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Chief Executive, Department of Corrections v Pori [2022] NZHC 3581 (21 December 2022)

Last Updated: 10 October 2023

JUDGMENT OF NATION J

• [1] The respondent (Pori)¹ is subject to a public protection order (PPO) under the Public Safety (Public Protection Orders) Act 2014 (the Act).² That order was made because the Court was satisfied there was a very high risk of imminent serious sexual or violent offending by Pori.³ Pori was previously detained and living in a residence established under the Act called Matawhāiti. In this judgment, I must decide whether Pori should now be subject to a prison detention order. Such an order will require his continued detention in prison when he has not been charged with any offence for which he could be imprisoned and when he is not subject to a sentence of imprisonment.

¹ How the respondent likes to be referred to.

² Chief Executive, Department of Corrections v Pori [2021] NZHC 2305 [PPO Decision].

³ Public Safety (Public Protection Orders) Act 2014, s 13(1).

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v PORI [2022] NZHC 3581 [21 December 2022]

Background

• [2] Pori is aged 61. Prior to being under an extended supervision order (ESO),

Pori had the following convictions:⁴

(a) 1983 — conviction for rape from the Cook Islands;

(b) 1988 — convictions for being unlawfully found and assault on a child under 14 from the Cook Islands;

(c) 1993 — conviction for rape from the Cook Islands; and

(d) 2006 — convictions for sexual violation by unlawful sexual connection and indecent assault of a nine-year-old girl in New Zealand.

• [3] His offending in 1983 and 1988 involved entering the victim’s house at night, without consent.⁵

• [4] In 2010, Pori was exited from a detention treatment unit following an implied threat to kill a prison officer.

• [5] Pori initially became subject to a 10-year ESO imposed by the Napier High Court on 4 August 2011. In December 2017, that was further extended for seven years, with intensive monitoring for 12 months from the date the order was made.⁶

• [6] In 2013, he committed offences of threatening to kill/do grievous bodily harm and wilful damage. These offences were committed in custody and involved Pori smashing a glass door with a broom and making lurid threats towards a female prison officer, telling her he would like to kill her and cut her throat. This was followed by Pori threatening to kill a male Corrections officer.

• [7] In February 2018, Pori was released from custody to Tōruatanga, a residence closely associated with Matawhāiti and adjacent to Christchurch Men’s Prison. In

4. Chief Executive of the Department of Corrections v Pori [2020] NZHC 1446 [Interim Decision] at [13].

⁵ At [14].

⁶ Department of Corrections v Pori [2017] NZHC 3082.

May 2018, while there, Pori was very aggressive towards support staff and security. He made direct threats to kill and advanced on staff, forcing them to retreat from the lodge to outside the security fencing. Pori was arrested by Police and remanded in custody. He was convicted of threatening to kill/do grievous bodily harm.

• [8] There were later breaches of the ESO, incidents of aggression towards staff and, in March 2020, an attempted assault on a female staff member.

• [9] In June 2020, Pori was due to be sentenced on a charge of breaching the existing ESO. It was expected he would receive a term of imprisonment but, given the time he had spent in custody, it was anticipated he would be close to release on a time-served basis.⁷

• [10] In that context, the Chief Executive of the Department of Corrections (the Chief Executive) applied under s 104 of the Act for a PPO in respect of Pori and also for an order pursuant to s 107 of the Act that he be subject to an interim prison detention order to have effect until the application could be heard in full.

• [11] A barrister, Mr Kerry Cook, was appointed as litigation guardian for Pori in the proceedings for the PPO application.⁸

• [12] Both applications sought that Pori serve his interim prison detention order and PPO in prison.

• [13] In a judgment of 25 June 2020, Dunningham J made an interim prison detention order, to be served at Matawhāiti.⁹ Matawhāiti is a purpose-built, secure facility located alongside Christchurch Men’s Prison, designed to house individuals who are subject to a PPO.

⁷ Interim Decision, above n 4, at [3].

⁸ PPO Decision, above n 2, at [57].

⁹ Interim Decision, above n 4.

• [14] On 3 September 2021, with evidence that Pori had managed quite well at Matawhāiti under the interim prison detention order, Dunningham J made a PPO to be served at Matawhāiti.¹⁰

• [15] Dunningham J said the key issue for determination at the hearing as to that was whether it would be more appropriate to:¹¹

(a) direct the Chief Executive, pursuant to s 12 of the Act, to make an application under s 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (Mental Health Act); or

(b) make a PPO which would then effectively retain the status quo.

• [16] Dunningham J found the criteria for the making of a PPO had been made out. She found there was a very high risk of imminent serious sexual offending as defined in s 3 of the Act and as explained by Elias CJ for the Supreme Court in Chisnall v Chief Executive of the Department of Corrections.¹² Dunningham J accepted that a PPO should only be made when no less restrictive order was appropriate.¹³ As to that, Dunningham J considered whether it would be appropriate for an application to be made under s 45 of the Mental Health Act or under s 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.¹⁴ She held, on balance, the expert evidence was that Pori did meet the criteria in the Mental Health Act of having a mental disorder.¹⁵

• [17] Psychiatric evidence was before Dunningham J. She considered she should only make a direction under s 12 of the Act if:¹⁶

(a) there was some potential benefit for Pori; and

(b) the safety objectives of the Act would not be unduly compromised.

¹⁰ PPO Decision, above n 2, at [57].

¹¹ At [15].

12. At [41] citing Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [39].

¹³ At [50]−[53].

¹⁴ At [54].

¹⁵ At [61].

¹⁶ At [89].

• [18] Dunningham J concluded that neither requirement was met. Having regard to the psychiatric evidence, she said it was clear Pori’s condition was not amenable to treatment. As two psychiatrists accepted, for that reason, it was unlikely Pori would be detained subject to the Mental Health Act.¹⁷ Dunningham J said the specialists had given evidence that Pori was unsuitable for a forensic mental health facility.¹⁸ She referred to the agreement of Dr Monasterio and Mr Metoui that Matawhāiti was then the best place for Pori.¹⁹ Dunningham J concluded:
  • [94] Having heard the evidence I accept there is no existing facility which would be able to cope with Mr Pori’s needs, while keeping its staff and other patients safe, in particular, the females who reside or work there. In order to achieve that level of security, the facility would need to replicate the conditions at Matawhāiti. In other words, Mr Pori would need to know he could not physically leave the property because there were physical impediments to doing so. It would also have to provide the high staff/resident ratios that are available at Matawhāiti and have the strict and predictable procedural limitations which are in place. This includes limited and supervised access to females who attend there in a professional capacity.

• [95] Accordingly, I accept there is no obvious benefit to Mr Pori being considered for an order under the Mental Health Act. Given the inability to provide effective treatment to Mr Pori, I consider it is questionable whether, in fact, an order would be made. In any event, no existing treatment facility would be able to manage his risk of reoffending. If, as Mr Starling suggests, a facility was created with the assistance of Mental Health Services, to house someone like Mr Pori, I accept it would need to replicate the environment which is provided at Matawhāiti in order to manage Mr Pori’s risk of reoffending and to ensure the safety of the community.

• [19] On 20 September 2021, there was an incident when Pori became angry and abusive and used a stool to cause significant damage to the Matawhāiti facility. The residence manager considered a security emergency, as defined in s 74 of the Act, had arisen. She directed Corrections’ officers to take Pori into custody at Christchurch Men’s Prison.

• [20] For Pori to be held in prison for more than 24 hours, the Chief Executive had to promptly apply for an interim prison detention order, pursuant to s 74(5) of the Act. The Chief Executive made an application and such an order was made on 22

¹⁷ At [90].

¹⁸ At [91].

¹⁹ At [93].

September 2021.²⁰ The application for a substantive prison detention order remained before the Court.

• [21] Pori has been in Christchurch Men’s Prison since that time.

• [22] A hearing for the substantive application was scheduled for 4 April 2022. With the agreement of counsel, the proceedings was adjourned for work to be done on a behavioural support plan with representatives from the Laura Fergusson Brain Injury Trust. A neuropsychiatrist was to be engaged to help develop strategies. In a minute of 4 April 2022, Dunningham J recorded that counsel for the Chief Executive had advised there would be continuing work with Pori, including day visits for him to Matawhāiti with staff he gets on with. The Chief Executive’s view was that a permanent prison detention order would not be desirable, and steps were being actively taken to keep the options open for Pori.

• [23] Ultimately, the Chief Executive considered it necessary to proceed with the substantive application for a prison detention order. There was a hearing before me on 1 November 2022. Pori was present, represented by his counsel Mr Starling. Also present was his litigation guardian Mr Cook. Ms Boshier appeared for the Chief Executive. Evidence was provided through affidavits which had earlier been filed for the Chief Executive and updating affidavits. Three witnesses also gave evidence in person and were cross-examined.

Submissions

• [24] Ms Boshier acknowledged at the outset that, in Chisnall v Attorney-General, the Court of Appeal made a declaration of inconsistency between the PPO and ESO regimes, and s 26(2) of the New Zealand Bill of Rights Act 1990 (NZBORA).²¹ Section 26(2) provides that “[n]o one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again”.

• [25] In careful and detailed submissions, Ms Boshier considered whether and how the Chisnall decision required a significant recalibration of the interpretive approach

²⁰ Chief Executive, Department of Corrections v Pori [2021] NZHC 2501.

²¹ Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484.

to ESOs and, by extension, to prison detention orders. Ms Boshier’s written submissions included detailed reference to case law both in New Zealand and from other jurisdictions, and was provided to Mr Starling and Mr Cook only a short time before the hearing. Nevertheless, after they heard her submissions, neither took issue with them. Those submissions, for which the Court is grateful, are reflected in the analysis that follows.

• [26] Ms Boshier submitted that s 22 of the NZBORA, the right not to be arbitrarily detained, was not engaged by the prison detention order application. Pori’s detention was required by the PPO which had already been made. Changing the place of detention from the PPO residence to prison, in accordance with the safeguards of the required judicial process, means Pori’s continuing detention would have to be lawful and non-arbitrary.

• [27] It was accepted that s 23(5), the requirement for everyone deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person, could potentially be engaged since the conditions of detention in prison, treated as a remand prisoner, would be more onerous than those applying at Matawhāiti. She submitted s 23(5) could only be breached if the prison detention order was inappropriate to Pori’s risks and needs in the circumstances. She submitted, if the tests under s 85 of the Act for the making of a prison detention order were met, then his s 23(5) rights could be recognised with his being treated as a remand prisoner, as would happen with the making of a prison detention order.

• [28] Likewise, Ms Boshier accepted that rights under s 26(2) of the NZBORA against retroactive penalties and double jeopardy will be engaged just as they were when the PPO was originally made. This is because the conditions of detention, albeit as a remand rather than sentenced prisoner, approximate imprisonment and so would have a penalising effect on Pori.

• [29] Ms Boshier submitted, if the s 85 test for the making of a prison detention order is met, then the consequent limitation on his s 26(2) rights could be justified under s 5 of the NZBORA.
• [30] Ultimately, Ms Boshier submitted the risk Pori poses at this time to other residents and staff at Matawhāiti is unacceptably high, such that he cannot be safely managed. All less restrictive options for controlling his behaviour have been considered and any appropriate options tried. Therefore, it was appropriate to make a prison detention order.

• [31] In submissions for Pori, Mr Starling advised the decision to grant a PPO was subject to an appeal, to be heard in the Court of Appeal in April 2023. Mr Starling submitted that Pori’s detention in a prison was in breach of Pori’s right not to be subjected to disproportionately severe treatment under s 9 of the NZBORA and his right to be treated with humanity under s 23(5). He submitted this was so because Pori would not receive the standard of medical care necessary as his conditions (brain injuries, mental health disabilities and dementia) continue to deteriorate and his prison detention would be indefinite as his cognitive condition is not going to improve. He submitted prison detention would be in breach of Pori’s NZBORA right under s 22 not to be arbitrarily detained. He submitted it would be arbitrary because there could be a less restrictive alternative for Pori and the Chief Executive has failed to provide it.

• [32] He submitted the Act does not contemplate that the regime will necessarily be limited to a single residence so that it is incumbent on the Chief Executive to provide a facility which is consistent with Pori’s rights and, if the Chief Executive does not do so, then the detention is arbitrary. He said the Chief Executive needs to either adapt Matawhāiti to Pori’s needs or supply a more suitable place.

• [33] Mr Cook also directly addressed the Court. Mr Cook acknowledged that, subject to the Supreme Court’s decision in Chisnall on the constitutionality of these orders, Pori should remain in prison under the interim order.

Analysis

The law

• [34] The jurisdiction to order that a resident subject to a PPO be detained in prison pursuant to a PPO arises from s 85 of the Act. It reads:

85 Order for detention in prison

(1) The court may, on the application of the chief executive, order that a person subject to a public protection order be detained in a prison instead of a residence.

(2) The court may make an order under subsection (1) only if satisfied that—

(a) the person would, if detained or further detained in a residence, pose such an unacceptably high risk to himself or herself or to others, or to both, that the person cannot be safely managed in the residence; and

(b) all less restrictive options for controlling the behaviour of the person have been considered and any appropriate options have been tried.

(3) The court may make an order under subsection (1) against a person immediately after making a public protection order against that person.

(4) A prison detention order ceases to have effect if the person against whom it is made ceases to be subject to a public protection order.

• [35] In Chisnall v Attorney-General, the Court of Appeal made a declaration of inconsistency between the PPO and ESO regimes, and s 26(2) of the NZBORA, which provides that no one who has been finally acquitted, convicted or pardoned of an offence shall be tried or punished for it again.²²

• [36] The Court of Appeal held:²³

ESOs and PPOs are imposed on persons nearing the end of the sentences imposed on them by the courts in response to their criminal offending, applying the purposes and principles of sentencing set out in the Sentencing Act [2002] including the important purpose of protecting the community from the offender. The restrictions which then flow from both ESOs and PPOs are potentially very severe, and in the case of PPOs can amount to indefinite detention. This is punishment, in the absence of trial and conviction for a further offence. It is a marked departure from the legal order reflected in s 26(2) of the Bill of Rights Act.

• [37] The case law has not yet considered whether the Chisnall decision requires a significant recalibration of the interpretive approach to PPOs but there has been consideration of this in several decisions as to ESOs.

²² Chisnall v Attorney-General [2022] NZCA 24.

²³ At [218].

• [38] Ms Boshier carefully reviewed High Court judgments²⁴ and judgments of the Court of Appeal²⁵ as to ESOs since Chisnall. With the benefit of that review, I accept her submission that Chisnall has not required a recalibrated approach to the statutory criteria for an ESO.

• [39] In R (CA586/2021) v Chief Executive of the Department of Corrections, the Court of Appeal said:²⁶

[53] We accept the submission of R that consequent upon Chisnall, the continuation of the ESO needs to be clearly justified. Whilst that has always been the case, the declarations of inconsistency made by the Court emphasise the need for careful scrutiny. In this regard we note Chisnall holds that s 26(2) of the NZBORA (the second penalty provision) is capable of being subject to a reasonable limit. “Strong justification” will, however, be required, and that accordingly is the lens through which we assess whether the Judge erred in confirming the order.

(footnotes omitted)

• [40] I am satisfied that, as to ESOs, “careful scrutiny” must be applied to ensure a proposed ESO (or PPO) is “clearly” or “strongly” justified. The rights-based approach requires “strong justification” for an order to be made. As was submitted for the Chief Executive and accepted for Pori, the strong justification test must similarly underpin the justification for a prison detention order in this case.

• [41] In order to impose a prison detention order, the Court must be satisfied:²⁷

the person would, if detained or further detained in a residence, pose such an unacceptably high risk to himself or herself or to others, or to both, that the person cannot be safely managed in the residence ...

• [42] The test for imposing a PPO is on the balance of probabilities.²⁸ However, in relation to a prison detention order, the Court must be “satisfied” − that is, make up its

²⁴ Department of Corrections v Gray [2021] NZHC 3558; Miller v Department of Corrections [2022] NZHC 1342; Department of Corrections v Bell [2022] NZHC 2453; Department of Corrections v Brady [2022] NZHC 2179; and Department of Corrections v Mist [2022] NZHC 2178.

²⁵ R (CA586/2021) v Chief Executive of the Department of Corrections, [2022] NZCA 225; Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289; Chisnall v Chief Executive of the Department of Corrections [2022] NZCA 402; and Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507.

²⁶ R (CA586/2021) v Chief Executive of the Department of Corrections, above n 25.

²⁷ Public Safety (Public Protection Orders) Act, s 85(2)(a).

²⁸ Section 13(1).

mind − and, on the evidence, come to a judicial conclusion.²⁹ In relation to the phrase “satisfied”, which is the test for imposing an ESO, the Court of Appeal has stated “[t]here is no onus or standard of proof; rather, the court must make up its mind on the evidence”.³⁰ Nevertheless, the court must do this bearing in mind a prison detention order must be strongly justified after careful scrutiny of the evidence.

• [43] In her initial submissions, Ms Boshier submitted an unacceptably high risk must be one which is unable to be tolerated in terms of the safe management of the secure PPO residence.

• [44] In her more recent submissions, Ms Boshier informed the Court there had been no discussion as to the meaning of unacceptably high risk during the legislative process which led to the introduction of the Public Safety (Public Protection Orders) Bill.³¹ The term “unacceptably high risk” does not appear in any other New Zealand legislation and there is no case law as to the interpretation of s 85.

• [45] Ms Boshier referred to similar legislation in other jurisdictions and case law where that legislation had been considered.³²

• [46] In New South Wales v Thomas, albeit in relation to ESOs, the Court found the test of unacceptable risk would be satisfied if the risk was “present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made”.³³

²⁹ McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [72] and [75], citing R v Leitch [1998] 1 NZLR 420 (CA) at 428.

³⁰ Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [25], citing Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 at [12].

³¹ Public Safety (Public Protection Orders) Bill 2012 [68-3).

³² Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(1); Attorney-General for the State of Queensland v DBJ [2017] QSC 302; High Risk Serious Offenders Act 2020 (WA), ss 48(1) and 7(1); Director of Public Prosecutions (WA) v Williams [2007] WASCA 206, (2007) 85 WAR 297; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187, (2008) 38 WAR 207; Serious Offenders Act 2018 (Vic), ss 62(2) and 63(4); Nigro v Secretary to the Department of Justice [2013] VSCA 213, (2013) 41 VR 359; Criminal Code Act 1995 (Cth), s 105A.7; Attorney General (NSW) v Tillman [2007] NSWSC 605 at [27]; Cornwall v Attorney-General (NSW) [2007] NSWCA 374 at [21]; and State of New South Wales v Thomas [2011] NSWSC 118.

³³ State of New South Wales v Thomas, above n 32 at [20].

• [47] In terms of s 85 of the Act, part of the test in s 85(2)(a) is that there is “an unacceptably high risk” the relevant person “cannot be safely managed in the residence”.³⁴

• [48] Ms Boshier said the phrase “safely managed” had similarly not been considered during the introduction of the Public Safety (Public Protection Orders) Bill nor was there any case law considering its meaning. In her most recent submissions, Ms Boshier submitted the risk would be unacceptable where the safe management of the residents could not be ensured. She submitted such an interpretation would be consistent with the approach taken by the New South Wales Supreme Court in State of New South Wales v Thomas.

• [49] I have been assisted by the discussion in the various Australian state courts as to what is meant by “unacceptable risk”. I consider the Court would be setting the bar too low if it were to proceed on the basis the risk would be unacceptable where the safe management of the residents cannot be ensured.

• [50] In Attorney-General for the State of Queensland v DBJ, the Supreme Court of Queensland said:³⁵

• [12] As to what constitutes an “unacceptable risk”, that is “a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty”. The test is not satisfied by evidence of any risk that the released prisoner may commit a further serious sexual offence. What must be established by the Attorney-General, to the requisite standard, is an unacceptable risk, the determination of which involves a balancing of competing considerations. The notion of an unacceptable risk recognises that some risk can be acceptable consistently with the adequate protection of the community.

• [13] In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates. ...

• [14] As observed in Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 at [6]:

“Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates.

³⁴ Emphasis added.

³⁵ Attorney-General for the State of Queensland v DBJ, above n 32.

There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.”

(footnotes omitted)

• [51] In Western Australia, a similar approach was taken to the two judgments already referred to. In Director of Public Prosecutions (WA) v GTR, the majority said:³⁶

The word ‘unacceptable’ necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk ‑ A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase ‘unacceptable risk’ is that ‘it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ...’.

• [52] In Victoria, in Nigro v Secretary to the Department of Justice, the Court of Appeal held the critical factor in the determination is likely to be the gravity of harm of the offence which the respondent is at risk of committing.³⁷

• [53] I consider the approach Ms Boshier first submitted was more appropriate — that the unacceptably high risk to the person or others must be such a high risk that it cannot be tolerated and cannot be safety managed in the residence. This is a matter for judicial determination. It requires a value judgment as to what risk should be accepted against the serious alternative of not just depriving someone of a person’s liberty but of requiring them to be in custody in prison rather than a residence such as Matawhāiti. The assessment of “unacceptable risk” must be as to the nature and degree of the risk in the particular circumstances of the case and the person involved. The notion of an unacceptable risk recognises that some risk can be acceptable, consistent with the adequate protection of other people in the residence, but that risk should not be more than is tolerable or acceptable.

³⁶ Director of Public Prosecutions (WA) v GTR, above n 32, at [27].

³⁷ Nigro v Secretary to the Department of Justice, above n 32, at [130].

The evidence

• [54] I now consider whether, on the evidence, that threshold has been met.

• [55] The psychiatric and psychological assessments of Pori, referred to in Dunningham J’s judgment of 25 June 2020 when she made an interim prison detention order, are relevant.³⁸

• [56] In determining that Pori had an intense drive or urge to commit sexual offending, Dunningham J referred to the statement from Ms Waugh, a registered clinical psychologist and neuropsychologist, in a report dated 25 November 2019 where she stated:³⁹

Mr Pori demonstrates a history of offending that can occur in an impulsive, opportunistic manner; or by actively seeking out and creating opportunities to offend. His offending is motivated by an intense desire for sexual gratification and ungoverned by impulse control, anticipation of the consequence for himself or others, or an ability to take another’s perspective. ... His sexual offending has occurred over more than 35 years, with continued sexual offending and sexualised behaviour occurring during the period of his Extended Supervision Order. He has offended against females of different ages and within different environments.

These factors, in the writer’s opinion, all reflect an intense and persistent drive or urge to actively seek sexualised contact.

• [57] As to whether Pori had demonstrated limited self-regulatory capacity, Dunningham J referred to Ms Waugh’s statement:⁴⁰

Mr Pori has demonstrated a very limited self-regulatory capacity throughout his life and particularly over recent years. He displays frequent dysregulated emotional and aggressive outbursts in response to minimal triggers including perceived injustices and criticisms, change, when his goals are thwarted, and other forms of stress.

• [58] Dunningham J said the evidence of Ms Waugh and another registered clinical psychologist Dr Mattson satisfied her, by a clear margin, that Pori does not have any understanding or concern for his victims.⁴¹

³⁸ Interim Decision, above n 4.

³⁹ At [15].

⁴⁰ At [19].

⁴¹ At [24].

• [59] In considering whether Pori had poor interpersonal relationships or social isolation, Dunningham J referred to the evidence from Dr Mattson that Pori had rudimentary social skills and within those connections had an unsophisticated ability to appropriately connect with others. However, he is able to sustain appropriate social behaviour as long as the other person was complying with his wishes or expectations.⁴²

• [60] The evidence Dunningham J referred to satisfied her there was then a very high risk of imminent serious sexual offending.⁴³

• [61] Also, relevant to the assessment I must make, Dr Mattson’s evidence was that, when Pori is not getting what he desires, “he quickly reverts to agitation and aggression or sexualises his behaviour to manipulate the outcome he desires”.⁴⁴

• [62] In her judgment of 3 September 2021, Dunningham J referred to further evidence from other health assessors. Dr Monasterio had noted there was:⁴⁵

... little doubt that the impact of the traumatic brain injury [suffered when he was 18-20 years old] has been to exacerbate or cause poor impulse control, impaired judgment and to contribute to his subsequent significant offending history[.]

• [63] Mr Metoui, a consultant forensic psychologist, found Pori to have “no insight into his sexual offending behaviour”, and an absence of understanding of his offending on actual or potential victims. Mr Metoui concluded “I highly doubt this will ever change”.⁴⁶

• [64] Mr David Smits is the regional principal advisor (mental health and addictions) for the southern region, not the Department of Corrections. Since October 2020, he has acted in an advisory, liaison and coordinating capacity as to Pori’s care. He said, on 23 September 2021, he contacted the clinical health manager (mental health intervention and support practice team) for Christchurch Men’s Prison to request a comprehensive mental health assessment to be undertaken on Pori. This was declined

⁴² At [25].

⁴³ At [33].

⁴⁴ At [25].

⁴⁵ PPO Decision, above n 2, at [29].

⁴⁶ At [34].

due to there being no acute risk identified, or mental health concerns in his presentation upon arrival and while residing in prison. It was understood his presentation was in the context of his historical traumatic brain injury. It was considered an at-risk assessment and health update assessment were not required.

• [65] On 24 September 2021, Mr Smits requested the prison health service refer Pori to DHB Forensic Services. The request for an initial urgent referral was declined by the DHB due to there being no urgent or acute mental health concerns identified which required an assessment within 24 hours. A consultant psychiatrist saw Pori on 5 October 2021. A psychiatric review was undertaken on 26 October 2021. Based on that assessment, Pori was discharged from the DHB Forensic Services and referred back to the prison health team due to no major mental illness being identified. His presentation was understood in the context of his traumatic brain injury and known poor neurocognitive functioning (confabulation).

• [66] At 22 December 2021, Mr Smits had been involved in the process of engaging the Laura Fergusson Brain Injury Trust to develop a behavioural management, monitoring and staff support plan to facilitate Pori’s safe return to Matawhāiti.

• [67] Mr Smits affirmed a further affidavit on 28 March 2022 referring to the additional steps that had been taken to put in place a behavioural support service for Pori’s return to Matawhāiti in conjunction with the Laura Fergusson Brain Injury Trust. The first stage of such development was to comprise a comprehensive file review and observation. The second stage would be to require an assessment of the environment in which Pori would be residing, including a site visit to Matawhāiti. With the plan in place, it was anticipated the Laura Fergusson Brain Injury Trust would be contracted to provide a rapid response service. This service would be available on request in the event of a sudden escalation in identified behaviours of concern to assist with an early intervention approach which would prevent future prison detention.

• [68] Melissa Brussovs is the residence manager of Matawhāiti and Tōruatanga. In December 2021, she had 22 years of experience with the Department of Corrections. She had managed Pori since 16 November 2020 while he was subject to an interim prison detention order and after he became subject to a PPO.
• [69] Ms Brussovs explained that Matawhāiti, being a civil detention facility, is intended to be different to a prison unit. It does have a high perimeter fence with energised wires at the top to prevent anyone leaving without the appropriate authority. Residents can go into the community but only when accompanied by one or two staff. The facility is designed to replicate a more homely environment. Ms Brussovs said there had been five residents in total since Matawhāiti opened. Pori had initially been there with two others but, while he was in prison, that changed to only one other resident. At the time of the hearing, three other people were being assessed and could potentially be new residents. There are 12 beds at the residence.

• [70] The residents have their own units which Ms Brussovs described as being like a “little motel unit”. The residents are encouraged to be as independent as possible. Residents have a key to their own unit and manage their own space. Staff do not lock or unlock the units. Residents are encouraged to partake in the daily activities of life as far as possible within the confines of the residence. Volunteers come in and undertake activities with residents, such as gardening and cooking, and there are support staff who engage in assisting residents to develop reintegration skills. The residence does not have the level of hardening of a prison environment. It has soft furnishings, couches and communal tables. Staff do not wear uniforms. Residents have sharp knives available in their units, but they are tethered to the bench so cannot be moved away easily. There is cooking equipment and small paring knives available in the communal kitchen, but residents have to request access to bigger knives.

• [71] The communal area for the residents is in the main building and has a secure staff hub from which staff operate. The communal space contains a lounge with a television and a shared cooking space. In the communal area there is an interview room and also a sensory room which is equipped with appropriate furnishings to help residents manage emotions and to provide a relaxing and calming space. Ms Brussovs said Pori has used that space on only a couple of occasions and did not appear to feel comfortable in there. Ms Brussovs office is near the sensory room. She said Pori is reluctant to come into her office and he strongly objected to other residents meeting with her there.
• [72] There is a secure seclusion room which is a very hardened room, for all intents and purposes, like a prison cell. It is designed for very short-term use in order to manage a resident’s safety or the safety of other people. Ms Brussovs said it had never actually been used in the five years of the residence because the staff are trained to use a non-violent crisis intervention approach, relying on verbal de-escalation to calm people down and manage difficult behaviours. She gave examples of instances where those techniques had been successfully used in volatile and high-risk situations.

• [73] Ms Brussovs said, primarily through contact with the neuropsychologist Ms Waugh, staff had developed a number of techniques to assist in the management of Pori, and to de-escalate him if he was becoming agitated or aggressive. Ms Brussovs said they have Pasifika staff who have a high level of insight around the techniques and strategies they can use that are quite effective for Pori. Ms Brussovs said they made changes to decrease the risk Pori would pose in Matawhāiti, for instance, removing certain items of furniture. She said it is not possible to remove everything that could be used as a weapon as it is a different space from a prison where everything is bolted to the floor. She said the communal space has to be used for various purposes, for instance, by other residents and volunteers.

• [74] Ms Brussovs said the routine and willingness to participate in the routine is up to the resident, but they structure the day with particular regard to the needs of the resident. She explained that, for Pori, they had a communal shared breakfast at 7.30 am to make sure he started the day with food. Pori and another resident had been exercising early in the morning but they changed that to manage blood sugar. They have busier mornings and quieter afternoons to allow time for rest periods.

• [75] Ms Brussovs said a comprehensive safety plan had been developed for Pori and for the staff and other residents to support his entry to the residence. It was developed by Matawhāiti staff in consultation with Corrections’ psychologists and the high-risk response team. She said Pori has a propensity for verbally aggressive and threatening behaviour, experiences paranoid delusions, was fixated on a complete denial of any sexual offending, believes himself to be the true heir to the British throne, believes people have stolen fictitious belongings and that he is being held illegally. She said effective strategies were used by staff between November 2020 and July 2021

to manage Pori’s behaviour using calming and de-escalating techniques. During that period, he often stated that he enjoyed living at Matawhāiti, liked all the staff and considered them to be his whānau.

• [76] During and after August 2021, there had been an observed increase in the frequency of Pori’s aggressive behaviour, most frequently making threats towards people he considered to be in positions of authority. This included threats to kill, behead or hang the residence manager, the operations lead and his key worker. There had been a transition from threatening physical damage to property to committing actual damage to property, which was observed to be a significant change in behaviour. There were incidents when he picked up furniture and threatened to break windows on 2 and 23 August 2021. He broke a window in the incident of 2 August 2021 and on 19 September 2021 caused minor damage to the glass, the aluminium window frame and wooden window surrounding of the residence manager’s window. During that time, he was threatening to harm residence staff and other various Corrections’ staff by “cutting off their heads” and hanging them. There was the incident when he threatened another resident on 13 August 2021, causing the residents to seek refuge behind Corrections’ staff. On most occasions, staff managed to de-escalate him and, on most of those occasions, Pori later apologised for his behaviour.

• [77] On 20 September 2021, Pori was attending usual morning exercises. His mood appeared to be good. During the exercise session, his mood became heightened and he tried to enter the communal area which was locked until 7.00 am. He became visibly angry. Staff unlocked the doors to attend to Pori and attempted to de-escalate him. This was unsuccessful. Pori picked up an aluminium stool, with which he used considerable force and broke double-glazed safety glass. He then went to the front of the building and broke a window to an interview room. He refused to follow staff instructions to return to his unit and positioned himself by the front entrance to wait for Ms Brussovs to arrive. When she arrived about an hour later, Pori became verbally abusive towards her and threatened physical violence. Staff and residents were trapped inside, so were secure, but no one else could enter or exit the building. The site security emergency response team from Christchurch Men’s Prison was engaged to ensure the safety of others in the residence. Pori was relocated without force by

Corrections’ officers and appeared to happily accompany them when they took him to the prison.

• [78] As a result of that incident and Pori being held in prison, the Chief Executive made the application for an interim prison detention order which Dunningham J made on 22 September 2021.

• [79] Since then, Pori has been held in Charlie Unit of the Christchurch Men’s Prison. This unit holds remand prisoners who are awaiting trial or sentence.

• [80] A principal corrections’ officer, Mr Jake Moore, provided evidence in an affidavit of December 2021. He was also cross-examined at the hearing before me on 1 November 2022. Mr Moore was responsible for the running and management of Charlie Unit which holds up to 60 prisoners and has approximately 15 staff.

• [81] Mr Moore had known Pori previously when he was in another unit in 2018. He said, and I accept, that he had built up a reasonable rapport with Pori in the time he had known him. He said, when Pori went into the Charlie Unit on 20 September 2021, he settled in quickly and would regularly say how happy he was to be back in prison. Mr Moore said Pori would regularly speak to him about his royal heritage and his hate towards his father, but never presented as violent or threatening during those meetings. He said, generally, Pori got along reasonably well with other prisoners.

• [82] After about a month, Pori began to show signs he was unhappy about being in prison altogether. On 10 November 2021, as part of Mr Moore’s normal engagement with Pori, Mr Moore discussed returning to Matawhāiti. In that conversation, Pori began talking about his royal heritage but Mr Moore said there was then a distinct change in Pori’s appearance and demeanour. He talked about the other people at Matawhāiti as being “kiddie fuckers”. He said, if force was used to put him back there, the worst will happen. He said he would kill a staff member and specifically said “I will kill [Ms Brussovs], I will chop her head off and will do the same to anyone who stands in my way”. Referring to Ms Brussovs, he said “only the princesses will survive and she is no longer a princess”. He said “she deserves death”. He said, being in jail

for life is being better than being out in Matawhāiti with “kid fuckers” and kept repeating the words “I will murder ... I will murder”.

• [83] Mr Moore said it was not uncommon for prisoners to make threats against staff. He had observed staff being relatively dismissive about what they considered to be passing or idle threats. That was not Mr Moore’s reaction. He said this particular threat and the manner in which it was made appeared to be out of Pori’s normal character and presented as a credible serious threat. He said Pori was elevated, had intense eye contact and was speaking in a tone that was highly threatening. He said Pori appeared very serious about his threats and dislike of Matawhāiti and wanted to ensure Mr Moore understood his threat was serious, and thus repeated it numerous times. Mr Moore was so concerned about what Pori was telling him that he reported it through the usual channels to the prison director.

• [84] Mr Moore explained that, in prison, they are trained in de-escalation techniques but it is also an environment where Corrections’ officers can remove themselves safely. There are areas where Pori could be secured and cannot do damage because the furniture is steel and bolted to the floor. He said Corrections’ officers use personal protective equipment daily, including stab-resistant body armour.

• [85] Mr Gary Smallridge is a principal corrections officer who has worked for the Department of Corrections for 24 years. He was responsible for the running and management of Charlie Unit from May 2022 until 17 October 2022. He said he would catch up with Pori weekly. He said Pori appeared to be happy in his own company. When offered time out in the yard or recreation, Pori would usually stay out for an hour and then ask to be locked up again. He said Pori appeared to get on with other prisoners and was never any bother to look after. This was consistent with notes staff had made as to their observations of Pori over the time he was in Charlie Unit.

• [86] In a conversation with his case manager on 12 July 2022, Pori appeared quite content with where he was. He kept busy through reading the Bible and had been meeting with the prison chaplain. The case officer noted that Pori appeared to get on well with unit staff.
• [87] Mr Smallridge said, although Pori was at times upset with his current predicament, he was settled, happy and comfortable in the prison environment. He gets on well with both staff and other prisoners but appears happy in his own company.

• [88] Mr Smallridge said, over this time, many attempts were made to encourage Pori to go back to Matawhāiti for regular visits. Pori would always reiterate that he was not returning and gave the “kiddie fuckers” as the reason.

• [89] On 30 June 2022, Mr Smallridge spoke to Pori to gauge his response to a possible return to Matawhāiti. At the mention of Matawhāiti, Pori immediately went on the offensive saying there was no way he was going back there and he should not have to mix with the other people there, calling them “kiddie fuckers”. Mr Smallridge mentioned the possibility of him at least trying a day trip back to Matawhāiti and this would be something the Judge would like to see him try. Pori angrily rejected that possibility, saying the Judge had better watch his back and look over his shoulder as Pori has friends everywhere.

• [90] On 21 September 2022, Mr Smallridge and another Corrections’ officer managed to persuade Pori to visit Matawhāiti on the spur of the moment, even though it had been planned with Ms Brussovs in advance. During that visit, Pori met with two staff. It appeared to be going well. Ms Brussovs joined them for approximately an hour before they left. At the end of that visit, Pori indicated that next time he returned it would be to stay. A planned return visit was verbally agreed to on Wednesday 19 October 2022 but, on Friday 21 October 2022, Pori refused the escort going back to the “kiddie fucker” line.

• [91] Ms Brussovs affirmed an affidavit on 29 March 2022. It outlined the contact Pori had with Matawhāiti staff on the weekly visits they made to him after September 2021. In summary, she said Pori appeared settled, had been more welcoming to staff and had not repeated the threats he made in November/December 2021. Nevertheless, he remained very focused that he did not want to return to Matawhāiti under any circumstances and was increasingly withdrawing from contact with Matawhāiti staff.
• [92] Ms Brussovs said she had spoken to the two other residents of Matawhāiti on 25 March 2022 about their feelings if Pori returned. She said one resident, who was physically strong and more accustomed to managing interpersonal violence within an institutional setting (prison), was accepting that Pori might return. That resident had not been told that Pori accused staff of allowing this person into Pori’s unit to steal belongings and had made threats towards the physical safety of this resident on 18 November 2021.

• [93] Ms Brussovs said the other resident was extremely fearful of the prospect of Pori returning and was very intimidated by him. Staff developed a safety plan for this resident which would ensure there would always be a staff member seated between him and Pori while at meetings or shared activities, and there would be an escape route for this resident to remove himself and get back to his unit if he felt threatened or unsafe in any way. She said this meant that resident would have to miss out on activities and events, and his use of communal space might be restricted depending on where Pori was and what his mood was like. Ms Brussovs said both residents would have reduced access to her as, for her own safety, she would not be as accessible as she had been.

• [94] In that affidavit, Ms Brussovs said there were very few realistic options to keep residents separate other than having them go to their units. She said they could set up a timetable for separate resident use of communal facilities but thought this would be more problematic because Pori has a high level of paranoia and would likely invent activities he believed other residents would be up to in the communal space while he was excluded. She considered this would also be counter to encouraging socialisation and trying to create a homely atmosphere, consistent with the aspirations of a civil detention regime. At that time, she hoped the behavioural support plan would point to other useful strategies to try if required.

• [95] In her later oral evidence, Ms Brussovs said, at Matawhāiti there is no facility for residents to be completely separate from each other because there will always be instances of casual contact in passing or engagement in a shared activity. She said, at Matawhāiti, they are trying to operate as much of a family-orientated environment as they can for people who often do not have a lot of family support or any visitors at all.

They have to try to provide for their residents’ needs in this regard, their mental and emotional wellbeing as much as their physical wellbeing, so there would be great difficulty in being able to separate and therefore safely manage the other resident with Pori on site. For the staff, the seclusion room is not a long-term option.

• [96] Ms Brussovs also said that separating residents would likely feed into Pori’s thoughts of persecution. Denying him access to the communal space freely would compound problems that staff know exist around his dissatisfaction and distress at the thought of his being in a child sex offenders’ unit unfairly, as he describes it. This feeds into his aggressive and destructive behaviour. That increases the risk of Pori destroying property or being a risk to staff in retaliation. Ms Brussovs said they had considered whether they could manage Pori within Matawhāiti effectively on a totally separate basis but discounted it for these reasons.

• [97] Ms Brussovs affirmed a further affidavit dated 27 October 2022. She detailed the regular contact between Matawhāiti staff and prison staff about Pori from 17 March 2022 to 21 October 2022. That evidence was consistent with Pori generally and adamantly not wanting to have contact with Matawhāiti staff.

• [98] In conjunction with prison staff, if was decided to change the visits from weekly to monthly so as not to undermine Pori’s stability within the prison environment. Pori refused to see Matawhāiti staff in April and May.

• [99] On 9 June 2022, a residence supervisor who is Pasifika, spoke to Pori by phone. Pori expressed his appreciation for this person phoning him. The supervisor made the following note reflecting on his interaction with Pori. I set this out as it is relevant to the way Pori copes with being in the prison environment:

Pori expressed his appreciation that staff made time to call him, and informed that the unit was treating him well; he had his “banana cake”, there was “roast pork” on the menu and Pori would be “happy to share it” with MW (Matawhāiti) staff. Pori indicated that his “brothers” were keeping well and behaving themselves as he was their “elder” in the prison unit. Our conversation reminded me of similar situations from my own Pacific islander experiences; one of many similar scenarios where uncles/grand uncles who had lived their lives and travelled their journeys involved in somewhat similar incidences etc, whereby the community know the truth about trails of physical/sexual abuse committed by these characters, they had covered up

their past by suppressing those thoughts and covering those up with layers of pseudo-memories that were told and re-told until these were embedded in the community’s minds as their truth, and to keep the peace the stories were kept and retold. Pori in our phone conversation today appeared to be amongst “his people”, assuming the role of an elder and the acceptance of the routines, the unlocks, the dinner time, the lockups, the prison language etc., the institutionalisation. Pori did not once mention Matawhāiti and signed off the conversation wishing staff a good afternoon.

• [100] Pori made it clear he did not want to be visited by staff from Matawhāiti on 23 June, 27 June, 7 July, 14 July and 15 July 2022. The refusals to meet with Matawhāiti staff and Pori’s determination not to go back to Matawhāiti were expressed in strong terms. On 7 July 2022, Pori added that one of the residents should be killed. Pori abruptly ended the conversation he was having with the residence supervisor and said he wanted no visits with Matawhāiti staff as the contact was making him angry. On 15 July 2022, Pori advised his case officer that, if he was made to go back to Matawhāiti, he would chop a named residence supervisor’s head off.

• [101] On 21 September 2022, there was the visit to Matawhāiti, arranged by prison staff, which Pori did not resist. The existing resident at Matawhāiti was taken out by staff for the afternoon to avoid the possibility of an altercation during the visit. This visit went well. A second visit was scheduled for 21 October 2022 but, on the day, the principal corrections officer in charge of Pori’s unit advised the visit could not go ahead as Pori was refusing to come out of his cell. The officer advised that Pori had become aggressive towards staff, had stated he did not want to be around child sex offenders and wanted to stay in prison. Prison staff considered that force would have to be used to have Pori moved to Matawhāiti. In the interests of Pori’s wellbeing, staff abandoned the visit.

• [102] In her oral evidence, Ms Brussovs said she had learnt and observed that Pori was more comfortable and settled with the structure and security available to him in the prison environment than with the range of activities and potential for socialisation at Matawhāiti. Ms Brussovs said Ms Matthews, a clinical neuropsychologist associated with the Laura Fergusson Brain Injury Trust, had recommended that the physical environment of Christchurch Men’s Prison better suits Pori’s needs at the present than Matawhāiti.
• [103] Ms Brussovs said the only strategy they had not used in the management of Pori was the use of the seclusion room, the hardened cell-like space, but said it would be hard to imagine use of that space would have a positive outcome. That was particularly so because of Pori’s physical health problems. He has suffered from a previous brain aneurysm in the context of uncontrolled high blood pressure and suffers from diabetes.

• [104] Ms Brussovs was not aware of any strategy that would likely change Pori’s often expressed view that he did not want to be at Matawhāiti. On 28 June 2022, Ms Brussovs spoke to Ms Matthews regarding Pori’s refusal to return to Matawhāiti and strategies they could use to encourage Pori to want to return. Ms Matthews advised that it was likely Pori’s mindset and refusal to return would be fixed and rigid.

• [105] Ms Brussovs was of the view that Pori had manufactured the incident on 21 September 2021 to achieve his removal from Matawhāiti, hence his calming down and being apparently happy and relieved to be leaving when the prison team arrived.

• [106] Ms Brussovs was concerned that Pori transitioned from frustrated angry behaviour and lashing out at objects to targeting particular people, herself included, with several attempts to break her office window, and detailed accounts of what he would do to specific named people. She referred to an occasion when Pori came very close to throwing a hot drink over her but stopped himself at the last minute.

• [107] In that vein, she also talked about an incident when Pori was under an ESO at Tōruatanga and had to be physically restrained from making contact with the female manager of that site, and the incident in May 2018 referred to earlier.⁴⁷

• [108] In July 2019, in breach of his ESO, Pori became aggressive towards Tōruatanga staff and then left the site. Staff followed Pori in a departmental vehicle and attempted to speak with him. However, due to his threats of violence and aggressive behaviour, they were forced to take refuge in the vehicle.

⁴⁷ Para [7].

• [109] Ms Brussovs said Pori’s tolerance level for socialising is limited and may be for only an hour or two but, for him, that would be important as it provides him with a connection to other people, people that he refers to as his brothers. So, even while he was at Matawhāiti, his connection with people going to or from the prison was important to him socially. Ms Brussovs was of the opinion it is important to Pori that he be able to socialise with a peer group that he respects and identifies with, but there is a problem in that he neither respects or identifies with the residents at Matawhāiti. He does not find their company to be desirable at all. In fact, he finds it quite distressing.

• [110] Ms Brussovs explained that the Laura Fergusson Brain Injury Trust had not completed a behavioural support plan because, for that, Ms Matthews would want to observe Pori within the Matawhāiti environment. Senior staff were trained in traumatic brain injury and understanding behaviours that arise from such injuries. Ms Brussovs however considered there would be difficulties in developing particular strategies around routine for Pori because of how he might perceive the difference between activities and opportunities available for him as compared to those available for another resident.

Determination as to the evidence

• [111] I am well satisfied on the evidence that, in all the present circumstances, requiring Pori to return to live at Matawhāiti would put staff there, in particular the manager, in grave physical danger. I am also satisfied, with the attitude Pori has to other residents at Matawhāiti, on his return, the other residents would be at grave risk of serious physical harm and extreme and intensive abuse which would be emotionally and physically debilitating for any such residents. I consider there would be a real danger Pori would physically attack such people and, in anger, would attempt to kill them.

• [112] I consider the risk of serious harm to others at Matawhāiti is greater because Pori’s violence could happen, without warning and as an irrational response to a minimal trigger when he does not get what he wants.
• [113] I am satisfied that the risk to both staff and other residents at Matawhāiti is as to potential serious harm, grave injury or death. With female staff, the risk is also of a serious sexual attack. Given Pori’s previous incidents of physical violence, the frequency and intensity of the personalized threats he has made towards staff, and the vehemence of the attitude he has expressed towards other residents at Matawhāiti, I am satisfied the risk of Pori causing such harm if returned to Matawhāiti would be high.

• [114] I am also satisfied that, with the way Matawhāiti is physically set up and the way it is managed as a civil detention centre, it would not be possible to reduce the level of risk or potential harm to staff or another resident through the way Pori could be managed in the residence.

• [115] I am accordingly satisfied that, if detained in Matawhāiti, Pori would pose such an unacceptably high risk to others that he cannot be safety managed in Matawhāiti.

• [116] I am also satisfied that all less restrictive options for controlling Pori’s behaviour have been considered and any appropriate options have been tried. He could not be safely managed within the less restrictive environment of Tōruatanga while subject to an ESO and intensive supervision there. He was convicted of serious violent offences while there and was sentenced to imprisonment. His conduct there led to the making of the initial prison detention order on 25 June 2020 and ultimately the PPO on 3 September 2021.

• [117] For the reasons explained by Dunningham J in her judgment of 3 September 2021, the option of an application for a compulsory assessment and/or treatment order through s 45 of the Mental Health Act is not realistically available.⁴⁸ That conclusion is subject to an appeal to the Court of Appeal to be heard in April 2023 but that is the current assessment. The view Dunningham J came to is consistent with the response Corrections obtained from the District Health Board and psychiatrists to whom Pori’s situation was referred after he was subject to the interim prison detention order made on 21 September 2021.

⁴⁸ PPO Decision, above n 2, at [90].

• [118] The less restrictive option of having Pori detained in Matawhāiti has been tried.

• [119] I am satisfied from the evidence presented to me that, although the Chief Executive initially sought the Court’s approval for Pori to be subject to a PPO and detained in prison, the manager and staff at Matawhāiti did all they could to engage with Pori at Matawhāiti in a way that would be beneficial for him, while keeping residents and staff there safe. I am satisfied they did that with considerable humanity and skill, utilising specialist advice available to them from the psychologists and psychiatrists who had been involved with Pori previously. Matawhāiti staff have been able to manage other residents in situations where there has been danger to others with such success that they have not had to use the prison cell-like seclusion facility at Matawhāiti. The fact they have not been able to use those same skills and strategies to de-escalate the threat Pori has posed speaks to the particular level of risk he would present for staff and other residents there.

• [120] I do not consider Pori should be returned to Matawhāiti, against his wishes, and for there to be a further trial of him living there, perhaps with greater use of the seclusion room. Force would probably have to be used to transfer Pori back to Matawhāiti. Force would probably have to be used to put him in seclusion if and when that became necessary. All of that would likely escalate the risk of harm to those working with Pori. It would likely be harmful to Pori’s health and would likely aggravate the feelings of paranoia he is already prone to.

• [121] Through the time he has been in prison subject to an interim prison detention order, there has been time to see if Pori appreciates how his attitude and threats have caused him to be detained in prison. There has been time and the opportunity for him to demonstrate he understands this and wants to make the changes that would lead to a safe return to Matawhāiti. Unfortunately, there has been no change in Pori’s conduct or expressed attitudes. To the contrary, the evidence is that he prefers being in prison.

• [122] I am accordingly satisfied that the threshold for the making of a prison detention order, as referred to in s 85(2)(a) and (b) of the Act, has been met.

The exercise of the discretion

• [123] I must thus decide whether I should make such an order, given such an order should be made only when there is strong justification for doing so. Through submissions and cross-examination, Mr Starling suggested the objective of the Act 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. That being the case, the Chief Executive should, in terms of the purpose of the Act, be able to provide a residence where someone like Pori can be managed safely without having to be in prison.

• [124] Accordingly, Mr Starling submitted the Court should not make an order which will result in Pori having to be held in prison, likely without any real prospect of being released. That is because there is little prospect of there being a change in his attitude or mental functioning which would enable him to be safely transferred back to a residence such as Matawhāiti.

• [125] The Act however states that, while subject to a PPO, a resident must stay in the residence that the Chief Executive designates by written notice given to the resident and to the manager of that residence.⁴⁹ The residence so designated for Pori would be Matawhāiti. There was no evidence or suggestion there would be any other residence more appropriate for Pori which would ensure the safety of other persons who are in the residence more than can be achieved with Matawhāiti.

• [126] The Act does not contemplate that the Chief Executive will ensure there is a residence available which provides the same level of security and protection for others in the residence as is available through a prison.

• [127] Matawhāiti appears to be managed and to have been set up physically in ways that recognise the rights residents have under s 27 of the Act. It says:

⁴⁹ Public Safety (Public Protection Orders) Act, s 20.

27 Rights of residents

(1) A resident has the rights of a person of full capacity who is not subject to a public protection order except to the extent that those rights are limited by—

(a) this Act; or

(b) any rules, guidelines or instructions, or regulations made under this Act; or

(c) a decision of the manager taken in accordance with this section.

(2) Without limiting the generality of subsection (1), the rights of a resident include the rights set out in sections 28 to 40.

(3) The manager may limit the rights of a resident to the extent reasonably necessary to prevent the resident from harming himself or herself or any other person or from disrupting the orderly functioning of the residence.

(4) In making a decision that affects a resident, the manager must be guided by the following principles:

(a) a resident must be given as much autonomy and quality of life as is compatible with the health and safety and well-being of the resident and other persons and the orderly functioning of the residence:

(b) a decision that adversely affects a resident must be reasonable and proportionate to the objective sought to be achieved.

(5) Residents must be given the opportunity to provide input into the making of rules for the residence and into the running of the residence for the purpose of the orderly functioning of the residence and the creation and maintenance of a residence community.

• [128] Matawhāiti is also set up in a way that recognises s 5 of the Act:

5 Principles

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

...

(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.

• [129] Residents may also participate in recreational, educational and cultural activities within the residence.⁵⁰

• [130] It cannot be said that, with the Act, Parliament contemplated that a residence would be established and managed in a way that would ensure all people subject to a PPO, no matter how dangerous, would be able to live within such a residence under the Act. Section 85 recognises that, in certain defined circumstances and subject to approval by the court, it might be necessary for a person subject to a PPO to be detained in a prison instead of a residence.

• [131] A prison detention order can be made under s 85 only with strong justification established through the judicial process and after close scrutiny of the evidence. Such an order can be made where, in reality, there is no alternative way of keeping members of the public safe from serious and imminent sexual and violent offending. Pori’s NZBORA rights must be subject to the reasonable limits inherent in the Court’s ability to make a prison detention order under s 85 of the Act. In my view, those limits are justified in a free and democratic society, as referred to in s 5 of the NZBORA.

• [132] I am conscious that such an order will require Pori to be detained in a prison when he has not been sentenced to imprisonment for any offence and when he is not facing any charge for which he could be imprisoned. His detention will be in breach of his s 26(2) NZBORA rights. However, with the high threshold for the making of a prison detention order having been made out, I recognise that s 4 of the NZBORA says I must not decline to apply s 85 of the Act by reason only that the provision is inconsistent with a provision of the NZBORA.

• [133] The reality is that Pori cannot be safely managed at Matawhāiti. He needs to be in prison. If a prison detention order is not made, he would have to remain subject to an interim prison detention order. That would not however recognise the reality of the situation nor would it provide any material or greater protection for Pori than would exist with his rights while subject to a prison detention order.

⁵⁰ Section 31.

• [134] Under s 86 of the Act, Pori will have all the rights conferred on residents by the Act to the extent those rights are compatible with the provisions of the Corrections Act 2004 that apply to prisoners who are remanded in custody awaiting trial.

• [135] Under the Act, the review panel must review the continuing justification of the prison detention order within one month after the order is made and then within every six months after the most recent previous review of the order.⁵¹ The Chief Executive must apply to the Court for a review of the continuing justification of the order within one year after the order is made and at intervals not exceeding one year after each previous review.⁵²

• [136] I accept the evidence of Ms Brussovs that, on the making of a prison detention order, staff at Matawhāiti will continue to engage with Pori, as they have done in the past, to provide the potential for a move back to Matawhāiti, however unlikely that might be.

Conclusion

• [137] The grounds for the making of a prison detention order, under s 85, have been established to my satisfaction. In the exercise of my discretion, it is necessary and appropriate for me to make the prison detention order as applied for and I make such an order.

Solicitors:

Raymond Donnelly & Co., Christchurch M Starling, Barrister, Christchurch

K H Cook, Barrister, Christchurch.

⁵¹ Section 87(1).

⁵² Section 88.