CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MILNE [2018] NZHC 14

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MILNE [2018] NZHC 14 [24 January2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-109[2018] NZHC 14THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSvALLAN JOHN MILNEHearing: 24 January 2018Appearances: D Elsmore for the ApplicantP Dyhrberg for the RespondentJudgment: 24 January 2018JUDGMENT OF MANDER J[1] On 19 October 2017, Nation J ordered Mr Allan Milne to be the subject of a10 year Extended Supervision Order (ESO) which was to come into force on hisstatutory release date. The Judge also imposed "as a condition of that order" intensivemonitoring for a period of 12 months. No reference was made in the judgment to thesection of the Parole Act 2002 (the Act) under which the additional order was made.[2] The sealed order giving effect to Nation J's judgment reads as follows:On 19th day of October 2017, the Christchurch High Court made an ExtendedSupervision Order against Allan John Milne under Section 107F and Section107IAB of the Parole Act 2002.The Court has imposed the following special conditions on the offender undersection 107IA of the Parole Act 2002:12 Months Intensive Monitoring is Imposed for the First 12 months of thisOrder.The Parole Board may also impose special conditions on the offender.[3] Neither the making of the ESO itself nor the condition relating to intensivemonitoring were opposed by Mr Milne. However, an issue has now arisen regardingthe status and effect of the intensive monitoring "condition".[4] The Chief Executive of the Department of Corrections (the Chief Executive)considers the intensive monitoring condition imposed by Nation J was made pursuantto s 107IAC of the Act and represented an order by this Court requiring the ParoleBoard to impose such a condition. It was initially understood the Parole Board wouldbe meeting before Mr Milne's statutory release date, at which time the Parole Boardwould, pursuant to Nation J's judgment, impose the intensive monitoring condition.It is now apparent the Parole Board will not be meeting before Mr Milne's statutoryrelease date. Accordingly, the Chief Executive considers it necessary, pursuant to s107IA, to make application for an interim order for intensive monitoring pending ahearing before the Parole Board.[5] Consistent with the stance taken before Nation J, Mr Milne has no objectionsto the intensive monitoring condition itself taking effect from his release date.However, his counsel, Mr Dyhrberg, considers an interim order is unnecessarybecause, in his submission, Nation J has already made such an order. In that regardhe points to the terms of the order which imposed intensive monitoring rather thanrequiring the imposition of such a condition by the Parole Board, and referred tos 107IA which permits the Court to impose special conditions on an interim basis.[6] It is unfortunate that the order's terms have created the present confusion.However, there is no dispute that Mr Milne is to be made subject to intensivemonitoring from the date of the ESO coming into effect upon his release. All that isrequired is clarification of the current order as it relates to his position after his releasepending the Parole Board hearing.[7] The Court has no power to impose intensive monitoring, other than on aninterim basis, as a condition of an ESO. Only the Parole Board can impose intensivemonitoring as a special condition of an ESO. However, the Court may order the ParoleBoard to impose such a condition, and it is mandatory for the Parole Board to imposeintensive monitoring if ordered to do so by the Court. Nation J's order appears on itsface to impose intensive monitoring as a special condition. However, that cannot bethe effect of the order as the only statutory jurisdiction available to the Court was torequire the Parole Board to impose intensive monitoring as a condition on the offender.I consider that was the intention of Nation J in making the order he did in response tothe unopposed application by the Chief Executive.[8] At the time Nation J made the order it was not envisaged there would be anydifficulty with the Parole Board meeting to impose any special conditions beforeMr Milne's statutory release date. Both the Chief Executive's application and writtensubmissions in support sought an order from the Court in the terms provided by s107IAC, directing the Parole Board to impose intensive monitoring rather than as aninterim measure under s 107IA. Indeed, the opening words of the order refer to s107IAB of the Act as being the section under which the order was made.Unfortunately, the order, confusingly, proceeds to refer to the Court as having imposeda special condition under s 107IA which relates to an order made on an interim basis.There was no application for such an order, and Nation J in his judgment did notconsider whether there would be insufficient time for the Parole Board to convene ahearing. Both of these are requirements before the Court could make such an interimorder.[9] I consider that the Chief Executive is correct in interpreting Nation J's order asbeing one made pursuant to an application under s 107IAB(1), not an interim conditionunder s 107IA. The reference to s 107IA in the order was an error which I do notconsider expressed what was decided or intended by Nation J. I consider it is an errorcapable of being corrected under r 11.10 of the High Court Rules. The fact the orderhas been sealed is no impediment to such an amendment.1 Accordingly, the order isamended by substituting the reference to s 107IA with a reference to s 107IAC.1 Willcocks v Teat HC Rotorua CIV-2008-463-784, 15 March 2011.[10] The legislature was aware there could potentially be a period of time beforethe Parole Board may be able to meet to impose special conditions after the making ofan ESO and an offender's statutory release date, as is the position in the present case.In order to cover that situation the Court was granted the statutory power unders 107IA to impose special conditions on an interim basis. It is that power which theChief Executive relies upon in making his present application for an order for intensivemonitoring on an interim basis until the Parole Board meets.[11] Because of the difficulty now arising as a result of the Parole Board beingunable to convene prior to Mr Milne's statutory release date, it is necessary to imposean interim order to ensure Mr Milne is subject to intensive monitoring upon his releasewhen the ESO comes into effect. There will be an order under s 107IA of the Act tothat effect. At Mr Dyhrberg's request, I also record that the order to be made by theParole Board imposing intensive monitoring on Mr Milne will be stipulated as beingfrom the date of the commencement of the ESO, in the normal way.Solicitors:Raymond Donnelly & Co, ChristchurchPeter Dyhrberg Barrister, Christchurch