Morely v Police
[2018] NZHC 1103
•18 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2018-404-087
[2018] NZHC 1103
BETWEEN KENNETH MORELY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: On the papers Appearances:
J Grainger for Appellant
J J Rhodes for Respondent
Judgment:
18 May 2018
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 18 May 2018 at 11am Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland Public Defence Service, Auckland
MORELY v NEW ZEALAND POLICE [2018] NZHC 1103 [18 May 2018]
Introduction
[1] Kenneth Morely appeals against his conviction for breaching a returning offender’s order imposed on his return to New Zealand following his deportation from Australia in March 2017. The conviction was for breaching a condition not to associate with his adult partner. Mr Morely says that condition was unreasonable and unlawful so the conviction cannot stand.
[2] After initially opposing Mr Morely’s appeal, the Crown filed a memorandum dated 9 May 2018 in which it conceded that on the facts of the case the appeal should be allowed and the appellant’s conviction quashed. Upon reading the submissions of Mr Grainger, counsel for Mr Morely, and the Crown memorandum, on 14 May 2018 I issued a Minute vacating the hearing and said I would make a decision on the papers.
Background
[3] Mr Morely was born in New Zealand on 14 June 1985 but at the age of four was taken by his adoptive parents to Australia where he has spent most of his life. It seems from an early age, Mr Morely got himself into trouble, first at school and then with the police. By the time he was deported, he had racked up 79 convictions for a variety of offences, some for illegal sexual activities. The two index offences, which led to the order being imposed on his return to New Zealand, were:
(a)Having carnal knowledge of a girl under 16 years of age, dating from 1999, for which Mr Morely received a sentence of 18 months’ imprisonment. That sentence was suspended for 2 years after Mr Morely had served 4 months of the sentence.
(b)Rape, dating from approximately 2015, for which Mr Morely received a sentence of 2 years, 9 months and 15 days’ imprisonment, to be suspended for 4 years after serving 16 days of the sentence.
[4] Upon his return to New Zealand in March 2017, Mr Morely was made subject to a returning offender’s order, to run for 12 months from 15 March 2017. Pursuant to s 25(b) of the Returning Offenders (Management and Information) Act 2015, the
order was subject to the standard release conditions in s 14(1)(b) to (i) of the Parole Act 2002. Section 14(1)(h) of the Parole Act stipulates:
(h) the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:
[5] On 11 May 2017, Mr Morley was served with a written direction by his probation officer that he not associate with Skylar Nathan, also known as Skye Nathan-Moka, with whom Mr Morely had formed a relationship. On 28 June 2018, a police officer attended Mr Morely’s residence where Mr Morely was present with Ms Nathan-Moka. Mr Morely was arrested and remanded in custody.
[6] Ms Nathan-Waka had had no involvement with Mr Morely until his return from Australia. It appears the non-association direction related to the fact that Ms Nathan- Moka had previously been in a relationship with another sex offender and was pregnant to that person at the time she began her relationship with Mr Morely.
[7] On 7 July 2017, Mr Morely appeared in the Manukau District Court before Judge McGuire on a charge of breaching the conditions of his returning offender’s order. Mr Morely entered a guilty plea and his counsel provided an affidavit from Ms Nathan-Moka in which she said she was aware of Mr Morely’s previous offending but she had no safety concerns and wished to continue the relationship.
[8] After a discussion in chambers at which the Judge and counsel discussed the appropriateness of the non-association condition, Judge McGuire struck out that condition and remanded Mr Morely in custody for sentencing. On 10 August 2017, Judge McIlraith sentenced Mr Morely to three months’ imprisonment.
Extension of time
[9] Mr Morely’s appeal was filed out of time so he has applied for an extension of time. That application was not opposed by the police. Because of the reasons for the delay and the merits of the appeal I discuss below, I grant that extension.
Reason for appeal
[10] Mr Morely brought his appeal after his counsel – newly instructed since the District Court sentencing – learned of the decision in Te Whatu v Department of Corrections.1 In Te Whatu Palmer J held that a non-association condition made pursuant to an extended supervision order was unreasonable and therefore unlawful and that a conviction for breaching that condition would be a miscarriage of justice.
[11] As in this case, Te Whatu was an appeal against conviction and Palmer J held that it could be disposed of on that basis, even if there were alternative remedies available, for example by way of judicial review. Mr Grainger submits that Te Whatu, like the present case, was a conviction appeal following a guilty plea to the breach of a non-association condition and the same reasoning should be applied.
Crown position on appeal
[12] While the Crown conceded the appeal should be allowed and Mr Morely’s conviction quashed, that concession was without prejudice to the Crown’s position that, as recorded in Lang J’s pre-trial conference Minute of 19 April 2018, Te Whatu was wrongly decided and should not be followed. In the Crown memorandum of 9 May 2018, it was submitted that while the Crown maintains its position with regard to the scope of the Te Whatu decision, it considers that those issues are not directly engaged on the facts of this case.
[13]The Crown memorandum also states:
In the particular circumstances of this case, the Crown does not intend to advance the proposition that the [non-association] condition should have been imposed.
Discussion
[14] It appears from the Crown memorandum that the Crown considers the present case can be distinguished from Te Whatu on the basis that in this case there was no provision under the Returning Offenders (Management and Information) Act for
1 Te Whatu v Department of Corrections [2017] NZHC 3233.
Mr Morely to apply to vary the non-association condition, whereas the offender in Te Whatu could have applied to the Parole Board under s 107O of the Parole Act to vary the conditions of the extended supervision order. I do not need to decide whether that distinction between the two cases is material. I note, however, there is no indication in the decision in Te Whatu that the Crown advanced the proposition that Mr Te Whatu should have made an application under s 107O of the Parole Act to vary the non-association condition rather than appealing his conviction.
[15]In any event, in order to determine Mr Morely’s appeal this Court must decide:
(a)Whether the non-association condition was unlawful; and, if so
(b)Whether Mr Morely’s appeal should be allowed and his conviction quashed.
[16] The first question is straightforward and, although I decide it on the same basis as Palmer J decided the equivalent point in Te Whatu, the question of law is not novel.
[17] A probation officer is empowered by s 14(1)(h) of the Parole Act to direct that an offender not associate with a specified person. As the Supreme Court has confirmed, statutory powers must be interpreted and determined consistently with the New Zealand Bill of Rights Act 1990.2 It follows that while a probation officer has the power to impose non-association conditions under s 14(1)(h) of the Parole Act, pursuant to s 5 of the Bill of Rights Act, an offender’s right to freedom of association as recognised by s 17 of the Bill of Rights Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[18] Since s 14(1)(h) establishes the legal basis for the imposition of restrictions on Mr Morely’s freedom of association, the question for determination is whether the direction not to associate with Ms Nathan-Moka was a reasonable limit on Mr Morely’s right to that freedom.
2 Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [6].
[19] It appears that the Crown accepts that the non-association direction was not reasonable. It does not argue the contrary in its memorandum and it has conceded the appeal should be allowed. The Crown also notes that Judge McGuire quashed the condition when entering conviction against Mr Morely.
[20] Mr Grainger submits that a blanket ban on association with Ms Nathan-Moka was unreasonable but that a less restrictive non-association condition might have been reasonable on the basis that there may have been legitimate concern on the part of the Department of Corrections about Mr Morely’s relationship with Ms Nathan-Moka. Since the Crown does not argue that a less restrictive non-association condition might have been reasonable, I do not need to decide that question.
[21] On the information before me, it is hard to see why it was not considered appropriate for Mr Morely and Ms Nathan-Moka to associate. Indeed, there would appear to have been strong reasons against imposing a blanket non-association condition.
[22] The pre-sentence report for Mr Morely’s sentencing in August 2017 states that the non-association condition was imposed to mitigate any risk arising out of Ms Nathan-Moka’s pregnancy and Mr Morely’s association with other “pro-criminal individuals”. If that is correct, it is difficult to understand what risk the non- association condition was intended to mitigate. There is no suggestion that Mr Morely posed any risk to Ms Nathan-Moka’s unborn child or that he would pose a risk to the child after birth. Nor is there any suggestion that association with Ms Nathan-Moka would mean Mr Morely would be associating with other children – which was a concern in Te Whatu. It is also hard to see how association with Ms Nathan-Moka herself would materially exacerbate Mr Morely’s “pro-criminal” tendencies given his extensive criminal record.
[23] On the other side of the ledger, there would seem to have been a strong case for not depriving Mr Morely from associating with Ms Nathan-Moka. Mr Morely had not lived in New Zealand since he was four years old. As he told the pre-sentence report writer, Ms Nathan-Moka was the only support he had in New Zealand. Requiring Mr Morely to stay away from the one person with whom he had formed a
strong relationship after his return to New Zealand would indeed seem to be setting him up to fail, a concern Judge McGuire noted during the in-chambers discussion about the appropriateness of the condition.
[24] For these reasons, I have no difficulty in accepting Mr Grainger’s submission that the condition requiring Mr Morely not to associate with Ms Nathan-Moka was unreasonable and was not a justified limitation in terms of s 5 of the Bill of Rights Act. It follows that the condition was unlawful.
[25] Mr Grainger submits that Mr Morely cannot be guilty of breaching the returning offender order if the underlying condition that was the basis of the breach was unlawful and that Mr Morely’s conviction should be vacated. I agree the conviction cannot stand and I quash it and the sentence imposed upon conviction accordingly.
[26] In reaching that decision, I do not express a view on the appropriateness of appealing a conviction for breaching a returning offender’s order by mounting what Mr Grainger called a collateral challenge to the validity of a direction made by a probation officer pursuant to that order. I understand that this is one of the issues arising out of the decision in Te Whatu that is of concern to the Crown. Since that question was not the subject of argument before me, I take it no further.
Result
[27] I allow Mr Morely’s appeal and I quash the conviction and sentence imposed on him for breaching the non-association condition of the returning offender’s order imposed on his return from Australia in March 2017.
G J van Bohemen J