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Chief Executive, Department of Corrections v Chisnall [2023] NZHC 2278 (23 August 2023)

Last Updated: 5 November 2024

JUDGMENT OF DOWNS J

(Redacted version)

This judgment was delivered by me on Wednesday, 23 August 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland. FJ Handy, Wellington.

Dr AJ Ellis, Kawakawa. GK Edgeler, Wellington.

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v CHISNALL [2023] NZHC 2278 [23 August 2023]

The case

• [1] The Chief Executive of the Department of Corrections¹ seeks an extended supervision order against Mark Chisnall. Mr Chisnall offers no opposition to the application. Indeed, he accepts the statutory criteria are met. The concession does not obviate the need for adjudication, as the Court must be satisfied an extended supervision order should be made. It does, however, make for a shorter judgment.

Background

• [2] The application has an unusual background.

• [3] On 15 April 2016, the Chief Executive applied for a public protection order against Mr Chisnall. The Chief Executive signalled he sought an extended supervision order if the public protection order were declined. The High Court directed the Chief Executive to file a related application. He did so 27 May 2016.

• [4] The High Court subsequently granted the public protection order,² but it was quashed by the Court of Appeal.³ That Court remitted the application with a direction the extended supervision order be considered as a suitable alternative to a public protection order.

• [5] The High Court again granted the public protection order.⁴ Mr Chisnall again appealed successfully to the Court of Appeal. That Court quashed the public protection order and remitted the application for an extended supervision order.⁵

• [6] All this took six years. Mr Chisnall has, throughout, been the subject of an interim supervision order with intensive monitoring.

¹ Chief Executive.

² Chief Executive, Department of Corrections v Chisnall [2017] NZHC 3120.

³ Chisnall v Chief Executive, Department of Corrections [2019] NZCA 510.

⁴ Chief Executive, Department of Corrections v Chisnall [2021] NZHC 32.

⁵ Chisnall v Chief Executive, Department of Corrections [2022] NZCA 402.

Analysis

• [7] An extended supervision order may be made in relation to an eligible offender.⁶ It is common ground Mr Chisnall is an eligible offender because:

(a) On 29 March 2006, Mr Chisnall was sentenced in the Whanganui High Court to eight years’ imprisonment on one charge of sexual violation by rape.⁷

(b) On 31 July 2009, Mr Chisnall was sentenced in the New Plymouth District Court to a cumulative sentence of three years’ imprisonment on an unrelated charge of sexual violation by rape.⁸

(c) Mr Chisnall had not ceased, when the application was filed, to be subject to a sentence of imprisonment.

• [8] The Court must be satisfied,⁹ having considered the matters addressed in the health assessor’s report, that Mr Chisnall has, or has had, a pervasive pattern of serious sexual offending and there is a high risk he will commit a relevant sexual offence.¹⁰

A pervasive pattern of serious sexual offending?

• [9] In 2001, Mr Chisnall raped a girl aged eight or nine. Mr Chisnall was then 15. The two did not know each other. The victim was at a park. Mr Chisnall coaxed her into the bushes, and there raped her.

• [10] In 2002, Mr Chisnall committed other relevant offences, the details of which are redacted to respect name suppression orders. [Redacted.]

• [11] [Redacted.]

⁶ Parole Act 2002, s 107C.

⁷ R v Chisnall HC Whanganui CRI-2005-083-806, 29 March 2006.

⁸ R v Chisnall DC New Plymouth CRI-2008-021-527, 31 July 2009.

9. To be satisfied is an exercise of judgment, not proof. See R v Leitch [1998] 1 NZLR 420 (CA) at 428.

¹⁰ Parole Act, s 107I(2).

• [12] In 2005, Mr Chisnall raped again. This offending also happened in a park. The victim (an adult female) was jogging. Mr Chisnall tackled her, restrained her, and applied pressure to her mouth and nose. Mr Chisnall told the victim to “shut up”. He then raped her. Thereafter, he asked the victim to shake his hand and not to tell anyone. This offence resulted in the eight-year term of imprisonment imposed by the High Court in 2006.

• [13] Zoe Wilton is a registered psychologist with the New Zealand Psychologists Board, a chartered forensic psychologist with the British Psychological Society, and an associate fellow of that society. Ms Wilton has “extensive, relevant experience in forensic risk assessment”¹¹ and a health assessor under the Parole Act 2002.

• [14] Ms Wilton acknowledges Mr Chisnall’s last sexual offence was committed in 2005. Mr Chisnall was then 19. Ms Wilton observes:¹²

... While there have been no reports of overt sexual offending behaviour in prison or subsequent residences, this is likely associated with environmental restrictions, an absence of triggering contexts and vulnerable victims, together with consistent staff oversight. Ongoing concerns have been noted regarding Mr Chisnall’s deviant violent sexual fantasy and a consistent array of offence paralleling behaviours (OPBs) which indicated that his pathways towards offending behaviour have remained active and reinforced across many years into adulthood.

• [15] I, therefore, am satisfied Mr Chisnall has, or has had, a pervasive pattern of serious sexual offending.

• [16] The Court may conclude there is a high risk the offender will commit a relevant sexual only if the Court is satisfied the offender:¹³

(a) Displays an intense drive, desire or urge to commit a relevant sexual offence.

(b) Has a predilection or proclivity for serious sexual offending.

11. Health Assessment Report to National Commissioner Corrections Services, 1 December 2022, at para 1.

¹² At para 28.

¹³ Parole Act, s 107I(aa)(i).

(c) Has limited self-regulatory capacity.

(d) Displays either or both of:

(i) a lack of acceptance of responsibility or remorse for past offending;

(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

• [17] The Court of Appeal has held these characteristics need not be obvious; the question is whether the offender has them.¹⁴ Ms Wilton considers Mr Chisnall does.

An intense drive, desire, or urge to commit a relevant sexual offence?

• [18] Ms Wilton says:¹⁵

Mr Chisnall has a history of early onset sexually deviant violent fantasy, which became engrained in adolescence as a default coping strategy in response to seeking excitement, as well as to manage negative emotions. The past intensity of his drive and urge to act on this was evident through his offending behaviour, committed in public parks, while on police bail, while he had multiple support people available, and after sanction for sexual offending behaviour, Mr Chisnall continued to reinforce his deviant sexual violent fantasy as a coping response to stress and by masturbation to these themes into mid-adulthood. While he has engaged in treatment and shown more recent effort to reduce the reported intensity and frequency of his deviant sexual urges, he has acknowledged they remain present at times. Due to the entrenched and enduring nature of his violent sexual urges, there remains the potential for these to be triggered or activated in a context where Mr Chisnall is unmonitored, overwhelmed by challenges or conflict, has unhindered access to a victim, and/or ceases taking his prescribed medications.

In the writer’s opinion he has a clear and entrenched history of strong and intense deviant urges to commit relevant sexual offences. While he has shown active effort to reduce their intensity and frequency, there are not yet signs of an independent ability to avoid acting upon this if triggered into his offence process.

¹⁴ Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468.

¹⁵ Health Assessment Report, at para 59.

A predilection or proclivity for serious sexual offending?

• [19] In this context, proclivity means pattern.¹⁶ Ms Wilson says:¹⁷

Mr Chisnall has acknowledged that his first and exclusive sexual fantasy involved deviant content of rape and violence, which he continued to actively reinforce from childhood into adulthood. There was limited evidence to suggest that Mr Chisnall has experienced normative consenting sexual intimacy. Over recent years he has actively sought assistance to reduce his sexual preoccupation and reliance upon deviant themes. Mr Chisnall has remained open that he continues to experience fleeting deviant thoughts, as would be expected as realistic for someone with such an extensive history.

Mr Chisnall demonstrated past proclivity for repeatedly acting upon his deviant sexual fantasy by seriously sexual offending against multiple victims across his mid to late teenage years. While he has not offended while imprisoned or in subsequent residences, Mr Chisnall’s history of OPBs includes seeking violent and sexualised television and video game content, which he has recently started to actively moderate with staff support. There appeared few barriers to Mr Chisnall acting on his sexual predilection in the past, given limitations to his empathy or concern for others.

In the writer’s opinion, it appears Mr Chisnall has a history of both predilection and proclivity for serious sexual offending. While somewhat reduced in frequency and intensity over recent years, there is insufficient evidence to show that he could manage an acute activation of his sexual offending script in the absence of residential oversight and ongoing prescribed medication.

Limited self-regulatory capacity?

• [20] Ms Wilton says:¹⁸

Mr Chisnall has an extensive history of regulation difficulties. This includes his history from childhood of ADHD, impulsive behaviour, sexual and emotion regulation problems. Within the predictable confines of institutional living at Matawhāiti residence, Mr Chisnall displayed frequent behavioural outbursts and reactive aggression across several years. Alongside this, Mr Chisnall has shown positive compliance with engaging in constructive activities, including cooking, gardening and budgeting, as well as successful escorted outings into the community without incident. Over the last 18 months, Mr Chisnall has shown increased active effort and some success in managing his behaviours more appropriately. It was noted by multiple staff however, that this continues to require active staff prompting. Ultimately it is considered that Mr Chisnall’s recent positive improvements are a mixed result of his own increased motivation, alongside significant scaffolding of his external, constant and predictable environment.

¹⁶ Holland v Chief Executive, Department of Corrections [2016] NZCA 504.

¹⁷ Health Assessment Report, at para 60.

¹⁸ At para 61.

The writer’s opinion is that Mr Chisnall has a history of compromised self- regulation capacity across multiple domains of functioning, compounded by his complex cognitive and mental health difficulties.

Displays a lack of acceptance of responsibility or remorse for offending or an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims?

• [21] Ms Wilton says:¹⁹

Mr Chisnall is considered to have acknowledged responsibility for his offences, both in terms of his acknowledgement when detected and his consistent engagement in available interventions. During group and individual psychological treatment he was credited with increasing his understanding and acceptance of his offence chain process. However, he was noted to frequently engage in multiple OPBs up to 2021 including seeking games and video content with sexual or violent themes, reactive aggression to others, hostility to females and trying to scare female staff. At the current interview Mr Chisnall commented, unprompted, that he accepted his residential placement and extensive ISO conditions as a “... result of what I did”.

Mr Chisnall’s ability to feel remorse is more compromised, which is considered to reflect his lifelong limited capacity for social perspective-taking or empathic concern. At the time of his offending Mr Chisnall acknowledged he was unconcerned about his sexually assaultive behaviour, was “unhappy with people around me”, and was more concerned about the length of sentence he received.

Overall, Mr Chisnall is considered to have a limited capacity for remorse, including for his past offending. His acceptance of responsibility has been more consistently expressed, although he has a history of behavioural OPBs which indicate that his responsibility-taking has been an insufficient barrier to engaging in unhelpful risky behaviours.

...

Mr Chisnall can report a basic understanding of the impact of his behaviour on victims, although his limited capacity for empathy has long been noted by treating therapists, probation officers and other staff working with him. His high PCL-SV score includes the presence of traits associated with limited concern for others. Socially Mr Chisnall has few strong connections to others and a tendency towards social isolation and solitary activities. He has shown limited concern for others in general, including a history of aggression in childhood towards his family members and then during adulthood, a history of OPBs in residences where he has shown little concern for his impact on others, including seeking to scare female staff.

Mr Chisnall’s ability to recognise and articulate emotions remains an ongoing treatment goal. At interview, he was noted to demonstrate expressions that were congruent with his expressed shame at talking about his offending

¹⁹ Health Assessment Report, at paras 62 and 63.

behaviour, however he was unable to elaborate further. While he verbalised feeling shame and expressed his wish to avoid reoffending, there is insufficient evidence of a level of understanding or concern considered capable of acting as a barrier to inhibit further sexual offending behaviour.

• [22] Ms Wilton testified briefly at the hearing. Her evidence on these topics was not challenged. Given (a) the absence of challenge; (b) that Ms Wilton is an experienced psychologist with particular expertise in relation to risk; and (c) Ms Wilton’s evidence accords Mr Chisnall’s criminal record; I accept her evidence. I, therefore, am satisfied these conditions are met.

Is there a high risk that Mr Chisnall will commit a relevant sexual offence?

• [23] Ms Wilton has analysed this criterion using actuarial instruments and clinical judgement. She concludes Mr Chisnall poses “a very high risk” of committing a relevant sexual offence if he were unmonitored in the community. Mr Chisnall does not challenge this conclusion. He is right not to do so.

• [24] Mr Chisnall’s ASRS-R score, which is based on six static measures, places him in the above average risk category. Mr Chisnall’s score on this tool has not changed over six years.

• [25] Mr Chisnall’s Static-99R score, which is based on additional static factors and is useful for individuals with cognitive functioning difficulties—difficulties Mr Chisnall has—and the effect of aging on recidivism, places Mr Chisnall at the well above average risk category. This is the highest category in the measure.

• [26] Mr Chisnall’s VRS-SO score, which is based on seven static factors and 17 dynamic factors, places him in the well above average risk category. This is also the highest category in the measure. The score is consistent with Mr Chisnall’s earlier assessments.

• [27] Mr Chisnall’s PCL:SV score, which is based on factors relating to antisocial and previous deviant behaviour, falls in the above average score range. Individuals in this bracket are eight times more likely to re-offend in general.
• [28] To this mix must be added Mr Chisnall’s attention deficit hyperactivity disorder (which provides some explanation for his poor impulse control, aggressiveness, and a low tolerance of frustration) and post-traumatic stress disorder with indicators of paranoia.

• [29] Mr Chisnall has made incremental rehabilitative progress. But, as Ms Wilton observes, this is at “a formative stage and highly supported by staff prompting”. It also reflects Mr Chisnall’s environment.

• [30] I, therefore, am satisfied Mr Chisnall poses a very high risk of committing a relevant sexual offence.

Discretion

• [31] A Court may make an extended supervision order if satisfied the criteria are met; it is not required to do so. Mr Chisnall offers no argument against the making of an order, and there are obvious reasons to make an order. I, therefore, make an extended supervision order.

Length of term

• [32] The maximum term of an extended supervision order is 10 years.²⁰ The term must be the minimum required for the purposes of the safety of the community in light of:

(a) The level of risk posed by the offender.

(b) The seriousness of the harm that might be caused to victims.

(c) The likely duration of the risk.

• [33] Ms Wilton says this about these considerations:²¹

²⁰ Parole Act, s 107I(4).

²¹ Health Assessment Report, at paras 54, 56–58.

Overall, Mr Chisnall is considered to present a Level 1Vb or very high risk of committing a further sexual offence if he were unaccompanied and unmonitored in a community setting. ...

...

Should Mr Chisnall further offend, it would be considered likely to involve relevant sexual offending against an available victim, most likely opportunistic targeting of a stranger adult female or child. His past sexual offending was committed while he had a range of personal or professional supports available to him. Likely triggers for Mr Chisnall would involve heightened negative emotions due to conflict with others, or feeling belittled and put down. This may trigger his default strategy of using deviant violent sexual fantasy to cope. If he were not subject to ongoing oversight (either through a restrictive environment or the physical presence of a monitoring staff member), he may be triggered by environmental cues (such as park locations or reminders of past offending) and engage in opportunistic sexual offending against an available victim. Mr Chisnall has demonstrated proximal planning to lure child victims, and use of violent force against adult females to facilitate his sexual offending. Should Mr Chisnall cease taking his prescribed medications for ADHD or PTSD, this would be considered likely to present an acute risk for reactive aggression and sexual offending.

As noted, Mr Chisnall’s enduring level of risk within the Level IV category is associated with an expectation that it will require extensive intervention over many years to reduce. While sexual risk typically reduces over time once individuals are released into the community, Mr Chisnall has not yet achieved a level of independence for this effect to start to impact upon his risk level (according to manual descriptions of ‘time-free’). His extensive conditions and oversight mean that Mr Chisnall does not currently have independence within in a community setting. The typical age-related sexual risk reduction effect may gradually begin to impact after Mr Chisnall reaches his mid-40s, however at 36 years currently, this is not yet a relevant consideration.

A realistic trajectory for Mr Chisnall to improve his risk management will require extended years and ongoing very gradual increases to his independent self-management. This could include evidence of managing increased practical responsibilities within his household or residence; initiating conversations or seeking staff guidance proactively; managing challenges, emotions and setbacks over sustained time without resorting to aggression, deviant fantasy or reactivity; and continuing to reduce his sexual preoccupation and deviant sexual fantasy.

• [34] Consequently, the Chief Executive contends:

... an ESO of ten years is required for Mr Chisnall to be supervised, and for him to be given adequate treatment and support to ensure his risk of re- offending is reduced. Mr Chisnall’s entrenched history and complex needs require constant oversight and monitoring. His progress is incremental and it will take significant time of very gradual increases in his self-management to ameliorate his various risk factors. Coupled with Mr Chisnall’s diagnosis of ADHD and PTSD as well as traits of paranoia, Mr Chisnall requires a high level of monitoring and support.

• [35] On behalf of Mr Chisnall, Mr Edgeler argues a 10-year term “would be excessive”. Mr Edgeler observes that had an extended supervision order been made in 2016—to which Mr Chisnall indicated consent—“it would now have less than three years to run”. For this reason, Mr Edgeler contends an appropriate term would be three years, or if this were considered too short, five years. Mr Edgeler notes the Chief Executive may apply for a fresh extended supervision order if that is considered necessary.²²

• [36] Mr Edgeler’s submission has force. However, I must impose the minimum period required for the purposes of the safety of the community given the considerations at [32]. So, that Mr Chisnall would have only three years left had he been dealt with in 2016 is relevant but not decisive.

• [37] Ms Wilton’s evidence reveals Mr Chisnall still poses a very high level of risk to adult women and children (who are strangers), and this risk will endure for years. Mr Chisnall’s record of sexual offending suggests the seriousness of harm he may cause is high given he has raped two victims, including a child; and committed other relevant offences, the details of which are redacted to respect name suppression orders. [Redacted.] I, therefore, impose a 10-year term notwithstanding Mr Edgeler’s powerful argument to the contrary. Again, I consider such a term is the minimum required for the purposes of the safety of the community given the considerations identified at [32].

An intensive monitoring condition?

• [38] Section 107IAC of the Act provides:

(1) When a sentencing court makes an extended supervision order in respect of an offender, the court may at the same time, on application by the chief executive made under section 107IAB(1), make an order requiring the Board to impose an intensive monitoring condition on the offender.

(2) An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.

²² Parole Act, s 107F(1)(b).

• [39] An intensive monitoring condition allows for “line of sight”, person-to-person, monitoring, for example, when a defendant leaves a facility, and goes into town.

• [40] If the Court makes an intensive monitoring condition, it must specify its duration. Such a condition may not exceed 12 months and applies only within the first 12 months of the extended supervision order.²³

• [41] The Act does not provide a threshold for the imposition of intensive monitoring. It is typically deployed when risk is high and significant control is needed to mitigate that.²⁴

• [42] Mr Chisnall questions the necessity of an intensive monitoring condition given the level of control to which he is already subject, and his high level of compliance with the many rules to which he is subject.

• [43] With all this in mind, I asked Ms Wilton these questions:²⁵

Q. Ms Wilton, can you hear and see me?

A. I can, Sir.

Q. I don’t have many questions for you, but I do have some. You’ve agreed that Mr Chisnall is making incremental progress and that continues to be so, yes?

A. That’s correct, Sir.

Q. That leads me to my first question, does that change in any way your assessment of Mr Chisnall risk?

A. In short, Sir, no, it doesn’t change the underlying very high level of risk that I will foresee remaining present over the longer term.

Q. And in brief, that is because?

A. That is because the enduring nature of difficulties that Mr Chisnall has experience along with the duration of his offending pattern and offence paralleling behaviours means that the positive changes he’s making will take at least many years to likely impact substantively on his risk level.

²³ Parole Act, s 107IAC(3).

²⁴ Chief Executive, Department of Corrections v Brown [2016] NZHC 1038; Chief Executive, Department of Corrections v Barton [2018] NZHC 777; and Chief Executive, Department of Corrections v Clements [2021] NZHC 1383.

²⁵ Notes of evidence, p 6 line 22 – p 7, line 24.

Q. Thank you, you may not be able to answer my next question or related questions, do you know whether Mr Chisnall is currently allowed to leave the facility, in other words for example to go into town?

A. To the best of my knowledge at the time I assessed Mr Chisnall, he was undertaking regular escorted community visits, so he had scheduled activities offsite in the community that he would propose and would be considered (inaudible 10:28:31) as well, and he would be accompanied at all times by a member of staff, to my knowledge.

Q. Presupposing that that is correct, what is your view about the need for Mr Chisnall to be escorted during such activity?

A. In my view, I would have concern about his ability to manage stressors independently without the presence of staff, able to help him manage his emotions or stress.

Q. So, is it your position that if Mr Chisnall wishes and is allowed to leave the facility, he should have someone with him at all times?

A. At the current time, that is my opinion, yes, Sir.

Q. Speaking as of today?

A. Yes.

Q. And for the foreseeable future?

A. Or the foreseeable future.

• [44] I am satisfied an intensive monitoring condition is necessary to ensure Mr Chisnall has oversight when he leaves the facility, given (a) the level of risk he poses; (b) the seriousness of harm that may flow from any further sexual offending;

(c) Mr Chisnall’s various difficulties; and (d) the seemingly mundane circumstances accompanying Mr Chisnall’s offending—trips to a park. That Mr Chisnall is compliant when supervised says little about what he may do absent supervision. Therein lies the problem.

• [45] This leaves duration. The parties agree Chief Executive, Department of Corrections v Wilson contains a helpful statement of principle.²⁶ Mr Wilson argued his intensive monitoring condition should be shorter because he had already been subject to five months of interim intensive monitoring. Mander J held the focus remained whether imposition of the maximum duration was justified on the circumstances of the individual respondent.

²⁶ Chief Executive, Department of Corrections v Wilson [2022] NZHC 1148.

• [46] Mr Edgeler contends Mr Chisnall’s case is “in a different league” to Wilson because he has been monitored by the Department since 2016. So, the condition should be of short duration only.

• [47] This submission also has force. However, again, the issue is what is required in the interests of public safety having regard to Mr Chisnall’s circumstances. There is nothing to suggest Mr Chisnall’s risk will materially decrease over the next 12 months; likewise, potential seriousness of harm. I, therefore, adopt a 12-month period.

Interim special conditions

• [48] These conditions are agreed, save for two.²⁷ The Chief Executive seeks conditions Mr Chisnall:

5. ... attend, participate in and adhere to the rules of a relapse prevention support group to the satisfaction of your Probation Officer.

6. Attend and complete any treatment or counselling as recommended by the assessment to the satisfaction of your Probation Officer and treatment provider.

• [49] Mr Edgeler offers “minor disagreement” with both, for the same reason. He says the conditions ultimately rely on Mr Chisnall’s consent, and constitute, therefore, a writ on water.

• [50] I am not persuaded to remove either condition. They form part of a web directed at oversight, and ultimately one hopes, rehabilitation. There is nothing to suggest Mr Chisnall finds the conditions onerous or unworkable; indeed, his apparent compliance suggests otherwise.

Bill of Rights Act

• [51] The Court of Appeal has accepted Mr Chisnall’s contention the extended supervision order regime is inconsistent with s 26(2) of the New Zealand Bill of Rights

²⁷ Other than intensive monitoring, which I have addressed.

Act 1990, in that it constitutes a second punishment.²⁸ Mindful of this, I remain of the view the statutory criteria are satisfied, and an extended supervision order is required on the conditions identified in this judgment.

Costs

• [52] Mr Chisnall seeks costs in relation to the Chief Executive’s unsuccessful application for a public protection order. On behalf of the Chief Executive, Mr Tantrum acknowledges Mr Chisnall is entitled to costs on that application in accordance with the schedule submitted by Mr Edgeler, with one caveat. Mr Tantrum contests costs in relation to the second High Court hearing as the public protection order was later quashed on the basis of fresh evidence, not any error on the part of the High Court.

• [53] I award Mr Chisnall costs in relation to both High Court hearings because the application for a public protection order ultimately failed, and the costs regime places heavy emphasis on the predictability of costs awards.

Result

• [54] The application is granted:

(a) An extended supervision is made for a term of 10 years.

(b) Intensive monitoring is ordered, for a term of one year.

(c) Interim special conditions are made in accordance with Schedule 1 to this judgment.

28. Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484. The Crown has been given leave to appeal to the Supreme Court.

• [55] Mr Chisnall is awarded costs in relation to the public protection order application in accordance with [52] and [53].

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

Downs J

Schedule 1: Interim special conditions

1. To reside at an address as directed, and approved by a probation officer, and not to move from that address without the prior written approval of the probation officer.

2. To be subject to intensive monitoring and to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the Chief Executive, to undertake person-to-person monitoring.

3. To comply with the requirements of full residential restrictions. You must be at Tōruatanga, The Crescent, Templeton, Christchurch at all times unless:

(a) To seek urgent medical or dental treatment;

(b) To avoid or minimise a serious risk of death or injury to you or any other person;

(c) For humanitarian reasons as approved by a probation officer; or

(d) You have the prior written approval of a probation officer.

4. To submit to electronic monitoring as directed by a probation officer, in order to monitor your compliance with any conditions relating to your residential restriction.

5. To attend, participate in and adhere to the rules of a relapse prevention support group to the satisfaction of your probation officer.

6. Attend and complete any treatment or counselling as recommended by the assessment to the satisfaction of your probation officer and treatment provider.
7. Not to enter or loiter near any school, early childhood education centre, park, library, swimming pool, other recreational facility, church, or other area specified in writing by a probation officer, unless you have the prior written approval of a probation officer, or unless an adult approved by a probation officer in writing, is present.

8. To obtain the written approval of a probation officer before starting or changing your position and/or place of employment (including voluntary and unpaid work). To notify a probation officer if you leave your position of employment.

9. To disclose to a probation officer, at the earliest opportunity, details of any intimate relationship which commences, resumes, or terminate.

10. Not to associate with Mr Andrew Chisnall and/or Mrs Teina Chisnall unless you have the prior written consent of your probation officer. Telephone and cellphone text communication is permitted.

11. To comply with the requirements of electronic monitoring, and provide access to the approved residence to the probation officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the probation officer.

12. To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a probation officer in order to monitor your compliance with any condition(s) relating to your whereabouts.