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 sending a friend request to her on Facebook under an assumed name.  When he was charged on 18 August 2015, he was remanded in custody.

[9]      He was to go to trial on 2 March 2016, after he had spent seven months in custody, the equivalent of a 14 month sentence;  and in a joint memorandum, dated

13 January 2016, his then counsel, Mr Couchman, and the Police prosecution service asked for a sentencing indication.

[10]     They agreed that, if Mr Green were to plead guilty, his sentence could only be one of imprisonment; that the starting point was likely to be in the range of 12 -

15 months; that it might be increased by one month for his previous related convictions, which were extensive; and that he should qualify for a full 25 per cent credit for plea.   They anticipated that his sentence might lie in the range 10-12 months imprisonment.

[11]     In the memorandum Mr Couchman also confirmed that, if Mr Green decided to  accept  the  Judge’s  sentence  indication,  a  decision  he  intended  to  make

1      Criminal Procedure Act 2011, s 245.

2      Ibid s 212.

immediately it was given, he would plead guilty immediately, and waive any need for a pre-sentence report.  He wanted to be sentenced on the day.

[12]     On 15 February 2016, when Mr Green appeared before Judge McNaughton. by audio video link from Auckland Prison, the Judge reviewed with Mr Couchman the Police submissions filed for the sentence indication hearing, set against the joint memorandum.

[13]     Mr Couchman told the Judge that at the time of his offence Mr Green was not subject to any special release conditions, because those to which he was to have been subject, when most recently released on 21 July 2015, had been set aside on an appeal. They were not, as the statement of facts assumed, an aggravating factor.

[14]     The  Judge  confirmed  with  Mr  Couchman,  however,  that  if  he  were  to sentence Mr Green himself, as a result of Mr Green deciding to accept his sentence indication,  he had  the  ability to  impose special  release  conditions.    Then,  after indicating the sentence he would impose on Mr Green, and before Mr Couchman took instructions by telephone, the Judge went further.

[15]     The Judge said that he would impose on Mr Green special release conditions for  the  maximum  period,  six  months,  and  that  they  were  to  be  the  last  such conditions that had been imposed on Mr Green. To that Mr Couchman replied:

Right, yes, just to confirm, sir, 12 months a net sentence with special release

conditions, there’s a number of them but he knows what they are. …

[16]     The Registrar then printed out those conditions for the Judge and, after Mr Couchman confirmed that Mr Green accepted the Judge’s sentence indication and wished to plead guilty to the offence and be sentenced immediately on that basis, without a pre-sentence report, the Judge imposed the sentence under appeal.

Special release conditions

[17]     In sentencing Mr Green, the Judge imposed the special release conditions now in issue confirming that they were for the maximum six month period and that

he had derived them from the last set of conditions to which Mr Green had been subject. Those conditions are extensive and they are these:

(a)      To undertake psychological counselling.

(b)      Not to undertake employment or training without approval. (c)      Not  to  possess  or  use  any  electronic  device  capable  of

accessing the Internet.

(d)      To live at an approved address.

(e)      Not to have or operate social media accounts.

(f)       Not to communicate with females in a threatening, predatory or manipulative way.

(g)       To permit examination of any hard drive, computer or phone or Internet-capable device by a probation officer or police officer.

(h)       Non-association  with  any  previous  victims  without  prior written approval of a probation officer.

(i)       Not  to  enter  Devonport,  Howick,  Mt  Wellington  or  the

Auckland CBD.

(j)       Not to enter the city of Hamilton without written consent.

(k)       Not  to  communicate  or  associate  with  any  known  gang members or associates without consent.

(l)       Not to be in possession or gang regalia or memorabilia.

(m)      Not to contact, approach, enter or remain on the premises of any   Westfield   shopping   centre   without   prior   written approval.

(n)       To observe a 9.00 pm to 7.00 am curfew unless there is a written exemption from your probation officer.

Ability to impose special conditions

[18]     As Mr Green now accepts the Judge had the ability, when sentencing him to imprisonment for 12 months or less, under s 93(1) of the Criminal Procedure Act

2011, to impose special as well as standard conditions, and for the same period.  The

Judge did not require an application before exercising that power.

[19]     The issue whether the Judge was entitled to impose the conditions he did is governed rather by s 93(3), which only permits such conditions to be imposed for three purposes; and they are to:

(a)       Reduce the risk of re-offending by the offender; or

(b)      Facilitate  or  promote  the  rehabilitation  and  reintegration  of  the offender; or

(c)       Provide for the reasonable concerns of the victim of the offender.

[20]     In other words, the Judge was able to impose such conditions only if they served the primary purposes of sentence in the Sentencing Act 2002 and responded to Mr Green’s precise criminality and his risk of re-offending.  They could not be more onerous, or last longer, than was consistent with the safety of the community.3

That said, the Judge had a wide discretion to tailor the conditions to answer those

purposes.  He was not confined to those in the Parole Act 2003.4    He could derive them from any sensible source.

[21]     The special release conditions, which had been imposed on Mr Green most recently, were a lawful source.  That they may have formed part of a sentence set aside on appeal as Mr Green contends, is immaterial unless they had been found on that appeal not to conform with s 93(3).

Conclusions

[22]     The special release conditions, which the Judge imposed on Mr Green for his present offence, might well, contrary to Mr Couchman’s submission to the Judge, have applied to Mr Green when he committed his offence between 1 – 13 August

2015, after he was released from prison on 21 July 2015.

[23]     On the appeal the source of those conditions was not established.  They could have formed part of a sentence of two years, six months, for criminal harassment, imposed on him on 15 June 2012, or a three month sentence imposed on 28 May

2015 for breach of the special conditions forming part of that earlier sentence.  If,

3      Adams on Criminal Law, Sentencing, para SA93.01; R v Janssen [2007] NZCA 450 at [15].

4      Parole Act 2002, s 15 (3)(a) – (c);   Latham-Johnstone v Department of Corrections [2014] NZHC 2451 at [17].

instead, they formed part of a two year sentence for criminal harassment, which was quashed on appeal on 22 September 2015, they would still have remained extant when Mr Green committed this present offence.

[24]     Whichever of those sentences was the source of these special conditions is finally immaterial.  The issue is, as I have said, whether they intelligibly serve one or more of the s 93(3) purposes, and have not previously been held on appeal to be incapable of doing so.  There is no suggestion as to the latter and, like the Judge, I am completely satisfied that they serve all three of the s 93(3) purposes.

[25]     Mr Green has an extraordinary history of criminal harassment and his victim in this case appears to have been his principal victim.   The conditions the Judge imposed are clearly carefully devised to deter Mr Green and to assist him to rehabilitate and reintegrate, on the one hand, and to answer the very understandable continuing concerns of his victim on the other.

[26]     Nor can Mr Green complain that he was unaware that the Judge was going to impose these special conditions, when he was sentenced.   They were part of the

sentence indication he accepted.  His appeal is dismissed.

P.J. Keane J