Department of Corrections v Hartley
[2024] NZHC 2241
•9 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-000046
[2024] NZHC 2241
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
PETER JOHN HARTLEY
Respondent
Hearing: 8 August 2024 Counsel:
C B Wilkinson-Smith and I P L Barfucci for Applicant D M Goodlet for Respondent
Judgment:
9 August 2024
JUDGMENT OF LA HOOD J
(Application for interim supervision order)
Application for an interim supervision order
[1] This is an application by the Chief Executive of the Department of Corrections (the Department) for an interim supervision order (ISO) in respect of Peter Hartley. The Department has made an application for an extended supervision order (ESO) which is set down for a hearing on 18 November 2024.
[2] Mr Hartley was released from prison on 31 July 2023. In addition to his current release conditions,1 the Department seeks an ISO with standard and special conditions prohibiting him from accessing internet-capable electronic devices and subjecting him to full residential restrictions in order to mitigate Mr Hartley’s ongoing risk of offending in the community.
1 Mr Hartley is subject to standard and special release conditions until 3 February 2025.
DEPARTMENT OF CORRECTIONS v HARTLEY [2024] NZHC 2241 [9 August 2024]
[3] Ms Goodlet, for Mr Hartley, submits that an ISO is unnecessary as his release conditions are sufficient to mitigate his risk of further offending, while being the least restrictive outcome. Ms Goodlet submits there is insufficient nexus between the special conditions sought and Mr Hartley’s risk.
Background
Mr Hartley’s index offending and sentence
[4] Mr Hartley is 65 years old. He was convicted of 18 counts of sexual offending against six teenage complainants and one of making an intimate video recording.
Williams J, at sentencing, briefly summarised the offending as follows:2
[3] Count one related to your touching of [RC’s] leg, back and penis while [RC] masturbated at your home in Trentham. This took place before [RC] turned 16, and was a representative count.
[4] Seven indecent assault counts related to [DL] and occurred between February 2000 and February 2004. These related variously to sexual touching, and you masturbating [DL] or performing oral sex on him, all of which occurred when [DL] was between 12 and 14. In addition, you were found guilty of indecent assault on [DL] by physically assisting him to have sex with [KR] (she also being under 16). You did this by guiding his penis into her genitalia. One count of sexual touching and one of oral sex were representative counts.
[5] You were found guilty of two counts of indecent assault on [NC] - the first, a representative count of digital penetration of her genitalia; and second, by massaging her genitalia, all of which occurred prior to her 16th birthday in February 2003.
[6] You were found guilty of committing an indecent act on [LC] prior to his 15th birthday on 6 January 2008 (the date of his birthday) by making him expose his penis in your presence.
[7] You also indecently assaulted [KR] in the incident involving [DL] that I have already mentioned (in the act of assisting [DL] to have sex with her), and by yourself touching her breasts and thighs, all when she was under 16. And in the same incident you sexually violated [KR] by raping her. In another incident you indecently assaulted [KR] by undressing her in order to take photographs of her breasts.
[8] In respect of [DO], you committed an indecent act on him by making him masturbate in your car when he was 15, doing the saine in your van, and in your lounge.
2 R v Hartley HC Wellington CRI-2010-085-4305, 29 March 2012.
[9] Finally you made an intimate visual recording of [DO] having sex with his girlfriend without either of them knowing or consenting to it.
[10] In varying degrees each of these offences against each of the victims is attended by common themes and elements that have been referred to by counsel. The ways you went about grooming your young victims and bending them to your will were sophisticated and effective. You targeted young people with difficulties - usually problems at home, dysfunctional households, poverty, problems in parental relationships, parental abuse and so on. You aimed at young people who were likely to need what you were offering. You provided them money, food, alcohol and cigarettes. You provided them with accommodation, the free run of your home, and that precious thing - access to the Internet. You taught the boys to drive and ride motorbikes, and you let them have access to your vehicles. You impress me Mr Hartley as an innovative technologist (to use perhaps an old fashion word), and you drew young boys into your various technology projects. Your sexual activity with them was characterised by the presence of voyeurism and the creation of economic and emotional indebtedness to you.
[11] The things you offered were magnets to young people from troubled backgrounds, young people who were in need of care and support.
[5] Williams J sentenced Mr Hartley to preventive detention on all 19 charges and set the minimum period of imprisonment at seven years.3 However, the Court of Appeal allowed Mr Hartley’s appeal against the sentence of preventive detention concluding that the point had not yet been reached where preventive detention was appropriate, on the basis that at that time the Court considered Mr Hartley “is capable of changing his behaviour, and he will now have a powerful incentive to acknowledge responsibility and accept treatment.”4 The Court of Appeal imposed determinate concurrent sentences of imprisonment resulting in an overall sentence of 14 years’ imprisonment.5 The Court considered a minimum period of 50 per cent was appropriate.6
Prior history of sexual offending
[6] Mr Hartley has the following previous convictions for sexual offending occurring between 15 February and 1 March 1992:
(a)Unlawful sexual connection female 12-16;
3 R v Hartley HC Wellington CRI-2010-085-4305, 29 March 2012.
4 Hartley v R [2014] NZCA 162.
5 At [157].
6 At [158].
(b)Attempt to rape female 12-16;
(c)Male rapes female 12-16;
(d)Indecently assaults female 12-16;
(e)Sexual violation by rape; and
(f)Indecently assaults female 12-16.
[7] Mr Hartley was convicted following trial in 1996 and sentenced to six years’ imprisonment. In dismissing an appeal against those convictions, the Court of Appeal summarised the offending as follows:7
The complainant was the appellant’s 13-year-old niece. Count 1 alleged the appellant had rubbed the complainant’s chest while she was operating a computer. Count 2 alleged that on similar occasions he rubbed the complainant's vaginal area. Count 3 related to the penetration of the complainant’s vagina with a vibrator. Counts 4 and 6 alleging rape, were said to have occurred in the appellant’s bedroom, as with the fifth count of attempted rape. Counts 1, 2 and 6 were representative charges. The defence was a complete denial.
Legal principles on an ISO application
[8] ISOs are a mechanism for the Court to impose supervision for an interim period when an offender is released from detention before an application for an ESO is finally determined. The Court may make an ISO under s 107FA of the Parole Act 2002, which provides:
107FA Sentencing court may make interim supervision order
(1)This section applies if, before an application for an extended supervision order is finally determined, 1 or more of the following events occur:
(a)the offender who is the subject of the application is released from detention:
...
7 R v H [1997] 1 NZLR 673 (CA) at 676.
(2)The sentencing court may, on application by the chief executive, order that, until the application for an extended supervision order is finally determined, the offender is subject to the supervision conditions specified in the order.
(3)When the court makes an interim supervision order, it may impose any of the standard conditions that are (under section 107JA), or special conditions that may be (under section 107K), imposed under an extended supervision order.
(4)If, under an interim supervision order, the court imposes an intensive monitoring condition or residential restrictions, the period for which the interim supervision order is in force is not to be taken into account for the purpose of the limits specified in section 107J(3)(b) and (ba).
(5)The court may suspend an interim supervision order subject to any conditions that the court thinks fit.
(6)An interim supervision order ceases to have effect when the application for an extended supervision order is finally determined or discontinued.
[9] While s 107FA does not prescribe a particular test for the granting of an ISO, this Court has held that the test is whether “albeit on a provisional basis and often on untested evidence, that the statutory criteria for an ESO are made out.”8 I agree with that approach, as it accords with the approach taken by the Supreme Court to imposition of interim public protection orders.9 The discretion to impose an ISO must be exercised consistently with the rights and freedoms guaranteed by the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).10 As the Court of Appeal has noted in the context of ESOs, this requires a straightforward proportionality analysis, involving balancing the rights in issue against the statutory objectives of the legislation. The Court of Appeal described the approach required as follows:11
[31] Applying this approach to the ESO regime, if the statutory criteria are met, a court must balance the right not to be subject to a second penalty (that is, being subject to an ESO when a person has served their sentence for a violent offence) against the statutory purpose to protect the public from the
8 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14]. In so holding, Muir J departs from the view of Davidson J in Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [37] that “the Court need not be satisfied to the same extent as is required when considering whether to make an ESO”. The approach in Ihimaera has been followed by this Court in Chief Executive of the Department of Corrections v Turi [2021] NZHC 1429 at [10]; Chief Executive of the Department of Corrections v Gray [2021] NZHC 2364 at [17]; Chief Executive of the Department of Corrections v Anae [2022] NZHC 1753 at [8]; and Department of Corrections v Rawiri [2023] NZHC 2943 at [22].
9 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114.
10 Department of Corrections v Thorpe [2017] NZHC 2559 at [14].
11 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 at [30]–[31].
very high risk that an offender will commit a relevant violent offence. Put more simply in R (CA586/2021) v R, and as adopted in Wilson v Department of Corrections, “strong justification” is required for an ESO and this is the “lens” through which this Court must assess whether the Judge erred in making the order.
[10] The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.12 Section 107I(2) provides that the Court may make an ESO if satisfied that:
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b)either or both of the following apply:
(i)there is a high risk that the offender will in future commit a relevant sexual offence:
(ii)there is a very high risk that the offender will in future commit a relevant violent offence.
[11] Section 107IAA sets outs the matters the Court must be satisfied of before determining there is a high risk under s 107I(2)(c)(i):
107IAA Matters court must be satisfied of when assessing risk
(1)A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b)has a predilection or proclivity for serious sexual offending; and
(c)has limited self-regulatory capacity; and
(d)displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse for past offending:
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
…
12 Parole Act 2002, s 107I(1).
[12] The Court may receive and take into account any evidence or information it thinks fit for determining the application, regardless of whether it would be formally admissible.13 The Court is also entitled to take into account past sexual conduct, including unproven allegations and conduct that does not actually constitute an offence.14
Conditions of an ISO
[13] Section 107FA(3) of the Parole Act empowers the Court to impose any standard conditions under s 107JA, or special conditions that the Parole Board may impose under an extended supervision order pursuant to s 107K. Under s 107K the Parole Board may only impose special conditions for the following purposes set out in s 15(2):
A special condition must not be imposed unless it is designed to—
(a)reduce the risk of reoffending by the offender; or
(b)facilitate or promote the rehabilitation and reintegration of the offender; or
(c)provide for the reasonable concerns of victims of the offender; or
(d)comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under section 107IAC, to impose an intensive monitoring condition.
[14] The following principles apply to the Court’s consideration of conditions on an application for an ISO:
(a)There must be a nexus between the perceived risk posed by the offender and the effectiveness of a proposed condition.15
(b)The conditions should be the least restrictive conditions necessary to adequately mitigate the risk of future offending until the ESO hearing.16
13 Section 107H.
14 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [42]–[43].
15 Chief Executive of the Department of Corrections v Martin, above n 8, at [49]; and Chief Executive of the Department of Corrections v Kepu [2021] NZHC 2745 at [55].
16 Chief Executive of the Department of Corrections v Turi, above n 8, at [18].
(c)To warrant the significantly more onerous conditions of an interim supervision order, the risk posed by the offender should not be adequately managed by way of release conditions.17
[15] There is no dispute that if the threshold for an ISO is met, the standard conditions under s 107JA should apply. In any case, they mirror (to a more limited extent) the release conditions that Mr Hartley is presently subject to.
[16] What is in contention are the following special conditions the Department seeks:
(a)Not to possess or use any electronic device capable of accessing the internet, other than a device that has been approved in writing by a Probation Officer.
(b)To comply with the requirements of full residential restrictions and remain in the area defined by a Probation Officer at the Toruatanga Residence, Kirk Road Templeton, Christchurch, at all times unless you have the prior written approval of a Probation Officer, or unless you leave the residence for the following reasons:
(i)to seek urgent medical or dental treatment;
(ii)to avoid or minimise a serious risk of death or injury to you or any other person; or
(iii)for humanitarian reasons approved by a Probation Officer.
The health assessment report
[17] The Department has filed a health assessment report dated 4 April 2024 alongside its application for an ESO. Dr Justine Croxen, a Clinical Psychologist, assessed Mr Hartley and reached the following conclusions:
Mr Hartley's serious sexual offending spans over 15 years and has included targeted victim selection (with additional vulnerabilities), sophisticated, focused, and prolonged grooming behaviour, significant planning, and multiple adolescent victims with overlapping timelines. He is assessed as aa [sic] above average risk of committing a relevant sexual offence when in the community. He has demonstrated an intense drive and/or urge to commit a relevant sexual offence that appears pervasive and enduring, coupled with a clear (though not exclusive) predilection and proclivity for sexual offending against vulnerable adolescents over a prolonged period. Mr Hartley has limited self-regulatory capacity to support risk mitigation in the community
17 Chief Executive, New Zealand Department of Corrections v Popata [2017] NZHC 1408.
without external oversight. He has consistently categorically denied his sexual offending, thus has not evidenced responsibility or remorse for his sexually abusive behaviour.
He appears to have limited understanding of (or if he does, rationales and justifies his behaviour in order to prioritise his needs above others), or concern regarding the harm to his victims. Due to his categorical denial, he has been ineligible for criminogenic treatment and throughout his lengthy prison sentence his focus has been solely upon legal challenge to his convictions. Mr Hartley presents with a high number of dynamic risk factors that reflect his high/above average level of risk, and if they remain unaddressed, suggest that this risk will remain at a high level over the longer term. Mr Hartley has not demonstrated that he is willing or able to actively manage his own risk, has declined to engage in release planning, does not have a relapse prevention plan and there is little prospect of him being able to meaningfully engage in treatment. Therefore, risk reduction is likely to be more successful when supported by external monitoring and management of Mr Hartley’s behaviour.
Assessment of arguments and decision
[18] I have considered Mr Hartley’s criminal history, Court decisions relating to his previous offending, and Dr Croxen’s report filed in support of the ESO application. I acknowledge that the information before me has not been subject to cross- examination. My assessment at this interim stage is limited by the untested nature of the evidence and therefore provisional (as required).
Does Mr Hartley have, or has he had, a pervasive pattern of serious sexual or violent offending?
[19] For the purposes of considering the application for an ISO, I am satisfied on a provisional basis that Mr Hartley has a pervasive pattern of serious sexual offending. Dr Croxen’s conclusions include that Mr Hartley “has demonstrated an intense drive and/or urge to commit a relevant sexual offence that appears pervasive and enduring, coupled with a clear (though not exclusive) predilection and proclivity for sexual offending against vulnerable adolescents over a prolonged period”.
[20] Mr Hartley’s sexual offending spans over 15 years and has not abated despite the previous imposition of imprisonment in 1996 for serious sexual offending in 1992. He appears undeterred by the prospect of sanction as he went on to commit further serious sexual offending despite being subject to the Department’s oversight, and his behaviours were unaffected by his access to other sexual outlets –– having maintained adult relationships during the relevant periods of his offending.
Is there a high risk that Mr Hartley will in the future commit a relevant sexual offence?
Does Mr Hartley display an intense drive, desire, or urge to commit a relevant sexual
offence?
[21] As already noted, Dr Croxen concluded that Mr Hartley has an intense drive to commit a relevant sexual offence. She also concluded that “Mr Hartley presents with a high number of dynamic risk factors that reflect his high/above average level of risk, and if they remain unaddressed, suggest that this risk will remain at a high level over the longer term”.
[22] Mr Hartley has employed sophisticated grooming behaviours, targeting particularly vulnerable victims over lengthy periods of time prior to progressing to sexually offend against them. As Dr Croxen notes, his grooming behaviours appear to be underpinned by a pervasive high sex drive, sexual preoccupation, deviant sexual interests, and drive for sexual gratification with disregard for the wellbeing or safety of others. Given the extent of his offending, his historical offending, the number of victims involved, and the protracted nature of the offending against the victims, I consider that for the purpose of the ISO application, Mr Hartley displays an intense drive, desire, or urge to sexually offend.
Does Mr Hartley have a predilection or proclivity for serious sexual offending?
[23] I am provisionally satisfied that Mr Hartley has a predilection or proclivity for serious sexual offending. As already noted, Dr Croxen considers he clearly has a predilection and proclivity for sexual offending against vulnerable adolescents. I agree. Mr Hartley’s offending demonstrates a particular predilection towards grooming young females and males to a point where he is able to exploit and manipulate them into doing as he pleases. He displays a consistent preference and concerted effort to offend by grooming teenagers over a long period of time.
Does Mr Hartley have limited self-regulatory capacity?
[24] I am also provisionally satisfied that for the purposes of the ISO that the evidence supports a conclusion that Mr Hartley has limited self-regulatory capacity.
As Dr Croxen notes, “Mr Hartley has limited self-regulatory capacity to support risk mitigation in the community without external oversight.”
Does Mr Hartley display a lack of acceptance of responsibility or remorse for past
offending and/or an absence of understanding for or concern about the impact of his
sexual offending on actual or potential victims?
[25] Mr Hartley has not engaged in treatment programmes nor accepted the harm he caused to the victims. He firmly denies all the sexual offending for which he was convicted and does not believe he has engaged in any wrongdoing. Dr Croxen’s report records Mr Hartley’s belief that he is a victim of a miscarriage of justice and has adopted a narrative that his victims lied and conspired against him. It is evident that he lacks acceptance of any responsibility for his offending, insight into the harm he has caused and is devoid of remorse or empathy for the victims he exploited.
Conclusion
[26] For these reasons, I am provisionally satisfied that Mr Hartley meets the conditions for the making of an ESO under s 107I(2), for the purposes of granting an ISO. Although not conceding the point, Ms Goodlet did not seriously contest that this is a reasonable conclusion given the material currently before me (I note that Ms Goodlet is obtaining an expert report and the position may change at the substantive ESO hearing). Therefore, the real issue for determination is whether the two contested special conditions are necessary.
The special conditions
Electronic devices
[27] The Department seeks to prohibit Mr Hartley from accessing unapproved internet-capable devices on the basis that Mr Hartley used devices to groom children (for example, by allowing them to set up social media accounts, play games, and exposing them to pornography), and to capture and store sexual images of them. The Department notes that Mr Hartley’s current electronic device release condition puts the onus on a probation officer to ask Mr Hartley about his use of such devices whereas the proposed condition adds extra protection by putting the onus on Mr Hartley to first
obtain approval to possess such devices. The Department submits that this will ensure Mr Hartley only possesses suitable devices and enables the Department to keep a record of his devices to facilitate ongoing monitoring.
[28] I accept that there is a legitimate concern that should Mr Hartley be able to access the internet, it would enable access to potential future victims. Mr Hartley’s current parole conditions include the following condition:
Upon request, to make available to a Probation Officer, or his or her agent, any electronic device capable of accessing the internet that is used by you, or is in your possession or control, for the purpose of monitoring your use of the device.
[29] On a provisional basis, I accept the Department’s submission that the special condition sought is necessary to address the risk of Mr Hartley using electronic devices to groom or record potential victims given his history of using them for these purposes. The condition will allow only suitable devices to be in his possession and to facilitate ongoing monitoring through record keeping. I also note the limited further intrusion on Mr Hartley’s rights due to the amendment. It strikes the appropriate balance between Mr Hartley’s rights and the legislative purpose of community protection.
Residential restrictions
[30] The Department seeks residential restrictions on the basis of Mr Hartley’s lack of treatment whilst in custody; his untested ability to self-manage risk in the community; that risk reduction will be largely reliant on external monitoring (according to Dr Croxen); and residential restrictions will support a structured and gradual return to the community. Mr Hartley’s probation officer will remain able to plan and support outings deemed suitable.
[31] Ms Goodlet submits that residential restrictions are not necessary and there is insufficient nexus between the condition and Mr Hartley’s offending. She notes the following paragraph from the Parole Assessment Report for the release hearing:
Partial Residential Restrictions (PRR) have not been considered at this time as the offending took place in multiple locations and via grooming through friends and associates. A such PRR would not mitigate risk moving forward.
[32] Ms Goodlet submits that the Parole Board was (or should have been) seized of all relevant information in May (as was the Department), and there has been no change in circumstance, nor any breach of parole, in the interim. She submits that the Parole Board was well placed to determine the appropriate conditions given its expertise in this area and did not consider either of the special conditions necessary, nor did the Department at the time. There is no explanation as to why the Department has changed its stance other than its reliance on Dr Croxen’s report, which had been prepared prior to the Parole Board hearing and was available to the Department. Ms Goodlet submits that if the Department considers there is a need for a variation of the release conditions, it should apply to the Parole Board to vary them.
[33] Counsel could not tell me whether Dr Croxen’s report was available to the Parole Board when it determined Mr Hartley’s release conditions. However, it seems unlikely that it was, given it is addressed to the National Commissioner of Corrections Services, addresses the criteria for making an ESO, and is not referred to in the Board’s decision. I agree with Ms Goodlet that the Department’s change in position regarding the appropriate conditions following the Parole Board hearing is unexplained given Dr Croxen’s report was available to the Department prior to the Board hearing. However, I must assess the application on its merits based on the evidence before me. For whatever reason, on review of the situation in light of Dr Croxen’s report the Department has changed its position.
[34] Mr Hartley resides at Toruatanga Residence. This residence is located on Department land adjacent to, but separate from, Christchurch Men’s Prison, which has been described by the courts as “a community hub and three standalone houses”.18
[35] I note that residential restrictions impose a significant constraint upon Mr Hartley’s liberty and amount to detention for the purposes of ss 22 and 23 of the Bill of Rights Act. The Court ought to exercise its discretion consistently with s 18 (freedom of movement) and s 22 (right not to be arbitrarily detained) under the Bill of
18 Coleman v Chief Executive of the Department of Corrections [2020] NZCA 210 at [15]; and Woods v Police [2020] NZSC 1421 at [27]. I have been provided with photographs of the residence and have been told that it has gates, but these are never locked.
Rights Act.19 As already noted, this requires a proportionality analysis involving balancing the rights in issue against the statutory objectives of the legislation.
[36] The issue here is whether, given Mr Hartley’s high risk of committing a relevant offence, his parole conditions (prohibiting him from entering particularly high-risk areas) are sufficient, or whether residential restrictions are necessary to serve the purposes in s 15(2).
[37]Mr Hartley’s parole conditions include:
(a)Not to have contact or otherwise associate, with a person under the age of 16 years, directly or indirectly, unless you have the prior written approval of a Probation Officer, or unless you are under the supervision and in the presence of an adult approved in writing by a Probation Officer.
(b)Not to enter the Manawatu, Porirua or Wellington central areas as defined by a Probation Officer in writing, unless you have the prior written approval of a Probation Officer.
(c)Not to enter or loiter near any school, early childhood education centre, park, library, swimming pool, other recreational facility, church, or other area specified in writing by a Probation Officer, unless you have the prior written approval of a Probation Officer, or unless an adult approved by a Probation Officer in writing, is present.
(d)To comply with the requirements of electronic monitoring and provide access to the specified residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.
(e)To submit to electronic monitoring as directed by a Probation Officer in order to monitor your compliance with any conditions relating to your whereabouts.
19 The Supreme Court in Woods considering s 93(3A) of the Sentencing Act 2002 (albeit in a different context) noted that conditions essentially amounting to residential restrictions –– requiring the appellant to live at an approved address coupled with an electronically monitored 12-hour curfew
–– imposed a significant constraint upon the appellant's liberty and amounted to detention for the purposes of s 3 of the Habeas Corpus Act 2001 and ss 22 and 23 of the New Zealand Bill of Rights Act 1990. The Court ultimately held that the combination of special conditions imposed, amounting to residential restrictions, was unlawful as the Court had no such power to impose such conditions following a short-term period of imprisonment under s 93.
[38] Residential restrictions are defined in s 4 of the Parole Act as meaning the special conditions described in s 33 of the Act, which provides:
33 Residential restrictions
(1)The Board may impose on an offender the special conditions referred to in section 15(3)(ab) (residential restrictions) if the residence in which it is proposed that the offender reside is in an area in which a residential restriction scheme is operated by the chief executive.
(2)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:
(e)to keep in his or her possession the licence issued under section 53(3) and, if requested to do so by a constable or a probation officer, must produce the licence for inspection.
…
[39] In any case where the residential restrictions imposed require the individual to be at the residence at all times,20 the offender may leave the residence with the approval of the probation officer to: comply with special release conditions; to seek or engage in employment; attend training or other rehabilitative or reintegrative activities or programmes; attend a restorative justice conference or other process relating to the offender’s offending; carry out any undertaking arising from any restorative justice process; or for any other purpose specifically approved by the probation officer.21
20 Parole Act, s 33(2)(c)(ii).
21 Section 33(5).
[40] I am provisionally satisfied, by a narrow margin, that the residential restrictions sought are necessary pending final determination of the ESO in order to reduce the level of risk Mr Hartley poses.22 I reach this view due to: Mr Hartley’s concerningly high level of risk and the need for external oversight to mitigate that risk due to his inability to regulate it; the community protection purpose of the legislation; and the relatively short time the condition will be in place before it will be subject to full reconsideration at the ESO application hearing in November. Although Mr Hartley is currently subject to electronic monitoring to ensure compliance with his parole conditions, I consider his level of risk requires a probation officer to be informed in advance of where he intends to go and for what purpose before he leaves his residence and enters the community (but I expect that approval would not be unreasonably withheld).
[41] I have not overlooked Ms Goodlet’s submission that Dr Croxen’s report does not directly address the need for the special conditions and was based on Mr Hartley’s release plan at the time of her report, which did not include the special conditions. However, the appropriateness of the conditions is ultimately for my assessment based on all the information before me. The combination of Mr Hartley’s offending history and Dr Croxen’s risk assessment provisionally satisfies me that the conditions are necessary. As already noted, the Court will reconsider that provisional assessment at the hearing of the ESO application. The question of whether the special conditions are necessary can be fully explored at that stage, including in evidence from Dr Croxen or any expert called by Mr Hartley.
[42] Finally, the Court can only impose special conditions on an ISO under s 107F if they are conditions the Parole Board could have imposed under s 107K. Therefore, the question arises whether the Court is required to consider a report from the Department addressing the matters set out in s 34 before imposing a residential restriction (s 34 provides that the Parole Board must consider such a report before imposing residential restrictions). Ms Goodlet accepted that it would be an exercise in semantics to read the requirement that the Parole Board receive such a report as requiring the Court to receive a separate report addressing the matters required under
22 Section 15(2)(a).
s 34 if the Department addresses them in the ISO application. However, Ms Goodlet submits that the fact no separate report has been provided demonstrates the Department’s lack of proper consideration of the need for a residential condition. Although, as already noted, there are unexplained aspects to the Department’s change in stance, I consider that the ISO application sufficiently covers the matters required under s 34.
[43] I therefore grant the application for an ISO on the conditions sought. Pursuant to s 107FA(6), the ISO will cease to have effect when the application for an ESO is finally determined.
La Hood J
Solicitors:
Crown Solicitor, Whanganui
D M Goodlet, Whanganui for Respondent
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