Deputy Chief Executive of the Department of Corrections v McCorkindale
[2019] NZHC 2771
•30 October 2019
NOTE: SUPPRESSION ORDERS MADE BY THE HIGH COURT IN S2/99 ON 28 MAY 1999, AND GENDALL J’S JUDGMENT OF 17 OCTOBER 2017 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-409-001237
[2019] NZHC 2771
BETWEEN DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
ROBERT JOHN McCORKINDALE
Respondent
Hearing: 24 October 2019 Appearances:
C Boshier for Applicant
M Starling and N Wham for Respondent
Judgment:
30 October 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 30 October 2019 at
11.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 30 October 2019
[1] Mr McCorkindale is acknowledged to be at very high risk of serious sexual offending.1 However, since being released from prison for sexual offending against two young children, he has not re-offended. Instead, he has been managed successfully in the community under extended supervision orders (ESOs) imposed under the Parole Act 2002, with 24 hour a day monitoring and supervision.
1 McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369 at [17].
DEPUTY CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v McCORKINDALE [2019] NZHC 2771 [30 October 2019]
[2] However, the statutory regime for ESOs was amended in 2014. As a result, ESOs can only require a person to submit to 24 hour a day monitoring (intensive monitoring) for a maximum period of 12 months. If ongoing intensive monitoring is required, that is now to be achieved through a Public Protection Order (PPO) made under the Public Safety (Public Protections Orders) Act 2014 (the Public Safety Act). The applicant has sought that a PPO be made in respect of Mr McCorkindale.
[3] Mr McCorkindale is currently subject to an interim detention order (IDO) under the Public Safety Act and is housed in the Matawhāiti Unit, being a purpose-built public protection residence set up in a fenced enclosure alongside Christchurch Men’s Prison.
[4] At this hearing he sought suspension of the IDO, on conditions, under s 107(3) Public Safety Act, so that he can return to the regime he was previously on under an ESO, where he resided at a residence in Christchurch managed by the Salisbury Street Foundation under 24 hour a day supervision.
[5] The critical issue in this case is whether there is jurisdiction to use the power under s 107(3) of the Public Safety Act to suspend the IDO which currently applies so that he can live under the former management regime, when there is no longer any power to impose such a regime through an ESO imposed under the Parole Act.
The history of Mr McCorkindale’s post-release management
[6] The history of Mr McCorkindale’s management since his release from prison in early 2006 was set out as follows in the Court of Appeal’s recent judgment in relation to Mr McCorkindale:
[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. 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. He wishes to return to live at this facility. The providers remain willing to have him and a place is available for him.
[8] The difficulty for Mr McCorkindale and others in his position is that an intensive monitoring condition cannot continue beyond 12 months. Further, any condition requiring participation in a programme must not require the person to reside with any person or agency in whose care he or she is placed. This means that the conditions previously imposed under the earlier ESOs, which were demonstrably sufficient to manage Mr McCorkindale’s risk while allowing him to live in the community, are no longer available as a result of the 2014 amendments to the legislation. This is what prompted the respondent’s application for a PPO.
(footnotes omitted)
[7] The Court of Appeal was seized of the matter because Mr McCorkindale had appealed the High Court’s decision to grant the PPO applied for by the applicant.2 The Court of Appeal allowed the appeal on the ground that the High Court did not have the expert assistance it needed to determine whether a PPO was the least restrictive outcome appropriate in all the circumstances. It remitted the application back to the High Court to enable this issue to be explored fully.
[8]The Court of Appeal’s judgment then recorded the following:
[20] Counsel agree that if the PPO is quashed, this will automatically enliven the interim detention order made by consent on 26 April 2017. The parties previously agreed to this order being suspended pursuant to s 107(3) of the Act pending determination of the application for a PPO. Mr Starling submits that the order should remain suspended because this would allow Mr McCorkindale to return to the Salisbury Street Foundation in Christchurch pending the rehearing. While he acknowledges this will inevitably cause some upheaval, Mr Starling submits this would be proportionate to the benefit to Mr McCorkindale, even if it is only for a short period. …
(footnotes omitted)
2 Chief Executive of the Department of Corrections v McCorkindale HC Christchurch CIV-2016-409-1237, 17 October 2017.
[9] However, the applicant pointed out that the IDO was only suspended on condition that Mr McCorkindale would continue to be subject to intensive monitoring. That was no longer an option because the 12 month time limit on intensive monitoring conditions had expired. For that reason, the applicant submitted that if the PPO was quashed, the IDO should be operative pending the rehearing.
[10] The Court of Appeal agreed and made an order that the IDO was to be in full force and effect until the application for a PPO was finally determined or until further order of the High Court.
This application
[11] The application for a PPO is not scheduled to be heard until early 2020 as it cannot proceed until further health assessor reports are completed. In the interim, Mr McCorkindale makes application for the IDO to be suspended under s 107(3) Public Safety Act and for the Court to impose conditions which mirror those which applied when he was subject to an ESO on intensive monitoring conditions. Mr Starling advised the Court that Mr McCorkindale consents to such conditions being imposed.
[12] Mr Starling confirmed that the Salisbury Street Foundation was willing and able to take Mr McCorkindale on the same regime as before and Ms Voice, a representative of the Foundation, was present in Court to answer any queries regarding what was proposed. However, on the basis that what was proposed was exactly the same regime as Mr McCorkindale was on when the IDO was previously suspended (and the same regime he had been under during the 11 years that he was subject to an ESO with intensive monitoring), I had no concerns about the practicality of what was proposed.
[13] I also record that if there was jurisdiction to substitute that regime for the IDO, I am satisfied that it would meet the objective of the Public Safety Act, which 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”.3
3 Section 4.
[14] The focus of the hearing, therefore, was on whether there was jurisdiction to use s 107(3) in this way when there was no longer any statutory power to impose an ESO with the intensive monitoring proposed.
Submissions on behalf of Mr McCorkindale
[15] Ms Wham made submissions on the jurisdictional issue. She referred to the Supreme Court’s decision in Chisnall v Chief Executive of the Department of Corrections where, in the majority judgment, the Court addressed the ability to suspend an IDO and to impose, instead, an interim supervision order.4 Although the Court stated that it “does not fit well with [the purpose of the Public Safety Act] to read suspension of an order under s 107(3) as an alternative to an order under s 107(2)”,5 Ms Wham submitted that the Court did not express a concluded view on this issue.
[16] The majority also referred to the decision in Chief Executive of the Department of Corrections v McIntosh, where Mr McIntosh’s intensive monitoring condition on his ESO was due to expire and an application for a PPO was made.6 Because that application could not be dealt with before the expiry of the intensive monitoring condition, an IDO was sought and made and, with the agreement of the parties, it was suspended subject to conditions reflecting those which had been imposed under the ESO. The majority in Chisnall said “we do not need to decide whether or not that was a correct exercise of the suspension power”, and, again, Ms Wham submitted this did not foreclose the option of using the suspension power in the way proposed.7
[17] Ms Wham also referred me to the decision in the Chief Executive of the Department of Corrections v R, where Whata J invited the parties to identify an alternative form of management of the individual in that case to mitigate his risk of reoffending.8 Rather than impose a PPO, Whata J adjourned matters, saying that he had in mind:9
4 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83.
5 At [87].
6 Chief Executive of the Department of Corrections v McIntosh [2016] NZHC 1163.
7 At [93].
8 Chief Executive of the Department of Corrections v R [2018] NZHC 3106.
9 At [47].
A type of supervision (if lawful) previously undertaken by Te Roopu Taurima, which involves (among other things) line of site monitoring during daylight hours and curfew in alarmed premises in the evenings.
[18] He also indicated that “provided there can be surety of informed consent, this less restrictive alternative intuitively strikes the proper balance between … public protection … and R’s liberty”.10 Given in that case, the High Court was prepared to entertain imposing conditions by consent, Ms Wham submitted the same approach should be adopted here.
Submissions for the Chief Executive
[19] Ms Boshier, for the applicant, did not challenge the appropriateness of what was being proposed in terms of protecting public safety. However, she submitted that there were clear jurisdictional barriers to the Court using the suspension power in s 107(3) to effectively impose a supervision regime on Mr McCorkindale which could no longer be imposed lawfully under the Parole Act.
[20] She noted that it was accepted that the grounds for making an IDO were made out and the issue was whether there was an alternative to an IDO which would meet the risk which Mr McCorkindale poses. She pointed out that the evidence before the Court is that if Mr McCorkindale is in the community, he requires 24 hour monitoring to manage the risk that he poses.11 As the intensive monitoring period under Mr McCorkindale’s ESO has expired, there is no statutory authority for him to be subject to 24 hour monitoring. Furthermore, the Court of Appeal agreed that an ESO without intensive monitoring would not be appropriate for Mr McCorkindale which is why it determined that the IDO ought to be in full force and effect in the interim.
[21] Ms Boshier submitted that there was no jurisdiction to suspend an IDO in the way sought on behalf of Mr McCorkindale in order to allow him to return to the previous supervision regime at the Salisbury Street Foundation. In her submission, the majority of the Supreme Court in Chisnall clearly reached the view that s 107(3) could not be used to impose an alternate management regime to an IDO. They said
10 At [49].
11 Deputy Chief Executive of the Department of Corrections v McCorkindale, above n 2, at [76], [78], [79], [82], [90] and [93].
that treating the power to suspend an IDO, as a distinct alternative to making an IDO, was not consistent with the statutory purpose or scheme of the Public Safety Act.12 Indeed the majority said:13
If the criteria for making an interim order are met, the court may make the order but suspension, albeit with conditions, is a counter-intuitive response given the criteria are met. If they are not met, the order is not made.
[22] They went on to say that “the absence of any enforcement regime for non-compliance with these conditions also tells against the use of an order under s 107(3) as a distinct alternative to an order under s 107(2)”.14 In discussing the purpose of the power in s 107(3), the Court opined that it was to deal with “particular, one-off situations such as illness …, bereavement, the need for an assessment of some sort, or some other particular situation that arises”, but the Public Safety Act does not suggest that it can be used as “a broader, stand alone, alternative to an order under s 107(2)”.15
[23] Although the majority go on to discuss cases where similar issues have arisen, they point out that in Kerr, Nation J accepted that the High Court did not have jurisdiction to impose a monitoring order as an interim detention order had been made, and could only make such an order at the same time as imposing an extended supervision order.16
[24] In summary, the Supreme Court’s decision in Chisnall clearly rejected the idea that the power to suspend in s 107(3) of the Public Safety Act could operate as a distinct alternative to the making of an interim order under s 107(2) of that Act, which is what is effectively sought on behalf of Mr McCorkindale in this case.
[25] That reading of the Supreme Court’s judgment in Chisnall was confirmed subsequently by the Court of Appeal, where it was noted that the Supreme Court was unanimous save on the issue of whether the High Court had erred by failing to consider
12 Chisnall v Chief Executive of the Department of Corrections, above n 4, at [86].
13 At [87].
14 At [88].
15 At [91].
16 Chief Executive of the Department of Corrections v McIntosh, above n 6; Chief Executive of the Department of Corrections v Kerr [2017] NZHC 139; and Chief Executive of the Department of Corrections v Campbell [2017] NZHC 147.
whether the risk established would be properly contained by suspending an interim detention order under s 107(3) of the Public Safety Act.17 The Court of Appeal noted that:18
The Chief Justice took the view that, at the stage of an application for an interim order, the Court could make such an order, but immediately suspend it on conditions that the Court was satisfied would meet the identified risk in the meantime. The majority did not consider that to be an option.
[26] Ms Boshier responded to the submission that the decision of Whata J in Chief Executive of the Department of Corrections v R left open the door to such a regime being adopted by consent by pointing out that in a subsequent decision, Chief Executive of the Department of Corrections v R (No 2), Whata J revisited the legality of such a proposal.19 In that case, intensive monitoring was no longer available to R, because he had already been subject to the statutory maximum of 12 months’ intensive monitoring and the issue was whether he could consent to equivalent restrictions as an alternative to making a PPO.
[27] Although Whata J was satisfied that placement in a residential facility on the conditions proposed would adequately mitigate the risk presented by R, he held that there were major difficulties presented by a programme which is dependent on R’s consent. He noted that, should R withdraw that consent, the Department of Corrections and the residential facility “may well find themselves acting unlawfully should they purport to then monitor and or restrain R”, and the applicant “cannot be expected to operate on such an uncertain basis”.20 Whata J also considered “whether R’s indication to this Court that he consents to 24/7 care provides a sufficient basis for that to be enforced pending further application to the Court to have that care removed”.21 However, he considered that “such judicial creativity would severely strain the legislative scheme and the considerations that underpin it”.22
[28] Ms Boshier submits that the ability to impose intensive monitoring while the IDO was suspended would rely on Mr McCorkindale’s consent because there was no
17 Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 at [11].
18 At [11] referring to [85]-[91] in the Supreme Court’s decision.
19 Chief Executive of the Department of Corrections v R (No 2) [2018] NZHC 3455.
20 At [49].
21 At [50].
22 At [50].
other statutory power to impose it. That would create exactly the same problems as Whata J grappled with in the case of R (No 2). For these reasons, notwithstanding the efficacy of the previous regime, there was no jurisdiction to impose it through conditions imposed under a suspension of the IDO, and the IDO should remain in full force and effect.
Discussion
[29] What is being proposed for Mr McCorkindale is to effectively use the power of suspension under s 107(3) as an alternative to an order under s 107(2). That is directly contrary to the majority view in the Supreme Court’s decision in Chisnall. For all the reasons discussed in the Supreme Court decision, including:
(a)consistency with the statutory purpose and scheme of the Public Safety Act;
(b)the indicated purpose of the power of suspension suggested by ss 111 and 139 of the Public Safety Act;
(c)the absence of any enforcement regime for non-compliance with conditions imposed under s 107(3); and
(d)the inability to impose intensive monitoring under any other Act (because in this case Mr McCorkindale has spent the statutory limit of 12 months under intensive monitoring),
I accept there is no jurisdiction to use the suspension power in this way. If intensive monitoring is required, as is at least the provisional view in this case, that can only be imposed through an IDO or PPO made under the provisions of the Public Safety Act.
[30] I also consider that relying on Mr McCorkindale’s consent to impose the equivalent of intensive monitoring conditions on him would place an unfair burden on staff at the Salisbury Street residence. Furthermore, such a fragile jurisdictional basis would not be adequate to meet the public protection objective of the Public Safety Act.
[31] For these reasons, as the Court of Appeal determined, the IDO must remain operative pending the rehearing of the application for the PPO.
Conclusion
[32] Despite my view that placement with the Salisbury Street Foundation under intensive monitoring conditions would most appropriately balance the purpose of protecting the public with Mr McCorkindale’s right to liberty, I am satisfied the only mechanism by which the requisite 24 hour monitoring can be imposed lawfully is through the IDO which currently applies to Mr McCorkindale.
[33] Accordingly, the application by Mr McCorkindale to suspend the IDO and allow him to reside with the Salisbury Street Foundation, on conditions reflecting his previous ESO with intensive monitoring, is declined. The IDO will continue in force until the substantive application for a PPO is determined.
Solicitors:
Raymond Donnelly & Co., Christchurch M Starling, Barrister, Christchurch
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