Chief Executive of the Department of Corrections v Grey

[2025] NZHC 2822

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2025-419-000177

[2025] NZHC 2822

UNDER

The Public Safety (Public Protection Orders) Act 2014

IN THE MATTER

Of an application for a Public Protection Order and Interim Detention Order

BETWEEN

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

AND

JOSHUA GREY

Respondent

Hearing:

8 September 2025

Appearances:

C J Boshier for the Applicant

S McKenna for the Respondent

Judgment:

26 September 2025

JUDGMENT OF POWELL J

[Application for interim detention order]

This judgment was delivered by me on 26 September 2025 at 3.00 pm Pursuant to Rule 11.5 of the High Court Rules

……………

Registrar-Deputy Registrar

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v JOSHUA GREY [2025] NZHC

2822 [26 September 2025]

[1]                 As a result of his offending history and psychological risk profile, the respondent, Joshua Grey is currently subject to an extended supervision order (ESO). The ESO was made pursuant to s 107FA of the Parole Act 2002 (Parole Act),1 and is due to expire in November 2029.

[2]                 Mr Grey’s ESO conditions impose various restrictions, including where he is to live (a full residential restriction condition or FRR), and require him to be monitored at all times (intensive monitoring condition or IM).

[3]                 Although there have been some issues, it appears that at the very least the FRR and IM conditions operating together are sufficient to enable Mr Grey to continue to live in the community, albeit in a facility located on the grounds of but outside Spring Hill prison. That position is about to change as both the FRR and IM conditions are time-limited.   The parties have submitted the IM condition will expire on either      2 October 2025 or 5 January 2025, while the FRR condition will expire on 4 March 2026.

[4]                 In anticipation of the expiry of the IM condition, the Chief Executive of the Department of Corrections (the CE) has applied for a Public Protection Order (PPO) against Mr Grey.2 As that application is set down for a substantive hearing on 28 and 29 April 2026 and both the FRR and IM conditions will expire prior to the hearing, the CE applies for an Interim Detention Order (IDO), to take effect when the IM ends.3

[5]                 On behalf of the CE, Ms Boshier submitted that as soon as the IM expires, the FRR will be insufficient to manage the risks posed by Mr Grey.

[6]                 In contrast, Mr McKenna, on behalf of Mr Grey, opposes the making of a substantive PPO, but accepts that in the interim there is a sufficient basis to make an IDO once both the FRR and IM conditions have expired, although his submission was that the threshold is not met merely by the expiry of the IM condition.

1      Chief Executive of the Department of Corrections v Grey [2024] NZHC 3509 [ESO judgment].

2      Pursuant to the Public Safety (Public Protection Orders) Act 2014, s 7(1).

3      Section 107(1)(b).

[7]                 Following the decision of the Supreme Court that determined retrospective provisions authorising detention were in breach of s 26(2) of the New Zealand Bill of Rights Act 1990,4 there is no dispute that “strong justification” is required before any IDO is imposed in this case.5 Given that position, it follows that if there are alternatives available that are able to satisfactorily manage the risk posed by Mr Grey, including investigating whether the current arrangements can be extended until the PPO application has been determined, then these should be exhausted prior to considering whether an IDO should be granted.

[8]I therefore consider the following issues in this judgment:

(a)When does the IM condition expire?

(b)Can it be extended?

[9]                 The answers to these questions determine the timeframe in which the application for the IDO must be determined.

When does the IM condition expire?

[10]              As noted, the parties have submitted the IM  condition will expire on either   2 October 2025 or  5  January  2025.  In  contending  the  earlier  date  is  correct,  Ms Boshier submitted that the seven months must commence on the date of the ESO decision rather than the date the condition was imposed by the New Zealand Parole Board (the Board).

Discussion

[11]              The ESO commenced on 22 November 2024, with a duration of five years.6 Pursuant to s 107IAC(1) and (3) of the Parole Act the decision included an order that the Board impose an IM condition on Mr Grey, with a maximum duration of seven

4      Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768 at [262].

5      Mosen v Chief Executive Department of Corrections [2022] NZCA 507, (2022) 30 CRNZ 751 at [24].

6 ESO judgment, above n 1, at [31].

months.7 It is clear from the wording of the ESO judgment that Brewer J did not purport to order the IM condition, nor did he have jurisdiction to do so given the wording of s 107IAC(1). Although the Judge did have jurisdiction to impose special conditions on an interim basis, including an IM condition, he did not do so.8 It therefore follows that there was no IM condition in place from the date of the ESO judgment until the Board made its decision on the special conditions that should apply to the ESO.

[12]              It was not until 25 February 2025 that, pursuant to s 107K of the Parole Act, the Board imposed a series of special conditions as part of the ESO, including the IM condition directed by this Court (the Board decision). The Board decision relevantly provided:

The special conditions of Mr Grey’s extended supervision order are set out below. They will remain in force for the term of the order unless otherwise varied or discharged. The exception to that is the intensive monitoring which shall be imposed for a period of seven months from today.9

[13]              Given that position, it followed that the IM condition would in the ordinary course of events expire on 25 September 2025.

[14]              On 11 April 2025 however, Mr Grey was remanded in custody for breaching conditions of his ESO. He was not released until 22 July 2025, a period of 102 days.10 Pursuant to s107P of the Parole Act, the conditions of Mr Grey’s ESO were “suspended, and time [ceased] to run on the order” while he was detained. The effect of s 107P, given the time Mr Grey spent in custody, is to extend the duration of the IM condition until 5 January 2026.

Can be IM condition be extended?

[15]              At the hearing before me it was agreed it was worthwhile exploring to see whether or not there was any mechanism in the Parole Act that would enable the IM condition to be extended through to the PPO hearing.

7 At [32].

8      Parole Act, s 107IA(1).

9      This was further reiterated at [13] where the Board decision lists the special conditions and states that these are to take effect from “today’s date”.

10     The conditions were reactivated on the day of release. Parole Act 2002, s 107P(2).

[16]              This was predicated on the basis that an IM condition can ordinarily be imposed for a period of up to 12 months, but that a lesser period of seven months had been imposed in this case and, but for the statutory restrictions, it would be appropriate to allow the current arrangements to continue until at least the PPO application has been determined.

[17]              Having reviewed the legislation, I am satisfied that this Court has no jurisdiction to extend the IM condition beyond 5 January 2026. This is because while the Board has jurisdiction pursuant to s 107O of the Parole Act to vary the conditions of an extended supervision order upon application of either the offender or a probation officer, s 107O(1A) provides:

However, the Board may not vary any condition of an extended supervision order in a way that would be contrary to any order made under section 107IAC requiring the imposition of an intensive monitoring condition.

[18]              It follows that if the Board was to extend the IM condition, it would necessarily be acting contrary to the direction provided by this Court pursuant to s 107IAC(3) at

[32] of the ESO judgment.

[19]             It is equally not open to this Court to vary its order. This is because the Court has to  act  indirectly  to  impose the  IM  condition  through  the  Board pursuant  to s 107IAC(1) and (3), and s 107IAC(5) provides explicitly that this may only be done once.

[20]             Given this position, the final expiry date of the IM condition will be 5 January 2026.

Next steps

[21]             Given my conclusions in this judgment and the overall nature of the regime, I consider it is too early to make a prospective IDO at this point. Instead, a further update on the risks posed by Mr Grey will be necessary prior to determining whether an IDO is required, whether on the expiry of the IM condition or upon the expiry of the FRR condition.

[22]             In the circumstances leave is given for updated psychological reports (either confirming Mr Grey’s current risk profile or detailing any changes to it) to be filed no later than 1 December 2025, together with updated submissions as appropriate. A one- hour hearing is to be set down by the Registry later that week, at a time convenient to the Court and counsel, to address any new issues arising from the updated evidence and submissions.

Powell J