Chief Executive of the Department of Corrections v Gray
[2021] NZHC 437
•9 March 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-404-20
[2021] NZHC 437
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
KAAHU HIRIAM GRAY
Respondent
Hearing: 5 March 2021 Appearances:
F Cleary for Applicant
J McLeod for Respondent
Judgment:
9 March 2021
REASONS JUDGMENT OF ISAC J
Introduction
[1] Mr Gray is serving a sentence of seven years and six months’ imprisonment for wounding with intent to cause grievous bodily harm.
[2] On 10 March 2021 Mr Gray will be released into supported accommodation with the Salvation Army in Upper Hutt. He is subject to release conditions which I am advised are due to expire on 10 September.
[3] On 13 January 2021 the Chief Executive applied for an extended supervision order (ESO) under s 107I of the Parole Act 2002 (the Act).
[4] Given Mr Gray’s impending release from prison, on 16 February the Chief Executive applied for an interim supervision order (ISO).
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v GRAY [2021] NZHC 437 [9 March 2021]
[5] That application came on urgently. In an interim judgment I granted the ISO on 5 March 2021 for a period of ten working days. I limited the period of the ISO because, having been able to consider the material before the Court, I identified two issues the applicant should consider and address before determining whether to renew the ISO beyond the period granted.
[6]I now set out my reasons for granting the ISO for a limited time.
A preliminary question: for what reason is the ISO is sought?
[7] Before addressing the substance of the application, it is helpful to identify a preliminary question.
[8] It seems clear that when the application for an ESO was filed, the Chief Executive contemplated that an interim order would only be necessary if the ESO had not been granted before 10 September 2021, being the date on which Mr Gray’s release conditions are said to expire.
[9] The notice of application for an ESO records that Mr Gray is currently subject to release conditions “which expire on 10 September 2021.” The application goes on to record that the Chief Executive “applies for an extended supervision order before the expiry of the respondent’s release conditions” (emphasis added).1 The significance of the expiry of the release conditions is then reinforced by para [5] of the ESO application, which records:
Application for interim supervision order
[5] If it becomes likely that the application for an extended supervision order will not be finally determined before the expiry of the respondent’s release conditions on 10 September 2021, I will apply the s 107FA of the Act for an interim supervision to be imposed on the respondent until the date that the application for the extended supervision order is finally determined.
[footnotes omitted]
1 See [2(c)] of the notice of application, fn 1.
[10] Notwithstanding the terms of the ESO application noted above, the application for an ISO shifted the ground. It makes no reference to the release conditions. Instead, it refers to the scheduled release of Mr Gray from prison on 11 March 2021.
[11] The difficulty I face is that there is insufficient information currently available to me relating to the scope of the release conditions noted in the ESO application, and their impact on the necessity for an ISO at this time.
[12] Nor is it clear why the position of the Chief Executive has shifted. As noted, the notice of application for an ESO alludes to the necessity for an ISO only if the application for an ESO is not and heard and determined before 11 September 2021. By contrast, the application for an ISO is focused on Mr Gray’s release date with no reference to the protections afforded by the interim release conditions.
[13] The applicant needs to give further consideration to this issue and the basis on which the ISO was sought in the first place.
Background
[14] On 14 April 2014 Duffy J sentenced Mr Gray to seven years 6 months’ imprisonment on:2
(a)one charge of wounding with intent to cause grievous bodily harm pursuant to s 188(1) of the Crimes Act 1961;
(b)one charge of contravening a protection order pursuant to ss 19(1)(a) and 49(1)(a) of the Domestic Violence Act 1995; and
(c)one charge of breaching standard release conditions pursuant to s 96(1) Sentencing Act 2002.
[15] Briefly, that offending involved a violent and prolonged attack on Mr Gray’s former partner and her family members. At two points during the assaults Mr Gray
2 R v Grey [2014] NZHC 789.
used weapons against his victims. First, he seized a fork from a kitchen drawer which he drove into the victim’s head, bending the prongs. Later, having left the victim’s house, Mr Gray returned this time arming himself with a kitchen knife. He attacked the victim again and struck her twice in the chest with the knife. The victim sustained life threatening injuries. As Duffy J observed:3
… these sorts of injuries could well have led to her death. It seems to me it is simply a matter of chance that she survived this attack.
[16] The Court noted the aggravating features of the offending, including the fact that at the time Mr Gray was subject to release conditions for an earlier assault, it involved extreme violence and attacks to the head, serious injury, the use of a weapon, and a home invasion of a vulnerable victim.4
[17] At the time of his last sentencing Mr Gray had 30 previous convictions which revealed a history of violent offending, including five convictions for male assaults female, one of common assault, one of wounding with intent to cause grievous bodily harm, one of robbery by assault and one of possession of an offensive weapon.5 At that time the Crown sought but was declined a sentence of preventive detention.
Evidence in support of the application
[18] The Chief Executive has provided a health assessment report prepared by registered counselling psychologist. It notes the following matters:
(a)Mr Gray’s childhood and early adolescence was characterised by a nomadic and unstable lifestyle. It speaks of trauma and substance misuse, and victimisation. Mr Gray’s life experiences included the death of his father when he was an infant; his mother’s substance misuse during his childhood; alleged physical abuse from his mother and other caregivers; relocation between multiple caregivers (including residential placements); and being bullied at school. At the age of 14
3 R v Grey, above n 2, at [12].
4 R v Grey, above n 2, at [43].
5 R v Grey, above n 2, at [17].
Mr Gray’s mother was murdered and he began an association with gangs.
(b)Mr Gray has used alcohol and other mind-altering substances since the age of 13.
(c)Since the age of 17, when first incarcerated, Mr Gray has spent approximately 32 months in the community. He is currently 33 years old.
(d)Mr Gray may suffer from post-traumatic stress disorder.
(e)While in prison, he has accrued 40 misconduct charges, of which 18 were violence related.
(f)In relation to rehabilitative treatments, the report writer noted:
In summary, Mr Gray has completed some rehabilitative treatment, but not yet violence-focused treatment and has persisted to impart blame for not attending. In the author’s opinion it appeared that Mr Gray was attempting to avoid attending the STU:VO while trying to present as still motivated for his treatment. Although Mr Gray’s treatment outcomes could not be assessed with this assessment, the assessor considered the possibility that partial treatment gains could have contributed to his apparent improvement in behavioural controls over the last two to three years in custody.
[19]In relation to the risk of future violent offending, the report writer concluded:
Mr Gray was assessed to be a high end risk for committing a relevant violence offence in the community. This risk estimate could increase to very high end should the factors of substance misuse/abuse, intimate relationship instability, weapon use, and the affiliation with criminal peers coincide during the same period of time.
…
Mr Gray is yet to complete violence-focused treatment, despite numerous opportunities to do so. His persistent issues with entitlement, non-compliance, and apparent efforts to avoid engagements in violence-focused treatment, remain responsivity issues. Mr Gray can benefit from continued rehabilitative and reintegration support in regard to his substance use recovery, association with anti-social criminal peers, and developing a pro-social sense of belonging via stable personal/community support networks.
[20] Importantly, Mr Gray was provided with a copy of the psychologist’s report to read. A handwritten addendum to the report signed by Mr Gray states:
Mr Gray indicated that he wanted to read the report himself. During feedback, he requested the assessors to indicate on the report that he wants an ESO of two years to assist in his pre-integration. He indicated that he is willing to sign this addition to the report.
The statutory framework
[21] Section 107FA(1)(a) of the Act provides that a court can make an ISO if, before an application for an ESO is finally determined, the offender who is the subject of the application is released from detention. The court may also suspend an interim supervision order subject to any conditions it thinks fit under subs 107FA(5).
[22] Section 107I outlines when a court may make an ESO. It states that the purpose of an ESO is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences. An ESO can be made if the Court is satisfied that the offender has, or has had, a pervasive pattern of serious sexual or violent offending, and either there is a high risk that the offender will in future commit a relevant sexual offence or there is a very high risk that the offender will in future commit a relevant violent offence.6
[23] Section 107IAA(2) sets out the matters of which the Court must be satisfied when assessing whether there is a very high risk an offender will commit a relevant violent offence.7 It states:
(2)A court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender—
(a)has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:
(i)intense drive, desires, or urges to commit acts of violence; and
6 Parole Act 2002, s 107I(2).
7 The applications in this case for both an ESO and ISO are both made on the basis of Mr Gray’s future risk of committing a violent as opposed to a sexual offence.
(ii)extreme aggressive volatility; and
(iii)persistent harbouring of vengeful intentions towards 1 or more other persons; and
(b)either—
(i)displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or
(ii)has limited self-regulatory capacity; and
(c)displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
[24] I also note the principles that apply to the release of an offender.8 Section 7(1) of the Parole Act sets out the paramount consideration:
7 Guiding principles
(1)When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.
Principles applicable to the grant of an ISO
[25] On its face, the power of the Court to make an ISO is not circumscribed by any statutory threshold or test.
[26] In Chief Executive of the Department of Corrections v Martin, and Chief Executive of the Department of Corrections v Bradbury, Davison and Heath JJ respectively adopted an approach to an ISO similar to that applicable to the grant of interim relief in review proceedings.9 In Martin, Davison J concluded:
[37] It follows that when deciding whether to make an ISO, the Court need not be satisfied to the same extent as is required when considering whether to make an ESO. For that reason, I reject the submission made on Mr Martin’s behalf that the Court should effectively be satisfied that an ESO should be made before an ISO is made.
[38] I consider that the nature of the Court’s decision in the s 107FA context has much in common with other types of interim orders made by a
8 In Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [12], Davison J said that although this section refers to the Parole Board, the s 7 principles are relevant and applicable to the Court’s consideration of whether to make an interim supervision order.
9 Chief Executive of the Department of Corrections v Martin, above n 8 at [37]-[39]; Chief Executive of the Department of Corrections v Bradbury [2016] NZHC 2461 at [24].
Court, such as interim injunctions generally and, particularly, interim orders sought under s 8 of the Judicature Amendment Act 1972. Here the Court should have regard to all the circumstances, which include the prima facie strength of the application by reference to the matters and material relied upon, the statutory framework and also the likely effect of an ISO upon the individual in respect of whom it is sought. The statutory framework has been considered at paras [10] to [13] above; the emphasis upon the safety of the community will clearly be a matter of significant weight in the Court’s assessment. In light of these considerations, the court should then decide whether those factors justify the temporary restrictions that will be imposed upon the offender pending the Court’s full consideration of the matter at the ESO hearing.
[39] If, having regard to those factors, the Court is satisfied that there is a sufficient and reasonable foundation for the ISO application – and that its operation will be of short duration and on conditions limited to those necessary to protect the safety of the public – the Court has the power to, and will be justified in, making an ISO.
[27] In Bradbury, Heath J substantially adopted the same approach but preferred a broad reasonable necessity assessment ahead of any need for a prima facie case:10
Although Davison J held that the Court should have regard to all circumstances, including “the prima facie strength of the application”, I consider that the broader expression of the test set out in Carlton & United Breweries better captures its essence. In the context of an order that has the effect of restricting the movement of a person who has served the entire period of a prison sentence and post release conditions, I consider that the Court should assess whether an interim order is necessary, as part of its inquiry.
[footnote omitted]
[28] However, Muir J took a somewhat different approach In Chief Executive of the Department of Corrections v Ihimaera:11
[14] The approach which I prefer therefore to ISO applications is to require the Court to be satisfied, albeit on a provisional basis and often on untested evidence, that the statutory criteria for an ESO are made out. In that I respectfully differ from the views of Davison J in Martin.
[15] Importantly, however, the level of such satisfaction is not prescribed by the “balance of probabilities test” which appears in s 13 of the Public Safety (Public Protection Orders) Act. The enabling section in respect of ESOs requires only that the Court be “satisfied” that the requirements of s 107I(2)(a) and (b) are made out. In McDonnell v Chief Executive of the Department of Corrections the Court of Appeal held that “satisfied” in this context has the same meaning as it does in relation to the imposition of a sentence of preventative detention – in other words it requires the Court to exercise its
10 Chief Executive of the Department of Corrections v Bradbury, above n 9, at [24].
11 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228; adopting the approach in Chisnall v The Chief Executive of the Department of Corrections [2017] NZSC 114.
judgment. It is inappropriate therefore to import notions of the burden of proof. As Wylie J said in Chief Executive; Department of Corrections v Martin:
The word “satisfied” simply requires the court considering the application to make up its mind, and, on the evidence, to come to a judicial decision.
[16] In practice, I suspect that little separates the approaches which Davison J and I adopt. Although applications for ISOs occur within the context of legislation having as its central focus the safety of the community, the Court has always looked to the criteria for the granting of an ESO in guiding its assessment. Even in cases where the evidence establishes a potential risk to the public there could be no basis for granting an ISO if the Court was not satisfied (albeit in a provisional way and subject to later reconsideration on receipt of all relevant evidence), that such statutory criteria were made out.
[footnotes omitted]
[29] It is unnecessary for me to determine whether the approaches in Martin and Ihimaera are, in substance, different because it does not affect the outcome of this case.12 However, I am inclined to agree with Muir J’s observation that in practice there may be little separating them.13 It is no doubt appropriate for the Court when hearing an ISO to test the case by asking whether there is at least some evidence which might satisfy the Court that the statutory test in s 107I could be made out at the ESO hearing. In doing so the Court will have regard to the policy underlying the Parole Act, and in particular the paramount consideration of the safety of the community. It will often do so at a time when the evidence and information in support of the application will necessarily be incomplete, and where the respondent remains subject to a term of imprisonment or parole subject to release conditions.
[30] I consider that if the Court is satisfied, on the material before it, an ISO is reasonably necessary, it will be appropriate to make such an order to preserve the status quo namely the protection the community then enjoys on conditions limited to those necessary to achieve that end until the ESO application can be determined. Whether the statutory test for an ESO will ultimately be made out is, of course, a question to be determined at a later hearing. I do not consider it appropriate to require the applicant to demonstrate a prima facie case.
12 Chief Executive of the Department of Corrections v Martin, above n 8; Chief Executive of the Department of Corrections v Ihimaera, above n 11.
13 Chief Executive of the Department of Corrections v Ihimaera, above n 11, at [16].
Analysis
[31] As noted at [5] I granted the ISO for a limited period. Given the urgency with which the application was brought and the material available at the time, I considered this was the appropriate course to follow. It will give the applicant time to consider and if necessary address two issues:
(a)The application for an ESO contemplated that an ISO would only be required if the application for an ESO had not been heard or determined before Mr Gray’s release conditions had expired on 11 September 2021. It is unclear why the applicant’s position changed in February when the application for an ISO was made; and
(b)From the psychologist’s report filed in support of the ESO, it does not appear that the test in s 107I(2)(b)(ii) is likely to be met, in that the report does not appear to conclude that there is a very high risk Mr Gray will in future commit a relevant violent offence.
[32] Having regard to all the circumstances, the material in support of the application, the statutory framework and the likely effect of a short-term ISO on Mr Gray, I was nonetheless satisfied that it is reasonably necessary to grant the order. These factors particularly the safety of the community justify the temporary restrictions that will be imposed on Mr Gray pending a renewed application and, if that is successful, a full consideration of the matter at an ESO hearing.
[33] On the material currently before the Court it is at least seriously arguably that Mr Gray has a pervasive pattern of serious violent offending. The report writer notes that Mr Gray’s violence cycle has persisted to the time of the assessment, although it has shown signs of decreasing severity over the past two to three years in relation to violence against others in prison.
[34] Mr Gray is said to harbour an intense drive, desire or urge to commit acts of violence. His history of violence shows this. He displays extreme aggressive volatility, including against family members, partners and strangers. These violent behaviours included life-threatening injuries to two victims. Mr Gray’s previous
behaviours also likely indicate the presence of resentment, particularly in his intimate relationships.
[35] Although Mr Gray has displayed signs of improved self-regulation within the prison context, his history outside of prison and in the context of an intimate relationship is poor. And, Mr Gray’s capacity to understand or show concern for the impact his violence has had on victims is limited.
[36] Although Mr Gray was assessed only at high risk of committing a relevant violent offence in the community, it was recorded that the risk could graduate to a very high risk with the presence of substance abuse, intimate relationship instability, weapon use, and affiliation with criminal peers. What the report writer has not done is go on to provide an assessment of the likelihood those additional factors might arise on release. From the information canvassed within the report and evident from Mr Gray’s previous offending, it seems possible that such an assessment may provide a sufficient and reasonable foundation to warrant an on-going ISO.
[37] While not determinative, I think Mr Gray’s own statement that he wants an ESO of two years is also relevant.
[38] It is important to note I imposed a limited ISO that would expire after 10 working days to allow the applicant to address the two issues I have noted.
Isac J
Solicitors:
Crown Solicitor, Wellington
Luke Cunningham Clere, Wellington
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