Winkelmann CJ, Ellen France, Williams, Kós and Miller JJ
Counsel:
V E Casey KC and I J G Hensman for Appellant C A Griffin and T Zhang for First Respondent M S Smith and V J Owen for Second Respondent E P Priest and J J Jackson for The Law Association of New Zealand Inc as Intervener S Thode and J W Wall for Criminal Bar Association of New Zealand Inc as Intervener
Judgment:
18 November 2025
JUDGMENT OF THE COURT
AThe appeal is allowed. The decision of the Court of Appeal is set aside. The finding of the High Court that the issue for the Board on any reconsideration of the appellant’s conditions is as set out in the decision of Gwyn J at [130(a)–(b)] is reinstated.
BThe respondents must pay the appellant one set of costs of $30,000 plus usual disbursements, provided that the amount does not exceed the amount paid by the Legal Services Commissioner for the appellant to bring this appeal. We allow for second counsel. If the amount paid by the Legal Services Commissioner is less than $30,000 plus usual disbursements, the respondents must pay the appellant one set of costs equal to that lesser amount.
WINKELMANN CJ, ELLEN FRANCE AND WILLIAMS JJ (Given by Winkelmann CJ)
Table of Contents
Para No
Introduction
[1]
Background
[2]
High Court
[14]
Board reconsideration
[16]
Court of Appeal
[17]
Subsequent consideration of the issue by the Board
[19]
The relevant legislation
[24]
The argument
[35]
The issues
[39]
Issue one: Is undue risk the measure?
[40]
Issue two: How must the Board decide whether to continue special conditions?
[57]
(i) Is it necessary for the Board to undertake a s 5 proportionality analysis?
[57]
(ii) Is the Board required to address the question of imposition or continuation on a condition-by-condition basis?
[60]
Issue three: Mr Grinder’s appeal
[64]
Disposition
[67]
Introduction
[1] The appellant was sentenced to preventive detention in 2003 for a lengthy history of sexual offending against children and young people. He will remain subject to that sentence, and at risk of recall to continue serving it, for life.[1] In April 2019, the appellant was released on parole, subject to a variety of conditions. Section 58 of the Parole Act 2002 gives the New Zealand Parole Board (the Board) the power to discharge or vary any of an offender’s release conditions following release. The appellant has applied unsuccessfully for an order discharging conditions limiting his freedom of movement (a whereabouts condition) and requiring that he be electronically monitored.[2] This appeal raises issues of statutory interpretation in relation to s 58: what risk threshold should the Board have applied when deciding the application…
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.
Continue reading Grinder v Attorney-General
Sign in free to access the full text
Details
AGLC
Grinder v Attorney-General [2025] NZSC 165
Case
[2025] NZSC 165
Decision Date
CaseChat Overview and Summary
The appeal was heard by Winkelmann CJ, Ellen France, Williams, Kós, and Miller JJ in the Supreme Court of New Zealand. The appellant, Brett David Grinder, had been sentenced to preventive detention for a history of sexual offending against children and young people. He was released on parole in April 2019, subject to special conditions, including a whereabouts condition and electronic monitoring. Grinder sought to discharge these conditions, arguing they limited his freedom and employment opportunities. The High Court found in his favour, directing the Board to reconsider the conditions with a focus on whether they were a reasonable, necessary, and proportionate means of ensuring Grinder did not pose an undue risk to the community. The Court of Appeal overturned the High Court's decision, holding that the Board was not required to apply an undue risk threshold when deciding on the imposition or continuation of special conditions. Grinder appealed to the Supreme Court, arguing that the Board should have applied an undue risk assessment when considering the discharge of his conditions. The Court allowed the appeal, holding that the Board must undertake a proportionality analysis when deciding whether to continue special conditions. The Court clarified that the undue risk standard is relevant to the imposition and continuation of conditions, and that the Board must consider whether the conditions are necessary to manage undue risk while also considering their impact on the offender's rehabilitation and reintegration. The Court of Appeal's decision was set aside, and the High Court's finding on the issue for the Board on any reconsideration of the conditions was reinstated. The Board was required to pay Grinder one set of costs of $30,000 plus usual disbursements, provided that the amount does not exceed the amount paid by the Legal Services Commissioner for Grinder to bring this appeal. If the amount paid by the Legal Services Commissioner is less than $30,000 plus usual disbursements, the Board must pay Grinder one set of costs equal to that lesser amount.