CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v GRAY [2021] NZHC 437

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v GRAY [2021] NZHC 437 [9 March2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-404-20[2021] NZHC 437BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND KAAHU HIRIAM GRAYRespondentHearing: 5 March 2021Appearances: F Cleary for ApplicantJ McLeod for RespondentJudgment: 9 March 2021REASONS JUDGMENT OF ISAC JIntroduction[1] Mr Gray is serving a sentence of seven years and six months' imprisonmentfor wounding with intent to cause grievous bodily harm.[2] On 10 March 2021 Mr Gray will be released into supported accommodationwith the Salvation Army in Upper Hutt. He is subject to release conditions which Iam advised are due to expire on 10 September.[3] On 13 January 2021 the Chief Executive applied for an extended supervisionorder (ESO) under s 107I of the Parole Act 2002 (the Act).[4] Given Mr Gray's impending release from prison, on 16 February theChief Executive applied for an interim supervision order (ISO).[5] That application came on urgently. In an interim judgment I granted the ISOon 5 March 2021 for a period of ten working days. I limited the period of the ISObecause, having been able to consider the material before the Court, I identified twoissues the applicant should consider and address before determining whether to renewthe ISO beyond the period granted.[6] I now set out my reasons for granting the ISO for a limited time.A preliminary question: for what reason is the ISO is sought?[7] Before addressing the substance of the application, it is helpful to identify apreliminary question.[8] It seems clear that when the application for an ESO was filed, theChief Executive contemplated that an interim order would only be necessary if theESO had not been granted before 10 September 2021, being the date on whichMr Gray's release conditions are said to expire.[9] The notice of application for an ESO records that Mr Gray is currently subjectto release conditions "which expire on 10 September 2021." The application goes onto record that the Chief Executive "applies for an extended supervision order beforethe expiry of the respondent's release conditions" (emphasis added).1 The significanceof the expiry of the release conditions is then reinforced by para [5] of the ESOapplication, which records:Application for interim supervision order[5] If it becomes likely that the application for an extended supervisionorder will not be finally determined before the expiry of therespondent's release conditions on 10 September 2021, I will apply thes 107FA of the Act for an interim supervision to be imposed on therespondent until the date that the application for the extendedsupervision order is finally determined.[footnotes omitted]1 See [2(c)] of the notice of application, fn 1.[10] Notwithstanding the terms of the ESO application noted above, the applicationfor an ISO shifted the ground. It makes no reference to the release conditions. Instead,it refers to the scheduled release of Mr Gray from prison on 11 March 2021.[11] The difficulty I face is that there is insufficient information currently availableto me relating to the scope of the release conditions noted in the ESO application, andtheir impact on the necessity for an ISO at this time.[12] Nor is it clear why the position of the Chief Executive has shifted. As noted,the notice of application for an ESO alludes to the necessity for an ISO only if theapplication for an ESO is not and heard and determined before 11 September 2021.By contrast, the application for an ISO is focused on Mr Gray's release date with noreference to the protections afforded by the interim release conditions.[13] The applicant needs to give further consideration to this issue and the basis onwhich the ISO was sought in the first place.Background[14] On 14 April 2014 Duffy J sentenced Mr Gray to seven years 6 months'imprisonment on:2(a) one charge of wounding with intent to cause grievous bodily harmpursuant to s 188(1) of the Crimes Act 1961;(b) one charge of contravening a protection order pursuant to ss 19(1)(a)and 49(1)(a) of the Domestic Violence Act 1995; and(c) one charge of breaching standard release conditions pursuant to s 96(1)Sentencing Act 2002.[15] Briefly, that offending involved a violent and prolonged attack on Mr Gray'sformer partner and her family members. At two points during the assaults Mr Gray2 R v Grey [2014] NZHC 789.used weapons against his victims. First, he seized a fork from a kitchen drawer whichhe drove into the victim's head, bending the prongs. Later, having left the victim'shouse, Mr Gray returned this time arming himself with a kitchen knife. He attackedthe victim again and struck her twice in the chest with the knife. The victim sustainedlife threatening injuries. As Duffy J observed:3 these sorts of injuries could well have led to her death. It seems to me it issimply a matter of chance that she survived this attack.[16] The Court noted the aggravating features of the offending, including the factthat at the time Mr Gray was subject to release conditions for an earlier assault, itinvolved extreme violence and attacks to the head, serious injury, the use of a weapon,and a home invasion of a vulnerable victim.4[17] At the time of his last sentencing Mr Gray had 30 previous convictions whichrevealed a history of violent offending, including five convictions for male assaultsfemale, one of common assault, one of wounding with intent to cause grievous bodilyharm, one of robbery by assault and one of possession of an offensive weapon.5 Atthat time the Crown sought but was declined a sentence of preventive detention.Evidence in support of the application[18] The Chief Executive has provided a health assessment report prepared byregistered counselling psychologist. It notes the following matters:(a) Mr Gray's childhood and early adolescence was characterised by anomadic and unstable lifestyle. It speaks of trauma and substancemisuse, and victimisation. Mr Gray's life experiences included thedeath of his father when he was an infant; his mother's substancemisuse during his childhood; alleged physical abuse from his motherand other caregivers; relocation between multiple caregivers (includingresidential placements); and being bullied at school. At the age of 143 R v Grey, above n 2, at [12].4 R v Grey, above n 2, at [43].5 R v Grey, above n 2, at [17].Mr Gray's mother was murdered and he began an association withgangs.(b) Mr Gray has used alcohol and other mind-altering substances since theage of 13.(c) Since the age of 17, when first incarcerated, Mr Gray has spentapproximately 32 months in the community. He is currently 33 yearsold.(d) Mr Gray may suffer from post-traumatic stress disorder.(e) While in prison, he has accrued 40 misconduct charges, of which 18were violence related.(f) In relation to rehabilitative treatments, the report writer noted:In summary, Mr Gray has completed some rehabilitative treatment,but not yet violence-focused treatment and has persisted to impartblame for not attending. In the author's opinion it appeared thatMr Gray was attempting to avoid attending the STU:VO while tryingto present as still motivated for his treatment. Although Mr Gray'streatment outcomes could not be assessed with this assessment, theassessor considered the possibility that partial treatment gains couldhave contributed to his apparent improvement in behavioural controlsover the last two to three years in custody.[19] In relation to the risk of future violent offending, the report writer concluded:Mr Gray was assessed to be a high end risk for committing a relevant violenceoffence in the community. This risk estimate could increase to very high endshould the factors of substance misuse/abuse, intimate relationship instability,weapon use, and the affiliation with criminal peers coincide during the sameperiod of time.Mr Gray is yet to complete violence-focused treatment, despite numerousopportunities to do so. His persistent issues with entitlement, non-compliance,and apparent efforts to avoid engagements in violence-focused treatment,remain responsivity issues. Mr Gray can benefit from continued rehabilitativeand reintegration support in regard to his substance use recovery, associationwith anti-social criminal peers, and developing a pro-social sense of belongingvia stable personal/community support networks.[20] Importantly, Mr Gray was provided with a copy of the psychologist's report toread. A handwritten addendum to the report signed by Mr Gray states:Mr Gray indicated that he wanted to read the report himself. During feedback,he requested the assessors to indicate on the report that he wants an ESO oftwo years to assist in his pre-integration. He indicated that he is willing tosign this addition to the report.The statutory framework[21] Section 107FA(1)(a) of the Act provides that a court can make an ISO if, beforean application for an ESO is finally determined, the offender who is the subject of theapplication is released from detention. The court may also suspend an interimsupervision order subject to any conditions it thinks fit under subs 107FA(5).[22] Section 107I outlines when a court may make an ESO. It states that the purposeof an ESO is to protect members of the community from those who, following receiptof a determinate sentence, pose a real and ongoing risk of committing serious sexualor violent offences. An ESO can be made if the Court is satisfied that the offenderhas, or has had, a pervasive pattern of serious sexual or violent offending, and eitherthere is a high risk that the offender will in future commit a relevant sexual offence orthere is a very high risk that the offender will in future commit a relevant violentoffence.6[23] Section 107IAA(2) sets out the matters of which the Court must be satisfiedwhen assessing whether there is a very high risk an offender will commit a relevantviolent offence.7 It states:(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfiedthat the offender—(a) has a severe disturbance in behavioural functioningestablished by evidence of each of the followingcharacteristics:(i) intense drive, desires, or urges to commit acts ofviolence; and6 Parole Act 2002, s 107I(2).7 The applications in this case for both an ESO and ISO are both made on the basis of Mr Gray'sfuture risk of committing a violent as opposed to a sexual offence.(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet apremeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about theimpact of his or her violence on actual or potential victims.[24] I also note the principles that apply to the release of an offender.8 Section 7(1)of the Parole Act sets out the paramount consideration:7 Guiding principles(1) When making decisions about, or in any way relating to, the releaseof an offender, the paramount consideration for the Board in everycase is the safety of the community.Principles applicable to the grant of an ISO[25] On its face, the power of the Court to make an ISO is not circumscribed by anystatutory threshold or test.[26] In Chief Executive of the Department of Corrections v Martin, and ChiefExecutive of the Department of Corrections v Bradbury, Davison and Heath JJrespectively adopted an approach to an ISO similar to that applicable to the grant ofinterim relief in review proceedings.9 In Martin, Davison J concluded:[37] It follows that when deciding whether to make an ISO, the Court neednot be satisfied to the same extent as is required when considering whether tomake an ESO. For that reason, I reject the submission made on Mr Martin'sbehalf that the Court should effectively be satisfied that an ESO should bemade before an ISO is made.[38] I consider that the nature of the Court's decision in the s 107FAcontext has much in common with other types of interim orders made by a8 In Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [12], Davison Jsaid that although this section refers to the Parole Board, the s 7 principles are relevant andapplicable to the Court's consideration of whether to make an interim supervision order.9 Chief Executive of the Department of Corrections v Martin, above n 8 at [37]-[39]; Chief Executiveof the Department of Corrections v Bradbury [2016] NZHC 2461 at [24].Court, such as interim injunctions generally and, particularly, interim orderssought under s 8 of the Judicature Amendment Act 1972. Here the Courtshould have regard to all the circumstances, which include the prima faciestrength of the application by reference to the matters and material relied upon,the statutory framework and also the likely effect of an ISO upon theindividual in respect of whom it is sought. The statutory framework has beenconsidered at paras [10] to [13] above; the emphasis upon the safety of thecommunity will clearly be a matter of significant weight in the Court'sassessment. In light of these considerations, the court should then decidewhether those factors justify the temporary restrictions that will be imposedupon the offender pending the Court's full consideration of the matter at theESO hearing.[39] If, having regard to those factors, the Court is satisfied that there is asufficient and reasonable foundation for the ISO application – and that itsoperation will be of short duration and on conditions limited to those necessaryto protect the safety of the public – the Court has the power to, and will bejustified in, making an ISO.[27] In Bradbury, Heath J substantially adopted the same approach but preferred abroad reasonable necessity assessment ahead of any need for a prima facie case:10Although Davison J held that the Court should have regard to allcircumstances, including "the prima facie strength of the application", Iconsider that the broader expression of the test set out in Carlton & UnitedBreweries better captures its essence. In the context of an order that has theeffect of restricting the movement of a person who has served the entire periodof a prison sentence and post release conditions, I consider that the Courtshould assess whether an interim order is necessary, as part of its inquiry.[footnote omitted][28] However, Muir J took a somewhat different approach In Chief Executive of theDepartment of Corrections v Ihimaera:11[14] The approach which I prefer therefore to ISO applications is to requirethe Court to be satisfied, albeit on a provisional basis and often on untestedevidence, that the statutory criteria for an ESO are made out. In that Irespectfully differ from the views of Davison J in Martin.[15] Importantly, however, the level of such satisfaction is not prescribedby the "balance of probabilities test" which appears in s 13 of the Public Safety(Public Protection Orders) Act. The enabling section in respect of ESOsrequires only that the Court be "satisfied" that the requirements of s 107I(2)(a)and (b) are made out. In McDonnell v Chief Executive of the Department ofCorrections the Court of Appeal held that "satisfied" in this context has thesame meaning as it does in relation to the imposition of a sentence ofpreventative detention – in other words it requires the Court to exercise its10 Chief Executive of the Department of Corrections v Bradbury, above n 9, at [24].11 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228; adopting theapproach in Chisnall v The Chief Executive of the Department of Corrections [2017] NZSC 114.judgment. It is inappropriate therefore to import notions of the burden ofproof. As Wylie J said in Chief Executive; Department of Corrections vMartin:The word "satisfied" simply requires the court considering theapplication to make up its mind, and, on the evidence, to come toa judicial decision.[16] In practice, I suspect that little separates the approaches whichDavison J and I adopt. Although applications for ISOs occur within thecontext of legislation having as its central focus the safety of the community,the Court has always looked to the criteria for the granting of an ESO inguiding its assessment. Even in cases where the evidence establishes apotential risk to the public there could be no basis for granting an ISO if theCourt was not satisfied (albeit in a provisional way and subject to laterreconsideration on receipt of all relevant evidence), that such statutory criteriawere made out.[footnotes omitted][29] It is unnecessary for me to determine whether the approaches in Martin andIhimaera are, in substance, different because it does not affect the outcome of thiscase.12 However, I am inclined to agree with Muir J's observation that in practice theremay be little separating them.13 It is no doubt appropriate for the Court when hearingan ISO to test the case by asking whether there is at least some evidence which mightsatisfy the Court that the statutory test in s 107I could be made out at the ESO hearing.In doing so the Court will have regard to the policy underlying the Parole Act, and inparticular the paramount consideration of the safety of the community. It will oftendo so at a time when the evidence and information in support of the application willnecessarily be incomplete, and where the respondent remains subject to a term ofimprisonment or parole subject to release conditions.[30] I consider that if the Court is satisfied, on the material before it, an ISO isreasonably necessary, it will be appropriate to make such an order to preserve the statusquo namely the protection the community then enjoys on conditions limited to thosenecessary to achieve that end until the ESO application can be determined. Whetherthe statutory test for an ESO will ultimately be made out is, of course, a question to bedetermined at a later hearing. I do not consider it appropriate to require the applicantto demonstrate a prima facie case.12 Chief Executive of the Department of Corrections v Martin, above n 8; Chief Executive of theDepartment of Corrections v Ihimaera, above n 11.13 Chief Executive of the Department of Corrections v Ihimaera, above n 11, at [16].Analysis[31] As noted at [5] I granted the ISO for a limited period. Given the urgency withwhich the application was brought and the material available at the time, I consideredthis was the appropriate course to follow. It will give the applicant time to considerand if necessary address two issues:(a) The application for an ESO contemplated that an ISO would only berequired if the application for an ESO had not been heard or determinedbefore Mr Gray's release conditions had expired on 11 September 2021.It is unclear why the applicant's position changed in February when theapplication for an ISO was made; and(b) From the psychologist's report filed in support of the ESO, it does notappear that the test in s 107I(2)(b)(ii) is likely to be met, in that thereport does not appear to conclude that there is a very high risk Mr Graywill in future commit a relevant violent offence.[32] Having regard to all the circumstances, the material in support of theapplication, the statutory framework and the likely effect of a short-term ISO onMr Gray, I was nonetheless satisfied that it is reasonably necessary to grant the order.These factors particularly the safety of the community justify the temporaryrestrictions that will be imposed on Mr Gray pending a renewed application and, ifthat is successful, a full consideration of the matter at an ESO hearing.[33] On the material currently before the Court it is at least seriously arguably thatMr Gray has a pervasive pattern of serious violent offending. The report writer notesthat Mr Gray's violence cycle has persisted to the time of the assessment, although ithas shown signs of decreasing severity over the past two to three years in relation toviolence against others in prison.[34] Mr Gray is said to harbour an intense drive, desire or urge to commit acts ofviolence. His history of violence shows this. He displays extreme aggressivevolatility, including against family members, partners and strangers. These violentbehaviours included life-threatening injuries to two victims. Mr Gray's previousbehaviours also likely indicate the presence of resentment, particularly in his intimaterelationships.[35] Although Mr Gray has displayed signs of improved self-regulation within theprison context, his history outside of prison and in the context of an intimaterelationship is poor. And, Mr Gray's capacity to understand or show concern for theimpact his violence has had on victims is limited.[36] Although Mr Gray was assessed only at high risk of committing a relevantviolent offence in the community, it was recorded that the risk could graduate to a veryhigh risk with the presence of substance abuse, intimate relationship instability,weapon use, and affiliation with criminal peers. What the report writer has not doneis go on to provide an assessment of the likelihood those additional factors might ariseon release. From the information canvassed within the report and evident fromMr Gray's previous offending, it seems possible that such an assessment may providea sufficient and reasonable foundation to warrant an on-going ISO.[37] While not determinative, I think Mr Gray's own statement that he wants anESO of two years is also relevant.[38] It is important to note I imposed a limited ISO that would expire after10 working days to allow the applicant to address the two issues I have noted.________________________________Isac JSolicitors:Crown Solicitor, WellingtonLuke Cunningham Clere, Wellington