CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v LLOYD ALEXANDER MCINTOSH [2016] NZHC 1163

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v LLOYD ALEXANDER MCINTOSH [2016] NZHC 1163 [1 June 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-154[2016] NZHC 1163UNDER Section 8 of the Public Safety (PublicProtection Orders) Act 2014IN THE MATTER OF an application for a public protection orderagainst Lloyd Alexander McIntoshBETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND LLOYD ALEXANDER MCINTOSHRespondentHearing: 1 June 2016(On the papers)Appearances: M Scholtens QC and A Mobberley for ApplicantR Lithgow QC for RespondentJudgment: 1 June 2016JUDGMENT OF MANDER J[1] The Chief Executive of the Department of Corrections has made application to have the respondent, Mr Lloyd McIntosh, made subject to a Public Protection Order (PPO), pursuant to s 8 of the Public Safety (Public Protection Orders) Act 2014 (Public Safety Act).[2] Mr McIntosh is presently subject to an extended supervision order (ESO) which includes intensive monitoring. That intensive monitoring condition is due to expire on 10 June 2016.[3] Because the application for a PPO cannot be determined prior to the expiration of the intensive monitoring condition of the ESO, application has beenmade under s 107 of the Public Safety Act for an interim detention order (IDO). The terms of the proposed interim order effectively sustain the present conditions to which Mr McIntosh is subject pursuant to the ESO including intensive monitoring. Because the effect of the proposed IDO is to maintain the status quo, it is not opposed.Background[4] On 26 November 1993 Mr McIntosh was sentenced to 10 years imprisonment for unlawful sexual connection with a female under 12. That offending involved a sexual assault on a 23 month old infant.[5] On 8 December 2004 this Court imposed a 10 year ESO relating to that offending. On 12 May 2015 the Court imposed a further 10 year ESO on Mr McIntosh. Subsequently, on 26 August, the Parole Board issued a reserved decision setting the special conditions of the ESO under s 107K of the Parole Act 2002. This included an intensive monitoring condition for the first 12 months of the ESO as ordered by the High Court. The intensive monitoring condition is due to expire on 10 June 2016.[6] On 9 March 2016 the applicant applied for a PPO. A hearing date was initially allocated for three days, commencing 23 May, and endeavours were made todetermine the Chief Executive's application prior to the expiration of the intensive monitoring condition of Mr McIntosh's ESO. There was some initial delay inobtaining legal representation for Mr McIntosh. After he secured the services of Mr Lithgow a telephone conference was convened at which I observed the need to update the two health assessor reports which by that time had been completed some 12 months earlier.[7] Detention under a PPO is indeterminate, however, the continuing justification for such an order must be reviewed by a panel within a year of the order being made.1 Having regard to that timeframe, I considered it important that the information upon which the Court is to base its decision about making a PPO was as1 Public Safety (Public Protection Orders) Act 2014, s 15(1).up to date as possible. Upon inquiries being made it became apparent the health assessors would not be in a position to provide updated reports by the hearing date.[8] The Chief Executive being concerned to ensure Mr McIntosh would continue to be subject to a high level of supervision pending the determination of his application for a PPO which will not now be heard until after the expiration of the intensive supervision condition of the ESO, has now sought an IDO.Threshold for imposition of a public protection order[9] The Chief Executive's application for a PPO is based on the grounds that inthe absence of 24 hour accompaniment and monitoring, Mr McIntosh is considered to pose a very high risk of imminent serious sexual offending. Section 7 of the Public Safety Act sets out the threshold for the imposition of a PPO. It provides as follows:7 Threshold for imposition of public protection order(1) A person aged 18 years or older meets the threshold for the imposition of a public protection order if—(a) the person—(i) is detained in a prison under a determinate sentence for a serious sexual or violent offence; and(ii) must be released from detention not later than 6 months after the date on which the chief executive applies for a public protection order against the person; or(b) the person is subject to an extended supervision order and—(i) is, or has been, subject to a condition of full-time accompaniment and monitoring imposed under section 107K of the Parole Act 2002; or(ii) is subject to a condition of long-term full-time placement in the care of an appropriate agency, person, or persons for the purposes of a programme under sections 15(3)(b) and 16(c) of the Parole Act 2002; or(c) the person is subject to a protective supervision order; or(d) the person—(i) has arrived in New Zealand within 6 months of ceasing to be subject to any sentence, supervision conditions, or order imposed on the person for a serious sexual or violent offence by an overseas court; and(ii) has, since that arrival, been in New Zealand for less than 6 months; and(iii) resides or intends to reside in New Zealand; or(e) the person—(i) has committed a serious sexual or violent offence; and(ii) in respect of that offence,—(A) has been determined to be a returning prisoner under the Returning Offenders (Management and Information) Act 2015; or(B) is a returning offender to whom subpart 3 of Part 2 of that Act applies; and(iii) is subject to release conditions under the Returning Offenders (Management and Information) Act 2015.(2) For the purposes of this Act, a person meets the threshold for a public protection order if the person meets the threshold at the time that the chief executive applies for that order against the person.(3) In this section, extended supervision order means an order imposed, whether before, on, or after the commencement of this section, under section 107I of the Parole Act 2002 on a person who was an eligible offender (within the meaning of section 107C(1) of that Act) because the person had been sentenced to imprisonment for a relevant offence (within the meaning of that section) that is also a serious sexual or violent offence (within the meaning of section 3).[10] There is no dispute that Mr McIntosh meets the formal threshold requirements for a PPO:(a) Mr McIntosh is 42 years old;2(b) he is currently subject to a 10 year ESO;32 Section 7(1).3 Section 7(1)(b).(c) he is subject to a special condition of intensive monitoring which involves full-time accompaniment and monitoring for a period of 12 months;4 and(d) Mr McIntosh was sentenced on 26 November 1993 to 10 years imprisonment for a sexual assault which qualifies as serious sexual offending.5[11] The key issue for determination on the hearing of the Chief Executive'sapplication for a PPO will be whether Mr McIntosh is at very high risk of imminent serious sexual offending if he is left unsupervised.6 Further, whether he exhibits a severe disturbance in behavioural functioning and, if so, whether the Court should exercise its discretion to grant the PPO.7Interim detention order application[12] The current application before the Court is for an interim detention order pursuant to s 107 of the Public Safety Act. It provides as follows:107 Court may order interim detention of, or interim imposition of conditions on, respondent(1) This section applies when, before an application for a public protection order is finally determined, 1 or more of the following events occur:(a) a respondent is released from detention:(b) a respondent who is subject to an extended supervision order ceases to be subject to conditions of the kind referred to in section 7(1)(b) or (c):(c) the respondent is brought before the court under section 106:(d) the court gives a direction under section 12(2):(e) a respondent to whom section 7(1)(d) applies arrives in New Zealand.4 Section 7(1)(b)(i).5 Sections 7(3) and 3.6 Section 13(1)(b)(ii).7 Section 13(2).(2) The court may, on an application by the chief executive, order that, until the application for a public protection order is finally determined, the respondent is to be detained by a person, and in a place, specified in the order.(3) When the court makes an order under subsection (2) (an interim detention order), the court may suspend that order subject to any conditions that the court thinks fit.(4) An order under this section ceases to have effect when the application for a public protection order is finally determined or discontinued.[13] The interim detention order is sought from the date of the expiry of MrMcIntosh's intensive monitoring condition until the final determination of the ChiefExecutive's application for the PPO. The orders sought confirm the continuation of Mr McIntosh's ESO with standard and special conditions and provide for theextension of the same type of intensive monitoring provided by the current conditions which will expire on 10 June 2016.[14] I am satisfied the Court has jurisdiction in Mr McIntosh's situation to makean IDO. Importantly given the basis upon which Mr McIntosh does not oppose the making of an order, I am satisfied that the IDO may be suspended subject to the conditions which will be imposed under s 107 of the Public Safety Act.8[15] I am satisfied that the necessary preconditions to making the IDO have been satisfied, namely:(a) The Chief Executive has made application for a PPO.9(b) Mr McIntosh is currently subject to an ESO with intensive monitoring.10(c) On 10 June 2016, Mr McIntosh will cease to be subject to conditions of the kind referred to in s 7(1)(b), namely the condition of full-time8 Section 107(3).9 Section 107(1) and (2).10 Section 107(1)(b).accompaniment and monitoring imposed under s 107K of the Parole Act.11[16] The interim conditions will cease to have effect when the application for a PPO is finally determined or discontinued.12[17] In Chief Executive of the Department of Corrections v Chisnall, Fogarty J considered when determining whether there was justification for an interim detention order it was necessary for the Court to make some assessment of the prospective risk of harm which the respondent presented.13 The greater the prospective harm, the more tolerance of interim restraints pending full analysis. In making that assessment the Court is to be guided by the principles to which it must have regard when exercising a power under the Public Safety Act.14 Those principles are as follows:5 PrinciplesEvery person or court exercising a power under this Act must have regard to the following principles:(i) orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:(b) a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:(c) a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:(d) persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.11 Section 107(1)(b).12 Section 107(4).13 Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796.14 At [39].[18] As observed by Fogarty J in Chisnall, an order will not be made by the Court unless satisfied that to do so would be to give effect to the purposes of the statute and the reason why Parliament has provided the Court with the power to order interim detention.15 I am satisfied from the evidence that has been filed by the Chief Executive, in particular the reports of the health assessors, that there is sufficient evidence for justifying an IDO pending full consideration of the merits of the ChiefExecutive's application for a PPO.The proposed orders[19] As already observed, the essential purpose of the proposed orders is to retain the status quo pending the determination of the application for the PPO. This requires the initial making of an IDO to detain Mr McIntosh at the interim PPOfacility within Christchurch Men's Prison from 10 June 2016 until further order of the Court. Importantly, however, such order can be suspended subject to Mr McIntosh complying with conditions, each of which reflects the standard conditions attaching to the ESO pursuant to s 107JA of the Parole Act, and special conditions imposed by the Parole Board.16[20] In summary, the parties are in agreement that the Court has jurisdiction to make orders confirming the continuation of the ESO imposed on Mr McIntosh, including the standard and special conditions (but not including the intensive monitoring condition beyond its expiry on 10 June 2016). Further, that the IDO be suspended on the further condition that Mr McIntosh be subject to 24 hour accompaniment and monitoring, which is to the same effect as that provided in the current intensive monitoring condition set to expire on 10 June 2016.[21] Accordingly, I make the following orders which are to come into effect on 10 June 2016 and remain in force until the application for a PPO is finally determined:1. An interim detention order that Lloyd Alexander McIntosh be detained by the Chief Executive of the Department of Corrections at15 At [41].16 Public Safety (Public Protection Orders) Act 2014, s 107(3).the interim PPO facility within Christchurch Men's Prison from 10June 2016 until further order of the Court.2. The above detention order is suspended subject to Lloyd Alexander McIntosh complying with the following conditions:(a) To submit to being accompanied and monitored for 24 hours a day (or less if approved by a probation officer) by a person authorised by the Chief Executive to undertake person-to- person monitoring.(b) To reside at [the address] in the application and not to move from that address, or any subsequent address, without the prior approval of a probation officer.(c) To comply with the requirements of partial residential restrictions and submit to electronic monitoring as directed by a probation officer. To adhere to the conditions and requirements of this monitoring and partial residential restrictions by being at your approved address between the hours of 7.00 pm and 8.30 am daily, except where you have the prior written approval of a probation officer or where you are absent in accordance with s 33(4) of the Parole Act 2002 (medical, dental, risk of death or injury or humanitarian reasons approved by a probation officer).(d) Not to enter, or loiter within the grounds of any schools, preschools, parks, playgrounds or any other public place where children under 16 years of age are likely to congregate unless under the supervision of an adult approved in writing by a probation officer.(e) To submit to electronic monitoring as directed by a probation officer in order to monitor your compliance with any condition relating to whereabouts.(f) To comply with the requirements of electronic monitoring, and provide access to the approved residence to a probation officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by a probation officer.(g) To attend scheduled appointments with a departmental psychologist at times and dates as may be directed by a probation officer in consultation with the psychologist.(h) To engage in a reintegration programme provided by the [residential care facility] and abide by the rules of the programme to the satisfaction of the [residential care facility] staff and a probation officer.(i) Not to engage in vocational training/employment (paid or unpaid) except with the prior written approval of a probation officer.(j) Not to possess or use any computer, cell phone or other electronic equipment capable of accessing the internet unless under the direct supervision of an informed adult who has the prior written approval of a probation officer. An informed adult is a person over the age of 20 years who is fully aware of your previous offending and areas of high risk, and in the opinion of a probation officer will not support or collude with any further offending.(k) To make available to any probation officer and/or any agent of a probation officer any computer, cell phone or otherelectronic equipment in your possession or control for the purpose of checking that your use of any such equipment is appropriate and has not breached any conditions of your extended supervision order.(l) To take any prescription medication as prescribed by a specialist medical practitioner in accordance with any direction given by that medical practitioner and with your informed consent.(m) To comply with the standard conditions set out in s 107JA of the Parole Act 2002, being:i. the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after commencement of the extended supervision order;ii. the offender must report to a probation officer as and when required to do so by a probation officer, and must notify a probation officer of his or her residential address and the nature and place of his or her employment when asked to do so;iii. the offender must obtain the prior written consent of a probation officer before moving to a new residential address;iv. if consent is given under paragraph (iii) and the offender is moving to a new probation area, the offender must report in person to a probation officer in the new probation area in which the offender is toreside as soon as practicable, and not later than 72hours, after the offender's arrival in the new area;v. the offender must not reside at any address at which a probation officer has directed the offender not to reside;vi. the offender must obtain the prior written consent of a probation officer before changing his or her employment;vii. the offender must not engage or continue to engage in any employment or occupation in which a probation officer has directed the offender not to engage or continued to engage;viii. the offender must take part in a rehabilitative and re-integrative needs assessment if and when directed to do so by a probation officer;ix. the offender must not associate with, or contact, a person under the age of 16 years, except-A. with the prior written approval of a probation officer; andB. in the presence and under the supervision of an adult who-(1) has been informed about the relevant offending; and(2) has been approved in writing by a probation officer as suitable to under the role of supervision:x. the offender must not associate with or contact a victim of the offender without the prior written approval of a probation officer:xi. the offender must not associate with or contact any person or class of person specified in a written direction given to the offender for the purposes of this paragraph.Solicitors:Mary Scholtens QC, WellingtonRobert Lithgow QC, Wellington