MASON v R [2021] NZCA 185

MASON v R [2021] NZCA 185 [14 May 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA178/2021[2021] NZCA 185BETWEEN TODD JONATHON MASONAppellantAND THE QUEENRespondentHearing: 5 May 2021Court: Clifford, Courtney and Collins JJCounsel: A J Bailey and R J T George for AppellantM J Lillico and A H N Forward-Taua for RespondentJudgment: 14 May 2021 at 9.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B We quash the sentence of intensive supervision and all conditions thatwere imposed.C We substitute a sentence of supervision for 12 months, with the conditionsset out at [52].____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Mason appeals a sentence of 12 months' intensive supervision with specialconditions imposed by Judge Kellar in relation to two offences:1(a) breach of a protection order issued in favour of B, which Mr Masonpleaded guilty to before trial; and(b) assault with intent to injure B, which Mr Mason was convicted offollowing a trial by jury in the District Court at Christchurch.[2] The special conditions comprised:(a) a "whereabouts condition" that prohibits Mr Mason from entering anexclusion zone that covers a large portion of the eastern suburbs ofChristchurch;2 and(b) an "electronic monitoring" condition designed to alert authorities ifMr Mason enters the exclusion zone.3[3] Mr Mason contends there is "an error in the sentence"4 because the Judge failedto have regard to the statutory criteria relevant to the special conditions imposed and,in any event, the sentence was manifestly excessive because:(a) a sentence of supervision (as opposed to intensive supervision) wouldsuffice; and(b) the period of intensive supervision was excessive.1 R v Mason [2021] NZDC 6420 [Sentencing notes].2 Sentencing Act 2002, ss 26(2)(i) and 54I(3)(e).3 Sections 54I(3)(f) and 54IA.4 Criminal Procedure Act 2011, s 250(2)(a).Background[4] Mr Mason and B had previously lived together for approximately four years.At trial, the Crown alleged that on 5 October 2019, Mr Mason went to B's home.Initially B refused to allow him inside, but he entered the property and shoved B inthe stomach with a bottle. It was alleged he then grabbed her by the crotch and asked,"who's been in there?" Mr Mason accused B of sleeping with other men. He thengrabbed her firmly by the throat. The confrontation subsided and the pair went to adairy for some cigarettes. Upon their return, B ran inside her house and locked thedoor. Mr Mason then broke the doorframe, entered the property and was said by B tohave raped her. Mr Mason was also alleged to have slapped B on the head throughouttheir relationship.[5] As we have noted, before trial Mr Mason pleaded guilty to breaching aprotection order that had been issued in favour of B on 20 February 2019.[6] Following trial, Mr Mason was found guilty of assault with intent to injure.That offence related to the incident in which Mr Mason grabbed B by the throat. Thejury found Mr Mason not guilty of all other charges arising from the events alleged tohave occurred on 5 October 2019.[7] Following his conviction, Mr Mason was again remanded in custody pendingsentence. By the time he was sentenced on 1 April 2021, Mr Mason had beenremanded in custody for approximately 18 months. The Crown and Mr Bailey,counsel for Mr Mason, argued that Mr Mason should be released from prison and bemade the subject of a supervision order. Initially, the Judge agreed with the approachadvocated by both counsel but, part way through delivering his sentencing decision,the Judge changed course.[8] In order to fully appreciate what transpired at the sentencing hearing, it ishelpful to first set out the statutory framework governing supervision and intensivesupervision orders. We will also explain the legislation concerning the specialconditions imposed by the Judge in this case.Supervision and intensive supervision[9] Sentences of supervision and intensive supervision form part of a quartet ofcommunity-based sentences prescribed in Part 2 of the Sentencing Act 2002 (the Act).The hierarchy of sentences available under the Act is explained in s 10A(2).Supervision is listed alongside community work. Sentences of supervision andcommunity work are more restrictive than fines, but less restrictive than the othersentences set out in the Act.[10] Intensive supervision is listed alongside community detention. There are twocategories of more serious sentences than intensive supervision and communitydetention namely, home detention and imprisonment.Supervision[11] A sentence of supervision is available where an offender is convicted of anoffence punishable by imprisonment or where legislation expressly provides for theimposition of a community-based sentence.5 The Court may only impose a sentenceof supervision if satisfied that it would reduce the risk of further offending through thesupervised rehabilitation and reintegration of the offender.6 Sentences of supervisionmust be for not less than six months and no more than one year.7 An offendersentenced to supervision is subject to standard conditions set out in s 49 of the Act andany special conditions that the Court may impose under ss 50 or 52 of the Act.[12] The standard conditions to a supervision order may include:(a) a requirement that the offender report to a probation officer;(b) requirements concerning the place where the offender may live andwork;5 Sentencing Act, s 45.6 Section 46.7 Section 45(2).(c) a requirement that "the offender must not associate with any specifiedperson";8 and(d) a requirement that the offender take part in a rehabilitative needsassessment if directed to do so by a probation officer.[13] Special conditions that may attach to a supervision order include participationin non-residential psychiatric, psychological, therapeutic, cultural, employment,rehabilitation or reintegrative programmes. Special conditions may only be imposedhowever in relation to a sentence of supervision where:9(a) there is a significant risk of further offending by the offender; and(b) standard conditions alone would not adequately reduce that risk; and(c) the offender requires a programme to reduce the likelihood of furtheroffending by the offender through the rehabilitation and reintegrationof the offender.[14] Other special conditions to supervision orders are prescribed in s 52 of the Act.They relate to conditions such as requirements that an offender take particularmedications, abstain from using alcohol and illicit drugs and a requirement that theoffender undertake work-based and living skills programmes.Intensive supervision[15] As its name suggests, intensive supervision is a more intensive sentence thansupervision. Intensive supervision may be imposed for up to two years and involvesmore frequent reporting to a probation officer than occurs in relation to sentences ofsupervision.10 Persons sentenced to intensive supervision are "likely to have morecomplex rehabilitative needs than those receiving supervision, and to requiresubstantial assistance with reintegrative needs such as housing and employment".118 Sentencing Act, s 49(1)(h).9 Section 50.10 Sections 54B and 54F.11 Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson Reuters)at [SA54C.01].[16] Section 54C of the Act provides:54C Guidance on use of sentence of intensive supervisionA court may impose a sentence of intensive supervision only if it is satisfiedthat—(a) a sentence of intensive supervision would reduce the likelihood offurther offending by the offender through the rehabilitation andreintegration of the offender; and(b) the nature of the offender's rehabilitative or other needs requires theimposition of conditions—(i) for a period longer than 12 months; or(ii) that are not available through the sentence of supervision.[17] An offender sentenced to intensive supervision is subject to the standardconditions set out in s 54F and, any special conditions that the Court may impose underss 54G or 54I of the Act.[18] Under s 54G, special conditions may be imposed if the Court is satisfied that:(a) there is a significant risk of further offending by the offender; and(b) standard conditions alone would not adequately reduce that risk; and(c) the offender requires a programme to reduce the likelihood of furtheroffending by the offender through the rehabilitation and reintegrationof the offender.[19] Under s 54I, other special conditions may be imposed if the Court is satisfiedthat:(a) there is a significant risk of further offending by the offender; and(b) standard conditions alone would not adequately reduce that risk; and(c) the imposition of special conditions would reduce the likelihood offurther offending by the offender through the rehabilitation andreintegration of the offender.[20] Thus, consistent with the "least restrictive outcome" principle set out in s 8(g)of the Act, the Court may impose a special condition only if it is satisfied that both thestandard conditions of intensive supervision alone would not adequately reduce asignificant risk of further offending, and that a special condition will reduce thatlikelihood through rehabilitation or reintegration.[21] The other special conditions that may be attached to an intensive supervisionorder are set out at s 54I(3) of the Act. They include:(a) conditions concerning the offender's place of residence;(b) conditions requiring the offender to take prescription medicines and torefrain from using alcohol and illicit drugs;(c) conditions concerning training in work and living skills;(d) compliance with judicial monitoring;(e) any other conditions that the court thinks fit to reduce the likelihoodof further offending by the offender:(f) a condition that the offender must, when required to do so by aprobation officer, submit to the electronic monitoring of compliancewith any conditions of his or her sentence imposed underparagraph (e) that prohibit the offender from entering or remaining inspecified places or areas at specified times or at all times.[22] The purposes of an electronic monitoring special condition are explained ats 54IA(2) of the Act. Those purposes are:(a) to deter the offender from breaching a whereabouts condition; and(b) to monitor compliance with a whereabouts condition.[23] Whereabouts conditions are explained in s 26(2) of the Act, which set out thematters that may be included in a pre-sentence report. Section 26(2)(i) provides a pre-sentence report may contain an opinion on whether:(i) a condition that prohibits the offender from entering or remaining inspecified places or areas at specified times or at all times (awhereabouts condition in this paragraph) would facilitate or promotethe objective of reducing the risk of the offender reoffending whilesubject to the sentence or release conditions; and(ii) a whereabouts condition would facilitate or promote the objective ofrehabilitating and reintegrating the offender; and(iii) a further condition requiring the offender to submit to electronicmonitoring of his or her compliance with a whereabouts condition iswarranted, having regard to the likelihood of non-compliance with thewhereabouts condition.Pre-sentence report[24] The PAC report traversed Mr Mason's extensive offending history, includinghis convictions in 2007 for breach of protection orders. The report noted that in 2018and 2019 the police were required to respond to three family harm and safety concernsinvolving B and Mr Mason. The report also recorded Mr Mason was subject to asecond protection order from a previous relationship with another woman.[25] The author of the report suggested, that in light of the time Mr Mason had spenton remand, a sentence of intensive supervision was "an option" and "would giveMr Mason an opportunity to complete the recommended programmes aimed ataddressing his offending needs and reduce his risk to others".[26] Four special conditions of intensive supervision were recommended. Thoseconditions were:(a) Mr Mason complete an appropriate violence prevention programme;(b) Mr Mason not make contact with B;(c) Mr Mason attend an alcohol and drug assessment programme andcomplete any recommended remedial programme; and(d) Mr Mason not possess or consume any alcohol or drugs.[27] On the day of sentencing, the Judge and counsel were handed a furthermemorandum from the Department of Corrections (Corrections), which said B wasstill fearful for her safety and that because of those concerns Corrections requestedspecial conditions be considered in conjunction with intensive supervision. Thesuggested special conditions were:(a) an extensive exclusion zone, which encompassed a very large portionof eastern Christchurch, including the area where Mr Mason lived andwould work once released from prison; and(b) that Mr Mason submit to electronic monitoring.Sentencing decision[28] The sentencing notes of Judge Kellar comprised 12 paragraphs. In the firsteight paragraphs the Judge noted Mr Mason's criminal history and the risk he posesof abusing alcohol and illicit drugs.[29] Consistent with the submissions advanced by the Crown and Mr Bailey, theJudge said that a "rehabilitative sentence in the nature of supervision [was] anappropriate outcome".12 At [8] of his sentencing notes, the Judge said a sentence ofsupervision would be imposed for one year, with a requirement that Mr Masonundertake the recommended programmes.[30] Before he outlined the programmes that were to be imposed in conjunctionwith the supervision sentence, the Judge paused to note that he had received thememorandum from Corrections concerning B's apprehension about the risk thatMr Mason continued to pose in relation to her safety. We were told by Mr Bailey thatat this point in the hearing the probation officer stood up and reminded the Judge thata whereabouts condition and electronic monitoring could only attach to a sentence ofintensive supervision. After referring to the memorandum from Corrections, the Judgechanged tack and said:13[10] I will impose a sentence of intensive supervision on conditions that Iwill return to in a moment but one of the conditions is a whereabouts conditioncovering an area to limit your ability to identify the victim's location andallowing enough time for a response if you were to enter the exclusion zone.The exclusion zone proposed by Corrections originally covered an area that wasalmost half of Christchurch and would have included your proposed addressand your workplace. I express my gratitude to the officer in charge of the casefor speaking to the victim who has agreed to the restriction of the exclusionzone to an area north of a line that the officer in charge drew on the originalexclusion zone map which I will make available to Corrections.12 Sentencing notes, above n 1, at [7].13 Sentencing notes, above n 1.[11] Corrections also seek that you submit to electronic monitoring in theform of Global Positioning System technology as directed by a probationofficer to monitor compliance with that condition. It is a reasonably restrictivecondition but I consider that it is appropriate to impose it in order to monitorcompliance with the whereabouts condition.[31] The Judge then imposed five further special conditions, which requiredMr Mason to:14(a) complete a violence prevention programme;(b) not associate with or contact B;(c) attend an assessment for an alcohol and drug programme;(d) attend a "counselling, treatment or programme as recommended by theassessment"; and(e) not possess or use alcohol or illicit drugs.[32] The revised exclusion zone covered approximately half of the area originallyproposed. It appears to extend over a significant portion of the north-eastern quadrantof Christchurch.[33] For completeness, we record that once Mr Mason filed his appeal on 6 April,the sentence was automatically suspended pursuant to s 345 of the Criminal ProcedureAct 2011. Thus, since 6 April, the protection order has been the only restraint onMr Mason. Unfortunately, however, Mr Mason was arrested on 13 April after heallegedly sent a text to B in breach of the protection order. Mr Mason is now in custodyin relation to that matter. Mr Bailey opposed the Crown being permitted to adduce theevidence of this new development. Mr Bailey acknowledged, however, that the newinformation concerning Mr Mason's latest alleged breach of the protection orderactually supports part of his case. As no prejudice is actually suffered by Mr Masonin us considering that information, we shall do so.14 Sentencing notes, above n 1, at [12].AnalysisIntensive supervision[34] It is unfortunate the Judge was deflected by the emergence of the Correctionsmemorandum either immediately prior to or during the course of the Judge deliveringhis sentencing decision. Busy District Court Judges have limited time to prepare forand conduct sentencing hearings. It is clear from the sentencing notes thatJudge Kellar was caught off guard by the information contained in the memorandumpresented by the probation officer.[35] Before a sentence of intensive supervision is imposed, the Court must besatisfied that:15(a) such a sentence would reduce the likelihood of further offending by theoffender through the rehabilitation and reintegration of the offender;and(b) the nature of the offender's rehabilitative or other needs requires theimposition of conditions:(i) for greater than 12 months; or(ii) that are not available through the sentence of supervision.[36] This three-step analysis required careful evaluation of the risks of reoffendingposed by Mr Mason, his rehabilitative and reintegrative needs and a comparison of theadvantages and disadvantages of achieving the desired goals through the impositionof a sentence of supervision.[37] In the present case, the Judge properly identified a number of factors thatindicated Mr Mason was at risk of reoffending. Those factors related primarily to hisalcohol abuse, his regular use of cannabis and methamphetamine and his inappropriateattitudes towards personal relationships.15 Sentencing Act, s 54C.[38] Missing from the Judge's reasoning, however, was any analysis of therehabilitation and reintegration needs of Mr Mason and whether conditions to achievethose needs could be achieved through the imposition of a sentence of supervision.[39] The lacuna in the Judge's reasoning is easy to understand because hecommenced his sentencing decision intending to impose a sentence of supervision andwas deflected from that course by the sudden emergence of the memorandum fromCorrections, which focused solely on the risks of Mr Mason's reoffending.Special conditions[40] The difficulties with the sentence imposed were compounded by the impositionof the whereabouts and electronic monitoring special conditions.[41] As we have noted at [18], before a Judge may impose any special conditionsto a sentence of intensive supervision the Judge must be satisfied:(a) there is a significant risk of further offending by the offender; and(b) that standard conditions would not adequately reduce that risk; and(c) that special conditions would reduce the likelihood of further offendingthrough the rehabilitation and reintegration of the offender.[42] The assessment of the risk of reoffending when considering imposing specialconditions to a sentence of intensive supervision involves a higher threshold than theassessment of the risk of reoffending associated with the decision to impose a sentenceof intensive supervision. The risk of further offending that must be considered whenimposing special conditions requires the Court to be satisfied the offender poses asignificant risk of reoffending as opposed to the test set out in s 54C of the Act, whichrequires the Court to be satisfied a sentence of intensive supervision would simplyreduce the likelihood of further offending by the offender.[43] In the hearing before us, Mr Bailey responsibly acknowledged that the DistrictCourt Judge was entitled to conclude there was a significant risk of Mr Masonreoffending. Mr Bailey's acknowledgement engages the first criteria for theimposition of special conditions either to a sentence of supervision or a sentence ofintensive supervision.[44] Missing from the Judge's sentencing decision was any analysis of whetherstandard conditions would adequately reduce the risk of Mr Mason reoffending andwhether special conditions would reduce the likelihood of Mr Mason reoffendingthrough his rehabilitation and reintegration.[45] As we have noted at [22], the purposes of an electronic monitoring conditionare to deter an offender from breaching a whereabouts condition and to monitorcompliance with a whereabouts condition.[46] Logically, therefore, before imposing an electronic monitoring condition theCourt must be satisfied of the need for a whereabouts condition. That need must beassessed against the criteria set out in s 54I of the Act, which we have summarised at[19] and [41] and whether "a whereabouts condition would facilitate or promote theobjective of rehabilitating and reintegrating the offender".16[47] If a Judge concludes a whereabouts condition is required, careful considerationneeds to be given to the scope of that condition. Thankfully, in this case, the Judge'sattention was drawn to the unnecessarily broad scope of the exclusion zone that wasfirst proposed by Corrections. The proposed exclusion zone encompassed the placeswhere Mr Mason would have lived and worked on release from prison. Although thatparticular difficulty was averted, the Judge still needed to assess the minimum scopeof any exclusion zone that was necessary in order to achieve the objectives of thatspecial condition.[48] Again, there is no indication in the sentencing notes that the Judge undertookthe analysis required before putting in place the whereabouts condition or electronicmonitoring conditions.16 Sentencing Act, s 26(2)(i)(ii).[49] In summary, before imposing a sentence of intensive supervision and thehighly restrictive special conditions that are the focus of this case, a Court must besatisfied not only of the heightened risk that the offender poses in reoffending, but alsothe offender's rehabilitative and reintegration requirements. There must be a logicalconnection between a sentence of intensive supervision and any special conditions thatare imposed and the legislative criteria for that sentence and conditions.[50] Before concluding our analysis, we return to the latest allegation thatMr Mason breached the protection order by sending a text to B on 13 April. Mr Baileypointed out that if Mr Mason did offend in the way alleged, then he did so regardlessof the special conditions that were imposed. There is some merit in the argument thatthe special conditions did not deter Mr Mason from making contact with B on 13 Apriland that therefore, the efficacy of those special conditions is open to question.Disposition[51] We have considered whether or not we should remit Mr Mason's case back tothe District Court for re-sentencing. After reviewing all of the material that was beforethe District Court, and having regard to Mr Bailey's acknowledgement about thesignificant risk of Mr Mason reoffending, we consider the appropriate course is tosentence Mr Mason to the sentence that the Judge was intending to impose before hisattention was diverted.[52] Given the risks that Mr Mason poses and the need to ensure he has access toappropriate rehabilitative and reintegration programmes, we quash the sentenceimposed in the District Court and substitute the following sentence and specialconditions:(a) Mr Mason will be sentenced to supervision for a period of 12 monthsto commence on 14 May 2021.(b) The following special conditions are imposed:(i) Mr Mason is to attend and complete an appropriate violenceprevention programme to the satisfaction of a probation officer.The specific details of the appropriate programme shall bedetermined by a probation officer.(ii) Mr Mason is not to associate with or contact B without the priorwritten approval of a probation officer.(iii) Mr Mason is to attend an assessment for alcohol and drugprogramme as directed by a probation officer and to attend andcomplete any counselling, treatment or programme asrecommended by the assessment and as directed by and to thesatisfaction of a probation officer.(iv) Mr Mason is not to possess, consume or use any alcohol ordrugs that are not prescribed for him.Result[53] The appeal against sentence is allowed.[54] We quash the sentence of intensive supervision and all conditions that wereimposed.[55] We substitute a sentence of supervision for 12 months, with the conditions setout at [52].Solicitors:Crown Law Office, Wellington for Respondent