KERR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZHC 1966

KERR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZHC 1966 [10 August2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2016-409-000149[2022] NZHC 1966UNDER the Parole Act 2002IN THE MATTER of an application to cancel an ExtendedSupervision OrderBETWEEN SEAN MARK KERRApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 10 August 2022(On the papers)Appearances: A J Bailey for ApplicantP A Currie for RespondentJudgment: 10 August 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 10 August at 10.30 am pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The applicant, Sean Mark Kerr, is subject to a 10-year extended supervisionorder (ESO) which commenced on 28 September 2017.[2] In January 2021, he filed an application to cancel the ESO pursuant to s 107Mof the Parole Act 2002 (the Act). That application was opposed by the respondent.[3] Following a defended hearing I issued a decision, dated 20 September 2021, inwhich I declined Mr Kerr's application.[4] Mr Kerr has now filed a further application for cancellation of his ESOpursuant to s 107M of the Act. This time the respondent does not oppose Mr Kerr'sapplication.The relevant legislation[5] Section 107M(4) of the Act provides:107M Sentencing court may cancel extended supervision order(4) [The sentencing court may order the cancellation of an extendedsupervision order only if the applicant satisfies the court, on the basisof the matters set out in section 107IAA, that the offender posesneither a high risk of committing a relevant sexual offence, nor a veryhigh risk of committing a relevant violent offence, within theremaining term of the order.]Legal developments since my decision of 27 September 2021[6] Two months after the issue of my decision, the Court of Appeal judgment ofChisnall v Attorney-General was released.1 It declared the imposition of any ESO hadnot been shown to be demonstrably justified under the New Zealand Bill of Rights Act1990 and commented:1 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484.[218] ESOs and PPOs are imposed on persons nearing the end of thesentences imposed on them by the courts in response to their criminaloffending, applying the purposes and principles of sentencing set out in theSentencing Act including the important purpose of protecting the communityfrom the offender. The restrictions which then flow from both ESOs and PPOsare potentially very severe, and in the case of PPOs can amount to indefinitedetention. This is punishment, in the absence of trial and conviction for afurther offence. It is a marked departure from the legal order reflected ins 26(2) of the Bill of Rights Act.[220] We do not consider it is an adequate response to say, in assessingwhether the limits on the right contained in the legislation have beendemonstrably justified, that orders will not be made in individual caseswithout a full assessment by judicial officers. In essence, that reduces the s 5analysis to a case by case consideration without asking the essential questionof whether the ESO and PPO regimes represent reasonable limits of the s 26(2)right. That is the question raised by s 3 of the Bill of Rights Act which appliesthe Act's provisions to acts done by the legislative branch of government, aswell as the other branches. To say the Acts may be able to be applied in arights-compliant way does not answer the central question, which is whetherthe relevant provisions of the Parole Act and the PS (PPO) Act delineateregimes that limit rights in a way, and to an extent, that has been demonstrablyjustified.[223] Regarding the ESO regime, as in Belcher, we are unable to findjustification simply on the basis of the importance of the problem thelegislature seeks to address and the fact that it has chosen to enact the ESOregime in a particular form. The most concerning aspects of the regime arethe significant restrictions of movement and association, electronicmonitoring and the potential for detention at home that remain features of theESO regime, as summarised above. Since Belcher, the coverage of the regimehas been extended to a wider class of offenders, and there may now berepeated 10-year extensions of ESOs. The imposition of ESOs as a secondpenalty without trial and conviction for a further offence is a limitation on thes 26(2) right that has not been demonstrably justified on the material beforethe Court.(footnotes omitted)[7] The subsequent decision of the Court of Appeal in R v Chief Executive of theDepartment of Corrections dealt with a (15-year) ESO review, in which the Courtupheld a finding that the appellant still met the statutory criteria for the making of anESO.2 Despite that finding, it nevertheless went on to say:32 R v Chief Executive of the Department of Corrections [2022] NZCA 225.3 At [53].We accept the submission of R that consequent upon Chisnall, thecontinuation of the ESO needs to be clearly justified. Whilst that has alwaysbeen the case, the declarations of inconsistency made by the Court emphasisethe need for careful scrutiny. In this regard we note Chisnall holds that s 26(2)of the NZBORA (the second penalty provision) is capable of being subject toa reasonable limit. "Strong justification" will, however, be required, and thataccordingly is the lens through which we assess whether the Judge erred inconfirming the order.(footnotes omitted)[8] Subsequent to that decision, the Court of Appeal in Wilson v Chief Executiveof the Department of Corrections,4 in relation to a decision which imposed an ESO,also adopted the "strong justification" approach as described in R v Chief Executive ofthe Department of Corrections.5Discussion[9] I have the benefit of a recent report from departmental psychologistMs Falconer Beach dated 27 June 2022, which assesses Mr Kerr's risk to have reducedsince my decision dated 20 September 2021. She reports he is making progress in thecommunity and his behaviour over the past year has been consistent with him beingon a "persistence pathway".[10] It is evident Mr Kerr has continued to demonstrate an ability to regulate hisbehaviour and emotions and he appears to have internalised strategies to do this. Heis compliant. He has moved towards adult independence in terms of employment andbeing able to transport himself.[11] The evidence satisfies me that Mr Kerr has not recently displayed either aproclivity or a predilection to offend sexually against children, even in the context ofexploring avenues for his sexual needs.[12] Finally, Mr Kerr has a network of both formal and informal supports aroundhim which he uses appropriately, and he independently develops safety plans to keephimself safe from offending.4 Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289.5 At [20].[13] Having regard to both the developments in the law and the currentpsychological assessment by Ms Falconer Beach, I am satisfied that Mr Kerr posesneither a high risk of committing a relevant sexual offence, nor a very high risk ofcommitting a relevant violent offence, within the remaining term of the order.Result[14] The extended supervision order is cancelled.Doogue JSolicitors:Crown Solicitor, ChristchurchCC:A Bailey, Christchurch