Chisnall v Chief Executive of the Department of Corrections
[2022] NZCA 402
•26 August 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA88/2021 [2022] NZCA 402 |
| BETWEEN | MARK DAVID CHISNALL |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| Hearing: | 7 April 2022 |
Court: | Clifford, Gilbert and Courtney JJ |
Counsel: | A J Ellis and G K Edgeler for Appellant |
Judgment: | 26 August 2022 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for leave to adduce further evidence is granted.
BThe appeal is allowed.
CThe public protection order is cancelled and the Chief Executive’s application for that order is finally determined.
D The Chief Executive’s application for an extended supervision order with intensive monitoring is remitted to the High Court for determination.
EWe exercise our powers as High Court judges to impose under s 107FA of the Parole Act 2002 an interim supervision order, pending determination by the High Court of the application for an extended supervision order with intensive monitoring, on the terms set out in the Chief Executive’s originating application dated 15 April 2016, including the interim special conditions sought at para 5.7(a)–(m) of that application.
FThe respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
On 27 January 2021, Gordon J in the High Court at Auckland granted the respondent Chief Executive’s application under s 8 of the Public Safety (Public Protection Orders) Act 2014 (the Public Safety Act) for a public protection order (PPO) against the appellant, Mr Chisnall.[1] In doing so the Court rejected the alternative possibility of making an extended supervision order (ESO) with intensive monitoring for a maximum period of one year (IM ESO) under s 107I of the Parole Act 2002.[2] Mr Chisnall now appeals.
[1]Chief Executive of the Department of Corrections v Chisnall [2021] NZHC 32 [Judgment under appeal].
[2]At [248].
Although in form Mr Chisnall challenges all aspects of the High Court decision, in substance and as we explain below, the appeal is directed at the Court’s decision declining to make an IM ESO as an alternative to a PPO.
Background
In March 2006 Mr Chisnall was sentenced to eight years’ imprisonment on a single charge of rape.[3] Whilst serving that term of imprisonment Mr Chisnall was sentenced to a cumulative term of three years’ imprisonment for an earlier rape.[4] On 15 April 2016, shortly before Mr Chisnall’s final sentences of imprisonment for that offending were to end, the Chief Executive applied for a PPO or alternatively an IM ESO against Mr Chisnall and for interim orders. Interim orders were granted by the High Court on 22 April 2016.[5] Mr Chisnall’s challenges to those interim orders were dismissed by this Court in December 2016[6] and by the Supreme Court in August 2017.[7]
[3]R v Chisnall HC Whanganui CRI-2005-083-806, 29 March 2006.
[4]R v Chisnall DC New Plymouth CRI-2008-021-527, 31 July 2009.
[5]Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796 [Interim detention order (HC)].
[6]Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 [Interim detention order (CA)].
[7]Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 [Interim detention order (SC)].
Then, in December 2017 the High Court granted the Chief Executive’s substantive application for a PPO.[8] Mr Chisnall appealed that decision to this Court. This Court allowed that appeal in October 2019 (the CA PPO appeal).[9] The Court was satisfied the High Court had been right to conclude the statutory pre-conditions for the making of a PPO had been established by the Chief Executive. But, this Court concluded, the High Court had erred in the way it had considered the possibility of an IM ESO as an alternative. The Chief Executive’s application was remitted to the High Court to be reconsidered.
[8]The Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120.
[9]Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 [CA PPO appeal].
That approach was consistent with the Supreme Court’s 2017 decision in which Elias CJ, with whom the majority agreed, held that in making either an interim detention order or a substantive PPO it was necessary for the court to consider the least intrusive means of managing any risk posed by the person in respect of whom the order was sought.[10] In these circumstances, and as the High Court has recognised from the outset, that involves consideration of an IM ESO.
[10]Interim detention order (SC), above n 7, at [37]–[40] per Elias CJ; and at [83] per William Young, Glazebrook, O’Regan and Ellen France JJ.
In the CA PPO appeal this Court summarised relevant aspects of the PPO and ESO regimes in the following terms:[11]
[5] Offenders released from prison on parole are automatically subject to standard parole release conditions. They may also be made subject to special parole release conditions by order of the Parole Board. Special conditions impose further restrictions on the person’s liberty. Those conditions may only remain in force up to six months after the offender’s statutory release date, generally the last day of the full term of the offender’s sentence of imprisonment.
[6] PPOs and ESOs are made, on the application of the Chief Executive, by the High Court. ESOs may also be made by the District Court, again on the Chief Executive’s application. They may, in general terms, be imposed on eligible offenders who will complete the full period of their finite term of imprisonment for a serious sexual or violent offence and who are, therefore, not able to be made subject to parole release conditions long term. The primary purpose of both orders is to protect the community from what the Chief Executive must establish is the very high or high risk of sexual or violent reoffending by an eligible offender. The Chief Executive establishes that risk by demonstrating to the Court that the eligible offender demonstrates a range of specific characteristics.
[7] Both PPOs and ESOs, amongst other things, impose restrictions on where the offender must reside, and their freedom of movement. A PPO is more restrictive than an ESO. That is, in summary:
(a)A person subject to a PPO must stay in specially designated buildings and adjacent land (residences) located in prison precincts. Such persons, known as residents, are in the legal custody of the Chief Executive and are subject to a range of ongoing restrictions and rules set out in the Public Safety Act. There is no time limit to the period for which a PPO may apply. Such orders must, however, be reviewed on an annual basis by the review panel constituted under the Public Safety Act, and every five years by the High Court, on the mandatory application of the Chief Executive.
(b)A person subject to an ESO is, just like an offender released on parole, subject to a range of standard conditions. The standard conditions place a person under the supervision of a probation officer and require residence at an approved residential address. The Parole Board has power to impose special conditions on the same terms as it may do so by way of special parole release conditions, such as electronic monitoring. In addition, the Chief Executive, when applying for the imposition of an ESO, may also apply to the sentencing court for an order that it impose what is known as an intensive monitoring condition on the offender. Such a condition requires the offender to submit to being accompanied and monitored for up to 24 hours a day. ESOs have a maximum term of 10 years. An intensive monitoring condition may only be imposed during the first 12 months of an ESO.
[11]CA PPO appeal, above n 9 (footnotes omitted).
In allowing Mr Chisnall’s appeal the Court noted the effect of its judgment was that, pending reconsideration, Mr Chisnall remained subject to the interim orders upheld in the Supreme Court.[12]
[12]At [68] and [72], referring to Interim detention order (HC), above n 5.
In that reconsideration, a procedural issue arose. As Gordon J put it, the provisions of s 107GAA of the Parole Act “sit rather awkwardly” with the approach the Court is required to adopt when hearing an application for a PPO.[13]
[13]Judgment under appeal, above n 1, at [11].
Section 107GAA provides:
107GAAProcedure where hearing contingent on outcome of PPO application
(1)This section applies to an application for an extended supervision order made in respect of an eligible offender who is also the subject of a PPO application that has not been determined or withdrawn.
(2)For an application to which this section applies,—
(a)the sentencing court is (despite anything in section 107D) the High Court; and
(b)the sentencing court must not hear the application until—
(i)the proceeding on the PPO application has been completed and the court has declined to make a public protection order against the offender; or
(ii)the PPO application has been withdrawn; or
(iii)the public protection order made against the offender has been cancelled as a result of a successful appeal against the order; and
(c)the notice given under section 107G(1)(d) must inform the offender of the effect of this provision.
(3)The application is taken to be withdrawn if the court has made a public protection order against the offender and all avenues for appeal are exhausted or the period in which an appeal may be filed expires.
(4)Where the court has declined to make a public protection order and the court proceeds to hear the application for an extended supervision order, that application must, if practicable, be heard by the same Judge that heard the PPO application.
(5)In this section, PPO application means an application for a public protection order under section 8 of the Public Safety (Public Protection Orders) Act 2014.
Elias CJ explained:[14]
[17] Section 107GAA of the Parole Act makes it clear that it is the public protection order application that has priority of consideration where it is applied for. If a public protection order application has not been determined or withdrawn, the court “must not hear” the application for extended supervision order until the public protection order application has been declined. Until then, the hearing of the extended supervision order application is “contingent”[.]
[14]Interim detention order (SC), above n 7.
The then Chief Justice’s statement that until the PPO application has been declined, the hearing of the extended supervision order application is “contingent” suggests that both such applications would be considered at a single hearing, the second application being contingent on the decision on the first. That would appear to have been the understanding of the Chief Executive at the time of the original application as regards Mr Chisnall in April 2016.
It is also to be noted that the Supreme Court’s decision on this point has the effect of requiring consideration of an IM ESO alternative whenever a PPO is sought, whether or not the Chief Executive applies for one in the alternative.
As reflected in the decision of Gordon J, counsel for Mr Chisnall and the Chief Executive provided written submissions on the basis both matters would be determined in a single hearing, as envisaged by the Chief Justice’s “contingent” approach. At the hearing, however, a different approach emerged. The Judge records:[15]
In oral submissions both Mr Tantrum, for the Chief Executive, and Mr Ellis, for Mr Chisnall, agreed with my view that I could not hear submissions on the ESO application at the hearing.
[15]Judgment under appeal, above n 1, at [10].
That view, we note, responds to the very clear wording of s 107GAA(2)(b)(i) of the Parole Act.
Given the need for the Court to always consider less restrictive alternatives before making a PPO, in our view that approach may, notwithstanding the express words of the statute, be somewhat artificial. However, the way Gordon J in fact did consider an IM ESO alternative in her judgment means we need not take that point further. As the Judge explained:[16]
However, having regard to Mr Chisnall’s position that he would consent to an ESO with an intensive monitoring condition and with interim conditions as proposed by the Chief Executive (save for an amendment to one condition), it was agreed that any hearing on the ESO application, should I decline to make a PPO, would be very short. As noted … the Chief Executive relies on the same evidence for both applications. It seemed likely that the only issue between the parties would be the length of the term of any ESO.
[16]At [10].
Accordingly, the High Court considered all aspects of the Chief Executive’s substantive application, including issues associated with the statutory pre-conditions. The Court concluded, again, that the pre-conditions for the making of a PPO had been established.[17] The Court then separately considered whether an IM ESO alternative was the appropriate option, concluding it was not.[18]
[17]At [25], [188], and [231].
[18]At [233]–[248].
Finally, after the High Court hearing and judgment, but before this appeal was heard, this Court allowed Mr Chisnall’s appeal regarding his application for declarations that the PPO and ESO regimes are inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA).[19] This Court made the following declarations:[20]
A Part 1A of the Parole Act 2002 is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that inconsistency has not been justified under s 5 of that Act.
B The Public Safety (Public Protection Orders) Act 2014 is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that inconsistency has not been justified under s 5 of that Act.
[19]Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 [Declarations decision (CA)].
[20]Chisnall v Attorney-General [2022] NZCA 24 at [3]–[4].
In considering this appeal, we need to consider the significance of the declarations of inconsistency made by this Court. The submission made for Mr Chisnall was that the “rights” implications of those declarations called for a new approach. In making its declarations the Court in essence reasoned that the orders made under both the ESO and PPO regimes were penalties and therefore the regimes imposed limitations on the prescription on second penalties affirmed in s 26(2) of NZBORA. On the question of justification, the Court found:[21]
[217] We consider the limited legislative fact material to which we have been referred demonstrates that both the ESO and PPO regimes were designed to deal with the important objective of public protection from persons likely in future to commit serious criminal offences. We accept also that the regimes are rationally connected with that purpose. But the importance of the s 26(2) right requires greater justification before it can be accepted that either regime is demonstrably justified in a free and democratic society, having regard to the need to establish both proportionality and minimum impairment of the right for achieving the purpose.
…
[219] For the ESO and PPO regimes to be justified under s 5, there would need to be a substantial showing by appropriate affidavit evidence that the regimes are justified as a minimum and necessary response to the potential harm caused by those against whom such orders would be made.
[21]Declarations decision (CA), above n 19.
In making those declarations the Court also emphasised:
[226] What this case is about is whether the legislative response in the form of the ESO and PPO regimes is inconsistent with the Bill of Rights Act. To establish that required evidence about the basis on which the legislative choices were made such as would provide and submit to scrutiny the rational justification for the measures. This would enable the Court to assess the proportionality of the measures; whether a “justified end is achieved by proportionate means”. Without such evidence, we have not been able to find that the regimes are demonstrably justified under s 5 of the Bill of Rights Act.
(Footnote omitted.)
In reaching its conclusions, the Court considered the significance that the legislation might be applied in a “rights-compliant way”. It said:
[220] We do not consider it is an adequate response to say, in assessing whether the limits on the right contained in the legislation have been demonstrably justified, that orders will not be made in individual cases without a full assessment by judicial officers. In essence, that reduces the s 5 analysis to a case by case consideration without asking the essential question of whether the ESO and PPO regimes represent reasonable limits of the s 26(2) right. That is the question raised by s 3 of the Bill of Rights Act which applies the Act’s provisions to acts done by the legislative branch of government, as well as the other branches. To say the Acts may be able to be applied in a rights-compliant way does not answer the central question, which is whether the relevant provisions of the Parole Act and the PS (PPO) Act delineate regimes that limit rights in a way, and to an extent, that has been demonstrably justified.
The Supreme Court granted the Chief Executive leave to appeal that decision.[22] That appeal is set down for hearing in October 2022.
[22]Attorney-General v Chisnall [2022] NZSC 77.
In that context, we do not accept the submission for Mr Chisnall. Our task is to consider this appeal on the terms of the legislation as it stands. That is not to say, however, that we should not give that legislation as “rights-compliant” an interpretation and application as within its terms are available.
Against that background, when this appeal was heard:
(a)Mr Chisnall had the benefit of the declarations of inconsistency made by this Court. Those declarations were made on the basis of the Court’s consideration and acceptance of many of Mr Chisnall’s human rights challenges to the PPO and ESO regimes which, throughout these proceedings, have been advanced by Mr Ellis.
(b)Mr Chisnall maintained his position of consenting to the making of an IM ESO alternative order.
It was with reference to those circumstances that counsel for Mr Chisnall realistically acknowledged the focus of this appeal was what the High Court had termed the “discretion” to make an IM ESO alternative,[23] rather than the considerably broader arguments for Mr Chisnall focusing on overall NZBORA inconsistency. That approach also responded to the implications of Mr Chisnall:
(a)accepting, as he has throughout these proceedings, that in terms of the Public Safety Act the s 7 threshold and the s 13(2) preconditions for the making of a PPO are established; but
(b)challenging the conclusion he is a “very high risk of imminent serious sexual offending” in terms of s 13(1)(b) of that Act.
[23]Judgment under appeal, above n 1, at [232].
That submission is possible because the preconditions in s 13(2) are necessary but not automatically sufficient requirements for a court to be satisfied the risk threshold in s 13(1)(b) is met. In that context Mr Chisnall accepts he presents a high risk of, but not a very high risk of imminent, serious sexual offending and on that basis, his principal submission was that he should be made subject to an IM ESO order in the first instance.
Analysis
Overview
In allowing Mr Chisnall’s appeal against the first imposition of a PPO, and remitting the question of whether to impose a PPO or an IM ESO, this Court identified the High Court’s error in the following terms:[24]
[37] In considering that question the Judge reasoned that, whilst Mr Chisnall was prepared to agree to an ESO with an intensive monitoring condition, such a condition would have a maximum duration of 12 months. There was no ability to extend that condition, and the Court could not impose that condition more than once even if an offender is subject to repeated ESOs. There was no doubt Mr Chisnall required further, and ongoing intensive supervision and monitoring, if his risk was to be monitored. There could be no guarantee that he would respond to any treatment he might receive during the 12-month period. He had not responded in the past and the Judge could not be confident that he would make sufficient progress, even with intensive treatment, during the period that any intensive monitoring condition would be in place. Conditions that could subsequently be imposed under an ESO would not protect against further offending to the same extent as an intensive monitoring condition. On that basis the imposition of a PPO was appropriate.
[38] In our view, and with respect, that is to approach the question in the wrong way. The question is not whether, at the end of the 12-month period, Mr Chisnall’s position would be such that his risk would at that point be able to be managed by an ESO with the then available special conditions, which would be less stringent than intensive monitoring. Rather the question is, as we think the Supreme Court’s decision shows, whether for that 12-month period Mr Chisnall’s risks could not be properly managed by an ESO with an intensive monitoring condition.
[24]CA PPO appeal, above n 9 (footnotes omitted).
In this appeal, there is no suggestion that Gordon J erred in the way she analysed the possibility of an IM ESO alternative. In particular she did not, as the High Court had previously done, ask whether Mr Chisnall would make sufficient progress during the initial, but maximum, period of one year of an IM ESO so as to no longer fit the criteria for an ESO (or indeed a PPO). Rather she looked at the situation during that year, and how an IM ESO could manage the risk of Mr Chisnall reoffending. So, the issue for us on appeal is whether the Judge erred in her assessment that an IM ESO was not appropriate in Mr Chisnall’s case.
Where the preconditions in s 13 of the Public Safety Act are met, the Court “may” impose a PPO. That decision was referred to by the Judge as a “discretion”.[25] It is clear, however, that the decision to be made is an evaluative one which must be made consistently with the statutory framework and the principles that framework enunciates. The task for us is, therefore, as the Supreme Court explained in Austin, Nichols & Co Inc v Stichting Lodestar, to form our own opinion rather than defer to the High Court’s assessment of the evidence.[26] However, and as we later explain, we have received updating evidence as to developments in the current administration of the PPO and ESO regimes and Mr Chisnall’s progress since the High Court hearing.
The High Court decision
[25]Judgment under appeal, above n 1, at [232].
[26]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
In reaching her decision the Judge focused on evidence given during the hearing:
(a)by witnesses for the Chief Executive, as to the actual conditions of supervision in the facilities for persons subject to PPOs and ESOs; and
(b)by the expert witnesses, as to their assessment of the effect on Mr Chisnall were he to transfer from a PPO to an IM ESO.
Evidence of the conditions of supervision in PPO and ESO facilities
Two senior Department of Corrections officials — Mr Andrew Burger and Mr Lodewicus Gerber — provided affidavits and gave oral evidence, importantly in response to questions from the Judge, on conditions for supervision of persons (residents) subject to a PPO or an IM ESO. Three facilities (residences) are involved — Matawhāiti, Tōruatanga and Kaainga Taupua:[27]
(a)Matawhāiti, where Mr Chisnall currently resides, is the sole residence for persons subject to PPOs. Matawhāiti is located on the grounds of Christchurch Men’s Prison. Matawhāiti is a secure facility, surrounded by an electrified perimeter fence. Reflecting the terms of a PPO, residents are legally in the custody of the Chief Executive.[28] At Matawhāiti they are monitored on a 24/7 basis. The physical security arrangements make it unlikely residents can leave on an unauthorised basis. When they do leave, they are accompanied at all times by staff who have the legal authority to detain them were they to breach the approved basis for the outing involved.[29]
(b)The other two residences, Tōruatanga and Kaainga Taupua, are for residents subject to ESOs, including IM ESOs. Whilst also located on prison grounds, they are not secure facilities: in particular they are not surrounded by energised wire fences. There are unenergised fences in place but gates, if there are gates in place, are typically left open. Moreover, while residents subject to an IM ESO can, by the requirement of the Parole Board, be supervised 24/7 at both of those residences by Department staff on a “line of sight” basis, as a matter of practice that approach is not taken with residents currently subject to such orders at either of those locations. Rather supervision is less intensive: staff at the residences do not have a legal power to restrain or detain residents, nor are they expected to do so. If a resident leaves the residence on an unauthorised basis, or breaches approved arrangements when on a permitted outing, the staff will follow the resident and, if necessary, call for departmental or police assistance.
[27]Mr Burger was the former residence manager of Matawhāiti and Tōruatanga. Mr Gerber is the lead advisor in the Central Region High Risk Response Team based in Hamilton, and was involved in the development of Kaainga Taupua.
[28]Public Safety (Public Protection Orders) Act 2014 [Public Safety Act], s 21(1).
[29]Sections 26(3) and 73.
As so administered, in Mr Gerber and Mr Burger’s assessment, Tōruatanga and Kaainga Taupua would provide materially less control of Mr Chisnall’s risk of reoffending compared to that provided by Matawhāiti. Neither expressed a view, however, on the effect on that assessment of 24/7 line of sight monitoring at those residences, if ordered.
Their assessment also reflected what they saw as the significance of the “free time” periods available to residents at Tōruatanga and Kaainga Taupua. Such residents are supervised in accordance with their weekly activity plans, including provision for free time during which residents are essentially left to their own devices. Relative to conditions at Matawhāiti, that allowed the possibility of relatively, initially at least, uncontrolled contact between residents and a degree of unsupervised conduct by residents individually.
That said, both Mr Gerber and Mr Burger confirmed, in answers to questions from Mr Edgeler, that the incidence of further offending by persons subject to either a PPO or an ESO was very low.
In response to questions from Gordon J, Mr Burger described the possibility of the Department liberalising its approach as regards “outings” for those on PPOs. Judicial members of the PPO review panels had recommended that development. An Ombudsman’s report had also recommended it.[30] A group had been set up to implement the necessary policy and procedure changes. Mr Burger was satisfied that development was very likely to occur and could respond to Mr Chisnall’s wish for some form of employment being organised for him on a supervised basis outside Matawhāiti.
Expert evidence as to the effect of a move from Matawhāiti for Mr Chisnall
[30]See Peter Boshier Report on an unannounced inspection of Matawhāiti Residence under the Crimes of Torture Act 1989 (Office of the Ombudsman, December 2020) at 24–25.
Each of Ms Margaret-Anne Laws, Drs Justin Barry-Walsh, Fran Vertue and Stephanie Fisher — in response to questions from the Judge — expressed concern that a shift from Matawhāiti to either of Tōruatanga and Kaainga Taupua could be both a threat to progress Mr Chisnall may have made thus far and also increase his risk of serious sexual reoffending.
The Judge’s assessment
Based on the expert evidence over time and produced for the hearing, the Judge concluded an IM ESO would not be sufficient to mitigate the very high risk of reoffending Mr Chisnall posed. The evidence as a whole had established he required further treatment and a high level of supervision and management if that risk was to be mitigated.[31]
[31]Judgment under appeal, above n 1, at [245].
The Judge summarised what she saw as established by the experts’ observations during the hearing in response to her questions in the following way:
[246] This conclusion reflects three other points established by the evidence:
(a)Even the limited treatment gains made are at risk of being lost under a move to an ESO with interim monitoring. All health assessors agreed that Mr Chisnall’s treatment gains to date have been extremely limited despite the familiar and structured living environment of Matawhāiti, which appears to be suited to Mr Chisnall’s need for a strict routine. I am satisfied that the treatment gains have not yet reached the level required for a safe transition to the less supervised and less secure setting of Tōruatanga. Living in such an environment could also make it more difficult for Mr Chisnall to retain his current, very limited treatment gains and/or make any further such gains. Dr Fisher’s evidence is that significant time will be required for Mr Chisnall to be able to cement his limited treatment gains and to generalise them to a community-based lifestyle for sustained risk management;
(b)Mr Chisnall’s demonstrated difficulties in complying with instructions are likely to present clear problems for his effective management under an intensive monitoring condition, especially within the less structured Tōruatanga environment. Dr Fisher’s evidence is relevant in that respect given her conclusion that such monitoring may in fact increase Mr Chisnall’s negative emotion, level of interpersonal aggression and his reliance on deviant sexual fantasy; and
(c)Mr Chisnall’s clear difficulties coping with minor routine changes, even within the familiar setting of Matawhāiti, are likely to be exacerbated by a move to Tōruatanga.
[247] I consider a change in setting at this time would be premature, potentially detrimental to Mr Chisnall’s limited treatment gains to date and thus present an undue risk to the safety of the community given the opportunities to abscond from Tōruatanga and Mr Chisnall’s history of opportunistic offending.
[248] I therefore do not consider an ESO with intensive monitoring for 12 months would be sufficient to protect the public from Mr Chisnall’s very high risk of imminent serious sexual offending.
The Judge went on to consider a possible modification of the Matawhāiti regime, involving Mr Chisnall continuing to be subject to an interim detention order allowing for greater flexibility, particularly as regards supervised trips to the community. Whilst attracted to that proposition, the Judge considered that the better context for its consideration was within the process provided by the Public Safety Act for the ongoing review of a PPO, its necessity and its day-to-day administration.[32]
This appeal
[32]At [253].
On appeal, the argument for Mr Chisnall was that the Judge had erred, essentially in (i) underestimating the ability of 24/7 eye-to-eye supervision available under an IM ESO to control reoffending risk, including by not taking account of the evidence as to the actual experience of a very low rate of reoffending associated with ESOs and IM ESOs and (ii) in her assessment of the significance of the answers provided by the expert witnesses in response to her questions of them as to the effect on Mr Chisnall, and his reoffending risk, of a move away from Matawhāiti.
In supporting the decision the Judge reached, the Chief Executive provided by way of updating evidence reports prepared pursuant to the ongoing review provisions of the Public Safety Act.
The review process and updating evidence
While a PPO is in force, a review panel appointed by the Minister of Justice must review the continuing justification of the order on an annual basis.[33] If the review panel considers there may no longer be a very high risk of imminent serious sexual or violent offending by the person subject to a PPO, the panel may direct the Chief Executive to apply to the High Court for review of the order.[34]
[33]Public Safety Act, ss 15 and 122.
[34]Sections 15(2) and 16.
The continuing justification of Mr Chisnall’s PPO was reviewed by a panel chaired by former High Court Judge Sir Graham Panckhurst (the Panel), which gave its decision in December 2021 (some 10 months after the High Court decision).
Before turning to the Panel’s conclusions, we summarise two reports that were provided to the Panel.
First was a health assessor’s report authored by Dr Neeshi Singh‑Pillay, a registered counselling psychologist. Dr Singh-Pillay concluded there remained a very high risk of imminent serious sexual offending by Mr Chisnall were he to be no longer subject to supervision. That very high risk was only likely to be mitigated through continued external monitoring and supervision. Given that Mr Chisnall’s risk remained elevated, consideration of a less restrictive environment did not appear feasible to her at this point.
Secondly, a report was provided by the current manager of the Matawhāiti and Tōruatanga residences, Ms Melissa Brussovs. Ms Brussovs noted that, over the previous year, Mr Chisnall had responded positively to two developments in the administration of Matawhāiti: first the development of a framework for resident supported outings and, secondly, collaboration between the Matawhāiti and Tōruatanga residences, which had expanded the social network available to him.
More generally, Ms Brussovs reported Mr Chisnall as having responded well to the Matawhāiti environment and routine. He had displayed a strong work ethic, undertaking responsibility for the maintenance of the residence’s grounds and had responded well to his daily structured routines. He had readily engaged with all volunteers and professional visitors, and had made significant progress in his relationships both with other residents and with staff — in particular with female staff. He had been generally compliant, save for two relatively minor incidents when he initially displayed anger but then used a planned calming technique of walking away, albeit that in the process he had punched a concrete wall and an external heat pump causing himself minor injuries.
Mr Chisnall had, Ms Brussovs noted, been “outside the Matawhāiti wire” on over 100 occasions, without incident since March 2021. Those outings had focused on making him more comfortable in larger crowds of people in busier spaces. Whilst both staff and Mr Chisnall had noted some stress and anxiety for him in those circumstances, positive progress was being made. Ms Brussovs commented:
Supported outings since March 2021 have included: community walks and city familiarisation; outings to shops and services such as banking, pharmacies, home improvement stores, safety equipment shops and farming / power equipment stores; visits to the Tōruatanga Residence for social and recreational activities; and fortnightly outings to Countdown Supermarket to pick up groceries. [The] [n]ext steps [for] supported outings will likely include undertaking supermarket shopping rather than click and collect, and potentially reducing the number of accompanying staff from two to one.
Mr Chisnall was, the report says, an active and positive member of the Matawhāiti residence community. The report did not itself contain any recommendation for the Panel. It did, however, include the following final comment:
The Department’s High Risk Response Team will need to work with Mr Chisnall to develop an appropriate release proposal, should the PPO Review Panel direct the Chief Executive to apply to the High Court for a review of the Public Protection Order.
Mr Chisnall has expressed a desire to remain in the Ōtautahi area, at least initially, should he be considered for release. An appropriate option in this area would be the Tōruatanga Residence, which is supported by the same staff as Matawhāiti.
Having considered those reports, the Panel ultimately decided against directing the Chief Executive to apply to the High Court for a review of Mr Chisnall’s PPO.
Two factors influenced that conclusion in particular. First, Dr Singh-Pillay’s comprehensive assessment, with which the Panel concurred. Secondly, the limitation the Panel had encountered pursuant to Mr Chisnall’s election to exercise his right to confidentiality in the materials that were provided to Dr Singh-Pillay, with respect to a significant part of a seven-page report prepared by a Corrections clinical psychologist outlining the treatment afforded Mr Chisnall following the reinstatement of his PPO by the High Court. The Panel saw the absence of its access to that, in turn, as a “significant disadvantage”.
The Panel then reviewed Mr Chisnall’s progress under his management plan. Such a management plan has 10 parts. Nine address life skills and one addresses rehabilitation and integration. Whilst the Panel recognised the benefit of achieving life skills it observed that, given the common criminogenic factors, Mr Chisnall required expert treatment focused on the contextual factors of deviant sexual arousal, compulsivity, poor impulse control, emotional dysregulation and an absence of social inhibitions, together with his associated clinical factors of low cognitive functioning, ADHS and autism spectrum disorder. The Panel endorsed the recommendations for the future implementation of the management plan, and in particular recommended that resident outings continued, including increased contact with members of the community, the use of public transport and other modifications that better enable any improvement in social conduct to be gained. The Panel finally noted, subject to the outcome of this appeal, Mr Chisnall’s next review hearing was scheduled for November 2022.
Before turning to our assessment of this appeal, we note that both Mr Chisnall and the Chief Executive agreed this updating evidence could be considered by us on appeal. However, in written submissions the Chief Executive said the parties agreed that any reliance on that evidence ought to be limited, given that the report writers were not witnesses in the High Court hearing and have not been cross‑examined on their reports.
We recognise those limitations, but we note the parties were entitled to examine the witnesses in this Court.[35] Both Dr Singh-Pillay and Ms Brussovs were before the Panel on review. Had there been issues with their evidence, we consider those issues would have been apparent at the review and, if necessary, brought to this Court’s attention on appeal. Instead, the oral submissions on appeal focussed on that updating evidence in some detail. We consider that evidence is fresh, cogent and credible:[36] it updates this Court on how the PPO and ESO regimes have been developed and administered since the High Court hearing, and Mr Chisnall’s response to those developments. In our view the scheme of the Public Safety Act, in particular the annual review process, contemplates the acceptance of, consideration and reliance on, updating evidence at the appellate stage.[37] We admit that evidence accordingly and have taken account of it in our assessment below.
Our assessment
[35]Court of Appeal (Civil) Rules 2005, r 45(2).
[36]Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192, affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].
[37]Compare D (SC31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213, a case in which a majority of the Supreme Court considered it was appropriate to take account of updating evidence, which had been provided at each stage of the appellate process, to determine the level of risk of sexual reoffending relevant to the making of a registration order under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, in circumstances where consideration of that evidence was not objected to: at [41] per Winkelmann CJ and O’Regan J and [159] per Ellen France J. William Young J at [305]–[309] and Glazebrook J at [262] (dissenting) expressed reservations about considering updating evidence in the assessment of risk. In particular, they noted the relevant statutory scheme did not, unlike here, provide for the review of registration orders even if the level of risk had changed.
Throughout these proceedings, Mr Chisnall has maintained a consistent position: that is, consistent with his view that whilst he meets the high risk of serious sexual reoffending, he does not constitute a very high risk of imminent serious sexual offending. In that context, the basis of the Supreme Court finding that a rights‑consistent approach to the scheme of the legislation required the assessment of whether lesser controls than those provided by a PPO would be sufficient to meet that risk. As the Supreme Court put it:[38]
[40] If conditions can be put in place without detention that would remove the opportunity or restrict it to an extent that there is no longer very high risk of imminent offending of the type, then a public protection order or an interim detention order ought not to be made. That is clear from the scheme of the legislation and is consistent with the protections contained in the New Zealand Bill of Rights Act.
[38]Interim detention order (SC), above n 7 (footnote omitted).
Put another way, and setting aside Mr Chisnall’s acceptance in this case of an IM ESO, the decision the Court is required to make is not between two alternatives, and two alternatives only. Rather what is to be considered is whether the severe restrictions of a PPO are the only way to manage the identified risk of imminent serious sexual offending, remembering again that the assessment of whether such risk exists is premised on the absence of restraint,[39] rather than on an assessment of the comparative protective effect of a PPO on the one hand and some other form of restriction on the other.
[39]See definition of “imminent” in Public Safety Act, s 3; and CA PPO appeal, above n 9, at [15]; and McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369 at [13].
In saying that, we are not suggesting here that the High Court erred in the approach it took when considering whether an IM ESO alternative was appropriate. After all, as a matter of logic, if the protective restrictions provided by an IM ESO are not adequate to mitigate the very high risk of imminent serious sexual offending, lesser restrictions would not be either.
Here, however, we have the benefit of the detailed updating evidence provided by the Chief Executive of the actual way in which the PPO and ESO regimes are applied and residents are managed in both the PPO residence, Matawhāiti; and in the ESO residence, Tōruatanga. Whilst as a matter of fact the presence of an electrified security fence, and the controls it provides, continue to distinguish the regimes applied in each of the residences, the conclusion we take from that evidence is that in practice the significance of that distinction is less apparent than it might in theory appear.
As to the risk presented by Mr Chisnall himself, in our view the evidence establishes the ability of a modified regime, less restrictive than the one in theory available under a PPO, is capable of managing his personal risk. He is described as being compliant, a positive member of the Matawhāiti/Tōruatanga communities, someone who is growing in self-awareness of his problems and someone who is positively engaging with work opportunities provided to him. In this context, the evidence that he has successfully taken part in over 100 outings, supervised by two staff members but with the possibility of outings supervised by one staff member in the near future, is of some significance. Moreover, the modifications made to the regime and Mr Chisnall’s response to those modifications suggest any impact of a transfer from Matawhāiti to Tōruatanga on his routine and treatment gains can be appropriately managed.
Given the Supreme Court’s recognition of the extreme nature of the deprivation of personal liberty and autonomy presented by a PPO, and the need to calibrate risk and necessary restraint, we are satisfied that an IM ESO would be sufficient to mitigate the risks of imminent serious sexual offending that would arise were Mr Chisnall no longer to be subject to supervision.
We therefore allow the appeal. The PPO is cancelled and, as accepted by Mr Chisnall at this point, an IM ESO is the appropriate response to the risk Mr Chisnall presents.
Relief
At the hearing the parties agreed that, in the event we allowed the appeal, this Court does not have the power to impose an ESO directly. As we have noted, whilst the Chief Executive simultaneously filed in the High Court applications for a PPO or an ESO in the alternative, those applications could not be determined at the same time. Under the terms of s 107GAA(2)(b) of the Parole Act, the PPO application had to be determined first and separately from the ESO application. Therefore, the ESO application (with an IM condition) to which Mr Chisnall consents has not yet been determined. That application must now be remitted to Gordon J in the High Court.
A further matter arises. As we have “finally determined” the PPO application, the interim detention order imposed by Fogarty J in April 2016 ceases to have effect.[40]
[40]Public Safety Act, s 107(4).
In order to avoid a “gap or hiatus” in the degree of supervision pending determination of the ESO application,[41] we exercise our powers as High Court judges to impose an interim supervision order under s 107FA of the Parole Act.[42] We do so on the terms set out in the Chief Executive’s originating application of 15 April 2016, including the interim special conditions sought at para 5.7(a)–(m) of that application.
Result
[41]CA PPO appeal, above n 9, at [68], citing R (CA464/2018) v Chief Executive of the Department of Corrections [2019] NZCA 60 at [36].
[42]Senior Courts Act 2016, s 103.
The application to adduce further evidence is granted.
The appeal is allowed.
The public protection order is cancelled and the Chief Executive’s application for that order is finally determined.
The Chief Executive’s application for an extended supervision order with an intensive monitoring condition is remitted to the High Court for determination.
We exercise our powers as High Court judges to impose under s 107FA of the Parole Act an interim supervision order, pending determination of the matter remitted to the High Court, on the terms set out in the Chief Executive’s originating application dated 15 April 2016, including the interim special conditions sought at para 5.7(a)–(m) of that application.
The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Crown Law Office, Wellington for Respondent
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