THE CHIEF EXECUTIVE, DEPT OF CORRECTIONS, v PALMER [2022] NZHC 174

THE CHIEF EXECUTIVE, DEPT OF CORRECTIONS, v PALMER [2022] NZHC 174 [14 February 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-000033[2022] NZHC 174THE CHIEF EXECUTIVE,DEPARTMENT OF CORRECTIONS, WELLINGTONvTRACY WILLIAM PALMERHearing: On the papersAppearances: C E R Power for the ApplicantR G R Eagles for the RespondentJudgment: 14 February 2022JUDGMENT OF NATION J[1] On 1 July 2010, Mr Palmer was sentenced in the District Court at Invercargillto a sentence of eight years and eight months' imprisonment on 25 charges of serioussexual offending. On 20 December 2011, he received sentences for further sexualoffending of three years and ten months' imprisonment, cumulative on the earliersentences imposed in the District Court. The statutory release date for those sentenceswas 5 February 2022.[2] On 26 August 2021, the Chief Executive filed an application for an ExtendedSupervision Order (ESO) under s 107F of the Parole Act 2002. Mr Palmer filed anotice of opposition.[3] On 15 September 2021, the Parole Board made a decision that Mr Palmer bereleased on parole on 13 October 2021 but would be subject to a range of specialconditions. However, the Board noted:An electronically monitored whereabouts conditions [sic] is not sought giventhe nature of his offending. Partial residential restrictions are proposed andaccepted and will be in place for three months following his release.[4] The Parole Board were aware that an application had been made for an ESOwhich they acknowledged would run its course.[5] The Parole Board directed that Mr Palmer's release on parole on 13 October2021 would be subject to standard release conditions until six months past sentenceexpiry date. They said Mr Palmer would also be subject to special release conditionsfor the same period (apart from the three month curfew).[6] The special conditions included a condition:To submit to electronic monitoring as directed by a Probation Officer andcomply with the requirements of partial residential restrictions. To remain atyour approved address between the hours of 9:30pm and 6:00am daily, unlessyou have the prior written approval of a Probation Officer, or as permitted bysection 33(4) of the Parole Act 2002.[7] On 11 January 2022, the Parole Board considered an application by theCommunity Probation Service to vary Mr Palmer's release conditions. The Boardsaid:2. At the present time Mr Palmer is subject to an electronically-monitoredcurfew which is set to expire on 12 January 2022. It was anticipated thathe would have an ESO hearing on 28 September 2021 in the High Court.For various reasons that hearing has not taken place but has now beenrescheduled for 2 February 2022.3. The specific variation is an extension of the electronically-monitoredcurfew from 12 January through to 5 February which will give time forthe High Court to consider the ESO application. Mr Palmer does notoppose that variation and written consent has been provided to the Board.He waives his appearance to attend the hearing. That is dated 6 January.Accordingly the variation is granted by consent, the electronically-monitored curfew will be extended to 5 February 2022. All of theconditions remain the same.[8] The application for an ESO was heard on 4 February 2022 in the High Courtat Dunedin. An ESO was made on that date to come into effect on 5 February 2022.[9] The parties had agreed to the making of an ESO for a period of three years. Asrequested by counsel for the Chief Executive, that order was made subject to standardconditions. The Chief Executive had not asked for any special conditions to beimposed. None were imposed. The standard conditions included a condition that MrPalmer not reside at any address which a Probation Officer had directed him not toreside at.[10] On 10 February 2022, by a memorandum from counsel, the Chief Executiveadvised the Court that special conditions attached to the respondent's parole had anend date of 5 February 2022. The Chief Executive, by memorandum, sought an orderunder s 107IA(1) of the Parole Act imposing on the respondent special conditions onan interim basis that the Board might impose under s 107K of the Act. The conditionssought would require Mr Palmer to be subject to electronic monitoring and to remainas his approved address between the hours of 9.30 pm and 6.00 am daily unless he hadthe prior written approval of a Probation Officer or was permitted to be away from theaddress by s 33(5) of the Parole Act.[11] The Chief Executive sought the order imposing special conditions on the basisit would usually take three to four months for ESO special conditions to be set by theParole Board. Attached to the memorandum was a letter from the Department ofCorrections with this information.[12] Section 107L(2A) states:(2A) Any special conditions (including any special conditions imposed undersection 107IA) to which the offender is subject when an extendedsupervision order comes into force continue in force—(a) until the date that is 3 months after the date on which the extendedsupervision order comes into force; or(b) if an application is made to the Board seeking the imposition ofspecial conditions under section 107K within that 3-monthperiod, until the Board—(i) imposes 1 or more of those conditions; or(ii) imposes any other special condition that the Board isentitled to impose under section 15; or(iii) declines to impose any special conditions.[13] Mr Eagles, counsel for Mr Palmer, filed a memorandum in response. Hereferred to a statement from Mr Riley, the psychologist who had been engaged for MrPalmer. Mr Riley suggested "the level of additional oversight considered necessary[to prevent further offending] may be relatively minimal". He also referred to astatement from Mr Berry, the psychologist who gave evidence for the Chief Executive,that "when [Mr Palmer] is released from prison, given his profile he will require amoderate to high level of external management and supervision". Mr Eagles said theCourt should not proceed on the basis it is a foregone conclusion that the Parole Boardwill agree to the imposition of special conditions, especially since Mr Palmer has hadan incident-free period since his release and reasons have not been provided as to whyextended special conditions are now necessary.[14] Mr Eagles submitted the Court should be hesitant about imposing conditionswhich might be completely unnecessary without the case being made out properly forthose conditions to be applied.[15] It was not suggested for Mr Palmer that the Court did not have jurisdiction tonow make the ESO of 4 February 2022 subject to the special conditions sought.[16] In response, Mr Power for the Chief Executive said, given the Board's decisionto impose special conditions as part of release was only four months ago, it is likelyon application the Board will continue to impose similar conditions as part of anextended supervision order.[17] Section 107K permits the Parole Board to impose any special condition that itis entitled to impose under s 15 at any time before an ESO order expires or is cancelled.Section 107K(3)(b) and (ba) state that any residential instructions and any requirementfor intensive monitoring may apply only within the first 12 months of the term of theESO.[18] On the information provided to me, in particular the decision of the ParoleBoard of 11 January 2022, it seems that, at the time the application for an ESO washeard on 4 February 2022, Mr Palmer was subject to an electronically monitoredcurfew, with the conditions as to residence and electronic monitoring specified by theParole Board to continue through to 5 February 2022.[19] Although the Parole Board said those conditions were to cease on 5 February2022, pursuant to s 107L(2A), any such special conditions would continue in forceuntil a date three months after the date on which the ESO comes into force or until theBoard considers an application seeking the imposition of special conditions under s107K which has been filed within that three month period.[20] I thus consider the residential curfew and electronic monitoring conditionsimposed by the Parole Board on 11 January 2022, pursuant to s 107L(2A), willcontinue in force for at least three months after the date on which the ESO came intoforce, 5 February 2022. That time will be extended if, during those three months, theChief Executive makes an application to the Parole Board for a further extension ofthe conditions.[21] There is no need for me to now impose the special conditions sought topreserve the status quo and I decline to do so. Whether and to what extent thoseconditions should continue will now be best determined by the Parole Board with allrelevant and up to date information available to it when the appropriate hearing can bearranged.[22] It would have been clear to Mr Palmer that this was the position if the ChiefExecutive had sought and obtained an order that the ESO made on 4 February 2022would be subject to the same special conditions. Mr Power said the need for this wasoverlooked.[23] I also add that, but for the provision in s 107L(2A), I would have imposed thespecial conditions as sought. Mr Palmer is to be commended with the way he hascomplied with all release conditions while on parole. But, the ESO was made and theduration determined on the basis he would continue to be under appropriate oversightfrom the Department of Corrections and the Parole Board.[24] I note the extension of the residential curfew and requirement for Mr Palmerto be subject to electronic monitoring, as referred to in the Parole Board's decision of11 January 2022, was made with the consent of Mr Palmer. Mr Eagles referred to theopinion of the psychologist Mr Berry that Mr Palmer would require "a moderate tohigh level of external management and supervision". Mr Riley had suggested the levelof additional oversight might be relatively minimal but that was after he had noted andthus assumed that Mr Palmer would "be on the Child Sex Offender register and wouldbe monitored by the Police, whether or not an ESO was imposed".[25] This is the assessment I have made as to the situation based on the papersbefore me. I reserve leave to either of the parties to be heard further on the matter ifeither wishes.Solicitors:RPB Law, DunedinEagles Eagles & Redpath, Invercargill