O'Brien v The King
[2023] NZHC 134
•8 February 2023
SEE [89] – ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ACCUSED
PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-443-63
[2023] NZHC 134
BETWEEN CASSANDRA TAIRIRI O’BRIEN
Appellant
AND
THE KING
Respondent
Hearing (by VMR): 7 February 2023 Counsel:
T Cooper KC for the Appellant H Bullock for the Respondent
Judgment:
8 February 2023
JUDGMENT OF GWYN J
(Sentence appeal)
Solicitors:
Crown Solicitor, New Plymouth
O’BRIEN v R [2023] NZHC 134 [8 February 2023]
Introduction
[1]Cassandra Tairiri O’Brien, who is 44 years old, is the appellant in this matter.
[2] The appellant pleaded guilty to conspiracy to supply the class A drug methamphetamine1 with two co-offenders.2 First, R, a close family member, and second, another family member (K), from whose house R sold methamphetamine. R is the lead offender. He faces two charges, to which he has pleaded not guilty:
(a)supplying a class A controlled drug;3 and
(b)possession of a class A controlled drug for supply.4
[3] Judge Greig sentenced K to eight months’ home detention5 on 16 December 2022 after she pleaded guilty to one count of allowing her premises to be used for supply of methamphetamine.6
[4] On 16 December 2022 the District Court sentenced the appellant to three years’ imprisonment.7
[5] The appellant filed a notice of appeal against Judge Greig’s sentence decision on 16 December 2022.
[6] On 21 December 2022 the District Court granted the appellant bail pending her appearance at the New Plymouth High Court on 3 February 2023.
[7] The ground of appeal she relies upon is that the sentence was manifestly excessive.
1 Misuse of Drugs Act 1975, sch 1.
2 Section 6(2A). The maximum penalty is 14 years’ imprisonment: see s 6(2A)(a).
3 Section 6(1)(c) and (2)(a). The maximum penalty is life imprisonment.
4 Section 6(1)(c), (f) and (2)(a). The maximum penalty is life imprisonment.
5 R v O’Brien [2022] NZDC 25088 at [22].
6 Misuse of Drugs Act, s 12. The maximum penalty is 10 years’ imprisonment: see s 12(2)(a).
7 R v O’Brien [2022] NZDC 25011.
[8] The Crown opposes the appeal and submits that the end sentence of three years’ imprisonment was within the range available to the Judge.
Factual background
[9] In March 2020 the Police started an operation to target methamphetamine supply in Taranaki, with the primary target of this operation being the co-defendant R.
[10] The appellant was based in Auckland. She facilitated contact with her cousin who supplied the co-defendant R with methamphetamine, which he then supplied in the Taranaki region.
[11] On 5 November 2020 R told the appellant he would lend her money, provided he made money in the following two months.
[12] On 6 December 2020 the Police arrested R, who possessed 443 grams of methamphetamine that he bought from the appellant’s cousin.
[13] The appellant facilitated R’s purchase of the methamphetamine from her cousin. On 30 November 2020 R requested the appellant ask her cousin for an “eight pack” of the “good stuff”, in reference to the methamphetamine.
[14] Between 21 and 23 November 2020 the appellant and R planned for the appellant to receive the methamphetamine in the first instance, perform a quality check and deliver it to R. R was going to pay $1,000 to the appellant for her role in the procurement of the methamphetamine, although the appellant later changed her mind and declined to receive the methamphetamine herself.
[15] On 23 November 2020 R told the appellant he would travel to Auckland and collect the methamphetamine from the appellant’s cousin. Between 23 November and 4 December 2020 R travelled to Auckland for this purchase. During R’s travel, the appellant liaised between R and her cousin, resulting in an agreement for R to buy one kilogram of methamphetamine for $140,000, or half a kilogram, for which the price is unknown.
[16] On 5 December 2020 the appellant, R and others met in Mount Wellington to do the purchase. Without the appellant, R and others drove to a separate location to finish the deal, procuring slightly less than half a kilogram, of methamphetamine.
[17] On 6 December the police stopped R’s car which contained the methamphetamine from the deal the day before.
[18]Ms O’Brien did not receive a payment from R.
[19] The appellant has one previous historical conviction for common assault, committed on 11 March 2000, and one previous discharge for common assault, arising from 3 January 1995.8 Neither are relevant to the conspiracy offence at hand.
Procedural history: District Court decision
[20] In the District Court the appellant applied to be discharged without conviction and applied for permanent name suppression. Judge Greig dismissed both applications and sentenced the appellant to three years’ imprisonment. I summarise the Judge’s reasoning below.
Application for discharge without conviction
[21] With respect to the transaction on 5 December 2020, the Judge found the appellant to be a “pivotal point of contact” in facilitating the transaction between R and her cousin.9 The appellant did more than make an introduction between the two parties to the methamphetamine transaction. She facilitated contact at many points before and during the transaction and was present when the exchange of cash and methamphetamine occurred.10
[22] The Judge considered that the appellant knew that her cousin could supply “reasonably sizeable quantities of methamphetamine”, that R “was selling methamphetamine in reasonably sized quantities” and that R intended to sell the
8 Crimes Act 1961, s 196.
9 R v O’Brien, above n 7, at [14].
10 At [16]–[17].
methamphetamine he bought from the appellant’s cousin to people in the Taranaki region.11
[23] The Judge found that the appellant was intending to profit from her role in the methamphetamine transaction, although she did not actually profit because of the Police apprehending R before he sold the methamphetamine.
[24] The Judge found that the appellant had “no influence over” R, who the Judge considered to be “a very manipulative person.”12
[25] In assessing the starting point for sentencing, the Judge categorised the appellant’s offending as “moderately serious to serious.”13
[26] The Judge considered the consequences of conviction for the appellant. His Honour noted R’s daughter has been in foster care since she was three months’ old. She is currently age six. Prior to the charge that this application concerns, the appellant had been caring for her niece, and she sought to return to this care arrangement. The Judge considered the appellant’s conspiratorial behaviour would be a relevant factor for Oranga Tamariki in deciding the care of the child, and indicated this conduct suggests against the appellant having that care, although it would not be prohibitive.14
[27] Another consequence the Judge accepted was the appellant being likely to lose her employment, and consequently experiencing financial hardship. The Judge found these consequences to be “appropriate outcome[s]” to the appellant’s attempt to profit from the methamphetamine dealing operation.
[28] Accordingly the Judge dismissed the application for discharge without conviction.
11 At [14].
12 At [21] and [23].
13 At [26].
14 At [27]–[29].
Name suppression
[29] The Judge next considered the application for name suppression. His Honour found the appellant was likely to suffer extreme hardship from the same circumstances previously considered. Namely, difficultly gaining childcare of her niece, employment difficulties and financial hardship. His Honour considered these consequences to be “the ordinary consequences of a conviction”15 and that discharge without conviction would let the appellant “walk out of this courtroom scot-free”.16
Sentence
[30] Judge Greig considered the appellant fell within the third band of Zhang v R.17 The Judge did not reach an explicit conclusion on whether the appellant played a lesser or significant role in the offending, although his Honour’s reasoning includes elements from both categories.18 After considering the quantity of methamphetamine and the appellant’s role in the offending transaction, the Court came to the starting point of six years’ imprisonment.
[31] The Judge reduced the appellant’s sentence because of her guilty plea, demonstrable remorse and her previous good character and concluded an end sentence of three years’ imprisonment was appropriate.
Provision of advice to the courts (PAC) report
[32] The PAC report noted the appellant’s challenging relationship with R at the time of the offending, which she has now severed, and that she did not profit financially from her role in the transaction. She is committed to living a lawful lifestyle now that she has removed R’s influence, and she wishes to support her family.
[33] The PAC report advises that the appellant has a low risk of reoffending, as supported by her light criminal history, and a low risk of alcohol and drug use.
15 At [37].
16 At [36].
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [19].
18 See for example R v O’Brien, above n 7, at [20]–[24].
[34] The PAC report assessed the appellant as unsuitable to undertake community work because she has childcare responsibilities for her three children, the youngest of which is seven-months old and breastfed.
[35] The PAC report notes that the EM bail address is technically suitable and that the only other adult occupant, the appellant’s partner, consents to her completing her bail at this address. The PAC report considered the appellant motivated to comply with Court sentences.
[36] The PAC report recommended the appellant receive a sentence of home detention, to be served at her Auckland address. The conditions that the PAC report recommended attach to the home detention sentence include to remain at the electronically monitored (EM) boundaries of the home detention address, to complete any counselling her Probation Officer deems suitable, and not to associate with any of her co-defendants without the written approval of the Probation Officer.
Submissions
For the appellant
[37] Ms Cooper KC, for the appellant, submits that the discounts applied to the sentence for mitigating factors were insufficient because the Judge had insufficient evidence before him to fully appreciate the appellant’s background and personal circumstances. In particular, the cultural report was not before the Court at sentencing and the appellant submits it should be admitted as evidence on this appeal.
[38] The appellant submitted that the starting point adopted in sentencing was too high. The appellant accepted that the offending fell within band three of Zhang v R but submitted that a reduction between 10 and 15 per cent would have been suitable because the appellant did not actually supply the methamphetamine herself.
[39] The appellant submits that she acted under coercion from R during the offending and that she was not aware of the wider drug operation. Although she signalled before the District Court some disagreement with the agreed statement of
facts,19 this Court did not receive an amended statement of facts. She has emphasised this duress throughout written submissions and in her letter of remorse dated 2 February 2023. Zhang v R does not require a conspirator’s communications to be “one-off”20 incidents to represent a lesser role in the conspiracy. The appellant can be found to have a played a lesser role in the offending in spite of her ongoing communications between R and her cousin.
[40] The appellant submits that the Judge erred in finding the reason the appellant did not profit from the transaction was because the Police seized the methamphetamine before R sold it.21
[41] The appellant submits that a sentence of imprisonment would have a significant impact upon her family and their financial health because her partner would need to reduce his working hours to provide childcare while the appellant serves her sentence.
[42] The appellant referred to Berkland v R where the Supreme Court notes that “[g]uideline judgments, such as Zhang, are intended to assist in the evaluative task but do not remove the need for judgement on the part of the sentencing judge.”22 Taking consideration of all the mitigating factors regarding the role the appellant played in the offending, and the offending’s inchoate nature, the appellant submits the starting point should have been between four and four-and-a-half years’ imprisonment.
[43] The appellant compared the pressure she felt from R to facilitate the methamphetamine transaction as similar to, although lesser than, the appellants in Romero v R who acted under duress from family members in a drug cartel.23 The appellants in Romero v R received a 20 per cent sentence discount in respect of this duress.24
19 R v O’Brien, above n 7, at [39].
20 At [16].
21 At [39].
22 Berkland v R [2022] NZSC 143.
23 Romero v R [2020] NZHC 2740 at [8].
24 At [42].
[44] After discounts, the appellant submits that she would have been facing a short- term sentence of imprisonment, which makes her eligible for an EM sentence. A non- custodial sentence would be the least restrictive outcome appropriate, and it would enable the appellant to care for her young children while serving the sentence.
For the respondent
[45] Ms Bullock, for the respondent, opposes the appeal, and submits that the sentence of three years’ imprisonment was available to the Judge.
[46] The respondent submits that there are two aggravating factors which this Court ought to consider in assessing the appropriate starting point for the sentence, but which do not justify a sentence uplift. Methamphetamine has serious consequences upon communities and the offending furthers that harm. The appellant’s offending was premeditated, as evidenced by the appellant engaging in discussions for approximately one month before the 5 December 2020 transaction.
[47] The respondent submits that the appellant’s conduct falls between the lesser and significant roles in offending.25 The respondent points to the discussions between the appellant and her co-defendants showing some level of awareness of the wider drug operation; the appellant’s regular check-ins with her cousin to confirm supply availability; the appellant acting on R’s instructions; and the appellant’s expectation that she would profit from the transaction.
[48] The respondent submits that the appellant was not a minor player in the offending and instead played a crucial facilitative role.
[49] The respondent submits that an appropriate starting point would have been between nine- and 10-years’ imprisonment if the conspiracy had been completed, which it almost had been when the Police seized the methamphetamine from R. Because of the failure to complete the conspiracy, the six years’ imprisonment starting point was appropriate.
25 Zhang v R, above n 17, at [126].
[50] The respondent submits the s 27 cultural report is relevant to the second step in the sentencing process, which involves assessing the personal mitigating factors of the defendant or appellant.26
[51] The respondent submits that there are four ways cultural factors can relate to a defendant’s mitigating factors in sentencing. Cultural factors can demonstrate social, systematic and inter-generational disadvantages; they can explain an offender’s behaviour and mitigate their culpability; they can mitigate culpability when an offender reacted to a provocation magnified by their ethnicity; and they relate to rehabilitative prospects.
[52] The respondent referred the Court to the Court of Appeal’s comments in Zhang which said that duress and undue influence are “particularly germane” to offending involving methamphetamine because the drug can impair rational choices, which diminishes moral culpability; diminished opportunity to make rational decisions, which reduce the deterrent function of sentencing; and the drug can impact a term of imprisonment and increase its severity.
[53] The respondent submits that good character, including being a first-time offender,27 and demonstrating remorse are mitigating factors. To account for the mitigating factors, the Judge discounted 50 per cent of the appellant’s sentence.
[54] In the respondent’s view, if any further discounts are to apply to recognise the appellant’s cultural deprivation and distress as detailed in the s 27 cultural report, this discount should be no more than an additional 10 per cent, such that the total discount is 60 per cent. The respondent submits that even if the Court applies a higher discount, the final sentence would be more than two years’ imprisonment because the starting point is six years’ imprisonment. Therefore the end sentence of three years’ imprisonment was not manifestly excessive, and this Court should dismiss the appeal.
26 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
27 R v Howe [1982] 1 NZLR 618 (CA) at 630.
Relevant law
[55] An appeal against sentence is an appeal against the Judge’s discretion. Under s 250 of the Criminal Procedure Act 2011, the appeal court must allow the appeal if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[56] Despite the statute making no express reference to “manifestly excessive”, this principle is well-established in the court’s approach to sentence appeals.28 An appeal court must not “tinker with the end sentence if the end sentence is within range.29 The focus is more upon the end sentence than the process by which the Judge reached that end sentence.
[57] In Moses v R, the Court of Appeal introduced a general two-step approach to sentencing.30
[58] The first step requires the Court to calculate the starting point incorporating the aggravating and mitigating factors of the offence, considering consistency between similar offending.
[59] At the second step the starting point is then adjusted to incorporate the aggravating and mitigating factors personal to the offender, including any guilty plea discount. The end sentence should reflect the totality of the offending and, barring other considerations, be the least restrictive outcome that is appropriate in the circumstances.
28 Ripia v R [2011] NZCA 101 at [15].
29 At [15].
30 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
Analysis
Sentencing test: stage one
[60] Because the appellant is charged with a conspiracy offence, the notional starting point is where the starting point would have been had the appellant completed the conspiracy.31 On the facts of this case if the conspiracy had been completed the amount of methamphetamine supplied would have totalled 443 grams, which is within the third band of the Zhang categories given the quantity is less than 500 grams.32 Both parties accept that the appellant’s offending falls within the third band. This category places the starting point for sentencing at between six and 12 years’ imprisonment.
[61] Zhang also set out three different roles the defendant can play in the offending: lesser, significant and leading.33 These roles are not strict and rigid boxes within which defendants can fall. There is a degree of overlap between them. As the Supreme Court said in Philip v R:34
There must be room for gradations of culpability within the role categories or else there is no ability to reflect those gradations within the quantum-based band. Both Zhang and Berkland cautioned against taking a tick-the-box approach. It follows that sentencing for methamphetamine offending is not simply a matter of fixing quantum and selecting one of the three role options. Rather, it is necessary to engage with the detail of the offender’s role in what this Court described as “an intensely factual inquiry”.
[62] I acknowledge that there are factors which might indicate the appellant played a “significant” role, including that the conspiracy was quite far advanced (although the methamphetamine had not been packaged and sold into the Taranaki community); the appellant had liaised between R and her cousin for several days; she had attended the meeting location and watched R leave to go to another location to complete the transaction and she had some awareness of the scale of the operations that R and her cousin engaged in. She also expected to gain some financial benefit from the offending.
31 R v Keogh [2021] NZHC 2677 at [16].
32 Zhang v R, above n 17, at [125].
33 At [126].
34 Philip v R [2022] NZSC 149 at [36] (footnotes omitted).
[63] However, the appellant’s liaison role was limited; she had earlier refused to deal directly with the methamphetamine. Although she accompanied R to the initial meeting point, she was not present when the exchange of cash and methamphetamine took place. She acted under pressure and intimidation from R. She was involved through naivety and exploitation, having believed she would receive $1,000 for the phone calls she made between R and her cousin. She had no influence on the people higher in the chain, such as her cousin and R, as she was under their influence and direction. She was particularly subject to manipulation from R.
[64] I do not accept the respondent’s submissions with respect to both argued aggravating factors.
[65] In my view, the harm that methamphetamine has upon communities affected by the supply of this drug cannot be considered as a separate aggravating factor. Methamphetamine is a class A drug; the penalties associated with offences involving methamphetamine possession and supply reflect this harm. The harmfulness of methamphetamine and the serious nature of methamphetamine offences is reflected in the offence of conspiracy to supply a class A controlled drug.
[66] Similarly, nor can premeditation be considered as a separate aggravating factor. The appellant pleaded guilty to, and is sentenced for, conspiracy to supply methamphetamine, but not supply of methamphetamine. Pre-meditation is inherent in the nature of conspiracy.
[67] On balance I think the appellant’s role is more appropriately characterised as “lesser” in terms of the three categories of roles set out in Zhang.35
[68] Taking account of the lesser role the appellant played in the transaction, I arrive at a starting point of four years and six months’ imprisonment.
35 At [126].
Sentencing test: stage two
[69] The appellant’s earlier offending is both historic and of a different nature to this offending. It is not an aggravating factor.
[70] Relevant mitigating factors are, first, the appellant has shown remorse for her role in the transaction. I accept that her remorse is genuine and that she has acted on that remorse. She has taken tangible steps to remove R’s influence from her life which had led to her becoming involved in the drug operation – in particular, blocking his known contact number and social media accounts. She has a young family and is motivated to provide childcare and support for them.
[71] In addition, the appellant has provided a s 27 report prepared by Shelly Turner of Cultural Reports NZ Ltd dated 26 January 2023, which she seeks to be admitted in evidence. The Judge at sentencing did not have the cultural report before him in evidence.
[72] The Crown has helpfully set out in its submissions the authorities which note that, in general, a s 27 report should not be submitted for the first time on appeal. However, Ms Bullock’s submissions indicate that the Crown will abide the Court’s decision on the admissibility of this report.
[73] Although it is general practice not to submit s 27 reports for the first time on appeal,36 in Clarke v R, the Court of Appeal admitted a s 27 report for the first time.37 There had been uncertainty between the parties as to which party was ordering the report. The Court found that, against the “somewhat unusual background circumstances”, the report was “clearly relevant” to the issues on appeal, and it was “in the interests of justice to admit the report.”38
[74] The situation in Ms O’Brien’s case is somewhat similar. Counsel for the appellant notes that, at sentencing, the submissions for Ms O’Brien were primarily focused on her applications for discharge without conviction and name suppression.
36 Carroll v R [2019] NZCA 172 at [8].
37 Clarke v R [2021] NZCA 96 at [14].
38 At [16].
Given that, counsel had considered that an affidavit from Ms O’Brien would be sufficient to advise the Court of the material that would otherwise have been contained in the s 27 report. The appellant subsequently found the affidavit to be an insufficient mechanism to convey the complexities of her relationship with R, her substance use and the cultural hardships she has experienced in her life. At the hearing Ms Cooper KC acknowledged the responsibility of counsel giving the initial advice that led to the appellant seeking admission of the s 27 report for the first time on appeal.
[75] I consider it is in the interests of justice that this Court admit and consider the appellant’s s 27 cultural report. Although the report cannot be characterised as fresh evidence given the appellant, with reasonable diligence, could have obtained a report and submitted it in evidence before sentencing,39 it is credible and cogent in relation to the issues raised in this appeal.40 The report explains the link between the appellant’s background and personal circumstances, and her offending. In particular, her relationship with R and her financial situation are highly relevant to her motivation for being involved in the methamphetamine transaction. For those reasons, I accept the s 27 report into evidence.
[76] The cultural report indicates the appellant experienced paternal absence throughout her childhood and was disconnected from her Māori whakapapa, language and culture until later in life. The appellant has paternal Ngāti Tukorehe and Ngāti Tamaterā whakapapa. Her mother tried to raise the children with an awareness of and connection to the iwi that they whakapapa to, but it has only been later in life, when the appellant was in her late 20s and early 30s, that she has connected with her father and explored her connection to te ao Māori. The appellant has intergenerational trauma, and, relatedly, has experienced colonisation and racism. I consider the impact of colonisation, racism and deprivation of culture to be mitigating factors in this offending.
[77] The appellant and R have a “dysfunctional relationship.” R has an addiction to methamphetamine. He has allegedly assaulted the appellant on several occasions and pressured the appellant to help him with his methamphetamine deals. R was first
39 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120] and [124]–[125].
40 Clarke v R, above n 37, at [14].
imprisoned when he was 18. He has been in and out of state custody ever since. He and the appellant are no longer in contact. I consider that R’s influence, especially through the fear he made the appellant feel, mitigates the appellant’s offending by reducing her culpability.
[78] At the time of the offending, the appellant had childcare responsibilities for three young children, one of whom is approximately seven months old and still breastfeeding, as well as two older stepchildren. She was also trying to gain custody of her niece who had allegedly experienced sexual abuse in state care. In response to the challenges the appellant was experiencing prior to the offending, she relied on alcohol as a coping mechanism. She has since enrolled in a substance use support service facilitated by Te Ha Oranga. The appellant shows remorse and regrets her role in the offending. She had lived a difficult life, being abandoned by her father at a young age, feeling isolated from her iwi, having dealt with methamphetamine use issues, and being fearful of her methamphetamine-addicted family member’s threats and physical violence. In need of money to pay for her house, the appellant, in the context of R’s influence upon her at the time, saw an opportunity to make $1,000 and appease R’s demands. Although these circumstances do not obviate the appellant’s liability for the criminal offending, they do mitigate her culpability.
[79] I have concluded that a further sentence discount of 12 per cent, in addition to the 50 per cent discount allowed by the District Court, is appropriate to reflect the overall circumstances of the appellant and the offending.
Sentence calculation
[80] As I concluded above, the appropriate adjusted starting point is four years and six months’ imprisonment.
[81] I adopt the Judge’s existing 50 per cent discount for the severe consequences the appellant’s conviction will have upon her family, her previous good character and her remorse. I apply a further discount of 12 per cent, having considered the s 27 cultural report. The total discount is 62 per cent, leading to an end sentence of one year and eight-and-a-half months’ imprisonment.
[82] This sentence is under two years’ imprisonment, which makes the appellant eligible for home detention. Home detention is appropriate in the appellant’s case. AS the PAC report concludes, she is a low-risk offender. She has shown genuine remorse and a commitment to reform her life and she has taken tangible steps towards parenting her children in a safe environment. A rehabilitative approach is appropriate in view of those factors and her family circumstances.
[83] General practice is that home detention sentences are for a duration which is one half of the prison sentence that otherwise would have been imposed.41 Although this broad approach is not inflexible,42 I consider it appropriate to apply it in this case and I direct a home detention sentence of 10 months.
Summary
[84] In my view, the Judge erred in the sentencing decision. The starting point did not adequately reflect the lesser role the appellant played in the offending. This error resulted in a manifestly excessive end sentence.
[85] I acknowledge the Judge did not have the benefit of the cultural report in evidence. Now that I have considered the cultural report, I make a further discount to the appellant’s sentence. In my view, a 12 per cent additional discount is appropriate. After discounts, the sentence of one year and eight-and-a-half months’ imprisonment means the appellant is eligible for home detention. The appellant is to serve 10 months on home detention.
Result
[86]The appeal is allowed.
[87] The appellant is sentenced to ten months’ home detention to be served at the address specified in the PAC report. The following conditions apply:
41 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147, (2017) 28 CRNZ 617 at [59].
42 Metua v R [2018] NZHC 246 at [27].
(a)To remain within the electronically monitored boundaries as defined by a Probation Officer at the address specified by Probation Services / Department of Corrections for the duration of the home detention sentence;
(b)To undertake and complete any other counselling, treatment or programmes if deemed suitable, to the satisfaction of the Probation Officer and Counsellor. The details of the counselling or treatment are to be determined by the Probation Officer; and
(c)Not to associate with the co-offenders directly or indirectly without the prior written approval of a Probation Officer.
[88] The condition set out at para [87(c)] above is to apply, together with the standard post detention conditions in s 80O of the Sentencing Act 2002, for a period of six months from the detention end date.
Name suppression
[89] The co-offender, R, is awaiting trial for the charges against him. His name and identifying details, including the specific nature of his relationship to the appellant, are suppressed until trial or resolution under s 200(2)(d) of the Criminal Procedure Act 2011.
Gwyn J
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