Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 (14 December 2017)

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UNDER	The Public Safety (Public Protection Orders) Act 2014 and the Parole Act 2002
IN THE MATTER OF	an application for a public protection order or an extended supervision order
BETWEEN	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Applicant
AND	MARK DAVID CHISNALL Respondent ATTORNEY-GENERAL Respondent to cross-application

Hearing:	4-8 December 2017
Appearances:	J Murdoch and S Wilson for Applicant T Ellis and G Edgeler for Respondent No appearance for Attorney-General at this stage of the proceeding
_Judgment:	_{14 December 2017}

On 14 December 2017 at 3.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2017] NZHC 3120 [14 December 2017]

[1] The applicant – the Chief Executive of the Department of Corrections – has applied for the following orders in respect of the respondent – Mr Chisnall:

(a) a public protection order (a “PPO”), pursuant to s 7, 8 and 13 of the Public Safety (Public Protection Orders) Act 2014 (the “Public Safety Act”), or, in the alternative;

(b) an extended supervision order (ESO), pursuant to s 107I of the Parole Act 2002 (the “Parole Act”), with an intensive monitoring condition pursuant to s 107IAC, and interim special conditions to apply until an application for special conditions can be considered by the New Zealand Parole Board pursuant to s 107IA.

[2] Mr Chisnall opposed the making of a PPO. Mr Ellis, appearing for Mr Chisnall, advised that the application for an ESO was not opposed, and that Mr Chisnall would consent to an intensive monitoring condition, and, subject to some amendments, the interim special conditions sought by the Chief Executive.

[3] An application for declarations of inconsistency has been filed by Mr Chisnall. He seeks orders declaring that s 13(1) of the Public Safety Act and s 107I(2) of the Parole Act are inconsistent with s 26 of the New Zealand Bill of Rights Act 1990, and that the manner and method of obtaining information for the psychological reports necessary to support an application for a PPO or an ESO breach his rights under the New Zealand Bill of Rights Act. This application is opposed by the Attorney-General. With the consent of all parties, it has been set down for separate hearing.¹

[4] In the course of the hearing before me, which was concerned only with the application for a PPO, Mr Ellis signalled that he may seek to amend the application for declarations of inconsistency, to allege further breaches of Mr Chisnall’s rights

[5] Mr Chisnall is 31 years old. He has spent most of his adult life in prison, following a series of convictions for sexual offending. His finite sentence came to an end on 27 April 2016.

[6] Earlier, in February 2016, the Parole Board had determined that Mr Chisnall should be released when a bed became available at Anglican Action, an approved community support centre in Hamilton. Mr Chisnall’s release was to be subject to him residing at Anglican Action, and abiding by special conditions requiring, inter alia, electronic monitoring and a curfew. For some reason, the offer of accommodation at Anglican Action was withdrawn shortly before Mr Chisnall’s planned release and as a result, the Parole Board revoked his parole on 6 April 2016.

[7] The Chief Executive then applied to this Court on 15 April 2016 for a PPO, or in the alternative an ESO, against Mr Chisnall. Interim orders were also sought to authorise Mr Chisnall’s ongoing detention until the substantive applications could be determined.

[8] On 22 April 2016, Fogarty J, in this Court, made an interim order authorising Mr Chisnall’s continued detention at the Leimon Villas self-care units within the perimeter fence of Christchurch Mens’ Prison.²This order was subsequently varied by consent to allow Mr Chisnall to be housed in a purpose-built facility for those subject to PPO’s, known as the Matawhāiti Residence, also within the perimeter fence of Christchurch Mens’ Prison.

[9] Mr Chisnall appealed to the Court of Appeal against the interim detention order. The appeal was dismissed on 19 December 2016.³Mr Chisnall then appealed with leave to the Supreme Court. It also dismissed his appeal.⁴

[10] The hearing before me was confined to the PPO application. Notwithstanding the application was in the alternative, s 107GAA of the Parole Act makes it clear that

_{the PPO application has priority. If the PPO application has not been
determined or}

²Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 784.

³Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620.

⁴Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114.

withdrawn, the Court “must not hear” the application for an ESO until the PPO application has either been declined, withdrawn, or cancelled as a result of a successful appeal.⁵

[11] At the conclusion of the hearing before me, the Chief Executive advised that he had no further evidence to offer in support of the ESO application. Nevertheless, I declined to hear submissions in regard to the ESO application, and advised the parties that I would afford them the opportunity to call further evidence and to make submissions in relation to the ESO application in the event that I decline to impose a PPO.

[12] There was inevitably some reference to the ESO application in the course of the hearing. One of the witnesses called by the Chief Executive, a Ms Laws, had prepared a report in relation to the ESO application only. There is significant overlap between the relevant provisions in the Public Safety Act and those in the Parole Act, and Ms Laws’ report was produced as a result. Further, there was discussion before me as to the appropriate “counterfactual”, which I was required to take into account when determining the PPO application. I refer to this further below at [89]-[93].

[13] At the time of the hearing before me, Mr Chisnall was still detained, pursuant to the interim detention order, at the Matawhāiti Residence. He chose to attend the hearing by audio-visual link.

[14] Mr Chisnall’s background was discussed by the Court of Appeal. Neither party took issue with its observations in this regard. I set them out as follows:⁶

[3] Mr Chisnall was born on 5 March 1986. The various reports that we will refer to in due course show that he had a troubled background. His mother found him to be a very difficult child and Mr Chisnall alleges that he suffered physical abuse as a child. He was described in the reports as being aggressive through kindergarten and school with regular involvement in assaults. He had learning difficulties. There were issues with drugs and he has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). There is also a reference in the reports to an occasion of a very serious assault on his mother when

⁶Chisnall v Chief Executive of the Department of Corrections, above n 3 (footnotes omitted).

Mr Chisnall broke her jaw and tried to strangle her. The reports disclose that when he was 10 he watched a pornographic movie in which women were raped and killed, which led to an interest in movies depicting rape and violence. Mr Chisnall has reported that he was sexually preoccupied from that age.

[4] In 2001 when he was 14 or just 15 he raped an eight-year-old girl in a park in a small Taranaki town. The offending was not at that point revealed and he was not sentenced in relation to this event until 31

[5] Some days after the offending against the eight-year-old girl, Mr Chisnall induced a seven-year-old boy to perform oral sex on him. He was immediately charged in relation to this offence. He was convicted of unlawful sexual connection and sentenced to one year and four months' imprisonment with leave to apply for home detention.

[6] While he was on bail for those offences he was convicted and discharged for assaulting a 20-year-old female stranger. The victim reported that Mr Chisnall had said to her “you are coming with me” and when she said no he hit her on the head with a stick. She managed to run away and find help. Mr Chisnall has consistently denied this attack had a sexual intent, and he was not formally charged with a sexual offence. In 2004 when Mr Chisnall was living with caregivers, he admitted to them that he had been peeping and peering at a woman in a hotel room. He reported experiencing anger and sexual preoccupation that led to his offending.

[7] In 2005 when Mr Chisnall was aged 18 he had been waiting by a park to be collected to go to work. He saw a woman in her early 20s running past him. He grabbed the victim from behind and, using physical force to silence her, attempted to force her to perform oral sex. When she refused Mr Chisnall became enraged and twisted her head forcing her to submit. He then raped her. She was left traumatised and injured. Mr Chisnall has acknowledged this offending and he says that he was stimulated by the violence involved. He pleaded guilty to this offending and was sentenced by Miller J to eight years' imprisonment, a sentence which took into account his guilty plea and youth. The Judge refused a Crown request that he be sentenced to preventive detention. He also declined to make a compulsory care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act

[8] In the course of Mr Chisnall's 11 years in prison there have been reported incidents of violence. He has attended various programmes. There have been some positive references but the reports also indicate continuing threatening and aggressive behaviour and sexual fixations.

(a) I was told that Mr Chisnall has admitted that he used violence on at least two occasions to recover debts.

(b) I received copies of case notes recording staff interaction with Mr Chisnall at the Matawhāiti Residence, covering the period 26 June 2016 to 27 October 2017.

2016, relating to Mr Chisnall’s treatment while he has been subject to the interim detention order.

I have considered these various additional materials in reaching my decision in relation to the PPO application.

[16] Some of the matters set out above, and some of the reports that I received, referred to unproven offending and/or to conduct that does not constitute an offence. It is permissible for health assessors to take such material into account when preparing reports for applications for ESO’s.⁷Notwithstanding the absence of a similar statutory provision in the Public Safety Act, I can see no reason why the position should be different when dealing with an application for a PPO. It would be illogical if the position were otherwise, and the Public Safety Act provides that the Court can receive as evidence any statement, document, information or matter that it considers relevant, even if it would not otherwise be admissible.⁸Evidence of unproven offending or of conduct that does not constitute an offence will very often be relevant to the matters the Court is required to address.

[17] The objective of the Public Safety Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual

⁷Parole Act, s 107F(3); And see, Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [42]; Holland v Chief Executive of the Department of Corrections [2017] NZSC 161 at [13]- [14] – dismissing appeal.

⁸Public Safety (Public Protection Orders) Act 2014, s 108(1); And see s 5(a) – the previous commission of an offence is only one of several factors the Court should consider.

or violence offences.⁹It is not the objective of the Act to punish persons against whom orders are made.¹⁰

[18] The Act contains a number of principles, which every person or Court exercising a power under the Act must have regard to. Those principles are set out in s 5. It provides as follows:

Every person or court exercising a power under this Act must have regard to the following principles:

(a) orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:

(b) a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:

(d) persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.

[19] There is a threshold which must be met before a PPO can be imposed. Relevantly, s 7 provides as follows:

(1) A person aged 18 years or older meets the threshold for the imposition of a public protection order if—

(i) is detained in a prison under a determinate sentence for a serious sexual or violent offence; and

(ii) must be released from detention not later than 6 months after the date on which the chief executive applies for a public protection order against the person;

(2) For the purposes of this Act, a person meets the threshold for a public protection order if the person meets the threshold at the time that the chief executive applies for that order against the person.

[20] Where this threshold is met, the Chief Executive can apply to this Court for a PPO on the ground that there is a very high risk of imminent serious sexual or violent offending by the person the subject of the application (the respondent).¹¹The Chief Executive must advise every victim of the respondent that the application has been made.¹²

[21] Where the Court is satisfied that it could make a public protection order against a respondent, but it appears to the Court that the respondent may be mentally disordered or intellectually disabled, the Court can direct the Chief Executive to consider the appropriateness of an application in respect of the respondent under s 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or under s 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

[22] The Court’s power to make a PPO is contained in s 13 of the Act. It provides as follows:

(1) After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—

(b) there is a very high risk of imminent serious sexual or violent offending by the respondent if,—

(i) where the respondent is detained in a prison, the respondent is released from prison into the 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

disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:

(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:

(c) absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):

[24] It was not in dispute that the threshold under s 7 for the making of a public protection order is met in respect of Mr Chisnall. He was due to be released from prison on 27 April 2016. The Chief Executive applied on 15 April 2016 for a PPO, naming Mr Chisnall as the respondent. At the time of the Chief Executive’s application, Mr Chisnall was detained under a determinate sentence for serious sexual offending, and the application was made within six months of his mandatory release date.

[25] I have noted above ss 5(c) and 12 of the Public Safety Act. It is clear that a

PPO should not be made in respect of a respondent who is eligible to be detained under

the Mental Health Act (Compulsory Assessment and Treatment) Act or the Intellectual

[26] In closing, Mr Ellis conceded that, on the materials now before the Court, there is no sufficient evidence on which I could properly conclude that Mr Chisnall is intellectually disabled. Nevertheless, given the statutory provisions, the seriousness of granting a PPO for Mr Chisnall, and the fact that doubts have been expressed about his intellectual abilities in the past, I considered the matter.

[27] There have been numerous observations made about Mr Chisnall’s mental and intellectual abilities over a lengthy period. I note the following:

2000. He considered that Mr Chisnall was intellectually disabled, and he diagnosed him with attention deficit hyperactivity disorder (ADHD).

(b) Mr Chisnall was further assessed by a Mr Williams, a psychologist, in March 2002. He recorded that then recent testing put Mr Chisnall in the borderline category of intellectual functioning.

(c) Dr Stokes Taylor assessed Mr Chisnall in May 2002. He noted the diagnosis of ADHD, and noted problems with anxiety and possible intellectual disability.

(d) Mr Chisnall was assessed on an in-patient basis at the regional secure unit at Porirua from 28 September through to 27 October 2005. His admission to that unit was under the Intellectual Disability (Compulsory Care and Rehabilitation) Act. He was assessed by a Dr Webb. She concluded that he had a mild intellectual disability, with IQ scores at the upper end of the intellectual disability range, and deficits in most areas of adaptive functioning. She concluded that Mr Chisnall was eligible for detention under the Intellectual Disability (Compulsory Care and Rehabilitation) Act but recommended that detention in prison was more likely to meet his needs than detention in a secure hospital setting.

(e) Dr Judson, a consultant psychiatrist, confirmed Dr Webb’s assessment in a separate report dated 25 October 2005. He commented that Mr Chisnall did not exhibit mental illness, but that he was intellectually disabled and that he had ADHD.

(f) Dian Birchall, a compulsory care coordinator for the Regional Intellectual Disability Care Agency, central North Island, reviewed Dr Webb’s and Dr Judson’s reports. She endorsed their recommendation that the Intellectual Disability (Compulsory Care and Rehabilitation) Act not be applied.

(g) Mr Bell, a psychologist, completed an individual care programme for Mr Chisnall in November 2005 as part of Dr Judson’s assessment. He commented that Mr Chisnall had a mild intellectual disability.

(h) Dr Judson completed a further report in February 2006. He found no evidence of mental illness, but commented that there was borderline to mild intellectual disability.

(i) When sentencing Mr Chisnall in relation to the 2005 offending, Miller J concluded that Mr Chisnall had an intellectual disability,¹³but that an order for his detention as a special care patient should not then be made. Instead, he sentenced Mr Chisnall to 8 years’ imprisonment.

(j) Mr Chisnall was assessed for eligibility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act in March 2009 by a psychologist, Neville Trainor. He found improvement in Mr Chisnall’s adaptive functioning, and concluded that he was doing well in prison. He did not consider that he was then eligible for detention under the Act.

(k) Mr Chisnall was seen by Forensic Mental Health Services in Auckland over the period March 2013 to late 2015. He was assessed on a number

¹³R v Chisnall HC Whanganui CRI-2005-083-806, 29 March 2006 at [2], [11]-[16], [24]-[40] and

of occasions by a Dr Gardner. Dr Gardner observed that Mr Chisnall presented with complex difficulties, and that they were difficult to make sense of. In a letter to the Parole Board in February 2014, Dr Gardner noted that ADHD was not an obvious clinical problem at that time.

(l) Mr Chisnall was further assessed by Amanda McFadden, a consultant clinical psychologist and specialist assessor, on 31 March 2015. She assessed Mr Chisnall using appropriate methodology. She obtained what is known as a “full-scale IQ of 82”, with a 95 per cent confidence interval – with his IQ ranging between 78 and 86. She considered that his verbal comprehension index was 93, that his perceptual reasoning index was 75, that his processing speed was 89, and that his working memory index was 83. She also assessed Mr Chisnall’s adaptive functioning. She acknowledged that Mr Chisnall offered a very complex presentation, and that he presented with features of autism spectrum disorder. She also considered that there were features of psychopathy present. Ms McFadden came to the conclusion that Mr Chisnall did not meet the criteria for a diagnosis of intellectual disability set out in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act. She did, however, conclude that Mr Chisnall presented with significant learning, social, emotional and behavioural difficulties, that had begun in his infancy.

[28] At the request of Mr Ellis made before the hearing, I directed that a registered clinical psychologist, Ms Sabine Visser, should assess Mr Chisnall and provide a report into his intellectual abilities. I asked her to advise whether or not she considers that Mr Chisnall suffers from an intellectual disability such that he is eligible to be detained under the Intellectual Disability (Compulsory Care and Rehabilitation) Act.

[29] Ms Visser delivered her report on 7 April 2017. After considering relevant materials, and testing, interviewing and assessing Mr Chisnall, she reached the following conclusions:

(a) Mr Chisnall’s cognitive ability is within the low average range. He has an IQ of 82 – with a 95 per cent confidence level.

(b) Mr Chisnall’s ability to understand and respond to verbally presented material and his non-verbal reasoning ability are in the low average range.

(d) Mr Chisnall’s working memory index (his ability to attend to verbally presented information, to process information in memory, and then formulate a response) is at the borderline range of functioning.

(e) Mr Chisnall’s processing speed (his ability to process simple routine visual information quickly and efficiently and to generally perform tasks based on the information) is in the average range.

[30] Ms Visser considered that Mr Chisnall’s neurocognitive functioning is more consistent with autism spectrum disorder than with an intellectual disability per se.

[31] Ms Visser’s overall conclusion was that it is likely that Mr Chisnall suffers from autism spectrum disorder. She also concluded that Mr Chisnall does not fulfil the criteria for a diagnosis of intellectual disability within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act. She noted that the criteria under that Act provide a cut-off at an IQ of 70 or less, and that even at the lowest part of his intellectual spectrum, Mr Chisnall’s IQ falls above this cut-off point. She did express the opinion that Mr Chisnall may suffer intellectual disability in accordance with revised criteria set out in a recent manual known as the Diagnostic and Statistical Manual of Mental Disorders – 5^thedition (“DSM-5”) published by the American Psychiatric Association. She accepted, however, that the definition in the

Intellectual Disability (Compulsory Care and Rehabilitation) Act has not changed since the new manual has become available.

(a) Dr Wilson, a registered clinical psychologist called by the Chief Executive, considered that Mr Chisnall is unlikely to meet the new DSM-5 criteria for intellectual disability, and noted that he does not meet the criteria currently contained in the Intellectual Disability (Compulsory Care and Rehabilitation) Act. In cross-examination, he also expressed the view that Mr Chisnall is not mentally ill under the Mental Health (Compulsory Assessment and Treatment) Act.

(b) Mr Berry, also a registered clinical psychologist called by the Chief Executive, noted the numerous assessments provided to him, which included the reports prepared by the various psychologists and psychiatrists which I have referred to above. He noted that only a few have mentioned the possibility that Mr Chisnall may have autism spectrum disorder, and that most of those have concluded that there was some doubt about their respective diagnoses. He noted that Ms Visser is the only expert to offer the view that Mr Chisnall does indeed have autism spectrum disorder. He concluded from his own assessment that Mr Chisnall does have specific learning disorders but that he does not have an intellectual disability. He accepted that Mr Chisnall is in the low average category of intellectual disability, agreeing with the assessments of Mr Chisnall’s intellectual disability made by others in this regard. He observed that their views are consistent with the impressions of Mr Chisnall that he formed while assessing him. He expressed the view that there could be several reasons which might suggest why Mr Chisnall tested poorly in earlier years. Mr Chisnall’s ADHD may have interfered with his earlier intellectual test results. Mr Chisnall may have intentionally under-performed in earlier tests. He recorded advice he had received from a psychologist at the Te Piriti Special Treatment Unit, (where Mr Chisnall was previously treated)

that Mr Chisnall had indicated that he did under-perform on previous tests. It was Mr Berry’s firm view that, based on his current level of functioning, Mr Chisnall is not intellectually disabled.

(c) Ms Laws, a registered psychologist called by the Chief Executive, commented in her initial report on various earlier reports into Mr Chisnall’s intellectual abilities. She also noted that his presentation is complicated by his low level of cognitive functioning and ADHD. She did, however, accept in her supplementary report that intellectual disability is not her area of expertise, and she felt unable to offer any comment on Ms Visser’s diagnosis.

(d) Dr Barry-Walsh, a forensic psychiatrist and specialist assessor appointed by the Court of Appeal,¹⁴stated that although he could not confidently exclude the diagnosis of autism spectrum disorder, his clinical impression was that it was unlikely that Mr Chisnall suffers from that disorder. He considered that the weight of evidence from earlier assessments is that Mr Chisnall is not intellectually disabled.

[33] Some of the witnesses were critical of the DSM-5 criteria referred to by Ms Visser. Dr Barry-Walsh described it as “a diagnostic system with a huge number of problems”. He considered it so flawed that he “wouldn’t touch it with a barge pole”. Mr Berry noted – somewhat less colourfully – that “it has not been universally adopted in New Zealand”. Ms Visser acknowledged in cross-examination that there are problems with DSM-5 and that some are reluctant to use it.

[34] I am bound by the statutory provisions contained in the Intellectual Disability (Compulsory Care and Rehabilitation) Act. Section 7 of that Act is based on the predecessor to DSM-5 – known as DSM-IV. Section 7 relevantly provides as follows:

(1) A person has an intellectual disability if the person has a permanent impairment that—

(2) Wherever practicable, a person’s general intelligence must be assessed by applying standard psychometric tests generally used by clinicians.

(3) For the purposes of subsection (1)(a), an assessment of a person’s general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed—

[35] It is clear from the evidence I received that Mr Chisnall is not currently eligible for detention under the Intellectual Disability (Compulsory Care and Rehabilitation) Act. No witness suggested to the contrary.

[36] With the exception of Dr Wilson, no witness commented in any detail on the provisions of the Mental Health (Compulsory Assessment and Treatment) Act.

[37] Section 12(2) of the Public Safety Act refers to the Court directing the Chief Executive to consider the appropriateness of an application under s 45 of the Mental Health (Compulsory Assessment and Treatment) Act. Section 45 provides for the assessment of a person detained to see if he or she is mentally disordered. The words “mentally disordered” are defined in the Act to mean, in relation to any person, an abnormal state of mind (whether or a continuous or intermittent nature), characterised by delusions, or by disorders of mood, or perception or volition or cognition, of such a degree that it –

(b) seriously diminishes the capacity of that person to take care of himself or herself.¹⁵

[38] I heard no evidence suggesting that Mr Chisnall is mentally disordered such as to render him eligible for application and then assessment under s 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Rather, Dr Wilson considered that he is not mentally ill. The same observation was made in October

[39] Having assessed all of the materials before me, I do not consider that either s

5(c) or s 12 of the Public Safety Act prevent a PPO order being made in respect of Mr

[40] I have set out s 13 of the Public Safety Act above – at [22]. Section 13(1) provides that the Court may make a PPO against a respondent, if it is satisfied on the balance of probabilities that there is a very high risk of imminent serious sexual or violent offending by the respondent. In order to make a finding of the requisite risk, s

13(2) requires the Court to be satisfied that the respondent exhibits a severe disturbance in behavioural functioning, established by evidence to a high level of various specified characteristics.

(a) to determine whether the respondent exhibits a severe disturbance in behavioural functioning, based on s 13(2) characteristics; and

(b) if the respondent exhibits such disturbance, to consider whether the respondent poses a very high risk of imminent sexual offending.

¹⁶Chief Executive of the Department of Corrections v Wilson [2016] NZHC 1081 at [29]; Chief

[43] In the context of ESO’s, the Court of Appeal has held – in relation to the word

The need to be “satisfied'' calls for the exercise of judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt. As this Court said in R v White (David) [1988] NZCA 55; [1988] 1 NZLR 264 at p 268 with reference to s 75(2), “The phrase `is satisfied' means simply `makes up its mind' and is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification” ...

[44] In a recent decision, Gendall J considered that, in the PPO context, this approach must be “tempered somewhat by the fact that s 13(1) contemplates a specific threshold, namely on the balance of probabilities”.¹⁸I agree. The reference to the balance of probabilities in s 13(1) imports the notion of the burden of proof and to the defined standard. The burden of proof is of course on the Chief Executive as the applicant.

[45] Section 13(2) speaks of the Court being satisfied by evidence to a high level.

The first consideration for the Court must therefore be whether the above characteristics have been established by evidence to a high level.

Although the wording of s 13(2) is somewhat awkward, I interpret it to mean that the Court must be satisfied on the evidence before it that Mr W exhibits, in other words has, as part of his personality, each of the four characteristics described; and also in each case, that he has them to a high level. The alternative interpretation of the section is that it requires a high level of evidence of each characteristic (without reference to the strength of the characteristic). But even on that interpretation the level of evidence would, in reality, need to be such that each characteristic was established to a high level in any case.

[47] This approach has been adopted in the only other cases dealing with PPO’s to date – first by Nicholas Davidson J in Chief Executive of the Department of

¹⁷R v Leitch [1998] 1 NZLR 420 (CA) at 428; And see McDonnell v Chief Executive of the

¹⁸Deputy Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536 at

¹⁹Chief Executive of the Department of Corrections v W, above n 16, at [26]-[27].

Corrections v Douglas²⁰and then by Gendall J in Deputy Chief Executive of the Department of Corrections v McCorkingdale,²¹and in Chief Executive of the Department of Corrections v Kerr.²²

[48] The wording of s 13(2) is certainly awkward. On its face, what is required is evidence to a high level, but I agree with Gendall J that it is somewhat inapt to talk about a high level of evidence. Further, s 9(b)(i) in the Public Safety Act seems to support the interpretation which has been taken to date. It speaks of respondents exhibiting to a high level each of the four listed characteristics. As against this, I note that the listed characteristics contain their own qualifying adjectives – intense drive or urge, limited self-regulatory capacity, general impulsiveness, high emotional reactivity, and poor inter-personal relationships.

[49] To my mind, requiring a high level of evidence of each characteristic is the more natural, albeit clumsy, meaning of the section, but in the event, I do not consider that it makes much difference. As Venning J noted, requiring a high level of evidence will in reality mean that each characteristic is established to a high level in any given case.

[50] Section 13(2) uses the present tense – “exhibits”. Venning J interpreted this word in Wilson as follows:²³

An immediate issue is what the use of the word “exhibits” in this context requires. On one view of it, it could be said that “exhibits” connotes a requirement that Mr W be presently displaying the particular characteristic(s) at the time of the assessment or hearing. However, I do not consider that is what is required. At any particular time not all aspects of a person's character will be on display. They may be latent but still present. In my judgment the issue is whether, as part of his personality, Mr W has the identified behavioural characteristics to a high level, even if they may only manifest themselves in certain circumstances. It is not whether he is presently displaying them. If he has them to a high level, that will inform the assessment of whether he is a very high risk of imminently committing a serious violent offence.

²⁰Chief Executive of the Department of Corrections v Douglas, above n 16, at [45].

²¹Deputy Chief Executive of the Department of Corrections v McCorkingdale, above n 18, at [15].

²²Chief Executive of the Department of Corrections v Kerr [2017] NZHC 2366 at [15].

²³Chief Executive of the Department of Corrections v Wilson, above n 16, at [28].

[51] I agree with this analysis, and note that a similar approach has been adopted by the Court of Appeal in the ESO context.²⁴It follows that the question at issue in any given case will be whether the respondent has the listed characteristics as part of his or her personality, such that they may manifest themselves in certain circumstances. The respondent does not have to display each of the characteristics as at the date of assessment or hearing.

[52] There was some discussion before me about the term “severe disturbance and behavioural functioning”. Both counsel accepted that this is not an additional element of the statutory test. I agree. If the s 13(2) characteristics are made out, then that will suffice to show that the respondent has a severe disturbance in his or her behavioural functioning.

[54] All relevant witnesses agreed that this element is satisfied in Mr Chisnall’s case.

[55] Dr Wilson recorded that Mr Chisnall has had a long history of deviant sexual interest and disinhibited sexual behaviour. He considered that sexual deviancy, fantasy, and sexual entitlement have played key roles in Mr Chisnall’s offending. While Mr Chisnall’s selection of victims has been opportunistic, his offending has nevertheless been planned. Mr Chisnall has reported continued sexual offending type dreams, including after treatment, and his treatment notes indicate continued arousal over his offending. Mr Chisnall has completed specialist sex offender treatment, but Dr Wilson considered that he still has a predilection and proclivity for sexual offending. He noted Amanda Richardson’s report where she expressed the opinion that Mr Chisnall has retained little of the material learnt. Dr Wilson accepted that evidence of this characteristic is “spaced”, but he considered that there are still

_{instances of the characteristic, even in the treatment setting, and that
it is still present.}

²⁴Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [26]- [27].

[56] Mr Berry also commented on Mr Chisnall’s offending history. He considered that it reveals Mr Chisnall has had an intense drive and desire to commit relevant sexual offences from an early age. Mr Chisnall’s commitment to effectively dealing with deviant thoughts and feelings has grown while he has been detained, but Mr Chisnall has yet to be tested when he is in a community setting. Mr Berry considered that allowing deviant sexual and sexually violent fantasies to occur has been, and will continue to be, a primary coping mechanism for Mr Chisnall when he is stressed.

[57] Ms Laws also considered that Mr Chisnall uses deviant sexual fantasies as a primary coping mechanism when stressed. She considered that he previously acted out his fantasies through his offending.²⁵

[58] Dr Barry-Walsh considered that Mr Chisnall’s sexual fantasies and libido may have diminished, but noted that Mr Chisnall was both vague and contradictory about fantasy, suggesting in one interview, that he “still had thoughts”, although he denied masturbating to his fantasies. In 2014 there was evidence of persistent sexual fantasy, and historically there is persuasive evidence of the presence of fantasy and deviance. He also observed that the intensity of any fantasy could be influenced by Mr Chisnall’s ability to cope and adjust to whatever environment he finds himself in. Dr Barry- Walsh accepted that in the past, Mr Chisnall has had intense drive, but that it is difficult to assess how current this characteristic remains.

[59] I am satisfied that this first characteristic – intense drive or urge to commit relevant sexual offending – is met. Mr Chisnall’s drive to commit sexual offences is apparent from both his pattern of offending and his other more recent conduct. Mr Chisnall uses deviant sexual fantasies to cope with stressful situations, and these

²⁵This finding was made by Ms Laws in relation to the ESO application. It is, however, relevant to the PPO application, due to the similarity in wording between the tests contained in s 13(2) of the Public Safety Act, and s 107 of the Parole Act.

[60] Section 13(2)(b) refers to limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and an inability to cope with, or manage, stress and difficulties.

[61] Dr Wilson concluded that these issues are still apparent for Mr Chisnall. Mr Chisnall has had a long history of general impulsivity and an inability to cope with challenge, social isolation and rejection. He experiences sudden behaviour changes, and can quickly become aggressive. On one occasion, referred to in the case notes, Mr Chisnall became upset with a member of the staff in the Matawhāiti Residence and hit a concrete doorstep, causing injury to his hand. Dr Wilson’s review of the case notes highlighted Mr Chisnall’s reactive hostility in some of his interactions with staff and also with another resident in the Matawhāiti Residence. There were various incidents recorded where Mr Chisnall displayed anger and aggression, blamed others rather than accepting personal responsibility, and attempted to intimidate staff. Mr Chisnall is also said to be obsessed with seeking to acquire personal information about staff. At the hearing, Dr Wilson acknowledged under questioning that the evidence on this characteristic was “more mixed”, and that there have been periods of good mood management and reliability. He noted, however, that this has occurred in a highly structured environment, where Mr Chisnall has not been subject to the kind of stresses that he will be subjected to following any release into the community. He considered that Mr Chisnall still has limited self-regulatory capacity.

[62] Mr Berry also acknowledged that Mr Chisnall has exhibited better self- regulation in recent times. He observed that his medication regimen has been critical in this. Mr Chisnall has nevertheless exhibited poor self-regulatory capacity since an early age; he has generally been impulsive and highly emotionally reactive; he has made extremely poor decisions when confronted with stressful situations. Mr Chisnall’s diagnoses of ADHD and post-traumatic stress disorder (PTSD) are likely to have played a part. At the hearing, Mr Berry was cross-examined on this issue. He did not change his opinion. He was adamant that there is significant evidence, extending back over many years, reflecting the difficulties Mr Chisnall has in regulating himself. He commented that Mr Chisnall’s improvements have been fragile, and that the incidents which have occurred whilst he has been subject to the

interim detention order suggest that he is still likely to react in a problematic way when in difficult situations.

[63] Ms Laws assessed Mr Chisnall, albeit in the ESO context (where the test is slightly different) as having poor self-regulatory capacity. She stated that the general theme of Mr Chisnall’s behaviour, whilst he has been subject to the interim detention order, “remains one of poor self-regulation”. She noted Mr Chisnall’s impulsivity, high emotional reactivity, poor stress management and inability to manage change.

[64] Dr Barry-Walsh noted that there are signs that Mr Chisnall has improved in this area, but warned that any improvements Mr Chisnall may have made have not been tested outside the prison environment. Mr Chisnall has limited self-regulatory capacity, and this has been a major issue for him throughout his life. In the course of cross-examination, Dr Barry-Walsh was asked about Mr Chisnall’s self-regulatory capacity whilst he has been subject to the interim detention order. He stated that it remains a problem. He referred to the case notes, noting that they are selective, but accepting that they contain many descriptions of Mr Chisnall having problems regulating his mood, and getting angry. His view was that limited self-regulatory capacity means that a person has some, but not “an awful lot” of, capacity. He considered that self-regulatory capacity has been a major issue for Mr Chisnall throughout his life.

[65] Again, I am satisfied that s 13(2)(b) is met. I accept there have been periods where Mr Chisnall has demonstrated some improvement in his self-regulatory capacity, but the various incidents which have occurred whilst he has been subject to the interim detention order illustrate that his capacity to self-regulate remains severely constrained. It is part of his personality.

[66] Section 13(2)(c) refers to the absence of understanding or concern for the impact of a respondent’s offending on actual or potential victims, within the general sense of that term.

[67] Nicholas Davidson J, in Douglas, observed – in relation to the words “absence of” – that it is illogical to prove an absolute to a high level. ²⁶He considered that the words do not import an absolute measure. Rather they mean that any understanding or concern is so distorted, superficial, and self-orientated, that it marries with the clear purpose of the legislation – namely that the checks and balances inherent in the combined and individual characteristics set out in s 13(2) are not operative to negate the risks which derive from those characteristics.²⁷

[68] I agree with this interpretation. Section 13(2)(c) requires the absence of meaningful understanding or concern. If total absence was required, any individual who was being considered for a PPO could baldly state his or her concern for the victims, without any insight, and that would be sufficient to prevent a PPO being imposed. That cannot have been the legislative intention.

[70] Dr Wilson took the view that Mr Chisnall has not demonstrated “reliable evidence of remorse for his offending or a general capacity to empathise with others”. He noted the various reports that suggest that Mr Chisnall may have increased his understanding of the impact of his offending on his rape victims, but observed that discussion of the impact on his other victims did not elicit similar insights. Mr Chisnall’s treatment notes recorded that Mr Chisnall was aroused by dreams of sexual offending, and that he was “observed to be excited” when discussing his sexual offending and past fights in group treatment sessions. When he was cross-examined, Dr Wilson stated as follows:

... I’m looking for what behaviours accompany any expression of remorse. Remorse is just a word to me, unless it is accompanied by some ... behavioural changes. In my opinion it’s easy to say and often expected. But what I look for is whether their actions, whether their behaviour matches their expressions of remorse.

He accepted that there are some indications that Mr Chisnall may have increased his understanding, but Dr Wilson concluded by saying that there is still no reliable

_{evidence to support the proposition that Mr Chisnall has remorse for his
victims. In}

²⁶Chief Executive of the Department of Corrections v Douglas, above n 16, at [96].

his words, he “wouldn’t say there’s an absence, but I wouldn’t say there’s a presence [of understanding or concern]”. He added that if there was a presence, he would expect it to be accompanied by behavioural changes.

[71] Mr Berry considered that Mr Chisnall is able to articulate an intellectual understanding of the effects of his behaviour on others, but that he did not present during assessment as having developed a strong empathetic response. During treatment, Mr Chisnall was observed to focus more on how his offending impacted on him, rather than on others. In the course of cross-examination, Mr Berry stated that in his opinion, there is evidence to a high degree that Mr Chisnall exhibits an absence of understanding and concern, and he noted Mr Chisnall’s low capacity for empathy.

[72] Ms Laws also considered that Mr Chisnall has a low capability for empathy, and a limited understanding of the impact of his offending on his victims. She also noted that Mr Chisnall has previously been observed to derive pleasure from discussing his offending, and that he is more focused on the impact that his offending has had on him, rather than on his victims. When cross-examined, her views remain unchanged. She stated her concern that some people, following treatment, learn to say things verbatim, and tell the listener what they think the listener wants to hear, but that they do not actually possess the required understanding.

[73] Dr Barry-Walsh suggested that understanding and concern could not be said to be truly absent, but he also observed that there is “clearly extensive persisting impairment” in this area. He noted Mr Chisnall’s ongoing difficulty with empathy and thinking through the impact that his actions may have on others. When he was cross- examined, he acknowledged that his initial impressions had been formed before he read the case notes. Having read those notes, he described Mr Chisnall’s understanding or concern as being rudimentary.

[74] In my judgment, Mr Chisnall does not have a meaningful understanding or concern for the impact of his offending on his actual or potential victims. The evidence suggests that he has shown some understanding or concern post-treatment, but any improvement is tempered by other evidence that shows that he became excited when discussing his offending with others during treatment, and that he was inclined to focus

on the negative consequences of his offending on him, rather than on his victims. Overall, the evidence compels the conclusion that there is an absence of meaningful understanding or concern, sufficient to operate as a check on further offending. I am satisfied that the requirements of s 13(2)(c) are made out, and that there is evidence to a high level of Mr Chisnall’s absence of meaningful understanding or concern.

[75] Dr Wilson noted that Mr Chisnall has had significant difficulties in forming stable, inter-personal relationships from an early age, and that this has resulted in him being socially isolated from his peers and prevented him from seeking friendships with others. He noted that Mr Chisnall’s rape offending in 2005 appeared to have been preceded by social isolation as well as difficulties with his then employer. He also observed that Mr Chisnall’s paranoid personality traits act as a barrier to him forming close, trusting relationships. He accepted that Mr Chisnall appears to have formed stable relationships with staff at the Matawhāiti Residence, but nevertheless concluded that there is no evidence that Mr Chisnall’s ability to form close, trusting relationships has improved.

[76] Mr Berry also observed that Mr Chisnall’s ability to build meaningful, appropriate and pro-social relationships – both intimate and non-intimate – has historically been poor. He accepted that Mr Chisnall has made some improvements in this area. In cross-examination, he stated as follows:

in-depth relationships and again although the Te Piriti treatment programme reports indicate that he had improved significantly in the context of the Te Piriti programme, there was still considerable ongoing challenges for Mr Chisnall to learn how to develop deep reciprocal relationships with others.

He considered that there have been no recent significant changes in Mr Chisnall’s ability to form inter-personal relationships.

[77] Ms Laws commented in her first report that Mr Chisnall had poor social supports, and presented as socially isolated. She also considered that his paranoid personality traits are likely to provide a barrier to the establishment of successful and rewarding relationships.

[78] Similarly, Dr Barry-Walsh considered that Mr Chisnall has had lifelong difficulties in forming inter-personal relationships, and that they appear to persist. He accepted that Mr Chisnall has shown some capacity to develop relationships with staff members, but again observed that this is untested in the community.

[79] Both Mr Ellis in cross-examination, and Mr Edgeler, who presented this aspect of the argument for Mr Chisnall, argued that Mr Chisnall cannot be expected to have developed inter-personal relationships whilst he has been subject to the interim detention order. When this proposition was put in cross-examination, all witnesses accepted it to a greater or lesser extent. The Chief Executive, for his part, accepted through his counsel, Ms Murdoch, that Mr Chisnall’s opportunities to interact with people in the Matawhāiti Facility is limited.

[80] As I have noted above, Mr Chisnall’s ability to form inter-personal relationships and his social isolation do not fall to be assessed only at the time of the hearing – or indeed while he has been subject to the interim detention order. Rather, what must be considered is whether this characteristic is part of his personality. The expert evidence was clear that Mr Chisnall has had difficulties with forming good inter-personal relationships throughout his life. He is largely estranged from his family, although there may have been some recent thawing in this regard. He does not seem to have formed a close relationship with anyone and as a result he has experienced very real difficulty with social isolation. In my judgment, the requirements of s 13(2)(d) are made out.

[81] For the reasons I have set out, I am satisfied that Mr Chisnall exhibits a severe disturbance in behavioural functioning, established by evidence to a high level of each of the characteristics listed in s 13(2)(a) to (d).

Section 13(1) - Is there a very high risk of imminent serious sexual offending by

[82] The risk assessment called for by s 13(1) incorporates two terms defined in s 3 of the Public Safety Act.

Imminent, in relation to the commission of serious sexual or violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so.

(b) The word “serious sexual ... offence” are relevantly, defined as follows:

serious sexual ... offence means an act committed before, on, or after the commencement of this section that—

(i) a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment, including a crime under section 144A or 144C of that Act; or

[83] It was not disputed that Mr Chisnall poses a risk of serious sexual offending. He has been convicted of two counts of sexual violation by rape, and one count of sexual violation by unlawful sexual connection against a boy under 12. These are serious sexual offences as those words are defined. Further, Mr Chisnall does not contest the Chief Executive’s application for an ESO. The purpose of an ESO is to protect members of the community from those who pose a real and ongoing risk of committing serious sexual or violent offences.²⁸An ESO can only be imposed where the Court is satisfied that the offender has or has had a pervasive pattern of serious

_{sexual or violent offending, and there is a high risk that the offender
will in future}

commit a relevant sexual or violent offence.²⁹Mr Chisnall’s acceptance that an ESO is appropriate in his circumstances, is an acknowledgement that he poses a high risk of future serious sexual offending. What was at issue before me was whether the risk he poses is a very high risk, of imminent serious sexual offending.

[84] The observations of the Chief Justice when this case was before the Supreme

Court in relation to the interim detention order assist. She observed as follows:³⁰

The text of s 13 and the definition of “imminent” links the risk which is to be addressed by the orders to provision of opportunity through removal of restraint. The Judge must be satisfied not only that the risk is a high one but that it is likely to occur if the opportunity arises. Under the definition the person must be expected to commit a serious sexual or violent offence as soon as he or she has suitable opportunity to do so. ... “imminent” in this context is not a purely temporal assessment but one linked to opportunity. The order is aimed at preventing the opportunity arising where the Judge is satisfied that

an offence of the type is likely to be committed by the respondent when he or she has suitable opportunity.

Although the Chief Justice was dissenting, the majority did not take issue with these observations and I adopt them.

In my judgment the concept of a suitable opportunity in this context carries with it the connotation that the offender would actively seek out the opportunity. A paedophile presenting an imminent risk, for instance, would seek out opportunities to be alone with children to commit the offending. It suggests a very brief time within which the serious violent offending will take place, so that it will take place, if not immediately, certainly very soon after release.

The expression “suitable opportunity” is not defined but must relate to the setting in which the person who is thought to create such risk could put or find themselves. It requires no further qualification. On the evidence, suitable opportunities are those where supervision of Mr Douglas has any gaps, which

³⁰Chisnall v Chief Executive of the Department of Corrections, above n 4, at [39].

³¹Chief Executive of the Department of Corrections v Wilson, above n 16, at [82].

³²Chief Executive of the Department of Corrections v Douglas, above n 16, at [102].

Mr Douglas has shown he can and will exploit, or try to exploit. The evidence is stark. When the opportunity presents itself Mr Douglas is determined and manipulative.

[87] I adopt the observations in Douglas. I do not consider that the statutory definition of the word “imminent”, referring as it does, to the availability of a suitable opportunity, requires that the serious further offending must take place within a very brief time, immediately, or very soon after release, as suggested in Wilson. To use the Chief Justice’s language, imminence is not a purely temporal assessment; it is linked to opportunity.

[88] This leads into a difficult issue – namely, the counterfactual to detention in which the very high risk of imminent serious sexual (or violent) offending has to be considered.

[89] The Chief Executive submitted that the appropriate counterfactual should be the situation which would apply if Mr Chisnall is left unsupervised. It was argued that I should not consider the imminence of Mr Chisnall’s risk based upon the alternative of an ESO with an intensive monitoring condition. It was argued that this would be inconsistent with s 13(1)(b)(ii) of the Public Safety Act.

[90] Counsel for Mr Chisnall argued that the appropriate counterfactual is Mr Chisnall’s release into the community, subject to an ESO with an intensive monitoring condition.

[91] In Wilson, Venning J considered the risk if the respondent in that case – Mr Wilson – was released from prison into the community.³³A different approach was taken by Gendall J in McCorkingdale.³⁴In that case the Court was dealing with a respondent who was already subject to an ESO. Gendall J compared the possibility of a PPO to the then applicable situation under the ESO. He relied upon both Elias CJ

_{and the majority in the Supreme Court when Mr Chisnall’s appeal
against the interim}

³³Chief Executive of the Department of Corrections v Wilson, above n 16, at [79].

detention order was on appeal,³⁵where the Court noted that, in making either an interim or a substantive public protection order, it is necessary for the Court dealing with the application to consider the least intrusive means of managing any risk posed by the respondent in respect of whom the order is sought. The Chief Justice specifically noted that the high threshold set by the legislation for public protection orders, and the availability of less intrusive means of protecting public safety in orders under the Parole Act, indicate a legislative scheme that the very high risk of imminent serious sexual violent offending by the respondent is risk which cannot be acceptably managed by conditions under an extended supervision order or interim supervision order.

[92] The observations in the Supreme Court are strictly obiter but they are of course deserving of the utmost respect.

[93] I consider that s 13(1)(b) constrains the analysis. Section 13(1) provides that this Court can make a PPO order if it is satisfied, to the requisite standard, of the matters set out in s 13(1)(a) and (b). Mr Chisnall is no longer subject to a sentence of imprisonment and he is not currently detained in a prison facility. Rather, he is detained under an interim detention order made under the Public Safety Act, housed in a purpose-built facility for those subject to PPO’s.³⁶In its terms, s 13(1)(b)(i) does not apply. Under s 13(1)(b)(ii), the Court must be satisfied that there is a very high risk of imminent serious sexual offending by Mr Chisnall if he is left unsupervised. For present purposes, this is the relevant statutory test. It follows that, in determining whether the test for the imposition of a PPO is met, I must ignore Mr Chisnall’s acceptance that he qualifies for an ESO, and his agreement to an intensive monitoring condition. That does not, however, require that I ignore the Supreme Court’s observations and the less intrusive possibility an ESO offers. If the tests are met, I still retain a discretion whether or not to make a PPO – s 13(1) provides that the Court “may” make a PPO if the tests are met. The alternative of an ESO with an intensive

_{monitoring condition, as a less intrusive means of managing the risk Mr
Chisnall}

³⁵Chisnall v Chief Executive of the Department of Corrections, above n 4, at [37] and [40] per Elias

³⁶I anticipate that it will be argued in the context of the declaration of inconsistency application, that Mr Chisnall is, in effect, imprisoned. These observations should not be seen as foreclosing that argument.

poses, will become relevant at that point. I do not consider that this approach is inconsistent with the observations of the Supreme Court noted above and, in my judgment, it accords not only with s 13(1)(a) and (b), but also with the statutory directive that PPO applications have priority, and that the Court must not hear an application for an ESO until the PPO application has been declined, withdrawn or cancelled – see above at [10].

[94] A Court considering whether there is a very high risk of imminent serious sexual offending by a respondent, must consider all of the evidence offered in the proceeding, and in particular, the evidence given by two or more health assessors, including at least one registered psychologist. Notwithstanding the evidence from such experts, it is ultimately a matter for the Court to determine whether or not a respondent meets the threshold for a PPO, and that there is a very high risk of imminent serious sexual offending. The Court of Appeal has noted – in the ESO context – as follows:³⁷

We wish to make it clear, however, that first instance Judges need not accept it as necessary, or right, to rubber stamp opinions of health assessors advanced by the Department of Corrections in ESO applications (and we make it clear that the Judge did not do that in this case). What is required is a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending. The risk of re-offending has to be such that cannot properly be ignored when viewed against the gravity of likely re-offending. Naturally, every case requires individual judgement and assessment. Jurisdiction to make the ESO arises only if there is a real and ongoing risk of committing relevant sexual offences.

[95] This judgment has been cited with approval in the PPO context,³⁸and I also adopt it.

[96] What is required is an individualised risk assessment, taking into account all relevant factors.³⁹As Venning J observed in Wilson:⁴⁰

³⁷Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32].

³⁸Chief Executive of the Department of Corrections v Wilson, above n 16, at [76].

⁴⁰Chief Executive of the Department of Corrections v Wilson, above n 16, at [77] (footnotes omitted).

In R v Peta the Court of Appeal confirmed that what is required is an individualised risk assessment taking into account all relevant factors. Risk assessments and the related judicial decision making for risk management are best informed through an individualised formulation of risk. This should draw upon a variety of different sources of information in an attempt to identify risk factors within an aetiological (causative) framework. This recognises that risk is contingent upon factors that are both environmental and inherent in the individual. Such an approach also helps avoid the shortcomings of a mechanical and potentially formulaic assessment of risk, one that is overly reliant on static historical factors and potentially insensitive to features of the individual that change with time and context.

[97] Each of the various witnesses either used, or relied, on various actuarial methods designed to assess risk. All went on to consider other factors personal to Mr Chisnall, and to apply their expert judgment to the risk he poses. I deal with each in turn.

[98] The first measure used was a tool known as the automated sexual recidivism scale (“ASRS”). On this scale, Mr Chisnall was assessed as being in the medium-high risk category of reoffending. Offenders in the same category as Mr Chisnall have reoffended, and been reconvicted, at a rate of 30 per cent in the 10-year period following release, compared with 16 per cent, which is the overall sexual reoffending rate.

[99] It was common ground that the ASRS is based solely on static risk predictors, and none of the witnesses considered it in isolation. The evidence suggested that if it were to be considered in isolation, it would lead to a very skewed view of Mr Chisnall’s overall risk of reoffending.

[100] The second measure used was known as the Violence Risk Scale: Sexual Offender version (“VRS:SO”). Using this scale, Mr Chisnall was assessed as being in the high risk category. Within this scale there are various aspects which are scored. Mr Chisnall scored in the 97th percentile for sexual deviancy and in the 95th percentile for criminality. He was in the 41st percentile for treatment responsivity.

[101] Ms Laws’ original report was written in 2015, and it contained different VRS:SO risk percentages from those obtained by Dr Wilson and Mr Berry. She prepared a supplementary report, confirming that the VRS:SO was updated in 2015, and that the risk profile data given by Dr Wilson and by Mr Berry had been derived using the more recent version of the VRS:SO. She also confirmed that the most up-

to-date estimated sexual recidivism rate for offenders in the high risk group with the same score as Mr Chisnall was 33.8 per cent after five years, and 47.7 per cent after

[102] Mr Chisnall was also assessed by Dr Wilson and Mr Berry using a tool known as the Psychopathy Check List-Screen Version (“PCL-SV”). This tool is considered to be suitable for those who have intellectual difficulties. Mr Chisnall was found to exhibit a high level of psychopathic traits, especially for items relating to affective deficits and manipulation, and behavioural control and anti-social lifestyle. The evidence was that Mr Chisnall’s score using the PCL-SV was well above the average found in a study of imprisoned New Zealand offenders. Of those with a similarly high score in a PCL-SV validation study, 73 per cent committed further serious offences and were imprisoned again, within five years of release. Mr Berry considered that the persistent and pervasive features highlighted by the PCL-SV assessment, suggest that Mr Chisnall is more likely to be motivated by external factors, and it was his opinion that caution needs to be exercised in considering any self-reports by Mr Chisnall of positive changes.

[103] In 2005, Mr Chisnall was assessed using a tool known as a Psychopathy Check List Revised (PCL-R) – by a Dr Woodfins. He was rechecked using this tool by Mr Berry. Apart from one item, which Mr Berry stated did not impact significantly on the overall result, the scores between the two tests were identical. They indicated that Mr Chisnall meets the diagnostic criteria for psychopathy. Mr Berry expressed the view that people who are assessed with a high level of psychopathy similar to Mr Chisnall, have a greater likelihood of impulsivity and repetitive predatory criminal behaviour.

[104] Dr Barry-Walsh did not use any of these assessment tools. Rather, he relied upon actuarial measurements obtained by the other health assessors. He considered that he did not see any need to repeat the assessments. He did refer to another tool –

the Risk For Sexual Violence Protocol (“RSVP”) –which as I understand it, is a structured professional judgment tool, rather than an actuarial measurement tool. Using this tool, Dr Barry-Walsh concluded as follows:

... I find grounds to have serious concern for the potential Mr Chisnall may have for further serious sexual violence notwithstanding evidence of improvement. Mr Chisnall is of limited intellectual functioning, has problems with coping and has developed a significant and concerning fantasy life from adolescence, involving violent sexual activity. His limitations in empathy and capacity to think through things and a tendency to act impulsively have contributed to a disturbing history of sexual violence. There is evidence of maturation but he has persisting problems with psychological adjustment and personality functioning which may lead him to reoffend in a similar way in the future in an opportunistic or partially planned basis, likely driven by sexual fantasy,

[105] At the hearing, Dr Barry-Walsh confirmed that he had reviewed Ms Laws’ supplementary report, and the case notes from Mr Chisnall’s time spent in the Matawhāiti Residence. He accepted that he had underestimated in his application of the RSVP “the significance of the ongoing misogynistic comments that [Mr Chisnall] was making”. He then described Mr Chisnall as “someone that is this high a risk who has not responded to other interventions”.

[106] Some of the health assessors considered that there are additional risk factors specific to Mr Chisnall which the actuarial measures do not address.

(a) Both Dr Wilson, Mr Berry and Ms Laws referred to Mr Chisnall’s low cognitive functioning. It was suggested that this may have impacted on his anger management, impulse management, and problem solving abilities, and resulted in him having difficulties in responding to treatment and his sustained treatment gains over time.

(b) Both Dr Wilson and Dr Barry-Walsh referred to Mr Chisnall’s paranoid personality. Dr Wilson considered that this may have affected Mr Chisnall’s inter-personal behaviour and his ability to engage in treatment and manage his risk. Dr Barry-Walsh disputed the diagnosis of paranoid personality disorder. He did not believe that Mr Chisnall met the relevant criteria for such diagnosis.

(c) It was also noted by the experts that Mr Chisnall was diagnosed with ADHD as a child, and that this increases his risk of reactive and impulsive responses.

[107] Dr Wilson was of the view that the “multiple interaction” between Mr Chisnall’s psychopathy and sexual deviancy indicates that he will be at an elevated risk of sexual recidivism over and above that indicated by the PCL-SV or the VRS:SO, when considered separately.

[108] At the hearing, there was discussion about offence-paralleling-behaviour exhibited by Mr Chisnall while he has been subject to the interim detention order. As I understand it, offence-paralleling-behaviours are behaviours which, in the community, would lead to offending, but in an institution, do not do so. The evidence suggested that the presence of offence-paralleling-behaviours is useful in considering whether risk factors remain, notwithstanding the lack of opportunity for them to be expressed. By way of example, Dr Barry-Walsh commented on the incident referred to above at [61], where Mr Chisnall punched a concrete step after a relatively innocuous interaction with a female staff member. He stated as follows:

... I note his report to the psychologist that he was visualising harming his mother and reported visualisation of a sexual assault victim and it was stated he was unable to act on a sexual arousal to take, to be implying that he experienced sexual arousal at the time, ... So this incident highlights a number of things that were still active then which is just over a year ago, so reasonably recent, firstly his difficulties in managing stress and his ongoing problems with part (sic) abuse experiences, his attitude towards women and intolerance of criticism from them but most concerningly, in my view, his use of sexual imaginary (sic) to manage his feelings of distress and regain a sense of control, so that indicates that at least then deviant sexual fantasy was still in play and that, as I speculated earlier, at times he may use sexual fantasy to manage his feelings of distress.

[109] None of the experts relied on the actuarial tools in isolation, and each applied his or her professional judgment to Mr Chisnall’s situation.

[110] Dr Wilson concluded that Mr Chisnall has a “very high and stable risk of further serious reoffending”. He was cross-examined about whether Mr Chisnall would likely reoffend within a week or month or release. He made the following comments:

... If someone has a lot of risk factors and they are present across time in settings, then the only thing that often has to be then made available is an opportunity for a particular acute stressor for the offence to take place. And that’s when I start to regard the risk as more imminent because very little has to be satisfied for the offending to take place. Now, one of the things that when you’re looking at imminence it has to be considered as a particular offence pathway that they have, very few people have an offence pathway where immediately upon release they offend ... because they’re just looking for the first available opportunity, so they all have a particular pathway where certain things have to start to occur, we talked about it in regards to Mr Chisnall, it’s a return to social isolation, to ruminative beliefs, to starting to use sexual fantasy as a way of alleviating those negative beliefs and possibly the addition of substances to disinhibit. Now it make (sic) take time for all of those things to be put into place you know and it may take some planning because there’s also a desire not to be detected, and so imminence may take, to me, may take months for the offence to occur once the person is released to the community and has an ability to activate their pathway.

[111] Mr Berry concluded that, as a result of various factors particular to Mr Chisnall, Mr Chisnall must be considered “more likely than those in his comparison group to commit a serious reoffence immediately upon release and/or when structure and supervision is withdrawn”. When questioned about this view in cross- examination, he further stated that “of the cohorts [Mr Chisnall is] in, which is the high risk and top risk scale, that other risk factors propel him into the group that I believe will reoffend, given the suitable opportunity to do so”.

[112] Ms Laws did not expressly address the issue of imminence, as it is not an element of the ESO test. However, she did conclude that Mr Chisnall poses “at least a high risk ... [of] relevant offending within 10 years of release”. In a supplementary report, she stated that she considered that Mr Chisnall’s risk will endure for approximately 19 years “reducing incrementally with time”.

[113] Dr Barry-Walsh noted the fluid and contingent nature of risk. He was reluctant to make any quantitative probabilistic assessment – rather stating as follows:

Despite advances in risk assessment significant limitations remain which means we are unable to make quantitative probabilistic statements about

whether an individual will go on to reoffend ... Further, risk it is contingent greatly on circumstances, context, intervention and the passage of time and fluctuates over time. For health assessors, risk assessment should lead to treatment and management, and engagement in risk assessment primarily for punitive purposes creates an ethical conflict.

Would I be concerned that if Mr Chisnall was released to the community and left to his own devices he might quickly re-offend? Yes I would have that concern, how quickly I don’t know, how likely, we can’t reliably quantify that

[114] Having considered all of the available evidence, I am satisfied that Mr Chisnall poses a very high risk of imminent serious sexual offending were he to be released into the community unsupervised. The assessments performed using the actuarial tools point to this. So do additional matters personal to Mr Chisnall which are not reflected in the assessments obtained using those tools. All experts were concerned at the risk Mr Chisnall poses, and I accept the evidence, particularly of Dr Wilson and Mr Berry that the risk of serious sexual reoffending is very high and imminent in the sense discussed at [82]-[87]. Accordingly, I consider that I have jurisdiction to make a PPO against Mr Chisnall.

[116] Both Mr Edgeler and Mr Ellis for Mr Chisnall, relied upon the use of the word “may” in s 13(1). They respectively referred to Mr Chisnall’s acceptance of an ESO with an intensive monitoring condition, to various international obligations to which New Zealand is a party, and to Mr Chisnall’s rights under the New Zealand Bill of Rights Act.

[117] Ms Murdoch accepted that there is a residual discretion whether or not to grant a PPO, even if the grounds for such an order are made out. She submitted the

discretion should, however, only be exercised in exceptional circumstances, referring to a recent decision by Downs J in relation to an ESO. It was there observed:⁴¹

Satisfaction of the statutory criteria does not mandate an order. That said, it would be exceptional not to make an order when the criteria had been established, particularly given the high threshold for an order and the statutory concern of public safety.

[118] I am not persuaded that the discretion is as constrained as the Chief Executive submits. A PPO is an order of last resort, to be imposed only if the magnitude of the risk posed by the respondent justifies the imposition of the order – s 5(b) of the Public Safety Act. The availability of an alternative, less restrictive restraint under the Parole Act – at least where an application is made in the alternative under that legislation, and in particular where a respondent consents to an ESO, seems to me to be an issue of some significance in determining whether or not to grant a PPO.

[119] Nevertheless, I am not persuaded on the facts of the present case that an ESO with intensive monitoring would be sufficient to mitigate the very high risk that Mr Chisnall poses. While Mr Chisnall is prepared to agree to an ESO with an intensive monitoring condition under s 107IAC of the Parole Act, such condition would have a maximum duration of 12 months.⁴²There is no ability to extend the condition thereafter, and the Court cannot impose the condition more than once, even if an offender is subject to repeated ESO’s.⁴³

[120] There is no doubt that Mr Chisnall requires further treatment if his risk is to be mitigated. That is referred to by many of the experts, and in particular by Amanda Richards in her report dated 29 November 2016. The evidence suggested that Mr Chisnall’s treatment needs cannot be dealt with over a 12-month period. For example, Dr Barry-Walsh referred to the need for extensive and intensive supervision and monitoring, and indicated that supervision would be required for a period of years,

_{rather than months. Further, there can, however, be no guarantee that Mr
Chisnall}

⁴¹Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [57].

would respond to any treatment he might receive during the 12-month period when intensive monitoring would be in place. Mr Chisnall has not responded well to treatment in the past, and a number of the experts referred to the difficulties he has had in implementing learnings from earlier treatment. I cannot be confident that Mr Chisnall would make sufficient progress even with intensive treatment, during the period that any intensive monitoring condition would be in place.

[121] Additional conditions such as electronic monitoring can be imposed under an ESO, and beyond the 12-month period of any intensive monitoring condition. However, a condition of this kind does not prevent further offending.⁴⁴

[122] I am not confident that an ESO, even with intensive monitoring, would sufficiently mitigate the very high risk of imminent reoffending that Mr Chisnall poses.

[123] Mr Ellis advanced extensive submissions to the effect that a PPO is a criminal penalty – and a penalty of last resort. He argued that an extensive analysis of international jurisprudence is required before such orders can be imposed, and referred to both domestic and international human rights law. He suggested that this law informs how the Courts should approach the exercise of the discretion conferred by s

13(1). He also argued that some of the rules under which the Matawhāiti Residence is run breach Mr Chisnall’s rights under the New Zealand Bill of Rights Act, and that this also goes to the exercise of the discretion. In this regard, it was essentially Mr Ellis’ argument that the Courts should not further detain Mr Chisnall in a facility where his rights are being breached.

[124] Mr Ellis’ arguments were essentially a precursor to those which I suspect will be advanced when Mr Chisnall’s application for a declaration of inconsistency is heard in July 2018. This was accepted by Mr Ellis. The arguments were advanced in a vacuum – the Attorney General had been excused, with Mr Ellis’ agreement, from any

_{participation in the first part of the hearing. As a result, I did not
have the benefit of}

⁴⁴See, for example Robertson v R [2016] NZCA 99. Mr Robertson was subject to release conditions that included an 8pm to 6am curfew, and electronic monitoring. Despite the fact that he was wearing a bracelet that could be tracked using GPS, he committed murder while subject to these conditions.

counter-argument. Ms Murdoch did make available to me a copy of the Attorney- General’s report dated 14 October 2012 when the Public Safety (Public Protection Orders) Bill was before Parliament. That report concluded that the bill was consistent with the New Zealand Bill of Rights Act. The bill has now become part of our domestic law, and I am required to consider the exercise of the discretion under s 13(1) in terms of what is now the Public Safety Act. There are mechanisms for addressing whether or not New Zealand is fulfilling its other obligations under International Covenant on Civil and Political Rights.⁴⁵Issues arising under the New Zealand Bill of Rights Act have yet to be pleaded and the Attorney-General’s response is unknown. They will fall for consideration in July 2018 if the pleadings are amended. In the event any such arguments succeed, any PPO made can be reviewed.⁴⁶

[125] I am not persuaded that it is appropriate to exercise my discretion to refuse to make an order. The statutory criteria for the making of a PPO are made out in this case. It is appropriate to make an order, given the high threshold for its imposition, and the statutory concern for the protection of members of the public from the almost certain harm that would be inflicted were Mr Chisnall to commit further serious sexual offences.

[126] I make a public protection order against Mr Chisnall, pursuant to s 13(1) of the Public Safety (Public Protection Orders) Act 2014. Mr Chisnall is already in a PPO facility – the Matawhāiti Residence. Accordingly, the order is to come into effect immediately on the release of this judgment.

[127] Although the authorities suggest that applications for public protection orders are civil proceedings, I am not at present persuaded that it is appropriate to make a costs order. Ms Murdoch did not seek such an order on behalf of the Chief Executive. If she nevertheless wishes to make application, any memorandum is to be filed within

_{15 working days of the date of this judgment. I reserve leave for her
to do so. Any}

memorandum in reply is to be filed within a further 15 working days. Memoranda are not to exceed 10 pages in length. I will then deal with any application made on the

High Court of New Zealand Decisions

Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 (14 December 2017)