Temara v Police

[2014] NZHC 1917

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000058 [2014] NZHC 1917

DELANEY MARK WAYNE TEMARA

v

NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS

Hearing:	14 August 2014
Appearances:	J Lucas for Appellant MAJ Elliott for Respondent
Judgment:	14 August 2014

JUDGMENT OF DUNNINGHAM J

[1]      Mr Temara has been sentenced on two charges.   The first is a breach of release conditions where he failed to report to his probation officer.   The second offence is one of being found in a building.   It was an earthquake damaged, unoccupied and abandoned building.

[2]      Mr Temara has previous convictions which include, amongst other things, for being unlawfully in a yard.

[3]      At the District Court hearing, counsel submitted that Mr Temara should not have standard release conditions imposed.  Mr Temara is clearly an unusual person and has a strained relationship with Probation Services.   The Department of Corrections assesses Mr Temara as at very high risk of reoffending and high risk of harm.    They  describe  Mr  Temara  as  “extremely  paranoid  and  has  not  been

consistently taking his prescribed medication, (Quetiapine).   He has been heard to

TEMARA v NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS [2014] NZHC 1917 [14 August

2014]

say that everybody is persecuting him and that he knows they are watching him from the sky.  He has also been observed to assert that members of the public going about their business are actually watching him.  Community Probation have observed that a person simply smiling at Mr Temara can be considered by Mr Temara as mocking him”.

[4]      Mr Temara has apparently been trespassed from the Probation Service offices due  to  his  erratic  behaviour.    It  is  clear,  and  Mr  Lucas  has  emphasised,  that Mr Temara will resist compliance with release conditions which will dictate his obligation to communicate with Probation Services.  In short, Mr Temara will be set up to fail if the standard release conditions are imposed upon him.   He therefore appeals the imposition of standard release conditions.

[5]      In imposing the standard release conditions the District Court Judge provided no reasons for rejecting defence counsel’s submissions.  Of course it is not unusual to  give  no  reasons  for  imposing  standard  release  conditions  but  here,  where  a specific request was made not to, then I consider the Judge should have provided reasons why they were imposed anyway.

[6]      I therefore consider that I must reconsider that aspect of sentence.

[7]      The standard conditions imposed in s 14 of the Parole Act are not onerous. They are designed to assist a convicted person with their rehabilitation.   Release conditions are not part of the penalty aspect of a sentence.  Where the evidence is that the rehabilitative purpose of the standard or special release conditions inevitably will not be achieved, then it is difficult to see why they should be imposed.

[8]      However,  I have also had regard to  Mr Elliott’s submission  that a mere statement that release conditions will not be complied with, should not be an excuse or a reason  not  to  impose them,  because they do  of course provide  a level  of supervision of the person post sentencing.

[9]      The Probation  Service  advise  that,  at  present,  they have  an  arrangement where Mr Temara contacts them daily by telephone.  That appears to be working,

perhaps largely through the agency of Mr Lucas in encouraging Mr Temara’s compliance.  I believe that such contact is helpful, but requiring that to occur on a daily basis, I think is highly likely to lead to a breach, given the obligation endures until around February next year.

[10]     I think release conditions should be imposed, but I think they should be modified  to  reflect  the  unusual  circumstances  which  arise  in  this  case  where Mr Temara has difficulty in complying because of his mental health issues.   The release condition which I impose is that from next week onwards, Mr Temara is to contact Probation Services a minimum of once a week, on a Monday of each week, to report on the matters set out in standard release condition s 14(1)(b).   I do not think  that  condition  is  too  onerous.    It  does  allow  a  level  of  supervision  of Mr Temara,  but  takes  into  account  the  strained  relationship  he  has  with  the Probation Service.   That contact can be made by telephone as is currently being done.

[11]     Condition  14(1)(e)  will  also  apply.    That  is  the  obligation  to  advise  his

Probation Officer if he intends to change his residential address.

[12]     Accordingly, the appeal is allowed to the extent that the standard release conditions  are  modified  in  the  way  described  so  that  the  only  obligations  on Mr Temara are to:

(a)       make weekly contact with Probation Services each Monday for the purposes of s 14(1)(b); and

(b)      to notify his Probation Officer in accordance with standard condition

14(1)(e) if he intends to change his residential address.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch