Woods v Police [2018] NZHC 2189 (24 August 2018)

Last Updated: 6 September 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000072 [2018] NZHC 2189

BETWEEN	QUENTIN DYLAN WOODS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 August 2018
Appearances:	M Starling and N R Wham for Appellant H F McKenzie for Respondent
Judgment:	24 August 2018

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Mr Woods, was sentenced on 19 April 2018 in the District Court at Palmerston North to eight months’ imprisonment with 10 months’ release conditions after pleading guilty to one charge of possessing an offensive weapon, one charge of threatening behaviour and two charges of common assault. Various conditions were imposed. The appellant was due for release on 20 June 2018. An application to vary his release conditions was then brought by the Department of Corrections (the Department). On 19 June 2018 Judge Farish in the Christchurch District Court imposed various further conditions just prior to his release. Mr Woods appeals the imposition of two of these release variation conditions, arguing that the Judge did not have the jurisdiction to impose them.

WOODS v NZ POLICE [2018] NZHC 2189 [24 August 2018]

Background

[2] Mr Woods’ offending occurred in Palmerston North. He was transferred to Christchurch Men’s Prison a few days prior to his release. As I have noted, Mr Woods was due for release and released from his term of imprisonment on 20 June 2018. Mr Woods is now 19 years of age and has a long history with Oranga Tamariki and the Care and Protection System. Before me, Mr Woods’ counsel, Mr Starling, acknowledged that Mr Woods is a particularly challenged young man. Mr Woods is thought to have various psychiatric issues. It was intended that he be transferred to a secure psychiatric facility, however, there were no beds available for him.

[3] The Department’s application to vary Mr Woods’ release conditions and to impose other conditions would enable Mr Woods to reside for a short-term period at Torutanga in Christchurch, a supported accommodation. It is aimed at reintegrating people back into the community. Judge Farish heard this application in the Christchurch District Court on 19 June 2018.

[4] In considering the variation application, Judge Farish refused to apply the following condition sought by the Department because she considered s 93 of the Sentencing Act 2002 and s 15(3) of the Parole Act 2002 prevented her from doing so. The condition in question was worded as follows:

(a) To be placed in the care of an agency approved by the Chief Executive of the Department of Corrections, and between the hours of 8 am and 8 pm daily and while in the care of the agency, to be accompanied and monitored by an agency staff member at all times, unless he has the prior written approval of a probation officer.

[5] However, she did impose the remaining conditions sought by the Department. The conditions in issue require Mr Woods to:

(a) Undertake, engage in and complete a reintegration programme administered by a programme provider between the hours of 8 am and 8 pm each day of the week, as approved by a probation officer, and abide by the rules of the programme to the satisfaction of the probation officer;

(b) Comply with the requirements of electronic monitoring; and

(c) Stay at his approved residence overnight between the hours of 8.00 pm and 8.00 am.

Jurisdiction to appeal

[6] Recently in this Court, Williams J considered the issue of jurisdiction to appeal against the imposition or variation of special conditions after the initial sentencing in a case before him, Patterson v R.¹ He concluded that there is a right to appeal such a decision under s 244 because the special conditions form part of the sentence.² A right to appeal was also considered to be in the interests of justice.³

Submissions

Appellant’s submissions

[7] Mr Starling, counsel for Mr Woods, submits that the condition that Mr Woods abide by the conditions of a programme between 8 am and 8 pm every day is “intensive monitoring by stealth”. He argues that it has all the features of intensive monitoring with nothing to set it apart. Mr Starling notes that the programme Mr Woods is subject to is specific to him and has no rehabilitative or educational characteristics. It merely requires him to remain at his residence in the company of an employee at all times.

[8] Mr Starling argues that, between his curfew condition and his programme condition, Mr Woods is confined to his residence. He is also subject to GPS monitoring at all times. Mr Starling submits that this amounts to residential restrictions. As the Judge had no power to impose a residential restriction, he submits that these conditions are unlawful and must be removed.

Respondent’s submissions

[9] Ms McKenzie, for the respondent, takes issue with these arguments. She submits that the condition regarding Mr Woods’ attendance at a program is not “intensive monitoring by stealth”. She contends that such a condition is common and was open to the Judge to impose. The conditions authorised under s 15(3)(b) of the Parole Act include the requirement to participate in a programme to reduce the risk of further offending through the rehabilitation and reintegration of the offender.

¹ Patterson v R [2017] NZHC 49.

² At [25] and [30].

³ At [26].

Ms McKenzie submits that, given Mr Woods’ complex needs, he needs to be placed in a programme which is described as a reintegration programme and that also that provides secure care.

[10] Ms McKenzie acknowledges that the conditions requiring him to be subject to an overnight curfew and electronic monitoring overlap with the conditions imposed for residential conditions under s 33 of the Parole Act. However, she submits that these discrete conditions were open to the Judge under s 15. Section 15(3)(f) specifically permits the Court to impose electronic monitoring. Ms McKenzie submits that, while not expressly provided for, the fact that the listed conditions in s 15(3) are “without limitation” means there is scope for a curfew to be imposed. She points to other cases where the High Court has found that a curfew may be imposed under s 15(3) and that this does not equate to residential restrictions.

[11] Ms McKenzie further argues that all the conditions at issue here satisfy the “rational nexus” test in light of the concerns articulated in the PAC report. Mr Woods is assessed as being at a “high risk of re-offending”. The report writer considered that he is “mentally, cognitively and emotionally unprepared for a safe and meaningful life in the community”. The report writer notes that it is necessary to exclude him from Palmerston North given the mounting list of his victims there. Ms McKenzie says this is particularly relevant to the electronic monitoring condition. In light of the various observations in the report, Ms McKenzie argues that the challenged conditions are reasonably necessary and proportional. Further, she maintains that they exhibit a rational nexus to the purposes in s 93(3).

[12] Overall, Ms McKenzie concludes that the appeal should be dismissed as all the conditions imposed are legal and necessary.

Law

[13] Section 94(3) of the Sentencing Act allows the Court, if it sees fit, to:

(a) suspend any condition or vary the duration of any condition, or impose additional conditions; or

(b) discharge a condition and substitute any other condition described in section 93 that could have been imposed on the offender at the time

when the offender was convicted of the offence for which the sentence was imposed.

[14] Section 93 enables the Court to impose any special conditions which include, “without limitation, conditions of a kind described in section 15(3) of the Parole Act 2002, other than a residential restriction condition referred to in section 15(3)(ab) of that Act”. Subsection (3) requires that 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.

[15] The Court of Appeal recently in Patterson v R considered that “any given 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”.⁴

[16] Section 33 of the Parole Act discusses residential restrictions. Subsection (2) sets out the requirements of an offender under such a restriction as follows:

(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.

⁴ Patterson v R [2017] NZCA 66 at [11].

Analysis

Legality of the curfew and the electronic monitoring conditions

[17] Mr Woods’ case is that these two conditions equate to him being subject to a residence condition. It is clear that the Judge did not have jurisdiction to impose such a condition so the issue is whether the conditions imposed amount to a residence condition, as defined by the Act.

[18] In this Court in a decision relating to similar issues to those arising here (despite the fact that it involved restrictions imposed by the Parole Board), Whichman v Department of Corrections, Woolford J held that to be considered a residential condition, an offender must be subject to all of the restrictions in s 33(2) of the Parole Act.⁵ Woolford J stated that:⁶

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.

[19] He reasoned that:⁷

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...

[20] Before me, Mr Starling for Mr Woods contended that this case was of little help here as it involved decisions of the Parole Board and not the Court. I disagree, however. In my view, it matters little that the Parole Board may have extra powers over those possessed by the District Court as, at the end of the day, here, Woolford J’s decision in this Court in Whichman was to the effect that to constitute a residence condition under the Act, an offender needs to be subject to all of the s 33(2) restrictions. With this in mind, I note here that Mr Woods is also only subject to three of the five requirements, that is, he has to stay at a specified residence, be subject to a curfew, and be subject to electronic monitoring. As he is not required to comply with the other

⁵ Whichman v Department of Corrections [2013] NZHC 3075 at [33].

⁶ At [32].

⁷ At [35].

two requirements in that subsection, the Judge did not make a residential restriction condition under s 15(3)(ab).

[21] Woodhouse J in this Court also relevantly noted in Hohua v Police that:⁸

I am not persuaded that the fact that the only express power for a curfew is found in s 33 means that there cannot be a curfew as one of the conditions relating to the offender’s place of residence pursuant to s 15(3)(a) of the Parole Act.

[22] He also considered that:⁹

In addition, the scope of s 15(3)(a) needs to be considered having regard to, amongst other things, s 93(3). This specifies what special conditions are designed to achieve. A curfew in my judgment may readily be considered to be a special condition which could aid one or more of the objectives set out in s 93(3).

[23] In light of this, Woodhouse J found that that there was jurisdiction to impose a curfew condition and he upheld the District Court Judge’s decision.

[24] Turning now to the present case before me, I find that the curfew and electronic monitoring conditions imposed by Judge Farish here have a rational nexus to the objectives in s 93(3). Primarily, they reduce Mr Woods’ risk of reoffending, which is a serious concern, as noted in the PAC report. They also go some way to providing for the reasonable concerns of the victims as they help ensure that Mr Woods will not travel to Palmerston North where they reside. Moreover, the conditions are necessary and proportional given Mr Woods’ risk of re-offending and the care and assistance he needs.

[25] Therefore, the curfew and electronic monitoring conditions are lawful and should remain in place.

Legality of the programme condition

[26] There is no jurisdiction for the District Court to impose intensive monitoring, that is person to person monitoring, as a special condition upon release. Mr Starling

⁸ Hohua v Police HC Rotorua CRI-2013-463-21, 20 March 2013 at [8].

⁹ At [10].

submits that the Judge effectively imposed an intensive monitoring condition by imposing a condition that Mr Woods abide by a programme between 8 am and 8 pm every day.

[27] Section 15(3)(b) provides that the Court may impose “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”. Section 16 defines a programme as:

(a) any psychiatric or other counselling or assessment:

(b) attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme:

(c) placement in the care of any appropriate person, persons, or agency, approved by the chief executive, such as (without limitation)—

(i) an iwi, hapu, or whanau:

(ii) a marae:

(iii) an ethnic or cultural group:

(iv) a religious group, such as a church or religious order:

(v) members or particular members of any of the above.

[28] This definition covers Mr Woods’ placement in the care of an appropriate agency, Christchurch Residential Care (CRC). Ms McKenzie submits that Mr Woods’ placement with CRC is necessary to reduce his risk of further offending through aiding in his rehabilitation and reintegration.

[29] The PAC report states:

The path towards rehabilitation for Mr Woods has become grim. In my view, he requires very specialised help, and the required spectrum and intensity of assistance does not appear to be available in the community. Community Corrections, and other community agencies, can provide elements of help, but ideally, Mr Woods probably needs to be in a contained environment for the duration of what will likely be complex treatment to ensure the intended result, and to reduce the likelihood of harm to his victims and other members of the public.

[30] I consider that the condition that Mr Woods attend a reintegration programme plainly serves the purpose of facilitating and promoting his rehabilitation and reintegration, as required by s 93(3)(b) of the Sentencing Act. The PAC report is clear that Mr Woods is not ready to be living unaided in the community. He needs significant assistance to help him deal with the factors contributing to his risk of re- offending and to prepare him for reintegration. Mr Woods’ previous failure to engage in the programmes and opportunities offered to him by Oranga Tamariki indicates that without a condition requiring his attendance and participation, he would be unlikely to make progress.

[31] I find that, in the circumstances, there is a clear rational nexus between the condition and the s 93(3) purposes. I also find that it is necessary and proportional given the intense levels of assistance needed to further Mr Woods’ rehabilitation and to help reduce his risk of reoffending. Therefore, the programme condition was appropriately applied and should remain in place.

Conclusion

[32] Mr Woods has failed to show that the conditions in question outlined by the Judge were imposed unlawfully. I consider that they were properly imposed and are necessary in the circumstances.

[33] This appeal is dismissed.




...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to:

Michael Starling, Barrister, Christchurch