Zamani v The King
[2023] NZHC 2133
•10 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000259
[2023] NZHC 2133
BETWEEN MISCHAN ZAMANI
Appellant
AND
THE KING
Respondent
Hearing: 7 August 2023 Appearances:
O F Kazmierow for Appellant H F Brown for Respondent
Judgment:
10 August 2023
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 10 August 2023 at 2:38 pm.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
T M Cooper KC / O F Kazmierow, Auckland Crown Solicitor, Auckland
ZAMANI v R [2023] NZHC 2133 [10 August 2023]
[1]On 5 May 2023, Mischan Zamani was sentenced by Judge C M Ryan to
11 months of home detention and 11 months of post-detention conditions after pleading guilty to two charges of arson and one charge of intimidation/threatening behaviour.1 The post-detention conditions required Mr Zamani, following completion of his sentence of home detention:
(a)to attend assessments for counselling and other treatments and programmes as directed by his probation officer, and to complete those programmes to the probation officer’s satisfaction;
(b)not to associate with the victims of his offending without the written permission of his probation officer; and
(c)to attend and complete an anger management programme if considered suitable and necessary by, and to the satisfaction of, his probation officer.
[2] Mr Zamani appeals his sentence but only with respect to the post-detention conditions. He says that the conditions are disproportionately restrictive in light of his risks of offending and immigration status and that the Court should not have been satisfied that the special post-detention conditions were necessary. The Crown opposes the appeal.
[3] Mr Zamani was born in Germany in 1992 of Iranian parents. He moved to Australia in 2012 to pursue a dream of becoming an Olympic swimmer. He moved to New Zealand in January 2020 to set up a fast food franchise but that did not eventuate for reasons associated with the COVID-19 pandemic.
The offending
[4] Mr Zamani’s then partner was involved in an employment dispute with her employers, the first and second victims, over various matters, including the use of a Volkswagen motor vehicle owned by those victims. On 13 October 2020, Mr Zamani
1 R v Zamani [2023] NZDC 12345.
accompanied his partner to a meeting with the first and second victims, where Mr Zamani became angry and aggressive towards the victims. On 22 and 23 October 2020, Mr Zamani met with Washington Sooa and Braydan Previtera and engaged them to damage or destroy the Volkswagen and the victim’s second vehicle, a Mercedes Benz. Mr Zamani told Mr Sooa and Mr Previtera where the victims lived and worked and what he wanted done to the vehicles.2
[5]The offending took place over a period of four days.
[6] At around 11:13 pm on 23 October 2020, Mr Sooa and Mr Previtera drove to the first and second victims’ home in Hillsborough, where the third victim’s Mitsubishi Outlander vehicle was parked in the driveway. The third victim was a flatmate of the first and second victims. Mr Sooa and Mr Previtera poured an accelerant into the panel between the windscreen and the bonnet of the third victim’s vehicle. They smashed the windscreen, set the accelerant on fire and departed the scene. The car, which had been targeted in error, sustained moderate fire damage and charring.
[7] At around 10:43 pm on 25 October 2020, Mr Previtera drove with associates to the victims’ Hillsborough home armed with a shotgun, following Mr Zamani’s instructions to confront the first victim and threaten him. Mr Zamani did not know of the shotgun or Mr Previtera’s intention to use it. The shotgun was discharged three times. Two rounds went into the bonnet and windscreen of the Mercedes Benz, which was parked in the driveway. The third round went into the front door of the home, where the victims and three other tenants of the address were sleeping. Mr Previtera and his associates drove away. The Mercedes Benz sustained considerable damage to the bonnet and windscreen. A wooden pillar and the front door of the house were damaged.
[8] At around 9:50 pm on 26 October 2020, Mr Sooa drove to the Hillsborough home. He threw a glass bottle filled with accelerant against the windscreen of the Volkswagen, which was parked near the home. He ignited the accelerant. The vehicle
2 Mr Zamani says these meetings occurred very soon after he met with a neighbour who introduced him to someone who said he could deal with his problems. However, that meeting was not part of the Summary of Facts that was the basis of Mr Zamani’s guilty pleas.
was engulfed in flames and sustained irreparable damage. Mr Sooa watched the incident from his vehicle before driving away.
Sentencing decision
[9] Judge Ryan’s decision was careful, considered and of some length – 146 paragraphs. In this summary, I focus on those aspects of the decision relevant to Mr Zamani’s appeal against the post sentence conditions.
[10] The Judge set out the offending to which Mr Zamani had pleaded guilty and set out in some detail the considerable impacts of the offending on the three victims, in both financial terms – for which Mr Zamani was incapable of providing reparation, and on the victims’ well-being. The Judge noted that Mr Zamani had provided a letter of apology in which he had said he had “snapped in the moment” when his then partner had been upset. The Judge considered that Mr Zamani had minimised what was persistent, premeditated behaviour. The Judge noted that Mr Zamani had said he had turned his life around since the offending and had said, “Now after, I will take responsibility and be held accountable for my wrong-doing” and wanted to live a good life.3
[11]The Judge then observed:
[50] There was no acknowledgement of the actual offending, or of the pain and suffering it has caused the victims, particularly the one who had nothing to do with the employment dispute yet whose car got burnt. There is no apology and no offer of reparation. The letter is insular and introspective. It tries to persuade me that Mr Zamani has changed his life for the better …, without mentioning how he has dealt with the offending and the victims.
[12] The Judge noted that she had received a large number of letters but that many were from people from the Church which Mr Zamani had begun to attend and who had known Mr Zamani for nine months or less, although some had known him for longer. The Judge noted that most of the letters said the same thing – that Mr Zamani had embraced the church way of life, had actively participated and done good things
3 At [43] – [49].
in the church, was a good man and deserved a chance. The Judge observed that issues of repentance and references to the victim were largely absent.4
[13]The Judge then stated:
[52] The Court might have been better assisted if there had perhaps been some tangible suggestions as to what might be done to support Mr Zamani, for example a fund raiser to raise money for the victims, developing a safety plan with him, helping him with anger management to make sure that he does not succumb to the temptation to cause damage to others’ property again when he feels slighted and so on.
[14] Even so, the Judge noted the large number of references that had come before her, mainly from Mr Zamani’s church, and accepted that Mr Zamani had been actively involved with them “over the last little while” and accepted and took into account that most of them urged that Mr Zamani be given a second chance.5
[15] The Judge recorded that she had received a letter from a person who described himself as an “anger expert” and who said Mr Zamani had completed 11 therapy sessions with him. The Judge noted the expert had described Mr Zamani as “invariably open, enthusiastic and motivated in the sessions to better himself and contribute to the learning of others. He is always an asset to have in the group sessions. He appears committed to addressing and changing his part in his past offending.”6 The Judge then observed that the expert did not specify how, “unlike anger management providers known to the Court.”7
[16] Even so, the Judge accepted that the 11 individual anger management therapy sessions “can count” as rehabilitation which has sprung from a desire to right the wrong and to ensure that the offending does not happen again. The Judge observed that anger management providers usually ran courses between 16 and 20 weeks but those were usually for defendants who attended in groups. The Judge accepted that those who do anger management on a one-on-one basis tended to do fewer sessions.
4 At [51].
5 At [56].
6 At [57].
7 At [58].
The Judge noted that the expert said he was chairperson of a specialist domestic violence agency and said:
I cannot see why he does not have speciality in anger management so I accept he will have assisted Mr Zamani in dealing with that key issue.
[17] The Judge summarised relevant aspects of the pre-sentence report. The Judge noted:
[66] [Mr Zamani] expressed a level of remorse but the report writer expressed concern that his remorse “is only evident because due the offending is at the higher end of the tariffs available to the courts”, in other words, only because he was trying to reduce a likely prison sentence. I have no idea why Mr Zamani is expressing remorse and do not intend to guess. However, the remorse is not to the victims. It is to the Court and to the probation officer. I suppose it is better than no remorse at all. However, in fairness, Mr Zamani expresses more remorse in the cultural report, to which I will return.
[18] In considering the cultural report, the Judge set out various passages of the guidance of the Supreme Court in Berkland v R,8 and noted that it went without saying that formal reports under s 27 of the Sentencing Act must be case and offender focused and that, as the Supreme Court had held, generalised statements and templates were of no value and that succinct summaries focused on the experience of the offender’s own community were important. The Judge observed that in the present case, the information provided to the cultural report writer had been self-reported and that no- one from Mr Zamani’s community in Germany, Australia or the church community in New Zealand had been involved.9
[19] The Judge noted that neither she nor the report writer knew the real story about Mr Zamani’s mother – whom, Mr Zamani had said, had abused him physically and psychologically. Nor did they know whether there had been poverty in the household, or the extent to which racism, events in Iran or the difficulties of learning a new language in Germany and Australia may have been a factor in Mr Zamani’s life. The Judge recorded that she only had Mr Zamani’s views on these matters.10 However, the Judge said she would not ignore those matters entirely.11
8 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
9 R v Zamani, above n 1, at [80] – [81].
10 At [82] – [84].
11 At [85].
[20] The Judge recorded that Mr Zamani had told the report writer that the relationship with his former partner had been beset with struggles from the beginning and were tense when they moved to New Zealand and COVID-19 hit. The Judge also recorded that Mr Zamani’s partner began to experience what Mr Zamani described as intense bullying and intimidation from her employers. The Judge observed:12
Those are his words. I have no idea whether that is the case. What I can surmise though is that if the relationship was particularly strained, then Mr Zamani, overcompensating for that stress and strain, may have stepped in to show that he was “the man” who could resolve her problems in a way he might not have done if the relationship was not in difficulties.
[21] The Judge noted that the report writer had recorded Mr Zamani’s expressions of remorse for his offending. The Judge observed:13
For the first time in all the documents, he acknowledges the real possibility that the offending might have ended in serious injury or death. Clearly in discussing matters with [the report writer] in April of this year, that emerged. Better late than never is my observation.
[22] In considering the Crown’s submissions on relevant purposes of sentencing – which were deterrence, denunciation and holding Mr Zamani to account – the Judge added the principle of providing a sense of responsibility for and acknowledgement of the harm, to provide for the interests of the victims, to provide where possible reparation for the harm done, to assist in the rehabilitation and re-integration of the offender and to protect the community from him.14
[23] In considering the Crown’s submissions on relevant principles of sentencing – which were the gravity of the offending and the seriousness of the type of offence – the Judge added the need to impose the least restrictive outcome appropriate in the circumstances and to take into account Mr Zamani’s personal circumstances and background.15
12 At [89].
13 At [90].
14 At [101]. The Judge referred in this paragraph to the principles of sentencing. However, it is apparent that the Judge was intending to refer to the purposes of sentencing set out in s 7 of the Sentencing Act.
15 At [102]. The Judge referred in this paragraph to the purposes of sentencing. However, it is apparent that the Judge was intending to refer to the principles of sentencing set out in s 8 of the Sentencing Act.
[24] In setting the sentence the Judge took as the lead offence the burning of the Volkswagen vehicle given it was completely destroyed, and given it was the focus on Mr Zamani’s attention. The Judge observed that Mr Zamani was the mastermind behind that offending and that it was motivated by revenge and retribution. The Judge considered that there was a high risk of harm in respect of that offence, that there was clearly premeditation and that it had resulted in loss and harm of both a financial and psychological nature to the victims.16
[25] The Judge adopted a starting point of three and a half years, imposed a one year uplift for the damage to the third victim’s vehicle, and a further uplift of one month for the intimidation charge arising from Mr Previtera’s shootings. This resulted in a final starting point of five years and seven months (55 months).17
[26] The Judge gave a 20 per cent discount for Mr Zamani’s guilty plea, and 10 per cent in recognition of his previous good character and community work, although the Judge stated that she would have appreciated something more targeted towards the victims to show contrition.18 The Judge then gave a further 10 per cent discount for Mr Zamani’s time under restrictive bail conditions, three months or five per cent for Mr Zamani’s efforts at rehabilitation and a final 15 per cent discount based on Mr Zamani’s cultural report. The Judge ended with a final sentence of one year, nine months and three weeks (21 months and three weeks).19
[27] In considering whether a sentence other than imprisonment should be imposed, the Judge observed that, on the one hand, “this was nasty, spiteful, bullying offending with the risk of serious harm”. The Judge noted that people could have been hurt; the offending had not been spontaneous but planned and involved procuring other people and Mr Zamani had shown no immediate remorse. On the other hand, the Judge acknowledged that Mr Zamani had no prior convictions, had done an anger management course, which, in the Judge’s view, went “a considerable way to preventing any more of this nonsense”, and had support from his church community. The Judge noted that Mr Sooa and Mr Previtera had received sentences of less than
16 At [123] – [125].
17 At [126] – [129].
18 At [130] – [131].
19 At [132] – [133].
imprisonment but observed that Mr Zamani, as the mastermind of the offending, stood with the highest sentence.20
[28]The Judge imposed the sentence as follows:
[136] I am, therefore, going to deal with [Mr Zamani] by imposing home detention on him. The home detention is going to be 11 months and 11 months of post-detention conditions.
[137] I accept that during that time NZIS may well intervene and Mr Zamani may leave the country either voluntarily or escorted. I still intend to impose a sentence of home detention which I will monitor. If Mr Zamani beaches the sentence of home detention I am going to jail him.
[138] His home detention sentence is as follows. He will serve it at the residence of … He will attend an assessment for any counselling, treatment or programme as directed by a probation officer. He will attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of probation officer.
[139] He is not to associate or contact his victims directly or indirectly without the prior written approval of a probation officer. That means no Facebook posting or stalking, that means no posting messages to them, letters, putting things in their letterbox because he knows where they live, texting them, or sending others to do it. The last time you sent other people to do something to them, Mr Zamani, that ended in disaster. Just do not. So there is no contact with that at all.
[140] If there is an apology letter written to the three of them, they would appreciate that, and if one is written, it can go through the probation officer to police.
[141] Mr Zamani, you are to attend and complete an appropriate anger management programme if considered suitable and necessary given the one you have completed and to the satisfaction of the probation officer.
[142] You are to complete any other therapy, counselling programme as recommended and that may include grief counselling because it may assist you.
[143] Once you have completed your 11 months of home detention, then if you are still in New Zealand you will have 11 months of post-detention conditions which will be to do all those things I have mentioned, except now without the ankle bracelet.
20 At [134] – [135].
[29]The Judge concluded by declining to make any orders for reparation, remitting
$360 worth of fines against Mr Zamani and directing that his sentence of home detention would be judicially monitored with three-monthly reports.21
Approach on appeal
[30] An appeal against a sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.22 Section 251 of the CPA provides that, if a Court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.
[31] It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.23 Unless there is a material error in the end sentence, the Court will not intervene.24 There will be a material error if the end sentence is manifestly excessive or wrong in principle.25 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.26 Accordingly, mere tinkering is not permitted.27 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.28
21 At [144] – [146].
22 Criminal Procedure Act 2011, s 250(3).
23 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14] and [29]–[30] .
24 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 23, at [14].
25 Tamihana v R, above n 23, at [14].
26 Tutakangahau v R , above n 23, at [36]; Tamihana v R , above n 23, at [14].
27 Maihi v R [2013] NZCA 69 at [21].
28 Tutakangahau v R, above n 23, at [36].
Relevant provisions of Sentencing Act 2002
[32]Section 80N of the Sentencing Act 2002 relevantly provides:
(2)If a court sentences an offender to a term of home detention of more than 6 months,—
(a)the standard post-detention conditions apply to the offender for a period of 12 months from the detention end date, unless the court specifies a different period; and sections 80Q, 80R, 80U, and 80ZG apply as if the standard conditions had been imposed by order of the court; and
(b)the court may, at the same time, impose any special post- detention conditions on the offender and, if it does so, must specify when the conditions expire.
(3)The court may specify that post-detention conditions imposed under this section expire on a date that is a specified period of at least 6 months, but no more than 12 months, from the detention end date.
(4)If the court imposes special post-detention conditions on the offender, the special post-detention conditions may apply for as long as, but not longer than, the standard post-detention conditions that apply to the offender.
[33] Section 80O sets out the standard post-detention conditions. They relevantly include:
(ea)the offender may not leave New Zealand or attempt to leave New Zealand without the prior written consent of a probation officer:
…
(g)the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:
(h)the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
[34] Section 80P sets out the special post-detention conditions which a Court may impose. These conditions may only be imposed if satisfied that there is a significant risk of further offending by the offender, that standard conditions alone would not adequately reduce that risk and that the imposition of special conditions would reduce the likelihood of further offending by the offender through rehabilitation and
reintegration of the offender.29 The special post-detention conditions which the Court may impose are:
(a)any conditions that the court thinks fit relating to the offender’s place of residence (which may include a condition that the offender not move residence), finances, or earnings:
(b) conditions requiring the offender to take prescription medication: (ba) conditions prohibiting the offender from doing 1 or more of the
following:
(i)using (as defined in section 4(1)) a controlled drug:
(ii)using a psychoactive substance:
(iii)consuming alcohol:
(c)conditions relating to a programme:
(d)any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.
[35] Section 80R provides that an offender who is subject to post-detention conditions imposed under s 80N, or a probation officer, may apply for an order for the suspension, variation, or discharge of any condition. Section 80R(3) provides that the Court may, if it thinks fit, discharge a condition and substitute any other condition described in s 80N.
Submissions for Mr Zamani
[36] Ms Kazmierow, counsel for Mr Zamani, submits that the Judge erred in imposing the post-detention conditions. She says that to impose restrictions and conditions on Mr Zamani for an effective period of 22 months was not the least restrictive outcome appropriate in the circumstances. Ms Kazmierow submits that this was disproportionately severe in Mr Zamani’s circumstances and that the special post- detention condition related to treatment for anger management should not have been imposed because the s 80P(1) factors were not satisfied.
[37] Ms Kazmierow says that the post-detention conditions are disproportionately restrictive on Mr Zamani for three reasons. First, Mr Zamani has no previous
29 Sentencing Act 2002, s 80P(1).
convictions, and his offending took place in the circumstances of an unhealthy relationship and poor emotional state without the supportive community of the church he now belongs to. Secondly, Mr Zamani has already completed several individual anger management counselling sessions to address the role of anger and frustration in his offending. She says that given Mr Zamani will be on home detention for 11 months during which he will be assessed for anger management programmes already, the further rehabilitation that has been ordered is onerous. Thirdly, Mr Zamani is liable for deportation, although no deportation order has been served on him. The post- detention conditions will prevent Mr Zamani from being able to voluntarily leave New Zealand in advance of a deportation order being made. That would deprive him of the opportunity to return to New Zealand because persons formally deported must be prohibited from returning for a finite or indefinite term.
[38] Ms Kazmierow says that Mr Zamani would like to return back to Germany, and that facilitating his sooner return would assist his victims and the wider community given he is unable to be a financially contributing member of society here.
[39] Ms Kazmierow further submits that the s 80P(1) factors necessary to justify the imposition of special post-detention conditions have not been satisfied. She points out that the Judge’s decision did not expressly refer to these factors when imposing the special condition requiring anger management counselling, and says the Judge’s sentencing notes do not establish any implied findings about these factors. Ms Kazmierow says that the Judge’s sentencing notes suggest the opposite, given the Judge’s acknowledgment that Mr Zamani’s anger management counselling went “a considerable way” to reducing his risk of reoffending in the future. Ms Kazmierow says that, given Mr Zamani’s completion of anger management counselling already, which would be maintained throughout his home detention sentence, a further term of 11 months of anger management counselling is excessive. It goes beyond what may be assumed about his risk given his lack of previous convictions, efforts towards rehabilitation and displays of remorse.
Submissions for the Crown
[40] Ms Brown, for the Crown, submits that, because s 80N(2) of the Sentencing Act provides, for a term of home detention of more than six months, standard post- sentence conditions apply for 12 months from the end of detention unless the Court specifies a different period. Mr Zamani’s appeal comes down to an argument that no period of post-detention conditions is required because there is no rehabilitative need for these conditions, and because such conditions should not be imposed in light of his immigration status.
[41] Ms Brown accepts that Mr Zamani has completed some counselling sessions, including sessions for anger management, but emphasises that the offending was a campaign of harassment and intimidation against the victims. She says that Mr Zamani’s underlying reason for the offending remains unclear, especially since this was not addressed in his pre-sentencing or cultural reports, and that in these circumstances it was entirely open to the Judge to consider that a period of post- detention conditions under s 80N(2) were necessary given the seriousness of the offending and the apparent lack of reasoning for it.
[42] Ms Brown further says that the immigration consequences for Mr Zamani are entirely speculative: there is no evidence before the Court as to if or when a deportation order would be served, and whether that would be during the course of his home detention, during his post-detention conditions period or afterwards. She says that the Judge determined that additional rehabilitation was appropriate and in the interest of the community and that if the post-detention conditions are removed, Mr Zamani may be able to leave the country prior to a deportation order being issued and then return in the future without ever having to complete the rehabilitation he has been deemed to require.
Analysis
[43]On the face of Mr Zamani’s appeal, the appeal raises two questions:
(a)Did the Judge err in applying the standard post-detention conditions for 11 months?
(b)Did the Judge err in applying the special post-detention conditions for anger management and for treatment programmes deemed necessary generally?
[44] However, in discussion with Ms Kazmierow at the hearing it became apparent that Mr Zamani’s essential position is no post-detention conditions should have been imposed because they would prevent him leaving New Zealand voluntarily as soon as his period of home detention has been completed.
[45] Before addressing that proposition, I consider it appropriate to consider separately the questions in [43(a) and (b)].
Did the Judge err in applying the standard post-detention conditions?
[46] In respect of the standard post-detention conditions, s 80N(2) is clear that standard conditions apply for twelve months, unless a Judge specifies otherwise. Judge Ryan explicitly exercised her discretion and reduced the term of application to 11 months.
[47] As the Court of Appeal stated in R v Janssen, any condition is required to serve the purposes of sentencing in s 7(1) of the Sentencing Act.30 In Robinson v Police, Osborne J accepted that this principle was applicable to standard release conditions and was satisfied that the standard conditions imposed in that case could be seen to meet particular purposes of sentencing relevant in that case.31 Osborne J also noted that there could be no argument that the Judge was not within his discretion to impose standard post-detention conditions given the terms of the Sentencing Act.32
[48] I take the same approach here. It was well within the Judge’s discretion to impose standard post-detention conditions, given the terms of the Sentencing Act. There can be little doubt that the conditions are directly relevant to the purposes of sentencing specifically found by the Judge to be relevant. The fact the Judge specifically referenced the purposes of assisting in the rehabilitation and re-integration
30 R v Janssen [2007] NZCA 450 at [14].
31 Robinson v Police [2022] NZHC 442 at [30] – [31].
32 At [32].
of the offender and protecting the community makes it clear that the Judge considered that Mr Zamani had some distance to go with his rehabilitation and re-integration and that he might still pose a risk to the community.
Did the Judge err in applying the special post-detention conditions?
[49] The same conclusion is apposite to the second question: whether the Judge erred in applying the special post-detention conditions. It is clear from the careful discussion of Mr Zamani’s offending and background and the Judge’s consideration of the information that he had provided, as well as the specific reference to those purposes, that the Judge was of the view that Mr Zamani had work to do with respect to rehabilitation and re-integration and that he might still pose a risk to the community.
[50] As Ms Kazmierow accepts, the condition directing Mr Zamani not to associate or contact his victims directly or indirectly without the prior written approval of a probation officer is included within the standard post-detention conditions set out in s 80O. Whether the condition to complete any other therapy or counselling programme as recommended is also included within the standard post-detention conditions is more debatable. Section 80O(h) states that the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer. However, it is principally the requirement for Mr Zamani to attend and complete an appropriate anger management programme to which Mr Zamani objects.
[51] However, that objection does not take account of the additional words included in the condition: “if considered suitable and necessary given the [anger management course] you have completed and to the satisfaction of the probation officer”. Those words make it clear that the Judge was well aware that Mr Zamani had undertaken 11 anger management sessions and left it to the probation officer to consider whether a further anger management course would be suitable and necessary.
[52] Nonetheless, it is also clear from the Judge’s discussion of the anger expert’s letter that the Judge had questions about the effectiveness of the earlier sessions. She had noted that the expert had not explained how Mr Zamani had shown his commitment to addressing and changing his part in his past offending. The Judge also
made clear her concern that it was not until April this year, in the context of the cultural report, that Mr Zamani had acknowledged the possibility that his offending might have ended in serious injury or death.33 While the Judge said the 11 sessions Mr Zamani had attended went “a considerable way to preventing any more of this nonsense”, it is apparent that the Judge was not convinced that Mr Zamani had adequately addressed his anger management issues and there remained a risk of further offending.
[53] I consider it clearly implicit in the Judge’s sentencing notes that, in setting the anger management condition, the Judge was satisfied that requirements of s 80P for imposing special post-detention conditions had been satisfied. That is, that there was a significant risk of further offending by Mr Zamani, that standard conditions alone would not adequately reduce that risk and that the imposition of special conditions would reduce the likelihood of further offending by Mr Zamani through his rehabilitation and reintegration.
[54] For these reasons, I consider that there was an appropriate basis on which the Judge could impose the anger management condition and, if considered a special condition, the condition to complete any other therapy or counselling programme as recommended.
[55] I am satisfied, therefore, that Judge Ryan made no error in requiring Mr Zamani to be subject to standard post-detention conditions for 11 months or in requiring Mr Zamani, within that 11 month period:
(a)to undertake an anger management course if considered suitable and necessary by his probation officer; and
(b)to complete any other therapy, counselling programme as recommended.
33 Ms Kazmierow informed the Court that she was instructed that Mr Zamani had wanted to formally express his remorse for his offending much earlier but has been frustrated by delays on the part of the Crown. Whether or not that is correct, I see no basis from departing from Judge Ryan’s analysis.
Does the fact Mr Zamani wishes to leave New Zealand after home detention make the post-detention conditions unnecessarily restrictive or otherwise inappropriate?
[56] Ms Kazmierow submits that, unless all the post-sentence conditions are removed, Mr Zamani will be required to remain in New Zealand for another 11 months after his sentence of home detention has been completed unless he has been deported. Ms Kazmierow submits that this is because there is no power in the Sentencing Act simply to cancel post-sentence conditions. She considers that s 80R(3) is limited to situations where the Court cancels a condition and substitutes another condition provided for in s 80N. Ms Brown agrees but suggests that, even if Mr Zamani is subject to post-detention conditions, it is implicit in s 80O(ea) that he may be permitted to leave New Zealand if he obtains the permission of a probation officer.
[57]In response to those submissions, I make the following points.
[58] First, it is by no means certain that the scenario Mr Zamani fears will ever arise. There is every chance he will be served with a deportation order before his period of home detention is completed. In that case, he will have to leave New Zealand in accordance with that order, as Judge Ryan recognised at [137] of her judgment.
[59] Secondly, if Mr Zamani is not deported before his period of home detention is completed, this Court has no way of knowing that Mr Zamani will follow through on his current intention to leave New Zealand when the sentence of home detention has ended. He may change his mind. It is not impossible, even if it is unlikely, that he is able to obtain a visa that enables him to remain. In that circumstance, the Court cannot compel him to leave. And he will be left unsupervised and without conditions which the District Court considered were appropriate in the circumstances of his offending.
[60] Thirdly, while I accept that it is unlikely a probation officer would consider they had the power under s 80O(ea) to allow Mr Zamani simply to depart New Zealand while he is subject to post-detention conditions, I do not consider that a Judge’s powers under s 80R(3) are as constrained as counsel consider. While it will be for the Court at the time to decide whether it has the power under the section to discharge all of Mr Zamani’s post-detention conditions, I note that the section is framed broadly and confers a wide discretion on the Court. It seems to me that, if the Court “thinks fit”,
it may discharge a condition and, if it “thinks fit”, it may substitute a condition for any condition it discharges. Furthermore, it is not obvious what purpose would be achieved by limiting the power to discharge a condition only to situations where another condition could be substituted.
[61] For these reasons, I do not consider it appropriate to interfere with Judge Ryan’s sentence by removing the post-sentence conditions. I do not consider that these conditions would necessarily prevent Mr Zamani returning to Germany after the end of his sentence of home detention if he has not already been deported. Judge Ryan has decided that Mr Zamani is to be subject to judicial monitoring every three months. If it is an option for Mr Zamani to return voluntarily to Germany at the end of his sentence of home detention, I consider that it will be open to Mr Zamani to apply for a discharge of the post-sentence conditions.
Result
[62]For all these reasons, I dismiss Mr Zamani’s appeal.
G J van Bohemen J
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