Chief Executive of the Department of Corrections v The Queen
[2018] NZHC 3455
•21 December 2018
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT PENDING FURTHER ORDER OF THE COURT
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-683
[2018] NZHC 3455
BETWEEN THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
R
Respondent
Hearing: On the papers and by telephone conferences on 14 December 2018 and 21 December 2018 Counsel:
I Murray and B Charmley for Applicant A J Ellis and G Edgeler for Respondent
Judgment:
21 December 2018
JUDGMENT (NO 2) OF WHATA J
This judgment was delivered by me on 21 December 2018 at 2.00pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors Kayes Fletcher Walker Ltd, Manukau
Francis J Handy, Auckland
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v R [2018] NZHC 3455 [21
December 2018]
[1] In my judgment of 28 November 2018, I found that the elements for a PPO had been established but that inadequate consideration had been given to the availability of alternatives that might adequately reduce the risk to less than “very high”. I also said:
I have in mind the type of supervision (if lawful) previously undertaken by Te Roopu Taurima, which involves (among other things) line of sight monitoring during daylight hours, and a curfew in alarmed premises in the evenings.
[2] I invited submissions on this, and on suppression. I now have those submissions and convened telephone conferences to enable the parties to be heard. At the conclusion of the last conference I gave a results indication. Given, however, the significance of this judgment to R, I have decided to issue a judgment with reasons urgently.
[3] I conclude that an alternative to a PPO, based on placement under the 24/7 care of Te Roopu Taurima by consent may not be lawfully enforceable and provides too uncertain a basis for the otherwise very high risk presented by R. I am satisfied however that a direction pursuant to s 12 should be made, and I direct the Chief Executive to consider the appropriateness of an application under s 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[4]My reasons now follow.
Some more background
[5] Prior to the decision to impose an interim order, an application was made by R’s probation officer to the Parole Board for a suite of conditions to manage the risks presented by R on the expiry of intensive monitoring (IM). The application was made with R’s consent. In granting the application the Parole Board relevantly noted:
3. R’s probation officer, Ms Brown, has applied to the Board to vary the special conditions of his Extended Supervision order to add conditions to provide for his management upon the expiration of the intensive monitoring order. R is aware of the application and specifically gave his consent to the conditions.
4. In short, the amendments sought require R to participate in the activities provided by an agency and to be subject to partial residential restrictions between 7.00 pm to 7.00 am daily. As to the former, we understand that the
present regime will continue. R has been supported by the Te Roopu Taurima o Manukau Trust and attending the Framework Trust four days a week for work. The proposal is that from 7.00 pm daily he will be subject to partial residential restrictions for the following 12 hours. Whilst he will not be supervised over that period, Community Corrections advises that R is somewhat apprehensive that he will be unsupported for that period and Community Corrections are considering how best to provide any needed support. That will no doubt be attended to apart from the conditions.
5. The Board accepts that the conditions proposed by Community Corrections are necessary and appropriate. Accordingly, from 27 March 2018 until the expiration of the special conditions of the Extended Supervision Order, R’s special conditions as varied are as below.
[6]I will refer to this as the Parole Board’s “March 2018 decision”.
The applicant’s position
The legal frame
[7] The applicant helpfully outlines the legislative provision for Extended Supervision Orders (ESO’s) and the conditions that might be imposed short of intensive supervision. I will return to this below at [24]. With respect, however, to the care taken by Mr Murray for the applicant, I am not entirely clear on whether the applicant accepts that the ESO can lawfully impose the type of conditions envisaged by me and in fact imposed by the Parole Board in its March 2018 decision.
[8] Mr Murray contends it would be unlawful to impose, in effect, 24-hour line- of-sight monitoring beyond the statutory twelve-month limit. It is said that if a person, subject to an ESO, requires intensive monitoring beyond the first twelve months, then he or she should be transferred to the PPO regime.
[9] Mr Murray acknowledges, however, that a special condition requiring an offender to participate in a rehabilitative and reintegrative programme to reduce their risk of offending may potentially enable day-time oversight of a person.1 But, he says, a reintegrative and rehabilitative programme must not be used as a backdoor method of imposing further restrictions on a respondent.2 Any supervision or monitoring of, or other restrictions on, a person required to participate in a programme can only be
1 Referring to ss 15 and 16 of the Parole Act 2002.
2 Citing Wilson v New Zealand Parole Board [2012] NZHC 2247.
imposed to the extent “necessary to ensure” their attendance at classes or participation in activities associated with the programme.3
[10] In relation to night-time management, Mr Murray submits a person on an ESO can be required to reside at a specified address and be subject to residential restrictions. However, if a person is required to participate in a programme, they cannot be required to reside with the agency into whose care they are placed.4 As to electronic monitoring, Mr Murray emphasises that an electronically monitored curfew does not allow for line-of-sight monitoring. In the event a person removes his or her GPS bracelet and absconds, his/her probation officer and/or police will be alerted.
[11] Mr Murray therefore submits that the greatest degree of oversight that is currently available without intensive monitoring is:5
[a]Day-time monitoring and oversight of the person to a degree necessary to ensure attendance at a programme;
[b]Coupled with electronically monitored night-time curfew.
[12] However, a recent Parole Board decision cited by Mr Murray suggested a programme which ran for twelve hours a day, seven days a week would not accord with the requirements of the Parole Act 2002 as it would be tantamount to intensive monitoring. Mr Murray therefore expresses concern about whether 24/7 coverage is in fact available.
[13] Mr Murray notes also that were R to consent to being monitored 24-hours a day, seven days a week, this would nevertheless not be acceptable to the applicant. The applicant says it is not safe or appropriate to monitor and supervise a very high- risk offender by way of consent that can be withdrawn at any time.
3 Referring to s 107K(3)(bb).
4 Referring to s 107K(3)(bb)(ii).
5 Citing McGreevy v Chief Executive of Department of Corrections [2018] NZHC 2006.
Alternatives in practice
[14] A helpful affidavit was provided by Ms Rachel Leota, acting CEO of the applicant about bespoke reintegration programmes currently available to sex offenders. The following is a summary of her evidence.
[15] Corrections contracts a panel of non-governmental organisation (NGO) providers to supply intensive monitoring and bespoke reintegration programmes for the highest risk child sex offenders. Each programme is tailored to the individual and is shaped by the specific needs of the offender and the risk they pose to the community. The provider is responsible for the day-to-day support and monitoring of each offender and Corrections is responsible for the management of the risk and compliance with the conditions of the order. Such bespoke integration programmes are generally imposed by the New Zealand Parole Board following the completion of a period of intensive monitoring.
[16] At present, there are four NGO agencies contracted by Corrections to undertake such programmes, namely:
(a)Anglican Action Mission Trust (Anglican Action) is contracted to provide management of a residential facility for child sex offenders on the grounds of Springhill Corrections Facility. The agency also provides several individual bespoke reintegration programmes for offenders based in the Waikato community.
(b)Christchurch Residential Care (CRC) is contracted to provide intensive monitoring and bespoke reintegration programmes suited to individual offenders in the Christchurch area.
(c)Salisbury Street Foundation (SSF) provides services to a number of individuals under bespoke programmes in Christchurch.
(d)PACT is contracted to provide management of two group houses in the Otago area. These services include intensive monitoring, bespoke programmes and supported accommodation.
[17] There are currently five residential facilities nationwide which accommodate the highest risk sexual offenders subject to an ESO, namely:
(a)Springhill Village situated on the grounds of Springhill Corrections Facility (outside the wire). It is a converted “self-care” unit, accommodating up to 15 offenders. All residents are subject to an ESO and the majority also have intensive monitoring or a bespoke reintegration programme as part of their conditions. Anglican Action staff are present at the facility 24/7 to provide monitoring and support, however, this is not a 1:1 ratio and does not allow line-of-sight monitoring for all residents.
(b)Te Korowai is a Corrections-run facility outside the wire at Rimutaka Prison, which houses up to 11 offenders. All the residents are child sex offenders and most of them are subject to an ESO. However, the facility does not accommodate offenders who are subject to intensive monitoring or a bespoke reintegration programme.
[c]SSF runs a small cluster of homes in the Christchurch community. Its main residential facility is utilised to run a formal programme for violent offenders and SSF is not a facility focused on housing child sex offenders. However, there are a small number of offenders, subject to bespoke reintegration programmes residing at the SSF house and in other nearby residences.
[d]Corrections has a complex of three houses based outside the wire at Christchurch Men’s Prison (one of these homes will not be operational until the end of December 2018). CRC is currently contracted to manage offenders housed at the facility. Staff are based in the house immediately next door and provide monitoring and support to the offender from that location. At present a very high sexual and violent offender is living at the facility and this venue is not available at this time for another offender.
[e]CRC runs a group home for up to six offenders in a residential area of Christchurch. These offenders are all subject to intensive monitoring or bespoke reintegration programmes.
[f]PACT runs two houses in the Otago community, but only one of these can accommodate child sex offenders. It is used to house offenders subject to intensive monitoring or bespoke reintegration programmes.
[18] All the existing residential facilities for child sex offenders needing the level of monitoring and the support R requires are assessed by Corrections as unsuitable for his placement. Ms Leota says this is due to the very high risk he poses to the general community, agency or Corrections staff and other facility residents. She says if he were placed in the community on a bespoke reintegration programme, there is nothing Corrections could do legally to prevent him leaving any facility if he chose to do so. There is no power of restraint and Corrections would instead be reliant on police to locate and arrest R for breaching his ESO condition. Any delay in his apprehension would place the community at significant risk of harm.
[19] Ms Leota further noted that if R were to be released from Matawhāiti soon, he would likely have to be placed in the community facility run by CRC, at least on an interim basis while longer term placement is sourced. She says Corrections does not consider a placement in the community with CRC to be appropriate to manage R’s risk, because he cannot be supervised 24/7.
Intellectual disability regime
[20] Mr Murray submits that if the criteria for a PPO are met, instead of making a PPO this Court may direct the Chief Executive of the Department of Corrections to consider the appropriateness of an application in respect of the respondent under s 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the IDCCR). As R is a former special patient he is eligible for care under the IDCCR. If a direction is made, the Chief Executive would need to liaise with the Director of the Area Mental Health Services on the potential application of the IDCCR.
R’s position
[21] Mr Ellis identifies two options that he considers are available to manage R’s risk of re-offending:
(a)Revert to the ESO with the special conditions imposed by the Parole Board in its March 2018 decision – namely a programme selected by R’s probation officer, being Te Roopu Taurima, and a 12-hour curfew at an alarmed residence;
(b)A direction under s 12(2) of the Public Safety (Public Protection Orders) Act 2014 namely that the Chief Executive of the Department of Corrections considers an application pursuant to s 29 of the IDCCR.
[22] Mr Ellis understands the special conditions included in the March 2018 decision to be accepted as lawful by both parties. I doubt this is correct given Mr Murray’s submissions.
[23] Mr Ellis also refers to a proposal by a Care Co-ordinator, Mr Harvey who is working with Te Roopu Taurima. Care Co-ordinators are appointed under the IDCCR to exercise responsibility over the care of a person with an intellectual disability. This proposal effectively mirrors the care previously provided by Te Roopu Taurima and the conditions imposed in the March 2018 decision. This involves:
(a)Placement at the pre-IPO residential address;
(b)Return to Te Roopu Taurima supported living (which will require relocating two residents that are there at present – this will take six weeks);
(c)Arranging staff who able to care for R (this will take six to eight weeks);
(d)Development of a service plan, risk management plan and vocational plan with the likely involvement of two support workers when R is out in the community.
The framework revisited
[24] If this Court grants a PPO under s 13 of the Public Safety (Public Protection Orders) Act 2014, R will be detained at a residence chosen by the Chief Executive (in practice, Matawhāiti).6 The Chief Executive must apply to the Court for a review of the continuing justification of the PPO within five years of the order being made, and at intervals of not more than five years subsequently.7
[25] Alternatively, this Court can direct the Chief Executive under s 12 to consider making an application under s 29 of the IDCCR:
29 Application for assessment of prisoner or former special patient
(1)A manager of a prison may apply to the co-ordinator to have a prisoner assessed under this subpart, if there are reasonable grounds for believing that the prisoner has an intellectual disability.
(2)A Director of Area Mental Health Services under the Mental Health (Compulsory Assessment and Treatment) Act 1992 may apply to the co-ordinator to have a former special patient assessed under this subpart, if there are reasonable grounds for believing that the patient has an intellectual disability.
(3)A manager may authorise any staff member of the prison to make the application referred to in subsection (1).
[26] The IDCCR provides for compulsory rehabilitative care for qualifying offenders which involves (in summary):
(a)The preparation of a care and rehabilitation plan for the offender;
(b)An application to the Family Court for a compulsory care order (s 45), which may be no longer than three years but can be extended if necessary (s 46);
(c)The offender is entrusted to a care manager and must comply with their care and rehabilitation plan (s 47);
6 Public Safety (Public Protection Orders) Act 2014, s 20.
7 Section 16.
(d)The offender can be subject to seclusion or restraint if needed to secure their or other’s safety (ss 60-61);
(e)The offender can be required to stay in a designated facility (ss 63-64). If they are in a secure facility they are not able to leave without permission from the Minister or Director-General.
[27] If no order is made in terms of ss 12 or 13, R will return to being monitored under the ESO granted by this Court in 2017. When an ESO is ordered by the Court the offender, for the duration of the ESO, is required to comply with standard conditions which require the offender to (among other things) obtain a probation officer’s permission before residing at any address, taking new employment, or leaving the country. They also require the offender to take part in a rehabilitative and reintegrative needs assessment if and when directed to do so.8
[28] As well as the standard conditions that form part of an extended supervision order, s 15(3) of the Parole Act lists a suite of special conditions which the Parole Board can also impose, including imposing a specified residence, curfews, electronic monitoring, prohibition on association, prohibition on visitations, and/or a requirement to remain at certain locations. One such special condition which Edwards J imposed in 2017 was an intensive monitoring condition.9 An intensive monitoring condition is a condition requiring an offender 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.10 However, once an offender has been subject to 12 months’ intensive monitoring, they are not able to be subject to extensive monitoring again, whether under the same ESO or a new one.11
[29] Given intensive monitoring is no longer available for R, other special conditions must be imposed if the standard conditions are insufficient to mitigate his risk. Two particularly relevant special conditions for R are residential restrictions, and
8 Parole Act 2002, s 107JA.
9 Chief Executive, New Zealand Department of Corrections v R [2017] NZHC 559.
10 Parole Act 2002, s 107IAC(2).
11 Parole Act 2002, s 107IAC(5).
rehabilitative conditions (which appear to have provided the basis for the March 2018 conditions, though on the premise that R consents to them.)
Residential restrictions
[30] Section 33(2) of the Parole Act provides that an offender on whom residential restrictions are imposed is required:
(a)to stay at a specified residence:
(b)to be under the supervision of a probation officer and to co-operate with, and comply with any lawful direction given by, that probation officer:
(c)to be at the residence—
(i)at times specified by the Board; or
(ii)at all times:
(d)to submit, in accordance with the directions of a probation officer, to the electronic monitoring of compliance with his or her residential restrictions:
[…]
[31] If the residential restriction requires the offender to be at a residence at all times, it cannot be imposed for longer than 12 months. Otherwise, residential restrictions can span any length, including the duration of the ESO.
[32] As noted in s 33(2)(d), electronic monitoring can be used to both deter the offender from breaching residential restrictions, and monitor compliance.12
Rehabilitation programmes
[33]The second condition particularly relevant to R is found at s 15(3)(b):
conditions requiring the offender to participate in a programme … to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender:
[34]Such a programme can involve either:13
12 Parole Act 2002, s 15A(1).
13 Section 16(b)-(c).
[a]Attendance at any medical, psychological, social, therapeutic, cultural, education, employment-related, rehabilitative, or reintegrative programme; or
[b]Placement in the care of any appropriate person, persons, or agency.
[35] In an ESO context, there are additional requirements for rehabilitative programmes, found in s 107K(3)(bb):
(bb)any condition requiring the offender to participate in a programme (as referred to in section 15(3)(b)) must not—
(i)require that the offender be, or result in the offender being, supervised, monitored, or subject to other restrictions, for longer each day than is necessary to ensure the offender’s attendance at classes or participation in other activities associated with the programme; or
(ii)require the offender to reside with, or result in the offender residing with, any person, persons, or agency in whose care the offender is placed;
Process for the imposition of special conditions
[36] As noted above, s 15 of the Parole Act empowers only the Parole Board to impose these special conditions. However, a Judge can, on the application of the Chief Executive, impose interim special conditions pursuant to s 107IA. They may only do so if satisfied that there may not be sufficient time, before the ESO comes into force, for the Board to determine which (if any) special conditions should be imposed on the offender.
Assessment
[37]The evident scheme of the Act envisages three types of “supervision”:
[a]Intensive monitoring up to 24 hours a day, but for a maximum of 12 months;
[b]Supervision while participating in a rehabilitative programme (but this must not require an offender to reside with a care giver);
[c]Incarceration at an approved PPO facility – currently Matawhāiti.
[38] Other conditions may be combined with this supervision, including specified residence, curfews, electronic monitoring, prohibition on association, prohibition on visitation to and/or remaining at certain locations.
[39] I agree with the applicant that supervision under a s 15(1)(b) programme cannot be tantamount to intensive monitoring. As Ronald Young J stated in Wilson:14
It would be wrong for a reintegration programme to be used as a back door method of placing restrictions on [an offender] which were not directly authorised by the Parole Board … and where they had no apparent reintegrative purpose.
[40] This approach conforms to the clear statutory policy of the recent amendments to the Act that intensive monitoring must not extend beyond the 12-month period and R’s right to be free from arbitrary detention.15 But the scope of programmes that may legitimately provide for this purpose is broadly defined, and includes attendance at any social, rehabilitative or reintegrative programme.16 Provided the Board is satisfied that the purpose of a programme is directed toward, and necessary to achieve, a rehabilitative or reintegration purpose, and ongoing supervision is necessary to enable participation in the programme, it may lawfully impose a condition requiring supervision of the offender while he or she participates in the programme.
[41] In the present case I am satisfied that the suite of conditions approved by the Parole Board in its March 2018 decision provides the requisite mitigation of “very high” risk. It has three key aspects: day-time supervised participation in a rehabilitative programme and night-time curfew (with electronic monitoring and alarmed premises); and full-time residence (by consent) with a care provider.
[42] Save in respect of any “requirement” to reside with a care provider, I agree that the March 2018 conditions may be lawfully imposed, by way of combination of rehabilitative programme and residential restrictions. I am also satisfied that provided
14 Wilson v New Zealand Parole Board, above n 2, at [56].
15 New Zealand Bill of Rights Act 1990, s 22.
16 Parole Act 2002, s 16.
R is subject to constant care by Te Roopu Taurima, as proposed by him, then his risk can be mitigated to less than “very high”.
[43] It is however common ground that the Parole Board may not “require” residence with a care giver as part of a “programme” as defined by the Act. This brings into focus the legal and practical significance of R’s consent to an in-residence care giver.
The issue of consent
[44] At a telephone conference convened to discuss the issue of R consenting to a care giver who would be able to supervise him, the applicant submitted:
[a]Should R withdraw his consent, a fresh PPO application would be required. That process could take five to six months, and in that period there would be a significant drop off in Corrections’ ability to control R;
[b]All report writers bar one concluded R required 24-hour monitoring. A care giver would provide such monitoring as an ancillary benefit only, rather than that being their mandated purpose. This would be insufficient to meet R’s risk;
[c]Some of the evidence suggests a possibility R is developing dementia and if that is the case, there may be issues with R’s capacity to rationally give consent;
[d]The Te Roopu Taurima facility R was previously at is no longer available. There is however some capacity within the ESO regime to provide intellectual disability care. From 2011 onwards when R was removed from the IDCCR scheme, Te Roopu Taurima was contracted to provide R care on top of his ESO; a scheme which was half-funded by Corrections and half by the Ministry of Health. This synergistic arrangement involved day-time monitoring and a night-time support person; and
[e]However, the night-time support person could not form part of the ESO conditions because it would then be effectively intensive monitoring.
[45]Mr Edgeler submits:
[a]If R was to breach conditions there is a clear solution to manage his risk – the Police could arrest him.
[b]R has previously had his care provided for on a 24/7 basis and it is clearly not discordant with the scheme and policy of the Act to afford R such care with the ancillary benefit that his actions will be monitored by the Te Roopu staff.
[c]The care provided to R has not always been under compulsion, although it is unclear whether R was explicitly asked for consent or understood that he could withdraw consent.
[d]Although R’s former flat is not currently available, Te Roopu is able to
relocate him there.
[e]R’s disability care was previously provided under the IDCCR system. If he could be moved to the IDCCR again that would be the best possible option, but the discretion the Chief Executive retains under s 12 raises concerns that the Chief Executive would choose not to make that application.
[f]It is not clear that the IDCCR and ESO regimes can formally co-exist
– the exact legal position has not been resolved.17
[46]Mr Murray replies:
[a]If R refuses care which he had consented to, it will not amount to a breach of his ESO warranting his arrest. This means he could feasibly
17 Citing T v General Manager, Rimutaka Prison HC Wellington CIV-2007-485-358, 28 February 2007.
be in a situation where he is not being adequately monitored and pose a risk to the community;
[b]If R does breach his ESO, there is a high likelihood he commits an offence. Although geography (for example, if he is in a more remote facility such as Spring Hill) can mitigate this risk it cannot extinguish it; R is a person who consistently “pushes boundaries” when restrictions are placed on him.
[47] In a subsequent memorandum, responding to the proposal to accommodate R with Te Roopu Taurima, Mr Murray reiterated the applicant’s view that placement with Te Roopu Taurima on the previous conditions would not sufficient mitigate the risks presented by R. The applicant took the opportunity to repeat the submissions and evidence given at the hearing about the risk presented by him, reiterating that R had escaped on multiple occasions and that under the proposed arrangements they would not have the power to restrain him. The applicant did confirm however that it was willing to explore in good faith whether an application should be made under s 29 of the IDCCR.
Result
[48] I am satisfied that placement with Te Roopu Taurima on the conditions proposed would adequately mitigate the risk presented by R to less than very high. I am fortified in this view because of the care afforded by them of R. The absence of any serious offending, notwithstanding multiple instances of absconding while under their care exemplifies the risk mitigation afforded by placement with them. I also consider that 24/7 care of R is not inherently unlawful, even though it necessarily involves monitoring of him. There is no doubt that R requires provision of such care and it is not discordant with the scheme of the Act in relation to intensive supervision or his right to be free from arbitrary detention.
[49] But I agree with the applicant that major difficulties are presented by a programme which is dependent on the consent of R. Should he withdraw that consent (which based on his long history of non-compliant behaviour and intellectual disability is very likely) Corrections and Te Roopu Taurima may well find themselves acting
unlawfully should they purport to then monitor and or restrain R. Mitigation of his risk may then prove very difficult. There is I accept a significant irony for R. It is clearly in his best interests to consent to the care of Te Roopu Taurima instead of detention at Matawhāiti. But on withdrawal of his consent to 24/7 care, any attempt at 24/7 monitoring or restraining of R raises the prospect of illegality. The applicant cannot be expected to operate on such an uncertain basis.
[50] I have considered whether R’s indication to this Court that he consents to 24/7 care provides a sufficient basis for that to be enforced pending further application to the Court to have that care removed. But such judicial creativity would severely strain the legislative regime and the considerations that underpin it (including effective management of ESO offenders and the protection of an offender’s right to be free from arbitrary detention, including under threat of a PPO).
[51] In the result, I am not satisfied an enforceable alternative involving 24/7 care of R, as proposed by his counsel, is presently available to me. I am however in no doubt, given R’s intellectual disability needs, a direction should be made under s 12 of the Act. There shall be a direction accordingly.
Order
[52] I direct pursuant to s 12 of the Act that the Chief Executive considers the appropriateness of an application in respect of R under s 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[53] The interim protection order (IPO) made by Wylie J remains in place pending compliance with my direction. Leave is granted to either party for further assistance of the Court if necessary, including to seek the suspension or amendment of the interim order.
Addendum
[54] Nothing I say here should be taken to necessarily preclude in all cases the potential for special parole conditions that require consent of an offender. There may be cases where there is sufficient confidence that the withdrawal of consent will not
result in unmanageable risk or where there is a high level of confidence that consent will not be withdrawn. The legality and enforceability of conditions involving consent will need to be assessed on a case by case basis.
Suppression
[55] R seeks suppression on the basis he may be subject to an application for compulsory care under the IDCCR. Ordinarily such applications would not be open to the public. Corrections does not oppose suppression. Given the evident statutory policy attaching to the potential application of the IDCCR regime favouring suppression, and Corrections’ neutrality, together with the fact that R comes before this Court simply because of the risk he presents, and not because he is facing trial or sentence for proven offending, I suppress the publication of any personal details that might identify him.
Whata J
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