Chief Executive of the Department of Corrections v Campbell

[2017] NZHC 147

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-001197 [2017] NZHC 147

BETWEEN

CHIEF EXECUTIVE OF THE

DEPARTMENT OF CORRECTIONS Applicant

AND

IVAN ANDREW CAMPBELL Respondent

Hearing:	7 February 2017
Appearances:	P A Currie for the Applicant K H Cook for the Respondent
Judgment:	14 February 2017

JUDGMENT OF NATION J

[1]      The Department of Corrections has filed  an originating application for a public protection order in respect of Mr Campbell.   To obtain such an order in a situation where the respondent is not already detained in prison, the Court must be satisfied that there is a very high risk of imminent serious sexual or violent offending if the respondent is left unsupervised.  To be so satisfied, the Court must be satisfied that the respondent exhibits a severe disturbance in behavioural functioning, established   by   evidence   to   a   high   level   with   regard   to   certain   specified characteristics.

[2]      A respondent subject to such an order would have to reside in a special secure building established under the Act where the respondent would be subject to fulltime monitoring and control as is deemed necessary to protect members of the public from almost certain harm that would be inflicted by the commission of serious sexual or violent offenders.  Although the purpose of establishing such a facility and requiring a respondent to live in such a facility is not to punish him, the severe

restriction on a person subject to such an order and all the conditions and measures

DEPARTMENT OF CORRECTIONS v CAMPBELL [2017] NZHC 147 [14 February 2017]

which will be taken to ensure the respondent is secure in such a facility means that, in a number of ways, having to live in such a facility subject to all its constraints will have many of the characteristics associated with a prison sentence.

[3]      Either when or before an application for a public protection order is finally determined, an application can be made for an interim detention order.1    The Department has filed an application for such an interim detention order.

[4]      Mr Campbell is currently subject to an extended supervision order made by the High Court at Christchurch on 19 June 2014 under s 107(i) of the Parole Act

2002.   The term of the order is ten years.2    Pursuant to that extended supervision

order, Mr Campbell is currently in a residence under the control of the Salisbury Street Foundation.  A psychologist for the Department of Corrections has said the Foundation could “continue to offer a supportive residential setting that can accommodate the level of monitoring and conditions which Mr Campbell has abided by for the last two years”.

[5]      The applications for a public safety order and interim detention order were called before me on 7 February 2017.  Mr Campbell attended in person accompanied by appropriate people from the Salisbury Street Foundation. Mr Cook appeared as his counsel.

[6]      Mr Cook confirmed that the application for a public protection order is being opposed, as I understand it, primarily on the basis there is adequate protection for the public which the protection afforded by the  extended supervision order and the supervision he is under through the Salisbury Street Foundation.

[7]      Ms Currie says the applicant’s position is that a public protection order is required.  She said that, given the opposition to the application, the Department of Corrections would be entitled to seek an interim public protection order.  That would also be opposed.  She acknowledged that, for the Court to decide whether or not an

interim  public  protection  order  was  required,  the  Court  would  have  to  receive

1      Section 107(1).

2      Chief Executive of the Department of Corrections v Campbell [2014] NZHC 1388.

submissions on, and consider carefully, the extensive reports and evidence in the same way as it will be required to when the substantive application is dealt with.

[8]      In these circumstances, it had been agreed between counsel and with the understanding and consent of Mr Campbell that, to avoid the need for the applicant to pursue an application for an interim public protection order and without prejudice to each party’s position with regard to the substantive application, Mr Campbell should in the interim continue to reside with the Salisbury Street Foundation but with the Court imposing additional conditions to his current extended supervision order.

[9]      Those conditions sought were that the respondent, Ivan Andrew Campbell, 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  the  Chief  Executive  of  the  Department  of  Corrections,  to undertake person-to-person monitoring.

[10]     Were such conditions to be imposed by the Court, Mr Campbell would have needed to come to Court to have the further order served on him.

[11]     Both counsel advised me that the circumstances relating to Mr Campbell and the applications against him were identical to those concerning Mr Kerr, applications which were called before me on the same day.3

[12]     As  with  Mr  Kerr,  at  the  conclusion  of  the  brief  hearing  involving  Mr Campbell, I indicated I would be issuing a minute and that I anticipated I would be making  an  order imposing the  requested  and  agreed  condition  and  that,  in  due course, Mr Campbell would have to be brought back to Court for the particular order to be served on him.

[13]     Subsequently,  I  became  concerned  as  to  whether  the  High  Court  had jurisdiction to impose the condition which was requested.   As a result, I had a telephone conference with counsel, Ms Currie for the applicant and Mr Starling for

Mr Kerr.  I refer to the brief judgment which I have issued in that case.4   It sets out how matters have developed.

[14]     I agree with Ms Currie’s analysis that the High Court does not have the jurisdiction to impose the special condition sought under either ss 107 1A(1) and (2) of the Parole Act 2002.  Only the Parole Board can impose special conditions, but they cannot impose intensive monitoring without an order from the High Court. However, that order can only be made at the same time as the Court is imposing an extended supervision order on an offender.   There is no jurisdiction to impose a further condition under s 107FA because Mr  Campbell is already subject to an extended supervision order.

[15]     Against that background, the substantive application for a public protection order is adjourned for hearing to 21 August 2017.  The estimated time for the hearing is currently two days.

[16]     The application for an interim detention order is also adjourned to 21 August

2017.  That is on the basis that, until then, Mr Campbell will be subject to intensive monitoring  and  to  being  accompanied  for  up  to  24  hours  a  day  by  a  person authorised by the Department of Corrections.  It was confirmed to me at Court that Mr Campbell was agreeable to this and the representatives from the Salisbury Street Foundation were able to provide that oversight.

[17]     I  reserve  leave  for  the  applicant  to  bring  the  application  for  an  interim detention order back to Court if there is a breakdown in the monitoring and supervision which it has been agreed should continue until the proceedings come on for hearing.

Solicitors:

Raymond Donnelly & Co., Christchurch

K H Cook, Bridgeside Chambers, Christchurch.