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 imposed.

(4)The court must not vary any existing condition, or impose any new condition, of a kind referred to in section 93(4) (which involves prescription medication) unless the offender—

(a)      has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of

4      Department of Corrections v Luxton [2020] NZDC 9215; and Sentencing Act 2002, s 94.

5 At [35].

6      Criminal Procedure Act 2011, s 244; and Patterson v R [2017] NZHC 49 at [25], affirmed in

Woods v New Zealand Police [2019] NZCA 446 at [21]-[27].

any variation or new condition in relation to the medication and any known risks; and

(b)      consents to taking the prescription medication.

(5)If an application is made under this section for the suspension, variation, or discharge of any condition, a probation officer may suspend the condition until the application has been heard and disposed of.

[6]                 An electronic monitoring special condition is provided for in s 93 of the Act and s 15(3) of the Parole Act 2002. The relevant parts of s 93 are (emphasis added):

(1)A court that sentences an  offender  to  a  term  of  imprisonment  of 12 months or less may impose the standard conditions and any special conditions on the offender and, if it does so, must specify when the conditions expire.

(2)If a court sentences an offender to a term of imprisonment of more than 12 months but not more than 24 months,—

(a)     the standard conditions apply to the offender until the sentence expiry date, unless the court specifies a different date; and sections 94, 95, and 96 apply as if the standard conditions had been imposed by order of the court; and

(b)     the court may at the same time impose any special conditions on the offender and, if it does so, must specify when the conditions expire.

…

(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.

(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.

Fuller Narrative

[7]                 At the initial sentencing, a pre-sentence report was provided in the normal way. It recommended a sentence of intensive supervision with a series of six special

conditions. It was these conditions that became the post-release special conditions attaching to the six-month sentence of imprisonment.7

[8]                 In the report it was noted that Mr Luxton was viewed as a high to very high risk of harm to others. This assessment was based largely on things he said at the interview, rather than being objectively sourced in his offending record. It was noted that during the interview Mr Luxton said:

(a)he had come close to committing a murder the day before (it is not clear in what circumstances);

(b)he had a desire to murder someone but had not done so because he would eventually be the leader and could then do so lawfully;

(c)he would like to kill a person who had been in charge of him many years ago when he was a child; and

(d)he would like to kill former employers who had not paid him properly. He then explained why he had not done this. The reason for not carrying through with it was a state of affairs that would continue to exist into the future. This statement led to the imposition of the condition not to visit the particular café.

[9]                 Mr Luxton has a reasonably extensive past offending record, but for mainly less serious conduct (at least as it appears from the charges and outcomes). Of some significance to the appeal, he has one previous conviction for actual physical violence, being an injuring with intent charge in 2008 when he was 18 years of age. There was accordingly a 12-year hiatus in this type of offending before the current assault charge. There was, however, a threat to kill or do grievous bodily harm conviction in 2014 concerning which no sentence was imposed.

[10]              It seems Mr Luxton has a propensity to make these extravagant claims about what he will do, has done or wants to do. He frequently resides at the Wellington

7 Outlined above at [2].

Night Shelter. He described to the report writer several incidents and altercations there with other residents “in which he found himself tempted to murder”. However, staff at the Night Shelter reported minimal issues with him. The report writer concluded Mr Luxton’s statements may be attempts to intimidate, which was an assessment shared by his Community Mental Health nurse.

[11]              Ultimately, Mr Luxton was sentenced to a term of six months’ imprisonment. The sentencing Judge was concerned by Mr Luxton’s comments and considered a deterrent sentence was needed.8

[12]              The application to vary the release conditions and impose further conditions was made on the last working day prior to Mr Luxton’s release. The accompanying affidavit was made by a probation officer who updated the Court on matters since sentencing. Due to the length of his sentence, he had not been offered alcohol or drug rehabilitative interventions. This explained the request for an additional no alcohol and drug condition.

[13]              Concerning mental health, it was  noted  that  prior  to  being  imprisoned,  Mr Luxton, who has a diagnosis of schizophrenia, was subject to a community treatment order with which he was engaging. However, for reasons not explained, that order would expire on release. In prison Mr Luxton had been refusing medication. This motivated the application for an additional condition requiring Mr Luxton to present to Community Mental Health for appointments as directed.

[14]              It is then noted that Mr Luxton has not engaged with any potential rehabilitative services while in prison. It is unclear what this refers to. The affidavit earlier notes no drug and alcohol interventions were offered due to the length of sentence. This is predictable given the realities of a three-month actual term. If other “potential rehabilitative services” were offered and declined, what these were is not identified.

[15]              The affidavit then explains the reason for the electronic monitoring condition is that it appeared likely Mr Luxton would return to the Night Shelter. That is located

8      New Zealand Police v Luxton, above n 1, at [8].

one kilometre from the café concerning which Mr Luxton made his comments about his former employer, and concerning which there is the special condition:

Not to approach, enter or remain on the premises of [X], or any other place as directed by a Probation Officer.

It is said the electronic monitoring “will more easily allow management” of the existing condition.

Jurisdiction

[16]              For the appellant, Ms Smith first submits the affidavit filed by the probation officer does not meet the terms of s 93(3A) of the Sentencing Act. That is the provision which says that on sentencing, the Court cannot impose an electronic monitoring condition “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. It is submitted that it is not apparent that the deponent, a probation officer, was an authorised delegate of the Chief Executive or even consulted with one, and nor was the probation officer’s opinion canvassed in a pre-sentence report, as required.

[17]              For the respondent, Mr Shaw submits that the power in s 94 of the Sentencing Act to add a condition after sentence can be read independent of the requirements in s 93 that apply to sentencing. I do not accept this. There is no good reason why a pre- condition to the imposition of a condition at sentencing should not apply to imposing the same condition after sentencing. On the other hand, I agree with the respondent that there is no basis for concern in the fact that the Departmental view is located in an affidavit rather than an updated pre-sentence report.

[18]              Beyond this comment, I do not allow the point to be advanced. It was not made at the original variation of release conditions hearing, although I acknowledge the difficulties facing counsel at that time and on which I will comment further. However, nor was it clearly flagged in the appeal documentation or submissions, and I do not have the necessary information, evidence and submissions to determine what is meant by s 93(3A). At its simplest, it may be a means of ensuring that the Court does not impose such a condition of its own motion. At its highest, it may indicate that some

heightened process, beyond an application by a probation officer, is required. It would be inappropriate to rule on this without the necessary material.

[19]              I proceed on the basis that the probation officer had ostensible authority under s 93(3A) which was not challenged in the initial hearing and the point cannot be raised for the first time, without notice, on appeal.

[20]              The other jurisdiction points go more to the merits of the decision, to which I now turn.

Discussion

[21]              I am not satisfied the application presented a sufficient basis for an electronic monitoring condition.

[22]              There was no relevant change of circumstance from sentencing. While not necessarily determinative, it is a factor requiring consideration. There is no suggestion the power in s 94 was intended to be an opportunity to revisit sentencing.

[23]              The primary reason advanced by the respondent is that Mr Luxton was likely to reside at the Night Shelter which was only one kilometre from the protected business premise of his former employer. The existing condition is that Mr Luxton not approach or enter the business. There is no significant increase in risk because of where Mr Luxton is sleeping (an address at which he was always likely to be residing). There is no restriction on Mr Luxton being in town, and the fact that he is residing in town rather than, for example, an inner suburb cannot justify an increased measure such as electronic monitoring. Where he resides has not measurably increased the risk of a breach.

[24]              For this reason the appeal is allowed, and the two conditions concerning electronic monitoring are quashed.9

9      Before issuing this judgment, I became aware from extraneous sources that the business may in fact not now be operating. Given the outcome of the appeal it was unnecessary to raise this with counsel.

Other matters

[25]              The appeal should not pass without comment on two matters. First, the timing of the application, on its face, appears unreasonable and unacceptable.10 Counsel for Mr Luxton and the District Court were placed in an unsatisfactory situation by a last- minute application in relation to a date that is fixed from the time of sentencing. A defendant, and their counsel, are entitled to adequate opportunity to respond, and the Court is not to be unnecessarily pressured in its decision making. There may be reasons of which I am unaware, but absent that it is something that should not occur.

[26]              The related point is that aspects of the affidavit were at best misleading. This matters particularly in a situation of urgency. The affidavit describes Mr Luxton as having a propensity for violence, and talks of a conviction history of “mostly violent, threatening, drug and weapon related offending”. Mr Shaw accepts this was exaggerated. That understates the situation but it is enough to observe that there is an expectation that these affidavits will be a balanced presentation of the information and the reasons why an order is sought. A focus on a clear articulation of the reasons will be of most benefit.

[27]              Mr Shaw is requested to refer these observations to the appropriate Departmental officials.

Simon France J

Solicitors:

Crown Solicitor’s Office, Wellington for Respondent

10     As noted, the initial application to vary the release conditions was made on Friday 22 May 2020, the last business day before Mr Luxton was due to be released on Monday 25 May 2020.