JEFFRIES v CHIEF EXECUTIVE OF THE DEPT OF CORRECTIONS [2018] NZCA 272

JEFFRIES v CHIEF EXECUTIVE OF THE DEPT OF CORRECTIONS [2018] NZCA 272 [25 July 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA17/2018[2018] NZCA 272BETWEEN RONALD WAYNE JEFFRIESAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 21 May 2018 (further material received 5 July 2018)Court: French, Ellis and Woolford JJCounsel: Appellant in PersonC A Brook for RespondentJudgment: 25 July 2018 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] On 24 October 2017, the District Court imposed a 10 year ExtendedSupervision Order (ESO) on Mr Jeffries, who is a recidivist sex offender.1 Thedecision records that Mr Jeffries consented to the making of the ESO but he nowdenies that he agreed or instructed his lawyer to agree on his behalf. He appeals themaking of the order on that and other grounds.[2] The appeal was filed out of time. Mr Jeffries swore an affidavit explaining thedelay. An extension of time was not opposed by the Crown and it is grantedaccordingly.The ESO regime[3] ESOs were first introduced by the Parole (Extended Supervision) AmendmentAct 2004 (the Amendment Act), which came into force on 8 July 2004. TheAmendment Act amended the Parole Act 2002 (the PA) by inserting provisions whosestated purpose is "to protect members of the community from those who, followingreceipt of a determinate sentence, pose a real and ongoing risk" of committing certain,specified, serious offences.2[4] The ESO regime has subsequently (in 2009 and 2014) been amended and itsreach extended; it now applies not only to offenders who are assessed as posing a highrisk of committing future relevant sexual offences but also those who are assessed asposing a very high risk of committing future relevant violent offences.3The ESO process[5] The general procedure for determining an ESO application is as follows:(a) the court must first assess whether the offender is an "eligible offender"in terms of the legislation (the eligibility assessment);1 R v Jeffries DC Whanganui CRI-2016-083-1752, 24 October 2017 [ESO decision].2 Parole Act 2002, s 107I(1).3 Parole (Extended Supervision Orders) Amendment Act 2009; and Parole (Extended SupervisionOrders) Amendment Act 2014.(b) if an offender is eligible, the court then considers whether an ESOshould be granted by assessing whether there is a real and ongoing riskthat he or she will in future commit a further "relevant offence" (therisk assessment);4 and(c) if the court considers the requisite risk is established, it must thenconsider the appropriate term of the ESO (the duration assessment).[6] Where the risk assessment relates to the risk of committing further relevantsexual offences, s 107IAA(1) of the PA applies. It provides that a court may determinethere is a high risk an eligible offender will commit a relevant sexual offence only if itis satisfied that he or she:(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence; and(b) has a predilection or proclivity for serious sexual offending; and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse for pastoffending:(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.[7] In determining an ESO application the court may take into account "anyevidence or information that it thinks fit", whether or not it would be admissible underthe Evidence Act 2006.54 The term "relevant offence" is defined in s 107B. For present purposes, it suffices to note that itincludes all the offences we have noted at [8] below.5 Section 107H(2).Mr Jeffries' case[8] Mr Jeffries' history of sexual offending was summarised in the healthassessor's report prepared for the ESO hearing. It is as follows:(a) In 1973, aged 20, he was sentenced to two years' imprisonment forattempted rape.(b) In 1981, aged 29, he was sentenced to six years' imprisonment for abrutal episode of sexual offending against two victims, during which heraped one victim four times.(c) Between 2007 and 2011, while in his fifties, he sexually offendedagainst a girl who was then between 12 and 15 years' old. He regularlystupefied her, offended against her in various ways, and tookphotographs of her either during or immediately after offending againsther. He was sentenced to five and a half years' imprisonment for thisoffending in December 2012.6[9] The application for an ESO was made during the currency of Mr Jeffries' lastdeterminate sentence, on 21 September 2016. His release date was 23 March 2017.7[10] On 30 November 2016, the Parole Board issued a decision imposing specialconditions on Mr Jeffries' release. These conditions did not include electronicmonitoring.[11] On 13 March 2017, shortly before Mr Jeffries' release date, theChief Executive of the Department of Corrections applied to the District Court foreither the imposition of bail conditions or an interim supervision order pending6 R v Jeffries DC Napier CRI-2011-020-3470, 14 December 2012.7 Mr Jeffries served the full term of his sentence.determination of the ESO application. On 14 March 2017, Judge Matheson issued abrief decision on the application.8 He said:[1] I have determined to excuse the presence of the defendant given thenature of his situation.[9] The consideration of the application is put off to26 April 2017 at 2.15 pm.[2] The defendant will be remanded on bail as from 23 March 2017 onthe conditions as per paragraph 4 of the Crown's helpful memorandum of13 March, and I have noted progress required by 26 April one way or the other.[12] Included in the special conditions sought by the Crown (and imposed by the Judge)was a condition that Mr Jeffries was:To submit to electronic monitoring in the form of Global Positioning System(GPS) technology as directed by Probation Officer in order to monitor yourcompliance with any condition(s) relating to your whereabouts.To comply with the requirements of electronic monitoring, and provide accessto your approved residence to a Probation Officer and representative of themonitoring company, for the purpose of maintaining the electronic monitoringequipment as directed by the Probation Officer.[13] On 23 March 2017, Mr Jeffries was released from prison on his statutoryrelease date. A bail notice dated 23 March 2017 included the electronic monitoringconditions set out above. Mr Jeffries' ankle was fitted with an electronic monitoringdevice.[14] Mr Jeffries applied to vary his bail conditions. The application was declinedby Judge Crayton on 25 July 2017, who noted that:10[8] The basis for the application centres on a single condition and that isthe GPS monitoring of his movements. The reason being Mr Jeffries suffersfrom ill-health as a result of a hip condition which has meant that he cannotcharge easily the device and needs to call upon those who either run or live athis approved accommodation in order for the device to be charged.[15] While noting that Mr Jeffries' health problems were substantiated by medicalopinion, the Judge declined to remove the electronic monitoring condition on thegrounds of public safety.11 He also referred to the bail conditions being imposed by8 R v Jeffries [2017] NZDC 21695.9 Mr Jeffries was, however, represented by counsel.10 Department of Corrections v Jeffries [2017] NZDC 16487.11 At [13].Judge Matheson on 14 March 2017, "in circumstances where the application forconditions was by consent".12[16] Mr Jeffries appealed Judge Crayton's decision to the High Court. In the courseof his judgment, Collins J noted his grounds of appeal included that:13(a) the condition to wear the GPS device does not exist as he was onlysubject to parole conditions;(b) he has health issues which warrant removal of the GPS device; and(c) having different members of the public fit and remove the battery forthe GPS device is a breach of his right not to be subjected to torture orcruel treatment pursuant to s 9 of the New Zealand Bill of Rights Act1990 (NZBORA).[17] The Judge went on:14[13] On the first ground of appeal, Mr Jeffries has provided a letter fromhis counsel in the District Court, Ms Goodlet dated 18 July 2017 who said sherecalled he was on parole conditions until August or September 2017. He hasalso provided a letter from a Corrections Officer, Ms Ward, dated 3 March2017 which says "Corrections will... be applying to the [Parole Board] to havea GPS imposed upon you, to support the management of your Parole".Mr Jeffries says he had not seen the Parole Board documents.[14] On the second issue relating to the bail bond, Mr Jeffries has providedan email from Ms Menzies, who appears to be a court registrar noting the bailbond "has not been signed". He submits that prior to being released fromprison he was lead to believe that ESO bail was to reflect his parole boardconditions, which did not include any electronic monitoring condition. Heattaches a letter from Ms Goodlet dated 12 July 2017 which says sheunderstood bail conditions on an ESO would "usually reflect parole releaseconditions".[15] On the third ground of appeal, which Mr Bott elaborated upon,Mr Jeffries has provided evidence from Dr McGeoch, who on 20 April 2017confirmed Mr Jeffries has "genuine and significant medical issues which limithis mobility" and suggested his difficulties with the GPS device should be"accommodate[d]". A letter dated 29 June 2017 from Dr Ho notes Mr Jeffries12 At [1].13 Jeffries v Chief Executive of the Department of Corrections [2017] NZHC 2118 [HC decision]at [12].14 We note these matters because similar concerns formed part of Mr Jeffries' present appeal.has "genuine and significant medical issues which limit his ability to touch histoes". Dr Ho refers to a letter from the Electronic Monitoring Assurance Teamwhich states "if an offender cannot attach a tracker to ankles due to ... healthconcerns, then the offender is not suitable for electronic monitoring." On thatbasis, Dr Ho suggested Mr Jeffries may not be a suitable candidate forelectronic monitoring.[16] Further supporting evidence has been lodged concerning Mr Jeffries'health conditions. Mr Jeffries has himself said the GPS device causes swellingand unsettled sleep. He further complains about the GPS device's "falsesignals/readings" and the alerts he gets when the batteries on the GPS deviceare running low.[18] Justice Collins nonetheless dismissed the appeal, referring again to theoverriding public safety concerns.15The ESO decision[19] The ESO application was heard and determined by Judge Crayton on24 October 2017. As noted earlier, the Judge had before him a health assessor's report,in accordance with s 107F(2) of the PA. After noting the relevant statutory criteria,the Judge recorded:16[7] I do not identify those matters individually, as today Mr Bott hasindicated on behalf of Mr Jeffries that the application can now be consentedto. I do indicate however, that on my reading of all the materials, that is asensible concession and it mirrors the determination which, without furthermaterial, would have been inevitable in this case on the material placed beforethe Court.[8] The extended supervision order, in the circumstances, that isconsented to is one for 10 years. It is on the standard conditions together withspecial conditions which have been extant since bail was granted, as bailconditions, since 23 March 2017[20] Included in those special conditions were the conditions:(m) To submit to electronic monitoring in the form of Global PositioningSystem technology as directed by a probation officer in order tomonitor compliance.(n) To comply with the requirements of electronic monitoring andproviding access to the approved residence to the probation officerand representative of the monitoring company for the purpose ofmaintaining that electronic monitoring.15 At [29].16 ESO decision, above n 1.[21] Although not evident on the face of Judge Crayton's decision, the specialconditions he ordered were, necessarily, interim in nature. That is because asentencing court does not have the power to impose special conditions on an ESO;that is for the Parole Board.17 As s 107L(2A) of the PA makes clear, interim specialconditions last for only three months or, provided an application is made to the Boardwithin that three month period, until the Parole Board determines that application.[22] In Mr Jeffries' case, an application to the Parole Board for the imposition ofspecial conditions was made within time, on 14 December 2017. The Board heardand determined the application on 15 February 2018. Mr Jeffries appeared at thehearing together with a support person. He had made written submissions in advance.[23] In its decision, the Board noted that the application was supported by a reportoutlining the reasons for the conditions sought and a report from a psychologistassessing Mr Jeffries as posing a high risk of sexual reoffending. The Board recordedthat he had 17 convictions for sexual offending against four victims spanning some38 years and that he remained untreated for sexual offending. After notingMr Jeffries' pending appeal against the imposition of the ESO, the Board went on:6. When Mr Jeffries was asked whether he wished to be represented bycounsel, he responded, as he did on numerous occasions to other questions, byasking whether the question was a "rebuttal." That response was reflected inhis written submissions which appeared to assert that legislation did not applyto him. He proclaimed that unless "rebutted" within seven days of the date ofhis submission, his view of the law prevailed. He also appeared to be assertingthat restrictions placed on him, such as extended supervision conditions,amounted to "enslavement" and were thus unlawful. He was essentiallychallenging the Board's jurisdiction to impose the special conditions of theextended supervision order.7. The Board indicated to Mr Jeffries that it was bound by the Parole Act2002, which also applied to him. It did not regard the imposition of specialconditions as "enslavement". It proceeded to review the proposed conditionson the basis that they were opposed by Mr Jeffries.8. So far as the individual proposed conditions were concerned, whichlargely reflected those imposed on an interim basis by the Court, the Boardaddressed each of them with Mr Jefferies. His response to a number wassimply "is that a rebuttal?" He made very limited comment on the substantivemerits of the conditions set out in his Probation Officer's application.17 Parole Act, ss 107IA and 107K. The fact that the special conditions ordered by Judge Craytonwere of an interim kind was recorded on the ESO itself.[24] The Board specifically considered the individual special conditions sought.For reasons set out in the decision, the Board reduced the proposed curfew and alsodeclined to impose a condition prohibiting Mr Jeffries from engaging in activities ofany church, club, group, sporting organisation or similar group. Then, the Board said:11. So far as the electronic monitoring of the whereabouts condition isconcerned, although Mr Jeffries appears to have been generally compliantwith conditions, his reluctance to engage with authorities and his high risk ofreoffending require the external monitoring of that condition.12. As we have no confidence his risk will reduce in future, the conditionswill be in force for the term of the order, subject to a review of the electronicmonitoring conditions in accordance with section 107RB Parole Act 2002.The next hearing will occur after the expiration of two years from today's date.The present appeal[25] We begin by noting that the present appeal is not, of course, an appeal againstthe Parole Board's decision. We say that because Mr Jeffries' principal concerncontinues to be the electronic monitoring condition. We observe that Mr Jeffries doeshave statutory rights of review in that respect. As well as the right of review unders 67 of the PA (which must be exercised within 28 days of the Board's decision),18s 107O states that Mr Jeffries can apply to the Board to discharge or vary a conditionat any time. As well, and as noted by the Board in its special conditions decision,s 107RB of the PA requires it to undertake a biennial review of "high impactconditions", such as a condition requiring electronic monitoring. And more generally,s 107M provides that Mr Jeffries may apply to the sentencing Court for cancellationof the ESO on the grounds that he no longer poses the qualifying level of risk.[26] In terms of the present appeal, however, none of the grounds advanced byMr Jeffries engaged with the criteria for the making of an ESO or their application inhis case. As best as we can discern his principal contentions, they were that:(a) he did not consent to the making of the order;(b) he was not given the opportunity to prepare his case and was not askedif he wanted to speak in court or present any evidence on his behalf;18 Which applies by virtue of s 107S.(c) he was in intense pain from being transported to Court without painrelief and was "not in the right frame of mind";(d) he has been unlawfully detained;(e) he is going to be "detained/enslaved" for 10 years when he hascommitted no (new) crime; and(f) Corrections' decision to apply for an ESO was effectively overriddenby the Parole Board and the conditions it imposed upon his release,which did not include electronic monitoring.[27] Before turning to address those points, however, we record our own view that:(a) Mr Jeffries was undoubtedly eligible for an ESO. At the time of theapplication he was serving a sentence of imprisonment for a relevantoffence, and was not subject to an indeterminate sentence.(b) In terms of the requisite risk assessment:(i) There can be no question that Mr Jeffries' criminal historydiscloses a pervasive pattern of serious sexual offending. Hecontinued to offend in serious ways despite having served termsof imprisonment. While there were some significant gaps intime between offences, these are offset by the fact that he wasin prison for non-sexual offending for part of those periods.Moreover, his most recent sexual offending itself was repetitiveand involved a pattern of offending over a four year period.(ii) The Judge had the benefit of two psychological reportsaddressing the question of risk.19 Dr Simons concludedMr Jeffries met all of the relevant statutory criteria.20 Both19 Mr Jeffries had cooperated with one of the report writers but not the other.20 The second report writer did not address the statutory criteria for an ESO because her report wasordered under the Criminal Procedure (Mentally Impaired Persons) Act 2009.report writers concluded Mr Jeffries posed a high risk of furthersexual offending.(iii) The Judge accepted the psychologists' opinions.[28] The absence of any discernible error in the Judge's analysis serves to fortifythe conclusions we otherwise reach in relation to Mr Jeffries' appeal points, below.Consent[29] As we have noted, in the District Court, Judge Crayton recorded thatMr Jeffries had consented to the imposition of the ESO. He said:21 Mr Bott has indicated on behalf of Mr Jeffries that the application can nowbe consented to. I do indicate however, that on my reading of all the materials,that is a sensible concession and it mirrors the determination which, withoutfurther material, would have been inevitable in this case on the material placedbefore the Court.[30] Mr Jeffries now says that he did not consent. That necessarily imports a seriousallegation that his lawyer acted without, or contrary to, his instructions. It is not anallegation this Court could fairly entertain without first hearing from Mr Bott.[31] Accordingly, on 5 March 2018, Miller J made directions that:(a) Mr Jeffries was to swear and file an affidavit setting out his account ofthe factual position in relation to the consent issue.(b) Crown counsel, Ms Brook, was to provide Mr Jeffries with a waiver ofprivilege form. Justice Miller noted:I have explained that he need not sign it but the Court willlikely draw an adverse inference if he does not.(c) Assuming receipt of the waiver of privilege, Ms Brook was to file andserve an affidavit from Mr Bott, within a further two weeks.21 ESO decision, above n 1, at [7].[32] On 9 March 2018, Mr Jeffries filed an affidavit in accordance with Miller J'sdirection. In it, he explained that:(a) His standard six month parole period from his release date expired atmidnight on 21 September 2017. But, on that day he was informallyadvised that he was to appear in the District Court at Whanganui thefollowing day (22 September).(b) He emailed the Crown prosecutor at Whanganui to clarify whether hewas required to appear and, if so, to request more time to prepare as hehad not received adequate notice of such a hearing.(c) He was advised by the Crown prosecutor that he needed to appear andseek an adjournment in person.(d) On the morning of 22 September, he told the police that he was leavingPalmerston North to go to Blenheim because his parole period was nowover.(e) He boarded a bus and travelled to Wellington. Upon his arrival, he wasarrested and taken to Wellington Police Station pursuant to a warrantissued by the Whanganui Court that morning for failing to appear at abail variation hearing.(f) He was then taken to Rimutaka Prison where he was held for fourweeks until 25 October 2017 when he was transported to theDistrict Court at Whanganui for the ESO hearing.(g) During his time at Rimutaka he had been denied his regular medicationfor blood pressure and anxiety, and denied pain medication he needsfollowing a failed hip replacement.(h) On his arrival at court he was suffering stress, anxiety and in severepain, and had been unable to prepare for the hearing.(i) He had no paperwork given to him regarding the court hearing and hadspent only five minutes with his lawyer, prior to the hearing.(j) He did not consent to the ESO and at no time did he instruct his lawyerto consent to such an order.(k) Although he was released on that day, he was not in the right frame ofmind to understand anything that had happened in court; he spent thenext few weeks trying to get well and to get his medication back ontrack.[33] In the letter to the Registrar accompanying this affidavit, Mr Jeffries also said:I would just like to add that I will not be consenting to sign the wavier thatwas sent by the Crown office, can you please advise them of that.[34] At the hearing before us, Mr Jeffries explained that he did not sign the waiverbecause it was in the wrong name. It referred to "Ronald Keith Jeffries" rather than"Ronald Wayne Jeffries". Upon checking her file Ms Brook confirmed the error andaccepted responsibility for it.[35] Notwithstanding this mistake, Mr Jeffries could have corrected the form andsigned it or (at the very least) told either the Crown or the Court about it. Regrettably,he did neither of those things. The consequences of a refusal had been clearlyexplained to him by Miller J and recorded in writing. Nor is Mr Jeffries' position onthis issue aided by the history of the matter, which indicates that similar issues havebeen raised retrospectively by him in relation to other orders which, on their face,record that he consented to them.22[36] Regardless of any adverse inference to which Mr Jeffries' refusal to sign thewaiver gives rise, the short point is that it would be wrong in principle to deal with anallegation such as this without hearing from Mr Bott. We are therefore unable to takethe matter further.22 See for example HC decision, above n 13, at [27].[37] The second and third grounds of appeal ([26(b)] and [26(c)] above) involve aslight variation on the "consent" point. As we have noted, Mr Jeffries says he wastaken by surprise by the ESO hearing and, had not been able to prepare for it in jail.In any event, he says he was in such distress and pain (as a result of being transportedsome distance to Court in the prison van without pain relief) that he was unable tothink clearly or properly to instruct Mr Bott.[38] Again, however, we are hampered by the absence of the necessary evidence.There is no dispute that Mr Jeffries does suffer from debilitating and painful medicalconditions. We would also be prepared to accept his evidence that the ride to courtcaused him significant pain and discomfort.23 But we are unable to accept what hesays about the effect of these things on his state of mind and his ability to instructMr Bott on 24 October without hearing either from a medical expert or (at least) fromMr Bott. So too with any question about whether Mr Jeffries understood what thepurpose of the hearing was or the time he was given beforehand to speak with Mr Bott.These grounds of appeal cannot succeed.Legality of detention where no (new) crime has been committed[39] As we understood them, the next two grounds of appeal ([26(d)] and [26(e)]above) essentially focussed on the legality of the ESO regime itself. Mr Jeffries calledin aid a number of international instruments and the NZBORA.[40] The non-compliance of the ESO regime with ss 22 and 26(2) of the NZBORAwas the subject of a report by the Attorney-General under s 7 of that Act at the time ofthe regime's introduction.24 The amendments in 2009 and 2014 have also been the23 In essence Mr Jeffries has had a failed hip replacement which causes serious pain in his hip andback and means that he is unable to sit down comfortably. As has been noted in other judgmentsthis disability also makes it very difficult for him to recharge the electronic bracelet on his anklewithout assistance.24 Margaret Wilson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990on the Parole (Extended Supervision) and Sentencing Amendment Bill (E63, 11 November 2003).subject of such reports.25 For present purposes, it suffices to note that it was the 2009Bill which proposed to amend the regime to:26 give the Parole Board power to impose residential restrictions in the natureof electronically monitored home detention, but short of 24 hours per dayhome detention, on an offender for the full period of the ESO which can befor up to 10 years.[41] In his report on this Bill, the Attorney-General noted that this Court had held,in Belcher v R, that the retrospective operation of the regime infringed the right not tobe punished twice for the same offence confirmed in s 26(2) of the NZBORA.27 Then,he turned to consider the rights implications of the amendment permitting electronicmonitoring. He said:28The Parole Board's power to order what is effectively long term detention ofoffenders is based on the assessment of the risk of their future offending.The proposal in effect allows for long term detention without charge or trial.[42] While acknowledging the important objectives of the regime, the Attorneynoted that:29(a) the argument that detention for the prevention of future offending wasnot arbitrary in nature (in terms of art 5 of the European Convention onHuman Rights) was described by the European Court of Human Rightsas leading to conclusions "repugnant to the fundamental principles ofthe Convention";3025 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Parole (Extended Supervision Orders) Amendment Bill (J4, 2 April 2009) [2009 s 7report]; and Christopher Finlayson Report of the Attorney-General under the New Zealand Bill ofRights Act 1990 on the Parole (Extended Supervision Orders) Amendment Bill (J4, 27 March2014).26 2009 s 7 report, above n 25, at [5] (footnote omitted). Whether or not the original ESO regimepermitted electronic monitoring appears to have been a matter for debate, and is addressed by theAttorney-General in his report at [5], n 3.27 At [6]. Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA).The Court noted at [57]–[59] that the Crown had not actively sought to rely on a s 5 justificationand reserved the question of whether it could or should make a declaration of inconsistency forfurther consideration. That issue was determined in the Court's later judgment: Belcher v ChiefExecutive of the Department of Corrections [2007] NZCA 174. No declaration was made.28 At [12].29 At [13]–[16].30 Referring to Lawless v Ireland (1961) 1 EHRR 15 (ECHR) at [14]; and Convention for theProtection of Human Rights and Fundamental Freedoms ETS 5 (opened for signature 4 November1950, entered into force 3 September 1953).(b) recent decisions of the House of Lords relating to control ordersrestricting suspected terrorists have held that home detention of14 hours or more per day is a detention which, based solely on risk tothe public, is arbitrary and in breach of art 5 of the EuropeanConvention on Human Rights; and(c) the United States Supreme Court has upheld a civil commitment regimefor precautionary detention of sexually violent predators, but only onthe basis of proof of a further element of mental illness.31[43] Then, the Attorney-General said:18. The powers to detain proposed in this Bill are separate from thesentencing process. They lie within the usual discretion of the Parole Boardunder s 15 of the Parole Act 2002 and the actual extent of the detentionimposed on any offender will not be subject to ordinary appeal rights.19. Further, as noted in paragraph 9, a sentencing court in each case hasnot ordered preventive detention for these offenders. Even if the regime is notregarded as penal (and so the double jeopardy principle does not apply), toimpose a further detention where the sentencing court has already declined todo so is inherently disproportionate and so arbitrary.20. For these reasons I conclude the new power to impose residentialrestrictions after 12 months also raises apparent inconsistencies with s 22 ofthe Bill of Rights Act as authorising arbitrary detention.[44] The Attorney noted that it seemed possible for the important objectives of theBill to be achieved in a rights consistent manner:32 through use of the preventive detention regime or through amendment tothe Sentencing Act 2002 to allow courts to impose an extended parole periodas part of the sentence following conviction for specific offending.[45] He noted that it remained unclear whether a breach of s 22 was capable ofjustified limitation but did not consider it necessary to determine that point given thepossibility of achieving the Bill's goals in a rights consistent way.3331 Referring to Kansas v Hendricks 521 US 346 (1997) at 358.32 At [22]. He goes on to say "[t]his is broadly the scheme which was adopted in Canada".33 At [21], n 13.[46] All that being said, however, the present appeal is not the vehicle for addressingsuch NZBORA concerns. The courts have no power to decline to apply a statute onthe grounds that it infringes any provision of the NZBORA. That is clear from s 4 ofthat Act. The same is true of the international instruments on which Mr Jeffries relies.[47] While it could be argued that such an infringement should count against theimposition of an electronic monitoring condition if there were any doubt as to itsnecessity, this appeal is not concerned with conditions. As we have said, they arematters for the Parole Board, not for the sentencing court that imposes the ESO. Andalthough in some different form of proceeding a declaration of inconsistency might besought that could not directly lead to the quashing of the ESO or the removal ofMr Jeffries' bracelet. So while we acknowledge the genuineness of, and authority for,Mr Jeffries' rights concerns they can have no bearing on the present appeal.The application for an ESO is overridden by the Parole Board's release conditions[48] Mr Jeffries' last appeal point ([26(f)] above) is, we think, answered by ouraccount of the process leading to the imposition of the ESO and the special conditionsin his case. It seems to be based on a misunderstanding of that process. But by wayof summary:(a) the ESO application was made before Mr Jeffries was released fromprison, in accordance with the timeframes in the PA;(b) upon his release, the release conditions imposed by the Board operatedin tandem with the conditions of Mr Jeffries' bail (which includedelectronic monitoring) pending the determination of the ESOapplication;(c) the ESO was imposed by the sentencing Court (after the expiry ofMr Jeffries' release conditions) in accordance with the PA;(d) when the ESO was made, interim special conditions (which includedelectronic monitoring) were imposed by the sentencing Court inaccordance with the PA; and(e) final special conditions (which included electronic monitoring) weresubsequently imposed by the Parole Board, in accordance with the PA.[49] There is, accordingly, nothing in this last ground of appeal.Result[50] Mr Jeffries was eligible for an ESO and met the statutory criteria. It was opento the District Court to conclude he was at high risk of committing a further relevantoffence such that an ESO could be imposed. None of the matters raised on appeal byMr Jeffries is capable of altering that conclusion.[51] There was no error in the decision to impose an ESO.[52] The application for an extension of time is granted.[53] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent