ZAMANI v R [2023] NZHC 2133

ZAMANI v R [2023] NZHC 2133 [10 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000259[2023] NZHC 2133BETWEEN MISCHAN ZAMANIAppellantAND THE KINGRespondentHearing: 7 August 2023Appearances: O F Kazmierow for AppellantH F Brown for RespondentJudgment: 10 August 2023JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 10 August 2023 at 2:38 pm.Registrar/Deputy Registrar..Counsel/Solicitors:T M Cooper KC / O F Kazmierow, AucklandCrown Solicitor, Auckland[1] On 5 May 2023, Mischan Zamani was sentenced by Judge C M Ryan to11 months of home detention and 11 months of post-detention conditions afterpleading guilty to two charges of arson and one charge of intimidation/threateningbehaviour.1 The post-detention conditions required Mr Zamani, following completionof his sentence of home detention:(a) to attend assessments for counselling and other treatments andprogrammes as directed by his probation officer, and to complete thoseprogrammes to the probation officer's satisfaction;(b) not to associate with the victims of his offending without the writtenpermission of his probation officer; and(c) to attend and complete an anger management programme if consideredsuitable and necessary by, and to the satisfaction of, his probationofficer.[2] Mr Zamani appeals his sentence but only with respect to the post-detentionconditions. He says that the conditions are disproportionately restrictive in light of hisrisks of offending and immigration status and that the Court should not have beensatisfied that the special post-detention conditions were necessary. The Crownopposes the appeal.[3] Mr Zamani was born in Germany in 1992 of Iranian parents. He moved toAustralia in 2012 to pursue a dream of becoming an Olympic swimmer. He moved toNew Zealand in January 2020 to set up a fast food franchise but that did not eventuatefor reasons associated with the COVID-19 pandemic.The offending[4] Mr Zamani's then partner was involved in an employment dispute with heremployers, the first and second victims, over various matters, including the use of aVolkswagen motor vehicle owned by those victims. On 13 October 2020, Mr Zamani1 R v Zamani [2023] NZDC 12345.accompanied his partner to a meeting with the first and second victims, whereMr Zamani became angry and aggressive towards the victims. On 22 and 23 October2020, Mr Zamani met with Washington Sooa and Braydan Previtera and engaged themto damage or destroy the Volkswagen and the victim's second vehicle, a MercedesBenz. Mr Zamani told Mr Sooa and Mr Previtera where the victims lived and workedand what he wanted done to the vehicles.2[5] The offending took place over a period of four days.[6] At around 11:13 pm on 23 October 2020, Mr Sooa and Mr Previtera drove tothe first and second victims' home in Hillsborough, where the third victim's MitsubishiOutlander vehicle was parked in the driveway. The third victim was a flatmate of thefirst and second victims. Mr Sooa and Mr Previtera poured an accelerant into the panelbetween the windscreen and the bonnet of the third victim's vehicle. They smashedthe windscreen, set the accelerant on fire and departed the scene. The car, which hadbeen targeted in error, sustained moderate fire damage and charring.[7] At around 10:43 pm on 25 October 2020, Mr Previtera drove with associatesto the victims' Hillsborough home armed with a shotgun, following Mr Zamani'sinstructions to confront the first victim and threaten him. Mr Zamani did not know ofthe shotgun or Mr Previtera's intention to use it. The shotgun was discharged threetimes. Two rounds went into the bonnet and windscreen of the Mercedes Benz, whichwas parked in the driveway. The third round went into the front door of the home,where the victims and three other tenants of the address were sleeping. Mr Previteraand his associates drove away. The Mercedes Benz sustained considerable damage tothe bonnet and windscreen. A wooden pillar and the front door of the house weredamaged.[8] At around 9:50 pm on 26 October 2020, Mr Sooa drove to the Hillsboroughhome. He threw a glass bottle filled with accelerant against the windscreen of theVolkswagen, which was parked near the home. He ignited the accelerant. The vehicle2 Mr Zamani says these meetings occurred very soon after he met with a neighbour who introducedhim to someone who said he could deal with his problems. However, that meeting was not partof the Summary of Facts that was the basis of Mr Zamani's guilty pleas.was engulfed in flames and sustained irreparable damage. Mr Sooa watched theincident from his vehicle before driving away.Sentencing decision[9] Judge Ryan's decision was careful, considered and of some length – 146paragraphs. In this summary, I focus on those aspects of the decision relevant toMr Zamani's appeal against the post sentence conditions.[10] The Judge set out the offending to which Mr Zamani had pleaded guilty andset out in some detail the considerable impacts of the offending on the three victims,in both financial terms – for which Mr Zamani was incapable of providing reparation,and on the victims' well-being. The Judge noted that Mr Zamani had provided a letterof apology in which he had said he had "snapped in the moment" when his then partnerhad been upset. The Judge considered that Mr Zamani had minimised what waspersistent, premeditated behaviour. The Judge noted that Mr Zamani had said he hadturned his life around since the offending and had said, "Now after, I will takeresponsibility and be held accountable for my wrong-doing" and wanted to live a goodlife.3[11] The Judge then observed:[50] There was no acknowledgement of the actual offending, or of the painand suffering it has caused the victims, particularly the one who had nothingto do with the employment dispute yet whose car got burnt. There is noapology and no offer of reparation. The letter is insular and introspective. Ittries to persuade me that Mr Zamani has changed his life for the better ,without mentioning how he has dealt with the offending and the victims.[12] The Judge noted that she had received a large number of letters but that manywere from people from the Church which Mr Zamani had begun to attend and whohad known Mr Zamani for nine months or less, although some had known him forlonger. The Judge noted that most of the letters said the same thing – that Mr Zamanihad embraced the church way of life, had actively participated and done good things3 At [43] – [49].in the church, was a good man and deserved a chance. The Judge observed that issuesof repentance and references to the victim were largely absent.4[13] The Judge then stated:[52] The Court might have been better assisted if there had perhaps beensome tangible suggestions as to what might be done to support Mr Zamani,for example a fund raiser to raise money for the victims, developing a safetyplan with him, helping him with anger management to make sure that he doesnot succumb to the temptation to cause damage to others' property again whenhe feels slighted and so on.[14] Even so, the Judge noted the large number of references that had come beforeher, mainly from Mr Zamani's church, and accepted that Mr Zamani had been activelyinvolved with them "over the last little while" and accepted and took into account thatmost of them urged that Mr Zamani be given a second chance.5[15] The Judge recorded that she had received a letter from a person who describedhimself as an "anger expert" and who said Mr Zamani had completed 11 therapysessions with him. The Judge noted the expert had described Mr Zamani as"invariably open, enthusiastic and motivated in the sessions to better himself andcontribute to the learning of others. He is always an asset to have in the group sessions.He appears committed to addressing and changing his part in his past offending."6 TheJudge then observed that the expert did not specify how, "unlike anger managementproviders known to the Court."7[16] Even so, the Judge accepted that the 11 individual anger management therapysessions "can count" as rehabilitation which has sprung from a desire to right thewrong and to ensure that the offending does not happen again. The Judge observedthat anger management providers usually ran courses between 16 and 20 weeks butthose were usually for defendants who attended in groups. The Judge accepted thatthose who do anger management on a one-on-one basis tended to do fewer sessions.4 At [51].5 At [56].6 At [57].7 At [58].The Judge noted that the expert said he was chairperson of a specialist domesticviolence agency and said:I cannot see why he does not have speciality in anger management so I accepthe will have assisted Mr Zamani in dealing with that key issue.[17] The Judge summarised relevant aspects of the pre-sentence report. The Judgenoted:[66] [Mr Zamani] expressed a level of remorse but the report writerexpressed concern that his remorse "is only evident because due the offendingis at the higher end of the tariffs available to the courts", in other words, onlybecause he was trying to reduce a likely prison sentence. I have no idea whyMr Zamani is expressing remorse and do not intend to guess. However, theremorse is not to the victims. It is to the Court and to the probation officer. Isuppose it is better than no remorse at all. However, in fairness, Mr Zamaniexpresses more remorse in the cultural report, to which I will return.[18] In considering the cultural report, the Judge set out various passages of theguidance of the Supreme Court in Berkland v R,8 and noted that it went without sayingthat formal reports under s 27 of the Sentencing Act must be case and offender focusedand that, as the Supreme Court had held, generalised statements and templates wereof no value and that succinct summaries focused on the experience of the offender'sown community were important. The Judge observed that in the present case, theinformation provided to the cultural report writer had been self-reported and that no-one from Mr Zamani's community in Germany, Australia or the church community inNew Zealand had been involved.9[19] The Judge noted that neither she nor the report writer knew the real story aboutMr Zamani's mother – whom, Mr Zamani had said, had abused him physically andpsychologically. Nor did they know whether there had been poverty in the household,or the extent to which racism, events in Iran or the difficulties of learning a newlanguage in Germany and Australia may have been a factor in Mr Zamani's life. TheJudge recorded that she only had Mr Zamani's views on these matters.10 However,the Judge said she would not ignore those matters entirely.118 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.9 R v Zamani, above n 1, at [80] – [81].10 At [82] – [84].11 At [85].[20] The Judge recorded that Mr Zamani had told the report writer that therelationship with his former partner had been beset with struggles from the beginningand were tense when they moved to New Zealand and COVID-19 hit. The Judge alsorecorded that Mr Zamani's partner began to experience what Mr Zamani described asintense bullying and intimidation from her employers. The Judge observed:12Those are his words. I have no idea whether that is the case. What I cansurmise though is that if the relationship was particularly strained, thenMr Zamani, overcompensating for that stress and strain, may have stepped into show that he was "the man" who could resolve her problems in a way hemight not have done if the relationship was not in difficulties.[21] The Judge noted that the report writer had recorded Mr Zamani's expressionsof remorse for his offending. The Judge observed:13For the first time in all the documents, he acknowledges the real possibilitythat the offending might have ended in serious injury or death. Clearly indiscussing matters with [the report writer] in April of this year, that emerged.Better late than never is my observation.[22] In considering the Crown's submissions on relevant purposes of sentencing –which were deterrence, denunciation and holding Mr Zamani to account – the Judgeadded the principle of providing a sense of responsibility for and acknowledgement ofthe harm, to provide for the interests of the victims, to provide where possiblereparation for the harm done, to assist in the rehabilitation and re-integration of theoffender and to protect the community from him.14[23] In considering the Crown's submissions on relevant principles of sentencing –which were the gravity of the offending and the seriousness of the type of offence –the Judge added the need to impose the least restrictive outcome appropriate in thecircumstances and to take into account Mr Zamani's personal circumstances andbackground.1512 At [89].13 At [90].14 At [101]. The Judge referred in this paragraph to the principles of sentencing. However, it isapparent that the Judge was intending to refer to the purposes of sentencing set out in s 7 of theSentencing Act.15 At [102]. The Judge referred in this paragraph to the purposes of sentencing. However, it isapparent that the Judge was intending to refer to the principles of sentencing set out in s 8 of theSentencing Act.[24] In setting the sentence the Judge took as the lead offence the burning of theVolkswagen vehicle given it was completely destroyed, and given it was the focus onMr Zamani's attention. The Judge observed that Mr Zamani was the mastermindbehind that offending and that it was motivated by revenge and retribution. The Judgeconsidered that there was a high risk of harm in respect of that offence, that there wasclearly premeditation and that it had resulted in loss and harm of both a financial andpsychological nature to the victims.16[25] The Judge adopted a starting point of three and a half years, imposed a oneyear uplift for the damage to the third victim's vehicle, and a further uplift ofone month for the intimidation charge arising from Mr Previtera's shootings. Thisresulted in a final starting point of five years and seven months (55 months).17[26] The Judge gave a 20 per cent discount for Mr Zamani's guilty plea, and 10 percent in recognition of his previous good character and community work, although theJudge stated that she would have appreciated something more targeted towards thevictims to show contrition.18 The Judge then gave a further 10 per cent discount forMr Zamani's time under restrictive bail conditions, three months or five per cent forMr Zamani's efforts at rehabilitation and a final 15 per cent discount based onMr Zamani's cultural report. The Judge ended with a final sentence of one year,nine months and three weeks (21 months and three weeks).19[27] In considering whether a sentence other than imprisonment should be imposed,the Judge observed that, on the one hand, "this was nasty, spiteful, bullying offendingwith the risk of serious harm". The Judge noted that people could have been hurt; theoffending had not been spontaneous but planned and involved procuring other peopleand Mr Zamani had shown no immediate remorse. On the other hand, the Judgeacknowledged that Mr Zamani had no prior convictions, had done an angermanagement course, which, in the Judge's view, went "a considerable way topreventing any more of this nonsense", and had support from his church community.The Judge noted that Mr Sooa and Mr Previtera had received sentences of less than16 At [123] – [125].17 At [126] – [129].18 At [130] – [131].19 At [132] – [133].imprisonment but observed that Mr Zamani, as the mastermind of the offending, stoodwith the highest sentence.20[28] The Judge imposed the sentence as follows:[136] I am, therefore, going to deal with [Mr Zamani] by imposing homedetention on him. The home detention is going to be 11 months and 11 monthsof post-detention conditions.[137] I accept that during that time NZIS may well intervene and Mr Zamanimay leave the country either voluntarily or escorted. I still intend to impose asentence of home detention which I will monitor. If Mr Zamani beaches thesentence of home detention I am going to jail him.[138] His home detention sentence is as follows. He will serve it at theresidence of He will attend an assessment for any counselling, treatmentor programme as directed by a probation officer. He will attend and completeany counselling, treatment or programme as recommended by the assessmentas directed by and to the satisfaction of probation officer.[139] He is not to associate or contact his victims directly or indirectlywithout the prior written approval of a probation officer. That means noFacebook posting or stalking, that means no posting messages to them, letters,putting things in their letterbox because he knows where they live, textingthem, or sending others to do it. The last time you sent other people to dosomething to them, Mr Zamani, that ended in disaster. Just do not. So thereis no contact with that at all.[140] If there is an apology letter written to the three of them, they wouldappreciate that, and if one is written, it can go through the probation officer topolice.[141] Mr Zamani, you are to attend and complete an appropriate angermanagement programme if considered suitable and necessary given the oneyou have completed and to the satisfaction of the probation officer.[142] You are to complete any other therapy, counselling programme asrecommended and that may include grief counselling because it may assistyou.[143] Once you have completed your 11 months of home detention, then ifyou are still in New Zealand you will have 11 months of post-detentionconditions which will be to do all those things I have mentioned, except nowwithout the ankle bracelet.20 At [134] – [135].[29] The Judge concluded by declining to make any orders for reparation, remitting$360 worth of fines against Mr Zamani and directing that his sentence of homedetention would be judicially monitored with three-monthly reports.21Approach on appeal[30] An appeal against a sentence is an appeal against a discretion. Section 250(2)of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow anappeal against sentence if it is satisfied that, for any reason, there was an error in thesentence and that a different sentence should be imposed. In any other case, it mustdismiss the appeal.22 Section 251 of the CPA provides that, if a Court allows an appealagainst sentence, it must either set it aside and impose another sentence as appropriate,vary the sentence or any part of it, or remit the sentence back to the Court whichoriginally imposed it.[31] It is well-established that an appeal against sentence will be successful only ifthe appellant can point to an error, either intrinsic to the Judge's reasoning, or as aresult of materials submitted on the appeal, that vitiates the lower Court's sentencingdiscretion.23 Unless there is a material error in the end sentence, the Court will notintervene.24 There will be a material error if the end sentence is manifestly excessiveor wrong in principle.25 In general, the focus is on whether the end sentence is withinthe available range, rather than the process by which the sentence was reached.26Accordingly, mere tinkering is not permitted.27 However, there may be cases wherethere has been an error that requires correction, even if the sentence imposed is withinrange.2821 At [144] – [146].22 Criminal Procedure Act 2011, s 250(3).23 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA169 at [14] and [29]–[30] .24 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 23, at [14].25 Tamihana v R, above n 23, at [14].26 Tutakangahau v R , above n 23, at [36]; Tamihana v R , above n 23, at [14].27 Maihi v R [2013] NZCA 69 at [21].28 Tutakangahau v R, above n 23, at [36].Relevant provisions of Sentencing Act 2002[32] Section 80N of the Sentencing Act 2002 relevantly provides:(2) If a court sentences an offender to a term of home detention of morethan 6 months,—(a) the standard post-detention conditions apply to the offenderfor a period of 12 months from the detention end date, unlessthe court specifies a different period; and sections 80Q, 80R,80U, and 80ZG apply as if the standard conditions had beenimposed by order of the court; and(b) the court may, at the same time, impose any special post-detention conditions on the offender and, if it does so, mustspecify when the conditions expire.(3) The court may specify that post-detention conditions imposed underthis section expire on a date that is a specified period of at least 6months, but no more than 12 months, from the detention end date.(4) If the court imposes special post-detention conditions on the offender,the special post-detention conditions may apply for as long as, but notlonger than, the standard post-detention conditions that apply to theoffender.[33] Section 80O sets out the standard post-detention conditions. They relevantlyinclude:(ea) the offender may not leave New Zealand or attempt to leave NewZealand without the prior written consent of a probation officer:(g) the offender must not associate with any specified person, or withpersons of any specified class, with whom the probation officer has,in writing, directed the offender not to associate:(h) the offender must take part in a rehabilitative and reintegrative needsassessment if and when directed to do so by a probation officer.[34] Section 80P sets out the special post-detention conditions which a Court mayimpose. These conditions may only be imposed if satisfied that there is a significantrisk of further offending by the offender, that standard conditions alone would notadequately reduce that risk and that the imposition of special conditions would reducethe likelihood of further offending by the offender through rehabilitation andreintegration of the offender.29 The special post-detention conditions which the Courtmay impose are:(a) any conditions that the court thinks fit relating to the offender's placeof residence (which may include a condition that the offender notmove residence), finances, or earnings:(b) conditions requiring the offender to take prescription medication:(ba) conditions prohibiting the offender from doing 1 or more of thefollowing:(i) using (as defined in section 4(1)) a controlled drug:(ii) using a psychoactive substance:(iii) consuming alcohol:(c) conditions relating to a programme:(d) any other conditions that the court thinks fit to reduce the likelihoodof further offending by the offender.[35] Section 80R provides that an offender who is subject to post-detentionconditions imposed under s 80N, or a probation officer, may apply for an order forthe suspension, variation, or discharge of any condition. Section 80R(3) providesthat the Court may, if it thinks fit, discharge a condition and substitute any othercondition described in s 80N.Submissions for Mr Zamani[36] Ms Kazmierow, counsel for Mr Zamani, submits that the Judge erred inimposing the post-detention conditions. She says that to impose restrictions andconditions on Mr Zamani for an effective period of 22 months was not the leastrestrictive outcome appropriate in the circumstances. Ms Kazmierow submits that thiswas disproportionately severe in Mr Zamani's circumstances and that the special post-detention condition related to treatment for anger management should not have beenimposed because the s 80P(1) factors were not satisfied.[37] Ms Kazmierow says that the post-detention conditions are disproportionatelyrestrictive on Mr Zamani for three reasons. First, Mr Zamani has no previous29 Sentencing Act 2002, s 80P(1).convictions, and his offending took place in the circumstances of an unhealthyrelationship and poor emotional state without the supportive community of the churchhe now belongs to. Secondly, Mr Zamani has already completed several individualanger management counselling sessions to address the role of anger and frustration inhis offending. She says that given Mr Zamani will be on home detention for 11 monthsduring which he will be assessed for anger management programmes already, thefurther rehabilitation that has been ordered is onerous. Thirdly, Mr Zamani is liablefor deportation, although no deportation order has been served on him. The post-detention conditions will prevent Mr Zamani from being able to voluntarily leaveNew Zealand in advance of a deportation order being made. That would deprive himof the opportunity to return to New Zealand because persons formally deported mustbe prohibited from returning for a finite or indefinite term.[38] Ms Kazmierow says that Mr Zamani would like to return back to Germany,and that facilitating his sooner return would assist his victims and the widercommunity given he is unable to be a financially contributing member of society here.[39] Ms Kazmierow further submits that the s 80P(1) factors necessary to justifythe imposition of special post-detention conditions have not been satisfied. She pointsout that the Judge's decision did not expressly refer to these factors when imposingthe special condition requiring anger management counselling, and says the Judge'ssentencing notes do not establish any implied findings about these factors.Ms Kazmierow says that the Judge's sentencing notes suggest the opposite, given theJudge's acknowledgment that Mr Zamani's anger management counselling went "aconsiderable way" to reducing his risk of reoffending in the future. Ms Kazmierowsays that, given Mr Zamani's completion of anger management counselling already,which would be maintained throughout his home detention sentence, a further term of11 months of anger management counselling is excessive. It goes beyond what maybe assumed about his risk given his lack of previous convictions, efforts towardsrehabilitation and displays of remorse.Submissions for the Crown[40] Ms Brown, for the Crown, submits that, because s 80N(2) of the SentencingAct provides, for a term of home detention of more than six months, standard post-sentence conditions apply for 12 months from the end of detention unless the Courtspecifies a different period. Mr Zamani's appeal comes down to an argument that noperiod of post-detention conditions is required because there is no rehabilitative needfor these conditions, and because such conditions should not be imposed in light of hisimmigration status.[41] Ms Brown accepts that Mr Zamani has completed some counselling sessions,including sessions for anger management, but emphasises that the offending was acampaign of harassment and intimidation against the victims. She says thatMr Zamani's underlying reason for the offending remains unclear, especially since thiswas not addressed in his pre-sentencing or cultural reports, and that in thesecircumstances it was entirely open to the Judge to consider that a period of post-detention conditions under s 80N(2) were necessary given the seriousness of theoffending and the apparent lack of reasoning for it.[42] Ms Brown further says that the immigration consequences for Mr Zamani areentirely speculative: there is no evidence before the Court as to if or when a deportationorder would be served, and whether that would be during the course of his homedetention, during his post-detention conditions period or afterwards. She says that theJudge determined that additional rehabilitation was appropriate and in the interest ofthe community and that if the post-detention conditions are removed, Mr Zamani maybe able to leave the country prior to a deportation order being issued and then returnin the future without ever having to complete the rehabilitation he has been deemed torequire.Analysis[43] On the face of Mr Zamani's appeal, the appeal raises two questions:(a) Did the Judge err in applying the standard post-detention conditions for11 months?(b) Did the Judge err in applying the special post-detention conditions foranger management and for treatment programmes deemed necessarygenerally?[44] However, in discussion with Ms Kazmierow at the hearing it became apparentthat Mr Zamani's essential position is no post-detention conditions should have beenimposed because they would prevent him leaving New Zealand voluntarily as soon ashis period of home detention has been completed.[45] Before addressing that proposition, I consider it appropriate to considerseparately the questions in [43(a) and (b)].Did the Judge err in applying the standard post-detention conditions?[46] In respect of the standard post-detention conditions, s 80N(2) is clear thatstandard conditions apply for twelve months, unless a Judge specifies otherwise.Judge Ryan explicitly exercised her discretion and reduced the term of application to11 months.[47] As the Court of Appeal stated in R v Janssen, any condition is required to servethe purposes of sentencing in s 7(1) of the Sentencing Act.30 In Robinson v Police,Osborne J accepted that this principle was applicable to standard release conditionsand was satisfied that the standard conditions imposed in that case could be seen tomeet particular purposes of sentencing relevant in that case.31 Osborne J also notedthat there could be no argument that the Judge was not within his discretion to imposestandard post-detention conditions given the terms of the Sentencing Act.32[48] I take the same approach here. It was well within the Judge's discretion toimpose standard post-detention conditions, given the terms of the Sentencing Act.There can be little doubt that the conditions are directly relevant to the purposes ofsentencing specifically found by the Judge to be relevant. The fact the Judgespecifically referenced the purposes of assisting in the rehabilitation and re-integration30 R v Janssen [2007] NZCA 450 at [14].31 Robinson v Police [2022] NZHC 442 at [30] – [31].32 At [32].of the offender and protecting the community makes it clear that the Judge consideredthat Mr Zamani had some distance to go with his rehabilitation and re-integration andthat he might still pose a risk to the community.Did the Judge err in applying the special post-detention conditions?[49] The same conclusion is apposite to the second question: whether the Judgeerred in applying the special post-detention conditions. It is clear from the carefuldiscussion of Mr Zamani's offending and background and the Judge's considerationof the information that he had provided, as well as the specific reference to thosepurposes, that the Judge was of the view that Mr Zamani had work to do with respectto rehabilitation and re-integration and that he might still pose a risk to the community.[50] As Ms Kazmierow accepts, the condition directing Mr Zamani not to associateor contact his victims directly or indirectly without the prior written approval of aprobation officer is included within the standard post-detention conditions set out ins 80O. Whether the condition to complete any other therapy or counsellingprogramme as recommended is also included within the standard post-detentionconditions is more debatable. Section 80O(h) states that the offender must take partin a rehabilitative and reintegrative needs assessment if and when directed to do so bya probation officer. However, it is principally the requirement for Mr Zamani to attendand complete an appropriate anger management programme to which Mr Zamaniobjects.[51] However, that objection does not take account of the additional words includedin the condition: "if considered suitable and necessary given the [anger managementcourse] you have completed and to the satisfaction of the probation officer". Thosewords make it clear that the Judge was well aware that Mr Zamani had undertaken11 anger management sessions and left it to the probation officer to consider whethera further anger management course would be suitable and necessary.[52] Nonetheless, it is also clear from the Judge's discussion of the anger expert'sletter that the Judge had questions about the effectiveness of the earlier sessions. Shehad noted that the expert had not explained how Mr Zamani had shown hiscommitment to addressing and changing his part in his past offending. The Judge alsomade clear her concern that it was not until April this year, in the context of the culturalreport, that Mr Zamani had acknowledged the possibility that his offending might haveended in serious injury or death.33 While the Judge said the 11 sessions Mr Zamanihad attended went "a considerable way to preventing any more of this nonsense", it isapparent that the Judge was not convinced that Mr Zamani had adequately addressedhis anger management issues and there remained a risk of further offending.[53] I consider it clearly implicit in the Judge's sentencing notes that, in setting theanger management condition, the Judge was satisfied that requirements of s 80P forimposing special post-detention conditions had been satisfied. That is, that there wasa significant risk of further offending by Mr Zamani, that standard conditions alonewould not adequately reduce that risk and that the imposition of special conditionswould reduce the likelihood of further offending by Mr Zamani through hisrehabilitation and reintegration.[54] For these reasons, I consider that there was an appropriate basis on which theJudge could impose the anger management condition and, if considered a specialcondition, the condition to complete any other therapy or counselling programme asrecommended.[55] I am satisfied, therefore, that Judge Ryan made no error in requiring Mr Zamanito be subject to standard post-detention conditions for 11 months or in requiringMr Zamani, within that 11 month period:(a) to undertake an anger management course if considered suitable andnecessary by his probation officer; and(b) to complete any other therapy, counselling programme asrecommended.33 Ms Kazmierow informed the Court that she was instructed that Mr Zamani had wanted to formallyexpress his remorse for his offending much earlier but has been frustrated by delays on the part ofthe Crown. Whether or not that is correct, I see no basis from departing from Judge Ryan'sanalysis.Does the fact Mr Zamani wishes to leave New Zealand after home detention make thepost-detention conditions unnecessarily restrictive or otherwise inappropriate?[56] Ms Kazmierow submits that, unless all the post-sentence conditions areremoved, Mr Zamani will be required to remain in New Zealand for another 11 monthsafter his sentence of home detention has been completed unless he has been deported.Ms Kazmierow submits that this is because there is no power in the Sentencing Actsimply to cancel post-sentence conditions. She considers that s 80R(3) is limited tosituations where the Court cancels a condition and substitutes another conditionprovided for in s 80N. Ms Brown agrees but suggests that, even if Mr Zamani issubject to post-detention conditions, it is implicit in s 80O(ea) that he may bepermitted to leave New Zealand if he obtains the permission of a probation officer.[57] In response to those submissions, I make the following points.[58] First, it is by no means certain that the scenario Mr Zamani fears will ever arise.There is every chance he will be served with a deportation order before his period ofhome detention is completed. In that case, he will have to leave New Zealand inaccordance with that order, as Judge Ryan recognised at [137] of her judgment.[59] Secondly, if Mr Zamani is not deported before his period of home detention iscompleted, this Court has no way of knowing that Mr Zamani will follow through onhis current intention to leave New Zealand when the sentence of home detention hasended. He may change his mind. It is not impossible, even if it is unlikely, that he isable to obtain a visa that enables him to remain. In that circumstance, the Court cannotcompel him to leave. And he will be left unsupervised and without conditions whichthe District Court considered were appropriate in the circumstances of his offending.[60] Thirdly, while I accept that it is unlikely a probation officer would considerthey had the power under s 80O(ea) to allow Mr Zamani simply to depart New Zealandwhile he is subject to post-detention conditions, I do not consider that a Judge's powersunder s 80R(3) are as constrained as counsel consider. While it will be for the Courtat the time to decide whether it has the power under the section to discharge all ofMr Zamani's post-detention conditions, I note that the section is framed broadly andconfers a wide discretion on the Court. It seems to me that, if the Court "thinks fit",it may discharge a condition and, if it "thinks fit", it may substitute a condition for anycondition it discharges. Furthermore, it is not obvious what purpose would beachieved by limiting the power to discharge a condition only to situations whereanother condition could be substituted.[61] For these reasons, I do not consider it appropriate to interfere withJudge Ryan's sentence by removing the post-sentence conditions. I do not considerthat these conditions would necessarily prevent Mr Zamani returning to Germany afterthe end of his sentence of home detention if he has not already been deported.Judge Ryan has decided that Mr Zamani is to be subject to judicial monitoring everythree months. If it is an option for Mr Zamani to return voluntarily to Germany at theend of his sentence of home detention, I consider that it will be open to Mr Zamani toapply for a discharge of the post-sentence conditions.Result[62] For all these reasons, I dismiss Mr Zamani's appeal.____________________G J van Bohemen J