CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PORI [2020] NZHC 1446 [25 June 2020]

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PORI [2020] NZHC 1446[25 June 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-000229[2020] NZHC 1446BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND TOMMY APERA PORIRespondentHearing: 24 June 2020Appearances: C J Boshier for ApplicantM Starling for RespondentJudgment: 25 June 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 25 June 2020 at 9.45 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 25 June 2020[1] The Chief Executive of the Department of Corrections (the Chief Executive)has applied, under s 104 of the Public Safety (Public Protection Orders) Act 2014 (thePublic Safety Act), for a public protection order (PPO) in respect of Mr Pori.[2] Corrections has also applied for an order pursuant to s 107 of the Public SafetyAct that Mr Pori be subject to an interim detention order (IDO) to have effect until theapplication can be heard in full.[3] Mr Pori is currently remanded in custody on a charge of breach of the existingextended supervision order (ESO).1 He is due to be sentenced on that breach on25 June 2020. While it is expected that Mr Pori will receive a term of imprisonmentfor the breach of the ESO, he may be close to release on a time served basis given thetime he has spent in custody. For this reason, the applicant has requested that theapplication for an interim detention order be heard prior to the 25 June sentencing date.[4] Both the public protection order and the interim detention order applicationsinclude an application pursuant to ss 85 and 107(2) of the Public Safety Act seekingthat Mr Pori serve his IDO and PPO in prison instead of Matawhāiti residence, whichis a purpose built, secure facility located alongside Christchurch Men's Prison anddesigned to house individuals who are subject to a PPO.[5] Mr Pori opposes the applications, saying he should have the opportunity toobtain his own health assessors' reports and, in the interim he is subject to an ESOwith intensive monitoring which provides sufficient protection for the public. He alsorejects the application to have the IDO and PPO served in prison, and submits that inany event, there is no jurisdiction to direct that an IDO be served in prison.Interim detention orders[6] The hearing on 24 June 2020 dealt with the application for an IDO. The orderis sought pursuant to s 107 of the Public Safety Act. That section 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 to insection 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):1 The existing ESO was imposed in December 2017 and is currently set to expire on 7 August 2026.(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.[7] In this case, the triggering event under s 107(1) is Mr Pori's imminent releasefrom detention.2[8] The test which applies to the making of an interim detention order is the sameas for the substantive PPO. In Chisnall v Chief Executive of the Department ofCorrections, it was said:3 it is appropriate to indicate agreement with the view that interim ordersunder s 107 of the Public Safety Act can be made only when the court issatisfied on the balance of probabilities of eligibility under s 7 and that theconditions in s 13 are established.[9] However, as the Court in Chisnall noted:4Applications for interim detention order or interim supervision order arenecessarily determined on a provisional view of the evidence because until thesubstantive hearing of the public protection order application the evidencemay not yet be fully tested or countered by evidence called on behalf of therespondent.[10] While Mr Starling, counsel for Mr Pori, seeks an adjournment to obtain hisown health assessors' reports, noting there is a concern that Mr Pori suffers fromcognitive impairment and dementia is a possibility, I consider the application for anIDO should proceed. It is an interim measure designed to address public safety issues.I still must impose the least restrictive outcome that is appropriate, albeit on a2 Under s 107(1)(a).3 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR83 at [33].4 At [20].provisional basis. Any views on the evidence reached in this hearing can be revisitedwhen the application for a PPO is heard.Does the evidence provisionally satisfy me that the conditions in s 13 areestablished?[11] Mr Pori meets the jurisdictional threshold for the imposition of a publicprotection order (and therefore an interim detention order) which are set out ins 7(1)(b), in that he is over 18 years of age, he is subject to an ESO, and he is or hasbeen subject to a condition of full-time accompanying and monitoring imposed unders 107K of the Parole Act 2002.[12] However, I also need to be satisfied, at least on a provisional basis, that he is aperson who meets the threshold for such an order because he is at very high risk ofimminent serious sexual or violent offending. That is established by considering thefour behavioural characteristics set out at s 13(2) of the Public Safety Act which are:(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 victim of the respondent'soffending on actual or potential victims; and(d) poor interpersonal relationships or social isolation, or both.Is there an intense drive or urge to commit a particular form of offending (s 13(2)(a))?[13] The application is brought primarily on the basis of Mr Pori's drive to commitsexual offending. Prior to being under an ESO, Mr Pori had the following convictions:(a) a 1983 conviction for rape from the Cook Islands;(b) convictions from 1988 for being unlawfully found and assault on achild under 14 from the Cook Islands;(c) a 1993 conviction for rape from the Cook Islands; and(d) convictions from 2006 for sexual violation by unlawful sexualconnection and indecent assault of a nine year old girl in New Zealand.[14] His offending in 1983 and 1988 involved entering the victim's house at night,without consent.[15] Ms Waugh, who is a registered clinical psychologist and neuropsychologistand has provided a report dated 25 November 2019, states:Mr Pori demonstrates a history of offending that can occur in an impulsive,opportunistic manner; or by actively seeking out and creating opportunities tooffend. His offending is motivated by an intense desire for sexual gratificationand ungoverned by impulse control, anticipation of the consequence forhimself or others, or an ability to take another's perspective. His sexualoffending has occurred over more than 35 years, with continued sexualoffending and sexualised behaviour occurring during the period of hisExtended Supervision Order. He has offended against females of differentages and within different environments.These factors, in the writer's opinion, all reflect an intense and persistent driveor urge to actively seek sexualised contact.[16] That opinion is supported by Dr Mattson, who is a registered clinicalpsychologist and who has provided a report dated 15 January 2020.[17] I am satisfied that Mr Pori's record, combined with his observed behaviourwhile under an ESO demonstrates an intense drive to commit sexual offending.Does Mr Pori demonstrate limited self-regulatory capacity?[18] Dr Mattson says that in her opinion: Mr Pori displays poor self regulation capacity. Further, that he has apersonality profile and cognitive difficulties that mean he is unlikely todevelop the requisite skills for appropriate management without externalsupport and monitoring.[19] Ms Waugh concurs. She says:Mr Pori has demonstrated a very limited self-regulatory capacity throughouthis life and particularly over recent years. He displays frequent dysregulatedemotional and aggressive outbursts in response to minimal triggers includingperceived injustices and criticisms, change, when his goals are thwarted, andother forms of stress.[20] She concludes that he demonstrates a limited self-regulatory capacity both inregard to his sexual behaviour and his emotions and behaviour more generally.[21] I am satisfied that the health assessors' reports, supported by the more recentreports from Ms Katey Gibling and Mr Andrew Burger, who have been involved withMr Pori during his time residing at Tōruatanga, give numerous examples of Mr Pori'spoor capacity for self-regulation. He clearly meets this criterion.Is there an absence of understanding or concern for victims?[22] Ms Waugh reports that: Mr Pori presents with a lack of understanding or concern regarding theimpact of his sexual and violent offending against past or potential victims.He has shown no comprehension of the effects of his actions on victims, andrather minimised the harm caused. Throughout his life, Mr Pori has eitherdenied his offending, or, markedly minimised his culpability. When he hasacknowledged it, he has blamed others, circumstance, or misunderstanding,with no acknowledgment of personal responsibility. Mr Pori has shown littleor no motivation to address his offending behaviour, denying the need toimplement measures to prevent future risk of harm to others.[23] Dr Mattson also concludes that Mr Pori "currently lacks the ability toappreciate the impact and sequelae of effects of sexual or violent offending onvictims."[24] I am satisfied, by a clear margin, that Mr Pori does not have any understandingor concern for his victims.Does Mr Pori have poor interpersonal relationships or social isolation?[25] Dr Mattson describes Mr Pori as having "rudimentary social skills and anunsophisticated ability to appropriately connect with others". However, she qualifiesthat by saying "[w]ithin those connections, he is able to sustain appropriate socialbehaviour as long as the other person is complying with his wishes or expectations."However, she points that:[w]henever Mr Pori experiences an interpersonal situation when he is notgetting what he desires, he quickly reverts to agitation and aggression orsexualises his behaviour to manipulate the outcome he desires.She concludes that Mr Pori continues to have poor interpersonal relationships and willtherefore experience social isolation.[26] Similarly, Ms Waugh concludes that "Mr Pori has no adequate interpersonalsupport that may assist him manage his risk".[27] Again, I accept Mr Pori has poor interpersonal relationships. He does notbehave in a way that would foster meaningful relationships and manage his offendingrisk. His interactions are self-centred and take no account of whether his behaviour isappropriate from the other person's perspective.Is there a very high risk of imminent serious sexual offending?[28] I accept that all the personal characteristics listed in s 13(2) are demonstratedby Mr Pori. However, I must still be satisfied there is a very high risk of imminentserious sexual or violent offending if Mr Pori is left unsupervised.[29] In this case, the offending is sexual offending under Part 7 of the Crimes Act1961 which is punishable by seven or more years' imprisonment.[30] "Imminence" in this context means that the offender would be expected tocommit such an offence as soon as he had a suitable opportunity to do so.5[31] Both health assessors are clear that Mr Pori is at very high risk of engaging insexual reoffending and that risk would be imminent in the absence of a regime thatincludes strict monitoring.5 Public Safety (Public Protection Orders) Act 2014, s 3.[32] Again, those opinions are reiterated by the staff who currently work withMr Pori in Tōruatanga residence. He continues to engage in sexually explicitcommunications with female staff and if he is challenged on his inappropriate sexualcomments, he responds with aggression and anger. This has clearly caused significantdifficulties in managing him to avoid unwanted advances to female staff.[33] Having read these accounts, I accept Ms Boshier's submission that theevidence paints a picture of an individual who views most or all interactions withfemales through the lens of his sexual desires and he is incapable of exercising anyempathy or self-control that might prevent him from acting on those desires inintrusive, aggressive and ultimately violent ways. He is at very high risk of imminentserious sexual offending if left unsupervised.Is there an adequate alternative option?[34] Having decided that Mr Pori, at least on a provisional basis, meets the statutorycriteria for making a PPO (and therefore an IDO), I also have to consider whether therisk to public safety can be sufficiently met by less restrictive options to interimdetention.6[35] In August 2011, the Chief Executive sought and obtained an ESO for a periodof 10 years. Mr Pori breached that order on multiple occasions and was also convictedof violent offending on multiple occasions. In 2017, although the ESO had notexpired, the Chief Executive sought a new order with a direction for intensivemonitoring for the maximum statutory period of 12 months. Given at that stage,Mr Pori had already served three years of the 2011 ESO, the new ESO was made fora period of seven years, so as not to extend the total time that he was to be subject toan ESO.[36] In response to my query as to how long the intensive monitoring conditionshave to run, Ms Boshier was able to advise the Court that Mr Pori had approximatelyfive months of intensive monitoring to run. This is because, although it was imposed6 Chisnall v Chief Executive of the Department of Corrections, above n 3, at [37].on 11 December 2017, it was suspended between the following dates, when Mr Poriwas imprisoned:11 December 2017 – 14 February 201824 May 2018 – 3 October 20185 December 2018 – 18 June 201929 July 2019 – 27 February 20204 March 2020 – present date.[37] As the above record shows, Mr Pori has repeatedly breached his ESO. Theoffending involves violent and threatening behaviour, inappropriate contact withfemale staff and leaving the address where he is required to reside withoutauthorisation. When he was sentenced on 30 August 2009, it was noted that he had15 previous convictions for breach of an extended supervision order. He is about tobe sentenced for his seventeenth breach.[38] The applicant's position is that Mr Pori requires 24 hour monitoring to managehis risk. Ms Waugh says:In the absence of intensive monitoring or a similarly resourced regime, it isconsidered highly likely that Mr Pori will deliberately seek out or respondimpulsively to opportunities for sexual gratification. Mr Pori requireslimitations placed on his ability to access potential victims either intentionallyor incidentally. He requires a structured environment in which the routinesand behavioural expectations are clear; agreed processes in place for care staffto follow in response to his behaviour problems; and close and consistentmonitoring of his whereabouts. In addition, it is considered that any staffworking with Mr Pori require training to ensure that his complex needs aremet; those being his health needs, particularly in relation to a health model ofcare response to his behavioural impairments, and the effective managementof his risk.[39] Dr Mattson also concludes that:[t]o date and despite his frequent non-compliance with [the ESO], it seemsthat the support inherent in the Intensive Monitoring has been essential inpreventing sexual offending. Without the high degree of responsiveness fromDepartmental staff and the Police, Mr Pori may well have attempted tosexually offend against the children or women he approached in thecommunity.[40] Thus, as Ms Boshier submits, it is clear that Mr Pori requires 24 hourmonitoring if he is not in a secure environment. She accepts that he could return to bemanaged under the existing ESO with intensive monitoring until that order expires.However, she points out that in a practical sense, that option is not available becausethere is no suitable residence to provide the 24 hour monitoring of Mr Pori. For thereasons explained in Ms Gibling's and Mr Burger's evidence, he is not able to returnto Tōruatanga. As Ms Gibling says: Mr Pori's presentation is such that even with extensive resource it is notpossible to manage him without a significant risk of harm to other residents,staff, visitors and the community. Due to this, the current position is thatMr Pori will not be accepted back at Tōruatanga if or when he is released fromcustody.[41] Mr Burger also explains why he does not consider Matawhāiti is suitable forMr Pori. He says:There are no other options available at Matawhāiti that have not already beentried, and failed, at Tōruatanga. Unlike Tōruatanga, Matawhāiti is surroundedby an electrified fence. This could potentially escalate Mr Pori's anxieties andheighten his risk to staff informing him he was unable to leave the facility.[42] Mr Burger expresses particular concerns about the large number of female staffworking at Matawhāiti who would be at risk from his ongoing tendency towardsunpredictable behaviour, violence and aggression, particularly towards females.[43] It is for this reason that Ms Boshier seeks that Mr Pori be subject to an IDOthat is served in custody, particularly where, as Ms Waugh noted in her report, that inprison, Mr Pori's behaviour was notably more settled than when he is in thecommunity as he appears to respond well to the routine structure and close attentionafforded by the prison environment. However, as she points out, the court mustproceed by taking into account s 5(d) which expresses the principle that:7persons 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.7 Public Safety (Public Protection Orders) Act 2014, s 5(d).[44] While that principle focuses on a public protection order I am satisfied that thesame considerations should apply when considering an IDO and I need to be satisfiedthat the person cannot safely be accommodated in a non-prison residence before I canmake an IDO which detains the person in prison.[45] Ms Boshier submits that the totality of the evidence presented shows thatMr Pori poses an unacceptably high risk to others and this cannot be safely managedat either Tōruatanga or Matawhāiti.[46] As a side issue, she notes that there is uncertainty about the availability ofemergency powers to Matawhāiti staff when dealing with persons on a IDO. ThePublic Safety Act, in s 3, defines a PPO as an order imposed under s 13 of the PublicSafety Act whereas an IDO is an order imposed under s 107 of the Public Safety Act.The Public Safety Act also expressly defines a "resident" as a person subject to a PPO.It provides certain powers as to seclusion and restraint within the residence, but thepowers are expressly stated to apply to residents which she says, read logically, relatesto those on substantive PPOs.[47] Ms Boshier submits that the uncertainty over whether these powers apply tosomeone who is subject to an IDO is a relevant consideration when the court isdeciding whether Mr Pori can be safely managed at Matawhāiti.[48] In her submission, therefore, the evidence shows there is no adequatealternative option other than the imposition of an IDO, to be served in a prison.[49] Counsel for Mr Pori, Mr Starling, considers, first, that there is no jurisdictionto order detention in a prison during the currency of an IDO, and in any event, thethreshold is not met in its instance.[50] He points out that the court should only make such an order if the respondentwould pose an unacceptably high risk to themselves or others, and all less restrictiveappropriate options have been tried. He says in this case, the respondent may well besuffering from dementia or some other cognitive dysfunction and he should be treatedin an appropriate mental health facility rather than remain in prison. That approach isconsistent with the provisions in a New Zealand Bill of Rights Act, including s 23(5),that Mr Pori is entitled to receive medical treatment that is reasonably necessary.[51] In the present case, he argues that at the end of his current sentence, Mr Poriwould not be released from prison to an environment with no support and supervision.He is still subject to an ESO with intensive monitoring. That will endure for a furtherfive months. While there may have been difficulties with that, Mr Pori hasnevertheless been assigned to a female probation officer, has a female manager atTōruatanga and both reports for the PPO application were written by femalepsychologists. It appears therefore, that Mr Pori has been able to have interactionswith female staff and he is sceptical of the evidence by Ms Gibling and Mr Burger asto the inability to keep him in such a facility in the interim. While Mr Starling acceptsMr Pori has repeatedly offended during the term of his ESO, he says Mr Pori has notcommitted any further serious sexual offending so the ESO could be said to haveaddressed the identified risk. An IDO should not, in his submission, be made simplybecause Mr Pori is difficult to manage and repeatedly commits other offences.[52] Mr Starling also submits that even if the threshold for making an IDO isreached, there is no jurisdiction to direct Mr Pori to serve his IDO in prison. While s107(2) allows the court to order that the respondent is to be "detained by a person, andin a place, specified in the order", that cannot be read to encompass a prison. Theability to order a respondent to be held in prison is specifically addressed under s 85and applies only to a person subject to a public protection order. Furthermore, therights and obligations of a person subject to a prison detention order found in s 86must, logically, only apply to a person who is subject to a public protection order andwho is directed to be detained in prison under s 85. The legislation cannot be read toimply those rights to persons subject to an interim detention order under s 107.Similarly, the protection of having a prison detention order reviewed by a reviewpanel, which is provided for under s 87, only relates to persons who are subject to apublic protection order and detained under s 85. Because the Public Safety Act onlyprovides for a prison detention order (with various statutory safeguards) to apply tosomeone subject to a PPO, Mr Starling argues there is no ability to direct that a personsubject to an IDO be detained in prison under s 107(7).Discussion[53] I do not need to consider whether I have jurisdiction to direct an IDO to beserved in prison, given my view, expressed to counsel, that it would be premature todirect that. However, my tentative view is that s 107(2) is drafted broadly enough toencompass that option, and the other provisions relating to prison detention orderswould necessarily be read, as applying to an IDO directed to be served in prison.Consequently, if s 107(2) does allow me to direct that an IDO be served in prison, Iconsider that the prerequisites for making such a direction in respect of a PPO providedin s 85(2) would need to be met. That section provides:(2) The court may make an order under subsection (1) only if satisfiedthat—(a) the person would, if detained or further detained in aresidence, pose such an unacceptably high risk to himself orherself or to others, or to both, that the person cannot be safelymanaged in the residence; and(b) all less restrictive options for controlling the behaviour of theperson have been considered and any appropriate optionshave been tried.[54] In the circumstances of this case, I would not be prepared to order that Mr Poribe detained in prison. While I accept the evidence demonstrates that s 85(2)(a) is met,I am not satisfied that s 85(2)(b) is met. Matawhāiti is purpose-built to deal withserious offenders. While I acknowledge Mr Burger's evidence that he manages bothMatawhāiti and Tōruatanga and considers that there are "no other options available atMatawhāiti that have not already been tried, and failed at Tōruatanga", I am notprepared to consider prison as the only option when Matawhāiti has not been tried.Although, Mr Burger says that Mr Pori's "ongoing tendency towards unpredictablebehaviour, violence and aggression (particularly towards females), together with hisinability to get along with others or respect their rights to an orderly facility, will havethe potential to severely disrupt the Matawhāiti operations, and compromise thewelfare of Mr Pori and other residents, staff and visitors", this is insufficient to denyMr Pori the opportunity to try this less restrictive option first.[55] The more vexing question, however, is whether I should decline to make aninterim detention order on the grounds that the risk to public safety can be sufficientlymet by less restrictive options to interim detention.8[56] On this issue Mr Starling strongly submitted that despite Mr Pori's aggressiveand disruptive behaviour, the ESO with intensive monitoring had adequately managedMr Pori's risk to public safety and he had not committed a serious sexual offenceduring that time. Thus, no matter how unsatisfactory the present situation was, it didnot warrant the making of the more restrictive IDO under the Public Safety Act.[57] Ms Boshier, however, considered the requirements of s 85 applied with equalforce to my consideration of whether an IDO was required in preference to an ESO.In this case, the evidence was unequivocal that Mr Pori posed an unacceptably highrisk to others within the unit and could not be safely managed in the residence. Theevidence of Ms Gibling gives examples of him threatening to kill, punch or slash staffor other residents. She cites, in particular, a recent example where he becameaggressive in response to some confusion about the location of a teaspoon. Althoughshe tried to de-escalate the situation, Mr Pori lunged at her and was only preventedfrom grabbing her by supervisors pulling him to the ground and restraining him.[58] Furthermore, he has written her numerous letters to female prison staff and toMs Gibling, some of which is sexually explicit in content. If he is challenged on this,he becomes aggressive and angry.[59] In my view, the behaviour described is indicative of the risk Mr Pori still poses.He appears to know no boundaries. I do not consider the absence of serious sexualoffending in the time spent on the ESO is indicative of his risk being successfullymanaged. He has spent a significant amount of that time in prison in any event, and Iam satisfied, at least provisionally, that Mr Pori would take advantage of any situation,where staff could not get to him in time, to sexually offend.8 Being the test articulated by the Supreme Court in Chisnall v Chief Executive of the Departmentof Corrections, above n 3, at [37].[60] In considering his risk to the public, I must also take into account the risk tostaff at the Tōruatanga facility. I do not consider there needs to have been an actualoffence for me to take account of the ongoing risk that staff say Mr Pori still poses.Result[61] In my view, the threshold for an interim detention order is made out and I orderthat Mr Pori be subject to an interim detention order commencing today, 25 June 2020.It is to be served at the Matawhāiti residence.The next stage[62] This should not be taken as determining the outcome on the PPO application.That may result in a less or more restrictive outcome depending on the evidencepresented at that date. I also note that Mr Pori may be someone who is mentallydisordered or intellectually disabled and I direct the Chief Executive to consider theappropriateness of an application in respect of the respondent under s 45 of the MentalHealth (Compulsory Assessment and Treatment) Act 1992 or under s 29 of theIntellectual Disability (Compulsory Care and Rehabilitation) Act 2003.9[63] The application for a public protection order is to be called in the civil list on3 August 2020 to monitor progress on obtaining further reports as signalled byMs Boshier at the hearing, and to progress that application (or any associatedapplications) to a prompt hearing.Solicitors:Raymond Donnelly & Co., ChristchurchM Starling, Barrister, Christchurch9 Pursuant to s 12 Public Safety Act.