Green v The Queen
[2019] NZHC 2220
•5 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-199
[2019] NZHC 2220
BETWEEN GLENN GREEN
Appellant
AND
THE QUEEN
Respondent
Hearing: 2 September 2019 Appearances:
Appellant in person
H Steele for Respondent
Judgment:
5 September 2019
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 5 September 2019 at 3.30 pm.
Registrar/Deputy Registrar Date……………
GREEN v R [2019] NZHC 2220 [5 September 2019]
[1] Mr Green pleaded guilty in the District Court to a charge of blackmail. On 16 May 2019, Judge C M Ryan sentenced him to 17 and a half months imprisonment.1 Mr Green does not appeal against that sentence. He appeals, however, against several release conditions the Judge imposed. These were:
(a)A condition prohibiting Mr Green 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.
(b)A condition requiring Mr Green to submit to electronical monitoring using GPS technology as directed by a probation officer to monitor his compliance with any conditions relating to his whereabouts.
(c)A condition prohibiting Mr Green from undertaking any employment or training, paid or unpaid, without the prior written approval of a probation officer.
[2] In order to understand the reasons underlying the imposition of the release conditions, and the arguments in support of and in opposition to the appeal, it is necessary to set out the background to Mr Green’s present offending as well as his criminal history.
The present offending
[3] Mr Green pleaded guilty on the basis of an agreed summary of facts. This recorded that the victim of his offending was the Chief Executive Officer of a prominent American company based in Los Angeles. On 19 March 2018, Mr Green called the victim’s workplace and spoke to the victim’s executive assistant. He told this person that he had in his possession information that would be of interest to an American newspaper (the Los Angeles Times) and a magazine (People)regarding the victim’s personal life, including details of an extramarital affair in which he was allegedly engaged. Mr Green told the victim’s assistant he would release the
1 R v Green [2019] NZDC 9117.
information, including photographs, to these media outlets unless the victim made a payment to him.
[4] The victim then telephoned the number Mr Green provided. During this conversation Mr Green repeated his threats and told the victim he needed to pay him a sum of money to avoid the information being released to media outlets. The victim then blocked Mr Green’s mobile phone number from his cellphone.
[5] Over the next six days Mr Green used a different telephone number to send 24 text messages to the victim and to leave two voicemail recordings on the victim’s cellphone. These communications were in broadly similar terms to what Mr Green had said to the victim when he telephoned him on 19 March 2018. Mr Green also threatened to disclose the material he held in his possession to the victim’s wife and daughter and to others. These threats prompted the victim to arrange for security to be placed around his address for an extended period.
[6] On 28 March 2018 the victim received a letter Mr Green sent to him from New Zealand. The letter was handwritten and was accompanied by photographs of people, screen shots and New Zealand store advertisements. Mr Green advised the victim in the letter that he would leak photographs and related information to the “Los Angeles Times” newspaper and “People” magazine should the victim refuse to pay him.
[7] Not surprisingly, the offending caused both the victim and his family very considerable and long lasting anxiety.
Mr Green’s criminal history
[8] Mr Green has no fewer than 198 previous convictions for offending of different types. He has convictions for offending involving violence including assault, wilful damage, intimidation, speaking threateningly, assaulting police and resisting police. He also has 35 convictions for breaching the terms of a protection order.
[9] In addition, Mr Green has numerous previous convictions for offending involving dishonesty. These include convictions for shoplifting, theft, receiving stolen goods and unlawfully taking or interfering with a motor vehicle. He also has
convictions for forgery and altering a cheque, as well as burglary (x 2), stealing a motor vehicle and fraudulent use of a document (x 50).
[10] Of particular relevance to the present appeal is the fact that Mr Green has been convicted on eight occasions of misusing a telephone and using a telephone offensively. He has also been convicted for sending a threatening letter, making a false claim of fire, impersonating police (x 3), making a false statement that an offence had been committed (x 3), giving a false oath (x 2), perverting the course of justice (x 6) and engaging in criminal harassment (x 8).
[11] The latter convictions have led to Mr Green being regarded by the courts and the news media as a serial stalker whose activities cause considerable distress to his victims.
The statutory regime
[12] Where a Court sentences an offender to 12 to 24 months imprisonment, the standard conditions set out in s 14(1) of the Parole Act 2002 (the Parole Act) apply to the offender until he or she reaches the sentence expiry date.2 In addition, the Court may impose special conditions that will apply for the same period as the standard conditions.3
[13] Section 93(3) of the Sentencing Act 2002 (the Sentencing Act) restricts the circumstances in which special conditions may be imposed as follows:
93Imposition of conditions on release of offender sentenced to imprisonment for short term
…
(3)A special condition must not be imposed unless it is designed to—
(a)reduce the risk of reoffending by the offender; or
(b)facilitate or promote the rehabilitation and reintegration of the offender; or
(c)provide for the reasonable concerns of victims of the offender.
2 Sentencing Act 2002, s 93(2)(a) and (2B).
3 Sentencing Act 2002, s 93(2AB) and (2B).
[14] In this context, the term “special conditions” is defined to include, without limitation, conditions of the type described in s 15(3) of the Parole Act, other than a residential restriction condition as referred to in s 15(3)(ab) of that Act.4 Section 15(3) provides:
…
(3)The kinds of conditions that may be imposed as special conditions include, without limitation,—
(a) conditions relating to the offender's place of residence (which may include a condition that the offender reside at a particular place), or his or her finances or earnings:
(ab) residential restrictions:
(b) conditions requiring the offender to participate in a programme (as defined in section 16) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender:
(ba) conditions prohibiting the offender from doing 1 or more of the following:
(i)using (as defined in section 4(1)) a controlled drug:
(ii)using a psychoactive substance:
(iii)consuming alcohol:
(c) conditions that the offender not associate with any person, persons, or class of persons:
(d) conditions requiring the offender to take prescription medication.
(e) conditions prohibiting the offender from entering or remaining in specified places or areas, at specified times, or at all times:
(f) conditions requiring the offender to submit to the electronic monitoring of compliance with any release conditions or conditions of an extended supervision order, imposed under paragraph (ab) or (e), that relate to the whereabouts of the offender:
(g) an intensive monitoring condition, which must, and may only, be imposed if a court orders (under section 107IAC) the imposition of an intensive monitoring condition.
[15]In addition, s 93(3A) of the Sentencing Act provides:
4 Sentencing Act 2002, s 93(2B).
(3A) The court must not impose an electronic monitoring condition described in section 15(3)(f) of the Parole Act 2002 unless it has had regard to the opinion of the chief executive of the Department of Corrections in a pre-sentence report provided under section 26.
[16] It is now well established that a special condition imposed under s 93 of the Sentencing Act or s 15 of the Parole Act must exhibit a “rational nexus” to the purposes set out in s 93(3), and it must be reasonably necessary and proportional when considered with the other conditions to be imposed.5 It must also be tailored to the offender’s circumstances, and be designed to address his or her particular risk of reoffending and/or prospects of rehabilitation.6
The appeal
Prohibition on entering certain places
[17] The Judge did not refer expressly to the need for this condition in her sentencing remarks. Rather, her remarks focussed on the need for a GPS monitoring condition to ensure that any condition prohibiting Mr Green from entering or remaining in specified places or areas could be monitored by the use of GPS.7
[18] Plainly, however, Mr Green presents as a real risk of future offending through use of the internet. His previous convictions for similar offending and past record of failing to comply with court orders establish this risk beyond question. He is therefore subject to release conditions, not challenged in the present appeal, that require him to permit the probation service to inspect any electronic devices in his possession. Mr Green told me during the hearing that the probation service regularly obtains access to his devices to enable it to inspect his browsing history. This is done to ensure he has not engaged in conduct similar to that for which he has been convicted in the past.
[19] Mr Green submits, however, that the condition preventing him from entering an internet café, public library or place of similar business where he can gain access to internet-capable devices is ineffective. He says that, if he wished to obtain access
5 Patterson v R [2017] NZCA 66 at [18].
6 At [16].
7 R v Green, above n 1, at [76]-[77].
to such devices, he could easily go to the address of a neighbour or a friend and obtain access to such devices without being in breach of any release condition. Furthermore, the authorities would have no way of knowing what he had been doing.
[20] I accept Mr Green’s argument on this point as far as it goes. Arguably, however, it serves only to highlight the possibility that the present release conditions do not go far enough. They should arguably have prohibited Mr Green from being permitted to visit any address at which he might be able to obtain unmonitored access to a device capable of accessing the internet. Mr Green would no doubt contend, however, that such a condition would be disproportionate and oppressive because it would largely prevent him from having social contact with other persons at their home address.
[21] The argument does not, however, detract from the need to minimise the extent to which Mr Green can gain unsupervised and unmonitored access to the internet. The seriousness of Mr Green’s previous offending, and his willingness in the past to breach Court orders and conditions, means the Judge was entitled to take such steps as she considered appropriate to minimise that possibility because it presents the greatest risk of further similar offending in the future. The condition the Judge imposed effectively prevents Mr Green from entering any business premises to which the public have access if there are internet capable devices within those premises. I consider this was a proportionate and balanced response to the risk that Mr Green poses of offending in the future. This aspect of the appeal fails as a result.
GPS Monitoring
[22]The Judge dealt with this issue as follows:
[76] Corrections seek conditions as to your place of residence, participating in a programme and prohibiting you from entering or remaining in specified places or areas at all times. You are a high-risk offender who does not want to abide by these conditions. I consider that a condition under s 15(3)(f ) is designed to ensure that the condition of residence and the condition prohibiting you from entering or remaining in specified places or areas, are covered by the imposition of a GPS condition.
[77] I accept the guidance from Patterson that there needs to be a link between the offending and the condition imposed. You were able both in this case and in the past, to have access to a complainant and a phone, which you
used to attempt to blackmail the victim. Your harassment of this and past victims has been persistent. Given your history, the high risk of re-offending, your lack of regret, your minimising of your offending, and your words to the probation officer that you are going to appeal any conditions imposed, it is highly likely that a GPS condition is required to ensure compliance with s 15(2)(a)(b) and probably (c) and 15 (3)(a) and (ab) and (e). Accordingly, I am going to impose it as part of your release conditions.
[23] As will be evident from the Judge’s reference to s 15(3)(a), she considered GPS monitoring capability was necessary in part to ensure Mr Green complied with the condition that he reside at the specified address. Section 15A of the Parole Act provides that an electronic monitoring condition imposed under s 15(3)(f) is to deter the offender from breaching conditions that relate to his or her whereabouts, and to monitor compliance with those conditions. Importantly, however, s 15(3)(f) expressly provides that electronic monitoring in this context is only to ensure compliance with release conditions imposed under s 15(3)(ab) and (e). These relate to residential restrictions and conditions prohibiting the offender from entering or remaining in specified places or areas. Mr Steele for the respondent therefore accepted that the power to impose a GPS monitoring condition could not be imposed to monitor compliance with a residential condition under s 15(3)(a) unless it was accompanied by a further condition imposing a residential restriction such as a curfew.
[24] Although Mr Green was subject to a residential condition under s15(3)(a), he was not subject to any residential restriction. Mr Steele therefore accepted that GPS monitoring could not be used to monitor compliance with the residential condition alone.
[25] In other respects, however, I agree with the Judge’s conclusion that electronic monitoring was necessary to ensure compliance with the restriction on entering public places where the ability to gain access to internet capable devices was present. I consider the only realistic way to monitor that condition is by way of GPS monitoring. Mr Green complains that this means he is subject to questioning by the monitoring authorities every time he walks past an internet café or public library. That may be so, but I see no other way in which the condition can be realistically monitored and enforced. Provided he does not enter or remain within such premises Mr Green has nothing to fear from this condition.
The employment condition
[26] This condition prohibits Mr Green from obtaining employment without the prior approval of his probation officer. Mr Green says that he has already obtained several offers of employment but on each occasion his probation officer declined to approve the employment unless Mr Green disclosed his previous offending to the prospective employer. He says that this resulted in him not proceeding with his applications for employment.
[27] Mr Steele submits that this argument does not constitute an appeal against the imposition of the condition but rather against the manner in which it is being applied. For that reason he contends the appeal cannot succeed, and that Mr Green must look elsewhere for a remedy if he is unhappy with the manner in which the probation service is applying the condition. He suggests, for example, that Mr Green could bring judicial review proceedings if he considered the probation service was not enforcing the condition in an appropriate manner.
[28] I accept this argument and I also consider the imposition of the condition was appropriate. Mr Green’s previous convictions demonstrate that he is plainly unsuited to some forms of employment. Positions in which he is required to handle money would fall within this category.
[29] I am reluctant to completely ignore the issue Mr Green raises, however, because his ability to obtain employment is likely to be an important factor in his rehabilitative process. It is also unrealistic in my view to require Mr Green to apply for judicial review whenever he considers the probation service has acted inappropriately in declining to approve an offer of employment.
[30] In imposing this condition the Judge said that she “encourage[d] the probation officer to assist you and encourage you to obtain employment, because you definitely have skills which can be best used by being employed in the community”.8 Earlier in her remarks the Judge also said that she was imposing special release conditions to reduce the risk of offending and provide for the reasonable concerns of victims, as
8 R v Green, above n 1, at [89](h).
well as facilitating or promoting Mr Green’s rehabilitation or reintegration. The rehabilitative aspect of the conditions needs to be borne in mind in the present context.
[31] There is also some force to Mr Green’s submission that it should be left to prospective employers to seek such information as they may require about his past before they employ him. If they are not sufficiently concerned to make enquiries about previous convictions he should not be required to disclose them. A blanket requirement that he disclose his convictions in every case could also cost him job opportunities that may otherwise be available to him. That would hinder the rehabilitative process for obvious reasons.
[32] It seems to me that the greatest risk of future offending lies in Mr Green’s ability to gain access to electronic devices that permit him to obtain unsupervised and unmonitored access to the internet. That certainly appears to be the focus of the remainder of his release conditions and I consider it is also relevant in the context of his future employment.
[33] Mr Green told me during the hearing that he is seeking a position as a mechanic in a garage or car repair business. He says this will not involve him having access to electronic devices capable of gaining access to the internet. I consider, for what it is worth, that the probation service should permit Mr Green to apply for such positions without being required to disclose his previous convictions so long as it can be sure the job will not permit him to have access to any internet capable device. It will be for Mr Green to satisfy the probation service that any position for which he applies meets this requirement. This does not detract in any way from Mr Green’s general obligation as a prospective employee to honestly answer any questions an employer may ask about his past history.
Result
[34]Subject to those remarks the appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Auckland Copy to Appellant
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