that the previous community-based sentences had not deterred G from further breaches.10

[17]              A discount of 10% for late guilty plea was applied, and no uplift was made for prior convictions as the relevant ones were the prior protection order breaches which had already been factored in when setting the starting point.11

[18]              In discussing whether to give an electronic sentence, Judge M A Mackenzie described the case as finely balanced, as G had a suitable address, was employed and was undergoing further rehabilitative steps.12 However, she considered that because of the high level of culpability and the need for personal deterrence, that a full time custodial sentence was the least restrictive outcome.13 Accordingly, G was sentenced to 13 months two weeks imprisonment.

Arguments on appeal

[19]              G submits that the cause of the error in sentencing was G’s assigned counsel failing to appear. Making no criticism of counsel who appeared, he notes that what was required was advocacy from counsel who was familiar with the facts. Instead, when assigned counsel was unable to appear, an adjournment should have been sought and granted.

[20]              G notes that due to counsel being unprepared, the Judge over-emphasized factual matters in error. Specifically, in describing the letters as “dark and disturbing”, containing “a disturbing riddle” and “wishing to perpetrate serious psychological harm on the victim”. At the hearing an explanation for the riddles was advanced. The first

9 At [15].

10 At [23].

11     This is the standard approach to sentencing for breach of protection order, as per Mitchell v R

[2013] NZCA 583, (2013) 29 FRNZ 498 at [12]-[14] and [17].

12 Above n 5 at [29].

13 At [30].

riddle related to a dwarf, who was not tall enough to press the elevator button for the 20th floor and so had to walk from the 10th floor upwards but could readily reach the ground floor button for the way down. The second riddle described a casket. G’s counsel for the appeal, Mr Temm, said that G and the victim had, when times were better between them, exchanged riddles. In this way G submits that explanations were available which would have removed the Judge’s concerns about the riddles.

[21]              Further, that the Judge paid no regard to the fact G had relocated to Rotorua, thus distancing himself from the victim who resides in Taupo. Finally, that the victim herself did not seek imprisonment, and had stated as much in her victim impact statement.

[22]              Taking account of these errors, G submits that the Judge imposed a sentence that was so out of line with comparable cases that it can properly be described as manifestly excessive. Instead he contends that a shorter term of imprisonment should have been imposed and then substituted with home detention or some other community-based sentence. In this regard the pre-sentence report did not recommend a sentence of imprisonment and G and his address had been assessed as suitable for an electronically monitored sentence like home detention.

[23]              The Crown acknowledged the sentence to be stern, but within the permissible range of sentences for subsequent offending of this nature. The Crown identified the worst aspects of the behaviour to be: first, its repetitive nature, in this regard five letters were delivered to the victim over a short period of time; secondly there were two unannounced visits by G one to the victim’s home and the other to the aunt’s home where the children were; and thirdly the first offence was committed on the day on which G was sentenced to intensive supervision in respect of the earlier offending which had occurred on 24 June 2018.14 However, the Crown responsibly acknowledged that the time of the offending on 3 July 2018 cannot be established and so whether the offending occurred before sentencing on that day cannot be excluded.

14     The relevant sentence of intensive supervision was imposed on 3 July 2018 and the first offence now subject to this appeal was committed on 3 July 2018.

[24]The Crown drew attention to the comments of Katz J in Palmer v Police:15

Sentencing decisions that relate to offending that occurred prior to 25 September 2013 must therefore be treated with some caution, as they are likely to have a lower starting point than would now be appropriate for comparable offending. For that reason the three cases I refer to below for “benchmarking” purposes all post-date 25 September 2013.

[25]Similar caution was adopted in in Edwards v Police.16

Analysis

[26]              There has been no physical harm or threat of physical harm in this case. However, as the Court of Appeal recognised in Weidemann v R:17

Breaches of protection orders are inherently serious. The psychological harm caused to a complainant by a breach should not be understated.

[27]              Also important is the factual matrix of the offending; in Anderson v R the Court of Appeal remarked:18

Breaches of protection orders vary enormously in culpability and in degrees of threat and psychological or physical harm to the protected person. Each case hinges on its own facts.

[28]              Here the relevant factual matrix includes the following. First, the couple’s early relationship. G is now 29 years old. The relationship must have commenced when he was in his early twenties and it ended in his mid-twenties. The relationship ended shortly after the birth of T. For a man in his mid-twenties the end of a serious relationship, particularly not long after the birth of his child, can understandably be traumatic. He may have trouble accepting the relationship is truly at an end. This may especially be so when, as is the case here, the relationship is resumed and leads to the birth of a second child.

[29]              The offending which first brought the relationship to an end (male assaults female) resulted in a sentence of nine months’ supervision with special conditions. This indicates the offence was not the most serious of this type of offending.

15     Palmer v Police [2015] NZHC 143 at [16].

16     Edwards v Police [2017] NZHC 2834 at [24].

17     Weidemann v R [2018] NZCA 381 at [43].

18     Anderson v R [2016] NZCA 346 at [26].

[30]              There is a chequered history of breaches of the protection order, which is not good. The last four offences all occurred in mid-2018. The fact the first offence that is the subject of this appeal happened the same day G was sentenced for an earlier breach that occurred on 24 June 2018 is particularly concerning. This is what has led the Judge to conclude that the present sentence should weigh heavily towards deterrence and denunciation, because earlier sentences that were imposed with a view to rehabilitation have seemingly been ineffective in bringing home to G the error of his conduct.

[31]              On the other hand, there are explanations for this offending which place G in a better light. First, the four recent offences are connected with the difficulties G has presently had with access to his children. I consider the overall character of the letters to be sad and remorseful rather than threatening. Whilst I acknowledge that they must be viewed within a domestic violence context, I note that throughout the letters G continuously expresses his love for his children. As well as the “disturbing riddle”, which his counsel sought to mitigate on appeal G attached a poem which he had written about the children and expresses general sadness at not seeing them as much as he would like to.

[32]              Secondly, although the victim refused to attend a restorative justice conference in her impact report she opined that some mediation might help the two of them. In this regard she stated:

I just want him to stop. I want him to focus on being a better Father, not focusing on me. I have moved on.

Some sit down meditation between us may help. I just don’t know where his mindset is right now and I don’t know if he is using any drugs.

I think that he needs counselling to help him, I don’t think prison will help him and I don’t want him to be locked up.

[33]              No explanation was available to me for why the victim did not want to attend restorative justice but is seemingly prepared to sit down with G in a mediation to discuss a way forward for them. However, what her statement in the impact report does tell me is that she is not so fearful of G that she cannot engage with him in the right circumstances. Accordingly, the psychological harm in this case must not be as

bad as it has been in other cases where psychological harm alone has been seen to warrant a stern sentence.

[34]              Thirdly, there is another aspect to the relationship of G and the victim. A was conceived and born during the currency of the protection order. This suggests to me that there has been at least one time when the victim was prepared to put the protection order to the side and to have close contact with G.19 Such circumstances may go some way to explain why seemingly he has had difficulty accepting their relationship is at an end, and has been less respectful of the prohibitions the protection order imposes than might otherwise be expected.

[35]              Fourthly, apart from the breaches of the protection order G’s criminal history suggests that he is someone who does learn from his errors. His first offending occurred on 3 November 2007, when he was 17 years old. On the one day he indulged in a spree of offending which included three burglaries by night and one theft of a motor vehicle. He was convicted on 6 December 2007 and sentenced to community work, reparation and supervision. Then on 4 October 2009 when he was 19 years old he committed the offence of disorderly behaviour for which he convicted on 13 October 2009 and was fined $300. After that he did not offend again until the male assaults female against the victim in 2015. This informs me that, apart from the breaches of the protection order G is someone who responds well to criminal sanctions and who is readily deterred from further offending.

[36]              Accordingly, I view the breaches of the protection order as something that has occurred at a time when he has been emotionally vulnerable and therefore has less control over his conduct than he might otherwise do. The problems with having access to his children can be addressed through engaging legal assistance in the Family Court, which will help to alleviate the pressures these problems have created for G. The occasional contact he has maintained with the victim may have led him to view the effect of the protection order less seriously than he should have done. These are mitigating factors that were not drawn to the sentencing Judge’s attention, when they

19     The Crown correctly pointed out that the conditions of protection orders permit this occurrence.

should have been. Had she known of these matters she may have taken a different view of the appropriate sentence to impose.

[37]              Moreover, the imposition of the sentence of imprisonment resulted in G serving 51 days of that sentence, which he found a salutary experience. Since then he has spent 41 days on electronically monitored bail (EM bail) with a 24 hour curfew. Thus, he has had sufficient opportunity to reflect on the wisdom of his conduct. He has now re-located from Taupo to Rotorua so there is less opportunity for him to contact the victim in the way he did before. These are new factors post sentence that suggest G has gained new insight into his offending and is less likely to re-offend in the future.

[38]              Regarding comparable cases, I consider the sentence of 13 months and two weeks imprisonment to be beyond the length of sentence imposed in circumstances similar to G’s. I acknowledge that cases that post-date the increase of the maximum penalty for breach of a protection order are the most relevant. However, when I consider cases that have resulted in terms of imprisonment longer than 12 months I find the circumstances of the offending and the offenders to be more serious than is the case here.

[39]              The Crown refers to the case of Carlyon v Police.20 Mr Carlyon was sentenced to 18 months’ imprisonment for two breaches of a protection order and one breach of a non-association order. Mr Carlyon appealed the sentence on the grounds that it was manifestly excessive. Mr Carlyon had 56 previous convictions, including ones for assault, damage and trespass. Further, he had 11 convictions for breaches of protection orders. The breaches arose out of two visits by Mr Carlyon to his ex-partner’s house in breach of a final protection order. On the first visit Mr Carlyon hid behind the door and when spotted by his ex-partner, began “ranting and raving” at her. Mr Carlyon eventually left, but located his ex-partner at her friend’s house. When the ex-partner left that house, he called her and threatened to go to her house and “boot the door in” and spoke abusively to her. After the ex-partner returned home with her daughter, Mr Carlyon arrived at the house and threatened the ex-partner if she refuse to hand

20     Carlyon v Police [2017] NZHC 2526.

over her phone. She repeatedly told him to leave, which he refused to do, and instead went to sleep in one of the bedrooms.

[40]              The High Court described the Sentencing Judge’s categorisation of the offending as “not particularly serious” as perhaps unduly favourable, but considered a starting point of 18 months’ imprisonment to be within the permissible range for a starting point.21

[41]              I do not consider Carlyon to be comparable. First, the protection order breaches by G are substantially less serious. Mr Carlyon was abusive, threatening and controlling in his breaches towards his ex-partner. He arrived, and remained at her house despite requests to leave. He threatened to “boot her head in” if she did not relinquish her phone for him to search. G has done nothing of the sort. His breaches are entirely absent the abusive and controlling nature present in Mr Carlyon’s breaches. Second, Mr Carlyon had substantially more prior breaches of protection order. This is exacerbated by his lengthy violent history, including towards his ex- partner. While G does have prior convictions and prior breaches, they are not comparable to those of Mr Carlyon.

[42]              The Crown also drew my attention to Irvine v Police.22 Mr Irvine was sentenced to eight months’ imprisonment for two breaches of a protection order. He appealed to the High Court on the grounds that the sentence was manifestly excessive. The breach involved 23 telephone calls over a period of about two days. Mr Irvine then went to the victim’s house, where he banged on the window of the house and subsequently left the property. These were his only breaches of the protection order. The offending occurred whilst subject to sentence, and Mr Irvine had a history including assault and violence, and breaches of community work. The District Court Judge had adopted a starting point of 10 months’ imprisonment. This was considered to be at the upper limit of the appropriate range.23 I consider G’s offending to be similar to that of Mr Irvine. However, I consider an important factor differentiating the two is the actions taken by Mr Irvine in persistently calling his victim, and banging

21 At [24]. The appeal was successful, but on the ground of the District Court Judge applying an inappropriately high uplift for prior offending.

22     Irvine v Police [2017] NZHC 3085.

23 At [17].

on the window of her house. Those actions are inherently more intrusive than G’s offending, as they amount to an attempt by Mr Irvine to force his victim to have contact with him. The act of leaving a letter is not quite as intrusive, and for that I consider G’s offending to be slightly less serious. Also, Mr Irvine’s criminal history was more serious than G’s.

[43]              The Crown submissions referred to Turner v Police.24 Mr Turner was sentenced to 13 months’ imprisonment for one breach of a protection order. He had a lengthy criminal history, involving violence and 11 previous convictions for breaching protection orders. This particular breach involved sending a text message. The message accused his ex-partner of being a lying cheating evil person. Mr Turner demanded answers from the victim for why she had stolen his daughter from him and “destroyed” him. The District Court Judge rightly described this sort of behaviour as equally as damaging as a physical assault.25 The victim impact statement stated that she had suffered for years from Mr Turner’s psychological abuse and his need for control. Brewer J, allowing the appeal, remarked that a starting point of 14-15 months’ imprisonment would be appropriate.26

[44]              I consider Mr Turner’s offending to be substantially more serious than G’s, and that entirely different sentencing principles are invoked. As pointed out in Turner, there was a strong need to emphasize personal deterrence to Mr Turner. He had a lengthy history of breaching protection orders. In contrast, as discussed above, I consider that G has been responsive to court sanctions. Further, while both Mr Turner and G’s offending involve no violence, the controlling and psychologically abusive elements of Mr Turner’s offending are absent from that of G. Similarly, Mr G’s victim appears entirely indifferent to the offending. In contrast, Mr Turner’s victim was profoundly affected by his offending.

[45]              Finally,  the Crown made submissions on  Bartlett v Police.27  In that case,  Mr Bartlett pleaded guilty to two charges of breaching a protection order and one of breaching prison release conditions. He appealed against the refusal of the District

24     Turner v Police [2017] NZHC 1113.

25 At [5].

26 At [30].

27     Bartlett v Police [2016] NZHC 850.

Court Judge to commute his sentence of 11 months’ imprisonment to one of home detention. The offending arose out of two incidents. First, Mr Bartlett went to his victim’s workplace and began abusing her. He left when the police were called, but called his victim afterwards and continued to verbally abuse her. Second, about two weeks later he emailed her asking her to contact him. In refusing to commute the sentence to one of home detention, Davidson J emphasized that the primary considerations were deterrence and denunciation.28 However, these comments must be seen within the context of Mr Bartlett’s offending.  Davidson J considered that  Mr Bartlett “demonstrated a complete inability or unreadiness to comply with protection orders, [and an] ability to comply with other kinds of court order”.29 I make no such finding about G. Furthermore, it is possible to adequately achieve deterrence through a sentence of home detention.

[46]              The appellant has referred me to Hart v Police.30 In Hart, there was one breach of a protection order by sending text messages. The text messages threatened to disclose the “dirty secrets” of the victim. Mr Hart did not have any recent convictions, and it was his first breach. Whata J found the sentence of 60 hours community work and nine months intensive supervision was “broadly proportionate with the offending” but reduced the community work to 40 hours.31 I consider G’s offending to be more serious than that of Mr Hart. Unlike Mr Hart, G has previous breaches of the protection order. As discussed above, prior breaches of a protection order are important in determining the gravity of the offending.

[47]              Among the cases referred to by the appellant is R v Mitchell.32 I consider this case, alongside Irvine, to be the most helpful. In Mitchell, Ms Mitchell was convicted of four counts of breaching a protection order. The breaches involved leaving voice mail messages for her former partner. She had a substantial history of breaching protection orders. The sentencing Judge described the offending as falling within a “category of its own”. Nevertheless, the unthreatening nature of the voicemails meant

28 At [28].

29 At [27].

30 [2014] NZHC 2741.

31 At [21]. A lot of the cases referred to related to offending before the maximum sentence was increased in 2013.

32     R v Mitchell [2015] NZCA 442, (2015) 30 FRNZ 534.

that the current offending was regarded as not particularly serious. A starting point of eight months’ imprisonment was regarded as “towards the top of the range”,33 although it was reduced to four months imprisonment to reflect totality.34 The case is indicative of the principle that while the breaching of a protection order may be inherently serious, the number of breaches of a protection order alone does not justify a lengthy sentence of imprisonment.

[48]              I am satisfied that an appropriate starting point here would have been somewhere between eight and nine months’ imprisonment.35 Once the discount of 10% for the guilty plea is accounted for an end sentence of imprisonment between just over seven or eight months would result. This shows the sentence imposed on G in the District Court to be one that was manifestly excessive. Accordingly, I am satisfied the appeal against sentence should be allowed.

[49]              The next question is whether the end sentence should be commuted to one of home detention.

[50]              Following sentence on 29 November 2018 G served 51 days of his sentence. He was then released on electronically monitored bail (EM bail) with a 24-hour curfew. This has lasted for 41 days to the date of the appeal hearing.

[51]              Accordingly, G has been on EM bail at his present address now for approximately 50 days. It is an appropriate address from which to serve a sentence of home detention. He has not breached his bail conditions.

[52]              I have concluded that the present sentence of imprisonment should be reduced to eight months, which means that G would only serve half of that term. Before sentencing in the District Court he was employed as a concrete worker. He has not been to prison before. I consider the prospects of his rehabilitation would be more optimistic if he were to remain out of prison. For many young Maori men like G a term of imprisonment only leads to further such terms.

33 At [25].

34 At [22].

35     I note that in Irvine which is one of the more comparable cases this Court considered the 10 month starting point to be at the upper limit of the appropriate range.

[53]              Further, as the Court of Appeal observed in R v Hill a sentence of home detention is recognised to have acknowledged advantages including low rates of re- conviction and re-imprisonment, high compliance rates and positive support for offenders’ reintegration and rehabilitation.36 G’s early positive response to the early sentences he received in 2007 and 2009 demonstrate that he is someone who can learn from his mistakes. I have every confidence that if a sentence of home detention is imposed on him now he will respond positively.

[54]              The period of home detention imposed often equates to the time that would actually be spent in serving a short sentence of imprisonment, although there is no requirement for this to be so. Sometimes the period can be slightly longer in recognition that home detention is not exactly comparable with imprisonment.

[55]              Here I consider a term of between four and five months’ home detention would have been appropriate. Given 51 days of the sentence of imprisonment have been served I consider the period of home detention should be around four months’ imprisonment as this recognises the harsher impact of time spent in prison. I also consider that the time spent on EM bail with an electronic curfew is the equivalent of time spent on home detention. The restriction on liberty has been the same in this case given the 24-hour curfew. Taking all matters into account, I consider that an appropriate sentence of home detention is one that would have run from the date of sentencing on 29 November 2018 to around 1 April 2019. When this is taken from the date of delivery of the judgment on the appeal the period of home detention is reduced to approximately three weeks.

Result

[56]              The appeal against sentence is allowed. The sentence of thirteen months and two weeks imprisonment is set aside.

[57]              G is sentenced to three weeks home detention to commence from the date of delivery of this judgment.

36     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].

[58]He is subject to the standard conditions for sentences of home detention.

Duffy J