MANUEL v POLICE [2019] NZHC 816

MANUEL v POLICE [2019] NZHC 816 [12 April 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-59[2019] NZHC 816BETWEEN MASEON JAI MANUELAppellantAND NEW ZEALAND POLICERespondentHearing: 8 April 2019Appearances: K J Moyer and C Ross for the AppellantC M Hallaway and B Charmley for the RespondentJudgment: 12 April 2019JUDGMENT OF GAULT JThis judgment was delivered by me on 12 April 2019 at 4:00 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Ms K J Moyer, Public Defence Service, ManukauMs C M Hallaway, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau[1] Mr Manuel pleaded guilty in the District Court to three charges of breachingrelease conditions. On 21 February 2019 Judge A M Wharepouri sentencedMr Manuel to three months' imprisonment and imposed the following specialconditions for six months:1(a) to reside at a particular Mangere address and not to move to any newresidential address without prior written approval of a probation officer;(b) to submit to electronic monitoring by GPS as directed by a probationofficer;(c) not to enter Mangere East or any other identified area as defined onmaps by a probation officer;(d) not to associate with or contact his partner without the written priorapproval of a probation officer; and(e) to attend a psychological assessment as directed by a probation officerand completing any treatment and/or counselling as recommended bythe assessment to the satisfaction of the probation officer.[2] Mr Manuel appeals on the grounds the period of imprisonment was manifestlyexcessive and the imposition of the GPS monitoring and non-association conditionswas not justified.The facts[3] On 28 November 2018 Mr Manuel was released from a term of imprisonmentimposed for injuring with intent to injure. On 30 November 2018 he was inductedinto his release-on-conditions order requirements and was made aware of his releaseconditions. He was issued with a direction not to reside at a particular address inMangere East. This was because Community Corrections and Police had safetyconcerns for Mr Manuel's partner. Mr Manuel stated he would continue to reside at1 NZ Police v Manuel [2019] NZDC 3303.this address. Mr Manuel was consequently issued a direction for daily reporting,weekdays at 12:30 pm until advised otherwise.[4] On 4 December 2018 Mr Manuel failed to report as directed (first charge).His partner texted the probation officer stating he could not attend without furtherexplanation. Between 5 and 7 December 2018 he also failed to report (second charge).He made no contact and no further explanation was provided. Between 11 and13 December 2018 he also failed to report (third charge). He stated that he hadappointments but failed to provide any verification despite numerous reminders.The sentence[5] The Judge considered that the appropriate starting point should be threemonths' imprisonment, reflecting the offending and Mr Manuel's clear premeditationto breach. The Judge then applied an uplift of one month for Mr Manuel's previousconvictions. He then reduced the sentence by 20 per cent, or one month thereabouts,for Mr Manuel's guilty pleas. The end sentence was three months' imprisonment.The Judge noted that Mr Manuel had already served the sentence.[6] In relation to the conditions of release restricting contact between Mr Manueland his partner to reduce the risk of reoffending, the Judge said Corrections hadpointed out that, while the index offending did not involve Mr Manuel's partner,he had previously assaulted her. He had been sentenced to home detention with acondition that he attend a Living Without Violence/Family Violence Men'sProgramme, which he had not done.[7] The Judge referred to information from Corrections that there were 41 familyhome reports said to include Mr Manuel and his partner, but acknowledged counsel'ssubmission that there was a problem with the accuracy of that information – many ofthe reports were linked to another address and did not involve Mr Manuel and hispartner. The Judge said counsel may have a point but he understood numerous Policesafety orders had been issued involving Mr Manual and his partner, and he hadbreached these in the past.[8] The Judge said that the Police also pointed to the fact that in their experienceMr Manuel's partner historically has not been forthcoming when making a statement.The last occurrence of family harm was on 17 December 2018 (after the relevantbreaches of release conditions) where the Police became involved after she begancutting up Mr Manuel's clothes and he was seen out on the street verbally abusing herfor doing so. On that day a Police safety order was issued and she was noted as statingthat she did not want Mr Manuel returning to the address. The Judge said that behindtheir fear the Police and Corrections believe that she appears unable to regulate herown safety and that therefore she is an identified potential victim who is at risk offurther offending.[9] Against that, the Judge referred to the affidavit evidence of Mr Manuel'spartner and her mother. His partner stated that she does not fear for her life and is notafraid of him. She would like the opportunity to reconcile with him withoutunnecessary interference, and the non-association condition in force following the17 December incident, and the one contemplated, removed. Her mother stated sheregards Mr Manuel as a son. She considers him respectful and he is not perceived byher or her family as a threat. She too wanted the condition removed.[10] The Judge expected any non-association condition to be disregarded butconsidered he needed to assess whether there were reasonable grounds for theimposition of the conditions, which at their heart have the objective of reducing therisk of further offending. The Judge said he tended to agree with Corrections that theproposed conditions are necessary and that without them they will not be able tomanage Mr Manuel safely in the community. The Judge stated that while he did notcompletely ignore the wishes of Mr Manuel's partner, the circumstances requiredgreater weight to be given to the safety concerns raised by Community Correctionsand the Police.[11] Dealing with the individual special conditions, the Judge concluded:(a) The proposed residential address had been determined appropriate byCommunity Corrections, and the Judge imposed that special condition.(b) In circumstances where Community Corrections had submitted theelectronic monitoring condition was necessary because monitoringMr Manuel's whereabouts was important and otherwise unachievable,the Judge considered the condition was appropriate.(c) The condition not to enter Mangere East or any other identified areawas said by Corrections to be necessary to ensure that Mr Manuel didnot enter the community where his partner resides. The Judge adoptedthat condition.(d) The non-association condition already existed. The Judge was satisfiedthat this condition was reasonable, justified and designed to reduce therisk of re-offending.(e) The Judge considered the condition to attend a psychologicalassessment and complete treatment and/or counselling asrecommended was fair, reasonable and important if the risk ofre-offending were to be properly addressed.Approach to appeal[12] To succeed on an appeal against sentence, the appellant must satisfy the appealcourt that there has been an error in the imposition of the sentence and that a differentsentence should be imposed.2 The Court will not, ordinarily, intervene when thesentence is within the range that can be properly justified by accepted sentencingprinciples. The Court will only intervene and substitute its own view if the sentenceis manifestly excessive or wrong in principle.3 However, the appeal court's focus ison the final sentence imposed rather than its component parts or how the ultimatesentence was reached.42 Criminal Procedure Act 2001, s 250(2) and (3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].The arguments on appeal[13] Ms Moyer, counsel for Mr Manuel, submitted that the GPS monitoring andnon-association conditions do not have a nexus to one of the purposes under s 93(3)of the Sentencing Act 2002 (the Act), are not necessary and proportionate, are not ajustified limit on Mr Manuel's rights, and are unduly onerous on Mr Manuel. Also,the Judge gave too much weight to information provided by Community Corrections.Finally, the sentence was manifestly excessive.[14] In relation to nexus, Ms Moyer submitted that the GPS monitoring and non-association conditions do not have a rational nexus to one of the purposes under s 93(3)as Mr Manuel's partner was not a victim of the index offending, which involved anincident in the Manukau District Court cells in 2018, and the earlier offence ofassaulting his partner in 2016 was too remote. She submitted a pre-disposition towardsgeneral violence was not a valid reason for a specific non-association condition withhis partner. Also, the GPS condition does not stop Mr Manuel meeting his partneraway from her address.[15] Ms Moyer submitted that the relevant context was that Mr Manuel had takensteps to arrange a safe address with his partner for when he was released from prison.Only the day before, Corrections said they did not approve it. They directedMr Manuel to reside at his mother's and brothers' house, which he considered (andwas known) to be a violent address. Ms Moyer also referred to the affidavits fromMr Manuel's partner and her mother.[16] Ms Moyer submitted the Judge took account of Mr Manuel's failure to do ananger management course, but while in custody he was not offered a rehabilitativeprogramme. This should be a focus in sentencing. Mr Manuel has recently beenreferred to an anger management programme.[17] Ms Moyer also submitted that there was no evidence to support the Judge'sreference to 41 family harm reports. She submitted this wrongly included a lot of callsrelating to the mother's violent address rather than relating to Mr Manuel and hispartner. She noted that she had requested but not received disclosure of relevantCorrections records.[18] Ms Moyer also stated that she understood that the visit to the proposedresidential address determined appropriate by Community Corrections had in fact beensome time previously. When Mr Manuel arrived there after release he was told he wasnot welcome. He had to arrange emergency housing, for which he is incurring furtherdebt to Work and Income.[19] Ms Moyer submitted that if the risk of reoffending was high as Correctionssays, Mr Manuel should already have been referred to a psychologist pursuant to thatcondition, whereas no referral has yet occurred.[20] Aside from the conditions, Ms Moyer submitted three months' imprisonmentwas manifestly excessive, although she said this was now moot as the time had beenserved. She submitted one month's imprisonment would have been more appropriate.[21] Ms Hallaway, counsel for the respondent, submitted that the Judge did not givetoo much weight to information provided by Community Corrections. She submittedthe Judge had given appropriate weight to the affidavits of Mr Manuel's partner andher mother.[22] She submitted there is a clear nexus between the GPS monitoring and non-association conditions and the purposes of s 93(3) of the Act, even though thecondition is not related to the victim of the index offending, as Mr Manuel's earlieroffence of assault against his partner in 2016 is still relevant. She submitted theoffending was parallel as both offences involved punching.[23] Given the history of Police safety orders and their breach, the previous offenceagainst Mr Manuel's partner, his failure to complete the family violence programmeand the subsequent offence of violence against another person, Ms Hallawaysubmitted both conditions are necessary and appropriate or proportionate, justifyinglimits on Mr Manuel's rights, and that neither condition is unduly onerous. The GPSmonitoring can alert Corrections if Mr Manuel goes to his partner's address.[24] Ms Hallaway submitted that three months' imprisonment was not manifestlyexcessive, although did not address this in detail given she said the point was moot.I did not consider the issue moot as the sentence may be relevant to Mr Manuel's statusin the future.5 I asked Ms Hallaway to file a brief supplementary submission, andI thank her for doing so.Legal principles[25] Section 93 of the Act relevantly provides:93 Imposition of conditions on release of offender sentenced toimprisonment for short term(1) A court that sentences an offender to a term of imprisonment of 12months or less may impose the standard conditions and any specialconditions on the offender and, if it does so, must specify when theconditions expire.(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.[26] As the Court of Appeal stated in Patterson v R, the power to impose conditionsis expressly limited only by the requirement that such conditions be designed to serveone or more of the purposes in s 93(3), meaning that the condition must exhibit arational nexus with one of those purposes.6 However, the power is also subject toimplicit limits:7(a) Any condition imposed must be tailored to the offender'scircumstances; it must address the particular risk of re-offending, orprospects of rehabilitation, or victim. The Court of Appeal referred toits earlier decision in R v Janssen:8The discretion must be exercised consistently with theprinciples in s 8 of the Sentencing Act, the first five of which5 Vae v Police [2013] NZHC 2664 at [20]-[22], cited in the respondent's supplementary submission.6 Patterson v R [2017] NZCA 66 at [15].7 At [16].8 R v Janssen [2007] NZCA 450 at [15].(those in paragraphs (a)-(e)) require that any conditionimposed relate explicably to what has been describedsuccinctly as "the precise criminality".9 And that must includean assessment of the effect of the offence on any victim: s 8(f).(b) With regard to s 8(g), (h) and (i) of the Act, the least restrictive sentenceprinciple applies to the imposition of release conditions.(c) The principle in s 7(2) of the Parole Act 2002 that guides the ParoleBoard in imposing release conditions has an implicit and helpful place,i.e. any condition imposed ought not to be more onerous or last longerthan is consistent with the safety of the community.10[27] Any given condition must exhibit a rational nexus to the s 93(3) purposes, andwhen considered with other conditions it must be reasonably necessary andproportional.11 To achieve these things is to ensure, in the present case, that theconditions are not unreasonable and so do not, without more, contravene the rights tofreedom of association and freedom of movement in ss 17 and 18 of the New ZealandBill of Rights Act 1990 (BORA).12 These BORA-protected rights are subject to suchlimits as may be demonstrably justified in a free and democratic society. Here thatjustification is found in the Act.13Decision[28] The relevant purpose of the GPS monitoring and non-association conditions isthat of reducing the risk of reoffending in s 93(3)(a). There is no suggestion of arehabilitation or reintegration purpose in s 93(3)(b) nor one of providing for thereasonable concerns of victims in s 93(3)(c) given Mr Manuel's partner wishes to havecontact with him.9 R v Meroiti CA392/99, 26 October 1999 at [6], citing R v Duffy (1994) 15 Cr App Rep (S) 677at 681.10 Patterson v R [2017] NZCA 66 at [15]-[17].11 At [18].12 By analogy with the Court of Appeal's reference in Patterson v R [2017] NZCA 66 at [18] to thepower of search in s 21 of the New Zealand Bill of Rights Act 1990.13 At [21].[29] Even though the index offence may technically be the failing to report inbreach of condition, I do not doubt that release conditions could be designed to addressthe risk of re-offending in terms of the underlying 2018 offence of injuring with intentto injure. The condition breached was imposed following release from imprisonmentfor that offence. However, it is common ground that the risk of re-offending that theconditions are designed to address is offending against Ms Manuel's partner, not thevictim of the 2018 offence (whose whereabouts are unknown).[30] In relation to the nexus between the GPS monitoring and non-associationconditions and the risk of reoffending against Mr Manuel's partner, Ms Hallawaysubmitted that Mr Manuel's earlier offence of assault against his partner in 2016 is stillrelevant. She submitted that even though the index offending involved a differentvictim, both offences involved punching. I accept both offences involve violence inthe form of punching, but the similarity really ends there. In any event, a conditionthat an offender not associate with his partner of four years when being sentenced fora non-domestic violence offence seems to stretch the rational nexus.[31] Ms Hallaway supported her submission by reference to R v Janssen, where theCourt of Appeal stated:14We remain concerned, however, that he has an abiding interest in sexualimages, which have included peripherally those of pre-pubescent boys andgirls involved in sexual activity. That a sentence of eight months imprisonmentwas imposed for that offending on a man of Mr Janssen's age speaks for itself.Though his indecencies on adolescent girls may have been on pupils of his,subject to his authority, and may now be historic, they are not to be discountedeither.[32] The Court of Appeal's statement that that the earlier offending was not to bediscounted was in the context of a special condition governing a sex offender'sunsupervised contact with children, not the separate conditions in that case relating towhere he was to live. In the event, the Court of Appeal set aside the condition as towhere he was to live by consent. The Court of Appeal was unconvinced that specialcondition was essential, considering the standard condition as to residence wouldsuffice.14 R v Janssen [2007] NZCA 450 at [27].[33] I readily accept that a condition designed to reduce the risk of reoffending mayprohibit or limit association with at risk classes of persons (such as children in the caseof R v Janssen) or with specific victims where appropriate. However, I do not considerR v Janssen is authority for a condition applying specifically to a victim of a non-indexoffence. Ms Hallaway indicated that R v Janssen was the only relevant authorityfound.[34] The Judge understandably sought to weigh the stated wishes of Mr Manuel'spartner and her mother against the concerns of Police and Corrections thatMr Manuel's partner appears unable to regulate her own safety. However, I considerthat balancing only arises if there is a rational nexus between the conditions soughtand the risk of reoffending. As the Court of Appeal has said, that is the particular riskof re-offending, focusing on the precise criminality,15 or as s 8(a) of the Act states theoffending in the particular case. The particular case here is not assault againstMr Manuel's partner. Given the approach set out by the Court of Appeal, I amreluctant to extend the scope of the special conditions on release in this case tonon-association with Mr Manuel's partner for six months on account of his prior maleassaults female offence in 2016, particularly against her wishes and those of hermother. No such condition was imposed, or available, when Mr Manuel was sentencedto home detention for that offence in 2016. As Palmer J stated in Te Whatu v Dept ofCorrections, there are few more serious breaches of the right to freedom of associationthan preventing someone from associating with their own partner.16 The position maywell have been different in terms of nexus if Mr Manuel's 2018 offence had been oneof family harm or violence against another female.[35] In relation to the GPS condition, Mr Manuel's index offending was failing toreport in breach of condition and he has a history of breaching conditions and non-compliance with Court-imposed orders and sentences. If the non-associationcondition were justified, I accept the GPS condition may also have been justified tomonitor compliance and thereby mitigate the risk of reoffending. Ms Moyer did notseparately challenge the breadth of the condition not to enter Mangere-East.15 See [26] above.16 Te Whatu v Dept of Corrections [2017] NZHC 3233, [2018] 2 NZLR 822 at [33].[36] I consider a condition that Mr Manuel complete the family violenceprogramme would have been warranted given the index breach of release conditionsfollowed a term of imprisonment imposed for injuring with intent to injure.Mr Manuel's PAC report indicated he has a propensity for violence and numerousprevious convictions for violent offending and non-compliance with Court directedsentences and orders. He was assessed as being at a high risk of reoffending andposing harm to the community, with a low prospect of compliance with directions.I note the condition to attend a psychological assessment as directed by a probationofficer and complete any treatment and/or counselling as recommended. The familyviolence programme may have been recommended. In any event, I understandMr Manuel has recently been referred to a programme.[37] Finally, I deal with the sentence of three months' imprisonment. Counsel wereunable to find any directly comparable cases, but the respondent's supplementarysubmission cited two cases involving breach of release conditions.17 While threemonths' imprisonment may seem at the upper end of the appropriate range for failingto report, I do not consider that the sentence can be considered manifestly excessivein the circumstances. There were three charges, albeit involving a failure to report ona daily basis over a 10 day period. Premeditation appears to have been a legitimateaggravating feature. Mr Manuel's relevant previous convictions warranted an upliftbefore the guilty plea discount.Result[38] The appeal is allowed to the extent that the non-association and GPSmonitoring conditions are set aside. In all other respects the sentence stands.________________________________Gault J17 Koti v R [2018] NZHC 547; and Mason v Police [2018] NZHC 3387.