Chief Executive of the Department of Corrections v Barton

[2019] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000004

[2019] NZHC 544

UNDER

The Public Safety (Public Protection Orders) Act 2014

IN THE MATTER OF

an application for a public protection order

BETWEEN

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

AND

MATAROA BARTON (AKA: TYSON BARTON)

Respondent

Hearing:

6 March 2019

Counsel:

M L Dillon for applicant Respondent in person

D J Allan as counsel to assist

Judgment:

6 March 2019

Reasons:

22 March 2019

REASONS JUDGMENT OF KATZ J

Solicitor:             Almao Douch, Office of the Crown Solicitor, Hamilton Counsel:  M L Dillon, Barrister, Hamilton

D J Allan, Thackeray Chambers, Hamilton

Copy to:            M Barton

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MATAROA BARTON [2019] NZHC 544 [22 March 2019]

Introduction

[1]    The Chief Executive of the Department of Corrections (“Corrections”) has applied for a public protection order (“PPO”) against Mataroa Barton, a convicted sex offender. Mr Barton is already subject to an extended supervision order (“ESO”) with an intensive monitoring condition that expires in January 2020.

[2]    A PPO is a civil detention order, made to protect the public from persons who, although they have completed their finite prison sentence, still pose a very high risk of imminent and serious sexual or violent offending. A PPO requires a person to be detained in a secure facility within prison precincts. Currently, all persons who are detained on PPOs reside at Matawhaiti Residence, within Christchurch Men’s Prison.

[3]    At the time the PPO application was filed, Mr Barton was in prison for breaching his ESO.   He was, however, scheduled to be released soon afterwards,   on 6 March 2019. Corrections therefore applied for an interim detention order (“IDO”) to cover the period from Mr Barton’s release until the PPO application is heard and determined.1

[4]    I heard the IDO application on an urgent basis, on the date that Mr Barton was being released from prison. I dismissed the application at the conclusion of the hearing, with written reasons to follow. Those reasons are set out below.

Background

Mr Barton’s history

[5]    Mr Barton was born in 1989 and is currently 30 years old. He was placed under the care of the Ministry of Vulnerable Children - Oranga Tamariki (then Child Youth and Family Services - CYFS) at a young age, following which he had multiple placements with various caregivers. His childhood appears to have been characterised by deprivation and abuse.

1      A hearing date of 29 April 2019 has been set for the PPO application.

[6]    In 2006 Mr Barton was convicted of unlawful sexual connection with a male under 12, doing an indecent act with/upon a boy under 12, and permitting or inducing a boy of 12 to 16 to do an indecent act.   The offending occurred in 2003,  when     Mr Barton was 14 years old, and all involved the same victim (who turned 12 during the period of the offending). He was sentenced to supervision.

[7]    In 2009 Mr Barton was convicted of two charges of indecently assaulting a female under 12. The offending involved kissing and tickling two victims. It occurred in 2008, when Mr Barton was 19 years old. The victims were aged seven. Mr Barton was sentenced to 11 months’ imprisonment. This was Mr Barton’s last “contact” sexual offence. His subsequent sexual offending has all been “non-contact”.

[8]In January 2010 Mr Barton was convicted of disorderly behaviour and fined

$200. The offence occurred on 25 December 2009, when Mr Barton was 20 years old. The circumstances were that Mr Barton approached several young children on the swings in a park and took photos of them with a cell-phone. He stated to an approaching member of public that he was doing research about how kids enjoy themselves in the park. He was found to be carrying a laptop with a wire running through his clothing attached to the cell-phone.

[9]In February 2010, an ESO of 10 years duration was imposed on Mr Barton.

[10]   In 2013, Mr Barton was found in possession of objectionable publications  (20 videos and 10 photographs), being child sexual exploitation material. In 2015 he was convicted in respect of that offending and sentenced to a term of two years and eight months’ imprisonment. As the sentence of imprisonment was imposed for a qualifying sexual offence, he was automatically placed on the Child Protection Register.

[11]   In 2015, while Mr Barton was at the Te Piriti Special Treatment Unit for sex offenders at Auckland Prison, he was twice found with “inappropriate” images of children and young people in his cell, although this did not give rise to any charges or sanctions.

[12]   Mr Barton's ESO recommenced on his release from prison in early 2018. On 17 March 2018, while resident at Spring Hill Village, Mr Barton was found in possession of a cell phone, in breach of his ESO conditions. He assaulted the staff member who tried to take the cell phone off him. He was convicted of common assault and breach of his ESO and sentenced to 10 months’ imprisonment.

[13]   Prior to Mr Barton’s release from prison in early 2018, Corrections had applied for a further ESO, with an intensive monitoring condition. Although Mr Barton remained subject to the 2010 ESO, that ESO did not include an intensive monitoring condition. On 23 April 2018, Toogood J granted Corrections’ application and imposed a further 10-year ESO from that date, with a 12-month intensive monitoring condition.2 Pursuant to that condition Mr Barton was again required to reside at Spring Hill Village, under the supervision of Anglican Action Mission Trust staff.3

[14]    On 24 October 2018, Mr Barton was viewed by an Anglican Action staff member watching videos on a mobile phone. The device was surrendered to staff. It was a smart phone capable of accessing the internet. Again, this was a breach of his ESO. On 12 December 2018, Mr Barton was convicted of breaching his ESO and sentenced to imprisonment for nine months.

[15]   As noted above, he was released on 6 March 2019, the date on which Corrections’ IDO application was heard.

Evidence

[16]Four expert reports were in evidence before me, from the following persons:

(a)Dr David Brunskill, a forensic psychiatrist (report dated 2 December 2017);

(a)Dr Tessa Neil, a psychologist (report dated 18 January 2018);

(b)Dr Paul Carlyon, a psychologist (report dated 28 August 2018); and

2      Department of Corrections v Barton [2018] NZHC 777.

3      Mr Barton had been subject to intensive monitoring, on an interim basis, from 19 January 2018.

(c)Dr Nick Lascelles, a psychologist (report dated 18 February 2019).

[17]   In addition, the Deputy Chief Executive of Corrections, Jeremy Lightfoot, provided a brief affidavit annexing relevant documents. A further affidavit was provided by Louise Wood, Operations Director of the Department  of Corrections. Ms Wood has oversight of the team assigned to the management of Mr Barton. She gave evidence about the practical security arrangements at Spring Hill Village, amongst other things.

[18]Dr Neil, Dr Carlyon and Ms Wood were all cross-examined at the IDO hearing.

Public Protection and Interim Detention Orders

Public Protection Orders

[19]   The Public Safety (Public Protection Orders) Act 2014 (“the Public Safety Act”) provides for the Court to make PPOs requiring the detention of very high risk individuals at a secure facility within prison precincts. PPOs are civil, rather than criminal, detention orders. They may only be put in place for individuals who have served a finite prison sentence, but still pose a very high risk of imminent and serious sexual or violent offending, where those persons cannot be safely managed in the community.

[20]   There is currently only one facility designated as a PPO residence – Matawhaiti Residence, inside the secure perimeter of the Christchurch Men’s Prison. Residents are not able to leave the residence except under escort and supervision for medical care and other approved absences.

[21]   ESOs, PPOs and IDOs are all unusual, in that they restrict a person’s freedom because of what a court considers they might do in the future rather than as punishment for what they have done in the past.4 The aim of a PPO is not “to punish persons against whom orders are made under this Act”.5 Rather, the objective of the Public Safety Act is “to protect members of the public from the almost certain harm that

4      Department of Corrections v Thorpe [2017] NZHC 2559 at [12].

5      Public Safety (Public Protection Orders) Act 2014, s 4(2).

would be inflicted by the commission of serious sexual or violent offences”.6 A PPO should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order.7

[22]   Pursuant to s 13 of the Public Safety Act, a Court will only have jurisdiction to make a PPO if it is satisfied of the following three things:

(a)First, that on the balance of probabilities, the respondent meets the s 7 threshold for imposition of a PPO.8

(b)Second, that the respondent exhibits a severe disturbance in behavioural functioning, established by evidence to a high level of each of the following four characteristics:9

(i)an intense drive or urge to commit a particular form of offending;

(ii)limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties;

(iii)absence of understanding or concern for the impact of their offending on actual or potential victims; and

(iv)poor interpersonal relationships and/or social isolation.

(c)Third, that on the balance of probabilities, there is a very high risk of the respondent imminently committing serious sexual or violent offending if released into the community or left unsupervised.10

6      Section 4(1).

7      Section 5(b).

8      Section 13(1)(a).

9      Section 13(2).

10     Section 13(1)(b).

[23]   If those three jurisdictional criteria are met, then the Court can make a PPO. It must then turn its mind to the second, discretionary, stage of the inquiry, which is whether it should make such an order, in all the circumstances of the case.

Interim Detention Orders

[24]   Section 107 provides that the Court may make an IDO, pending determination of an application for a PPO, if certain trigger events occur before the PPO application is finally determined.11 These trigger events reflect the objective of the Public Safety Act of “protecting members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences”.12 As Palmer J noted in McCord:13

If the pre-condition for an IDO in s 107(1) is met, the Supreme Court and Court of Appeal have confirmed the test for imposing an IDO is the same high test as that which applies to public protection orders under ss 7 and 13, given the intrusion an IDO would make into a respondent’s rights and freedoms. For an IDO, though, applications are “necessarily determined on a provisional view of the evidence”, because all the evidence for the substantive hearing may not yet have been fully tested or called.

[Footnotes omitted.]

[25] The relevant trigger event in this case is that the respondent will be released from detention prior to the PPO application being finally determined.14 The pre- condition for an IDO is accordingly met. It is therefore necessary to focus on whether the “same high test” as that which applies to the making of PPOs is satisfied. I will consider each of the three relevant criteria (as summarised at [22] above) in turn, before turning to consider whether the Court should exercise its discretion to make an IDO.

Is the threshold for imposition of a PPO met?

[26]   It was common ground that the threshold for the imposition of a PPO is met in this case. Specifically, Mr Barton meets the threshold criteria of s 7(1)(b)(i), because Mr Barton is over 18 and is subject to an ESO with an intensive monitoring condition.

11     Section 107(1).

12     Section 4(1).

13     Department of Corrections v McCord [2018] NZHC 3195 at [19].

14     Public Safety (Public Protection Orders) Act 2014, s 107(1)(a).

Does Mr Barton exhibit a severe disturbance in behavioural functioning?

[27]   It was not in dispute that, based on the four expert reports before the Court, Mr Barton exhibits a severe disturbance in behavioural functioning established by evidence of the four characteristics identified in s 13(2) namely: an intense drive to offend; limited self-regulatory capacity; lack of concern for the impact of offending on victims; and poor interpersonal relationships or social isolation.

[28]   Given that the matter is not in dispute, I do not propose to undertake a detailed analysis of the expert evidence on these issues at this interim stage. I note, however, that I have carefully reviewed the reports of Dr Brunskill, Dr Neil, Dr Carlyon and Dr Lascelles and am satisfied that, based on the contents of those reports, each of the four criterion are satisfied.

Is there a very high risk of the respondent imminently committing serious sexual or violent offending if released into the community or left unsupervised?

[29]   Section 13(1)(b) requires the Court to be satisfied, on the balance of probabilities, that there is a very high risk of imminent serious sexual or violent offending by the respondent if:

(a)where the respondent is detained in a prison, the respondent is released from the prison into the community; or

(b)in any other case, the respondent is left unsupervised.

[30]   “Imminent” is defined in s 3, in relation to the commission of serious sexual or violent offences by a person, to mean “that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so”.

[31]   I note that the scenarios posed by s 13, requiring offending risk be assessed on the assumption that a respondent will be released into the community or left unsupervised, are artificial in the present circumstances. As Mr Barton is subject to an ESO with intensive monitoring, there is no prospect of him being released directly into the community or left entirely unsupervised.

[32]   I share the view of Palmer J in McCord, however, that the approach that best accords with the statutory language is to first assess the risk of Mr Barton offending against the criteria set out in s 13.15 If that threshold is met (and the other prerequisites for imposition of a PPO are also satisfied) then the Court will have jurisdiction to make a PPO (or IDO). The Court must then proceed to the next stage of the analysis, which is to consider whether to exercise its discretion to make such an order. It is at that discretionary stage that the Court can (and should) take into account Mr Barton’s actual level of offending risk, with reference to any conditions that are in place (or can be put in place) to mitigate that risk. Such an approach is consistent with the observations made by the Supreme Court in Chisnall16 (discussed further below).

[33]   With reference to the expert reports before the Court, I am satisfied, on the balance of probabilities, that there is a high risk of imminent serious sexual offending by Mr Barton if he were released from prison back into the community or left entirely unsupervised. The expert witnesses unanimously conclude that this criterion is satisfied, based on their comprehensive reviews of Mr Barton’s history, interviews with him, and the results of psychological testing and actuarial risk assessment analyses. Neither Mr Allan nor Mr Barton contend otherwise, at least at this interim stage.

Should the Court exercise its discretion to make an IDO?

[34]   This brings me to the most difficult issue arising in this application. For the reasons outlined above, Mr Barton meets the criteria for imposition of a PPO (and therefore an IDO). The key issue is whether the Court should exercise its discretion to make such an order.

[35]   In Chisnall, Corrections had applied for a PPO and IDO or, alternatively, an ESO and interim supervision order. Elias CJ held that, before making an IDO, a court must be satisfied on the balance of probabilities not only that the criteria for making a PPO had been provisionally made out, but also that the risk to the public could not be met by less restrictive options.17 This reflects that the Public Safety Act must be

15     Department of Corrections v McCord [2018] NZHC 3195 at [19] and [21].

16     Mark David Chisnall v The Chief Executive of the Department of Corrections [2017] NZSC 114.

17 At [37].

interpreted and applied in the context of human rights obligations protective of liberty.18 Her Honour held that the availability of ESOs as an alternative means of monitoring risk “is a factor that bears  on  whether  the  more  restrictive  [PPO]  (and [IDO] pending its determination) is appropriate”.19  She  further  stated  that “[i]f conditions can be put in place without detention that would remove the opportunity or restrict it to an extent that there is no longer very high risk of imminent offending of the type, then a [PPO] or an [IDO] ought not to be made.”20 The other members of the Court agreed with the Chief Justice that it was necessary to consider the least intrusive way of managing any risk when making an IDO or PPO.21

[36]   Accordingly, the key issue I must consider is whether Mr Barton would pose a very high risk of imminent serious sexual offending over the next two months or so (until the PPO application is determined) if he were managed pursuant to his current ESO regime.

Mr Barton’s current ESO regime

[37]   Mr Barton’s current ESO was imposed by Toogood J on 23 April 2018, for a period of 10 years. As part of his ESO, Mr Barton is subject to an intensive monitoring condition pursuant to which he is:

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, for the first 12 months of the ESO. The intensive monitoring condition is currently due to expire on 1 January 2020.

[38]   In addition, Mr Barton is required to reside at an address approved in writing by his probation officer, and to submit to electronic monitoring in the form of Global Positioning System (GPS) technology. He is also prohibited from using any electronic device capable of accessing the internet, or capturing, storing, accessing or distributing images through the use of any camera or electronic device, without prior written approval from his probation officer.

18 At [38].

19 At [38].

20 At [40].

21 At [83].

[39]   Until his period of intensive monitoring ends in January 2020, Mr Barton is required to reside at Spring Hill Village, a residential facility on the grounds of Spring Hill Corrections Facility in the Waikato (albeit not enclosed within the perimeter fence of the prison). The location of Spring Hill Village is rural, approximately 5 kilometres from the nearest town (Te Kauwhata). Anglican Action staff and mentors work on site at the Village and are responsible for managing its day to day operations.

[40]   While resident at the Village, Mr Barton will be required to wear a GPS monitored ankle bracelet and be directly supervised (“line of sight”) at all times during the day by a staff member. He will be subject to an electronically monitored curfew at night, from 8.00 pm until 8.00 am. Outings from the Village must be approved by a staff member and Mr Barton will be accompanied by a staff member on such approved outings (if any). There are no statutory powers conferred on Anglican Action staff, however, to be able to direct or search Mr Barton. Rather, they observe and report any concerns to Community Probation or the Police.

Will Mr Barton be at very high risk of imminently committing a serious sexual offence if he is managed pursuant to his current ESO regime?

[41]   The essence of Mr Barton's opposition to the imposition of an IDO is that his existing ESO regime is sufficient to reduce his risk of imminent sexual offending to a level that is less than “very high”, and that an IDO should not be made for that reason.

[42]   “Serious sexual offence” is defined in the Public Safety Act as a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment.22 Most (but not all) of the offences that fall within the definition of “serious sexual offence” involve “contact” sexual offending.

[43]   I have outlined Mr Barton’s criminal history at [6] to [15] above. The last offence that he committed that falls within the statutory definition of “serious sexual offence” was in 2009, when he was 19 years old. Although Mr Barton has breached his ESO on a number of occasions since then, including while he was previously a

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

resident of Spring Hill Village, none of his subsequent offending meets the threshold of being a “serious sexual offence.”

[44]   Realistically, Mr Barton’s offending options while he is resident at Spring Hill Village, subject to intensive monitoring, are likely to be limited to offending by use of a mobile phone. The risk of contact sexual offending is low, as Mr Dillon acknowledged. Mr Barton’s recent propensity to breach his ESO by accessing mobile phones, however, tends to indicate that there is at least some risk of offending in that way. I suspect, however, that the prospects of Mr Barton obtaining a mobile phone will have diminished following his most recent ESO breach. Staff are likely to now monitor him with increased vigilance, with knowledge of how he was able to obtain access to electronic devices previously. I also note that the IDO is only sought to cover the limited time period (two months or so) until the PPO application can be heard and determined. The likelihood of Mr Barton obtaining access to a mobile phone in that limited time frame, in my view, is probably no more than moderate, and may well be low.

[45]   Mr Dillon submitted that if Mr Barton were able to gain access to a mobile phone, there are at least two Crimes Act offences that qualify as serious sexual offences that he might be able to commit, namely:

(a)section 131B – Meeting young person following sexual grooming, etc; and

(b)section 144AB – Party or accessory liability for sexual acts with children or young people outside New Zealand done by, or involving, foreigner principal parties.

[46]   I accept that if Mr Barton were able to obtain access to a mobile phone, he could engage in sexual grooming behaviour, through text messages, social media or via the internet. I do not accept, however, that while he remains subject to intensive monitoring there is any significant risk of him actually meeting any young person following such grooming, let alone the required “high risk”.

[47]   I also accept that there is a theoretical risk that if Mr Barton gained access to a phone he could aid or encourage persons overseas to sexually abuse children or young people. Again, however, the risk of such offending falls well short of the required “high risk” threshold, while Mr Barton remains subject to intensive monitoring. I note that Mr Barton does not appear to have any history of this type of offending.

[48]   Mr Barton last committed a “serious sexual offence” in 2009, when he was 19 years old. He first became subject to an ESO the following year. He has been managed on an ESO regime since then, other than when he has been in prison. While he has offended while subject to an ESO (including while subject to intensive monitoring) his level of offending since he has been subject to an ESO has never met the high threshold of seriousness required to fall within the definition of serious sexual offending in the Public Safety Act.

[49]   Taking all of these matters into account, I am not satisfied, on the balance of probabilities, that Mr Barton is at high risk of imminently committing a serious sexual offence over the next two to three months (until the PPO application can be determined) if managed on his existing ESO regime.

Is the risk of Mr Barton carrying out sexually-motivated offending that does not meet the definition of “serious sexual offending” in the Public Safety Act relevant?

[50]   Mr Dillon submitted that, based on his past history, Mr Barton presents a high risk of carrying out sexually-motivated offending that falls short of meeting the definition of “serious sexual offending,” while subject to his existing ESO regime. This could include, for example, possessing or distributing child pornography, which is an offence under the Films, Video, and Publications Classification Act 1993 punishable by up to 14 years imprisonment.23 Mr Dillon submitted that the Court has a wide-ranging discretion as to whether to impose an IDO, and that it should also take into account this type of risk when exercising that discretion.

[51]   As the Supreme Court made clear in Chisnall, if the precondition for an IDO in s 107(1) is met, the test for imposing an IDO is the same high test as that which

23     Films, Video, and Publications Classification Act 1993, ss 123 and 124.

applies to PPOs under ss 7 and 13. This reflects the intrusion an IDO would make into a respondent’s rights and freedoms. Hence, the Court must be satisfied that there is a high risk of a respondent imminently committing a serious sexual or violent offence (as defined in the Public Safety Act). A risk that a respondent may commit some lesser form of offending is not sufficient, in itself, to justify imposition of an IDO.

[52]   The threshold for what constitutes a serious sexual or violent offence has been set high - no doubt intentionally so, reflecting the important human rights at stake. If the Court is satisfied that there is a high risk of a respondent imminently committing a serious sexual or violent offence (despite the imposition of conditions to manage such risk) then the fact that there is also a high risk of other, less serious, types of sexual or violent offending may be relevant to the exercise of the Court’s discretion. The risk of such lesser offending cannot, however, independently justify the imposition of an IDO.

Conclusion

[53]   For the reasons I have outlined, I was not satisfied, on the balance of probabilities, that Mr Barton is at very high risk of imminently committing a serious sexual offence if managed on his existing ESO regime. As Elias CJ observed in Chisnall, if conditions can restrict the opportunity to reoffend to the extent there is no longer a very high risk of imminent offending, then an IDO ought not be made.24

[54]   I therefore declined to make the interim detention order sought by Corrections, at the conclusion of the hearing on 6 March 2019.

Katz J

24     Mark David Chisnall v The Chief Executive of the Department of Corrections [2017] NZSC 114 at [40].