THE DEPARTMENT OF CORRECTIONS v MCCORKINDALE [2020] NZHC 2484

THE DEPARTMENT OF CORRECTIONS v MCCORKINDALE [2020] NZHC 2484 [22 September 2020]NOTE: SUPPRESSION ORDERS MADE BY THE HIGH COURT IN S2/99(SEE FOOTNOTE 3) REMAIN IN FORCE.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-1237[2020] NZHC 2484UNDER the Public Safety (Public Protection Orders)Act 2014IN THE MATTER OF an application for a Public Protection OrderBETWEEN THE DEPUTY CHIEF EXECUTIVE OFTHE DEPARTMENT OF CORRECTIONSApplicantAND ROBERT JOHN MCCORKINDALERespondentHearing: 10 August – 11 August 2020Counsel: C J Boshier for the applicantM Starling for the respondentJudgment: 22 September 2020JUDGMENT OF CULL JContentsBackground .............................................................................................................. [3]Public Protection Orders ...................................................................................... [10]Does Mr Mccorkindale meet the s 13 test? ......................................................... [15]What is the least restrictive option available to manage the risk? ................... [27]What is the alternative option to a PPO? ........................................................... [33]Is the ESO, with the special conditions, adequate to mitigateMr McCorkindale's risk? ..................................................................................... [47]Is the ESO, with the special conditions, unlawful? ............................................ [65]2014 legislative change ....................................................................................... [72]Is there intensive monitoring? ............................................................................. [76]Is the care condition unlawful? ........................................................................... [93]Mr McCorkindale's consent .............................................................................. [103]Conclusion............................................................................................................ [109]Result .....................................................................................................................[111]Costs ..................................................................................................................... [113][1] A public protection order (PPO) was made against Mr McCorkindale by theHigh Court in 2017 under the Public Safety (Public Protection Orders) Act 2014 (thePublic Safety Act).1 The Court of Appeal quashed the PPO in 2019 and directed thatthe PPO application be reconsidered by the High Court.2 This decision deals with thereconsideration of the Department of Corrections' application for a PPO in respect ofMr McCorkindale.[2] Mr McCorkindale opposes the application. He wants to return to and live atthe Salisbury Street Foundation, which is supported and secure accommodation in thecommunity. He spent 13 months there before the PPO order of 17 October 2017 wasmade. The director of the Salisbury Street Foundation, Ms Voice, supportsMr McCorkindale's wish and is offering him a lifetime placement in the Foundation'shigh security house.BACKGROUND[3] Mr McCorkindale is 66 years old. He has congenital hypothyroidism whichaffected his brain development from birth. He has been assessed as being in theborderline range of intellectual functioning and has limited self-regulatory ability andcapacity for empathy. He is described as autistic, but not with autism spectrumdisorder which is a mental disorder. He is also described as institutionalised, havingbeen in supported or institutionalised care, including prison, for more than 20 years.[4] In May 1999, Mr McCorkindale was sentenced to seven years' imprisonmenthaving pleaded guilty to five charges of indecent assault on two girls aged four andsix.3 He served the entirety of this sentence. He has not reoffended, having been1 Deputy Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536[High Court Decision].2 McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369[Court of Appeal Decision].3 R v McCorkindale HC Dunedin S2/99, 28 May 1999.managed in the community under two successive extended supervision orders (ESOs),each of 10 years' duration.4 Mr McCorkindale is currently subject to the second ESO,which was imposed on 29 April 2016.[5] The background to the ESOs and their effect was succinctly summarised in therecent Court of Appeal decision concerning the matter:5[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.[6] 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 on 29 April2016 including an intensive monitoring condition for 12 months.Mr McCorkindale was successfully managed in terms of this order at a facilityprovided by the Salisbury Street Foundation in Christchurch where he wasmonitored on a person-to-person basis 24-hours a day. [6] Despite Mr McCorkindale's consent to intensive monitoring, an intensivemonitoring condition, requiring an offender to submit to being accompanied andmonitored for up to 24 hours a day, cannot continue beyond 12 months.7 Further, anycondition requiring Mr McCorkindale's participation in a programme must not requirehim to reside with any person or agency in whose care he is placed.8 So the conditionspreviously imposed under the earlier ESO, which were demonstrably sufficient tomanage Mr McCorkindale's risk while allowing him to live in the community, wereno longer available as a result of the 2014 amendments to the legislation. Thisprompted Corrections' original application for a PPO in December 2016.4 These orders were made by the High Court under pt 1A of the Parole Act 2002.5 Court of Appeal Decision, above n 2.6 IRRP conditions had the effect of allowing 24-hour supervision and monitoring of the highest riskoffenders. This was effectively intensive monitoring, with no 12-month restriction.7 Parole Act 2002, s 107IAC(2) and (3).8 Section 107K(3)(bb)(ii).[7] The PPO application was heard in July 2017 and a PPO was granted inOctober.9 Between the hearing and judgment, Corrections applied to the Parole Boardfor a variation of the 2016 ESO conditions for Mr McCorkindale, so that specialconditions would be in place as a backstop should the PPO application be refused.10The Board's decision was released in August 2017, before the judgment was delivered.It imposed a number of special conditions on the ESO, including thatMr McCorkindale was ordered:(a) to comply with partial residential restrictions and submit to electronicmonitoring between 11 pm and 7 am daily;(b) to be placed in the care of an approved agency between the hours of7 am and 11 pm daily and while in the care of that agency to beaccompanied and monitored at all times;(c) to attend a reintegration programme between 7 am and 11 pm daily; and(d) to reside at an address directed by the Probation Officer.[8] As noted, the High Court granted the PPO. Mr McCorkindale appealed. TheCourt of Appeal quashed the PPO made in the High Court and remitted the matterback to the High Court for reconsideration. In doing so, it held:11[18] [Counsel for Corrections] fairly acknowledges that the alternativeESO conditions that were imposed by the Parole Board after the PPO hearingin the High Court were not considered by the two health assessors called bythe respondent. They gave no consideration to the efficacy of these conditionsin managing Mr McCorkindale's risk. The expert called on behalf ofMr McCorkindale made only passing reference to them. The lateidentification of these conditions as the next most restrictive outcome meantthere was no meaningful engagement at the hearing in the High Court as towhether such conditions would be effective to manage Mr McCorkindale'srisk. As a result, the High Court did not have the expert assistance it neededto determine the least restrictive outcome appropriate in all the circumstances.[19] A PPO can only be justified if the court is satisfied that the next mostrestrictive option is not adequate to mitigate the defined risk. The next step-down option, which the parties agree is the revised ESO ordered by the Parole9 High Court Decision, above n 1.10 Parole Act, ss 107O and 107K.11 Court of Appeal Decision, above n 2 (footnote omitted).Board on 30 August 2017, was not addressed in the evidence or in thesubmissions before the High Court. A PPO cannot be justified unless thatoption can be excluded. In these circumstances, we are satisfied that theappropriate course is to quash the PPO and remit the application to the HighCourt to enable this issue to be explored fully.[Emphasis added][9] The "next step-down option" referred to by the Court of Appeal is at the heartof this proceeding. Mr McCorkindale requests that the PPO be declined with the resultthat the 2016 ESO, with the special conditions imposed by the Parole Board in 2017,remains in force, enabling him to reside at Salisbury Street Foundation.Public Protection Orders[10] 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. Theobjective of the PPO regime is to protect members of the public from the almost certainharm that would be inflicted by the commission of serious sexual or violent offences.12It is not to punish persons against whom orders are made.13 A PPO should only beimposed if the magnitude of the risk posed by the respondent justifies the impositionof the order.14 Any application for a PPO requires reports from at least two relevanthealth assessors, including a registered psychologist, which address the various criteriathe Court must consider under s 13 of the Public Safety Act.15[11] The threshold for the imposition of a PPO is outlined in s 7 of the Public SafetyAct. There is no doubt Mr McCorkindale meets the threshold:16 he is over 18 yearsold, he is subject to an ESO, and has been subject to a condition of full-timeaccompaniment and monitoring.[12] Section 13 then sets out the circumstances in which a PPO may be made. First,under s 13(1)(a) the person must meet the threshold under s 7. As noted, that issatisfied in this case. Secondly, under s 13(1)(b) there must be a very high risk ofimminent serious sexual or violent offending by the person if released from prison into12 Public Safety (Public Protection Orders) Act 2014, s 4(1).13 Section 4(2).14 Section 5(b).15 Section 9.16 Section 7(1)(b)(i).the community or left unsupervised. Under s 13(2), such a finding cannot be madeunless the Court is satisfied the person exhibits a severe disturbance in behaviouralfunctioning established by evidence to a high level of each of four specifiedcharacteristics:(a) an intense drive or urge to commit a particular form of offending:(b) limited self-regulatory capacity, evidenced by generalimpulsiveness, high emotional reactivity, and inability to copewith, or manage, stress and difficulties:(c) absence of understanding or concern for the impact of therespondent's offending on actual or potential victims (within thegeneral sense of that term and not merely as defined in section 3):(d) poor interpersonal relationships or social isolation or both.[13] If Mr McCorkindale meets the s 13(1)(b) test, the next issue is determiningwhat is the least restrictive option available to manage his risk, short of making aPPO.17 This involves the discretion of the Court in assessing the alternatives to makinga PPO. In this case, the Court must assess the option of the 2016 ESO with the specialconditions imposed by the Parole Board in 2017.[14] The issues are therefore:(a) Does Mr McCorkindale meet the s 13(1)(b) test?(b) What is the least restrictive option available to manage the risk?DOES MR MCCORKINDALE MEET THE S 13 TEST?[15] Although this Court assessed Mr McCorkindale's risk level required a PPO in2017, a fresh assessment must be made, both in light of the passage of time since 2017and the Court of Appeal's decision which directed this Court to consider whether aless restrictive alternative is available.17 Court of Appeal Decision, above n 2, at [19]; and Chisnall v Chief of Executive of the Departmentof Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [40].[16] Mr McCorkindale's history of sexual offending is outlined in detail in theHigh Court's judgment and does not need to be repeated.18 It is enough to say that theoffending began in the 1970s and continued up until 1999, when Mr McCorkindalewas convicted and sentenced. It involved various convictions of indecent assaultagainst young girls. As this Court has previously noted, Mr McCorkindale's historyrepresents a "troubling pattern of recidivist sexual offending against very youngchildren, which has occurred with an alarming degree of frequency and consistencysince 1976."19 However, Mr McCorkindale has not reoffended since 1999 and hascomplied with his conditions without breach.[17] Both parties commissioned reports from three psychologist health assessors toprovide an assessment of Mr McCorkindale. The psychologists addressed the specificrisk issues specified in s 13 and detailed appropriate risk management to mitigate thedefined risk. To make their assessments, the psychologists interviewedMr McCorkindale and accessed his background file. For Corrections, Mr PaulCarlyon, a registered clinical psychologist, and Ms Zoe Wilton, a senior registeredpsychologist, provided reports to assist the Court dated 5 February and 11 February2020 respectively. For Mr McCorkindale, Mr Ghazi Metoui, a consultant forensicpsychologist, provided his report dated 23 July 2020.[18] All experts concluded Mr McCorkindale would pose a high level of risk inrelation to the s 13(2) criteria if he were to be left unsupervised in the community.Both parties accept that the Court could be satisfied on the balance of probabilitiesthat, under s 13(1)(b), there is a very high risk of imminent serious sexual offendingby Mr McCorkindale if he is left unsupervised.[19] It is clear Mr McCorkindale has an intense drive or urge to commit serioussexual offending.20 All three psychologists gave evidence to that effect. Ms Wiltonnoted that Mr McCorkindale "has demonstrated strong urges for sexual offendingagainst children and adult females across several decades", and there is "no evidencethat these drives and urges have substantially changed or abated up to the current18 High Court Decision, above n 1, at [29]-[32].19 At [32].20 Public Safety Act, s 13(2)(a).time". Mr Carlyon noted Mr McCorkindale has a long-standing history of detectedand self-reported sexual offending against young females, and that his history ofdeviant sexual interest "sees the persistence, to the present time, of fantasy sometimesfocused upon prior offending." Mr Carlyon and Ms Wilton note there remainsevidence of offence paralleling behaviours, which are considered a proxy for offendingbehaviours in the absence of opportunities to commit an offence. Mr Metouiconcurred that Mr McCorkindale retains a high drive or urge to commit serious sexualoffences.[20] It is also evident Mr McCorkindale has limited self-regulatory capacity.21Mr Carlyon opines that while Mr McCorkindale possesses self-regulatory capacity, hedoes not apply it reliably in relation to matters of sexual interest or preference unlesshe is directed or guided to conduct himself appropriately. Ms Wilton commented thatMr McCorkindale is reliant on residential care environments to provide externalmonitoring, prompting and active intervention to apply self-regulation and stressmanagement techniques in daily life situations. Mr Metoui too concluded thatMr McCorkindale's internal resources are such that he has chronic limited self-regulatory capacity, most typically evidenced by an inability to cope with, or manage,stress and difficulties. Mr Metoui and Ms Wilton also gave evidence ofMr McCorkindale's high emotional reactivity and impulsiveness, such as resorting toself-harm behaviours when feeling overwhelmed.[21] Turning to Mr McCorkindale's understanding or concern for the impact of hisoffending on actual or potential victims, I am satisfied there is an absence of suchunderstanding.22 Ms Wilton stated that Mr McCorkindale's cognitive capacity haslikely compromised his ability to develop empathy. She said there is little evidencethat he has genuine emotional empathy or concern for the impact of his behaviour onpast or potential victims. Mr Carlyon too referred to Mr McCorkindale's impairedgeneral intellectual functioning as serving as a barrier to his full comprehension oftreatment material delivered to him and the application of it. Mr McCorkindale, in hisview:21 Section 13(2)(b).22 Section 13(2)(c). has impressed, for a lengthy period, as self-focussed and withoutappreciable intellectual or affective understanding of what his offendingand/or deviant sexual interest might mean for the wellbeing of others.Mr Carlyon concluded that Mr McCorkindale prioritised his own gratification and hischief reason for wishing to avoid further sexual offending is to avoid preventivedetention, rather than not wishing to cause further harm to others. He added thatMr McCorkindale's understanding of victim impact lacked depth, gave the impressionof a rote-learned view and was not accompanied by concern.[22] Mr Metoui noted that Mr McCorkindale had poor insight into his offendingwhich he observed was a "striking feature of his presentation", particularly given theamount of intervention he had received. He too explained that any lack of empathy islikely related to his intellectual limitations rather than any deliberate callousness, butconcluded that Mr McCorkindale has an absence of understanding for the impact ofhis offending on actual or potential victims.[23] In terms of Mr McCorkindale's interpersonal relationships and socialexperience,23 he has lived in institutionalised settings for more than 20 years and hasbeen described by the health assessors as institutionalised. He does not have anyfriends, nor does he have any family contact. He relies wholly on a small number ofprofessional supports, most notably Ms Voice. Mr Carlyon concludedMr McCorkindale presents with insufficient skills and motivation to initiate andmaintain appropriate and meaningful relationships that may serve a protective functionin respect to his sexual offending risk. Mr Metoui and Ms Wilton too concluded thatMr McCorkindale has poor interpersonal relationships and is socially isolated. I amsatisfied that this element too is satisfied to the requisite degree.[24] When asked about Mr McCorkindale's overall assessment of thecharacteristics under s 13(2), Mr Metoui told the Court that when it comes to thecharacteristics at s 13(2)(b), (c) and (d), they will always be met when a person has aclinical presentation of intellectual abilities that function in the borderline range andhas autism spectrum issues. Thus, the person will have limited self-regulatorycapacity, emotional reactivity, an inability cope with or manage stress and difficulties,23 Section 13(2)(d).and an absence of understanding or concern for the impact of the offending on victims.This goes some way to explain Mr McCorkindale's position, though does not detractfrom the risk he poses.[25] In relation to all four characteristics identified at s 13(2), I am satisfied that theevidence establishes to a high level that Mr McCorkindale exhibits severe disturbancein behavioural functioning. On this basis, all three experts concluded there is a veryhigh risk of imminent serious sexual offending if Mr McCorkindale is leftunsupervised in the community.24[26] I am satisfied that Mr McCorkindale meets the test set out in s 13. I recordalso that both Counsel for Corrections and Mr McCorkindale accept thatMr McCorkindale meets the s 13 tests.WHAT IS THE LEAST RESTRICTIVE OPTION AVAILABLE TO MANAGETHE RISK?[27] The critical question for this Court is what is the least restrictive optionavailable to manage Mr McCorkindale's risk. That is the nub of this case and involvesthe Court's exercise of its discretion.[28] The Supreme Court in Chisnall v Chief Executive of the Department ofCorrections described the courts' function in making a PPO under the Public SafetyAct as having to be satisfied not only that the statutory criteria for making a PPO havebeen made out under s 13, but also that the risk to public safety cannot be sufficientlymet by less restrictive options.25 The Court ruled that if the public can be protectedfrom otherwise imminent serious sexual or violent offending by lawful and lessermeans other than a PPO, these should be employed.[29] Such an approach is commensurate with the human rights interests affectedand reinforces that the Public Safety Act, while focussed on public safety, is to be24 Court of Appeal Decision, above n 2, at [13].25 Chisnall, above n 17, at [40].interpreted and applied in the context of human rights obligations.26 The Chief Justicesaid:27[38] The availability of extended supervision orders and interimsupervision orders as alternative means of monitoring risk is a factor that bearson whether the more restrictive public protection order (and interim detentionorder pending its determination) is appropriate. The policy of the Public SafetyAct expressed in its purpose and the principles contained in s 5 emphasise thatorders made under it are not punitive and are directed at public safety. Thehigh threshold set by the legislation for public protection orders and theavailability of less intrusive means of protecting public safety in orders underthe Parole Act indicate a legislative scheme that the "very high risk ofimminent serious sexual or violent offending by the respondent" is risk whichcannot be acceptably managed by conditions under an extended supervisionorder or interim supervision order. The Public Safety Act is to be interpretedand applied in the context of human rights obligations protective of liberty andsuspicious of retrospective penalty.[40] If conditions can be put in place without detention that would removethe opportunity or restrict it to an extent that there is no longer very high riskof imminent offending of the type, then a public protection order or an interimdetention order ought not to be made. That is clear from the scheme of thelegislation and is consistent with the protections contained in the New ZealandBill of Rights Act.By reaffirming the principles in s 5(a) and (b) of the Public Safety Act, the Court inChisnall emphasised that PPOs are to be made not for punishment but only when "themagnitude of the risk posed by the respondent justifies the imposition of the order."28[30] Consistent with both the principles of the Public Safety Act and the guidanceof Chisnall, the Court of Appeal in this case quashed Mr McCorkindale's PPO andremitted Corrections' application to this Court for further inquiry. To repeat for easeof reference, the Court said:29[19] A PPO can only be justified if the court is satisfied that the next mostrestrictive option is not adequate to mitigate the defined risk. The next step-down option, which the parties agree is the revised ESO ordered by the ParoleBoard on 30 August 2017, was not addressed in the evidence or in thesubmissions before the High Court. A PPO cannot be justified unless thatoption can be excluded. In these circumstances, we are satisfied that theappropriate course is to quash the PPO and remit the application to theHigh Court to enable this issue to be explored fully.26 At [37]-[40].27 Footnotes omitted, citing the New Zealand Bill of Rights Act 1990, ss 3, 22 and 26.28 At [37], citing the Public Safety Act, s 5(b).29 Court of Appeal Decision, above n 2, footnote omitted.[31] The Court of Appeal also recorded that Counsel were agreed that if the PPOwas quashed, this would automatically enliven the interim detention order that hadbeen made by consent on 26 April 2017.30 The Court directed that the interimdetention order should remain in full force and effect until the PPO application isfinally determined by this Court.31[32] To determine if the "next step-down option" is adequate to mitigateMr McCorkindale's risk, I approach the assessment as follows:(a) What is the alternative option to a PPO?(b) Is the 2016 ESO, with the special conditions ordered by the ParoleBoard in 2017, adequate to mitigate Mr McCorkindale's risk?(c) Is the ESO, with the special conditions, unlawful?What is the alternative option to a PPO?[33] Both parties accept that the alternative for the "next step-down option" is the2016 ESO, which is subject to both standard conditions32 and the special conditionsimposed by the Parole Board in August 2017.33 Observing that 24-hour oversight wasno longer available because Mr McCorkindale had already been subject to a 12-monthperiod of monitoring, expiring on 28 April 2017, the Parole Board imposed thesespecial conditions with a view to Mr McCorkindale continuing to reside at SalisburyStreet Foundation, where he had lived since 2016. Mr McCorkindale did not opposethe application for the special conditions.[34] The relevant conditions, although outlined in brief above at [7], are repeatedmore fully as follows:3430 Deputy Chief Executive of the Department of Corrections v McCorkindale HC Christchurch CIV-2016-409-1237, 26 April 2017.31 At [20].32 Parole Act, s 107JA.33 Section 107K.34 There were also a number of other conditions imposed relating to Mr McCorkindale's computerand internet use, employment, psychologist appointments and driving prohibition.(a) to comply with partial residential restrictions and submit to electronicmonitoring as directed by the Probation Officer between 11 pm and7 am daily;(b) to be placed in the care of an approved agency between the hours of7 am and 11 pm daily and while in the care of that agency to beaccompanied and monitored at all times;(c) to undertake, engage in and complete a reintegration programmeapproved by the Probation Officer and administered by a programmeprovider, between the hours of 7 am and 11 pm daily;(d) to reside at an address as directed by the Probation Officer and not tomove from that address without the prior written approval of theProbation Officer;(e) not to enter or loiter within the grounds of any schools, preschools,parks, playgrounds or other public place where children under 16 yearsof age are likely to congregate, unless under the supervision of an adultapproved in writing by the Probation Officer; and(f) to submit to electronic monitoring as directing by the Probation Officerin order to monitor his compliance with the conditions relating to hiswhereabouts.[35] Counsel for Mr McCorkindale, Mr Starling, submits that these conditions canbe carried out while Mr McCorkindale resides at the Salisbury Street Foundation.[36] At the commencement of the hearing, I asked Counsel whether Ms Voice, thedirector of the Salisbury Street Foundation, could be made available to give evidence,preferably before the three experienced health assessors gave theirs. Althoughsubmissions on behalf of Mr McCorkindale urged he return to Salisbury StreetFoundation with trained support workers and, in making his health assessment,Mr Metoui interviewed Ms Voice and two of the staff from the Foundation, no onefrom the Foundation had been briefed to give evidence in this hearing. While two ofthe three health assessors had given evidence in the High Court in 2017, they had nothad the opportunity to consider Salisbury Street Foundation's approach to themanagement of Mr McCorkindale and I considered it was useful for them to do so atthis hearing.[37] Ms Voice was called, and Ms Boshier for Corrections helpfully led her throughher oral evidence. Ms Voice explained how the Salisbury Street Foundation managedMr McCorkindale when he was placed there under intensive monitoring conditions.Her evidence was cogent, professional and compelling.[38] Salisbury Street Foundation runs a 21-bed reintegration programme for highrisk offenders who are released on parole, are under preventive detention orders or areserving life imprisonment. It has a high security house, where Mr McCorkindalewould live, with an alarm system that is set for 10 pm to 7 am each night, securitystays on the windows, CCTV cameras and a perimeter beam around the entire house.The house is also staffed 24/7 but there is no monitoring of the individual bedrooms.[39] Ms Voice told the Court that Mr McCorkindale was compliant with hisconditions when he lived at the Salisbury Street Foundation. She said:He was totally compliant with us.And dare I say it, he's one of the nicest or easiest people to work with thatwe've had at Salisbury Street and we don't very often get someone who'swanting so badly to be safe[40] Ms Voice confirmed that Mr McCorkindale had a "family style" livingarrangement and, in the absence of any family contacts, had a warm and friendlyrelationship with the professional staff at the Foundation. This was the nearest hecould call home. Previously, he had spent 10 years in Idea Services in Wellington,with an interim placement at PACT, another support accommodation service, beforehe had to move to Christchurch because of reactions from his surrounding communityto his presence. Ms Voice described Mr McCorkindale as grieving for the contactsand supports he had formed over those years.[41] If Mr McCorkindale were to reside at Salisbury Street Foundation, Ms Voiceexplained there would be an agreement between Mr McCorkindale and the Foundationabout what he could expect from them and what they could expect from him. Therewould be rights and responsibilities for both parties, including some basic rules suchas no phones or electronic equipment. Ms Voice says:So Mr McCorkindale has made it quite clear to us what his fears are aboutbeing in the community and what he needs to have in place to feel safe hehasn't ever wanted to go anywhere on his own. He wants to be with staff,otherwise he won't go and that's been something at his requirement. So wefeel quite confident that we can manage him.[42] Ms Voice produced a weekly plan for Mr McCorkindale. It details the actionsto be taken with Mr McCorkindale, from Monday through to Sunday commencing at8 am and finishing with a safety plan at the 10 pm bedtime. This plan was focussedon Mr McCorkindale's interests and favourite activities, including his regular readingof the newspaper, which takes him sometime, his cooking and, most importantly forhim, a fishing trip at the Waimakariri River once a week.[43] Ms Voice described how her staff have managed and would manageMr McCorkindale in the future. She supports Mr McCorkindale, not only in his returnto Salisbury Street Foundation under the ESO with special conditions, but as the optionfor the rest of his life. Ms Voice said:So 24/7 there will be a staff member in that house and if Mr McCorkindale isgoing out, he has a weekly plan and that's part of the programme for all of ourresidents, but his is an individual plan.He likes to be able to watch the news at certain times so that was able tohappen. He liked to go for walks and that happened on a regular basis, aplanned basis. And the thing that we take into account are the things like whatare the risks. So we get Mr McCorkindale or any resident to identify whattheir risk might be and what they are planning and so that they can learn torecognise it, it is not somebody doing it for them and that worked really well.And he likes to go fishing, that is one activity that he really enjoys and wewere able to provide that for him as well. We also, along with that plan, is wedo a safety plan for each of the activities. So what if, what if this happens?What if a member of the public recognises you, what if somebody yells at youor calls you a name, what if you recognise one of your victims or theyrecognise you.She gave further examples:Well the night time is his time, like for jig saw puzzles or he likes to do Biblestudy. So Mr McCorkindale keeps himself in a routine and fairly active. Sothey are not listed there, because it is like his free time.If it was deemed to be part of his programme hours, then we may schedulethings. Like we do quizzes, we do you know board games. We have got quitea variety of different things that he can do in the house. We have staff thathave particular skills around activities. For example, one of our staff makesmodels and he builds little houses or he will get kitset models and build themso the people in that house are all doing that as well and there is another staffmember who likes to play cards and the people that want to join in, can joinin, or not. It depends, like it is run like; I say run like a home. We try andmake it as close to living in a flat or a home where people are home most ofthe time. So, like having kids, you know if you've got toddlers and I am notsaying that they are toddlers but you keep them engaged.[44] Of importance to this hearing, Ms Voice described the distress experienced byMr McCorkindale when he was moved from Salisbury Street Foundation toMatawhāiti, the national civil detention secure facility located in the precincts ofChristchurch's Men's Prison, on the making of the PPO order in October 2017.Although situated outside of the prison on one hectare of land, Matawhāiti is containedwithin a high wire perimeter fence around the prison precincts.[45] As an illustration of Mr McCorkindale's life behind the prison wire fence,Ms Voice described her visit to Mr McCorkindale at Christmas time to deliver him aChristmas present, which the residents normally receive at Salisbury StreetFoundation. Because presents are not allowed in prison, Mr McCorkindale was notallowed to receive it. Ms Voice later sought permission for Mr McCorkindale to visitthe Salisbury Street Foundation to join them for a meal. This was not approved.Although activities are offered at Matawhāiti, Mr McCorkindale participates in someof them only. The evidence revealed that Mr McCorkindale has no outings fromMatawhāiti except for attendances at Court and medical or optician appointments.[46] It is evident that if Mr McCorkindale lived in the Salisbury Street Foundationsubject to the 2016 ESO (with the special conditions), in the manner described byMs Voice under the Foundation's care and supervision, this would be the best available"alternative option" to a PPO for Mr McCorkindale. However, the option must beadequate to mitigate his risk.Is the ESO, with the special conditions, adequate to mitigate Mr McCorkindale'srisk?[47] All three health assessors agreed that the very high risk of imminent serioussexual offending by Mr McCorkindale would be present if he was left unsupervised inthe community.35 Ms Voice and her staff also reinforced that that risk was their focusand the main object of their management. The health assessors also assessedMr McCorkindale's risk factors in relation to residing in a supported service in thecommunity on a release plan and community supervision. They gave their expertopinions on the requirements for appropriate management of Mr McCorkindale's risksof offending and the strategies required to contain or mitigate such risk.[48] Ms Wilton concluded that "appropriate management of Mr McCorkindale'srisk of sexual reoffending requires a combination of a high level of external restrictionwith constant 24-hours-a-day professional monitoring, oversight and support." Shesaid: Mr McCorkindale presents with a Level IVb (Well Above Average) or veryhigh risk of committing further sexual offences if he was unsupervised in thecommunity.It is considered that there is a very high risk that Mr McCorkindale wouldengage in sexual reoffending if he did not have a high level of restriction withcontinual monitoring and supervision in the communityMr McCorkindale's behaviour continues to require external and overtprofessional management, with little evidence that he is capable of or willingto proactively manage his risk. There is little evidence that he is motivated or capable of managing highrisk situations independently, instead remaining reliant upon overt staffprompting and intervention to manage his behaviour. He has recentlyacknowledged to Matawhāiti staff that if left alone in the community, he wouldsexually offend. The writer considers that if Mr McCorkindale encounteredan opportunity to sexually offend, he would be at imminent risk of acting uponit.In the writer's opinion, appropriate management of Mr McCorkindale's riskof sexual reoffending requires a combination of a high level of external35 Public Safety Act, s 13(1)(b)(ii).restriction with constant 24-hours-a-day professional monitoring, oversightand support.[49] Mr Carlyon too concluded that "the essential element required to satisfactorilymitigate Mr McCorkindale's sexual offence risk is external control." Such controlcould take the form of clearly communicated conditions, environmental restraint (suchas alarms and monitoring) and the provision of vigilant and informed supervision. Heconcluded:Independent access to the wider community would not be in keeping with sucha regime, meaning Mr McCorkindale would require close, line-of-sight,professional supervision anytime he was in the wider community or ifmembers of the community attended his residence.[50] Mr Metoui concluded that, based on Mr McCorkindale's lengthy history(11 years) of very good compliance in the community since his release from custodyin 2006, his risks can be "robustly and safely managed in a community setting and tosuch an extent that his high/very high risk of imminent serious sexual offendingbecomes low." He accepted that:Without question, effective community based risk management will requiresubstantial resourcing as Mr McCorkindale is highly dependent on externalcontrol in the form of support and supervision. It is my understanding that theSalisbury Street Foundation is willing, ready, and able to provide this highlevel of support and supervision.[51] Importantly, all three health assessors agreed that the weekly plan produced byMs Voice was appropriate for Mr McCorkindale. In the words of Ms Wilton, it was"a safe, humane containment programme" of Mr McCorkindale in thesecircumstances. Any concerns about gaps in Mr McCorkindale's supervision would beadequately managed by the plan, provided that Mr McCorkindale did not leave thepremises or remain unsupervised in the community.[52] When asked for his clinical opinion on Mr McCorkindale's risk if he wasplaced in the community at Salisbury Street Foundation subject to the ESO with thespecial conditions, Mr Metoui said:In a nutshell I think they manage his risks extremely well and it's exactly whathe needs and it's exactly what the community needs I actually think it ticksthree boxes it ticks the public safety box it ticks the box in terms of hiscivil liberties and, three, for my profession too. I mean we're asked to providethese assessments and I am of the strong view that his risks can be managedin the community not in Matawhāiti unit for this particular case.[53] Ms Wilton described the Salisbury Street management plan as:an appropriate, humane, supportive environment that supportsMr McCorkindale's health and wellbeing as well as his safety.[54] And Mr Carlyon concluded that:Salisbury Street Foundation obviously has considerable experience inmanaging high needs, high risk individuals and I would considerMr McCorkindale to be one of those people.[55] There was, therefore, unanimity among the health assessors that the planproposed for Mr McCorkindale by the Salisbury Street Foundation, which fulfils therequirements of the ESO and the special conditions, was ideal for Mr McCorkindaleand was adequate to manage his risk. The important caveat articulated by all threeassessors is that Mr McCorkindale must be accompanied or supervised when out inthe community. Corrections submits that without such supervision when in thecommunity, and 24-hour supervision and monitoring, Mr McCorkindale's risk will notbe adequately mitigated.[56] Corrections' principal submission on this point is that Mr McCorkindalecannot be subject to such intensive, 24-hour, line-of-sight monitoring nor be requiredto reside at the Salisbury Street Foundation, as that would be in breach of ss 107IAC(3)and 107K(3)(bb)(ii) of the Parole Act. The submission therefore is that without suchsupervision, which cannot be imposed lawfully, the ESO is inadequate to mitigateMr McCorkindale's risk. I address the challenge to the lawfulness of the ESO specialconditions in the following section. The present analysis concerns the adequacy ofthe current ESO to mitigate Mr McCorkindale's risk only.[57] Ms Voice shared the same concern in relation to Mr McCorkindale'ssupervision in the community, and identified how Mr McCorkindale's outings into thecommunity were to be managed if he were living at Salisbury Street Foundation.Mr McCorkindale would reside in the high security house with alarms, CCTV camerascovering the outside perimeters, and 24/7 staff in the house. While Mr McCorkindalewill not be monitored on a strict one-to-one or line-of-sight basis, Mr McCorkindale'smovements from the house to the outside will be under observation and subject toalarms. If Mr McCorkindale, while reading the paper in the afternoon, decides to leavethe house, his movements will be observed by a staff member and security systemswill then be deployed. In that event that Mr McCorkindale walked out of the premises,Ms Voice told the Court that the police would be notified and a staff member wouldset off after Mr McCorkindale to persuade him to come back. This has not happenedin the time that Mr McCorkindale had been at Salisbury Street Foundation for13 months or in Wellington's facilities over the 11 year period.[58] With those restrictions in place, Mr McCorkindale can participate in activitieshe enjoys such as watching the news programmes on television, doing jig saws, doingBible study and reading the paper, without one-on-one monitoring. A staff member isavailable, however, if Mr McCorkindale needs assistance with cooking or any otheractivity when he asks. Ms Voice made it plain that the Foundation's non-negotiableposition is that all of Mr McCorkindale's trips into the community will beaccompanied by staff members.[59] Ms Voice also emphasised that she had no concerns about Mr McCorkindale'scompliance with the special conditions or his plan. Mr McCorkindale has a history ofcompliance in a community setting. This was reinforced by both Ms Voice andMr Metoui. The Court of Appeal also recorded this in its judgment, stating thatMr McCorkindale has been successfully managed in the community for over 10 yearsunder the strict conditions of two ESOs.36 Mr Metoui pointed to Mr McCorkindale's11 years of very good compliance in the community since his release from custody in2006. As he described in his earlier report for the Court in 2017, Mr McCorkindalehas in the past participated in daily community outings, such as going to the shops andgrocery shopping, as well as undertaking various leisure pursuits as permitted by hisProbation Officer without incident.[60] More telling was Mr McCorkindale's participation in a local walking group ona weekly basis for seven years, which was open to all members of the public. Overthis period, despite women of all ages and young children of both genders36 Court of Appeal Decision, above n 2, at [1].participating, Mr McCorkindale never once inappropriately touched anyone oroffended in anyway. He was accompanied by a staff member and over that time, therewere only three occasions where he inappropriately stared at the female members ofthe group. On being talked to by staff and reminded of his "safe man" strategies,Mr McCorkindale carried on with the walk appropriately. The reports from IdeaServices in Wellington confirm that Mr McCorkindale was easy to manage andpresented no difficulties over the years, apart from an initial settling-in periodfollowing his release from prison.[61] Ms Voice also emphasised that Mr McCorkindale wanted the company and thesafety of Salisbury Street Foundation. As Ms Voice stressed, Mr McCorkindale feelsunsafe in the community on his own and actively seeks accompaniment to venues.Mr Metoui gave an example of Mr McCorkindale's attendance at McDonald's for acup of coffee with a staff member. When he saw young children in the vicinity, hetold the staff member that he felt unsafe and they then left. The evidence also revealsthat Mr McCorkindale is fearful of the consequences of any further offending or anybreach of his conditions. He is concerned that a preventive detention order may be theultimate result.[62] I am satisfied that the alternative option of the 2016 ESO with specialconditions is adequate to mitigate Mr McCorkindale's risk to public safety. The healthassessors were complimentary about the professionalism of Salisbury StreetFoundation, with Mr Metoui saying that he thought Salisbury Street Foundationmanaged Mr McCorkindale's risks very well. The Foundation, in his view, ticks threeboxes: public safety, civil liberties and the professional requirements.[63] There is plainly a professional but very human relationship betweenMr McCorkindale and the staff at Salisbury Street Foundation, enabling "collectivediscussion" and an ability to work with Mr McCorkindale, which in turn encourageshim to "buy into" the plan and comply with it. Mr McCorkindale actively seeks tolive in the Foundation's accommodation. Mr McCorkindale's fear of a potentialpreventive detention order is indicative of his self-awareness, as Mr Carlyonacknowledged, and Mr McCorkindale's past history is testament to his compliancewith the conditions placed upon him when he lived in supported accommodationpreviously in the community.[64] I have no hesitation in finding that the 2016 ESO and the special conditionsimposed by the Parole Board are adequate to mitigate Mr McCorkindale's high risk ofserious sexual offending.Is the ESO, with the special conditions, unlawful?[65] I turn then to Corrections' submission that the special conditions and theproposed implementation of them breach a number of provisions in the Parole Act andare, therefore, unlawful.[66] First, it is submitted the conditions together amount to intensive monitoringand so contravene s 107IAC(3) of the Parole Act. Section 107IAC(3) provides that aperson subject to an ESO may not receive intensive monitoring for more than12 months. As noted, Mr McCorkindale has already been subjected to intensivemonitoring under the 2016 ESO for 12 months, with that period expiring in April 2017.It is submitted that "supervision", "monitoring" and other restrictions in an ESOcannot be used as a backdoor way to circumvent Parliament's intention in the 2014amendment to the Parole Act to prevent intensive (24-hour) monitoring for more than12 months.[67] Second, it is submitted the conditions breach ss 15(3)(b) and 107K(3)(bb)(i),which together allow for the imposition of a reintegration programme only where theprogramme has a reintegrative purpose and does not require the offender to besupervised, monitored or subject to other restrictions for longer each day than isnecessary to ensure attendance at the programme. Ms Boshier submits thatMr McCorkindale's proposed programme is essentially management treatment, orintensive supervision "by stealth", but not reintegration or rehabilitation as requiredunder the Parole Act. She further submits that reliance on Salisbury StreetFoundation's house rules cannot be used to circumvent the restrictions that Parliamenthas placed on intensive monitoring and reintegration and rehabilitation in ss 107IACand 107K(3)(bb).[68] Third, it is submitted the conditions breach s 107K(3)(bb)(ii), which providesthat any condition requiring the offender to participate in a programme, which includesplacement in the care of an agency,37 must not require the offender to reside with theagency in whose care the offender is placed. In other words, there must be a separationbetween where Mr McCorkindale is placed in care and the place where he resides. Itis submitted the section is breached by requiring Mr McCorkindale to reside atSalisbury Street Foundation, the agency in whose care he is placed.[69] Fourth, Corrections submits that the special conditions presently rely onMr McCorkindale's consent, which can be withdrawn at any moment.[70] Therefore, Corrections submits that the ESO with special conditions isunlawful, and to mitigate Mr McCorkindale's risk the Court has no legal option otherthan to make a PPO.[71] Because of the substantial overlap between the first two challenges raised byCorrections, I propose to address them together, followed by the third challenge to theplacement of Mr McCorkindale in the care of Salisbury Street Foundation, and thenthe fourth concerning consent. I begin with the legislative background to the relevantsections.2014 legislative change[72] As outlined, Mr McCorkindale has been managed in the community under twosuccessive ESO's, each of 10 years' duration. The first ESO was imposed in January2006. Under its terms, he was closely monitored in various residential settings underan Individual Residential Reintegration Programme (IRRP), which allowed for full-time placement in the care of an approved agency. IRRP conditions had the effect ofallowing 24-hour supervision and monitoring of the highest risk offenders, known asintensive monitoring.3837 Parole Act, s 16.38 Section 107IAC(2). Intensive monitoring is defined as submitting the offender to beingaccompanied and monitored for up to 24 hours a day.[73] In 2014, Parliament introduced both the Public Safety Act, which introducedPPOs, and the Parole (Extended Supervision Orders) Amendment Act 2014, whichamended the Parole Act. Under the Amendment Act, IRRP conditions on ESO's wereno longer permitted. Section 107IAC of the Parole Act was amended to provide thatif the Court were to order an intensive monitoring condition, the maximum durationof the condition must be no longer than 12 months.39 Section 107K was amended withthe addition of subsections (3)(b)(i) and (ii), which prevented reintegrationprogrammes requiring the offender to be monitored for longer than is necessary toensure attendance at the programme and, in the case of "care" programmes, preventedthe offender being required to reside with the agency in whose care he or she is placed.[74] At the same time, PPOs were introduced. The threshold for a Court to order aPPO is higher than for an ESO.40 Under a PPO, the offender may be detained in aprison facility. Under an ESO, the offender may be in the community but undersupervision or in an alternative managed facility.[75] There have been a number of legal challenges to monitoring and supervisionconditions imposed by the Parole Board. These challenges have been universallytaken by the person subject to such conditions or ESO/PPO orders.41 Here, it isCorrections which challenges the lawfulness of Mr McCorkindale's ESO and specialconditions despite Mr McCorkindale's acceptance, consent and desire to be placedwith Salisbury Street Foundation and subject to the ESO. As noted, I addressCorrections' opposition to the ESO and special conditions under three headings:(a) Is the use of the reintegration programme condition, combined with thepartial residential restrictions, intensive monitoring?(b) Is the residential care condition unlawful?(c) What effect, if any, does Mr McCorkindale's consent have?39 Section 107IAC(3). This is not 12 months' per ESO, but 12 months' altogether: see s 107IAC(5).40 Compare the Parole Act, s 107I and the Public Safety Act, s 13.41 See, for example, McGreevy v Chief Executive of the Department of Corrections [2019] NZCA495.Is there intensive monitoring?[76] The first question is whether the proposed programme is a reintegration andrehabilitation programme under s 15(3)(b) of the Parole Act, or whether it, combinedwith the partial residential and other monitoring and supervision restrictions, amountsto intensive monitoring "by stealth"?42[77] It is accepted by the health assessors and by the parties that Mr McCorkindalehas been institutionalised and is not able to live in the community independently. Yetthe purpose of the programme under s 15(3)(b) of the Parole Act must be for thepurposes of rehabilitation or reintegration, and monitoring in accordance with theprogramme must be no longer than necessary to ensure the offender's participation orattendance.43 Ms Boshier submits that the proposed programme for Mr McCorkindaleis in the nature of a therapeutic mental health management programme with inbuiltsupervision, where Mr McCorkindale resides in the care of Salisbury StreetFoundation. Corrections disputes therefore that it is a reintegration programme unders 15(3)(b). Instead, it says it is a management programme and it cannot be used formonitoring and supervision under the guise of reintegration and rehabilitation.[78] Ms Boshier relies on McGreevy v Chief Executive of the Department ofCorrections, in which Mr McGreevy sought a declaration that he had been unlawfullymonitored between 2008 and 2012 whilst subject to an IRRP under s 107K.44 Allparties accepted that Mr McGreevy had been monitored for up to 24 hours a day, sevendays a week during that period.45 At that time, only a full-time residential restriction(which could only apply for the first 12 months and to which Mr McGreevy was notsubject) could include a requirement that he submit to being accompanied andmonitored up to 24/7.46 Corrections submitted that Mr McGreevy was not monitoredas part of his residential restrictions. Rather, he was monitored to ensure compliancewith the reintegration programme, and such monitoring was impliedly authorised.42 See reference to this phrase in Woods v New Zealand Police [2019] NZCA 446 at [41].43 Parole Act, s 107K(3)(bb)(i).44 McGreevy, above n 41.45 At [17].46 At [22].[79] The Court of Appeal held that Corrections had acted unlawfully in monitoringMr McGreevy 24 hours a day, seven days a week outside the activities specified underthe IRRP developed for him.47 The Court said:48Monitoring when no attempt was being made to deliver the IRRP was notpermitted.[80] The Court considered that a consistent interpretation of s 107K(3)(bb) is toensure that monitoring of an offender should be for no longer than is necessary toensure attendance and participation in the programme.49 The Court gave an example.If the programme occupied eight hours in total, but only five hours monitoring wasrequired to ensure an offender's attendance or participation, then only five hoursmonitoring is necessary.50 The Court concluded that from the period between 26 May2008 and 22 August 2012, Mr McGreevy was unlawfully monitored.[81] In my view, there are two aspects of the evidence which counter Ms Boshier'ssubmission and distinguish these circumstances from those in McGreevy. The first isthe evidence from Ms Voice, who described the proposed programme as beingdeveloped in accordance with the Six Pillars of the Reintegrative Model inNew Zealand. As the government resources note, New Zealand employs a model ofreintegration called "the Six Pillars of Reintegration" that are acknowledged tofacilitate successful reintegration and lower the risk of reoffending.51 They are:(1) Accommodation.(2) Oranga/Wellbeing.(3) Family/Whānau/Community support.(4) Education and training.(5) Employment.(6) Skills for life.[82] Ms Voice saw this programme as a means of protecting the community fromMr McCorkindale's high risk of offending, while supporting him to live in a47 At [40].48 At [32].49 At [36].50 At [36].51 Nimesha Tissera "New Zealand's Six Pillar Model of Reintegration and InternationalReintegrative Models: a Review of the Literature" (18 August 2020) Department of Correctionswww.corrections.govt.nz.community-based residence. Mr Metoui too considered it as essentially being areintegrative programme in the community, given that Mr McCorkindale will beliving, not inside a prison precinct, but in a community setting.52[83] Second, an intensive monitoring condition requires the offender to beaccompanied and monitored by an approved person for up to 24 hours a day.53 Theproposed weekly programme for Mr McCorkindale is not person-to-personsupervision. Nor is it person-to-person line of sight monitoring. For ten hours a day,from 10 pm to 8 am, Mr McCorkindale is monitored by electronic monitoring. He isin a high security house, with alarms and outside CCTV. During the day, in the weeklyprogramme outlining his activities, Mr McCorkindale is to be accompanied to allactivities outside the premises in the community to enable him to participate in thoseactivities and, effectively, lead a relatively normal life.[84] These activities, as noted above, include his own personal shopping, his specialfishing activity, visits to Lyttelton, the museum or the art centre walk. In the afternoon,after daily chores, Mr McCorkindale's favourite activity is to read the newspaper,watch his news media programmes on television and prepare his own cooking. Theseactivities are not closely monitored, although there is a staff member present in thehouse who will know if Mr McCorkindale leaves the property.[85] Ms Voice was questioned about whether the plan is intensive monitoring (IM)under another name. She explained:When they are not on an IM, the expectations are not as intense but thething we are looking at all the time is the risk. Is the safety and the risk, Iguess that is our main driver. So the IM is sort of, I guess in a way from ourperspective it is a control area whereas the individual programme is more ofan agreement and safety and risk and the other thing is that there is lessexpectations on someone who is not on IM in terms of complying toconditions that are set under IM.52 I note that in the Corrections resource material online the model of care adopted by Matawhāiti is"to support a change to residents' cycle of sexual and/or violent offending and prepare them for afuture of safe and appropriately supported living in a community setting": see Lindon Pullan andAndrew Burger "Matawhāiti Residence – Public Protection Orders" (18 August 2020) Departmentof Corrections www.corrections.govt.nz.53 Parole Act, s 107IAC(2).[86] On a review of the Parole Board's conditions and considering the evidence, Iconsider that the programme is a reintegration programme and, combined with thepartial residential and other monitoring and supervision restrictions, does not amountto intensive monitoring. The programme is designed to keep both the public andMr McCorkindale safe, with sufficient supervision or monitoring to ensure that he canparticipate in community activities and that he is appropriately supported in acommunity setting. Without oversight, supervision or monitoring, Mr McCorkindalecannot leave the property or participate in activities in the community. To that end,the programme is one which reintegrates Mr McCorkindale in the community. It isdesigned to rehabilitate Mr McCorkindale to a meaningful living routine in thecommunity, albeit in supported secure accommodation.[87] I do not uphold the submission from Corrections that what is sought here is tocontinue the level and monitoring and supervision achieved by intensive monitoringthrough a suite of conditions imposed by the Parole Board. These special conditionsenable a return to community living whilst achieving the Six Pillar Model ofReintegration, tailored to Mr McCorkindale's past history, past offending and presentcircumstances. I do not accept this is intensive monitoring. In my view, theprogramme condition meets the requirements of s 15(3)(b), and the monitoring andsupervision requirements in conditions one to three are no longer than is necessary toenable Mr McCorkindale to participate in the community activities in his programme.[88] In making that finding, I also make this observation. Section 5(c) of the PublicSafety Act prevents a PPO being imposed on a person who is eligible to be detainedunder the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 Actor the Mental Health (Compulsory Assessment and Treatment) Act 1992.Mr McCorkindale has borderline intellectual functioning in the low 70s range. He isalso autistic. While Mr McCorkindale does not meet the definition of a person withintellectual disability under the Intellectual Disability Act, which is an intellectualfunctioning level of below 70 IQ, the proposed programme at Salisbury StreetFoundation aims to provide humane treatment for Mr McCorkindale, given hisimpaired intellectual functioning. A reintegration programme, therefore, that not onlyenables Mr McCorkindale to live safely in a community setting but also provides atherapeutic management programme with inbuilt supervision, is a fitting reconciliationof the purpose and principles of the Public Safety Act with the legislative provisionsof the Parole Act in these circumstances.[89] Finally on this point, Ms Boshier submits that reliance on Salisbury StreetFoundation's house rules or the "supported accommodation agreement" cannot beused to circumvent the restrictions that Parliament has placed on intensive monitoringand reintegration and rehabilitation in s 107K of the Parole Act. House rules, shesubmits, are at the discretion of Salisbury Street Foundation and are legallyunenforceable. Mr McCorkindale will not necessarily be in breach of the conditionsfor his ESO if he breaches those rules. In that case, it is submitted there is no powerfor Corrections to take action.[90] I do not accept that there are no consequences for Mr McCorkindale in respectof the special conditions of his ESO if he is in breach of the house rules of SalisburyStreet Foundation. As Ms Voice was at pains to explain, the house rules seek to engagethe offender, in this case Mr McCorkindale, to comply with the way in which thehouses are run. If Mr McCorkindale is in breach of any of the supervision, monitoringor programme requirements, or indeed, withdraws his consent to comply with thehouse rules, the Salisbury Street Foundation would have no hesitation in contactinghis Probation Officer and advising that he is in breach of his residential condition.Mr McCorkindale's withdrawal of consent or failure to comply with the house ruleswould mean that he is effectively no longer wishing to reside at the Salisbury StreetFoundation on the terms provided. This immediately raises special condition four,which is his residential requirement to live at the Salisbury Street Foundation.[91] Unlike the decision in Coleman v Chief Executive of the Department ofCorrections,54 I consider that the Salisbury Street Foundation house rules do notamount to the house arrest of Mr McCorkindale. Nor do they provide a basis for ahabeas corpus challenge in these circumstances, because Mr McCorkindale wishesthis outcome and consents. I deal further with Mr McCorkindale's consent in the finalsection of this judgment.5554 Coleman v Chief Executive of the Department of Corrections [2020] NZCA 210.55 See [103]-[108] of this judgment.[92] I therefore find that the proposed programme is a reintegrative programme and,together, the conditions of Mr McCorkindale's ESO do not amount to intensivemonitoring. The programme condition is lawful.Is the care condition unlawful?[93] Corrections challenge the placement of Mr McCorkindale in the care of anagency with whom he resides. The conflict here arises because s 107K(3)(bb)(ii)places a restriction on programmes ordered as part of the special conditions for anESO, namely that the condition cannot require the offender to reside with an agencyin whose care the offender is placed for a programme.[94] The wording of condition two is that Mr McCorkindale is:To be placed in the care of an agency approved by the Chief Executive andbetween the hours of 7.00 am and 11.00 pm and, while in the care of thatagency, to be accompanied and monitored by an agency staff member at alltimes [Emphasis added][95] Corrections points to this wording in special condition two, where the ParoleBoard ordered that Mr McCorkindale was to be placed "in the care of" an approvedagency, namely Salisbury Street Foundation, between the hours of 7 am and 11 pm.Special condition four then requires Mr McCorkindale to reside at an address asdirected by the Probation Officer. That address must be Salisbury Street Foundation,if that is where he is to reside.[96] Corrections submits that on a plain reading of those conditions, requiringMr McCorkindale to both reside with the Salisbury Street Foundation and placing himin the care of the Salisbury Street Foundation, they are contrary to s 107K(3)(bb)(ii).Corrections called Mr Rendall, principal advisor for the high-risk response team atCorrections, to identify the problem: condition two places Mr McCorkindale in thecare of an agency with whom he resides.[97] I accept the wording of condition two, alongside condition four, conflicts withthe requirement of s 107K(3)(bb)(ii) of the Parole Act and should be reviewed by theParole Board. The problem, as noted, arises from the placement of Mr McCorkindale"in the care of" Salisbury Street Foundation, when he is going to be a resident withthe Foundation and is to undertake a reintegration programme with the Foundation, asset out in condition three. I suggest that the Parole Board consider this wording at thenext review to reflect the fact that Mr McCorkindale will reside at Salisbury StreetFoundation and will be monitored by a Foundation staff member to ensure hisparticipation in the programme.[98] In any event, the wording of condition two does not reflect how SalisburyStreet Foundation propose to run Mr McCorkindale's programme or the basis onwhich he is to be managed by the agency, as Ms Voice has made clear. The differencesare:(a) Mr McCorkindale is to live in Salisbury Street Foundation's highsecurity house, which is his choice. He does not need to be "placed inthe care of" the agency; and(b) Mr McCorkindale is not accompanied at all times between 7 am and11 pm, but he is to be accompanied and monitored when he undertakesplanned trips into the community as part of his programme.Mr McCorkindale is able to pursue activities of his choice within thehouse without being "accompanied" or "monitored" on a one-to-onebasis.[99] The most important factor in my assessment overall is that all of the experts inthis hearing were agreed that the ESO with the special conditions and the programmeproposed by Salisbury Street Foundation is the best and least restrictive option thatcan be made for Mr McCorkindale, while appropriately and adequately mitigating hisrisk of reoffending. It is critical therefore, that the infelicitous drafting of conditiontwo should not determine the Court's wider assessment under the Public Safety Act.[100] As set out above, the purpose of the Public Safety Act is not to punish personsagainst whom orders are made under that Act. Both the Supreme Court in Chisnalland the Court of Appeal in McCorkindale v Department of Corrections havereinforced that a PPO should not be made unless there is no alternative and lessrestrictive option.[101] The conflict between s 107K(3)(bb)(ii) of the Parole Act and the policy,purpose and principles of the Public Safety Act in interpreting condition two must beresolved, in my view, by taking a purposive approach to interpretation, to give effectto the purpose of the Public Safety Act.56 That is the Act under which the Court isrequired to exercise its discretion and which is paramount in these circumstances.[102] I therefore find that condition two with condition four is not unlawful. I turnto the remaining issue of consent.Mr McCorkindale's consent[103] It was made clear to the Parole Board that Mr McCorkindale consented to thespecial conditions the Board imposed. His consent was repeated in this hearing,through his Counsel and through Mr Metoui, the clinical psychologist. Mr Metouiconsiders the scenario of Mr McCorkindale walking away if there are any gaps in hisprogramme is unlikely or at a low risk of occurring because Mr McCorkindale wishesto please those around him. Although Corrections has submitted that consent isintegral to these conditions, it is not a precondition or a requirement of them. Thisaccords with s 107K(IA) of the Parole Act, which stipulates that the offender's consentis not required for special residential conditions. Nonetheless, Mr McCorkindalewants to return to the Salisbury Street Foundation and consents to the specialconditions imposed by the Parole Board, including those of monitoring andsupervision, as part of his programme.[104] I do not uphold Correction's submissions that Mr McCorkindale's consentmakes the alternative option risky. Although inapplicable in that case, it was acceptedin Chief Executive of the Department of Corrections v R that a regime based onconsent, although it risks withdrawal of consent, is not excluded.57 The Judgeconcluded that there may be cases where there is sufficient confidence that the56 Ross Carter Burrows & Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington,2015) at 220.57 Chief Executive of the Department of Corrections v R [2018] NZHC 3455 at [54].withdrawal of consent will not result in unmanageable risk or where there is a highlevel of confidence consent will not be withdrawn.58 Both are true in this instance.[105] As I have already stated, if Mr McCorkindale does not comply with his specialconditions or withdraws his consent to be supervised and/or monitored in respect ofthe programme designed for his management, his residential condition will no longerbe met and he would be in breach of condition four. In that way, his Probation Officerwould take the necessary steps. Consequences, as Mr McCorkindale fears, may wellthen ensue. Again, there is a high level of confidence that Mr McCorkindale's consentwill not be withdrawn.[106] Of relevance to these issues, the Parole Board has recently considered a similarcase where an offender, whose intensive monitoring condition was set to expire,sought special conditions to enable him to accompanied and monitored in a way thatwas permitted by ss 107IAC and 107K(3)(bb)(i). In that case, the Parole Boardimposed a new special condition which is worded as follows:59From the date on which the intensive monitoring ceases to apply, in order toensure your attendance at classes or participation in other activities associatedwith your reintegration programme you are to be accompanied and monitoredby a person approved by the programme provider at all times when travellingto or from those classes or activities and throughout the period of time thatyou are undertaking, engaging in or completing those classes or activities.[107] In making that condition, the Parole Board addressed whether the specialcondition was in breach of the Parole Act. In finding that it was not in breach, theParole Board said this:48. In our view that new special condition is not in breach of the Act.Section 107(3)(bb)(i) refers to not only supervision and monitoringbut also to "other restrictions". In our view a restriction that requiresMr Barton to be accompanied and monitored to ensure his attendanceat classes or other activities (which by the Department's ownadmission will include trips to the market and similar) is in line withthe provisions of that section.49. In that regard we note too that the wording used in the section refersto ensuring Mr Barton's participation "in other activities associatedwith the programme" (emphasis added). Arguably that can coveractivities outside the programme itself but "associated" with it.58 At [54].59 Barton v Department of Corrections New Zealand Parole Board, 21 May 2020.50. The Board considers that the new condition is necessary to "ensure"Mr Barton's attendance at any classes or participation in any activitiesassociated with the reintegration programme because Mr Barton hasmade it clear through counsel that unless he is accompanied when heleaves the Springhill External Village he will not leave. If he does notleave Springhill External Village he is not able to attend the requisiteclasses or participate in other activities associated with theprogramme. Requiring him to be accompanied and monitored for thispurpose will "ensure" that he leaves the village to participate in hisprogramme.51. The new special condition is not the same as intensive monitoring byanother name. Although it will apply for the periods of time thatMr Barton is away from Spring Hill [sic] External Village for thepurpose of attending classes or participating in other activitiesassociated with the programme, it will not apply once he returns to thevillage. His activities once on site will be the subject of GPSmonitoring and the overnight curfew. That is different from thecurrent intensive monitoring regime as it was described to us at thehearing. The intensive monitoring condition does permit Mr Bartonto be supervised by person-to-person monitoring while on the groundsof the Springhill External Village.52. It is our view that the new special condition is lawful, workable andreflects, to the extent possible within the Act, our understanding ofMr Barton's desire to be accompanied when he leaves the SpringhillExternal Village. The question of whether there are gaps in thisregime (for example in relation to possible "free time") are issueswhich no doubt the Court will turn its mind to in the context of anycontinuance of the PPO proceedings.[108] I conclude that Mr McCorkindale's consent is relevant to this Court'sassessment. It provides an additional reassurance that he will comply willingly withthe conditions.CONCLUSION[109] In summary therefore, there are five reasons why the ESO with specialconditions is the least restrictive option for Mr McCorkindale and the PPO should notbe made. They are:(a) the conditions together do not amount to intensive monitoring;(b) the alternative option is consistent with the policy and principles of thePublic Safety Act;(c) the alternative option is the least restrictive and most humane;(d) Mr McCorkindale wishes to reside with the Salisbury StreetFoundation and consents to his special conditions, despite his consentnot being required. There is a high level of confidence that his consentwill not be withdrawn, and in the event that it is, it would trigger abreach of special condition four of the ESO, being the residentialcondition, which would not result in unmanageable risk; and(e) it is contrary to human rights interests to apply the reasoning indecisions involving Bill of Rights challenges when the reverse positionapplies to Mr McCorkindale, namely, that it is humane and in his bestinterests that the alternative option is adopted, instead of a PPO.[110] As the Supreme Court has held, if conditions can be put in place withoutdetention that remove or restrict opportunity to an extent that there is no longer a veryhigh risk of imminent offending of the type, a public protection order should not bemade.60 This applies aptly to Mr McCorkindale's circumstances.Result[111] The application for the public protection order is declined.[112] The extended supervision order made on 29 April 2016, with the specialconditions ordered by the Parole Board on 30 August 2017, remains in force.60 Chisnall, above n 17, at [40].Costs[113] If Counsel are unable to agree on costs, memoranda are to be filed by Counselfor Mr McCorkindale within 10 working days of the date of receipt of this judgment.Counsel for Corrections is to reply within a further 10 working days. Memoranda areto be no more than five pages.Cull JSolicitors:Raymond Donnelly & Co, Christchurch for the CrownMichael Starling, Christchurch