CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v RANUI [2016] NZHC 1174

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v RANUI [2016] NZHC 1174 [2 June 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI 2016-419-17[2016] NZHC 1174BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND LEON MOSES RANUIRespondentHearing: 24 May 2016Counsel: T C Tran for ApplicantD J Allan for RespondentV Casey, Amicus CuriaeJudgment: 2 June 2016JUDGMENT OF HEATH JThis judgment was delivered by me on 2 June 2016 at 11.00am pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, HamiltonCounsel:D J Allan, HamiltonV Casey, WellingtonIntroduction[1] Mr Ranui is currently subject to an extended supervision order that expires on 18 May 2022.1 Such orders are made under Part 1A of the Parole Act 2002 (the Act). The Chief Executive of the Department of Corrections (the Chief Executive) applies for a new order which would, if granted, require the Parole Board (the Board) to impose a condition subjecting Mr Ranui to intensive monitoring.2 The application is resisted, both on jurisdictional grounds and on the merits.[2] I decided to hear argument on the jurisdictional question first. Given its nature, I appointed Ms Casey as amicus curiae. I am grateful for her assistance. In this judgment I deal solely with the question of jurisdiction.The extended supervision order regime[3] As a result of understandable public concern about the possibility of some offenders being released from finite prison sentences while still posing serious risks to the community, Parliament enacted the extended supervision order regime. It came into force on 7 July 2004. At that time, an extended supervision order was designed to protect the public from those who posed a real and ongoing risk of committing sexual offences against children or young persons.3[4] As originally enacted, the purpose of an extended supervision order was "toprotect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing sexual offencesagainst children or young persons".4 An order could be made if the Court weresatisfied, having considered relevant factors, that "the offender [was] likely tocommit any of the relevant offences referred to in s 107B(2) [of the Act] on ceasingto be an eligible offender". That was done by considering reports from health1 Department of Corrections v Ranui HC Hamilton CRI-2010-419-23, 19 May 2010 (Rodney Hansen J). Although the order was made for a period of 10 years from 19 May 2010, it does not expire until 18 May 2022. That is because the order was suspended for a period while Mr Ranui was held in custody as a result of earlier breaches of the order: see ss 107P(1)(a) and (2).2 The application is made under s 107L(3)(c) of the Parole Act 2002. The power to impose an intensive monitoring condition is found in ss 107IAB and 107IAC of that Act, set out at para [8] below.3 Generally, see R v Peta [2007] 2 NZLR 627 (CA) at para [5].4 Parole Act 2002, s 107I(1), in the form applicable between 8 July 2004 and 11 December 2014.assessors, which addressed the factors to which s 107F(2) referred. For present purposes, it is unnecessary to discuss the applicable criteria.[5] The Parole (Extended Supervision Orders) Amendment Act 2014 (the 2014 Amendment) received Royal Assent on 11 December 2014. From that date, the circumstances in which an application for an extended supervision order may be made, and the criteria to be applied, were amended.5[6] Two major changes were made:6(a) The purpose of an extended supervision order was broadened, to deal with all risks of future serious sexual and violent offending. Previously, the focus had been on risks of sexual offending to children or young persons.(b) The test for making an extended supervision order was elevated. The Court must now be satisfied:7(i) In the context of sexual offending, that "the offender has, or has had, a pervasive pattern of serious sexual offending" and that "there is a high risk that [the offender] will in future commit a relevant sexual offence";(ii) In the context of violent offending, that "the offender has, or has had, a pervasive pattern of serious violent offending" and "there is a very high risk that the offender will in future commit a relevant violent offence".In other words, a sharp distinction has been drawn between the threshold tests for sexual and violent offending: for the former the5 Parole (Extended Supervision Orders) Amendment Act 2014, ss 15 and 16, amending s 107I of the principal Act and adding s 107IAA.6 Ibid, s 15(1), amending s 107I(1) of the principal Act.7 Ibid, s 15(2), replacing s 107I(2) of the principal Act, and s 16, inserting a new s 107IAA. The relevant parts of the current versions of s 107I(2) and 107IAA. In determining whether those thresholds are met, the Court must have regard to the criteria set out in s 107IAA of the Parole Act 2002.Chief Executive must demonstrate "a high risk" of future sexualreoffending, while, for the latter, "a very high risk" of future violentoffending must be established.[7] An extended supervision order may not exceed 10 years.8 The duration of theorder "must be the minimum period required for the purposes of the safety of the community" having regard to the level of risk posed by the offender, the seriousnessof the harm that might be caused to victims and the likely duration of the risk.9[8] The 2014 Amendment introduced the possibility that an intensive monitoring condition might be imposed. Sections 107IAB and 107IAC provide:107IAB Chief executive may apply for imposition of intensive monitoring condition(1) When the chief executive makes an application under section 107F for an extended supervision order, he or she may at the same time apply to the sentencing court for an order requiring the Board to impose an intensive monitoring condition on the offender under section 107IAC.(2) If the chief executive makes an application under this section, the sentencing court is, for the purpose of that application and the corresponding application under section 107F, and despite anything in section 107D, taken to be the High Court.107IAC Court may order imposition of intensive monitoring condition(1) When a sentencing court makes an extended supervision order in respect of an offender, the court may at the same time, on application by the chief executive made under section 107IAB(1), make an order requiring the Board to impose an intensive monitoring condition on the offender.(2) An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.(3) The order must specify the maximum duration of the intensive monitoring condition, which must be no longer than 12 months.(4) If the court makes an order under this section, the Board must impose an intensive monitoring condition on the offender as a special condition.(5) The court may not make an order under this section in respect of an offender more than once, even if the offender is subject to repeated extended supervision orders.8 Parole Act 2002, s 107I(4).9 Ibid, s 107I(5).(6) However, the court may make an order under this section in respect of an offender who was subject to an extended supervision order before the commencement of this section even if, under that order, the offender was at any time subject to a condition imposed by the Board under section 107K(2).(Emphasis added)Jurisdiction: A second application[9] I make four preliminary points about the jurisdiction to make an order requiring the Board to impose an intensive monitoring condition:(a) Although the "sentencing court" (which can include the District Court) will normally determine an extended supervision application, only the High Court may make an order if the Board is to be required to impose an intensive monitoring condition.10 The need for an order from this Court recognises the invasive nature of a condition that requires one-on-one supervision for up to 24 hours each day,11 with its inherent interference with the subject's right to liberty12 and freedom of movement.13(b) There is no mechanism by which the Chief Executive may apply to this Court for an order requiring the Board to impose an intensive monitoring condition on an existing extended supervision order, if the order were made before the 2014 Amendment came into force.(c) While the Board is given responsibility to impose the conditions on which the offender will be supervised whilst subject to an order, it lacks power to impose an intensive monitoring condition unless required to do so by this Court.14(d) As the Court may only require the Board to impose an intensive monitoring condition as a term of an extended supervision order made10 Ibid, s 107IAB(2), set out at para [8] above.11 Ibid, s 107IAC(2), set out at para [8] above.12 New Zealand Bill of Rights Act 1990, s 22.13 Ibid, s 18.14 Parole Act 2002, s 107IAC(1), read in conjunction with s 107IAB(2).after the 2014 Amendment came into force, the higher threshold required by the current version of s 107I(2) of the Act must be met before an order is made.[10] It follows that, although the lower threshold applied when this Court made the existing extended supervision order for Mr Ranui,15 the higher threshold16 must be met on a second application brought to require the Board to impose an intensive monitoring condition. In the context of a person such as Mr Ranui, the assessment of his likely risk must be made in the context of the monitoring arrangements under which he is currently supervised, taking into account any conditions that are likely to lapse in the near future.17 If that high threshold were not met, the existing conditions must be treated as sufficient to protect the community from the risks that Mr Ranui poses to it.[11] Further, the Court's decision on any application made after the 2014Amendment came into force must be made in the context of companion legislation, the Public Safety (Public Protection Orders) Act 2014, which addresses community concerns in respect of "very high risk offenders".18 Generally, see s 13 of that Act,and Venning J's judgment in Chief Executive of the Department of Corrections v W.19[12] Counsel, including amicus, agreed that the Court does have power to entertain a second extended supervision application while the first remains in force. The jurisdictional basis for such an application is found in s 107L(3) of the Act:107L Commencement and expiry of extended supervision order(3) An extended supervision order expires on the earliest of the following:(a) the date on which the order is cancelled:(b) the date on which the term of the order expires:15 Department of Corrections v Ranui HC Hamilton CRI-2010-419-23, 19 May 2010 (Rodney Hansen J).16 See para [6](b) above.17 See, for example, s 107ZB(2) of the Parole Act 2002.18 See, for example, Parole Act 2002, s 107GAA.19 Chief Executive of the Department of Corrections v W [2016] NZHC 1081.(c) if the offender becomes subject to a new extended supervision order before the expiry of an earlier extended supervision order, the commencement of the new extended supervision order.(Emphasis added)[13] Section 107L(3)(c) contemplates the possibility of a new order superseding the old at a time before the earlier order expires by effluction of time. In a case where a second application is unsuccessful, dismissal of the second application would leave the existing order in force.[14] Section 107L(3)(c) of the Act has been used to make a second order on terms that require the Board to impose an intensive monitoring condition: see ChiefExecutive of the Department of Corrections v Aima'asu20 and Chief Executive of the Department of Corrections v Brown.21 The judgments in Aima'asu and Brown donot address directly the nature of the Court's inquiry when an existing extendedsupervision order is in place. Fogarty and Davidson JJ (respectively) appear to haveassumed that the Court's inquiry is based on an assessment of the offender's likelyrisk to the community if he were released in an unsupervised state.22[15] With respect, if that were what they meant, in my view, an inquiry of that type does not meet the statutory requirements. On the second application, the inquiry is focused on whether the Board should be required to impose the intensive monitoring condition. That question must be determined by reference to the prevailing circumstances in which the offender is being supervised.23[16] Mr Allan maintained his submission that, although the wording of s 107L did not expressly prevent an application for a second extended supervision order, such applications were inconsistent with the scheme of the legislation. I accept that Parliament, for no discernible reason,24 did not provide a process by which an20 Chief Executive of the Department of Corrections v Aima'asu [2016] NZHC 603.21 Chief Executive of the Department of Corrections v Brown [2016] NZHC 1038 (Reasons).22 Chief Executive of the Department of Corrections v Aima'asu [2016] NZHC 603, at para [10] and Chief Executive of the Department of Corrections v Brown [2016] NZHC 1038 (Reasons) at paras [11]–[14].23 See also para [10] above.24 The amicus, Ms Casey provided helpful submissions on the legislative history of the 2014 amendments to the Parole Act 2002, concluding that there was nothing to indicate whether Parliament had turned its mind to this particular issue. However, Ms Casey did point tointensive monitoring condition could be added to an existing extended supervision order. It is cumbersome to require application to be made to add a monitoring condition.[17] However, declining jurisdiction to entertain the application would be inconsistent with the scheme of the legislation and its companion Public Safety (Public Protection Orders) Act 2014.25 If there were no jurisdiction to apply to the Court for an intensive monitoring condition, but the Chief Executive was nonetheless concerned about risk management for the remaining period of an existing order, the next option may well be a very restrictive public protection order. An escalation of that kind would be contrary to the risk management scheme envisioned by the 2014 Amendment.26The Parole Board's review obligations[18] Mr Allan raised a number of queries about the relevance of the Board'sreview obligations in a case of this type.27 I consider that the Board's role iscompatible with that of the Court. The correctness of that conclusion can be tested by considering how the Board would approach the review if it were empowered to impose an intensive monitoring condition of its own volition. Undoubtedly, the Board would consider whether the existing supervision arrangements were working adequately, and whether that was likely to change if certain conditions had to be cancelled, or would lapse. Only if those questions were answered in the negative would intensive monitoring be necessary. That is the same assessment that the Court is required to make on an application of this type.s 107IAC(6) in oral submissions. That allows the potential imposition of an intensive monitoring condition at a point some time after the commencement of the extended supervision order.25 Addressed at para [11] above.26 Parole (Extended Supervision Orders) Amendment Bill 2014 (195-2) (commentary).27 Parole Act 2002, s 107ZB. A s 107ZB review contemplates the existence of an extended supervision order made before the 2014 Amendment came into force. The Board's role is todetermine whether restrictions to which the offender is subjected to ensure he or she participates in a programme remain appropriate.Result[19] For those reasons, I hold that there is jurisdiction to entertain the ChiefExecutive's application. The Registrar is directed to set the application down beforeme for a telephone conference at 9am on the first available date after 27 June 2016. No less than three working days prior to that conference counsel shall file a joint memorandum identifying the directions required to progress the application to a prompt hearing.[20] I should be grateful if Ms Casey could file and serve a separate memorandum indicating the type of steps which she may be able to take to assist the Court in dealing with the application on the merits. Having considered that memorandum and any submissions from counsel for the Chief Executive and Mr Ranui in respect of it, I shall determine what further role Ms Casey is to perform on the current application.Ms Casey's memorandum shall also be filed and served no less than three workingdays prior to the scheduled conference.[21] I thank all counsel for their assistance.______________________________P R Heath JDelivered at 11.00am on 2 June 2016