T v R on behalf of Department of Corrections
[2025] NZHC 2969
•8 October 2025
INTERIM ORDER SUPPRESSING NAME AND IDENTIFYING PARTICULARS OF THE DEFENDANT UNDER S 286 OF THE CRIMINAL
PROCEDURE ACT 2011 UNTIL FINAL DETERMINATION OF THE APPEAL PROCEEDINGS UNDERWAY IN THE COURT OF APPEAL.
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-373
[2025] NZHC 2969
BETWEEN T
Appellant
AND
THE KING on behalf of
DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 16 September 2025 Appearances:
O A Boersma for Appellant S Meyerhoff for Respondent
Judgment:
8 October 2025
JUDGMENT OF O’GORMAN J
[Appeal against special conditions imposed]
This judgment was delivered by me on 8 October 2025 at 4 pm
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Keam Law, Auckland
Meredith Connell, Auckland
T v R on behalf of DEPARTMENT OF CORRECTIONS [2025] NZHC 2969 [8 October 2025]
[1] This is an appeal against the decision of Judge K J Glubb on 30 June 2025 to grant an application to vary release conditions brought by the Department of Corrections requiring T:1
(a)not to enter or loiter near any school, early childhood education centre, park, shopping mall, library, swimming pool, other recreational facility, church, or other area specified in writing by a probation officer, unless he has the prior written approval of a probation officer, or unless an adult approved by a probation officer in writing is present;
(b)to submit to electronic monitoring as directed by a probation officer in order to monitor his compliance with any conditions relating to his whereabouts; and
(c)to comply with the requirements of electronic monitoring and provide unimpeded access to his 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.
[2] The appellant appeals that decision on the grounds that there was an insufficient basis to impose a GPS monitoring of his whereabouts condition, based on the following:
(a)the Judge erred in law by finding the imposition of GPS monitoring of a whereabouts condition was necessary and proportionate;
(b)the Judge made an error by revisiting the 26 March 2025 sentencing decision when the power under s 94 of the Sentencing Act 2002 (Act) was not intended to provide an opportunity to revisit sentencing; and
1 Department of Corrections v T [2025] NZDC 15487.
(c)the Judge failed to take into account all relevant matters by failing to consider there had been no relevant change in circumstances since the appellant was sentenced on 26 March 2025, therefore the imposition of an electronically monitored bracelet unreasonably infringes on the appellant’s freedom of movement.
[3] The appellant did not oppose the addition of the release condition prohibiting entry into specific areas where there was a higher likelihood of children being present. However, subsequent to the District Court’s grant of that application, the Department of Corrections directed the appellant not to enter the North Shore under the “not to enter” condition. Accordingly, in supplementary submissions dated 12 September 2025, counsel for the appellant advanced a further ground of appeal that the special condition referred to in [1](a) above was neither necessary, nor proportionate.
Special release conditions
[4] The power to vary and impose further special conditions on release from short terms of imprisonment are governed by s 94 of the Act. Section 94 provides:
94 Variation of release conditions
(1) An offender who is subject to conditions imposed under section 93, or a probation officer, may apply for an order under subsection (3) of this section.
(2) Section 72 applies with any necessary modifications to an application under this section.
(3) On an application under subsection (1), the court may, if it thinks fit,—
(a)suspend any condition or vary the duration of any condition, or impose additional conditions; or
(b)discharge a condition and substitute any other condition described in section 93 that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.
(4) The court must not vary any existing condition, or impose any new condition, of a kind referred to in section 93(4) (which involves 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 any variation or new condition in relation to the medication and any known risks; and
(b)consents to taking the prescription medication.
(5) If an application is made under this section for the suspension, variation, or discharge of any condition, a probation officer may suspend the condition until the application has been heard and disposed of.
[5] Section 93(3) of the Act performs the primary gatekeeping role with respect to special conditions. The Court must not impose a special condition on release in respect of short terms of imprisonment unless designed to:
(a)reduce the offender’s risk of reoffending; or
(b)facilitate or promote the rehabilitation and reintegration of the offender; or
(c)provide for reasonable concerns of the offender’s victims.
[6] Any condition imposed under s 93 must serve the purposes of sentencing set out in s 7(1) of the Act, and be exercised consistently with the principles in s 8.2 The conditions imposed must also be “reasonably necessary and proportional”,3 and directed to address the “precise criminality”.4 As such, freedoms of association and movement protected by ss 17 and 18(1) of the New Zealand Bill of Rights Act 1990 (NZBORA) are permissibly circumscribed but not ignored.5
Approach on appeal
[7] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be
2 R v Janssen [2007] NZCA 450 at [14]–[15]; and Latham-Johnstone v Department of Corrections
[2014] NZHC 2451 at [17].
3 Patterson v R [2017] NZSC 107 at [6].
4 R v Janssen, above n 2, at [15], referring to R v Meroiti CA392/99, 26 October 1999 at [6].
5 At [17]; Patterson v R [2017] NZHC 49 at [38]; Patterson v R [2017] NZCA 66 at [22]; Patterson v R (SC), above n 3, at [8] (leave to appeal denied, including because the proposition was not seriously arguable).
imposed.6 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.7 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Appellant’s grounds of appeal
[8] The first ground of appeal is that the condition imposing electronic monitoring unreasonably infringes the appellant’s freedom of movement under ss 17 and 18 of NZBORA.
[9] While the purpose is to reduce the risk of reoffending under s 93(3)(a) of the Act, the appellant submits there is no evidence that the appellant has attempted to contact the victim or her family, nor that the geographic proximity poses any concern because the appellant does not know the victim’s location.
[10] The imposition of GPS monitoring cannot reasonably be said to facilitate rehabilitation or reintegration. The primary justification advanced in the District Court was that existing release conditions do not adequately mitigate the risk of harm to the community given the appellant’s history of offending. In response to that, counsel for the appellant submits:
(a)The appellant’s criminal history has been overstated and is not extensive or prolific.
(b)The most recent conviction does not represent an escalation in seriousness, nor differ materially in nature from his previous convictions.
(c)The appellant’s prior sexual offending and locations of such offending were addressed in the pre-sentence report, yet more restrictive conditions were not imposed at sentencing on 26 March 2025, and he has not been charged with any further sexual offending since then.
6 Criminal Procedure Act 2011, s 250.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
(d)The circumstances do not justify the imposition of electronic monitoring, especially when considering cases in which it has been observed that GPS monitoring cannot guard against risks to unspecific members of the public and unspecified locations.8
[11] Somewhat crossing over with the first ground of appeal, the second ground is that there has been no relevant change in circumstances since the sentencing decision, so no facts justify the imposition of an electronic monitoring condition. The appellant says this is an established factor requiring consideration.9 Counsel for the appellant emphasises that her client has consistently denied the present offending, as noted in the pre-sentence report, and the Department of Corrections is relying on this as increasing risk and justifying the conditions to achieve more effective mitigation. However, these matters have not changed from the time of sentencing.
[12] The third ground is that it constitutes an error to revisit sentencing under s 94 of the Act if there has been no relevant change in circumstances since sentencing. In the decision appealed, the Judge took the view that these conditions had been “overlooked” and ought to have been imposed at sentencing.10 Counsel submits that this is a judicial error because the power under s 94 does not authorise a court retrospectively to revisit or supplement sentencing outcomes on the basis of what “should have been” imposed.
Respondent’s submissions
[13] The respondent has filed an application to address fresh evidence on appeal from Detective Haythornthwaite in respect of a charge of breaching a release condition.11 In short, it is alleged that T breached his release condition by entering and loitering in Western Springs park, directly next to Auckland Zoo and the Museum of Transport and Technology, opposite a school and college, and at the location of a large playground. T was in that park on 14 July 2025 between 2.41 pm and 3.12 pm,
8 O’Rourke v New Zealand Police [2023] NZHC 693 at [4], [14] and [38]; and Patterson v R (HC), above n 5, at [39] and [42].
9 Luxton v Police [2020] NZHC 1355 at [22].
10 Department of Corrections v T, above n 1, at [9].
11 The admission of this evidence on appeal is not opposed.
around the time when the intermediate school and college both close for the day, increasing the risk of T encountering school children.
[14] The respondent accepts that the Court must consider whether there has been a change in circumstances since sentencing, when determining an application under s 94. However, it says there is no indication in the case law or legislation that a change in circumstances is a necessary threshold that must be passed before there is any jurisdiction to make an order under s 94. The ultimate question remains whether there is a causal nexus to the s 93 purposes and whether the conditions are necessary and proportionate. Any change in circumstances is just one factor that goes to the assessment, along with the offender’s broader risk profile and the needs of any victims.
[15] In this case, the respondent submits that the special conditions are both necessary and proportionate, and justified as having the causal nexus to the purposes required under s 93. T is a serial child sex offender who has persistently offended against young girls both in opportunistic ways and by premeditated grooming. Despite this long history, T continues to deny much of his offending. His most recent offending occurred on bail.
[16] The pre-sentence report noted that T presented as being at a high risk of reoffending. While in some cases electronic monitoring cannot provide sufficient mitigation for unspecified members of the public in unspecified locations, they do provide meaningful mitigation against the specific type of offending of concern in this case. In respect of the most recent events on 14 July 2024, the monitoring condition identified that he was in a park directly adjacent to two schools in and around the end of the school day.
[17] Furthermore, the respondent submits that the special conditions are necessary to address the reasonable concerns of T’s victims. The intention of the probation officer’s restriction under the special condition is to prevent T from entering the neighbourhood where the victim and her mother live.
[18] For the above reasons, the respondent takes the position that there are no grounds made out for the appeal and the appeal should be dismissed.
Analysis
[19] Subject to requirements referred to at [5] and [6] above, s 94 confers a wide and unfettered discretion to suspend or vary release conditions.12 The broad nature of the discretion in relation to release conditions is analogous to resentencing, which is why there is a right of appeal under s 244 of the Criminal Procedure Act 2011.13
[20] I accept the respondent’s submissions that whether there has been any change of circumstance since sentencing is a natural consideration, but the absence of changed circumstances does not preclude a variation being granted. This is clear from the discussion of that issue in Luxton:14
[22] There was no relevant change of circumstance from sentencing. While not necessarily determinative, it is a factor requiring consideration. There is no suggestion the power in s 94 was intended to be an opportunity to revisit sentencing.
[21] In Chief Executive of Department of Corrections v Palmer, Mr Palmer was sentenced to 22 months’ imprisonment on 22 August 2016 on a charge of manslaughter.15 Post-release conditions were not imposed at that time. Mander J noted that in the hearing of Mr Palmer’s sentence appeal, the Court of Appeal imposed two post-release conditions about drug and alcohol treatment/counselling and non-association. Community Corrections then applied under s 94 to vary release conditions by adding further ones (including GPS monitoring) on the grounds these were necessary to manage Mr Palmer’s risk in the community. Following discussions, the application was not ultimately opposed. Mander J added the special conditions, accepting that they would assist to reduce the risk of Mr Palmer reoffending, facilitate and promote his rehabilitation and reintegration into the community, and provide for the reasonable concerns of the victim’s family.
[22] Based on the above analysis, I reject grounds two and three of the appeal, that the Judge made an error of law and exceeded jurisdiction by varying the release conditions when there had been no material change since sentencing. Whether there
12 Aspin v Crown Solicitor HC Hamilton CRI-2006-419-167, 16 November 2007 at [5].
13 Patterson v R (HC), above n 5, at [25]–[26]: “If it is not technically a resentencing, it is at least analogous to that”. See also discussion in Lahina v Police [2017] NZHC 609 at [10].
14 Luxton v Police, above n 9, at [22] (emphasis added).
15 Chief Executive of Department of Corrections v Palmer [2017] NZHC 1648.
has been any change in circumstance is a proper consideration before making any orders under ss 93 and 94, but there is no such requirement in the legislation. The Judge expressly considered that issue and nevertheless determined that the additional release conditions were reasonably necessary and proportionate, consistent with ss 7 and 8 of the Act and the requirements of s 93(3). There is no jurisdictional barrier to adding conditions in circumstances where they were “overlooked” in sentencing and should have been imposed at that time. The issue remains whether the conditions are appropriate as satisfying the requirements outlined in [5] and [6] above.
[23] In terms of the substance of the Judge’s exercise of discretion, counsel for the appellant sought to argue orally that the conditions can only be directed at protection of the historic victims. I reject that argument. The ability to impose conditions under s 93(3)(a) expressly envisages protections wider than just the historic victims referred to in s 93(3)(c). It enables restrictions reasonably designed to prevent new offending of the same type (the same criminality) involving other potential future (new) victims in the community.16
[24] In terms of whether GPS monitoring is reasonably needed to mitigate the risk of reoffending and harm to the community, counsel for the appellant argues that these restrictions are neither proportionate nor justified given the nature of the appellant’s criminal history. She asserts the appellant’s criminal history has been overstated, is not extensive or prolific, and has not been escalating in seriousness.
[25] As noted in the pre-sentence report, prior to the current offending, T already had prior convictions for indecent act in view of a public place (x 2), inducing an indecent act: girl aged 12–16 (x 2), possession of objectionable publication, indecently assaults female under 12, breaches of conditions of intensive supervision, and indecently assaults female under 12 (x 4). He is a serial child sex offender assessed in the pre-sentence report as being at high risk of reoffending. In those circumstances, I agree with the respondent and Judge Glubb that these special conditions are necessary to address that high risk of reoffending (including of new victims) and to address the reasonable concerns of the existing victim and her mother. Imposing the
16 See R v Janssen, above n 2, at [2], [20] and [28].
further release conditions does not improperly revisit the sentence originally imposed. Rather it addresses the specific risks in s 93(3) during the remaining specified period (the restrictions will expire six months after the sentence expiry date).
[26] The purpose of electronic monitoring is not as broad as guarding against vague risks to unspecified members of the public at unspecified locations. Rather it is directed at monitoring compliance with release conditions related to T’s whereabouts, which in turn are intended to achieve objectives of prevention, and (less desirably) early detection of breach, tailored to the type of criminality for which he has been convicted. These concerns have been demonstrated by the events on 14 July 2025 during which T is believed to have breached the existing release conditions as outlined in [13] above. This alone constitutes a change in circumstance that further supports continuation of the additional release conditions that have been challenged in this appeal.
[27] In terms of the supplementary submissions addressing the “not to enter” condition, I understand that the geographic area of the North Shore has been notified by the probation office as a “not to enter” zone, to include the location where the victim and her mother live and areas where they may frequent. Proscribing an area too narrowly risks disclosing information to T that would defeat the purpose of the protections. The reasonableness or otherwise of the area specified by the probation officer is something that can be taken up directly. At the hearing, it was explained that T now lives outside of Auckland, with another family member who has moved up north. In those circumstances, I do not consider that the condition unreasonably restricts the appellant’s freedom of movement, subject to whether it prevents T from travelling on the motorway through the North Shore across the Harbour Bridge even if he does not stop and get out of the car. If true, I agree that this aspect seems an unreasonable restriction, but I would have thought that could easily be resolved by agreement with the probation officer within the existing terms of the condition.
[28] The present appeal has a different focus, of challenging the “not to enter” condition in its entirety, including specified types of locations that children would be expected to frequent. This restriction contains flexibility because it provides for prior approval by the probation officer (such as approving a nominated adult to accompany
him at any such locations), so it does not necessarily restrict him from legitimate activity, and no opposition was initially taken in respect of that condition. Given his criminal history and lack of remorse (combined with ongoing denial of any wrongdoing), I see no error in Judge Glubb’s assessment that the condition was reasonably required to address the risk of further offending against children and to protect the interests of the victim and her mother in particular areas that the probation officer may specify. The events of 14 July 2025 again reinforce the prudence of these measures.
[29] For the above reasons, I have found no error in Judge Glubb’s decision, whether in terms of the jurisdictional questions or the exercise of discretion to impose the further release conditions. In my view, the orders were properly justified and within range as consistent with applicable sentencing principles.
Result
[30]The appeal is dismissed.
O’Gorman J
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