Waters v Police [2014] NZHC 1258 (5 June 2014)

Last Updated: 10 June 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-000017 [2014] NZHC 1258

RICKY JAMES WATERS

v

_{NEW ZEALAND POLICE}

Hearing:	5 June 2014
Appearances:	K L McHugh for Appellant E L Higbee for Respondent
Judgment:	5 June 2014

_{JUDGMENT OF DUNNINGHAM J}

[1] Mr Ricky Waters appeals against the imposition of a special condition of home detention and post detention, that he not have any contact with his partner and co-offender, Renee Grieve, without prior written approval of his probation officer.

The conviction

[2] The appellant and three associates pleaded guilty to conspiring to commit an aggravated burglary. The conviction arises out of events which took place on

5 October 2013, when Mr Waters, his partner Ms Grieve, and two others were drinking at Ms Grieve’s home. They decided to visit the victim’s house to intimidate him, apparently in retaliation for a wrong they allege he had done to Ms Grieve on an earlier occasion.

[3] The four of them uplifted a knife and a firearm and travelled to the victim’s

address in a car. When they drove to the cul de sac where the victim lived, they

_{turned off the lights and slowly approached the victim’s address. A police patrol}

WATERS v NEW ZEALAND POLICE [2014] NZHC 1258 [5 June 2014]

noticed the vehicle and investigated. When they searched the vehicle they found the knife and the shotgun. As it transpired all four defendants pleaded guilty and sentencing took place, in Mr Waters’ case, on 25 March 2014.

The District Court decision

[4] In the District Court, the Judge sentenced Mr Waters to four months home detention, taking into account achieving parity in terms of starting point with the co- offenders, and then various discounts for a guilty plea, expression of remorse and his desire to disassociate himself from his co-offenders.

[5] The Judge imposed both standard and special conditions to apply both during and after the period of detention, including not to communicate with, or associate with, any of the three co-offenders including his partner, Ms Grieve, without the prior written approval of the probation officer. The Judge said:

I note in that regard you and Ms Grieve share the care of the young children. You will need to arrange with probation permission to have contact with her for that purpose.

Grounds of appeal

[6] There are a number of grounds of appeal. They are: (a) the Judge was wrong to impose the condition;

(b) the Judge failed to consider the statutory considerations in imposing the condition;

(c) the Judge failed to give reasons for imposing the condition; (d) the Judge did not give counsel an opportunity to be heard;

(e) the Judge failed to take into account the appellant’s personal

circumstances when imposing the condition;

(f) the imposition of the condition meant that the appellant was subject to a disproportionate sentence that was disparate with those of his co-offenders; and

(g) the Judge failed to take into account the least restrictive outcome principle.

[7] In summary, they all boil down to whether it was appropriate to impose the non-association condition in relation to Ms Grieve, particularly given that they lived together and had two young children to care for and in light of the fact that Ms Grieve herself was not burdened with such a condition.

Discussion of grounds of appeal

[8] The appellant has filed extensive submissions. The core issues in my view relate to whether the statutory tests were satisfied, in particular, the tests under ss 80D and 80P in the Sentencing Act 2002, especially when the basis for concluding that the statutory tests were met was not clearly articulated in the decision.

[9] Section 80D(2) provides the following test for the imposition of special conditions of home detention:

(2) A court may impose any of the special conditions described in subsection (4) if the court is satisfied that—

(a) there is a significant risk of further offending by the offender; and

(b) standard conditions alone would not adequately reduce the risk; and

(c) the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.

[10] Similarly, in imposing special post-detention conditions, s 80P(1) provides:

(1) A court may impose any of the special post-detention conditions described in subsection (2) if the court is satisfied that-

(a) there is a significant risk of further offending by the offender; and

(b) standard conditions alone would not adequately reduce that risk; and

(c) the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.

[11] The appellant in essence submits that the Judge did not analyse the relevant sections prior to imposing the condition and a similar non-association condition was not required while the appellant was on bail for some seven months.

[12] It is therefore said that the sentencing Judge could not have been satisfied that Mr Waters posed a risk of reoffending, or that Mr Waters and Ms Grieve’s relationship increased such a risk. Furthermore, the standard conditions which usually applied both during, and post, home detention were sufficient to minimise any risk as to make any special conditions unnecessary.

[13] In response to that, the Crown says, first, that the Court is not required to give a full and exacting statutory evaluation every time the special conditions are imposed. Here, given that the offending was serious and raised significant public safety concerns, there were risks apparent to the Court and it was appropriate in the first instance to order non-association.

[14] Furthermore, it was open to the Judge to consider that a pro-active response was required in relation to Mr Waters. Given the gravity of the offending, it was appropriate to put the onus on him to accommodate his parental responsibilities around the non-association condition. Furthermore, there was sufficient flexibility because of the ability to modify it through, in particular, liaison with the probation officer, in order to ameliorate any harshness of that condition and to meet the offender’s personal circumstances.

[15] I accept that the Judge is not necessarily required to articulate his reasoning in full on each occasion. However, the risk is that when reasons are not fully articulated, it is hard for an appellate Court to see how the statutory tests were satisfied.

[16] In this case, I am not satisfied on the facts that there was a need to impose special conditions of non-association with Ms Grieve. There had been no evidence of a significant risk of further offending by Mr Waters. The condition was not recommended by the probation officer, and the experience of seven months on bail without the imposition of a special condition was evidence which could have been relied on to suggest that such a condition was not necessary to reduce any risk of further offending by the offender.

[17] That really deals, in substance, with the first three grounds of the appeal. I will deal with the next two grounds of appeal together, which are the Judge did not give counsel an opportunity to be heard; or failed to take into account the appellant’s personal circumstances. In this regard, I accept the respondent’s submissions that the Judge was clearly alive to the appellant’s personal circumstances and made specific mention of them when imposing the condition. The Judge clearly thought that leaving matters to the probation officer’s discretion would be adequate, so I do not put any particular weight on those grounds of appeal.

[18] The next ground, which is that the imposition of the condition meant that the appellant was subject to a disproportionate sentence and there was a disparity with the way other offenders were treated, is made out in my view. It is quite clear that the Judge erred in his understanding that the non-association condition applied to all co-offenders. It was not imposed on Ms Grieve and its imposition creates a serious difficulty and disparity for Mr Waters, particularly post-detention, when they were a couple raising a family together.

[19] I also accept the final ground of appeal, which is that the Judge did not adequately take into account the “least restrictive outcome” principle.¹ Again, in light of the experience of seven months bail without this condition being imposed, and the conclusions in the probation officer’s report, I am not satisfied that the

_{restriction of this condition was necessary in these circumstances.}

¹ Section 8(f) Sentencing Act 2002.

Outcome

[20] In conclusion, the appeal is allowed. The special condition of home detention and special post-detention condition preventing Mr Waters from having any contact with his co-offender Renee Grieve is removed. For the avoidance of doubt, it still stands in respect of the other two named co-offenders.

Solicitors:

AWS Legal, Invercargill

Preston Russell Law, Invercargill