Temara v Police - [2014] NZHC 1917

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000058 [2014] NZHC 1917

DELANEY MARK WAYNE TEMARA

v

NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS

Hearing: 14 August 2014

Appearances:

J Lucas for Appellant
MAJ Elliott for Respondent

Judgment:

14 August 2014

JUDGMENT OF DUNNINGHAM J

[1] Mr Temara has been sentenced on two charges. The first is a breach of release conditions where he failed to report to his probation officer. The second offence is one of being found in a building. It was an earthquake damaged, unoccupied and abandoned building.

[2] Mr Temara has previous convictions which include, amongst other things, for being unlawfully in a yard.

[3] At the District Court hearing, counsel submitted that Mr Temara should not have standard release conditions imposed. Mr Temara is clearly an unusual person and has a strained relationship with Probation Services. The Department of Corrections assesses Mr Temara as at very high risk of reoffending and high risk of harm. They describe Mr Temara as “extremely paranoid and has not been
consistently taking his prescribed medication, (Quetiapine). He has been heard to

TEMARA v NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS [2014] NZHC 1917 [14 August
2014]

say that everybody is persecuting him and that he knows they are watching him from the sky. He has also been observed to assert that members of the public going about their business are actually watching him. Community Probation have observed that a person simply smiling at Mr Temara can be considered by Mr Temara as mocking him”.

[4] Mr Temara has apparently been trespassed from the Probation Service offices due to his erratic behaviour. It is clear, and Mr Lucas has emphasised, that Mr Temara will resist compliance with release conditions which will dictate his obligation to communicate with Probation Services. In short, Mr Temara will be set up to fail if the standard release conditions are imposed upon him. He therefore appeals the imposition of standard release conditions.

[5] In imposing the standard release conditions the District Court Judge provided no reasons for rejecting defence counsel’s submissions. Of course it is not unusual to give no reasons for imposing standard release conditions but here, where a specific request was made not to, then I consider the Judge should have provided reasons why they were imposed anyway.

[6] I therefore consider that I must reconsider that aspect of sentence.

[7] The standard conditions imposed in s 14 of the Parole Act are not onerous. They are designed to assist a convicted person with their rehabilitation. Release conditions are not part of the penalty aspect of a sentence. Where the evidence is that the rehabilitative purpose of the standard or special release conditions inevitably will not be achieved, then it is difficult to see why they should be imposed.

[8] However, I have also had regard to Mr Elliott’s submission that a mere statement that release conditions will not be complied with, should not be an excuse or a reason not to impose them,…

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 Temara v Police

Details

AGLC: Temara v Police [2014] NZHC 1917
Case: [2014] NZHC 1917
Decision Date: 14 August 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Delaney Mark Wayne Temara appealed against the New Zealand Police Department of Corrections. The appeal centred on the imposition of standard release conditions following Temara's conviction on two charges: a breach of release conditions for failing to report to his probation officer and being found in an abandoned building. Temara had a history of non-compliance with release conditions and a strained relationship with Probation Services, who assessed him as high risk of reoffending and harm due to his erratic behaviour and mental health issues.

The central legal issue was whether the District Court erred in imposing standard release conditions without providing reasons, given Temara's history and the likely non-compliance. The appeal also questioned whether the standard release conditions should be imposed at all if they would inevitably not be complied with and thus not serve their rehabilitative purpose. The court had to balance the need for supervision post-sentencing against the impracticality of imposing conditions that Temara was unlikely to meet.

The High Court found that while the District Court did not provide reasons for imposing the standard release conditions, this was not unusual. However, in this case, where specific submissions were made against such conditions, the court should have provided reasons. The court recognised that standard release conditions were designed to assist with rehabilitation but acknowledged the argument that non-compliance should not automatically disqualify them. Considering Temara's unique circumstances, the court modified the release conditions to require weekly contact with Probation Services, which was deemed less onerous and more practical, while still providing a level of supervision.

The appeal was allowed to the extent that the standard release conditions were modified, imposing only two obligations on Temara: weekly contact with Probation Services each Monday and notifying his Probation Officer if he changes his residential address.

Orders