MITCHELL v NEW ZEALAND POLICE [2019] NZHC 3264

MITCHELL v NEW ZEALAND POLICE [2019] NZHC 3264 [11 December 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-60[2019] NZHC 3264BETWEEN KERRYN MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2019Appearances: C J Tennet for the AppellantG J Burston for the RespondentJudgment: 11 December 2019Reissued: 20 December 2019JUDGMENT OF COOKE J[1] On 26 June 2019 Ms Mitchell was convicted of two charges of breach of aprotection order and one charge of burglary before Judge Tompkins in a judge alonetrial in the District Court at Hutt Valley.1 For those convictions she was sentenced totwo years, nine months' imprisonment.2[2] Ms Mitchell now appeals the burglary conviction and one of the breach ofprotection order convictions on the ground the Judge erred in his assessment of theevidence. Ms Mitchell appeals her sentence on the grounds the starting point was toohigh, the Judge did not consider totality, the case was not one where a penalty near to1 New Zealand Police v Mitchell [2019] NZDC 16222 [Conviction decision]; Domestic ViolenceAct 1995, s 49, maximum penalty three years' imprisonment; Crimes Act 1961, s 231, maximumpenalty 10 years' imprisonment.2 New Zealand Police v Mitchell [2019] NZDC 19697 [Sentencing decision].the maximum prescribed was appropriate and the Judge failed to give a discount forthe factors outlined in the psychiatric report.Factual background[3] Ms Mitchell is 51 years old. She was briefly in a relationship with the victimwho is a subject of the protection order. That relationship ended in 2005. Since thenshe has had an unhealthy fixation on the victim and his wife. A protection order hadinitially been obtained on 24 April 2008, and in May 2010 was extended to protect thevictim's partner. Ms Mitchell has continued to harass the victims despite theimposition of the protection orders. She has served several sentences of imprisonmentfor offending against them and has amassed a large number of convictions.[4] The latest set of offending arises from an incident in June 2018. The victimswere on holiday in the United Kingdom. They had arranged for a family member tolook after their home while they were away. At approximately 11 pm on 27 JuneMs Mitchell went to the victims' address in Lower Hutt. She entered the rear yard andattempted to open the doors to the rear entrance. For this activity she was chargedwith both breach of a protection order and burglary.District Court decision[5] At the District Court Ms Mitchell represented herself, with Mr Yeomanappointed as counsel to assist the court. After reminding himself of the burden ofproof, the Judge turned to the charges before him.[6] The Judge was satisfied beyond reasonable doubt that an initial and thentemporary protection order was made in early 2008 initially protecting the victim andlater extended to include his wife. A certified true copy of the order had been providedto the Court. Under the protection order Ms Mitchell was prohibited from enteringthe protected persons' property. The Judge was satisfied that Ms Mitchell hadknowledge of the existence and effect of that protection order. In making that findingthe Judge referred to the previous High Court and Court of Appeal decisionsconcerning Ms Mitchell's past breaches of the order. He was also satisfied thatMs Mitchell did not have the consent of the protected persons to enter the property.Accordingly the charge was proven.[7] As to the burglary charge, the Judge was satisfied the yard at the residentialproperty was an enclosed yard for the purpose of the definition of "building" unders 231(2). He was also satisfied Ms Mitchell did not have the authority of the occupiersof the land to be in the enclosed yard. The main disputed ingredient of the burglarycharge was intent to commit an imprisonable offence in the building. The Judge notedhe would have to infer intent to the required high standard of proof from thesurrounding circumstances. The Judge relied on the following circumstances inreaching the finding that Ms Mitchell intended to commit an imprisonable offence inthe building:(a) Entry was obtained surreptitiously late at night.(b) There was no attempt to knock on the door or otherwise announce herpresence at the address.(c) The CCTV footage showed Ms Mitchell walking around in thebackyard area, stooping to open lower doors in the freestandingbarbecue and then climbing brick stairs to the two rear sliding doors ofthe property and attempting to pull open the sliding door. The footagethen showed her climbing onto a barred wooden gate before departingthe address.(d) The police dog at the scene immediately afterwards followed a scentalong the road to a short distance where Ms Mitchell was apprehendedcrouching down in another house's front yard.(e) Ms Mitchell had earlier convictions for breaches of protection orders.[8] From those circumstances the Judge inferred Ms Mitchell had intent to commitan imprisonable offence, either to annoy, intimate or threaten the occupants, to damagetheir property or to assault the male protected person. The Judge concluded theburglary charge was proven beyond reasonable doubt.[9] On 21 August Ms Mitchell appeared for sentencing before the Judge. Heconsidered the psychiatric reports, Ms Mitchell's history of ignoring previous judicialwarnings for offending against the same victims, and the victim impact statements.The Judge concluded a term of imprisonment close to the maximum penalty for theoffence should be imposed.3 The Judge set a starting point of two years, nine months'imprisonment. There were no discounts available for guilty plea or remorse.Ms Mitchell was accordingly sentenced to two years, nine months' imprisonment.Approach to appeal[10] An appeal against conviction in a Judge-alone trial is governed by s 232(2)(b)of the Criminal Procedure Act 2011. The Supreme Court recently re-examined theapproach to assessment of evidence for conviction appeals in Sena v New ZealandPolice.4 The Court held that appeals in such cases should proceed by way of rehearingin accordance with the well-established principles canvassed in Austin, Nichols & CoLtd v Stitchting Lodestar.5[11] An appeal against sentence proceeds under s 244 of the Criminal ProcedureAct and is an appeal against discretion. The Court must allow an appeal if it is satisfiedthat, for any reason, there is an error in the sentence imposed and a different sentenceshould be imposed.6 The focus is on the end sentence and whether that was in theavailable range, rather than the process by which it was reached.73 Sentencing decision, above n 2, at [11].4 Sena v New Zealand Police [2019] NZSC 55 at [36]–[40].5 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.6 Criminal Procedure Act 2011, s 250.7 See Ripia v R [2011] NZCA 101 at [15]; B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011]NZCA 272 at [11].Appeal against convictionProtection order charge[12] For a breach of protection order charge the prosecution only needs to prove acontravention of the order and knowledge of the order by the defendant. The onusthen switches to the defendant to prove the existence of a reasonable excuse on thebalance of probabilities.8[13] Mr Tennet argues there was no breach as the property was not occupied by theprotected person as they were away on holiday.9 Under s 19(2)(c) of the DomesticViolence Act 1995 a standard condition of any protection order is the respondent mustnot "without the person's express consent, enter or remain on any land or buildingoccupied by any protected person". The issue here is the meaning of "occupied byany protected person". Does that phrase require the protected person to be present inthe premises at the time of the alleged contravention? Or does it extend to places ofoccupation in a broader sense, not requiring physical presence at that time?[14] The meaning of an enactment must be ascertained from its text and in thelight of its purpose.10 It seems to me that the answer to the question concerningthe meaning of "occupied" is ascertained by considering the surroundingprovisions in light of the overall purpose. Section 19(2) of the Domestic ViolenceAct 1995 provides (emphasis added):(2) Without limiting subsection (1), but subject to section 20, it is acondition of every protection order that at any time other than when theprotected person and the respondent are, with the express consent of theprotected person, living in the same dwellinghouse, the respondent mustnot,—(c) without the protected person's express consent, enter orremain on any land or building occupied by the protectedperson; or(d) where the protected person is present on any land or building,8 Hargrave v Police (1998) 17 FRNZ 124 (HC); and A v Police [1999] 2 NZLR 501 (HC), confirmedin R v Easton [2007] NZFLR 70 (CA).9 Submissions at [3.6].10 Interpretation Act 1999, s 5(1).enter or remain on that land or building in circumstances thatconstitute a trespass; or[15] Subsections (c) and (d) distinguish between presence at any land or building,and the occupation of it. Occupation accordingly appears to have a different meaningfrom presence. Given that, the word "occupied" would appear to capture places thatare occupied in the broader sense. Moreover the sub-paragraphs of s 19(2) involve acomprehensive series of conditions which are plainly designed to be protective innature. The Act aims to recognise that that domestic violence, in all its forms, isunacceptable behaviour and to ensure that there is effective legal protection for thevictims of domestic violence.11 Section 19(2)(c) aims to protect the victim's home, orhabitual residence, regardless of whether the victim is actually at home at the time ofentry by the respondent. That protection recognises the sanctity of the home, andacknowledges that invasion of a person's home can be distressing for a victim offamily violence, even if they were not present in the home at the time. This is themeaning given to the section by the District Court in Police v Gregg.12 The defendantin that case had resided in the protected person's residence while she had been on twoweek holiday in Australia. Judge Abbott considered entry onto the address during thattime constituted a breach of s 19(2)(c).[16] Mr Tennet argued that the housesitting arrangements meant that the addresswas not occupied by the protected persons even in the broader sense, but I do notaccept that as the property remained their home. For these reasons I agree with theDistrict Court Judge that Ms Mitchell's entry onto the address on 28 June was inbreach of the protection order.[17] Mr Tennet further submits there was a requirement that the appellant knew theterms of the order. I do not accept that. The position is that knowledge of a protectionorder can be deemed as knowledge of its terms.13 The District Court Judge concluded11 Domestic Violence Act 1995, s 5(1).12 Police v Gregg [2006] 26 FRNZ 16 (DC). [18] The case contains useful discussion on thedevelopment of s 19 at [25]–[38].13 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005 at [34]; Alofaki v Police HCWhangarei CRI-2006-488-43, 19 March 2007; and Keung v Police HC Christchurch CRI-2009-409-94, 5 November 2009.Ms Mitchell had knowledge on both the existence and effect of the protection orderbased on previous High Court and Court of Appeal decisions produced in evidencerecording previous breaches of the order. Those decisions recorded that Ms Mitchellhad knowledge of the order. I see no error in the assessment of that evidence.[18] Next, Mr Tennet argues the Judge failed to adequately consider the existenceof a reasonable excuse. As previously noted, the onus is on the defendant to prove theexistence of a reasonable excuse on the balance of probabilities. A reasonable excuseis that which the ordinary New Zealander would regard as reasonable in thecircumstances — the circumstances including the need for protection which has givenrise to the order, the order and its terms and the inherent vulnerability of the protectedperson to injury including psychological abuse.14[19] Mr Tennet submits there was a reasonable excuse here: that Ms Mitchell hadgone to the house to visit the cats. He argues that excuse was reasonable incircumstances where Ms Mitchell knew the protected persons were away. In light ofMs Mitchell's extensive history of breaching the protection orders and causing theprotected persons distress, I do not consider there is substance to the argument thatbreaching the order to visit the cats was reasonable.[20] I am satisfied each element of the charge can be proven beyond reasonabledoubt and there was no miscarriage of justice.Burglary charge[21] Section 231 of the Crimes Act provides:(1) Every one commits burglary and is liable to imprisonment for a termnot exceeding 10 years who—(a) enters any building or ship, or part of a building or ship, withoutauthority and with intent to commit an imprisonable offence inthe building or ship; or(b) having entered any building or ship, remains in it withoutauthority and with intent to commit an imprisonable offence inthe building or ship.14 A v Police [1999] 2 NZLR 501 at 506; confirmed in R v Easton [2007] NZFLR 70 (CA).[22] The appellant submits the Judge was wrong to find the mens rea element of theoffence was proven beyond reasonable doubt – that is, whether Ms Mitchell had intentto commit an imprisonable offence in the building. Mr Tennet challenges a number ofthe inferences drawn by the Judge. His submissions can be summarised as follows:(a) The Judge was wrong to infer Ms Mitchell had intent to commit anoffence by the fact that, soon after entering the property, she was founda short distance away hiding in a neighbour's front yard. That activitycould be explained by regret having entered the property or her fear ofpolice officers.(b) The previous convictions for previous breaches of the same protectionorder were different as the majority of the breaches were for contactby phone or text and not physical contact. The Judge was thereforewrong to infer the offence Ms Mitchell intended to commit was todamage property, intimidate or threaten the occupants or assault themale protected person.(c) The Judge could not infer intent to commit an imprisonable offencefrom viewing the grainy CCTV footage.[23] I do not accept these arguments. The Judge was entitled to conclude thatMs Mitchell's fleeing the scene was an indication of guilt.15 While that guilt couldhave been related to the breach of protection order, I consider that Ms Mitchell's swiftdeparture from the scene and subsequent attempted concealment from Police, whileby no means conclusive, was at least relevant to the assessment of the circumstancesin inferring intent to commit an imprisonable offence. Mr Tennet makes reference tothe need for a flight direction to be given if this had been a jury trial, but as Mr Burstonfor the Crown points out, the flight direction is given to ensure juries do not engage inimpermissible reasoning. The Judge was able to control the appropriateness of hisreasoning on this issue.15 See R v Luczynski [2003] 2 NZLR 860 (HC); and Penniket v R [2016] NZCA 154.[24] Ms Mitchell's earlier convictions for similar offending were relevant. Theycan be classified as propensity evidence. Ms Mitchell had committed previousoffences in the past against the victims in breach of the protection order. Thoseoffences included contravening a protection order, threatening to kill or do grievousbodily harm, intentional damage and common assault. The Judge also had evidencebefore him in the form of a Court of Appeal judgment detailing Ms Mitchell's wilfuldamage of the victims' property in December 2012 where she smashed most of theaccessible windows in the house with a tyre iron, smashed two of the outside lights onthe garage, and hit the letterbox with the tyre iron.16 That evidenced a propensity onthe part of Ms Mitchell to commit imprisonable offences against the victims. Whilethe majority of Ms Mitchell's previous breaches had been for remote contact such assending threatening letters or emails, she was present on the victims' property on thisoccasion. Her history of committing physical offences at the victims' address wasrelevant in discerning a pattern of behaviour.[25] As to Mr Tennet's point about the CCTV footage, the Judge noted he observedfrom the footage Ms Mitchell climbing brick stairs to the two rear sliding doors of theproperty and attempting to pull open the sliding door. She could not gain entry as thedoor was locked. I consider that evidenced an intent to enter the house. Ms Mitchellwas on the property late at night, without making her presence known to any possibleoccupants.[26] It would also be relevant to consider Ms Mitchell's explanation for herconduct, which was that she was present to see the cats. Given the other circumstancesthis explanation is not plausible. The Judge was entitled to infer intent to cause animprisonable offence inside the building. Given all the circumstances I agree with theJudge's conclusion that the element of intent to commit an imprisonable offence wasproven beyond reasonable doubt.[27] Mr Tennent makes one final point regarding the Judge's assessment of theevidence. He notes the Judge had viewed the footage in his chambers after it had beenplayed in Court. He argues this is a violation of Ms Mitchell's right to be present at16 Mitchell v R [2013] NZCA 583.trial and to present a defence.17 As Mr Burston points out, there is no evidence thatthe Judge played the CCTV footage again in his chambers. But even if he had, I donot consider that would amount to a breach of Ms Mitchell's right to be present at trialand to present a defence. Ms Mitchell was present when the CCTV footage was playedat the trial. She made submissions in respect of that footage at the trial. There was noimpropriety in the Judge viewing the footage again in his chambers any more thanreading the notes of evidence again. I regard it as entirely orthodox to do so.[28] I am not satisfied the Judge erred in his assessment of the evidence or that amiscarriage of justice has occurred. I recommend dismissing the conviction appeal.Appeal against sentence[29] Mr Tennet submits the starting point of two years, nine months' imprisonmentwas too high and too close to the maximum penalty for breach of a protection order.He argues a lower starting point was justified as Ms Mitchell knew that the protectedpersons were away and her culpability was therefore lower. Mr Tennet also argues theJudge ought to have given a discount for the factors outlined in the s 38 report.18[30] Mr Burston submits the starting point is within the available range, and makesreference to sentencing decisions of the High Court and Court of Appeal for MsMitchell's past convictions for similar offending. Those decisions can be summarisedas follows:(a) Mitchell v R [2013] NZCA 583: Ms Mitchell pleaded guilty to onecharge of intentional damage (maximum penalty 10 years'imprisonment) and breach of a protection order. Ms Mitchell hadphoned the victim and left two abusive voice messages, giving rise tobreach of the protection order. At 11.27 pm she went to the victim'saddress where the victim, his partner and three visitors were present.She smashed most of the accessible windows with the tyre iron,smashed two of the outside lights on the garage, smashed a large glass17 New Zealand Bill of Rights Act 1990, s 25(e).18 Criminal Procedure (Mentally Impaired Persons) Act 2003.panel on the front door and entered the house through the broken glass.She stood in the hallway, yelling at the victims for a while. Sheeventually left, hitting the letterbox with the tyre iron on her way out.The District Court Judge adopted a starting point of 18 months'imprisonment for breach of the order and 15 months for intentionaldamage. After considering totality, he fixed a total starting point of twoand a half years' imprisonment, uplifted by a further two months torecognise the offending was in breach of bail and to reflect the numberof previous convictions. He also discounted two months to recogniseMs Mitchell's mental health history. After guilty pleas the end sentencewas two years, one months' imprisonment. On appeal the Court ofAppeal upheld the starting points and end sentence.(b) Mitchell v R [2015] NZCA 442: Ms Mitchell was convicted of fourcharges of breaching a protection order for leaving four abusive andthreatening voice messages on the victim's phone. The District CourtJudge adopted a starting point of eight months' imprisonmentrecognising the offending was at the lower end of the scale forseriousness but recognised Ms Mitchell's history of breaches of theprotection order and sustained harassment of the protected person. TheJudge deduced four months to reflect totality leaving an end sentenceof four months' imprisonment. The sentence was imposedcumulatively on the two year, one month term of imprisonmentMs Mitchell was serving at the time. The Court found the impositionof four months imprisonment on top of the sentence given is was an"available response to Ms Mitchell's relentless and continuousbehaviour".(c) Mitchell v R [2016] NZCA 299: Ms Mitchell sent 60 letters to thecomplainant while in prison. Five letters reached him and theremaining 55 were intercepted by Corrections. One of the letterscontained threats to kill the victim. She was convicted of five chargesof breach of a protection order, 55 charges of attempted breach and onecharge of attempted threatening to kill. At the District Court the Judgeadopted a starting point of 18 months' imprisonment for the breachcharges. He uplifted by six months for the attempted breach andthreatening to kill charges. That starting point was uplifted by sixmonths to recognise her previous record of similar offending and torecognise the offending had occurred while she was in prison anddiscounted by two months to recognise her mental health issues andreduction by a further month to reflect totality. That resulted in an endsentence of two years, three months' imprisonment. On appeal theCourt of Appeal held the 18 month starting point was outside theavailable range and the culpability was closer to her 2015 offendingthan her 2013 offending, even bearing in mind the maximum penaltyfor breach of a protection order had increased from two to three years'imprisonment.19 The appropriate starting point was 12 months. TheCourt found the uplift for the other offending was justified, as was thediscount for mental health. The Court held the six month uplift foraggravating features involved an element of double counting and athree month uplift was appropriate to take into account her previouscriminal history and that the offending occurred while she was inprison. A sentence of 19 months' imprisonment imposed.[31] The burglary charge would be regarded as the lead charge for the offending onthis occasion. The Judge did not assess a starting point and then adjust it for personalaggravating circumstances — particularly an uplift referable to the repeated offendingagainst the same victim which was clearly relevant here. But that is understandable.In the 2013 decision the Court of Appeal said:20[12] The modern approach to sentencing in reaching a starting point takesinto account aggravating and mitigating features of the offending, butexcludes mitigating and aggravating features relating to the offender.21 Whilethis division will generally lead to previous convictions being considered afterthe fixing of the starting point as a personal aggravating factor, that is not arule. The culpability of this offending could not be fully assessed withouttaking into account the background history of offending by Ms Mitchellagainst the two victims. To ignore the history of the relationship would beartificial, and prevent a proper analysis of the gravity of the offending. Section19 At [44].20 Mitchell v R, above n 16.21 R v Taueki [2005] 3 NZLR 372 (CA) at [28] at [44].8(a) of the Sentencing Act 2002 requires a sentencing court to carry out thatassessment of culpability, and s 8(f) requires it to take into account the effectof the offending on the victims.[32] In the present case it was open for the Judge to assess the starting point in acumulative way, taking into account an uplift for the previous convictions against thesame victims as well as an uplift for the breach of protection order.[33] There is no tariff decision for breach of a protection order or for burglary.Decisions of the Court of Appeal offering guidance on sentencing for burglary are oflittle assistance given the particular nature of this offending. The current offending isinextricably linked to Ms Mitchell's obsession with the victims and the culpabilityfactors ordinarily present in burglary cases do not capture the kind of offending here.22In my view the factors relevant to culpability are:(a) The offending is the latest in a 13 year long campaign of intimidationand abuse of the victims.(b) The burglary took place late at night when the occupants were morelikely to be at home.(c) The offences were committed while Ms Mitchell was on bail for othersimilar offending.[34] The offending is not as serious as the offending in 2013 but more serious thanthe offending in 2015 and 2016. A starting point in the range of 12 to 18 months'imprisonment was appropriate. Given the need to emphasise that this repeatedoffending will not be tolerated, an 18 month starting point was appropriate. The twoyear, nine month starting point in my view was outside the available range even takinginto account the uplift factors, including particularly an uplift in response to therepeated and relentless offending. There was no actual entry into the home of theprotected persons, and they were overseas at the time. A sentence higher than the 2013offending is not justified.22 For example R v Nguyen CA110/01, 2 July 2001.[35] As to a discount for mental health related factors, I do not consider a discountwas available here. A mental disorder falling short of insanity may mitigate culpabilityand moral fault and reduce the sentence.23 But courts are generally reluctant to offera discount in the absence of evidence identifying the causal impact of the offender'smental health on the offending.24 The Court of Appeal in Taueki observed:25While mental illness or disorder of an offender may be a mitigating factor, thiswill not always be so: as this Court noted in R v Clarke CA225/98 3 September1998, it is proper to treat any suggestion of diminished responsibility byreason of psychiatric or behavioural disorder with caution. Obsessiveness onthe part of a former spouse or partner, who assaults and badly injures his orher former spouse or partner may in some cases be attributable to a mentalillness or disorder. Whether this is the case will be a matter for expertevidence. If it is not, it cannot be a mitigating factor. Even if it is, it should notnecessarily be seen as a mitigating factor. Indeed, an obsessive disordermanifesting in violence may require a deterrent and protective, rather than amitigated response.[36] The s 38 psychiatric report dated 9 August 2019 does not provide any evidenceof a causative link between psychiatric illness and the offending. The report recordsthat assessment "failed to identify any acute psychiatric issues" but notedMs Mitchell's background problems of post-traumatic stress disorder. The reportwriter observed "Ms Mitchell's account [of her actions at the time of the offending]does not suggest that as a result of any mental health issues she was impaired in hercapacity to reason as to the moral wrongfulness of her actions".[37] For these reasons the appeal against conviction is dismissed and the appealagainst sentence is allowed. The sentence is quashed and replaced with a sentence of18 months' imprisonment.[38] Given that the sentence I have substituted is a sentence of short duration,release conditions should be specified in accordance with s 18(1) of the Parole Act2002. Having considered the PAC report and heard from counsel I adopt theconditions proposed, with the exception to the term preventing travel south of Taupowhich is too restrictive. Eketahuna and Levin are a more appropriate limit. Theconditions will apply for a period of six months from release and will be:23 E(CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].24 See Nelson v R [2014] NZCA 121; and R v M [2008] NZCA 148.25 R v Taueki, above n 21, at [45].(a) To submit to electronic monitoring in the form of Global PositioningSystem (GPS) technology as directed by a Probation Officer in order tomonitor your compliance with any condition(s) relating to yourwhereabouts.(b) To comply with the requirements of electronic monitoring, and provideaccess to the approved residence to the Probation Officer andrepresentatives of the monitoring company, for the purpose ofmaintaining the electronic monitoring equipment as directed by theProbation Officer.(c) Not to travel south of Eketahuna on the East Coast, or Levin on theWest Coast without the prior approval of a Probation Officer.(d) Not to associate with or contact the protected persons without the priorwritten approval of a Probation Officer.(e) Attend a psychological assessment with a departmental psychologist asdirected by a Probation Officer and complete any treatment and/orcounselling as recommended by the assessment to the satisfaction of aProbation Officer.(f) To attend an assessment for drug and alcohol counselling as directed bya Probation Officer. To attend and complete any counselling, treatmentor programme as recommended by the assessment as directed by andto the satisfaction of a Probation Officer.Cooke J