Chief Executive of the Department of Corrections v Tapaitau

[2025] NZHC 2513

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000392 [2025] NZHC 2513

UNDER

Section 107F of the Parole Act 2002

IN THE MATTER

Of an application for an extended supervision order

BETWEEN

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

AND

TAIMOE TAPAITAU

Respondent

Hearing:	28 August 2025
Appearances:	B D Tantrum for the Applicant V I Tava for the Respondent
Judgment:	1 September 2025

JUDGMENT OF POWELL J

[Application for interim suppression order]

This judgment was delivered by me on 1 September 2025 at 12.00 pm

……………

Registrar-Deputy Registrar

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v TAIMOE TAPAITAU [2025] NZHC

2513 [1 September 2025]

[1]                  The respondent, Taimoe Tapaitau, is currently subject to a Returning Offender Order pursuant to the Returning Offenders (Management and Information) Act 2015. Those orders will expire on 3 September 2025.

[2]                  In anticipation of the expiration of the Returning Offender Order, the applicant Chief Executive filed an application seeking an extended supervision order (ESO) in respect of Mr Tapaitau under s 107F of the Parole Act 2002 (the Act).

[3]                  When the application for ESO was filed, it could not be heard until a fixture set down for 27 November 2025. The Chief Executive therefore sought an interim supervision order (ISO) in respect of Mr Tapaitau, which would be effective until the application for ESO could be determined.

[4]                  There is no dispute that there is jurisdiction for the Chief Executive to apply for an ESO. The meaning of “eligible offender” under s 107C(1) of the Act relevantly includes an offender who:

(c)has been convicted of a relevant offence and in respect of that offence has been determined to be a returning prisoner under the Returning Offenders (Management and Information) Act 2015; or

(d)is a person to whom subpart 3 of Part 2 of the Returning Offenders (Management and Information) Act 2015 applies.

[5]Section 107F(1)(d) then enables the Chief Executive to apply for an ESO:

107F    Chief executive may apply for extended supervision order

(1) The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—

…

(d)where the offender is a person described in section 107C(1)(c) or (d), at any time before the end of the period for which the offender is subject to release conditions under the Returning Offenders (Management and Information) Act 2015.

[6]                  In contrast, the application for the ISO was made pursuant to s 107FA of the Act. It was set  down for hearing on 28 August  2025.  In advance  of the  hearing, Mr Tava, on behalf of Mr Tapaitau, filed a memorandum advising that Mr Tapaitau consented to the making of an ISO but advised that the substantive ESO would be

opposed.  To  that  end  psychiatric  evidence  was  being  prepared  on  behalf  of  Mr Tapaitau that would not be completed until March 2026. Mr Tava therefore sought that the ESO hearing be adjourned to a date no earlier than April 2026 to allow time for the expert’s report to be completed, considered by Mr Tapaitau, and for the Chief Executive to be given a reasonable opportunity to respond.

[7]                  Notwithstanding the constructive approach taken by Mr Tava, the hearing of the ISO application nonetheless proceeded due to the Court’s concern there was no jurisdiction to make an ISO in respect of Mr Tapaitau. This is because s 107FA(1) provides:

107FA Sentencing court may make interim supervision order

(1)This section applies if, before an application for an extended supervision order is finally determined, 1 or more of the following events occur:

(a)the offender who is the subject of the application is released from detention:

(b)the offender who is the subject of the application ceases to be subject to an extended supervision order:

(c)the offender who is the subject of the application fails to appear at the hearing of the application and is brought before the court under a warrant issued under section 107G(3):

(d)an offender who is a person described in section 107C(1)(b) arrives in New Zealand.

…

[8]                  The section makes it clear that the categories of eligible offender in respect of whom an ISO can be made is considerably narrower than the categories of eligible offender against whom an ESO can be made. Specifically, there is no mention of those who, like Mr Tapaitau, are subject to the Returning Offenders (Management and Information) Act 2015.

[9]                  It does not appear that this issue has arisen before, and to a certain extent it appears that the ISO process has been used to obtain orders on an interim basis without

a close analysis of whether the eligible offender comes within the narrower categories set out in s 107FA(1).1

[10]              Following discussion with counsel, it was agreed that Mr Tapaitau was not covered by s 107FA(1)(b)–(d), noting, in particular, that he has been in New Zealand for  nearly two  years  since  returning from Australia.  Mr  Tantrum  submitted that  s 107FA(1)(a) could be interpreted widely given Mr Tapaitau has previously been imprisoned in Australia and as he is no longer in custody is now “released” from detention. “Detention” is not defined in the Act, but I consider s 107FA(1)(a) clearly refers back to s 107F(1)(a), where an offender who is the subject of a sentence of imprisonment, and in respect of whom an ESO has been applied, has been released before the application for the ESO has been determined. I consider this to be the correct interpretation rather than the interpretation urged on me by Mr Tantrum whereby if an eligible offender has been imprisoned at any time, there is jurisdiction to impose an ISO. This would clearly go too far.

[11]              In the circumstances, and in particular given that Mr Tapaitau is prepared to be bound by the conditions proposed by the Chief Executive so as to enable him to have sufficient opportunity to defend the substantive application for an ESO, I concluded that the appropriate course was to make an order for an ESO, imposing the same conditions as had been agreed had there been jurisdiction for an ISO. The ESO order is to be time-limited, remaining in effect only until the substantive application for the ESO can be determined. As I discussed with the parties, the order for an ESO in these circumstances is, however, made expressly without prejudice to Mr Tapaitau’s ability and entitlement to oppose the making of the substantive ESO in due course. I note for completeness that Mr Tapaitau was present at the hearing, thereby fulfilling the requirements of s 107G(4).

[12]              Given the matters set out above, I make the following directions and orders, as discussed with counsel, and without opposition:

1      For example, Chief Executive of the Department of Corrections v Broadbent [2020] NZHC 2496 at [3].

(a)The hearing of the substantive ESO application on 27 November 2025 is vacated and adjourned to a one-day hearing commencing at 10 am on 7 May 2026.

(b)An ESO is ordered in respect of Mr Tapaitau with standard conditions pursuant to s 107JA of the Act, together with the following special conditions:

(i)To attend a psychological assessment and attend, participate in, and complete any recommended treatment as directed by a Probation Officer;

(ii)Not to possess, use, or consume alcohol, controlled drugs, and/or psychoactive substances, except controlled drugs prescribed for you by a health professional;

(iii)To disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes or terminates;

(iv)Not to enter any premises licensed under the Sale and Supply of Alcohol Act 2012, other than supermarkets or dairies, or other place approved in writing by a Probation Officer;

(v)To submit to electronic monitoring as directed by a Probation Officer in order to monitor your compliance with any conditions relating to your whereabouts;

(vi)To reside at [the address listed in the ESO application] and not to move from that address without the prior written approval of a probation officer;

(vii)To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a Probation Officer and/or representatives of the monitoring

company for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer; and

(viii)To submit to electronic monitoring as directed by a Probation Officer and comply with the requirements of partial residential restrictions. To remain at your approved address between the hours of 9.00 pm and 06:00 am daily, unless you have the prior written approval of a Probation Officer, or as permitted by section 33(4) of the Parole Act 2002.

(c)The ESO at [12] above will expire at 5 pm on 21 May 2026 unless a judge otherwise directs.

Powell J