WOODS v NEW ZEALAND POLICE [2019] NZCA 446

WOODS v NEW ZEALAND POLICE [2019] NZCA 446 [20 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA572/2018[2019] NZCA 446BETWEEN QUENTIN DYLAN WOODSAppellantAND NEW ZEALAND POLICERespondentCA108/2019BETWEEN QUENTIN DYLAN WOODSAppellantAND NEW ZEALAND POLICERespondentHearing: 4 April 2019Court: Williams, Simon France and Toogood JJCounsel: M Starling and N R Wham for AppellantV McCall for RespondentJudgment: 20 September 2019 at 10.00 amJUDGMENT OF THE COURTA The application for leave to bring the second appeals is granted.B There is a right of appeal under s 244 of the Criminal Procedure Act 2011against any decision on an application under s 94 of the Sentencing Act 2002to vary a release condition imposed under s 93(1) of that Act.C The appeals are dismissed.____________________________________________________________________REASONSSimon France and Toogood JJ [1]Williams J (dissenting) [76]SIMON FRANCE AND TOOGOOD JJ(Given by Toogood J)Table of ContentsPara NoIntroduction ............................................................................................................. [1]CA572/2018 .............................................................................................................. [6]The offending......................................................................................................... [6]The original special release conditions ................................................................ [8]The variation application ...................................................................................... [9]The appeal to the High Court ............................................................................. [11]CA108/2019 ............................................................................................................ [13]The offending....................................................................................................... [13]The District Court ............................................................................................... [14]The High Court ................................................................................................... [16]These appeals ......................................................................................................... [17]Leave to bring second appeals ............................................................................ [17]Preliminary question in CA572/2018 .................................................................. [19]Is there a right of appeal from a decision on an application under s 94(1)of the Sentencing Act to vary release conditions imposed on sentencing? ......... [19]The terms of the District Court's special release conditions ............................. [28]The legislative scheme for the imposition of release conditions followinga short term of imprisonment .............................................................................. [29]The appellant's argument .................................................................................... [38]The questions for decision .................................................................................... [44]The nature of a sentencing court's power to impose special conditions .......... [47]Residential restrictions ........................................................................................ [55]Intensive monitoring............................................................................................ [67]Conclusions ............................................................................................................ [74]Result ...................................................................................................................... [75]Introduction[1] When sentencing an offender to imprisonment for a period of less than24 months, a court may impose standard and special conditions to apply uponthe offender's release from prison.1 The standard conditions are adopted from s 14(1)1 Sentencing Act 2002, s 93(2).of the Parole Act 2002 (PA).2 The sentencing court may also impose special releaseconditions designed to:3(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration ofthe offender; or(c) provide for the reasonable concerns of victims of the offender.[2] The special conditions may include, without limitation, conditions of a kinddescribed in s 15(3) of the PA, with the important exception that the conditions maynot include a residential restriction condition referred to in s 15(3)(ab) of that Act.4[3] Quentin Dylan Woods has made two applications for leave to bring secondappeals against sentences imposed in the District Court which, he says,5 includeresidential restriction conditions that the court was prohibited from imposing.[4] In responding to the leave application and proposed appeal in CA572/2018,the Crown has raised a preliminary question. It argues that, because the challengedspecial condition was imposed by the District Court on an application by a probationofficer under s 94(1) of the Sentencing Act 2002 (SA) to vary the release conditionimposed at the time of sentencing, Mr Woods did not have an available right of appealto the High Court under s 244(1) of the Criminal Procedure Act 2011 (the CPA) againstthe variation. We address that issue below.[5] Before addressing the relevant questions of law which lie at the heart ofthe proposed appeals, it is convenient to set out the background offending andthe procedural history of the two appeals. The nature of the offending helps to explainwhy the District Court Judges considered it appropriate to impose standard and special2 Section 93(2B).3 Section 93(3).4 Section 93(2B).5 Criminal Procedure Act 2011, s 253.release conditions to apply following the short sentences of imprisonment imposed ineach case.CA572/2018The offending[6] On 19 April 2018, Mr Woods appeared before Judge Rowe in the District Courtat Palmerston North for sentence, having pleaded guilty to two charges of commonassault, one of threatening behaviour and one of possession of an offensive weapon.6The assault and threatening charges arose from unprovoked attacks on unsuspectingmembers of the public that the Judge described as cowardly and unacceptable.[7] Judge Rowe had a pre-sentence report that described Mr Woods, then agedonly 18, as "mentally, cognitively and emotionally unprepared for a safe andmeaningful life in the community".7 Mr Woods has had an extremely troubled life,having first been taken into welfare care aged two. The report writer suggested thatMr Woods needed to be in a contained environment for the duration of what wouldlikely be complex treatment to ensure the intended rehabilitative result, and to reducethe likelihood of harm to his victims and other members of the public.The original special release conditions[8] Accepting the recommendations, Judge Rowe sentenced Mr Woods to a totalof eight months' imprisonment. On one of the assault charges, the Judge imposedspecial release conditions that included attending psychological, alcohol and drugassessment and treatment; attending other counselling and programmes as directed bya probation officer; the imposition of electronic monitoring and a condition that hewas not to enter Palmerston North City without the written consent of a probationofficer.6 Police v Woods [2018] NZDC 7784 [Judge Rowe sentencing].7 At [12].The variation application[9] Mr Starling informed us that, while serving the sentence imposed byJudge Rowe, Mr Woods was transferred to the Whanganui Prison At Risk Unit.He had had psychotic episodes while in prison and the Department of Correctionsassessed him as having a very high risk of re-offending due to his mental health andbehavioural issues. Apparently, Mr Woods was waitlisted for a bed at the ForensicIn-patient Mental Health Unit at Kenepuru Hospital, Porirua, but a bed was notavailable when his sentence was due to end on 20 June 2018. It was then thata probation officer made an application under s 94 of the SA to the District Court atChristchurch to vary the special release conditions. The variation sought wasthe addition of conditions that would require Mr Woods to reside for a short-termperiod at a facility in Christchurch providing supported accommodation andprogrammes designed to assist the residents to reintegrate with the community.[10] In a Minute dated 19 June 2018,8 the day before Mr Woods was due to bereleased, Judge Farish declined to impose a condition, requested by the probationofficer, that would have required Mr Woods, between the hours of 8.00 am and8.00 pm daily, to be in the care of an agency and accompanied and monitored byan agency staff member at all times, unless he had the prior written approval ofa probation officer.9 The Judge imposed additional conditions, however, that requiredMr Woods to:10(a) undertake, engage in and complete a reintegration programmeadministered by a programme provider between the hours of 8.00 amand 8.00 pm each day of the week, as approved by a probation officer,and abide by the rules of the programme to the satisfaction ofthe probation officer;8 Police v Woods DC Christchurch CRI-2018-054-000288, 19 June 2018 [Judge Farish variation].9 At [9].10 At [11].(b) comply with the requirements of electronic monitoring; and(c) stay at his approved residence overnight between the hours of 8.00 pmand 8.00 am.The appeal to the High Court[11] Mr Woods appealed to the High Court against the imposition of the additionalconditions. It was argued for Mr Woods that the combination of the reintegrationprogramme in which Mr Woods was required to engage and complete betweenthe hours of 8.00 am and 8.00 pm daily, the electronic monitoring and the impositionof a curfew between 8.00 pm and 8.00 am amounted effectively to a residentialrestriction which the District Court was expressly prohibited from imposing bys 93(2B) of the SA.[12] In a judgment dated 24 August 2018,11 Gendall J held, however, thatthe conditions imposed on the variation application did not amount to a residentialrestriction; furthermore, they served the purpose of facilitating and promotingMr Woods' rehabilitation and reintegration and fell, therefore, within the authorisedpurposes for the imposition of that special condition set out in s 93(3)(b) of the SA.He dismissed the appeal.CA108/2019The offending[13] On 9 July 2018, about three weeks after the imposition of Judge Farish'srelease conditions and while he was at the Christchurch facility, Mr Woods re-offendedagainst members of the staff who were employed to support the programme for hisreintegration and the monitoring of the release conditions, including by threatening tokill and multiple assaults. On 23 September 2018, he offended again, in a similarmanner.11 Woods v Police [2018] NZHC 2189 [First HC appeal].The District Court[14] Mr Woods subsequently pleaded guilty to five charges of common assault; twocharges of threatening to kill; one charge of behaving threateningly and one charge ofbreaching his release conditions by leaving the approved address during the curfewwithout the approval of a probation officer. On 28 November 2018, he was sentencedby Judge D J L Saunders in the District Court at Christchurch for all of the offending.12The Judge was satisfied on the basis of a comprehensive report from a clinicalpsychiatrist, Dr Maxwell Panckhurst, that Mr Woods was not suffering from a mentaldisorder that required him to be in a psychiatric hospital for treatment. The psychiatricreport, however, described Mr Woods' mental health problems as a severe mixedpersonality disorder (with borderline and anti-social traits) and post-traumatic stressdisorder. Dr Maxwell said that it has proved very difficult to establish and maintainhelpful interventions, or safety plans, in the context of Mr Woods' complexpsychological problems where risk behaviours are impulsive and unpredictable.[15] Judge Saunders sentenced Mr Woods to further terms of imprisonment leadingto a total effective end sentence of 12 months' imprisonment. The Judge imposedstandard and special release conditions, the relevant terms of which are identical tothe conditions previously imposed by Judge Farish, to run for a period of 12 monthsbeyond the sentence expiry date.The High Court[16] Mr Woods appealed against that sentence. On 4 March 2019, Gendall Jdismissed the appeal, holding that the overall sentence of 12 months' imprisonmentwas not manifestly excessive and concluding that the special release conditions werelawfully imposed and appropriate.1312 Police v Woods [2018] NZDC 24797 [Judge Saunders sentencing].13 Woods v Police [2019] NZHC 335 [Second HC appeal].These appealsLeave to bring second appeals[17] Mr Woods seeks leave to bring second appeals from Gendall J's judgments.Under s 253 of the CPA, this Court may grant leave to bring a second appeal froman appeal decision of the High Court only if it is satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.[18] We heard the leave applications and the substantive appeals together.The appeals raise questions of law, not previously addressed by this Court, affectingthe ability of the courts to impose restrictive post-sentence release conditions onoffenders serving short sentences. We are satisfied that they involve matters of generalor public importance. Accordingly, we grant leave to Mr Woods to bring secondappeals against each of the High Court's appeal decisions.Preliminary question in CA572/2018Is there a right of appeal from a decision on an application under s 94(1) ofthe Sentencing Act to vary release conditions imposed on sentencing?[19] We address first the preliminary point raised by Ms McCall for the Crownabout the availability of a right of appeal to the High Court, under s 244 of the CPA,from the decision of a District Court given on an application under s 94 of the SA tovary release conditions made after the imposition of the original sentence.[20] As Ms McCall noted, it was not strictly necessary for the Court to address thatissue in order to deal with the central question of law about whether the special releaseconditions imposed by the District Court on the variation were lawful. That is becauseMr Woods had an undeniable right of appeal under s 244 against the same specialconditions imposed by Judge Saunders for the July 2018 and September 2018offending. Nevertheless, because this Court has not previously addressed the Crown'spoint about appeals from variations directly, we consider it is appropriate to do so.[21] In Patterson v R,14 Williams J held that a right of appeal from a variation orderexisted under s 244. We endorse the reasoning in that judgment and the conclusionsreached, for the following reasons.[22] The starting point for the consideration of the issue is that a person convictedof an offence has a right of appeal under s 244(1) of the CPA "against the sentenceimposed for that offence, unless the sentence is one fixed by law". Section 212 ofthe CPA defines "sentence" as including, subject to exceptions which do not apply,"any method of disposing of a case following conviction". Sections 93(1) and (2) ofthe SA authorise the imposition of standard and special conditions by a court thatsentences an offender to a term of imprisonment of 12 months or less, or of more than12 months but not more than 24 months, respectively. Special conditions imposed atthe time of the original sentencing form part of the sentence and are appealable unders 244 of the CPA.[23] The term "sentence" as used in s 244(1) is widely and inclusively defined asany method of disposing of a case following conviction. A variation of releaseconditions imposed as part of a sentence must form part of the disposition of the case"following conviction", notwithstanding that the variation necessarily occurs later.[24] Reflecting the view that variations under s 94 form part of the sentencingprocess in disposing of a case, we accept that two elements of the regime under whichvariations may be made are that:(a) any variation of standard conditions must be in accordance withthe purposes and principles of the SA;15 and14 Patterson v R [2017] NZHC 49 at [25]–[30].15 Sentencing Act, ss 7 and 8.(b) any variation of a special condition (including a variation that imposessuch a condition) must comply with the requirements of s 93(3) andthe purposes for which special conditions may be imposed.[25] There is no principled reason why an offender should have a right of appealagainst the terms upon which the case is disposed of at the original sentencing, but notagainst a variation to the sentence simply because that occurred later. To limit the rightof appeal to conditions imposed at the time of the original sentence would beinconsistent with considerations of access to justice.[26] Moreover, confining any challenge to the lawfulness of a variation under s 94to the judicial review procedure, as suggested by counsel for the Crown, would bean unwieldly and inadequate intrusion of civil procedure into a readily available andappropriate criminal process. Where the challenged decision was one made bythe District Court, confining the challenge to the review procedure would not ensurethat the substantive merits of the decision could be addressed as efficiently bythe High Court on review as it would by an appellate court. As well, and importantly,judicial review would not be an available procedure for challenging a s 94 variationimposed when the High Court was the sentencing court.[27] On appeal from Patterson v R,16 this Court noted that the ruling of Williams Jthat the High Court had jurisdiction under the CPA to entertain the appeal was notchallenged.17 Having now considered the position directly, we confirm that there is aright of appeal under s 244 of the CPA against any decision on an application unders 94 of the SA to vary a release condition imposed under s 93 of the Act.The terms of the District Court's special release conditions[28] The challenged special conditions imposed by Judge Farish in the June 2018variation decision, and by Judge Saunders in the November 2018 sentencing decision,require Mr Woods to:16 Patterson v R [2017] NZCA 66.17 At [6].(a) submit to electronic monitoring in the form of global positioningsystem (GPS) technology as directed by a probation officer in order tomonitor his compliance with any conditions relating to hiswhereabouts;(b) 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 bythe probation officer;(c) to reside at an address approved by a probation officer and not to moveto any new residential address without the prior written approval ofa probation officer;(d) to be at that address between the hours of 8.00 pm and 8.00 am unlessthere is the prior written approval of a probation officer; and(e) undertake, engage in and complete a reintegration programmeadministered by a programme provider between the hours of 8.00 amand 8.00 pm each day of the week, as approved by a probation officerand abide by the rules of the programme to the satisfaction ofthe probation officer.The legislative scheme for the imposition of release conditions following a shortterm of imprisonment[29] Whether any one or more of the release conditions, either individually or incombination, is or are unlawful must be determined against the background ofthe legislative scheme authorising the imposition of release conditions on offenderssentenced to 24 months' imprisonment or less. The legislative intent is to vest ina sentencing court the power to impose on offenders sentenced to short terms ofimprisonment release conditions that may include conditions of a kind that the ParoleBoard may impose on offenders sentenced to terms of imprisonment longer than24 months.[30] The starting point is s 93 of the SA. It provides, so far as is relevant: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 of12 months or less may impose the standard conditions and any specialconditions on the offender and, if it does so, must specify whenthe conditions expire.(2) If a court sentences an offender to a term of imprisonment of morethan 12 months but not more than 24 months,—(a) the standard conditions apply to the offender untilthe sentence expiry date, unless the court specifies a differentdate; and sections 94, 95, and 96 apply as if the standardconditions had been imposed by order of the court; and(b) the court may at the same time impose any special conditionson the offender and, if it does so, must specify whenthe conditions expire.(2A) The court may specify that conditions imposed under this sectionexpire on—(a) the sentence expiry date; or(b) the date that is a specified period before the sentence expirydate; or(c) the date that is a specified period of up to 6 months afterthe sentence expiry date.(2AB) If the court imposes special conditions on an offender, the specialconditions may apply for as long as, but no longer than, the standardconditions apply to the offender.(2B) In this section,—sentence expiry date has the meaning given to it in section 4 ofthe Parole Act 2002special conditions includes, without limitation, conditions of a kinddescribed in section 15(3) of the Parole Act 2002, other thana residential restriction condition referred to in section 15(3)(ab) ofthat Actstandard conditions means the conditions set out in section 14(1) ofthe Parole Act 2002.(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 ofthe offender; or(c) provide for the reasonable concerns of victims of the offender.(3A) The court must not impose an electronic monitoring conditiondescribed in section 15(3)(f) of the Parole Act 2002 unless it has hadregard to the opinion of the chief executive of the Department ofCorrections in a pre-sentence report provided under section 26....(5) If a court sentences an offender to a term of imprisonment of morethan 24 months, it must not impose conditions on the offender'srelease from imprisonment (and section 18(2) of the Parole Act 2002applies).(6) A court must not impose conditions on an offender's release fromimprisonment if—(a) the court sentences an offender to an indeterminate sentenceof imprisonment; or(b) the court sentences an offender to imprisonment who isalready subject to an indeterminate sentence of imprisonment.(8) If the court sentences the offender to more than 1 term ofimprisonment on the same occasion,—(a) only 1 order under this section may be made; and(b) that order applies in respect of all the sentences ofimprisonment imposed on that occasion.[31] For the purposes of the definition of "special conditions" in s 93(2B) of the SA,and to identify the nature of "a residential restriction condition", s 15 of the PAprovides:15 Special conditions(1) The [Parole] Board may (subject to subsections (2) and (4)) imposeany 1 or more special conditions on an offender.(2) 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 ofthe offender; or(c) provide for the reasonable concerns of victims of the offender;or(d) comply, in the case of an offender subject to an extendedsupervision order, with an order of the court, made undersection 107IAC, to impose an intensive monitoring condition.(3) The kinds of conditions that may be imposed as special conditionsinclude, without limitation,—(a) conditions relating to the offender's place of residence (whichmay include a condition that the offender reside at a particularplace), or his or her finances or earnings:(ab) residential restrictions:(b) conditions requiring the offender to participate ina programme (as defined in section 16) to reduce the risk offurther offending by the offender through the rehabilitationand reintegration of the offender:(ba) conditions prohibiting the offender from doing 1 or more ofthe following:(i) using (as defined in section 4(1)) a controlled drug:(ii) using a psychoactive substance:(iii) consuming alcohol:(c) conditions that the offender not associate with any person,persons, or class of persons:(d) conditions requiring the offender to take prescriptionmedication.(e) conditions prohibiting the offender from entering orremaining in specified places or areas, at specified times, orat all times:(f) conditions requiring the offender to submit to the electronicmonitoring of compliance with any release conditions orconditions of an extended supervision order, imposed underparagraph (ab) or (e), that relate to the whereabouts ofthe offender:(g) an intensive monitoring condition, which must, and may only,be imposed if a court orders (under section 107IAC)the imposition of an intensive monitoring condition.(3A) If the Board imposes on an offender special conditions relating toresidential restrictions (specified under subsection (3)(ab)),—(a) the offender's probation officer must define the area ofthe residence specified under section 33(2)(a) within whichthe offender must remain and show that area to the offenderand advise every relevant occupant (as defined in section34(4)) of the residence of that area; and(b) the offender must remain within that area....[32] For the purposes of s 15(3)(b) of the PA, a "programme" is defined in s 16 ofthe PA as:16 ProgrammesFor the purposes of section 15, a programme means any of thefollowing:(a) any psychiatric or other counselling or assessment:(b) attendance at any medical, psychological, social, therapeutic,cultural, educational, employment-related, rehabilitative, orreintegrative programme:(c) placement in the care of any appropriate person, persons, oragency, approved by the chief executive, such as (withoutlimitation)—(i) an iwi, hapu, or whanau:(ii) a marae:(iii) an ethnic or cultural group:(iv) a religious group, such as a church or religious order:(v) members or particular members of any of the above.[33] Residential restrictions are the special conditions described in s 33 of the PA18as follows:33 Residential restrictions(1) The Board may impose on an offender the special conditions referredto in section 15(3)(ab) (residential restrictions) if the residence inwhich it is proposed that the offender reside is in an area in whicha residential restriction scheme is operated by the chief executive.18 Parole Act 2002, s 4.(2) An offender on whom residential restrictions are imposed isrequired—(a) to stay at a specified residence:(b) to be under the supervision of a probation officer and toco-operate with, and comply with any lawful direction givenby, that probation officer:(c) to be at the residence—(i) at times specified by the Board; or(ii) at all times:(d) to submit, in accordance with the directions of a probationofficer, to the electronic monitoring of compliance with his orher residential restrictions:(e) to keep in his or her possession the licence issued undersection 53(3) and, if requested to do so by a constable or aprobation officer, must produce the licence for inspection.(3) Any conditions imposed under subsection (2)(c)(ii) may not beimposed for longer than the shortest of the following periods:(a) the period for which the standard release conditions apply:(b) 12 months:(c) if those conditions have previously been imposed onthe offender in respect of the same release from detention,12 months less the time for which those conditions havepreviously been imposed.(4) An offender may, despite any conditions imposed under subsection(2)(c), leave the residence to which the residential restrictions relate—(a) to seek urgent medical or dental treatment; or(b) to avoid or minimise a serious risk of death or injury tothe offender or any other person; or(c) for humanitarian reasons approved by a probation officer.(5) In any case where the conditions are of the kind specified insubsection (2)(c)(ii), the offender may, with the approval ofa probation officer, leave the residence to which the residentialrestrictions relate—(a) to comply with any special conditions; or(b) to seek or engage in employment; or(c) to attend training or other rehabilitative or reintegrativeactivities or programmes; or(d) to attend a restorative justice conference or other processrelating to the offender's offending; or(e) to carry out any undertaking arising from any restorativejustice process; or(f) for any other purpose specifically approved by the probationofficer.[34] It is worth noting that, where the Parole Board imposes residential restrictionsunder s 15(3)(ab), the effect of s 33(2) is that the offender must adhere to all ofthe conditions set out in that subsection. If the Parole Board wished to impose onlyone or more, but not all, of those conditions — such as requiring the offender to stayat a particular residence and abide by an overnight curfew, but not to impose amonitoring condition — it could do so only in reliance on its general power to imposeconditions under s 15(3), or in particular reliance on s 15(3)(a) and (e).[35] Sections 34 and 35 of the PA contain relevant requirements to be met bythe Parole Board before imposing residential restrictions:34 Prior report on suitability of residential restrictions(1) Before the Board imposes residential restrictions on an offender,the Board must request and consider a report from the chief executiveon the matters specified in subsection (2).(1A) Nothing in subsection (1) prevents the chief executive from providinga report on the matters specified in subsection (2) without receivinga request from the Board.(1B) Despite subsection (1), if the chief executive provides a report onthe matters specified in subsection (2) without a request fromthe Board, the Board must consider that report as if it were a reportrequested by the Board under subsection (1).(2) The matters are as follows:(a) the nature of the offence or offences for which the offender iscurrently serving a sentence of imprisonment or haspreviously been convicted:(b) the likelihood that the residential restrictions will preventfurther offending on the part of the offender:(c) the likelihood that the offender's rehabilitation andreintegration will be assisted by residential restrictions:(d) the suitability of the proposed residence, including the safetyand welfare of the occupants of the residence wherethe offender is to reside.(3) Before completing the report under this section, the chief executivemust—(a) ensure that every relevant occupant of the residence where itis proposed that the offender reside is aware of the nature ofthe offender's past and current offending; and(b) tell every relevant occupant that the reason for giving thatinformation is to enable the occupant to make an informeddecision about whether to consent to having the offenderreside at the residence; and(c) tell every relevant occupant that the information providedabout the offender must not be used for any purpose other thanthat described in paragraph (b); and(d) obtain the consent of every relevant occupant to havingthe offender reside at the residence; and(e) inform every relevant occupant of their right to withdraw theirconsent, at any time, to having the offender reside atthe residence.(4) In subsection (3), relevant occupant means, in relation to a residencethat the chief executive is considering as a suitable residence foran offender subject to residential restrictions,—(a) in the case of a family residence, every person of or overthe age of 16 who ordinarily lives there; and(b) in the case of any other residence, every person whomthe chief executive identifies as being a relevant occupant forthe purpose of subsection (3).35 Residential restrictions only to be imposed if residence suitableand occupants consentThe Board may impose residential restrictions only if satisfied onreasonable grounds that—(a) the residence in which it is proposed that the offender resideis suitable; and(b) the relevant occupants (as defined in section 34(4)) ofthe residence in which the offender will reside—(i) understand the residential restrictions that will applyto the offender; and(ii) consent to the offender residing in the residence inaccordance with those conditions; and(iii) have been informed of their right to withdraw theirconsent, at any time, to having the offender reside inthe residence; and(c) the offender has been made aware of and understandsthe residential restrictions, and he or she agrees to complywith them.[36] For the purposes of s 15(3)(g) of the PA, an intensive monitoring conditionmay be imposed by the Parole Board only where it is ordered to do so pursuant toan order under s 107IAC of the PA made by a sentencing court when it makes anextended supervision order (ESO) under s 107I.[37] The offender or a probation officer may apply to the sentencing court unders 94 of the SA for an order suspending, varying, adding to, or discharging andsubstituting any condition imposed under s 93 of the SA:94 Variation of release conditions(1) An offender who is subject to conditions imposed under section 93,or a probation officer, may apply for an order under subsection (3) ofthis section.(2) Section 72 applies with any necessary modifications to an applicationunder this section.(3) On an application under subsection (1), the court may, if it thinksfit,—(a) suspend any condition or vary the duration of any condition,or impose additional conditions; or(b) discharge a condition and substitute any other conditiondescribed in section 93 that could have been imposed onthe offender at the time when the offender was convicted ofthe offence for which the sentence was imposed....(5) If an application is made under this section for the suspension,variation, or discharge of any condition, a probation officer maysuspend the condition until the application has been heard anddisposed of.The appellant's argument[38] In support of the appeal, Mr Starling accepts that, viewed individually,the conditions imposed by Judge Farish and Judge Saunders meet the requirements ofs 93(3)(a) and (b) of the SA in that they are designed to reduce the risk of re-offendingby Mr Woods and facilitate or promote his rehabilitation and reintegration. He argues,however, that the combination of the conditions amounts to a residential restrictionthat is expressly excluded by s 93(2B) from the special conditions whichthe District Court was permitted to impose under s 93(1). That is because, as wasproposed in the application of the probation officer referred to at [10] above,the condition requiring Mr Woods to engage in a reintegration programme betweenthe hours of 8.00 am and 8.00 pm each day, and to abide by the rules of the programme,was being implemented (or so Mr Starling informed the Court from the Bar) bythe programme provider having two persons from the agency accompanying him atall times during the 12 day-time hours of the programme.[39] The residence to which Mr Woods is confined is a suburban dwelling of whichit seems he is the only occupant. Although the curfew imposed on Mr Woods haseffect only between 8.00 pm and 8.00 am, and he is entitled to be absent fromthe residence during the other 12 hours of the day, the conditions of the reintegrationprogramme require him to be in the company of the persons at all times, whether he isin the dwelling or not.[40] Mr Starling says that ordering Mr Woods to comply with a plan that requireshim to be in the presence of persons at all times when he is not subject to a curfeweffectively imposes a regime of intensive monitoring that the Parole Board may notimpose under the PA unless it is approved by the High Court as a special condition ofan ESO under s 107I of the PA.19 For the purposes of considering the imposition ofintensive monitoring as a condition of an ESO, an intensive monitoring condition isdefined as:20[A] condition requiring an offender to submit to being accompanied andmonitored, for up to 24 hours a day, by an individual who has been approved... to undertake person-to-person monitoring.19 Section 15(3)(g).20 Section 107IAC(2).[41] Mr Starling's submission is that the way in which the reintegration programmehas been implemented, therefore, is the imposition of "intensive monitoring bystealth".[42] In an affidavit provided in support of the variation application, the probationofficer described the plan for Mr Woods under the special release conditions in theseterms:Residents [subject to the programme] are supported by an external agency; tofind permanent accommodation, engage in employment or further education,facilitate transport to and from appointments, and support residents indeveloping the life skills necessary [to live] independently in the future suchas cooking, budgeting, safety planning, problem solving and managing highrisk situations. External agency staff are available 24/7 to residents.Residents are expected to abide by the house rules which include abstinencefrom alcohol and drugs, having approved visitors only at the address,remaining at the address between 8.00 pm and 8.00 am daily, participating inreintegration activities and maintaining a tidy property. Individualreintegration plans are generated with each resident, and they transition out ofsupported accommodation at their own pace according to meeting the steps oftheir reintegration plan. To ensure consistency for residents ... to support themin their integration into the community and to ensure staff safety of bothDepartment of Corrections and the external agency employees, the additionalspecial conditions are considered necessary.... The house is managed by Christchurch Residential Care (CRC) who arecontracted by the Department. CRC ... provide two staff at all times to workwith Mr Woods, support him, encourage his reintegration and keep him safe.Staff would develop a weekly plan with Mr Woods to support his reintegrationand enhance his stability in the community. CRC staff are experienced inworking with offenders with complex mental health needs and behaviouralissues.... It is expected that Mr Woods will be able to reside at the house fora minimum of six weeks and possibly up to several months. The Departmentand CRC, working with a community mental health team, would closelymonitor and support Mr Woods during that time and reduce the hours ofoversight if appropriate and safe. The Department will work with Mr Woods,Oranga Tamariki and other providers during this time to source longer-termaccommodation and support at the level he requires at that time.[43] Responding to Mr Starling's comments about the way the programme is beingimplemented, however, Ms McCall informed us from the Bar that it was the intentionof the Department to reduce the extent to which Mr Woods is accompanied by staffduring the day as the programme progresses. While we do not doubt that counselfaithfully reported their instructions, there is no evidence before the Court that wouldenable us to make any findings about how the District Court's orders are beingimplemented. And in any event, if there is anything about the implementation thatgoes beyond the limitations that may be reasonably necessary to achieve the objectivesfor which the special conditions were designed, Mr Woods would be entitled to pursuea challenge to those elements by judicial review.The questions for decision[44] The proposed plan which was presented to Judge Farish in support ofthe variation application appears to be a flexible and appropriate attempt to respond toMr Woods' serious mental health problems in a manner that recognises the difficulties,identified by Dr Panckhurst, of finding an appropriate regime to address Mr Woods'particular needs. The arrangements appear to be designed to reduce the risk ofreoffending by Mr Woods and to facilitate and promote his rehabilitation andreintegration.21[45] But that does not answer Mr Starling's point which is founded on an argumentthat, while the plan meets the requirements of s 93(3) of the SA, it is the conditionsimposed by the Court, or a combination of them, that are unlawful because theyamount to:(a) a residential restriction condition, as defined in ss 4 and 33 of the PA,and/or(b) an intensive monitoring condition, as defined in ss 4 and 107IAC(2) ofthe PA,both of which are outside the scope of special conditions which the District Court wasauthorised to impose in terms of s 93(1), (2) and (2B) of the SA.21 Sentencing Act, s 91(3)(a) and (b).[46] The questions for determination by the Court, therefore, are:(a) Are the conditions for electronic monitoring lawful?(b) Are the conditions related to residence and the 8.00 pm to 8.00 amcurfew lawful?(c) Is the condition requiring Mr Woods to attend a programme lawful?(d) Is the combined effect of any two or more of the conditions such that,read together, the conditions amount to the imposition by the Court ofa residential restriction condition referred to in s 15(3)(ab) of the PAthat is outside the conditions authorised under s 93 of the SA?The nature of a sentencing court's power to impose special conditions[47] The District Court's power to impose special release conditions afterMr Woods completed his 12-month sentence is derived from both s 93(1) of the SAand the definition of "special conditions" in s 93(2B) of the SA. Subsection (2B)provides that the term "includes, without limitation, conditions of a kind described ins 15(3) of the Parole Act 2002 ....".[48] The effect of the definition of "standard conditions" in subs (2B) is that, whena court imposes the standard conditions pursuant to the power to do so in subs (1) or(2) of s 93, the conditions are those prescribed in s 14(1) of the PA; they apply in theirentirety. Where the court elects under subs (1) or (2) to impose special conditions,however, the nature of the conditions is left to the discretion of the court. The use ofthe word "includes" in the definition of "special condition" in subs (2B) indicates thatthe definition is not exhaustive, that indication being emphasised by the addition ofthe words "without limitation".[49] The definition provides, therefore, that the special conditions may be (but arenot required to be) "conditions of a kind described in s 15(3) of the Parole Act".We emphasise the words, "of a kind". The subsection does not require the sentencingcourt to make an order under s 15(3) of the PA; that power belongs to the Parole Board.Nor does it mandate that the condition must be in identical terms to an order that maybe made under s 15(3) of the PA. What is intended by the wording of the definition isthat, in describing appropriate special conditions designed to meet the criteria ins 93(3) of the SA, the court may have regard to the kinds of special conditions madeby the Parole Board under the PA.[50] And it is not irrelevant that the Parole Board's condition-making power unders 15(3) of the PA is described in broad discretionary terms similar to those used todescribe the condition-making power vested in the courts under s 93 of the SA.Section 15(3) of the PA describes the "kinds of conditions that may be imposed asspecial conditions" by the Board. By using the expression "include[s], withoutlimitation", the subsection emphasises that the kinds of conditions that may beimposed include (but are not limited to) conditions listed in paragraphs (a) to (g) ofthe subsection.[51] In our view, the text of s 93(2B) of the SA leads to the conclusion thatthe subsection describes but does not prescribe the kinds of conditions that may beimposed. It provides guidance to the court about the kinds of conditions that may beimposed in addition to or instead of the standard conditions, without limitingthe discretion of the court to impose any condition that is designed to meet one or moreof the criteria set out in s 93(3) of the SA. In other words, it is s 93(3) that limitsthe exercise of the Court's discretion, not s 93(2B).[52] Viewed in that way, special conditions imposed by a court under subs (1) and(2) of s 93 of the SA may be conditions of the same kind as (but not necessarilyidentical to) conditions referred to in s 15(3) of the PA, such as:(a) conditions relating to the offender's place of residence;22 or(b) conditions requiring the offender to participate in a programme toreduce the risk of further offending;23 or22 Section 15(3)(a).23 Section 15(3)(b).(c) conditions requiring the offender to submit to the electronic monitoringof compliance with any release conditions.24[53] It follows, importantly in this case, that a proper interpretation of s 93(2B) ofthe SA also authorises the court to impose a special condition of the same kind asan intensive monitoring condition that the Parole Board must make under s 15(3)(g)when ordered to do so by a court imposing an ESO under s 107I of the PA.[54] Put simply, the reference to conditions made under the PA in the definition ofspecial condition in s 93(2B) of the SA is indicative rather than restrictive of the kindsof conditions the court may impose.Residential restrictions[55] We recognise that, in reading subs (2B) in that way, it is necessary to give someeffect to the meaning of the words "other than a residential restriction conditionreferred to in s 15(3)(ab) of [the Parole] Act". Residential restrictions are defined ins 4 of the PA as meaning the special conditions described in s 33 of the PA, set out at[33] above.[56] The point of release conditions, including those which may be imposed bythe Parole Board, is to address the consequences of a sentence coming to an end incircumstances where the unrestricted release of the offender into the community wouldresult in unacceptable risk to the community and to victims in particular throughthe prospect of reoffending. Also, conditions may be imposed to facilitaterehabilitation efforts if they are designed, for example, to increase the likelihood thatthe offender will co-operate with rehabilitation efforts.[57] So, the question is: why should a court be prevented from imposing conditions,in compliance with s 93(3), that are no more restrictive than the terms of EM bail thata court can impose on someone merely charged with an offence, when the24 Section 15(3)(f).Parole Board may impose such conditions on a prisoner who happens to have serveda longer sentence? And why would the power to impose post-release conditions beexpressed in very broad terms (to "include, without limitation, conditions of akind") if the courts were to be limited in their ability to impose residence-relatedconditions?[58] The answer may be that Parliament did not intend to limit the courts toimposing only some of the restrictions available under s 15(3)(ab), but that it wantedto allow the courts more flexibility than would be available to the Parole Board indeciding what residential restrictions should be imposed. It may be thought also thatthe legislature did not want the courts to be required to adopt the more comprehensiveprocedure involved for the imposition of a "residential restrictions condition"available to the Parole Board under s 33 where the conditions may be imposed fora longer period and have implications for the rehabilitation of a greater number ofreleased offenders. The conditions imposed by a court under s 93 of the SA expire, atthe latest, six months after the sentence expiry date. Residential restriction conditionsimposed by the Parole Board, however, may be imposed for a period of up to12 months from the sentence expiry date.[59] Moreover, the regime for the imposition of residential restrictions bythe Parole Board under s 33 of the PA is structured to accommodate the release andreintegration into the community of offenders who have served terms of imprisonmentof longer than 24 months by placing them in a controlled environment outside prison,such as in what may be described as a "half-way house". The process by which suchoffenders are released, either on parole or at their statutory release date, is interactiveand designed to accommodate not only the Parole Board's requirements, but alsothe interests of the community in which the residence is situated; the needs and rightsof other occupants of the residence in which the offender is to live during the periodof residential restrictions; and the likelihood that the offender will co-operate withthe imposition and enforcement of restrictions that support a rehabilitative andreintegrative purpose.[60] The Parole Board's power to impose the full suite of conditions comprisingresidential restrictions under s 33 of the PA is limited by the requirement that:25 the residence in which it is proposed that the offender will reside [must be] in anarea in which a residential restriction scheme is operated by the chief executive.[61] Moreover, s 34(1) of the PA provides that the Board's power to imposeresidential restrictions is subject to the Board having requested and considered a reportfrom the chief executive of the Department of Corrections on matters specified ins 34(2) of the PA going to the suitability of the offender and the proposed residencefor the intended purpose of the restrictions.[62] Significantly, s 35 of the PA permits the Parole Board to impose a residentialrestrictions condition under s 15(3)(ab) "only if satisfied on reasonable grounds" thata number of prerequisites are met, including that the other relevant occupantsconsent26 and "the offender has been made aware of and understands the residentialrestrictions, and he or she agrees to comply with them".27[63] The limitations on the Parole Board's powers under s 33 of the PA, therefore,reflect the possibility, if not the likelihood, that the offenders to whom the restrictionswill be applied are those who have served lengthy terms of imprisonment. They donot sit comfortably with considerations that a court may take into account indetermining what conditions should be imposed on an offender, without consent,following release from a short-term sentence.[64] In our view, therefore, the limitation on the Court's discretion to impose specialconditions under s 93(1), (2) and (2B) that is intended by the reference to a residentialrestriction referred to in s 15(3)(ab) of the PA means only that the court may not haverecourse to the Parole Board's powers under s 33 of the PA and is not obliged to followthe highly prescriptive procedure for their use. What the court may do, however, isimpose release conditions which are of a similar kind to residential restrictions unders 33.25 Parole Act, s 33(1).26 Parole Act, 35(b)(ii).27 Section 35(c).[65] Under s 15(3) of the PA the Parole Board may impose conditions relating tothe offender's place of residence, including a condition that the offender must resideat a particular place, that do not amount to residential restrictions under s 33. It followsthat, in imposing a similar kind of condition under s 93(1) or (2) of the SA, a courtmay impose restrictive residential conditions of a kind referred to in s 15(3) and s 33(2)of the PA, such as:(a) requiring the offender to stay at a specified residence,28(b) to be at the residence at specified times29 or at all times,30and/or(c) to submit to electronic monitoring,31that have a similar effect to that of a residential restriction under s 33 of the PA but donot incorporate the full set of requirements under the section.[66] A fact-specific inquiry is required, therefore, to assess whetherthe court-imposed conditions offend against the limitation in s 93(2B) of the SAregarding s 15(3)(ab) of the PA. We are satisfied that the residence-related restrictionsimposed in this case are similar to, but do not amount to, the imposition of"a residential condition referred to in section 15(3)(ab)" of the PA.Intensive monitoring[67] By referring to s 15(3) of the PA, s 93(2B) of the SA expressly authorisesa court to order a special condition for electronic monitoring of a kind described ats 15(3)(f). Mr Starling does not argue otherwise but says that the combination ofan electronic monitoring condition and the particular residence conditions imposed bythe District Court amounts, in fact, to an intensive monitoring condition as defined ins 107IAC(2) of the PA, a condition which may only be imposed by the Parole Boardif a Court orders the imposition of such a condition in the context of the making ofan ESO.28 Sections 15(3)(a) and 33(2)(a).29 Section 33(2)(c)(i).30 Section 33(2)(c)(ii).31 Sections 15(3)(f) and 33(2)(d).[68] Section 107IAC(2) defines an intensive monitoring condition as a condition: requiring an offender to submit to being accompanied and monitored, forup to 24 hours a day, by an individual who has been approved, by a personauthorised by the chief executive, to undertake person-to-person monitoring.[69] The electronic monitoring conditions imposed by the District Court in this caseare similar, but not identical, to that description. They provide that Mr Woods must:(a) submit to electronic monitoring in the form of GPS technology asdirected by a probation officer in order to monitor his compliance withany conditions relating to his whereabouts; and(b) 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 bythe probation officer.[70] It is necessary to look also at the combined effect of the residence-relatedconditions and electronic monitoring conditions, as Mr Starling submitted.The residential conditions are that Mr Woods is required:(a) to reside at an address approved by a probation officer and not to moveto any new residential address without the prior written approval ofa probation officer; and(b) to be at that address between the hours of 8.00 pm and 8.00 am unlessthere is the prior written approval of a probation officer.[71] Read together, the monitoring and residence conditions do not equate tointensive monitoring as defined in s 107IAC(2) as set out above at [68]. Nor do theyamount to a residential restriction as defined in s 33 of the PA. Although it might besuggested that the combination of a requirement to stay at a particular residence, anovernight curfew and electronic monitoring come close to an unreasonable extensionof his confinement after he has served a sentence of imprisonment, we make two pointsin response. First, such conditions are acknowledged by Parliament as being justifiedif they are designed to meet the purposes specified in s 93(3). Second, they are nomore coercive than the types of restrictions imposed on an alleged offender releasedon electronically monitored bail pending trial, who is entitled to a presumption ofinnocence.[72] It is significant that the District Court's orders concerning the reintegrationprogramme do not specify that Mr Woods shall be accompanied at all times betweenthe hours of 8.00 am and 8.00 pm, when the curfew does not apply. That appears tobe a requirement of the programme which has been put in place by the Department ofCorrections, designed to implement the District Court's condition that Mr Woodsmust:undertake, engage in and complete a reintegration programme administeredby a programme provider between the hours of 8.00 am and 8.00 pm each dayof the week, as approved by a probation officer and abide by the rules ofthe programme to the satisfaction of the probation officer.[73] The plan proposed by the probation officer included what appear to begraduated steps towards greater autonomy for Mr Woods in terms of his freedom ofmovement but on a basis that recognises that his particular mental health problemsrequire a close degree of supervision both for the protection of the community andthe safety of Mr Woods.Conclusions[74] We are satisfied that, although the conditions imposed by Judge Farish andJudge Saunders have similarities both to elements of intensive monitoring andresidential restrictions, those Courts has not imposed residential restrictions orintensive monitoring in a manner that is not permitted by the broad discretion unders 93(1) of the SA to impose special conditions and that the conditions are lawful. Thatis sufficient to dispose of the appeals.Result[75] The majority of the Court being satisfied that the District Court Judges did noterr in the exercise of their discretion under s 93(1) of the SA, the appeals are dismissed.WILLIAMS JTable of ContentsPara NoIntroduction ........................................................................................................... [76]Factual background .............................................................................................. [79]Appeals below ........................................................................................................ [83]Intensive monitoring ............................................................................................. [88]Residential restrictions ......................................................................................... [97]The exclusion in s 93(2B) is limiting, and must be looked at in substance ....... [102]"Substantially the same as" residential restrictions means the elementsin s 33(2) of the Parole Act, save for two modifications ................................... [112]Conditions imposed on Mr Woods are substantially the same as residentialrestrictions ......................................................................................................... [119]Conclusion............................................................................................................ [122]Introduction[76] I agree with the majority's conclusion on the question of the right of appealunder s 244 of the CPA against a variation of release conditions.[77] I also agree that Mr Woods is not subject to intensive monitoring, but fordifferent reasons.[78] As for residential restrictions, my view is that the conditions imposed onMr Woods are, in substance, prohibited residential restrictions as defined in the PA.I would therefore have allowed the appeal on this point.Factual background[79] The majority has set out the facts in full and it is unnecessary for me to repeatthem here. It is convenient, however, to set out in full the conditions imposed onMr Woods as they are important to the reasoning I adopt.[80] On 19 April 2018, when Judge Rowe sentenced Mr Woods, he imposed thefollowing special conditions:32(a) to attend a psychological assessment and complete any recommendedcounselling or treatment as recommended;(b) to attend an alcohol and drug assessment and attend and complete anyrecommended treatment to the satisfaction of the probation officer andtreatment provider;(c) to attend any counselling/programmes as directed to the satisfaction ofthe probation officer and provider;(d) to submit to electronic monitoring in the form of GPS technology asdirected by a probation officer in order to monitor Mr Woods'compliance with any condition(s) relating to his whereabouts; and(e) not to enter Palmerston North City, as defined by the Council boundarymap, without the written consent of a probation officer.[81] On 19 June 2018, when Judge Farish granted the application to varyMr Woods' release conditions, he added five further conditions to those initiallyimposed by Judge Rowe. These further conditions were:33(a) to reside at an address as approved by a probation officer and not tomove address without the prior written approval of the probationofficer;(b) to undertake, engage in and complete a reintegration programmeadministered by a programme provider between the hours of 8.00 amand 8.00 pm each day of the week, as approved by a probation officerand abide by the rules of the programme to the satisfaction of theprobation officer;(c) to stay at that the approved residence overnight between the hours of8.00 pm and 8.00 am;32 Judge Rowe sentencing, above n 6, at [22].33 Judge Farish variation, above n 8, at [11].(d) not to possess, consume or use any alcohol or drugs not prescribed; and(e) 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 purposes ofmaintaining the electronic monitoring equipment as directed bythe probation officer.[82] When Mr Woods re-offended Judge Saunders sentenced Mr Woods to12 months' imprisonment and imposed all eight of the release conditionsrecommended in the pre-sentence report.34 They are largely the same as the conditionsMr Woods was previously under, including the additional conditions imposed byJudge Farish on variation. The conditions were:(a) to attend a psychological assessment with a departmental psychologistas directed by a probation officer and complete any treatment and/orcounselling as recommended by the assessment to the satisfaction ofa probation officer;(b) not to possess, consume or use any alcohol or drugs not prescribed;(c) to submit to electronic monitoring in the form of GPS technology asdirected by a probation officer in order to monitor compliance withany condition(s) relating to Mr Woods' whereabouts;(d) 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;(e) to be at that address between the hours of 08:00 pm and 08:00 am unlessthere is the prior written approval of a probation officer;34 Judge Saunders sentencing, above n 12, at [15].(f) to reside at an address approved by a probation officer and not move toany new residential address without the prior written approval of aprobation officer;(g) not to enter the Manawatu or Horowhenua Districts unless with priorwritten approval of a probation officer; and(h) to undertake, engage in and complete a reintegration programmeadministered by a programme provider between the hours of 08:00 amand 08:00 pm each day of the week, as approved by a probation officerand abide by the rules of the programme to the satisfaction of theprobation officer.Appeals below[83] In separate appeals,35 Mr Woods appealed both Judge Farish's variation andJudge Saunders' sentence, both times on the ground that the conditions imposedamounted to a residential restriction and intensive monitoring, which the Judges werenot permitted to impose.[84] Gendall J in the High Court heard both appeals. Both times the Judgedismissed the appeal.[85] On the residential restriction argument, Gendall J cited Whichman vDepartment of Corrections,36 in which Woolford J held that conditions imposed on anoffender are "residential restrictions" if and only if all five of the requirements ins 33(2) of the PA are imposed.37 So, because Mr Woods was only subject to three ofthe five requirements, the conditions imposed on Mr Woods did not amount to aresidential restriction.38[86] On the intensive monitoring argument, Gendall J merely noted that requiringan offender to participate in a programme is one of the conditions a court is permitted35 First HC appeal, above n 11; and Second HC appeal, above n 13.36 First HC appeal, above n 11, at [18].37 Whichman v Department of Corrections [2013] NZHC 3075, (2013) 27 CRNZ 292 at [33].38 First HC appeal, above n 11, at [20].to impose.39 His Honour then held that the requirement that Mr Woods attend areintegration programme was "necessary and proportional" given the level ofassistance Mr Woods needed, and therefore was appropriately imposed.40 The Judgedid not explain why the condition was not intensive monitoring.[87] Mr Woods appeals both decisions.Intensive monitoring[88] Intensive monitoring is a specific statutory supervision regime. It is notexplicitly excluded from the definition of "special conditions" in s 93(2B) asresidential restrictions are. But, under s 15(3)(g) of the PA, intensive monitoring"must, and may only be" imposed if a court orders it under s 107IAC of that Act.Section 107IAC provides that a court may impose an intensive monitoring conditionon application by the chief executive, when the court makes an ESO.[89] This limitation should logically be read into s 93 to prevent a court fromimposing intensive monitoring on an offender on a short-term sentence who is notsubject to an ESO; that is, to constrain a court in the same manner as the Parole Boardis constrained. There are three reasons for this. First, s 93(2B) imports the list ofspecial conditions in s 15(3), so the limitation in s 15(3)(g) must also be imported intos 93.[90] Secondly, intensive monitoring (and s 15(3)(g)) was introduced into the PA in2014, ten years after s 93(2B) was added to the SA in 2004. Thus it is not a case ofParliament deliberately omitting an exclusion from s 93(2B); rather, Parliament likelysaw no need to amend s 93(2B) when it had already enacted the necessary safeguardsin the PA.[91] Thirdly, it would be highly anomalous if a court could impose intensivemonitoring on an offender on a short-term sentence in circumstances where it couldnot impose it on an offender on a longer-term sentence.39 At [27].40 At [31].[92] As no ESO could be imposed on Mr Woods, the District Court also had nopower to impose an intensive monitoring condition. The question is therefore whetherwhat was imposed on Mr Woods amounts to intensive monitoring.[93] Counsel for Mr Woods submits that the reintegration programme thatMr Woods is subject to in fact has no rehabilitative or educational characteristics atall, and that Mr Woods is simply required to remain at his residence in the companyof two employees from Christchurch Residential Care at all times. In other words,Mr Woods is being required to be accompanied and monitored for 12 hours a day.Counsel for Mr Woods submits that this is intensive monitoring by stealth.Counsel also submits that both the District and High Courts were aware that theappellant would be on conditions that were "functionally equivalent" to intensivemonitoring.[94] There is no evidence that the District Court knew the rehabilitative programmewould simply result in Mr Woods being accompanied and monitored for 12 hoursa day. Nor has any evidence been adduced that the programme is in fact being run inthis way. Even if it were, such programme would not amount to intensive monitoring.[95] Section 107IAC defines "intensive monitoring" as a condition that requires anoffender "to submit to being accompanied and monitored, for up to 24 hours a day, byan individual who has been approved, by a person authorised by the chief executive,to undertake person-to-person monitoring". This must be taken to mean full-timemonitoring. It is not to be construed as covering accompaniment and monitoring fora shorter period than 24 hours a day. Such an interpretation would make the phrase"up to 24 hours a day" redundant. It would also mean that a condition requiringaccompaniment and monitoring for three hours a day would qualify. There may bea question around whether substantially full-time monitoring (say, more than 20 hoursa day) is covered. But that does not arise in this appeal, and I think in practical termsit is unlikely to arise at all.[96] If counsel's allegations are true, Mr Woods is only being accompanied andmonitored for 12 hours a day. There is no allegation that Mr Woods is alsoaccompanied between 8.00pm and 8.00am. This is not full-time accompaniment andmonitoring. I therefore agree that the programme condition is lawful and does notamount to intensive monitoring.Residential restrictions[97] In my view, the combination of conditions imposed in this case amounts toresidential restrictions.[98] I acknowledge that Mr Woods poses a real risk to the safety of the public.As the majority has explained, Mr Woods suffers from complex psychologicalproblems and treatment will be difficult. If an interpretation of the legislation wereavailable that permitted the current set of conditions, I would adopt it. But suchan interpretation is not, in my view, available; and to adopt it regardless would becontrary to what Parliament intended. Three steps lead me to this conclusion.[99] First, the exclusion in s 93(2B) limits the power of sentencing courts. It doesnot liberate them from the safeguards in the PA. It means that courts may not imposeconditions that are substantially the same as residential restrictions.[100] Secondly, for conditions to be "substantially the same as" residentialrestrictions as described in s 33 of the PA, a proper interpretation requires that all theelements in s 33(2) be present, with the exception of s 33(2)(e) and a modification tos 33(2)(c)(i).[101] Thirdly, all the relevant elements of residential restrictions have been satisfiedin this case.The exclusion in s 93(2B) is limiting, and must be looked at in substance[102] Section 93(1) of the SA allows a court that sentences an offender to a term ofimprisonment of 12 months or less to impose on that offender "any specialconditions". The purpose of this is to allow a court to impose on offenders onshort-term sentences the kinds of conditions that the Parole Board can impose (unders 18(2)(b) of the PA) on offenders sentenced to longer terms of imprisonment.[103] This power has limits. Section 93(2B) provides that "special conditions""includes, without limitation, conditions of a kind described in section 15(3) ofthe Parole Act 2002, other than a residential restriction condition referred to in section15(3)(ab) of that Act".41 The wording is loose, but the purpose is clear. A court hasbroad powers to impose on offenders on short term sentences the kinds of conditionsthe Parole Board may impose on offenders on longer-term sentences, but it may notimpose a "residential restriction" referred to in s 15(3)(ab) of the PA.[104] A residential restriction condition is not any restriction relating to an offender'sresidence. "Residential restrictions" is defined by s 4 of the PA specifically to be"the special conditions described in section 33", which has been set out in full at [33]above.[105] The Parole Board's power to impose residential restrictions is controlled bysafeguards. Under s 33(1), a residential restriction scheme must be in operation inthe area of the specified residence. There are also procedural safeguards. Section 34requires the Board to request and consider a report from the chief executive ofthe Board before it imposes residential restrictions.42 That report must consider thenature of the offender's offending, the likelihood that residential restrictions willprevent further offending and assist in reintegration, and the safety of the otheroccupants of that residence.43[106] Furthermore, before the chief executive prepares such a report, she must alsoobtain the prior informed consent of every "relevant occupant" of the proposedresidence. That is, she must:44(a) ensure that every relevant occupant of the residence where it isproposed that the offender reside is aware of the nature ofthe offender's past and current offending; and(b) tell every relevant occupant that the reason for giving that informationis to enable the occupant to make an informed decision about whetherto consent to having the offender reside at the residence; and41 Emphasis added.42 Parole Act, s 34(1).43 Section 34(2).44 Section 34(3).(c) tell every relevant occupant that the information provided about theoffender must not be used for any purpose other than that described inparagraph (b); and(d) obtain the consent of every relevant occupant to having the offenderreside at the residence; and(e) inform every relevant occupant of their right to withdraw theirconsent, at any time, to having the offender reside at the residence.[107] It follows from all this, then, that the obvious purpose of the explicit exclusionin s 93(2B) is to prevent courts from effectively exercising without safeguardsthe same power that the Parole Board can only exercise with safeguards.Parliament cannot have intended to liberate sentencing courts from these safeguardsin a roundabout way by intending "residential restriction" to cover conditions imposedonly after a court has complied with all these safeguards but not otherwise.Such reasoning is circular. It would mean the court could lawfully avoid thesafeguards simply by not following them.[108] The legislative history of s 93(2B) supports this interpretation. Prior to 2016,the definition of "special conditions" excluded both residential restrictions andelectronic monitoring.45 In 2016, however, Parliament removed electronic monitoringfrom the exclusion and left only residential restrictions.46 It did this to enablesentencing courts to impose electronic monitoring. Parliament clearly sawthe s 93(2B) exclusions as limiting courts' powers. Indeed, in introducing the thirdreading of the Sentencing (Electronic Monitoring of Offenders) Amendment Bill,the then Minister of Corrections said that the Bill:47removes a legislative barrier to the use of electronic monitoring for offendersreleased after serving a short term of imprisonment and offenders sentencedto intensive supervision. The Sentencing Act explicitly states thatelectronic monitoring may not be imposed by a court as a release conditionfor an offender sentenced to prison for 2 years or less. This bill removes thatbarrier.45 The full text of the definition was: "special conditions includes, without limitation, conditions ofa kind described in section 15(3) of the Parole Act 2002, other than an electronic monitoringcondition as referred to in section 15(3)(f) of that Act, or a residential restriction condition asreferred to in section 15(3)(ab) of that Act".46 Sentencing (Electronic Monitoring of Offenders) Amendment Act 2016, s 9(1).47 (20 September 2016) 717 NZPD 13877.[109] If in 2016 Parliament thought that s 93(2B) was a barrier to a court imposingelectronic monitoring under s 93, then s 93(2B) must have also been (and indeed muststill be) a barrier to a court imposing residential restrictions. So, whether a set ofconditions imposed by a court amounts to residential restrictions must be looked at insubstance, not form. The introductory words in s 93(2B), "without limitation" and "ofa kind", while broad, should not be read so as to undermine the purpose ofthe carve-out.[110] Finally, s 93(2B) should be read consistently with the rights and freedomscontained in the New Zealand Bill of Rights Act 1990 where such interpretation isavailable. That Act affirms the right to freedom of movement48 and the right not to bearbitrarily detained.49 To allow s 93(2B) to be read as empowering comprehensivedetention of Mr Woods without compliance with the same safeguards that would haveprotected those who have committed more serious offences would be to renderthis form of detention arbitrary, and to restrict freedom of movement without a properstatutory basis.[111] The next question is what it means for conditions to be in substance the sameas residential restrictions."Substantially the same as" residential restrictions means the elements in s 33(2) ofthe Parole Act, save for two modifications[112] Section 33(2) lists five requirements for offenders on whom residentialrestrictions are imposed. To recap, these are to:(a) stay at a specified residence within a residential restriction scheme area;and(b) be under the supervision of a probation officer and to co-operate with,and comply with any lawful direction given by, that probation officer;and48 New Zealand Bill of Rights Act 1990, s 18(1).49 Section 22.(c) be at the residence either at times specified by the Board or at all times;and(d) submit, in accordance with the directions of a probation officer, tothe electronic monitoring of compliance with his or her residentialrestrictions; and(e) keep in possession the licence issued under section 53(3) of the PA and,if requested to do so by a constable or a probation officer, to producethe licence for inspection.[113] To avoid frustrating the purpose of the s 93(2B) exclusion, two modificationsare required to the statutory language in the transposition to the sentencing context.First, requirement (e), that the offender carry a licence issued under s 53(3) of the PA,can be disregarded. This is because licences issued under s 53(3) of the PA are onlyissued to offenders who are already subject to residential restrictions.50 They aremerely evidence of the restrictions.[114] The respondent argues that since s 15 of the PA permits some individualcomponents of residential restrictions to be separately imposed as special conditions(including a condition "relating to the offender's place of residence"51 and conditionsrequiring electronic monitoring52), Parliament must have intended that all five ofthe s 33(2) components are required before a residential restriction is created.[115] This is unconvincing. As I have said, the assessment must be substantial ratherthan formalistic or the interests protected by the exclusion will be sacrificed.Certainly not all residence-related or electronic monitoring restrictions will amount toa "residential restriction". But "conditions relating to the offender's place ofresidence" is a broader and less precise category. Many such conditions, alone or incombination with other conditions, will not amount to the combination of substantiverestrictions in "residential restrictions".50 Parole Act, s 53(3). The section reads: "An offender subject to residential restrictions must, beforethe restrictions come into force, be issued with a licence that sets out " (emphasis added).51 Section 15(3)(a).52 Section 15(3)(f).[116] It therefore follows in my view that Whichman was incorrect insofar as it heldthat all five requirements in s 33(2) must be met before conditions amount toa residential restriction.[117] The second necessary modification to s 33(2) is to the requirement thatthe offender be at the defined residence at times specified by the Parole Board.In the context of s 93, that should logically be read as times specified by the Court.[118] A set of conditions is therefore substantially the same as residential restrictionsif it requires the offender to:(a) to stay at a specified residence; and(b) to stay there at all times or at times specified by the Court; and(c) to submit to electronic monitoring; and(d) to be under the supervision of a probation officer.Conditions imposed on Mr Woods are substantially the same as residential restrictions[119] The question, then, is whether Mr Woods was required to comply with all ofthe above. The answer is yes. Mr Woods is electronically monitored and required tobe at a specific residence for a time specified by the court unless a probation officerdetermines otherwise. Six of the conditions also subject him to the supervision ofa probation officer.[120] "Supervision" is not defined in the PA. The term should accordingly be readin its ordinary and natural meaning. The Oxford English Dictionary defines"supervision" as "The action or function of overseeing, directing, or taking charge ofa person, organization, activity, etc".53 Here, the combination of conditions imposedon Mr Woods plainly puts him under the oversight, direction, or charge of a probationofficer. A probation officer controls when he is to attend a psychological assessment;53 Oxford English Dictionary (3rd ed, 2012, online ed) at [supervision, n.].whether he has completed it satisfactorily; whether he can move to a different address;whether he can leave the address between 8.00 pm and 8.00 am; whether he can entercertain regions; what reintegration programme he is to undertake; and whether he hasobeyed the rules of that programme satisfactorily.[121] This level of supervision is also broader and more comprehensive than that tobe expected in relation to EM bail supervision, which is separately provided for inss 30A–30S of the Bail Act 2000.Conclusion[122] For these reasons, I consider the conditions imposed on Mr Woods do amountto a "residential restriction". I therefore would allow the appeal in respect of this issue.Solicitors:Crown Law Office, Wellington for Respondent