O'Rourke v Police - [2023] NZHC 693

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-6

[2023] NZHC 693

BETWEEN
JUSTIN O’ROURKE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 March 2023

Counsel:

R M Gould for the Appellant

G L Duncan for the Respondent

Judgment:

31 March 2023

JUDGMENT OF GWYN J

Introduction

[1] Justin O’Rourke, age 33, appeals his release conditions requiring electronic monitoring for a period of six months after release. Mr O’Rourke submits the conditions are unnecessary and are not justified.

[2] The appellant was charged with two counts of failure to comply with release conditions, occurring on 4 May 2022 and 27 March 2022;1 one count of assault with intent to injure, occurring on 5 May 2022;2 threatening to kill, occurring on 5 May 2022 against his former flatmate/landlord.3 The District Court convicted Mr O’Rourke of one charge of breach of his release conditions and one charge of assault with intent to injure.

1      Sentencing Act 2002, s 96(1). The maximum sentence is one year imprisonment or a fine not exceeding $2,000.
2      Crimes Act 1961, s 193. The maximum sentence is three years’ imprisonment.
3      Section 306. The maximum sentence is seven years’ imprisonment.

O’ROURKE v NEW ZEALAND POLICE [2023] NZHC 693 [31 March 2023]

[3]Mr O’Rourke appeals the following release conditions:

…

6)To submit to electronic monitoring as directed by a Probation Officer in order to monitor your compliance with any conditions relating to your whereabouts.

7)To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a Probation Officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a Probation Officer.

[4] Mr O’Rourke has an extensive criminal and bail history. At the time of the District Court sentencing, he had 190 convictions entered in both the District Court and the Youth Court. The District Court noted the appellant’s convictions have escalated in seriousness and the level of violence involved over time.4

Factual background

[5] On 13 December 2021 the appellant was sentenced to one year’s imprisonment for assault on a person in a family relationship against his ex-partner and breach of a protection order. The conditions of his release included GPS monitoring for 11 months and one day.

[6] On 27 March 2022 the appellant’s GPS tracker shut down due to inadequate charging, in breach of the conditions of his sentence. The appellant said the Department of Corrections failed to deliver a charger to him. In respect of this conduct the Department of Corrections charged Mr O’Rourke with breach of his release conditions.5

[7] On 4 May 2022, just short of five months after receiving the GPS tracker, the appellant removed the tracker. Thereafter the Department of Corrections charged the appellant with the second count of breach of his release conditions.

4 Police v O’Rourke [2022] NZDC 22312 at [3]–[4].
5 Sentencing Act, s 96(1). The maximum punishment is one year imprisonment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read O'Rourke v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 693
Decision Date: 31 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of O'Rourke v Police involves Justin O'Rourke's appeal against his release conditions, specifically those requiring electronic monitoring for six months post-release. O'Rourke argues these conditions are unnecessary and unjustified. He has a history of breaches of his release conditions and recent convictions for assault with intent to injure and threatening to kill. The District Court had imposed electronic monitoring as a special condition under section 93(2)(b) of the Sentencing Act 2002.

The legal issues revolve around the necessity and proportionality of the electronic monitoring condition under the Sentencing Act 2002. Specifically, it was necessary to determine if the electronic monitoring condition is reasonably necessary and proportional, designed to reduce the risk of reoffending, facilitate rehabilitation, or address the concerns of the victims. The appeal court had to consider whether the District Court erred in imposing the condition.

The court reasoned that the electronic monitoring condition did not effectively address the specific needs of reducing the risk of reoffending, promoting rehabilitation, or protecting the victims. The court found that while O'Rourke's history and impulsive behaviour indicated a general risk to the public, GPS monitoring could not specifically guard against such risks. Furthermore, the court concluded that the condition was not designed to facilitate rehabilitation, given O'Rourke's refusal to engage in recommended programmes. The court also found the condition to be disproportionate given the lack of evidence suggesting an immediate threat to the victims. The appeal was thus allowed, and the electronic monitoring condition was deleted, replaced with conditions requiring O'Rourke to attend medical appointments and notify his Probation Officer of new or resumed relationships. The other conditions not appealed against remained in place.

Orders