Togia v General Manager, Rimutaka Prison HC Wellington CIV-2007-485-358

[2007] NZHC 1687

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-358

UNDER  the Habeas Corpus Act 2001

IN THE MATTER OF     an application for a Writ of Habeas Corpus

BETWEEN  SOLOSOLO TOGIA Applicant

ANDTHE GENERAL MANAGER, RIMUTAKA PRISON Respondent

Hearing:         28 February 2007

Appearances: Tony Ellis, Michael Bott and Alison Wills for Plaintiff

Val Sim and Allison Bennett for Defendant

Judgment:      28 February 2007

INTERIM JUDGMENT OF HARRISON J

SOLICITORS

Barbara Buckett & Associates (Wellington) for Applicant

Crown Law Office (Wellington) for Respondent

TOGIA V THE GENERAL MANAGER, RIMUTAKA PRISON HC WN CIV-2007-485-358 28 February 2007

Introduction

[1]      Mr Solosolo Togia was sentenced to a term of imprisonment in 2004.  Whilst he was serving that term the Family Court at Wellington issued a compulsory care order for him under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCRA).   The term of the order expires contemporaneously with his prison sentence.  Subsequently he was released on parole.  The New Zealand Parole Board has recently made an interim recall order on the ground that Mr Togia poses an undue risk to the safety of the community: s 62(1) Parole Act 2002.  He is now detained in custody at Rimutaka Prison.

[2]      Mr Togia has applied to this Court for a writ of habeas corpus on the ground that he is being unlawfully detained in prison.  Through his counsel, Mr Tony Ellis, he says that the effect of the compulsory care order was to transfer him out of the jurisdiction   of   the   Department   of   Corrections   and   of   the   Parole   Board. Consequently,  raising  an  argument  that  shades  into  an  application  for  judicial review, he argues that the recall order was a nullity.

[3]      Mr Togia’s  application  was  made  under  constraints  of  urgency.     Both Mr Ellis  and  Ms Val  Sim,  for  the  General  Manager  of  Rimutaka  Prison,  have prepared careful written submissions for and against the application at short notice, supplemented by oral argument this morning.  I shall return to this feature shortly.

Background

[4]      The relevant facts are not in material dispute:

(1)On 13 August 2004 Mr Togia was sentenced in the District Court at Wellington to a term of three years imprisonment on a charge of aggravated   robbery.      The   sentencing   Judge   noted   Mr Togia’s

‘somewhat limited intellectual capability’.   That sentence, allowing for time served, is due to expire on 26 November 2007.   He was eligible to apply for parole on 28 July 2005;

(2)On 23 February 2006, while Mr Togia was still in Rimutaka Prison, the Family Court at Wellington made an order placing him under compulsory care.   Psychological evidence submitted in support established that Mr Togia was below average intelligence and met the criteria for intellectual disability.   The term of the order expires on

26 November 2007, the same date as the expiry date of Mr Togia’s term of imprisonment;

(3)On 6 April 2006 the Parole Board made an order releasing Mr Togia on parole from 19 April 2006 on standard conditions together with special conditions commencing on the day of release for 12 months. Among them were a direction that Mr Togia was ‘to reside at Timata Hou residential accommodation, or at an address approved by the probation  officer’:  s 21(1)  Parole  Act  2002.    The  Department  of Corrections made an express direction to this effect on 19 September

2006;

(4)On 12 October 2006 the Family Court made an order varying the compulsory care order, to provide for secure care for Mr Togia ‘at Timata Hou under an increased level of supervision’: s 56 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003;

(5)While at Timata Hou Mr Togia commenced a sexual relationship with a female staff member.  In time he left Timata Hou and went to live with the woman at her house.  On 29 January 2007 they argued and the police were called.  He subsequently pleaded guilty to a charge of speaking threateningly, a summary charge with a maximum penalty of  three  months  imprisonment.     He  was  sentenced  to  40 hours community work.

[5]      On 30 January 2007 Capital and Coast District Health Board wrote to the Department  of  Corrections  in  response  to  a  request  for  the  background  behind Mr Togia’s legal status under the IDCCR Act and his level of functioning.  The letter reported:

During the last twelve months, Mr Togia’s stay at the community based service provider has been problematic.  Mr Togia’s unwillingness to engage in his rehabilitative programme, his rejections of that environment and his propensity to abscond, has resulted in an early review of Mr Togia’s care order by Specialist Assessor…  At the time of this report being written, the Specialist Assessor’s review has not been formally submitted to Court. However, the likely recommendation from the Specialist Assessor is that Mr Togia’s care order be removed.  Responding to Mr Togia’s absconsions by placing him in a hospital level secure setting, purely as a method of containment, was not considered suitable or appropriate…

Upon removal of Mr Togia’s care order, it is envisioned that reasonable safeguards will need to be put in place in an attempt to provide Mr Togia with practical support…

[6]      On 31 January 2007 the Parole Board made an interim recall order following an application for that purpose.  A warrant was issued contemporaneously to deliver Mr Togia to the Manager of Rimutaka Prison.  The order was made on the ground that Mr Togia poses an undue risk to the safety of the community or to a person or class of persons: s 62(1) Parole Act.   The order directed Mr Togia’s detention in custody pending determination of the application for recall.

Decision

[7]      This  application  raises  an  issue  of  general  importance.    At  one  level  it recognises the distinct regime imposed for the care of an intellectually disabled prisoner under the IDCCRA.   At a different and more fundamental level it raises questions about the jurisdiction of the Parole Board to deal with or recall a sentenced prisoner who is subject to a compulsory care order.   A review of the relationship between the IDCCRA, the Corrections Act and the Parole Act, and the reach of each, lies at the heart of Mr Togia’s application.  Resolution of these issues will require careful and detailed consideration of the relevant legislative provisions applicable to the detention of a sentenced prisoner following a compulsory care order.

[8]      Having heard from both counsel today, I am satisfied that Mr Ellis’ argument that the effect of the compulsory care order made for Mr Togia operates to oust the powers of the Parole Board is strongly arguable.  The issue is of such importance that neither counsel nor I can do it justice today.   All of us are acting under the statutory constraints imposed by the Habeas Corpus Act coupled with the Parole

Board’s intention to make a final decision on the application for recall on 2 March

2007.

[9]      In  the  circumstances  I  propose  to  grant  Mr Togia’s  application  on  a provisional basis.  I make an interim order for his immediate release from detention at Rimutaka Prison pending final determination of his application subject to the qualification (responsibly proposed by Mr Ellis) that he be  released  to  a  secure facility in terms of the IDCCRA.  After taking instructions Ms Sim advises that the Ministry of Health has a place available through Capital Coast Health at Homoteke, or such other secure facility as may be suitable.   Mr Togia is to be detained there until further order of this Court.

[10]     All counsel agree that the issue should be fully argued on a final basis, reserving leave to adduce further evidence if necessary.   Accordingly, I make timetable orders as follows:

a)        By 4 pm on 9 March 2007:

i)The General Manager is to file any affidavit or affidavits in answer;

ii)       Ms Sim is to file a supplementary synopsis of submissions;

b)By  4  pm  on  16  March  2007  Mr  Ellis  is  to  file  a  synopsis  of submissions in reply.

[11]     Leave is also reserved to either party to apply to this Court for further orders in the event that any questions, issues or disputes arise relating to Mr Togia’s interim custody or detention.  The Registrar will liase with counsel and arrange a suitable date to hear the substantive application, hopefully in late March 2007.

[12]     I thank counsel for their considerable assistance in dealing with this difficult

issue at short notice.  I reserve the question of costs for determination later.

Rhys Harrison J