Mark v Police HC Hamilton CRI 2010-419-68

[2010] NZHC 1819

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-419-68

BETWEEN  HINEWAI MARK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 September 2010

Counsel:         G Boot for Appellant

J M O'Sullivan for Respondent

Judgment:      30 September 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 19173, Hamilton

Gavin Boot Law, PO Box 19043, Hamilton

MARK V NEW ZEALAND POLICE HC HAM CRI 2010-419-68 30 September 2010

[1]      Ms Mark appeals against part of a sentence imposed in the District Court at

Hamilton on 3 August 2010.

[2]      Ms Mark had pleaded guilty to one charge of intentional damage and one of possession of the Class C controlled drug, cannabis.   The Judge was prepared to convict and discharge Ms Mark on the cannabis charge.  That left the wilful damage charge for sentence.

[3]      Judge Maze imposed a sentence of four months’ imprisonment.   Ms Mark had already served that time on remand.  Post release conditions of a standard and special nature were imposed, to expire six months after the sentence expiry date.  It is against the imposition of those orders that Ms Mark appeals.

[4]      Mr Boot was assigned on legal aid to represent Ms Mark on the appeal. When the appeal was called before me last week, he indicated that he had seen Ms Mark briefly but wished to take further instructions.  In the time that followed, Mr Boot has not been able to speak to or contact Ms Mark.

[5]      In  the  absence  of  Mr  Boot  having any instructions  of  substance,  I have decided to review the grounds of appeal of my own volition so that Ms Mark has the benefit of judicial scrutiny of the appeal point.

[6]      The special and standard conditions were imposed in direct response to a report  obtained  by  the  Court  under  s 38  of  the  Criminal  Procedure  (Mentally Impaired Persons) Act 2003.   It is clear that the Judge had a basis to believe that standard and special conditions were required and needed to extend for six months after sentence expiry date.  The special conditions related to bicultural therapy and a programme was to be imposed.

[7]      It was open to Judge Maze to impose those conditions.  Indeed, I would have thought them inevitable, having regard to the report she had about Ms Marks’ mental state.

[8]      It is open to Ms Mark to seek variation of release conditions, by application to the District Court under s 94 of the Sentencing Act 2002.   That is the most appropriate method by which to challenge the conditions, as it will enable her to produce such relevant evidence as might be necessary for the Judge who hears the application to determine it.

[9]      On those grounds, the appeal against sentence is dismissed.

P R Heath J