McAllister v Police
[2019] NZHC 828
•15 April 2019
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2019-483-2
[2019] NZHC 828
BETWEEN BRUCE MCALLISTER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing (via AVL): 15 April 2019 Counsel:
No appearance for Appellant
M Wilkinson-Smith for Respondent
Judgment:
15 April 2019
ORAL JUDGMENT OF CHURCHMAN J
Introduction
[1] On 13 December 2018, Mr McAllister was sentenced by Judge Crayton in the Whanganui District Court to 23 months’ imprisonment in respect of the following charges:1
(a)arson;2
(b)common assault;3
(c)possession of cannabis;4
1 R v McCallister [2018] NZDC 26219.
2 Crimes Act 1961, s 267(2)(a); maximum penalty seven years’ imprisonment.
3 Section 196; maximum penalty one year’s imprisonment.
4 Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months’ imprisonment and a $500 fine.
MCALLISTER v NEW ZEALAND POLICE [2019] NZHC 828 [15 April 2019]
(d)possession of a pipe;5 and
(e)possession of methamphetamine.6
[2] He filed an application for leave to appeal out of time against the imposition of a release condition that he attend with and be assessed by a Department of Corrections psychologist on the basis that such an order was neither needed nor necessary.
[3] Arrangements were made for Mr McAllister’s attendance at the hearing this morning by way of an audio-visual link to Whanganui Prison where he is currently residing. I am advised that immediately prior to this matter being called, Mr McAllister was informed that it was about to proceed. He was invited to enter the room where the AVL facility was located so that he could participate. It appears that he has equivocated somewhat but ultimately informed the prison authorities that he did not wish to enter the room.
[4] As it appears that he has not formally abandoned either his application for leave to appeal or the appeal itself, the Court is therefore obliged to consider the issues and to deliver a decision. That is how we get to this situation of this matter proceeding without Mr McAllister being present in Court.
[5] One preliminary matter is that, in his notice of application for leave to appeal, Mr McAllister claimed that he was sentenced without entering guilty pleas. Having reviewed the documentation, I have come to the conclusion that Judge Crayton, in a detailed minute dated 19 October 2018, recorded that Mr McAllister had, that day, entered guilty pleas following a sentence indication.7 Mr McAllister was represented by Ms Goodlet on that occasion. She made submissions as to whether or not a s 38 report was required for the purposes of sentencing. She would only have done that if pleas of guilty had been entered.
5 Sections 13(1)(a) and (3); maximum penalty one year’s imprisonment and a $500 fine.
6 Sections 7(1)(a) and (2); maximum penalty six months’ imprisonment and a $1,000 fine.
7 R v McAllister DC Whanganui CRI-2018-083-000587, 19 October 2018 at [1].
[6] The matter was called again before Judge Crayton on 22 November 2018 and he issued another minute. The final paragraph of that minute recorded that there was no application to vacate the guilty pleas entered on 19 October. Mr McAllister was again represented by Ms Goodlet at this hearing.
[7] Once again, Judge Crayton noted that the guilty pleas had been entered on 19 October and that the sentencing was proceeding on the basis of the acceptance by Mr McAllister of a sentence indication. The opportunity to be sentenced on the basis of a sentence indication was only available if the indication was accepted and guilty pleas entered. It is therefore abundantly clear that Mr McAllister did enter guilty pleas and was expressly dealt with on the basis of those pleas.
Factual background
[8] On 25 April 2018, Mr McAllister checked into a motel for the night. Having disconnected the wires of the fire alarm, he started a fire in the rubbish bin inside the unit, putting paper, bedding and a foam mattress on top of the fire. When the manager attempted to gain entry to the unit, Mr McAllister threw a lamp at him. The fire brigade was called and put the fire out.
[9] The Police, on searching inside the unit, located a small bag containing cannabis bud on the main bed and a broken glass pipe of the type commonly used to smoke methamphetamine on the floor near the kitchen.
[10] On arrest, a search at the police station of Mr McAllister’s person located a small bag containing methamphetamine.
District Court decisions
[11] In a minute dated 4 October 2018, the Judge noted that during a telephone conference, Mr Tennet, who was then counsel for Mr McAllister, had raised the question as to whether any medical report had been prepared upon Mr McAllister to ensure that he was fit to instruct counsel and participate fully in his defence.8
8 R v McAllister DC Whanganui CRI-2018-083-000587, 4 October 2018 at [2].
[12] The Judge stated that he had himself noted that Mr McAllister had “become elevated in his behaviour and extremely vocal/abusive” during his last two appearances and agreed that a screening report pursuant to s 38(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 should be obtained.9
[13] In a minute dated 19 October 2018 on the entry of the guilty pleas, the Judge said that he had ordered the screening report but was satisfied that Mr McAllister, having consulted with experienced counsel, had been in a position to make an informed decision and had provided clear instruction to his new counsel, Ms Goodlet, that the report was not required.10
[14] Ms Goodlet urged the Court not to order a s 38(2) report to assist with sentencing, submitting the Mr McAllister already had engagement with medical professionals and would be best served by a report not being obtained until his release.11 The Judge, however, had concerns that Mr McAllister, in his offending of 25 April 2018, was trying to harm himself and noted that a s 38(2) report was not just to inform about the framework of release but also “to explore whether there are any matters which are of a mitigating nature which can be taken into account at sentence to further adjust the end point”.12 He therefore ordered a s 38(2) report to assist with background and end sentence conditions.13
[15] At sentencing, the Judge directed that there be six months’ end sentence conditions, explaining that:14
The end conditions are based on my consideration of the content of the pre- sentence report and the report of Kerry Reader. It is to ensure that you have support when you are in the community.
[16]These conditions included three special conditions, one of which was that:15
You attend a psychological assessment with a departmental psychologist, as directed by a probation officer. You complete any treatment and or
9 At [3].
10 R v McAllister, above n 7, at [3].
11 At [3]-[4].
12 At [6]-[7].
13 At [9].
14 R v McCallister, above n 1, at [4].
15 At [6].
counselling as recommended by that assessment and to the satisfaction of your probation officer.
Appeal out of time
[17]A preliminary matter to be dealt with is the issue of appeal out of time.
[18] In the written submissions filed in this matter, the Crown have noted that the appeal was three months out of time, although in the oral submissions to the Court this morning, Mrs Wilkinson-Smith for the Crown, has confirmed that the Crown do not oppose the application for leave to appeal out of time. Under s 238(2) of the Criminal Procedure Act 2011, a notice of appeal must be filed 20 working days after the date of the sentence appealed against. The date of the sentence was 13 December 2018.
[19] It appears that Mr McAllister, acting for himself, lodged two appeals, the first dated 16 January 2019 and the second 27 January 2019, which he had been led to believe were sent by the prison officers. He says that he learnt on 4 April 2019 that they had not been sent and, accordingly, filed this notice of appeal on that date.
[20] In fact, it appears that the notices of appeal were sent but were not accepted for filing. The notice of appeal lodged by Mr McAllister states that an extension of time is sought as Mr McAllister’s previously filed notices of appeal were rejected due to reasons of form. I am satisfied that it is appropriate for leave to be granted given that the first attempt by Mr McAllister to lodge an appeal on 16 January 2019 would have been filed within time and, given the lack of opposition from the Crown.
[21]Accordingly, I grant leave to appeal.
Discussion
[22]I now turn to the grounds of the substantive appeal.
[23] The imposition of special post-detention conditions is governed by s 93 of the Sentencing Act 2002, which relevantly provides:
93Imposition of conditions on release of offender sentenced to imprisonment for short term
…
(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.
(2A) The court may specify that conditions imposed under this section expire on—
(a)the sentence expiry date; or
(b)the date that is a specified period before the sentence expiry date; or
(c)the date that is a specified period of up to 6 months after the sentence expiry date.
(2AB) If the court imposes special conditions on an offender, the special conditions may apply for as long as, but no longer than, the standard conditions apply to the offender.
…
(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.
…
[24]Discussing the imposition of special conditions, the Court of Appeal held in
R v Janssen:16
[15] The discretion must also be exercised consistently with the principles in s 8 of the Sentencing Act, the first five of which (those in paragraphs (a)– (e)) require that any condition imposed relate explicably to what has been described succinctly as “the precise criminality”. …
16 R v Janssen [2007] NZCA 450 (citation omitted).
[16] The remaining purposes of sentence are no less germane. The sentence imposed must be the least restrictive outcome appropriate: s 8(g). It must also be tailored to the offender. Account must be taken of any factor personal to the offender that would make a usual sentence disproportionately severe: s 8(h). One of the purposes of conditions on release is, moreover, to rehabilitate and to assist the offender to reintegrate. Personal, family, whanau, community and cultural factors can be no less relevant: s 8(i).
[17] Finally, because the special conditions able to be imposed derive in the main from those set out in s 15(3) of the Parole Act 2002, the principle in s 7(2) of that Act that guides the Parole Board has an implicit and helpful place. Any condition imposed ought not to be “more onerous, or last longer, than is consistent with the safety of the community”. …
[25] Mr McAllister states in his notice of appeal that there was no proof or any evidence to make the order imposing the condition that he challenges. He argues that he has lawyers and doctors saying he is of sound mind.
[26] However, the pre-sentence report indicates that Mr McAllister was suffering from paranoia while in prison and was not receiving treatment. He was assessed as being at high risk of re-offending and of harming others. A condition to attend psychological assessment at the direction of a Probation Officer was included in the recommended sentence in the report. I note that the fact that a condition of the same type as ultimately imposed was recommended in the report distinguishes this case from that of R v Janssen.17
[27] Kerry Reader, a senior psychologist, was unable to complete a s 38(2)(b) psychological report under the Criminal Procedure (Mentally Impaired Persons) Act as Mr McAllister did not give consent. She did, however, note observations of his behaviour, assessing him as possibly suffering from an underlying psychotic disorder or dementia as well as antisocial personality disorder and attention deficit hyperactivity disorder.
[28] If, as Mr McAllister maintains, he is of sound mind, any psychological assessment would confirm this, and he would, therefore, not be required to undergo treatment. If, however, such assessment were to confirm Ms Reader’s suspicions as to Mr McAllister’s possible mental health issues, the imposition of a special condition that he complete any recommended treatment could be to his benefit, although, given
17 Above n 16.
his resistance to undergoing assessment and treatment, any such potential benefit is difficult to predict. That being said, though, the special condition imposed by the Judge was designed to reduce the risk of his reoffending and to promote his rehabilitation. As such, it was an appropriate condition for the Judge to impose.
Result
[29] The application for leave to bring an appeal out of time is granted. The appeal itself is dismissed.
Churchman J
Solicitors:
Crown Solicitor, Whanganui for Crown
cc: B McAllister, c/- Kaitoke Prison, Whanganui
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