CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WAITI [2023] NZHC 2310

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WAITI [2023] NZHC 2310 [24 August2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2023-409-391[2023] NZHC 2310BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND SONNY TEARAMOANA WAITIRespondentHearing: 17 August 2023Appearances: C J Boshier for ApplicantM L Dillon for RespondentJudgment: 24 August 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 24 August 2023 at 10.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The applicant has applied for a public protection order (PPO) to be madeagainst the respondent under the Public Safety (Public Protection Orders) Act 2014(Public Safety Act).1 Until that application is finally determined, the applicant hasalso applied for an interim detention order (IDO).2 Both the PPO and IDO seek thatthe respondent be detained in prison, rather than in Matawhāiti residence, apurpose-built facility for persons subject to a PPO.3[2] This decision addresses the application for an IDO.Mr Waiti's offending history[3] The respondent, Mr Waiti, is now 35 years old. His first offending is recordedin the Youth Court in 2002. He was first sentenced to imprisonment on 30 April 2004of a charge of wounding with intent to cause grievous bodily harm and two charges ofaggravated robbery. Since then, Mr Waiti has accrued a number of convictions, manyof which involve violence. In 2005 Mr Waiti was convicted for assaulting a prisonofficer. In 2008 he was convicted of possessing an offensive weapon and assaultingpolice. In 2009 he was convicted of three charges of common assault. In 2010 he wasconvicted of threatening to kill. In 2011 he was convicted of assault with a weapon.[4] In 2013 Mr Waiti committed a serious kidnapping of his domestic partner. Shedrove them out to the country and then he locked her in the car boot. He drove offeractically. She attempted to escape from the boot as she was fearful the car wouldcrash. She eventually managed to open the boot but her leg got caught in the car'stowbar. She was then dragged along the highway for some 1.6 km at speeds in excessof 100 km/h despite witnesses' frantic attempts to stop Mr Waiti. He even overtookvehicles while she was being dragged behind the car. The victim was only releasedafter he swerved the car causing her to be dislodged from the towbar. Witnessessubsequently saw him stop several kilometres on and walk around the back of thevehicle and then drive off, from which it could be inferred that Mr Waiti knew thevictim was being dragged behind his car. The victim suffered significant injuries toher entire body, including losing part of one leg. As a result of this offending, Mr Waiti1 Public Safety (Public Protection Orders) Act 2014, s 13.2 Section 107(2).3 Pursuant to ss 85(1) and 107(2).was sentenced to six years and five months' imprisonment4 and on 11 December 2019an extended supervision order (ESO) was imposed for a five-year term.5[5] On his release from prison Mr Waiti commenced living at a Department ofCorrections residence, Kaainga Taupua, on the grounds of Spring Hill prison.However, while subject to the ESO and intensive monitoring (IM), Mr Waiti hascommitted further offending and also breached the ESO. Specifically, Mr Waiti:(a) was convicted and sentenced to one month's imprisonment for a chargeof behaving threateningly committed in December 2019;(b) was convicted and sentenced to one month's imprisonment ontwo charges of breaching his release conditions committed inDecember 2019;(c) was convicted and sentenced to four months' imprisonment forassaulting a prison officer in October 2019;(d) was convicted and sentenced to two months' imprisonment ontwo charges of breaching his ESO in April and June 2020; and(e) was convicted and sentenced to come up if called upon on two chargesof breaching his ESO in October and December 2020.[6] Furthermore, on 23 May 2021, shortly after his IM condition was lifted,Mr Waiti committed serious offending against two other Kaainga Taupua residents.He punched and kicked one victim in the head, knocking him to the ground beforepresenting a knife to him. The other victim came out of his room and saw this andMr Waiti began threatening him too. He then pulled both victims into a bedroom,pointed the knife at them and threatened to kill them. He demanded a mobile phoneoff one of them and called a woman. He threatened her by saying if she hung up, hewould kill one of the victims. The incident lasted around an hour before the victims4 R v Waiti DC Rotorua CRI-2013-063-1725, 25 October 2013.5 Chief Executive of the Department of Corrections v Waiti [2019] NZHC 3256.were able to leave the unit. This offending resulted in two charges of kidnapping,two charges of threatening to kill and a charge of assault with intent to injure.Mr Waiti was sentenced to two years three months and 14 days' imprisonment and isdue to be released on 5 September 2023.[7] In light of this history, the Chief Executive of the Department of Corrections(the Chief Executive) seeks an IDO pursuant to s 107 of the Public Safety Act as it isconsidered there is no lesser alternative option to manage the risk that Mr Waitipresents before the determination of the PPO application. Furthermore, the ChiefExecutive applies for Mr Waiti to be detained in prison, saying he cannot safely bemanaged in Matawhāiti residence because the living environment there is notdissimilar to that in which Mr Waiti was living when he committed serious violentoffending against two fellow residents at Kaainga Taupua.Public Protection Orders and Interim Detention Orders[8] The Public Safety Act provides for the Court to make PPOs requiring thedetention of very high risk individuals at a secure facility within prison precincts.6They may be put in place for individuals who have served a finite prison sentence, butwho still pose a very high risk of imminent and serious sexual or violent offending andwhere those persons cannot be safely managed in the community.7[9] The inherently punitive nature of such orders was identified in Chisnall vAttorney-General, where the Court of Appeal held:8[218] ESOs and PPOs are imposed on persons nearing the end of thesentences imposed on them by the courts in response to their criminaloffending, applying the purposes and principles of sentencing set out in theSentencing Act including the important purpose of protecting the communityfrom the offender. The restrictions which then flow from both ESOs and PPOsare potentially very severe, and in the case of PPOs can amount to indefinitedetention. This is punishment, in the absence of trial and conviction for afurther offence. It is a marked departure from the legal order reflected ins 26(2) of the Bill of Rights Act.6 Public Safety (Public Protection Orders) Act, s 13; see 114.7 Sections 7(1)(a) and 13(1).8 Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484.[10] Although the decision in Chisnall is currently under appeal, ESO cases sincethe Chisnall decision have emphasised the need for strong justification for makingsuch orders. For example, in R (CA586/2021) v Chief Executive of the Department ofCorrections, the Court of Appeal made the following observation:9We accept the submission of R that consequent upon Chisnall, thecontinuation of the ESO needs to be clearly justified. Whilst that has alwaysbeen the case, the declarations of inconsistency made by the Court emphasisethe need for careful scrutiny. In this regard we note Chisnall holds that s 26(2)of the NZBORA (the second penalty provision) is capable of being subject toa reasonable limit. "Strong justification" will, however, be required, and thataccordingly is the lens through which we assess whether the Judge erred inconfirming the order.[11] Similarly, the Court of Appeal in Wilson v Chief Executive of the Departmentof Corrections adopted the approach in R (CA586/2021) v Chief Executive of theDepartment of Corrections and held that "strong justification" was needed for theimposition of an ESO.10[12] Ms Boshier submits, and I accept, that the "strong justification" test will alsobe required when considering whether to make an IDO pursuant to s 107, as in thiscase.[13] The jurisdiction to make an IDO pending determination of the application fora PPO, is set out in s 107. It provides:107 Court may order interim detention of, or interim imposition ofconditions on, respondent(1) This section applies when, before an application for a publicprotection order is finally determined, 1 or more of the followingevents occur:(a) a respondent is released from detention:(b) a respondent who is subject to an extended supervision orderceases to be subject to conditions of the kind referred toin 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):9 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53](footnotes omitted).10 Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [19]–[20].(e) a respondent to whom section 7(1)(d) applies arrives inNew 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, specifiedin the order.(3) When the court makes an order under subsection (2) (an interimdetention order), the court may suspend that order subject to anyconditions that the court thinks fit.(4) An order under this section ceases to have effect when the applicationfor a public protection order is finally determined or discontinued.[14] In Mr Waiti's case, the IDO is sought on the basis that he is soon to be releasedfrom detention.11[15] The Supreme Court in Chisnall v Chief Executive of the Department ofCorrections confirmed that the test which applies to IDOs is the same as for thesubstantive PPO, saying:12it is appropriate to indicate agreement with the view that interim orders unders 107 of the Public Safety Act can be made only when the court is satisfied onthe balance of probabilities of eligibility under s 7 and that the conditions in s13 are established. That means it must be satisfied that there is "very high riskof imminent serious sexual or violent offending by the respondent" if no suchinterim order is made. In relation to the commission of serious sexual orviolent offences by a person, "imminent" is defined in the Act to mean "thatthe person is expected to commit such an offence as soon as he or she has asuitable opportunity to do so".[16] In terms of the evidence required to support the making of an IDO the SupremeCourt said:[20] Applications for interim detention order or interim supervision orderare necessarily determined on a provisional view of the evidence because untilthe substantive hearing of the public protection order application the evidencemay not yet be fully tested or countered by evidence called on behalf of therespondent. 11 Public Safety (Public Protection Orders) Act, s 107(1)(a).12 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR83 at [33] (footnote omitted).Should an IDO be made?[17] While Mr Waiti does not actively oppose the making of an IDO, I must still besatisfied that there are, at least on a provisional basis, grounds for making the IDO.There is no dispute that Mr Waiti meets the threshold for the imposition of an PPO,set out in s 7(1) of the Public Safety Act. He is aged over the age of 18 years and isdetained in a prison under a determinate sentence for a serious violent offence, asdefined, and his release date is within six months of the application being made.[18] The application for an IDO is made on the grounds that there is a very highrisk of imminent serious violent offending by Mr Waiti if he is released from prisoninto the community.13[19] Section 13(2) of the Public Safety Act provides that the Court may not make afinding of a very high risk of imminent serious violent offending under s 13(1)(b)unless the Court is satisfied the respondent exhibits a severe disturbance in behaviouralfunctioning established by the evidence to a high level of each of the followingcharacteristics:(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, stressand difficulties;(c) absence of understanding or concern for the impact of the respondent'soffending on actual or potential victims; and(d) poor interpersonal relationships or social isolation or both.[20] In this regard, I have evidence (albeit untested) from two health assessors:Dr Angela MacFarlane, a registered clinical psychologist; and Mr Gahan Joughin, aconsultant clinical psychologist.14 Their views are consistent and, in the13 Public Safety (Public Protection Orders) Act, s 13(1)(b).14 Section 9.circumstances, it is sufficient simply to report their conclusions in respect of thevarious matters listed in s 13(2).[21] In terms of whether Mr Waiti has an intense drive or urge to commit a particularform of offending, Dr MacFarlane concludes as follows:Overall, it is this writer's opinion that Mr Waiti frequently experiences astrong and intense urge to behave violently and that he experiences this urgeas difficult or impossible to ignore. Given there is a record of referrals forpsychological intervention, Mr Waiti appears to have either declined treatmentoffered or been unable to make long term gains from any treatment completed.As a result, the urge to do violence is considered current and active and shoulda relevant situation present itself, he would be unable to effectivelyself-manage the urge to engage in violence.[22] Mr Joughin, similarly concludes, as follows:Mr Waiti demonstrates a clear drive or urge to engage in violent offendingbehaviour in the writer's opinion. His intense drive for violence is very easilyactivated as outlined earlier in this report, essentially by any indication thathis immediate needs may not be met, any attempt by others to influence him,or any of a variety of triggers including the activation of anger.[23] In terms of whether Mr Waiti has limited self-regulatory capacity,Dr MacFarlane concludes as follows:Mr Waiti's difficulties with self-regulation are pervasive, long-standing,appear resistant to intervention or sanction, and given recent prison records,appear currently or recently active. Overall, it is this writer's opinion thatthere is good evidence of the presence of poor self-regulatory capacity forMr Waiti.[24] Mr Joughin reaches the same conclusion:In the assessor's opinion, Mr Waiti demonstrates very limited self-regulatorycapacity, as evidenced by his impulsivity, extreme emotional reactivity, andinability to cope with or tolerate any external influences that threaten hisperceived need for absolute control over his environment.[25] In terms of an absence of understanding or concern for victims, Dr MacFarlanesays:Mr Waiti's records show him to have previously demonstrated a superficialregret for offending behaviour or violent outbursts However, in each casethere appears to have been a self-interest in the statement of regret or apology Records of spontaneously expressed concern for previous victims is sparseto non-existent and contradicted by several instances where a callous attitudeto the effects on victims was shown Overall, Mr Waiti has a history of demonstrating an absence of understandingor concern regarding the impact of his violent behaviour on others. In theabsence of offence-focused treatment, alongside clear personalitycharacteristics showing callous disregard for others, and without clearevidence of behaviour suggesting the contrary, it is this writer's opinion thatpoor victim understanding and concern is likely to remain an active andpresent risk issue for Mr Waiti.[26] Mr Joughin concludes:Mr Waiti demonstrates no concern for the victims of his violent offending orpotential future victims, while his unwillingness to be interviewed for thecurrent assessment precludes comment from being made regarding hisunderstanding of the effects of his offending on actual or potential victims.[27] Finally, in respect of poor interpersonal relationships and social isolation,Dr MacFarlane concludes:Mr Waiti has demonstrated a long history of difficulties within interpersonalrelationships. Relationships with staff, peers, intimate partners and whanauhave been significantly disrupted by his reactive and aggressive behaviour,suspiciousness and hostile attribution style. He has very few natural supportsand has problematic relationships with professional supports. It is therefore the writer's opinion that Mr Waiti demonstrates clearevidence of disrupted interpersonal relationships and some evidence of socialisolation.[28] Mr Joughin also accepts this characteristic is made out and records:Mr Waiti has remained socially isolated (from prosocial community members)given the extent of his incarceration history and has engaged in a pattern ofaggressive and abusive control of his only (to the writer's awareness) longerterm partner, who was also the victim of his 2013 violent offending.Mr Waiti's social relationships appear limited to highly antisocial MongrelMob gang peers who reinforce his antisocial personality and structure andendorse violence.[29] I am satisfied, on a provisional basis, that Mr Waiti exhibits a severedisturbance in behavioural functioning established by evidence to a high level of thefour characteristics described above. However, I also must go on to consider (againon a provisional basis) whether he poses a very high risk of imminent serious violentoffending. In that regard, I note that a serious violent offence means an offence of thekind defined in s 3 of the Public Safety Act. I also note that "imminent" means theperson would be expected to commit such an offence as soon as he or she has a suitableopportunity to do so.15[30] I accept the opinions contained in both health assessors' reports, along with theevidence from Mr Lodewicus Gerber, the regional manager in the central region's highrisk team, regarding Mr Waiti's behaviours while housed at Kaainga Taupua, provideample evidence on which I can conclude that this test is met at this interim stage. AsDr MacFarlane explains, Mr Waiti's "rapid return to violence within weeks of releasefrom prison" and his "repeated use of violence when under high levels of monitoringand supervision" indicate an ongoing risk of imminent violence for Mr Waiti. The facthis most recent serious offending occurred soon after the IM condition of his ESO waslifted further reinforces the imminence of the risk of serious violent offending.[31] However, I also must consider whether there is an adequate alternative optionto an IDO which meets the risk which Mr Waiti poses. As the Supreme Court said inChisnall:16 the Public Safety Act requires the court in making an interim detentionorder under the Act to be satisfied on the balance of probabilities not only thatthe statutory criteria for making a public protection order have beenprovisionally made out but that the risk to public safety cannot be sufficientlymet by less restrictive options to interim detention.[32] In reaching my conclusion that the risks to public safety cannot be sufficientlymet by a less restrictive option, I place weight on the conclusions of Mr Joughin whosays:In summary, it is the writer's opinion that Mr Waiti's risk cannot be safelymanaged in any form of release environment at this time. Mr Waiti hasdemonstrated his clear willingness to engage in aggressive and violentbehaviour in any environment he has been placed in, and regardless of thestringent external management structures placed around him (includingintensive monitoring and GPS tracking). Any future staff working with Mr Waiti should be clearly informedregarding his potential for violence, in the writer's opinion.15 Public Safety (Public Protection Orders) Act, s 3 definition of "imminent".16 Chisnall v Chief Executive of the Department of Corrections, above n 8, at [37].[33] That view is supported by Mr Gerber's evidence, when he says Mr Waiti cannotreturn to Kaainga Taupua due to the significant concerns for the staff and occupants'safety.[34] The fact Mr Waiti returned to serious violent offending almost as soon as theIM condition expired means there is an inevitable risk to public safety if Mr Waiti wasreturned to an environment such as Kaainga Taupua and simply subject to an ESO.Should I order that the respondent be detained in prison while subject to the IDO?[35] Being satisfied that an IDO should be made, as no lesser order would meet therisk which Mr Waiti poses, I go on to consider whether the application to have himdetained in prison under s 107(2) of the Public Safety Act should be granted.[36] The primary contest at this hearing was in relation to the Chief Executive'sapplication for Mr Waiti to be detained in prison rather than at the Matawhāitiresidence. Matawhāiti, as Ms Melissa Brussovs explains in evidence, is a separate andsecure civil detention residence within the wider perimeter of Christchurch Men'sPrison. It only houses men who have been sentenced to a PPO or who are placed therewhile subject to an IDO. Matawhāiti is currently the only facility designated as a PPOresidence in New Zealand.[37] To make an order that Mr Waiti be detained in prison I must be satisfied of thetests in s 85(2) of the Public Safety Act are met.17 That subsection provides that I canonly make an order detaining Mr Waiti in prison if I am satisfied that:(a) the person would, if detained or further detained in a residence, posesuch an unacceptably high risk to himself or herself or to others, or toboth, that the person cannot be safety managed in the residence; and(b) all less restrictive options for controlling the behaviour of the personhave been considered and any appropriate options have been tried.[38] The applicant relies on the affidavits of Mr Gerber, Ms Brussovs andMr Jonty McBrearty (who has been involved in the overall management of Mr Waitiat Rimutaka Prison), to demonstrate the risk that Mr Waiti poses day to day in any17 Chief Executive of the Department of Corrections v Pori [2020] NZHC 1446 at [53].environment less restrictive than prison. The factors which trigger this violence aremultiple and often insignificant. His threats and violence are indiscriminate and heviolently offends in all types of environments, noting he has not just offended in thecommunity and under ESO supervision, he has also received multiple misconducts forviolence within the prison.[39] Ms Boshier also notes that there is specific concern raised by the healthassessors about a placement at Matawhāiti, with Dr MacFarlane saying:caution needs to be provided regarding the risks posed by Mr Waiti to otherresidents in any ESO or PPO facility. The content of records indicates he wasvery uncomfortable and hostile when living alongside individuals who havesexually offended. By far and away the greater proportion of individuals onextended supervision and under a PPO will have sexual offending in theiroffending history. It is strongly advised that any future placement factor thesafety of these individuals as a priority.[40] Mr Joughin also says:It is the writer's opinion that Mr Waiti is highly likely to engage in continuedaggression and violence regardless of the release environment in which he isplaced. This conclusion would also be relevant should a PPO be granted, andMr Waiti be required to reside at the Matawhāiti residence at ChristchurchMen's Prison. In this environment he would be considered at very high riskof violence towards professionals and behavioural management staff workingwith him, as well as other residents of the facility.[41] Ms Boshier submits that the evidence of Mr Waiti's volatility and propensityfor violence, combined with the "community" approach and philosophy of theMatawhāiti residence, the fact that the other Matawhāiti resident is a child sex offenderand that Mr Waiti seriously offended against fellow residents in a similar environment,all mean the Court can be satisfied Mr Waiti poses an unacceptably high risk towardsothers, such that he cannot be safely managed in the Matawhāiti residence.[42] In terms of the requirement for all less restrictive options for controlling thebehaviour of the person having been considered and all appropriate options tried,Ms Boshier acknowledges my decision in Chief Executive of the Department ofCorrections v Pori, where I refused an application to detain Mr Pori under an IDO ata prison, when the option of housing him at Matawhāiti had not been tried.18 In18 Chief Executive of the Department of Corrections v Pori, above n 17, at [54].Mr Pori's case he had been housed at Tōruatanga, a residence similar to that at KaaingaTaupua, and which had not been particularly successful, but he had not had theopportunity to see whether placement at Matawhāiti could succeed. Accordingly, Ideclined the application to have him detained in prison.[43] However, Ms Boshier submits the factual situations confronting themanagement of Mr Pori and Mr Waiti are quite different. Mr Waiti poses a very highrisk of violence in any number of different situations and furthermore, there is anadditional risk at Matawhāiti due to Mr Waiti's expressed hostility towards sexualoffenders. Ms Boshier says it is unclear what options for controlling Mr Waiti'sbehaviour could be considered. The health assessors have highlighted specificconcerns in respect of safety should Mr Waiti be placed in Matawhāiti. PuttingMr Waiti in Matawhāiti could breach the safety of other residents, noting that theprinciples of the Public Safety Act include:19persons who are detained in a residence under a public protection order shouldhave as much autonomy and quality of life as possible, while ensuring theorderly functioning and safety within the residence.[44] Ms Boshier points out that there are limited powers of restraint and seclusionavailable to the residence manager of Matawhāiti,20 and these are not the preferredoptions. Furthermore, while IM appeared to manage Mr Waiti's behaviour, he stilloffended while subject to IM and seriously reoffended once IM concluded.Management at Matawhāiti is not akin to IM and it is submitted there are no otheroptions available at Matawhāiti which could control Mr Waiti's violent behaviour interms of s 85(2)(b).[45] Counsel for Mr Waiti, Mr Dillon, however, says the test in s 85(2)(b) is not metin this case. First, the risk of violence does not encompass just any violence, butserious violent offences as defined in the Act. The kind of low-level violence whichMr Waiti displayed in the prison environment is not serious violence. Furthermore,when Mr Waiti's offending history is looked at, his convictions for serious violent19 Public Safety (Public Protection Orders) Act, s 5(d).20 Sections 71–72.offences are not that great in number. It is also noteworthy that when he has been inprison or under reasonably strict supervision, there has been no serious violence.[46] Importantly, he submits the environment in Matawhāiti can be distinguishedfrom that in Kaainga Taupua. Matawhāiti is managed by trained staff under thesupervision of the Department of Corrections whereas Kaainga Taupua was managedby staff from Anglican Action. The levels of restriction will be greater in Matawhāitiand it does have facilities such as a seclusion room. It is acknowledged in the evidencethat isolation was a tool used by prison staff to manage Mr Waiti's behaviour.[47] Furthermore, Kaainga Taupua is "outside the wire", where Matawhāiti is not.The relative lack of restrictions in Kaainga Taupua meant it was possible for Mr Waitito obtain access to alcohol and cannabis. It was the use of substances which led himback to the path he had been on outside of prison. Mr Dillon says Mr Waiti believesthe more restrictive nature of Matawhāiti would diminish the risk of him obtainingsuch substances and then offending, noting the kidnapping offending involved bothalcohol,21 and cannabis.22 Similarly, in less-structured environments, Mr Waiti isprone to stop taking medication prescribed to manage his behaviour, resulting in himbecoming psychotic and unstable.23 Again, the more structured environment ofMatawhāiti would make this less likely.[48] In Mr Dillon's submission, it is wrong to equate Kaainga Taupua toMatawhāiti. Kaainga Taupua is more like Tōruatanga. Matawhāiti is purpose builtfor people like Mr Waiti. Until it has been tried, the applicant cannot satisfy s 85(2)(b)and say that all the restrictive options have been considered and all appropriate optionstried.[49] Mr Dillon also says that given the low occupancy level of Matawhāiti (there isonly one permanent resident and one transitioning to Matawhāiti), there is less risk ofdisagreements and friction.21 R v Waiti [2021] NZDC 18969 at [4].22 At [16].23 At [9].[50] Finally, Mr Dillon says that Mr Waiti now has appreciated he made a mistakeby failing to engage properly with the health assessors. He is now prepared tocooperate in the process. If detained in Matawhāiti rather than in prison, he would becontent for the PPO to be heard in due course, whereas if he were detained in prison,he would want it brought on promptly.Discussion[51] The issue of whether Mr Waiti should be ordered to serve the IDO in prisonturns on whether the second part of s 85(2)(b) is satisfied. That is, whether allappropriate options have been tried. While I acknowledge there is no certainty thatMatawhāiti will be an appropriate residence, I do not consider I can dismiss it as anappropriate option based solely on the experience at Kaainga Taupua. Matawhāiti ispurpose built to house people who meet the high threshold for making a PPO. Theenvironment is deliberately controlled to reduce the risk to the public and to otherresidents, while still affording a degree of freedom and independence to the residents.I agree that the ability of Matawhāiti to manage illicit substances being brought in ismuch greater than would be the case as a residence such as Kaainga Taupua. I alsoconsider the staff are better equipped to deal with the risks that its high risk residentspose. As Ms Brussovs explains, Matawhāiti is staffed by skilled and experiencedsupervisors employed by the Department of Corrections. They are equipped withdigital mobile radios, the facility is monitored by security cameras which aresupervised in real time, and the staff carry keys and swipe tags to access secure areasand are trained in safety intervention techniques. Matawhāiti includes a seclusionroom which is available to be used as a last resort. That said, this has never been used.Rather, the first line of defence for staff is the quality of the relationship they havewith the residents.[52] Ms Brussovs also explains how previous violence incidents at Matawhāiti havebeen managed by staff. In all but one case, staff have been able to successfully managethe incidents to a safe close using non-physical contact with residents. In respect ofthe incident that was not able to be deescalated in this way, a security emergency wasdeclared and staff from the Christchurch Men's Prison were called to assist inremoving the resident for safety reasons. However, this occurred without force andthat resident is now subject to a prison detention order, but on a graduated returnprogramme with a view to being housed in Matawhāiti.[53] In my view, Matawhāiti has significantly more systems in place thansomewhere like Kaainga Taupua to assist staff in dealing with someone like Mr Waiti.While these will not eliminate his violent and aggressive tendencies entirely, I cannotsay that it would be inappropriate to try housing him at Matawhāiti while the IDO isin force. Furthermore, I am concerned that a decision that s 85(2) is satisfied nowcould effectively preclude that decision being revisited if a PPO is made.[54] Finally, it will assist the decisionmaker when it comes to the substantive PPOapplication to decide whether, if a PPO is to be imposed, that should be served inMatawhāiti or in prison.[55] Accordingly, I make an interim detention order to the Matawhāiti residencepursuant to s 107 to commence on Mr Waiti's release date of 5 September 2023.Timetabing directions[56] I discussed with counsel the directions which were needed to progress thesubstantive application for the PPO. Mr Dillon indicated that he needed time to obtaina full grant of legal aid so as to ensure continued representation and would likely seekto obtain an independent health assessment report for Mr Waiti. It is unknown at thisstage what timeframes are required for those two steps. Accordingly, I suggested tocounsel that they confer on release of this decision and with a view to agreeingappropriate timetabling directions for the hearing of the PPO application.[57] I direct that within 20 working days of the date of this decision, counsel are tofile a joint memorandum setting out:(a) the likely timeframes to complete the steps identified at [56] above;(b) the length of time required for hearing; and(c) proposed timetabling directions for:(i) the provision of any further health assessment report; and(ii) the exchange of submissions and a common bundle.[58] Timetabling directions will then be issued in light of counsel's memorandum.Solicitors:Crown Solicitor, ChristchurchCopy to:M Dillon, Barrister, Hamilton