Hughes v The Queen

[2015] NZHC 2181

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000028 [2015] NZHC 2181

BETWEEN

KATRINA MARY HUGHES

Appellant

AND

THE QUEEN Respondent

Hearing:	10 September 2015
Appearances:	D More for Appellant (by way of AVL) R Smith for Respondent
Judgment:	10 September 2015

ORAL JUDGMENT OF GENDALL J

Issue

[1]      The appellant, Mrs Hughes, after a guilty plea was convicted in the District Court on certain drug charges.  She now appeals against one aspect of the sentencing decision of Judge Phillips, given in the District Court at Dunedin on 27 August

2015.1   Specifically, she appeals against the condition imposed by His Honour which

prohibits her from associating with her husband, Mr Christopher Harrington.

Background

[2]      As to the background in this matter, the appellant pleaded guilty to three representative charges of supplying drugs.   One concerned a Class B drug (Ritalin), and two concerned Class C drugs (codeine and cannabis, respectively).  For the first

representative charge she was sentenced to nine months home detention, and for

1      R v Hughes [2015] NZDC 17265

each of the latter two charges she was sentenced to three months home detention. The sentences were to be served concurrently.

[3]      In the District Court, the Judge summarised his sentencing determinations as follows:2

On the charge under charging document 3429 the charge of supplying to unknown persons Ritalin, you are sentenced to home detention for a period of nine months.  That is an extremely lengthy period but I see no other way around the situation. Special conditions will be as I detailed in the pre- sentence report for January 2015:

(a)       You will not be in the possession of or consume alcohol or illicit drugs at any time while on home detention.

(b)       You will attend any treatment and/or counselling for alcohol and/or drug dependency as recommended and directed by the probation officer.  In other words you will do as you are told.

(c)       You  are  not  to  associate  with  any  persons  as  directed  by  the probation officer.

(d)       I specifically add the condition that you are not to associate in any manner      during     your      home      detention     sentence      with Christopher Harrington,   unless   specifically   authorised   by   your supervising probation officer in writing.

[4]      Mrs  Hughes  appeals  now  against  condition  (d)  noted  above,  the  non- association condition with her husband, Mr Harrington.

The Law

[5]      Turning now to the law with respect to this matter, the basis for a Court to impose a sentence of home detention lies in s 80A of the Sentencing Act 2002 (which is referred to hereafter as “the Act”).

[6]      The ability to impose conditions on sentences of home detention is provided in s 80D of the Act. That section relevantly reads:

2      Above at [30]

Special conditions of sentence of home detention

(1)       In addition to the standard conditions that apply under section 80C, the court may, subject to subsections (2), (3), and (7), impose 1 or more special conditions described in subsection (4).

(2)       A court  may  impose  any  of  the  special  conditions  described  in subsection (4) if the court is satisfied that—

(a)       there  is  a  significant  risk  of  further  offending  by  the offender; and

(b)       standard conditions alone would not adequately reduce the risk; and

(c)       the  imposition  of  special  conditions  would  reduce  the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.

(3)       A court  may  only  impose  a  condition  of  the  kind  described  in subsection (4)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this  is  necessary  to  assist  the  offender’s  compliance  with  the sentence.

(4)      The special conditions referred to in subsection (1) or (2) are—

(a)      any  conditions  that  the  court  thinks  fit  relating  to  the

offender’s finances or earnings:

(b)     conditions requiring the offender to take prescription medication:

(c)      conditions relating to a programme:

(d)      a condition requiring the offender to comply with the requirements of judicial monitoring under subpart 2B as directed by a probation officer or the sentencing Judge:

(e)       any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.

…

[7]      The particular conditions potentially imposed are those listed in s 80D(4). Sub-section (e) allows the court to impose “any other conditions” that it deems fit to reduce the likelihood of offending, by that particular offender. This is a wide power.

[8]      It will be noted that the ability to impose special conditions is circumscribed by s 80D(2), which lists three abstract purposes for imposing conditions.  Any such condition imposed must further one of those purposes.

[9]      The appellant submits that an analogy may be drawn between s 80D and s 52(2) of the Act.  The latter pertains to the imposition of conditions on sentences of supervision, and was considered in R v Lomas.3     The condition which had been imposed on Mr Lomas’ sentence involved his giving of lectures at local secondary schools on the ills of drug addiction.4   In quashing that condition the Court of Appeal said:5

However, when it comes to the third special condition imposed by the Judge, we think it appropriate it be quashed given the agreement of the parties that that should result.   The condition was not discussed prior to the sentence being imposed.  Its consequences for both the community and the respondent have  not  been  considered.    The  only  statutory  provision  which  could possibly justify the condition was s 52(2)(c) of the Sentencing Act 2002 if the Court thought the condition would reduce the likelihood of further offending by the respondent.  However, it is hard to see how the condition fulfils that criterion, having regard to the overall circumstances of this case. The other special conditions imposed can be seen to be clearly linked to such an objective.   The third condition cannot.   We therefore accept the submissions for the parties that that condition should be quashed.

[10]     So far as conditions imposed under s 52(2) must be “linked” to an objective listed in s 52(2)(c), the regime in s 52 is of relevance here, as conditions imposed under s 80D are subject to their satisfying one of the purposes listed in s 80D(2). Here,  the  appellant  contends  that  there  was  no  link  between  condition  (d)  of Judge Phillips’ sentence and any of the objectives listed in s 80D(4).

[11]     Albeit briefly, the appellant submits that R v Riri, which was a case under s 80D, provides guidance for this Court.  The appellant’s reason for submitting this is that the Court of Appeal explicitly noted while imposing what they regarded as an “unusual condition”, that they were nonetheless empowered to do so, because there

was a “significant risk of re-offending but for this special condition”.6

[12]     Riri is instructive because it indicates the importance for the sentencing court to explicitly link the imposition of conditions to a general aim of imposing such a condition.  In the absence of explicit reasoning from the sentencing court as to why a

particular condition is being imposed, and specifically linking those reasons to the

3      R v Lomas (CA113/03, 22 July 2003).

4      Above at [3], quoting the sentencing Judge.

5 Above at [30].

6      R v Riri [2008] NZCA 441 at [17].

relevant  aims,  appellate  courts  will  have  greater  difficulty  rationalising  the imposition of such conditions.   Indeed, where the sentencing court fails to give reasons for special conditions, the appellate court cannot satisfy itself that the sentencing court directed its mind to the question.

Discussion

[13]     Turning now to discussion in this matter, regrettably, in imposing as a special condition here, condition (d), and so preventing Mrs Hughes from associating with her new husband, Mr Harrington, Judge Phillips, it seems, did not give express reasons for its necessity.  Further, the possibility of imposing such a condition seems not to have been raised by counsel in oral argument before sentencing.  If a potential condition of home detention is not raised in argument the Judge may still validly impose it on sentencing, but the fact he has not heard argument on the matter may be suggestive of proper consideration not having been given to its appropriateness.

[14]     Of  course,  if  the  imposition  of  the  condition  is  accompanied  by  cogent reasons in the course of sentencing, then the condition will stand.  However, where, arguably as has occurred here, no reasons are given for the condition, the further fact that the matter was not  argued adds  weight to  any suggestion on  appeal of its unreasonableness.

[15]     Although the appellant asserts that the matter was not raised in argument before sentencing, her counsel did comment on the matter in written submissions before the sentencing Judge:7

The defendant has recently married.  Her husband, Christopher Harrington, is awaiting sentence on charges.   The defendant appreciates she will not receive a non-custodial sentence if she resides with her husband, and they are living in separate homes.

[16]     While  that  concession  appears  to  entail  recognition  that  her  husband  is perhaps not an appropriate person with whom to reside, it does not extend to a concession that any further forms of association with him would be inappropriate.

[17]     The Court clearly should be extremely cautious before allowing any person’s liberty to be unreasonably restricted.   The right to freely associate is not to be curtailed lightly.8

[18]     The central problem here is that the condition suffers from a lack of rational connection, as I see it, with any of the aims in s 80D(2), addressing one of which is precedent to the imposition of the condition.  The only possible basis for imposing it would have been to contend that Mr Harrington, who is charged with breach of a protection order (relating to another party altogether) and possession of a firearm, would increase the likelihood of Mrs Hughes’s reoffending, were they to associate.  I leave on one side here the ability of Probation under s 80C(2)(f) of the Sentencing Act 2002 to impose a non-association clause, for good reason, as a condition of managing an offender under the standard home detention conditions imposed under that section of the Act.  That, however, is a standard condition and not a special court imposed condition on a home detention sentence.

[19]     It  is  clear  here  that  Mr  Harrington  does  have  something  of  a  colourful criminal past.  Among his various convictions are instances of violence perpetrated against other persons.  Some of these offences date back to more than a decade ago. Clearly however, he has not acted without fault in the past, and it was perhaps understandable that the sentencing judge took that into account.

[20]     For her part, the appellant contends in her affidavit of 3 September 2015 that Mr Harrington has never been violent or abusive towards her, and that rather than detract from her rehabilitation, his presence would be very helpful.  She submits that while he has previous convictions, none are drug related and he apparently “hates drugs and is not a drug user”.

[21]     In contrast, the Crown submission is that since Mrs Hughes has previously blamed  her  offending  (in  large  part)  on  the  abusive  nature  of  her  former relationships, her association with another partner who has a history of violence would be malign, it would heighten the risk of her reoffending, and so it would justify the imposition of a condition like the one Judge Phillips imposed.

[22]     However, accepting the Crown proposition would result in Mr Harrington partially assuming vicarious liability for the faults of Mrs Hughes’ past partners. Unless  Mr  Harrington  poses  some  pressing  threat  of  domestic  violence  to Mrs Hughes, there is no reason, as I see it, to prevent their association.  True it is that he has a history of general offending, but there is no suggestion of Mrs Hughes being a potential target.  Her statements attest to quite the contrary.

[23]     While Mrs Hughes asserts the malign influence that previous partners have had,  that  is  silent  as  to  the  nature  of  the  influence  that  her  current  partner, Mr Harrington, will have.

[24]     Without advancing reasons of a more specific character than Mr Harrington’s previous history and the past relationships of Mrs Hughes, in my view, there is not a sufficiently rational connection made out between non-association and any of the conditions in s 80D(2) of the Act.

[25]     Further,  it  is  no  principled  answer,  as  I  see  it,  to  suggest  that  because Judge Phillips’  decision  gave  the  probation  officer  discretion  as  to  whether Mrs Hughes and Mr Harrington could associate, the problem is cured.  The question here is about whether any special restriction additional to the home detention sentence, could be imposed.

[26]     As a matter of completeness, neither ss 80D(2)(a) nor (b), in my view, are of particular relevance either.  Both presuppose that the person being sentenced poses some significant risk. That is not so here.

Conclusion

[27]     In  conclusion,  condition  (d)  at  [30]  of  Judge  Phillips’ sentencing  notes, namely that Mrs Hughes is not to associate with Mr Harrington unless prior authority is obtained by her from her parole officer, in my view is unlawful.   It should be quashed and I now do so.   The remaining conditions imposed by Judge Phillips remain valid and the sentence is not otherwise altered.

...................................................

Gendall J

Solicitors:

David More, Dunedin

RPB Legal, Dunedin