Chief Executive, Department of Corrections v Palmer

[2022] NZHC 174

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000033

[2022] NZHC 174

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS, WELLINGTON

v

TRACY WILLIAM PALMER

Hearing:

On the papers

Appearances:

C E R Power for the Applicant

R G R Eagles for the Respondent

Judgment:

14 February 2022

JUDGMENT OF NATION J

[1]    On 1 July 2010, Mr Palmer was sentenced in the District Court at Invercargill to a sentence of eight years and eight months’ imprisonment on 25 charges of serious sexual offending. On 20 December 2011, he received sentences for further sexual offending of three years and ten months’ imprisonment, cumulative on the earlier sentences imposed in the District Court. The statutory release date for those sentences was 5 February 2022.

[2]    On 26 August 2021, the Chief Executive filed an application for an Extended Supervision Order (ESO) under s 107F of the Parole Act 2002. Mr Palmer filed a notice of opposition.

THE CHIEF EXECUTIVE, DEPT OF CORRECTIONS, v PALMER [2022] NZHC 174 [14 February 2022]

[3]    On 15 September 2021, the Parole Board made a decision that Mr Palmer be released on parole on 13 October 2021 but would be subject to a range of special conditions. However, the Board noted:

An electronically monitored whereabouts conditions [sic] is not sought given the nature of his offending. Partial residential restrictions are proposed and accepted and will be in place for three months following his release.

[4]    The Parole Board were aware that an application had been made for an ESO which they acknowledged would run its course.

[5]    The Parole Board directed that Mr Palmer’s release on parole on 13 October 2021 would be subject to standard release conditions until six months past sentence expiry date. They said Mr Palmer would also be subject to special release conditions for the same period (apart from the three month curfew).

[6]The special conditions included a condition:

To submit to electronic monitoring as directed by a Probation Officer and comply with the requirements of partial residential restrictions. To remain at your approved address between the hours of 9:30pm and 6:00am daily, unless you have the prior written approval of a Probation Officer, or as permitted by section 33(4) of the Parole Act 2002.

[7]    On 11 January 2022, the Parole Board considered an application by the Community Probation Service to vary Mr Palmer’s release conditions. The Board said:

2.     At the present time Mr Palmer is subject to an electronically-monitored curfew which is set to expire on 12 January 2022. It was anticipated that he would have an ESO hearing on 28 September 2021 in the High Court. For various reasons that hearing has not taken place but has now been rescheduled for 2 February 2022.

3.     The specific variation is an extension of the electronically-monitored curfew from 12 January through to 5 February which will give time for the High Court to consider the ESO application. Mr Palmer does not oppose that variation and written consent has been provided to the Board. He waives his appearance to attend the hearing. That is dated 6 January. Accordingly the variation is granted by consent, the electronically- monitored curfew will be extended to 5 February 2022. All of the conditions remain the same.

[8]    The application for an ESO was heard on 4 February 2022 in the High Court at Dunedin. An ESO was made on that date to come into effect on 5 February 2022.

[9]    The parties had agreed to the making of an ESO for a period of three years. As requested by counsel for the Chief Executive, that order was made subject to standard conditions. The Chief Executive had not asked for any special conditions to be imposed. None were imposed. The standard conditions included a condition that Mr Palmer not reside at any address which a Probation Officer had directed him not to reside at.

[10]   On 10 February 2022, by a memorandum from counsel, the Chief Executive advised the Court that special conditions attached to the respondent’s parole had an end date of 5 February 2022. The Chief Executive, by memorandum, sought an order under s 107IA(1) of the Parole Act imposing on the respondent special conditions on an interim basis that the Board might impose under s 107K of the Act. The conditions sought would require Mr Palmer to be subject to electronic monitoring and to remain as his approved address between the hours of 9.30 pm and 6.00 am daily unless he had the prior written approval of a Probation Officer or was permitted to be away from the address by s 33(5) of the Parole Act.

[11]   The Chief Executive sought the order imposing special conditions on the basis it would usually take three to four months for ESO special conditions to be set by the Parole Board. Attached to the memorandum was a letter from the Department of Corrections with this information.

[12]Section 107L(2A) states:

(2A) Any special conditions (including any special conditions imposed under section 107IA) to which the offender is subject when an extended supervision order comes into force continue in force—

(a)      until the date that is 3 months after the date on which the extended supervision order comes into force; or

(b)      if an application is made to the Board seeking the imposition of special conditions under section 107K within that 3-month period, until the Board—

(i)imposes 1 or more of those conditions; or

(ii)imposes any other special condition that the Board is entitled to impose under section 15; or

(iii)declines to impose any special conditions.

[13]   Mr Eagles, counsel for Mr Palmer, filed a memorandum in response. He referred to a statement from Mr Riley, the psychologist who had been engaged for Mr Palmer. Mr Riley suggested “the level of additional oversight considered necessary [to prevent further offending] may be relatively minimal”. He also referred to a statement from Mr Berry, the psychologist who gave evidence for the Chief Executive, that “when [Mr Palmer] is released from prison, given his profile he will require a moderate to high level of external management and supervision”. Mr Eagles said the Court should not proceed on the basis it is a foregone conclusion that the Parole Board will agree to the imposition of special conditions, especially since Mr Palmer has had an incident-free period since his release and reasons have not been provided as to why extended special conditions are now necessary.

[14]   Mr Eagles submitted the Court should be hesitant about imposing conditions which might be completely unnecessary without the case being made out properly for those conditions to be applied.

[15]   It was not suggested for Mr Palmer that the Court did not have jurisdiction to now make the ESO of 4 February 2022 subject to the special conditions sought.

[16]   In response, Mr Power for the Chief Executive said, given the Board’s decision to impose special conditions as part of release was only four months ago, it is likely on application the Board will continue to impose similar conditions as part of an extended supervision order.

[17]   Section 107K permits the Parole Board to impose any special condition that it is entitled to impose under s 15 at any time before an ESO order expires or is cancelled. Section 107K(3)(b) and (ba) state that any residential instructions and any requirement for intensive monitoring may apply only within the first 12 months of the term of the ESO.

[18]   On the information provided to me, in particular the decision of the Parole Board of 11 January 2022, it seems that, at the time the application for an ESO was heard on 4 February 2022, Mr Palmer was subject to an electronically monitored curfew, with the conditions as to residence and electronic monitoring specified by the Parole Board to continue through to 5 February 2022.

[19]   Although the Parole Board said those conditions were to cease on 5 February 2022, pursuant to s 107L(2A), any such special conditions would continue in force until a date three months after the date on which the ESO comes into force or until the Board considers an application seeking the imposition of special conditions under s 107K which has been filed within that three month period.

[20]   I thus consider the residential curfew and electronic monitoring conditions imposed by the Parole Board on 11 January 2022, pursuant to s 107L(2A), will continue in force for at least three months after the date on which the ESO came into force, 5 February 2022. That time will be extended if, during those three months, the Chief Executive makes an application to the Parole Board for a further extension of the conditions.

[21]   There is no need for me to now impose the special conditions sought to preserve the status quo and I decline to do so. Whether and to what extent those conditions should continue will now be best determined by the Parole Board with all relevant and up to date information available to it when the appropriate hearing can be arranged.

[22]   It would have been clear to Mr Palmer that this was the position if the Chief Executive had sought and obtained an order that the ESO made on 4 February 2022 would be subject to the same special conditions. Mr Power said the need for this was overlooked.

[23]   I also add that, but for the provision in s 107L(2A), I would have imposed the special conditions as sought. Mr Palmer is to be commended with the way he has complied with all release conditions while on parole. But, the ESO was made and the

duration determined on the basis he would continue to be under appropriate oversight from the Department of Corrections and the Parole Board.

[24]   I note the extension of the residential curfew and requirement for Mr Palmer to be subject to electronic monitoring, as referred to in the Parole Board’s decision of 11 January 2022, was made with the consent of Mr Palmer. Mr Eagles referred to the opinion of the psychologist Mr Berry that Mr Palmer would require “a moderate to high level of external management and supervision”. Mr Riley had suggested the level of additional oversight might be relatively minimal but that was after he had noted and thus assumed that Mr Palmer would “be on the Child Sex Offender register and would be monitored by the Police, whether or not an ESO was imposed”.

[25]   This is the assessment I have made as to the situation based on the papers before me. I reserve leave to either of the parties to be heard further on the matter if either wishes.

Solicitors:

RPB Law, Dunedin

Eagles Eagles & Redpath, Invercargill