PORI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 407 [30 August 2023]

PORI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 407[30 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA589/2021[2023] NZCA 407BETWEEN TOMMY APERA PORIAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 27 April 2023 (further submissions received 12 May 2023)Court: Cooper P, French and Brown JJCounsel: M Starling and P N Allan for AppellantC J Boshier for RespondentJudgment: 30 August 2023 at 3.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Under s 8 of the Public Safety (Public Protection Orders) Act 2014(the PPO Act), the Chief Executive of the Department of Corrections may apply tothe High Court for a public protection order (PPO) against a person who meets thethreshold for such an order on the ground that there is a very high risk of imminentserious sexual or violent offending by the person. The Chief Executive made such anapplication in respect of Mr Pori.[2] Where a Court is satisfied that it could make a PPO against a respondent but itappears to the Court that the respondent may be mentally disordered or intellectuallydisabled, s 12(2) of the PPO Act provides:The court may, instead of making a public protection order, direct thechief executive to consider the appropriateness of an application in respect ofthe respondent under section 45 of the Mental Health (CompulsoryAssessment and Treatment) Act 1992 or under section 29 of the IntellectualDisability (Compulsory Care and Rehabilitation) Act 2003.In a judgment dated 25 June 2020 (the first judgment), Dunningham J directedthe Chief Executive to consider the appropriateness of an application under ss 45or 29.1[3] Subsequently the High Court was advised that the Chief Executive wished toproceed with the PPO application. In a judgment dated 3 September 2021(the second judgment), Dunningham J made a PPO in respect of Mr Pori.2 Mr Poriappeals that decision.[4] Although the appeal is ostensibly against the decision to make the PPO, as weexplain below the focus of Mr Pori's complaint is the alleged inadequacy of theprocess adopted by the Chief Executive in response to the Judge's direction unders 12(2) in the first judgment.1 Chief Executive of the Department of Corrections v Pori [2020] NZHC 1446 [First judgment]at [62].2 Chief Executive, Department of Corrections v Pori [2021] NZHC 2305 [Second judgment] at[100].Context for the appealMr Pori[5] Mr Pori, who is in his early 60s, was born in the Cook Islands. He wasconvicted of a number of criminal offences in the Cook Islands, including rape andassault on a child during a sexually motivated break-in of a house at night.[6] In 2006, in New Zealand, Mr Pori entered a nine-year-old girl's bedroom andsexually offended against her by digitally penetrating her. Following completion of afive-year sentence for that offending, in 2011 an extended supervision order (ESO)was imposed on Mr Pori. Although that ESO had not expired, in 2017 theChief Executive sought a new ESO with a direction for intensive monitoring (IM) forthe maximum statutory period of 12 months. The new ESO was made for seven yearsso as not to extend the total time that Mr Pori would be subject to an ESO.3 At thesame time the Court made an order requiring the imposition of an IM condition for aperiod of 12 months.4The PPO application[7] On 28 May 2020 the Chief Executive applied under s 104 of the PPO Act fora PPO in respect of Mr Pori. He also sought an order pursuant to s 107 that Mr Poribe subject to an interim detention order (IDO), to have effect until the application fora PPO could be heard, and an order under s 85 that Mr Pori be detained in a prisoninstead of in a residence.[8] In the first judgment, the Judge found that Mr Pori met the jurisdictionalthreshold for the imposition of a PPO (and therefore an IDO) set out in s 7(1)(b) ofthe PPO Act.5 The Judge was also satisfied, at least on a provisional basis, thatMr Pori met the threshold for such an order because he was at very high risk ofimminent serious sexual offending, having regard to the four behavioural3 Department of Corrections v Pori [2017] NZHC 3082 at [31]. Pursuant to s 107P(1) of theParole Act 2002, time had ceased to run on the 2011 order during the time in which Mr Pori wasimprisoned for subsequent offending. As such, the 2011 order was not due to expire until 2024.4 Department of Corrections v Pori, above n 3, at [34]–[36].5 First judgment, above n 1, at [11].characteristics set out in s 13(2) of the PPO Act.6 The Judge granted the applicationfor an IDO and ordered that it be served at the Matawhāiti residence, located on thegrounds of Christchurch Men's Prison, which is a purpose-built facility designed tohouse individuals who are subject to a PPO.7The s 12(2) direction[9] During the hearing of the IDO application concerns were raised aboutMr Pori's mental health and intellectual ability, raising the possibility that under s 12of the PPO Act Mr Pori should be subject to care and supervision under differentlegislation. For that reason the Judge directed the Chief Executive to consider theappropriateness of an application in respect of Mr Pori under s 45 of the Mental Health(Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act) or unders 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003(the IDCCR Act).8[10] The case on appeal did not contain documentation evidencing the steps takenby the Chief Executive consequent upon the Judge's direction under s 12(2) ofthe PPO Act. Following discussion at the hearing of the appeal, in response to ourrequest Ms Boshier (who appeared for the Chief Executive) filed a memorandum dated5 May 2023 in which she explained what had transpired following that direction:93. From the Court record, it is apparent:a. Following the 24 June 2020 hearing for an interim detentionorder, reports were received by the Department from:i. Elizabeth Waugh (in relation to whether Mr Pori metcriteria under the [IDCCR Act]); andii. Dr Rudi Kritzinger (in relation to whether Mr Porimet the criteria under the Mental Health Act).b. The Department had already been exploring options underthe IDCCR and Mental Health Acts, prior to the s 12direction. Ms Waugh's second report was commissioned bythe Department prior to June 2020, and Ms Waugh then6 At [12], [28] and [33]–[34].7 At [61].8 At [62].9 Footnotes omitted.instructed Dr Kritzinger. Dr Kritzinger, in his report,references Ms Waugh's referral letter, dated 29 May 2020.c. These reports were filed with the Court alongsidea memorandum of counsel for the Chief Executive dated31 July 2020.d. The matter was called before Van Bohemen J on3 August 2020. Counsel appearing for the Chief Executiveadvised the Court that, the reports having been received andconsidered, the application for the PPO was to continue.His Honour's Minute records:[7] Mr White, who appeared for theChief Executive at the call, said that production of thereports referred to in Ms Boshier's memorandum hadnot changed the Chief Executive's intention to seeka PPO because there were difficulties about whereMr Pori could be safely cared for if orders weresought under other legislation. However, theChief Executive was continuing to assess the variousoptions.4. Counsel is conscious that the instructions received fromthe Department are not on the court file. However, for completeness,it can be confirmed:a. The Chief Executive was updated via email on themaking of the interim detention order and provided withDunningham J's judgment on 25 June 2020;b. A meeting was then held between the Chief Executive andSteven Rendall, Principal Advisor from the NationalHigh Risk Team, on 30 June 2020; andc. Instructions were received which resulted in counsel's31 July 2020 memorandum and the confirmation at the3 August 2020 hearing that the application would proceed.The judgment under appeal[11] The Judge recorded that since the making of the IDO evidence had beenprepared on whether Mr Pori met the criteria for being the subject of an order underthe Mental Health Act or the IDCCR Act and, if so, whether that was preferable to himbeing made subject to a PPO.10 She noted that the evidence concluded that Mr Poridid not have an intellectual disability, as defined in the IDCCR Act, but was of10 Second judgment, above n 2, at [14].low average intelligence. However there was some evidence he suffered from a"mental disorder" as defined in the Mental Health Act.11[12] The key issue for determination identified by the Judge was whether it wasmore appropriate to:(a) direct the Chief Executive pursuant to s 12 of the PPO Act to make anapplication under s 45 of the Mental Health Act; or(b) make a PPO which would effectively retain the status quo.12[13] The Judge first considered whether Mr Pori met the criteria for the impositionof a PPO. She noted that he met the threshold test in s 7(1)(b) of the PPO Act as hewas over the age of 18 and subject to an ESO with IM.13 She proceeded to addresseach of the four behavioural characteristics set out in s 13(2), concluding that all thosecharacteristics were present.14 The Judge concluded that given the unanimity of theexpert opinion, supported by evidence of ongoing offence-paralleling behaviour evenwhile in highly supervised environments, she had no hesitation in finding Mr Poriposed a very high risk of imminent serious sexual offending.15[14] The Judge then turned to address the evidence concerning whether Mr Porisuffered from a mental disorder. She concluded:[61] On balance, the expert evidence is that Mr Pori does meet the criteriain the Mental Health Act of having a "mental disorder" and I accept thatconclusion. Consequently, I need to consider whether I should direct theChief Executive to make an application under s 45 of the Mental Health Act,as a more appropriate response to the concerns raised by Mr Pori's behaviour,than making a PPO.[15] After a careful review of the submissions of counsel and the expert evidence,the Judge concluded there was no obvious benefit to Mr Pori being considered for anorder under the Mental Health Act.16 The Judge declined to direct the Chief Executive11 At [14].12 At [15].13 At [16].14 At [20]–[39].15 At [49].16 At [95].to make an application under the Mental Health Act,17 and proceeded to make a PPOwhich was to be served at Matawhāiti.18The evolution of the appeal[16] The notice of appeal against the second judgment, dated 29 September 2021,specified the following ground of appeal:[T]he High Court erred by declining to direct the chief executive of theDepartment of Corrections to consider the appropriateness of an applicationin respect of the respondent under section 45 of the Mental Health(Compulsory Assessment and Treatment) Act 1992 or under section 29 of theIntellectual Disability (Compulsory Care and Rehabilitation) Act 2003 unders 12 of the Act.A judgment was sought on appeal quashing the PPO and directing the Chief Executiveto consider an application under s 12 of the PPO Act.[17] In Mr Pori's original submissions dated 21 March 2023 it was contended thatthe appeal essentially boiled down to how the discretion available to the Court unders 12 ought to be approached. It was submitted that, because Mr Pori is mentallydisordered, the High Court should have "directed" pursuant to s 12(2) that theChief Executive apply under s 45 of the Mental Health Act and have that processfollowed prior to deciding whether a PPO should issue.[18] However the Chief Executive's submissions of 4 April 2023 drew attention tothe fact that in Chisnall v Attorney-General,19 which was released approximatelytwo and a half months after delivery of the second judgment, this Court ruled that, ifthe Chief Executive decides that a s 45 application would not be appropriate, there isno power for the Court to nevertheless "direct" that an application be made. The Courtsaid:20[159] The principle stated in s 5(c) is that a PPO should not be imposed ona person who is eligible to be detained under the statutes applicable in the caseof mentally disordered or intellectually disabled persons. This merely reflectsthe power given by s 12(2) of the Act for the Court to order the Chief17 At [99].18 At [100]–[101].19 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484.20 Footnotes omitted and emphasis added.Executive to consider making an application under those statutes. That poweris exercisable where the Court is satisfied that a PPO could be made against arespondent, and it appears to the Court that the respondent may be mentallydisordered or intellectually disabled. But the fact that such diversion ispossible does not assist in the assessment of the nature of a PPO when itis made. Further, the Court has no power to direct the Chief Executive tomake an application under the relevant statutes. The Chief Executive maychoose not to do so, in which case we infer there could be a further applicationfor a PPO. In the meantime, the respondent would remain subject to aninterim detention order.[19] A supplementary submission for Mr Pori dated 13 April 2023 accepted that theapproach contended for in the original submissions was in error in two respects:i. It is now accepted that the Court did in fact make a s 12 referral earlieron in the process; andii. It is further accepted that s 12 does not empower the Court to directthe chief executive to make an application under s 45 [of the MentalHealth Act] only to direct that they consider making such anapplication.[20] It was submitted for Mr Pori that the preferred interpretation of s 12 (said to beconsistent with Chisnall) is:i. If, pursuant to s 12(2), the Court directs the Chief Executive to considerthe appropriateness of an application under s 45 then that considerationmust properly take place; andii. Given the importance of the decision, the decision of theChief Executive is likely to be amenable to Judicial Review (or at leastrequire some sort of process to take place); andiii. The Court ought not proceed to make a final decision on whether a PPOshould issue without being first satisfied that [its] direction has beencomplied with properly.[21] It was Mr Pori's case that the Chief Executive's process had miscarried for thereason that no formal decision was ever made on the appropriateness of an applicationunder s 45 of the Mental Health Act, notwithstanding that the Chief Executive wasdirected by the Court to consider it.Issue on appeal[22] With the benefit of the supplementary submission for Mr Pori, the oralargument at the hearing and the written submission in response to Ms Boshier'smemorandum, we consider that the primary issue on the appeal reflects the propositionin item (iii) of Mr Pori's interpretation of s 12,21 which we would rephrase in this way:Having made a direction under s 12(2) of the PPO Act, does the High Courthave an obligation to be satisfied that the Chief Executive has given properconsideration to making an application under s 45 of the Mental Health Act ors 29 of the IDCCR Act?[23] However, before addressing that question, we will first consider as apreliminary issue the nature of the application, purportedly pursuant to s 12, whichthe Judge addressed in the second judgment.A preliminary issue[24] In the light of Chisnall it is now common ground that the High Court does nothave jurisdiction to direct the Chief Executive to "make" an application under eitherss 45 or 29. The Court's power is limited to directing the Chief Executive to "considerthe appropriateness" of such an application. However it appears to be the case that atthe hearing in July 2021 both parties assumed that the Court had the power to directthat an application in fact be made. Certainly the judgment reads as if the Judge wasof that view.[25] As earlier mentioned,22 having noted the nature of the direction in the firstjudgment, the Judge identified the key issue for determination in the second judgmentas including whether it was appropriate to "direct" the Chief Executive "to make anapplication under s 45".23 Then, in the course of considering whether there was anadequate alternative option to a PPO, the Judge stated:[61] On balance, the expert evidence is that Mr Pori does meet the criteriain the Mental Health Act of having a "mental disorder" and I accept thatconclusion. Consequently, I need to consider whether I should direct theChief Executive to make an application under s 45 of the Mental Health Act,as a more appropriate response to the concerns raised by Mr Pori's behaviour,than making a PPO.21 At [20] above.22 At [12] above.23 Second judgment, above n 2, at [15].[26] Subsequently the Judge described Mr Pori's application as seeking sucha direction:[84] This leaves the alternative proposed on Mr Pori's behalf, of directingthe Chief Executive to make an application under s 45 of the MentalHealth Act. The Chief Executive submits that a compulsory treatment orderunder that Act is not available for Mr Pori and would, in any event, result ina placement which would be significantly more restrictive for him.Finally, in the Judge's conclusion, reference was again made to a power to direct theChief Executive to make an application under the Mental Health Act pursuant to s 12of the PPO Act.24[27] In the course of oral submissions Ms Boshier contended that the Judge'sstatements referred to above were simply instances of imprecise terminology.She suggested that, contrary to the wording of the judgment, the Judge was notentertaining a direction that the Chief Executive "make" an application but was merelyrevisiting on a second occasion a potential direction that the Chief Executive"consider" the making of such an application.[28] We are unable to accept that interpretation of the judgment. When referring tothe direction made in the first judgment, on two occasions the Judge explicitlydescribed the nature of the direction as being to "consider the appropriateness" of anapplication under the other statutory provisions.25 By contrast, we consider that thedirection which the Judge had in contemplation in the second judgment was a directionthat the Chief Executive "make" an application. Indeed that was the order she wasexpressly invited by Mr Pori to make. Finally, we read the Chief Executive's writtensubmissions as recognising that all parties proceeded on the footing that the Court wasempowered to direct that an application under the Mental Health Act should actuallybe made.[29] For these reasons we consider that in the second judgment the Judge didentertain the prospect of a direction that the Chief Executive "make" an applicationunder s 45 of the Mental Health Act. As both parties now accept,26 that was not an24 At [99].25 At [13] and [54].26 See [24] above.order which the Judge had jurisdiction to make. In the event, however, the Judgedeclined to make such a direction. In those circumstances it is unnecessary forthis Court to make any order in respect of that aspect of the judgment under appeal.Before determining a PPO application must the High Court be satisfied that theChief Executive has complied with any relevant s 12(2) direction?[30] As noted above,27 Mr Pori's preferred interpretation of s 12 comprised threepropositions:i. If, pursuant to s 12(2), the Court directs the Chief Executive to considerthe appropriateness of an application under s 45 then that considerationmust properly take place; andii. Given the importance of the decision, the decision of theChief Executive is likely to be amenable to Judicial Review (or at leastrequire some sort of process to take place); andiii. The Court ought not proceed to make a final decision on whether a PPOshould issue without being first satisfied that [its] direction has beencomplied with properly.[31] As to the first, it is self-evident that if the Court gives a direction tothe Chief Executive under s 12(2) then the Chief Executive must give consideration tothe appropriateness of an application under ss 45 or 29.[32] Unfortunately we have not had the benefit of full submissions on the secondproposition. We make clear that that is not the fault of counsel but simply theconsequence of the way this appeal has evolved. In these circumstances it is notappropriate to express even a provisional view. Nor is it necessary to do so in light ofour view on the third proposition, to which we now turn.[33] There is no express requirement in the PPO Act for the Chief Executive tomake a report to the High Court concerning the process of consideration undertakenin response to a direction by the Court under s 12(2). However if, followingappropriate consideration of the potential applications, the Chief Executive concludesthat it is appropriate to maintain the PPO application, we consider that the27 At [20] above.Chief Executive must inform the Court of the reasons for that decision in sufficientdetail to satisfy the Court that pursuit of the PPO application is the appropriate course.[34] That is what transpired in this case. We have noted above the steps takenfollowing the direction in the first judgment.28 In the second judgment the Judgeaddressed the Chief Executive's explanation in this way:[55] In a memorandum to the Court dated 31 July 2020, Ms Boshier, forthe Chief Executive, noted that:(a) Mr Pori had been assessed, a neuropsychiatric reportcompleted by Dr Rudi Kritzinger, and a copy of that providedto counsel for Mr Pori;(b) an opinion had been obtained from Ms Waugh, a clinicalpsychologist, regarding whether Mr Pori meets the criteria ofthe IDCCR;(c) while Mr Pori had been assessed as not meeting the criteria ofthe IDCCR Act, the report revealed complex issues.[56] Dr Kritzinger's report addressed the applicability of the Mental HealthAct to Mr Pori's circumstances. In it, he agrees with Ms Waugh's assessmentthat Mr Pori suffered "significant cognitive impairments", and there was adeterioration in the more recent neuropsychological profile in 2019 comparedto the earlier assessment. A recent MRI demonstrated he suffered a numberof acquired brain injuries. However, in terms of the possibility that Mr Poriwould qualify for an order under the Mental Health Act, Dr Kritzingerconsidered the cognitive impairments were not indicative of an underlyingpsychosis or mood disorder and so "there is probably not a role for the MentalHealth Act from a treatment perspective". Furthermore, given "thebehavioural and cognitive impairments Mr Pori presents with are due tosignificant previous brain injuries and therefore most likely enduring and notamenable to psychological and psychopharmacological interventions", suchan order was not warranted. [35] The Judge also referred to the evidence of Dr Monasterio for Mr Pori:[85] Dr Monasterio gave evidence that while Mr Pori may meet the testunder the Mental Health Act for a mental disorder, there was no secure orhighly specialised neuropsychiatric facility that was able to provide thetherapeutic environment required for the treatment of his conditions.In Dr Monasterio's opinion: it is unlikely that he would be made subject to a compulsorytreatment order of the Act that would detain him in hospital for anysubstantial period because the facilities that are available for him tobe detained to are not going to be substantially beneficial for the28 At [10] above.management of his condition, that's the difficulty. he is unlikely tobe detained long-term subject to that order. in my view he isunlikely to be detained subject to the Mental Health Act as he ispresenting at the moment.[36] The Judge concluded29 that the evidence clearly established that Mr Pori'scondition was not amenable to treatment and, as Dr Monasterio explained, he wasunlikely to be detained subject to the Mental Health Act.30 Hence the Judge proceededto determine the PPO application.[37] In our view the process followed in this case demonstrates that the provisionby the Chief Executive to the Court of an appropriate explanation for the decision toproceed with the PPO application constitutes both an appropriate safeguard for and alegitimate precursor to progressing with a PPO application.[38] In conclusion we consider that, on the filing of the memorandum of counsel of31 July 2020 and the subsequent confirmation at the 3 August 2020 hearing of theChief Executive's view that it was preferable to proceed with the PPO application, theproper course for the Court was to determine that application. The Court's decision tomake a PPO is not susceptible to challenge on the ground that there was a failure bythe Court to be satisfied that its s 12(2) direction had been appropriately acted upon.Result[39] The appeal is dismissed.[40] As the appellant is legally aided, there is no order as to costs.Solicitors:Raymond Donnelly & Co, Christchurch for Respondent29 Albeit in the course of considering whether to make a further s 12(2) direction.30 Second judgment, above n 2, at [90].