Ruri v Police
[2015] NZHC 2006
•24 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-162 [2015] NZHC 2006
BETWEEN SELENA RURI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 August 2015 Counsel:
J Johnson-Aufai for the Appellant
N T Fletcher for the RespondentJudgment:
24 August 2015
JUDGMENT OF DUFFY J
Solicitors:
Crown Solicitor, Manukau
Public Defence Service, South Auckland
RURI v NEW ZEALAND POLICE [2015] NZHC 2006 [24 August 2015]
[1] In the District Court the appellant, Selena Ruri, received a sentence of six months’ community detention, 80 hours’ community work, nine months’ supervision and an order to pay reparation of $3,387.91 for a charge of unlawfully taking a motor vehicle. The offence was committed jointly with Errol Smith, the appellant’s partner.
[2] The appellant appealed against part of the sentence of supervision: namely the imposition of a condition that she is not to associate with Mr Smith.
[3] The respondent responsibly and helpfully accepted that the statutory criteria for imposing a special condition as part of the sentence of supervision were not met.1
It necessarily followed that the appeal should be allowed. Accordingly at the end of the hearing I delivered a result decision to that effect. My reasons now follow.
Background
Summary of Facts
[4] The offending occurred on the evening of 22 November 2014. At about 5:40 pm the appellant and her partner, Mr Smith, drove to Clarkes Electrical at Huia Road in Otahuhu. Mr Smith reversed their vehicle up to a trailer. Both defendants approached the trailer. Mr Smith took a pair of bolt cutters and cut the chain bolt and lock that secured the trailer. They then hooked the trailer to their car and drove away.
[5] The trailer was loaded with electrical goods and cabling valued at approximately $5,000. The trailed itself was valued at $4,010.
[6] Police located the trailer on 6 January 2015. The side of the trailer had been painted to conceal a sign. The damage to the trailer was approximately $2,803. Some of the electrical equipment was found with the trailer, however, approximately
$3,772.82 worth of equipment was left unaccounted for.
[7] The appellant was 24 at the time of the offending.
1 Section 52 of the Sentencing Act 2002.
[8] The pre-sentence report detailed the appellant’s personal circumstances:
(a) The appellant lives with her parents, her brother and her three sons aged four years old, two years old and 8 months old.
(b)The report notes that the appellant’s relationship with her partner, Mr Smith, was marred by domestic violence. Child Youth and Family Services (CYFS) advised that there had been at least nine incidents of family violence recorded in 2014, six in 2013 and six in 2011. CYFS have assigned a social worker to work with the appellant and her children.
(c) The appellant was engaged with a CYFS social worker, Family Start (a home visiting programme that focuses on improving children’s growth and health, learning and relationships, family circumstance, environment and safety) and Turiki Health Care Services – AWHI – Healthy homes initiative.
(d)The appellant receives a benefit from Work and Income. She has personal debts including debt to the Ministry of Justice for fines and enforcement fees and costs.
(e) The appellant was remorseful for her part in the offending. The key factors relating to her offending were considered to be relationship conflict, offending supportive associates and a lifestyle involving financial struggle and domestic violence.
(f) The appellant aimed to attend budgeting counselling to identify, consolidate and manager her debts and aimed to attend a Business and Administration course.
[9] The report writer recommended a sentence of community detention and supervision. Specifically:
(a) That the appellant not associate with Mr Smith, who at the time of writing the report was remanded in custody. The writer considered that until Mr Smith’s own rehabilitative needs had been addressed, a non-association order was necessary to mitigate the appellant’s own risk of reoffending as well as the potential risk of harm to the appellant and her children. The writer further noted that the appellant “appeared nervous as to when her partner would be released from prison and the implications of this for herself and her children.”
(b)A period of supervision would enable the probation officer to work with the appellant and the local agencies that she engages with, to support her rehabilitative needs.
Sentencing
[10] The appellant was sentenced by Judge GT Winter in the Manukau District Court on 21 May 2015. The Judge accepted that the appellant’s co-accused, who he described as “an abusive partner of yours”, may have been the lead actor, but also considered that there was a degree of premeditation and the electrical equipment had been targeted so that the goods could be sold. The Judge noted that the appellant had convictions for unlawfully taking a motor vehicle, unlawfulness in connection with getting into or upon motor vehicles and motor cycles, and wilful damage.
[11] The Judge was also satisfied that the cause of the appellant’s offending might be in dysfunctional relationships and the influence of bad associates. He noted that the appellant had sought help through social services such as Turiki Healthcare Services and Family Start. He stated that for this reason he did not impose a harsher penalty.
[12] The Judge noted that the pre-sentence report recommended community detention and supervision. The Judge noted that the appellant would have some difficulty with a sentence of community detention because of her current living circumstances, but considered that he could reflect this in the level of community detention imposed.
(a) Three months’ community detention with conditions as per the pre- sentence report;
(b)80 hours of community work. The Judge imposed this because of the low level of community detention as against the commercial nature of the crime and its seriousness;
(c) Reparation of $3287.91, in instalments of $10 per week; and
(d)Nine months’ supervision. This was described as in order to ensure that the pro-social support the appellant was getting at the moment was dovetailed together.
Sentencing of Mr Smith
[14] Mr Smith was sentenced by Judge JH Lovell-Smith on 9 June 2015. The sentence imposed was six months’ community detention, 200 hours’ community work, 12 months’ supervision and reparation of $3287.91.
[15] In imposing this sentence the Judge took into account, in particular, the fact that Mr Smith appeared to have woken up to the fact that he needed a steady job, as well as the time spent in custody and his guilty plea.
Appeal
Statutory Criteria
[16] The imposition of a special condition on a sentence of supervision is governed by s 52 of the Sentencing Act. This section provides:
52 Other special conditions
(1) A court may impose any of the special conditions described in subsection (2) if the court is satisfied that—
(a) there is a significant risk of further offending by the offender; and
(b) standard conditions alone would not adequately reduce that risk; and
(c) the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
(2) The conditions referred to in subsection (1) are—
(a) any conditions that the court thinks fit relating to the offender’s place of residence (which may include a condition that the offender not move residence), finances, or earnings:
(b) conditions requiring the offender to take prescription medication:
(ba) conditions requiring the offender to undertake training in basic work and living skills:
(c) any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.
(3) No court may impose a condition under this section that the offender pay any fine, reparation, or other sum ordered to be paid on conviction, or that the offender perform any service that he or she could have been required to perform if he or she had been sentenced to community work.
(3A) No court may impose a condition under this section that the offender submit to electronic monitoring.
(4) No offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender—
(a) has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
(b) consents to taking the prescription medication.
(5) An offender does not breach his or her conditions for the purposes of section 70 if he or she withdraws consent to taking prescription medication; but the failure to take the medication may give rise to a ground for variation or cancellation of the sentence of supervision under section 54.
[17] The conditions imposed in this case appear to have been conditions “that the court thinks fit to reduce the likelihood of further offending by the offender”.
[18] The appeal was brought under s 250 of the Criminal Procedure Act 2011. Accordingly, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed.2 This section was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.3 Accordingly, the appellant must demonstrate some error on the part of the sentencing court.4
Submissions
Appellant’s submissions
[19] The appellant’s primary ground of appeal was that the final special condition imposed as part of the sentence of supervision resulted in the combined sentence being manifestly excessive. The conditions of this part of the sentence were:
(a) To undertake any budgeting advice as directed by and to the satisfaction of a Probation Officer
(b)To attend and complete an appropriate assessment for women’s anger management and victim counselling to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer; and
(c) You are not to associate with or contact Errol Smith without the prior written approval of a Probation Officer.
[20] The specific grounds relied upon by the appellant were:
(a) The Judge was wrong to impose the condition;
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
4 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
(b)The Judge failed to consider the statutory considerations in imposing the condition;
(c) The Judge failed to give reasons for imposing the condition;
(d)The Judge gave too much weight to the concerns in the pre sentence report and failed to take into account the personal circumstances of the appellant.
[21] First, the appellant argued that there was no statutory authority to impose the non-association condition. The appellant stated that under s 52 a special condition may only be imposed where the court is satisfied that “there is a significant risk of further offending by the offending”. The appellant submitted that the Judge could not have been satisfied that the appellant’s relationship with Mr Smith created a significant risk of further offending or increased the risk because:
(a) The 2014 offending was the only time that the appellant had engaged in criminal activity with Mr Smith. The majority of her offending occurred in 2008 when she was 17. The appellant has been in a relationship with Mr Smith for the past 6 years, coinciding with a significant gap in her offending.
(b)The 2014 offending took place at a stage where she was trying to deal with the conflict in her relationship with Mr Smith, which was aggravated by financial difficulties.
[22] The appellant also submitted that a non-association order was not an appropriate means for the court to protect the appellant from potential domestic violence: the purpose must be related to the appellant’s own risk of reoffending. The appellant stated that it is not true that she does not feel safe in her relationship with Mr Smith. She considered that she was being punished for his past offending. Further, Mr Smith has no convictions for domestic related offending in respect of her. Their offending was unrelated.
[23] The appellant argued that a non-association condition was not imposed on Mr Smith. Further, although the sentences of community detention, community work and supervision imposed on Mr Smith were for longer periods, he was sentenced on a number of other charges as well.
[24] Finally, the appellant argued that a non-association condition breaches her right to freedom of association. The appellant submitted that it should be her decision as to whether she associates with Mr Smith. She wishes to undertake counselling with Mr Smith. It is also noted that he now has a job. The two are a young couple trying to raise a family together.
[25] Finally, the appellant argued that she had associated with Mr Smith prior to appearing in Court in January 2015 without committing further offences. In January a condition of the appellant’s bail was that she not associate with Mr Smith. This was varied on 16 February to allow her to visit Mr Smith in custody and to take her children to see him.
Respondent’s Submissions
[26] The respondent noted that the Judge did not expressly impose the recommended conditions in his oral judgment. However, those conditions formed a part of the District Court’s formal Order for Sentence of Supervision, and further that this was the inference to be drawn from the rest of Judge Winter’s judgment, as the conditions noted in the pre-sentence report appear to have been circled by the Judge on the Court copy of this report. Accordingly, the respondent proceeded on the basis that the non-association condition was part of the sentence imposed.
[27] The respondent submitted that the recommendation of a non-association order was made on the basis that until Mr Smith addressed his own rehabilitative needs, it was necessary to mitigate the risk of reoffending and potential risk of harm to Ms Ruri. Further, the key offending factors were identified as a lifestyle marred by financial struggle and domestic violence. The appellant’s medium risk of reoffending was stated to be “provided she does not slide back into the conflicted
relationship with her partner and co-offender, Errol Smith, without robust
rehabilitation on both their parts.”
[28] The respondent accepted that Judge Winter did not directly explain why the non-association condition was appropriate to reduce the likelihood of further offending and why the requirements in s 52(1) were met. However, the Judge described the pre-sentence report as “thoughtful and well-prepared” and his remarks about the appellant’s abusive partner and dysfunctional relationships are said to show that he agreed with the reasons given in the pre-sentence report for a non-association order.
[29] The respondent acknowledged that the non-association condition was recommended for reasons that were not limited to the risk of reoffending. Further, the respondent accepted that the emphasis in the pre-sentence report was on the risk of harm to the appellant and her children.
[30] Accordingly, the respondent agreed that it would be open to the court to decide that it is not satisfied that the imposition of the condition was necessary with regards to the criteria in s 52(1). With regards to each criterion the respondent submitted:
(a) A significant risk of reoffending: it was accepted that the assessment in the pre-sentence report that the appellant is “at a medium risk of reoffending” was not adequately explained. Further, the respondent acknowledged that the argument that her criminal history does not indicate that she has a significant risk of reoffending has some weight. The respondent acknowledged that the appellant only has one minor driving offence in the past seven years: all of the rest of the offences were committed when she was 17 years old. Accordingly, the respondent accepted that it could be said that the present offending “is an aberration” and the appellant does not have a significant risk of reoffending.
(b)Standard conditions alone would not adequately reduce the risk: the respondent pointed towards s 49(1)(h) which is one of the standard conditions of a sentence of supervision. It provides that “the offender must not associate with any specified person, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate”. The respondent recognised that this could be used if the probation officer considered that the appellant’s relationship with Mr Smith was impeding her rehabilitation.
(c) Imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender: the respondent acknowledged that the non-association order could be said to only be likely to promote the appellant’s rehabilitation if it helps her leave an abusive relationship with Mr Smith. As she wished to maintain her association with him, it could be said to be counter-productive to insist on non-association during the sentence of supervision.
[31] Accordingly, the respondent accepted that it is open to the Court to consider that the non-association condition was imposed in error.
Discussion
[32] With regards to the preliminary issue raised by the respondent as to whether the special condition forms a part of the actual sentence, I agree for the reasons given by the respondent that is clear from the surrounding parts of the judgment that this is a part of the sentence. I also agree with the respondent’s submission that the language in the judgment shows that the Judge agreed with an endorsed the reasoning in the pre sentence report as to why the non-association order was appropriate.
[33] Both parties agree that the requirements in s 52 of the Sentencing Act for imposing a special condition were not met in these circumstances. First, the appellant has to have a significant risk of reoffending. The pre-sentence report cited
by the respondent notes “[p]rovided that she does not slide back into the conflicted relationship with her partner and co-offender, Errol Smith, without robust rehabilitation undertaken on both their parts, she has assessed as medium risk of reoffending.” While the report writer could have meant that the appellant would have a significant risk of reoffending if she associated with Mr Smith, I do not consider that, in the absence of further comment from the Judge, this is clear enough to be satisfied that s 52(1)(a) was met.
[34] The Judge’s sentencing notes when sentencing Mr Smith also indicate that he had made some attempts at rehabilitation and make reference to a job. When sentencing the appellant, Judge Winter does not appear to have had any information concerning Mr Smith’s own rehabilitative efforts before him.
[35] Further, aside from a conviction for being an unlicensed driver failed to comply with prohibition in May 2014, the last offence the appellant committed was breach of community work in 2008. Prior to that, the appellant has convictions for drink-driving, failure to stop when followed by red/blue flashing lights, unlawfully gets into a motor vehicle and unlawfully takes a motor vehicle from the end of October 2007, and one charge of wilful damage from November 2007. Both parties agree that this criminal history does not show a significant risk of reoffending. Further, there is the appellant’s argument that the majority of her offending did not involve Mr Smith, and she has associated with him since this was allowed as part of
her bail conditions in February, without committing further offences.5 I agree that
there is insufficient evidence to conclude that association with Mr Smith would increase the appellant’s risk of reoffending. Accordingly, I agree that there is insufficient evidence to conclude that the appellant was at a significant risk of
reoffending.
5 See Waters v Police where Dunningham J held that “the experience of seven months on bail without the imposition of a special condition was evidence which could have been relied on to suggest that such a condition was not necessary to reduce any risk of further offending by the offender”: Waters v Police [2014] NZHC 1258 at [16]. This decision related to home detention and post detention special condition non-association condition.
[36] In relation to the second requirement, as the respondent recognised, s 49(1)(h) could be used by the probation officer in the event that it was subsequently considered necessary.
[37] In relation to the third requirement, arguably, the imposition could hinder the appellant’s rehabilitation because it creates a difficulty for her and Mr Smith to be able to raise their children together. It is unlikely to have a rehabilitative effect where the appellant is opposed to its imposition. In any event, the two parties’ community detention addresses are already different.
Conclusion
[38] I agree with both parties that the Judge erred, in that he did not consider whether the requirements in s 52 of the Sentencing Act were met, and to the extent that he relied on the reasoning in the pre-sentence report, the evidence did not establish that the statutory criteria were met.
[39] The appeal is allowed. The special condition that the appellant must not have any contact with Mr Smith is set aside. I am grateful to both counsel for the carefully considered and responsible approach that each has taken to the appeal.
0
2
0