Department of Corrections v McCord
[2017] NZHC 948
•11 May 2017
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S
203 OF THE CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-206 [2017] NZHC 948
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
EUGENE HAPI MCCORD Respondent
Hearing: On the papers Counsel:
Z R Hamill for Applicant
A F McLean for RespondentJudgment:
11 May 2017
JUDGMENT (No 2) OF PAUL DAVISON J
This judgment was delivered by me on 11 May 2017 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland
Public Defence Service, Auckland
DEPARTMENT OF CORRECTIONS v MCCORD [2017] NZHC 948 [11 May 2017]
[1] In a judgment delivered on 13 April 2017 I granted an application for an extended supervision order in relation to the respondent Mr McCord for a term of 10 years.1 I also made an order pursuant to s 107IAC of the Parole Act 2002 (the Act) requiring the Parole Board to impose an intensive monitoring condition on Mr McCord for a duration of 12 months.
[2] Following delivery of my judgment counsel for the applicant filed a memorandum noting that at the hearing the applicant had also sought the imposition of interim special conditions pursuant to s 107IA as detailed in a document entitled “Interim conditions to apply to extended supervision order”. As that aspect of the application was not dealt with in my judgment, the applicant sought an order imposing those interim special conditions. Counsel for the applicant notes that the interim special conditions sought to be imposed are the same conditions as those that may be imposed by the Parole Board under s 107K of the Act and include residential and non association conditions that go beyond the standard conditions of an ESO.
[3] Pursuant to s 107IA(2) the Court may make special interim conditions only if satisfied that there may not be sufficient time before the ESO comes into force for the Board to determine which (if any) special conditions should be imposed on the respondent. Accordingly, the imposition of interim special conditions enables the Court to ensure that any interval of time between the commencement of an ESO being made by the Court and the Parole Board convening to consider and, where appropriate, impose special conditions under s 107K is covered.
[4] Counsel for the applicant explains that it is anticipated that the Parole Board hearing to consider the imposition of special conditions on the ESO made by my judgment of 13 April 2017 is likely to take place in at least two to three months’ time. Counsel submits that in the absence of interim special conditions there will therefore be an interval of at least two or more months before the intensive monitoring condition and other special conditions that the Parole Board might
impose can be imposed and take effect. Accordingly the applicant seeks an order
1 Department of Corrections v McCord [2017] NZHC 744.
imposing the interim special conditions set out in the “interim conditions” document pursuant to s 107IA of the Act.
[5] In response to the memorandum of counsel for the applicant, counsel for the respondent has also filed a memorandum. Ms McLean submits that, as the respondent’s current ESO is in effect until 29 March 2018, there is sufficient time for the Parole Board to consider any appropriate special conditions as the ESO made pursuant to my judgment of 13 April 2017 will only come into force at the expiration of the current ESO, namely on 30 March 2018.
[6] Further, Ms McLean submits that the respondent is already effectively subject to most of the conditions sought by the applicant under the terms of his current ESO including GPS monitoring. Counsel submits that the establishment of 24 hour person-to-person monitoring would be the only new or additional condition arising from the interim special conditions sought by the applicant. Counsel further submits that in the circumstances there is sufficient supervision and oversight of the respondent under the conditions of the current ESO and that in due course the appropriate special conditions to be attached to the new ESO can be made by the Parole Board.
Decision
[7] For the applicant it is submitted that the ESO made pursuant to my judgment of 13 April 2017 has superseded and replaced the previous ESO and is now in force in accordance with s 107L(1)(b) of the Act. Section 107L provides as follows:
Commencement and expiry of extended supervision order
(1) An extended supervision order comes into force,—
(a) if the order is made while the offender is detained under a sentence of imprisonment or liable to be recalled, on the offender's statutory release date; or
(b) if the order is in respect of an offender who is already subject to an extended supervision order, on the expiry of that order, unless an earlier date is specified in the new order; or
(c) in any other case,—
(i) on the date that the order is made; or
(ii) if a different date is specified in the order, on the specified date.
(1A) If an offender is released early under section 52 and the offender is subject to an extended supervision order made in the circumstances described in subsection (1)(a), then —
(a) the extended supervision conditions and any special conditions (including any special conditions imposed under section 107IA) come into force on the offender's actual release date; but
(b) time does not begin to run on the order until the offender's statutory release date.
(2) Any standard release conditions to which the offender is subject when the extended supervision order comes into force are discharged.
(2A) Any special conditions (including any special conditions imposed under section 107IA) to which the offender is subject when an extended supervision order comes into force continue in force —
(a) until the date that is 3 months after the date on which the extended supervision order comes into force; or
(b) if an application is made to the Board seeking the imposition of special conditions under section 107K within that 3- month period, until the Board—
(i) imposes 1 or more of those conditions; or
(ii) imposes any other special condition that the Board is entitled to impose under section 15; or
(iii) declines to impose any special conditions.
(3) An extended supervision order expires on the earliest of the following:
(a) the date on which the order is cancelled:
(b) the date on which the term of the order expires:
(c) if the offender becomes subject to a new extended supervision order before the expiry of an earlier extended supervision order, the commencement of the new extended supervision order.
[8] In my judgment of 13 April 2017 I granted the application made by the applicant. That application was for an ESO commencing on the date of the judgment
making the ESO. Accordingly, pursuant to s 107L(1)(b), the new ESO replaced the previous ESO.
[9] As further noted by counsel for the applicant, pursuant to s 107L(2A) of the Act any special conditions to which the offender is subject when an ESO comes into force, continue in force until the date three months after the date on which the ESO order comes into force, or where an application is made to the Parole Board seeking the imposition of special conditions under s 107K, within that three month period. This provision does not, however, apply to the intensive monitoring conditions ordered by the Court but which were not previously special conditions applicable and operating under the earlier ESO. Such special conditions could only come into effect by way of interim special conditions ordered by the Court under s 107IA or otherwise when imposed by the Parole Board pursuant to s 107K.
[10] Section 107IA empowers the Court when making an ESO and on application by the Chief Executive, to make an order imposing on the offender any special conditions that the Parole Board may impose under s 107K where satisfied that there may not be sufficient time before the ESO comes into force for the Board to determine which (if any) special conditions should be imposed upon an offender. Having regard to the situation whereby the Parole Board hearing to consider the imposition of special conditions to apply to the ESO made on 13 April 2017 is likely to take place in two to three months’ time, I consider that it is necessary and appropriate to make an order imposing the interim special conditions as detailed in the annexure to this order.
[11] Having regard to the interval of two to three months that may elapse before the Parole Board is able to consider the imposition of special conditions, I am satisfied that there is not sufficient time before the ESO made on 17 April comes into force for the Board to determine which if any special conditions should be imposed and in those circumstances I consider it is appropriate to make an order pursuant to s
107IA to impose interim special conditions in terms of annexure 1 hereto.
Paul Davison J
INTERIM CONDITIONS TO APPLY TO EXTENDED SUPERVISION ORDER
Section 1071A, Parole Act 2002
Special Conditions:
(1)To be subject to intensive monitoring and to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person- to-person monitoring.
(2)To reside at an address as directed by a Probation Officer and not to move from that address, or any subsequent address, without the prior written approval of a Probation Officer.
(3)Not to be away from your approved address between the hours of 7:00pm and 5:00am daily unless you have the prior approval of your Probation Officer.
(4)Not to undertake any education/training courses, sporting/social activities or employment (paid or unpaid) without the prior written approval of the Probation Officer.
(5)Not to undertake, change or terminate; any employment without the prior written approval of a Probation Officer.
(6) To engage with Community Mental Health Services and your treatment providers to the satisfaction of your Probation Officer.
(7)Take, with your consent, any prescription medication in accordance with any directions given by a health professional.
(8)If directed by your Probation Officer, to undertake and complete any other treatment or counselling to the satisfaction of your Probation Officer.
(9)If directed, attend for a psychological assessment. Attend and complete any treatment or counselling recommended by the assessment to the satisfaction of your Probation Officer.
(10)To submit to electronic monitoring (GPS) as directed by the probation officer in order to monitor your compliance with any condition(s) relating to whereabouts.
(11)To comply with the requirements of electronic monitoring (GPS) and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic equipment as directed by the Probation Officer.
(12) Not to enter any liquor stores or licensed premises including bars, pubs, and nightclubs, with the exception of supermarkets and dairies which you may visit only for the purpose of purchasing items other than alcohol.
(13) Not to enter South mall, located at 185 Great South Road, Manurewa. (14) Not to possess or consume alcohol or illicit drugs.
(15) Not to possess, consume or inhale solvents or glue.
(16) Not to contact, or associate with, directly or indirectly, [the complainant S].
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