Chief Executive, Department of Corrections v Waiti
[2024] NZHC 1682
•25 June 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-391 [2024] NZHC 1682
BETWEEN THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Applicant
AND
SONNY TEARAMOANA WAITI
Respondent
Hearing: 14 May 2024 Appearances:
C Boshier for the Applicant M Dillon for the Respondent
Judgment:
25 June 2024
JUDGMENT OF HARLAND J
Introduction
[1] The Public Safety (Public Protection Orders) Act 2014 (Public Safety Act) enables the Court to make a public protection order (PPO) requiring the detention of a very high risk individual at a secure facility within a prison precinct.1 PPOs may be put in place for individuals who meet the threshold for such an order and who are found by a court to pose a very high risk of imminent serious sexual or violent offending if they were to be released from prison into the community or left unsupervised.2 Both an extended supervision order (ESO) and a PPO restrict a person’s freedom, as they are based on what the court considers that person might do
1 Public Safety (Public Protection Orders) Act 2014 [Public Safety Act], s 13.
2 Sections 7(1)(a) and 13(1).
CHIEF EXECUTIVE, DEPTMENT OF CORRECTIONS v WAITI [2024] NZHC 1682 [25 June 2024]
in the future, rather than being imposed as punishment for what they have done in the past.3 For this reason, there must be strong justification for such an order to be made.4
[2] The Chief Executive of the Department of Corrections (Chief Executive) applies for a PPO in respect of Sonny Tearamoana Waiti. It is alleged that Mr Waiti poses a very high risk of imminent violent offending that cannot be managed without a PPO in place. Although the Chief Executive initially sought that the PPO be served in prison, that outcome was not pursued at the hearing. Because of the progress Mr Waiti has made since his admission on 24 August 2023, the Chief Executive accepts that, if granted, the PPO should be served at the Matawhāiti Residence on the grounds of Christchurch Men’s Prison, a purpose-built facility for persons subject to a PPO and the only such facility in New Zealand.
[3] Mr Waiti opposes the application. He disputes that the criteria set out in s 13(2) of the Public Safety Act have been made out. He also submits that his risk could be adequately met by a combination of his existing ESO and residence at a supported ESO facility. He nominates the Tōruatanga Residence outside of Christchurch Men’s Prison as the most appropriate option.
[4] After considerable reflection, I have decided that the evidence before me establishes the criteria set out in the Public Safety Act have been made out and that a PPO should follow. I however acknowledge the considerable progress Mr Waiti has made over the last six months and the New Zealand Bill of Rights Act 1990 (Bill of Rights) implications for him involved in the making of this order. For Mr Waiti, in light of his past, the progress he has made is significant. I observe that it is in everyone’s interests for this progress to continue. This means that the need for this order should be very carefully reviewed when it is required to be reviewed under the Act. It also means that his treatment plan and access to therapeutic interventions should be accelerated. I say more on this later.
[5]The following judgment outlines my reasons in justification of the order.
3 Department of Corrections v Thorpe [2017] NZHC 2559 at [12].
4 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [190] [declaratory judgment].
Background
[6] Mr Waiti is 36. The evidence establishes that he had a traumatic childhood. The trauma Mr Waiti experienced was not his fault and it paved the way for a turbulent adolescence. I acknowledge Mr Waiti’s desire to address these historic issues which, given the nature of them, is a courageous decision.
[7] Unsurprisingly, given his background, Mr Waiti came to the attention of the Police as a young person. He was first sentenced to imprisonment at the age of 16 in respect of charges of wounding with intent to cause grievous bodily harm and aggravated robbery.5 The sentencing notes of Judge Cooper outline that Mr Waiti pleaded guilty to the two charges of aggravated robbery but was found guilty of the wounding with intent to cause grievous bodily harm charge. The charges arise from two separate incidents.
[8] The first, on 3 August 2003, was an aggravated robbery of a service station that occurred around 2.00 am. Mr Waiti’s face was disguised, and he was armed with an iron bar. Money was demanded from the sole female attendant. After being given
$235 from the till, Mr Waiti fled the scene.
[9] A week later, Mr Waiti committed another aggravated robbery at a superette. This occurred at 9.30 am. Mr Waiti entered the superette armed with a length of timber. There was a struggle with the male shop owner who wrested the length of wood from Mr Waiti but, when Mr Waiti regained possession of it, he assaulted the shop owner, knocking him to the ground and causing him to lose consciousness for a short period. The shop owner’s wife was then attacked and hit around the head and face with the piece of wood, causing severe injuries.
[10] The Judge’s sentencing notes refer to Mr Waiti’s long-term substance addiction issues. Mr Waiti had been drinking and using methamphetamine prior to the robbery of the superette. The Judge considered that, in some respects, Mr Waiti did “show remorse” and he concluded that the reason Mr Waiti did not plead guilty to the
5 R v Tonihi DC Rotorua CRI-2003-263-209, CRI-2004-254-17, 30 April 2004. (Mr Waiti has previously been known by Tonihi).
wounding charge was because he was unable to come to terms with the fact that he had caused the severe injuries to the female shopkeeper and was unwilling, in the Judge’s view, to front up to the consequences of what he had done.
[11] The maximum sentence the Judge could impose was one of five years’ imprisonment and he adopted a starting point of the maximum term. This was reduced following mitigating matters to an end sentence of four years and four months’ imprisonment.
[12] In 2005, while serving his term of imprisonment, Mr Waiti was sentenced to a cumulative term of one month’s imprisonment for assaulting a prison officer. The sentencing Judge described the assault as nasty, unpleasant and uncalled for but noted that, to Mr Waiti’s credit, he had apologised personally to the prison officer.6
[13] Mr Waiti was sentenced to a further term of imprisonment in August 2008 on a number of charges which included possession of an offensive weapon (x 2) and assault on a Police officer. In respect of the lead sentence imposed on one of the charges of possession of an offensive weapon, Mr Waiti was sentenced to a term of nine months’ imprisonment. The offensive weapon concerned was a “glass slasher”, described as a long-handled weapon.7 It was noted by the sentencing Judge that, at that time, Mr Waiti was 21 years of age.
[14] Then, in August 2009, Mr Waiti was sentenced to nine months’ imprisonment on a charge of male assaults female and three charges of common assault. It seems likely that the recorded conviction for male assaults female is in fact incorrect because the summary of facts relating to it appears to indicate that the charge was amended to one of common assault. The offending involved Mr Waiti’s partner (aged 17 at the time, with Mr Waiti being 22). Mr Waiti, armed with a large wooden lamp stand pole, struck the armrest of the couch his partner was sitting on, causing it to break. He demanded that she go into the bedroom. When she refused, he marched her into the bedroom, yelled at her and stood over her. He threw furniture around the room and threw her onto the bed, all the while accusing her that she had been unfaithful to him.
6 Police v Waiti, DC Te Awamutu, CRI-2005-072-267, 15 November 2005.
7 Police v Waiti, DC Christchurch CRI-2008-009-3331, 15 August 2008.
[15] The remaining three common assault charges relate to an incident that occurred when Mr Waiti and an associate came across three people, who they approached and asked whether they had any cigarettes. When told that they did not, Mr Waiti punched one of the victims twice in the back of the head. Another one of the victims tried to intervene and was punched twice on the right side of his face, kicked to the ground and then kicked in the face. The third victim was punched in the face and kicked in the stomach.
[16] In March 2010, when 23 years of age, Mr Waiti was charged with threatening to kill in respect of which he was sentenced to nine months’ imprisonment.8 Cumulative sentences of one month’s imprisonment were imposed for speaking threateningly, wilful damage, disorderly behaviour, possession of an offensive weapon and breach of court release conditions. The lead charge arose when Mr Waiti, celebrating the birth of his child and having been drinking for several hours, became agitated and walked across the street yelling, cursing and carrying a pair of scissors, calling for people to come out and fight. He threatened to kill a victim who confronted him and said she would call the Police. Mr Waiti then used the scissors to threaten a 13-year-old boy riding his bike nearby, also threatening to kill him.
[17] After being released on bail, a short time later, Mr Waiti reoffended. This incident was described by the sentencing Judge as involving stand-over tactics while Mr Waiti was dressed in Mongrel Mob colours. He confronted a young man using a cell phone and grabbed it from him. Other people came to his aid. The sentencing Judge noted that Mr Waiti had just been released from prison and referred to “heavy drug use” which had contributed to his poor mental state.9 The Judge noted that Mr Waiti told the report writer that he used drugs to escape the pains and problems in life and had been proud, while in prison, to be drug-free.
[18] In February 2011, Mr Waiti was convicted of assaulting a person with a tomahawk axe, a charge he defended. Judge Weir referred to the charge arising out of an incident involving an altercation between members of the Black Power and the Mongrel Mob. The victim was a member of the Black Power. The Judge accepted
8 Police v Waiti, DC Rotorua, CRI-2010-063-000363, 9 March 2010.
9 At [7].
the evidence of two independent witnesses that Mr Waiti chased the victim with a tomahawk, which was swung overhead with a deliberate chopping action. When the victim fell forward however, another person blocked Mr Waiti from continuing the attack. Mr Waiti was sentenced to a term of imprisonment of two years and three months as a result.
[19] Then, in October 2013, Mr Waiti was convicted and sentenced to a term of six years five months’ imprisonment for kidnapping.10 This offending occurred just after Mr Waiti was released from prison. He had formed an intimate relationship with the victim almost immediately and they had been living together for approximately three weeks before the incident which resulted in the kidnapping charge occurred.
[20] Mr Waiti had been consuming alcohol and drugs and became paranoid about the victim’s behaviour, including believing she was being unfaithful to him. After picking up the victim from her residence but still being described as drunk and driving erratically, Mr Waiti and his partner argued. He demanded that she drive him to his family’s rural property just south of Rotorua which she did. Once at the property, Mr Waiti removed the keys from the ignition, opened the driver’s door and released the car boot. In the meantime, the victim had locked the car doors. Mr Waiti unlocked them and carried her from the driver’s seat, placing her in the boot of the vehicle, despite her protests. Mr Waiti locked the boot and drove away from the property. The victim found a wire in the boot of the vehicle which allowed her to open the locked boot. She jumped from the moving vehicle, which was travelling at high speed at the time. While attempting to escape, her ankle became caught between the tow bar and the vehicle. She was subsequently dragged behind the vehicle for a distance of about
1.6 km at speeds of between 90 to 100 kph.
[21] Efforts by others to stop Mr Waiti driving were unsuccessful. But, during an attempt to swerve from a vehicle trying to stop him, the victim became dislodged. The victim suffered an amputation of her left leg as well as other serious injuries.
10 R v Waiti DC Rotorua, CRI-2013-063-1725, CRI-2013-063-1726, 25 October 2013.
[22] The Judge referred to an attempt by Mr Waiti to get the victim to change her story to effectively tell the Police she had wanted to be in the boot and had not been forced into it. Understandably, the Judge discounted her statement about this.
[23] Mr Waiti pleaded guilty to the charge of kidnapping. In sentencing Mr Waiti, the Judge referred to his affiliation to the Mongrel Mob, his addiction and consumption of alcohol and illegal drugs, and his very difficult upbringing. The end sentence was one of six years and five months’ imprisonment with a minimum period of imprisonment fixed at four years.
[24] On 11 December 2019, after a hearing in November, Jagose J made an ESO in respect of Mr Waiti.11 Jagose J noted that, since his release from imprisonment on 23 October 2019 and pending the determination of the ESO application, Mr Waiti had been subject to an interim supervision order with special conditions, including an intensive monitoring condition for its maximum duration of 12 months. The Chief Executive also sought an intensive monitoring condition in connection with the ESO.
[25] Mr Waiti did not oppose either the imposition of a five-year ESO or the reimposition of the intensive monitoring condition. Nonetheless, the Judge was required to make his own assessment and did so in a thorough judgment.
[26] Upon his release from prison, Mr Waiti was placed at a Department of Corrections residence on the grounds of the Spring Hill Corrections Facility, known as Kaainga Taupua.
[27] Unfortunately, while subject to the ESO and intensive monitoring, Mr Waiti committed further offending and breached his ESO. He was convicted and sentenced to the following:
(a) on 6 January 2020, to one month’s imprisonment on a charge of behaving threateningly, committed on 15 December 2019;
11 Chief Executive, Department of Corrections v Waiti [2019] NZHC 3256.
(b) on 21 January 2020, to one month’s imprisonment respectively on two charges of breaching his release conditions to reflect offending committed on 13 December 2019 and 15 December 2019;
(c) on 20 February 2020, to four months’ imprisonment for assaulting a prison officer, committed on 17 October 2019;
(d) on 23 July 2020, to two months’ imprisonment on two charges of breaching his ESO, committed on 17 April and 9 June 2020;
(e) on 11 December 2020, he was ordered to come up if called upon on a charge of breaching his ESO, committed on 16 October 2020; and
(f) on 22 January 2021, he was ordered to come up if called upon on a charge of breaching his ESO, committed on 17 December 2020.
[28] On 23 May 2021, shortly after his intensive monitoring condition had expired, Mr Waiti committed serious offending against two other Kaainga Taupua residents. He punched and kicked one victim in the head, knocking him to the ground before presenting a knife to him. The other victim came out of his room and was threatened by Mr Waiti as well. Mr Waiti then pulled both victims into a bedroom, pointed the knife at them and threatened to kill them. He demanded a mobile phone from one victim and called a woman. He threatened her by saying, if she hung up, he would kill one of his victims. The incident lasted about an hour before the victims were able to leave the unit. This offending resulted in two charges of kidnapping, two charges of threatening to kill and a charge of assault with intent to injure being laid against Mr Waiti.
[29] On 23 September 2021, Mr Waiti was sentenced to two years, three months and 14 days’ imprisonment in respect of these charges. He was released from prison on this sentence on 5 September 2023.
[30] On 7 August 2023, before his release from prison, the Chief Executive applied for a PPO. This is the application now before me for determination. However, an
application was also made for an interim detention order (IDO).12 Both applications sought that Mr Waiti be detained in prison rather than at the Matawhāiti Residence.13
[31] The application for an IDO came before Dunningham J on 17 August 2023 and she issued her judgment on 24 August 2023.14 Dunningham J made an IDO but, rather than determining Mr Waiti should be detained in prison, she required him to be detained at the Matawhāiti Residence upon his release date of 5 September 2023.
[32] Since 5 September 2023, Mr Waiti has been residing at the Matawhāiti Residence.
[33] As outlined (above at [2]), Matawhāiti is the separate and secure civil detention residence within the wider perimeter of Christchurch Men’s Prison. It houses men who have been sentenced to a PPO or who are placed there while subject to an IDO. Support is provided by staff on site 24 hours a day.
[34] Prior to his transfer to Matawhāiti from Rimutaka Prison, staff at Matawhāiti met with Mr Waiti to prepare him for the transfer. He was advised that he and one other person would be residing at Matawhāiti. They remain the only two residents there.
[35] Mr Waiti appeared to settle in well to Matawhāiti. However, just under a week after he moved to the residence, he attended an appointment at a medical centre in Wigram. The appointment had been organised so that Mr Waiti could have his medication prescription renewed. When Mr Waiti asked if he could be given Tramadol for pain relief for his broken hand, his request was declined. Mr Waiti became angry, stood up swearing and opened the door to the consultation room, banging it against the wall. Upon his return to Matawhāiti, he apologised for his actions. He explained that he had not been prepared for the nurse practitioner to say no to him and he quickly became frustrated.
12 Public Safety Act 2014, s 107(2).
13 Pursuant to ss 85(1) and 107(2).
14 Chief Executive of the Department of Corrections v Waiti [2023] NZHC 2310.
[36] On 25 September 2023, Mr Waiti requested that a person be added to his approved phone list. The person was someone he had been in a relationship with and for whom there was a non-association condition under his ESO. When advised that the person would not be added to his list, Mr Waiti became agitated and verbalised his annoyance. Upon leaving the communal hub area, he shouldered a wooden pillar, went back to his own unit and slammed the door.
[37] There have been no further incidents since the outburst on 25 September 2023. Mr Speirs, the residential service manager, described Mr Waiti’s interactions with other residents and visitors as being appropriate. He has been engaging in agreed activities, is respectful to the other resident and is respectful of staff. He has engaged positively with both health assessors who provided reports for the Court and has also participated in a neuropsychological assessment. The neuropsychological assessment was obtained to assist the staff at Matawhāiti to effectively engage with Mr Waiti and, importantly, he has received a diagnosis of ADHD and medication to assist him to control his impulsivity.
[38] The change in Mr Waiti’s approach, with the support of staff members at Matawhāiti, has been significant and it means that, for a period of almost eight months, Mr Waiti has not engaged in any threatening or violent acts. Mr Speirs said:
Outside of the incidents that occurred within the first four weeks of Mr Waiti transitioning to Matawhāiti, his behaviour while living at the residence has been very good and a credit to him.
[39] It is understood that Mr Waiti’s ESO will continue until 13 July 2027, accounting for his time in prison since the making of the order. I note that, on 18 December 2023, the Parole Board reviewed the reintegration programme condition which was a special condition attached to Mr Waiti’s ESO that had been imposed on him by the Board on 1 December 2020. The report from Mr Waiti’s probation officer recommended that the programme condition should continue albeit it with varied wording. Mr Waiti agreed that the programme condition and the hours associated with it should continue and the condition was confirmed by the Parole Board. The special conditions will remain in force subject to the statutory review in two years’ time.
Mr Waiti’s preferred option
[40] Mr Waiti considers, now that he has settled down, he is ready to reside at the Tōruatanga Residence. Tōruatanga is described as an intensive transitional reintegration service providing accommodation and support for residents considered to be at a very high risk of reoffending. Most of the residents at Tōruatanga present with complex health and psychosocial needs. Tōruatanga is situated on the grounds of Christchurch Men’s Prison.
[41] Both Matawhāiti and Tōruatanga are jointly managed and overseen by experienced and specially trained staff. There are 35 staff employed across both facilities, 29 of whom work rostered shifts. The two facilities are approximately two kilometres apart, with both situated in the Christchurch Men’s Prison precinct.
[42] Tōruatanga has fewer staff to supervise the residents and, unlike Matawhāiti, the residents live in shared accommodation in a flatting-type situation. At Matawhāiti, each resident has their own separate self-contained unit.
[43] It was accepted that the Tōruatanga Residence is similar to the Kaainga Taupua Residence, which is situated out of Spring Hill Corrections Facility in the North Island, where Mr Waiti’s offending in May 2021 (above at [28]) occurred.
[44] In his affidavit, Mr Waiti outlined what life was like for him at Kaainga Taupua. He did not find it to be a supportive or well-controlled environment. He said people “played up a lot” and it was relatively easy to access drugs and alcohol. Mr Waiti admits that he made bad choices when he was living at Kaainga Taupua by drinking and consuming drugs.
[45] Mr Waiti acknowledged the support he receives at Matawhāiti. Mr Waiti explained why he became involved in fights in prison. He said he was not the one who instigated the fights but accepted he would not back down if someone tried to start a fight with him. He explained that he felt it was important not to show any sort of weakness in case he got picked on by other prisoners. He said he understands now that he should have walked away from these situations and asked for help from the Corrections’ staff. It was evident from his affidavit that this would be a big change for
him because, in his words, “I’d be a tale teller for the first time ever, but I think I would do it now”.
[46] Mr Waiti also said he is no longer a member of the Mongrel Mob. He explained that there is no one in his family who does not have a criminal history or gang connection. The people in his family he is most close to are his father and cousin. Mr Waiti’s father is not involved a gang, but his cousin is.
[47] Mr Waiti explained he became a born-again Christian in 2018. He accepts that, over the years, he has made mistakes, but he is trying hard, and wants, to be a different person. For the first time, he has agreed to being assessed by psychologists. He accepts he has ADHD and PTSD. He is willing to undertake counselling to help him with his diagnoses and is taking medication for his ADHD. As well, he is using other techniques he is being taught to deal with situations he finds stressful.
[48] Mr Waiti explained his daily routine. It is structured and includes responsibilities for household tasks and other activities. He is studying the Road Code and working towards obtaining a driver’s licence. He is an artist and enjoys music and playing Xbox. He has been learning to cook.
[49] Mr Waiti described living at Matawhāiti as peaceful. He has been helped by the staff. Despite this positive endorsement, he is still of the view that Tōruatanga or another ESO residence would be best for him. He wants to prove himself and build on what he has learnt.
[50] Mr Waiti’s father also filed an affidavit. He offers to accommodate his son at his own home in Tūrangi. He believes he can arrange employment for his son and, with support, he can assist his son to continue on the positive path he has decided to embark upon. Understandably, he would prefer if his son could be relocated to somewhere in the North Island, closer for him, family and friends to visit. However, Mr Waiti understands the benefits of him remaining in the South Island at the moment.
Legal principles
[51]The objective of the Public Safety Act is set out in s 4:
4 Objective of Act
(1) The objective of this 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.
(2) It is not an objective of this Act to punish persons against whom orders are made under this Act.
[52]The guiding principles are set out in s 5:
5 Principles
Every person or court exercising a power under this Act must have regard to the following principles:
(a)orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:
(b)a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:
(c)a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:
(d)persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.
[53] In Chisnall v Attorney-General, the Court of Appeal held that the statutory regimes that provide for PPOs and ESOs are inconsistent with s 26(2) of the Bill of Rights, which prohibits a person who has been finally acquitted, convicted of or pardoned for an offence from being tried or punished for it again. The Court held:15
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 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.
15 Declaratory judgment, above n 4, at [218].
[54] Although the judgment of the Court of Appeal has been appealed to the Supreme Court, the law as it stands is that which is outlined above. Counsel accepted that the statutory requirements of a PPO must be considered in a rights-consistent manner so there must be strong justification for such an order before it can be made.
[55] I respectfully adopt Mander J’s statement of the law in Chief Executive of the Department of Corrections v Douglas:16
It follows that the statutory requirements of a PPO, including the assessment of the very high risk of imminent serious sexual offending is to be approached, so far as it is reasonably available, in a rights-consistent manner, and in a way that reflects the need for strong justification if there is to be a legitimate departure from the right to be immune from a second penalty. Only by that means can the imposition or continuation of such orders potentially qualify as a demonstrably justified limitation on the right.17
Should a PPO be made?
[56] There is no dispute that Mr Waiti meets the threshold for the imposition of a PPO as set out in s 7(1)(a) of the Public Safety Act. He is over the age of 18 years and, at the time the application was made, he was detained in a prison under a determinate sentence for a serious violent offence (as defined), and his release date was within six months of the application being made.18 He is also eligible under s 7(1)(b) of the Public Safety Act as he is subject to an ESO and has previously been subject to a special intensive monitoring condition.19
[57] Section 13(1) of the Public Safety Act requires the Court to consider all of the evidence offered in a proceeding on an application for a PPO, in particular the evidence given by two or more health assessors, including at least one registered psychologist. In this case, two clinical psychologists, Dr Angela MacFarlane and Mr Gahan Joughin, each provided an initial and an updated report to the Court. The initial health assessment reports were provided in March 2023,20 and the updated reports were provided in April 2024. The health assessors were cross-examined at the hearing before me.
16 Chief Executive of the Department of Corrections v Douglas [2023] NZHC 1085 at [24].
17 Department of Corrections v Bell [2022] NZHC 2453 at [10].
18 Public Safety Act, s 7(1)(a).
19 Parole Act 2002, s 107K.
20 And, in the case of Dr MacFarlane, an addendum dated 31 July 2023.
[58] As well as the health assessors’ evidence, I received, and have carefully considered, six affidavits filed on behalf of the Chief Executive in support of this application. The affidavits were from Mr Speirs, the residential service manager for Matawhāiti and Tōruatanga who also gave viva voce evidence and was cross- examined; Sade Jones, the acting residence manager of Matawhāiti and Tōruatanga; Lodewicus Gerber, the regional manager of the high-risk team; Melissa Brussovs, the residence manager of Matawhāiti and Tōruatanga; and from Jonty McBrearty, the residential manager at Rimutaka Prison. The affidavits of Mr McBrearty, Ms Brussovs and Mr Gerber’s first affidavit all date back to June and August 2023, whereas the affidavits of Mr Speirs, Ms Jones and the second affidavit of Mr Gerber are dated April 2024 and provide more up-to-date information.
[59] As outlined above, I also received two affidavits filed on behalf of Mr Waiti, one from him and another from his father.
[60] This Court must be satisfied on the balance of probabilities that, as well as meeting the threshold for a PPO, there is a very high risk of imminent serious violent offending by Mr Waiti if he is left unsupervised.21
[61] However, such a finding cannot be made unless this Court is satisfied the respondent exhibits a severe disturbance in behavioural functioning established by the evidence to a high level of each of the following characteristics:22
(a) an intense drive or urge to commit a particular form of offending;
(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity and inability to cope with, or manage, stress and difficulties;
(c) absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims; and
(d) poor interpersonal relationships or social isolation or both.
21 Public Safety Act, s 13(1)(b)(ii).
22 Section 13(2).
[62]Therefore, to summarise the s 13 requirements:
(a) the Court must first determine whether Mr Waiti exhibits a severe disturbance in behavioural functioning based on the s 13(2) characteristics and, if he does;
(b) the Court must determine whether Mr Waiti poses a very high risk of imminent serious violent offending.
[63] But, even if the statutory tests are met, a PPO may not necessarily follow. The Public Safety Act is to be interpreted and applied in the context of human rights obligations, protective of liberty and suspicious of retrospective penalty.23 A PPO can only be justified if the next most restrictive option, in McCorkindale v Deputy Chief Executive of the Department of Corrections, a revised ESO order, is deemed insufficient by the Court.24 As noted, any departure from the immunity from second penalty granted in the Bill of Rights will require strong justification.25
Section 13(2) characteristics assessment
[64] The use of the word “exhibits” in s 13(2) does not mean that the traits and behavioural characteristics must be externally manifested at the time of the application. It is sufficient for them to be latent and emerge only in certain contexts.26 This is an important consideration in this case because, since the IDO was made and Mr Waiti has resided at Matawhāiti, there has been an almost eight month period where he has not exhibited any characteristics that can be described as violent and he has not offended over this period in a violent way.
[65] The Court of Appeal in McIntosh v Chief Executive of the Department of Corrections recently described the characteristics listed in s 107IAA(1)(a)–(b) as
23 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [38].
24 McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369.
25 The declaratory judgment, above n 4, at [190], Chief Executive of the Department of Corrections v Douglas, above n 16, at [25].
26 Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 at [86].
“animating characteristics” and the characteristics listed in s 107IAA(1)(c)–(d) as “protective characteristics”. However, the Court of Appeal further noted:27
… These characteristics cannot be construed and implied in absolute terms. They are human characteristics and, to the extent they are present, they will vary from one person to another.
[66] In McIntosh v Chief Executive of the Department of Corrections the Court was referring to s 107IAA of the Parole Act 2002, matters the court must be satisfied of when assessing risk, in particular s 107IAA(1)(d). The provision states:
107IAA Matters court must be satisfied of when assessing risk
(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b)has a predilection or proclivity for serious sexual offending; and
(c)has limited self-regulatory capacity; and
(d)displays either or both of the following:
(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.
[67] Under s 13(2) of the Public Safety Act, the Court must be satisfied the respondent demonstrates evidence of each of the following characteristics:
(a) an intense drive or urge to commit a particular form of offending:
(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:
(c) absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):
(d) poor interpersonal relationships or social isolation or both.
27 McIntosh v Chief Executive of Department of Corrections [2021] NZCA 218 at [22].
[68] Despite the fact the observations in McIntosh v Chief Executive of the Department of Corrections were made in relation to an ESO, in my view, because of the analogous nature of the statutory provisions, they are equally applicable to an application for a PPO.
[69] Although there is some debate about whether the test requires evidence to a high level or whether the behavioural characteristics must be present to a high level, in this case the distinction is not particularly important. I adopt the approach taken by Venning J in Chief Executive of the Department of Corrections v Wilson:28
[27] Although the wording of s 13(2) is somewhat awkward, I interpret it to mean that the Court must be satisfied on the evidence before it that [the offender] exhibits, in other words has, as part of his personality, each of the four characteristics described; and also in each case, that he has them to a high level. The alternative interpretation of the section is that it requires a high level of evidence of each characteristic (without reference to the strength of the characteristic). But even on that interpretation the level of evidence would, in reality, need to be such that each characteristic was established to a high level in any case.
[70] I now assess each of the four characteristics outlined in s 13(2) as they relate to Mr Waiti.
Intense drive or urge to commit a particular form of offending (s 13(2)(a))
[71] The Chief Executive’s submissions highlighted that Mr Waiti has not only offended in a violent way when he has been in the community, he has also offended in a violent way when he has been subject to high levels of supervision, including when in prison, when subject to an ESO and even when he was subject to the 24/7 supervision provided by the intensive monitoring condition attached to his ESO. Ms Boshier submitted that Mr Waiti is not deterred from violently offending by high levels of supervision and/or the prison environment, which she submitted is an important factor in assessing his intense drive or urge to offend in a violent manner.
[72]The opinions of both psychologists about this characteristic are consistent.
28 Chief Executive of the Department of Corrections v Wilson [2016] NZHC 1081 at [27].
[73] In her first report, Dr MacFarlane noted that Mr Waiti’s violent behaviour had persisted despite high levels of behavioural restriction, monitoring and support. She observed that his record suggests violent behaviour is a first line strategy for him when he is trying to manage difficult emotions, interpersonal interactions and personal goals.
[74]In her first report, Dr MacFarlane concluded:
Overall, it is the writer’s opinion that Mr Waiti frequently experiences a strong and intense urge to behave violently and that he experiences this urge as difficult to impossible to ignore. Given there is a record of referrals for psychological intervention, Mr Waiti appears to have either declined treatment offered or been unable to make long term gains from any treatment completed. As a result, the urge to do violence is considered current and active and should a relevant situation present itself, he would be unable to effectively self- manage the urge to engage in violence.
[75] In her updated report, Dr MacFarlane referred to Mr Waiti explaining in her interview with him that he no longer experiences any urge to commit violence. She noted that this was contradicted by a subsequent statement he made that described a desire to engage in violence in response to a specific event but which he was able to resolve by conversing with his father.
[76] In Dr MacFarlane’s opinion, the results of the neuropsychological assessment suggest that, if Mr Waiti is currently experiencing these urges, he would likely demonstrate difficulty managing them and there would be a higher frequency of angry displays than is currently reported. She said:
As a result, it is possible Mr Waiti’s previously prevalent and intense urges to do violence are generally latent in the current environment. As noted in the original health assessment, should he demonstrate desistance in these angry displays (eg “puffing up”, verbal abuse, threats, property damage) and continued successful deployment of distress, tolerance and emotion regulation strategies over a period of more than 24 months, there would be increased confidence that this risk characteristic is no longer met. As things are currently, it remains the writer’s opinion that there is lifetime evidence of this risk issue being met to a high level, with meaningful, yet very recent and closely supported abatement.
[77]Likewise, Mr Joughin’s opinion in his first report was that:
Mr Waiti demonstrates a clear drive or urge to engage in violent offending behaviour in the writer’s opinion. His intense drive for violence is very easily activated as outlined earlier in this report, essentially by any indication that
his immediate needs may not be met, any attempt by others to influence him, or any of a variety of triggers including the activation of anger.
[78] In his updated report, Mr Joughin referred to Mr Waiti’s willingness to engage in serious violence while under stringent ESO conditions in 2021 and to the incidents early on when Mr Waiti was first placed at Matawhāiti. Mr Joughin was sceptical of Mr Waiti’s recent behavioural stability, describing it as:
… most accurately … conceptualised as reflective of his acute awareness of the potentially profound consequences of a PPO being applied, the absence of virtually any challenges to his needs being met, and the highly pro-social Matawhāiti environment in which he has been provided with material goods and complete support from staff.
[79] In Court, I put to Mr Joughin my notion that Mr Waiti’s self-management was motivated by the current PPO application was a neutral factor as opposed to a negative one. He accepted that proposition.
[80] But, specifically in relation to the characteristic under s 13(2), he said “Mr Waiti is considered to demonstrate a longstanding desire/urge for violence, that is present to a high level in the writer’s opinion”.
[81] I conclude that, currently, the evidence established is that this characteristic is present to a sufficient degree despite the efforts made by Mr Waiti over the last eight months. A longer period of time is required to pass before it can be stated with confidence that this animating characteristic has abated to a sufficient degree to conclude that it has abated to a safe level.
Limited self-regulatory capacity (s 13(2)(b))
[82] Heath J drew attention to the fact that the use of the word “limited” in the statute suggested questions of degree in the Court’s assessment of this ground. The Judge phrased the question as whether an offender has sufficient capacity to self- regulate impulses to offend. While the Judge considered that approaching the question on that basis to be “over-simplistic”, the statement does assist in fleshing out the statutory test.29
29 Chief Executive of the Department of Corrections v Bradbury [2016] NZHC 2816 at [92].
[83] Dr MacFarlane, in her first report, concluded that Mr Waiti has limited self- regulatory capacity. In her first report she said:
… As a result, while impulsivity is somewhat problematic for him, emotional reactivity and difficulty managing strong emotions or interpersonal conflict appear to play a much stronger role in his overall difficulties with self- regulation. Mr Waiti’s difficulties in this area may be driven by possible PTSD symptomology (for example, hyperarousal to threat, avoidance of particular emotional states) and his personality pathology ([in] particular his hostile attribution style and suspiciousness.) This means that, even if a situation appears non-threatening to outsiders, Mr Waiti’s hyperarousal to threat and expectations that others will harm him likely cause him to react strongly.
Mr Waiti’s difficulties with self-regulation are pervasive, long-standing, appear resistant to intervention or sanction, and given recent prison records, appear currently or recently active. Overall, it is this writer’s opinion that there is good evidence of the presence of poor self-regulatory capacity for Mr Waiti.
[84] Dr MacFarlane’s updated opinion noted that, while Mr Waiti (in the Matawhāiti environment) has demonstrated clear instances when he has implemented strategies to manage his emotions, she said this has occurred within a highly stable, low trigger environment with consistently available and unconditional support from staff, and with high stakes consequences should he react. Compared to an alternative to the Matawhāiti environment, her opinion was that this factor would be met to a high level.
[85]Mr Joughin reached the same conclusion in his first report, as follows:
Mr Waiti’s lifetime functioning indicates significant and long-standing difficulties with impulsivity, emotional reactivity and a seeming inability or unwillingness to manage situations in which he is stressed or does not have his needs immediately met.
[…]
In the assessor’s opinion, Mr Waiti demonstrates very limited self-regulatory capacity, as evidenced by his impulsivity, extreme emotional reactivity, and inability to cope with or tolerate any external influences that threaten his perceived need for absolute control over his environment.
[86] In his updated report, Mr Joughin did not consider that the behaviour Mr Waiti had exhibited at Matawhāiti reflected any increase in a capacity for self-regulatory behaviour.
[87] An important point raised during the questioning of these witnesses was whether, with the recent diagnosis of ADHD and medication to assist with it, it could assist to mitigate this characteristic, in particular impulsivity. Dr MacFarlane, when cross-examined on the matter, gave her view that medication could indirectly improve Mr Waiti’s ability to self-regulate. The essence of her evidence, as I understand it, was that medication could improve some cognitive functioning on Mr Waiti’s behalf, but, ultimately, the matter was inconclusive, and it appears that Mr Waiti’s cognitive issues encompass more than his diagnosis of ADHD.
[88] I conclude that, although Mr Waiti has begun implementing strategies to manage his emotions, he is currently in an environment where that is able to be very carefully managed. In order for the Court to be satisfied that this characteristic has abated significantly, more time and therapeutic involvement is required, as well as carefully managed opportunities provided for Mr Waiti to demonstrate what he has learnt. Currently, I am satisfied that this animating characteristic is still present to a significant degree.
Absence of understanding or concern for the impact of offending on actual or potential
victims (s 13(2)(c))
[89] What comprises an absence of understanding has been the subject of some judicial comment.30 The cases establish that the assessment requires whether there is an absence of any meaningful understanding or concern which is present to a sufficient degree to mitigate the relevant risk. For this reason, it is not sufficient for there to be some level of understanding — a qualitative assessment is also required. Having said that, the absence of understanding or concern must be present to a high level. But importantly, it is a protective characteristic and, for the Court to find that the characteristic is present so that the test is not met, it must be present to a degree that is protective.
[90] In his affidavit, Mr Waiti has expressed that he is sorry for the harm he has caused to others. He explains that he is trying to live according to Christian teachings,
30 P v Chief Executive of the Department of Corrections [2018] NZCA 599 at [42]; Chief Executive of the Department of Corrections v Douglas, above n 16, at [82] and [89]; Chief Executive of the Department of Corrections v Pori [2021] NZHC 2305 at [35].
one of which he identified as being to “apologise when you have done wrong”. In relation to his past offending, Mr Waiti said:
I feel like some of my past offending had a bit to do with the environments I was in. I take ownership of my offending though. I just mean that when there’s drugs and violence all around, it’s easier to end up doing drugs and being violent.
[91]Both Dr MacFarlane and Mr Joughin also addressed this characteristic.
[92]In her first report, Dr MacFarlane said:
Mr Waiti’s records show him to have previously demonstrated a superficial regret for offending behaviour or violent outbursts… However, in each case there appears to have been a self-interest in the statement of regret or apology… Records of spontaneously expressed concern for previous victims is sparse to non-existent and contradicted by several instances where a callous attitude to the effects on victims was shown…
Overall, Mr Waiti has a history of demonstrating an absence of understanding or concern regarding the impact of his violent behaviour on others. In this absence of offence-focused treatment, alongside clear personality characteristics showing callous disregard for others, and without clear evidence or behaviour suggesting the contrary, it is this writer’s opinion that poor victim understanding and concern is likely to remain an active and present risk issue for Mr Waiti.
[93] In her updated report, Dr MacFarlane confirmed her opinion to be unchanged. However, Dr MacFarlane recorded that Mr Waiti “did once acknowledge that he did not want to hurt anyone else” but she went on to say that the predominance of his replies to questions on the matter tended to focus on the potential impacts for himself.
[94] Mr Dillon submitted that Mr Waiti’s acknowledgement, as reported by Dr MacFarlane, was somewhat double-edged in that it demonstrates Mr Waiti’s capacity for consequential thinking which is relevant to considerations such as the likelihood of him reoffending. But he also submitted that Mr Waiti’s professed desire not to want to hurt anyone else is relevant to whether he has an intense drive or urge to commit further offending. It also reflects his Christian values.
[95]Mr Joughin, in his initial report, addressed this characteristic as follows:
Mr Waiti demonstrates no concern for the victims of his violence offending or potential future victims, while his unwillingness to be interviewed for the
current assessment precludes comment from being made regarding his understanding of the effects of his offending on actual or potential victims.
…
Mr Waiti’s claims of remorse at the time of Court proceedings have been considered disingenuous by professionals, and inconsistent with his continued (and frequent) aggressive behaviours within custodial environments. His continued gang affiliation is also inconsistent with any verbalised concern for his victims, as this antisocial network serves to support and reinforce the use of violence.
[96] In his updated report, Mr Joughin confirmed his opinion that this factor is present to a high degree. In Court, Mr Joughin affirmed his view that Mr Waiti had done no more than show verbal remorse. Mr Joughin was of the view that any positive change in this area, when questioned, was largely due to the supportive environment at Matawhāiti.
[97] In closing, Mr Dillon submitted that the experts had discounted the statements Mr Waiti had made in his affidavit in relation to what he had said to them. He submitted that Mr Joughin’s challenge to Mr Waiti’s genuineness about his Christian values did not take into account that the changes he was making were a work in progress.
[98] It is important to acknowledge Mr Waiti’s commitment to understanding the impact his offending his offending has had on his victims. I acknowledge that much of it was reflected in his guilty pleas to the various charges he faced in court. There is evidence that, for example, the two incidents that occurred when he first went to Matawhāiti resulted in him apologising for his behaviour very soon after. I place more weight on Dr MacFarlane’s assessment of this characteristic than Mr Joughin’s which, with respect, was dismissive of any remorse expressed by Mr Waiti for his past offending. I do not challenge Mr Waiti’s commitment to do better and emphasise that, while the journey is a long one, it is a work in progress. Nonetheless, I conclude that his developing understanding is not present to a sufficient degree, at this time, to be sufficiently protective of the risk it seeks to avoid.
Poor interpersonal relationships or social isolation or both (s 13(2)(d))
[99]In her initial report, Dr MacFarlane said:
Mr Waiti has demonstrated a long history of difficulties within interpersonal relationships. Relationships with staff, peers, intimate partners, and whanau have been significantly disrupted by his reactive and aggressive behaviour, suspiciousness, and hostile attribution style. He has very few natural supports and has problematic relationships with professional supports. …
Mr Waiti’s personality disturbances are likely to play a significant role in his interpersonal difficulties. By the definition of the measure, those with high scores on Factor 1 of the PCL:SV have disrupted interpersonal relationships. Mr Waiti’s suspected constellation of severe and complex PTSD symptoms involve significant disruptions to his interpersonal functioning. Given the chronicity of his personality pathology, it is considered that without extensive intervention, those disruptions are likely to endure in the long term. It is therefore the writer’s opinion that Mr Waiti demonstrates clear evidence of disrupted interpersonal relationships and some evidence of social isolation.
[100] In her updated assessment, Dr MacFarlane noted that Mr Waiti has benefited from stable and highly consistent care at Matawhāiti but, while she acknowledged this was promising, her opinion currently remains that this risk remains present to a high level. Dr MacFarlane pointed to the meaningful activities and ongoing relational support as things needed by Mr Waiti at this stage in his rehabilitation, as well as the limit on access to antisocial associates and peers. Dr MacFarlane acknowledged that, while Mr Waiti would “absolutely” be ready for the Tōruatanga environment in future, he is not ready yet.
[101] In his first report, Mr Joughin also accepted this characteristic was made out. He considered Mr Waiti appears to lack the capacity to form warm and genuine relationships with others. He notes Mr Waiti’s continued violence and antisocial personality structure, as well as his repeated periods of incarceration resulting in continued isolation from potentially pro-social peers.
[102] In his updated report, Mr Joughin confirmed that, in his opinion, this factor is still present to a high level despite the constructive relationships Mr Waiti has built with some Matawhāiti staff.
[103]In his affidavit and in response to Mr Joughin’s report, Mr Waiti said:
56. But I would say Mr Joughin is right to say I struggle with interpersonal relationships. I do struggle, and especially when it comes to female partners. Not so much other people, but female partners in particular. I have gotten jealous and been controlling. I have been aggressive and abusive, too. I don’t completely know why and I am working on it. Part
of it is probably to do with my hard upbringing, the pain of that and the PTSD. I am trying to work on all that through counselling about relationship skills. I have already applied for ACC ISSC counselling as Mr Joughin has suggested in his report.
[104] Mr Joughin affirmed he had read Mr Waiti’s affidavit and that nothing in it altered his conclusions.
[105] As Mr Dillon highlighted, the trauma suffered by Mr Waiti in his childhood and adolescence, and the fact that he has had periods in prison since he was 16, means he has had little opportunity to develop pro-social relationships. Mr Dillon submitted that the making of a PPO would perpetuate this difficulty. In some regards, Mr Dillon is correct in this submission but not entirely. The positive role models that Matawhāiti has provided and the high level of support and encouragement, together with further future therapeutic intervention may well assist Mr Waiti to develop better tools to deal with interpersonal relationships. But, at this time, I conclude that the degree of progress that would need to be present to provide a protective aspect to this characteristic is at a very early stage. I am therefore satisfied that this characteristic has been made out as it relates to poor inter-personal relationships.
Overall conclusion on s 13(2) matters
[106] I am satisfied that the test outlined in s 13(2) of the Public Safety Act has been made out. To be clear, I am satisfied that Mr Waiti exhibits a severe disturbance in behavioural functioning, established by evidence to a high level of each of the characteristics outlined in s 13(2)(a)-(d).
Is there a very high risk of imminent serious violent offending?
[107] To interpret the standard of very high risk in a rights-consistent manner, there needs to be a magnitude of risk that strongly justifies the imposition of a PPO. In addition, the very high risk must relate to “imminent serious violent offending”.
[108]“Imminent” is defined in s 3 of the Public Safety Act as follows:
imminent, in relation to the commission of serious sexual or violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so
[109]“Serious violent offence” is defined in s 3 of the Public Safety Act as follows:
serious sexual or violent offence means an act committed before, on, or after the commencement of this section that—
(a) is committed in New Zealand and is—
(i)a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment, including a crime under section 144A or 144C of that Act; or
(ii)an offence against any of sections 172 to 177, 188, 189(1), 191, 198 to 199, 208 to 210, 234, 235, and 236 of the Crimes Act 1961; or
(b) is committed overseas and would come within the description of paragraph (a) if it had been committed in New Zealand
serious sexual or violent offending means the commission of 1 or more serious sexual or violent offences
[110] In respect of Mr Waiti, his previous convictions include the following serious violent offences as defined in the Public Safety Act:
(a) aggravated robbery (x2)31 and wounding with intent32 August 2003;
(b) injuring with intent/reckless disregard on 15 July 2004;33
(c) kidnapping in 2013;34 and
(d) kidnapping (x2)35, assault with intent to injure and threatening to kill (x2) on 23 May 2021.36
[111] There are a number of violent offences that do not qualify under the Act but nonetheless reinforce the submission that Mr Waiti has issues with violence, such as an assault on a Police officer in 2008, three charges of assault in 2009 and an assault with a weapon in 2010.
31 Crimes Act 1961, s 235; maximum penalty 14 years’ imprisonment.
32 Section 188(1); maximum penalty 14 years’ imprisonment.
33 Section 189(1); maximum penalty ten years’ imprisonment. Mr Dillon notes that due to the lack of detail on this offence, it could not be a qualifying offence if charges as a reckless disregard offence as opposed as one with intent. Mr Waiti was convicted and discharged by way of sentence.
34 Crimes Act, s 209; maximum penalty 14 years’ imprisonment.
35 Section 209; maximum penalty 14 years’ imprisonment.
36 Threatening to kill and assault with intent are not listed as a “serious violent offence” under s 3 of the Public Safety Act but are included here as it was part of that chain of events.
[112] The Supreme Court addressed “imminent” in Chisnall v Chief Executive of the Department of Corrections.37 Although dealing with an appeal against an IDO, the observations by Elias CJ are equally apt in this context and are as follows:
[39] The text of s 13 and the definition of “imminent” links the risk which is to be addressed by the orders to provision of opportunity through removal of restraint. The Judge must be satisfied not only that the risk is a high one but that it is likely to occur if the opportunity arises. Under the definition the person must be expected to commit a serious sexual or violent offence as soon as he or she has suitable opportunity to do so. The criteria in s 13(2) indicate that “imminent” in this context is not a purely temporal assessment but one linked to opportunity. The order is aimed at preventing the opportunity arising where the Judge is satisfied that an offence of the type is likely to be committed by the respondent when he or she has suitable opportunity.
[113] While noting Mr Waiti’s clear and effortful improvement at Matawhāiti, Dr MacFarlane’s opinion remained unchanged that, should Mr Waiti be placed in anything other than a very highly structured and consistently stable and supportive environment, he would continue to present a very high risk of further violent offending against a wide range of potential victims and in a wide range of contexts. Dr MacFarlane stressed the effect of Mr Waiti’s current environmental surroundings on his current behaviour.
[114] Mr Joughin reached a similar conclusion, noting there was no evidence to suggest that Mr Waiti’s risk could be effectively managed in any community-based environment available to Corrections and that he considered Mr Waiti to pose a “very high risk” of committing a further relevant violent offence.
[115] In highlighting aspects of the health assessors’ reports and their opinions, Ms Boshier submitted they support the view that, when Mr Waiti is in a state of heightened negative emotion, his violence triggers are multiple, the violence he engages in could be planned or reactive and impulsive, and it could be directed at anyone, male or female, known or a stranger. She submitted that the evidence establishes that Mr Waiti’s triggers are multiple, they can be insignificant and that his threats and violence are indiscriminate. She observed that Mr Waiti has violently offended in all types of environments, including in the community, under ESO supervision and in prison.
37 Chisnall v Chief Executive of the Department of Corrections, above n 23.
[116] While acknowledging that, after the initial four weeks at Matawhāiti, Mr Waiti appeared to have settled and engaged well in the Matawhāiti environment, she highlighted that his response must be considered in the following context:
(a) Matawhāiti is the most highly supported environment available to Mr Waiti, the staff are highly trained, there is a community-type environment and there is only one other resident;
(b) the changes have occurred within a very recent timeframe;
(c) the changes may have been assisted by Mr Waiti’s decision to cooperate with assessments, especially the neuropsychological assessment which has yielded more information about his functioning and thus how to safely and effectively manager him; and
(d) his behaviour has occurred within a context of the current application and Mr Waiti’s expressed motivation not to return to prison under a PPO.
[117] Mr Dillon submitted that Mr Waiti is at imminent risk of serious violent offending only if he had drugs available to him and chose to use them or if there was a triggering event and he chose to act upon it. He submitted, in this situation, he would need to also put aside the treatment gains he has made. Mr Dillon further submitted that, even if the opportunity presented itself, the Court would need to be satisfied that Mr Waiti would respond with serious violence. He highlighted examples which he submitted shows that Mr Waiti can make choices to avoid violence and can abstain from violence when his needs are unmet, as follows:
(a) prior to the IDO being made when Mr Waiti was in prison, he chose to avoid confrontations with others by voluntarily requesting to be placed in segregation;
(b) the two occasions when he became angry early on while at Matawhāiti did not result in any displays of violence towards a person but, further, what occurred cannot be characterised as a seriously violent response; and
(c) when Mr Waiti’s request to attend his brother’s unveiling was declined while he was at Matawhāiti, he displayed no signs of anger whatsoever.
[118] While I regard it as a neutral factor, the fact Mr Waiti has complied so well recently must no doubt be influenced to some degree by his awareness of the PPO application. What is key regarding this discussion is Mr Joughin’s contention, which I agree with, that a large part of Mr Waiti’s positive performance while resident at Matawhāiti is because he faces few, if any, triggers and challenges in that environment that could evoke a negative response from him. As noted by Mr Joughin, Mr Waiti acknowledged as much when interviewed.
[119] Despite the considerable efforts Mr Waiti has made to deal with the triggers that, in the past, have resulted in him perpetrating serious violence on others, I conclude that it is still too early in his journey for me to conclude that, should he be faced with such triggers in a less supportive environment than Matawhāiti, he would respond without serious violence.
[120] I therefore conclude that there still remains a very high risk of imminent serious violent offending by Mr Waiti if he is placed in an environment where he is supervised to a lesser degree than that which he experiences at Matawhāiti. Accordingly, I conclude that grounds have been made out under s 13(1) to justify the making of a PPO.
Is there an adequate alternative option to the making of a PPO?
[121] Where conditions can be put in place without detention that would remove the opportunity or restrict it to an extent that there is no longer a very high risk, then a PPO should not be made.38
[122] As noted, Dr MacFarlane was of the view that while a residence at a less secure facility would be appropriate in future, it is not appropriate now. Mr Joughin’s view was that the supportive environment at Matawhāiti is fundamental to Mr Waiti’s rehabilitation and he was also clear that a less secure facility would not be appropriate for Mr Waiti at this time. A theme emerging from Mr Joughin’s evidence was that the lifetime of dysfunction and violence Mr Waiti has experienced means that it will be challenging for the Court to assess what degree of reintegration can properly be
38 Chisnall v Chief Executive of the Department of Corrections, above n 23, at [37]-[40].
characterised as successful. As noted by Mr Joughin, while Mr Waiti’s current stability is undoubtedly a good thing, his history and psychological makeup show that these periods can be short-lived should Mr Waiti be placed in the wrong environment.
[123] On behalf of Mr Waiti, it was submitted that the less restrictive ESO regime should be preferred. Mr Dillon highlighted that Mr Waiti has committed only one serious incident of offending in the last 10 years and there is evidence that his risk has somewhat diminished in recent months. He highlighted the evidence that Mr Waiti is friendly and respectful when interacting with Tōruatanga residents who visit Matawhāiti. He also highlighted Dr MacFarlane’s observation that Tōruatanga may provide Mr Waiti with a supported opportunity to demonstrate stability and self- desistence in a stepwise manner.
[124] The real issue for me is whether now is the right time for that step to be taken. In terms of the legal framework, the question that must be addressed is whether the risks I have found to have been established will be effectively mitigated and thereby the public protected if the application is dismissed, Mr Waiti’s ESO continues until expiry and he is therefore placed at Tōruatanga.
[125] Although I acknowledge Mr Waiti’s considerable efforts and the overwhelming improvement in his behaviour over the last eight months, I cannot ignore the opinions of the expert health assessors that Mr Waiti is not yet ready for placement in a less structured environment than Matawhāiti. Both experts agreed that Mr Waiti will need to receive trauma counselling and offending-related counselling (in that order) before that option can be considered and the risks of him offending in a seriously violent manner reduced and thereby mitigated. But, as well as counselling, the health assessors both considered there would need to be further opportunities provided to Mr Waiti to practice what he has learned in circumstances that are less protective and supportive than the Matawhāiti environment. In other words, the Matawhāiti environment will best provide Mr Waiti with the opportunity to make the changes he clearly now wishes to make. Both the health assessors considered that therapeutic interventions over at least a two-year period would be required before the risks I have found to be established can be properly and meaningfully reconsidered.
[126] I conclude that there is not, at the present time, an adequate alternative option to the making of a PPO.
Conclusion
[127] For the reasons I have outlined above, it follows that I am satisfied that there is a strong justification for a PPO to be made in respect of Mr Waiti.
[128] Under s 15 of the Public Safety Act, a review panel must review the continuing justification of the PPO within one year after the order is made and thereafter on an annual basis unless certain other criteria apply. I record my view that Mr Waiti should be afforded the opportunity to receive the counselling he needs to deal with the trauma he has experienced and therapeutic interventions to assist with the management of his ADHD and PTSD. Given the progress he has made but accepting that this will be a matter for the experts to determine, opportunities for Mr Waiti to safely put in practice what he has learnt should also be provided.
[129] Section 16 of the Public Safety Act requires an application to be made to the Court for a review of the continuing justification of the PPO within five years after the order is made. I note the expert psychologists’ opinions that at least two years would be required before any sustained changes can properly be assessed. I mention this for the benefit of the review panel but also to urge those who are responsible for the management plans for Mr Waiti and the funding thereof to advance the opportunities to him to make the progress he clearly wishes to make. I make these observations understanding that they are not binding on those responsible for them, but to highlight the importance of such an approach being taken to these matters given the Bill of Rights issues associated with the making of this order.
Result
[130]The application is granted.
[131] A Public Protection Order is made, to take effect on 25 June 2024 and to be served at Matawhāiti. There is no reason to delay the imposition of the Public
Protection Order as Mr Waiti is already a resident at Matawhāiti.39 By virtue of the order being made, the Interim Detention Order now ceases.40
Harland J
Solicitors:
Crown Solicitor, Christchurch Martin Dillon, Barrister, Hamilton.
39 In Chief Executive of the Department of Corrections v Douglas, above n 26, at [156] Davidson J allowed a delay in the imposition so that the PPO subject’s family could have some time to adjust. That is not necessary here.
40 Public Safety Act, s 107(4).
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