CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2016] NZHC 796

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2016] NZHC 796 [26 April 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-756[2016] NZHC 796BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND MARK DAVID CHISNALLRespondentHearing: 21 April 2016Counsel: J Murdoch and N J Small for ApplicantG K Edgeler for RespondentJudgment: 26 April 2016JUDGMENT OF FOGARTY JThis judgment was delivered by Justice Fogartyon 26 April 2016 at 4.30 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate..Solicitors:Meredith Connell, Crown Solicitors, AucklandFrancis J Handy, WellingtonResult[1] On 22 April 2016, I issued a results judgment in which I granted the ChiefExecutive's application for an interim detention order. This judgment explains myreasons for doing so.Introduction – the applications[2] The Chief Executive for the Department of Corrections has filed a notice of originating application for a Public Protection Order (PPO)1 or, in the alternative, an Extended Supervision Order (ESO)2 against the respondent, Mark David Chisnall.[3] The Chief Executive now applies under s 107 of the PSA for interim detention of the respondent from the date of his release 27 April 2016 until the PPO and/or ESO applications are finally determined.[4] In the first instance, the Chief Executive seeks interim detention of the respondent in the West 9 Unit at Auckland Prison, Paremoremo. He is presently in this Unit.[5] Alternatively, in the event that detention within the prison is deemed unsuitable, the Chief Executive seeks interim detention of the respondent at an interim detention facility on Christchurch Mens' Prison land, being a four bedroomed villa located within the Leimon Villas self-care unit inside the perimeterfence of Christchurch Mens' Prison.[6] In the event the Court does not order interim detention the Chief Executive seeks, pursuant to s 107FA of the Parole Act 2002 and s 107 of the PSA, that conditions be imposed on the respondent pending the determination of the applications.The opposition[7] The application is opposed. The grounds of opposition are:1 Public Safety (Public Protection Orders) Act 2014, s 8 (hereafter PSA).2 Parole Act 2002, Part 1A.(a) This Court has no jurisdiction to consider, let alone grant, the interim relief sought.(b) The Chief Executive has not applied for an interim detention order.(c) The Chief Executive seeks an interim prison detention order in the guise of an interim detention order.(d) The prospect of a (final) public protection order is weak.(e) The Court also has no jurisdiction to make an interim supervision order.(f) The Chief Executive has not applied for an extended supervision order.(g) The interim restriction sought is available from the Parole Board.(h) In the course of sentencing Mr Chisnall, Miller J found him to be intellectually disabled. The PSA prohibits a PPO where a respondent is intellectually disabled. Ms Anna McFadden, a specialist intellectual disability assessor, in 2015 found Mr Chisnall was not intellectually disabled. Nevertheless, the judicial finding by Miller J should remain undisturbed.Importance of this application[8] The setting of this case is that the government is seeking the indefinite detention of Mr Chisnall who will, on 27 April, tomorrow, have served his entire sentence.Background[9] On 29 March 2006, in the High Court at Wanganui, the respondent was sentenced to eight years' imprisonment on one count of sexual violation by rape.[10] On 31 July 2009, in the New Plymouth District Court, the respondent was sentenced to a cumulative sentence of three years imprisonment on one further count of sexual violation by rape.[11] As already noted, the respondent is due to be released on 27 April 2016, next week.[12] If an order is made against a person under the PSA, that person is called a resident and s 20 provides:20 Detention of residentsA resident must stay in the residence that the chief executive designates by written notice given to the resident and to the manager of that residence.[13] Section 114 provides:114 Establishment of residences(1) The Minister may, by notice in the Gazette, declare any building located in prison precincts or any part of that building and any land adjacent to that building to be a residence.(2) Before making a declaration under subsection (1), the Minister must be satisfied that the proposed residence will be separate and secure.(3) When the notice takes effect, the building or the part of the building and any adjacent land are excluded from the prison and cease to be subject to the Corrections Act 2004.(4) Despite subsection (3), for the purposes of the Resource Management Act 1991, the land specified in the notice continues to be part of the prison in which it is located and the use of the land as a residence is deemed to be an authorised use under any existing designation or provisions of any plan that applies to the prison under that Act.(5) Every notice under this section takes effect from the date specified in the notice.(6) The building or the part of the building and any adjacent land declared to be a residence may be described in the notice in any way that is sufficient to identify it.[14] The residence referred to in the application now before the Court is located in the Christchurch prison precincts, within the perimeter fence. Sections 4 and 5 of the Act provide:4 Objective of Act(1) The objective of this Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.(2) It is not an objective of this Act to punish persons against whom orders are made under this Act.5 PrinciplesEvery person or court exercising a power under this Act must have regard to the following principles:(a) 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.The power of the Court to make an interim detention order[15] Section 107 of the Act provides: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.(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.Does this Court have the power to make an interim detention order pending obtaining a Public Protection Order or, in the alternative, an Extended Supervision Order?[16] Mr Edgeler, for the respondent, argues that s 107 does not apply. This is because not one of the five events in s 107(1)(a) to (e) applies at the present time. It is common ground that none of the events set out in (a) to (e) have occurred. The Crown argument is that an application for interim detention can be made to the High Court, anticipating that the respondent is about to be released from detention. Mr Chisnall's counsel argues that an order cannot be made before Mr Chisnall is released from detention because this section does not apply until then. Ms Murdoch, for the Crown, argues that the application can be made for an order for interim detention, to take effect from the date a prisoner is released from detention.Relevant statutory interpretation principles[17] The Interpretation Act 1999, s 5 provides:5 Ascertaining meaning of legislation(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.[18] I take note of s 5(2) and (3). The phrase "enactment" in s 5 with respect to s107 excludes the heading and includes the four subsections. Rather, that the heading to a section is to be used or can be used to ascertain the meaning of enactment.[19] The argument for the respondent effectively sought to read the heading of s 107 as part of the enactment. The effect of Mr Edgeler's submissions is to invite the Court to read subs (1) as providing that a Court may order interim detention before an application is finally determined, only after one or more of the following events occur:(a) A respondent is released from detention. Ipso facto the Court may not order such an interim detention before a respondent is released from detention.[20] Section 5 of the Interpretation Act requires ascertainment of the purpose of an enactment. The objective of the Act is set out in s 4 above.[21] It was common ground between counsel that the New Zealand Bill of Rights Act (NZBORA) potentially applies. The vetting report under s 7 of NZBORA by the Attorney-General found no breach, relying on the two cases.3[22] I am satisfied that it is positively contrary to the purpose and scheme of the PSA, particularly the Objective of the Act, as set out in s 44 to deny the Chief Executive of the Department of Corrections the ability to apply for an interim order near the end of the sentence with the intent that the interim order if granted take effect from the date of release. To construe s 107 any other way would be to allow the person to be subject to an application for interim relief to be at large and at risk to the community until the application is heard. It would lead to absurd results that an application would be filed the moment after the prisoner leaves the prison gate and urgently considered by a High Court judge on that day and then efforts be made to find out where the person released from prison has gone to in the meantime. I am quite satisfied that the Chief Executive has the power under the PSA to commence3 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA); Fardon v Australia CPR/C/98/D/1629/2007, UN Human Rights Committee (HRC), 10 May 2010.4 At [14] above.the process of applying for an interim order and to obtain an interim order, to take effect on release, or prior to the release date.Whether the application for interim relief has merit[23] There is no dispute that Mr Chisnall meets the threshold requirements for either the imposition of a PPO or an ESO.[24] Section 8 of the PSA provides:8 Chief executive may apply for public protection order(1) The chief executive may apply to the court for a public protection order against a person who meets the threshold for such an order on the ground that there is a very high risk of imminent serious sexual or violent offending by the person.(2) As soon as practicable after an application is made under subsection (1), the chief executive must advise every victim of the respondent that the application has been made.[25] This standard follows the objective of the Act in s 4.5[26] Section 13 of the Act provides:13 Court may make public protection order(1) After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—(a) the respondent meets the threshold for a public protection order; and(b) there is a very high risk of imminent serious sexual or violent offending by the respondent if,—(i) where the respondent is detained in a prison, the respondent is released from prison into the community; or(ii) in any other case, the respondent is left unsupervised.5 Set out above in [16].(2) The court may not make a finding of the kind described in subsection (1)(b) unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:(a) an intense drive or urge to commit a particular form of offending:(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:(c) absence of understanding or concern for the impact of the respondent's offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):(d) poor interpersonal relationships or social isolation or both.Evidence of very high risk and/or high risk of imminent serious offending[27] The respondent has had three separate health assessments, completed by: clinical psychologist, Dr Nick Wilson, registered clinical psychologist Steve Berry and registered psychologist, Margaret Anne Laws. Dr Wilson is of the opinion that the respondent has a very high risk of committing further serious sexual offending. The offending is likely to be imminent, taking into account various clinical factors. Mr Berry is of the view that, given the respondent's psychopathy ratings and other noted clinical risk factors, he should be considered more likely than other sexual offenders to go on to re-offend in a serious manner. Mr Berry states:Any future offending by the respondent is likely to be in the form of stranger violent sexual assaults, against both adult females and female children, and given his impulsivity, sexual assaults against known females are also a possibility.[28] Ms Laws is also of the view that there is at least a high risk that the respondent will engage in relevant offending within 10 years of release.Drive or urge to commit offending[29] Dr Wilson is of the opinion that sexual deviancy, fantasy and sexual entitlement played a key role across the respondent's previous offences. Dr Wilson considers the respondent still has a predilection and proclivity for sexual offending.Mr Berry notes, with reference to the respondent's criminal history, that therespondent has had an intense drive and desire to commit relevant sexual offencesfrom an early age. Ms Laws comments that the respondent's repetitive use ofdeviant, violent sexual fantasies, and the acting out of these fantasies in his offending, depicts an intense drive and desire to commit relevant sexual offences.Limited self-regulatory capacity[30] Dr Wilson notes the respondent has a long history of general impulsivity and an inability cope with challenge, social isolation or rejection. He is of the opinion that these issues are still present for the respondent. Mr Berry states the respondent has exhibited poor self-regulatory capacity since an early age, and notes he has been diagnosed with attention deficit hyperactivity disorder (ADHD) and post traumatic stress disorder (PTSD). As a result of intervention of Forensic Services, it appearsthat the respondent's ADHD and PTSD symptoms are better controlled, however, it is noted the respondent's compliance with his medication regime is critical to himmaintaining his current level of self-regulation.Absence of understanding or concern[31] In Dr Wilson's opinion, the respondent has not demonstrated reliable evidence of remorse for his offending or a general capacity to empathise with others.[32] Mr Berry noted that during treatment, the respondent focused more on the impact of his offending on himself, rather than on others. Mr Berry noted repeated assessments had occurred that the respondent has a low capability for empathy and sustained empathic ability is not easily acquired.[33] Ms Laws commented that, during treatment, the respondent failed to demonstrate any depth to his understanding of the impact of his offending on his victims and, at times, appeared to derive pleasure from discussing his offending.Poor interpersonal relationships or social isolation or both[34] Dr Wilson states the respondent has had significant difficulties in forming stable interpersonal relationships from an early stage, which resulted in him being socially isolated from peers, and seeking friendships with children far younger thanhim. Dr Wilson notes he is assessed with paranoid personality traits that act as a barrier to the formation of close trusting relationships. Dr Wilson is of the opinion he will continue to experience difficulties with trust and intimacy, and will likely experience social isolation, when released.[35] Mr Berry notes the respondent's capacity to form meaningful, appropriateand prosocial relationship has historically been extremely poor. However, through treatment, he does appear to have made some improvements, such as his hostility towards women appearing to reduce, an increased ability to ask for help, and becoming more co-operative and demonstrating a propensity to provide support to others. Mr Berry notes his relationships with family members, though strained, is going through a process of repair.[36] Ms Laws notes the respondent's relationships with family members are goingthrough a process of repair, and notes they are not in a position to provide assistance to the Respondent.Defendant's counsel's submissions[37] Mr Edgeler sought to distinguish between the three expert reports based on the distinction in tests between the grounds for a PPO very high risk and the grounds for an ESO high risk. Section 107 IAA(1) of the Parole Act 2002 provides:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender -(a) displays an intense drive, desire, or urge to commit a relevant sexual offence; and(b) has a predilection or proclivity for serious sexual offending; and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse for past offending:(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.[38] I was interested in and rely on all three reports in order to form a judgment as to whether or not there is justification in obtaining either an Interim Detention Order or an Interim Extended Supervision Order.[39] I was invited to follow the civil jurisprudence on grant of an interim injunction. This is a balance of convenience test. I reject that invitation. I am guided by the principles in s 5 of the PSA.6 The issue here is risk of harm analysis. The greater the prospective harm, the more tolerance of interim restraints, pending full analysis. Beyond that, I am very reluctant to gloss s 5 of the PSA. Section 5(c) is a principle, not a disqualifying rule. It is arguable that the defendant is eligible to be detained under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. But that possibility cannot be resolved before the release date of 27 April.[40] I am satisfied from the three reports that there is clearly sufficient evidence of a very high risk to justify an interim detention order pending full consideration of the merits of a Public Protection Order or an Extended Supervision Order.[41] Obviously an order will not be made by the Court unless the Judge is satisfied that to do so will be to give effect to the purposes of the statute and to the reason why Parliament has provided the Court with the power to order interim detention. I am very satisfied from the evidence that I have this power and that the power ought to be exercised in order to advance the purposes of the Act.[42] That leaves the remaining issue as to whether the detention should be at Paremoremo Prison, as he is currently detained, or at the Leimon Villas self-care unit in Christchurch.[43] In the course of the argument before me, counsel for the Chief Executive abandoned a submission that Corrections were not yet ready to handle detention at the villas. This was abandoned in the face of acceptance that the villa had been6 Set out above in [16].gazetted for this purpose. It appears the real issue is as to whether or not staff had been properly trained for this task. It seems to me that this is an insufficient reason. The level of training for this task will be a question of degree against training to handle prisoners.[44] Where possible, it is important to produce solutions under the PSA so that the orders cannot be seen to be part of a continuing punishment of the person, as distinct from protecting the public. All of that is captured in s 5 of the principles and I particularly have regard to principle 5(d). This requires the defendant to have as much autonomy and quality of life as possible, he will have more at the Leimon Villas than he will have at Paremoremo Prison. It hardly needs to be said that these s 5 principles apply to the application of an application to grant an interim detention order as much as to a final order.[45] After hearing from counsel I order the Respondent be detained pursuant to an interim detention order at the PPO residence being a four-bedroom villa located within the Leimon Villas self-care unit inside the perimeter fence of ChristchurchMen's Prison.[46] This order shall come into force on 27 April 2016 and remain in force until the application for a PPO is finally determined.____________________Fogarty J