Department of Corrections v O'Reilly

[2019] NZHC 2160

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-18

[2019] NZHC 2160

BETWEEN

DEPARTMENT OF CORRECTIONS

Applicant

AND

KENNETH ROBERT O’REILLY

Respondent

Hearing:	29 August 2019
Appearances:	A W M Britton for the Applicant J M Robertson for Respondent
Judgment:	30 August 2019

JUDGMENT OF COOKE J

(Variation to interim special conditions)

[1]    By a judgment dated 26 July 2019 I granted the application made by the Department for the Extended Supervision Order (ESO) pursuant to s 107F of the Parole Act 2002 (the Act).1 By application dated 19 August 2019 the Department has now applied to vary the special conditions of the ESO pursuant to s 107IA(5) of the Act. The application is supported by an affidavit of Leslie Crate dated 20 August 2019. This judgment should be read together with my earlier judgment.

What is sought and why?

[2]    Mr O’Reilly has recently been released and is presently in sheltered accommodation. He is not currently living with his wife although they want to resume living together. In effect the Department seek a variation to the special conditions to prevent Mr O’Reilly being able to reside in the Wairarapa, at least without the

1      Department of Corrections v O’Reilly [2019] NZHC 1784.

DEPARTMENT OF CORRECTIONS v O’REILLY [2019] NZHC 2160 [30 August 2019]

permission of a Probation Officer. The interim special conditions currently prevent Mr O’Reilly entering the Masterton district, as defined by a map provided by a Probation Officer, without the prior approval of his Probation Officer. The variation sought would extend that condition to cover the whole of the Wairarapa. The application is opposed.

[3]    I received written submissions from counsel, and also had the benefit of constructively discussing the issues with them at the hearing.

Jurisdiction

[4]    As an initial point, I do not accept Ms Robertson’s argument that the Court does not have jurisdiction to deal with the application. Under s 107IA(2) the Court may only impose special conditions on an interim basis if there is not sufficient time to impose special conditions at a Parole Board hearing. I concluded that was the case when I dealt with the matter in the Court’s earlier judgment. Having done so it seems to me that I now have jurisdiction to vary those conditions under s 107IA(5) before the Parole Board is able to consider the matter. For the reasons I will address in greater detail below, I anticipate that the Parole Board will fully consider the matter when it is next able to, but as I understand it, they will not be able to do so until October.

[5]    There was also a suggestion that the Court could only vary the conditions of the ESO if there had been some change in circumstances. That seems to arise because of the observation made by the Supreme Court in Wilson v Chief Executive of the Department of Corrections that such a variation could be made when there had been such a change.2 I do not read that as a jurisdictional requirement, however, but rather an observation that such a variation could be made in such circumstances. The imposition of an ESO, and the conditions upon which it is to operate, requires a careful balancing of considerations, and it would not be appropriate to add jurisdictional hurdles when they are not prescribed when considering what the appropriate orders should be.

[6]For these reasons I consider the Court has jurisdiction to grant the application.

2      Wilson v Chief Executive of the Department of Corrections [2013] NZSC 78 at [8].

Should the application be granted?

[7]    The central considerations that have given rise to the application are connected with the strong community concern associated with Mr O’Reilly’s return to the Wairarapa. The affidavit of Leslie Crate annexes media material in that connection. I accept that the concerns of the community are a relevant consideration when dealing with matters of this kind.

[8]    Two considerations are central in determining whether an ESO should be imposed, and what the special conditions of the ESO should be. They are the need to protect the community and the reintegration of the offender. These considerations are not inherently inconsistent with one another as the effective reintegration of an offender can be the most effective way of protecting the community. What is involved is a careful balancing of considerations, and the fashioning of special conditions to achieve the desired outcome. Such orders must also be made in a rights compliant way.3

[9]    Whilst the concerns of the community as expressed in media material will be relevant, care should also be taken to ensure that the most desirable outcome, including in terms of the protection of the public, is not prejudiced by undue immediate publicity and media attention. It remains a matter of careful balancing of all relevant considerations to achieve the desired result.

[10]   In the present case the existing condition preventing Mr O’Reilly entering the Masterton district means that Mr and Mrs O’Reilly will not be able to reside together there. This already has the effect of effectively requiring Mrs O’Reilly to move from her home. It is highly desirable that Mr and Mrs O’Reilly live together, as this will be very important in assisting Mr O’Reilly effectively reintegrating into the community in a way that minimises risk. That involves Mrs O’Reilly moving, which is an onerous requirement, but that is necessary for the protection of the public.

[11]   There  have  been  discussions  between   the   Department   and   Mr and  Mrs O’Reilly relating to alternative places for them to live. For the moment I do not

3      Te Whatu v Department of Corrections [2017] NZHC 3233, [2018] 2 NZLR 822 at [27]–[34].

think it is desirable that the Court should add a condition which prevents consideration of the O’Reillys residing in the Wairarapa region. It seems to me that the discussions between the O’Reillys and the Department should continue to involve seeking to find a suitable address, either in the Wairarapa or outside of the Wairarapa. I understand that Mr O’Reilly is presently able to stay where he is for a three month period, which corresponds to the date at which the Parole Board can next consider the situation. The discussions should continue in the meantime in an attempt to find common ground. It may become necessary for the Parole Board to then consider the matter in detail, but by that stage more detailed discussions between the parties can take place and specific addresses identified, with the considerations that are relevant to those addresses identified. The Parole Board can then consider whether any variations to the conditions are appropriate. I do not want to prejudice those discussions by ruling out any consideration of an address in the Wairarapa. That would seem to me to be inconsistent with the task of identifying the most appropriate conditions of the ESO.

[12]   As part of the application, however, the Department has identified that the family members of one of the victims reside in Carterton. Although I do not have details about those family members, I am prepared to grant a variation to the interim special conditions under s 107IA(5) to add the following condition:

(a)Not to enter the Carterton district as defined by a map provided by a Probation Officer, without the prior written approval of your Probation Officer.

[13]   This condition strikes me as being appropriate, at least in the interim, to recognise the legitimate concerns of those affected by Mr O’Reilly’s offending, and to assist in identifying a planned successful reintegration. I would expect, however, that all of the special conditions, including the one I have just imposed, may be considered by the Parole Board when tailoring an appropriate set of conditions.

[14]   Accordingly the application to vary the conditions is granted to the extent referred to in paragraph [12] above but is otherwise dismissed. The orders are made on the understanding that all the conditions of the ESO will be reviewed by the Parole Board.

Cooke J

Solicitors:

Luke Cunningham Clere, Wellington for Applicant Quay Legal, Wellington for Respondent