MCALLISTER v NEW ZEALAND POLICE [2019] NZHC 828

MCALLISTER v NEW ZEALAND POLICE [2019] NZHC 828 [15 April 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2019-483-2[2019] NZHC 828BETWEEN BRUCE MCALLISTERAppellantAND NEW ZEALAND POLICERespondentHearing (via AVL): 15 April 2019Counsel: No appearance for AppellantM Wilkinson-Smith for RespondentJudgment: 15 April 2019ORAL JUDGMENT OF CHURCHMAN JIntroduction[1] On 13 December 2018, Mr McAllister was sentenced by Judge Crayton in theWhanganui District Court to 23 months' imprisonment in respect of the followingcharges:1(a) arson;2(b) common assault;3(c) possession of cannabis;41 R v McCallister [2018] NZDC 26219.2 Crimes Act 1961, s 267(2)(a); maximum penalty seven years' imprisonment.3 Section 196; maximum penalty one year's imprisonment.4 Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months' imprisonment anda $500 fine.(d) possession of a pipe;5 and(e) possession of methamphetamine.6[2] He filed an application for leave to appeal out of time against the impositionof a release condition that he attend with and be assessed by a Department ofCorrections psychologist on the basis that such an order was neither needed nornecessary.[3] Arrangements were made for Mr McAllister's attendance at the hearing thismorning by way of an audio-visual link to Whanganui Prison where he is currentlyresiding. I am advised that immediately prior to this matter being called,Mr McAllister was informed that it was about to proceed. He was invited to enter theroom where the AVL facility was located so that he could participate. It appears thathe has equivocated somewhat but ultimately informed the prison authorities that hedid not wish to enter the room.[4] As it appears that he has not formally abandoned either his application for leaveto appeal or the appeal itself, the Court is therefore obliged to consider the issues andto deliver a decision. That is how we get to this situation of this matter proceedingwithout Mr McAllister being present in Court.[5] One preliminary matter is that, in his notice of application for leave to appeal,Mr McAllister claimed that he was sentenced without entering guilty pleas. Havingreviewed the documentation, I have come to the conclusion that Judge Crayton, in adetailed minute dated 19 October 2018, recorded that Mr McAllister had, that day,entered guilty pleas following a sentence indication.7 Mr McAllister was representedby Ms Goodlet on that occasion. She made submissions as to whether or not a s 38report was required for the purposes of sentencing. She would only have done that ifpleas of guilty had been entered.5 Sections 13(1)(a) and (3); maximum penalty one year's imprisonment and a $500 fine.6 Sections 7(1)(a) and (2); maximum penalty six months' imprisonment and a $1,000 fine.7 R v McAllister DC Whanganui CRI-2018-083-000587, 19 October 2018 at [1].[6] The matter was called again before Judge Crayton on 22 November 2018 andhe issued another minute. The final paragraph of that minute recorded that there wasno application to vacate the guilty pleas entered on 19 October. Mr McAllister wasagain represented by Ms Goodlet at this hearing.[7] Once again, Judge Crayton noted that the guilty pleas had been entered on19 October and that the sentencing was proceeding on the basis of the acceptance byMr McAllister of a sentence indication. The opportunity to be sentenced on the basisof a sentence indication was only available if the indication was accepted and guiltypleas entered. It is therefore abundantly clear that Mr McAllister did enter guilty pleasand was expressly dealt with on the basis of those pleas.Factual background[8] On 25 April 2018, Mr McAllister checked into a motel for the night. Havingdisconnected the wires of the fire alarm, he started a fire in the rubbish bin inside theunit, putting paper, bedding and a foam mattress on top of the fire. When the managerattempted to gain entry to the unit, Mr McAllister threw a lamp at him. The firebrigade was called and put the fire out.[9] The Police, on searching inside the unit, located a small bag containingcannabis bud on the main bed and a broken glass pipe of the type commonly used tosmoke methamphetamine on the floor near the kitchen.[10] On arrest, a search at the police station of Mr McAllister's person located asmall bag containing methamphetamine.District Court decisions[11] In a minute dated 4 October 2018, the Judge noted that during a telephoneconference, Mr Tennet, who was then counsel for Mr McAllister, had raised thequestion as to whether any medical report had been prepared upon Mr McAllister toensure that he was fit to instruct counsel and participate fully in his defence.88 R v McAllister DC Whanganui CRI-2018-083-000587, 4 October 2018 at [2].[12] The Judge stated that he had himself noted that Mr McAllister had "becomeelevated in his behaviour and extremely vocal/abusive" during his last twoappearances and agreed that a screening report pursuant to s 38(1)(a) of the CriminalProcedure (Mentally Impaired Persons) Act 2003 should be obtained.9[13] In a minute dated 19 October 2018 on the entry of the guilty pleas, the Judgesaid that he had ordered the screening report but was satisfied that Mr McAllister,having consulted with experienced counsel, had been in a position to make aninformed decision and had provided clear instruction to his new counsel, Ms Goodlet,that the report was not required.10[14] Ms Goodlet urged the Court not to order a s 38(2) report to assist withsentencing, submitting the Mr McAllister already had engagement with medicalprofessionals and would be best served by a report not being obtained until hisrelease.11 The Judge, however, had concerns that Mr McAllister, in his offending of25 April 2018, was trying to harm himself and noted that a s 38(2) report was not justto inform about the framework of release but also "to explore whether there are anymatters which are of a mitigating nature which can be taken into account at sentenceto further adjust the end point".12 He therefore ordered a s 38(2) report to assist withbackground and end sentence conditions.13[15] At sentencing, the Judge directed that there be six months' end sentenceconditions, explaining that:14The end conditions are based on my consideration of the content of the pre-sentence report and the report of Kerry Reader. It is to ensure that you havesupport when you are in the community.[16] These conditions included three special conditions, one of which was that:15You attend a psychological assessment with a departmental psychologist, asdirected by a probation officer. You complete any treatment and or9 At [3].10 R v McAllister, above n 7, at [3].11 At [3]-[4].12 At [6]-[7].13 At [9].14 R v McCallister, above n 1, at [4].15 At [6].counselling as recommended by that assessment and to the satisfaction of yourprobation officer.Appeal out of time[17] A preliminary matter to be dealt with is the issue of appeal out of time.[18] In the written submissions filed in this matter, the Crown have noted that theappeal was three months out of time, although in the oral submissions to the Court thismorning, Mrs Wilkinson-Smith for the Crown, has confirmed that the Crown do notoppose the application for leave to appeal out of time. Under s 238(2) of the CriminalProcedure Act 2011, a notice of appeal must be filed 20 working days after the date ofthe sentence appealed against. The date of the sentence was 13 December 2018.[19] It appears that Mr McAllister, acting for himself, lodged two appeals, the firstdated 16 January 2019 and the second 27 January 2019, which he had been led tobelieve were sent by the prison officers. He says that he learnt on 4 April 2019 thatthey had not been sent and, accordingly, filed this notice of appeal on that date.[20] In fact, it appears that the notices of appeal were sent but were not accepted forfiling. The notice of appeal lodged by Mr McAllister states that an extension of timeis sought as Mr McAllister's previously filed notices of appeal were rejected due toreasons of form. I am satisfied that it is appropriate for leave to be granted given thatthe first attempt by Mr McAllister to lodge an appeal on 16 January 2019 would havebeen filed within time and, given the lack of opposition from the Crown.[21] Accordingly, I grant leave to appeal.Discussion[22] I now turn to the grounds of the substantive appeal.[23] The imposition of special post-detention conditions is governed by s 93 of theSentencing Act 2002, which relevantly provides:93 Imposition of conditions on release of offender sentenced toimprisonment for short term(2) If a court sentences an offender to a term of imprisonment of morethan 12 months but not more than 24 months,—(a) the standard conditions apply to the offender until thesentence expiry date, unless the court specifies a differentdate; and sections 94, 95, and 96 apply as if the standardconditions had been imposed by order of the court; and(b) the court may at the same time impose any special conditionson the offender and, if it does so, must specify when theconditions expire.(2A) The court may specify that conditions imposed under this sectionexpire on—(a) the sentence expiry date; or(b) the date that is a specified period before the sentence expirydate; or(c) the date that is a specified period of up to 6 months after thesentence expiry date.(2AB) If the court imposes special conditions on an offender, the specialconditions may apply for as long as, but no longer than, the standardconditions apply to the offender.(3) 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 theoffender; or(c) provide for the reasonable concerns of victims of the offender.[24] Discussing the imposition of special conditions, the Court of Appeal held inR v Janssen:16[15] The discretion must also be exercised consistently with the principlesin s 8 of the Sentencing Act, the first five of which (those in paragraphs (a)–(e)) require that any condition imposed relate explicably to what has beendescribed succinctly as "the precise criminality". 16 R v Janssen [2007] NZCA 450 (citation omitted).[16] The remaining purposes of sentence are no less germane. Thesentence imposed must be the least restrictive outcome appropriate: s 8(g). Itmust also be tailored to the offender. Account must be taken of any factorpersonal to the offender that would make a usual sentence disproportionatelysevere: s 8(h). One of the purposes of conditions on release is, moreover, torehabilitate and to assist the offender to reintegrate. Personal, family, whanau,community and cultural factors can be no less relevant: s 8(i).[17] Finally, because the special conditions able to be imposed derive inthe main from those set out in s 15(3) of the Parole Act 2002, the principle ins 7(2) of that Act that guides the Parole Board has an implicit and helpfulplace. Any condition imposed ought not to be "more onerous, or last longer,than is consistent with the safety of the community". [25] Mr McAllister states in his notice of appeal that there was no proof or anyevidence to make the order imposing the condition that he challenges. He argues thathe has lawyers and doctors saying he is of sound mind.[26] However, the pre-sentence report indicates that Mr McAllister was sufferingfrom paranoia while in prison and was not receiving treatment. He was assessed asbeing at high risk of re-offending and of harming others. A condition to attendpsychological assessment at the direction of a Probation Officer was included in therecommended sentence in the report. I note that the fact that a condition of the sametype as ultimately imposed was recommended in the report distinguishes this casefrom that of R v Janssen.17[27] Kerry Reader, a senior psychologist, was unable to complete a s 38(2)(b)psychological report under the Criminal Procedure (Mentally Impaired Persons) Actas Mr McAllister did not give consent. She did, however, note observations of hisbehaviour, assessing him as possibly suffering from an underlying psychotic disorderor dementia as well as antisocial personality disorder and attention deficithyperactivity disorder.[28] If, as Mr McAllister maintains, he is of sound mind, any psychologicalassessment would confirm this, and he would, therefore, not be required to undergotreatment. If, however, such assessment were to confirm Ms Reader's suspicions asto Mr McAllister's possible mental health issues, the imposition of a special conditionthat he complete any recommended treatment could be to his benefit, although, given17 Above n 16.his resistance to undergoing assessment and treatment, any such potential benefit isdifficult to predict. That being said, though, the special condition imposed by theJudge was designed to reduce the risk of his reoffending and to promote hisrehabilitation. As such, it was an appropriate condition for the Judge to impose.Result[29] The application for leave to bring an appeal out of time is granted. The appealitself is dismissed.Churchman JSolicitors:Crown Solicitor, Whanganui for Crowncc: B McAllister, c/- Kaitoke Prison, Whanganui