Whichman v Department of Corrections

[2023] NZHC 603

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-506

[2023] NZHC 603

BETWEEN

GEORGE WHICHMAN

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

21 March 2023

Counsel:

H N Kim for Appellant

O J Southern for Respondent

Judgment:

23 March 2023

JUDGMENT OF BREWER J

This judgment was delivered by me on 23 March 2023 at 3 pm

Registrar/Deputy Registrar

Solicitors/Counsel:

Han Na Kim (Manukau City) for Appellant

Kayes Fletcher Walker (Auckland) for Respondent

WHICHMAN v DEPARTMENT OF CORRECTIONS [2023] NZHC 603 [23 March 2023]

Introduction

[1]    On 15 December 2022, Judge JC Moses sentenced Mr Whichman to one year and seven months’ imprisonment1 on a charge of indecent assault,2 two charges of breaching home detention conditions3 and two charges of assault on a person in a family relationship.4 There was a single victim, his ex-partner.

[2]    Judge Moses also directed that Mr Whichman be subject for six months to standard release conditions and to special release conditions as specified in the pre- sentence report. The latter included electronic monitoring (EM) to ensure he did not enter an area of East Auckland in which the victim lived. The area of exclusion is outlined in red on a map given to Mr Whichman by the Department of Corrections:

[3]    Mr Whichman was entitled to be released from prison immediately following his sentence. He was released on 16 December 2022. The letter of advice from the Department of Corrections (which contained the map of the exclusion area) told    Mr Whichman that the EM special condition would remain in force until 14 June

1      Police v Whichman [2022] NZDC 25430.

2      Crimes Act 1961, s 135; maximum penalty, seven years’ imprisonment.

3      Sentencing Act 2002 s 80S; maximum penalty, one year’s imprisonment or a fine not exceeding

$2,000.

4      Crimes Act, s 194(1); maximum penalty, two years’ imprisonment.

2023. However, what Mr Whichman did not realise is that this restriction was imposed by the Parole Board and covered the period from his release on parole to the end date of his sentence.5 The six months EM directed by Judge Moses does not commence until Mr Whichman’s sentence end date. Therefore, Judge Moses’s directed condition does not expire until a date in November 2023.

[4]    Mr Whichman now appeals the EM special condition directed by Judge Moses. He says it is manifestly excessive in the circumstances and contrary to the principles and purposes of s 93 of the Sentencing Act 2002 (the Act) — which sets out the reasons why a special condition may be imposed.

Background

[5]    Mr Whichman has an extensive history of violent criminal offending, including violence against women:

Offence date	Offence	Sentence
13 May 2022	Indecently assaults female over 16 (family violence)	1 year 7 months’ imprisonment6
13 May 2022	Assault on a person in a family relationship (family violence) – two charges	10 months’ imprisonment
18 June 2021	Injures with intent to injure	5 months 21 days’ home detention
18 June 2021	Strangulation	5 months 21 days’ home detention
18 June 2021	Assault with a blunt instrument	5 months 21 days’ home detention
2 February 2020	Aggravated robbery	8 months 14 days’ imprisonment
14 October 2019	Common assault	3 months 15 days’ imprisonment
29 May 2016	Threatens to kill	4 months’ imprisonment
27 May 2016	Assault with blunt instrument (family violence)	8 months’ imprisonment
27 May 2016	Injures with intent to injure (family violence)	3 years, 1 month and 14 days’ imprisonment
23 November 2015	Threatens to kill – three charges	2 months’ imprisonment
23 November 2015	Male assaults female	4 months 14 days’ imprisonment
9 October 2014	Injures with intent to injure	1 year 4 months’ imprisonment
9 October 2014	Assault with intent to injure	1 year 9 months’ imprisonment
9 October 2014	Male assaults female	1 year 4 months’ imprisonment
19 June 2014	Male assaults female (family violence)	4 months’ imprisonment
23 August 2012	Assault prison officer	2 months’ imprisonment
23 August 2012	Common assault	3 months’ imprisonment

5      Parole Act 2002, s 15.

6      Mr Whichman’s criminal and traffic history records the period of imprisonment as one year and eight months. That is an error.

26 July 2010	Aggravated assault (firearm)	2 years 6 months’ imprisonment
11 January 2009	Common assault (taxi driver)	2 months’ imprisonment
11 January 2009	Assault with intent to injure	2 months’ imprisonment
23 July 2007	Aggravated assault	8 months’ imprisonment
30 December 2006	Male assaults female – two charges	6 months’ imprisonment

[6]    There are notations for other offences of violence recorded in the Youth Court for offending which occurred from 2004 to 2006.

[7]    Mr Whichman has committed many other offences (his criminal history runs to 14 pages). They include breaching release conditions in 2013 and 2016.

[8]    The offences recorded above as occurring on 18 June 2021 (for which a sentence of home detention was imposed) were committed against the victim of the offences related to the current appeal. Those offences are the ones recorded above as occurring on 13 May 2022. Mr Whichman’s offending against the victim is summarised in the Crown’s submissions:

Previous offending against [the victim]

2.1On 17 June 2021, Police were called to a family harm incident at [the victim’s] and the appellant’s … address. A Police Safety Order was issued and served on the appellant.

2.2The appellant returned at 3:28 am the next day (18 June 2021). He entered the apartment by climbing the second storey balcony. He went inside and punched [the victim] in the face and head multiple times. He picked up and threw a chair at her, striking her in the back with it.

2.3[The victim] tried to flee, but the appellant caught her and held her down. The appellant put both hands around her neck and applied pressure, causing her to lose consciousness. Once she regained consciousness, she tried to escape into the bathroom, where the appellant struck her in the head. [The victim] lost consciousness again, then awoke and vomited.

2.4The assault lasted around 15 minutes before [the victim] was able to leave the apartment and flag down a passing Police patrol car. [The victim] was hospitalised in serious condition.

2.5The appellant subsequently plead (sic) guilty to charges of burglary, injuring with intent to injure, strangulation and assault with a weapon.

2.6On  23  March  2022,  Judge  Pecotic  sentenced  the  appellant   to 11 months’ home detention. On 30 May 2022, Woolford J allowed an

appeal and reduced the sentence to 5 months, 3 weeks’ home detention.7

Index offending against [the victim]

Crown charges – indecent assault and assault on a person in a family relationship (x2)

2.7In May 2022, the appellant remained subject to the sentence of home detention. One of the conditions of his sentence was not to associate with [the victim] except with the prior written approval of his probation officer or a member of the Grace Foundation.

2.8On 13 May 2022, [the victim] was alone at home. The appellant arrived. [The victim] ran to the bathroom. The appellant broke into the bathroom with a kitchen knife, then grabbed [the victim] and took her to the master bedroom.

2.9There, the appellant laid [the victim] down on the bed and climbed on top of her. He kissed and grabbed her breasts. He rubbed her vagina on top of her clothing and dry humped her. The appellant stopped when [the victim] began hyperventilating.

2.10[The victim] ran to the hallway, where the appellant threw her to the floor. While she was on the ground, he jabbed her twice in the face. She broke free and ran to the toilet, locking herself in it; the appellant once again forced the door open and jabbed her twice in the jaw.

2.11The appellant subsequently pleaded guilty to one charge of indecent assault and two charges of assault on a person in a family relationship.

…

Summary of additional related offending

2.15On 20 June 2022, the appellant posted multiple intimate sexual videos of [the victim] to her Facebook page, knowing that she did not consent to him posting these videos. He was convicted of posting an intimate visual recording of the victim without her consent. On 10 October 2022, the appellant was sentenced to 6 months’ imprisonment.

The appeal

[9]    Mr Whichman filed his appeal himself and represented himself before Ms Kim was assigned as his counsel. On 14 February 2023 he filed his submissions. He gave the grounds of appeal as:

(a)The release conditions are only making it that extra difficult to live out in society.

7      Whichman v R [2022] NZHC 1223.

(b)The EM bracelet is only causing me embarrassment and low self- esteem in society.

(c)Department of Corrections EM monitoring team manipulating and “pre-fabricating” breaches.

(d)The conditions are only setting me up to fail.

[10]Mr Whichman elaborated:

3.1Release conditions are only setting me up to fail, as it’s only causing me stress and strain to function freely as a NZ Citizen, I’m walking around with a bracelet that’s causing me a lot of public backlash in the community as im putting up with a lot of verbal and physical abuse that I should “go back to jail”, “you don’t belong here”, “you fukn criminal”, “you fukn loser”.

3.2As a result, it is lowering my confidence and dignity to be out in society and is making it hard for me to get a job or girlfriend, as I am being questioned about why I’m on the bracelet and it is only causing me embarrassment and shame, that I feel that I should just go back to prison.

3.3I done my time, and believe I don’t deserve to be mistreated in this way, it is a complete waste of my time having to taxi or hitch a ride to the Manurewa probation every week only to sign a piece of paper as if to say “I’m here”. In the past 16 years I’ve been in the justice system, signing into probation has never had a positive impact except to set me up to fail, the bottom line is, I’m not there “ASSET” as that’s the barcode they’ve placed on me and others in the system.

3.4I just want to live a normal life in piece, without the department of corrections always making attempts to pre fabricate breaches, such as a “failure to charge embracelet”, as I know full well that the bracelets not flat, as I’ve always got it charged, however the departments are manipulating the situation by filing false breaches, to jeopardize my chances of reforming in society.

3.5I also have no intentions on hurting or harming my ex-partner … and I do not hold any grudges or animosity against her or anyone.

3.6I just want to live me life freely and travel the world without all the unnecessary restrictions.

[11]   In my view, when set against Mr Whichman’s criminal record of violence generally, and against his violence towards the victim in particular, these complaints show a lack of insight which is very concerning.

[12]   It was left to Ms Kim to attempt to construct a more legalistic structure for the appeal.

[13]   Ms Kim submits that requiring Mr Whichman to be subject to EM for a total of 11 months does not comply with s 93(3) of the Act:

A special condition must not be imposed unless it is designed to—

(a)reduce the risk of reoffending by the offender; or

(b)facilitate or promote the rehabilitation and reintegration of the offender; or

(c)provide for the reasonable concerns of victims of the offender.

[14]   Ms Kim relies on the decision of the Court of Appeal in Patterson v R,8 and in particular the following passages on the use of s 93(3):

[16]      However, it is settled that the power is also subject to implicit limits. To begin with, s 93(3) indicates that any such condition must be tailored to the offender’s circumstances; it must address his particular risk of reoffending, or prospects of rehabilitation, or victims. As this Court put it in R v Jannsen:9

[15] The discretion must also be exercised consistently with the principles in s 8 of the Sentencing Act, the first five of which (those in paragraphs (a)—(e)) require that any condition imposed relate explicably to what has been described succinctly as ‘the precise criminality’: R v Meroiti CA392/99 26 October 1999 at [6], quoting   R v Duffy (1994) 15 Cr App (s) 667 at 681. And that must include an assessment of the effect of the offence on any victim: s 8(f).

[17]      The “least restrictive sentence” principle also applies to special conditions imposed under s 93:10

[16]       The remaining purposes of sentence are no less germane. The sentence imposed must be the least restrictive outcome appropriate:    s 8(g). It must also be tailored to the offender. Account must be taken of any factor personal to the offender that would make a usual sentence disproportionately severe: s 8(h). One of the purposes of conditions on release is, moreover, to rehabilitate and to assist the offender to reintegrate. Personal, family, whanau, community and cultural factors can be no less relevant: s 8(i).

[17]       Finally, because the special conditions able to be imposed derive in the main from those set out in s 15(3) of the Parole Act 2002, the principle in s 7(2) of that Act that guides the Parole Board has an implicit and helpful place. Any condition imposed ought not to be ‘more onerous, or last longer, than is consistent with the safety of the community’.

8      Patterson v R [2017] NZCA 66.

9      R v Jannsen [2007] NZCA 450 at [15].

10     At [16]-[17].

[15]   Therefore, any special condition “must exhibit a rational nexus to the s 93(3) purposes, and that when considered with other conditions to be imposed it must be reasonably necessary and proportional”.11

[16]   Ms Kim submits that in the light of these principles the imposition by Judge Moses of the special condition of six months’ EM was manifestly excessive in the circumstances, contrary to the principles and purposes of s 93 of the Act, and against the principles and purposes of both the Act and Parole Act 2002.

[17]   Ms Kim explains her characterisation of the EM special condition by pointing out that the victim has only  one  residence  and  so  there  is  no  need  to  monitor Mr Whichman’s entry into the excluded area. To do so lacks a sufficient nexus with any risk he poses. All that is required is a condition that Mr Whichman not associate with the victim and not go within 100 metres of the street in which she resides.

[18]   Ms Kim relies on Mr Whichman’s submissions to support her own submission that the EM special condition is having an adverse effect on his rehabilitation and reintegration.

[19]Ms Kim summarises Mr Whichman’s case:

3.6Looking at the particular contributing factors applicable to this particular appellant, Counsel respectfully submits that the appellant does not pose increased risks against general public (i.e. he is not an opportunistic offender nor does he have a larger category of potential victim, e.g. children).

The risk in terms of the offences he has pleaded guilty to all relates to one particular victim, which can be managed by a tailored condition, which will be more consistent with the least restrictive approach pursuant to the Sentencing Act 2002.

3.7Further given the nature of his offences he has pleaded guilty to, it is Counsel’s respectful submission that there is insufficient nexus between the risk identified and the conditions imposed by the Court.

11     At [18] (footnote omitted).

Discussion

[20]   Mr Whichman is a violent man who lacks insight into his offending. He has demonstrated that he is a risk to his victim. He has demonstrated that even the EM restrictions of a sentence of home detention will not stop him seeking out the victim if he chooses to do so.

[21]   Mr Whichman’s criminal posting of intimate visual recordings of the victim to her Facebook page after he had again offended violently against her in May 2022 shows an ongoing animosity.

[22]   His complaints about being subject to the EM special condition go mainly to the embarrassment he feels when out and about while wearing the EM bracelet, and its inhibiting effect on potential employers or girlfriends. He does not say that he is unduly affected by being unable to go into the exclusion area.

[23]   I am in no doubt that the EM special condition was imposed to reduce the risk of Mr Whichman reoffending against the victim and to provide for her reasonable concerns.

[24]   I accept that the condition, for the reasons given by Mr Whichman, will not facilitate or promote his rehabilitation and reintegration. But, there is no requirement that a special condition must be designed to achieve all three of the s 93(3) purposes.

[25]Further:

(a)The EM special condition is clearly tailored to Mr Whichman’s circumstances and addresses his particular risk of reoffending against the victim. It relates to his “precise criminality”.

(b)It is the least restrictive outcome appropriate to his risk. Mr Whichman is excluded only from the relatively small area of Auckland forming the exclusion area. The EM special condition serves both to deter (to the extent that is possible) Mr Whichman from entering the exclusion area and to provide early notice to the authorities if he nevertheless does

enter the exclusion area. A special condition not tied to EM would be valueless.

(c)The overall period the EM special condition will apply for — about  11 months — is patently not more onerous, or longer, than is consistent with the safety of the victim. It is reasonably necessary to promote the victim’s safety and it is proportional to the risk.

Decision

[26]The appeal is dismissed.

Brewer J