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Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 (19 December 2016)

Last Updated: 6 January 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
20 October 2016
Court:
Asher, Heath and Dobson JJ
Counsel:
T Ellis and G K Edgeler for Appellant D J Perkins for Respondent
Judgment:


JUDGMENT OF THE COURT

A The appeal is dismissed.

B No order as to costs.
____________________________________________________________________

REASONS OF THE COURT

Asher and Dobson JJ [1]
Heath J [71]

ASHER AND DOBSON JJ

(Given by Asher J)

Introduction

[1] The appellant, Mark Chisnall, is 30 years’ old. He has spent most of his adult life in prison following convictions for sex offending. He was due for release on 27 April 2016, having served a full 11-year sentence for two counts of sexual violation by rape.[1]
[2] On 15 April 2016, 12 days before that projected release, the Chief Executive of the Department of Corrections (the Chief Executive) applied for a public protection order under the Public Safety (Public Protection Orders) Act 2014 (the Public Safety Act) or, in the alternative, an extended supervision order under the Parole Act 2002. The Chief Executive also applied for an interim detention order, interim supervision order or interim conditions pending the outcome of the substantive applications. On 22 April 2016 Fogarty J issued a results judgment granting an interim detention order.[2] On 26 April 2016 he released a judgment setting out his reasons.[3] This appeal challenges that decision granting the interim detention order.

Mr Chisnall’s background

[3] Mr Chisnall was born on 5 March 1986. The various reports that we will refer to in due course show that he had a troubled background. His mother found him to be a very difficult child and Mr Chisnall alleges that he suffered physical abuse as a child. He was described in the reports as being aggressive through kindergarten and school with regular involvement in assaults. He had learning difficulties. There were issues with drugs and he has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). There is also a reference in the reports to an occasion of a very serious assault on his mother when Mr Chisnall broke her jaw and tried to strangle her. The reports disclose that when he was 10 he watched a pornographic movie in which women were raped and killed, which led to an interest in movies depicting rape and violence. Mr Chisnall has reported that he was sexually preoccupied from that age.
[4] In 2001 when he was 14 or just 15 he raped an eight-year-old girl in a park in a small Taranaki town. The offending was not at that point revealed and he was not sentenced in relation to this event until 31 July 2009.
[5] Some days after the offending against the eight-year-old girl, Mr Chisnall induced a seven-year-old boy to perform oral sex on him. He was immediately charged in relation to this offence. He was convicted of unlawful sexual connection and sentenced to one year and four months’ imprisonment with leave to apply for home detention.
[6] While he was on bail for those offences he was convicted and discharged for assaulting a 20-year-old female stranger. The victim reported that Mr Chisnall had said to her “you are coming with me” and when she said no he hit her on the head with a stick. She managed to run away and find help. Mr Chisnall has consistently denied this attack had a sexual intent, and he was not formally charged with a sexual offence. In 2004 when Mr Chisnall was living with caregivers, he admitted to them that he had been peeping and peering at a woman in a hotel room. He reported experiencing anger and sexual preoccupation that led to his offending.
[7] In 2005 when Mr Chisnall was aged 18 he had been waiting by a park to be collected to go to work. He saw a woman in her early 20s running past him. He grabbed the victim from behind and, using physical force to silence her, attempted to force her to perform oral sex. When she refused Mr Chisnall became enraged and twisted her head forcing her to submit. He then raped her. She was left traumatised and injured. Mr Chisnall has acknowledged this offending and he says that he was stimulated by the violence involved. He pleaded guilty to this offending and was sentenced by Miller J to eight years’ imprisonment, a sentence which took into account his guilty plea and youth.[4] The Judge refused a Crown request that he be sentenced to preventive detention. He also declined to make a compulsory care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the Intellectual Disability Act).
[8] In the course of Mr Chisnall’s 11 years in prison there have been reported incidents of violence. He has attended various programmes. There have been some positive references but the reports also indicate continuing threatening and aggressive behaviour and sexual fixations. We will refer in more detail to Mr Chisnall’s present position later in this judgment.
[9] The Chief Executive presented three health assessments from psychologists assessing Mr Chisnall’s risk to the public. Fogarty J concluded that he was satisfied from the reports that there was “clearly sufficient evidence of a very high risk” to justify an interim detention order.[5]
[10] Mr Ellis for Mr Chisnall contests this conclusion. He submits that the order for Mr Chisnall’s interim detention was unjustified in the circumstances. He argues there should be a strong presumption against the continued detention of someone who has served their entire sentence and that the evidence presented by the Crown was not sufficiently compelling. After an analysis of academic and popular commentary on the assessment of risk of reoffending he accepts that there was an arguable case for an extended supervision order but none for a public protection order. He refers at length to human rights jurisprudence and overseas case law, and he is very critical of the Crown delay in bringing the application.

The relevant statutory provisions

[11] There are a range of statutory provisions that are aimed at protecting the public from prisoners who, when released after serving the whole of a determinate sentence, are still regarded as at risk of committing serious sexual or violent offences. A primary measure available to a sentencing judge at the time of sentencing is the order of preventive detention, whereby offenders may only be released once the Parole Board is satisfied they will not pose an undue risk to the community.[6] Importantly, there are standard release conditions that are imposed for the rest of the offender’s life and the Parole Board may impose any special conditions that it considers appropriate.[7]
[12] From 7 July 2004 a statutory regime was created (pt 1A of the Parole Act) for extended supervision orders to ensure adequate post-release supervision of offenders who had completed a determinate sentence but were likely to commit sexual offending against children or young persons.[8] The new jurisdiction allowed the “sentencing court” to make extended supervision orders.[9] It was said of this regime in Belcher v Chief Executive of the Department of Corrections:[10]

[5] The purpose of the legislation is to limit the risk that offenders will reoffend in a sexual manner against children and young persons, a purpose which is made clear by the definition of “relevant offence” provided by s 107B and the eligibility criteria provided in s 107C.

[13] The Public Safety Act came into effect on 12 December 2014 in conjunction with contemporaneous amendments to the extended supervision scheme.[11] This Act was intended to be complementary to the extended supervision regime and provided for public protection orders, directed at both sexual and violent offending. The Parole (Extended Supervision Orders) Amendment Act 2014 changed the extended supervision regime by expanding the ambit of the provisions to relevant risks of future sexual or violent offending, as opposed to it being limited to offending involving children or young persons, and elevating the applicable test when considering whether to make an extended supervision order.[12] When directed solely at sexual offending against children and young persons the threshold was based on the likelihood of reoffending of that type.[13] Following the 2014 amendments the threshold was changed to “high risk” of relevant sexual reoffending, and “very high risk” of violent reoffending.[14]
[14] It was observed by the Minister of Corrections that public protection orders were able to address gaps and deal more appropriately with certain very high-risk offenders who did not receive a life sentence of preventive detention, or whose risk was appreciated only once they were in prison.[15] In moving that the Public Safety (Public Protection Orders) Bill 2012 be read for a second time, the Minister of Justice, Hon Amy Adams, observed:[16]

With regard to the test for imposing a public protection order, the bill requires that the person pose a very high risk of imminent serious sexual or violent offending if they are released or left unsupervised. This is a stringent test that officials estimate will apply to only five to 12 people over 10 years. The risk, however, of near-certain serious harm is an extremely compelling reason to detain these individuals in a secure civil facility until they no longer pose a serious threat to public safety.

[15] Consistent with these statements, the objective of the Public Safety Act set out at s 4 provides:

(1) The objective of this Act 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.

(2) It is not an objective of this Act to punish persons against whom orders are made under this Act.

[16] Consistent also are the principles set out at s 5:

5 Principles

Every person or court exercising a power under this Act must have regard to the following principles:

(a) orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:

(b) a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:

(c) a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

(d) persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.

[17] Section 13 then provides:

13 Court may make public protection order

(1) After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—

(a) the respondent meets the threshold for a public protection order; and

(b) there is a very high risk of imminent serious sexual or violent offending by the respondent if,—

(i) where the respondent is detained in a prison, the respondent is released from prison into the community; or

(ii) in any other case, the respondent is left unsupervised.

(2) The court may not make a finding of the kind described in subsection (1)(b) unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following 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.

[18] One of the issues that arises on this appeal is whether the High Court was prevented from making a public protection order because Mr Chisnall is said to suffer from intellectual disabilities.[17] In a situation in which an offender is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability Act, the apparent prohibition on making a public protection order, as evidenced by s 5(c), is qualified by s 12 of the Public Safety Act:
  1. Assessment whether respondent mentally disordered or intellectually disabled

(1) This section applies where a court is satisfied that it could make a public protection order against a respondent and it appears to the court that the respondent may be mentally disordered or intellectually disabled.

(2) The court may, instead of making a public protection order, direct the chief executive to consider the appropriateness of an application in respect of the respondent under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

(3) Where the court gives a direction under subsection (2), the court must, if the respondent is not then detained under section 107, order the interim detention of the respondent under that section.

...

[19] The default position is that a person to whom a public protection order applies must stay in a residence designated by the Chief Executive.[18] The Chief Executive may apply to the Court for an order that a person subject to a public protection order be detained in a prison instead of a residence.[19] Provision is made for residential orders (subpts 3–5) and prison detention orders (subtpt 6) as well as protective supervision orders (subpt 7). The orders must be reviewed at specified intervals.[20] An application is a civil proceeding.[21]
[20] A comparison between s 13 of the Public Safety Act and ss 107I and 107IAA of the Parole Act (dealing with extended supervision orders) demonstrates the elevated nature of the risk that must be established before a public protection order may be made. As could be expected, given the consequences of the different orders, the threshold is not as high for extended supervision orders as it is for public protection orders. Section 107I(1) states that the purpose of an extended supervision order is to protect members of the community from those who, following the receipt of a determinate sentence “pose a real and ongoing risk of committing serious sexual or violent offences”. Under s 107I(2) a health assessor’s report must show that the offender has or has had a pervasive pattern of serious sexual or violent offending, and that there is a “high risk” of a future relevant sexual offence or a “very high risk” of a future relevant violent offence.
[21] In contrast s 13 of the Public Safety Act sets out specific eligibility requirements for a public protection order, and has the higher threshold of a “very high risk of imminent serious sexual or violent offending”.[22] Both have a requirement of evidence of a severe disturbance in behavioural functioning,[23] but the requirements are higher in relation to the public protection order (evidence to a high level) and there are overlapping but not identical characteristics that must be established. There is an additional criterion in relation to public protection orders at s 13(2)(d) of “poor interpersonal relationships or social isolation or both”.
[22] It is also to be noted that the objective of the Public Safety Act of protecting against the “almost certain harm that would be inflicted by the commission of serious sexual or violent offences” does not apply to extended supervision orders.
[23] An offender subject to an extended supervision order is able to live in the community.[24] Not so a respondent to a public protection order who must live in a tightly controlled residential facility, or in a prison. The difference in the interference with the liberty of an offender between a public protection order and extended supervision order is indicated in the evidence required. For public protection orders, the evidence of two or more health assessors including at least one registered psychologist is required.[25] For extended supervision orders all that is required is a health assessor’s report.[26]

The test to be applied for interim detention orders

Different approaches

[24] As outlined, there is a detailed statement in s 13 of the Public Safety Act of what must be established by the Chief Executive before the Court may make a public protection order. In contrast s 107 of the Public Safety Act, creating the power for the Court to make an interim detention order, contains no statement as to the threshold for the order and there is no specific reference back to the criteria for public protection orders. Similarly, the provision for an interim supervision order in s 107FA of the Parole Act does not specifically refer to a threshold or to the criteria for an extended supervision order. Section 107 of the Public Safety Act provides:
  1. Court may order interim detention of, or interim imposition of conditions on, respondent

(1) This section applies when, before an application for a public protection order is finally determined, 1 or more of the following events occur:

(a) a respondent is released from detention:

(b) a respondent who is subject to an extended supervision order ceases to be subject to conditions of the kind referred to in section 7(1(b) or (c):

(c) the respondent is brought before the court under section 106:

(d) the court gives a direction under section 12(2):

(e) a respondent to whom section 7(1)(d) applies arrives in New Zealand.

(2) The court may, on an application by the chief executive, order that, until the application for a public protection order is finally determined, the respondent is to be detained by a person, and in a place, specified in the order.

(3) When the court makes an order under subsection (2) (an interim detention order), the court may suspend that order subject to any conditions that the court thinks fit.

(4) An order under this section ceases to have effect when the application for a public protection order is finally determined or discontinued.

[25] The Court considering whether to make an interim detention order must therefore turn to the other provisions of the Public Safety Act, and in particular the objective, the principles outlined in s 5, and the test to be applied to the making of permanent public protection orders.
[26] In dealing with applications for interim supervision orders under the Parole Act and interim detention orders under the Public Safety Act, some High Court Judges have adopted a balancing test derived from the test applied to interim applications in other civil proceedings.
[27] In Chief Executive of Department of Corrections v [W] the Court took the approach that it had to be satisfied that there was a good arguable case for a permanent detention order, and that there were no alternative arrangements that would satisfy the Court that the prima facie risk identified could be managed.[27] In Chief Executive of the Department of Corrections v Martin, which was an interim supervision order application only, it was held that the Court should have regard to all the circumstances including the prima facie strength of the application, the statutory framework and also the likely effect on the individual respondent.[28] The emphasis was on the safety of the community, which would be a matter of significant weight. If the Court was satisfied that in regard to these factors there was a sufficient and reasonable foundation for the interim supervision order and that its operation would be of short duration and on conditions necessary to protect the safety of the public, the Court had the power to make the order.[29] In Chief Executive of the Department of Corrections v Bradbury the Court expressed agreement with the view that the safety of the community was the paramount consideration,[30] and it was proposed that the approach set out in the judicial review case of Carlton & United Breweries Ltd v Minister of Customs[31] could be applied to an application for an interim supervision order.[32]
[28] This was not the approach adopted by Fogarty J when he considered this application. He rejected the invitation to follow civil jurisprudence and apply a balance of convenience test.[33] The issue was “risk of harm analysis” and, beyond that, he was “very reluctant to gloss s 5” of the Public Safety Act.[34] He concluded:

[40] I am satisfied from the three reports that there is clearly sufficient evidence of a very high risk to justify an interim detention order pending full consideration of the merits of a Public Protection Order or an Extended Supervision Order.

[29] The Crown has not suggested that the approach taken by Fogarty J was incorrect, even though it can be seen as less advantageous in an urgent situation to a balancing test, where the threshold of proof could be lower. It is necessary for us to consider whether Fogarty J was correct in his approach. Heath J in his separate judgment considers that there is a difference between the test applied in the application for an interim detention order and for a final public protection order.

Our approach

[30] In s 7 of the Public Safety Act the legislature has gone into considerable detail in specifying the threshold that a person must meet before an order can be imposed, and in s 13 the legislature has specified the very high threshold of risk to be proven on the balance of probabilities before a public protection order can be made. This is to be expected, given the potentially indefinite detention and other restrictions.
[31] The Public Safety Act must be read consistently with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).[35] As was noted in the AttorneyGeneral’s opinion regarding Bill of Rights Act consistency with the Public Safety Protection Bill, the Bill had to incorporate the key safeguards necessary for a civil committal regime.[36] In that opinion the Attorney-General, after having gone through the various safeguards set out in the Bill and the high standard of risk that must be established, concluded that the Bill was consistent with the Bill of Rights Act. The fact that the orders were not a punishment was noted.[37]
[32] Given a need for safeguards, it would be most surprising if the threshold for an interim detention order, which detains an offender who has served his or her sentence, required anything less than the same degree of proof as that required for a permanent public protection order. While an interim order can be assumed to be finite, and of a limited duration, it nevertheless requires a person who would otherwise be free, with all the rights of a released prisoner, being nonetheless held in detention. Such an intrusion into a respondent’s rights and freedoms, and the absence of any prescribed test for interim detention orders, indicates that the test should be the same high test that applies to public protection orders under s 13.
[33] This is consistent with the requirement for an originating application for a public protection order to be filed under s 104, and the requirement at s 9 for an application to be accompanied by the reports of at least two health assessors. We have no doubt that before an application for an interim detention order can be considered, an originating application for a public protection order and the necessary reports must have been filed, as was done here.[38] It cannot be contemplated that an interim detention order with these consequences could be considered without such a safeguard.
[34] Given that any application will include the reports of at least two health assessors, it will be practical for the Court in a hearing for an interim detention order to consider and apply the requirements and high threshold set out in ss 7 and 13, and by reference to the same standard of proof. Our review of the cases to date indicates that when interim detention orders have been sought there has generally been a degree of history and detail, as well as the required reports, presented to the Court. We do not see a major practical problem for the Crown in meeting the requirements for a public protection order. It was not suggested to us by the Crown that it was unfairly onerous to apply this high threshold. It can be expected that when interim detention orders are sought in respect of a respondent that the respondent will have been the subject of the attention of the prison authorities for some time and there will be a body of information already available that can be used to support an urgent interim application.
[35] The Court in considering an application for an interim order will of course recognise in making the order that it is only hearing one side of the story. It will recognise that the papers may have been prepared in haste. It will also recognise that there may be errors in the facts presented, or in the conclusions of the assessors that might become apparent at a full hearing, when the respondent and counsel have had an opportunity to examine the allegations and obtain further reports. The judge will understand that the material put forward, including the reports, may not be as full or extensive as might be expected (although there would have to be sufficient detail to meet the standard of proving on the balance of probabilities a very high risk).
[36] Just as it would be wrong to impose anything less than this high standard on the Crown, it would be wrong to allow a respondent to raise personal convenience factors, or other factors relevant to a balancing exercise. The public should be protected from “the almost certain harm that would be inflicted by the commission of serious sexual or violent offences”[39] by the detention of those who have the required characteristics to a high level, including “an intense drive or urge to commit a particular form of offending”.[40] Punishment is not an objective of the Act. Given the very high risk that a respondent will be said to pose to the community, there should be no room for a balancing of factors supporting a refusal of an order if the high threshold has been crossed. The Act makes no provision for a balancing of the circumstances of a respondent. It is focussed entirely on the prevention of risk. Public protection against almost certain harm is the sole objective.
[37] That is not to say that there could not be a countervailing factor that might lead the Court at a hearing for an interim detention order or public protection order to not make that order even where the s 13 threshold is crossed. This is because ss 13 and 107(2) use the word “may” rather than “must”. But any such countervailing circumstance, consistent with the object and purpose of the Public Safety Act, would have to be extraordinary; for instance a terminal illness and an alternative safelymanaged environment for the respondent. We do not consider that the word “may” indicates that a balancing of the kind used for civil interim injunctions or interim judicial review applications should apply.
[38] Section 12(3) of the Public Safety Act provides that where the Court gives a direction to the Chief Executive under s 12(2) to consider the appropriateness of an application under the Intellectual Disability Act or Mental Health (Compulsory Assessment and Treatment) Act, the Court must, if the respondent is not then subject to an interim detention order under s 107, make an order for interim detention under that section. In our view, if anything this confirms that the same high standard applies to interim detention orders as applies to public protection orders. This is because s 12(1) provides that the section only applies where the Court is satisfied that it could make a public protection order against the respondent. In other words, the high threshold for a public protection order already must be crossed before the Court will make an interim order.
[39] We recognise that under s 107GAA of the Parole Act when there has been an application for a public protection order the Court must not hear an application for an extended supervision order until the public protection order application has been completed and the Court has declined to make such an order. There is nothing in the terms of that section to indicate that it applies to interim applications. Whether it does or not, a requirement for sequential hearings does not suggest that any lower threshold ought to apply to the Court’s assessment of interim detention order applications than for final applications. We note that s 107GAA(4) provides that, if practicable, the second application is to be heard by the same judge that heard the first one. If the sequence contemplated in s 107GAA is applied to interim applications, then the less invasive application for an interim extended supervision order may well be ready to be argued, if practicable, immediately after the judge indicates the outcome on the application for an interim detention order. Although such proceedings are likely to be relatively few in number, a practice may develop of the judge giving an indication of the result at, or shortly after, completion of the argument, on terms that the same factual material would be considered by the same judge in support of the second application following on from that indication. If that was not possible the application for a supervision order could be heard later, before the same judge.
[40] As we have said, Fogarty J applied the final order test to interim orders. His decision was followed in Chief Executive of the Department of Corrections v McIntosh.[41] We agree with the approach he took. The intrusiveness of the order requires the application of the high final order threshold, and we see it as contrary to the purpose of the Public Safety Act to permit a balancing of the strength of the case against the repercussions on the respondent. The legislature has made it clear that the issue is the protection of the public only. The Crown at an interim stage must prove, on the basis of all the information then available, a “very high risk” on the balance of probabilities before an order may be made. We do not say that the decisions that suggest a balancing test in relation to interim supervision orders are necessarily wrong, as that test is not before us, but we are clear that this is not an approach suited to interim detention orders.
[41] Therefore, even though this is an interim application, the fundamental question is whether the Court is satisfied on the balance of probabilities that the respondent meets the threshold under s 13(1)(a), namely that there is a very high risk of imminent sexual or violent offending and the respondent exhibits a severe disturbance at the high level of the characteristics set out in s 13(2).

Was a very high risk shown?

[42] In this case three separate health assessments were filed before the interim order was sought. The three health assessor reports were prepared by Ms Laws, Mr Berry and Dr Wilson. All three are registered psychologists. Their reports were dated 28 August 2015, 11 March 2016 and 22 March 2016 respectively.
[43] Ms Laws expressed the opinion that there was, “at least a high risk” that Mr Chisnall “will engage in relevant offending within 10 years of release”. Mr Berry took the view that, “given [Mr Chisnall’s] psychopathy ratings and other noted clinical risk factors, he should be considered more likely than [other sexual offenders] ... [to] go on to reoffend”. Dr Wilson expressed an opinion that there was “a very high risk” of Mr Chisnall imminently engaging in further serious sexual offending.
[44] Ms Laws drew on an earlier report prepared by Dr Woodfin. Ms Laws wrote:
  1. Mr Chisnall’s offending solely reflects a sexually motivated offending history. He has three convictions for serious contact sexual offending against unknown stranger victims (adult and children), as well as one contact violence conviction for a sexually motivated assault (adult stranger).
  2. A month prior to his first offending in 2001 (age 14) Mr Chisnall was apprehended by [an associate of his parents] in circumstances which suggested an impending assault with a weapon (knife and toy pistol). Mr Chisnall’s mother was concerned that [the associate’s] adult daughters were the possible intended victims of his actions which she suspended to be of a serious sexual nature. It is recorded that due to their ongoing concern, and in keeping with [the associate’s] wishes, his parents sent him to reside with his grandparents.
  3. Approximately one month later Mr Chisnall committed his first offence age 14 years (2001), raping a eight to nine-year-old girl in a park in [a Taranaki town] (2009 conviction). The following year (2002) Mr Chisnall apprehended a seven-year-old boy in the same park and made the boy suck his penis. Mr Chisnall stated he initially thought the young boy was a girl, and stopped offending upon realising he was a boy. While on bail for this offending (2002) Mr Chisnall then approached an adult woman in the same park at night, grabbed her and hit her over the head with a piece of wood. Despite his continued denial of sexual intent in this attack, police file information indicates that there was a sexual motive to this offending. In 2004, although not formally charged, Mr Chisnall admitted to his caregivers that he was peeping and peering at a woman in a hotel window. In 2005, age 19 years, he violently raped an adult female in the same park as the above 2001 and 2002 offending. This constitutes his current index offending. Mr Chisnall’s history therefore reflects sustained period of sexually offending over a five year period.

[45] Ms Laws referred to the treatment programmes carried out by Mr Chisnall, where he had sought to address his violent sexual fantasies. He reported a decrease in use of violent sexual fantasies to manage his mood, but ominous traits were observed by other group members. Ms Laws stated:

However other group members noted that during treatment and when discussing his offending and fantasies Mr Chisnall appeared to enjoy recounting such facts and experience excitement in doing so. In addition Mr Chisnall’s proclivity for utilising deviant fantasies as a coping mechanism became evident after the completion of treatment and while he was still residing at the unit. In this instance Mr Chisnall became fixated on a female psychologist and disclosed violent sexual ideations. Subsequently he was removed from the unit. This evidenced that despite having made progress with his general and sexual regulation, at times of stress or heightened emotions, Mr Chisnall may resort to deviant fantasies as a primary coping mechanism.[[42]]

In essence, despite receiving the appropriate and targeted level of intervention and treatment adapted to his individual needs, Mr Chisnall’s treatment gains appear limited and he continues to display poor emotional and sexual regulation skills, particularly at times of stress.

[46] She concluded that there was “at least a high risk that Mr Chisnall will engage in relevant reoffending within 10 years of release”.
[47] While Ms Laws’ report was directed to the possibility of an extended supervision order, in respect of which the threshold for sexual reoffending is “high risk”,[43] Mr Berry’s report of 11 March 2016 focussed on whether Mr Chisnall qualified as someone in respect of whom a public protection order should be made. Mr Berry interviewed Mr Chisnall over three hours on 25 February 2016 and over one hour on 26 February 2016.
[48] After rehearsing much of the background information covered by Ms Laws and applying the recognised tools for assessing risk of sexual recidivism, Mr Berry concluded:
[49] A further report on the public protection order considerations was prepared by Dr Wilson dated 22 March 2016. In relation to the risk factors identified in s 13 of the Public Safety Act, Dr Wilson reported:
[50] Dr Wilson concluded:
  1. Mr Chisnall in the opinion of the writer has a very high and stable risk of further serious re-offending that is regarded as imminent based on consideration of his assessed risk and other relevant clinical factors. The writer believes that sexual deviancy, fantasy, and sexual entitlement played a key role and remain present after his completion of long term specialist treatment. Mr Chisnall has had a long history of general impulsivity and an inability to cope with challenge, social isolation or rejection and these issues are still present. The writer believes Mr Chisnall has not demonstrated reliable evidence of remorse for his offending or a general capacity to empathise with others. He is also likely to continue to have difficulties with trust and intimacy and to experience social isolation when released into the community.
  2. Future offending is likely to be in the form of stranger sexual assaults that may include a range of female victims from children to adults based on opportunity and the vulnerability of victims. These sexual assaults are likely to occur in public locations such as parks or other open places. With Mr Chisnall also noted to engage in sexual fantasies, victims may include people known to him who he believes have harmed him. His sexual assaults are likely to see him act out rape fantasies, with offending ranging from indecent assault to sexual violation. Based on Mr Chisnall’s past sexual assaults and use of violence in general, a significant level of violence may be used by him to control victims.

[51] It is also to be noted that Mr Chisnall’s parents, while in regular phone contact with him, did not want close contact with their son because they have real concerns about their safety.
[52] We now turn to the particular characteristics that must be established by evidence to a high level.[44]

Intense drive or urge to commit a particular form of offending

[53] Both Ms Laws and Mr Berry directly commented that they consider Mr Chisnall has an intense drive and desire to commit relevant sexual offences.

Limited self-regulatory capacity

[54] Dr Wilson noted that Mr Chisnall has a long history of general impulsivity and an inability to cope with challenge, social isolation or rejection and these issues are still present. Mr Berry noted that Mr Chisnall exhibited poor self-regulatory capacity from an early age. His history plainly shows a very poor self-regulatory capacity.

Absence of understanding or concern for the impact of the offending on actual or potential victims

[55] All the experts reported on Mr Chisnall’s lack of real focus on the suffering of his victims and low empathy. Ms Laws specifically commented that he failed to demonstrate any depth of understanding of the impact of his offending on his victims and that at times he appeared to derive pleasure from discussing his offending.

Poor interpersonal relationships or social isolation or both

[56] Mr Chisnall’s history shows an inability to form stable interpersonal relationships. The experts all note his poor ability to form meaningful relationships. As a matter of fact he does not appear to have such relationships, including with his parents who nevertheless stay in contact.

Conclusion

[57] Therefore, like Fogarty J we consider that the Chief Executive showed on the balance of probabilities that Mr Chisnall exhibited a severe disturbance in behaviour or functioning established by evidence to a high level of these four characteristics. We also consider that there is a very high risk of imminent serious sexual or violent offending by Mr Chisnall if he is released into the community.
[58] We emphasise that we are not by any means expressing a view that the application will succeed at the final public protection order stage. By then Mr Chisnall’s advisors may well have obtained a further report or reports and information that casts a different light on his position. There may be more or different information about his prior offending. He will have a full chance to answer the evidence relied on by Fogarty J and this Court. However on the information presently available, we consider that Fogarty J was correct to conclude that the s 13 threshold was crossed.

Intellectual disability

[59] Mr Ellis questioned whether an interim detention order could be made in circumstances where Mr Chisnall was eligible for a care order under the Intellectual Disability Act. Section 5(c) of the Public Safety Act states that a public protection order should not be imposed if the offender is “eligible to be detained under” the Intellectual Disability Act.
[60] This point was dealt with briefly by Fogarty J in his reasons judgment. He said:[45]

Section 5(c) is a principle, not a disqualifying rule. It is arguable that the defendant is eligible to be detained under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. But that possibility cannot be resolved before the release date of 27 April.

[61] When Mr Chisnall was sentenced in 2006, Miller J noted reports by two doctors suggesting that secure hospital care or treatment was not necessary for Mr Chisnall and services for his care, rehabilitation and psychological assistance could be provided in prison.[46] Nevertheless the Judge thought that Mr Chisnall would be at risk in the prison environment because of his poor personal relationship skills. He noted that an order under the Intellectual Disability Act might be appropriate at a later date.[47] However he also noted that if Mr Chisnall was in a hospital environment there would be a risk that he would offend against other care recipients. He did not consider that the safety of the public required Mr Chisnall’s compulsory care or treatment, at least during the currency of his sentence.[48] He concluded that an order for Mr Chisnall’s detention as a special care recipient should not be made at that stage but thought that his intellectual disability would require both treatment and care before the sentence expired.[49]
[62] We agree with Fogarty J’s conclusion on this issue. Even though counsel for Mr Chisnall advised the Parole Board on 12 February 2016 that Mr Chisnall had been assessed under the Intellectual Disability Act but did not meet the statutory criteria for eligibility, we are prepared to accept that, at the substantive hearing, it may be established that Mr Chisnall is a person eligible for a care order under that Act. Nevertheless, we consider that the possibility (even likelihood) that an offender may be eligible for a care order is no more than one relevant factor to be taken into account when the Court decides whether to make an interim detention order, as distinct from the position that applies to a final public protection order.
[63] This is because for interim orders, the immediate safety of the community remains the paramount consideration. Ultimately, the question is whether there is a need to make an order to protect the community from the risks that the Public Safety Act is designed to manage. The fact that a person may require assessment to determine eligibility for a care order is not something that prevents an interim detention order from being made. That view is supported by s 12(2) and (3) of the Public Safety Act which contemplates the interim detention of an offender while the Chief Executive considers whether it is appropriate to seek a care order under the Intellectual Disability Act.

Possible community release

[64] Mr Ellis submitted that Fogarty J gave insufficient weight to the temporary releases into the community that Mr Chisnall had enjoyed at times prior to his projected release. It became clear as the hearing before us progressed that the releases into the community were not on an unsupervised basis. He had never been released into the community without control or supervision of an officer, a staff member or a probation officer.
[65] Although Fogarty J did not specifically refer to this point we can see why he did not regard it as of particular moment. The fact is that once the Parole Board had realised that an application for a public protection order or extended supervision order would be made, the Parole Board had revoked parole. It seems that intended supervision by a community group, Anglican Action, was no longer available.

International reports

[66] Mr Ellis referred us to a number of international reports that have criticised legislation such as the Public Safety Act. He indicated that, on the substantive hearing of the public protection order, it was likely that a declaration of inconsistency with the Bill of Rights Act would be sought.
[67] In our view, that is the context in which the international material should be considered, although we must make it clear that we do not necessarily accept that those materials would have a material effect on a decision. We are required to make our decision based on the terms of the legislation. The international literature does not assist in determining whether an interim detention order should have been made on the facts of this case. We leave it open whether it may assist in relation to the final public protection order application.

Lateness of the interim application

[68] We are concerned with the lateness of this interim application. It was filed on 15 April 2016, only 12 days before Mr Chisnall was due to be released on 27 April 2016. We have had no satisfactory explanation for the late filing.
[69] Clearly Mr Chisnall’s position had been under intensive review for many months. Ms Laws’ report had been obtained on 28 August 2015. It can be expected that the type of offender whom the legislation contemplates may warrant public protection orders should be known to prison authorities well before their release date. Initial inquiries into whether an application should be made should be commenced months before an application needs to be made and a firm decision reached. There will of course be the odd case where there is some last minute event that prompts an application, but this does not appear to be the case here. We acknowledge that this is new legislation and to an extent the Chief Executive will be feeling its way but Mr Ellis’ strong complaints about the lateness of the filing are warranted, and we are critical of the process adopted. In a good proportion of cases, the process for a final order should be underway in sufficient time to obviate the need for any interim application. The Chief Executive must take steps to ensure that this sort of unjustified last minute application does not happen.

Result

[70] The appeal is dismissed. We make no order as to costs.

HEATH J

[71] Although I agree that the appeal should be dismissed, I write separately to explain why I disagree with the way in which Asher and Dobson JJ have expressed the threshold test for making an interim detention order and to articulate the test that I prefer. On the facts of the present case, I consider that an order ought to have been made, whichever test was applied.
[72] The Public Safety Act is a measure designed to protect the community rather than a means of further punishing an offender who has served the whole of a finite sentence for the crime that he or she committed. The stated objective of the Act 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”.[50]
[73] In order to obtain a public protection order, the Chief Executive must satisfy the Court on a balance of probabilities that there is “a very high risk of imminent serious sexual or violent offending” by the person against whom the order is sought.[51] That finding may only be made if the Court were satisfied that the person concerned “exhibits a severe disturbance in behavioural functioning established by evidence to a high level” in respect of the four characteristics identified by the legislation.[52] As the Minister of Justice observed in the House of Representatives, this “is a stringent test that officials estimate will apply to only five to 12 people over 10 years”.[53]
[74] The Public Safety Act recognises that there might be some situations in which the Chief Executive may not be able to make an application in sufficient time for it to be determined before the offender is to be released from serving his or her sentence. To accommodate that circumstance, the High Court is empowered to make an interim detention order.[54] Such an order ensures that the offender remains detained within until such time as the substantive application is determined.
[75] An interim detention order should rarely be required. The type of offender who poses the “very high risk of imminent serious sexual or violent offending” is one whom the Chief Executive ought to have identified as a likely candidate for a public protection order long before his or her sentence end date. An interim order should only be required if there were inadequate time for both the Chief Executive and the offender to prepare all evidence for a substantive application to be heard and determined before the finite term of imprisonment ends.
[76] Asher and Dobson JJ have alluded to the parallel powers of a sentencing Court to make an interim supervision order under pt 1A of the Parole Act. That alternative procedure is part of the context in which an application for an interim detention order must be considered. There are statutory provisions that address the overlap between the two regimes. One of them makes it clear that the Chief Executive cannot obtain an interim supervision order while a substantive public protection order application remains undetermined.[55] That means that if the Chief Executive were to bring an application for an interim detention order but not meet the very high standard of proof required by the majority’s test, the less invasive interim supervision order could not be sought as an alternative unless the Chief Executive abandoned the public protection order application. If the substantive public protection order application remains on foot, then refusal of an interim detention order will result in the offender’s release into the community until the substantive application is determined.
[77] If it were possible for interim detention orders and interim supervision orders to be sought in the alternative, my concerns about the test proposed by the majority would be assuaged. But, as things stand at present, the protection of the community may be compromised by imposing such a high threshold test. In my view, a more nuanced approach is required to ensure that the Chief Executive is not dissuaded from making applications for interim detention orders in the rare circumstances in which they are required.
[78] The Court is empowered to make an interim detention order by s 107(2) of the Public Safety Act. That section is expressed in a manner that is more consistent with the approach taken by sentencing courts in determining whether to make an extended supervision order. In such cases, the Court considers all relevant evidence and reaches a judicial decision whether or not to make an order.[56] As I have indicated, the nature of the information on which the Court will be asked to rely to make an interim detention order will inevitably be less robust than what should be expected at the substantive stage.
[79] I consider that the concept of “necessity” should be the touchstone for making an interim detention order. In contrast to a requirement that a “very high risk of imminent” qualifying offending be established on a balance of probabilities, this test would enable the High Court, having regard to evidence available to it at the time that the interim application is heard, to consider whether it is satisfied that an interim detention order is necessary.
[80] In my view, an interim detention order should only be made if, on the evidence before the Court (particularly the health assessors’ reports), it is necessary to protect the safety of the community pending final disposition of the public protection order application. Any other approach would be inconsistent with the principle that prisoners who have served their sentences in full should not have their freedom of movement curtailed further without good reason. That approach balances the need to protect the community from a particular offender against that person’s prima facie right to be released from detention having served the whole of a finite sentence. An order will only be made if the risk of relevant re-offending is too high.
[81] Notwithstanding some comments in the majority’s judgment, I consider that my approach is supported by the way in which the Public Safety Act intersects with the Intellectual Disability Act. Sections 5(c) and 12(1), (2) and (3) of the Public Safety Act provide:

5 Principles

Every person or court exercising a power under this Act must have regard to the following principles:

...

(c) a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

...

  1. Assessment whether respondent mentally disordered or intellectually disabled

(1) This section applies where a court is satisfied that it could make a public protection order against a respondent and it appears to the court that the respondent may be mentally disordered or intellectually disabled.

(2) The court may, instead of making a public protection order, direct the chief executive to consider the appropriateness of an application in respect of the respondent under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

(3) Where the court gives a direction under subsection (2), the court must, if the respondent is not then detained under section 107, order the interim detention of the respondent under that section.

...

[82] In my view, the effect of those provisions is that an interim detention order must be made while the assessment is undertaken. The requirement in s 12(3) is that the Court must make an interim detention order if such an order were not already in place under s 107. In those circumstances, I consider that the majority’s proposed threshold of “very high risk of imminent sexual or violent offending” does not need to be met before an interim detention order is made under s 12(3). That type of interim order is made to protect the community from the offender until the care assessment is undertaken. A public protection order cannot be obtained against an offender who is eligible to be detained under the Intellectual Disability Act.
[83] Asher and Dobson JJ have expressed the view[57] that s 12(1) of the Public Safety Act necessarily requires a finding that the threshold for making a public protection order has been met before s 12(3) applies. I do not agree. The word used in s 12(1) is “could”. I do not think it is necessary for the Court to actually reach a conclusion that a public protection order should be made before invoking s 12(2). Having said that, I acknowledge that there is some force in the point the majority make.
[84] In my view, in undertaking its judicial evaluation of whether an interim detention order is necessary, the High Court should, in addition to any other relevant factors that arise in any particular case, have regard to:
[85] Standing back, the Court must then bring a sense of proportionality to its decision. It must be satisfied that interim detention is necessary to protect the community from relevant risks, pending final disposition of the substantive public protection order application.

Solicitors:
Francis J Handy, Wellington for Appellant
Crown Law Office, Wellington for Respondent

[1] In 2006 Mr Chisnall was sentenced to eight years’ imprisonment on the first count. In 2009 he was sentenced to a cumulative three-year sentence on the second count.

[2] Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 784 [Results judgment].

[3] Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796 [Reasons judgment].

[4] R v Chisnall HC Wanganui CRI-2005-083-806, 29 March 2006.

[5] Reasons judgment, above n 3, at [40].

[6] Sentencing Act 2002, s 87; and Parole Act 2002, ss 28, 82(3) and 86(3).

[7] Parole Act, ss 29(4)(b) and 29AA.

[8] Part 1A as enacted by the Parole (Extended Supervision) Amendment Act 2004, s 2.

[9] Sections 107D and 107I.

[10] Belcher v Chief Executive of the Department of Corrections [2006] NZCA 262; [2007] 1 NZLR 507 (CA).

[11] Public Safety (Public Protection Orders) Act 2014, s 2; and the Parole (Extended Supervision Orders) Amendment Act 2014.

[12] Parole (Extended Supervision Orders) Amendment Act, s 15; and Parole Act, s 107I.

[13] Parole Act, s 107I.

[14] Parole (Extended Supervision Orders) Amendment Act, s 15; and Parole Act, s 107I(2)(b)

[15] (4 December 2014) 702 NZPD 1164.

[16] (26 November 2014) 702 NZPD 860.

[17] Public Safety (Public Protection Orders) Act, s 5(c).

[18] Section 20.

[19] Section 85(1).

[20] Sections 15, 16, 87, 88 and 99.

[21] Sections 4(2) and 104(a); and Chief Executive of the Department of Corrections v W [2016] NZHC 1081 at [14].

[22] Section 13(1)(b).

[23] Public Safety (Public Protection Orders) Act, s 13(2); and Parole Act, s 107IAA(2)(a) regarding the risk of an offender committing a relevant violent offence only.

[24] See Parole Act, s 107JA.

[25] Public Safety (Public Protection Orders) Act, s 13(1).

[26] Parole Act, s 107F(2).

[27] Chief Executive of Department of Corrections v [W] HC Auckland CIV-2015-404-2878, 7 December 2015 (Minute of Brewer J) at [8].

[28] Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [38].

[29] At [39].

[30] Chief Executive of the Department of Corrections v Bradbury [2016] NZHC 2461 at [21].

[31] Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

[32] At [23].

[33] Reasons judgment, above n 3, at [39].

[34] At [39]. This approach was followed by Mander J in Chief Executive of the Department of Corrections v McIntosh [2016] NZHC 1163 at [17]–[18].

[35] New Zealand Bill of Rights Act 1990, s 6.

[36] Christopher Finlayson Public Safety (Public Protection Orders) Bill – Consistency with the New Zealand Bill of Rights Act 1990 (4 October 2012) at [5].

[37] At [24]–[27].

[38] We note s 107(1) states the section applies if any of the events in (a)–(e) occur “before an application for a public protection order is finally determined”. The implication is that there must be an existing application for a public protection order.

[39] Public Safety (Public Protection Orders) Act, s 4(1).

[40] Section 13(2)(a).

[41] Chief Executive of the Department of Corrections v McIntosh, above n 34.

[42] We note Mr Berry clarified this passage in his report of 11 March 2016. While Ms Laws’ conclusion that Mr Chisnall may resort to deviant fantasies to cope was reasonable, her account of the incident was “somewhat misleading”. Mr Chisnall had acknowledged that prior to the incident he had sought assistance from therapists because he was having dreams about his sexual offending. The female psychologist confirmed he did not disclose “violent sexual ideations” towards her, although he did describe “violent ideation”.

[43] Parole Act, s 107I(2)(b)(i).

[44] Public Safety (Public Protection Orders) Act, s 13(2).

[45] Reasons judgment, above n 3, at [39].

[46] R v Chisnall, above n 4.

[47] At [53].

[48] At [51].

[49] At [52].

[50] Section 4(1).

[51] Public Safety (Public Protection Orders) Act, s 13(1).

[52] Section 13(2).

[53] See [14] above.

[54] Public Safety (Public Protection Orders) Act, s 107(2).

[55] Parole Act, s 107GAA(1) and (2).

[56] McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 at [72], [74] and [75], adopting the approach taken in R v Leitch [1998] 1 NZLR 420 (CA) at 428, in relation to sentencing decisions involving preventive detention.

[57] At [38].

[58] Sections 4(1) and 13(1)(b) and (2).

[59] Section 13(1)(b) and (2).

[60] Section 3, definition of “imminent”.

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