Green v The Queen

[2019] NZCA 602

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA473/2019
 [2019] NZCA 602

BETWEEN	GLENN GREEN Applicant
AND	THE QUEEN Respondent

Court:	Collins, Brewer and Gendall JJ
Counsel:	Applicant in person J A Eng for Respondent
Judgment: (On the papers)	29 November 2019 at 3.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

1. The applicant pleaded guilty to a charge of blackmailing the chief executive of a United States company based in Los Angeles and was sentenced in the District Court to 17 and a half months’ imprisonment.[1] 

   [1]R v Green [2019] NZDC 9117.

2. He appealed to the High Court unsuccessfully against three of the release conditions imposed by the District Court Judge on sentencing.[2]  The applicant now seeks leave of this Court to appeal against the High Court decision.  This leave application is opposed by the respondent.

   [2]Green v R [2019] NZHC 2220.

3. In the High Court the three release conditions challenged by the applicant were: 

   (a)the GPS monitoring condition, which required him to submit to electronic monitoring as directed by a probation officer to monitor his compliance with conditions relating to his whereabouts;

   (b)the employment condition, prohibiting the applicant from undertaking any employment or training, paid or unpaid, without the prior written approval of a probation officer; and

   (c)the internet access condition, prohibiting the applicant from entering any internet café, public library or place of similar business where he could gain access to internet capable devices without prior written approval from a probation officer. 

4. Lang J considered the blackmail offending and the applicant’s very substantial criminal history.  He found, first, that the internet access condition was a proportionate and balanced response to the risk posed, secondly, that the GPS monitoring condition was necessary to ensure compliance with that condition, and, thirdly, that the employment condition was appropriate (and that the challenge to it was a challenge to the manner of its application, not its existence).[3] 

Legal principles

[3]At [21], [25] and [27]–[28].

1. An application for a second appeal against sentence is brought pursuant to s 253 of the Criminal Procedure Act 2011.  This Court must not grant leave unless it is satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard. 

2. In McAllister v R, this Court considered that the “general or public importance” limb of s 253(3) would be met where a proposed second appeal against a sentence gave rise to an issue of “general principle or of general importance in the administration of the criminal law by the Courts”.[4]  By way of example, that would be the case where an appeal related to “an important question of law having broad application beyond the circumstances of the particular case”.[5]

Discussion

[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]; citing Keenan v R [2005] NZSC 63 at [5].

[5]At [36].

1. The applicant’s two proposed grounds of appeal are that:

   (a)the Judges in the Courts below did not consider Patterson v R, which requires conditions imposed to be reasonably necessary, proportional and have a rational nexus with the risk of reoffending, promoting rehabilitation and reintegration of the offender, and providing for the reasonable concerns of the victims of the offending;[6] and

   (b)the Department of Corrections is “abusing its own rules and regulations and denying me my civil and legal rights”.

   [6]Patterson v R [2017] NZCA 66 at [18].

2. As to the first proposed ground of appeal, the District Court Judge in her decision at [70] and [77] explicitly referred to and applied the principles set out in Patterson. Lang J, in his decision in the High Court at [16], also referred to and applied the principles set out in Patterson.  We find, therefore, that the first proposed appeal ground is unsustainable.

3. As to the second proposed appeal ground, Mr Green submits that the conditions are being imposed in a harsh and unfair manner.  This does not provide any basis, however, to challenge the existence of the conditions themselves and we find in all the circumstances here that they are reasonable. 

Result

1. For all these reasons, we decline the application for leave to bring the second appeal. 

Solicitors:
Crown Law Office, Wellington for Respondent