GREEN v POLICE [2017] NZHC 3101

GREEN v POLICE [2017] NZHC 3101 [13 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-404[2017] NZHC 3101BETWEEN GLENN GREENAppellantAND NEW ZEALAND POLICERespondentHearing: 12 December 2017Appearances: Appellant in personB H Dickey for RespondentJudgment: 13 December 2017JUDGMENT OF BREWER JThis judgment was delivered by me on 13 December 2017 at 11:30 ampursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for Respondent[1] When Judge KJ Glubb sentenced Mr Green to 12 months' imprisonment forbreaching a protection order, he also imposed standard and special post-releaseconditions for a period of six months.1 Mr Green has been released from prison buthe does not want to be subject to all the post-release conditions. He appeals thefollowing special conditions:• To observe a curfew at the approved address between 9 pm and 7 ameach day, unless you have written approval from your ProbationOfficer not to be present at the address.• You must inform your Probation Officer of any intention to enter intoa relationship.• Not to enter any internet café, public library or place of similarbusiness where you can gain access to internet capable deviceswithout prior written approval from a Probation Officer.• To submit to electronic monitoring in the form of Global PositioningSystem (GPS) technology as directed by a Probation Officer in orderto monitor your compliance with any condition(s) relating to yourwhereabouts.[2] Mr Green's submission overall is that these conditions are unnecessary and aredisproportionate in severity to the seriousness of his offence. Further, he submits thatthe requirement to inform his probation officer of any intention to enter into arelationship is a substantial breach of his right to associate with others and is too vagueand imprecise to be lawful.[3] I will deal with this point now. First, Mr Green misread the effect of thecondition. In his submissions, he described the provision as "not to enter into arelationship". That is incorrect. The requirement is to tell his probation officer if heforms an intention to enter into a relationship. I find that is not an unnecessaryrestriction on his right to free association with others (or, indeed, his right to privacyand natural dignity as a person) given his very serious record of breaching protectionorders and criminal harassment. Its purpose is to enable monitoring to preventreoffending, and Mr Green has a high risk of reoffending.1 Police v Green [2017] NZDC 24397.[4] However, I agree that the wording of the condition is too imprecise to stand. Itcould apply to any form of human relationship. The respondent acknowledges this inits submissions. The Police understand the condition to refer to any intimate and/ordomestic relationship in which Mr Green wishes to become involved. The Policeaccept that the wording of the condition could be refined to clarify this. During thehearing I asked Mr Green whether such an alteration would answer his protest and hetold me that it would. I intend to allow his appeal to this extent.[5] As to the other conditions, they are submitted by the respondent as beingnecessary to maintain a reasonable assurance, for the protection of the public, thatMr Green will not breach the rest of his conditions or otherwise reoffend.[6] Mr Green has over 200 previous convictions, including 26 for violence, threatsof violence or criminal harassment, and 34 for contravening protection orders. Muchof this history relates to sustained stalking and harassing of different women or teenagegirls. There are currently eight protection orders in force against him.[7] The protection order Mr Green breached, and for which Judge Glubb sentencedhim and imposed these conditions, related to a protection order issued in June 1998 toprotect, among other people, the complainant. At that time, the complainant was ayoung girl. The summary of facts to which Mr Green pleaded guilty is to the effectthat on 7 April 2017, Mr Green called her place of work in New Lynn, gave his nameas "Doug", an officer of the Court, and engaged her in conversation in relation to theprotection order. He asked the complainant if the protection order could be withdrawn.The victim impact statement details the complainant's disquiet once she realised whowas actually talking to her. The fact that she was contacted after nearly 20 yearsworries her greatly.[8] Mr Green told me that he accepted the summary of facts as part of a pleabargain but says that he found out where the complainant was working byhappenstance, had bumped into her eight or nine times over the years, and that therewas nothing wrong in contacting her to see if she would consent to the removal of theprotection order. He denies impersonating an officer of the Court.[9] I am, of course, bound by the summary of facts to which Mr Green pleadedguilty and, in any event, Mr Green does not have a character which would dispose meto accepting what he says on face value.[10] In my view, the other conditions under appeal are appropriate. The curfew isnecessary because night-time stalking is more difficult to detect than day-timestalking. The electronic monitoring condition is necessary to enforce the curfew andto ensure that Mr Green complies with one of his other conditions, which is not toenter the area of New Lynn (where the complainant works).[11] The prohibition on entering into any internet café, public library or place ofsimilar business was the subject of submission to Judge Glubb. Initially, a conditionwas proposed that Mr Green not access the internet or possess or use any devicecapable of accessing the internet without prior written approval and supervision. Thiswas proposed to limit Mr Green's ability to commit further offences of harassment orbreaches of protection orders.[12] However, Judge Glubb accepted Mr Green's counsel's submission that thiswould be unduly onerous because it would prevent Mr Green from using day-to-dayany telephone with internet access. Counsel submitted that the existence of anothercondition allowing a probation officer to check the contents of any internet-capabledevice in Mr Green's possession would be sufficient to protect the community.Mr Green's counsel added that the condition that he not enter any internet café, publiclibrary or place of similar business without the written approval of the probationofficer was also an appropriate condition to mitigate Mr Green's risk to the communitybecause that way he would not be able to access the internet anonymously or privately.So, Mr Green's counsel actually contended for this condition which Mr Green nowwishes to be free of.[13] I think Mr Green's lawyer was correct, and that the condition mitigates the riskMr Green poses to the community.Decision[14] The appeal is allowed to the extent that the special condition imposed by JudgeGlubb – "you must inform your probation officer of any intention to enter into arelationship" – is quashed and replaced with the following special condition:You must inform your probation officer of any intention to enter into anyintimate and/or domestic relationship.[15] In all other respects, Judge Glubb's decision is upheld.________________________________Brewer J