Chief Executive, Department of Corrections v Pori

[2021] NZHC 2501

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000435

[2021] NZHC 2501

UNDER

The Public Safety (Public Protection Orders) Act 2014

IN THE MATTER

of an application for an Interim Prison Detention Order

BETWEEN

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Applicant

AND

TOMMY APERA PORI

Respondent

Hearing:	On the papers
Appearances:	C J Boshier for Applicant
Judgment:	22 September 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 September 2021 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v PORI [2021] NZHC 2501 [22 September 2021]

Introduction

[1]                  On 3 September 2021 I made a public protection order (PPO) against the respondent, Mr Tommy Apera Pori on the application of the Chief Executive, Department of Corrections.1 I ordered that the PPO be served at Matawhāiti, a purpose-built facility for persons serving PPOs, sited adjacent to Christchurch Men’s Prison. The Chief Executive has now applied for a prison detention order and seeks an interim prison detention order be made.

[2]                  Although, on the evidence I had before me in the PPO hearing, Mr Pori had managed quite well at Matawhāiti under an interim detention order which commenced on 16 November 2020, the evidence of Melissa Jane Brussovs, the residence manager of Matawhāiti filed with the current application, is there has been a significant deterioration in Mr Pori’s behaviour in the last two months. Following an outburst on 20 September 2021, when Mr Pori became angry and abusive and used a stool to cause significant damage to the facility, Ms Brussovs considered a security emergency as defined in s 74 of the Public Safety (Public Protection Orders) Act 2014 (the Public Safety Act) had arisen, and she directed corrections officers to take Mr Pori into custody at Christchurch Men’s Prison.

[3]                  Pursuant to s 74(4) of the Public Safety Act, Mr Pori may be held in prison for a 24 hour period when a security emergency arises. If it is sought to hold him longer than that, an application must be made to the Court by the Chief Executive for a prison detention order pursuant to s 85 of the Public Safety Act, and for an interim prison detention order pursuant to s 74(5) of the Public Safety Act, within the next working day after the day on which that period of 24 hours expires.

The application for an interim prison detention order

[4]                  The Chief Executive has filed such an application under s 74(5) of the Public Safety Act. That section provides:

(5)If it appears to the court on the papers that the application for a prison detention order against the resident is properly made, the court may make an order (an interim prison detention order) ordering that,

1      Chief Executive, Department of Corrections v Pori [2021] NZHC 2305.

while that application is pending, the resident continue to be detained in the prison.

[5]                  The prison detention order is sought on the basis that the grounds in s 85(2) are met. That is:

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

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

[6]                  I accept, as counsel for the Chief Executive says, that the legislation contemplates the initial step of considering whether an interim prison detention order is to be made, is to be dealt with on the papers. If I decline to grant the interim prison detention order, Mr Pori must immediately be returned to the Matawhāiti residence.2 If the interim order is granted a date for the s 85 hearing will need to be allocated promptly.

[7]                  In deciding whether to make an interim prison detention order under s 74, I have the evidence of Ms Brussovs as to Mr Pori’s deterioration and behaviour, particularly since the beginning of August 2021. She says from that point “there has been an observed increase in the frequency of Mr Pori’s aggressive behaviour, which has included abusive and threatening language towards other residents and staff”. She says this includes “threats to kill, behead, or hang the Residence Manager, Operations Lead [and] his Key Worker”. She also says there has been a concerning transition from threatening physical damage to committing actual property damage at Matawhāiti, which is a significant change in his behaviour.

[8]                  She then recounts a series of incidents commencing on 2 August 2021 where Mr Pori has become angry and aggressive to staff and residents. These appear to be prompted by minor incidents (for example, having difficulty logging onto a computer

2      Public Safety (Public Protection Orders) Act 2014, s 74(8).

to place his grocery order), or by him dwelling on grievances, real or imagined, which make him angry at staff or other residents.

[9]                  In the incident which occurred on 20 September 2021, it is not clear what prompted Mr Pori’s anger but, during the morning exercise session he became “heightened” and tried to enter the communal area, which is locked until 7 am. He became visibly angry and started hitting the doors and shouting out to staff. Staff unlocked the doors to attend to Mr Pori in an attempt to de-escalate him but that was unsuccessful. He verbally abused them then picked up a stool and used it to cause significant damage to windows resulting in double-glazed safety glass being broken right through. He refused to follow staff instructions to return to his unit and took the stool and positioned himself by the front entrance to wait for the resident’s manager to arrive.

[10]              When Ms Brussovs arrived he became verbally abusive towards her and threatened physical violence. She was unable to enter the residence safely and so she instructed him to return to his unit which he refused to do. She then sought assistance from Christchurch Men’s Prison. During this time the other residents were confined to their units and staff remained in the staff hub which is a reinforced area.

[11]              In terms of whether all less restrictive options for managing Mr Pori have been tried, Ms Brussovs explains that while Mr Pori’s behaviour at Matawhāiti had been challenging, until August 2021, it had been relatively straightforward to manage and deescalate. Since the beginning of August he has become more difficult to manage and has transitioned from threatened to actual violence. It is also more directed at resident staff, rather than people from his past. She is concerned that there will be a physical assault against staff or other residents. One of the two other residents says he does not feel safe at Matawhāiti due to Mr Pori’s threatening, aggressive and unpredictable behaviour. This includes calling the other residents “kiddie-fuckers” and saying he had communicated with prisoners through the fence who wanted to come inside and kill them.

[12]              She believes all appropriate options have been tried to manage and control his behaviour and there are no other less restrictive options available at this time. She

does not preclude Mr Pori returning to Matawhāiti but says it would require “a robust safety plan [being] developed following investigation by a medical practitioner and the mental health team into why his behaviour has deteriorated, together with any strategies which may mitigate his risk”.

[13]              She notes that since being taken into Christchurch Men’s Prison, Mr Pori has been “calm and compliant and interacting positively with staff”.

Discussion

[14]              In my view, it is appropriate to make an interim detention order. It is clear that Mr Pori’s behaviour has changed, for whatever reason, and at present he poses a risk to staff and residents because of his unpredictable anger and aggression. It is also clear that staff have tried the known range of techniques to de-escalate these outbursts, but for unknown reasons, those attempts have not been as successful in recent weeks. I also note that prison is not an unfamiliar environment for Mr Pori and he responds well to being in an environment with clear physical boundaries and predictable routines.

[15]              Accordingly, an interim detention order  is  made  as  sought,  commencing 22 September 2021.

The next steps

[16]              I understand the application has been served on Mr Cook, who was appointed litigation guardian for the purpose of the making of the public protection order. For the avoidance of doubt, I consider it appropriate that he continue as Mr Pori’s litigation guardian for the purposes of the current application and, subject to him agreeing to continue in that role, I confirm his appointment.

[17]              I direct that any opposition to the making of an interim detention order be filed as soon as practicable but, in any event, within 20 working days.

[18]              If opposition is filed then a telephone conference is to be convened with counsel as soon as practicable thereafter with a view to timetabling the application for a prompt hearing.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To:
Kerry Cook, Barrister, Christchurch