McGreevy v Police

[2012] NZHC 2992

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-000075 [2012] NZHC 2992

BETWEEN  PATRICK JOHN MCGREEVY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 November 2012

Counsel:         L M Drummond for the Appellant

D J Orchard for the Respondent

Judgment:      12 November 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 12 November 2012 at 11.30 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

L M Drummond: [email protected]

D J Orchard: [email protected]

MCGREEVY V POLICE HC CHCH CRI 2012-409-000075 [12 November 2012]

[1]      On 22 February 2008, Mr McGreevy pleaded guilty to a charge under s 71(1) of the Parole Act 2002.   He accepted that having been released on parole by the Parole Board, he breached a condition attaching to that parole without reasonable excuse.  On 10 March 2008, Mr McGreevy was sentenced to a term of imprisonment of four months by Judge S G Erber.

[2]      In a notice of appeal filed in September 2012, Mr McGreevy appeals his conviction.  He asserts that he was not guilty of the offence.  He acknowledged that the appeal is brought substantially out of time, and he also seeks leave in that regard.

[3]      The background to this matter is as follows.

[4]      On 27 December 2006, Mr McGreevy was made the subject of a compulsory treatment order.  He was placed in Hillmorton Hospital as an inpatient pursuant to s 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 on

17 January 2007.  On 21 May 2007, he was granted parole.  One of the conditions attached to the grant of parole read as follows:

Not to leave the unit at Hillmorton Hospital that he is residing in, unless in the company of a Hillmorton staff member or under the direct supervision of an informed adult approved by the Probation Officer. An informed adult is a person  over  the  age  of  20  years  who  is  fully  aware  of  your  previous offending    and    high-risk    situations    and,    in    the    opinion    of    the Probation Officer, will not support or collude with any further offending.

Notwithstanding the grant of parole, Mr McGreevy remained subject to the inpatient order until late 2008.

[5]      On 20 February 2008, Mr McGreevy was charged with having breached the above condition.  It was asserted that without reasonable excuse he left the unit at Hillmorton Hospital on the night of 18 February 2008 at approximately 10.30 pm.

[6]      As  noted,  when  the  matter  was  called  in  Court  on  22  February  2008, Mr McGreevy entered a plea of guilty.

[7]      Mr McGreevy now seeks to vacate that plea.  He asserts that on the admitted facts, he could not in law have been convicted of the offence.

[8]      Ms Drummond, on Mr McGreevy’s behalf, notes that on 18 February 2008, Mr McGreevy was still subject to the inpatient order, and that he had not been released from Hillmorton Hospital.  He was not actually released from the hospital until late in 2008.  She refers me to s 30(2) of the Parole Act 2002.  It provides as follows:

30Release conditions applying to offenders detained in hospital or secure facility who are released on parole

…

(2)      The offender's release conditions do not take effect until the offender is actually released from the hospital or the secure facility.

…

[9]      She submitted that  the condition  attaching to  the grant  of parole by the Parole Board did not take effect until Mr McGreevy was released from hospital in late 2008 and that he could not in law have been in breach of the condition on

18 February 2008.  She submitted that his conviction could not stand.

[10]     Ms Orchard, appearing for the Crown, advised me that she had checked the relevant dates and orders which were in place at the time.  She offered no opposition to Mr McGreevy’s application, and consented to the appeal being brought out of time.

[11]     In the circumstances, I accept that Mr McGreevy could not in law have been convicted of the charge laid under s 71(1) of the Parole Act 2002.  Mr McGreevy is given  leave  to  bring  the  appeal  out  of  time.     The  appeal  is  allowed,  and

Mr McGreevy’s guilty plea is vacated.

Wylie J