Chief Executive of the Department of Corrections v Waiti
[2023] NZHC 2310
•24 August 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-391
[2023] NZHC 2310
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
SONNY TEARAMOANA WAITI
Respondent
Hearing: 17 August 2023 Appearances:
C J Boshier for Applicant M L Dillon for Respondent
Judgment:
24 August 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 24 August 2023 at 10.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WAITI [2023] NZHC 2310 [24 August 2023]
[1] The applicant has applied for a public protection order (PPO) to be made against the respondent under the Public Safety (Public Protection Orders) Act 2014 (Public Safety Act).1 Until that application is finally determined, the applicant has also applied for an interim detention order (IDO).2 Both the PPO and IDO seek that the respondent be detained in prison, rather than in Matawhāiti residence, a purpose-built facility for persons subject to a PPO.3
[2]This decision addresses the application for an IDO.
Mr Waiti’s offending history
[3] The respondent, Mr Waiti, is now 35 years old. His first offending is recorded in the Youth Court in 2002. He was first sentenced to imprisonment on 30 April 2004 of a charge of wounding with intent to cause grievous bodily harm and two charges of aggravated robbery. Since then, Mr Waiti has accrued a number of convictions, many of which involve violence. In 2005 Mr Waiti was convicted for assaulting a prison officer. In 2008 he was convicted of possessing an offensive weapon and assaulting police. In 2009 he was convicted of three charges of common assault. In 2010 he was convicted of threatening to kill. In 2011 he was convicted of assault with a weapon.
[4] In 2013 Mr Waiti committed a serious kidnapping of his domestic partner. She drove them out to the country and then he locked her in the car boot. He drove off eractically. She attempted to escape from the boot as she was fearful the car would crash. She eventually managed to open the boot but her leg got caught in the car’s towbar. She was then dragged along the highway for some 1.6 km at speeds in excess of 100 km/h despite witnesses’ frantic attempts to stop Mr Waiti. He even overtook vehicles while she was being dragged behind the car. The victim was only released after he swerved the car causing her to be dislodged from the towbar. Witnesses subsequently saw him stop several kilometres on and walk around the back of the vehicle and then drive off, from which it could be inferred that Mr Waiti knew the victim was being dragged behind his car. The victim suffered significant injuries to her entire body, including losing part of one leg. As a result of this offending, Mr Waiti
1 Public Safety (Public Protection Orders) Act 2014, s 13.
2 Section 107(2).
3 Pursuant to ss 85(1) and 107(2).
was sentenced to six years and five months’ imprisonment4 and on 11 December 2019 an extended supervision order (ESO) was imposed for a five-year term.5
[5] On his release from prison Mr Waiti commenced living at a Department of Corrections residence, Kaainga Taupua, on the grounds of Spring Hill prison. However, while subject to the ESO and intensive monitoring (IM), Mr Waiti has committed further offending and also breached the ESO. Specifically, Mr Waiti:
(a)was convicted and sentenced to one month’s imprisonment for a charge of behaving threateningly committed in December 2019;
(b)was convicted and sentenced to one month’s imprisonment on two charges of breaching his release conditions committed in December 2019;
(c)was convicted and sentenced to four months’ imprisonment for assaulting a prison officer in October 2019;
(d)was convicted and sentenced to two months’ imprisonment on two charges of breaching his ESO in April and June 2020; and
(e)was convicted and sentenced to come up if called upon on two charges of breaching his ESO in October and December 2020.
[6] Furthermore, on 23 May 2021, shortly after his IM condition was lifted, Mr Waiti committed serious offending against two other Kaainga Taupua residents. He punched and kicked one victim in the head, knocking him to the ground before presenting a knife to him. The other victim came out of his room and saw this and Mr Waiti began threatening him too. He then pulled both victims into a bedroom, pointed the knife at them and threatened to kill them. He demanded a mobile phone off one of them and called a woman. He threatened her by saying if she hung up, he would kill one of the victims. The incident lasted around an hour before the victims
4 R v Waiti DC Rotorua CRI-2013-063-1725, 25 October 2013.
5 Chief Executive of the Department of Corrections v Waiti [2019] NZHC 3256.
were able to leave the unit. This offending resulted in two charges of kidnapping, two charges of threatening to kill and a charge of assault with intent to injure. Mr Waiti was sentenced to two years three months and 14 days’ imprisonment and is due to be released on 5 September 2023.
[7] In light of this history, the Chief Executive of the Department of Corrections (the Chief Executive) seeks an IDO pursuant to s 107 of the Public Safety Act as it is considered there is no lesser alternative option to manage the risk that Mr Waiti presents before the determination of the PPO application. Furthermore, the Chief Executive applies for Mr Waiti to be detained in prison, saying he cannot safely be managed in Matawhāiti residence because the living environment there is not dissimilar to that in which Mr Waiti was living when he committed serious violent offending against two fellow residents at Kaainga Taupua.
Public Protection Orders and Interim Detention Orders
[8] The Public Safety Act provides for the Court to make PPOs requiring the detention of very high risk individuals at a secure facility within prison precincts.6 They may be put in place for individuals who have served a finite prison sentence, but who still pose a very high risk of imminent and serious sexual or violent offending and where those persons cannot be safely managed in the community.7
[9] The inherently punitive nature of such orders was identified in Chisnall v Attorney-General, where the Court of Appeal held:8
[218] ESOs and PPOs are imposed on persons nearing the end of the sentences imposed on them by the courts in response to their criminal offending, applying the purposes and principles of sentencing set out in the Sentencing Act including the important purpose of protecting the community from the offender. The restrictions which then flow from both ESOs and PPOs are potentially very severe, and in the case of PPOs can amount to indefinite detention. This is punishment, in the absence of trial and conviction for a further offence. It is a marked departure from the legal order reflected in s 26(2) of the Bill of Rights Act.
6 Public Safety (Public Protection Orders) Act, s 13; see 114.
7 Sections 7(1)(a) and 13(1).
8 Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484.
[10] Although the decision in Chisnall is currently under appeal, ESO cases since the Chisnall decision have emphasised the need for strong justification for making such orders. For example, in R (CA586/2021) v Chief Executive of the Department of Corrections, the Court of Appeal made the following observation:9
We accept the submission of R that consequent upon Chisnall, the continuation of the ESO needs to be clearly justified. Whilst that has always been the case, the declarations of inconsistency made by the Court emphasise the need for careful scrutiny. In this regard we note Chisnall holds that s 26(2) of the NZBORA (the second penalty provision) is capable of being subject to a reasonable limit. “Strong justification” will, however, be required, and that accordingly is the lens through which we assess whether the Judge erred in confirming the order.
[11] Similarly, the Court of Appeal in Wilson v Chief Executive of the Department of Corrections adopted the approach in R (CA586/2021) v Chief Executive of the Department of Corrections and held that “strong justification” was needed for the imposition of an ESO.10
[12] Ms Boshier submits, and I accept, that the “strong justification” test will also be required when considering whether to make an IDO pursuant to s 107, as in this case.
[13] The jurisdiction to make an IDO pending determination of the application for a PPO, is set out in s 107. It provides:
107 Court may order interim detention of, or interim imposition of conditions on, respondent
(1)This section applies when, before an application for a public protection order is finally determined, 1 or more of the following events occur:
(a)a respondent is released from detention:
(b)a respondent who is subject to an extended supervision order ceases to be subject to conditions of the kind referred to in section 7(1)(b) or (c):
(c)the respondent is brought before the court under section 106:
(d)the court gives a direction under section 12(2):
9 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53] (footnotes omitted).
10 Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [19]–[20].
(e)a respondent to whom section 7(1)(d) applies arrives in New Zealand.
(2)The court may, on an application by the chief executive, order that, until the application for a public protection order is finally determined, the respondent is to be detained by a person, and in a place, specified in the order.
(3)When the court makes an order under subsection (2) (an interim detention order), the court may suspend that order subject to any conditions that the court thinks fit.
(4)An order under this section ceases to have effect when the application for a public protection order is finally determined or discontinued.
[14] In Mr Waiti’s case, the IDO is sought on the basis that he is soon to be released from detention.11
[15] The Supreme Court in Chisnall v Chief Executive of the Department of Corrections confirmed that the test which applies to IDOs is the same as for the substantive PPO, saying:12
it is appropriate to indicate agreement with the view that interim orders under s 107 of the Public Safety Act can be made only when the court is satisfied on the balance of probabilities of eligibility under s 7 and that the conditions in s 13 are established. That means it must be satisfied that there is “very high risk of imminent serious sexual or violent offending by the respondent” if no such interim order is made. In relation to the commission of serious sexual or violent offences by a person, “imminent” is defined in the Act to mean “that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so”.
[16] In terms of the evidence required to support the making of an IDO the Supreme Court said:
[20] Applications for interim detention order or interim supervision order are necessarily determined on a provisional view of the evidence because until the substantive hearing of the public protection order application the evidence may not yet be fully tested or countered by evidence called on behalf of the respondent. …
11 Public Safety (Public Protection Orders) Act, s 107(1)(a).
12 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [33] (footnote omitted).
Should an IDO be made?
[17] While Mr Waiti does not actively oppose the making of an IDO, I must still be satisfied that there are, at least on a provisional basis, grounds for making the IDO. There is no dispute that Mr Waiti meets the threshold for the imposition of an PPO, set out in s 7(1) of the Public Safety Act. He is aged over the age of 18 years and is detained in a prison under a determinate sentence for a serious violent offence, as defined, and his release date is within six months of the application being made.
[18] The application for an IDO is made on the grounds that there is a very high risk of imminent serious violent offending by Mr Waiti if he is released from prison into the community.13
[19] Section 13(2) of the Public Safety Act provides that the Court may not make a finding of a very high risk of imminent serious violent offending under s 13(1)(b) unless the Court is satisfied the respondent exhibits a severe disturbance in behavioural functioning established by the evidence to a high level of each of the following characteristics:
(a)an intense drive or urge to commit a particular form of offending;
(b)limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties;
(c)absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims; and
(d)poor interpersonal relationships or social isolation or both.
[20] In this regard, I have evidence (albeit untested) from two health assessors: Dr Angela MacFarlane, a registered clinical psychologist; and Mr Gahan Joughin, a consultant clinical psychologist.14 Their views are consistent and, in the
13 Public Safety (Public Protection Orders) Act, s 13(1)(b).
14 Section 9.
circumstances, it is sufficient simply to report their conclusions in respect of the various matters listed in s 13(2).
[21] In terms of whether Mr Waiti has an intense drive or urge to commit a particular form of offending, Dr MacFarlane concludes as follows:
Overall, it is this writer’s opinion that Mr Waiti frequently experiences a strong and intense urge to behave violently and that he experiences this urge as difficult or impossible to ignore. Given there is a record of referrals for psychological intervention, Mr Waiti appears to have either declined treatment offered or been unable to make long term gains from any treatment completed. As a result, the urge to do violence is considered current and active and should a relevant situation present itself, he would be unable to effectively self-manage the urge to engage in violence.
[22]Mr Joughin, similarly concludes, as follows:
Mr Waiti demonstrates a clear drive or urge to engage in violent offending behaviour in the writer’s opinion. His intense drive for violence is very easily activated as outlined earlier in this report, essentially by any indication that his immediate needs may not be met, any attempt by others to influence him, or any of a variety of triggers including the activation of anger.
[23] In terms of whether Mr Waiti has limited self-regulatory capacity, Dr MacFarlane concludes as follows:
Mr Waiti’s difficulties with self-regulation are pervasive, long-standing, appear resistant to intervention or sanction, and given recent prison records, appear currently or recently active. Overall, it is this writer’s opinion that there is good evidence of the presence of poor self-regulatory capacity for Mr Waiti.
[24]Mr Joughin reaches the same conclusion:
In the assessor’s opinion, Mr Waiti demonstrates very limited self-regulatory capacity, as evidenced by his impulsivity, extreme emotional reactivity, and inability to cope with or tolerate any external influences that threaten his perceived need for absolute control over his environment.
[25] In terms of an absence of understanding or concern for victims, Dr MacFarlane says:
Mr Waiti’s records show him to have previously demonstrated a superficial regret for offending behaviour or violent outbursts … However, in each case there appears to have been a self-interest in the statement of regret or apology
… Records of spontaneously expressed concern for previous victims is sparse
to non-existent and contradicted by several instances where a callous attitude to the effects on victims was shown …
Overall, Mr Waiti has a history of demonstrating an absence of understanding or concern regarding the impact of his violent behaviour on others. In the absence of offence-focused treatment, alongside clear personality characteristics showing callous disregard for others, and without clear evidence of behaviour suggesting the contrary, it is this writer’s opinion that poor victim understanding and concern is likely to remain an active and present risk issue for Mr Waiti.
[26]Mr Joughin concludes:
Mr Waiti demonstrates no concern for the victims of his violent offending or potential future victims, while his unwillingness to be interviewed for the current assessment precludes comment from being made regarding his understanding of the effects of his offending on actual or potential victims.
[27] Finally, in respect of poor interpersonal relationships and social isolation, Dr MacFarlane concludes:
Mr Waiti has demonstrated a long history of difficulties within interpersonal relationships. Relationships with staff, peers, intimate partners and whanau have been significantly disrupted by his reactive and aggressive behaviour, suspiciousness and hostile attribution style. He has very few natural supports and has problematic relationships with professional supports. …
… It is therefore the writer’s opinion that Mr Waiti demonstrates clear evidence of disrupted interpersonal relationships and some evidence of social isolation.
[28]Mr Joughin also accepts this characteristic is made out and records:
Mr Waiti has remained socially isolated (from prosocial community members) given the extent of his incarceration history and has engaged in a pattern of aggressive and abusive control of his only (to the writer’s awareness) longer term partner, who was also the victim of his 2013 violent offending. Mr Waiti’s social relationships appear limited to highly antisocial Mongrel Mob gang peers who reinforce his antisocial personality and structure and endorse violence.
[29] I am satisfied, on a provisional basis, that Mr Waiti exhibits a severe disturbance in behavioural functioning established by evidence to a high level of the four characteristics described above. However, I also must go on to consider (again on a provisional basis) whether he poses a very high risk of imminent serious violent offending. In that regard, I note that a serious violent offence means an offence of the kind defined in s 3 of the Public Safety Act. I also note that “imminent” means the
person would be expected to commit such an offence as soon as he or she has a suitable opportunity to do so.15
[30] I accept the opinions contained in both health assessors’ reports, along with the evidence from Mr Lodewicus Gerber, the regional manager in the central region’s high risk team, regarding Mr Waiti’s behaviours while housed at Kaainga Taupua, provide ample evidence on which I can conclude that this test is met at this interim stage. As Dr MacFarlane explains, Mr Waiti’s “rapid return to violence within weeks of release from prison” and his “repeated use of violence when under high levels of monitoring and supervision” indicate an ongoing risk of imminent violence for Mr Waiti. The fact his most recent serious offending occurred soon after the IM condition of his ESO was lifted further reinforces the imminence of the risk of serious violent offending.
[31] However, I also must consider whether there is an adequate alternative option to an IDO which meets the risk which Mr Waiti poses. As the Supreme Court said in Chisnall:16
… the Public Safety Act requires the court in making an interim detention order under the Act to be satisfied on the balance of probabilities not only that the statutory criteria for making a public protection order have been provisionally made out but that the risk to public safety cannot be sufficiently met by less restrictive options to interim detention.
[32] In reaching my conclusion that the risks to public safety cannot be sufficiently met by a less restrictive option, I place weight on the conclusions of Mr Joughin who says:
In summary, it is the writer’s opinion that Mr Waiti’s risk cannot be safely managed in any form of release environment at this time. Mr Waiti has demonstrated his clear willingness to engage in aggressive and violent behaviour in any environment he has been placed in, and regardless of the stringent external management structures placed around him (including intensive monitoring and GPS tracking).
… Any future staff working with Mr Waiti should be clearly informed regarding his potential for violence, in the writer’s opinion.
15 Public Safety (Public Protection Orders) Act, s 3 definition of “imminent”.
16 Chisnall v Chief Executive of the Department of Corrections, above n 8, at [37].
[33] That view is supported by Mr Gerber’s evidence, when he says Mr Waiti cannot return to Kaainga Taupua due to the significant concerns for the staff and occupants’ safety.
[34] The fact Mr Waiti returned to serious violent offending almost as soon as the IM condition expired means there is an inevitable risk to public safety if Mr Waiti was returned to an environment such as Kaainga Taupua and simply subject to an ESO.
Should I order that the respondent be detained in prison while subject to the IDO?
[35] Being satisfied that an IDO should be made, as no lesser order would meet the risk which Mr Waiti poses, I go on to consider whether the application to have him detained in prison under s 107(2) of the Public Safety Act should be granted.
[36] The primary contest at this hearing was in relation to the Chief Executive’s application for Mr Waiti to be detained in prison rather than at the Matawhāiti residence. Matawhāiti, as Ms Melissa Brussovs explains in evidence, is a separate and secure civil detention residence within the wider perimeter of Christchurch Men’s Prison. It only houses men who have been sentenced to a PPO or who are placed there while subject to an IDO. Matawhāiti is currently the only facility designated as a PPO residence in New Zealand.
[37] To make an order that Mr Waiti be detained in prison I must be satisfied of the tests in s 85(2) of the Public Safety Act are met.17 That subsection provides that I can only make an order detaining Mr Waiti in prison if I am satisfied that:
(a)the person would, if detained or further detained in a residence, pose such an unacceptably high risk to himself or herself or to others, or to both, that the person cannot be safety managed in the residence; and
(b)all less restrictive options for controlling the behaviour of the person have been considered and any appropriate options have been tried.
[38] The applicant relies on the affidavits of Mr Gerber, Ms Brussovs and Mr Jonty McBrearty (who has been involved in the overall management of Mr Waiti at Rimutaka Prison), to demonstrate the risk that Mr Waiti poses day to day in any
17 Chief Executive of the Department of Corrections v Pori [2020] NZHC 1446 at [53].
environment less restrictive than prison. The factors which trigger this violence are multiple and often insignificant. His threats and violence are indiscriminate and he violently offends in all types of environments, noting he has not just offended in the community and under ESO supervision, he has also received multiple misconducts for violence within the prison.
[39] Ms Boshier also notes that there is specific concern raised by the health assessors about a placement at Matawhāiti, with Dr MacFarlane saying:
caution needs to be provided regarding the risks posed by Mr Waiti to other residents in any ESO or PPO facility. The content of records indicates he was very uncomfortable and hostile when living alongside individuals who have sexually offended. By far and away the greater proportion of individuals on extended supervision and under a PPO will have sexual offending in their offending history. It is strongly advised that any future placement factor the safety of these individuals as a priority.
[40]Mr Joughin also says:
It is the writer’s opinion that Mr Waiti is highly likely to engage in continued aggression and violence regardless of the release environment in which he is placed. This conclusion would also be relevant should a PPO be granted, and Mr Waiti be required to reside at the Matawhāiti residence at Christchurch Men’s Prison. In this environment he would be considered at very high risk of violence towards professionals and behavioural management staff working with him, as well as other residents of the facility.
[41] Ms Boshier submits that the evidence of Mr Waiti’s volatility and propensity for violence, combined with the “community” approach and philosophy of the Matawhāiti residence, the fact that the other Matawhāiti resident is a child sex offender and that Mr Waiti seriously offended against fellow residents in a similar environment, all mean the Court can be satisfied Mr Waiti poses an unacceptably high risk towards others, such that he cannot be safely managed in the Matawhāiti residence.
[42] In terms of the requirement for all less restrictive options for controlling the behaviour of the person having been considered and all appropriate options tried, Ms Boshier acknowledges my decision in Chief Executive of the Department of Corrections v Pori, where I refused an application to detain Mr Pori under an IDO at a prison, when the option of housing him at Matawhāiti had not been tried.18 In
18 Chief Executive of the Department of Corrections v Pori, above n 17, at [54].
Mr Pori’s case he had been housed at Tōruatanga, a residence similar to that at Kaainga Taupua, and which had not been particularly successful, but he had not had the opportunity to see whether placement at Matawhāiti could succeed. Accordingly, I declined the application to have him detained in prison.
[43] However, Ms Boshier submits the factual situations confronting the management of Mr Pori and Mr Waiti are quite different. Mr Waiti poses a very high risk of violence in any number of different situations and furthermore, there is an additional risk at Matawhāiti due to Mr Waiti’s expressed hostility towards sexual offenders. Ms Boshier says it is unclear what options for controlling Mr Waiti’s behaviour could be considered. The health assessors have highlighted specific concerns in respect of safety should Mr Waiti be placed in Matawhāiti. Putting Mr Waiti in Matawhāiti could breach the safety of other residents, noting that the principles of the Public Safety Act include:19
persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.
[44] Ms Boshier points out that there are limited powers of restraint and seclusion available to the residence manager of Matawhāiti,20 and these are not the preferred options. Furthermore, while IM appeared to manage Mr Waiti’s behaviour, he still offended while subject to IM and seriously reoffended once IM concluded. Management at Matawhāiti is not akin to IM and it is submitted there are no other options available at Matawhāiti which could control Mr Waiti’s violent behaviour in terms of s 85(2)(b).
[45] Counsel for Mr Waiti, Mr Dillon, however, says the test in s 85(2)(b) is not met in this case. First, the risk of violence does not encompass just any violence, but serious violent offences as defined in the Act. The kind of low-level violence which Mr Waiti displayed in the prison environment is not serious violence. Furthermore, when Mr Waiti’s offending history is looked at, his convictions for serious violent
19 Public Safety (Public Protection Orders) Act, s 5(d).
20 Sections 71–72.
offences are not that great in number. It is also noteworthy that when he has been in prison or under reasonably strict supervision, there has been no serious violence.
[46] Importantly, he submits the environment in Matawhāiti can be distinguished from that in Kaainga Taupua. Matawhāiti is managed by trained staff under the supervision of the Department of Corrections whereas Kaainga Taupua was managed by staff from Anglican Action. The levels of restriction will be greater in Matawhāiti and it does have facilities such as a seclusion room. It is acknowledged in the evidence that isolation was a tool used by prison staff to manage Mr Waiti’s behaviour.
[47] Furthermore, Kaainga Taupua is “outside the wire”, where Matawhāiti is not. The relative lack of restrictions in Kaainga Taupua meant it was possible for Mr Waiti to obtain access to alcohol and cannabis. It was the use of substances which led him back to the path he had been on outside of prison. Mr Dillon says Mr Waiti believes the more restrictive nature of Matawhāiti would diminish the risk of him obtaining such substances and then offending, noting the kidnapping offending involved both alcohol,21 and cannabis.22 Similarly, in less-structured environments, Mr Waiti is prone to stop taking medication prescribed to manage his behaviour, resulting in him becoming psychotic and unstable.23 Again, the more structured environment of Matawhāiti would make this less likely.
[48] In Mr Dillon’s submission, it is wrong to equate Kaainga Taupua to Matawhāiti. Kaainga Taupua is more like Tōruatanga. Matawhāiti is purpose built for people like Mr Waiti. Until it has been tried, the applicant cannot satisfy s 85(2)(b) and say that all the restrictive options have been considered and all appropriate options tried.
[49] Mr Dillon also says that given the low occupancy level of Matawhāiti (there is only one permanent resident and one transitioning to Matawhāiti), there is less risk of disagreements and friction.
21 R v Waiti [2021] NZDC 18969 at [4].
22 At [16].
23 At [9].
[50] Finally, Mr Dillon says that Mr Waiti now has appreciated he made a mistake by failing to engage properly with the health assessors. He is now prepared to cooperate in the process. If detained in Matawhāiti rather than in prison, he would be content for the PPO to be heard in due course, whereas if he were detained in prison, he would want it brought on promptly.
Discussion
[51] The issue of whether Mr Waiti should be ordered to serve the IDO in prison turns on whether the second part of s 85(2)(b) is satisfied. That is, whether all appropriate options have been tried. While I acknowledge there is no certainty that Matawhāiti will be an appropriate residence, I do not consider I can dismiss it as an appropriate option based solely on the experience at Kaainga Taupua. Matawhāiti is purpose built to house people who meet the high threshold for making a PPO. The environment is deliberately controlled to reduce the risk to the public and to other residents, while still affording a degree of freedom and independence to the residents. I agree that the ability of Matawhāiti to manage illicit substances being brought in is much greater than would be the case as a residence such as Kaainga Taupua. I also consider the staff are better equipped to deal with the risks that its high risk residents pose. As Ms Brussovs explains, Matawhāiti is staffed by skilled and experienced supervisors employed by the Department of Corrections. They are equipped with digital mobile radios, the facility is monitored by security cameras which are supervised in real time, and the staff carry keys and swipe tags to access secure areas and are trained in safety intervention techniques. Matawhāiti includes a seclusion room which is available to be used as a last resort. That said, this has never been used. Rather, the first line of defence for staff is the quality of the relationship they have with the residents.
[52] Ms Brussovs also explains how previous violence incidents at Matawhāiti have been managed by staff. In all but one case, staff have been able to successfully manage the incidents to a safe close using non-physical contact with residents. In respect of the incident that was not able to be deescalated in this way, a security emergency was declared and staff from the Christchurch Men’s Prison were called to assist in removing the resident for safety reasons. However, this occurred without force and
that resident is now subject to a prison detention order, but on a graduated return programme with a view to being housed in Matawhāiti.
[53] In my view, Matawhāiti has significantly more systems in place than somewhere like Kaainga Taupua to assist staff in dealing with someone like Mr Waiti. While these will not eliminate his violent and aggressive tendencies entirely, I cannot say that it would be inappropriate to try housing him at Matawhāiti while the IDO is in force. Furthermore, I am concerned that a decision that s 85(2) is satisfied now could effectively preclude that decision being revisited if a PPO is made.
[54] Finally, it will assist the decisionmaker when it comes to the substantive PPO application to decide whether, if a PPO is to be imposed, that should be served in Matawhāiti or in prison.
[55] Accordingly, I make an interim detention order to the Matawhāiti residence pursuant to s 107 to commence on Mr Waiti’s release date of 5 September 2023.
Timetabing directions
[56] I discussed with counsel the directions which were needed to progress the substantive application for the PPO. Mr Dillon indicated that he needed time to obtain a full grant of legal aid so as to ensure continued representation and would likely seek to obtain an independent health assessment report for Mr Waiti. It is unknown at this stage what timeframes are required for those two steps. Accordingly, I suggested to counsel that they confer on release of this decision and with a view to agreeing appropriate timetabling directions for the hearing of the PPO application.
[57] I direct that within 20 working days of the date of this decision, counsel are to file a joint memorandum setting out:
(a)the likely timeframes to complete the steps identified at [56] above;
(b)the length of time required for hearing; and
(c)proposed timetabling directions for:
(i)the provision of any further health assessment report; and
(ii)the exchange of submissions and a common bundle.
[58]Timetabling directions will then be issued in light of counsel’s memorandum.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
M Dillon, Barrister, Hamilton
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