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Te Whatu v Department of Corrections [2017] NZHC 3233; [2018] 2 NZLR 822 (19 December 2017)

Last Updated: 31 May 2019

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

_{KIRIKIRIROA ROHE}

CRI-2017-419-063 [2017] NZHC 3233

_{ORAL JUDGMENT OF PALMER J}

Solicitors:

Almao Douch, Hamilton

Public Defence Service, Hamilton

TE WHATU v DEPARTMENT OF CORRECTIONS [2017] NZHC 3233 [19 December 2017]

Summary

[1] Mr Stephen Te Whatu pleaded guilty to a charge of theft $25.30 from a tip jar in a Hamilton restaurant and to breaching a condition of his Extended Supervision Order (ESO) by associating with his own partner of some seven years. He was sentenced to 18 months in prison.

[2] In issuing a blanket direction that Mr Te Whatu not associate with his own partner the Department of Corrections breached Mr Te Whatu’s right to freedom of association under the New Zealand Bill of Rights Act 1990 (Bill of Rights). The Department had cause for concern but its direction was too broad and blunt and was a disproportionate response to the problem. Accordingly, it was unlawful. Mr Te Whatu’s conviction for breaching it was a miscarriage of justice. I uphold Mr Te Whatu’s appeal against his conviction. I also uphold his appeal against his sentence of two months’ imprisonment for taking $25.30 as manifestly excessive in New Zealand in 2017.

What happened?

[3] Mr Stephen Te Whatu is 43. Corrections’ pre-sentence report states Mr Te Whatu suffered a significant head injury when he was young and has been diagnosed with and treated for paranoid schizophrenia. He receives an Intravenous Medication Injection fortnightly. He resides at the Hamilton Men’s Night Shelter. Mr Te Whatu has been in a relationship with his partner for approximately seven years. They have one child who is approximately seven years old and his partner has another child who is approximately eight years old. The two children usually live with their grandparents elsewhere but stay with their mother from time to time.

The Extended Supervision Order

[4] Mr Te Whatu has served sentences for two offences of indecent assault, one on a girl over 16 in 2003 and one on a girl aged between 12 and 16 in 2002, one offence of doing an indecent act in 2002 and one offence of doing an indecent act on a boy aged between 12 and 16 in 1999. After he served his sentences, on 25 January

2005 the Whakatane District Court imposed an ESO on Mr Te Whatu for a period of

ten years from 12 January 2005. An ESO imposes restrictions, for up to ten years, on an individual who is considered by a Court to be of real and ongoing risk of committing serious sexual or violent offences.

[5] Section 107Q of the Parole Act 2002 provides that, when a new determinate sentence is imposed, time on the ESO ceases to run. It is reactivated on the prisoner’s statutory release date. Since 2005, Mr Te Whatu has been sentenced to imprisonment on a number of occasions. That includes sentences of one month and of nine months for breaching the ESO, for which he has been convicted on

13 occasions. Corrections’ pre-sentence report states six breaches consisted of failing to report to his Probation Officer, two involved moving from an approved residential address without permission, two involved failing a drug test and the other three involved absconding from his residential address, failing to remain at his residential address during curfew and having contact with children under the age of

16 by going to his partner’s home to have contact with their son.

[6] By affidavit, a Corrections manager says the ESO expires on 15 October

2018. The Crown proposes to set out for me, in a memorandum, the calculations lying behind this. I proceed on the basis the ESO imposed on Mr Te Whatu is still in force.

[7] I do not have a copy of the sentencing remarks which led to the original ESO. I do have a copy of the ESO which was imposed. Mr Te Whatu was subject to the then-standard condition of an ESO:¹

The offender must not associate with any specified person, or with persons of any specified class, with whom a probation officer has, in writing, directed the offender not to associate.

The non-association direction

[8] A manager in the Department of Corrections has provided an affidavit explaining the basis on which the non-association direction was made. She says

_{Mr Te Whatu cannot identify situations that put him at risk of further offending and}

1. The current version of this condition, specified in s 107JA(1)(k) since 2007, is slightly different, particularly in not specifying who is to give written direction to the offender.

does not avoid contact with children despite that being a special condition of his ESO.² She provides records supporting that. She points to records of suspicions by a Corrections staff member that Mr Te Whatu was in more regular contact with his partner’s children than he admitted. She refers to a report in August 2015 that Mr Te Whatu saw his son on his birthday and a number of reports in September 2015 that Mr Te Whatu had stated he had spoken to his son “briefly” after he picked up his partner’s phone when he called, with no further details.

[9] The Corrections’ manager says his partner facilitates contact between Mr Te Whatu and her children in active breach of conditions of the ESO and points to records of four such contacts.³ One of these alleged he had visited his partner’s address to have contact with his son after being advised by his partner that his son was at the address but provided no further details of the circumstances. Another was apparently a fleeting greeting while his partner’s parents were putting his son in the car and taking him from the address. The third was a Probation Officer’s suspicion he had seen both children while his partner was looking after them, though the Probation Officer concluding there was “no way of knowing” if she was bringing the children to him.

[10] The fourth record of contact was the catalyst for the non-association direction. The Corrections manager states there was a concern Mr Te Whatu’s partner was grooming an 11-year old girl in her neighbourhood for sexual offending by Mr Te Whatu. The supporting Corrections’ record on 27 March 2017 stated the Police had received information from a neighbour advising that Mr Te Whatu’s partner had offered to buy alcohol for the neighbour’s 11-year-old daughter.⁴

Corrections recorded:⁵

There appears that some grooming could be occurring – as [Mr Te Whatu] is spending a lot of time at [redacted] with [his partner].

PO advised that after this information PO will give non-association letter for [Mr Te Whatu] that he is not allowed to associate with [his partner] effective from 28/3/17 at 9.00am.

² Affidavit of Donna Phillips, 4 December 2017, at [7]–[8].

³ At [15].

⁴ Exhibits to affidavit at 91.

[11] On 29 March 2017, the Probation Officer asked Mr Te Whatu about what information the Police might have and the response appears to have been the neighbours had said he had been at his partner’s address when his son was there and had questioned why his partner offered her daughter alcohol.⁶ The Probation Officer then provided him with the direction letter which stated:

As you know you are subject to an Extended Supervision Order. Those standard conditions include an obligation not to associate with any specified person, or with persons of a specified class, where your probation officer has directed you in writing not to do so.

As the probation officer to whom you currently report I hereby direct you not to associate with the above named.

Failure to comply with this direction will result in enforcement action being taken against you, and you can be charged with an offence. If you are convicted, you may be sentenced to a term of imprisonment not exceeding two years or a fine not exceeding $2,000.

[12] In response to the direction, Mr Te Whatu said the neighbour was lying and refused to sign it, but was told it stood anyway. The final entry on this Corrections record was: “PO advised that there is no evidence presently that he has been in contact with children, however, PO believes that he has been in contact.”⁷

[13] The Corrections’ manager states in her affidavit that Mr Te Whatu has explained to Corrections that one of his convictions arose from him requesting a young person to perform an indecent act on him in order to earn alcohol. But the supporting record she cites does not say Mr Te Whatu admitted to requesting the indecent act, nor that he himself offered the alcohol as a trade.⁸

[14] Corrections’ risk assessment of Mr Te Whatu, dated 29 March 2017, states:

Stephen advises that on regular occasions the children will come and stay on weekends and school holidays. Stephen informs that he does not go around to [redacted] house when they are present. However, it is noted that Stephen has been breached on several occasions, due to not staying at his approved address, and was staying with [redacted] and having contact with children, when his partner has invited Stephen around when they have been present. Contact with [redacted] increases his risk of having contact with children under 16 years of age. Of note [redacted] also has mental health issues.

⁶ Exhibits at 90.

⁷ Exhibits at 90.

Confirmation has been received from the Hamilton Police, that [redacted] has been offering a 11 year old [with] alcohol, [redacted] could potentially be grooming her for Stephen. Therefore Stephen has been given a direction not to associate with her.

Presently there are not positive relationships in Stephen’s life, the primary

support was [redacted] whom has been classed as negative.

Stephen normally associates with the homelessness in Hamilton.

[15] The Corrections manager summarises the reasons for issuing the non- association direction as follows:⁹

The direction not to associate with [his partner] was issued because the Department of Corrections identified a risk arising by the apparent offending-supportive attitudes of [his partner]. That is not a risk that arises only in particular circumstances that could be addressed by a direction limited to just those circumstances. An unqualified direction not to associate at all was considered necessary given the risks and attitudes of the appellant, combined with [his partner] actively facilitating access to children.

Theft, arrest, conviction and sentence

[16] At 7.45 pm on 7 June 2017 Mr Te Whatu was alleged to have taken $25.30

from the “tip jar” at a Hamilton bar.

[17] On 8 June 2017 Mr Te Whatu was seen at his partner’s address by a Police Officer. He stated he was dropping off money. According to Corrections’ pre- sentence report he told Corrections he had had food poisoning, had soiled his pants and went to his partner’s place to clean himself up. He was arrested for breaching the non-association direction.

[18] Mr Te Whatu pleaded guilty. As I explain in greater detail late, Judge R L B

Spear sentenced him to 18 months’ imprisonment.

The appeals

[19] Mr Te Whatu appealed his sentence. At the first hearing of that appeal, on

10 November 2017, I expressed concern to Mr Dillon, for the Crown, about whether the Probation Officer’s direction that Mr Te Whatu not associate with his partner was consistent with Mr Te Whatu’s right to freedom of association under s 17 of the Bill

⁹ At [19].

of Rights. Mr Dillon responsibly acknowledged that, on its face, it was not. He also acknowledged a blanket prohibition would go too far in covering periods when his partner is not accompanied by children. And he acknowledged that, if there was no legal power to make the direction because it was inconsistent with the Bill of Rights, Mr Te Whatu’s conviction may be affected.

[20] Mrs Chandra confirmed she had not had a copy of the direction when she provided Mr Te Whatu with legal advice in advance of his plea. She considered that, if she had, her legal advice may have been different. He may not have pleaded guilty. She also confirmed Mr Te Whatu’s partner does not have custody of her children (one of whom is Mr Te Whatu’s). She applied orally for leave to appeal Mr Whatu’s conviction out of time. Mr Dillon, responsibly, did not oppose that. I granted leave, in the interests of justice, under s 231 of the Criminal Procedure Act

2011. Both counsel considered it would be better to have the argument on the sentence appeal at the same time as the conviction appeal. I agreed and adjourned the sentence appeal hearing.

[21] Both parties had the opportunity to apply to adduce fresh evidence. The Crown has filed an affidavit explaining the reasons for the notice. The evidence is fresh and credible and its admission as evidence is in the interests of justice. Responsibly, Mrs Chandra does not oppose its admission. Under s 335 of the Criminal Procedure Act 2011, I grant leave for the affidavit to be adduced.

[22] On 13 December 2017, after Mr Te Whatu’s submissions were filed, there was a teleconference at which Mr Dillon raised the question of whether the proceeding should be a judicial review since the heart of the appeal appeared to involve a challenge to the exercise of a statutory power by a probation officer in making a direction under the ESO. Mrs Chandra considered the proceeding is and should be an appeal against conviction and sentence, and should not be a judicial review. I confirmed the proceeding is currently an appeal and, while it could be the subject of a judicial review, it need not be.

Issue 1: Should the conviction be overturned because the direction breached the

Bill of Rights?

Law of conviction appeals

[23] Section 229 of the Criminal Procedure Act 2011 provides a person convicted of an offence may appeal against the conviction, in this instance to the High Court. Under s 232(2)(c) the appeal court must allow an appeal if satisfied, relevantly, “a miscarriage of justice has occurred for any reason”. Section 232(4) defines “miscarriage of justice” to mean:

any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[24] Section 232(5) provides that “trial” includes a proceeding in which the appellant pleaded guilty. A miscarriage of justice will occur where the appellant did not appreciate the nature of a particular charge, or on the admitted facts the appellant could not in law have been convicted of the offence charged, or where trial counsel has erred in their advice to an accused and there is a real risk it affected the outcome.¹⁰ In T (CA 662/2012) v R, the Court of Appeal said “incorrect advice about the consequences or outcomes of a guilty plea may suffice where the particular combination of circumstances gives rise to a miscarriage of justice.” ¹¹

Submissions

[25] Mrs Chandra, for Mr Te Whatu, submits she had not turned her mind to the Bill of Rights issues in providing legal advice to Mr Te Whatu about his plea and her advice was given without a copy of the direction. She submits a miscarriage of justice occurred in both respects. She further submits the Probation Officers’ concerns are not substantiated to a significant degree and the catalyst event involving the neighbours was not the subject of any follow up. She submits there has been no

_{further sexual offending by Mr Te Whatu and questions his assessment as high risk.}

¹⁰ R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [13]; R v Merilees [2009] NZCA 59 at [24];

Sungsuwanv R [2005] NZSC 57, [2006] 1 NZLR 730 at [70].

¹¹ T (CA 662/2012) v R [2013] NZCA 550 at [36].

Mrs Chandra submits a less restrictive direction would have been reasonable if aimed at the objective. She submits the conviction for breach of the ESO is unsafe because the non-association direction is a breach of his right to freedom of association under the Bill of Rights because it is not proportionate to the risk factors here. She submits the direction is unlawful and the appeal should be upheld.

[26] Mr Dillon submits the direction was targeted in that only one person was singled out for non-association, albeit an important person in Mr Te Whatu’s life. He submits the risks presented by Mr Te Whatu associating with his partner, who is not aware of the risks and has mental health issues, were unacceptable. He submits the non-association direction could not be more limited than it was, so the right balance was struck. He submits the power to issue a non-association direction was lawfully exercised in the circumstances of this case. Accordingly, he submits reasonable proportionality is established, the conviction cannot be said to have resulted in a miscarriage of justice and the appeal should be dismissed.

Decision

[27] The ESO regime has been part of the New Zealand criminal justice system since 2004. Unusually, it restricts individuals’ freedom not because of what they have done in the past but because of what a court considers they might do in the future. As I noted in Department of Corrections v Thorpe, in exercising its powers under the Parole Act 2002 to make ESOs, a court must make orders consistently with the Bill of Rights.¹²

[28] The same is true of the Department of Corrections when it makes decisions under the ESO regime. Corrections is empowered to make a non-association direction currently by s 107JA(k) of the Act. The empowering clause must be read consistently with the Bill of Rights. That means decisions made under it may not made be inconsistent with the Bill of Rights. As Mr Dillon acknowledges, Corrections’ decision must only limit the rights guaranteed under the Bill of Rights to the extent allowed under s 5 of that Act. So, Corrections only has the legal power

_{to issue a non-association direction where the ensuing limit to the right to freedom of}

¹² Department of Corrections v Thorpe [2017] NZHC 2559 at [14].

association is a reasonable limit, “prescribed by law as can be demonstrably justified in a free and democratic society”. If Corrections issues a non-association direction, or makes any other decision under the ESO regime, that goes further than that, its exercise of its statutory power is unlawful.¹³

[29] As Mr Dillon acknowledges, in assessing whether the limit is reasonable the importance and significance of the objective being pursued must be assessed and, according to the Court of Appeal in Moonen v Film and Literature Board of Review:¹⁴

The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective.

[30] Similarly, the relevant parts of Tipping J’s test in Hansen v R involved asking whether the limit serves a purpose sufficiently important to justify curtailing a freedom, whether it is rationally connected with its purpose, whether it impairs the freedom no more than is reasonably necessary for sufficient achievement of the purpose and whether the limit is in due proportion to the importance of the objective.¹⁵

[31] Here, it is clear the staff of the Department of Corrections were concerned about Mr Te Whatu’s potential for reoffending against children. Managing these risks is the objective of the legislation itself and is clearly a legitimate and important objective. It could be sufficiently important to justify curtailing a freedom. I agree the neighbour’s statement to the Police was ground for concern about his partner’s behaviour and that she might potentially facilitate contact with children. But most of the other records Corrections points to are essentially its own suspicions or fleeting and insignificant contact which seem unlikely to contribute to a risk of offending.

_{The Probation Officer’s statement after the non-association direction was issued}

¹³ Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (CA) at [68]; Cropp v Judicial Committee [2008] 3

NZLR 774 (SC) at [5].

¹⁴ Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA) at [18].

¹⁵ Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [104].

demonstrates it was issued on the basis of belief, not evidence. After all, evidence would found a prosecution for breach of the special condition.

[32] So, there was some cause for concern. It is understandable Corrections would want to act on it. But the concern was centred on whether Mr Te Whatu was having contact with children. That concern was already squarely addressed by the special condition of the ESO that he not have contact with children. The non- association direction regarding his partner appears to have been an indirect means of trying to ensure compliance with that special condition when there was no evidence it was not complied with. Corrections needs to carefully test the information on which it relies if it proposes to infringe human rights to check doing so is demonstrably justified in a free and democratic society. I accept Mrs Chandra’s submission that directing Mr Te Whatu not to associate with his own partner set him up to fail. This was in the context of Mr Te Whatu not having been charged with sexual offending since 2003. And since 2005, he has breached his ESO by having contact with children only once, when he saw his son at his partner’s place.

[33] There are few more serious breaches of the right to freedom of association than preventing someone from associating with their own partner. Such a blanket direction was not targeted at the real concern about Mr Te Whatu’s contact with children. It applied to him having contact with her whether or not children were around. And the order has deprived Mr Te Whatu of the support of his partner, which the Crown concedes is his primary source of support. The concern may have been bigger than a nut, but the tool used was at least as big as a sledgehammer. And it was a blunt sledgehammer. The non-association direction had no qualifications whatsoever. That is illustrated by the alleged breach. If Mr Te Whatu was dropping off money to his partner, or cleaning himself up, that is unrelated to the risk of his reoffending against children. Such an unqualified direction was too broad and blunt. It was a disproportionate response to the problem.

[34] In issuing a blanket direction that Mr Te Whatu not associate with his own partner the Department of Corrections breached Mr Te Whatu’s right to freedom of association under s 17 of the Bill of Rights in a way which was not a justified

limitation under s 5. Corrections now has the opportunity to craft a proportionate direction that is lawful, if it wishes. The existing one was made unlawfully.

[35] I consider the conviction of Mr Te Whatu for breaching an unlawfully made direction, in a way which did not constitute a risk of reoffending, was a miscarriage of justice. It may well be that his lawyer would have advised Mr Te Whatu differently about his plea if she had seen the direction. But irrespective of that, I consider the unlawful nature of the direction created a real risk that the outcome constituted a miscarriage of justice. I allow the appeal and quash the conviction.

Issue 2: Should the sentence be quashed because it was manifestly excessive?

Law of sentence appeals

[36] Under s 250 of the Criminal Procedure Act 2011 I am required to allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss the appeal. The High Court does not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

The decision under appeal

[37] In his sentencing decision of 18 August 2017, confronted with Mr Te Whatu’s persistent breaches of his ESO, Judge Spear considered all he could do was to impose a sentence that would tell him “in clear and ringing terms” that he must comply with the ESO strictly.¹⁶ The Judge stated:¹⁷

Taking the charge of breaching the extended supervision order as the lead charge, I adopt a starting point of 12 months’ imprisonment. For your extensive criminal history I lift that by nine months which of course includes also the further charge of theft with another two months and I will allow you full credit for early guilty pleas which brings me to an all-up sentence of 18 months imprisonment.

¹⁶ New Zealand Police v Te Whatu [2017] NZDC 18448 at [6].

¹⁷ At [18].

Submissions

[38] Mrs Chandra submits the uplift of nine months for previous convictions was excessive and the uplift of two months for the theft charge means the overall sentence was inconsistent with the totality of the offending. She submits an end point sentence of four to six months’ imprisonment would have been appropriate for the ESO breach and at most, one month, concurrently for the theft. Mr Dillon, for the Crown, submits the sentence was not manifestly excessive in light of Mr Te Whatu’s criminal history which exhibits greater recidivism than in other cases. He submits the sentence for the theft should be in the region of two months’ imprisonment given his previous history of dishonest acts.

Decision

[39] I have considered all of Mrs Chandra’s, and Mr Dillon’s, submissions. My conclusion on the conviction appeal means the sentence for the breach of the ESO is quashed. However, I consider the sentence appeal in respect of that sentence anyway, in case I am wrong about the conviction appeal. And I determine the sentence appeal in respect of the remaining charge of theft. Overall, I consider there are four errors in the District Court’s sentencing.

[40] First, as Mr Dillon for the Crown responsibly acknowledges, there is a

mathematical error in the judge’s reasoning. Twelve months plus nine months is

21 months. A full 25 per cent discount on that would result in 15 and three quarter months. If, though contrary to what the Judge said, the two months for theft is a further uplift, the total would be 23 months. A full 25 per cent discount on this nominal sentence would result in 17 and a quarter months. That is the first error.

[41] Second, I consider the uplift of nine months for previous convictions, on a starting point of 12 months, is disproportionate. An uplift in a sentence is not justified on the basis that there are previous convictions. That would be to punish the offender twice. As the Court of Appeal has made clear, an uplift for previous offending is justified on the basis of deterrence and, in some cases, protection of the

public, because they indicate a tendency to commit the particular type of offence for which the offender is convicted. ¹⁸

[42] As Davison J has stated recently “[t]he quantum of an uplift must be both proportionate and not such as to effectively punish the offender over again for the past offending for which the sentence has been served”. ¹⁹ In Williams v Department of Corrections Duffy J found an uplift of 12 months on an 18-month sentence (an uplift of 66 per cent) for 10 previous convictions for breaching an ESO and

41 others, did not maintain the delicate balance between the need to protect the public and the principle that offenders should not be punished further for past offending.²⁰ It did not maintain a reasonable correlation between the sentence imposed and the nature and gravity of the offending. I consider the same is true here. I accept Mrs Chandra’s submission that the uplift of nine months on a

12-month starting point, an uplift of 75 per cent, was disproportionate.

[43] Third, even if the non-association direction were valid, I consider a starting point of 12 months’ imprisonment for breach of an ESO is so high as to amount to an error. Contrary to Williams, as Mrs Chandra said, there is no evidence Mr Te Whatu’s breach posed an imminent risk to anyone. Mr Te Whatu’s 2016 sentence of nine months’ imprisonment was for a more serious breach of living with his partner. Here, Mr Te Whatu was at his partner’s place. There is no evidence he was there long. He says he was just dropping off money or cleaning himself up. I consider a term of imprisonment of six months would be justifiable as a starting point. The only basis for using a higher starting point would be the need to deter Mr Te Whatu from continually breaching his ESO conditions. But that is reflected in an uplift for his previous convictions. To reflect it in a higher starting point as well would be to double count this factor.

[44] Fourth, I consider it is an error to uplift a term of imprisonment by any amount for the theft of $25.30 to which Mr Te Whatu pleaded guilty. Theft of that

_{amount in New Zealand in 2017, is not appropriately punished by imprisonment. It}

¹⁸ Beckham v R [2012] NZCA 290, citing R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 (CA) at 597 and R v Ward

[1976] 1 NZLR 588 (CA) at 591.

¹⁹ Carrick v R [2017] NZHC 1188 at [36].

²⁰ Williams v Department of Corrections [2012] NZHC 304.

would not have warranted imprisonment as a stand-alone offence and it would not warrant an uplift.

Should a different sentence be imposed?

[45] If the non-association direction were legal and the conviction safe, given the nature of the breach involved here, I would have used a starting point of six months’ imprisonment to reflect the similarity of Mr Te Whatu’s breach to his previous breach. I would have uplifted that by three months to reflect the need for deterrence illustrated by his previous offending. I would have discounted the resulting

12 months by around 25 per cent, or three months, to reflect the guilty plea, resulting in a sentence of imprisonment of six months.

[46] As it is I have quashed that conviction. Mr Te Whatu is convicted only of theft of $25.30. Judge Spear uplifted his sentence by two months’ imprisonment for that, which I quash. I consider a sentence of imprisonment for that offending is manifestly excessive. I do not substitute a different sentence. Mr Te Whatu has now been imprisoned for the offending since 9 June 2017. That’s more than enough punishment for the offending.

Result

[47] I quash Mr Te Whatu’s conviction in the District Court for breach of the ESO. I quash the sentences imposed by the District Court. The Crown will file a memorandum on Thursday 21 December 2017, detailing the calculations behind its view that the ESO imposed on Mr Te Whatu in January 2005 for ten years expires in October 2018.

[48] Mr Te Whatu, there may be some paperwork to do with the Court but otherwise, on the basis of the information available to me, you are free to go. You can associate with your partner. But you must continue to comply with the restrictions of the ESO, including the requirement that you not have contact with children. Mrs Chandra I expect you will want to explain all that to Mr Te Whatu very clearly.

_{...............................}
Palmer J