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Chief Executive of the Department of Corrections v McCord [2018] NZHC 3195 (7 December 2018)

Last Updated: 21 December 2018

JUDGMENT OF PALMER J

This judgment was delivered by me on 7 December 2018 at 10.00 a.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

..........................................

Counsel/Solicitors:

Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau D J Allan, Barrister, Hamilton

DEPARTMENT OF CORRECTIONS v McCORD [2018] NZHC 3195 [7 December 2018]

Summary

[1] Mr Eugene McCord is currently subject to an Extended Supervision Order (ESO) requiring him to reside in a self-care village at Spring Hill Prison near Meremere, Waikato, accompanied by someone from Anglican Action during the day and subject to an electronically monitored curfew at night. The Chief Executive of the Department of Corrections (Corrections) has applied for a public protection order (PPO) confining him to reside at Matawhaiti, within the Christchurch Men’s Prison. In the meantime, Corrections applies for an interim detention order (IDO) to the same effect, until the PPO application is determined.

[2] I am satisfied the pre-conditions and threshold for an IDO are met and Mr McCord poses a very high risk of serious imminent sexual or violent offending if left unsupervised. But I consider the conditions of Mr McCord’s current ESO sufficiently mitigate that risk for the three to four months until the PPO can be determined, especially if he understands that any breach of conditions would count in favour of the PPO application being granted. I decline the application for an IDO but reserve leave for Corrections to apply again for an IDO should circumstances change.

Mr McCord

Mr McCord’s history

[3] Mr McCord is 37 years old. He is diagnosed with schizophrenia and is on medication, including anti-psychotics. He has cognitive deficits. He was sexually abused in his early teenage years, and experienced and witnessed physical abuse during his childhood. His father died when he was 16. He has previously suffered from two untreated head injuries. He is engaged to be married. His fiancée and whānau live in the Auckland region.

[4] Mr McCord has 157 convictions dating from 1998. They include a range of violent and sexual offences, including:

(a) male assaults female or contravening a protection order in 1998 (three times), 2000 (twice), 2001, 2012;
(b) various other forms of assault, fighting, behaving threateningly or threatening to kill, assaulting police or injuring with intent to injure in 1999, 2000, 2002, 2003, 2005 (twice), 2009, 2010 (five times);

(c) obscene exposure in 1999, indecent assault in 2003;

(d) possession of an offensive weapon in 1999, 2003, 2005;

(e) kidnapping and indecent assault of a female between 12 and 16 in 2003;

(f) a series of offences in 2005 against a 15-year-old girl, including unlawful sexual connection with a young person, kidnapping, wounding with intent to injure and male assaults female;¹ and

(g) assaulting a female over the age of 16 in 2013 (twice).

[5] The best that can be said about this record is that the frequency of offending appears to have been decreasing, though he may also have had decreasing opportunity to offend on account of being imprisoned and subject to other restrictions. There are indications the seriousness of the offending has been increasing though it is not (yet) amongst the most serious offending seen in the Courts.

[6] In 2010, the District Court granted an application for an ESO in respect of Mr McCord for two years.² While subject to the ESO, in 2013, Mr McCord committed offences noted above against his 77-year-old neighbour. He sat next to her on a couch while visiting her, put his hands on her leg, his arm around her neck, his hand over her vagina on top of her clothing and pushed down. He referred to wanting to have sex with her. She told him to get out. In sentencing him Courtney J declined to impose preventive detention but said he was “very close” to being made subject to preventive detention and she was “very concerned about the fact [he had] not been motivated to get any help and very, very worried about the fact [he] committed this offence while

¹ R v McCord [2007] NZCA 312.

2. Chief Executive of the Department of Corrections v McCord DC Auckland CRI-2008-085-6675, 23 June 2010, upheld in McCord v Chief Executive of the Department of Corrections [2010] NZCA 606.

[he was] subject to an extended supervision order which was supposed to be something to stop [him] offending again”. ³

[7] On 13 April 2017, Davison J imposed a further ESO on Mr McCord, finding the evidence before him “cogent and compelling” in demonstrating he had a high risk of sexual offending and a very high risk of relevant violent offending.⁴ This ESO was for 10 years, with a direction the Parole Board impose an intensive monitoring special condition. The Board imposed such a condition, including that Mr McCord “submit to being accompanied and monitored for up to 24 hours a day” by an approved individual. Other conditions included that he:

(a) reside at an address directed by a probation officer;

(b) not leave his address between 7.00 pm and 5.00 am daily without prior approval; and

(c) submit to electronic monitoring as directed by the probation officer.

[8] The intensive monitoring condition expired on 12 April 2018 as required. On that date, the Parole Board granted Corrections’ application to revise Mr McCord’s ESO conditions and imposed special conditions including that he:

(a) reside at an address directed by a probation officer;

(b) not leave that address between 8.00 pm and 8.00 am daily without prior written approval;

(c) be placed in the care of an agency approved by the Chief Executive, Anglican Action, between the hours of 8.00 am and 8.00 pm each day of the week and, whilst in the care of that agency, be accompanied and monitored by an agency staff member at all times unless with prior written approval; and

³ R v McCord [2013] NZHC 3261 at [9].

⁴ Department of Corrections v McCord [2017] NZHC 744 at [68].

(d) submit to electronic monitoring as directed by the probation officer.

[9] Those conditions cease if the Board varies them, and the residential condition and electronic monitoring will be subject to biennial review.⁵ I am advised Mr McCord usually sees his fiancée for a contact visit on Saturdays from 1.00 pm to 5.00 pm. He has counselling sessions with a psychologist.

Applications and evidence

[10] On 4 September 2018, Corrections applied for a PPO and, pending determination of that, an IDO that Mr McCord be detained by Corrections at the Matawhaiti Residence in Christchurch. Mr McCord was told that meant he may be moved to Christchurch Men’s Prison, away from his fiancée and family. He became depressed and stressed. At 1.33 am on 31 October 2018, he cut off his GPS bracelet and absconded from Spring Hill. He was apprehended by the Police within two and a half hours near State Highway 1.

[11] The Deputy Chief Executive of Corrections, Mr Jeremy Lightfoot, has provided an affidavit which annexes Mr McCord’s criminal history, the current ESO, two Parole Board decisions and reports by two health assessors, Dr Nick Wilson and Mr Steve Berry, both registered clinical psychologists. I heard testimony from Dr Wilson and Mr Berry, who each interviewed Mr McCord in March 2018 and released reports in May and April 2018 respectively. Ms Louise Wood, Operations Director for Corrections in the Central Region, has also provided an affidavit with updating information about Mr McCord’s situation. And I have an affidavit from Mr McCord.

Public Protection and Interim Detention Orders

[12] Unusually, in New Zealand’s criminal justice regime, ESOs, PPOs and IDOs restrict a person’s freedom because of what a court considers they might do in the future rather than as punishment for what they have done in the past.⁶

⁵ Parole Act 2002, s 107RB.

⁶ Department of Corrections v Thorpe [2017] NZHC 2559 at [12].

The PPO regime

[13] Under the Public Safety (Public Protection Orders) Act 2014 (the Act), a person subject to a PPO is in the legal custody of Corrections (s 21) and must stay in the residence the Corrections designates (s 20). Residences are buildings located in prison precincts designated by the Minister of Corrections (s 114). A resident must obey every lawful direction from Corrections and Police (s 22) and must not possess prohibited items (s 23). He or she must have the opportunity to provide input into the making of rules for and the running of the residence and “must be given as much autonomy and quality of life as is compatible with the health and safety and well-being of the residents and others and the orderly functioning of the residence” (s 27). Residents have particular recognised rights (ss 28–40) but are subject to particular monitoring, restrictions and requirements (ss 45–77).

[14] There is currently only one residence designated as a PPO residence: Matawhaiti, inside the secure perimeter of the Christchurch Men’s Prison. It consists of two buildings, separate from the main prison building, each containing three single- person accommodation units. Three units are occupied.

[15] According to s 4 of the Act, its objective is “to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences”. It is not “to punish persons against whom orders are made under this Act”. Section 5 requires a court exercising a power under the Act to 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:

(c) a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

(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.

Public Protection Orders

[16] A court may make a PPO under s 13:

13 Court may make public protection order

(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—

(a) the respondent meets the threshold for a public protection order; and

(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 (1)(b) unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:

(a) an intense drive or urge to commit a particular form of offending:

(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):

(d) poor interpersonal relationships or social isolation or both.

[17] So there are four steps for a court to decide a PPO application under s 13:

• (a) First, whether the court is satisfied the respondent exhibits a severe disturbance in behavioural functioning established by evidence of each of the four characteristics identified in s 13(2).

(b) Second, whether the court is satisfied, under s 13(1)(a), that on the balance of probabilities the respondent meets the s 7 threshold.

(c) Third, whether the court is satisfied, under s 13(1)(b), that on the balance of probabilities there is a very high risk of the respondent imminently committing serious sexual or violent offending if released into the community or left unsupervised.

(d) Fourth, whether to exercise the statutory discretion to make a PPO.

Interim Detention Orders

[18] Section 107 provides for interim detention pending determination of an application for a PPO:

107. Court may order interim detention of, or interim imposition of conditions on, respondent

(1) This section applies when, before an application for a public protection order is finally determined, 1 or more of the following events occur:

(a) a respondent is released from detention:

(b) a respondent who is subject to an extended supervision order ceases to be subject to conditions of the kind referred to in section 7(1)(b) or (c):

(c) the respondent is brought before the court under section 106:

(d) the court gives a direction under section 12(2):

(e) a respondent to whom section 7(1)(d) applies arrives in New Zealand.

(2) The court may, on an application by the chief executive, order that, until the application for a public protection order is finally determined, the respondent is to be detained by a person, and in a place, specified in the order.
(3) When the court makes an order under subsection (2) (an interim detention order), the court may suspend that order subject to any conditions that the court thinks fit.

(4) An order under this section ceases to have effect when the application for a public protection order is finally determined or discontinued.

[19] If the pre-condition for an IDO in s 107(1) is met, the Supreme Court and Court of Appeal have confirmed the test for imposing an IDO is the same high test as that which applies to public protection orders under ss 7 and 13, given the intrusion an IDO would make into a respondent’s rights and freedoms.⁷ For an IDO, though, applications are “necessarily determined on a provisional view of the evidence”, because all the evidence for the substantive hearing may not yet have been fully tested or called.⁸

[20] Mr Allan submits it is important, in deciding whether to grant an IDO compared with a PPO, for the court to consider whether the pre-condition for an IDO in s 107(1) is met. I agree. While the test of whether to impose an IDO involves the same steps as the test for whether to impose a PPO, s 107(1) also establishes an additional pre-condition for an IDO to be available. It provides the PPO must not yet have been finally determined, and one of five different events, which trigger the potential availability of an IDO, must occur. It is the events in s 107(1)(b) and s 7(1)(b) that are relevant here.

Five steps of determining the IDO

[21] So, to decide whether to make an IDO in relation to Mr McCord, I have to determine:

(a) First, under s 107(1)(b), whether Mr McCord is subject to an ESO and has ceased to be subject to conditions of the kind referred to in s 7(1)(b).

⁷ Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR

83 [Chisnall (Supreme Court)] at [33]–[36], affirming Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 at [32] and [38].

⁸ Chisnall (Supreme Court), above n 7, at [20].

(b) Second, whether I am satisfied he exhibits a severe disturbance in behavioural functioning established by evidence of the four characteristics identified in s 13(2).

(c) Third, whether I am satisfied, under s 13(1)(a), that on the balance of probabilities he meets the s 7 threshold.

(d) Fourth, whether I am satisfied, under s 13(1)(b), that on the balance of probabilities there is a very high risk of Mr McCord’s imminently committing serious sexual or violent offending if released into the community or left unsupervised.

(e) Fifth, whether to exercise the statutory discretion to make a PPO.

[22] I treat each issue in turn, outlining the law, the parties’ submissions and my reasoning and conclusion on each. It is convenient to deal with the fourth and fifth steps together.

1 Is the precondition event which triggers potential IDO availability met?

Relevant law

[23] Section 107(1) of the Act requires, as a precondition for a court ordering an IDO; the respondent must be subject to an ESO; and one or more of five different events must have occurred. The first two are where the respondent is no longer subject to restrictions, whether: imprisonment; an ESO with two sorts of conditions; or a protective supervision order. The third is where the respondent is brought before a court for failing to attend a court hearing. The fourth, is where a court is satisfied it could make a PPO but is concerned the respondent may be mentally disordered or intellectually disabled. In that case the Court may direct Corrections to consider the appropriateness of a mental health or intellectual disability assessment, and must impose an IDO in the meantime. The fifth is where a respondent arrives in New Zealand within six months of ceasing to be imprisoned or subject to conditions for a serious sexual or violent offence overseas. These trigger events reflect the objective
of the Act of “protecting members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences”.

[24] The trigger event relevant here arises under s 107(1)(b) of the Act: Mr McCord must be subject to an ESO and must “cease to be subject to conditions of the kind referred to in” section 7(1)(b). Section 7(1)(b) sets the threshold for imposition of a PPO, which is examined further below in its own right. It states:

(b) the person is subject to an extended supervision order and—

(i) is, or has been, subject to a condition of full-time accompaniment and monitoring imposed under section 107K of the Parole Act 2002; or

(ii) is subject to a condition of long-term full-time placement in the care of an appropriate agency, person, or persons for the purposes of a programme under sections 15(3)(b) and 16(c) of the Parole Act 2002; ...

[25] An ESO is imposed under s 107I of the Parole Act 2002 on a person who has been sentenced to imprisonment for a serious sexual or violent offence. It applies after the determinate sentence imposed has been completed. Under s 107K (referred to in s 7(b)(i)), the Parole Board can impose any special condition on its subject set out in s 15 of the Parole Act, including a residential restriction or intensive monitoring condition.⁹ The Board has been able to impose an intensive monitoring condition, which includes 24-hour line of sight monitoring, only since 2014, and only if a court so orders. Sections 107IAC and 107K of the Parole Act provide such a condition can only be imposed for a period of 12 months.

[26] The Parole Board can impose other special conditions including relating to: residence; drugs; electronic monitoring conditions; and, relevant here, conditions requiring the offender to participate in programmes to reduce the risk of further offending, including in the care of appropriate persons or agencies such as religious groups. The Parole Board can vary conditions of an ESO on application (s 107O of the Parole Act) and must review any high-impact conditions of an ESO every two years (s 107RB of the Parole Act). The conditions for imposing a special condition are provided in s 15 of the Parole Act 2002, which relevantly provides:

⁹ Parole Act 2002, ss 107K.

(2) A special condition must not be imposed unless it is designed to—

(a) reduce the risk of reoffending by the offender; or

(b) facilitate or promote the rehabilitation and reintegration of the offender; or

(c) provide for the reasonable concerns of victims of the offender; or

(d) comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under section 107IAC, to impose an intensive monitoring condition.

Submissions

[27] Ms Charmley submits the s 7(1)(b)(i) threshold under the Public Safety (Public Protection Orders) Act is met because Mr McCord is subject to an ESO and has been subject to an intensive monitoring condition. She submits that, because the disjunctive “or” is used in s 7(1)(b), the pre-condition in s 107(1)(b) is satisfied. Mr Allan submits Mr McCord does not qualify for an IDO under s 107(1)(b) because he has not ceased to be subject to conditions of the kind referred to in s 7(1)(b)(i) or (ii), because of the conditions of his current ESO.

Is the pre-condition for an IDO satisfied?

[28] Mr McCord is subject to an ESO, so the chapeau of s 7(1)(b) is satisfied. Has he “ceased to be subject to conditions of the kind referred to in section 7(1)(b)”? He has ceased to be subject to an intensive monitoring condition imposed under s 107K that expired on 12 April 2018. So he has ceased to be subject to a condition of the kind referred to in s 7(1)(b)(i). But he is still subject to conditions of his current ESO that involve his long-term placement in the care of Anglican Action, for the purposes of a programme under s 15(3)(b) and 16(c)(iv). And for the time he is not in their care, he is subject to GPS monitoring and a curfew. So it could be he is still subject to a condition of long-term full-time placement in the care of an appropriate agency under s 7(1)(b)(ii). Does that change whether the pre-condition of s 107(1) is satisfied?

[29] I consider the pre-condition for s 107(1) is satisfied. Mr McCord has ceased to be subject to intensive monitoring under his ESO. It is that event which has impelled Corrections to apply for a PPO and IDO. The application is premised on the
risk to members of the public posed by Mr McCord not being adequately managed by the conditions of his current ESO. It would not be consistent with the objective of the Act if conditions imposed to manage Mr McCord’s risk so far as possible, but which Corrections submit are inadequate for that purpose, could prevent Corrections applying for an IDO at all.

2 Is the behavioural functioning pre-condition met?

Relevant law

[30] The High Court has determined the wording of s 13(2) means a respondent must exhibit “as part of his personality, each of the four characteristics described; and also in each case, that he has them to a high level”.¹⁰ If so, that will constitute the “severe disturbance in behavioural functioning” that is a pre-condition for a PPO under s 13(2). In summary, the four characteristics concern: an intense drive to offend; limited self-regulatory capacity; lack of concern for the impact of offending on victims; and poor interpersonal relationships or social isolation.

Submissions

[31] Ms Charmley, for Corrections, submits I can be satisfied Mr McCord exhibits a severe disturbance in behavioural functioning, established by evidence to a high level, of the relevant characteristics in s 13(2). Mr Allan, for Mr McCord, does not dispute that, given the many risk assessments using methodology which cannot be questioned.

Decision on behavioural functioning pre-condition

[32] In their written reports, Dr Wilson and Mr Berry each considered Mr McCord satisfied each of the s 13(2) characteristics. In their evidence before me, they maintained the opinions expressed in their written reports. None of this is questioned. I am satisfied, on the basis of the evidence of the two health assessors, that each of the

¹⁰ Chief Executive of the Department of Corrections v Wilson [2016] NZHC 1081 at [26]–[27]; adopted in Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 [Chisnall (High Court)] at [48]-[51]. This is similar to the Court of Appeal’s approach to the behaviour an offender “displays” as a pre-condition for an ESO under s 107IAA. See Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26].

s 13(2) characteristics required is satisfied to the standard required for an IDO to be granted. In summary, I am satisfied, for the purposes of determining whether to grant an IDO:¹¹

(a) Mr McCord has a long history of obsessive sexual interest and disinhibited sexual behaviour related to a persistent sexual entitlement drive. Violence has been a part of Mr McCord’s life since he was taught to be violent by family members when he was a small child. He has a long history of family violence offending. Impulsively aggressive behaviour has been a prominent characteristic of his offending pattern over the last 20 years. He has an intense urge to be criminally violent.

(b) Mr McCord has exhibited poor self-regulatory capacity from an early age, is generally impulsive, unable to cope with stress and does things on the spur of the moment without thinking through the consequences. He has limited self-regulatory capacity.

(c) Mr McCord has a long-standing, over-inflated view of himself and a propensity to exploit others to his own advantage. It is well-established he has low capability for empathy for people affected by his offending. He blames his victims, circumstances or the Police for his offending. He has an enduring absence of understanding and concern for the impact of his offending on victims.

(d) Mr McCord has a history of feeling very lonely due to social isolation. He has had difficulty forming stable interpersonal relationships from an early age. He has assaulted almost every partner he has had and has a history with women marked by jealousy and violence. He has poor interpersonal relationships.¹²

11. Report of Mr Steven Berry of 17 April 2018 [Berry] at [50]–[52]; Report of Dr Nick Wilson of 7 May 2018 at [73]–[76].

¹² Berry at [52](e).

3 Is the s 7 threshold for a PPO met?

Relevant law on the threshold for a PPO

[33] The relevant threshold for a court to impose a PPO under s 13(1)(a) is “if the court is satisfied, on the balance of probabilities” the respondent meets the threshold for a PPO. As defined in s 3, the threshold is set out in s 7(1) and, as explained in step one above, it is s 7(1)(b) that is relevant here: that the respondent is subject to an ESO and (i) is or has been subject to intensive monitoring or (ii) is subject to a condition of long-term full-time placement in the care of an appropriate agency.

[34] The test for whether the threshold for a PPO in s 7(1) is met is closely related to whether the pre-condition for an IDO in s 107(1), that invokes s 7(1), is met. The former involves whether a respondent is or has been subject to certain conditions and the latter involves whether they have ceased to be subject to conditions of that kind.

[35] There has been some difficulty in the case law as to the meaning of the “balance of probabilities” language used in conjunction with the Court being “satisfied”, in s 13(1)(a), of the matters in s 7(1).¹³ Following Court of Appeal and Supreme Court decisions, a court being “satisfied” simply means it makes up its mind and is inconsistent with a standard of proof.¹⁴ I consider the balance of probabilities language is not likely to make any realistic difference to whether the s 7(1)(b) threshold is satisfied. The decisions required under s 7(1)(b) concern matters of legal status such as whether the respondent is subject to an ESO. Those matters are effectively determined by court findings about the effect of the law. They are not a matter of probability about a fact where a standard of proof is relevant.

Submissions and decision

[36] Ms Charmley submits the threshold in s 7(1)(b)(i) is met. Mr Allan understandably does not seriously challenge this. Mr McCord is subject to an ESO

¹³ Deputy Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536 [McCorkindale] at [14]; Chisnall (High Court), above n 10, at [44].

¹⁴ R v White (David) [1988] NZCA 55; [1988] 1 NZLR 264 (CA) at 268; R v Leitch [1998] 1 NZLR 420 (CA) at 428; McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [71]–[75]; Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.

and has been subject to an intensive monitoring condition under s 7(1)(b)(i). On Mr Allan’s argument in relation to the IDO precondition, Mr McCord is also subject to a condition of long-term full-time placement in the care of an appropriate agency under s 7(1)(b)(ii).

4 & 5 Is there a very high risk of imminent serious offending justifying an IDO?

Relevant law

[37] Section 13(1)(b) requires me to be satisfied, on the balance of probabilities, that there is a very high risk of imminent serious sexual or violent offending by the respondent if he is released from prison or left unsupervised.

[38] The balance of probabilities language in relation to the risk of reoffending in s 13(1)(b) reflects the nature of the court’s decision being a predictive risk assessment of a future fact. Similar wording is used in relation to questions of predictive risk in bail decisions.¹⁵ But “the balance of probabilities” does not add or detract from the additionally prescribed probability of “a very high risk”. It makes no sense for a court to assess whether a very high risk is probable or more likely than not.

[39] “Imminent” is defined in s 3, in relation to the commission of serious sexual or violent offences by a person, to mean “that the person is expected to commit an offence as soon as he or she has a suitable opportunity to do so”. Accordingly Elias CJ, in Chisnall v Chief Executive, Department of Corrections, observed the “imminence” of the very high risk of serious sexual or violent offending required by s 13(1)(b) was not “a purely temporal assessment but one linked to opportunity”.¹⁶ There, Corrections had applied for a PPO and IDO or, alternatively, an ESO and ISO. She considered the availability of ESOs and their interim equivalent as an alternative means of monitoring risk “is a factor that bears on whether the more restrictive [PPO] (and [IDO] pending its determination) is appropriate”.¹⁷ She stated “[i]f conditions can be put in place without detention that would remove the opportunity or restrict it to an extent that there is no longer very high risk of imminent offending of the type, then a [PPO] or an

¹⁵ Nogueira v New Zealand Police [2018] NZHC 1435 at [5]–[15].

¹⁶ Chisnall (Supreme Court), above n 7, at [39].

¹⁷ At [38].

[IDO] ought not to be made.”¹⁸ The other members of the Court agreed “that in making either an [IDO] or a substantive [PPO], it is necessary for the court to consider the least intrusive means of managing any risk posed by the [respondent]”.¹⁹

[40] In applying that, the High Court has expressed two alternative views of the state of affairs against which risk, or opportunity, is to be measured. In Deputy Chief Executive of the Department of Corrections v McCorkindale, the respondent was subject to an ESO.²⁰ In considering whether to impose a PPO, Gendall J assessed his risk against the pre-existing ESO conditions.²¹ In Chisnall, the respondent was detained at Matawhaiti under an IDO that expired on determination of the PPO. In considering whether to impose a PPO, Wylie J assessed a respondent’s risk against him not being supervised, according to the terms of s 13(1)(b)(ii), rather than against the conditions of an alternative possible ESO which could be imposed.²² But he observed that, if he determined that the test for imposition of PPO was met, he still retained a discretion whether or not to make the PPO.²³ He considered the alternative of a possible ESO with an intensive monitoring condition to be relevant at that point.

Submissions

[41] Ms Charmley submits I should follow the approach of Wylie J in Chisnall, because that better accords with the text of the section. She submits the evidence establishes Mr McCord is at very high risk of imminent serious violent and sexual offending in the context of intimate relationships. She points to concerns, particularly by Mr Berry, about an inappropriate sense of self-entitlement and impulsive purchasing habits and to Mr McCord’s previous breaches of ESOs. Ms Charmley submits the Act empowers PPOs to made in respect of the small group of offenders who pose a very high risk of serious and violent offending where an ESO is not sufficient to mitigate that risk. She submits Mr McCord’s current ESO regime is inadequate to manage his risk and there is no certainty about the future conditions of any ESO, which could be more relaxed than those currently in force. She submits

¹⁸ At [40].

¹⁹ At [83].

²⁰ McCorkindale,above n 13.

²¹ McCorkindale,above n 13, at [67]–74].

²² Chisnall (High Court), above n 10, at [89]–[93].

²³ At [93].

there are no extraordinary circumstances which mean a PPO should not be granted here so an IDO should be imposed.

[42] Mr Allan acknowledges the Court can be “pretty sure” the very high-risk threshold is met here. He submits the purpose of s 107 is to enable quick action pending determination of a PPO if the current care regime does not mitigate the risk posed by the respondent. He submits special conditions of the current ESO will not be changed willy-nilly by the Parole Board and points to the requirements of s 15 of the Parole Act that the Board make decisions that protect the public. He submits the very high-risk threshold being met means it is not plausible Mr McCord could succeed if he applied to vary his conditions. He submits they are quite certain. Mr Allan submits Mr McCord’s current care arrangements under this existing ESO provide him with good support day to day and encourage him to behave in a socially acceptable way. He submits Mr McCord has not reoffended or breached his conditions since his intensive monitoring finished in April 2018, except for the 31 October incident which followed his anxiety about the implications of the pending PPO application. He submits imposition of an IDO here will effectively determine the PPO application because Mr McCord will not further be able to demonstrate his ability to work with carers and comply with the GPS monitoring conditions.

Decision on risk and exercise of discretion

[43] I do not consider the differences in approach between Wylie J in Chisnall and Gendall J in McCorkindale, in assessing the state of affairs against which risk is to be measured, is likely to lead to different results. Both approaches involve assessment of the respondent’s risk and whether existing or potential ESO conditions would adequately mitigate that risk. Both are consistent with the majority of the Supreme Court’s statement quoted above. But Wylie J’s approach is more consistent with the terms of s 13(1)(b)(ii). I follow his approach of considering, first, the respondent’s risk against him not being supervised, and then whether to exercise the discretion to impose an IDO, taking into account the alternative of the current ESO and its conditions.
[44] There is no doubt, on the evidence before me, that there is a very high risk of imminent serious offending if Mr McCord is left completely unsupervised. That was the conclusion of Mr Berry and Dr Wilson.²⁴ Mr Allan does not submit otherwise.

[45] The real issue is whether Mr McCord, subject to his current ESO conditions, poses a sufficiently high risk of imminent offending between now and determination of the PPO application to warrant an IDO in the meantime.

[46] The time over which an IDO would be in force appears to be three or four months. Ms Charmley advises Corrections could argue the case next week. Mr Allan, who was not instructed long ago, requires time to commission an expert report but considers that is highly likely to be within three months. He indicated he could take immediate steps to work to whatever timetable the court determines. Counsel agree the hearing could be confined to one day, on the basis Mr Allan does not intend to challenge the risk assessment methodology. Some time will be required for the court to make its decision.

[47] Mr McCord’s previous offending occurred when he was not subject to restrictions of the sort to which he is currently subject. Apart from the 31 October incident, he has not breached the conditions of his current ESO. Those conditions are highly restrictive. He is required to reside within the boundaries of Spring Hill prison. He is subject to a curfew not to leave that address between 8.00 pm and 8.00 am every day and is subject to GPS electronic monitoring as directed by his Probation Officer. Between 8.00 am and 8.00 pm every day he is in the full-time care of Anglican Action and is accompanied and monitored by an agency staff member at all times.

[48] At the hearing, the two health assessors each gave evidence on the implications of the current conditions. Dr Wilson considered that whether an ESO without intensive monitoring would be sufficient to manage Mr McCord’s risk was a difficult question to answer.²⁵ He considered the current management appears to have some continuity but there appears to be a trend towards Mr McCord being less well.²⁶ Under

²⁴ Berry at [56]; Wilson at [79].

²⁵ Notes of Evidence (NOE) at page 4/line 7–11.

²⁶ NOE at 4/10–11.

cross-examination, Dr Wilson acknowledged Mr McCord’s partial residential restriction with electronic monitoring is very similar to intensive monitoring at night- time.²⁷ He considered there was a more marked difference during the day but acknowledged Mr McCord is required to be constantly accompanied.²⁸ He accepted there was a degree of mitigation of opportunity in the current conditions and considered that without deterioration in Mr McCord’s state there would be a good chance that would continue.²⁹ But based on Mr McCord’s deterioration, he would say the reliability of that is open to question.³⁰ Dr Wilson remained unsure the current conditions provided sufficient management.³¹ He considered the opportunity to reoffend would be more reliably diminished by an IDO.³²

[49] Mr Berry considered Mr McCord’s behaviour suggests that if he has opportunity and not sufficient supervision or monitoring then he poses a very high risk.³³ Whether anything short of intensive monitoring would be sufficient to adequately manage the risk would depend on the context.³⁴ Under cross-examination, Mr Berry agreed the current care regime would reduce the chances of reoffending to some extent but considered that difficult to quantify.³⁵ He considered the conditions would undoubtedly make the risk of imminent re-offending less immediately concerning but considered it was difficult to determine what regime would match the risk.³⁶ He agreed residential detention in Christchurch was not the only option and while intensive monitoring could provide an extra level of management of risk, there is no certainty it would eliminate the risk.³⁷ He has some concerns about the current placement given the attempt to abscond.³⁸ Mr Berry agreed that Mr McCord being aware that any breach of conditions would increase the risk of a PPO being made would make a difference to his risk of reoffending.³⁹ He remained concerned about

²⁷ NOE at 6/29–9/13.

²⁸ NOE at 9/18–21.

²⁹ NOE at 12/24–28 and 12/33–13/3.

³⁰ NOE at 13/4–5.

³¹ NOE at 14/31–34.

³² NOE at 16/4.

³³ NOE at 17/18–21.

³⁴ NOE at 17/17.

³⁵ NOE at 18/16–19.

³⁶ NOE at 36/16–24.

³⁷ NOE at 19/31–34.

³⁸ NOE at 23/3–9.

³⁹ NOE at 27/22–28.

Mr McCord’s impulsivity and considered he might struggle to manage in a perfect storm of circumstances.⁴⁰

[50] I do not consider the evidence in favour of an IDO is compelling. It does not rise to the level of virtual certainty of Mr McCord’s risk of imminent serious reoffending required by the Act in order for a IDO to be made, in light of the current ESO conditions. I consider Mr McCord’s current ESO conditions substantially mitigate Mr McCord’s opportunity to offend over the three or four months until the PPO is determined. He did not reoffend in the two-month period before intensive monitoring was imposed in April 2017, nor in the seven months since the current conditions were put in place in April 2018. The most worrying feature of his recent behaviour is the 31 October incident where he cut off his electronic monitoring bracelet and absconded. But he was apprehended within two and a half hours. I understand the Anglican Action workers he gets on with had been transferred away from him and he was anxious about the PPO and IDO application. Those workers are now working with him again. And he understands that any further breach of his ESO condition will make the PPO application much more likely to succeed.

[51] I accept the current conditions of Mr McCord’s ESO are not quite as restrictive as the terms of the IDO sought would be. But, while his current ESO conditions do not remove opportunity completely, I consider they do restrict it to the extent there is not a very high risk of imminent offending during the period until the PPO application is determined. Elias CJ observed in Chisnall that if conditions can restrict the opportunity to reoffend to the extent there is no longer a very high risk of imminent offending, then an IDO ought not be made.⁴¹ I consider that is so here. The majority of the Supreme Court similarly agreed the Court should consider the least intrusive means of managing any risk posed by the respondent. I consider that is by way of the current ESO conditions, here.

[52] I do not accept Corrections’ submission that risk emanates from the possibility the ESO conditions might be varied. The Parole Board will be responsible in

⁴⁰ NOE at 27/28–28/4.

⁴¹ Chisnall (Supreme Court), above n 7, at [40].

considering and determining any such application and would have to have regard to this judgment in making its decision.

[53] Furthermore, over the longer term, I consider Mr McCord remaining in the same area as his family and support structures with access to supervised visits with them and ongoing treatment from his existing consultant psychiatrist and psychiatric nurse, is more likely to facilitate Mr McCord’s rehabilitation than being confined to the grounds of Christchurch Mens’ Prison where he will associate primarily with three serious sexual or violent offenders.

[54] I have considered whether to impose an IDO on different conditions, rather than on conditions which would confine Mr McCord to Matawhaiti. But I cannot identify such conditions additional to those of the current ESO. That conclusion supports my decision not to exercise my discretion to make an IDO.

Result

[55] I make the following orders:

(a) I decline the application for an IDO.

(b) I reserve leave to either party to apply to Court for a further IDO if circumstances change.

(c) I direct the Registry to set down a one-day hearing of the PPO application in the week of 11 March 2018.

[56] I request that Mr Allan explain carefully to Mr McCord the importance of him not breaching the conditions of his current ESO.




Palmer J