Hohua v Police

[2013] NZHC 568

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-463-21 [2013] NZHC 568

MARK LOUIS HOHUA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 March 2013 (Heard at Rotorua)

Counsel:         R Plunket for the Appellant

J J Rhodes for the Respondent

Judgment:      20 March 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel / Solicitors:

Ms R Plunket, Barrister, Whakatane

Mr J J Rhodes, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

HOHUA V POLICE HC TAU CRI-2013-463-21 [20 March 2013]

[1]      This is an appeal against sentence in general terms.   Specifically it is an appeal against two special conditions to apply on the appellant’s release from prison following imposition of a sentence of 6 months imprisonment for assaulting a child.

[2]      The  conditions  in  question  relate  to  another  condition,  which  is  not challenged, that the appellant live and remain at a particular address.  The latter condition, and the two that were initially challenged, are:

(a)       You are to reside at an approved address and not to move address without the prior written approval of a probation officer.

…

(e)       You are to be present at your approved address at all times between the hours of 6.00 pm and 6.00 am from Monday to Sunday inclusive.

(f)       You  are  not  to  stay  overnight  at  any  address,  other  than  your approved address, without the prior written consent of your supervising probation officer.

[3]      The issues on appeal, as outlined by Ms Plunket in her written submissions for the appellant, were as follows:

3.Whether the special conditions numbered (e) and (f) can be lawfully imposed … (section 93 (2B) Sentencing Act 2002 and sections 34 and 35 Parole Act 2002).

4.        Whether the special conditions numbered (e) and (f) will:

a)        reduce the risk of reoffending by the appellant; or

b)facilitate or promote the rehabilitation and reintegration of the offender; or

c)provide  for  the  reasonable  concerns  of  victims  of  the offender (section 15 (2) Parole Act 2002).

5.Whether the special conditions numbered (e) and (f) are a breach of section 18 of the New Zealand Bill of Rights 1990.

[4]      The critical submission, however, and being the submission expanded at the hearing, is that the Judge had no jurisdiction to impose the conditions in question (that is to say, conditions (e) and (f)).  In the course of discussions with Ms Plunket she accepted, in essence, that condition (f) is, at least in considerable measure, consistent with condition (a), which is not in issue, and the challenge to condition (f)

was  not  pursued.    In  addition,  from  a practical  point  of view,  if  it  does  cause difficulty for the appellant he can apply for variation.

[5]      The question of jurisdiction is to be determined principally by reference to s 93 of the Sentencing Act 2002 and to s 15 of the Parole Act 2002.  Ms Plunket also relies on s 18 of the New Zealand Bill of Rights Act 1990, but I am satisfied that if there is jurisdiction derived from the Sentencing Act and the Parole Act then s 18 of the Bill of Rights Act, concerned with freedom of movement, could not result in a conclusion that condition (e) could not be imposed.

[6]      The most directly relevant provisions of s 93 of the Sentencing Act and s 15 of the Parole Act are as follows:

93       Imposition  of  conditions  on  release  of  offender  sentenced  to imprisonment for short term

…

special  conditions  includes,  without  limitation,  conditions  of  a  kind described in section 15(3) of the Parole Act 2002, other than an electronic monitoring condition as referred to in section 15(3)(f) of that Act, or a residential restriction condition as referred to in section 15(3)(ab) of that Act

…

(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.

15       Special conditions

…

(3)      The kinds of conditions that may be imposed as a special condition 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:

[7]      The “residential restrictions”, referred to in s 15(3)(ab) of the Parole Act, are defined in s 4 as meaning the special conditions described in s 33.  Section 33(2)(c) makes  express  provision  for  the  imposition  of  a  curfew  related  to  a  residence. Without intending to over-simplify Ms Plunket’s careful submissions on behalf of the appellant, I think an essential part of her submission may be summarised as being that, given that the only express provision for a curfew is in this provision, there is no power to impose a curfew related to what might be called an ordinary residence condition under s 15(3)(a).

[8]      I have been materially assisted by the oral submissions of both counsel on this point. There does not appear to be any previous consideration of it by the courts. I am not persuaded that the fact that the only express power for a curfew is found in s 33 means that there cannot be a curfew as one of the conditions relating to the offender’s place of residence pursuant to s 9(3)(a).  On the other hand, the fact that the  only  express  reference  to  a  curfew  condition  in  the Act,  in  provisions  of relevance, concerns “residential restrictions”, and these are expressly excluded by the  definition  in  s 93(1),  is  possibly  some  indication  that  curfews  are  not contemplated as part of paragraph (a).  In other words the express provision in one provision is an aid to interpretation of the scope of another provision.

[9]      However,  this  question  must  also  be  determined  having  regard  to  other words, both in the definition of “special conditions” in s 93 of the Sentencing Act and the same words used in s 15(3).   Adding emphasis, “special conditions” are defined as including “without limitation, conditions of a kind described in s 15(3) of the Parole Act 2002”.   The same words appear at the beginning of s 15(3) of the Parole Act.  These expressions are broad.  They do not mean that the Court is able to impose any sort of condition.  But it does mean that, when considering the question in this case as to the scope of s 15(3)(a), the Court is being given wide power to impose “conditions relating to the offender’s place of residence”.  It may very well be that the general words “without limitation” and “of a kind” give independent jurisdiction to impose a curfew; that is to say, if it was feasible or if it was practical and appropriate, to impose a curfew that is not necessarily attached to a particular residence, but it is unnecessary to explore that.

[10]     In addition, the scope of s 15(3)(a) needs to be considered having regard to the broader purposes and objectives of the Sentencing Act.   In the present context this is to be considered by reference to, amongst other things, s 93(3).  This specifies what special conditions must be designed to achieve. A curfew in my judgment may readily be considered to be a special condition which could aid one or more of the objectives set out in s 93(3).

[11]    For these reasons I am satisfied that the Judge had jurisdiction to impose condition (e) with this jurisdiction found in s 93 and, through s 93, s 15(3) of the Parole Act.   In terms of the central part of the submissions for the appellant, this jurisdiction in respect of a curfew is not excluded by the particular express provision that is made in s 33 of the Parole Act.

[12]     As a further consequence of this conclusion a curfew condition would not in my judgment be excluded by s 18 of the Bill of Rights Act.

[13]     The next question is whether the curfew condition was one properly imposed having regard to the direction in s 93(3).  The sentencing notes of the Judge do not contain any express indication as to why he considered the curfew condition would meet one or more of the objectives in subs (3).  However, I agree with Mr Rhodes’ submission that this is a matter which often would not be the subject of articulation on sentencing in what may very well have been a busy day in the District Court. The conditions are in fact recommended in the pre-sentence report.  Had there been resistance on behalf of the appellant to imposition of any of those conditions then it might be expected that the Judge would have explained why he considered the conditions were appropriate.  I mention that not by way of criticism of counsel in the District Court but simply to explain why it is entirely understandable that reasons

were not articulated.[1]

[1] See the addendum.

[14]     Given these matters, and also bearing in mind that this involves exercise of a discretion by the sentencing Judge, I am not minded to endeavour to review this question on appeal.  If it was self-evident that the curfew condition served no useful

purpose as contemplated by s 93(3) then there might be justification for reviewing

the matter.   But the nature of the principal offence being dealt with, and the appellant’s history of previous convictions, is sufficient to indicate that this was exercise of a discretion which would not properly be interfered with on appeal.

[15]     For these reasons the appeal is dismissed.

Addendum

[16]     This note has been added to the transcript of the oral judgment.  Following the hearing Ms Plunket advised that, in the District Court, she had submitted that the conditions in question should not be imposed, but she had omitted to advise me in her  reply to  the  submissions  from  Mr  Rhodes.    It  is  appropriate  to  record  Ms Plunket’s advice in fairness to her.  However, this advice does not alter the substance of my conclusion that the Judge’s discretion under s 93(3) should not be interfered

with on appeal.

Woodhouse J