Green v Police - [2016] NZHC 745

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000063 [2016] NZHC 745

BETWEEN
GLENN GREEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 April 2016

Appearances:

Appellant in person
E T Fletcher and C D Piho for Respondent

Judgment:

20 April 2016

JUDGMENT OF KEANE J

This judgment was delivered by me on 20 April 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Kayes Fletcher Walker, Auckland

GREEN v POLICE [2016] NZHC 745 [20 April 2016]

[1] On 15 February 2016 in the District Court at Manukau, Glenn Green was convicted of criminal harassment between 1 – 13 August 2015. He was imprisoned for 12 months and became subject to special conditions for six months on his release.

[2] Mr Green was convicted and sentenced for this offence on the day that he pleaded guilty to it, having received a sentence indication from Judge D J McNaughton, which had extended to the release conditions imposed. Despite that he now seeks to appeal his sentence.

[3] He does not appeal his sentence of imprisonment, which he completed soon after it was imposed. He had been in custody on remand for in excess of half that sentence and must have been released immediately. He is presently in custody on remand charged with further related offending, but seeks to appeal his conditions on release.

Grounds of appeal

[4] Originally Mr Green contended that the Judge had no power to impose special conditions on him, in the absence of an application by a probation officer. He now accepts that the Judge did have that power, but contends that the Judge was wrong to impose the special release conditions he did. Those conditions, Mr Green says, derived from a sentence set aside on appeal, and thus he contends lacked any validity in law.

[5] Thus, he contends, as I understand him also to say, that the Judge did not exercise his power to impose special release conditions for any of the purposes for which that power is given, essentially the primary purposes of sentence under the Sentencing Act 2002. He also contends that, by imposing those conditions as part of his sentence, the Judge deprived him of the ability to contest them.

Appeal principles

[6] Mr Green’s right of appeal lies under s 244(1) of the Criminal Procedure Act

2011; a right not affected by the sentence indication he received.1 His special conditions on release are an aspect of his sentence.2

[7] I must allow his appeal, under s 250, if satisfied that “there is an error in the sentence imposed on conviction, and that a different sentence should be imposed”. Otherwise I must dismiss it. The issue is whether the Judge made any relevant error of law or discretion.

Decision under appeal

[8] On 21 July 2015, according to the agreed summary on sentence, Mr Green was released from Auckland Prison subject to release conditions, which he breached by contacting the complainant by letter, and by…

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.

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Details

Case: [2016] NZHC 745
Decision Date: 20 April 2016

CaseChat Overview and Summary

Glenn Green appealed against his sentencing by the District Court at Manukau, specifically the special conditions imposed on his release. The court had to decide whether the judge had the authority to impose such conditions and if the conditions were imposed correctly according to the law. The court held that the judge had the authority to impose special conditions under the Criminal Procedure Act 2011. The judge’s imposition of the special conditions was assessed based on whether they served the purposes of reducing the risk of re-offending, facilitating rehabilitation, and addressing the victim's concerns. The court found that the conditions imposed were tailored to Mr. Green's specific criminal history and risk factors, and thus, they served the intended legal purposes. The court dismissed the appeal, affirming the judge's decision on the special release conditions.

Orders