MCCORKINDALE v DEPARTMENT OF CORRECTIONS [2019] NZCA 369

MCCORKINDALE v DEPARTMENT OF CORRECTIONS [2019] NZCA 369 [16 August 2019]NOTE: SUPPRESSION ORDERS MADE BY THE HIGH COURT IN S2/99(SEE FOOTNOTE 5) REMAIN IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA616/2017[2019] NZCA 369BETWEEN ROBERT JOHN MCCORKINDALEAppellantAND DEPUTY CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing:Furthersubmissions:9 May 201915 and 23 May 2019Court: Clifford, Gilbert and Collins JJCounsel: M Starling and N R Wham for AppellantM J McKillop for RespondentJudgment: 16 August 2019 at 3 pmJUDGMENT OF THE COURTA The appeal is allowed.B The public protection order made by the High Court 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 on 26 April 2017is now in full force and effect pending further order of that Court and isno longer suspended pursuant to s 107(3) of the Public Safety (PublicProtection Orders) Act 2014.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Mr McCorkindale appeals against a decision of Gendall J making a publicprotection order (PPO) against him.1 In consequence of this order, Mr McCorkindale,who had successfully been managed in the community for over 10 years underthe strict conditions of two extended supervision orders (ESO), is now required to livebehind the prison wire at Christchurch Men's Prison. Mr McCorkindale contends thata PPO was unnecessary and should not have been made because a less restrictiveoption, similar to the orders he was previously subject to, would be sufficient to protectthe public from his acknowledged risk of further offending.[2] The objective of the Public Safety (Public Protection Orders) Act 2014(the Act) is to protect members of the public from the almost certain harm that wouldbe inflicted by the commission of serious sexual or violent offences; punishment is notan objective.2 A PPO cannot be made unless the person meets the statutory thresholdset out in s 7 of the Act and there is a very high risk of imminent serious sexual orviolent offending by that person if released from prison into the community(in the case of persons detained in a prison) or if left unsupervised (in any other case).3A PPO authorises the continued detention of persons who have completed theirsentences. Such an order involves a major restriction on a person's liberty and cannotbe imposed unless the Court is satisfied the risk to public safety cannot be managedby any less restrictive option.4[3] Mr McCorkindale is 65 years of age. He has congenital hypothyroidism whichaffected his brain development from birth. He has been assessed as falling intothe borderline range of intellectual functioning and has limited self-regulatory abilityand capacity for empathy.1 Deputy Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536[High Court judgment].2 Public Safety (Public Protection Orders) Act 2014, s 4.3 Section 13(1)(b).4 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR83 at [37] and [83].[4] Twenty years ago, in May 1999, Mr McCorkindale was sentenced to sevenyears' imprisonment having pleaded guilty to five charges of indecent assault of twogirls aged four and six.5 Mr McCorkindale served the entirety of this sentence. He hasnot reoffended, having been managed successfully in the community undertwo successive ESOs, each of 10 years' duration. These orders were made bythe Parole Board under pt 1A of the Parole Act 2002.[5] The first ESO was made upon Mr McCorkindale's release from prison on17 January 2006. Under the terms of this order, he was closely monitored in variousresidential settings under what was known as an Individual Residential ReintegrationProgramme (IRRP) which allowed for full-time placement in the care of an approvedagency.[6] Following the introduction of the Parole (Extended Supervision Orders)Amendment Act 2014 which coincided with the introduction of the PPO regime, IRRPconditions were no longer permitted. However, the Parole Board was empowered torequire a person to submit to being accompanied and monitored for up to 24 hours aday (intensive monitoring) for a maximum period of 12 months.[7] Mr McCorkindale consented to a second ESO being made on 29 April 2016including an intensive monitoring condition for 12 months. Mr McCorkindale wassuccessfully managed in terms of this order at a facility provided by the SalisburyStreet Foundation in Christchurch where he was monitored on a person-to-personbasis 24-hours a day. He wishes to return to live at this facility. The providers remainwilling to have him and a place is available for him.[8] The difficulty for Mr McCorkindale and others in his position is that anintensive monitoring condition cannot continue beyond 12 months. Further, anycondition requiring participation in a programme must not require the person to residewith any person or agency in whose care he or she is placed.6 This means thatthe conditions previously imposed under the earlier ESOs, which were demonstrablysufficient to manage Mr McCorkindale's risk while allowing him to live in5 R v McCorkindale HC Dunedin S2/99, 28 May 1999.6 Parole Act 2002, s 107K(3)(bb).the community, are no longer available as a result of the 2014 amendments tothe legislation. This is what prompted the respondent's application for a PPO.Statutory test[9] Section 7 of the Act sets out the threshold for imposition of a PPO.This includes where a person is aged at least 18 and is or has been subject to intensivemonitoring under an ESO. Mr McCorkindale meets this threshold.[10] Section 13 sets out the circumstances in which a PPO may be made.First, the person must meet the threshold under s 7. Secondly, there must be a veryhigh risk of imminent sexual or violent offending by the person if released from prisoninto the community or left unsupervised (as applicable). Such a finding cannot bemade unless the Court is satisfied the person exhibits a severe disturbance inbehavioural functioning established by evidence to a high level of each of fourspecified characteristics. Section 13 reads:13 Court may make public protection order(1) After considering all of the evidence offered in a proceeding on anapplication for a public protection order, and, in particular, theevidence given by 2 or more health assessors, including at least 1registered psychologist, the court may make a public protection orderagainst the respondent if the court is satisfied, on the balance ofprobabilities, that—(a) the respondent meets the threshold for a public protectionorder; and(b) there is a very high risk of imminent serious sexual or violentoffending by the respondent if,—(i) where the respondent is detained in a prison,the respondent is released from prison intothe community; or(ii) in any other case, the respondent is left unsupervised.(2) The court may not make a finding of the kind described in subsection(1)(b) unless satisfied that the respondent exhibits a severedisturbance in behavioural functioning established by evidence to ahigh level of each of the following characteristics:(a) an intense drive or urge to commit a particular form ofoffending:(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 ofthe respondent's offending on actual or potential victims(within the general sense of that term and not merely asdefined in section 3):(d) poor interpersonal relationships or social isolation or both.[11] If the criteria in s 13 are made out, the court must consider whether the risk canbe managed by an order less restrictive than a PPO. This requires identification of thenext most restrictive option and evaluation with evidence of its likely efficacy.High Court judgment[12] The Judge was satisfied Mr McCorkindale met the threshold test forthe imposition of a PPO in terms of s 7 of the Act.7 The Judge then addressed each ofthe four characteristics set out in s 13(2). After reviewing the evidence concerningeach of those characteristics, the Judge was satisfied Mr McCorkindale exhibiteda severe disturbance in behavioural functioning.8[13] The Judge then turned to the risk assessment in terms of s 13(1)(b)(ii).He considered the risk should not be assessed as if Mr McCorkindale was inthe community without a level of oversight, rather on the basis the current measuresand controls remain in place to manage his risk.9 The parties agree that this wasa misdirection and inappropriately collapsed two separate assessments into one.The risk assessment under s 13(1)(b)(ii) is to be undertaken on the hypothetical basisof a person in Mr McCorkindale's position being left unsupervised. If the gatewaytest in s 13 is established, the Court must then consider the least restrictive optionavailable to manage the risk. This was the ultimate issue the Judge appropriatelyfocused on.[14] After the conclusion of the hearing but before the judgment was delivered,the respondent applied for a variation to the existing ESO seeking conditions to7 High Court judgment, above n 1, at [9]–[11].8 At [34]–[65].9 At [67]–[74].replace the intensive monitoring condition that was no longer available.This application was made to address Mr McCorkindale's ongoing management inthe event the PPO application was declined. This application was granted bythe Parole Board on 30 August 2017 and provided for Mr McCorkindale to be placedin the care of an agency approved by the Department of Corrections between the hoursof 7 am and 11 pm daily, to participate in a reintegration programme within those hoursas directed by a probation officer, and to be subject to electronically monitoredresidential restrictions between 11 pm and 7 am.[15] The Judge was advised of this application and the Parole Board's decision bymemorandum. It was submitted for Mr McCorkindale that these conditions wereadequate to manage his risk. The Judge did not accept this for the reasons he gave inthe following two paragraphs of his judgment:[93] The reality of the situation, however, is that 24-hour monitoring,which was previously available and operating for Mr McCorkindale underthe earlier intensive monitoring condition, is no longer available. It isthe specific evidence of two of the health assessors that this degree ofoversight is crucial to reducing Mr McCorkindale's risk below the "very highrisk" threshold.[95] The applicant submits the evidence demonstrates thatMr McCorkindale presents a clear and imminent risk (meeting the statutorytests) of further sexual offending if the current level of support were to bereduced. I agree. Ultimately, although the authorities and statutory languageshow the necessary threshold tests were intended to represent a high bar,I consider they are met in this case. A paramount consideration under the Actis always the need for protection of potential victims. Taking this into accounthere, but also bearing in mind in terms of s 5(b) of the Act that a PPO should" only be imposed if the magnitude of the risk posed by the respondentjustifies the imposition of the order", I conclude that on all the evidence beforethe Court Mr McCorkindale would be certain to offend again if a PPO werenot imposed. Compelling grounds exist therefore for such an order to bemade.Grounds of appeal[16] Mr Starling listed the following issues in support of Mr McCorkindale'sappeal:(a) Was the Judge correct to find that there was a very high risk ofimminent serious sexual offending by Mr McCorkindale if leftunsupervised (s 13(1)(b))?(b) Was the Judge correct to find that Mr McCorkindale would be certainto reoffend if a PPO were not imposed notwithstanding his long historyof compliance with ESO conditions?(c) Did the Judge adequately consider less restrictive alternatives?(d) Should the Judge have considered making an order under s 12 directingthe respondent to consider the appropriateness of an application unders 29 of the Intellectual Disability (Compulsory Care and Rehabilitation)Act 2003?[17] At the commencement of the hearing of the appeal Mr Starling advised thatthe first and last of these issues are not pursued. It is accepted that the criteria formaking a PPO under s 13 of the Act were met and disposition under the IntellectualDisability (Compulsory Care and Rehabilitation) Act is not an option. The focus ofthe appeal is on whether a less restrictive option, namely an ESO on terms set bythe Parole Board in its decision post-dating the hearing, would be sufficient to protectthe public from the risk of Mr McCorkindale committing further serious sexualoffences.Assessment[18] Mr McKillop fairly acknowledges that the alternative ESO conditions thatwere imposed by the Parole Board after the PPO hearing in the High Court were notconsidered by the two health assessors called by the respondent. They gave noconsideration to the efficacy of these conditions in managing Mr McCorkindale's risk.The expert called on behalf of Mr McCorkindale made only passing reference to them.The late identification of these conditions as the next most restrictive outcome meantthere was no meaningful engagement at the hearing in the High Court as to whethersuch conditions would be effective to manage Mr McCorkindale's risk. As a result,the High Court did not have the expert assistance it needed to determine the leastrestrictive outcome appropriate in all the circumstances.[19] A PPO can only be justified if the court is satisfied that the next most restrictiveoption is not adequate to mitigate the defined risk.10 The next step-down option, whichthe parties agree is the revised ESO ordered by the Parole Board on 30 August 2017,was not addressed in the evidence or in the submissions before the High Court. A PPOcannot be justified unless that option can be excluded. In these circumstances, we aresatisfied that the appropriate course is to quash the PPO and remit the application tothe High Court to enable this issue to be explored fully.[20] Counsel agree that if the PPO is quashed, this will automatically enliventhe interim detention order made by consent on 26 April 2017.11 The partiespreviously agreed to this order being suspended pursuant to s 107(3) of the Actpending determination of the application for a PPO. Mr Starling submits that the ordershould remain suspended because this would allow Mr McCorkindale to return tothe Salisbury Street Foundation in Christchurch pending the rehearing. While heacknowledges this will inevitably cause some upheaval, Mr Starling submits thiswould be proportionate to the benefit to Mr McCorkindale, even if it is only for a shortperiod. Mr McKillop points out that the interim detention order was only suspendedon condition that Mr McCorkindale would continue to be subject to intensivemonitoring. That is no longer an option because the 12-month time limit on intensivemonitoring conditions has expired. Accordingly, Mr McKillop submits that if the PPOis quashed, the interim detention order should be operative pending the rehearing.We agree that this is the appropriate course in the circumstances. The interimdetention order is to be in full force and effect until the application for a PPO is finallydetermined or until further order of the High Court. We anticipate the parties willcooperate in seeking the earliest possible hearing in the High Court so that this interimorder remains in place for the minimum period reasonably possible.10 Chisnall v Chief Executive of the Department of Corrections, above n 4, at [40].11 Deputy Chief Executive of the Department of Corrections v McCorkindale HC ChristchurchCIV-2016-409-1237, 26 April 2017 (Minute of Davidson J).Result[21] The appeal is allowed.[22] The public protection order made by the High Court is quashed.[23] The matter is remitted to the High Court for reconsideration in accordance withthis judgment.[24] The interim detention order made by the High Court on 26 April 2017 is nowin full force and effect pending further order of that Court and is no longer suspendedpursuant to s 107(3) of the Public Safety (Public Protection Orders) Act 2014.Solicitors:Crown Law Office, Wellington for Respondent