Whichman v Department of Corrections

[2013] NZHC 3075

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000158 [2013] NZHC 3075

BETWEEN  GEORGE WHICHMAN Appellant

ANDDEPARTMENT OF CORRECTIONS Respondent

Hearing:                   29 July 2013

Counsel:                  P T Eastwood for Appellant

A R Longdill for Respondent

Judgment:                20 November 2013

RESERVED JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 20 November 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:     P T Eastwood, Auckland

Solicitors:    Meredith Connell, Auckland

WHICHMAN v DEPARTMENT OF CORRECTIONS [2013] NZHC 3075 [20 November 2013]

Introduction

[1]      On 4 March, 2011, the appellant, George Whichman, was sentenced in the Manukau District Court to four years and three months imprisonment for aggravated assault and other offending.  On appeal, Woodhouse J reduced the sentence to two years  and  six  months  imprisonment.    The  appellant  was  released  on  parole  on

23 January 2013, subject to 14 special conditions which had been imposed on him by the Parole Board (the Board) in an oral decision on the previous day, 22 January

2013.

[2]      Within three hours of his release on 23 January 2013, the appellant was alleged to have breached five of the 14 special conditions imposed on him by the Board.   On 5 April 2013, following a defended hearing in the Waitakere District Court, the appellant was convicted of five offences against s 71 of the Parole Act

2002 (the Act) by breaching, without lawful excuse, the following special conditions: (a)    to reside at the approved address;

(b)      to comply with GPS monitoring requirements;

(c)       not to travel out of the area specified by the Board without prior written approval;

(d)      not to have contact with a named associate; and

(e)       not to consume alcohol.

[3]      Each of the charges carried a maximum penalty of 12 months imprisonment. On 15 May 2013, the appellant was sentenced in the Manukau District Court to

12 months imprisonment on each charge to be served concurrently.  He now appeals against conviction and sentence.

Factual background

[4]      The  Board  originally  set  the  conditions  for  the  appellant’s  release  on

15 November 2013. The Community Probation Service then made an application for

a variation of those conditions.  The application for a variation was called first on

16 January 2013 and then adjourned to 22 January 2013, the day before his statutory release date, in order for the appellant to seek legal assistance.  The appellant did not however obtain legal assistance for the hearing on 22 January 2013 and appeared before the Board unrepresented on that date.

[5]      The Board recorded that the appellant’s major concern related to the proposed restrictions on access to his family who needed his support.  The Board commented that the conditions were designed to help the appellant transition into the community and to keep the community safe.  The Board directed that the appellant was to be subjected to the standard conditions set out in s 14 of the Act along with 14 special conditions.   The Board noted that the appellant had informed them that he would likely breach the conditions.   The Board therefore advised the appellant that he should reflect on that and reflect on the fact that he had the ability to apply to vary the conditions if such a variation was justified.

[6]      The Board then listed the special conditions as follows:

(a)      To reside at the approved address and not to move from the address, or any subsequent approved address without the prior written approval of a probation officer;

(b)To observe a curfew at the approved address between 10pm and 6am each day, unless he had the prior written approval of a probation officer not to be at the approved address;

(c)      Not to enter the grounds of any prison or the Mason Clinic without the prior written approval of a probation officer;

(d)Not to have contact, directly or indirectly, with any Department of Corrections prison staff member upon release into the community and not  to  knowingly  travel  to  any  area  where  a  Department  of Corrections staff member resided without the prior written approval of a probation officer;

(e)      To submit to electronic monitoring as directed by his probation officer in order to monitor his compliance with any conditions relating to his whereabouts and, if issued a mobile device by the Department or if using his own device, to carry and keep it charged at all times for the purpose of maintaining electronic monitoring equipment as directed by his probation officer;

(f)      To comply with the requirements of electronic monitoring and provide access to the approved residence to his probation officer and the representatives of the monitoring company for the purposes of maintaining electronic monitoring as directed by his probation officer;

(g)Not to have contact or otherwise associate directly or indirectly with a number of named persons without the prior written approval of a probation officer;

(h)Not to travel south of a boundary from the West Coast to the East Coast formed by Church Street Onehunga and the South Eastern Highway to the Waipuna Bridge or to travel over the Waipuna Bridge or the Panmure Bridge or to travel down the South Eastern Motorway further than exit 437 without the prior written approval of a probation officer;

(i)Not to travel east of the North Western Motorway and/or north of a North Western border formed by Don Buck Road, Scenic Drive and Godley Road without the prior written approval of a probation officer;

(j)To attend a psychological assessment and attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of his probation officer and treatment provider;

(k)To undertake and complete an alcohol and drug treatment counselling programme to the satisfaction of his probation officer and treatment

provider, the details of which were to be determined by his probation officer;

(l)To undertake and complete other appropriate treatment/counselling to the satisfaction of his probation officer and treatment provider, the details of which were to be determined by his probation officer;

(m)Not to have contact with or otherwise associate with the victims of his offending directly or indirectly without the prior written consent of a probation officer; and

(n)      Not to possess or consume alcohol or illicit drugs.

[7]      On the morning of 23 January 2013, upon release from prison, the appellant was taken by two associates to 11 Abel Tasman Place, Henderson, where he met two probation officers and representatives of a monitoring company who were to finalise the electronic monitoring.  11 Abel Tasman Place, Henderson, is a boarding house occupied by short-term residents.   The consent of its occupants to the appellant residing there on electronic monitoring had not been sought.

[8]      When the appellant arrived he looked through one of the windows into the house.  One of the other occupants felt threatened by this and the appellant and the occupant exchanged words.  The appellant then informed the probation officers he did not wish to remain at the residence, saying he did not feel safe at that address. He asked if he could stay at his grandparents’ address instead.  He wrote down the addresses of his parents’ and his grandparents’ homes and was given a mobile phone by one of the probation officers so that he could keep in touch with the officers.  He was not informed by the probation officers that he would be arrested for breaching his parole conditions if he left.  On the other hand, he was not given their explicit permission to leave the address and travel to South Auckland.  He was then taken by his associates to his mother’s house in South Auckland.   There, he says, he inadvertently consumed a soft drink out of the fridge that contained alcohol.  One of the persons with whom the appellant had been directed not to associate with was also

at the address.  Shortly afterwards the Police arrived and the appellant was arrested for breaching his parole conditions and taken to the Manukau Police Station.

District Court Decision

Conviction1

[9]      Section 71 of the Act under which the appellant was charged provides for a defence of reasonable excuse.  The appellant contended in the District Court that he had a reasonable excuse for non-compliance with the special conditions in that the Board had not followed the statutory procedures in setting the special conditions and that he was justified in leaving the approved address because of concerns for his safety.

[10]     Judge Treston was satisfied beyond reasonable doubt that the appellant had refused to reside at the approved address.   He was however not satisfied that the reason why the appellant refused to stay at the address was because of concerns for his personal safety.  Nor did he accept that the appellant’s belief that the condition was unreasonable provided him with an excuse not to comply with it.

[11]     Judge Treston also found that the appellant’s failure to comply with GPS monitoring requirements was proven beyond reasonable doubt.  The appellant had decided that he would not reside at the approved address and therefore the probation and security officers present were not able to finalise arrangements for the electronic monitoring of the appellant.  Judge Treston was not satisfied that the defendant had any reasonable excuse for refusing to comply with the monitoring requirements.

[12]     Further, Judge Treston held that the allegation that the appellant had breached the condition that he not travel out of a specified area was established beyond reasonable doubt.  The defendant had travelled beyond exit 437 of the South Eastern motorway in  order  to  arrive  at  his  mother’s  house.   Again,  he  did  not  have  a reasonable excuse.

[13]     Judge Treston also found that the association with one of the named persons was established beyond reasonable doubt.  The appellant knew the associate would be at  his  mother’s  house  because he was  on  EM-bail  there,  but  he  went  there anyway.  The appellant could not therefore have a reasonable excuse for failing to comply with the non-association direction.

[14]     Finally, the appellant was found to have consumed alcohol as shown by his breath alcohol reading.  The appellant said that he drank it without knowing it was alcohol.  Judge Treston did not accept that was a reasonable excuse.

Sentence2

[15]     In sentencing the appellant, Judge Treston considered that he had not shown any motivation to address his offending behaviour, and no motivation to comply with parole.   He found the aggravating features of his offending were the deliberate breaches of the release conditions, and the appellant’s previous convictions for the same behaviour.  He found there were no mitigating features of the offending.

[16]    Judge Treston considered an appropriate starting point to be 10 months imprisonment.  Judge Treston did not accept however the Crown’s submission that the five charges be split into two categories and cumulative sentences imposed.  The Judge instead imposed an uplift of two months for previous offending, reaching an end sentence of 12 months imprisonment on each of the five charges.

Grounds of appeal

[17]     The appellant appeals his conviction and sentence on the following grounds:

(a)       Judge Treston failed to consider procedural defects in the manner in which the Department of Corrections and Parole Board:

(i)       set the appellant’s release conditions; and

(ii)      failed to consider other residential options for the appellant;

(b)      The release conditions were oppressive and unfair to the appellant;

(c)      In  arriving  at  a  starting  point  of  10  months  imprisonment,  Judge Treston failed to consider relevant matters or give sufficient weight to certain matters; and

(d)      The sentence of 12 months imprisonment was manifestly excessive.

Appellant’s submissions

Conviction

[18]     Counsel for the appellant submitted that Judge Treston was wrong to find that the defence of reasonable excuse was not made out and was also wrong to rule that the procedures followed by the Board in setting the release conditions were not matters that were relevant to the  prosecution  and were more properly suited to judicial review.  Counsel submitted that Judge Treston ought to have considered the process adopted by the Board in setting the special conditions.

[19]     The appellant conceded that he did not comply with the special condition to reside at the approved address, but submitted that because the preconditions for that special condition, set out in ss 34 and 35 of the Act, had not been complied with, non-compliance with the residential condition was reasonable.  Counsel argued that there  was  an  analogy  with  drink  driving  legislation,  where  there  are  certain procedural steps which the police have to undertake to secure a conviction.  If the police breached those steps, then the Court had the opportunity to strike out the prosecution.  In addition, appeals against refusal to grant bail are “in essence judicial reviews”, but are treated as general appeals.  Counsel for the appellant submitted that if the process by which special conditions are reached is flawed then the Court can legitimately look at the reasonableness or legitimacy of those conditions.

[20]     Even  if  the  legitimacy  of  the  conditions  cannot  be  considered,  counsel submitted that the Judge failed to consider s 33 of the Act, which allows an offender to leave a residence if fearful of injury or death.  The appellant gave evidence that he

was fearful of being threatened by an occupant at the address.   A review of this evidence shows that the appellant had a reasonable excuse.

Sentence

[21]     Counsel submitted that the sentence imposed was the maximum allowed, but that the facts did not justify the maximum sentence.  Counsel referred to other cases which he submitted were more serious, yet the offenders received sentences of 2 – 5 months imprisonment.  Counsel also submitted that mitigating factors were present as there was an agreement that the appellant take a mobile phone when leaving the address so that he could be contacted by Corrections, which could be seen as consent to him leaving.   He submitted that this was evidence that  this was not serious offending.

Respondent’s submissions

Conviction

[22]     Counsel for the respondent submitted that the submission that a person may leave  an  address  if  at  serious  risk  of  death  or  injury  was  without  merit.    The exception in s 33(4) of the Act applies only to residential restrictions.  The appellant did not have a condition that “residential restrictions” were to apply.  Rather, he was subject to electronic monitoring.  Section 33(4) did not therefore apply.  In addition, the weight of the evidence at the hearing did not support the submission that the appellant feared for his safety.   Even if he did have a reasonable excuse, counsel submitted that this only provided  a defence to  one of the five breaches by the appellant.

[23]     As  Judge  Treston  noted  at  sentencing,  the  appellant  was   given  the opportunity to obtain legal assistance before the Board set his release conditions, the original Board having been adjourned from 16 January until 22 January 2013 for this purpose.  Section 56 of the Act provides the mechanism by which an offender may apply for variation of conditions.  Counsel submitted that then an offender considers a condition to be unjustified, that cannot provide a “reasonable excuse”. Reasonableness is an objective standard.

Sentence

[24]     Counsel  referred  to  cases  which  she  said  supported  the  end  sentence  of

12 months imprisonment. These were:

(a)      Johnson v Department of Corrections:3     This was an unsuccessful appeal against a sentence of six months imprisonment on two charges of breaching parole conditions.  The defendant had failed to report to his probation officer, and had moved from the address where he was required to reside as a condition of his parole.

(b)Orchard v Department of Corrections:4     This was an unsuccessful appeal against a cumulative end sentence of 20 months imprisonment for five breaches of parole conditions.   The Judge had divided the charges  into  two  groups  and  taken  a starting  point  of 12  months imprisonment for each group.

Appeal against conviction

[25]     An appeal against conviction is by way of rehearing.  Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it.

[26]     According to Elias CJ in Austin, Nichols & Co Ltd v Stichting Lodestar:5

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[27]     According to O’Neill v Police,6  in coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the

3      Johnson v Department of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010.

4      Orchard v Department of Corrections [2012] NZHC 1743.

5      Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

advantage  of  hearing  the  witnesses  on  questions  of  credibility,  but  it  must nevertheless review the evidential basis for factual findings carefully.

Imposition of special conditions

[28]     Judge Treston rejected the appellant’s argument that the restrictions imposed upon  him  by the  Parole  Board  were  invalid  as  proper  procedure  had  not  been followed. At [26] he stated:

While that is not necessarily the issue here today because it is not for this Court to review any decision of the Parole Board, that is a different issue and, in fact, there are grounds under s 56 Parole Act 2002 for any person subject to release conditions to apply to the Board at any time for any variation or discharge of those conditions. While time was short the hearing was the day before his release, no application seems to have been made and no application for review of the Board’s decision has also been made.

[29]     While it may be argued that the Board could have assessed the suitability of the residence for Mr Whichman more thoroughly, by ascertaining who resided at the boarding house and consulting with them, there was no obligation upon the Board to do  this.    Section  15  of  the Act  gives  the  Board  jurisdiction  to  impose  special conditions upon offenders.  Section 15 provides:

Special conditions

(1)       If the Board imposes standard release conditions on an offender …, the Board may (subject to subsections (2) and (4)) impose any 1 or more special conditions on the offender.

(2)       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.

(3)       The kinds of conditions that may be imposed as a special condition include, without limitation,—

(a)       conditions  relating  to  the  offender's  place  of  residence (which may include a condition that the offender reside at a particular place), or his or her finances or earnings:

6      O’Neill v Police [2009] DCR 131 (HC), 9 October 2008 at [5].

[(ab) residential restrictions:]

(b)       conditions   requiring   the   offender   to   participate   in   a programme (as defined in section 16) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender:

(c)       conditions that the offender not associate with any person, persons, or class of persons:

(d)     conditions requiring the offender to take prescription medication.

[(e)      conditions   prohibiting   the   offender   from   entering   or remaining in specified places or areas, at specified times, or at all times:]

[(f)      conditions requiring the offender to submit to the electronic monitoring of compliance with any release conditions, or conditions of an extended supervision order, that relate to the whereabouts of the offender.]

[30]     Residential restrictions which can be imposed under s 15(3)(ab) are discussed further in s 33 which sets out five requirements with which a person must comply if residential restrictions are imposed upon him or her.

33 Residential restrictions

(1)       The  Board  may  impose  on  an  offender  the  special  conditions referred to in section 15(3)(ab) (residential restrictions) if the residence in which it is proposed that the offender reside is in an area in which a residential restriction scheme is operated by the chief executive.

(2)       An  offender  on  whom  residential  restrictions  are  imposed  is required—

(a)      to stay at a specified residence:

(b)       to be under the supervision of a probation officer and to co- operate with, and comply with any lawful direction given by, that probation officer:

(c)      to be at the residence—

(i)       at times specified by the Board; or

(ii)      at all times:

(d)       to submit, in accordance with the directions of a probation officer, to the electronic monitoring of compliance with his or her residential restrictions:

(e)       to keep in his or her possession the licence issued under section 53(3) and, if requested to do so by a [[constable]] or a probation officer, must produce the licence for inspection.

[31]     I am of the view that the release conditions imposed upon the appellant were special conditions in accordance with s 15 of the Act but they were not residential restrictions.   Electronic monitoring is permissible both as a special condition and under the residential restrictions regime.   The purpose is different, however.   The purpose of electronic monitoring imposed as a special condition is to monitor compliance with conditions that relate to the offender’s whereabouts, while the purpose of electronic monitoring under the residential restrictions regime is to monitor compliance with residential restrictions.

[32]     The fact that a curfew may be imposed in addition to electronic monitoring as a special condition does not necessarily bring an offender within the residential restrictions regime.  In this case, the electronic monitoring was directed at ensuring the  appellant  did  not  go  to  South  Auckland.    The  Board  in  their  decision  of

22 January  2013,  did  not  expressly  state  that  they  were  imposing  residential restrictions upon the appellant.  What they did state was that were imposing “special conditions” in addition to the standard conditions to which the appellant was subject under s 14 of the Act.

[33]     In order for the conditions imposed upon the appellant to be “residential restrictions” all five of the conditions listed under s 33(2) of the Act needed to be imposed upon him.  All five of those conditions were not however imposed on him. The appellant had to report to a probation officer as required by the standard probation conditions under s 14 of the Act but he was not under the “supervision” of a parole officer as is required for residential restrictions.  Furthermore, he was not required to keep in his possession a licence under s 53(3) of the Act.   If he was required to carry such a licence this would have been specified by the Board.  Instead he was only required to carry a standard licence under s 53(1) of the Act which is a standard condition imposed under s 14 of the act. A section 53(3) licence sets out all of the individual’s residential restrictions.  The appellant had no such licence because residential restrictions were not imposed upon him.

[34]     The special conditions imposed upon the appellant were also the sort  of conditions described under s 15 of the Act.   Section 15(3)(a) refers to conditions relating to an offender’s place of residence, s 15(3)(b) refers to conditions to enter programmes and s 15(3)(c) refers to conditions which mandate that an offender does not associate with certain persons.  Section 15(3)(e) refers to conditions prohibiting an offender from entering certain areas and s 13(3)(f) is the condition which requires an offender to submit to electronic monitoring.  These conditions can all be imposed on an offender without imposing residential restrictions.

[35]     Residential  restrictions  are  a  separate  set  of  special  conditions  under s 15(3)(ab)  and  residential  restrictions  will  always  contain  the  five  components mentioned at [30] of this decision.  The fact that the appellant was only subject to three of the five conditions that are imposed when an individual receives residential restrictions indicates that the appellant did not receive residential restrictions from the Board.  Furthermore, I consider that an experienced Board would have expressly stated that they were imposing residential restrictions upon the appellant if that had in fact been their intention.

[36]     The special conditions listed in s 15 were all present in this case.   The appellant had special conditions such as electronic monitoring and prohibitions on places he could go and people he could associate with.  It is clear that the appellant was subject to 14 separate special conditions authorised under s 15(3) of the Act. They were not residential restrictions under s 15(3)(ab) of the Act.

[37]     Due to the fact residential restrictions were not imposed upon the appellant there was no requirement upon the Board to undertake the steps required under s 34 of the Act, such as obtaining the consent of the residents of the approved address, before residential restrictions could be imposed.  Therefore the decision of the Board was not ultra vires as it undertook all the steps required in order to impose the

special conditions upon the appellant.   Accordingly, a collateral challenge of the decision of the Board cannot succeed.7

[38]     Furthermore, the appellant’s defence under s 33(4) of the Act, that he was justified in leaving the approved address because of concerns for his personal safety, can also not succeed as that defence can only apply where residential restrictions have been imposed and I have already found that they were not imposed.

Sentence manifestly excessive

[39]     I do however agree with counsel for the appellant that the sentence of 12 months imprisonment for five breaches of release conditions was manifestly excessive.  In Wright v Police Clifford J found a starting point of eight months for one breach of community work and two breaches of release conditions manifestly excessive.8    He considered that a starting point of four months with a one month discount for the appellant’s  guilty plea was  appropriate.    In Crosswell v Police Venning  J  held  that  a  nine  month  starting  point  for  four  breaches  of  release conditions and one breach of community work, occurring on two separate occasions,

was at the top of the scale for offending of that kind, although it did not meet the threshold of manifestly excessive.9    In that case the offender had six previous convictions for breach of community work, seven for breaching bail and 14 for breaching periodic detention orders.

[40]     In my view, these cases illustrate that a 12 month sentence for five breaches of release conditions is manifestly excessive in the circumstances of this case.

[41]     It is my view that the appellant’s breaches were almost inevitable given the very  short  time  frame  the  Board  left  itself  before  his  release.    The  short-term

7     However I do dispute Judge Treston’s finding that a collateral challenge to the Board’s administrative decision to impose such conditions could only be brought via judicial review proceedings. The majority of the Supreme Court in Siemer v Solicitor-General [2013] NZSC 68 at footnote 255 did not deal with collateral challenge of administrative decisions. The Chief Justice in her dissent noted at [65] that: “An application for judicial review (or other procedure for direct challenge) is “not a straitjacket which must be put on before rights can be asserted”. And since no crime is committed through the infringement of an invalid rule, the order may be challenged in the court in which the offence is tried, unless such challenge would be an abuse of process”. I am inclined to agree with her.

8      Wright v Police [2012] NZHC 493 at [18].

9      Crosswell v Police [2012] NZHC 2435 at [17].

boarding house to which the appellant was released was clearly problematic.  I have not had access to the Board’s file and accordingly do not know why the Board determined that it was not appropriate to release to the appellant to his parents’ house or his grandparents house, but he clearly wanted to return to where he felt most supported.  There does not appear to have been any support at the boarding house, whose occupants had not been consulted.

[42]     Furthermore, the parole officers did not inform the appellant that he would be in breach of his parole conditions if he left the approved address and instead simply told him to give them a contact number so they knew where he was.  They also gave him a mobile phone, which the appellant took as their approval of his refusal to stay at the approved address.

[43]     I consider that an appropriate sentence in the circumstances is one of seven months imprisonment with an uplift of one month for the appellant’s previous convictions.  This results in an end sentence of 8 months imprisonment, four months shorter than the sentence imposed by Judge Treston.

[44]     The appeal against conviction is dismissed.

[45]   The appeal against sentence is upheld and the sentence of 12 months imprisonment is quashed and substituted with one of 8 months imprisonment with release conditions.

……………………………….

Woolford J