Manuel v Police
[2019] NZHC 816
•12 April 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-59
[2019] NZHC 816
BETWEEN MASEON JAI MANUEL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 April 2019 Appearances:
K J Moyer and C Ross for the Appellant
C M Hallaway and B Charmley for the Respondent
Judgment:
12 April 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 12 April 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Ms K J Moyer, Public Defence Service, Manukau
Ms C M Hallaway, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau
MANUEL v POLICE [2019] NZHC 816 [12 April 2019]
[1] Mr Manuel pleaded guilty in the District Court to three charges of breaching release conditions. On 21 February 2019 Judge A M Wharepouri sentenced Mr Manuel to three months’ imprisonment and imposed the following special conditions for six months:1
(a)to reside at a particular Mangere address and not to move to any new residential address without prior written approval of a probation officer;
(b)to submit to electronic monitoring by GPS as directed by a probation officer;
(c)not to enter Mangere East or any other identified area as defined on maps by a probation officer;
(d)not to associate with or contact his partner without the written prior approval of a probation officer; and
(e)to attend a psychological assessment as directed by a probation officer and completing any treatment and/or counselling as recommended by the assessment to the satisfaction of the probation officer.
[2] Mr Manuel appeals on the grounds the period of imprisonment was manifestly excessive and the imposition of the GPS monitoring and non-association conditions was not justified.
The facts
[3] On 28 November 2018 Mr Manuel was released from a term of imprisonment imposed for injuring with intent to injure. On 30 November 2018 he was inducted into his release-on-conditions order requirements and was made aware of his release conditions. He was issued with a direction not to reside at a particular address in Mangere East. This was because Community Corrections and Police had safety concerns for Mr Manuel’s partner. Mr Manuel stated he would continue to reside at
1 NZ Police v Manuel [2019] NZDC 3303.
this address. Mr Manuel was consequently issued a direction for daily reporting, weekdays at 12:30 pm until advised otherwise.
[4] On 4 December 2018 Mr Manuel failed to report as directed (first charge). His partner texted the probation officer stating he could not attend without further explanation. Between 5 and 7 December 2018 he also failed to report (second charge). He made no contact and no further explanation was provided. Between 11 and 13 December 2018 he also failed to report (third charge). He stated that he had appointments but failed to provide any verification despite numerous reminders.
The sentence
[5] The Judge considered that the appropriate starting point should be three months’ imprisonment, reflecting the offending and Mr Manuel’s clear premeditation to breach. The Judge then applied an uplift of one month for Mr Manuel’s previous convictions. He then reduced the sentence by 20 per cent, or one month thereabouts, for Mr Manuel’s guilty pleas. The end sentence was three months’ imprisonment. The Judge noted that Mr Manuel had already served the sentence.
[6] In relation to the conditions of release restricting contact between Mr Manuel and his partner to reduce the risk of reoffending, the Judge said Corrections had pointed out that, while the index offending did not involve Mr Manuel’s partner, he had previously assaulted her. He had been sentenced to home detention with a condition that he attend a Living Without Violence/Family Violence Men’s Programme, which he had not done.
[7] The Judge referred to information from Corrections that there were 41 family home reports said to include Mr Manuel and his partner, but acknowledged counsel’s submission that there was a problem with the accuracy of that information – many of the reports were linked to another address and did not involve Mr Manuel and his partner. The Judge said counsel may have a point but he understood numerous Police safety orders had been issued involving Mr Manual and his partner, and he had breached these in the past.
[8] The Judge said that the Police also pointed to the fact that in their experience Mr Manuel’s partner historically has not been forthcoming when making a statement. The last occurrence of family harm was on 17 December 2018 (after the relevant breaches of release conditions) where the Police became involved after she began cutting up Mr Manuel’s clothes and he was seen out on the street verbally abusing her for doing so. On that day a Police safety order was issued and she was noted as stating that she did not want Mr Manuel returning to the address. The Judge said that behind their fear the Police and Corrections believe that she appears unable to regulate her own safety and that therefore she is an identified potential victim who is at risk of further offending.
[9] Against that, the Judge referred to the affidavit evidence of Mr Manuel’s partner and her mother. His partner stated that she does not fear for her life and is not afraid of him. She would like the opportunity to reconcile with him without unnecessary interference, and the non-association condition in force following the 17 December incident, and the one contemplated, removed. Her mother stated she regards Mr Manuel as a son. She considers him respectful and he is not perceived by her or her family as a threat. She too wanted the condition removed.
[10] The Judge expected any non-association condition to be disregarded but considered he needed to assess whether there were reasonable grounds for the imposition of the conditions, which at their heart have the objective of reducing the risk of further offending. The Judge said he tended to agree with Corrections that the proposed conditions are necessary and that without them they will not be able to manage Mr Manuel safely in the community. The Judge stated that while he did not completely ignore the wishes of Mr Manuel’s partner, the circumstances required greater weight to be given to the safety concerns raised by Community Corrections and the Police.
[11]Dealing with the individual special conditions, the Judge concluded:
(a)The proposed residential address had been determined appropriate by Community Corrections, and the Judge imposed that special condition.
(b)In circumstances where Community Corrections had submitted the electronic monitoring condition was necessary because monitoring Mr Manuel’s whereabouts was important and otherwise unachievable, the Judge considered the condition was appropriate.
(c)The condition not to enter Mangere East or any other identified area was said by Corrections to be necessary to ensure that Mr Manuel did not enter the community where his partner resides. The Judge adopted that condition.
(d)The non-association condition already existed. The Judge was satisfied that this condition was reasonable, justified and designed to reduce the risk of re-offending.
(e)The Judge considered the condition to attend a psychological assessment and complete treatment and/or counselling as recommended was fair, reasonable and important if the risk of re-offending were to be properly addressed.
Approach to appeal
[12] To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.3 However, the appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.4
2 Criminal Procedure Act 2001, s 250(2) and (3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
The arguments on appeal
[13] Ms Moyer, counsel for Mr Manuel, submitted that the GPS monitoring and non-association conditions do not have a nexus to one of the purposes under s 93(3) of the Sentencing Act 2002 (the Act), are not necessary and proportionate, are not a justified limit on Mr Manuel’s rights, and are unduly onerous on Mr Manuel. Also, the Judge gave too much weight to information provided by Community Corrections. Finally, the sentence was manifestly excessive.
[14] In relation to nexus, Ms Moyer submitted that the GPS monitoring and non- association conditions do not have a rational nexus to one of the purposes under s 93(3) as Mr Manuel’s partner was not a victim of the index offending, which involved an incident in the Manukau District Court cells in 2018, and the earlier offence of assaulting his partner in 2016 was too remote. She submitted a pre-disposition towards general violence was not a valid reason for a specific non-association condition with his partner. Also, the GPS condition does not stop Mr Manuel meeting his partner away from her address.
[15] Ms Moyer submitted that the relevant context was that Mr Manuel had taken steps to arrange a safe address with his partner for when he was released from prison. Only the day before, Corrections said they did not approve it. They directed Mr Manuel to reside at his mother’s and brothers’ house, which he considered (and was known) to be a violent address. Ms Moyer also referred to the affidavits from Mr Manuel’s partner and her mother.
[16] Ms Moyer submitted the Judge took account of Mr Manuel’s failure to do an anger management course, but while in custody he was not offered a rehabilitative programme. This should be a focus in sentencing. Mr Manuel has recently been referred to an anger management programme.
[17] Ms Moyer also submitted that there was no evidence to support the Judge’s reference to 41 family harm reports. She submitted this wrongly included a lot of calls relating to the mother’s violent address rather than relating to Mr Manuel and his partner. She noted that she had requested but not received disclosure of relevant Corrections records.
[18] Ms Moyer also stated that she understood that the visit to the proposed residential address determined appropriate by Community Corrections had in fact been some time previously. When Mr Manuel arrived there after release he was told he was not welcome. He had to arrange emergency housing, for which he is incurring further debt to Work and Income.
[19] Ms Moyer submitted that if the risk of reoffending was high as Corrections says, Mr Manuel should already have been referred to a psychologist pursuant to that condition, whereas no referral has yet occurred.
[20] Aside from the conditions, Ms Moyer submitted three months’ imprisonment was manifestly excessive, although she said this was now moot as the time had been served. She submitted one month’s imprisonment would have been more appropriate.
[21] Ms Hallaway, counsel for the respondent, submitted that the Judge did not give too much weight to information provided by Community Corrections. She submitted the Judge had given appropriate weight to the affidavits of Mr Manuel’s partner and her mother.
[22] She submitted there is a clear nexus between the GPS monitoring and non- association conditions and the purposes of s 93(3) of the Act, even though the condition is not related to the victim of the index offending, as Mr Manuel’s earlier offence of assault against his partner in 2016 is still relevant. She submitted the offending was parallel as both offences involved punching.
[23] Given the history of Police safety orders and their breach, the previous offence against Mr Manuel’s partner, his failure to complete the family violence programme and the subsequent offence of violence against another person, Ms Hallaway submitted both conditions are necessary and appropriate or proportionate, justifying limits on Mr Manuel’s rights, and that neither condition is unduly onerous. The GPS monitoring can alert Corrections if Mr Manuel goes to his partner’s address.
[24] Ms Hallaway submitted that three months’ imprisonment was not manifestly excessive, although did not address this in detail given she said the point was moot.
I did not consider the issue moot as the sentence may be relevant to Mr Manuel’s status in the future.5 I asked Ms Hallaway to file a brief supplementary submission, and I thank her for doing so.
Legal principles
[25]Section 93 of the Act relevantly provides:
93 Imposition of conditions on release of offender sentenced to imprisonment for short term
(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.
…
(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.
[26] As the Court of Appeal stated in Patterson v R, the power to impose conditions is expressly limited only by the requirement that such conditions be designed to serve one or more of the purposes in s 93(3), meaning that the condition must exhibit a rational nexus with one of those purposes.6 However, the power is also subject to implicit limits:7
(a)Any condition imposed must be tailored to the offender’s circumstances; it must address the particular risk of re-offending, or prospects of rehabilitation, or victim. The Court of Appeal referred to its earlier decision in R v Janssen:8
The discretion must be exercised consistently with the principles in s 8 of the Sentencing Act, the first five of which
5 Vae v Police [2013] NZHC 2664 at [20]-[22], cited in the respondent’s supplementary submission.
6 Patterson v R [2017] NZCA 66 at [15].
7 At [16].
8 R v Janssen [2007] NZCA 450 at [15].
(those in paragraphs (a)-(e)) require that any condition imposed relate explicably to what has been described succinctly as “the precise criminality”.9 And that must include an assessment of the effect of the offence on any victim: s 8(f).
(b)With regard to s 8(g), (h) and (i) of the Act, the least restrictive sentence principle applies to the imposition of release conditions.
(c)The principle in s 7(2) of the Parole Act 2002 that guides the Parole Board in imposing release conditions has an implicit and helpful place,
i.e. any condition imposed ought not to be more onerous or last longer than is consistent with the safety of the community.10
[27] Any given condition must exhibit a rational nexus to the s 93(3) purposes, and when considered with other conditions it must be reasonably necessary and proportional.11 To achieve these things is to ensure, in the present case, that the conditions are not unreasonable and so do not, without more, contravene the rights to freedom of association and freedom of movement in ss 17 and 18 of the New Zealand Bill of Rights Act 1990 (BORA).12 These BORA-protected rights are subject to such limits as may be demonstrably justified in a free and democratic society. Here that justification is found in the Act.13
Decision
[28] The relevant purpose of the GPS monitoring and non-association conditions is that of reducing the risk of reoffending in s 93(3)(a). There is no suggestion of a rehabilitation or reintegration purpose in s 93(3)(b) nor one of providing for the reasonable concerns of victims in s 93(3)(c) given Mr Manuel’s partner wishes to have contact with him.
9 R v Meroiti CA392/99, 26 October 1999 at [6], citing R v Duffy (1994) 15 Cr App Rep (S) 677 at 681.
10 Patterson v R [2017] NZCA 66 at [15]-[17].
11 At [18].
12 By analogy with the Court of Appeal’s reference in Patterson v R [2017] NZCA 66 at [18] to the power of search in s 21 of the New Zealand Bill of Rights Act 1990.
13 At [21].
[29] Even though the index offence may technically be the failing to report in breach of condition, I do not doubt that release conditions could be designed to address the risk of re-offending in terms of the underlying 2018 offence of injuring with intent to injure. The condition breached was imposed following release from imprisonment for that offence. However, it is common ground that the risk of re-offending that the conditions are designed to address is offending against Ms Manuel’s partner, not the victim of the 2018 offence (whose whereabouts are unknown).
[30] In relation to the nexus between the GPS monitoring and non-association conditions and the risk of reoffending against Mr Manuel’s partner, Ms Hallaway submitted that Mr Manuel’s earlier offence of assault against his partner in 2016 is still relevant. She submitted that even though the index offending involved a different victim, both offences involved punching. I accept both offences involve violence in the form of punching, but the similarity really ends there. In any event, a condition that an offender not associate with his partner of four years when being sentenced for a non-domestic violence offence seems to stretch the rational nexus.
[31] Ms Hallaway supported her submission by reference to R v Janssen, where the Court of Appeal stated:14
We remain concerned, however, that he has an abiding interest in sexual images, which have included peripherally those of pre-pubescent boys and girls involved in sexual activity. That a sentence of eight months imprisonment was imposed for that offending on a man of Mr Janssen’s age speaks for itself. Though his indecencies on adolescent girls may have been on pupils of his, subject to his authority, and may now be historic, they are not to be discounted either.
[32] The Court of Appeal’s statement that that the earlier offending was not to be discounted was in the context of a special condition governing a sex offender’s unsupervised contact with children, not the separate conditions in that case relating to where he was to live. In the event, the Court of Appeal set aside the condition as to where he was to live by consent. The Court of Appeal was unconvinced that special condition was essential, considering the standard condition as to residence would suffice.
14 R v Janssen [2007] NZCA 450 at [27].
[33] I readily accept that a condition designed to reduce the risk of reoffending may prohibit or limit association with at risk classes of persons (such as children in the case of R v Janssen) or with specific victims where appropriate. However, I do not consider R v Janssen is authority for a condition applying specifically to a victim of a non-index offence. Ms Hallaway indicated that R v Janssen was the only relevant authority found.
[34] The Judge understandably sought to weigh the stated wishes of Mr Manuel’s partner and her mother against the concerns of Police and Corrections that Mr Manuel’s partner appears unable to regulate her own safety. However, I consider that balancing only arises if there is a rational nexus between the conditions sought and the risk of reoffending. As the Court of Appeal has said, that is the particular risk of re-offending, focusing on the precise criminality,15 or as s 8(a) of the Act states the offending in the particular case. The particular case here is not assault against Mr Manuel’s partner. Given the approach set out by the Court of Appeal, I am reluctant to extend the scope of the special conditions on release in this case to non-association with Mr Manuel’s partner for six months on account of his prior male assaults female offence in 2016, particularly against her wishes and those of her mother. No such condition was imposed, or available, when Mr Manuel was sentenced to home detention for that offence in 2016. As Palmer J stated in Te Whatu v Dept of Corrections, there are few more serious breaches of the right to freedom of association than preventing someone from associating with their own partner.16 The position may well have been different in terms of nexus if Mr Manuel’s 2018 offence had been one of family harm or violence against another female.
[35] In relation to the GPS condition, Mr Manuel’s index offending was failing to report in breach of condition and he has a history of breaching conditions and non- compliance with Court-imposed orders and sentences. If the non-association condition were justified, I accept the GPS condition may also have been justified to monitor compliance and thereby mitigate the risk of reoffending. Ms Moyer did not separately challenge the breadth of the condition not to enter Mangere-East.
15 See [26] above.
16 Te Whatu v Dept of Corrections [2017] NZHC 3233, [2018] 2 NZLR 822 at [33].
[36] I consider a condition that Mr Manuel complete the family violence programme would have been warranted given the index breach of release conditions followed a term of imprisonment imposed for injuring with intent to injure. Mr Manuel’s PAC report indicated he has a propensity for violence and numerous previous convictions for violent offending and non-compliance with Court directed sentences and orders. He was assessed as being at a high risk of reoffending and posing harm to the community, with a low prospect of compliance with directions. I note the condition to attend a psychological assessment as directed by a probation officer and complete any treatment and/or counselling as recommended. The family violence programme may have been recommended. In any event, I understand Mr Manuel has recently been referred to a programme.
[37] Finally, I deal with the sentence of three months’ imprisonment. Counsel were unable to find any directly comparable cases, but the respondent’s supplementary submission cited two cases involving breach of release conditions.17 While three months’ imprisonment may seem at the upper end of the appropriate range for failing to report, I do not consider that the sentence can be considered manifestly excessive in the circumstances. There were three charges, albeit involving a failure to report on a daily basis over a 10 day period. Premeditation appears to have been a legitimate aggravating feature. Mr Manuel’s relevant previous convictions warranted an uplift before the guilty plea discount.
Result
[38] The appeal is allowed to the extent that the non-association and GPS monitoring conditions are set aside. In all other respects the sentence stands.
Gault J
17 Koti v R [2018] NZHC 547; and Mason v Police [2018] NZHC 3387.
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