IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-387 [2015] NZHC 322

GLENN GREEN

v

DEPARTMENT OF CORRECTIONS

Hearing:	10 February 2015	

Appearances:	
P Broad for the Appellant
M R Walker for the Respondent	

Judgment:	
3 March 2015	

JUDGMENT OF THOMAS J

This judgment was delivered by me on 3 March 2015 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Manukau. Meredith Connell, Auckland.

GREEN v DEPARTMENT OF CORRECTIONS [2015] NZHC 322 [3 March 2015]

Introduction

[1]       This is an appeal against conviction in respect of three charges relating to a release  condition  which  prohibited  the  appellant,  Mr  Green,  from  starting  or resuming a relationship without first notifying his probation officer.

[2]       The essential point on appeal is that, since the contact was made by Mr Green but was unreciprocated, there was no relationship and therefore the condition was not breached.

[3]       Although at previous hearings Mr Green had indicated his intention to appeal against his conviction on the charge of possession of gang regalia and to appeal against sentence, those appeals have been abandoned.

Factual background

[4]       Mr Green is described as “a serial stalker”.  His criminal history extends over

30 years. He has 201 previous criminal convictions, including multiple convictions for criminal harassment, contravening protection orders, perverting the course of justice, and misuse of a telephone.

[5]       He was most recently released from prison on 4 June 2014, after serving a sentence of 30 months for criminal harassment.  In light of his criminal history, special conditions were imposed upon release. These included, relevantly, the requirements:

(a)       not to have contact or otherwise associate directly or indirectly with previous victims unless you have the prior written approval of a probation officer (Condition 3);

(b)       not to have contact or otherwise associate directly or indirectly with any other person/s anyone (sic) with whom the probation officer has directed you in writing not to associate (Condition 7);

(c)       not to possess or use any electronic device capable of accessing the internet or capturing, storing, accessing or distributing images (including without limitation any personal computers, notebooks, tablets or cell phones) without prior written approval from a Probation Officer (Condition 8);

(d)       to allow a Probation Officer or Police Officer to check the content of any hard drive, computer, phone, or any other electronic device in your possession (Condition 9);

(e)       not to have social media in your legal name or any alias including Facebook, Twitter, Instagram and those further identified by your Probation Officer (Condition 10);

(f)	not   to   possess   or   use   devices   capable   of   covert   surveillance

(Condition 11); and

(g)       to disclose to your Probation Officer the start of any new relationship or resumption of any past relationships (Condition 14).

[6]       The appellant was convicted on 13 December 2014 of charges relating to breach of Condition 14, regarding relationships. Two further charges relating to that condition, but involving letters which were not actually sent, were dismissed.

[7]       The appeal is brought in respect of the charges relating to:

(a)	Letter to “S” dated 9 June 2014:

Dear S

Hopefully  you  get  this  letter  and  hopefully  you  just  might  consider replying.

It’s been a very long time S since we last saw each other or spoke, if I
recall rightly, it was 2000, that’s 14 years.

I  still  miss  doing  things  with  you,  not  the  sex  but  just  hanging  out somewhere and having a few drinks.

I’ll keep this short S and I do hope you will either phone or txt.

I’d love to catch up and have some drinks and let the past issues between us
die as I truly miss you.

The photo is not that old, just in case you don’t remember what I look like, I’m the one next to the red Falcon SATAN.

You might remember my brother Laine who is in the photo next to his Rx7. Please call or text.
Glenn

(b)	Text messages to complainant “NF” three times on 13 June 2014:1

(i)	4:59PM: Hi N, u might not remember me but we met in los angeles in
1999. My name is dallas and I lived on eastern ave at the time. I’d love 2
hear from u.

(ii)	6:47PM: Hi N, did u get my txt, I don’t know if I sent it or not. It’s dallas
here

(iii)        9:46PM: Hi N, I deeply apologise for contacting u out of the blue. I guess if u want 2 chat, u will reply and if not then that’s cool I will only txt if I get a reply and if not then I hope your doing ok

(c)	Letter to “K”:

Dear K
I hope you don’t creep out at this letter as it’s all good.

Im just writing to introduce myself to such a beauty that I’ve had the pleasure of meeting recently. I’m the one in the picture next to the Satan Drag racing car that I built a few years ago. I no that this is a sheepish way of contacting you but it’s a good way to break the ice – so to speak.

Let me tell you a bit about me.

As you can see by the photo, I’m a white dude, 5’10” tall of reasonable
looks.

I’m  a  panel  beater/spray  painter  specialising  in  customizing  V8s  and
American classics.

I’m well travelled having spent a lot of time in Australia and the United States where I thrived in business until the global recession in 2013 which I lost it all.

I’m back in NZ just chilling and getting myself grounded again. I drive a late model Ford Falcon and just loving life. I met you in store a few days ago and just had to write to such a beauty to say hi “HI”…

I won’t keep you as you must be busy, I’ll leave my cell phone number just in case you would text only if you want. I think you would be an awesome girl to get to know.

1           The messages came from the appellant’s own mobile phone, not a Corrections-issued cell phone, and Police evidence was that these messages fitted previous patterns used by the appellant to attempt contact with women. NF had previously been subject to unwanted contact by the appellant.

Its up to you. Be cool. Goldie
021 232 0638

If you text in reply, please say its K and I’ll text back immediately.

[8]       There is no challenge to the facts as found by the District Court. The sole ground of appeal is that the Court wrongly interpreted the meaning of the word “relationship” in Condition 14 and that no relationship was ever formed or resumed, so that the charges were not made out and the convictions should be overturned.

District Court judgment

[9]       Mr Broad, for the appellant, submitted in the District Court, as he does now, that the definition of a relationship was a reciprocated connection, and a relationship does not crystallise until there has been some form of reciprocation or consent from the other party.

[10]     Mr Green’s evidence at the District Court was that he believed Condition 14 related only to a former partner, and excluded all friends.  He believed that if he had a physical or sexual relationship, then he had to disclose it to his probation officer. He denied entering a relationship with any woman since his release. He denied that NF was an ex-partner, stating instead that she was a friend. He claimed that his probation officer had told him that the condition applied to a “partner” and that if a friendship were to turn into a partnership he would have to inform Probation. Additionally, he claimed that his probation officer had encouraged him to make friends,  and  that  his  intention  was  to  catch up  with  old  friends,  not  to  form  a relationship.  In relation to the letter to S, he claimed that she was not an ex-partner but a friend, and that friends had sex.  He denied fabricating stories in his contact with the complainants, including details about how they had met or how he had obtained their contact details.

[11]     The District Court Judge preferred the probation officer’s evidence to that of

Mr Green. The evidence, relevantly, was that:

(a)       Mr Green had understood the consequences of non-compliance with his parole conditions.

(b)       Mr Green had understood the meaning of the condition regarding relationships, and the probation officer had reminded him of the relevant conditions regarding new relationships.

(c)	The   probation   officer   may   have   used   the   word   “partner”   in

discussions with the appellant.

[12]     Nonetheless the Judge was satisfied that Mr Green understood what was meant by the condition, and that his sole intention in sending the letters and texts to the women was to start a relationship (by contacting K and S, who were not previous victims) or to resume a relationship (by contacting NF, who is a complainant in a criminal harassment charge yet to be heard so cannot be described at this stage as a victim such that Condition 3 would be breached).

[13]     The Judge relied in part on a judgment of Woolford J in respect of an earlier bail appeal by the appellant.2   The substance of that judgment was that the condition restricting relationships had been imposed because the appellant tended to make unsolicited connections with women, with the intention of forming relationships with them.  Relationships began with unilateral communications like those made by the appellant; in the appellant’s case, his relationships were entirely unilateral.  To define “relationship” as a mutual connection in this context would render the conditions ineffective and defeat their purpose, which was to protect the public from the risk
that the appellant could reoffend.   The Judge added that, although the condition could arguably have been phrased in a more particular way, it was not so defective that it could not sustain the charges.  Nor was it inconsistent with the New Zealand
Bill of Rights Act 1990.

2	Green v Department of Corrections [2014] NZHC 1778 at [21]-[23].

Appellant’s submissions

[14]     Mr Broad submitted that the word “relationship” does not cover unilateral communications. A relationship requires “a degree of acquiescence of consent” by the other person, and it is artificial to say that a relationship could exist unilaterally. Relationship in its ordinary meaning does not include one-sided correspondence. As such, there was no relationship to disclose to the probation officer.

[15]     In  Mr Broad’s  submission,  the Judge distorted  the plain  meaning of  the condition by placing undue weight on the purposes of the conditions and the need to protect the community.  He submitted that the purpose of the condition is to alert the probation officer when Mr Green enters into intimate relations with former partners, “to manage the heightened risk of re-offending that could be anticipated at such a time”.   He submitted that, if the purpose were to prevent the appellant contacting women, then the Parole Board could have made such a condition.

[16]     Given  the  threat  of  criminal  sanction,  the  appellant  submitted  that  a “restrictive, even technical” interpretation of release conditions is to be preferred. The obligations imposed by the conditions must be plain on their face, to avoid unfairness.

[17]     Furthermore, in Mr Broad’s submission, the relationship condition should be interpreted in the context of the other conditions, and of the Bill of Rights Act.  The condition restricting contact and association with previous victims implies that the possibility of absolutely restricting contact with other women was considered and rejected.  Instead, the condition requiring notification of relationships was imposed. This, Mr Broad said, implicitly allows contact falling short of a reciprocated intimate relationship with women other than previous victims. He submitted that the Bill of Rights Act is relevant in that the condition is a restriction on the appellant’s freedom of expression. He said that the respondent’s interpretation means that the appellant is deemed to enter into a relationship with everyone with whom he communicates and submitted that this very wide meaning is not rights-consistent and cannot be what was intended.

Respondent’s submissions

[18]     The respondent submitted that the meaning of the condition was clear.   Mr Walker quoted Woolford J’s analysis from the bail hearing, to the effect that the whole purpose of the condition was to protect the public from the risk that the appellant could reoffend [by stalking women], and that it was “more than reasonably arguable” that the appellant started a relationship by sending unsolicited communications.

[19]     Mr Walker pointed out that the start or resumption of a relationship initially involves the actions of one person.

[20]     The respondent’s case is that the various parole conditions mesh together to form a coherent whole.  In particular Condition 14 and Condition 7 (prohibition on associating with any person with whom the probation officer has, in writing, forbidden contact) together are aimed at reducing the risk inherent in undisclosed contact between the appellant and at-risk members of the public.

[21]     The respondent sought to adduce new evidence in the form of a letter from the appellant to his probation officer, dated 11 November 2014. This letter, in Mr Walker’s submission, demonstrates a complete disregard for the appellant’s parole conditions  and  refers  to  his  starting  relationships  with  a  number  of  women. However, while the letter reveals Mr Green’s contempt of the probation service, it does not enhance the evidence of Mr Green’s understanding of Condition 14 at the relevant time.

Relevant law

[22]     I was not referred to any precedent as to the meaning of the word relationship in this or a similar context.

[23]     Section 7 of the Parole Act 2002 provides that when making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.

[24]     Breach   of   parole   conditions   is   an   offence   carrying   a   sentence   of imprisonment, which was in fact imposed in this case. It is well established that offences should be interpreted narrowly, and should be certain and ascertainable in advance, so as not to offend the rule of law or principles of natural justice. That requires that, when facts are established, it should be clear that the condition has been breached.

Analysis

The meaning of “relationship”

[25]     The Shorter Oxford Dictionary defines “relationship”:3

The state or fact of being related; a connection, an association, spec. an emotional (esp. sexual) association between two people.

[26]     It is well established that a relationship does not have to be physical. It is possible to have a significant level of romantic commitment without having a sexual relationship, and in fact non-sexual relationships have been found to be relationships in the nature of marriage.4   The condition does not specify a sexual relationship.  A lack of physical contact with the women involved is not an obstacle.

[27]   Notwithstanding Mr Green’s evidence at the hearing, the tenor of the communications at issue is not platonic.  In his letter to K, the appellant refers to her repeatedly as a “beauty” and recognises the possibility that she may “creep out” in response to it, which would be an unusual reaction to a communication interpreted as purely platonic. The text messages contain nothing explicitly romantic but they must be read in the context that NF had been the subject of the appellant’s unwanted attention in the past.  The letter to S refers to a previous sexual relationship.  While Mr Green contended that it was platonic, I note that he explicitly mentioned their sexual history, and the reference to talking “over drinks” and “letting past issue die”.
That implies a desire to take steps toward resuming a past relationship.

3	The New Shorter Oxford English Dictionary (4th ed, Oxford University Press, New York, 1993)
at 2534.
4	Horsfield v Giltrap [2000] NZFLR 1047.

[28]     However, I consider that the contact, even though it is aimed at creating a relationship,  does  not  itself  constitute  the  start  of  a  new  relationship  or  the resumption of a past one.   The ordinary meaning of a relationship is such that it cannot be said to begin until both parties are involved and there has been interaction between them.  In the circumstances, it is inconceivable that any of the women to whom  the  messages  were  sent  would  say they  were  in  a  relationship  with  the appellant.  The latter two text messages in the series suggest that Mr Green would also realise that he was not in a relationship with the woman, although he might have an unusual or disproportionate response to the fact of rejection.

[29]    However if any of the women had responded in a positive way to the communications, that could be considered the start of a relationship.  Had Mr Green genuinely intended to comply with his parole conditions, as a prudent measure he should have informed his probation officer before making contact.  If the condition had prohibited Mr Green from attempting to start or resume a relationship, he could well have been guilty of its breach.

[30]     Although the Judge relied on the comments of the High Court Judge, that decision was made in the context of a bail appeal and the issue had not been subject to evidence or analysis.  All the Judge did was to express his view that it was “more than reasonably arguable” that the appellant started a relationship by sending the unsolicited communications.

[31]     Mr Walker rejected the notion that, taking the respondent’s interpretation of the condition  to  its logical  conclusion,  Mr Green  would  be deemed to  be in  a relationship with everyone with whom he communicated.   However, he had some difficulty explaining exactly what the condition was intended to capture and acknowledged  that,  if  the  condition  meant  as  he  advocated,  its  wording  was deficient.  Mr Walker sought to deal with this difficulty by placing the condition in context of Mr Green’s past offending behaviour and what he submitted Mr Green must have understood from the condition.   In this regard, however, there is some difficulty in the evidence.  The Judge put to one side Mr Green’s evidence as she did not believe him, finding him neither credible nor reliable.  In contrast, she found the probation officer to be a credible and reliable witness.  The probation officer said he

spoke to Mr Green about Condition 14 on three separate occasions. On 16 May

2014, he spoke to him at the corrections unit during a parole induction session.  He spoke to him again about that special condition at his house on the same week of his release from prison, some time between 4th and 6th June.  In evidence, the probation officer admits that during that discussion, he may have used the word “partner”.  On
9 June 2014, he again visited Mr Green at his home address to discuss Condition 14 because he was concerned that Mr Green had been spending a lot of time at the mall. At that visit, the probation officer asked Mr Green if he was in a relationship. The Judge’s decision records the following:

the defendant told him that he did not want any potential partner or anyone to be harassed by Community Probation and that he did not want to be in any sort of relationship until after parole.

[32]     This response suggests that Mr Green understood the condition in the context of a relationship with a partner.  I can find no evidence to the effect that either the probation officer explained Condition 14 to mean as the respondent alleges or that Mr Green confirmed he understood it as such.   I note that the probation officer confirmed that his conversations with Mr Green about Condition 14 were in the context of a relationship, as in, if he had a girlfriend. This suggests that both the probation officer and Mr Green approached the word “relationship” in its ordinary meaning.

The purpose of the condition

[33]     Mr Walker relied heavily on what he said was the purpose of the condition, namely to prevent exactly the type of contact which occurred.  I am not persuaded that is necessarily the case.  There is nothing in the decision of the Parole Board to support that proposition.  Paragraph [2] of the decision states:

He has appalling history of convictions, which now number over 200.  Of particular concern are his many convictions for breaching protection orders, harassment, intimidation, threats, and abuse of the telephone.

[34]     The Board went on to state at [7]:

The parole assessment report prepared in March includes a number of proposed release conditions.  However, the Board now has a further lengthy memorandum from Corrections  dated  11 April  2014.    That  outlines  the

concerns for Mr Green following release.    Reference is made to documentation found in his cell on at least two recent occasions, which indicates planning on Mr Green’s part for activities, which again raise concerns for potential victims of his harassing type behaviour.

On any measure the risks relating to Mr Green’s release are high.  He poses a significant threat to public safety.   The Board can only impose conditions best  calculated  to  address  those  risks  for  the  six  months  following  Mr Green’s sentence end date.

We agree with the proposal that there should be electronic monitoring in the form of GPS to keep track of Mr Green’s movements.  However greater risks are posed by his potential use of the internet and other technology and conditions need to be imposed in that regard as well.

[35]     When the special conditions of release are analysed, it is clear that the Board put in place a number of conditions to protect against the risks of reoffending. Condition 3 prohibits contact with prior victims.  Conditions 8, 9, 10 and 11 control use of the internet, social media accounts and devices capable of covert surveillance with a probation officer or police officer able to check the content of any hard drive, computer, phone or other electronic device in Mr Green’s possession.  Condition 7 then allows the probation officer to forbid Mr Green from making any contact with any particular person.  All those conditions taken together, seem to me, to be aimed at attempting to prevent Mr Green’s harassing type behaviour.

[36]     It must not be overlooked that Mr Green has 34 convictions for contravening protection orders and has received relatively lengthy sentences of imprisonment as a result.  Those were the first convictions mentioned by the Parole Board in the list of convictions of particular concern.  Given that, it seems to me that Condition 14 was designed to protect any person with whom Mr Green came to be in a relationship as that word is commonly understood.   That protection orders are available where a person is in a domestic relationship with another as defined in the Domestic Violence Act 1995 reinforces my conclusion as to the correct interpretation of Condition 14.

Guaranteed rights of expression

[37]     If Condition 14 is given its common meaning, it requires Mr Green to notify his probation officer of the start or resumption of a relationship.  That is a justified limitation on his guaranteed rights of expression.

The presumption that offence provisions are interpreted narrowly

[38]     The presumption that offence provisions are interpreted narrowly links with the principles of knowledge and accountability, and with the rights to liberty, justice and minimum standards of criminal procedure.5  Section 6 of the Bill of Rights Act provides  that  whenever  an  enactment  can  be  interpreted  in  a  rights-consistent manner, that meaning is to be preferred.   In the context of s 71 of the Parole Act
2002, which imposes a penalty of imprisonment for breach, any special conditions imposed by the Board should be clearly expressed. Where a condition is unclear the meaning which infringes the least on the offender’s right to liberty should be preferred.

Result

[39]     Given the factors to which I have referred, I am not satisfied, on a proper interpretation of Condition 14, that Mr Green was in breach of that release condition. The appeal must succeed and the appellant’s convictions on the three charges of breach of Condition 14 are set aside.

[40]     There is  no  appeal  against  conviction  on the gang regalia charge or  the sentence in that regard which stands.

Thomas J

5	Bill of Rights Act 1990, ss 22, 24, 25, 27.