Green v Police

[2017] NZHC 3101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-404 [2017] NZHC 3101

BETWEEN

GLENN GREEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 December 2017
Appearances:	Appellant in person B H Dickey for Respondent
Judgment:	13 December 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 December 2017 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

GREEN v POLICE [2017] NZHC 3101 [13 December 2017]

Solicitors:

Meredith Connell (Auckland) for Respondent

[1]      When Judge KJ Glubb sentenced Mr Green to 12 months’ imprisonment for breaching a protection order, he also imposed standard and special post-release conditions for a period of six months.1   Mr Green has been released from prison but he does not want to be subject to all the post-release conditions.   He appeals the following special conditions:

•To observe a curfew at the approved address between 9 pm and 7 am each day, unless you have written approval from your Probation Officer not to be present at the address.

•You must inform your Probation Officer of any intention to enter into a relationship.

•Not to enter any internet café, public library or place of similar business where you can gain access to internet capable devices without prior written approval from a Probation Officer.

•To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a Probation Officer in order to monitor your compliance with any condition(s) relating to your whereabouts.

[2]      Mr Green’s submission overall is that these conditions are unnecessary and are disproportionate in severity to the seriousness of his offence.  Further, he submits that the requirement to inform his probation officer of any intention to enter into a relationship is a substantial breach of his right to associate with others and is too vague and imprecise to be lawful.

[3]      I will deal with this point now.   First, Mr Green misread the effect of the condition.   In his submissions, he described the provision as “not to enter into a relationship”.  That is incorrect.  The requirement is to tell his probation officer if he forms an intention to enter into a relationship.   I find that is not an unnecessary restriction on his right to free association with others (or, indeed, his right to privacy and natural dignity as a person) given his very serious record of breaching protection orders and criminal harassment.   Its purpose is to enable monitoring to prevent

reoffending, and Mr Green has a high risk of reoffending.

1      Police v Green [2017] NZDC 24397.

[4]      However, I agree that the wording of the condition is too imprecise to stand. It could apply to any form of human relationship. The respondent acknowledges this in its submissions.  The Police understand the condition to refer to any intimate and/or domestic relationship in which Mr Green wishes to become involved.  The Police accept that the wording of the condition could be refined to clarify this.  During the hearing I asked Mr Green whether such an alteration would answer his protest and he told me that it would.  I intend to allow his appeal to this extent.

[5]      As to the other conditions, they are submitted by the respondent as being necessary to maintain a reasonable assurance, for the protection of the public, that

Mr Green will not breach the rest of his conditions or otherwise reoffend.

[6]      Mr Green has over 200 previous convictions, including 26 for violence, threats of violence or criminal harassment, and 34 for contravening protection orders.  Much of this history relates to sustained stalking and harassing of different women or teenage girls. There are currently eight protection orders in force against him.

[7]      The protection order Mr Green breached, and for which Judge Glubb sentenced him and imposed these conditions, related to a protection order issued in June 1998 to protect, among other people, the complainant.  At that time, the complainant was a young girl.  The summary of facts to which Mr Green pleaded guilty is to the effect that on 7 April 2017, Mr Green called her place of work in New Lynn, gave his name as “Doug”, an officer of the Court, and engaged her in conversation in relation to the protection order. He asked the complainant if the protection order could be withdrawn. The victim impact statement details the complainant’s disquiet once she realised who was actually talking to her.  The fact that she was contacted after nearly 20 years worries her greatly.

[8]      Mr Green told me that he accepted the summary of facts as part of a plea bargain but says that he found out where the complainant was working by happenstance, had bumped into her eight or nine times over the years, and that there was nothing wrong in contacting her to see if she would consent to the removal of the protection order.  He denies impersonating an officer of the Court.

[9]      I am, of course, bound by the summary of facts to which Mr Green pleaded guilty and, in any event, Mr Green does not have a character which would dispose me to accepting what he says on face value.

[10]     In my view, the other conditions under appeal are appropriate.  The curfew is necessary because night-time stalking is more difficult to detect than day-time stalking.  The electronic monitoring condition is necessary to enforce the curfew and to ensure that Mr Green complies with one of his other conditions, which is not to enter the area of New Lynn (where the complainant works).

[11]     The prohibition on entering into any internet café, public library or place of similar business was the subject of submission to Judge Glubb.  Initially, a condition was proposed that Mr Green not access the internet or possess or use any device capable of accessing the internet without prior written approval and supervision. This was proposed to limit Mr Green’s ability to commit further offences of harassment or breaches of protection orders.

[12]     However, Judge Glubb accepted Mr Green’s counsel’s submission that this would be unduly onerous because it would prevent Mr Green from using day-to-day any telephone with internet access.  Counsel submitted that the existence of another condition allowing a probation officer to check the contents of any internet-capable device  in  Mr Green’s  possession  would  be  sufficient  to  protect  the  community.

Mr Green’s counsel added that the condition that he not enter any internet café, public library or place of similar business without the written approval of the probation officer was also an appropriate condition to mitigate Mr Green’s risk to the community because that way he would not be able to access the internet anonymously or privately. So, Mr Green’s counsel actually contended for this condition which Mr Green now wishes to be free of.

[13]     I think Mr Green’s lawyer was correct, and that the condition mitigates the risk

Mr Green poses to the community.

Decision

[14]     The appeal is allowed to the extent that the special condition imposed by Judge Glubb – “you must inform your probation officer of any intention to enter into a relationship” – is quashed and replaced with the following special condition:

You must inform your probation officer of any intention to enter into any intimate and/or domestic relationship.

[15]     In all other respects, Judge Glubb’s decision is upheld.

Brewer J