DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v McCORKINDALE [2019] NZHC 2771

DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v McCORKINDALE [2019]NZHC 2771 [30 October 2019]NOTE: SUPPRESSION ORDERS MADE BY THE HIGH COURT IN S2/99 ON28 MAY 1999, AND GENDALL J'S JUDGMENT OF 17 OCTOBER 2017IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-001237[2019] NZHC 2771BETWEEN DEPUTY CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND ROBERT JOHN McCORKINDALERespondentHearing: 24 October 2019Appearances: C Boshier for ApplicantM Starling and N Wham for RespondentJudgment: 30 October 2019JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 30 October 2019 at11.00 am, pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 30 October 2019[1] Mr McCorkindale is acknowledged to be at very high risk of serious sexualoffending.1 However, since being released from prison for sexual offending againsttwo young children, he has not re-offended. Instead, he has been managedsuccessfully in the community under extended supervision orders (ESOs) imposedunder the Parole Act 2002, with 24 hour a day monitoring and supervision.1 McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369 at[17].[2] However, the statutory regime for ESOs was amended in 2014. As a result,ESOs can only require a person to submit to 24 hour a day monitoring (intensivemonitoring) for a maximum period of 12 months. If ongoing intensive monitoring isrequired, that is now to be achieved through a Public Protection Order (PPO) madeunder the Public Safety (Public Protections Orders) Act 2014 (the Public Safety Act).The applicant has sought that a PPO be made in respect of Mr McCorkindale.[3] Mr McCorkindale is currently subject to an interim detention order (IDO)under the Public Safety Act and is housed in the Matawhāiti Unit, being apurpose-built public protection residence set up in a fenced enclosure alongsideChristchurch Men's Prison.[4] At this hearing he sought suspension of the IDO, on conditions, under s 107(3)Public Safety Act, so that he can return to the regime he was previously on under anESO, where he resided at a residence in Christchurch managed by the Salisbury StreetFoundation under 24 hour a day supervision.[5] The critical issue in this case is whether there is jurisdiction to use the powerunder s 107(3) of the Public Safety Act to suspend the IDO which currently applies sothat he can live under the former management regime, when there is no longer anypower to impose such a regime through an ESO imposed under the Parole Act.The history of Mr McCorkindale's post-release management[6] The history of Mr McCorkindale's management since his release from prisonin early 2006 was set out as follows in the Court of Appeal's recent judgment inrelation to Mr McCorkindale:[5] The first ESO was made upon Mr McCorkindale's release from prisonon 17 January 2006. Under the terms of this order, he was closely monitoredin various residential settings under what was known as an IndividualResidential Reintegration Programme (IRRP) which allowed for full-timeplacement in the care of an approved agency.[6] Following the introduction of the Parole (Extended SupervisionOrders) Amendment Act 2014 which coincided with the introduction of thePPO regime, IRRP conditions were no longer permitted. However, theParole Board was empowered to require a person to submit to beingaccompanied and monitored for up to 24 hours a day (intensive monitoring)for a maximum period of 12 months.[7] Mr McCorkindale consented to a second ESO being made on29 April 2016 including an intensive monitoring condition for 12 months.Mr McCorkindale was successfully managed in terms of this order at afacility provided by the Salisbury Street Foundation in Christchurch where hewas monitored on a person-to-person basis 24-hours a day. He wishes toreturn to live at this facility. The providers remain willing to have him and aplace is available for him.[8] The difficulty for Mr McCorkindale and others in his position is thatan intensive monitoring condition cannot continue beyond 12 months. Further,any condition requiring participation in a programme must not require theperson to reside with any person or agency in whose care he or she is placed.This means that the conditions previously imposed under the earlier ESOs,which were demonstrably sufficient to manage Mr McCorkindale's risk whileallowing him to live in the community, are no longer available as a result ofthe 2014 amendments to the legislation. This is what prompted therespondent's application for a PPO.(footnotes omitted)[7] The Court of Appeal was seized of the matter because Mr McCorkindale hadappealed the High Court's decision to grant the PPO applied for by the applicant.2 TheCourt of Appeal allowed the appeal on the ground that the High Court did not have theexpert assistance it needed to determine whether a PPO was the least restrictiveoutcome appropriate in all the circumstances. It remitted the application back to theHigh Court to enable this issue to be explored fully.[8] The Court of Appeal's judgment then recorded the following:[20] Counsel agree that if the PPO is quashed, this will automaticallyenliven the interim detention order made by consent on 26 April 2017. Theparties previously agreed to this order being suspended pursuant to s 107(3)of the Act pending determination of the application for a PPO. Mr Starlingsubmits that the order should remain suspended because this would allowMr McCorkindale to return to the Salisbury Street Foundation in Christchurchpending the rehearing. While he acknowledges this will inevitably cause someupheaval, Mr Starling submits this would be proportionate to the benefit toMr McCorkindale, even if it is only for a short period. (footnotes omitted)2 Chief Executive of the Department of Corrections v McCorkindale HC ChristchurchCIV-2016-409-1237, 17 October 2017.[9] However, the applicant pointed out that the IDO was only suspended oncondition that Mr McCorkindale would continue to be subject to intensive monitoring.That was no longer an option because the 12 month time limit on intensive monitoringconditions had expired. For that reason, the applicant submitted that if the PPO wasquashed, the IDO should be operative pending the rehearing.[10] The Court of Appeal agreed and made an order that the IDO was to be in fullforce and effect until the application for a PPO was finally determined or until furtherorder of the High Court.This application[11] The application for a PPO is not scheduled to be heard until early 2020 as itcannot proceed until further health assessor reports are completed. In the interim,Mr McCorkindale makes application for the IDO to be suspended under s 107(3)Public Safety Act and for the Court to impose conditions which mirror those whichapplied when he was subject to an ESO on intensive monitoring conditions.Mr Starling advised the Court that Mr McCorkindale consents to such conditionsbeing imposed.[12] Mr Starling confirmed that the Salisbury Street Foundation was willing andable to take Mr McCorkindale on the same regime as before and Ms Voice, arepresentative of the Foundation, was present in Court to answer any queries regardingwhat was proposed. However, on the basis that what was proposed was exactly thesame regime as Mr McCorkindale was on when the IDO was previously suspended(and the same regime he had been under during the 11 years that he was subject to anESO with intensive monitoring), I had no concerns about the practicality of what wasproposed.[13] I also record that if there was jurisdiction to substitute that regime for the IDO,I am satisfied that it would meet the objective of the Public Safety Act, which is to"protect members of the public from the almost certain harm that would be inflictedby the commission of serious sexual or violent offences".33 Section 4.[14] The focus of the hearing, therefore, was on whether there was jurisdiction touse s 107(3) in this way when there was no longer any statutory power to impose anESO with the intensive monitoring proposed.Submissions on behalf of Mr McCorkindale[15] Ms Wham made submissions on the jurisdictional issue. She referred to theSupreme Court's decision in Chisnall v Chief Executive of the Department ofCorrections where, in the majority judgment, the Court addressed the ability tosuspend an IDO and to impose, instead, an interim supervision order.4 Although theCourt stated that it "does not fit well with [the purpose of the Public Safety Act] toread suspension of an order under s 107(3) as an alternative to an order unders 107(2)",5 Ms Wham submitted that the Court did not express a concluded view onthis issue.[16] The majority also referred to the decision in Chief Executive of the Departmentof Corrections v McIntosh, where Mr McIntosh's intensive monitoring condition onhis ESO was due to expire and an application for a PPO was made.6 Because thatapplication could not be dealt with before the expiry of the intensive monitoringcondition, an IDO was sought and made and, with the agreement of the parties, it wassuspended subject to conditions reflecting those which had been imposed under theESO. The majority in Chisnall said "we do not need to decide whether or not that wasa correct exercise of the suspension power", and, again, Ms Wham submitted this didnot foreclose the option of using the suspension power in the way proposed.7[17] Ms Wham also referred me to the decision in the Chief Executive of theDepartment of Corrections v R, where Whata J invited the parties to identify analternative form of management of the individual in that case to mitigate his risk ofreoffending.8 Rather than impose a PPO, Whata J adjourned matters, saying that hehad in mind:94 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR83.5 At [87].6 Chief Executive of the Department of Corrections v McIntosh [2016] NZHC 1163.7 At [93].8 Chief Executive of the Department of Corrections v R [2018] NZHC 3106.9 At [47].A type of supervision (if lawful) previously undertaken by Te Roopu Taurima,which involves (among other things) line of site monitoring during daylighthours and curfew in alarmed premises in the evenings.[18] He also indicated that "provided there can be surety of informed consent, thisless restrictive alternative intuitively strikes the proper balance between publicprotection and R's liberty".10 Given in that case, the High Court was prepared toentertain imposing conditions by consent, Ms Wham submitted the same approachshould be adopted here.Submissions for the Chief Executive[19] Ms Boshier, for the applicant, did not challenge the appropriateness of whatwas being proposed in terms of protecting public safety. However, she submitted thatthere were clear jurisdictional barriers to the Court using the suspension power ins 107(3) to effectively impose a supervision regime on Mr McCorkindale which couldno longer be imposed lawfully under the Parole Act.[20] She noted that it was accepted that the grounds for making an IDO were madeout and the issue was whether there was an alternative to an IDO which would meetthe risk which Mr McCorkindale poses. She pointed out that the evidence before theCourt is that if Mr McCorkindale is in the community, he requires 24 hour monitoringto manage the risk that he poses.11 As the intensive monitoring period underMr McCorkindale's ESO has expired, there is no statutory authority for him to besubject to 24 hour monitoring. Furthermore, the Court of Appeal agreed that an ESOwithout intensive monitoring would not be appropriate for Mr McCorkindale which iswhy it determined that the IDO ought to be in full force and effect in the interim.[21] Ms Boshier submitted that there was no jurisdiction to suspend an IDO in theway sought on behalf of Mr McCorkindale in order to allow him to return to theprevious supervision regime at the Salisbury Street Foundation. In her submission,the majority of the Supreme Court in Chisnall clearly reached the view that s 107(3)could not be used to impose an alternate management regime to an IDO. They said10 At [49].11 Deputy Chief Executive of the Department of Corrections v McCorkindale, above n 2, at [76],[78], [79], [82], [90] and [93].that treating the power to suspend an IDO, as a distinct alternative to making an IDO,was not consistent with the statutory purpose or scheme of the Public Safety Act.12Indeed the majority said:13If the criteria for making an interim order are met, the court may make theorder but suspension, albeit with conditions, is a counter-intuitive responsegiven the criteria are met. If they are not met, the order is not made.[22] They went on to say that "the absence of any enforcement regime fornon-compliance with these conditions also tells against the use of an order unders 107(3) as a distinct alternative to an order under s 107(2)".14 In discussing thepurpose of the power in s 107(3), the Court opined that it was to deal with "particular,one-off situations such as illness , bereavement, the need for an assessment of somesort, or some other particular situation that arises", but the Public Safety Act does notsuggest that it can be used as "a broader, stand alone, alternative to an order unders 107(2)".15[23] Although the majority go on to discuss cases where similar issues have arisen,they point out that in Kerr, Nation J accepted that the High Court did not havejurisdiction to impose a monitoring order as an interim detention order had been made,and could only make such an order at the same time as imposing an extendedsupervision order.16[24] In summary, the Supreme Court's decision in Chisnall clearly rejected the ideathat the power to suspend in s 107(3) of the Public Safety Act could operate as adistinct alternative to the making of an interim order under s 107(2) of that Act, whichis what is effectively sought on behalf of Mr McCorkindale in this case.[25] That reading of the Supreme Court's judgment in Chisnall was confirmedsubsequently by the Court of Appeal, where it was noted that the Supreme Court wasunanimous save on the issue of whether the High Court had erred by failing to consider12 Chisnall v Chief Executive of the Department of Corrections, above n 4, at [86].13 At [87].14 At [88].15 At [91].16 Chief Executive of the Department of Corrections v McIntosh, above n 6; Chief Executive of theDepartment of Corrections v Kerr [2017] NZHC 139; and Chief Executive of the Department ofCorrections v Campbell [2017] NZHC 147.whether the risk established would be properly contained by suspending an interimdetention order under s 107(3) of the Public Safety Act.17 The Court of Appeal notedthat:18The Chief Justice took the view that, at the stage of an application for aninterim order, the Court could make such an order, but immediately suspendit on conditions that the Court was satisfied would meet the identified risk inthe meantime. The majority did not consider that to be an option.[26] Ms Boshier responded to the submission that the decision of Whata J inChief Executive of the Department of Corrections v R left open the door to such aregime being adopted by consent by pointing out that in a subsequent decision,Chief Executive of the Department of Corrections v R (No 2), Whata J revisited thelegality of such a proposal.19 In that case, intensive monitoring was no longeravailable to R, because he had already been subject to the statutory maximum of12 months' intensive monitoring and the issue was whether he could consent toequivalent restrictions as an alternative to making a PPO.[27] Although Whata J was satisfied that placement in a residential facility on theconditions proposed would adequately mitigate the risk presented by R, he held thatthere were major difficulties presented by a programme which is dependent on R'sconsent. He noted that, should R withdraw that consent, the Department ofCorrections and the residential facility "may well find themselves acting unlawfullyshould they purport to then monitor and or restrain R", and the applicant "cannot beexpected to operate on such an uncertain basis".20 Whata J also considered "whetherR's indication to this Court that he consents to 24/7 care provides a sufficient basis forthat to be enforced pending further application to the Court to have that careremoved".21 However, he considered that "such judicial creativity would severelystrain the legislative scheme and the considerations that underpin it".22[28] Ms Boshier submits that the ability to impose intensive monitoring while theIDO was suspended would rely on Mr McCorkindale's consent because there was no17 Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 at [11].18 At [11] referring to [85]-[91] in the Supreme Court's decision.19 Chief Executive of the Department of Corrections v R (No 2) [2018] NZHC 3455.20 At [49].21 At [50].22 At [50].other statutory power to impose it. That would create exactly the same problems asWhata J grappled with in the case of R (No 2). For these reasons, notwithstanding theefficacy of the previous regime, there was no jurisdiction to impose it throughconditions imposed under a suspension of the IDO, and the IDO should remain in fullforce and effect.Discussion[29] What is being proposed for Mr McCorkindale is to effectively use the powerof suspension under s 107(3) as an alternative to an order under s 107(2). That isdirectly contrary to the majority view in the Supreme Court's decision in Chisnall.For all the reasons discussed in the Supreme Court decision, including:(a) consistency with the statutory purpose and scheme of the Public SafetyAct;(b) the indicated purpose of the power of suspension suggested by ss 111and 139 of the Public Safety Act;(c) the absence of any enforcement regime for non-compliance withconditions imposed under s 107(3); and(d) the inability to impose intensive monitoring under any other Act(because in this case Mr McCorkindale has spent the statutory limit of12 months under intensive monitoring),I accept there is no jurisdiction to use the suspension power in this way. If intensivemonitoring is required, as is at least the provisional view in this case, that can only beimposed through an IDO or PPO made under the provisions of the Public Safety Act.[30] I also consider that relying on Mr McCorkindale's consent to impose theequivalent of intensive monitoring conditions on him would place an unfair burden onstaff at the Salisbury Street residence. Furthermore, such a fragile jurisdictional basiswould not be adequate to meet the public protection objective of the Public Safety Act.[31] For these reasons, as the Court of Appeal determined, the IDO must remainoperative pending the rehearing of the application for the PPO.Conclusion[32] Despite my view that placement with the Salisbury Street Foundation underintensive monitoring conditions would most appropriately balance the purpose ofprotecting the public with Mr McCorkindale's right to liberty, I am satisfied the onlymechanism by which the requisite 24 hour monitoring can be imposed lawfully isthrough the IDO which currently applies to Mr McCorkindale.[33] Accordingly, the application by Mr McCorkindale to suspend the IDO andallow him to reside with the Salisbury Street Foundation, on conditions reflecting hisprevious ESO with intensive monitoring, is declined. The IDO will continue in forceuntil the substantive application for a PPO is determined.Solicitors:Raymond Donnelly & Co., ChristchurchM Starling, Barrister, Christchurch