IN THE HIGH COURT OF NEW ZEALAND
WHANGANUI REGISTRY
CRI-2016-483-18
[2017] NZHC 49
BETWEEN
WAYNE THOMAS PATTERSON
Appellant
AND
THE QUEEN
Respondent
Hearing:
1 November 2016
Counsel:
D A Ewen for Appellant
C A Brook for Respondent
Judgment:
31 January 2017
JUDGMENT OF WILLIAMS J
[1]
The appellant was sentenced to two years’ imprisonment for (among other
things) attempting to pervert the course of justice. Standard release conditions were
automatically imposed in accordance with s 93(2)(a) of the Sentencing Act 2002.
[2]
Shortly before compulsory release on expiry of half of the sentence, the
Department of Corrections applied to the District Court under s 94 to vary the
appellant’s release conditions by imposing additional special release conditions. The
appellant appeals against the decision of Judge Cameron in the Whanganui District
Court granting the Department’s application. Two broad issues arise:
(1)
Is there a right of appeal against the decision by the District Court to
vary release conditions under s 94?
(2)
If there is such a right, were the conditions imposed in error?
PATTERSON v THE QUEEN [2017] NZHC 49 [31 January 2017]
The facts
[3]
The appellant Mr Patterson was imprisoned in 2007 for eight years for
defrauding the Ministry of Social Development of $3.4 million in benefit payments.
The fraud was elaborate, sophisticated and committed over a number of years.
While still serving this sentence, Mr Patterson received a further nine month prison
term for escape and attempted escape.
It was while serving these cumulative
sentences that in 2013, he appeared before the Parole Board seeking early release.
He produced in support of his application a letter from the Carterton District Council
promising him a job interview and one from his brother promising to support him on
release. These letters were forgeries. They were typed and signed by Mr Patterson
himself. He subsequently pleaded guilty to two counts of making a false document,
two of using them for advantage and one of attempting to pervert the course of
justice.
On 14 August 2015, shortly after his release date for the cumulative
sentences, he was sentenced by Judge Cameron to two years’ imprisonment for this
offending.
[4]
As Mr Patterson had served the whole of his eight year sentence, the Parole
Board had no jurisdiction to impose any special release conditions on the remaining
short term sentence. Release conditions in respect of short term sentences are within
the mandate of the District Court, not the Parole Board.1 When Mr Patterson was
originally sentenced for the most recent offending, Judge Cameron did not impose
any special release conditions on him, so in accordance with s 93(2)(a) of the
Sentencing Act, standard release conditions as contained in s 14(1) of the Parole Act
2002 were automatically imposed. Those conditions are as follows:
1
(a)
the offender must report in person to a probation officer in the
probation area in which the offender resides as soon as practicable,
and not later than 72 hours, after release:
(b)
the offender must report to a probation officer as and when required to
do so by a probation officer, and must notify the probation officer of
his or her residential address and the nature and place of his or her
employment when asked to do so:
Incidentally, there is an exception for offenders serving a long term sentence who are sentenced
to a short term sentence within 12 months preceding their release date – s 18(3) of the Parole Act
– but that does not apply here.
[5]
(c)
the offender must not move to a new residential address in another
probation area without the prior written consent of the probation
officer:
(d)
if consent is given under paragraph (c), the offender must report in
person to a probation officer in the new probation area in which the
offender is to reside as soon as practicable, and not later than
72 hours, after the offender’s arrival in the new area:
(e)
if an offender intends to change his or her residential address within a
probation area, the offender must give the probation officer reasonable
notice before moving from his or her residential address (unless
notification is impossible in the circumstances) and must advise the
probation officer of the new address:
(f)
the offender must not reside at any address at which a probation
officer has directed the offender not to reside:
(g)
the offender must not engage, or continue to engage, in any
employment or occupation in which the probation officer has directed
the offender not to engage or continue to engage:
(h)
the offender must not associate with any specified person, or with
persons of any specified class, with whom the probation officer has, in
writing, directed the offender not to associate:
(i)
the offender must take part in a rehabilitative and reintegtative needs
assessment if and when directed to do so by a probation officer.
On 15 July 2016, shortly before Mr Patterson was released, having served
12 months of his final two year sentence, the Department of Corrections applied to
the District Court to vary Mr Patterson’s release conditions by imposing further
special conditions as provided by s 94(3). The release conditions sought were as
follows:
(1)
to set up a Real Me account and use this for all financial transactions
that involve the New Zealand Government;
(2)
not to leave the Wairarapa area as defined by a probation officer
without written permission from a probation officer;
(3)
not to access the Internet, or own, use or possess any electronic
devices capable of accessing the Internet, communicating with other
persons, or producing any form of documentation, whether
electronic or printed, without approval from a probation officer;
(4)
upon request, to submit any electronic devices to a probation officer
or a nominated agent for the purposes of monitoring your
compliance with your conditions;
(5)
to gain approval from a probation officer prior to commencing any
employment;
[6]
(6)
to provide details of all bank accounts and other money held by
yourself to the Department of Corrections at all times;
(7)
to provide the Department of Corrections with the registration details
of all motor vehicles owned or driven by yourself;
(8)
to reside at [a given address], Carterton and not to move from the
address without written permission from a probation officer;
(9)
to inform your probation officer of any name changes or aliases that
you intend to use for any purpose.
Mr Patterson was released on 25 July 2016.
Judge Cameron heard the
application on 27 July. He granted the applications on 25 August. He reasoned:2
As I understand it Ms Carter from the Department of Corrections accepts
that the proposed special conditions relate to an overall risk assessment of
the defendant which includes considerations of the many frauds he
committed against the Ministry of Social Development and the methods he
used.
As to this I am quite satisfied that all the special conditions sought to be
imposed are properly designed to reduce the risk of this defendant
reoffending in a dishonest way. This is quite clear for [from?] the detailed
affidavit of the probation officer, Alexander Hall, who deals with each
proposed special condition in turn and explains why it is sought. I accept his
reasoning.
[7]
The Judge concluded:3
In the current case I am satisfied that all the special conditions sought relate
to reducing the risk of the defendant’s prolific dishonesty offending of which
the current offending was but another example. They are well justified.
[8]
Mr Patterson now appeals.
Is there a right of appeal?
[9]
The Crown says this cannot properly be, as it purports to be, an appeal
against sentence under s 244(1) of the Criminal Procedure Act 2011 (CPA). The
Crown says there is no right of appeal against Judge Cameron’s variation decision
under s 94 as it was not made as part of the sentencing exercise: more than a year
had passed. The Crown says s 94 variations are not “any method of disposing of a
2
3
Department of Corrections v Patterson [2016] NZDC 14672 at [7]-[8].
At [10].
case following conviction” in accordance with the definition of sentence in s 212
CPA.
[10]
I take the Crown’s essential point to be that s 94 variations are a distinctive
criminal justice sanction imposed after sentencing and subject to their own checks
and balances.
In this way, the Crown argued, s 94 variations are akin to the
equivalent powers vested in the Parole Board in relation to prisoners serving
sentences longer than two years.4
[11]
The Crown argued that since there is no right of appeal in relation to Parole
Board decisions of this kind, such a right should not be read into the equivalent
District Court decisions in respect of short term sentences. The Crown submitted
that it is significant that s 94 of the Sentencing Act incorporates s 72 as to the
procedure to be followed for s 94 applications,5 but makes no reference to s 73
which preserves appeal rights for certain substituted sentences.6
[12]
For Mr Patterson, Mr Ewen submits that the Crown’s argument is not tenable.
He points out that the Crown accepts that special conditions imposed at the time of
sentencing form part of the sentence and are appealable but offers no plausible
explanation for why that position should be different if the same condition is
imposed by way of subsequent variation. He submitted that prison sentences and
release conditions are “inextricably linked” and the distinction sought to be drawn on
the basis only of the date on which the condition is imposed would create an
anomalous and unjust outcome.
Analysis
[13]
4
5
6
Section 244(1) CPA provides:
See the Parole Act s 15.
See s 94(2): “Section 72 applies with any necessary modifications to an application under this
section.” Section 72 sets out the jurisdiction and procedure for applications for certain
substituted sentences.
Section 73 provides: “For the purposes of any appeal or application for leave to appeal, a
sentence substituted for a community-based sentence imposed on the conviction of the offender
on a charge is deemed to be a sentence imposed on the conviction of the offender on that
charge.”
A person convicted of an offence may appeal under this subpart to the first
appeal court against the sentence imposed for that offence, unless the
sentence is one fixed by law.
[14]
Section 212 defines sentence in these terms:
sentence—
[15]
(a)
includes any method of disposing of a case following conviction; but
(b)
does not include—
(i)
a decision, on conviction, to make or decline to make an
order against the convicted person for the payment of costs
under section 364 or under the Costs in Criminal Cases Act
1967; or
(ii)
a decision, on conviction, to make or decline to make an
order under any of sections 200, 202, or 205 (suppression
orders); or
(iii)
a decision, on conviction, under section 208 to vary or
revoke an order under any of those sections specified in
subparagraph (ii).
It will be seen that sentence is defined inclusively and in broad terms. It
includes any sentence available under the Sentencing Act (reparation, fines,
supervision, community work, imprisonment and preventive detention); ancillary
orders such as confiscation of a motor vehicle or disqualification from driving; an
order on conviction that would not otherwise be understood as a sentence (for
example, an order to come up for sentence if called upon); or the imposition of a
minimum period of imprisonment.7
[16]
On sentencing, ss 93(2) provides for the compulsory imposition of standard
conditions and the discretion to impose special conditions in these terms:
(2)
If a court sentences an offender to a term of imprisonment of more
than 12 months but not more than 24 months,—
(a)
7
the standard conditions apply to the offender until the
sentence expiry date, unless the court specifies a different
date; and sections 94, 95, and 96 apply as if the standard
conditions had been imposed by order of the court; and
See generally Simon France (ed) Adams on Criminal Law – Procedure (online loose leafed,
Thomson Reuters) at [CPA 212.03].
(b)
[17]
the court may at the same time impose any special
conditions on the offender and, if it does so, must specify
when the conditions expire.
Standard conditions are defined in s 93(2B) as those set out in s 14(1) of the
Parole Act and special conditions are of the kind whose broad categories are
described in s 15(3) of the Parole Act. That section provides:8
(3)
[18]
The kinds of conditions that may be imposed as special conditions
include, without limitation,—
(a)
conditions relating to the offender’s place of residence
(which may include a condition that the offender reside at a
particular place), or his or her finances or earnings:
(ab)
residential restrictions:
(b)
conditions requiring the offender to participate in a
programme (as defined in section 16) to reduce the risk of
further offending by the offender through the rehabilitation
and reintegration of the offender:
(c)
conditions that the offender not associate with any person,
persons, or class of persons:
(d)
conditions requiring the offender to take prescription
medication:
(e)
conditions prohibiting the offender from entering or
remaining in specified places or areas, at specified times, or
at all times:
(f)
conditions requiring the offender to submit to the electronic
monitoring of compliance with any release conditions or
conditions of an extended supervision order, imposed under
paragraph (ab) or (e), that relate to the whereabouts of the
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.
Section 93(3) performs the primary gatekeeping role with respect to special
conditions. It provides:
A special condition must not be imposed unless it is designed to—
(a)
8
reduce the risk of reoffending by the offender; or
However, the definition excludes residential restrictions (s 15(3)(ab)), and additional procedures
apply to electronic monitoring (s 15(3)(f)) and prescription medication (s 15(3)(d)).
[19]
(b)
facilitate or promote the rehabilitation and reintegration of the
offender; or
(c)
provide for the reasonable concerns of victims of the offender.
It is common ground that special conditions, if imposed at the time of
sentence, will form part of the sentence and are appealable in accordance with ss 244
and 212.
[20]
[21]
Section 94 relates to variations on those conditions. It relevantly provides:
(1)
An offender who is subject to conditions imposed under
section 93, or a probation officer, may apply for an order
under subsection (3) of this section.
(2)
Section 72 applies with any necessary modifications to an
application under this section.
(3)
On an application under subsection (1), the court may, if it
thinks fit,—
(a)
suspend any condition or vary the duration of any
condition, or impose additional conditions; or
(b)
discharge a condition and substitute any other
condition described in section 93 that could have
been imposed on the offender at the time when the
offender was convicted of the offence for which the
sentence was imposed.
So, either the offender or the Department can apply to suspend or vary
existing conditions or add new ones; or to discharge or substitute conditions if the
conditions could have been imposed at the time the offender was convicted. The
procedure for making the application is set out in s 72 (with modifications as
necessary).
[22]
Even standard mandatory conditions can be varied by these means but two
things are implicit in the regime:
(1)
any variation of standard conditions must be in accordance with the
purposes and principles of the Act; and
(2)
any variation of a special condition (including a variation by imposing
such a condition) must also comply with the requirements of s 93(3).
[23]
While by definition, a s 94 decision will not be made at the time of
sentencing, ss 93 and 94 are very much interlinked and should be read together.
Decisions under s 94 are the same kind of decisions and for the same kinds of
reasons as their equivalents made under s 93. That is why each section crossreferences the other.9
[24]
Mr Ewen identified a number of cases that supported the proposition that
release conditions formed a part of a sentence.10 The Crown was thus right to
concede that special conditions imposed at sentencing form part of the sentence. But
none of the cases addressed the question of post-sentence variations.
It seems
therefore that the relatively narrow question of the correct status of mid-sentence or
even post-release variations has not been resolved in the courts.
[25]
As I have said “sentence” is widely and inclusively defined as any method of
disposing of a case following conviction. While a narrow reading of the definition
would suggest that once the sentencing is complete, the case has been disposed of, I
do not think such a reading is appropriate given the wider interests involved. If
release conditions form a part of the sentence when imposed at that point, a variation
of them (of whatever kind) must logically also form part of the sentence and
therefore be a method (albeit a delayed one) of disposing of the case following
conviction. If it is not technically a resentencing, it is at least analogous to that. The
principle should be that a variation to an appealable decision ought itself be
appealable unless there is a very good reason for adopting a different interpretation.
Release conditions are imposed automatically or by positive decision on short term
sentences at the time of sentence and so are appealable. Any condition imposed after
sentencing is thus by definition a variation of those original conditions and should
also be appealable. This approach promotes consistency of treatment and avoids the
creation of unintended anomalies. There is, in my view, no good reason to treat a
variation as having a different status to the thing that it varies.
9
10
For example see s 93(2)(a) and s 94(1) and (4).
See for example Mark v Police HC Hamilton CRI-2010-419-68, 30 September 2010 and
Latham-Johnstone v Corrections [2014] NZHC 2451.
[26]
I agree with Mr Ewen that a natural reading of the relevant provisions (as I
suggest this is) is consistent also with considerations of access to, and consistent
administration of, justice. The Crown suggested that the correct supervisory path in
these cases is judicial review, but I do not agree. Judicial review is a slower and less
accessible procedure for the prisoner. More importantly it will lead to inconsistency
in the applicable legal standard of review depending only on the time that the
condition was imposed. Such an outcome is to be avoided.
[27]
The Crown submitted further that access to justice considerations are met
through the prisoner’s ability to make multiple applications to the District Court for
review of any conditions imposed. I do not agree with this either. The right of
appeal is a different and often more potent alternative to that of returning to the
forum the prisoner considers to have made the error in the first place. In any event,
there is nothing wrong with both options being available as is the case with respect
to bail which is a control mechanism of a similar kind.
[28]
The Crown made much of the fact that Parole Board decisions in similar
circumstances to these (but in relation to long term sentences) are not appealable.
This the Crown submitted made an appeal right in this case anomalous, creating in
effect, in asymmetry in available supervisory processes between the two systems. I
certainly see the point being made, but I do not consider it is a compelling argument
in favour of denying a right of appeal under s 244. Quite apart from considerations
of access to justice, I consider the more compelling argument is that relating to
internal consistency of treatment of the conditions themselves.
[29]
The Crown’s best argument was that although s 94 cross-references s 72 as to
the appropriate application procedure, it does not incorporate s 73 which relates to
appeals against sentences subsequently substituted for community-based sentences.
I accept that this omission at least hints at the legislature’s expectation that there
would be no appeal right in respect of the variation of release conditions, but the hint
is not a particularly strong one. The omission could equally have been simply an
oversight. It is certainly not, in my view, a contextual clue sufficient to override the
more natural and consistent construction, particularly where this construction has the
additional advantage of favouring greater access to justice.
[30]
I find Mr Patterson has a right to appeal the District Court’s s 94 decision as
it is an appeal against sentence in terms of s 244.
[31]
I note that the appeal was filed out of time, and leave is required. Leave is
granted accordingly.
The conditions
[32]
Mr Ewen takes a New Zealand Bill of Rights Act 1990 (NZBORA) approach
to the substantive appeal. He does not challenge Condition 1 (the requirement for a
“Real Me” account with respect to transactions with the government) or Condition 5
(in relation to pre-approval of employment) but he attacks the remaining conditions.
He submits that:
(1)
Conditions controlling access to and use of the Internet and use of
aliases are unreasonable infringements on Mr Patterson’s freedom of
expression. (Conditions 3 and 9).
(2)
Controls on residence unreasonably infringe his freedom of
movement. (Conditions 2 and 8).
(3)
Conditions requiring him to submit all electronic devices for
monitoring, and to provide details of all bank accounts and motor
vehicles owned or used by him, as infringing his right to security from
unreasonable search and seizure. (Conditions 4, 6 and 7).
[33]
The essence of Mr Ewen’s argument is that the Judge was required, but
failed, to assess each condition for rational nexus, reasonable necessity and
proportionality in accordance with the test in Hansen.11 The failure in this regard
was, he submitted, an error “vitiating” the decision. This, he said, was the point
made by the Court of Appeal in R v Janssen.12
11
12
Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.
R v Janssen [2007] NZCA 450 at [17].
[34]
As a variation on the rational nexus argument, Mr Ewen argued further that
the conditions challenged were imposed for an improper purpose – the detection and
prosecution of further offending rather than its prevention.
[35]
The Crown submitted that no express NZBORA analysis was required
because NZBORA values were implicit in the various considerations required to be
applied under the Sentencing Act.
Analysis
[36]
Section 93(3) provides, as Mr Ewen pointed out, a “negative injunction”.
Special conditions may not be imposed unless their purpose is to reduce the risk of
reoffending, to facilitate the prisoner’s rehabilitation and reintegration, or to provide
for the reasonable concerns of the offender’s victim(s).
[37]
Section 94 involves the exercise of a discretion under the Sentencing Act
including its purposes and principles as set out in ss 7 and 8. This includes the
injunction in s 8(g) requiring the court to impose the least restrictive outcome in the
circumstances. And as Anderson P noted in R v Fatu13 (this in the context of a bail
appeal), NZBORA will be relevant in that context in reinforcing the necessity for
close examination of the justification for rights restricting decisions.
[38]
In my view the combined effect of ss 8(g) and 93(3) is similar to that which
an NZBORA approach would require. In particular, implicit in these provisions are
the requirements in relation to any special conditions that might be imposed
(whether originally or by way of variation), for a rational nexus to the purposes in
s 93(3) and the principles and purposes of the wider Act; reasonable necessity in
terms of achieving the relevant objective; and proportionality in terms of the level of
restriction on freedom.
[39]
Some of the background to this case will be important in terms of providing a
broad justification for the particularly intrusive special conditions imposed.
Mr Patterson’s case was somewhat notorious. His dishonesty offending in the past
13
R v Fatu (2005) 22 CRNZ 524 (CA) at [8].
had been on an unprecedented scale.
And, as two subsequent sentences of
imprisonment demonstrate, his dishonesty offending did not stop once he was
incarcerated. Special conditions would, in these circumstances, be expected. It is a
little surprising they were not sought at the time of sentencing. The fact that they
were imposed on a short term sentence is a product of circumstance. At the
conclusion of his long term sentence (the point at which the Parole Board might well
have imposed its own special conditions), Mr Patterson became subject to the new
short term sentence (triggering the District Court jurisdiction in relation to special
conditions). Though s 93 is triggered by the particular index sentence, it is not
invoked solely in relation to it. The prisoner’s broader background will be of
considerable relevance to the s 93(3) factors.
[40]
Conditions with a view to all of Mr Patterson’s past offending and aimed at
preventing further similar offending are clearly rationally connected to the s 93(3)(a)
and (b) purposes of reducing the risk of reoffending and promoting rehabilitation.
[41]
The distinction Mr Ewen sought to draw between prevention on the one hand
and detection and prosecution is false. Detection and prosecution have their own
preventive effects. If the offender is aware that there is a high risk of being caught
and prosecuted for new offences, this is often the best form of prevention.
[42]
Thus the area of debate is not around rational connection but necessity and
proportionality. For the most part, I consider these conditions to be necessary and
proportionate in light of Mr Patterson’s extraordinary recidivist proclivities. The
freedom of movement controls reflect Mr Patterson’s past patterns of peripatetic
offending. They are necessary and proportionate. It is to be remembered that the
standard conditions also allow the Department to dictate residence.14 The special
conditions relating to residence and travel are, I accept, more intrusive than the
standard ones, but not significantly so.
To repeat the point I made earlier,
Mr Patterson’s recidivist proclivities are, demonstrably, very high indeed.
Conditions 2 and 8 are justified accordingly and I can find no error in their
imposition.
14
Section 14(1)(f) Parole Act.
[43]
The requirement to submit devices for monitoring and to provide details of
bank accounts and motor vehicles are also necessary and proportionate, again in light
of Mr Patterson’s history of fraud using the Internet, multiple bank accounts and
extensive travel by means of motor vehicle.
[44]
The one condition I consider to be disproportionate and unnecessary relates
to the ban on accessing the Internet at all. This is overly draconian in modern
New Zealand and in any event, demonstrably fails to facilitate reintegration in terms
of s 93(3)(b). Prevention is amply served by the condition (that I have found to be
lawful and appropriate) entitling Corrections staff or their agents to monitor
Mr Patterson’s Internet use at their discretion.
[45]
Condition 3 is amended so as to read:
(3)
[46]
to disclose to a probation officer any electronic devices capable of
accessing the Internet, communicating with other persons, or
producing any form of documentation, whether electronic or printed,
as he may or may wish to own, use or possess.
The appeal is allowed to that limited extent and is otherwise dismissed.
Williams J
Solicitors:
Brandon Street Chambers, Wellington
Crown Law, Wellington