R (CA669/2017) v R (No 2) [2018] NZCA 260

R (CA669/2017) v R (No 2) [2018] NZCA 260 [19 July 2018]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: THIS COURT'S ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFAPPELLANT REMAINS IN FORCE.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA669/2017[2018] NZCA 260BETWEEN R (CA669/2017)AppellantAND THE QUEENRespondentCourt: Cooper, Dobson and Toogood JJCounsel: N M Dutch and R E Webby for AppellantJ E L Carruthers for RespondentJudgment:(On the papers)19 July 2018 at 11.30 amJUDGMENT OF THE COURT (NO 2)A The appeal against sentence is dismissed.B Post-detention conditions imposed by the District Court on sentencing areto remain.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of retrial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] The Court's judgment in this appeal allowed the appeal in respect of aconviction for doing an indecent act on a young person. That aspect of the appeal wasallowed because of a misdirection in the District Court Judge's summing up as to thepermissible extent of reliance on propensity evidence.1 A retrial was ordered.[2] An appeal against sentence was adjourned by consent. The sentence was oneof six months' home detention, which would have been completed by the timethe judgment was issued.[3] The judgment raised the prospect that the quashing of the conviction for doingan indecent act on a child might have an impact on post-detention conditions, andoffered the opportunity for further submissions on this point which the Court woulddeal with on the papers.2[4] The appellant has filed such submissions seeking the removal of post-detentionconditions that require the appellant to undertake and complete any rehabilitativeprogrammes, counselling, treatment and maintenance follow-up programme as maybe directed by the Probation Officer. The submissions advise that the appellant is overhalf way through a Living Without Violence course, which he intends to complete.Mr Dutch submits on his behalf that it would be punitive for the post-detention1 R (CA669/2017) v R [2018] NZCA 165.2 At [49].conditions to remain, particularly as they contemplate on-going dealings withthe Probation Service, which arguably ought now to be unnecessary.[5] The Crown opposes removal of the post-detention conditions. Mr Carruthershas submitted that the special conditions can be related back to the offending for whichthe appellant remains convicted. That involved domestic violence. The post-detentionconditions imposed on sentencing were as identified in the Provision of Adviceto Courts (PAC) report which revealed that the appellant has issues withmethamphetamine and cannabis use, and that he is at risk of further offending.Accordingly, conditions relating to family violence, parenting and drug and alcoholuse remain relevant and are justified.[6] At an early stage of the sentencing process, the Judge had indicated that a termof imprisonment was likely unless the appellant undertook a treatment programme.Sentencing was adjourned for more than a year, in part to enable that to occur.3The sentencing Judge noted that the reports available to him included arecommendation for psychological assessment and psychological counselling andexpressed the hope that that would happen.4[7] The Crown's submission on retention of the post-detention conditions isjustified on the content of a relatively thorough review of the appellant's personalcircumstances in the PAC report. The recommendations for post-detention conditionswere intended to be rehabilitative and do remain relevant to the conviction that wasnot quashed. Although compliance with the conditions imposes a constraint onthe appellant's behaviour, it is not to an extent that would be disproportionate, were heto have been sentenced separately for the remaining conviction.[8] Accordingly, we are satisfied that the post-detention conditions as imposedshould remain.[9] The appeal against sentence is dismissed.3 R v R [2017] NZDC 25890 at [33].4 At [65].[10] In order to protect the appellant's fair trial rights, we make an order prohibitingpublication of the judgment and any part of the proceedings (including the result) innews media or on the internet or other publicly available database until finaldisposition of retrial. Publication in a law report or law digest is permitted.Solicitors:Crown Law, Wellington for Respondent