Chief Executive of the Department of Corrections v McIntosh

[2017] NZHC 793

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000154 [2017] NZHC 793

BETWEEN

THE CHIEF EXECUTIVE OF THE

DEPARTMENT OF CORRECTIONS Applicant

AND

LLOYD ALEXANDER MCINTOSH Respondent

Hearing:	26 April 2017 via telephone conference
Appearances:	M Scholtens QC and A Mobberley for the Applicant R M Lithgow QC and N Levy for the Respondent
Date ofRuling:	27 April 2017

RULING OF NATION J

[1]      The Chief Executive of the Department of Corrections (the Chief Executive), with the agreement of the respondent (Mr McIntosh), is asking the Court to approve the withdrawal of the Chief Executive’s application for a public protection order against Mr McIntosh.

Background

[2]      On   26   November   1993,   Mr   McIntosh   was   sentenced   to   10   years’ imprisonment  for  unlawful  sexual  connection  with  a  female  under  12.    That offending involved a sexual assault on a 23 month old infant.

[3]      In July 2004, Mr McIntosh’s release licence special conditions required him

to comply with agreed 24 hour supervision.

[4]      With the ending of that  sentence, on 8  December 2004, the High Court imposed a 10 year extended supervision order (ESO) relating to that offending.

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v MCINTOSH [2017] NZHC 793 [27 April 2017]

[5]      In March 2005, the Parole Board made it a condition of the then ESO that he be subject to person-to-person monitoring for a period of 12 months at all times (24 hours per day).

[6]      On 12 May 2015, the Court imposed a further 10 year ESO on Mr McIntosh. On 26 August 2015, the Parole Board issued a reserved decision setting the special conditions of the ESO under s 107K of the Parole Act 2002.   This included an intensive monitoring condition for the first 12 months of the ESO as ordered by the High Court.

[7]      Mr McIntosh did not oppose either of the Chief Executive’s applications for

an ESO or the applications for intensive monitoring.

[8]      On 9 March 2016, the Chief Executive applied for a public protection order (PPO) pursuant to s 8 of the Public Safety (Public Protection Orders) Act 2014 (Public Safety Act).

[9]      On 1 June 2016, by consent, Mander J made an interim detention order but suspended it on conditions that were agreed to by Mr McIntosh.  Those conditions included special conditions that Mr McIntosh be subject to being accompanied and monitored for 24 hours a day (or less if approved by a Probation Officer) by a person authorised by the Chief Executive to undertake person-to-person monitoring.  He has continued  to  reside  at  the Salisbury Street  Foundation  since then and  has  been subject to detailed conditions to assist in his rehabilitation and to prevent further offending.

[10]     From December 2004 until December 2012, Mr McIntosh lived in a lodge within the grounds of Christchurch Men’s Prison but his programme during the day was managed by the Salisbury Street Foundation.

[11]    Mr McIntosh last offended against a vulnerable person in 2003.   Since December 2012, he has lived at a residence for high risk offenders, managed by the Salisbury Street Foundation.   While living at the address, Mr McIntosh has been subject to very close monitoring by Foundation staff.   There are a few outings in

public during the week but at those times he is still subject to close individual supervision.  The Salisbury Street Foundation exercises this control with the support and under the oversight of the Department of Corrections.

[12]     Mr McIntosh agrees that he meets the threshold for the imposition of a PPO set out in s 7 of the Public Safety Act.   If a PPO were to be made, Mr McIntosh would have had to move from the Salisbury Street Foundation residence to the PPO facility within the Christchurch Men’s Prison.   Mr McIntosh was opposed to the Chief Executive’s application essentially because he wanted to preserve the status quo.  Consistent with this, his counsel had indicated that, although Mr McIntosh met the threshold for which a PPO could be considered, he would be arguing that:

(a)  Mr  McIntosh  did  not  meet  the  criteria  required  for  a  PPO  to  be considered;

(b)  if he did, then the magnitude of the risk Mr McIntosh posed did not justify the imposition of the order; and

(c)  the imposition of a PPO, given Mr McIntosh’s previous near 10 years of adequate supervision within the community, would be in breach of the New Zealand Bill of Rights Act 1990.

[13]     The application was set down for hearing before me over three days from 26

April 2017.

[14]     On 21 April 2017, counsel for the Chief Executive and Mr McIntosh asked for the hearing to be vacated on the basis agreement had been reached as to how matters could proceed.  Those matters include the Chief Executive’s withdrawal of the current application.

[15]     On 29 March 2017, the Corrections Service applied to the Parole Board to vary the conditions of the ESO in a manner which it must have been satisfied would meet its concern that Mr McIntosh continue to be subject to monitoring to the extent required to ensure the protection of the public against the risk of serious sexual

offending.   Corrections applied to discharge conditions as to Mr McIntosh’s placement at the Salisbury Street Foundation; that he submit to being accompanied and monitored for 24 hours a day by a person authorised by the Chief Executive to undertake person-to-person monitoring and that he not move from the Salisbury Street Foundation address without approval.  In substitution for those conditions, the Board were asked to impose a condition that Mr McIntosh be placed in the care of an agency approved by the Chief Executive between the hours of 7.00 am and 11.00 pm each day and to be accompanied and monitored between those hours unless he has the prior written approval of a probation officer.  Secondly, he should be required to reside at an address directed by his probation officer.  Thirdly, that he should engage in  and  complete  a  reintegration  programme  approved  by  his  probation  officer between the hours of 7.00 am and 11.00 pm daily.  Mr McIntosh, through his senior counsel, supported the application and agreed to these new conditions.

[16]     In  a decision  of 5 April  2017,  the Board agreed  to  make the  variations requested but noted that the varied conditions would not take effect until the High Court determined the application for a PPO then still before the High Court.  The Board have confirmed that they will give effect to these orders if they are advised the Chief Executive’s application for a PPO is being withdrawn.   Once the Board is advised of the withdrawal of the application, it will confirm its decision of 5 April

2017.  The Board details what will be the full conditions of Mr McIntosh’s ESO in

part 9 of that decision.

[17]     Against that background, I make the following orders:

(a) these proceedings will be formally discontinued effective upon the commencement of the amended conditions of the respondent’s ESO imposed by the New Zealand Parole Board in its decision of 5 April

2017;

(b)  consequent upon the discontinuance, the Court discharges the interim detention order made on 1 June 2016 relating to Lloyd Alexander McIntosh   (which   was,   at   the   same   time,   suspended   subject   to conditions);

(c)  for  the  avoidance  of  doubt,  the  discontinuance  and  discharge  of  the interim detention order is not to be effective until the commencement of the amended conditions of the New Zealand Parole Board’s ESO for the respondent; and

(d)  these orders are to continue for a period not exceeding two days to allow for the Parole Board’s decision to be served upon the respondent and for the transition arrangements for the ESO regime to come into effect.

[18]     When the High Court dealt with the application for an interim PPO, the Chief Executive requested an order that documents on the Court file should be sealed.  An order was made accordingly.   Mr McIntosh seeks a permanent order sealing the Court  file.    Given  the  nature  of  a  substantial  amount  of  material  filed  by  the applicant and the nature of personal information volunteered by Mr McIntosh, it is appropriate that the order for the sealing of the Court file remains permanent and final.  I make an order accordingly.

[19]     Costs are reserved.

Solicitors:

Mary Scholtens QC, Wellington

Robert Lithgow QC, Wellington.