GREEN v R [2019] NZCA 602

GREEN v R [2019] NZCA 602 [29 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA473/2019[2019] NZCA 602BETWEEN GLENN GREENApplicantAND THE QUEENRespondentCourt: Collins, Brewer and Gendall JJCounsel: Applicant in personJ A Eng for RespondentJudgment:(On the papers)29 November 2019 at 3.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)[1] The applicant pleaded guilty to a charge of blackmailing the chief executive ofa United States company based in Los Angeles and was sentenced in the District Courtto 17 and a half months' imprisonment.1[2] He appealed to the High Court unsuccessfully against three of the releaseconditions imposed by the District Court Judge on sentencing.2 The applicant now1 R v Green [2019] NZDC 9117.2 Green v R [2019] NZHC 2220.seeks leave of this Court to appeal against the High Court decision. This leaveapplication is opposed by the respondent.[3] In the High Court the three release conditions challenged by the applicant were:(a) the GPS monitoring condition, which required him to submit toelectronic monitoring as directed by a probation officer to monitor hiscompliance with conditions relating to his whereabouts;(b) the employment condition, prohibiting the applicant from undertakingany employment or training, paid or unpaid, without the prior writtenapproval of a probation officer; and(c) the internet access condition, prohibiting the applicant from enteringany internet café, public library or place of similar business where hecould gain access to internet capable devices without prior writtenapproval from a probation officer.[4] Lang J considered the blackmail offending and the applicant's very substantialcriminal history. He found, first, that the internet access condition was a proportionateand balanced response to the risk posed, secondly, that the GPS monitoring conditionwas necessary to ensure compliance with that condition, and, thirdly, thatthe employment condition was appropriate (and that the challenge to it was a challengeto the manner of its application, not its existence).3Legal principles[5] An application for a second appeal against sentence is brought pursuant tos 253 of the Criminal Procedure Act 2011. This Court must not grant leave unless itis satisfied the appeal involves a matter of general or public importance ora miscarriage of justice may have occurred or may occur unless the appeal is heard.3 At [21], [25] and [27]–[28].[6] In McAllister v R, this Court considered that the "general or public importance"limb of s 253(3) would be met where a proposed second appeal against a sentencegave rise to an issue of "general principle or of general importance inthe administration of the criminal law by the Courts".4 By way of example, that wouldbe the case where an appeal related to "an important question of law having broadapplication beyond the circumstances of the particular case".5Discussion[7] The applicant's two proposed grounds of appeal are that:(a) the Judges in the Courts below did not consider Patterson v R, whichrequires conditions imposed to be reasonably necessary, proportionaland have a rational nexus with the risk of reoffending, promotingrehabilitation and reintegration of the offender, and providing forthe reasonable concerns of the victims of the offending;6 and(b) the Department of Corrections is "abusing its own rules and regulationsand denying me my civil and legal rights".[8] As to the first proposed ground of appeal, the District Court Judge in herdecision at [70] and [77] explicitly referred to and applied the principles set out inPatterson. Lang J, in his decision in the High Court at [16], also referred to and appliedthe principles set out in Patterson. We find, therefore, that the first proposed appealground is unsustainable.[9] As to the second proposed appeal ground, Mr Green submits that the conditionsare being imposed in a harsh and unfair manner. This does not provide any basis,however, to challenge the existence of the conditions themselves and we find in allthe circumstances here that they are reasonable.4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]; citing Keenan v R [2005] NZSC63 at [5].5 At [36].6 Patterson v R [2017] NZCA 66 at [18].Result[10] For all these reasons, we decline the application for leave to bring the secondappeal.Solicitors:Crown Law Office, Wellington for Respondent