Patterson v R - [2017] NZHC 49

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2016-483-18 [2017] NZHC 49

BETWEEN
WAYNE THOMAS PATTERSON

Appellant

AND

THE QUEEN Respondent

Hearing: 1 November 2016

Counsel:

D A Ewen for Appellant
C A Brook for Respondent

Judgment:

31 January 2017

JUDGMENT OF WILLIAMS J

[1] The appellant was sentenced to two years’ imprisonment for (among other things) attempting to pervert the course of justice. Standard release conditions were automatically imposed in accordance with s 93(2)(a) of the Sentencing Act 2002.

[2] Shortly before compulsory release on expiry of half of the sentence, the Department of Corrections applied to the District Court under s 94 to vary the appellant’s release conditions by imposing additional special release conditions. The appellant appeals against the decision of Judge Cameron in the Whanganui District Court granting the Department’s application. Two broad issues arise:

(1)Is there a right of appeal against the decision by the District Court to vary release conditions under s 94?

(2) If there is such a right, were the conditions imposed in error?

PATTERSON v THE QUEEN [2017] NZHC 49 [31 January 2017]

The facts

[3] The appellant Mr Patterson was imprisoned in 2007 for eight years for defrauding the Ministry of Social Development of $3.4 million in benefit payments. The fraud was elaborate, sophisticated and committed over a number of years. While still serving this sentence, Mr Patterson received a further nine month prison term for escape and attempted escape. It was while serving these cumulative sentences that in 2013, he appeared before the Parole Board seeking early release. He produced in support of his application a letter from the Carterton District Council promising him a job interview and one from his brother promising to support him on release. These letters were forgeries. They were typed and signed by Mr Patterson himself. He subsequently pleaded guilty to two counts of making a false document, two of using them for advantage and one of attempting to pervert the course of justice. On 14 August 2015, shortly after his release date for the cumulative sentences, he was sentenced by Judge Cameron to two years’ imprisonment for this offending.

[4] As Mr Patterson had served the whole of his eight year sentence, the Parole Board had no jurisdiction to impose any special release conditions on the remaining short term sentence. Release conditions in respect of short term sentences are within the mandate of the District Court, not the Parole Board.1 When Mr Patterson was originally sentenced for the most recent offending, Judge Cameron did not impose any special release conditions on him, so in accordance with s 93(2)(a) of the
Sentencing Act, standard release conditions as contained in s 14(1) of the Parole Act

2002 were automatically imposed. Those conditions are as follows:

(a) the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after release:

(b) the offender must report to a probation…

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.

Continue reading Patterson v R

Details

AGLC: Patterson v R [2017] NZHC 49
Case: [2017] NZHC 49
Decision Date: 31 January 2017

CaseChat Overview and Summary

The appellant in this case, Wayne Thomas Patterson, appeals against the decision of the Whanganui District Court to vary his release conditions under s 94 of the Sentencing Act 2002. The District Court imposed special release conditions on Mr Patterson shortly before his release from prison, following his conviction for attempting to pervert the course of justice. The two main issues before the High Court were whether there is a right of appeal against the decision of the District Court to vary release conditions under s 94, and if so, whether the conditions imposed were in error. The High Court found that Mr Patterson has a right to appeal the District Court’s decision, as it is an appeal against sentence under s 244(1) of the Criminal Procedure Act 2011. The Court held that the variation of release conditions, even if imposed post-sentencing, must logically form part of the sentence and therefore be a method of disposing of the case following conviction. The Court also found that the special release conditions imposed on Mr Patterson were largely necessary and proportionate in light of his extensive history of dishonesty offending. However, the Court did find that the condition banning Mr Patterson from accessing the Internet at all was overly draconian and disproportionate, and therefore amended the condition to allow for monitored Internet use.

The High Court allowed the appeal to the limited extent of amending the condition on Internet access, and dismissed the appeal in all other respects. This decision highlights the importance of considering the proportionality and necessity of special release conditions in light of the offender's history and offending patterns, while also taking into account relevant human rights considerations under the New Zealand Bill of Rights Act 1990. The case also clarifies the right of appeal for prisoners subject to variations of their release conditions under s 94 of the Sentencing Act.

Orders