CHISNALL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 510 [23 October 2019]

CHISNALL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 510[23 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA200/2018[2019] NZCA 510BETWEEN MARK DAVID CHISNALLAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 27 November 2018 (further material received 24 December 2018)Court: Miller, Cooper and Clifford JJCounsel: A J Ellis and G K Edgeler for AppellantD J Perkins and L Dittrich for RespondentJudgment: 23 October 2019 at 1 pmJUDGMENT OF THE COURTA The appeal is allowed.B The public protection order is quashed.C The matter is remitted to the High Court for reconsideration inaccordance with this judgment.D The interim detention order made by the High Court, as amended, is infull force and effect pending further order of that Court.E The respondent is to pay the appellant costs for a standard appeal ona band A basis and usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The appellant, Mark David Chisnall, was sentenced in March 2006 to eightyears' imprisonment on a single charge of rape.1 Whilst serving that term ofimprisonment Mr Chisnall was sentenced to a cumulative term of three years'imprisonment for an earlier rape. Mr Chisnall's finite sentences of imprisonment wereto end on 1 May 2016. On 15 April 2016 the respondent, the Chief Executive ofthe Department of Corrections (the Chief Executive), sought a public protection order(PPO) under the Public Safety (Public Protection Orders) Act 2014 (the Public SafetyAct), or alternatively an extended supervision order (ESO) under the Parole Act 2002.At the same time, the Chief Executive applied for interim orders under both those Acts.[2] The Chief Executive's application for an interim detention order underthe Public Safety Act was granted by the High Court on 22 April 2016.2 Appealsagainst that order were subsequently dismissed by this Court3 and, following a grantof leave,4 the Supreme Court.5[3] The Chief Executive's substantive application for a PPO was heard bythe High Court in early December 2017. On 14 December that year Wylie J grantedthat application.6[4] Mr Chisnall now appeals that decision. His appeal is advanced on twogrounds:(a) Wylie J was wrong to conclude that the statutory prerequisites forthe making of a PPO had been established in Mr Chisnall's case.1 R v Chisnall HC Wanganui CRI-2005-083-806, 29 March 2006.2 Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796 [Interim detentionorder (HC)].3 Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 [Interim detentionorder (CA)].4 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 50.5 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR83 [Interim detention order (SC)].6 Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 [Publicprotection order (HC)].(b) Even if that were not the case Wylie J should, instead of making a PPO,have made an ESO, subject to intensive monitoring for one year,an outcome Mr Chisnall consented to in the High Court and before us.PPOs and ESOs[5] Offenders released from prison on parole are automatically subject to standardparole release conditions.7 They may also be made subject to special parole releaseconditions by order of the Parole Board. Special conditions impose further restrictionson the person's liberty. Those conditions may only remain in force up to six monthsafter the offender's statutory release date, generally the last day of the full term ofthe offender's sentence of imprisonment.8[6] PPOs and ESOs are made, on the application of the Chief Executive, bythe High Court. ESOs may also be made by the District Court, again onthe Chief Executive's application. They may, in general terms, be imposed on eligibleoffenders who will complete the full period of their finite term of imprisonment for aserious sexual or violent offence and who are, therefore, not able to be made subjectto parole release conditions long term.9 The primary purpose of both orders is toprotect the community from what the Chief Executive must establish is the very highor high risk of sexual or violent reoffending by an eligible offender.10The Chief Executive establishes that risk by demonstrating to the Court that theeligible offender demonstrates a range of specific characteristics.11[7] Both PPOs and ESOs, amongst other things, impose restrictions on wherethe offender must reside, and their freedom of movement. A PPO is more restrictivethan an ESO. That is, in summary:7 Parole Act 2002, s 29.8 Sections 29(3) and 29AA(3).9 Public Safety (Public Protection Orders) Act 2014 [Public Safety Act], s 7(1), the "threshold" test;and Parole Act, s 107C, definition of "eligible offender".10 Parole Act, s 107I(1)–(2); and Public Safety Act, ss 4(1) and 13(1).11 Before imposing a public protection order (PPO) the court must — among other requirements —be satisfied that the respondent exhibits a severe disturbance in behavioural functioningestablished by evidence of characteristics set out at s 13(2) of the Public Safety Act. Similarly,before imposing an extended supervision order (ESO) the court must determine the necessary highor very high risk of reoffending exists by reference to the characteristics set out as s 107IAA ofthe Parole Act.(a) A person subject to a PPO must stay in specially designated buildingsand adjacent land (residences) located in prison precincts. Suchpersons, known as residents, are in the legal custody ofthe Chief Executive and are subject to a range of ongoing restrictionsand rules set out in the Public Safety Act.12 There is no time limit tothe period for which a PPO may apply. Such orders must, however, bereviewed on an annual basis by the review panel constituted underthe Public Safety Act, and every five years by the High Court, on themandatory application of the Chief Executive.13(b) A person subject to an ESO is, just like an offender released on parole,subject to a range of standard conditions.14 The standard conditionsplace a person under the supervision of a probation officer and requireresidence at an approved residential address. The Parole Board haspower to impose special conditions on the same terms as it may do soby way of special parole release conditions, such as electronicmonitoring. In addition, the Chief Executive, when applying for theimposition of an ESO, may also apply to the sentencing court foran order that it impose what is known as an intensive monitoringcondition on the offender.15 Such a condition requires the offender tosubmit to being accompanied and monitored for up to 24 hours a day.ESOs have a maximum term of 10 years. An intensive monitoringcondition may only be imposed during the first 12 months of an ESO.16Mr Chisnall and his offending[8] Mr Chisnall's personal and offending history was summarised by this Court in2016 as follows:17[3] Mr Chisnall was born on 5 March 1986. The various reports that wewill refer to in due course show that he had a troubled background. His mother12 Public Safety Act, s 21; and see generally pt 1 sub-pts 2–3.13 Sections 15 and 16.14 Parole Act, ss 107J–107JA.15 Section 107IAB.16 Section 107IAC(3).17 Interim detention order (CA), above n 3 (footnote omitted).found him to be a very difficult child and Mr Chisnall alleges that he sufferedphysical abuse as a child. He was described in the reports as being aggressivethrough kindergarten and school with regular involvement in assaults. He hadlearning difficulties. There were issues with drugs and he has been diagnosedwith Attention Deficit Hyperactivity Disorder (ADHD). There is alsoa reference in the reports to an occasion of a very serious assault on his motherwhen Mr Chisnall broke her jaw and tried to strangle her. The reports disclosethat when he was 10 he watched a pornographic movie in which women wereraped and killed, which led to an interest in movies depicting rape andviolence. Mr Chisnall has reported that he was sexually preoccupied from thatage.[4] In 2001 when he was 14 or just 15 he raped an eight-year-old girl ina park in a small Taranaki town. The offending was not at that point revealedand he was not sentenced in relation to this event until 31 July 2009.[5] Some days after the offending against the eight-year-old girl,Mr Chisnall induced a seven-year-old boy to perform oral sex on him. He wasimmediately charged in relation to this offence. He was convicted of unlawfulsexual connection and sentenced to one year and four months' imprisonmentwith leave to apply for home detention.[6] While he was on bail for those offences he was convicted anddischarged for assaulting a 20-year-old female stranger. The victim reportedthat Mr Chisnall had said to her "you are coming with me" and when she saidno he hit her on the head with a stick. She managed to run away and find help.Mr Chisnall has consistently denied this attack had a sexual intent, and he wasnot formally charged with a sexual offence. In 2004 when Mr Chisnall wasliving with caregivers, he admitted to them that he had been peeping andpeering at a woman in a hotel room. He reported experiencing anger andsexual preoccupation that led to his offending.[7] In 2005 when Mr Chisnall was aged 18 he had been waiting by a parkto be collected to go to work. He saw a woman in her early 20s running pasthim. He grabbed the victim from behind and, using physical force to silenceher, attempted to force her to perform oral sex. When she refused Mr Chisnallbecame enraged and twisted her head forcing her to submit. He then rapedher. She was left traumatised and injured. Mr Chisnall has acknowledged thisoffending and he says that he was stimulated by the violence involved.He pleaded guilty to this offending and was sentenced by Miller J to eightyears' imprisonment, a sentence which took into account his guilty plea andyouth. The Judge refused a Crown request that he be sentenced to preventivedetention. He also declined to make a compulsory care order underthe Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 [9] Mr Chisnall's interim order was made by the High Court on the basis of reportsfrom three psychologists. In the Supreme Court and when assessing whetherthe precondition of very high risk of imminent serious sexual offending was satisfied,Elias CJ summarised those three reports, and what she took from them, in thefollowing way:18[70] Of the three reports provided with the application, the first wasprovided by Ms Laws on 28 August 2015 and was addressed to the prospectof an extended supervision order, not the elevated standard required for thepublic protection order now in issue. Ms Laws concluded that there was "atleast a high risk of Mr Chisnall committing a further relevant sexual offencewhile in the community". This included a risk of significant violence inconnection with sexual assault or sexual violation. Ms Laws thought itunlikely, based on his past behaviour, that Mr Chisnall would be able toimplement effective coping strategies even with the support of a "wrap aroundservice".[71] The second report was provided by Mr Berry on 11 March 2016.Mr Berry was of the view that, although Mr Chisnall had demonstrated"significant improvements in a number of areas of functioning related to hisrisk of reoffending", the "sustainability and significance of Mr Chisnall'streatment gains are un-tested in the community environment and are relativelyrecent". He considered that "intensive external monitoring is essential as aminimum requirement to manage his risk of reoffending". Mr Berry notedthat "electronic monitoring is considered a good measure to mitigate risk and Mr Chisnall has signed an agreement to consent to electronic monitoring".[72] The final report was prepared by Dr Wilson on 22 March 2016.Dr Wilson concluded that Mr Chisnall exhibited "a very high and stable riskof further serious re-offending that is regarded as imminent". In coming tothis conclusion, Dr Wilson noted that, on one measure of psychopathy, thosewith Mr Chisnall's score had demonstrated a 73 per cent re-imprisonment ratein the five years after release.[10] She concluded:[74] Here, the evidence was carefully considered against the statutorystandards by Fogarty J and by the Court of Appeal. I agree with their analysisand conclusion that, on the balance of probabilities, there is a very high riskof imminent serious sexual or violent offending by Mr Chisnall if he isreleased from detention. The evidence of the health professionals andMr Chisnall's history as disclosed in the evidence indicate that he exhibits asevere disturbance in behavioural functioning to a high level in terms of driveto commit serious sexual offending with violence, that he has limitedself-control, absence of concern for victims and poor interpersonalrelationships. The improvements acknowledged in Mr Chisnall's behaviourduring his imprisonment were countered by some indications that the Court ofAppeal accurately considered to be "ominous". They were in any event incircumstances where he was given no opportunity to offend and are, for thereasons given by the psychologists, not a safe predictor of his behaviour ifsuch opportunity were to arise given his long-term impulses to offend whenthe opportunity presents and his poor self-control. The case for interim18 Interim detention order (SC), above n 5.restraint pending determination of the public protection order on this evidenceis clear.(Footnotes omitted.)[11] Elias CJ delivered the leading judgment, on which the Court was unanimoussave in one respect. The Chief Justice considered that the High Court had erred by notconsidering whether the risk established would be properly contained by suspendingan interim order under s 107(3) of the Public Safety Act.19 That is, the Chief Justicetook the view that, at the stage of an application for an interim order, the Court couldmake such an order, but immediately suspend it on conditions that the Court wassatisfied would meet the identified risk in the meantime. The majority did not considerthat to be an option.20 In all other respects, both as to the approach to the legislationoverall, and its application to the particular facts as they related to Mr Chisnall at thetime, the Court was unanimous.The challenged High Court decision[12] Wylie J had before him the original reports of the three psychologists, andupdating reports from each of them. This Court had earlier directed that a forensicpsychiatrist in private practice, Dr Justin Barry-Walsh, also provide a report. That hadbeen done, and the report was available to Wylie J. In addition, each of those fourhealth assessors gave evidence and was cross-examined.[13] For very similar reasons to those of the Courts that considered Mr Chisnall'schallenge to his interim order, Wylie J first found that he was satisfied Mr Chisnalldisplayed the s 13(2) characteristics to a high level.21[14] Turning to the s 13(1) assessment, namely whether there was "a very high riskof imminent serious sexual or violent offending by the respondent", the Judge firstnoted that Mr Chisnall himself accepted he posed a high risk of future serious sexualoffending: that acceptance was implicit in his acknowledgement that it would beappropriate for the Court to make an ESO, subject to a year's intensive monitoring.19 At [50]–[55] and [78].20 At [85]–[91].21 Public protection order (HC), above n 6, at [81].The question for the Judge was, therefore, whether he also posed a very high risk ofimminent serious sexual offending.22[15] The Judge first considered the counter-factual, that is the factual context byreference to which that risk was to be assessed. Given that Mr Chisnall was not then"detained in a prison", but subject to an interim detention order, the Judge concludedthat factual context was if Mr Chisnall were to be left unsupervised.23The counter-factual was not, as had been argued for Mr Chisnall, what the situationwould be if Mr Chisnall was released subject to an ESO with an intensive monitoringcondition. Whether there was a satisfactory risk management approach, short ofa PPO, was a factor to be considered when the Court made its discretionary assessmentwhether or not to make a PPO. We agree that is the correct approach. That approachis not challenged in this appeal.[16] The Judge then assessed the expert evidence, noting that the various actuarialrisk measurement tools could only take matters so far.24 What was required wasjudicial assessment and judgment in each individual case. He concluded:[114] Having considered all of the available evidence, I am satisfied thatMr Chisnall poses a very high risk of imminent serious sexual offending werehe to be released into the community unsupervised. The assessmentsperformed using the actuarial tools point to this. So do additional matterspersonal to Mr Chisnall which are not reflected in the assessments obtainedusing those tools. All experts were concerned at the risk Mr Chisnall poses,and I accept the evidence, particularly of Dr Wilson and Mr Berry that the riskof serious sexual reoffending is very high and imminent in the sense discussedat [82]–[87]. Accordingly, I consider that I have jurisdiction to make a PPOagainst Mr Chisnall.[17] The issue then became one of whether, in his discretion, he should make a PPO.Counsel for Mr Chisnall emphasised the breadth of that discretion which theysubmitted reflected the significance, in a civil rights context, of PPOs. The submissionfor the Crown was that the discretion was essentially a residual one, only to beexercised in exceptional circumstances.22 At [83].23 At [93].24 At [94].[18] The Judge concluded, referring to s 5(b) of the Public Safety Act, that a PPOwas "an order of last resort, to be imposed only if the magnitude of the risk posed bythe respondent" justified its imposition.25 Therefore, the availability of an alternative,less restrictive restraint under the Parole Act, such as an ESO with intensivemonitoring as Mr Chisnall had consented to, was a matter of some significance indetermining whether or not to grant a PPO.[19] The Judge was not persuaded, however, that such an ESO would be sufficientto mitigate the very high risk that Mr Chisnall posed.26 The Judge had no doubtMr Chisnall required further treatment if his risk was to be mitigated.27 The evidencesuggested such treatment could not be dealt with over a 12-month period.Intensive monitoring could only be imposed for a period of 12 months, and only once.Mr Chisnall had not responded well to treatment in the past. The Judge was notconfident he would make sufficient progress, even with intensive treatment, during theperiod that any intensive monitoring condition could be in place. On that basis,the Judge concluded that it was not appropriate to exercise his discretion to refuse tomake the order.28Appeal[20] Mr Chisnall's appeal was advanced on two fronts. First, Mr Ellis argued —anticipating the arguments that will be made in the separate inconsistency challengeMr Chisnall is making — that given (i) the importance of affected NZ Bill of RightsAct 1990 (NZBORA) rights, (ii) relevant international obligations of New Zealand,and (iii) the limits on expert evidence as to characteristics and risk, it was, as a generalproposition, simply not possible to ever conclude that the statutory criteria of "veryhigh risk of imminent serious sexual offending" existed. We are not considering theissues raised in Mr Chisnall's inconsistency proceedings. Moreover, there has alreadybeen a finding in the High Court, upheld by this Court and the Supreme Court, that inrespect of Mr Chisnall there is a "very high risk of imminent serious sexual offending".25 At [118].26 At [119].27 At [120].28 At [125].Accordingly, we do not consider the conclusion Mr Ellis invited is one which, in theseproceedings, is open to us.[21] The second front, advanced by Mr Edgeler, addressed the specifics ofthe High Court decision. Mr Edgeler noted that — as Elias CJ had observed — itmight be considered that the evidence available to the courts when considering theinterim detention order would represent the high point of the Chief Executive's case.29Moreover, as the Chief Justice had also observed, the Court's conclusion at the interimorder stage was necessarily provisional because the evidence was then untested andmight be answered at the hearing on the substantive application for a PPO.30 On thatbasis:(a) The first question was whether the evidence before the High Courtprovided a proper basis for Wylie J's conclusion as to a very high riskof imminent offending.(b) The second was whether the Judge had approached the exercise of thediscretion to make a PPO in a legally correct manner.[22] Mr Edgeler's submission was that the evidential position in the High Court onthe Chief Executive's substantive application had — as the Chief Justice recognised itmight — changed materially from that before the Courts at the interim stage.31During the High Court hearing, the experts themselves had recognised the limitationon the conclusions that could be drawn based on actuarial analysis of the risk of furtheroffending. As a matter of principle, those assessments did not address Mr Chisnall'sindividual circumstances. Nor would any overall statistical measure of assessed riskof future offending ever approach the "very high" standard set by the statute.The expert witnesses had also recognised during cross-examination the limitations ontheir ability as clinical professionals to make the determination the statute requiredthe Court to make.29 Interim detention order (SC), above n 5, at [73].30 At [69].31 At [20].[23] In addition, and of relevance particularly to the issue of imminence, wasMr Chisnall's relatively short criminal history. Mr Edgeler noted that Mr Chisnall hadnot offended for nearly two years following his release from prison in 2003. On thatbasis, it was suggested, we could not conclude his risk was to offend imminently afterrelease. It might be some time before the subjective factors of which were the promptfor his offending coincided with a set of external circumstances which providedan opportunity to offend.[24] On that basis, Mr Edgeler urged the conclusion that the Judge had been wrongto conclude that there was in Mr Chisnall's case a very high risk of imminent serioussexual offending.[25] Mr Edgeler's approach to the discretion provided for by s 13 reflected what hesaw to be the implications of the Chief Justice's analysis when upholding the interimdetention order. Mr Edgeler drew our attention to the following remarks in particular:[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 PublicSafety Act expressed in its purpose and the principles contained in s 5emphasise that orders made under it are not punitive and are directed at publicsafety. The high threshold set by the legislation for public protection ordersand the availability of less intrusive means of protecting public safety in ordersunder the 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.[39] The text of s 13 and the definition of "imminent" links the risk whichis to be addressed by the orders to provision of opportunity through removalof restraint. The Judge must be satisfied not only that the risk is a high onebut that it is likely to occur if the opportunity arises. Under the definition theperson must be expected to commit a serious sexual or violent offence as soonas he or she has suitable opportunity to do so. The criteria in s 13(2) indicatethat "imminent" in this context is not a purely temporal assessment but onelinked to opportunity. The order is aimed at preventing the opportunity arisingwhere the Judge is satisfied that an offence of the type is likely to becommitted by the respondent when he or she has suitable opportunity.[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.(Footnotes omitted.)[26] In considering the discretion, Mr Edgeler argued the Judge had failed to takeaccount of:(a) First, the ability of the Chief Executive to apply for a PPO before theend of the one-year period of intensive monitoring.(b) Secondly, the alternative ability of the Chief Executive to seek ongoingrestrictions on Mr Chisnall under the Parole Act at the end of the periodof intensive monitoring which, Mr Edgeler submitted, would achieve afunctionally equivalent protective effect.[27] The Judge had, therefore, failed to take account of relevant considerations andaccordingly had exercised his discretion unlawfully.[28] In response, the Chief Executive submitted, as regards the threshold tests, thatthe evidential basis for the High Court's decision was materially stronger than hadbeen the case when the interim detention order was being considered.[29] On the question of discretion, the Chief Executive agreed with the Judge'sjudicial assessment that a PPO was required from the outset, as it were, ofMr Chisnall's post-imprisonment supervision. The Judge could not be said to havemade that discretionary conclusion wrongly. Rather, his judgment showed that he hadcarefully considered the option of an ESO with an intensive monitoring condition, andhad decided that it would not appropriately address Mr Chisnall's very high risk ofimminent serious sexual offending.AnalysisMr Chisnall's risk of reoffending[30] In our view the evidence adduced in the High Court did not, contrary toMr Edgeler's argument, undermine the conclusion as to Mr Chisnall's very high riskof imminent serious sexual offending that had been reached in the context of theinterim detention order. Neither did it, contrary to the Chief Executive's argument,materially strengthen the evidential basis for that order.[31] That said, there was no real challenge to the conclusion reached by Wylie J, byreference to the statutory characteristics, that Mr Chisnall exhibits a severe disturbancein behavioural functioning. Given the very minor differences between the relevantcharacteristics required for an ESO and those for a PPO, Mr Chisnall's acceptance hemay properly be made subject to an ESO with intensive monitoring in practical realityestablishes that.[32] We also agree for the reasons given by Wylie J, and by each Court in the interimorder proceedings, that were Mr Chisnall to be released unsupervised into thecommunity there would be a very high risk of imminent serious sexual offending byhim.[33] In reaching that conclusion the relevant counterfactual is of Mr Chisnall beingreleased, unsupervised, into the community. Whether the risk of offending is"imminent" is to be assessed in that context. We acknowledge the reservationsexpressed by the health assessors on their ability to determine imminence, givenvarious characteristics and limitations of the assessment tools they use for thatpurpose. But, as Wylie J observed, what is called for here is judicial assessmentinformed by expert advice. It is not the task of the experts to reach the conclusionrequired of the court.[34] We refer to the observations of Elias CJ which we have set out at [25].As the Chief Justice put it, the Judge must be satisfied "not only that the risk is a highone but that [an offence] is likely to occur if the opportunity arises". An offender mustbe expected to commit a serious sexual offence "as soon as he or she has suitableopportunity to do so". Imminence is not a purely temporal assessment, but one linkedto opportunities. The assessment of imminence is to be determined by reference to asituation which would arise when the subject of the application "has suitableopportunity".[35] In that context, the views expressed by the experts of the significance, for therisk of Mr Chisnall reoffending, of him not having the controls and support providedby, for example, ongoing supervision under the Parole Act, are significant. It is in thatcontext that the reference to a person being expected to commit a relevant offence "assoon as he or she has a suitable opportunity to do so" is to be applied.The opportunistic nature of Mr Chisnall's previous offending is a factor ofconsiderable persuasive power in our conclusion that Wylie J was correct to concludethat condition was met. Put another way, it may be that Mr Chisnall would not offendfor some time following his release; but if so, it would be because the opportunity hadnot presented itself.A PPO or an ESO?[36] We therefore turn to the Judge's assessment of whether he should make thePPO and, in that context, the significance of the possibility of subjecting Mr Chisnall,in the first instance, to an ESO combined with intensive monitoring for the statutorymaximum period of 12 months.[37] In considering that question the Judge reasoned that, whilst Mr Chisnall wasprepared to agree to an ESO with an intensive monitoring condition, such a conditionwould have a maximum duration of 12 months.32 There was no ability to extend thatcondition, and the Court could not impose that condition more than once even ifan offender is subject to repeated ESOs.33 There was no doubt Mr Chisnall requiredfurther, and ongoing intensive supervision and monitoring, if his risk was to bemonitored. There could be no guarantee that he would respond to any treatment hemight receive during the 12-month period. He had not responded in the past andthe Judge could not be confident that he would make sufficient progress, even withintensive treatment, during the period that any intensive monitoring condition wouldbe in place.34 Conditions that could subsequently be imposed under an ESO wouldnot protect against further offending to the same extent as an intensive monitoringcondition. On that basis the imposition of a PPO was appropriate.32 Public protection order (HC), above n 6, at [119].33 Parole Act, s 107IAC(5).34 Public protection order (HC), above n 6, at [120].[38] In our view, and with respect, that is to approach the question in the wrongway. The question is not whether, at the end of the 12-month period, Mr Chisnall'sposition would be such that his risk would at that point be able to be managed byan ESO with the then available special conditions, which would be less stringent thanintensive monitoring. Rather the question is, as we think the Supreme Court'sdecision shows, whether for that 12-month period Mr Chisnall's risks could not beproperly managed by an ESO with an intensive monitoring condition.[39] As Elias CJ made clear, as a matter of principle the Court should scrutinise thepossibility of making an ESO before making a PPO:35[37] I accept the further submission made on behalf of Mr Chisnall that thePublic Safety Act requires the court in making an interim detention orderunder the Act to be satisfied on the balance of probabilities not only that thestatutory criteria for making a public protection order have been provisionallymade out but that the risk to public safety cannot be sufficiently met by lessrestrictive options to interim detention. [38] The availability of extended supervision orders and interimsupervision orders as an alternative means of monitoring risk is a factor thatbears on whether the more restrictive public protection order (and interimdetention order pending its determination) is appropriate.[40] The majority reiterated the point in the context of interim applications:36If [the court was] satisfied that the risk could be met by, for example, anyexisting parole conditions, no interim detention order would be made. Or, ifthe court considered an interim supervision order would be sufficient,the court would decline to make an interim detention order and then make aninterim supervision order. We do not see the statutory scheme as preventingthat option. Rather, the scheme provides for the sequence in which theseapplications are to be addressed with priority, in a timing sense, allocated tothe public protection order regime. In this sense, the scheme under the PublicSafety and Parole Acts are intended to work together.[41] Section 7(1)(b) of the Public Safety Act expressly provides that a person whois or has been subject to an ESO, together with an intensive monitoring condition, alsomeets the threshold test. Such a person may be made subject to a PPO when, forexample, the 12-month period of intensive monitoring comes to an end. Althoughintensive monitoring is only available for a 12-month period, it is possible other35 Interim detention order (SC), above n 5.36 At [89] (footnote omitted).arrangements that may effectively manage the offender's reoffending risk will becomeapparent during that initial 12-month period.[42] It follows, therefore, that where the High Court is considering a substantiveapplication for a PPO, a similar approach is to be taken. That is, the Court is toconsider the alternative of an ESO. That it must do so indicates that, notwithstandingthat the risk threshold for a PPO has been established, the statutory scheme envisagesthat the Court could be satisfied that the (lesser) controls provided by an ESO maynevertheless be sufficient to manage that risk.[43] Arriving at such a conclusion may not, however, be a straightforward matterfor the Court. The reason for that lies in important differences between ESOs andPPOs, the conditions for them to be imposed and the role that the Court plays in theirimposition.[44] Whilst both PPOs and ESOs are imposed by the Court, and have the functionof protecting the public from a high risk of reoffending, from the point of view ofthe Court that is in many ways where the similarity ends.[45] A PPO is imposed by the Court, after the required risk assessment. Every PPOhas as its central — fixed — feature the detention of the resident in a secure, "behindthe wire" residence. We understand that there is only one such facility in New Zealandcurrently, Matawhāiti residence located in the precincts of Christchurch Men's Prison.Matawhāiti occupies approximately a one-hectare site situated outside the prison itselfbut surrounded by a four-metre electric fence. The degree of risk managementprovided by such a residence is reasonably obvious.[46] Residents, though detained, are not prisoners. Nevertheless,the Chief Executive has the legal custody of every resident including when, withapproval, a resident is absent from the residence, for example to undergo or receivemedical treatment, to attend a rehabilitation program or for humanitarian reasons.37When so absent, the resident must be escorted and supervised by specially designated37 Public Safety Act, s 20.staff members, corrections officers or police employees.38 The Chief Executive has arange of further controls available under the Public Safety Act, including powers tomonitor telephone communications, restrict visits, conduct searches and to placeresidents in seclusion or under restraint.39 Most restrictively of all, the Court may onthe application of the Chief Executive order a person subject to a PPO to be detainedin a prison instead of a residence.40[47] Before making an ESO the Court must also make the relevant riskassessment.41 Having made that assessment, when imposing an ESO the statutoryscheme requires no further decision from the Court, subject only to the possibility ofthe Court ordering the Board to impose an intensive monitoring special condition.[48] Before the Board may release an offender on parole the Board must also makea risk assessment decision. It must be satisfied on reasonable grounds that theoffender, if released on parole, will not pose an undue risk to the community withinthe term of their sentence, having regard to the support and supervision available tothe offender when on parole and the public interest in reintegrating the offender as alaw-abiding citizen.42[49] Once those initial risk assessment decisions are made, the statutoryframeworks for ESOs and parole release conditions are largely identical. Set standardconditions are enumerated in the Parole Act at s 107JA for ESOs, and s 14 for parole.Both sets of standard conditions are largely identical, and reflect the fundamentalrequirement for an offender to live at an approved address, under the supervision of aprobation officer (i) whose consent is required before the offender may shift from thataddress and (ii) who may require the offender to observe restrictions on theiremployment and personal associations and to take part in rehabilitative andreintegrative needs assessments.38 Section 26(3).39 Part 1, sub-pt 4.40 Part 1, sub-pt 6.41 That is, there is a high or very high risk of the offender committing a relevant sexual or violentoffence in the future: Parole Act, s 107I(2)(b)(i) and (ii).42 Section 28(2).[50] The Parole Board is also given a broad power to impose "special conditions".As regards parole release special conditions, s 15(1) provides:The Board may (subject to subsections (2) and (4)) impose any 1 or morespecial conditions on an offender.[51] Section 29AA(1) confirms the breadth of that general power. It provides:In releasing an offender on parole, the Board may impose any specialconditions on that offender that the Board specifies.[52] In the case of ESOs, s 107K(1) provides:At any time before an extended supervision order expires or is cancelled the Board may, on an application by the chief executive or a probation officer,impose on the offender any special condition that the Board is entitled toimpose under section 15.[53] The Board's power to impose special conditions is, in both instances,constrained first therefore by the limits within s 15 itself. That is, by subss (2) and (4):(2) A special condition must not be imposed unless it is designed to—(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of theoffender; or(c) provide for the reasonable concerns of victims of the offender;or (4) No offender may be made subject to a special condition that requiresthe offender to take prescription medication unless the offender—(a) has been fully advised, by a person who is qualified toprescribe that medication, about the nature and likely orintended effect of the medication and any known risks; and(b) consents to taking the prescription medication.[54] The Parole Act then recognises specific special conditions and, at the sametime, imposes limits upon them. Given the terms of s 107K(1), the availability ofthose special conditions, and the applicability of those restrictions, apply equally tospecial conditions that may be imposed on ESOs.[55] Section 15(3) provides an inclusive list of such conditions, includingconditions relating to the offender's place of residence, residential restrictions andconditions requiring the offender to participate in a programme. That term"programme" is defined in s 16(c) to include:(c) placement in the care of any appropriate person, persons, or agency,approved by the chief executive, such as (without limitation)—(i) an iwi, hapu, or whanau:(ii) a marae:(iii) an ethnic or cultural group:(iv) a religious group, such as a church or religious order:(v) members or particular members of any of the above.[56] Section 33(2) stipulates the consequences of the imposition of residentialrestrictions in the following way:(2) An offender on whom residential restrictions are imposed isrequired—(a) to stay at a specified residence:(b) to be under the supervision of a probation officer and to co-operate with, and comply with any lawful direction given by,that probation officer:(c) to be at the residence—(i) at times specified by the Board; or(ii) at all times:(d) to submit, in accordance with the directions of a probationofficer, to the electronic monitoring of compliance with his orher residential restrictions:(e) to keep in his or her possession the licence issued undersection 53(3) and, if requested to do so by a constable or aprobation officer, must produce the licence for inspection.[57] The apparent unrestricted ability to require an offender to be at a specifiedresidence at all times is qualified in a variety of ways by the rest of s 33. For example,subss (3)–(5) provide that requirement may only be imposed for a maximum period of12 months and that, notwithstanding such a requirement, an offender may withthe approval of a probation officer leave that residence for a variety of purposes, suchas to engage in or seek employment, and to attend training or rehabilitative orreintegrative activities and so on. Section 107K(3)(bb) further provides, as regardsthe special conditions of an ESO:(bb) any condition requiring the offender to participate in aprogramme (as referred to in section 15(3)(b)) must not—(i) require that the offender be, or result in the offenderbeing, supervised, monitored, or subject to otherrestrictions, for longer each day than is necessary toensure the offender's attendance at classes orparticipation in other activities associated with theprogramme; or(ii) require the offender to reside with, or result in theoffender residing with, any person, persons, oragency in whose care the offender is placed; [58] As we understand matters, the power of the Board to require an offender to liveat the residence in which a programme is being conducted is the closest, in effect, todetention in a residence under a PPO. That said, it is important to remember there areno institutional residences (that is, ones run by the Chief Executive) for prisoners onparole or for offenders subject to an ESO.[59] The one special condition that may apply to an ESO, but not to parole releaseconditions, is that of intensive monitoring. Section 107IAC(2) explains that such acondition is one requiring "an offender to submit to being accompanied and monitored,for up to 24 hours a day, by an individual who has been approved, by a personauthorised by the chief executive, to undertake person-to-person monitoring". On theChief Executive's application, the Court may make an order requiring the Board toimpose such a condition. The duration of that condition, which must be specified bythe Court, may be no longer than 12 months.43[60] Thus it can be said that whilst the terms of the Public Safety Act informthe Court of the degree of control provided by a PPO, the same is not the positionunder the Parole Act for an ESO. Other than as regards intensive monitoring, theconditions attaching to an ESO are determined by the Parole Board. Put simply,43 Parole Act, s 107IAC(3).therefore, the Court may well — unless provided by the Chief Executive or theParole Board with the specific special conditions upon which an ESO, if ordered, willapply — have considerable difficulty deciding that an offender's risk, which wouldjustify the imposition of a PPO, can nevertheless safely be managed under an ESO.[61] That difficulty was faced by the Supreme Court when it consideredMr Chisnall's appeal against the interim detention order the High Court originallymade. Elias CJ reasoned, when concluding that an ESO with intensive monitoring(which she considered could be imposed by a suspended interim detention order44)was not the appropriate means of managing Mr Chisnall's risk, as follows:45In the present case I am of the view that on the evidence before the Courtthere is no basis for the view that suspension of the interim detention orderand the imposition of conditions is a realistic option. The identified risk wasgreat and no basis for considering it might appropriately be managed bysuspension and conditions was provided. On the evidence before the CourtMr Chisnall is highly likely to offend if the opportunity presents itself. Thatmeans the opportunity for offending has to be precluded by his full-timecontrol, as is achieved by the interim detention order. Although placement inanother institution under strict supervision might provide equivalentprotection, no such option has been properly identified. Mr Ellis suggests thatconditions of release could require that Mr Chisnall reside at Anglican Actionand be closely monitored. But whether Anglican Action is both prepared toaccept Mr Chisnall and in a position to carry out the necessary intensivemonitoring is quite unknown on the evidence before the Court.[62] The majority simply concurred that "the basis for making an interim detentionorder [that is, an interim PPO] was made out and the interim order properly made".46Given, however, the majority had concluded an interim supervision order (that is, aninterim ESO) should generally be made in place of an interim detention order if it wasthe least restrictive option,47 the implication is they too considered an interimsupervision order with intensive monitoring was unsatisfactory.[63] Details of where an offender will live and how they will be monitored willsubstantially assist the Court in assessing whether an ESO will be, in the words ofElias CJ, "a realistic option".48 In McCorkindale v Deputy Chief Executive of the44 Interim detention order (SC), above n 5, at [54].45 At [79].46 At [84].47 At [89].48 At [79].Department of Corrections, this Court recently considered the suitability of an ESOwhich had not been fully explored in the High Court.49 Mr McCorkindale wasappealing a PPO imposed by the High Court. That PPO was applied for in substitutionfor an existing ESO which Mr McCorkindale had consented to, and which was— the Court was told — successfully managing the risk of his reoffending.50However, residential conditions applying to that ESO became unlawful followingamendments to the ESO regime in 2014, and although they were re-imposed for12 months pursuant to an intensive monitoring condition, the Deputy Chief Executiveapplied for a PPO when that condition expired.51[64] After the hearing of that application, but before the Court gave its decision,the Deputy Chief Executive applied for a variation to that existing ESO, seekingconditions to replace the intensive monitoring condition that was no longer available.That application was made to address Mr McCorkindale's ongoing management in theevent the PPO application was declined. That application was granted bythe Parole Board, and provided for Mr McCorkindale to be placed in the care ofan agency approved by the Department of Corrections between the hours of 7 am and11 pm daily, to participate in a reintegration programme within those hours as directedby a Probation Officer and to be subject to electronically monitored residentialrestrictions between 11 pm and 7 am.52 The High Court, without itself havingconsidered the ability of the varied, and lawful, ESO to manage Mr Chisnall's ongoingrisk, or having had the advantage of evidence from health assessors on that point,granted the Chief Executive's application for a PPO.53[65] On appeal, this Court reasoned:54[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 nextstep-down option, which the parties agree is the revised ESO ordered by theParole 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 the49 McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369.50 At [1].51 At [6].52 At [14].53 Deputy Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536.54 McCorkindale v Deputy Chief Executive of the Department of Corrections, above n 49 (footnoteomitted).appropriate course is to quash the PPO and remit the application tothe High Court to enable this issue to be explored fully.[66] Likewise, we are not able to properly consider a possible ESO for Mr Chisnallwithout assessing the terms on which it would be made. Nor was the High Court ableto do so, as those terms were not before it either.[67] We did, at the hearing of the appeal, seek from counsel some certainty as to thedetails of the ESO which, if ordered by the Court, would result. At the time counselwere unable to do so. We sought additional submissions from counsel on the point.The best counsel were able to do was to suggest interim special conditions, thoughthese did not specifically identify an agency or organisation that might takeMr Chisnall, and draw our attention to the conditions of a number of ESOs withintensive monitoring conditions that had been imposed on other high risk offenders.So, whilst we think Wylie J erred in the approach he took, we are in no better positionthan the Supreme Court was to conclude that, given Mr Chisnall's circumstances, hisassessed risk can be managed by an ESO even with an intensive monitoring specialcondition.[68] In these circumstances we consider the appropriate way to respond toMr Chisnall's appeal is to allow it, to quash the PPO made by the High Court and toremit the matter back to that Court for reconsideration. As this Court held inMcCorkindale, quashing the PPO has the effect of automatically enlivening theoriginal interim detention order.55 That conclusion follows from the fact that the orderwas to be in effect until the Chief Executive's application for a PPO was "finallydetermined", which will not have occurred if the PPO is quashed and the applicationis remitted back to the High Court.56 Moreover, the original interim detention ordermust be reanimated to ensure there is no gap or hiatus in the degree of supervision,which would be contrary to the statutory scheme.57 The interim detention order of55 At [20].56 Interim detention order (HC), above n 2, at [46].57 R (CA4642018) v Chief Executive of the Department of Corrections [2019] NZCA 60 at [36].Fogarty J,58 as subsequently amended,59 is therefore now in full force and effect untilthe application for a PPO is finally determined or until further order of the High Court.[69] We recognise that considerable time has now passed since we heard this appeal.On the other hand, without appropriate certainty as to the terms of an alternate ESO,it is difficult for the Court to conclude other than Mr Chisnall is to remain a residentat Matawhāiti in terms of the High Court's PPO.Result[70] We allow the appeal and quash the PPO made by the High Court.[71] The matter is remitted to the High Court for reconsideration in accordance withthis judgment.[72] The interim detention order made by the High Court, as amended, is in fullforce and effect pending further order of that Court.[73] Leave is reserved for counsel to approach us, should the implementation of thatapproach give rise to unanticipated difficulties.[74] The Chief Executive is to pay Mr Chisnall costs for a standard appeal on aband A basis and usual disbursements. We certify for second counsel. Costs inthe High Court are to be determined in that Court.Solicitors:Crown Law Office, Wellington for Respondent58 Interim detention order (HC), above n 2.59 We understand that the order was amended in January 2017 to enable Mr Chisnall to move toMatawhāiti. This amendment, and any others which may have been ordered, naturally apply tothe reanimated order.