Deputy Chief Executive of the Department of Corrections v McCorkindale
[2020] NZHC 2484
•22 September 2020
NOTE: SUPPRESSION ORDERS MADE BY THE HIGH COURT IN S2/99 (SEE FOOTNOTE 3) REMAIN IN FORCE. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-409-1237
[2020] NZHC 2484
UNDER the Public Safety (Public Protection Orders) Act 2014 IN THE MATTER OF
an application for a Public Protection Order
BETWEEN
THE DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
ROBERT JOHN MCCORKINDALE
Respondent
Hearing: 10 August – 11 August 2020 Counsel:
C J Boshier for the applicant M Starling for the respondent
Judgment:
22 September 2020
JUDGMENT OF CULL J
Contents
Background.............................................................................................................. [3]
Public Protection Orders...................................................................................... [10]
Does Mr Mccorkindale meet the s 13 test?.......................................................... [15]
What is the least restrictive option available to manage the risk?.................... [27]
What is the alternative option to a PPO?............................................................ [33]Is the ESO, with the special conditions, adequate to mitigate
Mr McCorkindale’s risk?..................................................................................... [47]
Is the ESO, with the special conditions, unlawful?............................................. [65]2014 legislative change....................................................................................... [72]
Is there intensive monitoring?............................................................................. [76]
Is the care condition unlawful?............................................................................ [93]
THE DEPARTMENT OF CORRECTIONS v MCCORKINDALE [2020] NZHC 2484 [22 September 2020]
Mr McCorkindale’s consent............................................................................... [103]
Conclusion............................................................................................................ [109]
Result..................................................................................................................... [111]
Costs...................................................................................................................... [113]
[1] A public protection order (PPO) was made against Mr McCorkindale by the High Court in 2017 under the Public Safety (Public Protection Orders) Act 2014 (the Public Safety Act).1 The Court of Appeal quashed the PPO in 2019 and directed that the PPO application be reconsidered by the High Court.2 This decision deals with the reconsideration of the Department of Corrections’ application for a PPO in respect of Mr McCorkindale.
[2] Mr McCorkindale opposes the application. He wants to return to and live at the Salisbury Street Foundation, which is supported and secure accommodation in the community. He spent 13 months there before the PPO order of 17 October 2017 was made. The director of the Salisbury Street Foundation, Ms Voice, supports Mr McCorkindale’s wish and is offering him a lifetime placement in the Foundation’s high security house.
BACKGROUND
[3] Mr McCorkindale is 66 years old. He has congenital hypothyroidism which affected his brain development from birth. He has been assessed as being in the borderline range of intellectual functioning and has limited self-regulatory ability and capacity for empathy. He is described as autistic, but not with autism spectrum disorder which is a mental disorder. He is also described as institutionalised, having been in supported or institutionalised care, including prison, for more than 20 years.
[4] In May 1999, Mr McCorkindale was sentenced to seven years' imprisonment having pleaded guilty to five charges of indecent assault on two girls aged four and six.3 He served the entirety of this sentence. He has not reoffended, having been
1 Deputy Chief Executive of the Department of Corrections v McCorkindale [2017] NZHC 2536 [High Court Decision].
2 McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369 [Court of Appeal Decision].
3 R v McCorkindale HC Dunedin S2/99, 28 May 1999.
managed in the community under two successive extended supervision orders (ESOs), each of 10 years' duration.4 Mr McCorkindale is currently subject to the second ESO, which was imposed on 29 April 2016.
[5] The background to the ESOs and their effect was succinctly summarised in the recent Court of Appeal decision concerning the matter:5
[5] The first ESO was made upon Mr McCorkindale's release from prison on 17 January 2006. Under the terms of this order, he was closely monitored in various residential settings under what was known as an Individual Residential Reintegration Programme (IRRP) which allowed for full-time placement in the care of an approved agency.
[6] Following the introduction of the Parole (Extended Supervision Orders) Amendment Act 2014 which coincided with the introduction of the PPO regime, IRRP conditions were no longer permitted.[6] However, the Parole Board was empowered to require a person to submit to being accompanied and monitored for up to 24 hours a day (intensive monitoring) for a maximum period of 12 months.
[7] Mr McCorkindale consented to a second ESO being made on 29 April 2016 including an intensive monitoring condition for 12 months. Mr McCorkindale was successfully managed in terms of this order at a facility provided by the Salisbury Street Foundation in Christchurch where he was monitored on a person-to-person basis 24-hours a day. …
[6] Despite Mr McCorkindale’s consent to intensive monitoring, an intensive monitoring condition, requiring an offender to submit to being accompanied and monitored for up to 24 hours a day, cannot continue beyond 12 months.7 Further, any condition requiring Mr McCorkindale’s participation in a programme must not require him to reside with any person or agency in whose care he is placed.8 So the conditions previously imposed under the earlier ESO, which were demonstrably sufficient to manage Mr McCorkindale’s risk while allowing him to live in the community, were no longer available as a result of the 2014 amendments to the legislation. This prompted Corrections’ original application for a PPO in December 2016.
4 These orders were made by the High Court under pt 1A of the Parole Act 2002.
5 Court of Appeal Decision, above n 2.
6 IRRP conditions had the effect of allowing 24-hour supervision and monitoring of the highest risk offenders. This was effectively intensive monitoring, with no 12-month restriction.
7 Parole Act 2002, s 107IAC(2) and (3).
8 Section 107K(3)(bb)(ii).
[7] The PPO application was heard in July 2017 and a PPO was granted in October.9 Between the hearing and judgment, Corrections applied to the Parole Board for a variation of the 2016 ESO conditions for Mr McCorkindale, so that special conditions would be in place as a backstop should the PPO application be refused.10 The Board’s decision was released in August 2017, before the judgment was delivered. It imposed a number of special conditions on the ESO, including that Mr McCorkindale was ordered:
(a)to comply with partial residential restrictions and submit to electronic monitoring between 11 pm and 7 am daily;
(b)to be placed in the care of an approved agency between the hours of 7 am and 11 pm daily and while in the care of that agency to be accompanied and monitored at all times;
(c)to attend a reintegration programme between 7 am and 11 pm daily; and
(d)to reside at an address directed by the Probation Officer.
[8] As noted, the High Court granted the PPO. Mr McCorkindale appealed. The Court of Appeal quashed the PPO made in the High Court and remitted the matter back to the High Court for reconsideration. In doing so, it held:11
[18] [Counsel for Corrections] fairly acknowledges that the alternative ESO conditions that were imposed by the Parole Board after the PPO hearing in the High Court were not considered by the two health assessors called by the respondent. They gave no consideration to the efficacy of these conditions in managing Mr McCorkindale's risk. The expert called on behalf of Mr McCorkindale made only passing reference to them. The late identification of these conditions as the next most restrictive outcome meant there was no meaningful engagement at the hearing in the High Court as to whether such conditions would be effective to manage Mr McCorkindale's risk. As a result, the High Court did not have the expert assistance it needed to determine the least restrictive outcome appropriate in all the circumstances.
[19] A PPO can only be justified if the court is satisfied that the next most restrictive option is not adequate to mitigate the defined risk. The next step- down option, which the parties agree is the revised ESO ordered by the Parole
9 High Court Decision, above n 1.
10 Parole Act, ss 107O and 107K.
11 Court of Appeal Decision, above n 2 (footnote omitted).
Board on 30 August 2017, was not addressed in the evidence or in the submissions before the High Court. A PPO cannot be justified unless that option can be excluded. In these circumstances, we are satisfied that the appropriate course is to quash the PPO and remit the application to the High Court to enable this issue to be explored fully.
[Emphasis added]
[9] The “next step-down option” referred to by the Court of Appeal is at the heart of this proceeding. Mr McCorkindale requests that the PPO be declined with the result that the 2016 ESO, with the special conditions imposed by the Parole Board in 2017, remains in force, enabling him to reside at Salisbury Street Foundation.
Public Protection Orders
[10] The Public Safety Act provides for the Court to make PPOs requiring the detention of very high-risk individuals at a secure facility within prison precincts. The objective of the PPO regime is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.12 It is not to punish persons against whom orders are made.13 A PPO should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order.14 Any application for a PPO requires reports from at least two relevant health assessors, including a registered psychologist, which address the various criteria the Court must consider under s 13 of the Public Safety Act.15
[11] The threshold for the imposition of a PPO is outlined in s 7 of the Public Safety Act. There is no doubt Mr McCorkindale meets the threshold:16 he is over 18 years old, he is subject to an ESO, and has been subject to a condition of full-time accompaniment and monitoring.
[12] Section 13 then sets out the circumstances in which a PPO may be made. First, under s 13(1)(a) the person must meet the threshold under s 7. As noted, that is satisfied in this case. Secondly, under s 13(1)(b) there must be a very high risk of imminent serious sexual or violent offending by the person if released from prison into
12 Public Safety (Public Protection Orders) Act 2014, s 4(1).
13 Section 4(2).
14 Section 5(b).
15 Section 9.
16 Section 7(1)(b)(i).
the community or left unsupervised. Under s 13(2), such a finding cannot be made unless the Court is satisfied the person exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of four specified characteristics:
(a) an intense drive or urge to commit a particular form of offending:
(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:
(c) absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):
(d) poor interpersonal relationships or social isolation or both.
[13] If Mr McCorkindale meets the s 13(1)(b) test, the next issue is determining what is the least restrictive option available to manage his risk, short of making a PPO.17 This involves the discretion of the Court in assessing the alternatives to making a PPO. In this case, the Court must assess the option of the 2016 ESO with the special conditions imposed by the Parole Board in 2017.
[14]The issues are therefore:
(a)Does Mr McCorkindale meet the s 13(1)(b) test?
(b)What is the least restrictive option available to manage the risk?
DOES MR MCCORKINDALE MEET THE S 13 TEST?
[15] Although this Court assessed Mr McCorkindale’s risk level required a PPO in 2017, a fresh assessment must be made, both in light of the passage of time since 2017 and the Court of Appeal’s decision which directed this Court to consider whether a less restrictive alternative is available.
17 Court of Appeal Decision, above n 2, at [19]; and Chisnall v Chief of Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [40].
[16] Mr McCorkindale’s history of sexual offending is outlined in detail in the High Court’s judgment and does not need to be repeated.18 It is enough to say that the offending began in the 1970s and continued up until 1999, when Mr McCorkindale was convicted and sentenced. It involved various convictions of indecent assault against young girls. As this Court has previously noted, Mr McCorkindale’s history represents a “troubling pattern of recidivist sexual offending against very young children, which has occurred with an alarming degree of frequency and consistency since 1976.”19 However, Mr McCorkindale has not reoffended since 1999 and has complied with his conditions without breach.
[17] Both parties commissioned reports from three psychologist health assessors to provide an assessment of Mr McCorkindale. The psychologists addressed the specific risk issues specified in s 13 and detailed appropriate risk management to mitigate the defined risk. To make their assessments, the psychologists interviewed Mr McCorkindale and accessed his background file. For Corrections, Mr Paul Carlyon, a registered clinical psychologist, and Ms Zoe Wilton, a senior registered psychologist, provided reports to assist the Court dated 5 February and 11 February 2020 respectively. For Mr McCorkindale, Mr Ghazi Metoui, a consultant forensic psychologist, provided his report dated 23 July 2020.
[18] All experts concluded Mr McCorkindale would pose a high level of risk in relation to the s 13(2) criteria if he were to be left unsupervised in the community. Both parties accept that the Court could be satisfied on the balance of probabilities that, under s 13(1)(b), there is a very high risk of imminent serious sexual offending by Mr McCorkindale if he is left unsupervised.
[19] It is clear Mr McCorkindale has an intense drive or urge to commit serious sexual offending.20 All three psychologists gave evidence to that effect. Ms Wilton noted that Mr McCorkindale “has demonstrated strong urges for sexual offending against children and adult females across several decades”, and there is “no evidence that these drives and urges have substantially changed or abated up to the current
18 High Court Decision, above n 1, at [29]-[32].
19 At [32].
20 Public Safety Act, s 13(2)(a).
time”. Mr Carlyon noted Mr McCorkindale has a long-standing history of detected and self-reported sexual offending against young females, and that his history of deviant sexual interest “sees the persistence, to the present time, of fantasy sometimes focused upon prior offending.” Mr Carlyon and Ms Wilton note there remains evidence of offence paralleling behaviours, which are considered a proxy for offending behaviours in the absence of opportunities to commit an offence. Mr Metoui concurred that Mr McCorkindale retains a high drive or urge to commit serious sexual offences.
[20] It is also evident Mr McCorkindale has limited self-regulatory capacity.21 Mr Carlyon opines that while Mr McCorkindale possesses self-regulatory capacity, he does not apply it reliably in relation to matters of sexual interest or preference unless he is directed or guided to conduct himself appropriately. Ms Wilton commented that Mr McCorkindale is reliant on residential care environments to provide external monitoring, prompting and active intervention to apply self-regulation and stress management techniques in daily life situations. Mr Metoui too concluded that Mr McCorkindale’s internal resources are such that he has chronic limited self- regulatory capacity, most typically evidenced by an inability to cope with, or manage, stress and difficulties. Mr Metoui and Ms Wilton also gave evidence of Mr McCorkindale’s high emotional reactivity and impulsiveness, such as resorting to self-harm behaviours when feeling overwhelmed.
[21] Turning to Mr McCorkindale’s understanding or concern for the impact of his offending on actual or potential victims, I am satisfied there is an absence of such understanding.22 Ms Wilton stated that Mr McCorkindale’s cognitive capacity has likely compromised his ability to develop empathy. She said there is little evidence that he has genuine emotional empathy or concern for the impact of his behaviour on past or potential victims. Mr Carlyon too referred to Mr McCorkindale’s impaired general intellectual functioning as serving as a barrier to his full comprehension of treatment material delivered to him and the application of it. Mr McCorkindale, in his view:
21 Section 13(2)(b).
22 Section 13(2)(c).
… has impressed, for a lengthy period, as self-focussed and without appreciable intellectual or affective understanding of what his offending and/or deviant sexual interest might mean for the wellbeing of others.
Mr Carlyon concluded that Mr McCorkindale prioritised his own gratification and his chief reason for wishing to avoid further sexual offending is to avoid preventive detention, rather than not wishing to cause further harm to others. He added that Mr McCorkindale’s understanding of victim impact lacked depth, gave the impression of a rote-learned view and was not accompanied by concern.
[22] Mr Metoui noted that Mr McCorkindale had poor insight into his offending which he observed was a “striking feature of his presentation”, particularly given the amount of intervention he had received. He too explained that any lack of empathy is likely related to his intellectual limitations rather than any deliberate callousness, but concluded that Mr McCorkindale has an absence of understanding for the impact of his offending on actual or potential victims.
[23] In terms of Mr McCorkindale’s interpersonal relationships and social experience,23 he has lived in institutionalised settings for more than 20 years and has been described by the health assessors as institutionalised. He does not have any friends, nor does he have any family contact. He relies wholly on a small number of professional supports, most notably Ms Voice. Mr Carlyon concluded Mr McCorkindale presents with insufficient skills and motivation to initiate and maintain appropriate and meaningful relationships that may serve a protective function in respect to his sexual offending risk. Mr Metoui and Ms Wilton too concluded that Mr McCorkindale has poor interpersonal relationships and is socially isolated. I am satisfied that this element too is satisfied to the requisite degree.
[24] When asked about Mr McCorkindale’s overall assessment of the characteristics under s 13(2), Mr Metoui told the Court that when it comes to the characteristics at s 13(2)(b), (c) and (d), they will always be met when a person has a clinical presentation of intellectual abilities that function in the borderline range and has autism spectrum issues. Thus, the person will have limited self-regulatory capacity, emotional reactivity, an inability cope with or manage stress and difficulties,
23 Section 13(2)(d).
and an absence of understanding or concern for the impact of the offending on victims. This goes some way to explain Mr McCorkindale’s position, though does not detract from the risk he poses.
[25] In relation to all four characteristics identified at s 13(2), I am satisfied that the evidence establishes to a high level that Mr McCorkindale exhibits severe disturbance in behavioural functioning. On this basis, all three experts concluded there is a very high risk of imminent serious sexual offending if Mr McCorkindale is left unsupervised in the community.24
[26] I am satisfied that Mr McCorkindale meets the test set out in s 13. I record also that both Counsel for Corrections and Mr McCorkindale accept that Mr McCorkindale meets the s 13 tests.
WHAT IS THE LEAST RESTRICTIVE OPTION AVAILABLE TO MANAGE THE RISK?
[27] The critical question for this Court is what is the least restrictive option available to manage Mr McCorkindale’s risk. That is the nub of this case and involves the Court’s exercise of its discretion.
[28] The Supreme Court in Chisnall v Chief Executive of the Department of Corrections described the courts’ function in making a PPO under the Public Safety Act as having to be satisfied not only that the statutory criteria for making a PPO have been made out under s 13, but also that the risk to public safety cannot be sufficiently met by less restrictive options.25 The Court ruled that if the public can be protected from otherwise imminent serious sexual or violent offending by lawful and lesser means other than a PPO, these should be employed.
[29] Such an approach is commensurate with the human rights interests affected and reinforces that the Public Safety Act, while focussed on public safety, is to be
24 Court of Appeal Decision, above n 2, at [13].
25 Chisnall, above n 17, at [40].
interpreted and applied in the context of human rights obligations.26 The Chief Justice said:27
[38] The availability of extended supervision orders and interim supervision orders as alternative means of monitoring risk is a factor that bears on whether the more restrictive public protection order (and interim detention order pending its determination) is appropriate. The policy of the Public Safety Act expressed in its purpose and the principles contained in s 5 emphasise that orders made under it are not punitive and are directed at public safety. The high threshold set by the legislation for public protection orders and the availability of less intrusive means of protecting public safety in orders under the Parole Act indicate a legislative scheme that the “very high risk of imminent serious sexual or violent offending by the respondent” is risk which cannot be acceptably managed by conditions under an extended supervision order or interim supervision order. The Public Safety Act is to be interpreted and applied in the context of human rights obligations protective of liberty and suspicious of retrospective penalty.
…
[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.
By reaffirming the principles in s 5(a) and (b) of the Public Safety Act, the Court in Chisnall emphasised that PPOs are to be made not for punishment but only when “the magnitude of the risk posed by the respondent justifies the imposition of the order.”28
[30] Consistent with both the principles of the Public Safety Act and the guidance of Chisnall, the Court of Appeal in this case quashed Mr McCorkindale’s PPO and remitted Corrections’ application to this Court for further inquiry. To repeat for ease of reference, the Court said:29
[19] A PPO can only be justified if the court is satisfied that the next most restrictive option is not adequate to mitigate the defined risk. The next step- down option, which the parties agree is the revised ESO ordered by the Parole Board on 30 August 2017, was not addressed in the evidence or in the submissions before the High Court. A PPO cannot be justified unless that option can be excluded. In these circumstances, we are satisfied that the appropriate course is to quash the PPO and remit the application to the High Court to enable this issue to be explored fully.
26 At [37]-[40].
27 Footnotes omitted, citing the New Zealand Bill of Rights Act 1990, ss 3, 22 and 26.
28 At [37], citing the Public Safety Act, s 5(b).
29 Court of Appeal Decision, above n 2, footnote omitted.
[31] The Court of Appeal also recorded that Counsel were agreed that if the PPO was quashed, this would automatically enliven the interim detention order that had been made by consent on 26 April 2017.30 The Court directed that the interim detention order should remain in full force and effect until the PPO application is finally determined by this Court.31
[32] To determine if the “next step-down option” is adequate to mitigate Mr McCorkindale’s risk, I approach the assessment as follows:
(a)What is the alternative option to a PPO?
(b)Is the 2016 ESO, with the special conditions ordered by the Parole Board in 2017, adequate to mitigate Mr McCorkindale’s risk?
(c)Is the ESO, with the special conditions, unlawful?
What is the alternative option to a PPO?
[33] Both parties accept that the alternative for the “next step-down option” is the 2016 ESO, which is subject to both standard conditions32 and the special conditions imposed by the Parole Board in August 2017.33 Observing that 24-hour oversight was no longer available because Mr McCorkindale had already been subject to a 12-month period of monitoring, expiring on 28 April 2017, the Parole Board imposed these special conditions with a view to Mr McCorkindale continuing to reside at Salisbury Street Foundation, where he had lived since 2016. Mr McCorkindale did not oppose the application for the special conditions.
[34] The relevant conditions, although outlined in brief above at [7], are repeated more fully as follows:34
30 Deputy Chief Executive of the Department of Corrections v McCorkindale HC Christchurch CIV- 2016-409-1237, 26 April 2017.
31 At [20].
32 Parole Act, s 107JA.
33 Section 107K.
34 There were also a number of other conditions imposed relating to Mr McCorkindale’s computer and internet use, employment, psychologist appointments and driving prohibition.
(a)to comply with partial residential restrictions and submit to electronic monitoring as directed by the Probation Officer between 11 pm and 7 am daily;
(b)to be placed in the care of an approved agency between the hours of 7 am and 11 pm daily and while in the care of that agency to be accompanied and monitored at all times;
(c)to undertake, engage in and complete a reintegration programme approved by the Probation Officer and administered by a programme provider, between the hours of 7 am and 11 pm daily;
(d)to reside at an address as directed by the Probation Officer and not to move from that address without the prior written approval of the Probation Officer;
(e)not to enter or loiter within the grounds of any schools, preschools, parks, playgrounds or other public place where children under 16 years of age are likely to congregate, unless under the supervision of an adult approved in writing by the Probation Officer; and
(f)to submit to electronic monitoring as directing by the Probation Officer in order to monitor his compliance with the conditions relating to his whereabouts.
[35] Counsel for Mr McCorkindale, Mr Starling, submits that these conditions can be carried out while Mr McCorkindale resides at the Salisbury Street Foundation.
[36] At the commencement of the hearing, I asked Counsel whether Ms Voice, the director of the Salisbury Street Foundation, could be made available to give evidence, preferably before the three experienced health assessors gave theirs. Although submissions on behalf of Mr McCorkindale urged he return to Salisbury Street Foundation with trained support workers and, in making his health assessment, Mr Metoui interviewed Ms Voice and two of the staff from the Foundation, no one
from the Foundation had been briefed to give evidence in this hearing. While two of the three health assessors had given evidence in the High Court in 2017, they had not had the opportunity to consider Salisbury Street Foundation’s approach to the management of Mr McCorkindale and I considered it was useful for them to do so at this hearing.
[37] Ms Voice was called, and Ms Boshier for Corrections helpfully led her through her oral evidence. Ms Voice explained how the Salisbury Street Foundation managed Mr McCorkindale when he was placed there under intensive monitoring conditions. Her evidence was cogent, professional and compelling.
[38] Salisbury Street Foundation runs a 21-bed reintegration programme for high risk offenders who are released on parole, are under preventive detention orders or are serving life imprisonment. It has a high security house, where Mr McCorkindale would live, with an alarm system that is set for 10 pm to 7 am each night, security stays on the windows, CCTV cameras and a perimeter beam around the entire house. The house is also staffed 24/7 but there is no monitoring of the individual bedrooms.
[39] Ms Voice told the Court that Mr McCorkindale was compliant with his conditions when he lived at the Salisbury Street Foundation. She said:
He was totally compliant with us.
…
And … dare I say it, he’s one of the nicest or easiest people to work with that we’ve had at Salisbury Street and we don’t very often get someone who’s wanting so badly to be safe…
[40] Ms Voice confirmed that Mr McCorkindale had a “family style” living arrangement and, in the absence of any family contacts, had a warm and friendly relationship with the professional staff at the Foundation. This was the nearest he could call home. Previously, he had spent 10 years in Idea Services in Wellington, with an interim placement at PACT, another support accommodation service, before he had to move to Christchurch because of reactions from his surrounding community to his presence. Ms Voice described Mr McCorkindale as grieving for the contacts and supports he had formed over those years.
[41] If Mr McCorkindale were to reside at Salisbury Street Foundation, Ms Voice explained there would be an agreement between Mr McCorkindale and the Foundation about what he could expect from them and what they could expect from him. There would be rights and responsibilities for both parties, including some basic rules such as no phones or electronic equipment. Ms Voice says:
So Mr McCorkindale has made it quite clear to us what his fears are about being in the community and what he needs to have in place to feel safe … he hasn’t ever wanted to go anywhere on his own. He wants to be with staff, otherwise he won’t go and that’s been something at his requirement. So we feel quite confident that we can manage him.
[42] Ms Voice produced a weekly plan for Mr McCorkindale. It details the actions to be taken with Mr McCorkindale, from Monday through to Sunday commencing at 8 am and finishing with a safety plan at the 10 pm bedtime. This plan was focussed on Mr McCorkindale’s interests and favourite activities, including his regular reading of the newspaper, which takes him sometime, his cooking and, most importantly for him, a fishing trip at the Waimakariri River once a week.
[43] Ms Voice described how her staff have managed and would manage Mr McCorkindale in the future. She supports Mr McCorkindale, not only in his return to Salisbury Street Foundation under the ESO with special conditions, but as the option for the rest of his life. Ms Voice said:
So 24/7 there will be a staff member in that house and if Mr McCorkindale is going out, he has a weekly plan and that’s part of the programme for all of our residents, but his is an individual plan.
…
He likes to be able to watch the news at certain times so that was able to happen. He liked to go for walks and that happened on a regular basis, a planned basis. And the thing that we take into account are the things like what are the risks. So we get Mr McCorkindale or any resident to identify what their risk might be and what they are planning and so that they can learn to recognise it, it is not somebody doing it for them and that worked really well. And he likes to go fishing, that is one activity that he really enjoys and we were able to provide that for him as well. We also, along with that plan, is we do a safety plan for each of the activities. So what if, what if this happens? What if a member of the public recognises you, what if somebody yells at you or calls you a name, what if you recognise one of your victims or they recognise you.
She gave further examples:
Well the night time is his time, like for jig saw puzzles or he likes to do Bible study. So Mr McCorkindale keeps himself in a routine and fairly active. So they are not listed there, because it is like his free time.
…
If … it was deemed to be part of his programme hours, then we may schedule things. Like we do quizzes, we do you know board games. We have got quite a variety of different things that he can do in the house. We have staff that have particular skills around activities. For example, one of our staff makes models and he builds little houses or he will get kitset models and build them so the people in that house are all doing that as well and there is another staff member who likes to play cards and the people that want to join in, can join in, or not. It depends, like it is run like; I say run like a home. We try and make it as close to living in a flat or a home where people are home most of the time. So, like having kids, you know if you’ve got toddlers and I am not saying that they are toddlers but you keep them engaged.
[44] Of importance to this hearing, Ms Voice described the distress experienced by Mr McCorkindale when he was moved from Salisbury Street Foundation to Matawhāiti, the national civil detention secure facility located in the precincts of Christchurch’s Men’s Prison, on the making of the PPO order in October 2017. Although situated outside of the prison on one hectare of land, Matawhāiti is contained within a high wire perimeter fence around the prison precincts.
[45] As an illustration of Mr McCorkindale’s life behind the prison wire fence, Ms Voice described her visit to Mr McCorkindale at Christmas time to deliver him a Christmas present, which the residents normally receive at Salisbury Street Foundation. Because presents are not allowed in prison, Mr McCorkindale was not allowed to receive it. Ms Voice later sought permission for Mr McCorkindale to visit the Salisbury Street Foundation to join them for a meal. This was not approved. Although activities are offered at Matawhāiti, Mr McCorkindale participates in some of them only. The evidence revealed that Mr McCorkindale has no outings from Matawhāiti except for attendances at Court and medical or optician appointments.
[46] It is evident that if Mr McCorkindale lived in the Salisbury Street Foundation subject to the 2016 ESO (with the special conditions), in the manner described by Ms Voice under the Foundation’s care and supervision, this would be the best available “alternative option” to a PPO for Mr McCorkindale. However, the option must be adequate to mitigate his risk.
Is the ESO, with the special conditions, adequate to mitigate Mr McCorkindale’s risk?
[47] All three health assessors agreed that the very high risk of imminent serious sexual offending by Mr McCorkindale would be present if he was left unsupervised in the community.35 Ms Voice and her staff also reinforced that that risk was their focus and the main object of their management. The health assessors also assessed Mr McCorkindale’s risk factors in relation to residing in a supported service in the community on a release plan and community supervision. They gave their expert opinions on the requirements for appropriate management of Mr McCorkindale’s risks of offending and the strategies required to contain or mitigate such risk.
[48] Ms Wilton concluded that “appropriate management of Mr McCorkindale’s risk of sexual reoffending requires a combination of a high level of external restriction with constant 24-hours-a-day professional monitoring, oversight and support.” She said:
… Mr McCorkindale presents with a Level IVb (Well Above Average) or very high risk of committing further sexual offences if he was unsupervised in the community.
…
It is considered that there is a very high risk that Mr McCorkindale would engage in sexual reoffending if he did not have a high level of restriction with continual monitoring and supervision in the community… Mr McCorkindale’s behaviour continues to require external and overt professional management, with little evidence that he is capable of or willing to proactively manage his risk.
…
… There is little evidence that he is motivated or capable of managing high risk situations independently, instead remaining reliant upon overt staff prompting and intervention to manage his behaviour. He has recently acknowledged to Matawhāiti staff that if left alone in the community, he would sexually offend. The writer considers that if Mr McCorkindale encountered an opportunity to sexually offend, he would be at imminent risk of acting upon it.
…
In the writer’s opinion, appropriate management of Mr McCorkindale’s risk of sexual reoffending requires a combination of a high level of external
35 Public Safety Act, s 13(1)(b)(ii).
restriction with constant 24-hours-a-day professional monitoring, oversight and support.
[49] Mr Carlyon too concluded that “the essential element required to satisfactorily mitigate Mr McCorkindale’s sexual offence risk is external control.” Such control could take the form of clearly communicated conditions, environmental restraint (such as alarms and monitoring) and the provision of vigilant and informed supervision. He concluded:
Independent access to the wider community would not be in keeping with such a regime, meaning Mr McCorkindale would require close, line-of-sight, professional supervision anytime he was in the wider community or if members of the community attended his residence.
[50] Mr Metoui concluded that, based on Mr McCorkindale’s lengthy history (11 years) of very good compliance in the community since his release from custody in 2006, his risks can be “robustly and safely managed in a community setting and to such an extent that his high/very high risk of imminent serious sexual offending becomes low.” He accepted that:
Without question, effective community based risk management will require substantial resourcing as Mr McCorkindale is highly dependent on external control in the form of support and supervision. It is my understanding that the Salisbury Street Foundation is willing, ready, and able to provide this high level of support and supervision.
[51] Importantly, all three health assessors agreed that the weekly plan produced by Ms Voice was appropriate for Mr McCorkindale. In the words of Ms Wilton, it was “a safe, humane containment programme” of Mr McCorkindale in these circumstances. Any concerns about gaps in Mr McCorkindale’s supervision would be adequately managed by the plan, provided that Mr McCorkindale did not leave the premises or remain unsupervised in the community.
[52] When asked for his clinical opinion on Mr McCorkindale’s risk if he was placed in the community at Salisbury Street Foundation subject to the ESO with the special conditions, Mr Metoui said:
In a nutshell I think they manage his risks extremely well and it’s exactly what he needs and it’s exactly what the community needs… I actually think it ticks three boxes … it ticks the public safety box …it ticks the box in terms of his civil liberties and, three, for my profession too. I mean we’re asked to provide
these assessments and I am of the strong view that his risks can be managed in the community not in Matawhāiti unit for this particular case.
[53]Ms Wilton described the Salisbury Street management plan as:
an appropriate, humane, supportive environment that supports Mr McCorkindale’s health and wellbeing as well as his safety.
[54]And Mr Carlyon concluded that:
Salisbury Street Foundation obviously has considerable experience in managing high needs, high risk individuals and I would consider Mr McCorkindale to be one of those people.
[55] There was, therefore, unanimity among the health assessors that the plan proposed for Mr McCorkindale by the Salisbury Street Foundation, which fulfils the requirements of the ESO and the special conditions, was ideal for Mr McCorkindale and was adequate to manage his risk. The important caveat articulated by all three assessors is that Mr McCorkindale must be accompanied or supervised when out in the community. Corrections submits that without such supervision when in the community, and 24-hour supervision and monitoring, Mr McCorkindale’s risk will not be adequately mitigated.
[56] Corrections’ principal submission on this point is that Mr McCorkindale cannot be subject to such intensive, 24-hour, line-of-sight monitoring nor be required to reside at the Salisbury Street Foundation, as that would be in breach of ss 107IAC(3) and 107K(3)(bb)(ii) of the Parole Act. The submission therefore is that without such supervision, which cannot be imposed lawfully, the ESO is inadequate to mitigate Mr McCorkindale’s risk. I address the challenge to the lawfulness of the ESO special conditions in the following section. The present analysis concerns the adequacy of the current ESO to mitigate Mr McCorkindale’s risk only.
[57] Ms Voice shared the same concern in relation to Mr McCorkindale’s supervision in the community, and identified how Mr McCorkindale’s outings into the community were to be managed if he were living at Salisbury Street Foundation. Mr McCorkindale would reside in the high security house with alarms, CCTV cameras covering the outside perimeters, and 24/7 staff in the house. While Mr McCorkindale will not be monitored on a strict one-to-one or line-of-sight basis, Mr McCorkindale’s
movements from the house to the outside will be under observation and subject to alarms. If Mr McCorkindale, while reading the paper in the afternoon, decides to leave the house, his movements will be observed by a staff member and security systems will then be deployed. In that event that Mr McCorkindale walked out of the premises, Ms Voice told the Court that the police would be notified and a staff member would set off after Mr McCorkindale to persuade him to come back. This has not happened in the time that Mr McCorkindale had been at Salisbury Street Foundation for 13 months or in Wellington’s facilities over the 11 year period.
[58] With those restrictions in place, Mr McCorkindale can participate in activities he enjoys such as watching the news programmes on television, doing jig saws, doing Bible study and reading the paper, without one-on-one monitoring. A staff member is available, however, if Mr McCorkindale needs assistance with cooking or any other activity when he asks. Ms Voice made it plain that the Foundation’s non-negotiable position is that all of Mr McCorkindale’s trips into the community will be accompanied by staff members.
[59] Ms Voice also emphasised that she had no concerns about Mr McCorkindale’s compliance with the special conditions or his plan. Mr McCorkindale has a history of compliance in a community setting. This was reinforced by both Ms Voice and Mr Metoui. The Court of Appeal also recorded this in its judgment, stating that Mr McCorkindale has been successfully managed in the community for over 10 years under the strict conditions of two ESOs.36 Mr Metoui pointed to Mr McCorkindale’s 11 years of very good compliance in the community since his release from custody in 2006. As he described in his earlier report for the Court in 2017, Mr McCorkindale has in the past participated in daily community outings, such as going to the shops and grocery shopping, as well as undertaking various leisure pursuits as permitted by his Probation Officer without incident.
[60] More telling was Mr McCorkindale’s participation in a local walking group on a weekly basis for seven years, which was open to all members of the public. Over this period, despite women of all ages and young children of both genders
36 Court of Appeal Decision, above n 2, at [1].
participating, Mr McCorkindale never once inappropriately touched anyone or offended in anyway. He was accompanied by a staff member and over that time, there were only three occasions where he inappropriately stared at the female members of the group. On being talked to by staff and reminded of his “safe man” strategies, Mr McCorkindale carried on with the walk appropriately. The reports from Idea Services in Wellington confirm that Mr McCorkindale was easy to manage and presented no difficulties over the years, apart from an initial settling-in period following his release from prison.
[61] Ms Voice also emphasised that Mr McCorkindale wanted the company and the safety of Salisbury Street Foundation. As Ms Voice stressed, Mr McCorkindale feels unsafe in the community on his own and actively seeks accompaniment to venues. Mr Metoui gave an example of Mr McCorkindale’s attendance at McDonald’s for a cup of coffee with a staff member. When he saw young children in the vicinity, he told the staff member that he felt unsafe and they then left. The evidence also reveals that Mr McCorkindale is fearful of the consequences of any further offending or any breach of his conditions. He is concerned that a preventive detention order may be the ultimate result.
[62] I am satisfied that the alternative option of the 2016 ESO with special conditions is adequate to mitigate Mr McCorkindale’s risk to public safety. The health assessors were complimentary about the professionalism of Salisbury Street Foundation, with Mr Metoui saying that he thought Salisbury Street Foundation managed Mr McCorkindale’s risks very well. The Foundation, in his view, ticks three boxes: public safety, civil liberties and the professional requirements.
[63] There is plainly a professional but very human relationship between Mr McCorkindale and the staff at Salisbury Street Foundation, enabling “collective discussion” and an ability to work with Mr McCorkindale, which in turn encourages him to “buy into” the plan and comply with it. Mr McCorkindale actively seeks to live in the Foundation’s accommodation. Mr McCorkindale’s fear of a potential preventive detention order is indicative of his self-awareness, as Mr Carlyon acknowledged, and Mr McCorkindale’s past history is testament to his compliance
with the conditions placed upon him when he lived in supported accommodation previously in the community.
[64] I have no hesitation in finding that the 2016 ESO and the special conditions imposed by the Parole Board are adequate to mitigate Mr McCorkindale’s high risk of serious sexual offending.
Is the ESO, with the special conditions, unlawful?
[65] I turn then to Corrections’ submission that the special conditions and the proposed implementation of them breach a number of provisions in the Parole Act and are, therefore, unlawful.
[66] First, it is submitted the conditions together amount to intensive monitoring and so contravene s 107IAC(3) of the Parole Act. Section 107IAC(3) provides that a person subject to an ESO may not receive intensive monitoring for more than 12 months. As noted, Mr McCorkindale has already been subjected to intensive monitoring under the 2016 ESO for 12 months, with that period expiring in April 2017. It is submitted that “supervision”, “monitoring” and other restrictions in an ESO cannot be used as a backdoor way to circumvent Parliament’s intention in the 2014 amendment to the Parole Act to prevent intensive (24-hour) monitoring for more than 12 months.
[67] Second, it is submitted the conditions breach ss 15(3)(b) and 107K(3)(bb)(i), which together allow for the imposition of a reintegration programme only where the programme has a reintegrative purpose and does not require the offender to be supervised, monitored or subject to other restrictions for longer each day than is necessary to ensure attendance at the programme. Ms Boshier submits that Mr McCorkindale’s proposed programme is essentially management treatment, or intensive supervision “by stealth”, but not reintegration or rehabilitation as required under the Parole Act. She further submits that reliance on Salisbury Street Foundation’s house rules cannot be used to circumvent the restrictions that Parliament has placed on intensive monitoring and reintegration and rehabilitation in ss 107IAC and 107K(3)(bb).
[68] Third, it is submitted the conditions breach s 107K(3)(bb)(ii), which provides that any condition requiring the offender to participate in a programme, which includes placement in the care of an agency,37 must not require the offender to reside with the agency in whose care the offender is placed. In other words, there must be a separation between where Mr McCorkindale is placed in care and the place where he resides. It is submitted the section is breached by requiring Mr McCorkindale to reside at Salisbury Street Foundation, the agency in whose care he is placed.
[69] Fourth, Corrections submits that the special conditions presently rely on Mr McCorkindale’s consent, which can be withdrawn at any moment.
[70] Therefore, Corrections submits that the ESO with special conditions is unlawful, and to mitigate Mr McCorkindale’s risk the Court has no legal option other than to make a PPO.
[71] Because of the substantial overlap between the first two challenges raised by Corrections, I propose to address them together, followed by the third challenge to the placement of Mr McCorkindale in the care of Salisbury Street Foundation, and then the fourth concerning consent. I begin with the legislative background to the relevant sections.
2014 legislative change
[72] As outlined, Mr McCorkindale has been managed in the community under two successive ESO’s, each of 10 years’ duration. The first ESO was imposed in January 2006. Under its terms, he was closely monitored in various residential settings under an Individual Residential Reintegration Programme (IRRP), which allowed for full- time placement in the care of an approved agency. IRRP conditions had the effect of allowing 24-hour supervision and monitoring of the highest risk offenders, known as intensive monitoring.38
37 Parole Act, s 16.
38 Section 107IAC(2). Intensive monitoring is defined as submitting the offender to being accompanied and monitored for up to 24 hours a day.
[73] In 2014, Parliament introduced both the Public Safety Act, which introduced PPOs, and the Parole (Extended Supervision Orders) Amendment Act 2014, which amended the Parole Act. Under the Amendment Act, IRRP conditions on ESO’s were no longer permitted. Section 107IAC of the Parole Act was amended to provide that if the Court were to order an intensive monitoring condition, the maximum duration of the condition must be no longer than 12 months.39 Section 107K was amended with the addition of subsections (3)(b)(i) and (ii), which prevented reintegration programmes requiring the offender to be monitored for longer than is necessary to ensure attendance at the programme and, in the case of “care” programmes, prevented the offender being required to reside with the agency in whose care he or she is placed.
[74] At the same time, PPOs were introduced. The threshold for a Court to order a PPO is higher than for an ESO.40 Under a PPO, the offender may be detained in a prison facility. Under an ESO, the offender may be in the community but under supervision or in an alternative managed facility.
[75] There have been a number of legal challenges to monitoring and supervision conditions imposed by the Parole Board. These challenges have been universally taken by the person subject to such conditions or ESO/PPO orders.41 Here, it is Corrections which challenges the lawfulness of Mr McCorkindale’s ESO and special conditions despite Mr McCorkindale’s acceptance, consent and desire to be placed with Salisbury Street Foundation and subject to the ESO. As noted, I address Corrections’ opposition to the ESO and special conditions under three headings:
(a)Is the use of the reintegration programme condition, combined with the partial residential restrictions, intensive monitoring?
(b)Is the residential care condition unlawful?
(c)What effect, if any, does Mr McCorkindale’s consent have?
39 Section 107IAC(3). This is not 12 months’ per ESO, but 12 months’ altogether: see s 107IAC(5).
40 Compare the Parole Act, s 107I and the Public Safety Act, s 13.
41 See, for example, McGreevy v Chief Executive of the Department of Corrections [2019] NZCA 495.
Is there intensive monitoring?
[76] The first question is whether the proposed programme is a reintegration and rehabilitation programme under s 15(3)(b) of the Parole Act, or whether it, combined with the partial residential and other monitoring and supervision restrictions, amounts to intensive monitoring “by stealth”?42
[77] It is accepted by the health assessors and by the parties that Mr McCorkindale has been institutionalised and is not able to live in the community independently. Yet the purpose of the programme under s 15(3)(b) of the Parole Act must be for the purposes of rehabilitation or reintegration, and monitoring in accordance with the programme must be no longer than necessary to ensure the offender’s participation or attendance.43 Ms Boshier submits that the proposed programme for Mr McCorkindale is in the nature of a therapeutic mental health management programme with inbuilt supervision, where Mr McCorkindale resides in the care of Salisbury Street Foundation. Corrections disputes therefore that it is a reintegration programme under s 15(3)(b). Instead, it says it is a management programme and it cannot be used for monitoring and supervision under the guise of reintegration and rehabilitation.
[78] Ms Boshier relies on McGreevy v Chief Executive of the Department of Corrections, in which Mr McGreevy sought a declaration that he had been unlawfully monitored between 2008 and 2012 whilst subject to an IRRP under s 107K.44 All parties accepted that Mr McGreevy had been monitored for up to 24 hours a day, seven days a week during that period.45 At that time, only a full-time residential restriction (which could only apply for the first 12 months and to which Mr McGreevy was not subject) could include a requirement that he submit to being accompanied and monitored up to 24/7.46 Corrections submitted that Mr McGreevy was not monitored as part of his residential restrictions. Rather, he was monitored to ensure compliance with the reintegration programme, and such monitoring was impliedly authorised.
42 See reference to this phrase in Woods v New Zealand Police [2019] NZCA 446 at [41].
43 Parole Act, s 107K(3)(bb)(i).
44 McGreevy, above n 41.
45 At [17].
46 At [22].
[79] The Court of Appeal held that Corrections had acted unlawfully in monitoring Mr McGreevy 24 hours a day, seven days a week outside the activities specified under the IRRP developed for him.47 The Court said:48
Monitoring when no attempt was being made to deliver the IRRP was not permitted.
[80] The Court considered that a consistent interpretation of s 107K(3)(bb) is to ensure that monitoring of an offender should be for no longer than is necessary to ensure attendance and participation in the programme.49 The Court gave an example. If the programme occupied eight hours in total, but only five hours monitoring was required to ensure an offender’s attendance or participation, then only five hours monitoring is necessary.50 The Court concluded that from the period between 26 May 2008 and 22 August 2012, Mr McGreevy was unlawfully monitored.
[81] In my view, there are two aspects of the evidence which counter Ms Boshier’s submission and distinguish these circumstances from those in McGreevy. The first is the evidence from Ms Voice, who described the proposed programme as being developed in accordance with the Six Pillars of the Reintegrative Model in New Zealand. As the government resources note, New Zealand employs a model of reintegration called “the Six Pillars of Reintegration” that are acknowledged to facilitate successful reintegration and lower the risk of reoffending.51 They are:
(1)Accommodation.
(2)Oranga/Wellbeing.
(3)Family/Whānau/Community support.
(4)Education and training.
(5)Employment.
(6)Skills for life.
[82] Ms Voice saw this programme as a means of protecting the community from Mr McCorkindale’s high risk of offending, while supporting him to live in a
47 At [40].
48 At [32].
49 At [36].
50 At [36].
51 Nimesha Tissera “New Zealand’s Six Pillar Model of Reintegration and International Reintegrative Models: a Review of the Literature” (18 August 2020) Department of Corrections residence. Mr Metoui too considered it as essentially being a reintegrative programme in the community, given that Mr McCorkindale will be living, not inside a prison precinct, but in a community setting.52
[83] Second, an intensive monitoring condition requires the offender to be accompanied and monitored by an approved person for up to 24 hours a day.53 The proposed weekly programme for Mr McCorkindale is not person-to-person supervision. Nor is it person-to-person line of sight monitoring. For ten hours a day, from 10 pm to 8 am, Mr McCorkindale is monitored by electronic monitoring. He is in a high security house, with alarms and outside CCTV. During the day, in the weekly programme outlining his activities, Mr McCorkindale is to be accompanied to all activities outside the premises in the community to enable him to participate in those activities and, effectively, lead a relatively normal life.
[84] These activities, as noted above, include his own personal shopping, his special fishing activity, visits to Lyttelton, the museum or the art centre walk. In the afternoon, after daily chores, Mr McCorkindale’s favourite activity is to read the newspaper, watch his news media programmes on television and prepare his own cooking. These activities are not closely monitored, although there is a staff member present in the house who will know if Mr McCorkindale leaves the property.
[85] Ms Voice was questioned about whether the plan is intensive monitoring (IM) under another name. She explained:
When they are not on an IM, the expectations are not as intense … but the thing we are looking at all the time is the risk. Is the safety and the risk, I guess that is our main driver. So the IM is sort of, I guess in a way from our perspective it is a control area whereas the individual programme is more of an agreement and safety and risk and the other thing is that there is less expectations on someone who is not on IM in terms of complying to conditions that are set under IM.
52 I note that in the Corrections resource material online the model of care adopted by Matawhāiti is “to support a change to residents’ cycle of sexual and/or violent offending and prepare them for a future of safe and appropriately supported living in a community setting”: see Lindon Pullan and Andrew Burger “Matawhāiti Residence – Public Protection Orders” (18 August 2020) Department of Corrections Parole Act, s 107IAC(2).
[86] On a review of the Parole Board’s conditions and considering the evidence, I consider that the programme is a reintegration programme and, combined with the partial residential and other monitoring and supervision restrictions, does not amount to intensive monitoring. The programme is designed to keep both the public and Mr McCorkindale safe, with sufficient supervision or monitoring to ensure that he can participate in community activities and that he is appropriately supported in a community setting. Without oversight, supervision or monitoring, Mr McCorkindale cannot leave the property or participate in activities in the community. To that end, the programme is one which reintegrates Mr McCorkindale in the community. It is designed to rehabilitate Mr McCorkindale to a meaningful living routine in the community, albeit in supported secure accommodation.
[87] I do not uphold the submission from Corrections that what is sought here is to continue the level and monitoring and supervision achieved by intensive monitoring through a suite of conditions imposed by the Parole Board. These special conditions enable a return to community living whilst achieving the Six Pillar Model of Reintegration, tailored to Mr McCorkindale’s past history, past offending and present circumstances. I do not accept this is intensive monitoring. In my view, the programme condition meets the requirements of s 15(3)(b), and the monitoring and supervision requirements in conditions one to three are no longer than is necessary to enable Mr McCorkindale to participate in the community activities in his programme.
[88] In making that finding, I also make this observation. Section 5(c) of the Public Safety Act prevents a PPO being imposed on a person who is eligible to be detained under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 Act or the Mental Health (Compulsory Assessment and Treatment) Act 1992. Mr McCorkindale has borderline intellectual functioning in the low 70s range. He is also autistic. While Mr McCorkindale does not meet the definition of a person with intellectual disability under the Intellectual Disability Act, which is an intellectual functioning level of below 70 IQ, the proposed programme at Salisbury Street Foundation aims to provide humane treatment for Mr McCorkindale, given his impaired intellectual functioning. A reintegration programme, therefore, that not only enables Mr McCorkindale to live safely in a community setting but also provides a therapeutic management programme with inbuilt supervision, is a fitting reconciliation
of the purpose and principles of the Public Safety Act with the legislative provisions of the Parole Act in these circumstances.
[89] Finally on this point, Ms Boshier submits that reliance on Salisbury Street Foundation’s house rules or the “supported accommodation agreement” cannot be used to circumvent the restrictions that Parliament has placed on intensive monitoring and reintegration and rehabilitation in s 107K of the Parole Act. House rules, she submits, are at the discretion of Salisbury Street Foundation and are legally unenforceable. Mr McCorkindale will not necessarily be in breach of the conditions for his ESO if he breaches those rules. In that case, it is submitted there is no power for Corrections to take action.
[90] I do not accept that there are no consequences for Mr McCorkindale in respect of the special conditions of his ESO if he is in breach of the house rules of Salisbury Street Foundation. As Ms Voice was at pains to explain, the house rules seek to engage the offender, in this case Mr McCorkindale, to comply with the way in which the houses are run. If Mr McCorkindale is in breach of any of the supervision, monitoring or programme requirements, or indeed, withdraws his consent to comply with the house rules, the Salisbury Street Foundation would have no hesitation in contacting his Probation Officer and advising that he is in breach of his residential condition. Mr McCorkindale’s withdrawal of consent or failure to comply with the house rules would mean that he is effectively no longer wishing to reside at the Salisbury Street Foundation on the terms provided. This immediately raises special condition four, which is his residential requirement to live at the Salisbury Street Foundation.
[91] Unlike the decision in Coleman v Chief Executive of the Department of Corrections,54 I consider that the Salisbury Street Foundation house rules do not amount to the house arrest of Mr McCorkindale. Nor do they provide a basis for a habeas corpus challenge in these circumstances, because Mr McCorkindale wishes this outcome and consents. I deal further with Mr McCorkindale’s consent in the final section of this judgment.55
54 Coleman v Chief Executive of the Department of Corrections [2020] NZCA 210.
55 See [103]-[108] of this judgment.
[92] I therefore find that the proposed programme is a reintegrative programme and, together, the conditions of Mr McCorkindale’s ESO do not amount to intensive monitoring. The programme condition is lawful.
Is the care condition unlawful?
[93] Corrections challenge the placement of Mr McCorkindale in the care of an agency with whom he resides. The conflict here arises because s 107K(3)(bb)(ii) places a restriction on programmes ordered as part of the special conditions for an ESO, namely that the condition cannot require the offender to reside with an agency in whose care the offender is placed for a programme.
[94]The wording of condition two is that Mr McCorkindale is:
To be placed in the care of an agency approved by the Chief Executive and between the hours of 7.00 am and 11.00 pm and, while in the care of that agency, to be accompanied and monitored by an agency staff member at all times …
[Emphasis added]
[95] Corrections points to this wording in special condition two, where the Parole Board ordered that Mr McCorkindale was to be placed “in the care of” an approved agency, namely Salisbury Street Foundation, between the hours of 7 am and 11 pm. Special condition four then requires Mr McCorkindale to reside at an address as directed by the Probation Officer. That address must be Salisbury Street Foundation, if that is where he is to reside.
[96] Corrections submits that on a plain reading of those conditions, requiring Mr McCorkindale to both reside with the Salisbury Street Foundation and placing him in the care of the Salisbury Street Foundation, they are contrary to s 107K(3)(bb)(ii). Corrections called Mr Rendall, principal advisor for the high-risk response team at Corrections, to identify the problem: condition two places Mr McCorkindale in the care of an agency with whom he resides.
[97] I accept the wording of condition two, alongside condition four, conflicts with the requirement of s 107K(3)(bb)(ii) of the Parole Act and should be reviewed by the Parole Board. The problem, as noted, arises from the placement of Mr McCorkindale
“in the care of” Salisbury Street Foundation, when he is going to be a resident with the Foundation and is to undertake a reintegration programme with the Foundation, as set out in condition three. I suggest that the Parole Board consider this wording at the next review to reflect the fact that Mr McCorkindale will reside at Salisbury Street Foundation and will be monitored by a Foundation staff member to ensure his participation in the programme.
[98] In any event, the wording of condition two does not reflect how Salisbury Street Foundation propose to run Mr McCorkindale’s programme or the basis on which he is to be managed by the agency, as Ms Voice has made clear. The differences are:
(a)Mr McCorkindale is to live in Salisbury Street Foundation’s high security house, which is his choice. He does not need to be “placed in the care of” the agency; and
(b)Mr McCorkindale is not accompanied at all times between 7 am and 11 pm, but he is to be accompanied and monitored when he undertakes planned trips into the community as part of his programme. Mr McCorkindale is able to pursue activities of his choice within the house without being “accompanied” or “monitored” on a one-to-one basis.
[99] The most important factor in my assessment overall is that all of the experts in this hearing were agreed that the ESO with the special conditions and the programme proposed by Salisbury Street Foundation is the best and least restrictive option that can be made for Mr McCorkindale, while appropriately and adequately mitigating his risk of reoffending. It is critical therefore, that the infelicitous drafting of condition two should not determine the Court’s wider assessment under the Public Safety Act.
[100] As set out above, the purpose of the Public Safety Act is not to punish persons against whom orders are made under that Act. Both the Supreme Court in Chisnall and the Court of Appeal in McCorkindale v Department of Corrections have
reinforced that a PPO should not be made unless there is no alternative and less restrictive option.
[101] The conflict between s 107K(3)(bb)(ii) of the Parole Act and the policy, purpose and principles of the Public Safety Act in interpreting condition two must be resolved, in my view, by taking a purposive approach to interpretation, to give effect to the purpose of the Public Safety Act.56 That is the Act under which the Court is required to exercise its discretion and which is paramount in these circumstances.
[102] I therefore find that condition two with condition four is not unlawful. I turn to the remaining issue of consent.
Mr McCorkindale’s consent
[103] It was made clear to the Parole Board that Mr McCorkindale consented to the special conditions the Board imposed. His consent was repeated in this hearing, through his Counsel and through Mr Metoui, the clinical psychologist. Mr Metoui considers the scenario of Mr McCorkindale walking away if there are any gaps in his programme is unlikely or at a low risk of occurring because Mr McCorkindale wishes to please those around him. Although Corrections has submitted that consent is integral to these conditions, it is not a precondition or a requirement of them. This accords with s 107K(IA) of the Parole Act, which stipulates that the offender’s consent is not required for special residential conditions. Nonetheless, Mr McCorkindale wants to return to the Salisbury Street Foundation and consents to the special conditions imposed by the Parole Board, including those of monitoring and supervision, as part of his programme.
[104] I do not uphold Correction’s submissions that Mr McCorkindale’s consent makes the alternative option risky. Although inapplicable in that case, it was accepted in Chief Executive of the Department of Corrections v R that a regime based on consent, although it risks withdrawal of consent, is not excluded.57 The Judge concluded that there may be cases where there is sufficient confidence that the
56 Ross Carter Burrows & Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 220.
57 Chief Executive of the Department of Corrections v R [2018] NZHC 3455 at [54].
withdrawal of consent will not result in unmanageable risk or where there is a high level of confidence consent will not be withdrawn.58 Both are true in this instance.
[105] As I have already stated, if Mr McCorkindale does not comply with his special conditions or withdraws his consent to be supervised and/or monitored in respect of the programme designed for his management, his residential condition will no longer be met and he would be in breach of condition four. In that way, his Probation Officer would take the necessary steps. Consequences, as Mr McCorkindale fears, may well then ensue. Again, there is a high level of confidence that Mr McCorkindale’s consent will not be withdrawn.
[106] Of relevance to these issues, the Parole Board has recently considered a similar case where an offender, whose intensive monitoring condition was set to expire, sought special conditions to enable him to accompanied and monitored in a way that was permitted by ss 107IAC and 107K(3)(bb)(i). In that case, the Parole Board imposed a new special condition which is worded as follows:59
From the date on which the intensive monitoring ceases to apply, in order to ensure your attendance at classes or participation in other activities associated with your reintegration programme you are to be accompanied and monitored by a person approved by the programme provider at all times when travelling to or from those classes or activities and throughout the period of time that you are undertaking, engaging in or completing those classes or activities.
[107] In making that condition, the Parole Board addressed whether the special condition was in breach of the Parole Act. In finding that it was not in breach, the Parole Board said this:
48.In our view that new special condition is not in breach of the Act. Section 107(3)(bb)(i) refers to not only supervision and monitoring but also to “other restrictions”. In our view a restriction that requires Mr Barton to be accompanied and monitored to ensure his attendance at classes or other activities (which by the Department’s own admission will include trips to the market and similar) is in line with the provisions of that section.
49.In that regard we note too that the wording used in the section refers to ensuring Mr Barton’s participation “in other activities associated with the programme” (emphasis added). Arguably that can cover activities outside the programme itself but “associated” with it.
58 At [54].
59 Barton v Department of Corrections New Zealand Parole Board, 21 May 2020.
50.The Board considers that the new condition is necessary to “ensure” Mr Barton’s attendance at any classes or participation in any activities associated with the reintegration programme because Mr Barton has made it clear through counsel that unless he is accompanied when he leaves the Springhill External Village he will not leave. If he does not leave Springhill External Village he is not able to attend the requisite classes or participate in other activities associated with the programme. Requiring him to be accompanied and monitored for this purpose will “ensure” that he leaves the village to participate in his programme.
51.The new special condition is not the same as intensive monitoring by another name. Although it will apply for the periods of time that Mr Barton is away from Spring Hill [sic] External Village for the purpose of attending classes or participating in other activities associated with the programme, it will not apply once he returns to the village. His activities once on site will be the subject of GPS monitoring and the overnight curfew. That is different from the current intensive monitoring regime as it was described to us at the hearing. The intensive monitoring condition does permit Mr Barton to be supervised by person-to-person monitoring while on the grounds of the Springhill External Village.
52.It is our view that the new special condition is lawful, workable and reflects, to the extent possible within the Act, our understanding of Mr Barton’s desire to be accompanied when he leaves the Springhill External Village. The question of whether there are gaps in this regime (for example in relation to possible “free time”) are issues which no doubt the Court will turn its mind to in the context of any continuance of the PPO proceedings.
[108] I conclude that Mr McCorkindale’s consent is relevant to this Court’s assessment. It provides an additional reassurance that he will comply willingly with the conditions.
CONCLUSION
[109] In summary therefore, there are five reasons why the ESO with special conditions is the least restrictive option for Mr McCorkindale and the PPO should not be made. They are:
(a)the conditions together do not amount to intensive monitoring;
(b)the alternative option is consistent with the policy and principles of the Public Safety Act;
(c)the alternative option is the least restrictive and most humane;
(d)Mr McCorkindale wishes to reside with the Salisbury Street Foundation and consents to his special conditions, despite his consent not being required. There is a high level of confidence that his consent will not be withdrawn, and in the event that it is, it would trigger a breach of special condition four of the ESO, being the residential condition, which would not result in unmanageable risk; and
(e)it is contrary to human rights interests to apply the reasoning in decisions involving Bill of Rights challenges when the reverse position applies to Mr McCorkindale, namely, that it is humane and in his best interests that the alternative option is adopted, instead of a PPO.
[110] As the Supreme Court has held, if conditions can be put in place without detention that remove or restrict opportunity to an extent that there is no longer a very high risk of imminent offending of the type, a public protection order should not be made.60 This applies aptly to Mr McCorkindale’s circumstances.
Result
[111]The application for the public protection order is declined.
[112] The extended supervision order made on 29 April 2016, with the special conditions ordered by the Parole Board on 30 August 2017, remains in force.
60 Chisnall, above n 17, at [40].
Costs
[113] If Counsel are unable to agree on costs, memoranda are to be filed by Counsel for Mr McCorkindale within 10 working days of the date of receipt of this judgment. Counsel for Corrections is to reply within a further 10 working days. Memoranda are to be no more than five pages.
Cull J
Solicitors:
Raymond Donnelly & Co, Christchurch for the Crown Michael Starling, Christchurch
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