O'Rourke v Police
[2023] NZHC 693
•31 March 2023
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 or a fine of up to
$2,000.
[8] On 5 May 2022 the appellant assaulted the complainant. The complainant owned the home where Mr O’Rourke was staying. The assault involved punching the complainant several times and standing or stomping on his ribs. Subsequently the appellant put the complainant into a leg lock and lifted him onto his shoulders, using his foot as a gripping point, which aggravated a historical injury. These events led to the Police charging Mr O’Rourke with assault with intent to injure.6
[9] The complainant of the assault alleged that Mr O’Rourke dropped the complainant to the ground at the end of the assault and said “Fucking kill him” before walking away in a menacing manner. Mr O’Rourke said he told the complainant “You are lucky I didn’t fucking kill you”. The Police charged Mr O’Rourke with threatening to kill.7
Procedural history
[10] On 21 September 2022, in an oral judgment, Judge Northwood found Mr O’Rourke guilty of assault with intent to injure. The Judge found that Mr O’Rourke intended to cause the complainant injury and that the complainant had actually sustained injuries.
[11] Judge Northwood dismissed the charge of threatening to kill, finding the complainant was potentially confused and dazed following the assault and that there was a reasonable possibility the appellant’s version of events was correct such that the Crown had not proved the charge beyond reasonable doubt.
[12] On 11 November 2022 the District Court released Judge Northwood’s sentencing notes.8 His Honour adopted a starting point of 12 months’ imprisonment for the assault conviction and uplifted the starting point by one month to reflect the appellant’s recent violence, giving a total of 13 months’ imprisonment for this conviction. For the breach of release conditions conviction, the Judge adopted a starting point of three months and reduced this starting point by one month for the
6 Crimes Act, s 193. The maximum penalty is three years’ imprisonment.
7 Section 306. The maximum penalty is seven years’ imprisonment.
8 Police v O’Rourke, above n 4.
appellant’s guilty plea, giving a sentence of two months’ imprisonment, cumulative. The total sentence was 15 months’ imprisonment.
[13] The Judge imposed standard and special release conditions for six months following Mr O’Rourke’s release.9 The Judge ruled the conditions would be “in terms of the pre-sentence report dated 10 October 2022 and expressly include electronic monitoring.”10
[14] The pre-sentence Provision of Advice to Courts (PAC) report referred to by the Judge adopted the conditions from the PAC report which assessed Mr O’Rourke as having a low ability to comply with the conditions of his release and struggling to control his impulsive behaviour. The report noted a previous incident, in 2019, when Mr O’Rourke removed his GPS bracelet and absconded. The report further noted Mr O’Rourke is ineligible for programmes given the risk of violence he presents, and he has declined to engage in an assessment with a psychologist. Other conditions include prohibition on the possession of alcohol and non-prescription drugs; attending an alcohol and drug assessment; attending a psychologist assessment; non-association with the complainants without the prior written approval of the Probation Officer; and non-entry into relevant streets and other areas defined by the Probation Officer without the prior written approval of the Probation Officer.
Submissions
For the appellant
[15] Ms Gould submits the risk to the general community posed to either of the two named complainants is not sufficient to justify the onerous nature and infringement of liberty caused by the GPS monitoring condition.
[16] Ms Gould confirmed that the appellant no longer lives with his former flatmate/landlord.
9 At [22].
10 At [22].
[17] The appellant says the condition that he must not associate with his ex-partner provides sufficient protection for her. There is no reasonable nexus between the offending against his ex-partner and the need for the GPS monitoring condition. Similarly, the appellant says there is no reasonable basis for saying the GPS condition is designed to reduce the risk of Mr O’Rourke reoffending against the male complainant.
[18] Counsel for the appellant submits he needs medical assistance for his mental health and attention deficit hyperactivity disorder (ADHD), rather than the GPS monitoring condition. In particular, his ADHD has never been successfully managed and this condition has contributed to his low education and ultimately to his offending, given he tends to act impulsively without considering the consequences of his actions. A psychologist assessor’s report from 2017 noted that Mr O’Rourke’s participation in mental health services appears to have ceased when he first interacted with the youth justice system. The report recommended he undergo a neuropsychological assessment to determine the extent of his cognitive difficulties that have been present since the appellant’s childhood. Ms Gould also points to trauma the appellant has experienced: the death of his brother in a car accident and the killing of a friend.
[19] The appellant explains that his difficulties complying with the terms of his probation and release conditions are due to an inability to curb his own behaviour, and his impulsive behaviour, rather than wilful intransigence.
[20] Section 8(g) and (h) of the Sentencing Act 2002 require the Court to impose the least restrictive sentence and to take into account particular circumstances that make an order disproportionately severe. These considerations support an alternative to GPS monitoring.
[21] The appellant submitted that only subss (a) and (c) of s 93(3) of the Sentencing Act are potentially applicable on these facts.
[22] The appellant relies on Manuel v Police, where the High Court found there was no rational nexus between the condition that the appellant does not associate with his partner and the offending because the partner was the complainant of an assault three
years prior.11 The appellant says that similarly, on these facts, no GPS monitoring is necessary to protect the second complainant. The appellant also referred to R v Janssen for the general principle that conditions imposed on sentences must reflect “the precise criminality” of the offence for which the defendant is sentenced.12
For the respondent
[23] Ms Duncan submits the appellant poses a high risk of reoffending which justifies the higher level of monitoring by GPS. The appeal should be dismissed.
[24] Ms Duncan indicated that the respondent believes the two victims and the appellant are Palmerston North-based but was unaware of their specific addresses.
[25] Although the appellant’s criminal history started in 2004, his violent offending began in 2014 and has increased in severity in the nine years since.
[26] The appellant has previously refused to engage with a psychologist and has trouble controlling his impulses due to unaddressed underlying issues. He lacks the rehabilitative prospects that could assure the Court he would not reoffend.
[27] The appellant told the pre-sentence report writer that in spite of his bail conditions prohibiting him from possessing alcohol and illegal drugs, he had been drinking alcohol and consuming methamphetamine almost daily and cannabis approximately weekly in the months prior to his arrest.
[28] There is a sufficient nexus between the index offending and the need to protect the appellant’s former partner. The appellant has a history of breaching the conditions of his bail and has previously been convicted for breaching a protection order issued against him in respect of one of his former partners. The condition that he is not to associate with the complainant would not provide the complainant with sufficient protection. The risk to the complainant is legitimate and long-term, given the appellant’s history of offending against her is recent and serious, and viewed in light of the appellant’s impulsive behavioural disposition.
11 Manuel v Police [2019] NZHC 816 at [34].
12 R v Janssen [2007] NZCA 450 at [15] and [18].
[29] The respondent agrees that the appellant needs support to address his ADHD, but such support aimed to address the root causes of his offending should complement rather than replace the GPS monitoring condition. Doing so would serve the rehabilitative and reintegration purposes of sentencing whilst also promoting community protection.
[30] The respondent referred the Court to Thompson v Police where the High Court rejected a submission that a GPS monitoring condition to support a condition that the defendant not to go within 200 metres of the complainant’s address was unnecessarily intrusive.13
[31] In terms of s 93(3) of the Sentencing Act, the respondent submitted that the GPS monitoring condition addresses all of subss (a)–(c).
[32] In the respondent’s view the GPS monitoring condition is necessary, not only to ensure that the appellant complies with the condition that he not associate with the victims of his offending, but also to promote compliance with the conditions regarding alcohol and non-prescription medicine and attending rehabilitative programmes.
Relevant law
[33] The District Court imposed the GPS monitoring condition under s 93(2)(b) of the Sentencing Act which provides for the imposition of special conditions on release from short terms of imprisonment. Under s 93(3) the Court must not impose a special condition unless it is designed to reduce the risk of offending; facilitate or promote the rehabilitation and reintegration of the offender; or provide for the reasonable concerns of the offender’s victim(s). While s 93 confers a broad discretion on sentencing judges, the discretion is “not without constraint.”14 Any given condition must exhibit a rational nexus to the s 93(3) purpose and, when considered with other conditions to be imposed, must be reasonably necessary and proportional.15
13 Thompson v Police [2020] NZHC 20 at [28]–[29].
14 Woods v Police [2020] NZSC 141, [2020] 1 NZLR 743 at [63].
15 Patterson v R [2017] NZCA 66 at [18].
[34] Special conditions imposed at the time of sentence can be appealed as part of an appeal against sentence under s 251(2)(b) of the Criminal Procedure Act 2011.16 An appeal against sentence is an appeal against the Judge’s discretion. Under s 250, 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.
[35] The question on appeal is whether there has been a material error. The test of whether a sentence is “manifestly excessive” is often applied as a guide to determining whether there has been an error.17 An appeal court cannot tinker with the end sentence if the end sentence is within range.18 The focus is upon the end sentence, rather than the process by which the Judge reached that end sentence.19
Analysis
[36] As I have previously noted, the appellant appeals against the GPS monitoring conditions. Although the notice of appeal stated that the appellant thought the sentence was manifestly excessive, now that he has obtained legal counsel, the written submissions from Ms Gould do not appeal against the length of his sentence.
[37] I accept the appellant’s submission that subss (a) and (c) of s 93(3) of the Sentencing Act are relevant here. I do not consider that GPS monitoring can be said to facilitate or promote the rehabilitation and reintegration of Mr O’Rourke into the community.20 Further I conclude that subs (c) is of limited relevance at this point. There are no specific concerns about the geographic proximity of the appellant to either complainant (other than that it appears all three still live in Palmerston North). There is no evidence that the appellant has attempted to make contact with either complainant in the three to four months since his release.
16 At [19].
17 Ripia v R [2011] NZCA 101 at [15].
18 At [15].
19 At [15].
20 Sentencing Act, s 93(3)(b).
[38] I also do not consider that subs (a) has direct application here. Although Mr O’Rourke’s history and acknowledged impulsive behaviour suggest a risk to the broader public, as Ms Duncan for the respondent conceded, although GPS monitoring can help to monitor an offender’s whereabouts, it cannot guard against risks to unspecified members of the public, in unspecified locations. I conclude that GPS monitoring has very limited utility for reducing that general risk of reoffending in this case.
Result
[39] The appeal is allowed and the current release conditions set out at [3] above are deleted.
[40]I substitute the following release conditions:
(a)Mr O’Rourke is to attend all medical appointments made for him, at the direction of his Probation Officer; and
(b)Mr O’Rourke is to notify his Probation Officer of the start of any new relationship or resumption of any past relationships.
[41] The five conditions that Mr O’Rourke did not appeal continue to apply. These are:
(a)Not to possess, consume or use any alcohol or drugs not prescribed to you.
(b)To attend an alcohol and other drug assessment and attend and complete any treatment/counselling as recommended by the assessment and to the satisfaction of the Probation Officer.
(c)To attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and to complete any treatment/counselling/programmes as recommended by the assessment and to the satisfaction of the Probation Officer and treatment provider.
(d)Not to associate with or contact the victims of your offending without the prior written approval of a Probation Officer.
(e)Not to enter Vogel Street, Tweed Street or Rata Street, and Cecil Place or any other area defined in writing by your Probation Officer, without the prior written approval of a Probation officer.
Gwyn J
Solicitors:
Crown Solicitor, Palmerston North
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