Quentin Dylan Woods v New Zealand Police

• Jurisdiction: New Zealand
• Judge: Winkelmann CJ,Arnold J
• Judgment Date: 10 December 2020
• Neutral Citation: [2020] NZSC 141
• Court: Supreme Court
• Docket Number: SC 115/2019
• Date: 10 December 2020

Between

Quentin Dylan Woods

Appellant

and

New Zealand Police

Respondent

[2020] NZSC 141

Court:

Winkelmann CJ, William Young, Glazebrook, O'Regan and Arnold JJ

SC 115/2019

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Criminal Sentence — appeal against a Court of Appeal decision which rejected the appellant's argument that a combination of special conditions imposed on the appellant amounted to “residential restrictions” as defined in the Parole Act 2002and that on each occasion the Court had no jurisdiction to impose those conditions — imposition of conditions on release of offender sentenced to imprisonment for short term — Sentencing Act 2002

Counsel:

M Starling and N R Wham for Appellant

V McCall and S E Trounson for Respondent

The appeal is allowed.

JUDGMENT OF THE COURT

REASONS

(Given by Winkelmann CJ and Arnold J)

Table of Contents

	Para No.
Factual background	[3]
Legislative framework	[20]
Preliminary points	[24]
Were special conditions restricting the appellant to the Toruatanga residence lawfully imposed?	[30]
The Court of Appeal judgment	[30]
Submissions	[38]
Nature of the conditions	[45]
Did the Courts have jurisdiction to impose these conditions?	[57]
Was intensive monitoring imposed on the appellant?	[85]
The Court of Appeal judgment	[86]
Submissions	[89]
Analysis	[91]
Result	[99]

1 The issues on this appeal concern the conditions that may lawfully be imposed under s 93 of the Sentencing Act 2002 on the release of an offender sentenced to imprisonment for a short term.

2 On two occasions with which this appeal is concerned, the appellant was sentenced to a short term of imprisonment of 12 months or less. 1 The appellant contends that the special release conditions imposed to apply after their 2 release from prison subjected them to conditions amounting to residential restrictions and intensive monitoring, both of which were beyond the jurisdiction of the sentencing Courts to impose.

Factual background

3 On 19 April 2018, the appellant was sentenced by Judge Rowe in the District Court on two charges of common assault, one of threatening behaviour and one of possession of an offensive weapon. 3 They were sentenced to eight months' imprisonment with standard 4 and special conditions on release to expire six months after the sentence expiry date. The special conditions imposed were that they: 5

• (a) attend a psychological assessment and complete any counselling or treatment as recommended;

• (b) attend an alcohol and drug assessment and attend and complete any recommended treatment to the satisfaction of a probation officer and treatment provider;

• (c) attend any counselling/programmes as directed to the satisfaction of a probation officer and provider;

• (d) submit to electronic monitoring in the form of global positioning system (GPS) technology as directed by a probation officer in order to monitor compliance with any condition(s) relating to the appellant's whereabouts; and

• (e) not enter Palmerston North city, as defined by the Council boundary map, without the prior written consent of a probation officer.

4 These special conditions were imposed to respond to information available to the sentencing Judge in the form of a “Provision of Advice to Courts” report that described the appellant's lengthy history with Oranga Tamariki and mental health services. The report writer considered that the appellant required “very specialised help” to assist them in their rehabilitation and to reduce the likelihood of harm to their victims and other members of the public.

5 Whilst the appellant was in custody, they experienced psychotic episodes and were transferred to an At-Risk Unit within the prison. They would bang their head against walls and floors, requiring hospitalisation on several occasions before being returned to prison. As a result, the appellant was waitlisted for a bed in the secure mental health residential unit at Kenepuru Community Hospital in Porirua, but no bed became available prior to the appellant's release.

6 As a result of these events, the Department of Corrections applied to vary the special conditions under s 94 of the Sentencing Act on the basis that the original conditions were insufficient to mitigate the appellant's risk to themselves and others. The Department asked the District Court to amend the order so that the appellant could be released to Toruatanga — supported accommodation located in Christchurch and managed by Christchurch Residential Care (CRC), a third-party contractor who provides services to the Department.

7 In an affidavit in support of the variation application, a probation officer indicated that the Department considered the appellant required “appropriate accommodation and a high level of wrap-around support to manage [the] risk to [themselves] and others at this time” and that despite extensive efforts to source appropriate care and support, the Department had been unable to find any suitable mental health option for the appellant. The probation officer went on to say:

… a house is available for a short-term period in [Toruatanga], Christchurch from [the appellant's] release date. Toruatanga is supported accommodation provided by the Department of Corrections and is located near Christchurch Men's Prison developed to facilitate offenders' integration into the community. Residents are supported by an external agency; to find permanent accommodation, engage in employment or further education, facilitate transport to and from appointments, and support residents in developing the life skills necessary [to] living independently in the future such as cooking, budgeting, safety planning, problem solving and managing high risk situations. External agency staff are available 24/7 to residents. Residents are expected to abide by the house rules which include abstinence from alcohol and drugs, having approved visitors only at the address, remaining at the address between 8.00pm and 8.00am daily, participating in reintegration activities and maintaining a tidy property. Residents are not permitted to leave the property by themselves. Supervised outings occur with staff to ensure the safety of residents and the local community. Prior to supervised outings safety plans are developed and approved by Corrections and the agency staff. Individual reintegration plans are generated with each resident, and they transition out of the supported accommodation at their own pace according to meeting the steps of their reintegration plan. To ensure consistency for residents of Toruatanga, to support them in their integration into the community and to ensure staff safety of both Department of Corrections and the external agency employees the additional special conditions are considered necessary.

… The house is managed by Christchurch Residential Care (CRC) who are contracted by the Department. CRC would provide two staff at all times to work with [the appellant], support [them], encourage [their] reintegration and keep [them] safe. Staff would develop a weekly plan with [the appellant] to support [their] reintegration and enhance [their] stability in the community. CRC staff are experienced in working with offenders with complex mental health needs and behavioural issues.

… it is expected that [the appellant] will be able to reside at the house for a minimum of six weeks and possibly up to several months. The Department and CRC, working with a community mental health team, would closely monitor and support [the appellant] during that time and reduce the hours of oversight if appropriate and safe. The Department will work with [the appellant], Oranga Tamariki and other providers during this time to source longer-term accommodation and support at the level [they require] at that time.

8 The Department sought the following additional special conditions to support the reintegration of the appellant back into the community:

• (a) to reside at an address as approved by a probation officer and not to move address without prior written approval of a probation officer;

• (b) to be placed in the care of an agency approved by the chief executive of the Department and, between the hours of 8 am and 8 pm daily and while in the care of that agency, to be accompanied and monitored by an agency staff member at all times unless with the prior written approval of a probation officer;

• (c) to undertake, engage in and complete a reintegration programme administered by a programme provider between the hours of 8 am and 8 pm each day of the week, as approved by a probation officer, and abide by the rules of the programme to the satisfaction of a probation officer;

• (d) not to stay overnight away from their residence without the prior written approval of a probation officer. This meant that they were required to be present at their address between the hours of 8 pm and 8 am;

• (e) not to possess, consume or use any alcohol or drugs not prescribed to them; and

• (f) to comply with the requirements of electronic monitoring, and provide access to the approved residence to the probation officer and representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by the probation officer.

9 The application for variation came before Judge Farish on 19 June 2018. The Judge declined to impose the condition listed at [8(b)] above. She accepted defence counsel's submission that she did not have jurisdiction to impose such a condition, although she observed that the condition was to a certain extent covered by the residential condition. The Judge imposed all other conditions sought. 6 In relation to the 8 pm to 8 am curfew, the Judge was satisfied that it was necessary and would assist the appellant, and that she had the power to impose it.

10 The...