Chief Executive of the Department of Corrections v Kerr

[2017] NZHC 139

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-001196 [2017] NZHC 139

BETWEEN

CHIEF EXECUTIVE OF THE

DEPARTMENT OF CORRECTIONS Applicant

AND

SEAN MARK KERR Respondent

Hearing:	7 February 2017
Appearances:	P A Currie for the Applicant M Starling for the Respondent
Judgment:	13 February 2017

JUDGMENT OF NATION J

[1]      Under s 104 of the Public Safety (Public Protection Orders) Act 2014, the Department of Corrections have applied for a public protection order and an interim detention order under s 107 of that Act.

[2]      Mr  Kerr  is  susceptible  to  an  application  for  the  imposition  of  a  public protection order in that he is or has been subject to an extended supervision order and is subject to a condition of fulltime accompaniment and monitoring imposed under s 107K of the Parole Act 2002 and is subject to a condition of long-term fulltime placement in the care of an appropriate agency for the purposes of a programme under ss 15(3)(b) and 16(c) of the Parole Act 2002.

[3]      An extended supervision order was made against Mr Kerr in the District

Court at Christchurch on 1 October 2009. The duration of the order is ten years.

DEPARTMENT OF CORRECTIONS v KERR [2017] NZHC 139 [13 February 2017]

[4]     Currently, Mr Kerr is living in the community under a placement with Christchurch Residential Care.  He is subject to standard conditions of an extended supervision order that prohibit him from being in circumstances where there would be a risk of further offending.

[5]      Mr Kerr was also released from prison in February 2016 following a sentence of imprisonment on  charges  of breaching the  extended supervision order.   In  a decision of 2 February 2016, the Parole Board mandated, amongst other things, that he was to be subject to electronic monitoring and residence at a Christchurch Residential  Care  address.    He  was  also  to  be  subject  to  24  hour  supervision, including awake staff overnight.  He has thus been subject to 24 hour line-of-sight and GPS monitoring.

[6]      The various applications were called before me on 7 February 2017.  Mr Kerr was at Court under the supervision of appropriate people from Christchurch Residential Care.  He was represented by counsel, Mr Starling.

[7]      Mr Starling confirmed  the applications for a public protection order and interim detention order are opposed.   Mr Starling confirmed that Mr Kerr would have consented to the making of a new extended supervision order with continued intensive monitoring, as with the previous extended supervision order.

[8]      Ms Currie, who appeared for the applicant, acknowledged that, for the Court to determine whether an interim detention order should be made, the Court would have to receive submissions on, and consider, all the reports and evidence which will have to be scrutinised when the substantive applications are heard.

[9]      To avoid the necessity for this, it had been agreed between counsel with the understanding and cooperation of Mr Kerr, pending the hearing of the substantive applications, Mr Kerr would continue living as he is with the support and under the supervision of Christchurch Residential Care but subject to a further condition to be imposed  in  relation  to  the  extended  supervision  order  to  which  he  is  currently subject.

[10]     The  particular  condition  Mr  Kerr  said  he  would  agree  to  is  that  the respondent Sean Mark Kerr 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.

[11]     At the conclusion of the brief hearing over these matters, I indicated I would record what happened, anticipating that, in due course, an order would be made in accordance with counsels’ agreement.  It would have been necessary for Mr Kerr to have then been brought to Court to have the order, including varied conditions, served on him.

[12]     Subsequently, I arranged a telephone conference with counsel because I was concerned that, on perusal of the relevant legislation, the High Court might well not have any jurisdiction to vary the conditions of an extended supervision order in the way that had been proposed.  During the conference, Ms Currie accepted this could be an issue but suggested that what the parties were wanting to achieve could be implemented by the Court making an interim detention order but then suspending it on the condition proposed.  She said such steps had been taken by the Court with the

consent of senior counsel.1

[13]     Subsequently, Ms Currie advised me, for the applicant, that she accepted that in the current circumstances the High Court did not have jurisdiction to impose the special conditions sought, interim or otherwise.  Under s 107 1A(1) and (2) of the Parole Act 2002, only the Board can impose special conditions, but they cannot impose intensive monitoring without an order from the High Court.  The High Court can make such an order but only at the same time as the Court is imposing an extended supervision order on an offender.  Ms Currie also said that such a condition could not be imposed under s 107FA of the Parole Act because, with Mr Kerr being already subject to extended supervision order, there is no need for an interim ESO

with conditions.

1      Chief Executive of the Department of Corrections v McIntosh [2016] NZHC 1163.

[14]     I agree with the way the applicant has analysed the legal position.

[15]     The applications are adjourned to 13 June 2017 for hearing on that day, with an estimated time for hearing of one day.

[16]     The application for an interim detention order is adjourned to that date on the basis Mr Kerr will comply with the existing conditions of his extended supervision order and on the basis that he will accept and cooperate with being subject to 24 hour/7 day a week monitoring.  The representatives of Christchurch Residential Care at Court with Mr Kerr agreed they would provide such monitoring.  I reserve leave for the applicant to seek an urgent hearing of that application for an interim detention order if there is any breakdown in the arrangements with regard to the monitoring arrangements which it has been agreed should be in place.

[17]     During the telephone conference I had with counsel, Mr Starling confirmed that he would be seeking an assessment of the respondent from a health assessor under s 10 of the Public Safety (Public Protection Orders) Act 2014.  He said that, with the pressure the appropriate assessors are under, they tend to give priority to reports which they have to provide to the Court ahead of reports they are asked to do on behalf of offenders.  He asked the Court to order the report for the respondent.  I indicated during the conference that I had some hesitation as to the Court ordering a report which was to be obtained for a respondent in this case.

[18]     I have considered further the provisions of s 10 of the Act.  It is clear from ss

10(1) and (2) and other parts of s 10 that there is a clear distinction between reports that are to be obtained by the Court and reports that are to be obtained by the respondent.   In recognition of this, there are specific provisions for the cost of a report obtained by or for a respondent to be met by legal aid.

[19]     Because it is for the respondent to request a health assessor to assess that respondent, pursuant to s 10(2), the responsibility for obtaining such a report must remain with the respondent, in practice, his counsel.

[20]     Nevertheless,  the  Court  would  expect  the  assessors  whose  services  are required to be available and to assist in providing such a report on the same basis as they make themselves available to the courts when preparing a report at the request of the Court.

Solicitors:

Raymond Donnelly & Co., Christchurch

Michael Starling, Barrister, Christchurch.