Luxton v Police - [2020] NZHC 1355

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-36

[2020] NZHC 1355

BETWEEN
SCOTT MICHAEL LUXTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 June 2020

Counsel:

E J M Smith and C O Thorburn for Appellant M A Shaw for Respondent

Judgment:

16 June 2020

JUDGMENT OF SIMON FRANCE J

[1] Mr Luxton was sentenced to a total of six months’ imprisonment on a variety of offences.1 The main offence was an assault of a shop assistant with whom Mr Luxton had become angry. During the course of this, Mr Luxton threatened to return and shoot the man, told him it was war and that the matter was not over.

[2] The District Court imposed both the standard release conditions,2 and a number of special conditions – an alcohol and drug condition, a non-association condition designed to protect the victim, a condition not to approach a particular Wellington café, and conditions concerning residence and employment.3

[3] Mr Luxton was due to be released on Monday, 25 May 2020. On Friday, 22 May 2020 the Chief Executive of the Department of Corrections applied for a

1      New Zealand Police v Luxton [2020] NZDC 3457. The sentence was for charges of wilful damage, speaking threateningly, and common assault.
2      At [12]; and Parole Act 2002, s 14.
3      At [12]; and Parole Act 2002, s 15.

LUXTON v NEW ZEALAND POLICE [2020] NZHC 1355 [16 June 2020]

variation of the special conditions.4 The variation would take the form of adding four further conditions. Two conditions which related to the possession of alcohol and drugs and attendance at appointments were not opposed.

[4] The other conditions involved placing an electronic monitoring requirement on Mr Luxton. This would enable information on compliance with the existing whereabouts conditions concerning the café. If imposed, the condition would necessitate allowing access to his approved residence for the purposes of checking battery life and related matters. Although opposed by Mr Luxton, these two conditions were also imposed.5 Mr Luxton appeals.6 Two grounds are advanced – there was no jurisdiction to impose the conditions; alternatively, if there was jurisdiction, the decision was wrong.

[5] The power to vary special conditions imposed at sentence is found in s 94 of the Sentencing Act 2002, which provides (emphasis added):

94 Variation of release conditions

(1)An offender who is subject to conditions imposed under section 93, or a probation officer, may apply for an order under subsection (3) of this section.

(2)Section 72 applies with any necessary modifications to an application under this section.

(3)On an application under subsection (1), the court may, if it thinks fit,—

(a) suspend any condition or vary the duration of any condition, or impose additional conditions; or

(b) discharge a condition and substitute any other condition described in section 93 that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was…

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 Luxton v Police

Details

AGLC: Luxton v Police [2020] NZHC 1355
Case: [2020] NZHC 1355
Decision Date: 16 June 2020

CaseChat Overview and Summary

Scott Michael Luxton was sentenced to six months’ imprisonment for various offences, including assault, and had a range of special conditions attached to his release. The New Zealand Police applied for a variation of these special conditions, seeking to add further conditions including electronic monitoring. Luxton opposed the application and subsequently appealed the decision to vary his release conditions. The appeal was heard by Simon France J in the High Court of New Zealand.

The legal issues before the Court were whether the District Court had the jurisdiction to impose the additional special conditions, and if so, whether the decision was correct. The Court found that the jurisdiction to vary special conditions was provided for in s 94 of the Sentencing Act 2002. However, the Court concluded that the application did not present a sufficient basis for the electronic monitoring condition. There was no relevant change in circumstances from sentencing and the existing condition was sufficient to manage any risk. The appeal was allowed and the two conditions concerning electronic monitoring were quashed.

The Court commented on the timing of the application, which was made on the last business day before Luxton was due to be released. The Court considered this to be unreasonable and unacceptable, as it placed Luxton and his counsel in an unsatisfactory position. The Court also noted that aspects of the affidavit were misleading and requested that these observations be referred to the appropriate Departmental officials. The final order was that the two conditions concerning electronic monitoring were quashed.

Orders