Smith v Police

[2019] NZHC 1486

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2019-483-5

[2019] NZHC 1486

BETWEEN

LEON SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 June 2019 (via AVL)
Counsel:	E C Copeland for Appellant R N Benic for Respondent
Judgment:	27 June 2019

JUDGMENT OF SIMON FRANCE J

[1]                 Mr Smith appeals a sentence of two years’ intensive supervision imposed in relation to two breaches of a protection order.1 There are two aspects to the appeal:

(a)it is first submitted the sentence type is wrong and that 12 months’ supervision would have sufficed;

(b)alternatively, two of the special conditions imposed are incorrect and should be quashed.

Offending

[2]                 Mr Smith is 22 years of age. He has been with the victim for five years and they have had a baby together. In August 2017 Mr Smith was sentenced to 15 months’ imprisonment on a number of charges including injuring his partner with intent to

1      New Zealand Police v Smith [2019] NZDC 8011.

SMITH v NZ POLICE [2019] NZHC 1486 [27 June 2019]

injure, and wilfully damaging her  property.  In  breach  of  a  public  safety  order, Mr Smith had visited the house. Whilst there he punched the victim knocking her out. Then about a month later Mr Smith, by then on bail, breached his bail conditions by going to the house. He resisted Police when they arrived to remove him.

[3]                 Turning then to the present incident, Mr Smith was at the victim’s house. There is a protection order in place, but it does not prevent these situations if the victim consents. On this occasion, concerned at his conduct, the victim asked Mr Smith to leave. He refused, and Police were called. He again resisted efforts to remove him.

[4]                 Later that evening, having been banned from returning, Mr Smith nevertheless did so. He gained entry by kicking in a door, thereby damaging the frame and breaking a glass panel. He then proceeded to yell at the victim until Police arrived. Mr Smith had consumed alcohol, a not uncommon feature of his offending.

Sentencing

[5]                 At a call of the matter following pleas, counsel for Mr Smith urged the Court to deal with the matter immediately by way of a supervision sentence. There was a letter of support from the victim. The Court agreed. I do not criticise this decision, but a consequence is that there were no reports, nor recommended conditions for this type of sentence.

[6]                 As noted the Judge sentenced Mr Smith to two years of intensive supervision. He imposed the following conditions:

[6]There will be these conditions:

(a)You attend a family violence programme.

(b)You attend an assessment, treatment, counselling, or programme in relation to alcohol and drug use.

(c)There is no contact with the victim without the written permission of your probation officer. That means that they supervise how it occurs and if it occurs. What that means is that they have control and they understand and are able to ensure that the complainant wants to have that contact.

(d)You attend any other programme aimed at addressing your offending behaviour. So, that leaves the door open for the department to find other courses or programmes that may assist you.

(e)You live at an address approved by the probation officer and you do not move without their approval.

[7]As for reasons, the Court observed:

[3]I have to say, I am a little bit cautious in my optimism but I do not ignore the letter that has been written on your behalf, the support you have, and the hopes of the victim for your role with your family.

[4]I am going to give you an opportunity but it will not be an easy one and it will come with a very clear message. It is going to be a sentence of two years’ intensive supervision on each. It will come with a final warning and it will come with judicial monitoring. What that means is I get a report every three months, or earlier if it is not going to plan. Probation know, when I put that in place, that if they are not happy with your compliance, they bring it back before me and we will just move straight to prison.

[5]So, that is the understanding. There is an advantage to you but it comes with a clear understanding. You co-operate, you do your part, and everything will be good. If you do not then we will just move to the sentence that I would probably have gone to, anyway, today.

It can be noted that in these reasons the Judge also indicates that judicial monitoring will be a condition of the sentence. Although not then listed in the conditions, it is clear that was the Court’s intention.

Decision

Intensive supervision or supervision

[8]       As the name suggests, intensive supervision is an enhanced version of the sentence of supervision. Section 54C of the Sentencing Act 2002 explains the relationship between the two:

54C     Guidance on use of sentence of intensive supervision

A court may impose a sentence of intensive supervision only if it is satisfied that—

(a)a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and

(b)the nature of the offender's rehabilitative or other needs requires the imposition of conditions—

(i)for a period longer than 12 months; or

(ii)that are not available through the sentence of supervision.

[9]       There are two features of the sentence that are exclusive to intensive supervision and therefore must represent the reason why the Court considered a sentence of supervision insufficient to meet  the  rehabilitative  or  other  needs  of Mr Smith. The two aspects exclusive to intensive supervision are the length of the sentence and the judicial monitoring condition. Of judicial monitoring, s 54I(2) provides:

54I Other special conditions

…

(2) A court may only impose a condition of the kind described  in  subsection (3)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this is necessary to assist the offender's compliance with the sentence.

[10]     It is clear from the Court’s reasons cited earlier that the Judge considered it necessary that Mr Smith be aware that he was being watched closely, not only by probation services but also the Court. He was told that prison is not far away, and he was on a final warning.

[11]     There are features of Mr Smith’s past conduct that support this approach. Both incidents involving the offender displaying a loss of control and a refusal to let matters go when asked to do so by both the victim and Police. Each has involved violence. On the first occasion there was a bad assault; on the second there was damage to the house to force entry and then a verbal assault.

[12]     The circumstances in which the sentence came to be imposed are relevant. Supervision rather than imprisonment was the suggestion made on behalf of Mr Smith who presented as a person committed to the relationship and supported by the victim who describes him as a changed person. The Court obviously had doubts but agreed to try the rehabilitative route, but only in a way that would require Mr Smith to demonstrate the reality of his change.

[13]     I am not satisfied the Judge was wrong to take this approach, or that he was wrong to consider the heavier overlay effected by conditions such as judicial monitoring was necessary. There is a danger the outcome could all seem too easy and comfortable for Mr Smith, with a consequent lessening of the incentive to change. I observe the same Judge had sentenced Mr Smith on both occasions so was in a good position to make the assessment.

[14]     I consider there is room to question the length of the intensive supervision sentence. Two years is the maximum term and the Court has not set out why that was required. There is no information to suggest the proposed programmes require that time, and 18 months of compliance by Mr Smith would afford some measure of confidence that the necessary change has occurred. I also consider that a shorter time is more likely to encourage Mr Smith to commit to the change, and to eventually free himself of the oversight.

Special conditions

[15]     Three of the special conditions relate to programmes and are not the subject of challenge. The remaining two conditions control where Mr Smith lives and what contact he may have with the victim. It is submitted they are unnecessarily restrictive and will harm rehabilitative prospects. Emphasis is placed on the views of the victim, the fact the couple have a young child and the existence of a protection order that allows the victim to control contact.

[16]Section 54I(1) provides:

54I Other special conditions

(1)A court may impose any of the special conditions described in subsection (3) 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.

[17]     Subsection (3) then provides a list of areas concerning which special conditions may be made. Section 54I(3)(a) speaks of any conditions the Court thinks fit concerning residence (which may include a condition that the offender not move residence). This obviously authorises the special condition imposed here. Concerning the special condition limiting contact with the victim, there is no specific authorisation. However, s 54I(3)(e) allows a Court to impose any condition the Court thinks fit to reduce the likelihood of further offending.

[18]     Turning first to the residence condition, the standard conditions allow the probation officer to direct that the offender must not reside at a particular address.2 The offender is also required to advise the probation officer of his or her address and not to move to another probation area without consent.3 These rules impose a measure of control, but it is balanced. Specific addresses may be ruled out, but otherwise the offender can choose where to live as long as the probation officer is informed.

[19]     The special condition imposed here represents quite a significant change. It reverses the standard position and says the probation officer can direct Mr Smith where to live. It is unclear why this was thought necessary. The focus of the sentence is on the relationship between Mr Smith and the victim, and the standard conditions already allow the probation officer to prohibit Mr Smith from living at the victim’s address. I can discern no reason to otherwise control where he lives over the level of control given by the standard conditions. No reason otherwise having been given, and there being no recommendation for such a condition, this special condition will be quashed. I note the standard condition under s 54F(1)(g) still applies.

[20]     As for controlling contact, the standard conditions allow the probation officer to direct that Mr Smith not associate with a specified person.4 Such a direction in relation to Mr Smith contacting the victim would be unrealistic and undesirable here, given the victim’s on-going desire for a relationship and the fact they have a child. Equally, however, it is appropriate given the offending history and the risk of further

2      Section 54F(1)(g).

3      Section 54F(1)(c) and (d).

4      Section 54F(1)(i).

offending that the probation services can control the circumstances of contact, and thereby protect the safety of the victim and those who live with her.5

[21]     The primary thrust of the appellant’s submission is that the protection order that is in place is sufficient to achieve these aims. It allows the victim to control matters and that is enough. I do not agree. Intensive supervision is a sentence; its purpose is to promote rehabilitation by exercising control over the offender and thereby maximising the prospects for change. That in turn lessens the risk of reoffending. There is an aspect to the appeal that promotes a “leave it to the offender and the victim” approach which does not recognise that the matter is before the Court because of further breaches of the protection order. I consider the condition an essential part of the sentence.

Conclusion

[22]The appeal is allowed in part.

[23]     The sentence of intensive supervision is confirmed, but its length is reduced to one of 18 months.

[24]The special condition concerning where Mr Smith lives is quashed.

[25]The sentence is otherwise confirmed.

Simon France J

5      Section 54I(1).