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Hapori wh&257;nui me te tangata m&333;rea nui: he arotake o te mauhere &257;rai h&275; me ng&257; &333;ta n&333; muri whakawhiu. Public safety and serious offenders: a review of preventive detention and post-sentence orders [2023] NZLCIP 51; Hapori whānui me te tangata mōrea nui: he arotake o te mauhere ārai hē me ngā ōta nō muri whakawhiu. Public safety and serious offenders: a review of preventive detention and post-sentence orders [2023] NZLCIP 51
Last Updated: 21 September 2023
Haratua | May 2023
Te Whanganui-a-Tara, Aotearoa
Wellington, New Zealand
He Puka Kaupapa | Issues Paper 51
Hapori whānui me te tangata mōrea nui: he arotake o te mauhere
ārai hē me ngā ōta nō muri whakawhiu
Public
safety and serious offenders: a review of preventive detention and post-sentence
orders
Te Aka Matua o te Ture | Law Commission is an independent, publicly funded,
central advisory body established by statute to undertake
the systematic review,
reform and development of the law of Aotearoa New Zealand. Its purpose is to
help achieve law that is just,
principled and accessible and that reflects the
values and aspirations of the people of Aotearoa New Zealand.
Te Aka Matua in the Commission’s Māori name refers to the parent
vine that Tāwhaki used to climb up to the heavens.
At the foot of the
ascent, he and his brother Karihi find their grandmother Whaitiri, who guards
the vines that form the pathway
into the sky. Karihi tries to climb the vines
first but makes the error of climbing up the aka taepa or hanging vine. He is
blown
violently around by the winds of heaven and falls to his death. Following
Whaitiri’s advice, Tāwhaki climbs the aka matua
or parent vine,
reaches the heavens and receives the three baskets of knowledge.
Kia whanake ngā ture o Aotearoa mā te arotake
motuhake
Better law for Aotearoa New Zealand through independent
review
The Commissioners are:
Amokura Kawharu – Tumu Whakarae | President
Geof Shirtcliffe – Tumu Whakarae Tuarua | Deputy President
Claudia Geiringer – Kaikōmihana | Commissioner
The Hon Justice Christian Whata – Kaikōmihana | Commissioner
Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te
whakarārangi o tēnei pukapuka.
A catalogue record for this title is
available from the National Library of New Zealand.
ISBN 978-1-99-115993-9 (Online)
ISSN 1177-7877 (Online)
This title may be cited as NZLC IP51. This title is available on the internet
at the website of Te Aka Matua o te Ture | Law Commission:
www.lawcom.govt.nz
Copyright © 2023 Te Aka Matua o te Ture | Law Commission.
This work is licensed under the Creative Commons Attribution 4.0
International licence. In essence, you are free to copy, distribute
and adapt
the work, as long as you attribute the work to Te Aka Matua o te Ture | Law
Commission and abide by other licence terms.
To view a copy of this licence,
visit https://creativecommons.org/licenses/by/4.0
Have
your say
- We want to know
what you think about the issues and proposals set out in this Issues Paper. We
ask questions throughout this Issues
Paper. We welcome feedback on these
questions and on any other matters not addressed by them. Submitters can respond
to any or all
the questions.
- Submissions on
our Issues Paper must be received by 28 July 2023.
- You can email
your submission to pdr@lawcom.govt.nz.
- You can post
your submission to
- Review of
Preventive Detention and Post-Sentence Orders
- Law
Commission
- PO Box
2590
- Wellington
6140
-
WHAT HAPPENS TO YOUR SUBMISSION?
- Information
given to the Law Commission is subject to the Official Information Act 1982 and
the Privacy Act 2020. For more information
about the Official Information Act,
please see the Ombudsman’s website. For more information about the Privacy
Act, please
see the Privacy Commissioner’s website.
- If you send us
a submission, we will:
- consider the
submission in our review; and
- keep the
submission as part of our official records.
- We may also:
- publish the
submission on our website;
- refer to the
submission in our publications; and
- use the
submission to inform our work in other reviews.
- Your submission
may contain personal information. You have the right to access and correct your
personal information at any time.
- If we publish
submissions we receive on our website, your submission will be publicly
available. We will not publish your name or
contact details if you are
submitting as an individual and not on behalf of an organisation.
You can request that we do not publish other information in your
submission. If you request this, we will not publish that information
on our
website or in our publications.
If we receive a request under the Official Information Act that includes your
submission, we must consider releasing it. If the request
includes your personal
information, we will consult with you.
If you have questions about the way we manage your submission, you are
welcome to contact us at pdr@lawcom.govt.nz.
Acknowledgements
- Te Aka Matua o
te Ture | Law Commission gratefully acknowledges the contributions of the people
and organisations that have shaped
our Issues Paper.
- We acknowledge
the generous contribution and expertise from our Expert Advisory
Group:
- Claire
Boshier
- Associate
Professor Sarah Christofferson
- Dr Danica
McGovern
- Associate
Professor Khylee Quince
- Michael
Starling
- We are grateful
for the guidance of pūkenga tikanga who engaged with us at a wānanga
to explore relevant tikanga Māori:
- Tamati
Cairns
- Rikirangi
Gage
- Tāmati
Kruger
- Kirsti Luke
- Tā Kim
Workman
We acknowledge Tai Ahu and Annaliese Samuels of Whāia
Legal for their assistance with identifying potential tikanga Māori
that
apply in this area of the law.
We are also grateful for the support and guidance of the Māori Liaison
Committee to the Law Commission.
- We acknowledge
Dr Lucy Moore who prepared a literature review on risk assessment and serious
reoffending.
- We emphasise
nevertheless that the views expressed in this Issues Paper are those of the
Commission and not necessarily those of
the people who have helped us.
- Nō reira,
ko tēnei mātou e mihi nei ki a koutou, kua whai wā ki te
āwhina i a mātou. Tēnā
koutou, tēnā koutou,
tēnā koutou katoa.
- The
Commissioner responsible for this project is Amokura Kawharu. The project is led
by Principal Legal and Policy Adviser John-Luke
Day. The legal and policy
advisers who have worked on this Issues Paper are Amelia Jeffares and Samuel
Mellor. The law clerks who
have worked on this Issues Paper are Jessica
MacPherson, Georgia Warwick, Emma Westbrooke and Toni Wharehoka.
-
Contents
0 Introduction
- Te
Aka Matua o te Ture | Law Commission is reviewing the laws that aim to protect
the community from reoffending risks posed by some
people convicted of serious
crimes. Those laws achieve this aim by providing for the detention or
supervision of some people beyond
a determinate prison sentence.
- The
focus of this review is the law relating to:
(a) preventive detention under the Sentencing Act 2002;
(b) extended supervision orders (ESOs) under the Parole Act 2002; and
(c) public protection orders (PPOs) under the Public Safety (Public Protection
Orders) Act 2014.
- This
Issues Paper identifies issues with the law and presents proposals for reform.
We ask several consultation questions throughout
the Issues Paper to seek
feedback from readers.
- The
Issues Paper addresses some difficult questions. The law must balance
significant yet competing interests. On the one hand, it
must aim to keep the
community safe from harm. The law must enable a court to impose the restrictions
on a person needed to prevent
them from reoffending. On the other hand, people
who have served determinate prison sentences have completed the punishment for
their
previous offending. To impose further and ongoing restrictions on them can
result in serious intrusions on their rights and freedoms.
- In
recent years, preventive detention, ESOs and PPOs have been criticised for their
inconsistency with human rights law. In 2017,
the United Nations Human Rights
Committee gave its views in Miller v New
Zealand.[1] The Committee found
that the preventive detention of two people in Aotearoa New Zealand breached the
protections against arbitrary
detention under the International Covenant on
Civil and Political Rights. In 2021, te Kōti Pīra | Court of Appeal
made
declarations in Chisnall v Attorney-General that the ESO and PPO
regimes were inconsistent with the protection against second punishment under
section 26(2) of the New Zealand
Bill of Rights Act 1990 and that those
inconsistencies had not been
justified.[2] The decision has been
appealed to te Kōti Mana Nui | Supreme Court and a judgment is
awaited.
- This
review also takes place in the context of several other issues that reflect
wider systemic issues with the criminal justice system
in Aotearoa New Zealand.
The overrepresentation of Māori among those subject to preventive detention
and ESOs is a key issue.
- We
have identified the issues we discuss in this Issues Paper by relying on our
terms of reference, which require us to give particular
consideration to:
(a) whether the laws reflect current understandings of reoffending risks and
provide an appropriate level of public protection;
(b) te Tiriti o Waitangi | Treaty of Waitangi, ao Māori perspectives and
any matters of particular concern to Māori;
(c) consistency with domestic and international human rights law; and
(d) the relationship between sentences of preventive detention, ESOs and PPOs.
- Some
of the material in this Issues Paper includes discussion of instances of serious
offending. This may be distressing for some
readers.
STRUCTURE OF THIS ISSUES PAPER
- This
Issues Paper is organised into six parts:
(a) Part One sets out some introductory matters:
(i) Chapter 1 provides an overview of the current regimes and their origins. It
provides information on how preventive detention,
ESOs and PPOs operate in
practice.
(b) Part Two discusses overarching issues that apply to preventive detention,
ESOs and PPOs:
(i) Chapter 2 discusses applicable tikanga Māori and how we consider te
Tiriti o Waitangi | Treaty of Waitangi (the Treaty)
should apply to this review.
We then identify how the law could better enable Māori to live according to
tikanga and give effect
to obligations under the Treaty.
(ii) Chapter 3 focuses on key human rights issues. It identifies the main
instances where the courts and human rights bodies have
found Aotearoa New
Zealand law in this area to be inconsistent with human rights. It introduces a
key question (considered throughout
this paper) of whether those inconsistencies
can be justified for the purposes of human rights law.
(iii) Chapter 4 explains how preventive detention, ESOs and PPOs are fragmented
into separate legislative regimes and do not work
together cohesively.
(c) Part Three considers the eligibility criteria for preventive detention, ESOs
and PPOs:
(i) Chapter 5 examines the age of eligibility for preventive detention.
(ii) Chapter 6 considers the offences that qualify a person for eligibility.
(iii) Chapter 7 considers the eligibility of people who have committed offences
and been sentenced overseas.
(d) Part Four identifies issues with the law governing how a court determines
whether to impose preventive detention, an ESO or a
PPO:
(i) Chapter 8 examines the legislative tests for determining whether a
person’s risk justifies imposing preventive detention,
an ESO or a PPO.
(ii) Chapter 9 addresses concerns relating to the evidence on which a court
determines a person’s risk of reoffending.
(e) Part Five deals with issues relating to how people are managed once they
have become subject to preventive detention, an ESO
or a PPO:
(i) Chapter 10 focuses on how people may be managed in the community on parole
or subject to an ESO.
(ii) Chapter 11 considers the law that applies to the variation and termination
of preventive detention, ESOs and PPOs.
(f) Part Six presents proposals for reform:
(i) Chapter 12 sets out some high-level reform proposals for feedback.
Consultation questions
- We
ask questions throughout this Issues Paper. We welcome feedback on these
questions and on any other matters not addressed by the
questions. Submitters
can respond to any or all of these questions.
OUR PROCESS SO FAR
- We
published terms of reference for this review in July 2022.
- We
have spent the initial phase of this review researching the law and issues. Our
research has included a review of relevant cases
and commentary, international
human rights authorities and some analysis of the law in comparable
jurisdictions. We have also begun
preliminary engagement with experts and
stakeholders. As part of this engagement, we have met with several teams within
Ara Poutama
| Department of Corrections who work closely with preventive
detention, ESOs and PPOs such as the policy team, psychology practice
group,
probation team and high-risk team. Other stakeholders and experts we have
engaged with include the Parole Board, several academics
and practitioners who
are experts in this area, the Office of the Ombudsman, the Criminal Cases Review
Commission, Chief Victims
Adviser Dr Kim McGregor and JustSpeak.
- We
have begun a process to inform ourselves about the tikanga concepts that may be
engaged in promoting community safety and well-being
and the management of
reoffending risks. This has involved:
(a) commissioning a literature review to identify potential tikanga that apply
in the context in which preventive detention, ESOs
and PPOs operate;
(b) a wānanga held with pūkenga tikanga to explore questions such as:
What are the relevant tikanga that apply to the issues
covered by this area of
law? Are the themes we see emerging from the literature review the right ones?
What would implementing the
relevant tikanga look like? and
(c) commissioning a working paper to bring the material from the literature
review and wānanga together.
NEXT STEPS
- The
feedback we receive will help us develop preferred options for reform. We will
present those options in a Preferred Approach Paper
which we will publish in
mid-2024 for further consultation.
- After
consultation on the Preferred Approach Paper, we will develop our final
recommendations for reform. We will deliver those recommendations
in our final
report to the Minister responsible for the Law Commission by the end of
2024.
TERMINOLOGY
- The
key abbreviations and terms used in this Issues Paper are set out below.
Ara Poutama
|
Ara Poutama | Department of Corrections
|
chief executive
|
Chief executive of Ara Poutama | Department of Corrections
|
Commission
|
Te Aka Matua o te Ture | New Zealand Law Commission
|
ESO
|
Extended supervision order imposed under the Parole Act 2002
|
IM condition
|
Intensive monitoring condition under an ESO
|
ICCPR
|
International Covenant on Civil and Political Rights
|
IDO
|
Interim detention order imposed under the Public Safety Act
|
ISO
|
Interim supervision order imposed under the Parole Act 2002
|
MPI
|
Minimum period of imprisonment. In connection with preventive detention,
MPI refers to the MPI period the court imposes under section
89 of the
Sentencing Act 2002
|
NZ Bill of Rights
|
New Zealand Bill of Rights Act 1990
|
offender
|
Sometimes used to refer to a person subject to a preventive measure or a
person against whom an application for a preventive measure
is made or
contemplated. The preventive detention and ESO legislation refer to the person
subject to preventive detention or an ESO
as an “offender”. The
Public Safety Act variously uses the terms “respondent”,
“resident” and
“person subject to public protection
order”. Where possible, we try to use “person” rather that the
term
“offender” to refer to people subject to preventive detention,
ESOs and PPOs. The term “offender” is inaccurate,
in that these
measures are imposed on the basis of future risk rather than past offending and
potentially detrimental to those subject
to the orders.
|
Parole Board
|
New Zealand Parole Board
|
Preventive measure
|
A sentence of preventive detention, an ESO or a PPO
|
preventive regimes
|
Preventive detention, ESO and PPO regimes
|
PDO
|
Prison detention order imposed under the Public Safety Act
|
PPO
|
Public protection order imposed under the Public Safety Act
|
PSO
|
Protective supervision order imposed under the Public Safety Act
|
Public Safety Act
|
Public Safety (Public Protection Orders) Act 2014
|
qualifying offence
|
A serious sexual or violent offence that a person must be convicted of to
be eligible for preventive detention, an ESO or a PPO and
that the court must be
satisfied the person poses a certain level of risk of committing
|
Returning Offenders Act
|
Returning Offenders (Management and Information) Act 2015
|
Tribunal
|
Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal
|
UNHRC
|
United Nations Human Rights Committee
|
Part
One:
Introductory
matters
CHAPTER 1
1 Origins and overview of the law
IN
THIS CHAPTER, WE CONSIDER:
- the history of
the preventive regimes;
- the current law
relating to preventive detention, extended supervision orders (ESOs) and public
protection orders (PPOs);
- statistics
relating to the use of preventive detention, ESOs and PPOs in
practice.
INTRODUCTION
- 1.2 The
aim of this chapter is to introduce the law that is reviewed in further detail
in later chapters. We trace how the law developed
and how it operates in
practice.
- 1.3 Tikanga
Māori, the first law of Aotearoa New Zealand, governed responses to
offending and risks to community safety well
before the English legal system was
imposed. In Chapter 2, we discuss tikanga Māori relevant to community
safety as well as
how the law should enable Māori to act in accordance with
tikanga Māori and give effect to obligations under te Tiriti
o Waitangi |
Treaty of Waitangi.
HISTORY OF PREVENTIVE DETENTION, ESOS AND PPOS IN AOTEAROA NEW
ZEALAND
Preventive detention
- 1.4 Preventive
detention has long been part of Aotearoa New Zealand’s sentencing law. An
early form of preventive detention
was introduced in the Habitual Criminals and
Offenders Act 1906. This was replaced by preventive detention under the Criminal
Justice
Act 1954, which continued (with some amendments) under the Criminal
Justice Act 1985 and was eventually incorporated into the Sentencing
Act 2002.
Habitual Criminals and Offenders Act 1906
- 1.5 Under
this legislation, a person declared to be a “habitual criminal” or
“habitual offender” at sentencing
would be detained indefinitely in
a reformatory prison after serving a finite sentence.
- 1.6 A person
could be declared a habitual criminal for repeated sexual offending or if a
person had a relatively significant history
of violent or property
offending.[3] A person could also be
declared a habitual offender if they were convicted of a less serious offence
and had a substantial history
(at least six previous convictions) of offending
such as vagrancy, being armed by night, resisting arrest, public betting,
escaping
custody, possession of burglary instruments and being found in a
dwellinghouse or enclosed area without lawful
excuse.[4]
- 1.7 There was no
legislative requirement that the judge consider the person to be at risk of
committing a particular offence in the
future.
- 1.8 Upon
application from a person detained under the Act, the court could recommend that
the Governor of New Zealand discharge the
person from detention if satisfied
that the person had sufficiently reformed or that there was another good reason
warranting discharge.[5] If exercising
discretion to discharge a person, the Governor could also order the person to
report to a probation officer for up
to two
years.[6] Failure to report as
required was an offence and could also result in the person being recommitted to
reformatory prison
indeterminately.[7]
Criminal Justice Act 1954 and amendments of 1961 and 1967
- 1.9 Preventive
detention under the Criminal Justice Act was similar in its focus to that under
the Habitual Criminals and Offenders
Act. In introducing the Criminal Justice
Bill, the Minister of Justice said the sentence was directed
at:[8]
- ... the
criminal who has demonstrated that he will not respond to reformative training
and who seems to be determined that he is
going to embark on a career of
crime.
- 1.10 The
sentence was a response to a perceived “high degree of recidivism”
rather than being aimed at a particular type
of
offending.[9] The Minister of Justice
gave an example of a person for whom it was “obvious ... that the only
adequate sentence is preventive
detention”. That person was 49 years old
and had 57 previous convictions, mostly for theft. He had repeatedly been
sentenced
to short periods of hard labour and imprisonment and continued to
reoffend.[10]
- 1.11 As under
the 1906 Act, a person aged at least 25 years old could be eligible for a
sentence of preventive detention on the basis
of sexual offending against
children under 16 or other habitual
offending.[11] For those convicted
of sexual offending against children, preventive detention was an indeterminate
sentence.[12] Those convicted of
other qualifying offending were detained for a maximum period of 14 years. The
minimum term of detention before
being considered for release by the New Zealand
Parole Board (Parole Board) was three
years.[13]
- 1.12 The court
could sentence an eligible person to preventive detention if satisfied that it
was “expedient for the protection
of the public” that the person
“be detained in custody for a substantial
period”.[14] The court was
required to consider a report prepared by a probation officer or the
superintendent of a prison about the person’s
character and personal
history.[15] Again, there was no
legislative requirement that the court consider the person to be at risk of
committing a particular kind of offence.
- 1.13 The
Criminal Justice Amendment Act 1961 expanded the qualifying offences to include
some sexual offences committed against adults
— namely rape, attempt to
commit rape and assault with intent to commit
rape.[16]
- 1.14 The
Criminal Justice Amendment Act 1967 narrowed the qualifying offences to sexual
offences only. Habitual non-sexual offending
no longer qualified for preventive
detention.
- 1.15 The 1967
amendments also removed the maximum 14-year period of imprisonment, thereby
making preventive detention an indeterminate
sentence for all qualifying
offending rather than just those convicted of child sex
offending.[17]
1981 Penal Policy Review Committee
- 1.16 In
1981, a Penal Policy Review Committee established by the then Department of
Justice was directed to evaluate the sanctions
and dispositions available to the
courts in criminal cases.[18] The
Committee noted that the imposition of preventive detention was rare — at
the time, there were only 15 people serving a
sentence of preventive
detention.[19] The Committee
expressed concern that there was no rationale for restricting preventive
detention to sexual offenders. It also said
there were indications that its use
was “arbitrary, selective, and inequitable”. In particular, it noted
the “difficulties
of making accurate predictions of human
behaviour”, which was “bound to lead to administrative caution and
therefore
disproportionately long periods of detention”. The Committee
recommended the abolition of preventive detention. In its place,
the Committee
suggested that lengthy finite prison sentences be used where someone exhibited a
continuing disposition and history
of serious sexual or violent offending and a
court was satisfied there was a strong risk of
reoffending.[20]
- 1.17 In 1983,
however, a Commission of Inquiry into the release of a recidivist paedophile
from a psychiatric hospital and his subsequent
dealings with the criminal
justice system expressed the opinion that “very great caution should be
exercised before deciding
to abolish this form of
detention”.[21]
Criminal Justice Act 1985 and Criminal Justice Amendment Act
1987
- 1.18 Parliament
did not abolish preventive detention. Rather, preventive detention continued
with the enactment of the Criminal Justice
Act
1985.[22] The qualifying offences
remained sexual offending against children and young people and some sexual
offences committed against
adults.[23]
- 1.19 As with the
1954 legislation, the court could pass a sentence of preventive detention if
“satisfied that it is expedient
for the protection of the public”
that the person “be detained in custody for a substantial
period”.[24]
- 1.20 Again,
there was no legislative requirement under the Criminal Justice Act that the
court consider the person to be at risk of
committing a particular kind of
offence.[25] However, it appears
that the courts took this into account when considering whether it was expedient
for the protection of the public
that the person be detained in
custody.[26]
- 1.21 In 1987,
the Criminal Justice Act was amended to enable preventive detention to be
imposed for violent offending on the basis
of “[g]rowing public
concern” about the level of violent offending in
society.[27] Deputy Prime Minister
the Hon Geoffrey Palmer stated that new research disclosed “correlations
between violent offending and
violent sexual offending”, including that 46
per cent of those convicted of rape had a previous conviction for a violent
offence.[28]
- 1.22 The
amendment also lowered the minimum age of eligibility from 25 years to 21
years.[29]
Sentencing Act 2002
- 1.23 The
Sentencing Act 2002 and Parole Act 2002 were enacted in response to a 1999 law
and order referendum in which 92 per cent
of voters agreed with the following
question:[30]
- Should there be
a reform of our justice system placing greater emphasis on the needs of victims,
providing restitution and compensation
for them, and imposing minimum sentences
and hard labour for all serious violent offenders?
- 1.24 The
Sentencing Act removed the requirement for a person being sentenced to
preventive detention to have been convicted of a qualifying
offence on a
previous occasion — for the first time, preventive detention could be
imposed upon a person’s first conviction.
The age of eligibility was
lowered from 21 years to 18 years. The legislation also further expanded the
qualifying offences, though
not significantly.
- 1.25 There have
been no substantive amendments to the sentence of preventive detention since
2002.
Extended supervision orders and public protection
orders
- 1.26 ESOs
and PPOs have a more recent history. ESOs were introduced by the Parole
(Extended Supervision) Amendment Act 2004, and PPOs
were introduced subsequently
by the Public Safety (Public Protection Orders) Act 2014.
Parole (Extended Supervision) Amendment Act 2004
- 1.27 In
2003, the Minister of Justice proposed legislation to establish a new type of
order, the ESO. The objective of the legislation
was to address a
“critical gap” in the ability of Ara Poutama | Department of
Corrections (Ara Poutama) to manage child
sex offenders who were not subject to
preventive detention and who were in the community, no longer subject to parole
or release
conditions.[31] In a
paper to the Cabinet Policy Committee, the Minister stated that public concern
and media attention about the risks posed by
child sex offenders in the
community was high and that:
[32]
- Improved
knowledge about child sex offending recognises the distinct and long-term risks
posed by this group of offenders to a vulnerable
group of society and the need
to manage those risks.
- 1.28 It is
probable that ESOs were also a direct response to the concerns that Ara Poutama
held about specific individuals who were
shortly due for release from
determinate sentences and who were considered to pose risks of future child sex
offending. During the
passing of the Parole (Extended Supervision) and
Sentencing Amendment Bill, Ara Poutama identified 107 people either in prison or
on release conditions for whom an application could be
made.[33] There were also concerns
about a small number of people who had been released from psychiatric
institutions in 1992 and who went
on to commit serious sexual crimes against
children.[34] These individuals were
sentenced prior to the introduction of the Sentencing Act and had not been
eligible for preventive detention
under the previous legislation. They had
received determinate sentences and were considered to pose risks of future child
sex offending
when their sentences
expired.[35]
- 1.29 The
relevant legislation inserted provisions governing ESOs into the Parole Act. As
originally enacted, the Act only provided
for ESOs in relation to child sex
offenders who were likely to commit a sexual offence against a child or young
person (under 16)
when released.
Public Safety (Public Protection Orders) Act 2014 and Parole
(Extended Supervision Orders) Amendment Act 2014
- 1.30 Prior
to the 2011 general election, the Government announced that, if re-elected, it
would introduce civil orders providing for
the indefinite detention of violent
and sexual offenders.[36] As
discussed in Chapter 10, ESOs only allow for limited forms of detention within
the community.
- 1.31 There are
some indications that these reforms were also aimed at providing management
options for specific individuals who were
considered to pose a high risk of
reoffending and who were due to be released into the
community.[37]
- 1.32 Ara Poutama
was concerned that, even if a person were under an ESO and subject to intensive
forms of restriction available under
an ESO, this would not provide sufficient
safety measures for the community. Its Regulatory Impact Statement highlighted
several
incidents where people on ESOs had committed offences despite being
subject to intensive forms of restriction in the
community.[38] In one instance, a
person had sexually offended against a 16-year-old
girl.[39] Other offences committed
by people subject to strict ESO conditions included arson, assault, damaging
property and theft. Ara Poutama
argued there was a clear gap in the regulatory
framework and these offenders needed to be brought under a new system that kept
them
out of the community to increase community
safety.[40]
- 1.33 In 2012,
Ara Poutama stated that there was a “distinct sub-group of offenders
presenting a very high risk of imminent and
serious re-offending” that was
identifiable by certain
characteristics.[41] It explained
that “[o]ffenders of this type display few gains from rehabilitation or
are unwilling to participate satisfactorily,
usually as a result of low
intelligence or other cognitive
deficits”.[42]
- 1.34 According
to Ara Poutama, most of those who would be brought within the new scheme would
be child sex offenders, although adult
sex offenders might also fall within the
group and a “very small number of violent offenders may also have the
identified characteristics
and may meet the imminence
test”.[43]
- 1.35 In
September 2012, the Public Safety (Public Protection Orders) Bill was introduced
in Parliament. The explanatory note to the
Bill
stated:[44]
- Public safety
is jeopardised by a small number of people who reach the end of a finite prison
sentence or are subject to the most
intensive form of an extended supervision
order and pose a very high risk of imminent and serious sexual or violent
reoffending.
Less restrictive forms of supervision are not adequate for
preventing almost certain further offending.
- 1.36 While the
Public Safety (Public Protection Orders) Bill was progressing through
Parliament, Ara Poutama proposed that ESOs should
be expanded to align with
PPOs. In its Initial Briefing on the Parole (Extended Supervision Orders)
Amendment Bill, Ara Poutama stated
that this
would:[45]
- ... provide a
safety net in the event Corrections is unsuccessful in seeking a PPO for an
offender and provide a management option
for high risk adult sex offenders and
very high risk violent offenders. While an ESO would not minimise the risk of
serious harm
posed by these offenders to the same extent as a PPO, it would
provide a means of managing them in the community and reducing their
risk of
re-offending.
- 1.37 In December
2014, PPOs were introduced for serious sexual and violent offending and the
scope of ESOs was expanded to include
violent offending.
OVERVIEW OF CURRENT LAW
Preventive detention
- 1.38 Preventive
detention is a sentence that may be imposed for the purpose of protecting the
community from those who pose a significant
and ongoing risk to the safety of
its members.[46]
- 1.39 Preventive
detention is an alternative to a fixed term of imprisonment. It is an
indeterminate sentence, which means there is
no fixed expiry date and the Parole
Board is responsible for deciding if and when the person can be released from
prison. It is the
most restrictive of the preventive regimes discussed in this
Issues Paper.
- 1.40 Preventive
detention may only be imposed when a person is convicted of certain qualifying
serious sexual or violent offences
(we discuss these offences in Chapter 6).
Before imposing preventive detention, the court must be satisfied that the
person is likely
to commit another qualifying sexual or violent offence if the
person was released at the expiry date of any other sentence the court
could
instead impose.[47]
- 1.41 When
considering whether to impose preventive detention, the court must consider
reports from at least two appropriate health
assessors (registered psychologists
or registered psychiatrists) about the likelihood of the person committing a
further qualifying
sexual or violent
offence.[48]
- 1.42 The court
must take into
account:[49]
(a) any pattern of serious offending disclosed by the person’s history;
(b) the seriousness of the harm to the community caused by the offending;
(c) information indicating a tendency to commit serious offences in future;
(d) the absence of, or failure of, efforts by the person to address the cause or
causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this
would provide adequate protection for society.
- 1.43 When the
court sentences a person to preventive detention, it must also impose a minimum
period of imprisonment (MPI) that the
person must serve before they will be
eligible for release from prison on parole. The MPI must be at least five years
but is frequently
longer. The MPI must be the longer of the minimum period of
imprisonment required:[50]
(a) to reflect the gravity of the offence; or
(b) for the purposes of the safety of the community, in light of the
person’s age and the risk posed at the time of sentencing.
- 1.44 Although
eligible to be considered for parole at the end of the MPI, people subject to
preventive detention typically serve many
years beyond the MPI before they are
released from prison.
- 1.45 When a
person is eligible for parole, the Parole Board may direct their release on
parole if:[51]
- ... it is
satisfied on reasonable grounds that the offender, if released on parole, will
not pose an undue risk to the safety of
the community or any person or class of
persons within the term of the sentence, having regard to—
- (a) the support
and supervision available to the offender following release; and
- (b) the public
interest in the reintegration of the offending into society as a law-abiding
citizen.
- 1.46 When
assessing whether the person poses an “undue risk”, the Parole Board
must consider both the likelihood of further
offending and the nature and
seriousness of any likely further
offending.[52] The paramount
consideration for the Parole Board in every case is the safety of the
community.[53] We discuss release on
parole further in Chapter 11.
- 1.47 Once
released on parole, a person sentenced to preventive detention is subject to
parole conditions for life. We discuss these
conditions in Chapter 10. They are
also subject to recall to prison at any time for breach of parole conditions,
which can result
in the person spending many more years in custody.
Statistics
- 1.48 As
discussed above, preventive detention has long been part of sentencing law in
Aotearoa New Zealand. In the year ending 30
June
2022,[54] eight people were
sentenced to preventive
detention.[55] The total number of
people subject to preventive detention as at 30 June 2022 was
310.[56]
- 1.49 The number
of people sentenced to preventive detention each year has increased since the
lowest period, when preventive detention
was imposed on 18 occasions in total
between 1967 and 1985.[57]
- 1.50 Between
2008 and 2020, those who were sentenced to preventive detention and who had been
released on parole spent an average
of 16.2 years in prison prior to their first
release on parole.[58]
- 1.51 The
qualifying offending for preventive detention is predominantly sexual offending.
Of the 310 people subject to preventive
detention as at 30 June 2022, 81 per
cent were sentenced on the basis of sexual
offending.[59] Seven of the eight
people sentenced to preventive detention in the 2021/22 fiscal year were
sentenced on the basis of sexual
offending.[60]
- 1.52 Between 1
July 2012 and 30 June 2022, 45 per cent of those sentenced to preventive
detention identified as
Māori.[61]
- 1.53 According
to the available records, only one woman has been sentenced to preventive
detention.
Extended supervision orders
- 1.54 An
ESO is an order that allows a person to be managed and monitored in the
community. An ESO can be imposed on a person who has
served a determinate
sentence of imprisonment[62] for
serious sexual or violent offending and who continues to pose a real and ongoing
risk of committing further serious sexual or
violent offences, as defined in the
legislation.[63]
- 1.55 The purpose
of an ESO is “to protect members of the community from those who,
following receipt of a determinate sentence,
pose a real and ongoing risk of
committing serious sexual or violent
offences”.[64] A person
subject to an ESO has, by definition, completed the sentence that was imposed
for their offending.[65]
- 1.56 The chief
executive of Ara Poutama (chief executive) may apply to the court for an ESO if
a person is an “eligible
offender”.[66] We discuss
eligibility in Chapters 5 to 7. Generally, the application must be made before
the person ceases to be subject to a sentence
of imprisonment, release
conditions or an existing
ESO.[67]
- 1.57 The court
may impose an ESO if satisfied
that:[68]
(a) the person has, or has had, a pervasive pattern of serious sexual or violent
offending; and
(b) either or both of the following apply:
(i) there is a high risk that the person will in future commit a relevant sexual
offence;
(ii) there is a very high risk that the person will in future commit a relevant
violent offence.
- 1.58 The court
may only determine that there is the required level of risk if it is satisfied
that the person displays particular
traits and behavioural characteristics that
are set out in legislation.[69] The
court must consider a report from at least one health assessor (a registered
psychologist or registered psychiatrist) about whether
the person displays these
traits and behavioural characteristics and whether there is the requisite risk
of further offending.[70] We discuss
these matters in Chapters 8 and 9.
- 1.59 An ESO may
be imposed for up to 10 years.[71]
Before an ESO expires, a court may impose a new, consecutive
ESO.[72]
- 1.60 People on
ESOs are subject to conditions similar to parole. These may include conditions
relating to where they can live and
work and with whom they can associate with,
as well as requirements to attend treatment programmes. Some people on ESOs are
subject
to restrictions on where they can go and may be electronically
monitored. The most restrictive conditions include curfews and intensive
person-to-person monitoring. We discuss ESO conditions in Chapter 10.
- 1.61 Breaching
ESO conditions is an offence punishable by up to two years’
imprisonment.[73]
Statistics
- 1.62 In
the year ending 30 June 2022, 26 ESOs were
imposed.[74] The total number of
people subject to an ESO, as at 30 June 2022, was 205 (not including people who
were subject to interim ESOs
at that
date).[75]
- 1.63 As with
preventive detention, the qualifying offending for ESOs is predominantly sexual
offending. Of the 205 people subject
to ESOs as at 30 June 2022, 95 per cent
were sentenced on the basis of sexual
offending.[76] The prominence of
sexual offending among the qualifying offences is likely due, in part, to the
fact that, prior to 2014, violent
offending did not qualify for an ESO. The
trend has, however, continued. Of the 26 ESOs ordered in the year ending 30 June
2022,
87 per cent were imposed for sexual offending.
- 1.64 Between 1
July 2012 and 30 June 2022, 42 per cent of those made subject to an ESO
identified as Māori.[77]
- 1.65 Only one
woman has been made subject to an ESO since the regime began in 2004.
Public protection orders
- 1.66 A
PPO is an order that allows a person to be detained in a secure facility if they
have served a determinate sentence of imprisonment
for certain serious sexual or
violent offences and continue to pose a very high risk of imminent and serious
sexual or violent offending.
The purpose of a PPO 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”.[78]
- 1.67 The chief
executive may apply to the court for a
PPO.[79] Generally, the application
must be made before a person ceases to be subject to a sentence of imprisonment,
an ESO or a protective
supervision order
(PSO).[80]
- 1.68 The court
may make a PPO in relation to a person (called the respondent) if satisfied on
the balance of probabilities
that:[81]
(a) the respondent meets the threshold for a PPO; 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.
- 1.69 As with
ESOs, the court must be satisfied that the respondent displays certain traits
and characteristics. However, the traits
and characteristics are different to
those under the ESO regime. The court must consider evidence from two health
assessors, one
of whom must be a registered
psychologist.[82]
- 1.70 If a PPO is
made, the person will be detained in a residence. Currently, Matawhāiti is
the only PPO residence in Aotearoa
New Zealand. Matawhāiti is a 24-bed
facility located in the precincts of Christchurch Men’s Prison. While it
is situated
outside the Prison, it is contained within a four-metre-high
electric fence and is staffed 24 hours a
day.[83]
- 1.71 People
subject to PPOs cannot leave the residence except with approval and must be
under escort and supervision.[84]
- 1.72 A resident
is subject to fewer statutorily imposed restrictions than a person detained in a
prison. At Matawhāiti, each
resident lives in a separate unit with a
bedroom, lounge, kitchenette and bathroom. Residents wear their own clothes,
order their
own groceries and can use a communal area from 7:30am to
9:00pm.[85]
- 1.73 Residents
are subject to standard rules and restrictions relating to, for
example:
(a) communication: communications may be checked and withheld, visits are
supervised, phone calls are monitored; and
(b) property: alcohol, tobacco and electronic communication devices are among
the items prohibited.
- 1.74 Residents
are also required to submit to security measures in certain situations,
including:
(a) searches of residents and their unit, including strip searches when entering
or leaving the PPO residence;[86]
(b) drug and alcohol tests;[87]
and
(c) seclusion and restraint.[88]
- 1.75 Each person
subject to a PPO has a personal management plan that includes their needs, the
treatment and programmes in which
they will participate, their goals towards
reintegration into the community and the nature and extent of the supervision
they require.[89] The management
plan is required to set out, where any of the resident’s rights are to be
limited, the nature of and reasons
for the
limit.[90]
- 1.76 The
residence manager may make rules for the management of the residence and for the
conduct and safe custody of the
residents,[91] and residents must
comply with every lawful direction given to them by
staff.[92] The manager may limit the
rights of a resident to the extent reasonably necessary to prevent them from
harming themselves or others
or from disrupting the orderly functioning of the
residence. In making a decision affecting a resident or residents, the manager
must be guided by the following
principles:[93]
(a) A resident must be given as much autonomy and quality of life as is
compatible with the health and safety and well-being of the
resident and other
persons and the orderly functioning of the residence.
(b) A decision that adversely affects a resident must be reasonable and
proportionate to the objective sought to be achieved.
- 1.77 Residents
must also be given the opportunity to provide input into the making of rules for
the residence and the running of the
residence.[94]
- 1.78 A PPO is
indefinite. If a PPO is made, the justification for the order must be reviewed
by a review panel yearly and by a court
at five-year
intervals.[95] If the court is
satisfied that there is no longer a very high risk of imminent serious sexual or
violent offending by the person
subject to the PPO, the court must cancel the
PPO and instead impose a PSO.
Prison detention orders
- 1.79 In
some circumstances, a person subject to a PPO may be detained in a prison
instead of a residence, subject to a prison detention
order (PDO).
- 1.80 The court
may, upon application by the chief executive, make a PDO if satisfied
that:
(a) the person would, if detained in a residence, pose such an unacceptably high
risk to himself, herself or others that the person
cannot be safely managed in
the residence; and
(b) all less restrictive options for controlling the person’s behaviour
have been considered and any appropriate options have
been tried.
- 1.81 A person
subject to a PDO is detained in prison and must be treated the same way as a
prisoner who is committed to prison solely
because they are awaiting
trial.[96] This means that they are
subject to slightly different rules, obligations and entitlements as a person
sentenced to preventive detention,
who is treated as a sentenced prisoner. As
with a person sentenced to imprisonment, breaches of rules and restrictions can
be offences
against discipline and subject to punishment.
Protective supervision orders
- 1.82 If
a PPO is cancelled, the court must impose a PSO on the person who was subject to
the PPO.[97] Before the court
imposes a PSO, the person subject to the PPO and the chief executive must be
given an opportunity to make submissions
on the requirements that should be
included in the PSO.[98]
- 1.83 There are
no standard conditions or requirements of a PSO. The court may include any
requirements that are necessary
to:[99]
(a) reduce the risk of reoffending;
(b) facilitate or promote the person’s rehabilitation and reintegration
into the community;
(c) provide for the reasonable concerns of victims.
- 1.84 There is no
provision relating to the duration of PSO requirements. It appears that, unless
they are varied or discharged by
the court or review panel, they may be
indefinite.[100]
Statistics
- 1.85 Very
few PPOs have been imposed to date. Only four people have been subject to PPOs
in total from their introduction in 2014
until 30 June
2022.[101]
- 1.86 As of 1 May
2023, there are two people subject to PPOs. One of these people is now subject
to a PDO. The qualifying offending
in respect of both people currently subject
to PPOs was sexual in nature. One of these people identifies as Māori.
- 1.87 No women
have been made subject to PPOs since the regime began.
Part
Two:
Overarching issues
CHAPTER 2
2 Te ao Māori and the preventive regimes
IN
THIS CHAPTER, WE CONSIDER:
- tikanga
Māori relevant to community safety and risks of serious reoffending;
- te Tiriti o
Waitangi | Treaty of Waitangi; and
- issues with the
current law regarding these matters.
INTRODUCTION
- 2.1 An
ao Māori response to community safety and the risk of serious reoffending
is likely to be considerably different to the
preventive regimes. This chapter
examines the key issues of how the preventive regimes can better enable
Māori to live in accordance
with tikanga and give better effect to the
obligations arising from te Tiriti o Waitangi | Treaty of Waitangi (the
Treaty).
- 2.2 In the
Introduction to this Issues Paper, we discuss the process that we have begun to
inform ourselves about the tikanga Māori
concepts that may be engaged in
promoting community safety and wellbeing and the management of reoffending
risks. We begin this chapter
by exploring these tikanga Māori. We then
discuss how the Treaty might apply in the context of this review. We examine how
the
law may be inconsistent with tikanga and Treaty obligations, and we present
some preliminary views for reform.
TIKANGA MāORI
- 2.3 Tikanga
Māori is the first law of Aotearoa New Zealand as well as a broader system
applicable to all aspects of
society.[102] Tikanga derives from
the word “tika”, which means “right” or
“correct”,[103] and
“tikanga” means the right way of doing things. Tikanga Māori
includes a system of values and principles that
guide and direct rights and
obligations in a Māori way of living. It governs relationships by providing
a shared basis for “doing
things right, doing things the right way, and
doing things for the right
reasons”.[104]
- 2.4 As an
independent source of rights and obligations in te ao Māori, tikanga
continues to be observed every day within iwi,
hapū and whānau and on
marae. It is also practised to varying degrees in other places, in what might be
termed kaupapa-based
Māori organisations.
- 2.5 Tikanga
Māori concepts are common in legislation and regulation. Tikanga Māori
also “has been and will continue
to be recognised in the development of
the common law of Aotearoa/New Zealand where it is
relevant”.[105]
- 2.6 We note that
there are limits to our discussion of tikanga Māori in this chapter and
within this Issues Paper. Tikanga Māori
concepts are interrelated and
operate within a worldview that is fundamentally different to the Western
worldview. Tikanga concepts
cannot be fully explained in English or by reference
to laws based on the English system. Our focus, in this review, is on a
particular
aspect of the law and discusses tikanga Māori in a limited
manner within this narrow context.
Tikanga Māori relating to community safety and
offending
- 2.7 It
has been said that tikanga is a “reiteration of the values and
significance of
whakapapa”.[106] Whakapapa
(genealogy) connects all things past, present and future to each other and to
atua Māori (gods or ancestors). Whakapapa
connects people to te taiao (the
natural world) and defines their affiliations to whānau, hapū and iwi.
Whakapapa frames
a person’s identity and purpose and signifies expected
roles, shared responsibilities and
obligations.[107] Whanaungatanga,
or familial obligations, strengthens these
connections.[108]
- 2.8 According to
a Māori world view, every Māori person is born with an inherent tapu
and mana. Tapu has been described
as “the sacred life force which supports
the mauri (spark of life) and is present in people, places and
things”.[109] Tapu is
inseparable from mana, which is a broad concept representing a person’s
authority and associated responsibilities,
reputation and
influence.[110] A person can
enhance, maintain or diminish their mana through their actions, which will also
impact the mana of their
collective.[111]
- 2.9 In te ao
Māori, whanaungatanga means that the individual is secondary to the
collective.[112] Tikanga requires
people to act in ways that strengthen and maintain relationships with others and
with te taiao.[113] Maintaining
balance between all these aspects is one of the key ideals in tikanga
Māori.[114] This may be
achieved by utu — sometimes referred to as “the principle of
reciprocity”, encompassing what needs
to happen to achieve the state of ea
(satisfaction).[115]
- 2.10 It has been
suggested that, for Māori, public safety is achieved “when the
functioning of communities and whānau
reflects a collective sense of
wellbeing”.[116]
- 2.11 In the
past, definitions of unacceptable behaviour were drawn from these broader values
and principles, including the belief
that inherent tapu must not be abused and
that “society could only function if all things, physical and spiritual,
were held
in
balance”.[117]
- 2.12 Hara[118]
were offences involving the violation of tapu or “any action which
disrupted relational
stability”.[119] The
definitions of hara arose from a framework of social relationships based on
group rather than individual
concerns:[120]
- The rights of
individuals, or the hurt they might suffer when their rights were abused, were
indivisible from the welfare of the
whanau, the hapu, the iwi.
- 2.13 For
example, rape was a hara because it violated the inherent tapu of the victim and
“in turn upset the spiritual, emotional
and physical balance within the
victim herself, and the relationships she had with her community and her
tipuna”.[121]
- 2.14 At a
wānanga held with pūkenga, Tāmati Kruger referred to the
pūrākau (story or legend) of Hinetītama
and her transition to
Hinenuitepō, signifying the need for transition after tapu has been
disrupted by a hara. The pūrākau
speaks of Tāne, who created the
first woman, Hineahuone, out of clay. They had a daughter, called
Hinetītama. Tāne
also procreated with Hinetītama. When
Hinetītama found out that her lover was also her father, she fled to
Rarohenga (the
underworld) where she became Hinenuitepō. According to
Kruger, Hinetītama abandoned her former identity and recreated herself
because her tapu was so corrupted by Tāne’s act of violence that she
had no other option. Her metamorphosis as Hinenuitepō,
or the maiden of the
night, ensured she retained her connection to the divine.
- 2.15 According
to Moana Jackson, committing a hara did not only cause imbalance, the act itself
was caused by “an imbalance in the spiritual, emotional, physical
or social well-being of an individual or
whanau”.[122] When a hara
occured, the core issue was to understand and respond to what was out of balance
for the person who committed the hara,
their whānau and the broader
community.[123]
- 2.16 Committing
a hara would negatively affect the mana of the person who committed the hara as
well as their associated familial
groups.[124] Offending could
disrupt a person’s tapu or diminish their mana to such an extent that they
enter a state of rōrā
(powerlessness), also referred to as being mana
kore — having no mana, and effectively living without
purpose.[125] As discussed above,
Hinetītama’s tapu was disrupted because she was the victim of a hara.
However, committing a hara can
also disrupt a person’s tapu and signify
the need for transition.
- 2.17 Resolution
involved identifying the causes of the dispute or reasons for committing a hara
in order to uncover and address the
source of the problem. Resolving this
conflict in accordance with tikanga was the preserve of rangatira (chiefs),
supported by their
whānau or
hapū.[126] As noted further
below, in te ao Māori, rangatiratanga is both the authority of a rangatira
and the authority of Māori
as people. Rangatiratanga involves the exercise
of mana in accordance with and qualified by tikanga and associated kawa
(protocols).
- 2.18 Responses
to hara were grounded in the need to restore the relationship damaged by the
wrong and achieve a state of ea —
denoting that the required response had
been completed and a resolution
reached.[127] Responsibility for
the offending was also a collective
concern:[128]
- An offender
could not be isolated as solely responsible for wrongdoing; a victim could never
be isolated as bearing alone the pain
of an offence. There was a collective,
rather than an individuated criminal responsibility, a sense of indirect as well
as direct
liability.
- 2.19 During our
preliminary engagement with pūkenga, we have been told that the obligations
and responsibilities of whakapapa
are communal and
reciprocal.[129] Where a
person’s relationship with their community (iwi, hapū or whānau)
has been broken through offending, the community
is not solely responsible for
resolution. We have been told of instances where, after committing a hara, an
individual’s tapu
was put to sleep — whakamoe i te tapu. The person
is considered alive but without purpose. When balance has been restored and
the
harm put right, it can be awakened — whakaoho i te tapu. The
individual’s participation and fulfilment of their obligations
is
essential.[130]
- 2.20 The
appropriate utu for murder could involve death of the person who committed the
hara or a member of their whānau or wider
kin group. The utu for serious
hara could involve muru (ritual seizure of goods from the offender or their
whānau or community),
pana (banishment), public shame and
humiliation.[131]
- 2.21 According
to Tā Kim Workman, the emphasis on the future and relationships
“prioritised a desire to reintegrate offenders
into communities, heal
victims and maintain a balance between the acknowledgement of past behaviour and
moving on”.[132] For
example, pana was not necessarily permanent and could, in some cases, end when
the banished person was prepared to make
amends.[133] According Jackson, to
pana was “to send the wrongdoer to another part of his or her whakapapa
— it was never to isolate
them from
it”.[134]
- 2.22 In te ao
Māori, the response to offending and community safety was ensured through
tikanga Māori (such as pana and
utu) rather than through detention or
removing people permanently from their
community.[135] In light of this
tikanga, the notion of imprisonment was “simply unknown – in a very
real sense it would have been culturally
incomprehensible”.[136]
Tā Kim Workman has written that, in te ao Māori, being imprisoned was
the same as being taken captive, with “a profound
effect on the personal,
emotional and spiritual state of
Māori”.[137] Ongoing
punishment in the form of imprisonment could cause further imbalance to the
individual and those around
them.[138] It could perpetuate any
disruption in their mana and
tapu.[139]
- 2.23 At the same
time, recent input from Māori on reform to the criminal justice system
recognises that some people will need
to be separated from the community for a
time due to the risk to themselves and
others.[140] Nevertheless, this
type of separation should have a rehabilitative focus and be a last
resort.[141]
QUESTION
Q1
Have we appropriately identified the relevant tikanga Māori?
TE TIRITI O WAITANGI | TREATY OF WAITANGI
- 2.24 Te
Tiriti o Waitangi | Treaty of
Waitangi[142] is recognised as a
foundation of government in Aotearoa New
Zealand[143] and of
“constitutional significance” to the modern New Zealand
state.[144]
- 2.25 Te Aka
Matua o te Ture | Law Commission (the Commission) has examined the significance
of the Treaty to the development of the
law in Aotearoa New Zealand in several
recent publications.[145] Rather
than restating these discussions, we highlight and develop the aspects of the
analysis that are particularly relevant to the
law in this area.
- 2.26 The Treaty
comprises a Māori text and an English text, and there are well-known
differences between them. In summary:
(a) Article 1 of the Māori text provides that rangatira Māori grant
the Crown kāwanatanga. The English text provides
that Māori rangatira
cede sovereignty to the Crown.
(b) Article 2 of the Māori text provides that the Crown will protect the
exercise of tino rangatiratanga over lands, villages
and all things valued and
treasured. In the English text, article 2 guarantees to Māori full
exclusive and undisturbed possession
of their lands and other
properties.[146]
(c) Article 3 of the Māori text provides that the Crown agrees to care for
Māori and give Māori the same rights and
duties of citizenship as the
people of England.[147] A similar
undertaking is conveyed in article 3 of the English text, in which the Crown
imparted to Māori its protection as well
as all the rights and privileges
of British subjects. Article 3 has been understood as a guarantee of equity
between Māori and
other New
Zealanders.[148]
- 2.27 At the time
of signing the Treaty, Crown representatives made oral undertakings and
assurances to rangatira Māori, including
an undertaking to respect
Māori customs and law.[149]
Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal (the
Tribunal) has concluded that these also form part of
the agreement
reached.[150]
- 2.28 The
Tribunal has said that precedence, or at least considerable weight, should be
given to the Māori text when there is
a difference between it and the
English text. The reasons for this are discussed in recent Commission
publications.[151]
Kāwanatanga me tino rangatiratanga
- 2.29 Kāwanatanga,
referenced in article 1 of the Māori text, has been translated as
government or governorship.[152]
The Tribunal has said that governance “includes the power to make laws for
peace and order.”[153] It
has also noted that, in 1840, rangatira would have expected kāwanatanga to
be exercised in relation to non-Māori
only.[154]
- 2.30 We consider
that, in relation to kāwanatanga, the need to keep communities safe from
serious offending falls within the
Crown’s authority to make laws for the
good order and security of the country. The primary concern of the preventive
detention,
extended supervision order (ESO) and public protection order (PPO)
legislation is the maintenance of public safety. Maintaining public
safety
extends to the safety and wellbeing of Māori
communities.[155]
- 2.31 Tino
rangatiratanga, referenced in article 2 of the Māori text, has been
described as the exercise of the chieftainship
of rangatira, which is
unqualified except by applicable
tikanga.[156] In the context of
articles 1 and 2 of the Māori text, the Tribunal has observed that the
guarantee of tino
rangatiratanga:[157]
- ... requires
the Crown to acknowledge Māori control over their tikanga, resources, and
people and to allow Māori to manage
their own affairs in a way that aligns
with their customs and values.
- 2.32 Rangatiratanga
can embody the authority and responsibilities of a rangatira to maintain the
welfare and defend the interests
of their
people.[158] It can also involve
the authority and responsibilities of the people themselves, which, in the
context of this review, includes hapū,
whānau and non-tribal/non-kin
groups.[159] It involves the
exercise of mana in accordance with and qualified by tikanga and its associated
kawa.[160]
- 2.33 Traditionally,
this has included managing anti-social behaviour through the relevant tikanga,
as discussed in the section on
tikanga Māori. According to
Jackson:[161]
- Which
particular sanction was correct or which course of action was appropriate at any
given time were decisions made by the people
– chiefs, tohunga, or the
community assembled in runanga or hapu gatherings.
- 2.34 The Treaty
guarantee of tino rangatiratanga is relevant to this review because of the
impacts on Māori lives, collective
decision-making and community
responsibilities arising from the need to address the significant risks of
reoffending posed by some
people. Māori individuals and their communities
are affected as people subject to preventive orders and as potential victims
of
reoffending.
- 2.35 In the
criminal justice context, the Tribunal has
said:[162]
- We understand
the Crown’s kāwanatanga responsibility is to commit to reducing
reoffending by Māori in order to maintain
public safety ... We acknowledge
that the Crown has a kāwanatanga right to decide on policy and strategies
in fulfilling its
responsibilities, but this right must be considered alongside
the guarantee to Māori of the exercise of their rangatiratanga
...
- Māori have
a clear interest in the safety and well-being of their communities through the
successful rehabilitation and reintegration
of offenders. ... As we see it,
rangatiratanga demands that Māori be substantially involved in matters
affecting them. This
includes Māori being involved in maintaining the
safety of their families and communities.
The Treaty principles
- 2.36 The
Treaty principles have become important tools in understanding the Treaty and
have an extensive history in the Tribunal and
the courts.
- 2.37 We note
that some regard the Treaty principles as distorting or diminishing the clear
terms of the Māori text.[163]
It is important to recall the Tribunal’s explanation of Treaty principles
in the Muriwhenua report. There, the Tribunal explained that, although
its statutory role is to inquire into the consistency of the Crown’s acts
and omissions against the Treaty principles, this “does not mean that the
terms [of the Treaty] can be negated or
reduced”.[164] Rather, the
principles “enlarge the terms, enabling the Treaty to be applied in
situations that were not foreseen or discussed
at the
time”.[165]
- 2.38 We consider
this review engages the principles of partnership, active protection, equity and
options, noting that these may overlap
to some extent.
The principle of partnership
- 2.39 The
Treaty has been described as a partnership between the Crown and Māori
arising from the agreements reached in articles
1 and
2.[166] The Tribunal has said that
partnership “serves to describe a relationship where one party is not
subordinate to the other but
where each must respect the other’s status
and authority in all walks of
life”.[167] The relationship
should be founded on good faith and
respect.[168]
- 2.40 The
starting point should be shared decision-making, but the form the partnership
takes will depend on what the rights and interests
of the Treaty partners
require in the circumstances.[169]
Both Māori and the Crown should participate in identifying the nature and
extent of the rights and interests engaged and how
they may be protected through
the partnership.[170]
- 2.41 The
guarantee of tino rangatiratanga means it is for Māori to say what
Māori interests are and to articulate how they
might best be
protected.[171] At Ināia
Tonu Nei, a hui Māori on justice reform, participants said,
“Māori who work within the community know the needs of whānau
more than anyone
else.”[172]
- 2.42 The
Tribunal has said that the requirement for the Crown to partner with Māori
in developing and implementing policy is
heightened where there are disparities
in outcomes,[173] as there are in
this area of the law.
- 2.43 In the
context of disproportionate reoffending and reimprisonment rates for Māori,
the Tribunal said that a “bold
approach to partnership” was
required, where the Crown and Māori would work together at a high level to
achieve their
mutual interests in reducing Māori
reoffending.[174] The Tribunal
said:[175]
- We cannot
foresee a satisfactory resolution to this situation without Māori being at
the table to design and implement both
strategic-level documents and
Māori-centred programmes and initiatives.
- 2.44 The
Tribunal said that this is even more important when Māori are actively
seeking greater involvement.[176]
- 2.45 At
Ināia Tonu Nei, the hui participants said that “Māori
want to lead the way in reforming the justice
system”:[177]
- Māori have
the knowledge, relationships, experience and capability to lead this. However,
crucially, they need funding and support
to enable this to happen. Māori
are calling for the Crown to work with them to lead responses to improve the
wellbeing of Māori
and reduce the amount of exposure Māori have with
the justice system.
The principle of active protection
- 2.46 The
principle of active protection is a central principle arising from the
Treaty.[178] It encompasses an
obligation on the Crown to actively protect Māori resources, Māori
cultural practices and Māori
themselves, as groups and
individuals.[179]
- 2.47 The
principle also encompasses an obligation to actively protect tino
rangatiratanga. Rangatiratanga is exercised within te ao
Māori every day
and independently of New Zealand law. However, in some situations, consistency
with the Treaty may require that
provision for the exercise of tino
rangatiratanga be made in legislation.
- 2.48 The
Tribunal has made clear that “the principle of active protection is
heightened in circumstances of inequity between
Māori and
non-Māori”.[180] This
is regardless of the cause of the inequities. As well as being overrepresented
amongst people subject to preventive detention
and ESOs (discussed further
below), Māori are likely to be overrepresented amongst victims of serious
offending. A 2021 report
found that Māori are more likely to be victims of
intimate partner violence and sexual violence than the New Zealand average
and
almost twice as likely to be victims of interpersonal violence than the New
Zealand average.[181]
The principle of equity
- 2.49 The
principle of equity arises from article 3 of the Treaty and imposes an
obligation on the Crown to act fairly between Māori
and
non-Māori.[182] It includes a
duty to guarantee Māori freedom from discrimination.
- 2.50 Together
with the principle of active protection, the principle of equity requires the
Crown to act fairly to reduce inequities
between Māori and non-Māori
— this includes an obligation to promote positive
equity.[183]
- 2.51 There is a
disproportionate connection between Māori and the justice system through
the impact of earlier policies, laws
and
institutions.[184] In the Tribunal
inquiry into disproportionate reoffending rates, the Crown and claimant
witnesses “agreed that the legacies
of colonisation have influenced the
position of indigenous peoples in the corrections system in New Zealand and
elsewhere”.[185] However,
the Tribunal has stated that the principle of equity applies “regardless
of the cause of
disparity”.[186]
- 2.52 In the 1989
Mataitai paper, the Commission reflected on the principle of equality
before the law embodied in article 3 of te Tiriti and said that, while
it means
that those in like circumstances should be treated alike, subjecting people to
the same rules when they are not in like
circumstances can deny, rather than
promote, equality.[187]
The principle of options
- 2.53 This
principle is concerned with the choices open to
Māori.[188] The Treaty
envisages the protection of tribal authority, culture and customs and also
confers the same rights and privileges as British
subjects on individual
Māori. Māori are free to pursue either or both of
these.[189] This assures
Māori the right to choose their social and cultural
path.[190] The Tribunal has
described the choice as one to “develop along customary lines and from a
traditional base, or to assimilate
into a new way. Inferentially it offered a
third alternative, to walk in two
worlds”.[191]
- 2.54 The options
open to Māori, as we see them, are essentially concerned with the decisions
Māori may make every day to
live in and engage with te ao Māori and te
ao Pākehā.
- 2.55 The Crown
should ensure, as part of its responsible exercise of its kāwanatanga, that
options remain open to Māori
as genuinely as is
possible.[192] For example, in the
context of health, the Tribunal has said that the principle of options requires
the Crown to provide for and
properly resource kaupapa Māori health
services.[193] Any option offered
should be well supported, as the Crown is responsible for ensuring Māori
are not disadvantaged by their choice
of health
service.[194]
- 2.56 Te
Uepū Hāpai i te Ora | Safe and Effective Justice Advisory Group has
noted that solutions to problems with the justice
system that affect Māori
must be led locally and by Māori, not imposed by those with no connection
to the communities concerned.
However, resourcing is critical —
“communities struggling with multiple deprivations cannot be expected to
also find
the extra reserves required to address their current needs in relation
to the justice
system”.[195]
QUESTION
Q2
Do you agree with our preliminary views about how the Treaty may apply in the
context of this review?
ISSUES
The law fails to enable Māori to live in accordance
with tikanga
- 2.57 In
our preliminary view, the current laws governing the preventive regimes are
inconsistent with tikanga Māori. Responses
grounded in tikanga to a person
who is at risk of offending should work to restore a person’s mana,
protect their tapu, and
achieve ea by restoring the offender “back to
their community as a fully functioning human
being.”[196] Conversely,
isolating a person from their community may undermine and disrupt whakapapa and
whanaungatanga.
- 2.58 We
recognise the work being done to reorient the corrections system by prioritising
and embedding kaupapa Māori approaches
in the management of people under
the care of Ara Poutama | Department of Corrections (Ara
Poutama).[197] Even so, the
preventive regimes may be irreconcilable with tikanga. Throughout this Issues
Paper, we discuss specific issues with
preventive detention, ESOs and PPOs and
whether the law enables Māori to live in accordance with tikanga. At a more
general
level, however, the practice of subjecting people to indeterminate
prison sentences, detention in the PPO residence or the potentially
severe
restrictions of an ESO may unduly isolate people from their communities and
preclude meaningful relationships with whānau,
hapū and iwi. This may
disrupt the fundamental values of whakapapa and whanaungatanga. The restrictions
may also be seen as
a perpetuation of
punishment.[198] The measures may
continue to negatively impact a person’s mana, tapu and mauri and hinder
effective restoration to their community.
For example, breaches of tikanga and
erosion of mana in prison undermine the hauora (health and wellbeing) of
Māori prisoners.[199]
- 2.59 The
preventive regimes developed out of a legal system that was imposed on
Māori after the signing of the Treaty. As noted
by Jackson, the criminal
justice system was built on Pākehā attitudes and values, not
Māori notions of
justice.[200] It imposed concepts
that were foreign to Māori, could be incompatible with or even damaging to
tikanga[201] and alienated many
Māori.[202] In our view, more
could be done to reverse this imposition by enabling tikanga-based approaches to
address the reoffending risks
of some people.
- 2.60 In
addition, the significance of tikanga to the development of the law is
reinforced by Aotearoa New Zealand’s international
commitments in relation
to Māori, including its affirmation in 2010 of Te Whakapuakitanga o te
Rūnanga Whakakotahi i ngā
Iwi o te Ao mō ngā Tika o ngā
Iwi Taketake | United Nations Declaration on the Rights of Indigenous
Peoples.[203]
The law fails to give effect to obligations under the
Treaty
- 2.61 As
we discuss above, tikanga Māori is also significant in terms of Treaty
rights and obligations that relate to tikanga,
and it may be possible or
necessary to give effect to rights and obligations under the Treaty as they
relate to tikanga through law
reform.
- 2.62 More
generally, in our preliminary research and engagement, we have discerned a clear
desire from Māori to manage people
at risk of reoffending in different ways
to the current preventive regimes. In line with the Tribunal’s views in
the criminal
justice context, tino rangatiratanga demands that Māori be
substantially involved in maintaining the safety of their communities
through
the successful rehabilitation and reintegration of
offenders.[204] This includes a
rangatiratanga right of Māori to ensure that tikanga is followed
appropriately and under the correct authority.
- 2.63 The
overrepresentation of Māori subject to preventive detention and ESOs also
engages the principle of equity and underscores
the responsibility of the Crown
to enable and support tino
rangatiratanga.[205] As we state
in Chapter 1, between 1 July 2012 and 30 June 2022, 45 per cent of those
sentenced to preventive detention identified
as Māori and 42 per cent of
those made subject to ESOs identified as
Māori.[206] This is
significantly higher than Māori population rates. In 2018, the Māori
population was 17 per cent of Aotearoa New
Zealand’s
population.[207]
- 2.64 The prison
environment negatively affects physical and mental health
generally.[208] The isolation,
overcrowding, victimisation and poor physical environment of prisons likely
contributes to the deterioration in the
mental health of
prisoners.[209] Prisons have been
described as “toxic environments” in which antisocial behaviour is
often reinforced by criminally minded
peers.[210]
- 2.65 The
disproportionate rate of preventive detention means that the negative effects
and impacts of imprisonment are disproportionately
felt by Māori. The
impacts of these rates of detention extend beyond those in custody. In the
report on Māori reoffending
rates, the Tribunal noted that
“whānau, hapū, and iwi of Māori serving sentences may be
affected as victims
of crime by losing financial and familial support from the
person serving a sentence, and by the break-up of their
whānau”.[211]
QUESTIONS
Q3
Do you think the law relating to preventive detention, ESOs and PPOs is
failing to enable Māori to live in accordance with tikanga?
Q4
Do you think the law relating to preventive detention, ESOs and PPOs fails to
give effect to the Crown’s obligations under the
Treaty?
PRELIMINARY VIEWS
- 2.66 We
consider there is a strong case for reform. The law should better enable
Māori to engage with and live in accordance
with tikanga should they wish
to do so. The law should give better effect to obligations under the Treaty, in
particular, by facilitating
tino rangatiratanga. In this section, we set out
some preliminary views relating to the reform of the law drawing on the analysis
presented in this chapter.
The Crown and Māori have a mutual interest in ensuring
community safety
- 2.67 We
consider the Treaty provides a framework for addressing community safety and
those considered at risk of serious reoffending.
The Crown and Māori have a
mutual interest in protecting the community from risks of serious reoffending
that are posed by some
people. In making laws to achieve this goal, the Crown
should act in a manner consistent with its Treaty obligations. As noted above,
the fact that Māori are likely to be overrepresented amongst victims of
serious offending triggers the Crown’s duty of
active protection. As to
what preventive measures the law should provide, we suggest that the terms and
principles of the Treaty
indicate that achieving the social goal of protecting
the community from serious reoffending requires the active support and
participation
of both the Crown and Māori.
The law should make greater provision for
Māori-designed and Māori-led initiatives
- 2.68 In
our preliminary view, the primary way the law should enable Māori to live
in accordance with tikanga, and a way of facilitating
tino rangatiratanga, is
through Māori-designed and Māori-led initiatives for managing a person
who is at risk of serious
reoffending. We provide an overview of this proposal
here but discuss it more fully throughout the Issues Paper, particularly in
Chapters 8, 10 and 12.
- 2.69 As noted,
we have discerned a clear desire among Māori to take greater responsibility
for managing people who are at risk
of serious reoffending. We note the
imperative in tikanga for Māori whānau, hapū, iwi and marae to
connect with people
who require some form of
management.[212] We recognise that
the priority of tikanga for the management of people at risk of serious
reoffending is to work to restore their
mana, protect their tapu and achieve ea.
- 2.70 Based on
feedback we have heard in our preliminary engagement, we consider the promotion
of Māori-designed and Māori-led
initiatives to be the best way
Māori can practise this tikanga and exercise tino rangatiratanga. In 1988,
Jackson wrote that: [213]
- It is one of
the weaknesses of current thinking on biculturalism that many institutions
appear to believe they can gain Maori perspectives
or meet Maori needs without
acknowledging the validity of Maori initiatives that may be contrary to their
own.
- 2.71 Jackson
also said that changes within the justice system need to be drawn from “a
commitment to accord Maori ideas and
strategies equal value with the
Pakeha.”[214] He said that
this was a clear consequence of the partnership involved in the Treaty and a
recognition of the authority of the community
to participate in the procedures
that monitor and control the conduct of its people.
- 2.72 In Chapter
10, we consider ways in which the law could better direct the court to consider
Māori-designed and Māori-led
initiatives to manage people subject to
orders. In Chapter 12, we present these proposals in more detail for feedback as
we develop
options for reform in the next stage of this review. We also note in
Chapter 12 that Māori-designed and Māori-led initiatives
will require
resourcing and development.
- 2.73 Ara Poutama
has recognised that the way it manages Māori within its care is not working
for Māori.[215] In its
strategy Hōkai Rangi, Ara Poutama accepts the need to make
significant change.[216] It has
committed to make kaupapa Māori approaches the foundation of practice for
managing Māori within its
care.[217] It has recognised it
must “prioritise, embed and protect mātauranga Māori”. It
will “proactively enable
Māori” to strengthen and maintain
their cultural identity, their connection to people and place and their sense of
belonging.[218]
- 2.74 We consider
greater provision for Māori-designed and Māori-led initiatives to be a
continuation of reforms that are
already occurring within the corrections
system.[219] In the criminal
justice context, the Tribunal has said that rangatiratanga demands that
Māori be substantially involved in maintaining
the safety of their families
and communities.[220] Ara Poutama
has committed to “have authentic shared decision-making at key levels
— and design that with
Māori”.[221] In
Hōkai Rangi, Ara Poutama has
said:[222]
- We will
proactively enable Māori in our care and management to strengthen and/or
maintain their cultural identity, their connection
to people and place, and
their sense of belonging. We will partner with marae, hapū, iwi, and
Māori service providers,
and work with whānau to design, deliver, and
expand support systems and our programmes.
- 2.75 Ara Poutama
is developing several Māori pathway programmes using kaupapa Māori and
whānau-centred
approaches.[223] Ara Poutama
describes several of these planned initiatives are being
“co-designed”,[224]
although these initiatives remain within Ara Poutama.
- 2.76 It is for
Māori to say what their interests are and how they might best be protected
in this area. Throughout this Issues
Paper we seek views, in particular
Māori views, on:
(a) the nature and extent of the Māori rights and interests engaged by this
review and how the active protection of these interests
can be prioritised;
and
(b) how Māori participation in or responsibility for decision-making and
management with preventive regimes can be facilitated.
QUESTION
Q5
Do you agree with our preliminary views about how the law can better enable
Māori to live in accordance with tikanga and better
facilitate the exercise
of tino rangatiratanga?
CHAPTER 3
3 Key human rights issues
IN
THIS CHAPTER, WE CONSIDER:
- instances where
the courts or international human rights bodies have found New Zealand law
governing the preventive regimes to be
inconsistent with human rights law;
and
- whether the
preventive detention, extended supervision orders (ESOs) and public protection
orders (PPOs) can be justified for the
purposes of human rights
law.
INTRODUCTION
- 3.1 The
three preventive regimes authorise some of the most coercive exercises of state
power known to New Zealand law. As we explain
in Chapter 1, a person sentenced
to preventive detention is subject to an indeterminate prison sentence and, even
following release,
the indefinite possibility of recall for breach of parole
conditions. PPOs also involve indeterminate detention — whether in
a
residence located in a prison precinct or in prison itself. Although ESOs do not
ordinarily authorise detention, they authorise
significant restrictions on a
person’s freedoms that, at the top end, do not fall far short of
detention. As with the other
two regimes, a person can be subject to ESO
conditions on an indefinite basis.
- 3.2 Given the
coercive nature of these three regimes, the subjection of an individual to any
one of them engages a host of human rights
issues. We touch on some of these in
later chapters. Here, we examine some key instances where the courts or
international human
rights bodies have found New Zealand law governing the
preventive regimes to be inconsistent with human rights law. We also examine
the
important question of whether the human rights issues presented by the
preventive regimes can be justified. We conclude the chapter
with some
preliminary views on whether reform is desirable to ensure greater compliance
with human rights norms.
- 3.3 This chapter
does not consider instances where a human rights breach has arisen from a
misinterpretation of the law.[225]
Nor does this chapter consider human rights issues that have been argued in the
case law but where the court or human rights body
has not determined that a
breach has occurred.[226] In
Chapters 8 and 10, we consider whether the legislation governing the preventive
regimes should provide greater direction so that
they are applied consistently
with human rights law.
ISSUES
- 3.4 There
are two key instances in which the courts and human rights bodies have found the
law governing preventive detention, ESOs
and PPOs to be inconsistent with human
rights protected by New Zealand and international law. The first is that the
United Nations
Human Rights Committee (UNHRC) has found that preventive
detention in Aotearoa New Zealand breaches the protections against arbitrary
detention under the International Covenant on Civil and Political Rights
(ICCPR).[227] The second is that
the courts have found the ESO and PPO regimes to be inconsistent with the
immunity from second punishment under
the New Zealand Bill of Rights Act 1990
(NZ Bill of Rights).
Preventive detention breaches the right to protection from
arbitrary detention under the International Covenant on Civil and Political
Rights
- 3.5 Section
22 of the NZ Bill of Rights and article 9 of the ICCPR affirm the right not to
be arbitrarily detained. On several occasions,
people have argued that their
sentence to preventive detention under New Zealand law breaches this right. The
courts and the UNHRC[228] have
developed an approach for determining whether ongoing detention to prevent
reoffending constitutes arbitrary detention.
- 3.6 Even though
preventive detention is imposed as a single sentence in place of a determinate
sentence, the courts and the UNHRC
view preventive detention as comprising two
periods. The first is a period that has been referred to as the “tariff
element”,
“punitive period” or what might be regarded as the
“just deserts” in respect of the qualifying
offending.[229] The second and
subsequent period is the time when the person remains detained solely for
preventive reasons.[230] As
discussed further below, it is difficult to identify the first and second
periods in a sentence of preventive detention because
the Sentencing Act 2002
does not distinguish between the two.
- 3.7 The courts
and the UNHRC have said that, to avoid arbitrariness, ongoing detention during
the second period must be justified
on legitimate and compelling public
protection grounds. Regular reviews by a court are needed to test this
justification. In earlier
decisions, the UNHRC and the courts were satisfied
that the New Zealand Parole Board (Parole Board) reviews satisfied this
requirement.[231] More recently,
the UNHRC has questioned whether the Parole Board can be considered a
“court” for these
purposes.[232] We discuss this
issue further in Chapter 11.
- 3.8 In the same
decision, the UNHRC found that preventive detention can breach the ICCPR on
additional grounds. In Miller v New Zealand, two people complained that
their preventive detention constituted arbitrary
detention.[233] One had been
detained in prison for 16 years and the other for 19 years. Most of their
preventive detention had been spent in high
security units.
- 3.9 Drawing on
its previous decisions and statements, the UNHRC explained that arbitrary
detention must be interpreted broadly to
include elements of inappropriateness,
injustice, lack of predictability and due process of law, as well as elements of
reasonableness,
necessity and
proportionality.[234] The UNHRC
said that, in order to meet those requirements, the cogency of the justification
for detaining a person must increase with
the length of the detention. We
consider this justification aspect further in Chapter 11.
- 3.10 The UNHRC
also said that, in order to be free from arbitrariness, the conditions of
preventive detention must be distinct from
the conditions for convicted
prisoners serving punitive sentences and must be aimed at the detainee’s
rehabilitation and reintegration
into
society.[235] In this case, the
UNHRC was concerned that the protracted length of the sentences, and keeping the
people subject to preventive detention
in the same prison conditions as people
serving punitive sentences, raised serious concerns as to whether requirements
of reasonableness,
necessity, proportionality and continued justification had
been met.[236]
- 3.11 To date,
the New Zealand courts have continued to hold that preventive detention is not
arbitrary under the NZ Bill of Rights
if imposed by a sentencing court in
accordance with the Sentencing Act and if the ongoing justification on the
grounds of public
safety is regularly reviewed by the Parole Board. That said,
it is only fairly recently that the New Zealand courts have exercised
a
jurisdiction to review the consistency of legislation for breach of the NZ Bill
of Rights, so the issue has never received close
examination.
- 3.12 Similarly,
there has been limited opportunity for the courts to consider the law in light
of the Miller decision. To date, te Kōti Matua | High Court (High
Court) has held that the conditions of a person’s detention cannot
make
preventive detention arbitrary within the meaning of the NZ Bill of
Rights.[237] The courts have been
clear, however, that the Parole Board must exercise its review responsibilities
consistently with the NZ Bill
of Rights. If the person subject to detention no
longer constitutes an undue risk, the basis for preventive detention ends. If
the
person remains in prison beyond a reasonable time period to put in place
necessary arrangements for release, the person’s rights
not to be
arbitrarily detained under section 22 of the NZ Bill of Rights will be
breached.[238]
Extended supervision orders and public protection orders
breach the protection against second punishment
- 3.13 Human
rights law guards against the state repeatedly punishing a person for the same
crime. In Chisnall v Attorney-General, the full bench of te Kōti
Pīra | Court of Appeal (Court of Appeal) declared that the ESO and PPO
regimes were inconsistent
with the protection against second punishment under
section 26(2) of the NZ Bill of Rights and that those inconsistencies had not
been justified.[239] The decision
has been appealed to te Kōti Mana Nui | Supreme Court (Supreme Court) and a
decision is awaited.
- 3.14 For the
protection against second punishment to be engaged, ESOs and PPOs must
constitute a penalty or punishment. In reaching
its decision that, despite its
protective focus, an ESO does constitute a penalty, the Court of Appeal referred
to several relevant
factors, including the
following:[240]
(a) The triggering event is a criminal conviction.
(b) The respondent to an ESO is termed an “offender”.
(c) An application for an ESO is made to the “sentencing court”.
(d) The ESO regime uses several procedures from the criminal law, such as rights
of appeal and costs.
(e) The conditions of an ESO are in effect the same as some of the penalties
that can be imposed on offenders as a sentence, including
detention for up to 12
months.
(f) It is an offence to breach an ESO.
- 3.15 Having
found ESOs were penalties, the Court was satisfied that PPOs, being much more
restrictive, were also
penalties.[241] The Court was not
persuaded by the attempt in the Public Safety (Public Protection Orders) Act
2014 (Public Safety Act) to avoid
presenting PPOs as punitive, such as the
terminology used (“respondent” rather than “offender”;
“High
Court” rather than “sentencing court”), the use of
the High Court’s civil jurisdiction and the express statement
that
punishment was not an objective of the Act. Neither was the Court swayed by the
Act’s direction that PPOs are to be applied
in a way that respects the
autonomy and dignity of the person subject to the PPO. The effect of a PPO
remains that a person is detained
against their will in a residence located on
prison grounds.[242] Their
movements and who may visit them are controlled by the residence manager’s
extensive powers.
- 3.16 The Court
highlighted the qualified nature of the rights of people subject to PPOs to
receive rehabilitative treatment as another
factor indicating the punitive
nature of PPOs. Section 36 of the Public Safety Act provides that PPO residents
are entitled to receive
rehabilitative treatment “if the treatment has a
reasonable prospect of reducing the risk to public safety posed by the
resident”.
The Court compared this approach to a preventive regime centred
on the provision of medical and therapeutic treatment such as the
regime that
now exists under German law.[243]
Significant amendments have been made to the preventive detention regime in
Germany. This was in response to a 2011 decision of the
Federal Constitutional
Court which ruled that the German regime, as it then was, unjustifiably
encroached on personal liberty and
was
unconstitutional.[244] The German
Criminal Code now requires the
following:[245]
(a) Preventive detention must be carried out in wings or buildings that are
separate to prisons. Those institutions must offer support
to a detainee based
on a comprehensive, individualised and intensive treatment plan that provides
psychiatric, psychotherapeutic
or socio-therapeutic treatment tailored to the
detainee’s needs. If preventive detention is preceded by a term of
imprisonment,
treatment must be offered during the term of that imprisonment.
(b) The aim of the support and treatment plan for the detainee must be to
minimise the detainee’s dangerousness to the public
to a degree that the
detainee may be placed on probation as soon as possible.
(c) Detention must burden the detainee as little as possible.
- 3.17 To
implement these reforms, 12 new preventive detention centres were established
across the country at a total cost exceeding
200 million
euros.[246] At these centres,
detainees have cells that are larger than prison cells and usually include a
kitchen and separate bathroom. There
are other rooms at the centres for therapy,
occupational and recreational activities.
- 3.18 Since these
reforms, the European Court of Human Rights has held that the German regime is
sufficiently aimed at rehabilitation
and treatment of a person’s
“mental disorder” so as to avoid constituting a penalty in
connection with the person’s
previous
offending.[247]
- 3.19 The Court
of Appeal in Chisnall held that, in contrast to the German regime,
treatment and rehabilitation are not presented as a “central focus”
of the
PPO regime.[248] The Court
pointed to the way the right to treatment was qualified by the requirement that
the treatment have a reasonable prospect
of reducing the risk. This may, the
Court said, result in indefinite detention in a residence or prison as a result
of the respondent’s
personality characteristics, with no attempt being
made by the state to treat those
characteristics.[249] The Court
concluded that “the legislative scheme must guarantee therapeutic and
rehabilitative interventions by the state in
order to avoid the conclusion that
it is penal”.[250]
- 3.20 Having
found that ESOs and PPOs were penalties that engaged section 26(2) of the NZ
Bill of Rights, the Court considered whether
the regimes were a justified
limitation in terms of section 5 of the NZ Bill of Rights. Section 5 of the NZ
Bill of Rights provides
that the rights affirmed under the NZ Bill of Rights may
be subject to reasonable limits prescribed by law that are “demonstrably
justified in a free and democratic society”. The Court observed that,
while some rights affirmed in the NZ Bill of Rights could
never be subject to
reasonable limitations, the protection against second punishment was not one of
those rights.[251] It is, however,
clearly of fundamental importance, the Court said. Any departure from its
protection required strong justification
shown by appropriate affidavit evidence
that the regimes are justified as a minimum and necessary response to the
potential harm
caused by those against whom such orders would be
made.[252] Because the
Attorney-General had not provided sufficient evidence, the Court declared that
the ESO and PPO regimes’ inconsistency
with section 26(2) had not been
justified.[253]
- 3.21 Since the
Court of Appeal’s decision in Chisnall, the courts have considered
how ESO applications should be approached in light of the judgment. The Court of
Appeal has recently
held that, if the statutory tests for an ESO are met, the
court must take the additional step of balancing the right not to be subject
to
second punishment against the statutory purpose to protect the public from the
risks of further offending.[254]
Put simply, a “strong justification” is
required.[255]
- 3.22 No other
court or human rights body has specifically considered whether Aotearoa New
Zealand’s ESO and PPO regimes infringe
the ICCPR’s protections
against second penalties. However, the UNHRC has held that Queensland’s
legislation that enables
further detention of sexual offenders beyond their
determinate prison sentences for community protection infringes the ICCPR by
imposing
a second penalty.[256]
Can the preventive regimes be justified?
- 3.23 This
review raises an important question of whether the preventive regimes’
restrictions on human rights are justified
in contemporary Aotearoa New Zealand.
- 3.24 As
discussed, the preventive regimes engage several human rights. Some of these
rights, by their nature, protect against an unjustified
interference with a
particular freedom. Of particular importance, the right to freedom from
arbitrary detention requires detention to be justified in the sense it is
reasonable, necessary and
proportionate.[257] For other
rights, section 5 of the NZ Bill of Rights requires that any limitation of a
right affirmed in the NZ Bill of Rights must
be demonstrably justified in a free
and democratic society. Although the courts use different approaches to
determine whether a limitation
on a right is demonstrably justified, the test
used most often asks whether the limiting
measure:[258]
(a) serves a purpose sufficiently important to justify restrictions on the right
or freedom; and
(b) is rationally connected with its purpose, whether it impairs the right or
freedom no more than reasonably necessary and whether
the limit is in due
proportion to the importance of the objective.
- 3.25 The Court
of Appeal in Chisnall did not consider there was sufficient evidence
before it to determine whether the ESO and PPO regimes’ limitation on the
protection
against second punishment was
justified.[259] The Court did not
accept an argument that the regimes themselves are justified because the courts
have sufficient leeway to refuse
to make an ESO or a PPO if one would not be
justified in the circumstances of the particular
case.[260] Rather, the Court
explained, the central question is whether the provisions of the Parole Act 2002
and Public Safety Act delineate
regimes that limit rights in a way that has been
demonstrably justified.[261]
- 3.26 Consequently,
this review should consider whether the ways in which the preventive regimes
restrict human rights can be justified.
We consider this question throughout
this Issues Paper. At this point, we offer some preliminary
observations.
Stage one: importance of underlying objective
- 3.27 The
purpose of the preventive detention, ESO and PPO regimes is to protect the
community from serious reoffending. In our view,
this an important purpose.
Because the harm caused by serious sexual and violent offending is of such
severity, the state should
take steps to prevent it and the community should be
entitled to expect the state to do so. What those measures should be is the
focus of much of this Issues Paper. At this point, we simply express a
preliminary view that the regimes’ aim of promoting
community safety by
preventing serious reoffending is a legitimate one.
- 3.28 Protecting
the community by preventing reoffending has long been a key purpose of
sentencing and of the corrections system in
Aotearoa New
Zealand.[262] The Court of Appeal
in Chisnall described the prevention of serious sexual and violent
offending as a “very important
objective”.[263] Many
international human rights law instruments to which Aotearoa New Zealand is a
party require the state to implement measures
to protect individuals in the
community from serious harm, including from sexual and violent
offending.[264]
- 3.29 Further, in
Chapter 2, we note how serious offending engages obligations under te Tiriti o
Waitangi | Treaty of Waitangi (the
Treaty). Māori are overrepresented as
victims of intimate partner violence and sexual violence compared with the
general population.
This may trigger the Crown’s duty of active protection
to protect Māori as groups and individuals.
Stage two: rational connection, minimal impairment and overall
proportionality
- 3.30 In
our preliminary view, the preventive regimes are rationally connected to their
purpose of protecting the community from serious
reoffending in the sense that
they do advance that purpose in some way. The Court of Appeal in Chisnall
reached this conclusion in connection with the ESO and PPO regimes, noting the
more important questions were whether the regimes
impair the right no more than
reasonably necessary for achieving the purpose and are
proportionate.[265]
- 3.31 Turning to
the question of whether the three preventive regimes impair relevant rights no
more than is reasonably necessary,
the human rights cases discussed above
suggest a number of relevant inquiries. These include whether the regimes are
sufficiently
rehabilitative and whether persons subject to detention are
accommodated in conditions that are sufficiently distinct from prison.
We
consider those questions further below.
- 3.32 As well, in
addressing this question of minimal impairment, we will need to consider whether
the three preventive regimes are
necessary at all. There are several other
measures within New Zealand law also aimed at protecting the community from
reoffending.
These include:
(a) community-based sentences imposed at sentencing for up to two years to
reduce the likelihood of further offending through rehabilitation
and
reintegration or through restricting a person’s behaviour and
movements;[266]
(b) determinate prison
sentences;[267]
(c) extended minimum periods of imprisonment before a person becomes eligible
for parole;[268]
(d) parole conditions that can last up to six months beyond the expiry date of a
sentence of imprisonment;[269]
(e) detention in a hospital or secure facility where a person has been found
unfit to stand trial or acquitted on account of insanity
and detention is
necessary in the interests of the public or any
person;[270]
(f) registration of child sex offenders which allows for some monitoring of
people in the community who have been convicted of child
sex offences beyond
their sentence;[271]
(g) police safety orders which police can impose on a person for up to 10 days
if necessary to help keep another person safe from
family
violence;[272] and
(h) protection orders which can be imposed by the court if a person has
inflicted or is inflicting family harm and the order is necessary
to protect a
person and/or their children from family
violence.[273]
- 3.33 In
addition, there are other laws at other parts of the criminal justice process
aimed at keeping the community safe from reoffending
more
generally.[274]
- 3.34 Preventive
detention, ESOs and PPOs seek to address reoffending risks that are not
sufficiently addressed by these other measures
— because these other
measures only apply at a particular stage in the criminal justice process,
because they are limited to
relatively short periods of time or because they do
not provide for sufficiently comprehensive monitoring or management. From a
human
rights perspective, key questions include:
(a) whether these other mechanisms are in fact sufficient; and
(b) whether it might be possible to design other mechanisms to manage
reoffending risk that are less intrusive than the three regimes.
- 3.35 The
legislative materials we have viewed in connection with the enactment of the
preventive detention, ESO and PPO regimes and
subsequent reforms disclose very
little consideration of the minimal impairment question.
- 3.36 The
question of the overall proportionality of the three regimes is closely related.
The question requires consideration of whether
the nature and extent of the
problem that the preventive regimes seek to address is sufficient to justify
such significant intrusions
on fundamental rights.
- 3.37 In making
the relevant assessments in relation to both minimal impairment and overall
proportionality, it is necessary to consider
the nature and extent of serious
reoffending in Aotearoa New Zealand.
- 3.38 Some data
is available in Aotearoa New Zealand on criminal recidivism. For example, Ara
Poutama | Department of Corrections (Ara
Poutama) tracks reoffending rates
generally and in relation to people who attend specific
programmes.[275]
- 3.39 The general
research on recidivism is, however, difficult to apply when considering serious
violent and sexual reoffending in
relation to the preventive regimes. That is
mainly because most high-risk people will not be reflected in recidivism data.
People
who pose a high risk of serious reoffending are likely to be subject
already to preventive detention, ESOs or PPOs, thereby restricting
their
opportunities to reoffend. Obvious practical and ethical obstacles prevent
researching what offending may occur if the person
were not subject to these
restrictions. In addition, general data on recidivism offers limited insight
when reviewing the preventive
regimes because it offers little individualised
information about the people who went on to reoffend and why.
- 3.40 Given the
limited evidence available, there are three main considerations that may provide
some evidence of the need for preventive
detention, ESOs and PPOs.
Imposition of preventive detention, extended supervision orders
and public protection orders
- 3.41 As
we note in Chapter 1, as at 30 June 2022, there were 310 people subject to
preventive detention, 205 people subject to ESOs
and two people subject to
PPOs.[276] These orders have been
imposed because a court, having considered expert psychological evidence
(including any evidence elicited
in cross-examination and any competing expert
evidence presented by the defence), has determined that the person presents
risks of
serious sexual or violent reoffending. In the cases where preventive
detention and PPOs have been imposed, the courts will have determined
that the
person’s risk could not have been managed adequately on an ESO (we discuss
this requirement further in Chapter 8).
There are cases where the courts will
decline to impose preventive detention, an ESO or a PPO if the evidence does not
justify an
order.
- 3.42 While there
are criticisms about the legislative tests and the evidence on which decisions
are made (we consider these criticisms
in Chapters 8 and 9), these judicial
determinations and the evidence on which they were based suggest there are
certain people who,
if not under some form of preventive measure, pose real
risks of committing further serious sexual or violent offences.
Reasons given in support of extended supervision orders and
public protection orders at the time of enactment
- 3.43 The
materials supporting the introduction of the ESO and PPO regimes illustrate the
problems the orders were intended to solve.
However, the empirical evidence
presented to support the ESO and PPO regimes was limited.
- 3.44 As we note
in Chapter 1, the introduction of the ESO regime in 2004 was prompted by
concerns about several people who had received
finite sentences for child sex
offending and were considered at risk of future offending on
release.[277] Some of those
individuals had previously been detained in psychiatric institutions. Ara
Poutama had assessed people within its care
and identified 107 people for whom
an application for an ESO could potentially be
made.[278]
- 3.45 For PPOs,
Ara Poutama held concerns arising from several incidents where people on ESOs
had committed offences despite being
subject to residential restrictions and
intensive monitoring
conditions.[279] Those offences
included an instance where the person had sexually offended against a
16-year-old girl.[280] Other
offences included arson, assault, damaging property and theft. Ara Poutama
noted, however, that these offences were mainly
against the employees or
property of the organisations supervising the offender. These offences are not
offences that ESOs and PPOs
are aimed at preventing. Little detail was provided
around the offending against the 16-year-old, and it appears this may have been
an isolated incident.
- 3.46 The
expansion of the ESO regime in 2014 was supported by little empirical evidence.
The Regulatory Impact Statement supporting
the reforms merely noted that public
safety is jeopardised by the lack of long-term options for managing these
individuals after
they complete a determinate prison
sentence.[281] No other evidence
of the problem was provided.
Instances of serious sexual and violent reoffending
- 3.47 While
serious sexual and violent offending is relatively rare, there have been
isolated instances of individuals who, having
completed determinate prison
sentences for serious sexual and violent offending, have gone on to commit
further serious offences.[282]
Some of these instances have been influential in policy decisions to retain
preventive detention[283] and
introduce ESOs.[284]
Concluding observation
- 3.48 Considering
the limited evidence, it is difficult to draw conclusions at this stage as to
the extent of the need for the preventive
regimes. It appears there are people
who, unless detained or properly supervised after a determinate prison sentence,
will pose risks
to the community of serious reoffending. The number of those
people and the nature and duration of restrictive measures needed to
keep the
community safe are matters that are difficult to assess at this stage. We are
interested in feedback on this point.
PRELIMINARY VIEWS
- 3.49 We
consider there is a strong case for reform to align the preventive regimes with
human rights standards. In this section, we
discuss the implications arising
from human rights issues discussed above and what they may mean for possible
reforms.
Justification is required
- 3.50 As
we go on to develop possible reforms to the law in this review, human rights law
requires that any preventive measures that
provide for detention or limit human
rights in any other way be justified. As noted above, on the limited evidence
and analysis supporting
the current law, it is difficult at this stage to reach
conclusions.
- 3.51 In the next
stage of this review, we will use the feedback we receive on this Issues Paper
and further research to consider the
justification of preventive measures. The
Supreme Court’s pending decision in the Chisnall proceeding will
also be relevant to this issue.
- 3.52 For the
purposes of this Issues Paper, we proceed on the basis that New Zealand law will
continue to provide some form of preventive
measures to address real risks of
serious reoffending beyond a determinate sentence. To which individuals those
measures apply and
what those measures should be are questions we raise
throughout this Issues Paper.
QUESTION
Q6
Do you think the law is justified in providing for preventive measures that
may breach human rights? If so, what types of measures
are justified and
why?
The law should clearly demarcate the punitive period and
community protection period of preventive detention
- 3.53 The
view of the courts and the UNHRC that preventive detention should comprise
distinct periods — first, a punitive period
and, second, a subsequent
period during which a person remains detained for community safety — is
not reflected in the provisions
of the Sentencing Act and Parole Act. The
legislation does not clearly distinguish between the two periods. All sentences
may involve
a blend of the retributive and community protection purposes listed
under sections 7–8 of the Sentencing Act. The minimum period
of
imprisonment (MPI) a court must set for preventive detention under section 89 of
the Sentencing Act blurs the distinction further
by providing the MPI must be
set to reflect either the gravity of the qualifying offence or to
provide for the safety of the community, whichever period is the longer. The
lack of clear distinction between the two periods,
and the confusion it may
cause in practice, is evidenced by the fact that, in each of three UNHRC
decisions that have considered
preventive detention in Aotearoa New Zealand, the
UNHRC identified a different period as the first punitive
period.[285]
- 3.54 The
distinction between an initial punitive period and a second period requiring
ongoing community safety justification is, however,
now an established element
of a rights-consistent approach to preventive detention. If the law is to
continue to provide for preventive
detention, it is desirable for the law to
distinguish more clearly the criminal sentence that responds to past offending
and any
subsequent period during which a person is required to remain detained
on the grounds of community safety. In Chapter 12, we present
proposals for
reform that set out how a clearer distinction might be achieved.
- 3.55 Relatedly,
the courts have required that the test for parole in the Parole Act be
interpreted in a way that recognises that,
if the community safety justification
for the ongoing preventive detention of a person no longer exists, they must
released. However,
rather than recognise a person’s right to liberty
during the second period, section 28(1AA) of the Parole Act expressly states
that nothing in the Act, nor any other enactment, confers an entitlement to be
released on parole. We discuss this issue further
in Chapter 11.
QUESTION
Q7
If the law is to continue to provide for preventive detention, do you agree
the law should be reformed to demarcate more clearly the
first and second
periods of preventive detention to align with human rights law?
People detained for preventive reasons after a determinate
sentence should be managed in different conditions to prison
- 3.56 The
practice under New Zealand law of keeping people subject to preventive detention
in the same prison conditions as other offenders
should be reconsidered in the
light of the UNHRC’s decision in Miller v New Zealand.
- 3.57 In our
preliminary view, there is merit to the requirement to manage people under
separate conditions when they are detained
for community safety beyond their
punitive prison sentence. Imprisonment is a severe form of criminal sanction
because of the restrictions
it places on every aspect of a person’s life
and the physical, psychological and social detriments it
imposes.[286] These detriments are
heightened for people serving indeterminate sentences because they are exposed
to the harmful effects of prison
for longer.
- 3.58 A recent
report on indeterminate sentences of imprisonment for public protection, which
formerly operated in England and Wales,
explains how the indefinite nature of
the sentence contributed to feelings of hopelessness and despair resulting in
high levels of
self-harm and some suicides within the population subject to the
sentence.[287] These findings echo
feedback we have received in preliminary engagement that those subject to
indeterminate imprisonment through
preventive detention feel hopelessness and
lose confidence in their eventual release.
- 3.59 We are
mindful too that the Matawhāiti PPO residence (while subject to other
issues discussed in this Issues Paper) demonstrates
an alternative means of
securely detaining high-risk individuals.
- 3.60 In Chapter
12, we present proposals for how people detained beyond a determinate prison
sentence might be managed in different
conditions.
QUESTION
Q8
Do you think that people who are detained after completing what may be
regarded as their punitive prison sentence should be managed
in different
conditions to prison?
The law should have a greater focus on
rehabilitation
- 3.61 In
light of the Court of Appeal’s decision in Chisnall, this review
should consider how post-sentence orders might achieve their community
protection aims without constituting an unjustified
limitation on the protection
against second punishment. One clear consideration arising from the
Chisnall decision is whether rehabilitative and therapeutic treatment
should be a central aim of the regimes, accompanied by stronger obligations
to
provide treatment to people who are detained for preventive reasons.
- 3.62 Aside from
the Court of Appeal’s views in Chisnall, our preliminary view is
that the preventive regimes should have a greater therapeutic and rehabilitative
focus. The humane treatment
of people subject to preventive measures, and the
aim to reintegrate them into communities, is a desirable policy goal in its own
right. In addition, there are other considerations that support the contention
that the therapeutic and rehabilitative treatment
should be a central focus of
the preventive regimes.
The preventive regimes capture people with different brain and
behavioural functioning
- 3.63 From
our preliminary research and engagement, it appears that preventive detention,
ESOs and PPOs are often imposed on people
who present with both diagnosed and
undiagnosed brain, behavioural or mental health issues. This raises the question
of whether preventive
regimes in their current form are appropriate measures to
achieve community protection.
- 3.64 Common
presentations of people subject to a preventive regime include autism spectrum
disorder, attention deficit hyperactivity
disorder, post-traumatic stress
disorder, traumatic brain injury, and what the case law often describes as
“low levels of intellectual
functioning”. In some cases, a
person’s condition has been an important factor in why the court has
considered the person
to pose risks to community
safety.[288] This is not
surprising given that at least some of these conditions may affect a
person’s ability to regulate their behaviour
and appreciate the
consequences of their
actions.[289] In the case of ESOs
and PPOs, the traits and behavioural characteristics identified in the statutes
as prerequisites to the imposition
of an order may actually target people with
cognitive impairments and mental health issues (we discuss this further in
Chapter 8).[290]
- 3.65 As a party
to the United Nations Convention on the Rights of Persons with Disabilities
(CRPD), Aotearoa New Zealand has obligations
to ensure persons with disabilities
enjoy or exercise on an equal basis with others all human rights and fundamental
freedoms.[291] It requires states
to take appropriate steps to provide reasonable accommodations to meet that
objective.[292]
- 3.66 There is
limited research available directly on this
issue.[293] We are unable to
analyse comprehensively how the preventive regimes capture and treat people who
have disabilities for the purposes
of the CRPD. Nevertheless, our preliminary
view is that the fact that preventive detention, ESOs and PPOs are imposed on
people with
brain, behavioural and mental health issues adds weight to the
argument, discussed above, that the preventive regimes should be predominantly
therapeutic and rehabilitative.
The preventive regimes do not recognise offenders as
victims
- 3.67 People
within the criminal justice system have often experienced potentially
traumatising events that may be a cause of recidivist
behaviour.[294] For example, a
2016 study of a representative sample of New Zealand prisoners found
that:[295]
(a) over three-quarters had experienced some type of violence (including family
violence, sexual violence or other community violence);
(b) 57 per cent had experienced sexual and/or family violence (63 per cent for
Māori); and
(c) nearly one in five had experienced sexual assault (including rape).
- 3.68 The study
concluded that more work is needed to explore the relationship between
victimisation and offending patterns. It also
emphasised the need for prisoners
to access victim services and trauma-informed practice. Follow up studies have
noted that effective
treatment focuses on understanding and addressing
trauma.[296]
- 3.69 During our
research, we have been struck by the prevalence of cases where the individual
against whom preventive detention, an
ESO or a PPO is sought has been a victim
of adverse experiences, particularly sexual abuse and violence. This prevalence
underscores
the point that often the risks a person poses are in part a product
of adverse traumatic experiences and complex psychological factors.
Again, these
considerations reinforce our preliminary view that therapeutic treatment should
be a central focus of the preventive
regimes.
Further observations on rehabilitative treatment
- 3.70 In
Chapter 12, we present proposals for how the law could provide a stronger focus
on rehabilitative treatment. There are, however,
some further observations that
may be helpful.
- 3.71 First, the
Court of Appeal’s decision in Chisnall suggests that appropriate
focus on therapeutic and rehabilitative interventions may avoid a conclusion
that a preventive measure
is penal and a form of second punishment. We note the
possibility, however, that, despite a greater focus on and stronger rights
to
rehabilitative treatment, preventive measures may still be considered punitive
because of the severity of restrictions they impose.
- 3.72 Second, a
stronger focus on treatment is likely to be relevant to whether the preventive
regimes can be demonstrably justified
for the purposes of section 5 of the NZ
Bill of Rights. Part of the inquiry is to show that the measure impairs the
right no more
than is reasonably necessary to achieve its
purpose.[297] A regime that gave
greater priority to rehabilitative treatment than the current preventive regimes
would likely constitute a lesser
impairment of a person’s rights. That
will also be relevant to the final inquiry of whether the extent of the limit is
in proportion
to the objective.
- 3.73 Third, we
note the comments raised to us several times in preliminary engagement that some
people may not respond to rehabilitative
treatment. It is possible, some people
said, that full rehabilitation and reintegration into the community may be an
unrealistic
goal for some people at risk of serious reoffending. In reality, a
person subject to a preventive measure would be “managed”
rather
than “rehabilitated”. Alternatively, some people may refuse
treatment meaning that, despite the regime’s
focus, it would not have a
rehabilitative effect. While these comments are likely to describe accurately
the experience of some people
on preventive orders, they do not, in our
preliminary view, detract from the reasons for strengthening the focus on and
rights to
rehabilitative and QUESTION
Q9
therapeutic treatment.
Do you think the preventive regimes should have a stronger focus on
therapeutic and rehabilitative treatment and provide stronger
rights to
treatment for people detained?
Preventive detention versus post-sentence orders
- 3.74 We
conclude this chapter by identifying a conundrum that we think is posed by the
human rights jurisprudence. While ESOs and
PPOs constitute a second punishment,
they provide some benefits over preventive detention.
- 3.75 The Court
of Appeal in Chisnall held that the protection from second punishment is
of “fundamental importance” and any limitation of the right requires
“strong
justification”.[298]
During our preliminary engagement, we have heard anecdotally that people
serving determinate prison sentences are often disappointed
to find at the end
of their sentence that they will be subject to further severe restrictions in
the form of an ESO or a PPO.
- 3.76 One way to
avoid engaging the protection from second punishment is to insist that any risk
of reoffending is managed at the point
of sentence rather than in post-sentence
orders. This would be to prefer, in other words, preventive detention to ESOs
and PPOs.
- 3.77 It is by no
means clear, however, that this would be in the interests of offenders.
Preventive detention requires an assessment
at sentencing of the likelihood that
the person will reoffend if released at the sentence expiry date of a
determinate sentence.
In Chapter 8, we explain that, because that assessment
calls for a prediction of risk several years into the future, it is likely
to be
less accurate than assessments undertaken at the end of a sentence when a person
is due to be released into the community.
Another disadvantage of preventive
detention is that the sentence remains in place even after the safety concerns
have diminished,
resulting in the imposition of parole conditions and risk of
recall for the remainder of the offender’s life.
- 3.78 In the High
Court judgment of Chisnall, the Court found that ESOs were partly
justified because of the benefits they provided over preventive detention. The
Court explained:[299]
- Furthermore, as
Mr Keith acknowledged, the availability of an ESO in many cases is a factor that
will militate against the imposition
of a sentence of preventive detention which
carries the prospect of imprisonment without release. The ESO is therefore a
mechanism
for managing the long-term risk to the public without the immediate
imposition of the most severe sentence that can be lawfully imposed.
Judges
familiar with the decision to impose preventive detention will understand the
prescriptive significance and value of an alternative
regime which enables the
assessment of risk to be undertaken at the time of release rather than at
sentence. All of this bears on
the reasonableness and proportionality of an ESO.
The severity of the conditions of ESO and their implementation also have
heightened
relevance in this context.
- 3.79 In the
light of this conundrum, in Chapter 12, we set out a range of proposals to
encourage feedback on the most appropriate
time to impose a preventive measure
given the trade-offs involved.
CHAPTER 4
4 Fragmentation of the law
IN
THIS CHAPTER, WE CONSIDER:
- the way in which
the law governing preventive detention, extended supervision orders (ESOs)
public protection orders (PPOs) is spread
across three different statutes;
and
- issues with
having the law fragmented in this way.
INTRODUCTION
- 4.1 While
preventive detention, ESOs and PPOs share the same community safety objective,
they are governed by independent but interrelated
statutory regimes. As a
result, there are ways in which the law does not fit together coherently. This
chapter examines the issues
resulting from this fragmentation.
BACKGROUND — HOW THE FRAGMENTATION AROSE
- 4.2 As
we set out in Chapter 1, the preventive detention, ESO and PPO regimes developed
largely independently. This background shows
how ESOs and PPOs were devised as
standalone preventive measures to address perceived “gaps” within
the existing law.
New regimes appear to have been favoured over reform to
existing measures.
- 4.3 The Public
Safety (Public Protection Orders) Act 2014 (Public Safety Act), in particular,
was designed to be separate from preventive
detention and ESOs and distanced
from criminal proceedings.[300]
One of the main points of difference is its presentation as a
“civil” regime. The Act states “it is not an objective
of this
Act to punish persons”.[301]
Applications for PPOs are made by originating application to te Kōti Matua
| High Court (High Court).[302] A
person against whom an order is sought is called a “respondent”
(rather than an “offender” as with ESOs).
- 4.4 The
background demonstrates, too, how the development of the law has been reactive.
As we discuss in Chapter 1, it appears that
ESOs and PPOs were enacted to
provide management options for specific individuals who were shortly to be
released into the community
and who were not eligible for existing regimes.
ISSUES
Difficulties imposing the least restrictive preventive
measure
- 4.5 Despite
the separation of preventive detention, ESOs and PPOs into separate statutory
regimes, the courts have attempted to apply
the three regimes together in a
cohesive way. In particular, to administer the law consistently with human
rights, the courts have
held that preventive detention or a PPO should not be
imposed when less restrictive options would adequately address the risk a person
will reoffend. We discuss this further in Chapter 8. In summary, when
considering whether to impose preventive detention, the courts
will consider the
availability of an ESO and whether it would provide adequate protection for the
public.[303] Similarly, the courts
will not impose a PPO unless the risks posed by the respondent cannot be
adequately managed under an
ESO.[304]
- 4.6 In several
ways, however, the fragmentation of the law hinders the courts’ ability to
impose an ESO when it would provide
an effective and less restrictive option
than preventive detention or a PPO.
- 4.7 First,
preventive detention, ESOs and PPOs are siloed into different regimes at
different points of the criminal justice process.
Preventive detention is part
of the criminal sentencing process, whereas ESOs and PPOs are post-sentence
orders. When considering
preventive detention, the court must undertake the task
of assessing the likely effectiveness of an ESO if it is imposed at the end
of a
determinate sentence. That might be several years in the future.
- 4.8 Second, in
some instances, there are express legislative prohibitions preventing the court
from imposing the least restrictive
option. In particular:
(a) A person subject to preventive detention cannot be considered for an
ESO.[305] It is possible that a
person subject to preventive detention who did not satisfy the test for release
on parole could be safely managed
in the community subject to an ESO. The
availability of an ESO could, therefore, mean that the person could spend less
time imprisoned.
The legislation, however, precludes this option.
(b) The Public Safety Act provides that, when a court is considering whether to
impose preventive detention, the court must not take
into account its
jurisdiction under the Public Safety Act to impose
orders.[306] Consequently, to the
extent a PPO may constitute a less restrictive option than preventive detention,
the Public Safety Act prevents
the court from considering a PPO as an
alternative.
- 4.9 Third, the
legislation, as written, does not require that the court impose the least
restrictive order. Rather, courts have imposed
this restriction themselves
through case law.
- 4.10 In our
preliminary view, the law governing preventive detention, ESOs and PPOs should
require the court to impose the least restrictive
order needed to address the
reoffending risks in each case. As we discuss more fully in Chapter 8, we
consider that it may be preferable
for the legislation to state as
comprehensively as possible the full tests the court will apply when considering
whether to impose
preventive measures. This approach is integral to the
reasonableness and proportionality of a preventive measure, which must be
satisfied
to be consistent with human rights
standards.[307] The obstacles
imposed by the law appear to be a key issue that should be addressed by reform.
In Chapter 12 we present proposals
for reform to address the issues.
Procedural inefficiencies
- 4.11 Procedural
issues arising from fragmentation of the regimes may cause inefficiencies. Two
aspects in particular warrant attention.
- 4.12 First, when
the chief executive of Ara Poutama | Department of Corrections (chief executive)
applies for a PPO at the same time
as applying for an ESO in the alternative,
section 107GAA(2) of the Parole Act 2002 provides that the court “must not
hear”
the ESO application until the PPO application has been determined or
withdrawn. This may result in double-handling. Because the court
will consider
whether an ESO should be imposed in the alternative to a PPO, to determine a PPO
application it will receive evidence
and submissions on whether an ESO could and
should be granted and with what conditions. If the court does not grant the PPO,
section
107GAA seems to require the court to hear the ESO application
separately, potentially repeating the evidence and submissions presented
at the
PPO hearing.
- 4.13 In the
recent case Chisnall v Chief Executive of the Department of Corrections,
te Kōti Pīra | Court of Appeal (Court of Appeal) expressed
dissatisfaction with section 107GAA,
saying:[308]
- Given the need
for the Court to always consider less restrictive alternatives before making a
PPO, in our view, that approach may,
notwithstanding the express words of the
statute, be somewhat artificial.
- 4.14 Nevertheless,
the Court of Appeal accepted that it could not determine the PPO and ESO
applications at the same time. The Court
cancelled the PPO and remitted the ESO
application to the High Court to be dealt with separately.
- 4.15 Second,
section 104 of the Public Safety Act requires applications for PPOs to be made
by originating application to the High
Court. It is a civil rather than criminal
process. During preliminary engagement, we heard some concerns relating to the
civil procedural
context of PPOs:
(a) Lawyers who work in this area, including the Public Defence Service, are
most likely to be approved legal aid providers for criminal
and Parole Board
matters. They are unlikely to be approved legal aid providers for civil
services. A lawyer who has represented a
client in other aspects of the criminal
process, including ESOs, may be unable to act in respect of the PPO application
notwithstanding
the advantages that come from the lawyer’s familiarity
with the client. This may be a particular problem for Māori. It
may be
important for Māori to be represented by counsel with whom they have a
relationship or to be represented by a Māori
lawyer.
(b) Lawyers who do act on PPO matters usually practise in the criminal and
parole jurisdictions. They may be unfamiliar with civil
law process, again
giving rise to inefficiencies.
QUESTION
Q10
Do you agree with the issues we have identified regarding the fragmentation
of the law? Are there other issues we should consider?
Part
Three:
Eligibility
CHAPTER 5
5 Preventive detention and young adults
IN
THIS CHAPTER, WE CONSIDER:
- the age of
eligibility for preventive detention, extended supervision orders (ESOs) and
public protection orders (PPOs);
- research on
brain development in young adults (aged 18 to 25);
- human rights law
relating to young adults in the criminal justice system; and
- issues arising
from the eligibility of young adults for preventive detention.
INTRODUCTION
- 5.1 In
this chapter, we discuss whether, having regard to research on brain
development, it is appropriate to sentence young adults
to preventive detention
or whether any risk of reoffending could be adequately addressed by
post-sentence orders.
- 5.2 We use the
term “young adult” to include people aged 18 up to their 25th
birthday.[309] Cognitive and
emotional development varies between individuals, and there is not one age of
maturity that will be appropriate for
all
people.[310] However, we use this
age range because it appears to be one of the more common definitions of young
adulthood in the criminal justice
context and reflects the scientific evidence
indicating that the brain continues to develop into the mid to late
20s.[311]
THE LAW
Age of eligibility for preventive detention
- 5.3 A
person can be sentenced to preventive detention if they were 18 years of age or
over at the time of committing a qualifying
offence.[312]
- 5.4 The minimum
age of eligibility for preventive detention has differed under former
legislation. Between 1954 and 1987, the minimum
age was 25 years. In 1987, the
minimum age was lowered to 21 years at the same time as the qualifying offences
were broadened to
include violent offences. In introducing the 1987 Sentencing
and Parole Reform Bill, the Minister of Justice Rt Hon Geoffrey Palmer
said the
Bill was a measure to “deal with the immediate problem of
violence”.[313] The concern
met by the Bill was said to arise “not so much from particular offences
... but from particular types of
offenders”:[314]
- Like other
violent offenders, rapists tend to be young, with 69 percent of those convicted
of that offence being under 25.
- 5.5 The minimum
age of eligibility was lowered further to the current age of 18 years by the
2002 sentencing reforms.[315] As
we discuss in Chapter 1, these reforms were a response to a 1999 law and order
referendum.
- 5.6 During the
parliamentary debates on the 2002 sentencing reforms, the Minister of Justice
Hon Phil Goff said that lowering the
age was just one of three ways that
preventive detention was to be expanded (along with further broadening the range
of qualifying
offences and removing the prerequisite of a previous conviction
for a serious offence). The stated rationale was
that:[316]
- ...
regrettably, people [as young as 18] are capable of committing offences and
being a huge risk to the community. They should not
have to wait until they are
21 to get preventive detention. Preventive detention should apply from age
18.
Age of eligibility for extended supervision orders and
public protection orders
- 5.7 There
is no minimum age of eligibility for ESOs. To be eligible for a PPO, a person
must be aged 18 years or older at the time
of the application.
- 5.8 Unlike for
preventive detention, there is no minimum age requirement on when the qualifying
offending was committed for ESOs and
PPOs. For both, the qualifying offending
could have been committed when the person was under 18 years
old.[317]
- 5.9 In practice,
however, the number of people who would qualify for an ESO or a PPO on the basis
of offending committed when they
were under 18 years old is likely to be
extremely small. This is because, to be eligible, the person must have been
convicted and
sentenced to imprisonment for the triggering offence, and there
are very limited circumstances in which a young person can be sentenced
to
imprisonment.[318] We are aware of
one case where the court imposed an ESO on a person on the basis of offending
committed when they were a young
person.[319]
STATISTICS ON THE USE OF PREVENTIVE DETENTION, EXTENDED
SUPERVISION ORDERS AND PUBLIC PROTECTION ORDERS IN RELATION TO YOUNG
ADULTS
- 5.10 Between
the year ending 30 June 2013 and the year ending 30 June 2022, 104 people were
sentenced to preventive detention. Of
these, five were young adults at the time
of sentencing, but none were under the age of
20.[320] As far as we have been
able to ascertain, two were 19 years old at the time of committing the
qualifying offending.[321]
- 5.11 During the
same period, 308 ESOs were ordered. Of these, 19 were made in respect of young
adults, including two ESOs that were
made in respect of people under 20 years
old at the time the order was
made.[322]
- 5.12 As far as
we are aware, no PPOs have been made in respect of young adults.
OUR APPROACH TO THE LAW ON THE AGE OF ELIGIBILITY
- 5.13 We
propose that, as the legislation allows heavy restrictions to be imposed on the
rights and freedoms of young adults, the law
in this area should be guided by
up-to-date research on young adults and brain development and human rights
law.[323]
Research on young adults and brain development
- 5.14 There
is considerable evidence suggesting that the brain continues to develop until
the mid-20s. This means young adults (as
well as young people aged 14 to 18) are
at increased risk of engaging in anti-social
behaviour.[324] This is reflected
in criminal justice statistics. In general, while young people and young adults
only make up about 14 per cent
of the New Zealand population, they comprise
about 40 per cent of criminal justice
apprehensions.[325]
- 5.15 Currently,
a person generally becomes subject to the adult criminal justice system at age
18. However, it has been noted that
there “is no particular logic to
setting the upper age of the youth justice system at 18” and that the age
of majority
was traditionally set at
21.[326]
- 5.16 There has
been increasing recognition that the human brain continues to develop, in
significant ways, “long after the period
normally considered to define
adolescence” and into a person’s
20s.[327]
- 5.17 During
adolescence, there is an imbalance in the development of the regions of the
brain.[328] The brain regions
involved in mood and development reach biological maturity before the frontal
cortices, which are involved with
controlling emotions, resisting temptations
and considering consequences. The frontal cortices are some of the last regions
of the
brain to fully mature, with the prefrontal cortex reaching biological
maturity at around 25 years or
older.[329] This imbalance is
thought to underline “some of the characteristic behaviours seen in
adolescence, such as impulsivity, risk
taking and reward driven
behaviours” as well as “emotionally driven decision-making and
psychopathy”.[330]
- 5.18 Characteristics
and behaviours exhibited in young adults that correlate with risk of offending
— for example, impulsivity
and instability — may reflect the
developmental stage of the brain rather than indicating long-term
risk.[331]
- 5.19 Young
adulthood is also “a stage of life where behaviour change is more readily
possible” and where “reintegrative
and rehabilitative programmes
show better results when compared with fully functioning
adults”.[332] It has been
suggested that the same neurobiological factors that contribute to risk-taking
and sensation-seeking behaviour in adolescents
may also make adolescents
“more amenable to
rehabilitation”.[333]
- 5.20 However,
imprisonment may have a particularly negative effect on young adults. A report
by the United Kingdom House of Commons
Justice Committee
stated:[334]
- ... [t]he brain
can heal to an extent up to the age of 25 if taken out of adverse circumstances,
for example, separation from family
and friends and exposure to punitive
conditions; while the brain is continuing to develop there is a risk that
problems will be compounded
by involvement in the criminal justice system itself
...
Human rights law
- 5.21 There
are a number of international human rights instruments relating to youth justice
and the protections required for children
and young people in the criminal
justice system.[335] These
international instruments apply to people up to age 18. However, there has long
been a view that similar protections should
extend to young adults.
- 5.22 In 1985,
the United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (the Beijing Rules) provided that
“efforts shall also be made to
extend the principles embodied in the Rules to young adult
offenders”.[336] The
Committee on the Rights of the Child recently urged states to increase their
minimum ages of criminal responsibility on the basis
that “the
developmental and neuroscience evidence indicates that adolescent brains
continue to mature even beyond the teenage
years, affecting certain kinds of
decision-making”.[337]
- 5.23 In relation
to the application of the youth justice system, the Committee
said:[338]
- The Committee
commends States parties that allow the application of the child system to
persons aged 18 and older whether as a general
rule or by way of exception. This
approach is in keeping with the developmental and neuroscience evidence that
shows that brain development
continues into the early twenties.
- 5.24 Dr Nessa
Lynch, Research Fellow at the Faculty of Law at Victoria University of
Wellington, has commented “it may be said
that there is a developing norm
of international human rights law that young adults should have special
consideration in the criminal
justice
system”.[339]
- 5.25 There has
been a shift in Aotearoa New Zealand and in other jurisdictions towards
extending youth justice principles to young
adults in accordance with the
research.[340] For example, in
Aotearoa New Zealand:
(a) young adults have received sentencing discounts recognising their youth and
related rehabilitation potential even in cases involving
serious offending and
sexual offending;[341]
(b) the Prime Minister’s Chief Science Advisor has recommended extending
youth justice principles where appropriate for people
up to age
25;[342] and
(c) since 2020, a Young Adult Court has been trialled in Porirua District Court,
which separates defendants aged between 18 and 25
years old from older adults on
the basis that they will all have the cognitive shortcomings explained in the
neurological science.[343]
ISSUES
Preventive detention may be inappropriate for young adults
- 5.26 Given
that a large proportion of offending, including sexual and violent offending, is
committed by young adults, we proceed
on the basis that there are some young
adults who would pose significant risks of committing serious sexual or violent
offences if
released into the community on parole at the end of a determinate
sentence.[344] This group,
although likely to be small, may require some form of preventive measures to
address these risks.
- 5.27 In our
preliminary engagement, we have heard that preventive detention in its current
form may not be an appropriate method of
addressing this problem. This is for
reasons particular to preventive detention, and the issues do not apply, or do
not apply to
the same extent, to ESOs or PPOs.
- 5.28 There are
two primary issues with the preventive detention regime that relate
to:
(a) the accuracy of assessing long-term risk posed by young adults; and
(b) the impact of indeterminate sentences on young adults.
Risk assessment in young adults
- 5.29 Studies
suggest that “[g]iven the enormous developmental changes that occur during
adolescence, juveniles’ risk may
be seen as particularly
dynamic”.[345] It has been
suggested that, when using risk assessments for young people for the purposes of
preventive measures:[346]
- ... the results
do not allow for a distinction, within a group of at-risk youth, between those
who will have minor behavioural problems
over a fairly short period of time, and
those who will adopt a life trajectory oriented toward more serious and chronic
crimes.
- 5.30 Risk
assessment measures have “limited temporal validity and moderate
predictive accuracy” during adolescence.
[347] While it is possible to estimate
risk over the short term with some degree of accuracy, “estimates of
long-term risk are more
problematic.”[348] This
“might be a result of the unstable nature of attitudes, behaviour, and
relationships in this versatile age
period”.[349] Given the
ongoing development of the brain, the same concerns are likely to apply to young
adults.
- 5.31 This may
raise a particular problem for preventive detention because a sentencing judge
must consider the risk that the person
will pose if released at the end of a
hypothetical sentence of imprisonment (that is, the sentence they would receive
if not sentenced
to preventive detention), which could be many years away. A
young person’s risk profile may change over this period.
- 5.32 The
consequences of the initial risk assessment are enduring because, even if the
person’s risk reduces and they are granted
parole when eligible, they
remain subject to recall and to parole conditions for life. We discuss the
impacts of this on young adults
in the next section.
- 5.33 This aspect
of risk assessment is less problematic for ESOs and PPOs because the risk
assessment takes place much closer to the
time that the order takes effect. As
we discuss in Chapter 8, assessments of risk at the time of release from custody
should take
place as close as possible to the actual time of that
release.[350]
- 5.34 An analysis
of the case law suggests that courts are aware of this issue and take the
limitations of risk assessment into account
when determining whether to impose
preventive detention on young
adults.[351]
- 5.35 For
example, in Grant v R, te Kōti Pīra | Court of Appeal (Court of
Appeal) quashed a sentence of preventive detention that was imposed for
offending
that the appellant committed when he was 18 and 19 years
old.[352] The Court considered
that the developmental context of the appellant’s offending, along with
the availability of an ESO at
the end of a determinate sentence, tipped the
balance against imposing preventive detention. This was despite two health
assessors’
reports concluding that the appellant posed a significant or
very high risk of violent reoffending. On appeal, there was a further
report
before the Court that confirmed the appellant’s risk of reoffending was
very high but also included information about
young adults’ development.
Consistent with the research discussed above, it said that the prefrontal
cortex, which “provides
for logic and understanding of consequences, and
governs impulsivity, aggression, the ability to organise thoughts, and to plan
for
the future”, continues to “undergo significant changes during
adolescence and youth, and is not fully developed until
the early to
mid-20's.”[353] In relation
to offending behaviour, the report noted
that:[354]
- ... As the
age-crime curve shows, young people will typically be identified as being higher
risk than older people. As such, it is
of critical importance to consider age,
development, and context when considering the level of risk that an individual
poses for
reoffending
- 5.36 In granting
the appeal, the Court of Appeal accepted that, as the appellant matured, his
behaviour would likely become more stable
and he would likely become more
receptive to participating in treatment and rehabilitation.
Impact of indeterminate sentences on young adults
- 5.37 There
is evidence that indeterminate sentences of imprisonment are harmful for those
subject to them. For example, in a report
on sentences of imprisonment for
public protection (IPP) — an indeterminate sentence similar to preventive
detention —
the House of Commons Justice Committee reported that the
sentence and conditions attached to it caused psychological
harm.[355] The Committee
stated:[356]
- The indefinite
nature of the sentence has contributed to feelings of hopelessness and despair
that has resulted in high levels of
self-harm and some suicides within the IPP
population.
- 5.38 While there
is limited direct research on the experiences of young adults subject to
preventive detention or indeterminate sentences,
there is reason to think that
indeterminate sentences may be more harmful for young adults.
- 5.39 In England,
a forensic psychologist conducted interviews with a small number of young adults
aged 18 to 21 who were serving indeterminate
sentences at a young
offenders’ institute.[357]
One of the main frustrations for the interviewees was the indeterminate nature
of the sentence and not knowing when they would be
released. All felt they would
cope better with a significantly longer, but determinate, sentence as long as
they knew when they would
be
released.[358] Some felt that not
knowing when they would be released led them to give up
trying.[359] The United Nations
Committee on the Rights of the Child has “strongly recommended” that
states abolish indeterminate
sentences “for all offences committed by
persons who were below the age of 18 at the time of commission of the
offence”.[360] In making the
recommendation, the Committee referred to the 2015 Report of the Special
Rapporteur on torture and other cruel, inhuman
or degrading treatment or
punishment. The Report stated that life sentences “have a disproportionate
impact on children and
cause physical and psychological harm that amounts to
cruel, inhuman or degrading
punishment”.[361] In
Aotearoa New Zealand in 2022, the Office of the Children’s Commissioner
recommended that the Government prohibit the use
of life sentences —
another form of indeterminate sentence — for young people convicted of
serious offences.[362] While these
recommendations relate to young people, the same considerations may apply to
young adults.
- 5.40 As we
discuss in Chapter 2, the criminal justice system disproportionately impacts
Māori. Lynch has noted that “[b]ecause
the Māori population is
proportionately younger, the criminal justice system has an even more
disproportionate impact on young
adult
Māori”.[363] It is
likely that the negative impacts of indeterminate sentences also fall
disproportionately on Māori.
- 5.41 While there
has not been legislative change in Aotearoa New Zealand, the Court of Appeal
recognised the detrimental impact of
indeterminate sentences in a recent appeal
concerning sentences of life imprisonment imposed on young adults and young
people.[364]
- 5.42 The Court
concluded that a life sentence may have a disproportionate effect on young
adults and young people through a combination
of the following
factors:[365]
(a) The indeterminacy of a life sentence is difficult for a young offender to
grasp and may be harmful in itself.
(b) Longer periods in prison exacerbate the adverse effects of imprisonment.
(c) Once granted parole, the standard parole conditions are onerous and may be
experienced as punitive. Even though a person subject
to an indeterminate
sentence may apply to have release conditions discharged, they are likely to
remain subject to conditions for
some years.
(d) Even when recall to prison is not likely, the risk of recall always hangs
over the person.
- 5.43 While a
long term of imprisonment as an alternative to a life sentence would not avoid
all of these effects, the Court considered
that it would mitigate
them.[366]
Preliminary view
- 5.44 Our
preliminary view is that preventive detention is unlikely to be demonstrably
justified as a necessary and proportionate response
when imposed on young
adults. This is because of the particular impacts of indeterminate sentences on
young adults and the issues
with risk assessment in young adults over the long
term. Where a young adult is sentenced to imprisonment for serious offending and
continues to pose a significant risk of reoffending at the end of the sentence,
post-sentence orders could adequately respond to
meet this risk. The advantage
of post-sentence orders are:
(a) the person has had an opportunity to mature neurologically and to engage in
rehabilitation;
(b) the particular adverse impacts of indeterminate imprisonment and parole for
life are avoided; and
(c) the risk assessment is more accurate as it addresses current risk, rather
than risk at the end of a hypothetical sentence of
imprisonment.
QUESTION
Q11
Do you agree that preventive detention is not an appropriate measure for
responding to risks of serious reoffending by young adults
who have been
convicted of serious sexual or violent offending?
CHAPTER 6
6 Qualifying offences
IN
THIS CHAPTER, WE CONSIDER:
- the
qualifying offences for preventive detention, extended supervision orders (ESOs)
and public protection orders (PPOs);
- the role of
qualifying offences;
- issues relating
to inconsistencies among the qualifying offences in the legislation governing
preventive detention, ESOs and PPOs;
and
- issues relating
to qualifying offences that may be unnecessary or ineffective for the purpose of
protecting community safety.
INTRODUCTION
- 6.1 Generally,
a person must have been convicted of a serious sexual or violent offence to be
eligible for preventive detention, an
ESO or a
PPO.[367] The offences that
trigger the preventive regimes are defined in the relevant legislation. We will
call these qualifying offences.
The qualifying offences are mostly the same
across the three regimes with some differences. They are set out in a table at
the beginning
of this chapter.
- 6.2 As well as
determining eligibility for a preventive regime, qualifying offences are
relevant to the tests for imposing preventive
detention, an ESO or a PPO. The
court must be satisfied that the person poses a certain level of risk of
committing further qualifying offences in the future. We discuss this in
Chapter 8.
THE LAW
- 6.3 The
following table sets out the relevant qualifying offences for preventive
detention, ESOs and PPOs.
- 6.4 Currently,
the qualifying offences for each regime are all sexual and violent offences. As
we note in Chapter 1, this has not
always been the case.
|
KEY TO TABLE 1
|
✓
|
Is a qualifying offence
|
✗
|
Is not a qualifying offence
|
*
|
An offence committed overseas that would come within the description of
this offence is a qualifying offence
|
^
|
A conspiracy to commit this offence is also a qualifying offence
|
#
|
An attempt to commit this offence is also a qualifying offence
|
TABLE 1: QUALIFYING OFFENCES
|
Qualifying offence
|
Preventive detention
|
ESOs
|
PPOs
|
Sexual offences — Crimes Act 1961
|
128B: sexual violation by rape or unlawful sexual connection
|
✓
|
✓*^#
|
✓*
|
129(1) and (2): attempted sexual violation and assault with intent to
commit sexual violation
|
✓
|
✓*^#
|
✓*
|
129A(1): sexual connection with consent induced by threats
|
✓
|
✓*^#
|
✓*
|
129A(2): indecent act with consent induced by threats, but only if the
victim is under 16
|
✗
|
✓*^#
|
✗
|
130: incest
|
✓
|
✓*^#
|
✓*
|
131(1) and (2): sexual connection or attempted sexual connection with a
dependent family member under 18
|
✓
|
✓*^#
|
✓*
|
131(3): indecent act on dependent family member, but only if the victim is
under 16
|
✗
|
✓*^#
|
✗
|
131B: meeting young person following sexual grooming
|
✓
|
✓*^#
|
✓*
|
132(1), (2) and (3): sexual connection, attempted sexual connection, or
indecent act on a child under 12
|
✓*#
|
✓*^#
|
✓*#
|
134(1), (2) and (3): sexual connection, attempted sexual connection, or
indecent act on a young person under 16
|
✓*#
|
✓*^#
|
✓*#
|
135: indecent assault
|
✓#
|
✓*^#
|
✓*#
|
138(1) and (2): exploitative sexual connection or attempted exploitative
sexual connection with person with a significant impairment
|
✓
|
✓*^#
|
✓*
|
138(4): exploitative indecent act on a person with a significant
impairment
|
✗
|
✓*^#
|
✗
|
142A: compelling indecent act with animal
|
✓
|
✓*^#
|
✓*
|
143: bestiality
|
✓
|
✓*^#
|
✓*
|
144C: organising or promoting child sex tours
|
✓
|
✓*^#
|
✓*
|
208: abduction for purposes of marriage or civil union or sexual
connection
|
✓
|
✓*^#
|
✓*
|
Sexual offences — Prostitution Reform Act 2003
|
23(1): offences relating to use in prostitution of persons under 18
years
|
*
|
*
|
*
|
Sexual offences — Films, Videos and Publications Classification
Act 1993
|
23: an offence punishable by imprisonment where the publication is
objectionable because it:
(a) promotes, supports, or tends to promote or support, the exploitation of
children and/or young persons for sexual purposes;
(b) describes, depicts or deals with sexual conduct with or by children
and/or young persons;
(c) exploits the nudity of children and/or young persons
|
✗
|
✓*
|
✗
|
Violent offences — Crimes Act 1961
|
171 or 177: manslaughter
|
✓
|
✓*^#
|
✓*
|
172: murder
|
✗
|
✓*^#
|
✓*
|
173: attempt to murder
|
✓
|
✓*^#
|
✓*
|
174: counselling or attempting to procure murder
|
✓
|
✓*^#
|
✓*
|
175: conspiracy to murder
|
✓
|
✓*^#
|
✓*
|
176: accessory after the fact to murder
|
✓
|
✓*^#
|
✓*
|
188(1) and (2): causing grievous bodily harm with intent or reckless
disregard for safety
|
✓
|
✓*^#
|
✓*
|
189(1): injuring with intent to cause grievous bodily harm
|
✓
|
✓*^#
|
✓*
|
191(1) and (2): aggravated wounding or injury
|
✓
|
✓*^#
|
✓*
|
198(1) and (2): discharging firearm or doing dangerous act with intent or
reckless disregard for safety
|
✓
|
✓*^#
|
✓*
|
198A(1) and (2): using firearm against law enforcement officer or to resist
arrest
|
✓
|
✓*^#
|
✓*
|
198B: commission of crime with firearm
|
✓
|
✓*^#
|
✓*
|
199: acid throwing
|
✓
|
✓*^#
|
✓*
|
209: kidnapping
|
✓
|
✓*^#
|
✓*
|
210: abduction of young person under 16
|
✓
|
✗
|
✓*
|
234: robbery
|
✓
|
✓*^#
|
✓*
|
235: aggravated robbery
|
✓
|
✓*^#
|
✓*
|
236: assault with intent to rob
|
✓#
|
✓*^#
|
✓*#
|
ISSUES
- 6.5 Our
initial research and engagement has not uncovered any major difficulties —
conceptually or in practice — with
the qualifying offences. Our
preliminary view is that, overall, the regimes appropriately target a relatively
small number of serious
sexual and violent offences.
- 6.6 The
issues raised in this section relate to:
(a) concern that some qualifying offences are insufficiently serious;
(b) inconsistencies in the legislation governing preventive detention, ESOs and
PPOs;
(c) the omission of offences that are similar to qualifying offences or should
be regarded as serious offending; and
(d) specific offences that are arguably unnecessary
or ineffective for the purpose of protecting community safety.
Concern that some qualifying offences are insufficiently
serious
- 6.7 In
our preliminary engagement, we heard concern that indecent assault is not
serious enough to justify making a person eligible
for a preventive regime,
because the consequences of preventive detention, an ESO or a PPO are out of
proportion to the offending.
- 6.8 To respond
to this concern, it is important to recognise the role and limits of qualifying
offences. We suggest qualifying offences
have two primary roles of:
(a) identifying potential candidates for a preventive regime; and
(b) contributing to ensuring that the regimes target sufficiently serious
offending.
- 6.9 A conviction
for a qualifying offence is a practical way of identifying those who have
committed serious sexual or violent offending
and may warrant further assessment
or consideration for preventive detention or an ESO or a PPO.
- 6.10 Because the
preventive regimes impose restrictions on people’s rights and freedoms, it
is important that the legislation
properly defines when someone is eligible for
an order. A list of qualifying offences clearly conveys to a person whether they
will
meet the eligibility criteria for a preventive regime.
- 6.11 It is
important also that:
(a) to the extent possible and while maintaining sufficient flexibility,
qualifying offences should be sufficiently serious to justify
making a person
eligible for an order; and
(b) qualifying offences should be rationally connected to a risk of committing
similar offences in the future.
- 6.12 A
conviction for a qualifying offence only renders a person eligible for
preventive detention, an ESO or a PPO — it does
not, on its own, justify
their imposition. We consider that the primary mechanism for ensuring that the
regimes are appropriately
imposed is the application of the legislative tests.
For example, a court considering preventive detention must take into account
factors such as any pattern of serious offending disclosed by the person’s
history, the seriousness of the harm to the community
caused by the offending
and information indicating a tendency to commit serious offences in the future.
We discuss these tests in
Chapter 8.
- 6.13 We
recognise that a list of qualifying offences is, on its own, a blunt tool for
capturing the most serious offenders. A conviction
for a particular offence is
not necessarily an accurate indicator of the seriousness of a person’s
offending — even admitted
offending — due to the way offences are
framed in our law and because of the impact of charging decisions and plea
arrangements.
- 6.14 Many
offences may be committed in a variety of ways with different levels of
seriousness. There can be significant overlap between
the offences that appear
to be less serious (with lower maximum penalties) and more serious (with higher
maximum penalties). Relatedly,
whether a person is convicted of one offence or
another can be influenced by the charge chosen by the prosecutor and by plea
arrangements
— there are principled reasons why, even when there is
sufficient evidence to prove that a defendant has committed the elements
of a
particular offence, the prosecutor and defence might agree that the defendant
will plead guilty to a lesser charge.
- 6.15 Indecent
assault is an example of an offence that can vary significantly in terms of
seriousness. It has a maximum penalty of
seven years’
imprisonment.[368] In most
instances, an indecent assault will not involve sufficiently serious harm to
justify the imposition of a preventive regime.
From our analysis of case law,
it appears that the courts are applying the
legislative tests and only imposing a preventive regime when a qualifying
offence is serious
enough to justify it. For example, in one case, the Court
declined an application for an ESO where the qualifying offending involved
indecent assaults. The judge
said:[369]
- I do not wish
to minimise how unpleasant [the] sexually indecent acts have been for the
victims and others who have observed them
but s 107IAA is concerned with the
sort of serious sexual offending which would justify the severe restrictions on
many aspects of
an offender’s life ... I do not consider the indecent
acts ... are of such seriousness.
- 6.16 On the
other hand, there may be indecent assaults that are capable of being
sufficiently serious to make a person eligible for
a preventive regime. For
example, in another case, a person was sentenced to preventive detention on two
charges of indecent assault.[370]
The offending involved following and grabbing the victim, forcefully removing
her clothing and underwear, sucking on her breast and
placing the victim’s
hand on the perpetrator’s penis. The offender also punched the victim in
the face when she tried
to fight him off and yelled at him to stop. The offender
had previous convictions for sexual offending including rape, attempted
sexual
violation and abduction for the purposes of sexual connection. He had been
subject to an ESO at the time of the indecent assaults.
- 6.17 We are
interested in views on whether indecent assault or other qualifying offences are
serious enough to justify making a person
eligible for a preventive regime.
QUESTION
Q12
Do you think the qualifying offences are serious enough to justify making a
person eligible for a preventive regime?
Inconsistencies across the regimes
- 6.18 For
the most part, the same offences are qualifying offences for preventive
detention, ESOs and PPOs. However, there are some
offences that are not
qualifying under all three regimes, without any apparent
rationale.[371] The
inconsistencies are outlined in the table
below.
TABLE 2: INCONSISTENCIES IN QUALIFYING OFFENCES
|
Qualifying offence
|
Preventive detention
|
ESOs
|
PPOs
|
An attempt or conspiracy to commit a qualifying offence
|
Only attempts and conspiracies that are separate
offences [372]
|
✓
|
✓
|
Indecent act with consent induced by threat, where the victim is under 16
years old at the time of the
offence [373]
|
✗
|
✓
|
✗
|
Indecent act on a dependent family member, where the victim is under 16
years old at the time of the
offence [374]
|
✗
|
✓
|
✗
|
Exploitatively doing an indecent act on a person with a significant
impairment [375]
|
✗
|
✓
|
✗
|
|
✗
|
✓
|
✓
|
Abduction of a young person under 16
|
✓
|
✗
|
✓
|
Films, Videos and Publications Classification Act 1993 offences
|
✗
|
✓
|
✗
|
- 6.19 Our
preliminary view is that there are advantages if preventive orders fit together
as a coherent regime.
- 6.20 For
example, the courts consider the availability of an ESO when deciding whether to
sentence a person to preventive detention,
and being subject to an ESO is one of
the ways that a person becomes eligible for a
PPO.[377] Utilising the same list
of qualifying offences for all regimes would enable clarity and consistency and
better enable people to be
managed in the least restrictive manner possible. It
would also reflect that the regimes all target the same policy problem.
- 6.21 It is
arguable that the more restrictive regimes (preventive detention and PPOs)
should require a higher threshold of eligibility
and therefore a narrower range
of offences should be qualifying offences for these regimes than for ESOs.
- 6.22 However,
our preliminary view is that it is preferable that the same offences are
qualifying offences for all regimes and that
the legislative test should bear
the primary responsibility for ensuring an order is necessary and appropriate.
- 6.23 If the
preventive regimes were to use the same qualifying offences, there is a question
as to which offences from the current
lists should be omitted or incorporated to
ensure consistency.
- 6.24 Of
particular importance is the ESO regime’s inclusion of certain offences in
the Films, Videos, and Publications Classification
Act 1993 (FVPC Act). The
commission of one of these offences will make a person eligible for an ESO, but
an ESO cannot be imposed
on the basis that a person poses a risk of committing
an FVPC Act offence in the future — they must pose a risk of committing
another serious sexual or violent offence.
- 6.25 The FVPC
Act offences that are qualifying offences for an ESO are those that are
punishable by imprisonment and where any publication
that is the subject of the
offence is objectionable because it does any or all of the
following:[378]
(a) promotes or supports, or tends to promote or support, the exploitation of
children, or young persons, or both, for sexual purposes;
(b) describes, depicts, or otherwise deals with sexual conduct with or by
children, or young persons, or both;
(c) exploits the nudity of children, or young persons, or both.
- 6.26 This
includes offences such as:
(a) making an objectionable publication, knowing or having reasonable cause to
believe that the publication is
objectionable;[379]
(b) possessing an objectionable publication without lawful authority or excuse,
knowing or having reasonable cause to believe that
the publication is
objectionable;[380] and
(c) live streaming content knowing or having reasonable cause to believe that it
is objectionable, or sharing livestreamed content
or information about how to
access livestreamed content, knowing or having reasonable cause to believe that
it is objectionable and
with the intent of promoting or encouraging criminal
acts.[381]
- 6.27 These
offences are all non-contact offences. Any sexual offending against a child or
young person that involved actual contact
with the child or young person would
be captured by a Crimes Act 1961 offence and is likely to be a qualifying
offence.
- 6.28 In our
initial research, it appears that the commission of FVPC Act offences is not
inevitably indicative of a risk of committing
contact sexual offences in the
future. Some research suggests that there is a distinct group of child
pornography offenders who do
not intend to commit a contact sexual offence and
that a very low number of these people in fact reoffend by committing a contact
offence.[382]
On the other hand, there are people who engage in both non-contact child
pornography offending and contact sexual
offending.[383] Consequently, in
some instances there is a rational connection between the commission of an FVPC
Act offence and a risk of committing
a qualifying offence. As with other
qualifying offences, it is highly dependent on the particular circumstances. Te
Kōti Pīra
| Court of Appeal (Court of Appeal) has said that not every
case of possessing or creating objectionable material will necessarily
be
regarded as serious offending for the purposes of the ESO legislation —
the offending will be assessed on the particular
circumstances of the
case.[384]
In practice, it appears that, where an ESO has been made on the basis of FVPC
Act offences, that person has had a history of contact
offending against
children.[385]
- 6.29 We are
particularly interested in feedback on this
point.
QUESTION
Q13
Should the same offences be qualifying offences for all preventive regimes?
If so, which offences should qualify?
Omission of offences that are similar to qualifying offences
- 6.30 First,
there are a number of offences that we consider to be similar to current
qualifying offences — in nature and seriousness
— but that are not
currently qualifying offences. Second, there is one serious offence that we
consider is currently excluded
without good reason.
- 6.31 We
seek feedback on whether these offences should also be qualifying offences for
preventive detention, ESOs and PPOs.
- 6.32 On one
hand, it is arguably arbitrary if a person can be eligible for a preventive
regime on the basis of some offences indicating
a risk of causing serious harm
to the community, but not others that entail equally serious harm.
- 6.33 On
the other hand, we consider that caution should be exercised in expanding the
scope of the regimes without sufficient justification.
We are not aware of any
issues arising from the fact that these offences are not qualifying offences.
- 6.34 We consider
that these offences are similar to current qualifying offences:
(a) Dealing in people under 18 for sexual
exploitation, removal of body parts or engagement in forced
labour:[386]
Given that this offence may involve sexual exploitation of a young person, it
would appear to fit with the existing qualifying offences.
At least two people
who have been sentenced to preventive detention have been sentenced for this
offence at the same time as preventive
detention was
imposed.[387]
(b) Wilfully infecting with
disease:[388]
Like acid throwing, which is a qualifying offence, this offence is capable of
causing serious physical harm.
(c) Preventing or impeding a person who is
attempting to save his or her own life or the life of another, without lawful
justification
or
excuse.[389]
(d) Female genital
mutilation.[390]
(e) Inciting, counselling or procuring
suicide, where the victim then commits or attempts to commit
suicide.[391]
(f) Killing an unborn child in such a manner that the offender would have
been guilty of murder if the child had legally become a human
being.[392]
(g) Ill-treatment or neglect of a child or vulnerable adult in a manner
likely to cause suffering, injury or adverse
effects.[393]
(h) Failure to protect a child or vulnerable adult from a risk of death,
grievous bodily harm or sexual
assault.[394]
(i) Other FVPC Act offences punishable by
imprisonment:[395]
This includes offences not already captured by the ESO regime, where the
material is objectionable because it promotes or supports,
or tends to promote
or support (a) the use of violence or coercion to compel any person to
participate in, or submit to, sexual conduct,
(b) bestiality, or (c) acts of
torture or the infliction of extreme violence or extreme cruelty.
These other categories of objectionable material under the FVPC Act reflect
some of the other currently qualifying offences. It is
arguable that the
arguments that are made for the inclusion of FVPC Act offences relating to
sexual exploitation of children could
be extended to these other
categories.[396]
(j) Contracting a person under 18 for commercial sexual services, causing or
encouraging a person under 18 to provide commercial sexual
services or receiving
payment derived from commercial sexual services provided by a person under
18:[397]
These offences are not qualifying offences for any of the preventive regimes
if they are committed in Aotearoa New Zealand, but they are qualifying
offences if committed outside Aotearoa New
Zealand.[398] This seems
inconsistent, and it could be argued that these offences should also be
qualifying offences if committed in Aotearoa
New Zealand.
QUESTION
Q14
Do you consider any of the offences we discuss that are omitted should be
qualifying offences for preventive detention, ESOs and PPOs?
Omission of strangulation or suffocation offence
- 6.35 The
offence of strangulation or suffocation is not a qualifying offence for any of
the preventive regimes. Our preliminary view
is that it should be a qualifying
offence.
- 6.36 The offence
of strangulation or suffocation was enacted in
2018.[399] Before the offence was
created, the act of strangulation or suffocation was charged using the assault
provisions of the Crimes Act.
Prior to 2018, preventive detention was imposed on
the basis of offending that factually amounted to strangulation and that was
charged
as a qualifying offence, such as wounding with intent to cause grievous
bodily
harm.[400]
If the same behaviour was now charged under the new strangulation provision, the
person would not be eligible for preventive detention.
QUESTION
Q15
Do you agree that strangulation should be a qualifying offence for preventive
detention, ESOs and PPOs?
Specific offences ineffective or unnecessary to protect
community from serious reoffending
- 6.37 Some
qualifying offences may not be effective or necessary to address the policy
problem of keeping the community safe from serious
reoffending. We discuss these
offences below. As far as we are aware, these offences have never, on their own,
formed the basis for
imposing preventive detention, an ESO or a PPO. On the
other hand, we acknowledge that there is no case law to suggest that the
inclusion
of these offences as qualifying offences is causing any difficulties
with the preventive regimes in practice.
Incest
- 6.38 The
offence of incest, as defined in New Zealand law, involves sexual connection
between two people whose relationship is that
of parent and child, siblings,
half-siblings or grandparent and
grandchild.[401] The person
charged must know of the relationship.
- 6.39 We question
whether incest as a qualifying offence is necessary to achieve the objective of
community safety and whether incest
offending is sufficiently predictive of
future offending.
- 6.40 Incest
differs from the other qualifying sexual offences in that lack of consent is not
an element of the offence. The Court
of Appeal has stated that, when sentencing
for charges of incest, the court must proceed on the basis that the offending
involved
consensual sexual behaviour and that the consent involved “was
true consent, freely given by a person who was in a position
to make a rational
decision”.[402]
- 6.41 Other
(qualifying) offences are available where sexual offending against a family
member is non-consensual or involves a particularly
vulnerable victim or a
victim is too young to
consent.[403]
- 6.42 For these
reasons, incest was omitted from the scope of the now-repealed three strikes
legislation. It was originally included
but removed on recommendation from the
Select Committee, which was satisfied that the charge of incest is generally
only used for
consensual sexual connection and, in circumstances where sexual
offending between family members is not consensual, other charges
(that did
qualify under the three strikes legislation) were
available.[404]
- 6.43 In
practice, we are not aware of any cases where preventive detention, an ESO or a
PPO has been imposed on the basis of incest
charges.[405] There are cases
where preventive detention has been imposed for sexual connection with a family
member such as a daughter or granddaughter,
but in those cases, the convictions
were for sexual offending rather than
incest.[406] We are aware of one
case where preventive detention was considered for, but not imposed on, a person
who had convictions for
incest.[407] The person was
eligible for preventive detention on one charge of incest and also three charges
of rape, four charges of sexual violation
by unlawful sexual connection, three
charges of doing an indecent act on a young person and one charge of doing an
indecent act on
a child.
- 6.44 There is
also some evidence that incest offending has lower rates of recidivism than
other kinds of sexual offending. In R v J, a health assessor’s
report said that J scored in the low category on an actuarial test for
recidivism and that the low score
reflected the fact that J belonged to
“the group of sexual offenders with the lowest recidivism risk:
heterosexual incest
perpetrators”.[408] This is
also relevant to whether a conviction for incest is sufficiently indicative of a
risk of committing similar crimes in the
future.
- 6.45 It seems
likely that, if a person was at a high risk of committing incest offending in
the future, this could be addressed by
measures short of preventive detention,
an ESO or a PPO — by definition, the victims of such offending must be
close family
members who are likely known to the state. The person would be
unlikely to present a risk to the community at large.
- 6.46 Our
preliminary view is that incest should not be a qualifying offence for
preventive detention, ESOs and PPOs.
QUESTION
Q16
Do you agree that incest should be removed as a qualifying offence for
preventive detention, ESOs and PPOs?
Bestiality
- 6.47 Bestiality,
as defined in New Zealand law, involves a person engaging in penetrative sexual
activity with an animal.[409] It
is rarely charged,[410] and
Parliament has previously considered a proposal to abolish bestiality as a
crime.[411]
- 6.48 Including
bestiality as a qualifying offence arguably does not address the policy problem
of protecting members of the community
from harm caused by serious offending.
The offence of bestiality does not involve any harm or threat of harm to another
person. Bestiality
does not involve forcing or compelling another person to
engage in sexual or indecent activity with an animal, which is covered by
a
separate (qualifying)
offence.[412]
While bestiality may cause harm to an animal or a degree of psychological
distress to any person aware of the offending, it is questionable
whether the
risk of such harms is sufficiently serious to warrant that person being subject
to a preventive regime. Indecency with
an animal — that is, any other
sexual behaviour with an animal short of penetration — is not a qualifying
offence.[413] Bestiality was
excluded from the now repealed three strikes regime because it does not involve
a human victim.[414]
- 6.49 We are
aware of only one case where a person convicted of bestiality has been
considered for a preventive regime. In R v
Marshall,[415] Mr Marshall
appeared for sentencing on representative charges of sexual violation, sexual
conduct with a child under 12, knowingly
making objectionable publications and
bestiality. The offences of sexual violation and sexual conduct with a child
were also qualifying
offences for the purposes of preventive detention. The
bestiality offending took place separately from the other offending and did
not
involve any children. The sentencing judge considered there was evidence
indicating a significant risk of reoffending but did
not impose preventive
detention as Mr Marshall had never previously had the opportunity to undergo
rehabilitation.
- 6.50 There is
“a dearth of scientific research” on
bestiality.[416] As far as we have
been able to determine from our preliminary research, there is not an
established link between bestiality and risk
of sexual or violent offending
against humans.[417]
- 6.51 Our
preliminary view is that bestiality should not be a qualifying offence for
preventive detention, ESOs and PPOs.
QUESTION
Q17
Do you agree that bestiality should be removed as a qualifying offence for
preventive detention, ESOs and PPOs?
Other issues
- 6.52 Finally,
we are interested in your views on whether there are any other issues with the
qualifying offences for preventive detention,
ESOs or
PPOs.
QUESTION
Q18
Are there any other issues with the qualifying offences for preventive
detention, ESOs or PPOs?
CHAPTER 7
7 Overseas offending
IN
THIS CHAPTER, WE CONSIDER:
- eligibility for
extended supervision orders (ESOs) and public protection orders (PPOs) on the
basis of offending committed overseas.
INTRODUCTION
- 7.1 A
person may be eligible for an ESO or a PPO on the basis of offending committed
overseas.[418]
- 7.2 This chapter
addresses issues relating to eligibility for ESOs and PPOs on the basis
of:
(a) a person’s status as a returning offender under the Returning
Offenders (Management and Information) Act 2015 (the Returning
Offenders Act);
or
(b) an overseas sentence for offending.
RETURNING OFFENDERS ACT
- 7.3 The
Returning Offenders Act was enacted under urgency in November 2015 in response
to a law change in Australia that made non-Australian
citizens liable to have
their visas cancelled if they were sentenced to one year or more of
imprisonment. This law change meant that
the number of New Zealand citizens
deported or removed from Australia to Aotearoa New Zealand increased five-fold,
from about five
per month to about 25 per
month.[419]
- 7.4 One of the
purposes of the Returning Offenders Act is to impose a supervision regime on
people returning to Aotearoa New Zealand
that is similar to that imposed on
people released from New Zealand prisons. Te Kōti Pīra | Court of
Appeal has recently
considered how the Returning Offenders Act should be
interpreted in light of the New Zealand Bill of Rights Act 1990’s
protections
against retrospective and double
penalties.[420] In this chapter,
however, we do not comment on issues concerning the Act as it applies generally
but rather focus our discussion
on issues relating to the preventive
regimes.
Returning prisoners
- 7.5 The
Returning Offenders Act imposes mandatory standard release conditions and
provides for further special conditions to be imposed
on any person who is
determined to be a “returning prisoner”.
- 7.6 Under
section 17 of the Returning Offenders Act, the Commissioner of Police must
determine that a person is a returning prisoner
if satisfied that the
person:
- (a) has been
convicted in an overseas jurisdiction of an offence for conduct that constitutes
an imprisonable offence in New Zealand;
and
- (b) has, in
respect of that conviction, been sentenced to—
- (i) a term of
imprisonment of more than 1 year; or
- (ii) 2 or more
terms of imprisonment that are cumulative, the total term of which is more than
1 year; and
- (c) is
returning or has returned to New Zealand within 6 months after his or her
release from custody during or at the end of the
sentence.
- 7.7 A
determination that a person is a returning prisoner must be made within six
months of the person’s arrival in Aotearoa
New
Zealand.[421]
- 7.8 A returning
prisoner will be subject to mandatory standard release conditions for a period
of between six months and five years,
depending on the term of imprisonment to
which they were sentenced for the
offence.[422] The standard release
conditions are the standard release conditions that apply to parole in the
Parole Act 2002.[423]
- 7.9 A returning
prisoner may also be subject to special conditions imposed by the court upon
application by the chief executive of
Ara Poutama | Department of Corrections
(chief executive).[424] The
special conditions that may be imposed are the same as those that may be imposed
on a person subject to parole, and the same
test applies to the imposition of
special conditions — a special condition must not be imposed unless it is
designed to:[425]
(a) reduce the risk of reoffending;
(b) facilitate or promote the person’s rehabilitation and reintegration;
or
(c) provide for the reasonable concerns of victims.
- 7.10 Special
conditions must not last longer than the standard release
conditions.[426]
Eligibility for extended supervision order or public protection
order
- 7.11 A
person will be eligible to have an ESO or a PPO imposed on them if they have
been determined to be a returning prisoner in
respect of a qualifying offence
committed overseas and they are still subject to standard release conditions or
special conditions
imposed under the Returning Offenders
Act.[427]
Person who returns to Aotearoa New Zealand more than six
months after release from custody
- 7.12 Under
section 32 of the Returning Offenders Act, if a person meets the above criteria
to be a returning prisoner, except that
they are returning or have returned to
Aotearoa New Zealand more than six months after their release from
custody, they may nevertheless be treated as a returning prisoner if,
immediately before
their return to Aotearoa New Zealand, they were subject
to:
(a) monitoring, supervision or other conditions for the relevant sentence; or
(b) conditions imposed under an order in the nature of an ESO or a PPO.
- 7.13 In these
circumstances, the standard release conditions do not apply automatically, but
the court may impose any conditions on
such a person if satisfied that the
conditions are necessary to facilitate the person’s rehabilitation and
reintegration or
to reduce the risk of
reoffending.[428]
Eligibility for extended supervision order or public protection
order
- 7.14 A
person will be eligible to have an ESO imposed on them if they are treated as a
returning prisoner under section 32 because
of offending committed overseas that
would constitute an imprisonable offence if committed in Aotearoa New Zealand,
whether or not
the offending would be qualifying offending under the ESO regime,
and they are still subject to conditions imposed under the Returning
Offenders
Act.[429]
- 7.15 A person
will be eligible to have a PPO imposed on them if they are treated as a
returning prisoner under this section, but only
if the offending committed
overseas would be a qualifying offence under the PPO regime and if they are
still subject to conditions
imposed under the Returning Offenders
Act.[430]
Other eligibility on the basis of overseas
offending
- 7.16 A
person will also be eligible for an ESO or a PPO to be imposed on them if they
committed a qualifying offence overseas and
they:[431]
(a) were subject to a sentence, supervision conditions, or order for the
qualifying offence;
(b) arrived in Aotearoa New Zealand within six months of ceasing to be subject
to that sentence, supervision conditions or order;
(c) reside or intend to reside in Aotearoa New Zealand; and
(d) have been in Aotearoa New Zealand for less than six months.
- 7.17 It is
likely that, if a person meets these criteria, they would also meet the criteria
to be determined a returning prisoner.
This category of eligibility was in place
before the Returning Offenders Act was enacted.
ISSUES
- 7.18 There
is very limited case law on the imposition of ESOs or PPOs on returning
offenders and other people who have been sentenced
overseas. Based on our
preliminary engagement and research, we have identified the following
issues:
(a) An ESO can be imposed for offending committed overseas which would not be a
qualifying offence for an ESO if committed within
Aotearoa New Zealand.
(b) Procedural problems including the timing of applications and difficulty
obtaining information from overseas jurisdictions.
Availability of an ESO for non-qualifying
offending
- 7.19 Most
of the pathways to eligibility for an ESO or PPO require the person to have been
convicted of an offence overseas that,
if it had been committed in Aotearoa New
Zealand, would come within the description of a qualifying offence for that
regime.
- 7.20 However, as
discussed above, an ESO may also be imposed on the basis of overseas offending
that is not a qualifying offence if all the following criteria are
met:[432]
(a) the person has been convicted of an offence overseas that would be an
imprisonable offence in Aotearoa New Zealand;
(b) the person was sentenced to more than one year of imprisonment for that
offence;
(c) the person is returning or has returned to Aotearoa New Zealand more than
six months after release from custody; and
(d) immediately before their return to Aotearoa New Zealand, the person was
subject to monitoring, supervision or other conditions
for the offence, or to
conditions imposed under an order in the nature of an ESO or a PPO.
- 7.21 We have
been unable to find any policy or legislative materials that explain the reason
for this provision.
- 7.22 A possible
rationale is that, if a person was subject to monitoring or supervision for an
offence overseas, the overseas jurisdiction
must have determined that the person
presented a risk of serious offending.
- 7.23 However,
there are issues with this reasoning because overseas jurisdictions may impose
monitoring, supervision or post-detention
orders in circumstances that would not
be justified under Aotearoa New Zealand law. For example, they may be imposed on
offending
that is less serious or the risk threshold could be lower.
- 7.24 On the
other hand, this provision only makes a person eligible to have an ESO
imposed on them. An ESO would only be imposed if the court was satisfied that
the usual legislative test was met.
- 7.25 We also
note that there is an inconsistency because a person who meets the above
criteria for a non-qualifying offence is only
eligible for an ESO if they return
to Aotearoa New Zealand more than six months after their release from custody.
If they return
within six months of release from custody, they would not
be eligible for an ESO.
- 7.26 We are not
aware of any issues arising with this provision in practice, but we seek
feedback on the point as it appears to be
anomalous and a departure from the
other eligibility criteria.
QUESTION
Q19
Should a person be eligible for an ESO on the basis of overseas offending
that would not come within the description of a qualifying
offence if committed
in Aotearoa New Zealand, if:
- the
person has been convicted of an offence overseas that would constitute an
imprisonable offence in Aotearoa New Zealand;
- the
person was sentenced to more than one year of imprisonment for that
offence;
- the
person is returning or has returned to Aotearoa New Zealand more than six months
after release from custody; and
- immediately
before the person’s return to Aotearoa New Zealand, the person was subject
to monitoring, supervision, or other
conditions for the offence, or to
conditions imposed under an order in the nature of an ESO or a
PPO.
Procedural problems with timing and difficulty obtaining
information
- 7.27 An
application for an ESO for a returning offender must be made within six months
of the person arriving in Aotearoa New Zealand.
In our preliminary engagement,
we have heard that it can be difficult to access the information needed from
overseas jurisdictions,
particularly within this timeframe.
- 7.28 Extending
the timeframe could make it easier for Ara Poutama | Department of Corrections
to access relevant information and make
applications where necessary for
community safety. On the other hand, extending the timeframe would create
uncertainty for people
about whether they would be subject to a restrictive
order.
- 7.29 The vast
majority of returning offenders under the Returning Offenders Act arrive from
Australia.[433] Currently, New
Zealand government departments and agencies have information-sharing agreements
with their Australian equivalents.
- 7.30 Our initial
view is that it is appropriate that the sharing of information is dealt with
through such arrangements rather than
primary legislation, but we are interested
in any other feedback.
QUESTION
Q20
Are there any issues arising with the timing of ESO applications for overseas
offenders, or with accessing information that require
legislative reform?
Other issues
- 7.31 Due
to the lack of case law or commentary on this aspect of the regimes, we are
interested in feedback on whether there are any
issues we have not addressed in
this chapter.
QUESTION
Q21
Are there any other issues relating to the application of the ESO and PPO
regime to returning offenders or people who have committed
offences
overseas?
Part
Four:
Imposing
preventive detention, extended supervision orders and public protection
orders
CHAPTER 8
8 The legislative tests for imposing preventive detention,
extended supervision orders and public protection orders
IN
THIS CHAPTER, WE CONSIDER:
- the legislative
tests the courts apply when determining whether to impose preventive detention,
an extended supervision order (ESO)
or a public protection order
(PPO).
INTRODUCTION
- 8.1 Central
to this Issues Paper is the question whether the preventive regimes strike the
right balance between keeping the community
safe and not unduly restricting a
person’s rights and freedoms. The legislative tests on which the court
determines whether
to impose preventive detention, ESOs and PPOs need to be
properly calibrated to achieve this balance. This chapter examines issues
with
the legislative tests, particularly in the light of this overall balancing
exercise.
THE LEGISLATIVE TESTS
Preventive
detention
- 8.2 Section
87(2)(c) of the Sentencing Act 2002 provides that, to impose preventive
detention, the court must be satisfied that “the
person is likely to
commit another qualifying sexual or violent offence” if the person is
released at the sentence expiry date
of their determinate sentence.
- 8.3 Section
87(4) sets out matters the court must take into account when considering whether
to impose preventive detention, which
are:
(a) any pattern of serious offending disclosed by the offender’s history;
(b) the seriousness of the harm to the community caused by the offending;
(c) information indicating a tendency to commit serious offences in future;
(d) the absence of, or failure of, efforts by the offender to address the cause
or causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this
provides adequate protection for society.
- 8.4 While not
expressly referred to in section 87(4), when taking account of the principle
that a lengthy determinate sentence is
preferable, the courts will also consider
the availability of an ESO and whether it would provide adequate protection for
the public.[434] Te Kōti
Pīra | Court of Appeal (Court of Appeal) has recently explained that those
seeking preventive detention must demonstrate
why less restrictive options are
insufficient.[435] If the court
considers that a lengthy determinate sentence is not adequate or appropriate,
the reasons should be based on evidence
and given in the
judgment.[436]
Extended supervision orders
- 8.5 The test for
imposing an ESO is different to the test for imposing preventive detention.
Section 107I(2) of the Parole Act 2002
provides the court must be satisfied
that:
- (a) the person
has, or has had, a pervasive pattern of serious sexual or violent offending;
and
- (b) either or
both of the following apply:
- (i) there is a
high risk that the person will in future commit a relevant sexual offence;
- (ii) there is a
very high risk that the person will in future commit a relevant violent
offence.
- 8.6 Section
107IAA provides that the court may determine that a person is at a high risk of
sexual offending or a very high risk of
violent offending “only if it is
satisfied” the person displays certain traits and behavioural
characteristics. The characteristics
in respect of sexual offending are that the
person:[437]
- (a) displays an
intense drive, desire, or urge to commit a relevant sexual offence; and
- (b) has a
predilection or proclivity for serious sexual offending; and
- (c) has limited
self-regulatory capacity; and
- (d) displays
either or both of the following:
- (i) a lack of
acceptance of responsibility or remorse for past offending:
- (ii) an absence
of understanding for or concern about the impact of their sexual offending on
actual or potential victims.
- 8.7 The
characteristics in respect of violent offending are that the
person:[438]
- (a) has a
severe disturbance in behavioural functioning established by evidence of each of
following characteristics:
- (i) intense
drive, desires, or urges to commit acts of violence;
- (ii) extreme
aggressive volatility; and
- (iii) persistent
harbouring of vengeful intentions towards one or more other persons;
and
- (b) either
—
- (i) displays
behavioural evidence of clear and long-term planning of serious violent offences
to meet a premeditated goal; or
- (ii) has
limited self-regulatory capacity; and
- (c) displays an
absence of understanding for or concern about the impact of their violence on
actual or potential victims.
- 8.8 The courts
have revisited how they apply the legislative test for deciding whether to
impose an ESO in the light of the Court
of Appeal’s judgment in
Chisnall v Attorney-General (we discuss this further in Chapter
3).[439] The Court of Appeal in
R (CA586/2021) v Chief Executive of the Department of Corrections and
Mosen v Chief Executive of the Department of Corrections has confirmed
that, when the statutory criteria for an ESO are met, the court must balance the
right not to be subject to a second
penalty against the statutory purpose of
protecting the public from the risk the person will commit a relevant
offence.[440] The Court said, put
more simply, a “strong justification” is needed for an ESO.
Public protection orders
- 8.9 Section
13(1) of the Public Safety (Public Protection Orders) Act 2014 (Public Safety
Act) provides the court may make a PPO if
it is satisfied “there is a very
high risk of imminent serious sexual or violent offending” when the person
is released
from prison into the community or, in any other case, is left
unsupervised. The Act defines “imminent” to mean the person
is
expected to commit an offence as soon as they have a suitable opportunity to do
so.[441]
- 8.10 Like an
ESO, a PPO can only be imposed if the person displays certain traits and
behavioural characteristics. The Public Safety
Act directs that the court may
not make a finding that the person presents a very high risk of imminent serious
sexual or violent
offending unless the court is satisfied the person
“exhibits a severe disturbance in behavioural functioning established by
evidence to a high level of each of the following
characteristics”:[442]
- (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;
- (d) poor
interpersonal relationships or social isolation or both.
- 8.11 Like
preventive detention, the courts have taken the approach that a PPO should not
be imposed unless the risks posed by the
respondent cannot be adequately managed
under an ESO.[443]
ISSUES
The
legislative tests may not target the appropriate level of risk
- 8.12 As
explained above, the preventive regimes should strike the right balance between
keeping the community safe and not unduly
restricting a person’s rights
and freedoms. At this point, we raise for feedback the question whether, as part
of this balance,
the legislative tests focus on possible future reoffending at
the right level of likelihood.
- 8.13 We do not
yet have a developed view on this issue. As we note in Chapter 3, there is
limited evidence regarding the reoffending
harm the preventive regimes are
intended to guard against. This is partly because people who are deemed to be at
considerable risk
of serious reoffending should, in the most part, already be
subject to preventive detention, an ESO or a PPO. It is difficult to
test
whether they would have reoffended had they not been within the preventive
regimes. Further, there is little case law or commentary
on whether the
legislative tests target serious reoffending at the right level of likelihood.
Recent case law has focused on whether
the restrictions on human rights inherent
in preventive detention, ESOs and PPOs are a proportionate response to the risks
the person
poses to community safety. There is, however, little comment on
whether the tests themselves are directed to the appropriate severity
and
likelihood. Nevertheless, we raise some observations for feedback.
The preventive regimes require different levels of likelihood
- 8.14 First,
it may appear anomalous that the test to impose preventive detention — a
more restrictive and punitive measure than
ESOs and PPOs — has the lowest
threshold. While the tests for ESOs and PPO require the risk that the person
will reoffend to
be “high” or “very high”, for
preventive detention the person must simply be “likely” to commit
a
further qualifying offence. On the other hand, the courts have explained that
the way ESOs and PPOs infringe the protection against
second penalties is a
serious intrusion on human rights. In the context of PPOs, te Kōti Matua |
High Court (High Court) has
explained that the likelihood must almost border on
the inevitability of imminent serious reoffending for a PPO to be justified in
terms of the New Zealand Bill of Rights Act 1990 (NZ Bill of
Rights).[444]
The test for ESOs has a lower threshold for sexual
offending
- 8.15 Secondly,
the tests for ESOs set different thresholds for sexual and violent offending. To
impose an ESO, the court must be satisfied
there is a “high risk”
the person will in future commit a relevant sexual offence, whereas for violent
offending, the
risk must be “very high”. These thresholds were
introduced in the 2014 reforms. The Regulatory Impact Statement relating
to the
reforms explained that setting the threshold at the same “high risk”
level would lead to the “inclusion
of large numbers of violent offenders,
some of whom may not otherwise go on to re-offend in a seriously violent
manner”.[445] It noted that
simply widening the regime without raising the risk threshold was unlikely to
significantly improve public safety,
and it would incur very significant extra
costs because of the increase in the number of people who would be managed on an
order.[446]
- 8.16 The
different thresholds within the legislative tests probably accounts, in part,
for why a high proportion of ESOs are imposed
in relation to sexual
offending.[447] As we discuss in
Chapter 1, the qualifying offending in respect of 95 per cent of the 205 people
subject to ESOs as at 30 June 2022
was sexual
offending.[448]
- 8.17 The
different thresholds for ESOs suggest that society has less tolerance for sexual
reoffending than violent reoffending. The
implication is that the harm to the
community from sexual reoffending is worth protecting against through ESOs, even
if there is
a greater likelihood that people subject to ESOs would not commit
further sexual offences. Conversely, society appears more willing
for people
with higher chances of violent recidivism to live in the community without
extended supervision.
The legislative tests for ESOs and PPOs tie the likelihood of
reoffending to whether the person displays certain traits and behavioural
characteristics
- 8.18 Lastly,
there are issues with whether the focus on traits and behavioural
characteristics under the tests for ESOs and PPOs adequately
target people who
are at risk of reoffending. The legislation prohibits a court from finding there
is a high/very high risk of a
person reoffending unless they display the
relevant traits and characteristics. There are concerns evident in the case law
that,
among other things, this approach does not always target the people most
at risk of reoffending. We discuss these concerns separately
below.
QUESTION
Q22
Do the legislative tests for preventive detention, ESOs and PPOs focus on the
right level of likelihood of possible future reoffending?
The legislative tests do not work together coherently
- 8.19 As we
discuss in Chapter 4, while preventive detention, ESOs and PPOs are aimed at the
same policy objective, they do not fit
together coherently. This is also seen
when the elements of the different legislative tests are compared. In
particular:
(a) The tests for ESOs and PPOs require the court to be satisfied that the
person displays specific traits and behavioural characteristics.
This differs
markedly from the test for preventive detention.
(b) As noted above, the tests take different approaches to the likelihood the
person will reoffend, with preventive detention being
the lowest threshold
despite being the most restrictive measure.
Scope of qualifying offences too broad
- 8.20 As
we discuss in Chapter 6, to be eligible for preventive detention, an ESO or a
PPO, a person must have been convicted of a
qualifying offence (certain serious
sexual or violent offences). To impose preventive detention, an ESO or a PPO,
the court must
be satisfied that the person is at risk of committing a
further qualifying offence in the future.
- 8.21 In our
preliminary engagement, we have heard that some currently qualifying offences
may not be serious enough to justify imposing
preventive detention, an ESO or a
PPO when a person is at risk of committing them in the future. In
particular:
(a) As we discuss in Chapter 6, indecent assault can be committed in a variety
of ways that are often at the less serious end of
the scale of sexual offending,
but can include serious offending that causes harm to the community.
(b) For the reasons given in Chapter 6, incest and bestiality may not be
rationally connected to the purpose of protecting the public
from serious
offending that causes harm to the community. Where there is a risk of incestuous
sexual offending that is non-consensual
or involves a vulnerable victim, or
where there is a risk of compelling another person to engage in sexual activity
with an animal,
other qualifying offences would cover this behaviour.
(c) Attempts or conspiracies to commit qualifying offences are themselves
qualifying offences for ESOs (but not for preventive detention
or PPOs). We
question whether this is rationally connected to the purpose of the regimes.
Attempts and conspiracies to commit offences
do not themselves entail the same
level of harm to the community — the main harm results if the offence is
in fact committed.
Preventive detention, ESOs and PPOs are designed to prevent
the substantive offending. Relatedly, meeting a young person following
sexual
grooming is a qualifying offence for all three regimes. This offence is a type
of attempted offence — the person must
intend to commit a sexual offence
against the young person. We question whether this offence is necessary as a
qualifying offence
when the intended offences are themselves qualifying.
QUESTION
Q23
Do you think there are any issues with the qualifying offences that a person
must pose a risk of committing for the court to impose
preventive detention, an
ESO or a PPO?
Requirements of human rights law are not expressed in the legislative
tests
- 8.22 The courts
have recognised that they must interpret and apply the legislative tests
consistently with the NZ Bill of Rights.
This has caused the courts to weigh
considerations arising from human rights law that are not explicitly expressed
by the legislative
tests. The courts appear to regard two considerations as
particularly important.
- 8.23 First, the
courts will generally only impose a preventive measure if it is the least
restrictive measure necessary to adequately
manage the risks the person will
reoffend. For preventive detention, international human rights jurisprudence
under the International
Covenant on Civil and Political Rights provides that
preventive detention should only be imposed as a “last resort” to
address reoffending risk.[449]
Although the domestic courts have been clear that preventive detention is not a
sentence of last resort,[450] they
will not impose preventive detention when they consider the risks can be
adequately managed through a determinate sentence and
an
ESO.[451] The Sentencing Act,
however, does not expressly state that an ESO is preferable to preventive
detention if it can adequately manage
a person’s risk — the Act only
says a lengthy determinate sentence is
preferable.[452]
- 8.24 In respect
of PPOs, in Chisnall v Chief Executive of the Department of Corrections
(an appeal against an interim detention order imposed on Mr Chisnall under the
Public Safety Act), Elias CJ explained that, if conditions
can be put in place
without detention that would address the very high risk of imminent offending, a
PPO ought not be made.[453] Her
Honour explained this approach was consistent with protections contained in the
NZ Bill of Rights, citing sections 22 (protection
against arbitrary detention)
and 26 (protections against retrospective and second penalties). This additional
requirement is not
expressed in the Public Safety
Act.[454]
- 8.25 Second, in
light of the Court of Appeal’s declaration in Chisnall that ESOs
and PPOs breach the NZ Bill of Right’s protection against second
punishment, the courts have recognised that an ESO
or a PPO should only be
imposed when it is a justified limit on the right in each case. Several cases
have now established that the
court should undertake a simple proportionality
analysis requiring it to balance the right not to be subject to second
punishment
against the statutory purpose to protect the community from
reoffending.[455] This additional
proportionality test is not referred to in the Parole Act or the Public Safety
Act.
- 8.26 As a
general principle, the law should be comprehensive, clear and accessible,
particularly if it involves coercive power that
can limit human
rights.[456] The legislation
governing the preventive regimes is not, however, a complete expression of the
considerations the court will weigh
and needs to weigh to ensure human rights
consistency. A question that arises is whether it is preferable for the
legislative tests
to state more comprehensively the law the court is to apply.
We are interested in feedback on this question and present three possible
approaches to prompt discussion.
- 8.27 The first
approach is to retain the status quo pursuant to which the human rights
considerations are not expressed in the primary
legislation governing the
preventive regimes. This approach recognises that it is already clear that the
NZ Bill of Rights applies
to the judiciary as well as any person exercising a
public function prescribed by
law.[457] It will therefore apply
when a court makes orders that might limit a person’s rights. It may be
considered unnecessary for
the Sentencing Act, Parole Act and Public Safety Act
to repeat that the NZ Bill of Rights will apply. The main disadvantage of this
approach, as noted, is that the primary legislative tests do not refer to key
matters that govern whether a measure should be imposed.
- 8.28 The second
approach is to attempt to state within the primary legislation the standards the
court must apply in order to ensure
a preventive measure is a justified limit on
human rights. As discussed throughout this Issues Paper, there are several
matters that
render a preventive measure rights-compliant or not. For example,
in Chapter 3, we note that the preventive regimes could be predominantly
therapeutic and rehabilitative. There are also other components of the
legislative tests that must be properly calibrated to be rights-compliant,
such
as the eligibility criteria and likelihood of the person committing a further
qualifying offence. In addition to these matters,
this second approach would
draw on the case law discussed above and state within the legislation that the
court must only impose
a preventive measure if:
(a) the measure is the least restrictive necessary to address the risks the
person will commit a further qualifying offence; and
(b) the nature and extent of the risk the person poses to community safety
justifies the limits the preventive measure would impose
on their rights.
- 8.29 As noted,
on one view, this approach may be considered unnecessary because the courts
already appear to be applying the NZ Bill
of Rights in this way to the
legislative tests. There is also the difficulty that the matters identified in
the primary legislation
may not be an exhaustive list of the considerations the
court should weigh when deciding whether a preventive measure is justified.
On
the other hand, this second approach would provide a more comprehensive
legislative statement of the matters the courts are currently
considering. As
well as providing guidance to judges, it would also provide assurance to
international bodies that human rights methodologies
are appropriately built
into the legislative test.
- 8.30 The third
approach (which might be either additional or in the alternative to the second)
is to simply flag in the primary legislation
that the NZ Bill of Rights applies.
Some recent legislation takes this approach. For example, the Terrorism
Suppression (Control
Orders) Act 2019 empowers a court to make a control order
to prevent a person from engaging in terrorism-related activities. A control
order provides “requirements” that prohibit or restrict the person
subject to the order from certain activities. When
determining the requirements
of an order, the court must consider whether the requirements are justified
limits on rights and freedoms
in the NZ Bill of
Rights.[458] In the COVID-19
Public Health Response Act 2020, the Minister is empowered to make COVID-19
orders that can affect people’s
freedoms such as requiring a person to
isolate themselves. When making orders, the Minister must be satisfied that
“the order
does not limit or is a justified limit” on the rights and
freedoms in the NZ Bill of
Rights.[459]
- 8.31 It is
likely that the primary purpose of these types of provisions is to alert the
courts and decision-makers, such as those
responsible for applying for orders,
to consider human rights implications, including whether orders are justified
for the purposes
of the NZ Bill of Rights. The provisions do not provide any
further guidance as to how orders may be made rights-compliant.
- 8.32 In Chapter
12, we present these approaches as proposals for reform to seek feedback from
submitters. At this point, we raise
the question as to whether the fact that
human rights considerations are not expressed in the primary legislation is an
issue that
may require reform.
QUESTION
Q24
Do you think that it is an issue that the human rights considerations the
courts apply when imposing a preventive measure are not
referred to in the
primary legislative tests?
Issues relating to the traits and behavioural characteristics in the
legislative tests
- 8.33 To impose
an ESO or a PPO, the court must be satisfied the person displays certain traits
and behavioural characteristics. The
purpose of including the traits and
behavioural characteristics in the legislative tests for ESOs and PPOs appears
to be to identify
the people who are at highest risk of reoffending. The policy
and legislative materials indicate that the inclusion of the traits
and
behavioural characteristics was to ensure only the highest-risk offenders would
become subject to orders.[460]
- 8.34 For the
reasons that follow, we are unsure whether the focus on the traits and
behavioural characteristics achieve the intended
purpose.
The traits and behavioural characteristics may not indicate
reoffending risk
- 8.35 We
are concerned that some of the traits and behavioural characteristics appear to
exclude people who pose significant risks
to community safety.
- 8.36 We have
struggled to find any authoritative material in the policy and legislative
history as to why the characteristics were
thought to identify the highest-risk
people. The relevant Cabinet papers and regulatory impact analysis simply make
the assertion
and do not refer to any evidential
basis.[461]
- 8.37 As a matter
of legislative design, we have reservations regarding the extent to which the
court should be directed to specific
characteristics as being demonstrative of
reoffending risk. This is for two main reasons:
(a) First, while there may be traits in individuals that compel them to
reoffend, undue focus on these traits fails to recognise
the complex
interactions between psychological and situational factors that result in
offending.[462] Acute risk factors
relating to the circumstances of offending are equally important to reoffending
risk, such as intoxication, peer
association and proximity to potential
victims.[463] Consequently, the
predominant focus of the legislative tests should not be the existence or
non-existence of traits and behavioural
characteristics but rather a broader
inquiry as to whether a preventive order is necessary to address the situational
factors and
the triggers for reoffending.
(b) Risk assessment and psychological practice is regularly updated in light of
new research. What may have been considered important
factors at the time the
legislative tests were enacted may become outdated. It is unwise for a set of
characteristics to be cemented
in legislation when regular revision may be
required. Instead, traits and behavioural characteristics that accurately
indicate risks
could be identified in expert evidence.
- 8.38 Concerns
have emerged in relation to particular characteristics. The issue is that there
may be a high risk that a person will
commit a relevant sexual offence or a very
high risk they will commit a relevant violent offence despite not having the
following
traits or behavioural characteristics:
(a) Absence of understanding or concern about the effects of their offending.
Section 107IAA(1)(d) of the Parole Act requires that the person must display
(i) “a lack of acceptance or responsibility for
past offending”
and/or (ii) “an absence of understanding for or concern about the impact
of his or her sexual offending
on actual or potential victims”. Section
13(2)(c) of the Public Safety Act requires that the person must have an
“absence
of understanding or concern for the impact of the
respondent’s offending on actual or potential victims”. A potential
issue is that a person may have some understanding of the effects of their
offending but remain a high risk. In response, the Court
of Appeal has held that
this wording should be interpreted to include a materiality threshold so that
the person’s acceptance
of responsibility, remorse, understanding or
concern is only relevant if it actually mitigates their
risk.[464] The Court held that
Parliament cannot have intended that the presence of any understanding or
concern should preclude a person from
being assessed as high risk.
(b) Persistent vengeful intentions. Section 107IAA(2)(a)(iii) of the
Parole Act requires that the person must have “persistent harbouring of
vengeful intentions
towards 1 or more other persons”. This factor may not
be present even when a person in fact poses a high risk of committing
a violent
offence. The Court of Appeal in Mosen considered that, based on the
evidence, there was a very high risk that Mr Mosen would commit a relevant
violent offence and that
an ESO would have been strongly
justified.[465] Nevertheless, the
evidence showed that Mr Mosen’s risk of violent offending was
“reactive” and “impulsive”.
It would emerge in
particular circumstances, such as if he relapsed into drug use or if he
perceived to be threatened by a peer.
The Court held that a “persistent
harbouring of vengeful intention” was not shown. Consequently, it
cancelled the ESO
despite its concerns about Mr Mosen’s
risk.[466]
- 8.39 In
addition, we have heard in preliminary engagement that the requirement in
section 107I(2)(a) of the Parole Act that the person
must have, or have had, a
“pervasive pattern of sexual or violent offending” may be
problematic. The concern is the way
the section separates sexual and violent
offending. A person’s conviction history may reveal a mixture of serious
sexual and
violent offending. While the offending in totality might demonstrate
a pattern that demonstrates reoffending risk, separating out
the sexual and
violent offending may not reveal a “pervasive pattern”. In Chief
Executive of the Department of Corrections v Ihimaera, the High Court
recognised that often a wide range of offending may need to be taken into
account to discern patterns of behaviour
indicating reoffending
risk:[467]
- Identifying a
pattern in offending does not require that an offender’s previous offences
be the same, or even very similar.
Each case will turn on its own facts, but a
unifying theme or pattern may be apparent even if the actual offences committed
are quite
different. For example, family violence offending often involves a
very wide range of different types of offending (physical violence,
sexual
violence, stalking, arson, theft, burglary, destruction of property, revenge
porn, and threatening text messages). If such
offending is viewed without
reference to the underlying relationship between the offender and victim, no
pattern may be discernible.
Once the offending is viewed in its wider context,
however, a pattern may well emerge. For example, widely disparate offences may
all be manifestations of a coercive control relationship.
Language used to describe the traits and behavioural
characteristics is difficult to interpret
- 8.40 The
language used in the legislative tests to describe the traits and behavioural
characteristics is difficult to understand.
The legislation uses phrases like
“pervasive pattern of serious sexual or violent offending”, “a
predilection or
proclivity for serious sexual offending”, “a severe
disturbance in behavioural functioning” and “persistent
harbouring
of vengeful intentions”. It is not apparent from our research that these
terms have a recognised clinical meaning.
Some of the phrases repeat similar
concepts but in different language. For example, the Court of Appeal has
commented that it is
not easy to discern what the “proclivity for serious
sexual offending” adds to the requirement that the person have a
“pervasive pattern of sexual
offending”.[468]
- 8.41 In
addition, the Parole Act and the Public Safety Act use some of the same terms
but in different ways. For example, the Parole
Act requires that a person
displays “a severe disturbance of behavioural functioning” only to
demonstrate they are at
risk of further relevant violent offending, whereas the
same characteristic is relevant to both serious sexual and violent offending
under the Public Safety Act. The intended meaning is therefore obscure.
- 8.42 In the
cases, counsel and the courts have struggled to interpret the legislation and
have contested the proper
meaning.[469] While the
interpretation of the traits and behavioural characteristics is gradually being
established by the case law, the legislation,
in our view, remains unclear and
inaccessible to most readers.
The focus on traits and behavioural characteristics may breach
human rights law
- 8.43 The
traits and behavioural characteristics may be more likely to describe people who
have a disability. As we note in Chapter
3, it appears that preventive
detention, ESOs and PPOs are often imposed on people who present with both
diagnosed and undiagnosed
brain, behavioural or mental health issues. Common
presentations include autism spectrum disorder, attention deficit hyperactivity
disorder, post-traumatic stress disorder, traumatic brain injury, and what the
cases sometimes describe as “low levels of intellectual
functioning”. These types of conditions can prevent people regulating
their behaviour or appreciating the consequences of their
actions, which closely
resemble the traits and behavioural characteristics listed in the
legislation.[470] For example, the
legislation directs the court to inquire whether the person has “limited
self-regulatory
capacity”,[471] a
“lack of acceptance of responsibility or remorse for past
offending”,[472] an
“absence of understanding or concern for the impact of ...
offending”[473] and
“poor interpersonal relationships or social isolation or
both”.[474]
- 8.44 A
particular concern is that section 107IAA of the Parole Act and section 13(2) of
the Public Safety Act require that a court
may not make a finding that a person
is of the sufficient risk level to impose an ESO or a PPO unless it is satisfied
the person
also exhibits the relevant traits and behavioural characteristics. In
other words, independent of whether a person is at high risk
or very high risk
of committing a qualifying offence, the legislation requires the person to
present the additional traits and behavioural
characteristics. This could lead
to a situation where a person meets the relevant risk thresholds under section
107I(2) of the Parole
Act and section 13(1) of the Public Safety Act, but
because they do not exhibit the traits and behavioural criteria, the court
cannot
make an ESO or a PPO.[475]
However, for a person who presents the same risks and, because of their
disability, exhibits the traits and behavioural characteristics,
the court could
make an ESO or a PPO.
- 8.45 It is
possible that the independent focus on the traits and behavioural
characteristics may have a discriminatory effect in breach
of section 19 of the
NZ Bill of Rights. In addition, the focus may contravene article 14(1)(b) of the
United Nations Convention on
the Rights of Persons with Disabilities, which
provides that the existence of a disability should not be a ground to justify a
deprivation
of liberty.[476]
- 8.46 People with
certain disabilities may pose risks to community safety because they may have
difficulty adhering to criminal prohibitions,
and some form of preventive
measure may be required.[477]
Human rights law, however, requires that the existence of a disability should
not, of itself, be a determining factor. In our preliminary
view, the primary
determinant on whether the court should impose preventive measures should be the
risks the person poses to community
safety. It should not rely on an independent
inquiry as to the existence or non-existence of particular traits and
behavioural characteristics.
QUESTION
Q25
Do you agree with the issues we have raised concerning the traits and
behavioural characteristics in the legislative tests for ESOs
and PPOs?
Issues relating to the temporal elements of the legislative tests
- 8.47 The tests
for preventive detention and PPOs incorporate a temporal element. For preventive
detention, the court must be satisfied
the person’s risk of reoffending
will exist if they are released at the sentence expiry date. For PPOs, the court
must be satisfied
that there is a very high risk of “imminent”
serious sexual or violent offending if the person is released from prison
or
otherwise left unsupervised. The Parole Act expresses no temporal element for
ESOs, although the Court of Appeal has observed
that the fact an ESO may be made
for up to 10 years contemplates the risk may relate to offending within that
timeframe.[478]
- 8.48 Studies on
recidivism identify time periods in which most people who are at risk of
reoffending can be expected to have reoffended.
We understand that most
literature considers that a period of five to seven years is most appropriate
for sexual offending and two
to five years for violent
offending.[479] Risk assessments
and tools devised for this purpose are based on these periods. They are not
suited to assess risk beyond the relevant
periods.
- 8.49 In our
preliminary view, legislative tests that call for an assessment of whether
someone poses risks of reoffending well into
the future are problematic. It may
be preferable for the inquiry, and the resulting term of a preventive order, to
better reflect
risk assessment best practice.
- 8.50 In
addition, the Public Safety Act’s definition of “imminent” is
not purely temporal but also circumstantial.
It is defined to mean the person is
expected to offend as soon as they have a “suitable opportunity”. We
are unsure what
“suitable opportunity” means in practice. As noted,
the triggers for reoffending can involve complex interactions between
psychological and situational factors. We are unsure whether this conception of
imminence accurately reflects reoffending patterns
and
risk.
QUESTION
Q26
Do you agree with the issues we have identified with the legislative tests a
court will apply to decide whether to impose preventive
detention, an ESO or a
PPO?
QUESTION
Q27
Are there other issues relating to the legislative tests that we should
consider?
CHAPTER 9
9 Evidence of reoffending risk
IN
THIS CHAPTER, WE CONSIDER:
- matters relating
to the evidence on which a court will determine whether to impose preventive
detention, an extended supervision order
(ESO) or a public protection order
(PPO);
- issues relating
to evidential matters.
INTRODUCTION
- 9.1 A
court’s decision to impose preventive detention, an ESO or a PPO is based
on the likelihood the person will commit further
serious sexual or violent
offences. The evidence on which a court evaluates the risks a person will
reoffend is therefore of central
importance. Much has been written, both in
Aotearoa New Zealand and overseas, on the limits of accurately predicting future
offending.
THE LAW
Health
assessor reports
- 9.2 Health
assessors reports are the principal evidence on which a court will make its
determination whether to impose preventive
detention, an ESO or a PPO. The
legislation requires these reports to be provided to the court when preventive
detention is sought
at
sentencing,[480] or when the chief
executive of Ara Poutama | Department of Corrections (chief executive) applies
for an ESO[481] or
PPO.[482] The court must consider
the reports.[483]
- 9.3 The
legislation defines a “health assessor” as a registered and
practising psychiatrist or
psychologist.[484]
- 9.4 The
Sentencing Act 2002 provides that the court must not impose preventive detention
unless it has considered reports from two
health assessors about the
“likelihood of the offender committing a further qualifying sexual or
violent offence”.[485]
- 9.5 The New
Zealand Parole Board will consider reports from psychologists and psychiatrists
on the risks to the community presented
by a person sentenced to preventive
detention when deciding whether to direct their release on parole.
- 9.6 For ESOs,
the Parole Act 2002 requires the chief executive to accompany an ESO application
with only one health assessor report
(although, in practice, more than one is
often provided).[486] The report
must address:[487]
(a) whether the person displays each of the traits and behavioural
characteristics set out in section 107IAA; and
(b) whether there is a high risk that the person will in future commit a
relevant sexual offence or a very high risk they will commit
a relevant violent
offence.
- 9.7 For PPOs,
the Public Safety (Public Protection Orders) Act 2014 (Public Safety Act), like
the Parole Act, requires the chief executive
to accompany an application for a
PPO with two reports from health assessors, one of whom must be a registered
psychologist.[488] The reports
must address whether the person exhibits the traits and behavioural
characteristics described in section 13(2) and whether
there is a very high risk
of imminent serious sexual or violent offending by the
person.[489]
- 9.8 For the
purposes of ESO and PPO proceedings, a court may receive any evidence, whether
or not it would be admissible in a court
of
law.[490] Rules relating to
privilege and confidentiality, however, remain for PPO
proceedings.[491]
Health assessment in practice
- 9.9 Health
assessors use a mixture of risk assessment tools and clinical judgement to
provide an individualised formulation of
risk.[492]
- 9.10 Actuarial
risk assessment tools have been developed from statistical analysis identifying
a list of risk factors linked with
offending. Those factors may be
“static” or “dynamic” depending on whether they are
amenable to change. Clinicians
use the tools to create a risk score based on the
extent to which the individual displays the risk factors identified in the tool.
Some tools are specifically focused on sexual recidivism risk or violent
recidivism risk respectively. Other tools are focused more
on personality traits
and characteristics and can be used to add additional context to an
individual’s risk profile. The following
table sets out common risk
assessment tools and the acronyms by which they are often
referred.[493]
ACTUARIAL RISK ASSESSMENT TOOLS
|
Risk assessment tools for sexual offending
|
Risk assessment tools for violent offending
|
General recidivism
|
Risk assessment tools focused on personality traits
|
Automated Sexual Recidivism Scale – Revised (ASRS-R)
Static-99-R
Violence Recidivism Scale – Sex Offender Version (VRS:SO)
|
Violence Risk Scale (VRS)
|
Risk of Conviction [multiplied by] Risk of Imprisonment (RoC*RoI)
Dynamic Risk Assessment of Offender Re-entry (DRAOR)
|
Psychopathy Checklist – Revised (PCL)
|
- 9.11 Clinical
judgement will draw on additional individual factors relevant to
reoffending.[494] Those factors
may be based on evidence obtained from validated sources and sometimes based on
clinical experience. They may address
situational and environmental factors
relevant to the individual.[495]
Clinical judgement is particularly important for evaluations about the nature,
severity and imminence of likely reoffending because,
as noted below, these are
matters that actuarial risk assessment tools cannot
predict.[496] Clinical judgement
is also predominantly used to address whether a person displays the traits and
behavioural characteristics required
to impose an ESO or a PPO.
- 9.12 Empirically
validated actuarial tools form the foundation of risk assessment for health
assessor reports. They have proven to
be more accurate than non-structured
clinical assessments.[497] Yet, as
we discuss below, there are several limitations with risk assessment tools. An
overall individualised formulation of risk
should be based on the results from
actuarial tools integrated with clinical judgement on additional
factors.
ISSUES
Limitations
of risk assessment tools
- 9.13 Criticism
of risk assessment features strongly in the commentary on preventive detention,
ESOs and PPOs. In particular, there
are objections that risk assessment is
inaccurate because of the limitations of risk assessment tools. In the following
paragraphs,
we set out some of the main concerns about risk assessment tools as
they are described in the case law and commentary before providing
a preliminary
view on the issues.
Risk assessment tools do not assess individualised risk
- 9.14 Actuarial
risk assessment tools are based on the reoffending outcomes for a group sharing
the characteristics of a particular
offender. A risk score is a categorisation
of a person based on the extent to which they share characteristics with similar
offenders.
It does not give insight into the propensity of the individual in
question to commit an
offence.[498]
Risk assessment tools do not predict the severity or imminence
of future offending
- 9.15 Risk
assessment tools are developed using reoffending rates from the sample
population within a set timeframe from release from
prison. A risk assessment
tool can show that the person shares characteristics with people from the sample
population known to have
reoffended within the timeframe used to select the
sample population data.[499]
Beyond that, the results of a risk assessment will not provide evidence as to
how severe or how imminent any possible reoffending
may
be.[500]
Problems can arise from using unsuitable sample data
- 9.16 Risk
assessment tools are only as useful as the data on which they have been
developed.[501] Issues can arise
if the sample data is unreliable or not representative of the population of
Aotearoa New Zealand. This concern is
particularly relevant to the preventive
regimes. Because serious offending is rarer than lower-level offending, sample
population
datasets are relatively small and consequently risk scores are less
accurate.[502] Additionally, the
risk factors relating to lower-level offending, which occurs more frequently,
may be overrepresented by the tool.
This may give individuals with the same risk
factors as repeat low-level offenders the appearance of a higher risk
profile.[503]
Risk assessment tools may be biased against Māori
- 9.17 Similarly,
there is a danger that a sample population affected by racial bias will
perpetuate racially disparate risk
profiling.[504] In Ewart v
Canada, the Supreme Court of Canada held that risk assessment tools were not
sufficiently accurate when applied to Canada’s indigenous
populations.[505] This was a
concern given the growing gap between how indigenous and non-indigenous
offenders were treated in the criminal justice
system. Similar arguments have
been raised in Australia.[506]
- 9.18 The issue
has been raised in Aotearoa New Zealand in relation to Māori. Te
Rōpū Whakamana i te Tiriti o Waitangi
| Waitangi Tribunal (the
Tribunal) has heard a complaint that tools in Aotearoa New Zealand unfairly
capture Māori.[507] While
finding that the development of the tools breached some principles of te Tiriti
o Waitangi | Treaty of Waitangi, the Tribunal
was unable to conclude on the
evidence that prejudice had been caused. However, it is now generally accepted
that racism and unconscious
bias exists within the criminal justice and
corrections system as a
whole.[508] The overrepresentation
of Māori, their experience of racism and negative stereotyping and other
issues of systemic disadvantage,
may promote lifestyle choices that are more
likely to correlate with risk factors identified in some
tools.[509] For example,
Māori are more likely to have family and friends who have had involvement
with the criminal justice system meaning
that, for some risk assessment tools
that include a focus on peer associations, they may receive a higher risk
score.[510] There is an increasing
recognition that an accurate understanding of a person’s risk needs to
assess the person in their individual
cultural context.
Risk assessment tool results may not be adequately
scrutinised
- 9.19 Because
of the technical nature of the psychological evidence presented through risk
assessment tools, the court may not adequately
scrutinise the evidence. There
have been instances where the courts have accepted the conclusions generated
from the risk assessment
tools without inquiring into whether the risk results
are sufficiently
accurate.[511]
- 9.20 Relatedly,
confusion can arise because risk assessment tools may not align with the
legislative tests of the preventive
regimes.[512] Despite receiving
the highest risk categorisation under a particular assessment tool, a person may
not be of sufficiently high risk
to satisfy the statutory thresholds. For
example, we understand that most tools used in connection with sexual offending
would designate
a person as being in the highest risk category if they were
considered to have a 30–40 per cent chance of reoffending within
five
years, and 40–50 per cent within 10
years.[513] In the context of
PPOs, te Kōti Matua | High Court has recently explained that being placed
in the highest clinical risk category
itself does not establish that the person
is at very high risk of imminent sexual
offending.[514] It cautioned that
the different appreciations of risk between risk assessment tools and the
legislative thresholds is a limitation
on the utility of risk assessment
tools.[515] The Court said it was
instead reliant on wider assessment and clinical judgement provided by expert
psychological and psychiatric
opinions that address the statutory
tests.[516]
Our preliminary views
- 9.21 The
limitations of risk assessment tools described above have justifiably attracted
much criticism. Risk assessment tools can
be misused and there have been
isolated instances where the courts have not properly scrutinised results
generated from the tools.
- 9.22 Our
preliminary view, however, is that law reform is not needed. Rather, we consider
the limitations can be appropriately addressed
as matters of practice within the
current legal framework.
- 9.23 In the
first instance, the relevant bodies, including Ara Poutama | Department of
Corrections, must continue to take responsibility
for ensuring risk assessment
tools are used in the appropriate way. They can ensure risk assessment tools are
regularly updated and
validated for the relevant populations on which they are
used. We recognise that Ara Poutama takes steps to recalibrate and validate
the
tools.[517] We would expect that,
if a tool has not been adequately updated, this would be reflected in the health
assessor’s report and
be properly considered by the
court.[518]
- 9.24 When the
results of risk assessment tools are used to formulate health assessor reports,
the courts have communicated how they
expect the evidence to be presented to the
court.[519] The limitations of the
relevant tools should be communicated to the court. In addition, it is important
that the results produced
by risk assessment tools are integrated with other
relevant information known to relate to the risk the particular individual will
reoffend. All information should be used to formulate a clinical assessment of
risk so results from the tools are not considered
in
isolation.[520]
- 9.25 Health
assessor reports should be tested appropriately by opposing counsel and the
judge. The case law shows that judges, opposing
counsel or the psychologists
presenting the evidence routinely note the limitations with risk assessment
tools and, as a result,
what weight ought to be given to the results generated
from the tools.[521] Instances
where this has not occurred have been corrected on
appeal.[522]
- 9.26 We are
concerned at the possibility that tools could be inappropriate for use on
Māori and may perpetuate racial bias. As
concluded by the Tribunal,
however, there is limited evidence to test the extent of the issue. We are
mindful of the increasing awareness
of racial bias within the criminal justice
and corrections system. We note the introduction of the Algorithm Charter for
Aotearoa New Zealand in which government agencies committed to carefully
manage algorithms, including to prevent unintended bias and reflect the
principles
of the Treaty.[523] We
also note that Ara Poutama is taking steps to validate its tools specifically
for Māori. However, in light of the absence
of evidence, and because of the
increasing awareness of the need to eradicate aspects of risk assessment that
disadvantage Māori,
we are interested to hear from submitters about this
issue and what, if any, reform may be needed.
QUESTION
Q28
Do you agree with the issues we have identified regarding evidential matters
and our preliminary conclusion that legislative reform
is not generally needed
to address these issues?
QUESTION
Q29
Do you think the possibility that risk assessment tools may be
inappropriately used on Māori is an issue requiring reform? If
so, why, and
what reforms should be implemented?
There is insufficient attention to the views of whānau, hapū and
iwi
- 9.27 In our
preliminary engagement, we heard a clear desire among Māori to take greater
responsibility for managing people subject
to preventive measures with whom they
have a whakapapa or cultural connection. We discuss this issue in Chapter 2 and
note that the
law could place greater priority on enabling people to be safely
managed with Māori-designed and Māori-led initiatives.
Through these
initiatives, Māori could be managed in ways that better enable Māori
to act in accordance with tikanga.
- 9.28 A related
point we encountered during initial engagement was that, when a court considers
whether to impose preventive detention,
an ESO or a PPO, the person’s
whānau, marae, hapū or iwi ought to have an opportunity to provide
information to the
court. The submissions these groups may make could provide
valuable assistance to the court such as:
(a) providing relevant information about the person’s background and
cultural context;
(b) providing insight, including in terms of the relevant tikanga, on the risks
posed by the person, whether preventive detention,
an ESO or a PPO is
appropriate and, if so, on what terms; and
(c) if the law was to better enable Māori to take responsibility for the
management of people subject to preventive measures,
providing views on what
possible management options are available and appropriate.
- 9.29 We
recognise that some Māori may not be connected to their whānau,
hapū, marae or iwi. There are, however, other
ways the court could receive
the information it needs about the person and their cultural context. For
instance, some Māori
may have a shared sense of whānau identity around
a particular kaupapa. People with this shared sense of whānau identity
could speak to the court. Alternatively, a person could be appointed to provide
information on cultural matters relating to the person,
perhaps similar to
cultural reports under section 27 of the Sentencing Act.
- 9.30 The current
law provides some opportunities for relevant groups and individuals to address
the court when it is considering whether
to impose preventive detention, an ESO
or a PPO. Section 27 of the Sentencing Act provides avenues for the court to
hear a person
or persons on various matters relating to an offender’s
whānau and cultural background. This process will apply for preventive
detention. Section 107H(2) of the Parole Act provides that, at the hearing of an
ESO application, the court may receive and take
into account any evidence or
information that it thinks fit for the purpose of determining the application,
whether or not it would
be otherwise admissible. Section 108(1) of the Public
Safety Act provides that, in any proceedings regarding PPOs, a court may receive
as evidence any statement, document, information or matter that it considers
relevant, whether or not it would be otherwise admissible.
- 9.31 Our
preliminary view is that these provisions could be strengthened. The legislation
could place greater emphasis on enabling
relevant groups or individuals to
provide information to the court. The legislation could also provide more detail
on how the information
may be relevant to the decision on whether to impose
preventive detention, an ESO or a PPO. Cultural input, especially from the
whānau
themselves, will be highly relevant. In particular, their views can
provide important cultural information about the individual and
their risks of
reoffending, given the limitations of risk assessment tools discussed above.
Further, as noted above and as we discuss
further in Chapter 10, the law could
give greater priority for Māori to be managed in Māori-designed and
Māori-led
initiatives. The law could require the court to take into account
the views of the person’s whānau, or a group with whom
the person
shares a sense of whānau identity about whether this would be a suitable
way of managing the person.
- 9.32 Enabling
greater participation of Māori in this way may better facilitate tino
rangatiratanga. Considering the disproportionate
representation of Māori
among those subject to preventive detention and ESOs, greater participation may
be in line with the
principles of partnership and active protection under the
Treaty.
QUESTION
Q30
In Chapter 12, we present proposals for reform in further detail for feedback.
Do you think that the legislation should promote opportunities to address the
court or provide information to the court for the person’s
whānau,
hapū or iwi or any person who has a shared sense of whānau identity
around a particular kaupapa with the person?
Part
Five:
Management of
people on preventive detention, extended supervision orders and public
protection orders
CHAPTER 10
10 Conditions and management in the community
IN
THIS CHAPTER, WE CONSIDER:
- standard and
special conditions of parole (where a person sentenced to preventive detention
has been released from imprisonment) and
extended supervision orders
(ESOs);
- how these
conditions are imposed; and
- issues relating
to these conditions.
THE LAW
Preventive detention
- 10.1 A
person subject to preventive detention will remain in prison unless they are
granted release on parole by direction of the
New Zealand Parole Board (Parole
Board) once they are eligible.
- 10.2 If a person
subject to preventive detention is released on parole, that person is:
(a) subject to the standard release conditions for the rest of their life
(unless the Parole Board varies or discharges the
conditions);[524]
(b) subject to any special conditions imposed by the Parole Board, which remain
in force for the period that the Parole Board
specifies;[525] and
(c) subject to recall to prison for the rest of their
life.[526]
Standard release conditions
- 10.3 Standard
release conditions apply to every person who is released on parole from a
sentence of imprisonment.[527]
While these conditions apply to a person subject to preventive detention for the
rest of their life (unless varied or discharged),
they only apply to people who
are on parole from a determinate sentence of imprisonment for a maximum of six
months after their statutory
release
date.[528]
- 10.4 The Parole
Act 2002 does not prescribe the purpose of parole or of release conditions.
According to the Parole Board, parole
aids reintegration, provides people with
an incentive not to reoffend and “encourages people to address their
offending and
its causes, to rehabilitate themselves to live in society without
being a risk to the
community”.[529]
- 10.5 Section 14
of the Parole Act sets out the standard release
conditions:[530]
- (a) the
offender must report in person to a probation officer in the probation area in
which the offender resides as soon as practicable,
and not later than
72 hours, after release:
(b) the offender must report to a probation officer as and when required to do
so by a probation officer, and must notify the probation
officer of his or her
residential address and the nature and place of his or her employment when asked
to do so:
(c) the offender must not move to a new residential address in another
probation area without the prior written consent of the probation
officer:
- (d) if consent
is given under paragraph (c), the offender must report in person to a probation
officer in the new probation area
in which the offender is to reside as soon as
practicable, and not later than 72 hours, after the offender’s
arrival in the
new area:
- (e) if an
offender intends to change his or her residential address within a probation
area, the offender must give the probation
officer reasonable notice before
moving from his or her residential address (unless notification is impossible in
the circumstances)
and must advise the probation officer of the new
address:
- (f) the
offender must not reside at any address at which a probation officer has
directed the offender not to reside:
- (fa) the
offender must not leave or attempt to leave New Zealand without the prior
written consent of a probation officer:
- (fb) the
offender must, if a probation officer directs, allow the collection of biometric
information:
- (g) the
offender must not engage, or continue to engage, in any employment or occupation
in which the probation officer has directed
the offender not to engage or
continue to engage:
- (h) the
offender must not associate with any specified person, or with persons of any
specified class, with whom the probation officer
has, in writing, directed the
offender not to associate:
- (i) the
offender must take part in a rehabilitative and reintegrative needs assessment
if and when directed to do so by a probation
officer.
- 10.6 Standard
release conditions apply automatically — the Parole Board has no
discretion whether or not to impose them. However,
as we discuss in Chapter 11,
standard conditions may be varied or discharged.
- 10.7 As can be
seen from the conditions listed above, almost all the standard release
conditions give a person’s probation officer
broad discretion as to how to
carry out the conditions in practice.
Special release conditions
- 10.8 The
Parole Board has discretion to impose special release conditions upon a person
released on parole.[531] This may
be done at a parole hearing or at any later time upon application by the person
subject to release conditions or by a probation
officer.[532]
- 10.9 The Parole
Act sets out a non-exhaustive list of the kinds of special conditions that may
be imposed. They include conditions
relating
to:[533]
(a) directing where the person lives;
(b) curfews;
(c) prohibiting the person from consuming alcohol or drugs;
(d) preventing the person from associating with any person or class of
persons;
(e) requiring the person to take prescription
medication;[534]
(f) requiring the person to participate in programmes to reduce the risk of
further offending;
(g) prohibiting a person from entering specified places or areas; and
(h) requiring the person to submit to electronic monitoring.
- 10.10 A special
release condition must not be imposed unless it is designed
to:[535]
(a) reduce the risk of the person reoffending;
(b) facilitate or promote the person’s rehabilitation and reintegration;
or
(c) provide for the reasonable concerns of victims of the person.
- 10.11 When
making decisions about special release conditions, the Parole Board must be
guided by:
(a) the “paramount consideration”, which is the safety of the
community;[536] and
(b) the principle that people “must not be subject to release conditions
that are more onerous, or last longer, than is consistent
with the safety of the
community.”[537]
- 10.12 Before the
hearing, the Parole Board is provided with information about the person they are
considering, including the following:
(a) Copies of all relevant information relating to the person’s
convictions, such as sentencing notes and pre-sentence
reports.[538]
(b) A report from Ara Poutama | Department of Corrections (Ara Poutama) about
the person.[539] The legislation
does not set out what information the report should contain, but it is likely to
include information about the person,
their risk of reoffending, their progress
in prison, a release proposal, proposed special conditions for release and the
rationale
for each special
condition.[540]
(c) A psychological report about the person, focusing on risk, rehabilitation
needs, reintegration needs and commenting on the proposed
release
conditions.[541]
(d) Where available, other reports such as forensic psychiatric reports, private
psychological reports and psychological treatment
reports.[542]
- 10.13 The person
subject to preventive detention is entitled to appear at the hearing and make
oral and written submissions to the
Parole Board on whether the Board should
impose special conditions.[543]
The person may be represented by a
lawyer.[544]
- 10.14 A member
of Ara Poutama staff with knowledge of the person — usually their case
manager — also attends parole hearings
in order to provide information to
the Parole Board as
required.[545]
- 10.15 The Parole
Board must take all reasonable steps to notify every victim that a hearing is to
be held and to provide them with
information about how they may participate in
the process.[546] Each victim must
be provided with certain information about the person on request and may appear
at the hearing and make oral submissions
to the Parole
Board.[547]
Extended supervision orders
- 10.16 Under
an ESO, a person subject to:
(a) standard extended supervision conditions; and
(b) any special extended supervision conditions imposed by the Parole Board.
Standard extended supervision conditions
- 10.17 When
the court imposes an ESO, the standard extended supervision conditions set out
in the Parole Act apply.[548]
These conditions apply for the term of the ESO unless varied or discharged by
the Parole Board.[549]
- 10.18 Standard
extended supervision conditions largely mirror the standard release conditions
that apply to a person on parole, with
the addition of the following
conditions:[550]
(a) The person must not associate with, or contact, a person under the age of 16
years, except with the prior written approval of
a probation officer and in the
presence and under the supervision of an adult who has been informed about the
relevant offending
and who has been approved in writing by a probation officer
as suitable to undertake the role of supervision.
(b) The person must not associate with, or contact, a victim of their offending
without the prior written approval of a probation
officer.
(c) The person must not associate with, or contact, any person or class of
person specified in a written direction given to the person.
- 10.19 As with
standard parole release conditions, standard extended supervision conditions
apply automatically and there is no discretion
as to whether to apply them to an
individual. However, standard extended supervision conditions can be varied by
the Parole Board
upon application by the person subject to the ESO or a
probation officer.[551] We discuss
variation of conditions in Chapter 11.
- 10.20 Almost all
of the standard conditions allow a person’s probation officer broad
discretion as to how to carry out the condition
in practice. We discuss this
further below.
Special extended supervision conditions
- 10.21 While
the ESO is made by the court, special extended supervision conditions are
generally imposed by the Parole Board. The Parole
Board may impose special
conditions at any time during an ESO, upon an application by a probation officer
or the chief executive
of Ara Poutama (chief
executive).[552] The court may,
however, impose special extended supervision conditions on an interim basis at
the time it makes an ESO if satisfied
that there may not be sufficient time
before the ESO comes into force for the Parole Board to determine which (if any)
special conditions
should be
imposed.[553]
- 10.22 The Parole
Board may impose the same special conditions on a person subject to an ESO as it
is entitled to impose on a person
on parole — these conditions are
discussed above. The imposition of special extended supervision conditions is
also subject
to the same test — a special extended supervision condition
must not be imposed unless it is designed
to:[554]
(a) reduce the risk of reoffending;
(b) facilitate or promote the person’s rehabilitation and reintegration;
or
(c) provide for the reasonable concerns of victims.
- 10.23 If the
Parole Board is considering imposing special extended supervision conditions, it
must notify the person subject to the
ESO and all victims of that
person.[555] The person subject to
the ESO and any victims are entitled to make written submissions to the Parole
Board on whether special conditions
should be imposed, what the conditions
should be and their duration.[556]
- 10.24 The Parole
Act only allows the person subject to the ESO and any victims to appear and make
oral submissions if granted leave
by the Parole
Board.[557] There is no statutory
entitlement for the person subject to the ESO to be represented by a lawyer at
the hearing. In practice, the
Parole Board always holds an oral hearing and
allows the person subject to the ESO to be represented by a lawyer who may make
submissions.[558]
- 10.25 The Parole
Board is provided with all the information that was provided to the court that
granted the ESO, as well as a report
from Ara Poutama that identifies the
special conditions sought and the rationale for
each.[559]
- 10.26 When
imposing special extended supervision conditions, the Parole Board must specify
the duration of the conditions. With certain
exceptions, conditions can apply
for the full term of the ESO or for any lesser
period.[560] Any residential
restrictions and any intensive monitoring condition (both discussed below) may
only apply within the first 12 months
of an
ESO.[561] Other restrictions on
the use of certain special conditions are discussed later in this
chapter.
Intensive monitoring conditions
- 10.27 An
intensive monitoring (IM) condition is a particular kind of special extended
supervision condition that is imposed by a different
process to the other
conditions.
- 10.28 An IM
condition is:[562]
- A condition
requiring an offender to submit to being accompanied and monitored, for up to 24
hours a day, by an individual who has
been approved, by a person authorised by
the chief executive, to undertake person-to-person monitoring.
- 10.29 Unlike
other special conditions, the Parole Board cannot impose an IM condition unless
directed by the court. At the time of
making an ESO application, the chief
executive may also apply for an order requiring the Parole Board to impose an IM
condition.[563] The court does not
impose the IM condition — rather, it makes an order requiring the Parole
Board to impose the IM
condition.[564]
Interim supervision orders
- 10.30 If
an ESO application has been made, the court can make an interim supervision
order (ISO) for the period from when the person
who is the subject of the order
is released from detention (or ceases to be subject to an existing ESO) until
the application for
the ESO is finally determined.
- 10.31 There are
no standard conditions that automatically apply to an ISO. The court may impose
any of the standard or special conditions
that may be imposed under an ESO,
including IM conditions or residential
restrictions.[565] Unlike for an
ESO, any special conditions are imposed by the court, rather than by the Parole
Board. These conditions remain in place
until the ESO application is finally
determined.[566]
Public protection orders
- 10.32 If
a public protection order (PPO) is cancelled, the court must impose a protective
supervision order (PSO) on the person. A
PSO allows the court to impose
conditions similar to parole conditions.
- 10.33 As far as
we are aware, no PSOs have been imposed to date, and consequently, there have
been no major issues identified in cases
and commentary. PSOs will not be
discussed in this chapter, but we welcome feedback on any issues relating to PSO
conditions.
ISSUES
- 10.34 As
noted at the start of this chapter, when a person subject to preventive
detention is released from prison on parole, they
are subject to the same
standard conditions that apply to any other person released on parole from a
sentence of imprisonment. However,
where we discuss issues with release
conditions in this chapter, our focus is on release conditions as they apply to
a person who
has been sentenced to preventive detention. We do not intend to
comment on the operation of parole conditions generally.
Insufficient priority on enabling Māori-designed and
Māori-led initiatives
- 10.35 As
we discuss in Chapter 2, we consider good law in this area should give effect to
obligations under te Tiriti o Waitangi |
Treaty of Waitangi and enable
Māori to live in accordance with tikanga Māori, should they wish to do
so.
- 10.36 Our
preliminary engagement with Māori emphasised the desire for Māori
participation in the design and delivery of
responses to the risks of
reoffending by people convicted of serious crimes. We have heard that
Māori-led rehabilitation should
be able to occur in a fundamentally
Māori context. It cannot be dictated by legislation or delivered in a
kāwanatanga context.
We have heard that the law should create space to
enable Māori-designed, Māori-led responses to risk and to allow
Māori
to exercise responsibility.
- 10.37 We have
heard that there are currently limited opportunities for Māori groups to
exercise responsibility for managing people
in the community on parole (from
sentences of preventive detention) or ESOs.
- 10.38 In our
preliminary view, the current law relating to parole conditions and extended
supervision conditions could better provide
for Māori-designed and
Māori-led initiatives by:
(a) requiring the Government to instigate, support and resource the development
of Māori-designed and Māori-led initiatives;
and
(b) requiring the Parole Board or court, when imposing conditions, to consider
whether and how a person can access Māori-designed
and Māori-led
initiatives.
- 10.39 We note
that Ara Poutama is making operational and strategic changes in accordance with
Hōkai Rangi, its strategy to improve outcomes for Māori
in the corrections system and reduce the disproportionate effect of the
corrections
system on
Māori.[567] Some of the aims
of the strategy relate to resourcing and supporting the development of kaupapa
Māori responses to administering
sentences and delivering treatment and
support.[568]
- 10.40 We
consider that a statutory obligation to instigate, support and resource these
initiatives would give better effect to the
Crown’s Treaty obligations to
facilitate tino rangatiratanga through partnership and developing
options.[569] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal has also emphasised that
the principle of active protection
requires priority to be given and sufficient
resources and effort to be deployed to support Māori-led initiatives.
- 10.41 A
statutory obligation would also better enable the Parole Board, courts and
probation officers to consider Māori initiatives
when imposing special
conditions or managing conditions.
- 10.42 Currently,
the legislation allows the Parole Board and probation officers to consider
Māori initiatives when imposing special
conditions or when managing
conditions, where those initiatives are available. For example:
(a) The Parole Board may impose conditions requiring a person to participate in
a rehabilitation and reintegration programme —
a “programme”
includes cultural programmes and placement in the care of an appropriate person
or agency such as an iwi,
hapū, whānau, marae or cultural
group.[570]
(b) When exercising powers and duties, probation officers must take into account
the principles of the Corrections Act 2004 so far
as is practicable in the
circumstances. One of these principles
is:[571]
- in order to
reduce the risk of reoffending, the cultural background, ethnic identity, and
language of offenders must, where appropriate
and to the extent practicable
within the resources available, be taken into account—
- (i) in
providing rehabilitative programmes and other interventions intended to
effectively assist the rehabilitation and reintegration
of offenders into the
community; and
- (ii) in
sentence planning and management of offenders
- 10.43 However,
the Parole Board has no control over funding or what initiatives are available.
Probation officers are also restricted
by the resources available.
- 10.44 The
legislation does not currently require the Parole Board or court to consider
Māori-designed and Māori-led initiatives
when imposing special
conditions. In our preliminary engagement, we have heard from the Parole Board
that it is highly supportive
of organisations providing kaupapa Māori
responses to those on parole.[572]
However, we consider that a legislative requirement could better accord with the
Crown’s Treaty obligations.
- 10.45 We discuss
proposals for reform further in Chapter 12 where we present proposals to
facilitate tino rangatiratanga and enable
Māori to live according to
tikanga.
Insufficient priority on providing for the operation of
tikanga Māori
- 10.46 In
our preliminary engagement with Māori, we have heard that, according to
tikanga, when serious offending has occurred,
the primary focus is to restore
relationships between kin groups, including kin groups of the victim. A person
who has offended has
had their tapu disrupted. Part of the response is to
whakaoho i te tapu — to renew and regrow the tapu (and the potential for
mana) so that the person can participate in the community. According to Tā
Kim Workman, public safety is achieved in te ao Māori
when the functioning
of communities and whānau reflects a collective sense of
wellbeing.[573]
- 10.47 In our
preliminary view, there are several instances where the current law could be
strengthened to better recognise and provide
for tikanga Māori.
- 10.48 The
paramount consideration when setting special conditions is the safety of the
community. There is no legislative guidance
about the meaning of “the
safety of the community”. Courts have interpreted it as referring to
safety from the undue
risk of
reoffending.[574] One of Ara
Poutama’s strategic aims is to take a new approach to safety by seeing it
“through a lens of manaaki, positive
relationships, and uplifting
wellbeing”.[575] In our
preliminary engagement, we have heard from the Parole Board that uplifting
wellbeing is an essential part of the rehabilitation
programmes available in
prison.[576] This is not currently
apparent in the legislation.
- 10.49 The
principle discussed above requires probation officers to consider a
person’s cultural background when providing rehabilitative
programmes and
managing them. This allows a probation officer to take into account relevant
tikanga. However, this principle is qualified
by the purpose of reducing the
risk of reoffending. Though an argument could be made that providing for the
operation of tikanga
may generally relate to reducing the risk of reoffending,
it is feasible that there may be situations in which the operation of tikanga
Māori would be considered neutral to a person’s risk of reoffending.
It is unclear whether tikanga could be taken into
account in this situation.
- 10.50 In our
preliminary engagement, we heard that a person’s whānau, marae,
hapū or iwi should have an opportunity
to provide information to the court
or Parole Board making decisions about a person. This could include information
relevant to setting
conditions, such as relevant information about the
person’s background and cultural context, providing insight (including in
terms of relevant tikanga Māori) on the risks posed by the person and
providing views on what possible conditions or management
options would be
available and appropriate.
- 10.51 Currently,
when the Parole Board holds a hearing to determine parole conditions, the person
subject to preventive detention
is entitled to be accompanied by one or more
support persons who may, if granted leave by the Parole Board, speak in support
of the
person.[577] The Parole
Board also has broad discretion to determine who may attend and speak at a
hearing and to impose limits on what a person
may talk
about.[578] If the Parole Board
holds a hearing to determine ESO conditions, the person subject to the ESO does
not have a legislative entitlement
to be accompanied by a support person or to
have another person speak.
- 10.52 We suggest
that the law could contain relevant principles to guide the exercise of
discretion in a way that recognises and provides
for tikanga Māori. We
discuss this further in Chapter 12, where we present proposals to facilitate
tino rangatiratanga and enable
Māori to live according to tikanga. We
suggest several ways this could be achieved, including that the law expressly
require
the court or Parole Board, when imposing preventive measures, to
consider whether and how a person can access Māori-designed
and
Māori-led initiatives. We also suggest that the law could contain relevant
principles to guide the exercise of discretion
in a way that recognises and
provides for tikanga Māori.
- 10.53 It is also
important to explore how Māori who are disconnected from whānau,
hapū and iwi can connect with non-kin
groups. Not all tāngata
Māori have strong connections to their whānau, hapū or iwi nor
their taha Māori
(cultural identity). Colonisation imposed foreign
concepts, weakened ties to tribal lands and support networks and undermined
traditional
Māori theories of knowledge and methods of dealing with harm
within the community. While this has impacted many Māori groups,
it is an
experience acutely felt by urban Māori (Māori who live outside of
their traditional rohe). Many people subject
to preventive detention, ESOs and
PPOs may not be connected to kin groups or familiar with tikanga Māori.
- 10.54 For some
Māori, their primary sense of whānau identity may be with others
around a shared kaupapa.[579]
These groups and individuals may wish to exercise greater responsibility for
people who require some form of preventive
management.
QUESTION
Q31
Do you think that the law relating to the conditions and management of people
subject to release on parole from preventive detention
and ESOs appropriately
allow for Māori-designed and Māori-led initiatives?
The law could better ensure consistency with the New Zealand
Bill of Rights Act 1990
- 10.55 Conditions
imposed on people subject to preventive regimes restrict their rights and
freedoms, often in significant ways. As
we discuss in Chapter 3, limitations on
the rights affirmed under the New Zealand Bill of Rights Act 1990 (NZ Bill of
Rights) must
be prescribed by law and demonstrably justified in a free and
democratic society.
- 10.56 The
requirement that restrictions be prescribed by law means conditions should be
identifiable and precise and their nature
and consequences should be clear.
- 10.57 Restrictions
in the form of conditions must, however, be rationally connected to the risk
posed by an individual and impair
the individual’s rights or freedoms no
more than is reasonably necessary, in the circumstances, to achieve the
restriction’s
important purpose. Therefore, the management of conditions
should be flexible enough to take into account that those subject to preventive
regimes have diverse backgrounds and their needs and risks may be dynamic.
- 10.58 Decisions
by the Parole Board imposing conditions on people subject to preventive orders,
as well as decisions by probation
officers managing conditions, must comply with
the NZ Bill of Rights. This requirement is not explicitly stated in legislation
governing
the preventive regimes — rather, it reflects the general
requirements under the NZ Bill of
Rights.[580]
- 10.59 Since
standard conditions apply automatically to parole and ESOs, the Parole Board
cannot consider whether or not a standard
condition is demonstrably justified.
The only mechanism for ensuring compliance with the NZ Bill of Rights is the
discretion of the
probation officer managing the conditions.
- 10.60 In
relation to how conditions are implemented in practice, both standard and
special conditions are, for the most part, framed
to confer broad discretion on
a probation officer. The advantage of discretion is that it allows probation
officers to take into
account a person’s individual circumstances and
respond to changes in their needs or risk. Ara Poutama advises probation
officers
on administering conditions consistently with the NZ Bill of
Rights.
- 10.61 The courts
have, however, found in some circumstances that the implementation of a standard
condition was an unjustified limitation
on a right affirmed under the NZ Bill of
Rights. For example, in Te Whatu v Department of Corrections,
implementation infringed the right to freedom of
association.[581] Mr Te Whatu was
subject to an ESO on the basis of sexual offending, including against children.
He was subject to conditions including:
(a) the standard condition not to associate with any person with whom a
probation officer has, in writing, directed him not to associate;
and
(b) a special condition not to contact children.
- 10.62 Mr Te
Whatu’s probation officer issued him with a written direction not to
associate with his partner of seven years,
on suspicion that his partner may be
grooming a neighbour’s 11-year-old daughter for sexual offending by Mr Te
Whatu. Te Kōti
Matua | High Court (High Court) held that the concerns Ara
Poutama had about Mr Te Whatu having contact with children were squarely
addressed by the special condition requiring that he not have contact with
children. There was no evidence (as opposed to suspicion)
that he was not
complying with this condition.
- 10.63 The Court
found that the blanket direction that Mr Te Whatu not associate with his own
partner was an unjustified limitation
on his right to associate with his own
partner. It applied whether or not children were around and deprived Mr Te Whatu
of his primary
source of support. The direction was too broad and therefore a
disproportionate response to the
problem.[582]
- 10.64 This case
illustrates the availability of a court-based process to challenge
implementation decisions that breach rights and
freedoms. On the one hand, this
may seem an appropriate remedy. On the other hand, the remedy relies on a person
challenging the
probation officer’s decision about implementing
conditions. In this case, the matter only arose after Mr Te Whatu appealed
his
conviction for breaching the non-association order.
- 10.65 In a case
involving the now-repealed “three strikes” regime, judges of te
Kōti Mana Nui | Supreme Court (Supreme
Court) commented that, where the law
could result in breaches of the NZ Bill of Rights, the rule of law may require
safeguards to
be addressed within primary
legislation.[583]
QUESTION
Q32
Should the legislation build in tests or guidance to ensure that decisions
about conditions are made in accordance with the NZ Bill
of Rights?
“Residential restrictions” not defined in
legislation
- 10.66 The
Parole Act includes “residential restrictions” that may be imposed
as a special condition of parole or an
ESO.[584] The Supreme Court noted
in Woods v Police that the Act does not define residential restrictions
— rather, it empowers the Parole Board to impose residential restrictions
and sets out the list of requirements of a person subject to
them.[585] A person subject to
residential restrictions is
required:[586]
- (a) to stay at
a specified residence:
- (b) to be under
the supervision of a probation officer and to co-operate with, and comply with
any lawful direction given by, that
probation officer:
- (c) to be at
the residence—
- (i) at times
specified by the Board; or
- (ii) at all
times:
(d) to submit, in accordance with the directions of a probation officer, to the
electronic monitoring of compliance with his or her
residential restrictions;
(e) to keep in his or her possession the licence issued under section 53(3) and,
if requested to do so by a constable or a probation
officer, must produce the
licence for inspection.
- 10.67 In
addition, a person subject to residential restrictions may not leave the
residence without approval of a probation officer
except to seek urgent medical
or dental treatment or to avoid or minimise a serious risk of death or injury to
themselves.[587]
- 10.68 There are
also procedural and eligibility requirements for imposing residential
restrictions, including:
(a) before imposing residential restrictions, the Parole Board must request and
consider a report from the chief executive on certain
matters relating to the
person and the residence, such as the likelihood that the residential
restrictions will prevent further offending
and the suitability of the proposed
residence, including the safety and welfare of any other
occupants;[588]
(b) residential restrictions may only be imposed if the occupants of the
relevant residence
consent;[589]
(c) in the case of a person released on parole, but not in the case of ESO
conditions, residential restrictions may only be imposed
if the person subject
to the restrictions agrees to comply with
them;[590] and
(d) a requirement to be at the residence at all times may be imposed for no
longer than 12 months[591] —
for an ESO, this must be within the first 12 months of the term of the
order.[592]
- 10.69 Therefore,
it is important to know what “residential restrictions” are in order
to know if these further requirements
apply. Courts have been required to assess
whether a combination of conditions, in substance, amounts to “residential
restrictions”.
- 10.70 Defining
“residential restrictions” in the legislation may make it easier for
the courts to assess whether a person
is subject to residential restrictions. In
Woods v Police, the Supreme Court was required to consider this issue in
the context of sentencing and commented that “[d]esirably, there
should be
greater legislative
clarity”.[593]
QUESTION
Q33
Do you think the term “residential restrictions” should be
defined in the legislation?
Issues relating to preventive detention
Requirement for person to agree to residential restrictions may
result in parole being denied
- 10.71 As
we discuss above, residential restrictions may only be imposed on a person
released on parole if the Parole Board is satisfied
that the person subject to
the restrictions agrees to comply with
them.[594] Agreement is not
required to impose residential restrictions on a person subject to an
ESO.[595]
- 10.72 In
Woods v Police, the majority of the Supreme Court commented on the
rationale for the procedural requirements relating to residential
restrictions:[596]
- ... the
provisions ... reflect a careful balancing of the purposes of such restrictions
and the rights and freedoms preserved under
the New Zealand Bill of Rights Act
... ensuring that the intrusion upon rights is no more than is justifiable in a
free and democratic
society ...
- 10.73 In our
preliminary engagement, we have heard that, if the Parole Board considers a
person’s risk will only be effectively
managed by residential restrictions
but the person does not agree to comply with the condition, the person may not
be granted parole
because the Board cannot be satisfied that the person will not
present an undue risk to the safety of the community.
- 10.74 Our
preliminary view is that the human rights imperative to impose the least
restrictive order may mean the law should allow
residential restrictions to be
imposed as a special release condition on a person subject to preventive
detention, whether or not
they agree to comply with the condition, where this
would allow the person to be managed within the community rather than within
prison.
QUESTION
Q34
Do you think that the Parole Board should be able to impose residential
restrictions as a special release condition on a person subject
to preventive
detention, whether or not they agree to comply with the condition, where this
would allow the person to be managed
within the community rather than within
prison?
Issues relating to extended supervision order
conditions
Extended supervision order special conditions and the principle
that conditions must not be more onerous, or last longer, than necessary
- 10.75 Section
7 of the Parole Act sets out “guiding principles”. The paramount
consideration for the Parole Board when
making decisions about or in any way
relating to the release of an offender is the safety of the community.
- 10.76 Section
7(2)(a) provides that another principle
is:[597]
- that offenders
must not be detained any longer than is consistent with the safety of the
community, and that they must not be subject
to release conditions that are more
onerous, or last longer, than is consistent with the safety of the
community
- 10.77 The High
Court has said that the guiding principles of the Parole Act recognise
offenders’ fundamental rights and that,
when the Parole Board correctly
applies them, it will have regard to human
rights.[598]
- 10.78 When the
Parole Board imposes special conditions on release from prison, the Parole
Board’s decision must be guided by
the above principle about conditions.
However, it is arguable that, as drafted, the principle does not apply when the
Parole Board
imposes special conditions on an ESO. The principle refers
specifically to “release conditions”, which are defined in
the
Parole Act as “the standard conditions and any special conditions imposed
by the Parole Board or the sentencing court and
that apply to an offender
released from
detention”.[599] ESO
conditions are not “release
conditions”.[600]
- 10.79 Even if
this provision does not strictly apply, the NZ Bill of Rights is relevant to the
exercise of discretion by the Parole
Board when setting special ESO conditions
under the Parole Act. In effect, the Parole Board must not impose ESO conditions
that limit
rights or freedoms affirmed under the NZ Bill of Rights to an extent
that is more onerous or lasts longer than is consistent with
the safety of the
community. However, we would like feedback on whether the principle should be
amended to expressly apply to ESO
conditions.
QUESTION
Q35
Do you think the guiding principles of the Parole Act should be amended to
state that people subject to ESOs must not be subject to
conditions that are
more onerous, or last longer, than is consistent with the safety of the
community?
Inefficiency of dividing order-making and condition-setting
jurisdictions for extended supervision orders
- 10.80 The
court has responsibility for making an ESO and setting its duration while the
Parole Board has responsibility for setting
conditions.
- 10.81 In
Chief Executive of the Department of Corrections v McIntosh, one
of the first ESO decisions, a full court of the High Court noted that, while
“[a]t first sight it may seem odd” to
divide the jurisdictions in
this way, it is “obviously an intended feature of the statutory
scheme”.[601] The Court
explained the rationale as
follows:[602]
- It recognises
and imposes dual responsibility. That upon the Court is to judge whether there
is a likelihood of further relevant
offending when the offender ceases to be on
parole and to assess the term of the minimum period required for the purposes of
community
safety. By contrast once an order is made and its term is fixed it is
for the Parole Board to define the conditions to which the
offender will be
subject under the extended supervision order. Hence, risk management, an
unenviable but everyday function of the
Parole Board, rests with
it.
- 10.82 In our
preliminary engagement, two issues were raised:
(a) Inefficiencies arising as multiple hearings may be required in respect of a
similar issue.
(b) Inefficiencies arising as there are different mechanisms for reviewing
decisions of the court and of the Parole Board.
Multiple hearings required
- 10.83 The
different powers of the court and Parole Board may require, in some situations,
multiple hearings to be held in respect
of similar issues and with respect to
the same evidence. This is illustrated by a timeline of cases involving Mr
Chisnall and Ara
Poutama:[603]
(a) The High Court imposed a PPO on Mr
Chisnall.[604]
(b) Mr Chisnall appealed. On appeal, te Kōti Pīra | Court of Appeal
(Court of Appeal) said it could not properly consider
whether an ESO was an
appropriate less restrictive alternative to a PPO because it did not have any
information about the terms on
which an ESO would be made. The Court allowed the
appeal, quashed the PPO and remitted the matter to the High Court for
reconsideration.[605]
(c) When the High Court reconsidered the matter, the judge heard detailed
evidence about the special conditions that Ara Poutama
would seek if an ESO was
made, whether Mr Chisnall would agree with those conditions being imposed and
the details of how the ESO
would be administered. The judge considered the ESO
conditions would not sufficiently address the risk of serious offending and
imposed
a PPO.[606]
(d) Mr Chisnall appealed again. Taking into account further evidence, the Court
of Appeal considered that an ESO with an IM condition
would be sufficient to
mitigate the risk and quashed the PPO. However, the Court did not have the power
to impose an ESO or set conditions
directly. The ESO application had to be
remitted to the High Court. The Court of Appeal imposed an ISO with special
conditions until
the ESO could be
determined.[607]
(e) A further hearing will be required in the High Court to impose the ESO.
(f) The chief executive will then need to apply to the Parole Board to impose
any special conditions.
- 10.84 In our
preliminary engagement, some people suggested that, as the court also hears
evidence about special conditions and imposes
special conditions on an interim
basis, the whole process should lie with the court.
- 10.85 As the
Court observed in McIntosh, the Parole Board has expertise in setting
parole conditions. In our preliminary engagement, we heard some support for the
Parole
Board setting conditions because of this expertise. The Parole Board may
also have more hearing time available for setting and varying
conditions than
the courts do.
- 10.86 However,
the courts also have experience in setting similar conditions in a number of
other contexts, including imposing special
release conditions on short terms of
imprisonment,[608] imposing
special conditions on sentences such as intensive supervision, community
detention and home detention[609]
and imposing bail conditions.[610]
- 10.87 Sometimes,
the Parole Board may adopt the ESO conditions that were set by the court on an
interim basis until the Parole Board
could hear an application. For example, in
C v New Zealand Parole Board, the Court noted that the Parole Board
imposed special conditions that mirrored those that had been imposed by the High
Court on
an interim
basis.[611]
Different mechanisms for challenging decisions
- 10.88 If
a person wishes to challenge a decision by the court in relation to an ESO, the
applicable review mechanism is an appeal
to the Court of Appeal. This includes
appeals against the making of or failure to make an ESO, cancellation of an ESO,
imposition
of an order requiring the Parole Board to impose an IM condition or a
decision to confirm or cancel an ESO upon
review.[612]
- 10.89 These
appeals are conducted as if they are appeals against sentence in the criminal
jurisdiction.[613] This means the
court must allow the appeal if it is satisfied there was an error in the
decision under appeal and a different decision
should have been
made.[614]
- 10.90 If a
person wishes to challenge a decision by the Parole Board in relation to an ESO,
there is a different review
mechanism.[615] The person must
first apply in writing for a review of the Parole Board’s decision by the
chairperson of the Parole Board or
a panel
convener.[616] If the person
wishes to challenge the decision further, there is no right of appeal, but they
can apply for judicial review by the
court.[617]
- 10.91 This is
potentially problematic because lawyers who act in relation to ESO matters may
not have expertise in conducting judicial
review proceedings, which are civil in
nature. If they have been acting for a client on legal aid through an ESO
application, they
may not be approved for civil proceedings and may not be able
to represent that client. This may result in inefficiencies and disadvantage
the
client.
- 10.92 Judicial
review is also essentially limited to examining whether the decision-maker
lawfully followed the proper decision-making
process rather than looking at
whether the decision was the correct one.
- 10.93 We have
not reached a preliminary view on the issue of the division of the order-making
and condition-setting jurisdictions
for ESOs. We are interested in feedback.
QUESTION
Q36
Do you think there are any issues arising from the division between the
order-making and condition-setting jurisdictions for ESOs
that require
legislative reform?
Issues relating to intensive monitoring
- 10.94 An
IM condition is a condition requiring the offender to submit to being
accompanied and monitored for up to 24 hours a day
by a person who has been
approved to undertake person-to-person
monitoring.[618]
- 10.95 The
potential issues relating to IM conditions discussed in this section
are:
(a) There is no legislative test for imposing an IM condition.
(b) The legislation does not permit an IM condition to be added after an ESO is
ordered.
(c) An IM condition can only be imposed for a maximum period of 12 months and
may not be ordered more than once, even if the person
is subject to repeated
ESOs.[619] This means that a
person whose risk is effectively managed by ESO with an IM condition may instead
be placed on a more restrictive
PPO.
No legislative test for imposing IM conditions
- 10.96 There
is no test or statutory guidance on the criteria to be considered when an order
is sought requiring the Parole Board to
impose an IM condition.
- 10.97 The courts
have applied a high threshold when imposing this condition. For example, in
Department of Corrections v Paniora, the Court noted “its
exceptionally intrusive, time-limited and one-off aspects are all indicia it is
a response to a need
to assert external control at a transitional point of high
risk”.[620]
- 10.98 The courts
now generally apply the test formulated in Department of Corrections v
Miller:[621]
- Clearly it is
highly intrusive in the person’s life and will only be justified where a
high risk of sexual offending exists
and is likely to be exacerbated if the
transition from prison to living in the community is not able to be managed
without close
and constant supervision.
- 10.99 While it
seems desirable to have a legislative test for such a restrictive condition, the
approach adopted by the courts appears
to be appropriately rights consistent
— in effect, requiring the condition to be reasonably necessary to address
a high risk.
The test adopted by the courts does not import a proportionality
analysis, but this does not seem unreasonable as the court is only
able to order
the Parole Board to impose the condition — it does not have input into the
actual term of the order or how it
is managed so cannot assess whether the
condition is proportionate.
QUESTION
Q37
Do you think the legislation should include a test or guidance on when an IM
condition may be imposed?
Inability to add IM condition after ESO ordered
- 10.100 The
Parole Act states that:[622]
- When a
sentencing court makes an extended supervision order in respect of an offender,
the court may at the same time, on application
by the chief executive made under
section 107IAB(1), make an order requiring the Board to impose an intensive
monitoring condition
on the offender.
- 10.101 The
courts have interpreted this to mean that the court may only make an order
requiring the Parole Board to impose an IM condition
at the same time as
ordering the ESO — there is no jurisdiction to make an order requiring the
Parole Board to impose an IM
condition on an existing ESO.
- 10.102 This
issue arose in Chief Executive of the Department of Corrections v
Kerr.[623] Ara Poutama had
made an application for a PPO and an interim detention order (IDO) in respect of
Mr Kerr, who was subject to an existing
ESO. The parties had agreed that,
pending the hearing of the PPO and IDO, the Court should impose an IM condition
on Mr Kerr’s
ESO. However, the Court considered that it did not have
jurisdiction to add an IM condition to the existing ESO for the reasons given
above. The matter was dealt with by Mr Kerr consenting to being subject to
monitoring for 24 hours a day, seven days a week until
the PPO and IDO
applications could be determined. If there was any breakdown in this
arrangement, Ara Poutama could make an urgent
application for an IDO.
- 10.103 As a
matter of practice, in subsequent cases where Ara Poutama has wished to add an
IM condition to an existing ESO, it has
made an application for a new ESO and,
at the same time, an application for the court to make an order requiring the
Parole Board
to impose an IM condition. Courts have granted such
applications.[624]
- 10.104 Our
preliminary view is that there can be a legitimate need to impose an IM
condition after an ESO has been made. It would
be more efficient if an
application could be made solely to impose an IM condition rather than requiring
a new ESO application.
QUESTION
Q38
Do you think the legislation should allow an IM condition to be imposed after
an ESO has been ordered?
Maximum period of an IM condition can result in more
restrictive order being made
- 10.105 It
appears from the parliamentary materials relating to the Parole (Extended
Supervision Orders) Amendment Bill that the purpose
of an IM condition is to
allow Ara Poutama to assess whether a person can be appropriately managed under
an ESO or whether a PPO
is necessary. In its Initial Briefing on the Parole
(Extended Supervision Orders) Amendment Bill to the Law and Order Committee,
Ara
Poutama stated that:[625]
- In cases where
the Courts impose an ESO with up to one year’s intensive monitoring,
Corrections would use this period to determine
whether an offender would be more
appropriately managed under a PPO in the long-term if they posed a very high
risk of imminent serious
re-offending. If this is the case, the Department could
apply to the Court for a PPO before the period of intensive monitoring comes
to
an end.
- 10.106 The
person-to-person monitoring involved in the IM condition is expensive. In the
Regulatory Impact Statement, Ara Poutama
noted that limiting the use of
person-to-person supervision would significantly reduce the costs of managing
those subject to ESOs,
whereas unrestricted use of IM conditions “would
have significant cost implications for Corrections (approximately $20 million
over ten years)”.[626]
- 10.107 The
12-month maximum term of an IM condition can mean that a person whose risk is
effectively managed by an IM condition is
instead made subject to a more
restrictive PPO or that the courts endeavour to tailor conditions to provide for
maximum monitoring
without meeting the definition of an IM condition.
- 10.108 For
example, in Chief Executive of the Department of Corrections v R, Mr R
had been subject to an ESO with an IM
condition.[627] On the expiry of
the IM condition, the Parole Board reviewed the other special conditions of the
ESO in order to manage Mr R’s
risks. Ara Poutama applied for a PPO. The
Court was satisfied that the test was met for imposing a PPO but wanted to
consider whether
any alternatives were available.
- 10.109 The Court
was satisfied that the risk presented by Mr R would be sufficiently mitigated by
the following conditions that would
in effect result in 24/7
monitoring:
(a) To participate in the activities provided by an agency, with day-time
supervision.
(b) To be subject to partial residential restrictions between 7 pm to 7 am
daily
(c) To reside with the programme provider.
- 10.110 While the
Parole Act prohibits people from residing with a programme provider and limits
monitoring to the extent necessary
to ensure attendance at the
programme,[628] Mr R indicated
that he would consent to these conditions. However, the Court noted that, if Mr
R withdrew his consent, he could not
lawfully be monitored or restrained.
Rather, a PPO was the only enforceable mechanism for ensuring 24/7 monitoring.
The combination
of conditions to which Mr R consented could not be enforced
against his will as it would have been a back-door method of intensive
supervision beyond the allowable 12-month period.
- 10.111 This case
demonstrates that a person who can be safely managed in the community could be
made subject to a PPO due to the 12-month
restriction on an IM condition. Our
preliminary view is that the human rights imperative to impose the least
restrictive order means
the law should facilitate longer periods of monitoring
where this allows a person to be managed within the community rather than
under
a more restrictive detention order. However, care would need to be taken to
ensure that the condition was not overused.
QUESTION
Q39
Do you think that the court should be able to impose an IM condition for
longer than 12 months if it would allow a person to be managed
in the community
rather than be detained?
Prohibition on requiring a person to reside with a programme
provider
- 10.112 Section
107K(3)(bb)(ii) of the Parole Act provides that a condition requiring a person
to participate in a programme must not
require the person to reside with, or
result in the person residing with, a person, persons or agency in whose care
the person is
placed (a programme
provider).[629]
- 10.113 It
appears that the purpose of this provision is to prevent a person from being
subject to the supervision and direction of
a single agency for 24 hours per
day, as would be the case in a custodial
environment.[630]
- 10.114 The
provision though, is difficult to interpret. It sits uncomfortably with the
definition of a “programme” in
the Parole Act, which includes
“placement in the care of any appropriate person, persons, or agency,
approved by the chief
executive”. Other provisions of the Parole Act also
clearly contemplate that people subject to parole may be placed in residential
rehabilitation programmes, and it appears that Ara Poutama’s practice is
for people to be placed with programme
providers.[631]
- 10.115 The
Parole Board has applied to the High Court for clarity on the interpretation of
section 17K(3)(bb)(ii). It seeks a declaration
to determine whether the
provision means that an accommodation provider cannot ever be the same
organisation as the programme provider
and, if not, what limits the provision
imposes on the Parole Board as to when it might impose conditions enabling an
accommodation
provider and programme provider to be the same
organisation.[632]
- 10.116 If the
provision does mean an accommodation provider can never be the same organisation
as a programme provider, it prevents
attendance at residential rehabilitative
programmes. Our preliminary view is that this is undesirable because the regimes
should
provide for effective rehabilitation. We understand that residential
programmes have advantages over non-residential programmes in
this respect. They
are more intensive and structured than non-residential programmes. They reduce
recidivism and help with mental
health, relationship development and
interpersonal competence.[633]
- 10.117 This
provision may also limit the ability for Māori to take responsibility for
managing people subject to ESOs, as marae-based
or tikanga-based programmes may
involve a residential component.
QUESTION
Q40
Do you think the prohibition on requiring a person to reside with a programme
provider should be removed?
Standard ESO condition not to associate with persons under 16
may not be justified in every case
- 10.118 It
is a standard condition of an ESO
that:[634]
- the offender
must not associate with, or contact, a person under the age of 16 years,
except—
(i) with the prior written approval of a probation officer; and
- (ii) in the
presence and under the supervision of an adult who—
- (A) has been
informed about the relevant offending; and
- (B) has been
approved in writing by a probation officer as suitable to undertake the role of
supervision:
- 10.119 When an
earlier version of this condition was first enacted, ESOs were only available
for people who had committed certain
sexual offences against victims under the
age of 16[635] and who presented a
risk of such offending. In that context, the rationale for restricting a
person’s right to freedom of association
in this way was clear.
- 10.120 When the
ESO regime was extended to sexual offending against adults and to violent
offending, Parliament retained the condition
and explicitly stated in the
legislation that the condition applies to ESOs made both before and after the
amendment.[636]
- 10.121 This
condition is capable of seriously impairing a person’s rights — for
example, if it results in a person not
being able to associate with their own
children or whānau. Some people who are subject to ESOs will not pose a
risk of relevant
offending against people under 16. In those circumstances, the
condition is not rationally connected to the purpose of managing the
risk of
their offending. We have heard in our preliminary engagement that this condition
may also prevent a person from associating
with people in their lives who are
prosocial or who support their rehabilitation or reintegration but may also have
children. This
seems counterproductive to the objective of protecting public
safety.
- 10.122 On the
other hand, we also heard in our preliminary engagement that there are good
reasons to retain this condition as a standard
condition. Children are
vulnerable and people who are subject to ESOs have demonstrated a lack of
self-regulation — a potential
risk when that person is around children
without supervision. If a person does not pose a risk, a probation officer can
permit contact
with certain children. However, they may only allow supervised
contact, and the approval must be in writing.
QUESTION
Q41
Do you think that the requirement not to associate with persons under 16
should be removed from the standard ESO conditions?
Other issues
- 10.123 Finally,
we are interested in your views on whether there are any other issues relating
to the conditions imposed on people
who are released on parole from a sentence
of preventive detention or who are subject to
ESOs.
QUESTION
Q42
Are there any other issues relating to the conditions imposed on people who
are released on parole from a sentence of preventive detention
or who are
subject to ESOs?
CHAPTER 11
11 Variation and termination of preventive detention, extended
supervision orders and public protection orders
IN
THIS CHAPTER, WE CONSIDER:
- how a person
subject to preventive detention may be released on parole;
- how extended
supervision orders (ESOs) and public protection orders (PPOs) come to an
end;
- how parole
conditions and extended supervision conditions can be varied;
- the consequences
for breaching the conditions of parole, an ESO or a PPO; and
- issues with the
current law.
PREVENTIVE DETENTION
Release from imprisonment
- 11.1 A
person subject to preventive detention will remain in prison unless they are
granted release on parole by direction of the
New Zealand Parole Board (Parole
Board).[637] The person becomes
eligible for parole once they have served the applicable minimum period of
imprisonment (MPI) set at
sentencing.[638]
- 11.2 The Parole
Board may direct that a person be released on parole only
if:[639]
- ... it is
satisfied on reasonable grounds that the offender, if released on parole, will
not pose an undue risk to the safety of
the community or any person or class of
persons within the term of the sentence, having regard to—
- (a) the support
and supervision available to the offender following release; and
- (b) the public
interest in the reintegration of the offender into society as a law-abiding
citizen.
- 11.3 When
assessing whether the person poses an “undue risk”, the Parole Board
must consider both:[640]
(a) the likelihood of further offending; and
(b) the nature and seriousness of any likely subsequent offending.
- 11.4 The Parole
Act 2002 states that there is no entitlement to be released on
parole.[641] However, te Kōti
Matua | High Court (High Court) has said this provision must be interpreted
consistently with the New Zealand
Bill of Rights Act 1990 (NZ Bill of Rights).
If a person subject to preventive detention no longer constitutes an undue risk,
there
is no basis to restrain the person’s liberty any longer and there is
an obligation to release them from
prison.[642]
- 11.5 There is no
end date for a sentence of preventive
detention.[643] If a person is
released on parole, they are subject to recall to prison for the rest of their
life.[644]
Varying or discharging parole conditions
- 11.6 As
we discuss in Chapter 10, if the Parole Board directs release on parole, a
person subject to preventive detention will be
subject to the standard release
conditions for the rest of their life unless they are varied or discharged by
the Parole Board.[645]
- 11.7 The person
subject to parole or a probation officer can apply to the Parole Board to vary
or discharge any conditions at any
time.[646] A probation officer may
also apply to add further
conditions.[647]
- 11.8 The
legislation does not include criteria for varying or discharging
conditions.[648]
- 11.9 Recently,
the High Court has held that Parole Board decisions about varying or discharging
release conditions for a person sentenced
to preventive detention are subject to
the guiding principles of the Parole
Act.[649] When considering whether
to discharge or vary conditions, the Parole Board must apply the principle that
parolees must not be subject
to release conditions that are more onerous, or
last longer, than is consistent with the safety of the community. This requires
the
Board to assess whether the person presents an undue risk to the safety of
the community if the relevant conditions are varied or
discharged. The
assessment of risk must be sufficient to ensure that any special conditions
imposed or retained have a rational nexus
to the purposes in section 15(2) and
are reasonably necessary and
proportionate.[650]
Breaching parole conditions
- 11.10 Breaching
any standard or special conditions without reasonable excuse is an offence with
a maximum penalty of one year of imprisonment
or a fine not exceeding
$2,000.[651] Additionally,
breaching standard or special conditions can result in a person being recalled
to prison.[652]
EXTENDED SUPERVISION ORDERS
- 11.11 An
ESO may be imposed for a term of up to 10
years.[653] Before an ESO expires,
the chief executive of Ara Poutama | Department of Corrections (chief executive)
may apply for a new, consecutive
ESO.[654]
- 11.12 An ESO
expires on:[655]
(a) the date on which the ESO is cancelled;
(b) the date on which the term of the ESO expires; or
(c) if the person becomes subject to a new ESO before the expiry of an earlier
one, the commencement of the new ESO.
Cancelling an extended supervision order
- 11.13 At
any time after an ESO comes into force, the person subject to the ESO or the
chief executive may apply to the court to cancel
the
ESO.[656] The grounds on which
they may apply are that the offender poses neither a high risk of committing a
relevant sexual offence nor a
very high risk of committing a relevant violent
offence within the remaining term of the
order.[657]
- 11.14 Additionally,
if a person has not ceased to be subject to an ESO for 15 years since the date
on which the first ESO commenced,
the court must review the ESO and either
confirm the order or cancel
it.[658]
- 11.15 Time
ceases to run on an ESO and its conditions are suspended if the person is under
legal custody in accordance with the Corrections
Act
2004.[659] The time and conditions
reactivate on the offender’s statutory release
date.[660] If a person on an ESO
is detained in a hospital or secure facility under a compulsory care order or
under a compulsory treatment
order, the conditions of the ESO are suspended but
time continues to run on the
ESO.[661]
Varying or discharging extended supervision
conditions
- 11.16 The
person subject to the ESO or their probation officer may apply to the Parole
Board at any time to vary or discharge any
ESO
condition.[662] The same process
applies as for varying or discharging parole release
conditions.[663] As stated above,
the legislation does not include criteria for varying or discharging
conditions.
- 11.17 The Parole
Board must review “high-impact conditions” every two years after the
condition was imposed, confirmed
or
varied.[664] A “high-impact
condition”
means:[665]
(a) a residential condition that requires the person to stay at a specified
residence for more than a total of 70 hours during any
week; or
(b) a condition requiring the person to submit to a form of electronic
monitoring that allows their whereabouts to be monitored when
they are not at
their residence.
- 11.18 Before the
Parole Board reviews a high-impact condition, the chief executive must make a
recommendation to it on whether the
condition is still appropriate or whether it
should be varied. The person who is subject to the condition may make written or
oral
submissions to the Parole
Board.[666]
Breaching extended supervision conditions
- 11.19 Breaching
conditions of an ESO or interim supervision order (ISO) without reasonable
excuse is an offence with a maximum penalty
of two years’
imprisonment.[667]
PUBLIC PROTECTION ORDERS
- 11.20 A
PPO does not have a specified end date.
- 11.21 PPOs are
subject to annual reviews by a review panel established by the
legislation.[668] If the review
panel considers that there may no longer be a very high risk of imminent serious
sexual or violent offending by the
person subject to the PPO, it may direct the
chief executive to apply to the court for a review of the
order.[669]
- 11.22 A person
subject to a PPO may, with the leave of the court, apply to the court for a
review of the PPO.[670] The chief
executive must, in any event, apply to the court to review the continuing
justification of a PPO at five-year
intervals.[671]
- 11.23 If the
court is satisfied, on the balance of probabilities, that there is no longer a
very high risk of imminent serious sexual
or violent offending by the person
subject to the PPO, the court must cancel the PPO and impose a protective
supervision order (PSO).[672]
Protective supervision orders
- 11.24 When
the court imposes a PSO, it may include any requirements that the court
considers necessary
to:[673]
(a) reduce the risk of reoffending by the person under protective
supervision:
(b) facilitate or promote the rehabilitation and reintegration into the
community of the person under protective supervision:
(c) provide for the reasonable concerns of victims of the person under
protective supervision.
- 11.25 The chief
executive or person subject to a PSO may apply to the court at any time for a
variation or discharge of a requirement
of a
PSO.[674] The review panel also
has powers to modify a requirement of a PSO but only if the review panel is
satisfied the modification will
render the requirement less
restrictive.[675]
- 11.26 The chief
executive must apply to the court at five-year intervals for a review of the
PSO.[676]
- 11.27 The court
may cancel a PSO if, during a period of five years in which the person has been
subject to the order, the person has
neither:[677]
(a) committed any serious sexual or violent offences; nor
(b) breached any requirements included in the order.
Breaching public supervision order requirements
- 11.28 A
person who breaches any requirements included in a PSO without reasonable excuse
is liable on conviction to imprisonment for
a term not exceeding two
years.[678]
Prison detention orders
- 11.29 As
we discuss in Chapter 1, the court may make a prison detention order (PDO)
requiring a person subject to a PPO to be detained
in a prison instead of a
residence.[679] The court may make
the order only if it is satisfied
that:[680]
(a) the person would, if detained or further detained in a residence, pose such
an unacceptably high risk to themselves or to others,
or to both, that the
person cannot be safely managed in the residence; and
(b) all less restrictive options for controlling the behaviour of the person
have been considered and any appropriate options have
been tried.
- 11.30 The review
panel must review the continuing justification of a PDO at six-month
intervals.[681] The chief
executive must apply annually for the court to review the
order.[682] The person subject to
the PDO may apply, with the leave of the court, to cancel the
order.[683]
ISSUES
- 11.31 There
is little case law or commentary relating to the variation or termination of
conditions or orders. We invite feedback
on whether there are other issues we
have not raised.
Issues concerning preventive detention
Concerns that people on preventive detention do not have the
right to apply to court for review
- 11.32 Article
9(4) of the International Covenant on Civil and Political Rights (ICCPR)
provides that anyone detained should be entitled
to take proceedings
“before a court” to determine the lawfulness of the detention and
order release if the detention
is unlawful.
- 11.33 In
Miller v New Zealand (also discussed in Chapter 3), the United Nations
Human Rights Committee (UNHRC) found that the preventive detention of two
individuals
breached the ICCPR because, among other reasons, the Parole Board
did not constitute a court for the purposes of article
9(4).[684] The UNHRC reasoned that
the Parole Board has no jurisdiction to review the legality of the detention but
rather has an “administrative
task” of assessing risk. In the
opinion of the UNHRC, the right to appeal to a court also falls short of the
requirements of
article 9(4) because judicial review of a Parole Board decision
does not address considerations as to whether the detention is arbitrary
in
nature. The UNHRC concluded that Aotearoa New Zealand had failed to show
“judicial review over the lawfulness of detention”
was available to
challenge continued detention pursuant to article 9(4) of the
ICCPR.[685]
- 11.34 The UNHRC
appeared to conclude that there is no other right under New Zealand law to
challenge the legality of detention in
court other than the Parole Board’s
risk assessment and judicial review of those decision. The correct position is
that, aside
from appeal rights against a sentence, a person subject to
preventive detention can apply to court by way of habeas
corpus.[686]
- 11.35 The
broader underlying issue, however, is that, when considering a habeas corpus
application, New Zealand courts will not apply
the ICCPR’s standards of
what constitutes a “lawful”
detention.[687] Rather, the courts
will determine whether the detention has been imposed and reviewed in accordance
with the Sentencing Act 2002
and Parole Act. We discuss the mismatch between the
legal standards of preventive detention under the ICCPR and New Zealand’s
domestic law in Chapter 3.
- 11.36 Aside from
the underlying issue that the law applying to preventive detention in Aotearoa
New Zealand is different to the standards
under the ICCPR, we are interested in
feedback on the UNHRC’s views that the Parole Board does not satisfy the
requirements
of article 9(4) of the ICCPR.
QUESTION
Q43
Should the courts have greater responsibilities for reviewing preventive
detention instead of leaving the task of determining release
on parole to the
Parole Board?
The provisions governing release on parole do not sit
comfortably with human rights law
- 11.37 The
courts and human rights bodies have considered when the indeterminate detention
of a person for community protection purposes
amounts to arbitrary detention
under human rights law. We discuss this matter more fully in Chapter 3. In
summary, once a punitive
period of imprisonment has been served, compelling
reasons relating to community safety are required to justify the person’s
ongoing detention and avoid a finding that the detention is
arbitrary.[688]
- 11.38 In
Vincent v New Zealand Parole Board, the High Court explained further that
the test for release on parole (whether a person subject to preventive detention
is an “undue
risk”) can be interpreted consistently with the NZ Bill
of Rights.[689] The Court said the
test is subject to an “implicit proportionality assessment” that
requires the Parole Board to weigh
the risk to community (measured in the
likelihood, nature and seriousness of possible further offending) against the
person's interest
in retaining
liberty.[690] The Court also held
that the provision in section 28(1AA) of the Parole Act that a prisoner has no
entitlement to release on parole
must also be interpreted consistently with the
NZ Bill of Rights. The Court explained, that if a person imprisoned on
preventive
detention no longer constitutes an undue risk, there is no basis to
maintain the detention. The state, having no basis to restrain
the
person’s liberty any longer, has an obligation to release that person
within as short a period of time as is reasonably
possible.[691]
- 11.39 In our
preliminary view, it is desirable that the wording of the legislative test
reflects the approach the courts apply in
practice. This is despite the High
Court’s view in Vincent that section 28 of the Parole Act can be
interpreted consistently with the NZ Bill of Rights. It may be preferable that
the tests:
(a) are expressly worded to recognise that a person detained beyond the punitive
period of the preventive detention sentence should
only be denied parole when
there are compelling reasons relating to community safety; and
(b) omit the wording that a person on preventive detention has “no
entitlement to be released on parole”.
QUESTION
Q44
Do you think the test for release from detention for people sentenced to
preventive detention should expressly recognise their right
to liberty except
when justified by compelling reasons relating to community safety?
Difficulties with the suggestion that the test for release on
parole changes over time
- 11.40 Where
a person is in prison subject to a sentence of preventive detention and is
eligible for parole, the Parole Board may grant
release on parole if satisfied
on reasonable grounds that the person will not pose an undue risk to the safety
of the community.
- 11.41 Based on
the wording, the test appears to be static — the same standard applies
whether the person is being considered
for parole for the first time or a
subsequent time.[692]
- 11.42 However,
when examining the right to liberty and protection against arbitrary detention
in the context of preventive detention,
the courts and human rights bodies have
suggested the test for justifying the detention changes over time. In
Miller, the UNHRC said that, as the period of preventive detention
increases, the state has an “increasingly heavy burden” to
justify
the continued detention.[693] The
UNHRC added that “a level of risk which might reasonably justify a short
period of preventive detention, may not necessarily
justify a longer period of
preventive detention”. Similarly, the High Court in Vincent v New
Zealand Parole Board held that a NZ Bill of Rights-consistent interpretation
of the test for parole required a proportionality assessment. The Court referred
to the possibility that an “increasing justification” may be needed
for ongoing and lengthy periods of
detention.[694]
- 11.43 It is
difficult to make sense of the UNHRC’s views that a certain level of risk
might justify a “short-term preventive
detention” but not a longer
period. If an increasing justification is required the longer the detention
lasts, this suggests
that:
(a) at the point the court imposes preventive detention, the justification for
imposing an indeterminate sentence is lower; and
(b) if the risk a person poses remains static, the increased justification may
not be met, and they would be released notwithstanding
the likelihood that they
will commit serious offences.
- 11.44 This could
result in a situation where a person posing lesser risk is subject to detention
but a person posing higher risk is
released from detention. However, in the
context of detention under the intellectual disability legislation, te Kōti
Pīra
| Court of Appeal has
said:[695]
- We do not see
this as material other than in finely balanced cases. Where a care recipient
constituted a significant danger to the
public and compulsory care was necessary
for community protection, the liberty interest of the care recipient, even if he
or she
had been in care for a long period, would not outweigh the community
protection interest.
- 11.45 Our
preliminary view is that, rather than requiring increasing justification for
detention over time, the initial justification
for imposing preventive detention
should be high. Detention for purely preventive reasons is always a very serious
matter. Subsequent
reviews should assess whether ongoing detention is justified
and proportionate to the risks a person poses.
QUESTION
Q45
Do you think the test for release from detention for people sentenced to
preventive detention should require “increasing justification”
over
time?
Issues concerning extended supervision orders
The test for cancelling an extended supervision order differs
from the test for imposing an extended supervision order
- 11.46 Section
107I(2)(b) of the Parole Act provides that, to impose an ESO, the court must be
satisfied that “either or both of the following apply”:
(a) There is a high risk that the offender will in future commit a relevant
sexual offence.
(b) There is a very high risk that the offender will in future commit a relevant
violent offence.
- 11.47 In
contrast, section 107M provides that the court may cancel the ESO “if the
applicant satisfies the court, on the basis
of the matters set out in section
107IAA, that the offender poses neither a high risk of committing a
relevant sexual offence, nor a very high risk of committing a relevant violent
offence”.
- 11.48 The
italicised words show the key differences between the two tests. The wording of
section 107M seems to require the applicant
to satisfy the court that neither
ground from section 107I(2)(b) applies, even if the ESO has only been imposed in
respect of one
of the grounds. This seems to place a potentially unnecessary and
difficult onus to discharge.
QUESTION
Q46
Do you think that the test for cancelling an ESO should mirror the test for
imposing an ESO?
No provision for what happens when a person subject to an
extended supervision order becomes subject to an interim detention order
or a
public protection order
- 11.49 The
Parole Act is silent on what happens to an ESO when the person subject to the
ESO becomes subject to an interim detention
order (IDO) or a PPO. This seems to
be a legislative oversight.
- 11.50 In our
preliminary view, during the course of an IDO, an ESO should be suspended. That
is because the order is intended to be
a temporary holding position pending the
determination of the PPO
application.[696] It should then
resume if the court refuses to grant a PPO.
- 11.51 In our
preliminary view, an ESO should come to an end and not resume once a final PPO
is granted. That is because a PPO provides
for a form of indeterminate detention
and, following release, the person is then subject to a PSO. Under the PSO, a
person will be
subject to ESO-like conditions. It would therefore be unnecessary
for the ESO to resume.
QUESTIONS
Q47
Do you agree that an ESO should be suspended if an interim detention order is
made?
Q48
Do you agree that an ESO should come to an end if a PPO is ordered?
Issues relating to the timing of ESO reviews
- 11.52 Section
107RA(2) of the Parole Act provides that the court must review an ESO 15 years
after the date on which a person first
became subject to an ESO if they have
“not ceased” to be subject to an ESO since first becoming subject to
an ESO. It
is not clear from the Act when an ESO starts or ceases in several
scenarios. First, if a person is placed on an ESO after being subject
to an ISO,
it is not clear when the ESO starts for the purposes of the review obligations.
Similarly, if a person is made subject
to an ISO in between consecutive ESOs, it
is not clear from the Act if the person has “ceased” to be subject
to an ESO.
Secondly, if a person on an ESO is made subject to an IDO or a PPO,
it is not clear from the Act if the ESO ceases.
- 11.53 In our
preliminary view, these issues could be easily resolved:
(a) It would make sense to include any time spent on an ISO when determining
when the court should review an ESO.
(b) If a person is made subject to an IDO but a PPO is not subsequently granted,
the time spent on the IDO could be included when
determining when the court
should review an ESO.
(c) Consistent with our suggestion that an ESO should terminate when a final PPO
is imposed, ESO review obligations should also terminate
when the court makes a
PPO.
It is unclear whether the Parole Board can vary an intensive
monitoring condition
- 11.54 Section
107IAC of the Parole Act states that, when making an ESO, the court may at the
same time make an order requiring the
Parole Board to impose an intensive
monitoring (IM) condition. The order must specify the maximum duration of the IM
condition, which
must be no longer than 12
months.[697]
- 11.55 If the
court makes the order, the Parole Board must impose the IM
condition.[698] However, the
Parole Board may set the duration of the condition (up to the maximum specified
by the court) and its details (for example,
how many hours per day the person
must be monitored).[699]
- 11.56 Section
107O of the Parole Act allows the Parole Board to vary or discharge ESO
conditions. The provision contains an
exception:[700]
- (1A) However,
the Board may not vary any condition of an extended supervision order in a way
that would be contrary to any order
made under section
107IAC requiring the imposition of an intensive monitoring
condition.
- 11.57 We assume
that the purpose of the provision is to avoid the Parole Board circumventing a
court order to impose an IM condition
by imposing it and then discharging it.
- 11.58 It is
unclear whether or to what extent the Parole Board may vary an IM condition. For
example, the court could order the Parole
Board to impose an IM condition and
specify a maximum term of 12 months. The Parole Board would have discretion to
impose the IM
condition for six months. It is not clear whether the Parole Board
could subsequently vary the IM condition by reducing the term
to four months or
if this would amount to varying the condition “in a way that would be
contrary” to the order of the
court.
- 11.59 As far as
we are aware, there is no case law on the interpretation of section 107O(1A). It
is uncertain whether the drafting
of the provision is an issue requiring
legislative amendment.
QUESTION
Q49
Do you think that the law relating to whether the Parole Board can vary an IM
condition needs clarification?
Concern that breaching an ESO condition is an offence
- 11.60 Breaching
an ESO condition is an offence punishable by up to two years’
imprisonment.[701]
- 11.61 There are
concerns about whether conviction and sentence is an appropriate measure for
ensuring compliance with ESO conditions.
- 11.62 On the one
hand, it may be argued that it is desirable that breaching an ESO condition be
an offence. ESO conditions are imposed
for the purposes of reducing the risk of
reoffending, facilitating or promoting rehabilitation and reintegration or
providing for
the reasonable concerns of
victims.[702] Breaching a
condition imposed for these purposes could indicate unmanaged risk. In some
cases, the breach may consist of offence-paralleling
behaviour.[703] It is necessary to
have robust measures to respond to breaches yet for the court to have
flexibility to respond to the breach in
the way it considers most appropriate.
The courts may impose a sentence from the full range of sentences, from
conviction and discharge
to home detention to imprisonment. Convicting and
sentencing a person for breaching a condition may deter that person or others
from
breaching conditions in future.
- 11.63 On the
other hand, it may be argued that breaching an ESO condition should not be an
offence:
(a) An ESO is a second punishment (as we discuss in Chapter 3). Convicting and
sentencing a person for breaching an ESO condition
amounts to punishing a person
for breaching the restrictions of a second punishment.
(b) Research shows that, for high-risk people, the process of desistance
(stopping offending) is slow and can take years to become
consolidated.[704] During this
process, a person may make considerable progress but nevertheless make
“minor slip-ups” (compared to their
previous offending), which could
include breaches of conditions. Convicting and sentencing a person for breaches
of this nature may
not only fail to recognise their progress but have a
detrimental effect on it.[705]
(c) Convictions for breaching conditions may result in an unfairly inflated
assessment of risk for people subject to ESOs. Most risk
assessment tools take
into account the number of previous convictions a person has. If a person
subject to an ESO breaches a condition
by committing an offence, they may be
charged with both breaching the condition and the substantive offence. This
could give the
appearance they pose a greater risk of reoffending than a person
who has engaged in identical behaviour while subject to a court
order (for
example, a bail condition) but who is not subject to an ESO.
- 11.64 There are
alternative measures to ensure compliance with conditions and respond to risk
that do not involve conviction and sentence.
An example may be found in the bail
system. If a person is charged with an offence, the court may release them on
bail with conditions
imposed to ensure that the person does not commit any
offence while on bail.[706]
Breaching a bail condition is not an offence. However, if a person breaches a
bail condition, they may be arrested and brought before
the court to reconsider
their bail.[707] Depending on how
serious the breach is and whether it indicates an increased risk of offending,
the options available to the court
include releasing the person on the same bail
conditions, varying the bail conditions or remanding the person in custody. We
note
that, unlike a person on bail, a person subject to an ESO cannot be
remanded in custody for breach of conditions if it is not an
offence. However,
conditions could be varied to manage any risk. Where a breach of conditions
indicated that a person could not be
managed safely in the community, the chief
executive could apply for a PPO and may apply for an IDO until the application
is determined.[708]
- 11.65 If a
person has breached a bail condition without reasonable excuse, the court has
discretion to certify the breach and to have
the nature of the condition and the
breach entered in the court
record.[709] The court may decide
not to direct the breach to be entered in the court record if the breach is of
such minor nature that it does
not warrant being taken into account when
considering any further bail
applications.[710]
- 11.66 If a
person breaches their bail conditions by committing another offence (for
example, committing an assault in breach of a
condition not to use violence on
any person), they may be charged with the offence and have the breach recorded.
As well as breaches,
a person’s bail record shows the offences of which
they have been charged or convicted that were committed while they were
subject
to bail conditions. When the court is considering whether to grant bail or
remand a person in custody, the court may take
into account whether the person
has a history of offending while on bail or breaching bail
conditions.[711]
- 11.67 The data
we have received from Ara Poutama | Department of Corrections shows that,
between 1 July 2005 and 21 September 2022,
of the 537 individuals subject to
ESOs, 355 were convicted of at least one breach of their
ESO.[712] However, we cannot draw
any conclusions from this data about whether it is appropriate for breaching an
ESO condition to be an offence.
We do not have information about the conditions
or the circumstances of the breaches that resulted in convictions or any data
about
breaches that did not result in convictions.
QUESTION
Q50
Do you think that breaching an ESO condition should be an offence or that
another mechanism should be used for ensuring compliance
with ESO
conditions?
Issues concerning public protection orders
- 11.68 We
have discerned few issues with the way PPOs cease. The lack of critical
commentary is likely because so few people have been
subject to a PPO and to
date, as far as we are aware, no person has yet been placed on a PSO.
- 11.69 We would
value feedback on whether there are any other issues relating to how PPOs
cease.
QUESTION
Q51
Are there any issues relating to the variation or termination of PPOs?
Part
Six:
Proposals for
reform
CHAPTER 12
12 Proposals for reform
IN
THIS CHAPTER, WE CONSIDER:
- proposals to
reform the law applying to preventive detention, extended supervision orders
(ESOs) and public protection orders (PPOs).
INTRODUCTION
- 12.1 This
chapter presents high-level proposals for reforming the law relating to the
preventive regimes. These proposals seek to
address the main issues raised
across this Issues Paper.
- 12.2 Our aim in
presenting these proposals is to receive initial feedback on the advantages and
disadvantages of each proposal. We
will use the feedback we receive on these
proposals as we develop comprehensive options for reform. We will present these
options
in a Preferred Approach Paper, which we will publish in mid-2024 for
further consultation.
- 12.3 We discuss
the proposals in this chapter separately on an issue-by-issue basis. Most
proposals could be implemented alongside
any combination of other proposals.
Sometimes we note where, in our view, a particular combination of proposals
would or would not
work well.
- 12.4 It is
helpful to explain briefly some of the terms we use in this chapter:
(a) Some proposals envisage the continuation of preventive detention, ESOs and
PPOs with amendment. For these proposals, we use the
language of preventive
detention, ESOs and PPOs.
(b) Some proposals instead contemplate the introduction of new preventive
measures to replace the current preventive regimes, although
those measures may
resemble preventive detention, ESOs and PPOs. Where a new form of preventive
measure is envisaged, we describe
them as “new preventive measures”.
(c) Some proposals could apply to preventive detention, ESOs and PPOs in their
current (or amended) form or to new preventive measures.
We therefore use the
term “preventive measures” to mean preventive detention, ESOs and
PPOs or new preventive measures.
PROPOSAL TO FACILITATE TINO RANGATIRATANGA AND ENABLE
MāORI TO LIVE ACCORDING TO TIKANGA
PROPOSAL
P1
In protecting the community from serious reoffending, the law could better
enable Māori to live according to tikanga and could
facilitate tino
rangatiratanga. To achieve this:
- the
Government could instigate, support and resource the development of
Māori-designed and Māori-led initiatives through
which people who are
at risk of serious reoffending after the completion of a determinate prison
sentence can be safely managed to
prevent harm to the community; and
- when
the court considers imposing preventive measures, or when the Parole Board
considers what conditions to impose on a person on
an ESO, the law could:
- promote
opportunities to address the court/Parole Board for the person’s
whānau, hapū or iwi, or any person who has
a shared sense of
whānau identity around a particular kaupapa with the person; and
- require
the court/Parole Board to consider whether and how the person can access
Māori-designed and Māori-led initiatives.
- 12.5 This
proposal responds to our preliminary view discussed in Chapters 2 and 10 that
the law is inconsistent with tikanga Māori
in several respects and fails to
facilitate tino rangatiratanga as best it could.
Promote the development of Māori-designed and
Māori-led initiatives
- 12.6 In
our preliminary view, the best way the law can enable Māori to live
according to tikanga and facilitate tino rangatiratanga
is through the promotion
of Māori-designed and Māori-led initiatives. These initiatives would
be designed to safely manage
those at risk of serious reoffending after they
complete a determinate prison
sentence.[713]
- 12.7 From our
preliminary engagement, we are aware of a small number of Māori groups
providing kaupapa Māori rehabilitation
programmes both within prisons and
for those who have been released from prison, including some who are on ESOs.
This proposal envisages
an upscaling of those types of initiatives and the
development of entirely new ones, to the point where Māori providers, such
as iwi, hapū and non-governmental organisations are able to provide the
preventive measures needed to keep the community safe.
We see this proposal as
firmly within the scope of the Hōkai Rangi strategy released by Ara
Poutama | Department of Corrections. The strategy requires new approaches in
which the delivery of functions
and responsibilities are shared with Māori
partners.[714] It requires the
exploration of new opportunities, such as the possibility of iwi-led
administration of sentences and the development
of new models of working with
Māori service providers.
- 12.8 Under this
proposal, the Government would support Māori to design initiatives that can
effectively implement the preventive
measures needed, thereby facilitating tino
rangatiratanga. These initiatives may be tikanga-based and founded within te ao
Māori.
They may also draw on other approaches such as best clinical
practice. We envisage that the initiatives would facilitate a person’s
rehabilitation and prioritise important aspects of tikanga, such as supporting
relationships with whānau, working to build the
person’s mana and
tapu, and achieving restoration into the community. These initiatives could be
run independently by Māori,
or they could be run in partnership or within
facilities operated by Ara Poutama. Once developed, it could be for the
Māori
providers to decide which people would be eligible for the
initiative, for example, whether it is for Māori of a particular
iwi, all
Māori or all people both Māori and non-Māori. We note, however,
that Māori-led programmes that are based
on tikanga should occur in a
fundamentally Māori context, and there are limits on the extent to which
programme requirements
could be prescribed by legislation and delivered in a
kāwanatanga context.
- 12.9 The first
step to implementing this proposal would be for the Government to make the
development of Māori-designed and Māori-led
initiatives a key
priority. Their development would need to be properly resourced. As explained,
we consider this approach aligns
with the Government’s commitments made in
Hōkai Rangi.
Require consideration of Māori-designed and
Māori-led initiatives
- 12.10 Under
this proposal, the law could promote opportunities for certain people to address
the court or New Zealand Parole Board
(Parole Board). In preliminary engagement,
several people emphasised that a person’s whānau, hapū or iwi or
any person
who has a shared sense of whānau identity around a particular
kaupapa (such as urban Māori initiatives) should provide
input to the court
when it considers imposing preventive measures. The court could receive
additional information in the form of
cultural reports. We discuss this further
in Chapters 8 and 10. The law currently enables the court to receive a wide
range of evidence
and information when considering whether to impose preventive
detention, an ESO or a PPO.[715]
This proposal envisages something stronger, such as imposing positive
requirements on the party applying for the order to have sought
the views of the
relevant individuals or to have given them notice of the ability to address the
court.[716]
- 12.11 The law
could expressly require that a court, when it considers imposing preventive
measures, must consider whether and how
a person can access Māori-designed
and Māori-led initiatives. Similarly, when the Parole Board considers what
conditions
to impose on a person managed in the community on an ESO, it would
consider access to Māori-designed and Māori-led initiatives.
There is
already limited provision for this under the current law. For example, it is
possible for a person on parole or subject
to an ESO to be placed within the
care of a an iwi, hapū, whānau or marae or an ethnic or cultural group
as part of a requirement
to attend a
programme.[717] This proposal
envisages a strengthening of the current law by requiring the court or Parole
Board to consider Māori-designed
and Māori-led initiatives, rather
than the option simply being available.
- 12.12 The law
could provide direction to the court by requiring it to take into account the
views of the person’s kin or kaupapa
relations, or any other cultural
information, when considering:
(a) the extent to which the person poses risks of serious reoffending;
(b) if a preventive measure should be imposed, whether and how the person can
access Māori-designed and Māori-led initiatives;
and
(c) any other matter the court considers relevant.
- 12.13 Similarly,
the law could provide direction to the Parole Board to take into account the
views of the person’s kin or kaupapa
relations, or any other cultural
information, when considering:
(a) what conditions to impose on parole or an ESO;
(b) whether and how the person can access Māori-designed and Māori-led
initiatives; and
(c) any other matter the Parole Board considers relevant.
- 12.14 It may
also be desirable for the law to set out the relevant principles of tikanga to
guide the court and Parole Board as they
determine these matters. We intend to
undertake further work and consultation in the next stage of this review to
assess feasibility
and identify what those specific principles are and how they
should be framed. We recognise there are several important matters to
work
through, such as the extent to which tikanga can and should be incorporated into
the legislation, whether the courts and Parole
Board are well placed to apply
tikanga and the implications for consistency across the law and its application.
We welcome any preliminary
comment on the desirability of setting out the
relevant principles of tikanga in the legislation and how that might be framed.
PROPOSAL TO MANAGE PEOPLE DETAINED BEYOND A DETERMINATE PRISON
SENTENCE FOR PREVENTIVE REASONS IN DIFFERENT CONDITIONS TO PRISON
PROPOSAL
P2
Legislation that enables people to be detained after the completion of a
determinate sentence to prevent them committing further serious
offences could
provide that:
- people
detained must have as much autonomy and quality of life as reasonably
possible;
- people
detained must be managed in conditions that are separate and distinct from the
conditions in which people serve determinate
prison sentences;
- rehabilitation
and reintegration are central objectives of the law; and
- people
detained are guaranteed therapeutic and rehabilitative
interventions.
- 12.15 This
proposal addresses the law that could govern the nature and conditions of
detention for preventive reasons after a person
completes a determinate
sentence. It assumes that the law will continue to provide detention as a
preventive measure, whether that
be preventive detention and/or PPOs or new
preventive measures. If preventive detention is retained, in line with Proposal
6 below,
the requirements of this proposal could apply after the person
completes the minimum period of imprisonment (MPI) of their preventive
detention.
- 12.16 We note,
however, that elsewhere in this Issues Paper, we have sought feedback on the
extent to which detention as a preventive
measure is a non-arbitrary and
justified limitation on individual rights and freedoms. The feedback we receive
on this question may
cause us to conclude that detention is not justified or not
justified in its current form. Nevertheless, for the purposes of this
proposal,
we assume that detention of some form will be continued as a preventive measure
in any reformed law.
- 12.17 The aim of
this proposal is to respond to the human rights concerns raised in Miller v
New Zealand and Chisnall v Attorney-General (we discuss these
concerns further in Chapter
3).[718] In Miller, the
United Nations Human Rights Committee (UNHRC) explained that people subject to
preventive detention following a punitive prison
term must be managed in
conditions that are distinct from the conditions for convicted prisoners serving
punitive sentences.[719] The
detention must be aimed at the detainee’s rehabilitation and reintegration
into society.[720] Because people
subject to preventive detention remain in prison conditions with those serving
determinate sentences, the UNHRC found
that the cases of preventive detention in
Miller were in breach of the protection against arbitrary detention under
the International Covenant on Civil and Political Rights (ICCPR).
- 12.18 In
Chisnall, te Kōti Pīra | Court of Appeal (Court of Appeal) held
that the legislation governing PPOs “must guarantee therapeutic
and
rehabilitative interventions by the state in order to avoid the conclusion that
it is penal”. Because the Public Safety
(Public Protection Orders) Act
2014 (Public Safety Act) qualifies a person’s right to receive
rehabilitation with the requirement
that “the treatment has a reasonable
prospect of reducing risk to public safety posed by the
resident”,[721] the Court of
Appeal concluded that PPOs were penalties thereby infringing the protection in
the New Zealand Bill of Rights Act 1990
(NZ Bill of Rights) against second
punishment.[722]
- 12.19 In light
of these decisions, this proposal envisages that a person detained for
preventive reasons could be detained in a separate
and distinct facility that is
oriented to facilitate as much autonomy and quality of life as can be reasonably
provided while ensuring
community safety. The predominant aim of detention at
those facilities, alongside community safety, would be the therapeutic
treatment,
rehabilitation and reintegration of the person detained.
- 12.20 Precedent
exists for this approach to detention. The German Criminal Code, to which the
Court of Appeal in Chisnall contrasted the PPO regime, provides that
people preventively detained in Germany must reside in facilities that are
separate to prisons.[723] The
facilities must offer comprehensive, individualised and intensive treatment
tailored to the detainee’s needs. We discuss
the German law further in
Chapter 3.
- 12.21 We also
note that the Matawhāiti residence, in which people subject to PPOs are
detained, provides better conditions than
those provided to people on preventive
detention in prison. For example, residents at Matawhāiti have a
well-maintained communal
area with a lounge and shared kitchen. They are
accommodated in individual residential units each with a lounge, kitchenette,
bathroom
and shower. Residents wear their own clothes. They cook for themselves.
They go on supervised outings. While the qualified rights
to rehabilitative
treatment are an issue for people on PPOs, the Matawhāiti residence
provides a more rights-compliant environment
than detention in prison
conditions.
- 12.22 We
recognise the significance of the proposal to manage people detained in
different conditions to prison. There are considerable
resource and
infrastructure implications. If implemented, careful consideration of
transitional provisions would be required.
- 12.23 The
guarantees of therapeutic and rehabilitative treatment under this proposal would
require a substantial reworking of the
duties as they currently exist under the
Corrections Act 2004 and the Public Safety Act. The provision of treatment under
the Corrections
Act must be “reasonable and practicable in the
circumstances within the resources
available”[724] and is
provided to those prisoners who, in the opinion of the chief executive of Ara
Poutama | Department of Corrections, “will
benefit from those
programmes”.[725] As noted,
a person on a PPO is entitled to receive treatment if it reduces the risks that
person poses to public safety. This proposal
contemplates a reorientation from
an approach that sees treatment as an extension of the goal of community safety
to something guaranteed
as of right to persons detained for preventive reasons.
It requires sufficient commitment of resource to ensure a person is provided
with appropriate treatment options. It may be that individual treatment options
must be developed if standard approaches prove
inadequate.[726]
ALTERNATIVE PROPOSALS FOR WHEN A COURT COULD IMPOSE PREVENTIVE
MEASURES
PROPOSALS
P3A
Preventive detention remains a sentence. A court could impose an ESO at
sentencing or as a post-sentence order at the expiry of a
person’s
determinate sentence. PPOs remain post-sentence orders.
P3B
ESOs and PPOs cease to be post-sentence orders. Instead, at sentencing, a
court would impose an ESO or a PPO. To take effect at the
expiry of the
person’s determinate sentence, the court must confirm any ESO or PPO it
imposed at sentencing. Preventive detention
is repealed.
P3C
Preventive detention is repealed. Instead, if a person must be detained to
ensure community safety, the detention must be imposed
as a post-sentence order.
ESOs would remain a post-sentence order.
- 12.24 These
proposals consider the appropriate point for a court to impose a preventive
measure. In Chapter 3, we discuss the Court
of Appeal’s findings in
Chisnall that ESOs and PPOs are second penalties (and therefore in breach
of the NZ Bill of Rights) because they are post-sentence orders
instead of being
imposed at time of sentencing by the sentencing court. In Chapter 8, however, we
note that preventive detention
requires an assessment of the risk the person
will seriously reoffend at the time they will finish a determinate sentence.
That may
be several years in the future. Predictions of a person’s future
risk at sentencing are likely to be less accurate than assessments
made at the
end of the sentence. In particular, assessments of future risk at sentencing
cannot factor in how a person responds to
rehabilitation treatment during their
prison sentence.
- 12.25 These
alternative proposals present different points when a court could impose a
preventive measure.
- 12.26 Proposal
3A largely retains the status quo. Preventive detention remains a sentence. PPOs
remain a post-sentence order. The
key change is that ESOs could be imposed at
sentencing as well as a post-sentence order. The main advantage of enabling a
court to
impose an ESO at sentencing is it may avoid the concerns that an ESO
that is imposed as a post-sentence order is a form of second
punishment.
Proposal 3A does not, however, address the concern about the risk of
inaccurately predicting a person’s risk at
sentencing compared to the end
of the sentence.
- 12.27 Proposal
3B is a hybrid approach. It enables the court to impose ESOs and PPOs at the
time of sentencing. To take effect, however,
the court must confirm the measure
at the end of the person’s sentence. Because the court at sentencing could
impose a PPO,
there would be an unnecessary double-up with preventive detention.
Preventive detention could therefore be repealed.
- 12.28 This
proposed approach may address the concern that post-sentence orders constitute
second punishment. The sentencing court
would impose an ESO or a PPO when
finally disposing of the criminal proceedings in respect of the qualifying
offending (albeit the
ESO or PPO would need to be confirmed at the end of the
sentence).
- 12.29 By
requiring the court to confirm the order at the end of sentencing, changes in
the person’s risk profile can be taken
into account. If a person no longer
poses the required level of risk, the court would not confirm the order.
- 12.30 The main
disadvantage with Proposal 3B is there would be no ability to impose
post-sentence preventive measures on people who
have not been made subject to a
preventive measure at sentencing. The risks a person poses may not be known
until late in their sentence,
for example, depending on how they have responded
to treatment during their sentence. Further, because there is only one
opportunity
to obtain a preventive measure, it is possible ESOs and PPOs may be
sought too readily at sentencing.
- 12.31 Proposal
3C would repeal preventive detention as a sentence and move entirely to
post-sentence orders. The main advantage of
this option is that the risk
assessment would be more accurate as the court would not be required to make
orders to detain people
based on what their risks may be some time in the
future.
- 12.32 This
proposal would, however, be vulnerable to a finding that post-sentence orders
remain a second punishment and inconsistent
with the NZ Bill of Rights. In our
view, there are several points that may mitigate this concern:
(a) If Proposal 2 is implemented, post-sentence detention would have a central
rehabilitative and therapeutic focus. This may change
the character of the
detention so it is no longer considered a penalty.
(b) Some people may consider it better to subject a person to a form of second
punishment based on more accurate risk assessment
than unnecessarily imposing
measures at sentencing based on a less accurate assessment.
(c) A person eligible for a post-sentence order because of their qualifying
offending could be notified at sentencing of the possibility
that a
post-sentence order may be imposed at the sentence expiry. While that may not
fully address the problem of double punishment,
it could alleviate the issue by
making people aware at the time they are sentenced of the possibility of
post-sentence preventive
measures.
- 12.33 Ultimately,
to adopt any proposal, we would need to be satisfied that any limit on rights
under the NZ Bill of Rights, like
the protection against second punishment, is
demonstrably justified.
PROPOSALS
P4A
ALTERNATIVE PROPOSALS TO ADDRESS THE FRAGMENTATION OF THE
REGIMES
Retain preventive detention, ESOs and PPOs within
their existing statutory regimes but make amendments to address the
fragmentation
of the law by:
- requiring
the court to impose the least restrictive preventive measure necessary to
protect the community from the risk the person
will commit further serious
violent or sexual offences;
- removing
barriers that currently prevent a court from imposing the least restrictive
measures, specifically by:
- enabling
a person subject to preventive detention to be eligible for an ESO;
- enabling
the court to hear an application for an ESO and a PPO at the same time;
and
- treating
PPOs as a criminal and/or parole matter for the purposes of court procedure and
legal aid entitlements.
P4B
Repeal sections 87–90 of the Sentencing Act 2002, Part 1A of the Parole
Act 2002 and the Public Safety (Public Protection Orders)
Act 2014. In their
place enact a single statutory regime to govern all preventive measures.
The new statute could provide for a gradation of preventive measures with a
requirement that the court impose the least restrictive
measure necessary to
protect the community from the risk the person will commit further serious
violent or sexual offences.
- 12.34 These
proposals respond to the issues raised in Chapter 4 regarding the fragmentation
of the law across three statutory regimes.
- 12.35 Proposal
4A retains the existing regimes but proposes amendments to deal with the main
issues caused by the fragmentation of
the law.
- 12.36 Proposal
4B goes further and proposes a new single statutory regime in place of the
existing legislation. This approach could
better facilitate the courts’
ability to consider and order the most appropriate and least restrictive
preventive measure in
each case. It would, however, be a significant change to
the law. Most notably, it would take preventive detention out of the Sentencing
Act 2002, meaning it should not continue as a sentence. That may, however, be
appropriate because preventive measures could have
different purposes and
principles to sentencing generally, with a narrower focus on community
protection and therapeutic and rehabilitative
treatment (see Proposals 2 and 5).
- 12.37 A possible
hybrid approach that we have not listed as a proposal but could be considered is
to retain preventive detention within
the Sentencing Act but bring the ESO and
PPO regime together into a single post-sentence order legislative regime.
- 12.38 It should
also be noted that the time at which a preventive measure is imposed is directly
linked to the advantages of a single
statutory regime. For example, if
preventive measures were to be imposed only as post-sentence orders (Proposal
3C), a single statutory
regime might be more suitable.
PROPOSAL TO REFORM PREVENTIVE DETENTION IF IT CONTINUES AS A
SENTENCE
PROPOSAL
P5
If the law continues to provide for preventive detention as a sentence, the
law could be reformed to provide that:
- the
minimum period of imprisonment (MPI) for preventive detention must reflect the
full term of the determinate sentence that would
have been imposed for the
qualifying offending had the preventive detention sentence not been imposed;
- on
the expiry of the MPI, the justification for the ongoing detention must be
regularly and periodically reviewed and the person subject
to detention must be
managed in the conditions described in Proposal 2;
- the
provisions governing reviews must require that compelling reasons are needed to
justify the ongoing detention; and
- the
person subject to preventive detention would be eligible for an
ESO.
- 12.39 This
proposal considers changes that could be made to preventive detention to
demarcate more clearly the first and second periods
of the sentence in
accordance with the human rights jurisprudence discussed in Chapter 3. As we
note, this distinction is not currently
found in the Sentencing Act or Parole
Act 2002. The UNHRC has, however, repeatedly stated that the distinction between
the first
and second period is required for consistency with article 9 of the
ICCPR.
- 12.40 Proposal 5
identifies the first period by requiring an MPI for preventive detention that
reflects the full determinate sentence
that would have been imposed in respect
of the qualifying offending but for the preventive detention sentence. This is
to reflect
the “just deserts” or punitive part of the sentence the
person is required to serve for the qualifying offending. The
proposal also
assumes the person would serve the full determinate sentence and would not
satisfy the test for release on parole before
the sentence expiry owing to the
risks they would reoffend.
- 12.41 After the
MPI has expired, the person detained must be managed in conditions described in
Proposal 2. At this point, the ongoing
detention in those conditions must be
periodically and regularly reviewed.
- 12.42 Lastly, in
line with the point stressed throughout this Issues Paper that a court should
impose the least restrictive preventive
measure available, people on preventive
detention would be eligible for an ESO. It is possible that, if a person on
preventive detention
could be safely managed in the community on an ESO with the
necessary conditions, they may need to spend less time detained. This
would seem
to be a less restrictive approach. If a person on preventive detention becomes
subject to an ESO, the ESO would take effect
in place of the parole conditions
and eligibility for recall that otherwise applies to people on preventive
detention released on
parole.
PROPOSALS FOR REFORM RELATED TO ELIGIBILITY FOR PREVENTIVE
MEASURES
PROPOSAL
P6
Proposal to reform the age of eligibility for preventive
detention
If the law continues to provide for preventive
detention as a sentence, the law could provide that a person must be aged 25
years
or older at the time of conviction for the qualifying offence in order to
be eligible for preventive detention.
- 12.43 This
proposal addresses the issues we discuss in Chapter 5 relating to risk
assessment of young adults and the impact of indeterminate
sentences on young
adults.
- 12.44 Regions of
the brain involved with controlling emotions, resisting temptation and
considering consequences continue to develop
until 25 years or older. While this
development can result in risk-taking, it can also make young adults more
amenable to rehabilitation.
Developmental changes can make estimating long-term
risk, as is required for preventive detention, difficult for young adults.
Indeterminate
sentences may have disproportionate impacts on young adults and
cause psychological harm. As we discuss in Chapter 5, courts are
already aware
of these issues, and young adults are rarely sentenced to preventive
detention.[727]
- 12.45 This
proposal prevents the imposition of preventive detention on anyone aged under 25
at the time of conviction for the qualifying
offending. Where a young adult is
sentenced to imprisonment for serious offending and continues to pose a
significant risk of reoffending
at the end of the sentence, post-sentence orders
could meet this risk. The advantages of post-sentence orders over preventive
detention
in this situation are:
(a) the person has had an opportunity to mature neurologically and to engage in
rehabilitation before they are assessed for ongoing
risk;
(b) the particular adverse impacts of indeterminate imprisonment on young adults
are avoided; and
(c) the risk assessment is more accurate as it addresses current risk.
- 12.46 This
proposal would not be needed if Proposal 3B or 3C were implemented. Proposal 3B
would allow ESOs and PPOs to be imposed
at the time of sentence, but they would
need to be confirmed at the end of a person’s sentence. This would
mitigate many of
the concerns. Proposal 3C would involve only post-sentence
orders, so the concerns would not arise.
PROPOSALS
P7
Proposals for reform relating to qualifying
offences
The same offences could be qualifying offences for
preventive detention, ESOs and PPOs.
P8
The qualifying offences could be expanded by including other offences that
are of a similar nature and seriousness to the current
qualifying offences. The
proposed offences to include are:
- contracting
a person under 18 for commercial sexual services, causing or encouraging a
person under 18 to provide sexual services
or receiving payment derived from
commercial services provided by a person under 18;
- strangulation
or suffocation;
- dealing
in people under 18 for sexual exploitation, removal of body parts or engagement
in forced labour;
- wilfully
infecting with disease;
- preventing
or impeding a person who is attempting to save his or her own life or the life
of another without lawful justification
or excuse;
- female
genital mutilation;
- inciting,
counselling or procuring suicide, where the victim then commits or attempts to
commit suicide;
- killing
an unborn child in such a manner that the offender would have been guilty of
murder if the child had legally become a human
being;
- ill-treatment
or neglect of a child or vulnerable adult in a manner likely to cause suffering,
injury or adverse effects;
- failure
to protect a child or vulnerable adult from a risk of death, grievous bodily
harm or sexual assault;
- an
offence committed overseas that would come within the description of an offence
against the Films, Videos and Publications Classification
Act 1993 punishable by
imprisonment where the material is objectionable because it (a) promotes or
supports, or tends to promote
or support, the exploitation of children, or young
persons, or both, for sexual purposes; and/or (b) describes, depicts, or
otherwise
deals with sexual conduct with or by children, or young persons, or
both; and/or (c) exploits the nudity of children, or young persons,
or
both;
- offences
against the Films, Videos and Publications Classification Act 1993 punishable by
imprisonment where the material is objectionable
because it promotes or
supports, or tends to promote or support (a) the use of violence or coercion to
compel any person to participate
in, or submit to, sexual conduct, (b)
bestiality, or (c) acts of torture or the infliction of extreme violence or
extreme cruelty;
and
- offences
against the Prostitution Reform Act 2003 of contracting a person under 18 for
commercial sexual services, causing or encouraging
a person under 18 to provide
commercial sexual services or receiving payment derived from commercial sexual
services provided by
a person under 18.
P9
Repeal incest and bestiality as qualifying offences.
- 12.47 Proposals
7 and 8 address the issues we discuss in Chapter 6 relating to apparent
inconsistencies in the qualifying offences.
- 12.48 For the
most part, the same offences are qualifying offences for preventive detention,
ESOs and PPOs. Proposal 7 addresses the
remaining inconsistencies in the
qualifying offences for each regime that exist without any apparent rationale.
This could also make
it easier for the court to impose the least restrictive
order if the changes in Proposal 4A or Proposal 4B were adopted.
- 12.49 Proposal 8
would add some qualifying offences that are similar to the current qualifying
offences in nature, seriousness and
harm to the community but are currently
excluded. The maximum penalties and legislative references for these offences
are in Chapter
6.
- 12.50 As we
discuss in Chapter 6, we consider that caution should be exercised in expanding
the scope of the preventive regimes. We
are unaware of any issues that might
justify the inclusion of the offences listed in Proposal 8, other than the fact
that they are
omitted as qualifying offences despite seeming to be of same
seriousness as offences included in the legislation.
- 12.51 Proposal
9 would repeal incest and bestiality as qualifying offences. As we discuss in
Chapter 6, the offence of incest is generally
used for consensual sexual
connection between adult family members. Where sexual offending between family
members is non-consensual
or is against a victim who is a child or young person,
there are other charges available that are qualifying offences.
- 12.52 Bestiality
involves a person engaging in penetrative sexual activity with an animal. Unlike
the other qualifying offences, it
does not involve harm to a human or threat to
community safety. Bestiality does not involve forcing or compelling another
person
to engage in sexual or indecent activity with an animal — this is
covered by a separate qualifying offence, which we do not
propose repealing.
PROPOSALS TO REFORM THE LEGISLATIVE TESTS FOR IMPOSING
PREVENTIVE MEASURES
PROPOSALS
P10
To impose a preventive measure, the legislation could omit any requirement
that the court be satisfied that a person displays any
specific traits or
behavioural characteristics other than the risk they pose to community safety by
reoffending.
P11
To impose a preventive measure, the legislation could require the court to
assess the risk that a person will commit a qualifying
offence within a certain
timeframe. The requirement in the Public Safety Act that the offending be
“imminent” could be
repealed.
- 12.53 These
proposals address the issues we discuss in Chapter 8 relating to the legislative
tests for imposing preventive detention,
ESOs and PPOs.
- 12.54 Proposal
10 suggests the removal of any requirement that the person must display certain
traits or behavioural characteristics
such as those that feature in the current
tests for ESOs and PPOs. This would place primary focus on the degree of risk
posed by
the person, which would need to be established by relevant evidence
— a test that would resemble the current test for preventive
detention.
- 12.55 That does
not mean traits and behavioural characteristics would cease to be relevant.
Rather, to the extent traits and behavioural
characteristics are relevant to a
person’s risk, these matters would be dealt with as evidence in support of
the overall risk
assessment.
- 12.56 Proposal
11 addresses the temporal elements of the current tests. As we discuss in
Chapter 8, the Sentencing Act requires that
the court be satisfied the person is
likely to reoffend if released into the community at the sentence expiry date.
The Public Safety
Act requires the court to be satisfied there is a very high
risk of “imminent” serious violent or sexual offending. The
Parole
Act, however, expresses no temporal requirements for ESOs. Proposal 11
contemplates that the legislation adopt a uniform approach
under which the court
will assess the risk of reoffending within a certain timeframe following the
person’s release from a
determinate prison sentence. We will use feedback
on this question to determine whether an express and uniform temporal element is
desirable and, if so, what the relevant timeframe should be. Lastly, the
proposal suggests the repeal of the “imminent”
test under the Public
Safety Act. As we explain in Chapter 8, we do not consider this test reflects
reoffending risk.
PROPOSALS
P12A
To impose a preventive measure, the legislation could require the court to be
satisfied that:
- the
measure is the least restrictive necessary to address the risks the person will
commit a further qualifying offence; and
- the
nature and extent of the risk the person poses to community safety justifies the
limits the preventive measure would impose on
their rights affirmed under the
New Zealand Bill of Rights Act 1990.
P12B
To impose a preventive measure, the legislation could state that the court
must not impose a preventive measure unless it is satisfied
that the limits the
measure would impose on rights affirmed under the New Zealand Bill of Rights Act
1990 are justified.
- 12.57 Proposals
12A and 12B address the issue raised in Chapter 8 that, when considering whether
to impose a preventive measure, the
courts weigh considerations arising from
human rights law that are not explicitly expressed in the legislative tests. As
discussed
in Chapter 8, it may be that this is not an issue that requires
reform. The law is clear that the NZ Bill of Rights already applies
when the
court considers whether to impose a preventive measure. On the other hand, it
may be desirable for the primary legislative
tests to make clearer in some way
that the NZ Bill of Rights applies. Proposals 12A and 12B suggest ways this
might be achieved.
- 12.58 Proposal
12A is an attempt to state within the primary legislation the standards the
court must apply to ensure a preventive
measure is a justified limit on human
rights. The two matters the court could be required to consider (as already
generally occurs
in practice) are that the measure is the least restrictive in
the circumstances and that the measure is justified when balanced against
the
risks to community safety.
- 12.59 Proposal
12B could be introduced as an alternative or in addition to Proposal 12A. Unlike
Proposal 12A, which attempts to prescribe
the matters the court could consider,
the primary purpose of Proposal 12B is to alert the courts and decision-makers
that the NZ
Bill of Rights applies. It would require the court to be satisfied
that the preventive measure would be a justified limit on human
rights.
- 12.60 As we flag
in Chapter 8, these proposals on their own would not be sufficient to ensure the
preventive regimes complied with
human rights law. For example, other elements
of the legislative tests, and whether the overall focus of the law is
predominantly
therapeutic and rehabilitative, must conform to human rights
standards. Proposals 12A and 12B should be considered in addition to
the other
proposals set out in this chapter.
PROPOSALS FOR REFORM RELATING TO CONDITIONS AND MANAGEMENT IN
THE COMMUNITY
- 12.61 This
section sets out proposals for reform to address the issues we discuss in
Chapter 10 relating to the management of people
on preventive detention or ESOs
in the community. Where proposals in this section relate to release conditions,
they are intended
to apply only to release conditions imposed on people released
on parole from a sentence of preventive detention (not in relation
to
determinate sentences). We have not considered whether the same issues would
apply to release conditions or parole more generally.
These proposals proceed on
the basis that the law could provide for a different approach to release
conditions for a person subject
to preventive detention than for people
sentenced to determinate sentences of
imprisonment.
PROPOSAL
P13
The requirement for the Parole Board and probation officers to impose and
manage parole conditions and ESO conditions consistently
with the New Zealand
Bill of Rights Act 1990 could be expressed in the legislation governing the
preventive regimes. When imposing
a condition, the legislation could require the
Parole Board to be satisfied that the condition is a justified limitation on the
person’s
rights affirmed under the New Zealand Bill of Rights Act
1990.
The legislation could require a probation officer to administer a condition
only in a way that is a justified limitation on the person’s
rights
affirmed under the New Zealand Bill of Rights Act 1990.
- 12.62 Proposal
13 is intended to better ensure that conditions would be imposed and managed in
a rights-consistent way.
- 12.63 This would
be consistent with other legislation that significantly restricts rights and
freedoms. For example, the Terrorism
Suppression (Control Orders) Act 2019 also
allows the court to impose restrictions on a person for the purposes of
community safety
and rehabilitation and reintegration. When making an order, the
court must be satisfied that any conditions the order imposes on
the person are
necessary and appropriate, and only those necessary and appropriate, to achieve
the purpose.[728] The court is
also required to consider how any conditions imposed will or may affect the
person’s personal circumstances (for
example, their financial position,
health and privacy) and whether the conditions are justified limits on rights
and freedoms in
the NZ Bill of
Rights.[729]
PROPOSAL
P14
The court could be responsible for setting special conditions of ESOs at the
time it makes an ESO.
- 12.64 This
proposal would address the possible inefficiency of dividing order-making and
condition-setting jurisdictions between the
court and the Parole Board, as we
discuss in Chapter 10.
- 12.65 This
proposal envisages that, when the court orders an ESO, it would also impose
special conditions. Currently, courts will
often hear evidence about the special
conditions that Ara Poutama will seek and impose special conditions on an
interim basis. However,
the Parole Board has final responsibility for setting
conditions. Proposal 14 would avoid the necessity for multiple hearings about
the same issue and allow the court to ensure that an ESO is a reasonable and
demonstrably justified limit on rights affirmed in the
NZ Bill of Rights.
- 12.66 Applications
to add, remove or vary special conditions would also need to be made to the
court. Precedent exists for such a
process — applications to add, remove
or vary release conditions imposed by the court on release from short terms of
imprisonment
are made to the
court.[730]
- 12.67 If a
person wished to challenge decisions about ESO conditions, they could appeal to
the Court of Appeal. This is the process
currently in place if a person wishes
to appeal the imposition of an ESO and is familiar to lawyers who act in ESO
matters. If a
person appeals against an ESO, the court could consider not only
whether the ESO was justified, but whether any conditions should
be
amended.
- 12.68 If
Proposal 14 were implemented, Proposal 13 would require the courts, rather than
the Parole Board, to impose ESO conditions
consistently with the NZ Bill of
Rights.
PROPOSAL
P15
The law could allow an intensive monitoring condition to be imposed at a time
after an ESO has been ordered and could extend beyond
12 months.
- 12.69 As we
discuss in Chapter 10, an intensive monitoring (IM) condition is highly
intrusive.
- 12.70 Currently,
the courts may only make an order requiring the Parole Board to impose an IM
condition at the same time as ordering
the ESO. If a person subject to an ESO
subsequently requires an IM condition, a new ESO application must be made. This
proposal would
allow an IM condition to be imposed on an existing ESO, where
needed to manage a person’s risk.
- 12.71 The
current 12-month maximum term of an IM condition can mean that a person whose
risk is appropriately managed by an IM condition
is instead made subject to a
more restrictive PPO. This proposal would allow an IM condition to be imposed
for longer than 12 months
if this would allow a person to be managed in the
community rather than be detained. We do not, at this stage, suggest the
appropriate
mechanism to govern the length of an IM condition. It could, for
example, be that the term of an IM condition could be renewed. Alternatively,
the term of the condition could be set for any length that is considered
reasonable and proportionate in the circumstances, with
a right for the person
subject to the IM condition to apply for the discharge of the IM condition. We
are interested in PROPOSAL
P16
feedback on this point.
The standard ESO condition not to associate with persons under 16 years could
be removed but be available as a special condition.
- 12.72 As we
discuss in Chapter 10, some people subject to ESOs — for example, for
violent offending or sexual offending against
adults — may not pose any
risk of offending against people under 16 years old. A standard ESO condition
prevents anyone subject
to an order from associating with persons under 16 years
old. This condition can prevent people from associating with their own children,
whānau or support people who have children.
- 12.73 While a
probation officer can allow a person to associate with a person under age 16,
the approval must be in writing, and the
association must be under the
supervision of a person approved by the probation officer.
- 12.74 This
proposal would remove this standard ESO condition. The Parole Board (or court,
if Proposal 14 were implemented), would
be able to impose the same condition as
a special condition.
QUESTION
Q52
What do you think about the proposals for reform in this chapter?
Te Aka Matua o te Ture | Law Commission is located at:
Level 9, Solnet House, 70 The Terrace, Wellington 6011
Postal address: PO Box 2590, Wellington 6140, Aotearoa New Zealand
Document Exchange Number: SP 23534
Telephone: 04 473 3453
Email: com@lawcom.govt.nz
[1] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC).
[2] Chisnall v Attorney-General
[2021] NZCA 616, [2022] 2 NZLR 484; and Chisnall v Attorney-General
[2022] NZCA 24, (2022) 13 HRNZ 107.
[3] Habitual Criminal and
Offenders Act 1906, s 2
[4] Habitual Criminal and
Offenders Act 1906, s 4.
[5] Habitual Criminal and
Offenders Act 1906, s 6.
[6] Habitual Criminal and
Offenders Act 1906, s 7.
[7] Habitual Criminal and
Offenders Act 1906, ss 7(3) and 8(1).
[8] (23 September 1954) 304 NZPD
1927.
[9] (23 September 1954) 304 NZPD
1927.
[10] (23 September 1954) 304
NZPD 1928.
[11] Criminal Justice Act 1954,
s 24(1).
[12] Criminal Justice Act 1954,
s 26(2)(b).
[13] Criminal Justice Act 1954,
s 26(2)(a).
[14] Criminal Justice Act 1954,
s 24(2).
[15] Criminal Justice Act 1954,
s 25.
[16] Criminal Justice Amendment
Act 1961, s 3(2)(b).
[17] Criminal Justice Amendment
Act 1967, s 3.
[18] Working Party No. 1
Final Report: Penal Policy Review (Ministry of Justice, November
1981).
[19] Working Party No. 1
Final Report: Penal Policy Review (Ministry of Justice, November 1981) at
46.
[20] Working Party No. 1
Final Report: Penal Policy Review (Ministry of Justice, November 1981) at
46.
[21] Chris Hurd “The
Changing Face of Preventive Detention in New Zealand” (conference paper,
undated) citing John Meek “The
Revival of Preventive Detention in New
Zealand 1986-93” (1995) 28 Australian and New Zealand Journal of
Criminology 225 at 236.
[22] Many of the Penal Policy
Review Committee’s other recommendations were implemented in the Criminal
Justice Act 1985.
[23] Criminal Justice Act 1985,
s 75(4).
[24] Criminal Justice Act 1985,
s 75(2).
[25] Criminal Justice Act 1985,
s 75(2).
[26] For example, in R v
Tipene CA312/86, 21 May 1987, te Kōti Pīra o Aotearoa | the Court
of Appeal refused leave to appeal against a sentence of preventive
detention
imposed on a charge of indecent assault of a 13-year-old girl. The Court noted
that the sentencing judge had two reports
before him from psychiatrists and
psychologists which both “expressed the view that there was a high
probability that upon
his return to the community Mr Tipene would offend again
in relation to sexual offences.”
[27] (18 December 1986) 477 NZPD
6523.
[28] (18 December 1986) 477 NZPD
6523.
[29] Criminal Justice Amendment
(no 2) Act 1987, s 2, amending s 75 of the Criminal Justice Act 1985.
[30] (28 March 2002) 599 NZPD
(Sentencing and Parole Reform Bill- Second Reading, Phil Goff).
[31] Ministry of Justice
Report for Cabinet Social Development Committee: Extended Supervision of
Child Sex Offenders (2003) at [13].
[32] Ministry of Justice
Report for Cabinet Social Development Committee: Extended Supervision of
Child Sex Offenders (2003) at [3].
[33] Justice and Electoral
Committee Parole (Extended Supervision) and Sentencing Amendment Bill 88-2
(14 June 2004) at 2.
[34] These people had been
released from psychiatric institutions because their conditions did not fit the
new definition of “mental
disorder” under s 2 of the Mental Health
(Compulsory Assessment and Treatment) Act 1992: Justice and Electoral Committee
Parole (Extended Supervision) and Sentencing Amendment Bill 88-2 (14 June
2004) at 3. They were not eligible for preventive detention under the Criminal
Justice Act 1985 because, at that time, preventive
detention could only be
imposed if a person had previously been convicted of qualifying offending.
[35] Justice and Electoral
Committee Parole (Extended Supervision) and Sentencing Amendment Bill 88-2
(14 June 2004) at 3. One of the individuals released from Lake Alice
psychiatric hospital went on to sexually assault multiple children
and a
mentally impaired woman. These acts resulted in public outcry, exacerbated by
subsequent revelations that one of the nurses
at Lake Alice had sought to
forewarn supervisors and the Ministry of Health when the person was released
back into the community.
These actions put a spotlight on the lacuna in the law
between the Sentencing Act 2002 and the revised Mental Health legislation.
See
Lara Caris “Extended Supervision Orders and Youth Offenders” (LLM
Research Paper, Te Herenga Waka | Victoria University
of Wellington, 2020) at
12–13.
[36] Tracy Watkins
“National ramps up terms of serious offenders” (7 November 2011)
<stuff.co.nz>.
[37] For example, during the
second reading of the Public Safety (Public Protection Orders Bill), James Shaw,
a non-Government Member
of Parliament noted that the Bill had been introduced
around the time of media interest in Stewart Murray Wilson: (26 November 2014)
702 NZPD 872. Wilson had been sentenced to 21 years’ imprisonment for
sexually offending against 16 women and girls over a 25-year period.
In November
2011, the media reported that Wilson, who was due to be released from prison the
following year, was “four times
more likely than the average rate to
reoffend when released” and that he had “shown no interest in
addressing his offending
or managing the risk of reoffending”:
“Beast of Blenheim at very high risk of reoffending – Parole
Board”
(2 November 2011) <stuff.co.nz>. See also Anna Leask
“‘Beast’ still big risk: ex boarder” (4 November
2011)
<nzherald.co.nz>; “‘Beast’ release horrifies
ex-girlfriend” (3 November 2011) <nzherald.co.nz>;
and John Pratt
and John Anderson “The Beast of Blenheim’, Risk and the Rise of the
Security Sanction” (2016) 49
Australia and New Zealand Journal of
Criminology 528 at 529.
[38] Ara Poutama | Department of
Corrections Regulatory Impact Statement: Management of High Risk Sexual and
Violent Offenders at End of Sentence (18 September 2012) at [17].
[39] Ara Poutama | Department of
Corrections Regulatory Impact Statement: Management of High Risk Sexual and
Violent Offenders at End of Sentence (18 September 2012) at [17].
[40] Ara Poutama | Department of
Corrections Regulatory Impact Statement: Management of High Risk Sexual and
Violent Offenders at End of Sentence (18 September 2012) at [13].
[41] Ara Poutama | Department of
Corrections Regulatory Impact Statement: Management of High Risk Sexual and
Violent Offenders at End of Sentence (18 September 2012) at [23].
[42] Ara Poutama | Department of
Corrections Regulatory Impact Statement: Management of High Risk Sexual and
Violent Offenders at End of Sentence (18 September 2012) at [24].
[43] Ara Poutama | Department of
Corrections Regulatory Impact Statement: Management of High Risk Sexual and
Violent Offenders at End of Sentence (18 September 2012) at [25].
[44] Public Safety (Public
Protection Orders) Bill 2012 (68-1) (explanatory note) at 1.
[45] Letter from Jo Field
(Deputy Chief Executive, Service Development, Ara Poutama | Department of
Corrections) to Mike Sabin MP (Chairperson,
Law and Order Committee) regarding
the Parole (Extended Supervision Orders) Amendment Bill – Initial Briefing
(24 October 2014).
[46] Sentencing Act 2002, s
87(1).
[47] Sentencing for preventive
detention must take place in te Kōti Matua | High Court. Commonly, the
proceedings will have been
transferred to the High Court earlier in the process
due to the seriousness of the charges (see the Criminal Procedure Act 2011,
ss
66–70). If a person is convicted of a qualifying offence in te Kōti
ā Rohe | District Court and a sentence of
preventive detention is being
considered, the person must be transferred to the High Court for sentencing (see
the Sentencing Act
2002, s 90).
[48] Sentencing Act 2002, s
88(1)(b). “Health assessor” is defined in s 4 of the Sentencing Act
2002.
[49] Sentencing Act 2002, s
87(4).
[50] Sentencing Act 2002, s
89(2).
[51] Parole Act 2002, s
28(2).
[52] Parole Act 2002, s
7(3).
[53] Parole Act 2002, s
7(1).
[54] This is the most recent
year for which there is a full set of data available.
[55] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[56] This includes people
subject to preventive detention who had been released on parole: Email from Phil
Meredith (Manager Strategic
Analysis – Research & Analysis, Ara
Poutama | Department of Corrections) to John-Luke Day (Principal Legal and
Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on
preventive detention and ESOs (14 March 2023).
[57] A further five sentences of
preventive detention were imposed during this period but were overturned on
appeal.
[58] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023). This does not include people who were also sentenced
to life imprisonment.
[59] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[60] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[61] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023). During this period, 47 of the 104 people sentenced to
preventive detention identified as Māori.
[62] ESOs are not available for
people who have been sentenced to preventive detention, who, if they are
released into the community,
will be subject to parole conditions for life.
[63] Parole Act 2002, s 107I(1).
There are four categories of “eligible offender” for an ESO. Three
of these require a conviction
for a “relevant offence” whether
committed in Aotearoa New Zealand or overseas. The fourth category relates to
certain
people to whom subpart 3 of Part 2 of the Returning Offenders
(Management and Information) Act 2015 applies. We discuss eligibility
in
Chapters 5 to 7.
[64] Parole Act 2002, s
107I(1).
[65] If a person detained under
a sentence is made subject to an ESO, the order comes into force on the
person’s statutory release
date: Parole Act 2002, s 107L.
[66] Parole Act 2002, s 107F.
For people who are eligible on the basis of overseas offending, the application
must be made within six
months of the person’s arrival in Aotearoa New
Zealand or before the end of the period for which the person is subject to
release
conditions under the Returning Offenders (Management and Information)
Act 2015.
[67] Parole Act 107F.
[68] Parole Act 2002, s
107I(2).
[69] Parole Act 2002, s
107IAA.
[70] Parole Act 2002, s
107I(2).
[71] Parole Act 2002, s
107I(4).
[72] Parole Act 2002, s
107C(1)(a)(iii).
[73] Parole Act 2002, s 107T and
107TA(2).
[74] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[75] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[76] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[77] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023). There were 329 ESOs imposed during this period, 138 of
which were imposed on a person identifying as Māori.
[78] Public Safety (Public
Protection Orders) Act 2014, s 4(1).
[79] Public Safety (Public
Protection Orders) Act 2014, s 8.
[80] Public Safety (Public
Protection Orders) Act 2014, s 7. For people who are eligible on the basis of
overseas offending, the application
must be made within six months of the
person’s arrival in Aotearoa New Zealand or before the end of the period
for which the
person is subject to release conditions under the Returning
Offenders (Management and Information) Act 2015.
[81] Public Safety (Public
Protection Orders) Act 2014, s 13.
[82] Public Safety (Public
Protection Orders) Act 2014, s 13(1).
[83] Chisnall v Chief
Executive of the Department of Corrections [2019] NZCA 510 at [45].
[84] Public Safety (Public
Protection Orders) Act 2014, ss 26 and 73.
[85] Peter Boshier OPCAT
Report on an Unannounced Inspection of Matawhāiti Residence under the
Crimes of Torture Act 1989 (Tari o te Kaitiaki Mana Tangata | Office of the
Ombudsman, Wellington, December 2020).
[86] Public Safety (Public
Protection Orders) Act 2014, s 63.
[87] Public Safety (Public
Protection Orders) Act 2014, s 68.
[88] Public Safety (Public
Protection Orders) Act 2014, s 71–72.
[89] Public Safety (Public
Protection Orders) Act 2014, s 42.
[90] Public Safety (Public
Protection Orders) Act 2014, s 42.
[91] Public Safety (Public
Protection Orders) Act 2014, s 119.
[92] Public Safety (Public
Protection Orders) Act 2014, s 22.
[93] Public Safety (Public
Protection Orders) Act 2014, s 27(4).
[94] Public Safety (Public
Protection Orders) Act 2014, s 27(5).
[95] Public Safety (Public
Protection Orders) Act 2014, ss 15–16.
[96] Public Safety (Public
Protection Orders) Act 2014, s 86.
[97] Public Safety (Public
Protection Orders) Act 2014, s 93(1).
[98] Public Safety (Public
Protection Orders) Act 2014, s 93(2).
[99] Public Safety (Public
Protection Orders) Act 2014, s 94.
[100] There is no time limit
on a PSO. A PSO may be cancelled if the person subject to a PSO has not breached
any requirements of the
PSO or committed any serious sexual or violent offences
in a five-year period: Public Safety (Public Protection Orders) Act 2014,
s
102.
[101] According to Ara Poutama
| Department of Corrections’ Annual Reports. Ara Poutama is required to
report annually on a number
of matters relating to PPOs: Public Safety (Public
Protection Orders) Act 2014, s 121.
[102] There will be a fuller
discussion of tikanga Māori, including some of the issues that arise when
discussing tikanga Māori
in non-Māori contexts, in the Law
Commission’s forthcoming Study Paper on tikanga Māori.
[103] Hirini Moko Mead
Tikanga Māori: Living by Māori Values (2nd ed, Huia Publishers,
Wellington, 2016) at 29.
[104] Bishop Manuhuia Bennett
“Te Pū Wānanga Seminar” (presented with Te
Mātāhauariki Research Institute,
23 March 2000) as cited in Richard
Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A
Compendium of References to the Concepts and Institutions of Māori
Customary Law (Victoria University Press, Wellington, 2013) at 431.
[105] Ellis v R [2022]
NZSC 114, [2022] 1 NZLR 239 at [19].
[106] Moana Jackson
“Statement of Evidence of Moana Jackson in the matter of the Treaty of
Waitangi Act 1975 and in the matter of
the Department of Corrections and
Reoffending Prisoners claim dated 4 May 2016” Wai 2540, #A28 at [53].
[107] Tāmati Kruger
Hapori whānui me te tangata mōrea nui: he arotake o te mauhere
ārai me ngā ōta nō muri whakawhiu |
Public Safety and
Serious Offenders: a Review of Preventive Detention and Post-Sentence Orders
(wānanga held in Wellington, 19 October 2022).
[108] Khylee Quince
“Māori and the Criminal Justice System in New Zealand” in Julia
Tolmie and Warren Brookbanks (eds)
Criminal Justice in New Zealand
(LexisNexis, Wellington, 2007) 333 at 337.
[109] Hirini Moko Mead
Tikanga Māori: Living by Māori Values (2nd ed, Huia Publishers,
Wellington, 2016) at 51.
[110] Khylee Quince
“Māori and the Criminal Justice System in New Zealand” in Julia
Tolmie and Warren Brookbanks (eds)
Criminal Justice in New Zealand
(LexisNexis, Wellington, 2007) 333 at 338.
[111] Hirini Moko Mead
Tikanga Māori: Living by Māori Values (2nd ed, Huia Publishers,
Wellington, 2016) at 50 and 56.
[112] Julia Tolmie and others
Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at
13. The contributions to the tikanga and te Tiriti sections of the relevant
chapter were made by
Khylee Quince.
[113] Khylee Quince
“Māori and the Criminal Justice System in New Zealand” in Julia
Tolmie and Warren Brookbanks (eds)
Criminal Justice in New Zealand
(LexisNexis, Wellington, 2007) 333 at 337.
[114] Julia Tolmie and others
Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at
14.
[115] Hirini Moko Mead defines
“ea” as “satisfaction” and “the successful closing
of a sequence and the
restoration of relationships or the securing of peaceful
interrelationships”: Hirini Moko Mead Tikanga Māori: Living by
Māori Values (1st ed, Huia Publishers, Wellington, 2003) at
359 and 31.
[116] Kim Workman
Whānau Ora and Imprisonment (Ngā Pae o te Māramatanga, Te
Arotahi Series Paper, 3 September 2019) at 12.
[117] Moana Jackson
“Criminality and the Exclusion of Māori” (1990) 20 VUWLR
Monograph 3 23 at 28.
[118] Also denoted by the word
hē.
[119] Richard Benton, Alex
Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of
References to the Concepts and Institutions of Māori Customary Law
(Victoria University Press, Wellington, 2013) Hara at 74; and Moana Jackson
“Statement of Evidence of Moana Jackson in the matter
of the Treaty of
Waitangi Act 1975 and in the matter of the Department of Corrections and
Reoffending Prisoners claim dated 4 May
2016” Wai 2540, #A28 at [54].
[120] Moana Jackson
“Criminality and the Exclusion of Māori” (1990) 20 VUWLR
Monograph 3 23 at 27.
[121] Moana Jackson
“Criminality and the Exclusion of Māori” (1990) 20 VUWLR
Monograph 3 23 at 28.
[122] Moana Jackson The
Māori and the Criminal Justice System | He Whaipaanga Hou – A New
Perspective: Part 2 (Department of Justice, Study Series 18, 1988) at
39.
[123] Julia Tolmie and others
Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at
13.
[124] Khylee Quince
“Māori and the Criminal Justice System in New Zealand” in Julia
Tolmie and Warren Brookbanks (eds)
Criminal Justice in New Zealand
(LexisNexis, Wellington, 2007) 333 at 339.
[125] Tāmati Kruger
Hapori whānui me te tangata mōrea nui: he arotake o te mauhere
ārai me ngā ōta nō muri whakawhiu | Public
Safety and
Serious Offenders: a Review of Preventive Detention and Post-Sentence Orders
(wānanga held in Wellington, 19 October 2022).
[126] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tino Rangatiratanga me
te Kāwanatanga: The Report on Stage 2 of the Te Paparahi o Te Raki
Inquiry – Part 1, Pre-Publication Version (Wai 1040, 2022) at
349.
[127] Moana Jackson
“Statement of Evidence of Moana Jackson in the matter of the Treaty of
Waitangi Act 1975 and in the matter of
the Department of Corrections and
Reoffending Prisoners claim dated 4 May 2016” Wai 2540, #A28 at [54]; and
Richard Benton,
Alex Frame and Paul Meredith (eds)Te Mātāpunenga: A
Compendium of References to the Concepts and Institutions of Māori
Customary Law (Victoria University Press, Wellington, 2013) Ea at 58.
[128] Moana Jackson
“Criminality and the Exclusion of Māori” (1990) 20 VUWLR
Monograph 3 23 at 27.
[129] Hapori whānui me
te tangata mōrea nui: he arotake o te mauhere ārai me ngā
ōta nō muri whakawhiu | Public
Safety and Serious Offenders: a Review
of Preventive Detention and Post-Sentence Orders (wānanga held in
Wellington, 19 October 2022).
[130] Tāmati Kruger
Hapori whānui me te tangata mōrea nui: he arotake o te mauhere
ārai me ngā ōta nō muri whakawhiu | Public
Safety and
Serious Offenders: a Review of Preventive Detention and Post-Sentence Orders
(wānanga held in Wellington, 19 October 2022).
[131] ` Kim Workman
Whānau Ora and Imprisonment (Ngā Pae o te Māramatanga, Te
Arotahi Series Paper, 3 September 2019) at 2; and Richard Benton, Alex Frame and
Paul Meredith
(eds) Te Mātāpunenga: A Compendium of References to
the Concepts and Institutions of Māori Customary Law (Victoria
University Press, Wellington, 2013) Kōhuru at 141, Muru at 254, Pana at
288, and Tapu at 404.
[132] Kim Workman
“Whānau Ora and Imprisonment” (Ngā Pae o te
Māramatanga, Te Arotahi Series Paper, 3 September
2019) at 2.
[133] Richard Benton, Alex
Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of
References to the Concepts and Institutions of Māori Customary Law
(Victoria University Press, Wellington, 2013) Pana at 288. See also [#PAN
03], [#PAN 04], [#PAN 06] and [#PAN 08].
[134] Moana Jackson
“Statement of Evidence of Moana Jackson in the matter of the Treaty of
Waitangi Act 1975 and in the matter of
the Department of Corrections and
Reoffending Prisoners claim dated 4 May 2016” Wai 2540, #A28 at [86].
[135] Tai Ahu Tuia te Kaho
me te kākaho, kia ahu mai ko te Tukutuku: Working Paper on Preventive
Detention Commissioned by Te Aka Matua o te Ture | Law Commission
(Whāia Legal, 17 February 2023) at [70(a)].
[136] Moana Jackson
“Statement of Evidence of Moana Jackson in the matter of the Treaty of
Waitangi Act 1975 and in the matter of
the Department of Corrections and
Reoffending Prisoners claim dated 4 May 2016” Wai 2540, #A28 at [85].
[137] Kim Workman
Whānau Ora and Imprisonment (Ngā Pae o te Māramatanga, te
Arotahi Series Paper, 3 September 2019) at 2.
[138] Julia Tolmie and others
Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at
15.
[139] Tai Ahu Tuia te kaho
me te kākaho, kia ahu mai ko te Tukutuku: Working Paper on Preventive
Detention Commissioned by Te Aka Matua o te
Ture | Law Commission
(Whāia Legal, 17 February 2023) at [92(b)]; and Hunga Kaititiro i te Hauora
o te Tangata | National Health Committee Health in Justice: Kia Piki te Ora,
Kia Tika! Improving the health of prisoners and their families and
whānau: He whakapiki i te ora o ngā mauhere me ō rātou
whānau (Manatū Hauora | Ministry of Health, Wellington 2010) at
34.
[140] Ināia Tonu Nei
Hui Māori Report (Hāpaitia te Oranga Tangata | Safe and
Effective Justice, July 2019) at 22.
[141] Ināia Tonu Nei
Hui Māori Report (Hāpaitia te Oranga Tangata | Safe and
Effective Justice, July 2019) at 22.
[142] When discussing te
Tiriti o Waitangi | Treaty of Waitangi in this Paper, we use “the
Treaty” as a generic term that
is intended to capture the Māori text
(te Tiriti o Waitangi) and the English text (the Treaty of Waitangi). When we
are referring
to the Māori text only, we either use the term “te
Tiriti”, refer to “the Māori text” or make this
clear in
the context. When we are referring to the English text only, we refer to
“the English text” or make this clear
in the context.
[143] Kenneth Keith “On
the Constitution of New Zealand: An Introduction to the Foundations of the
Current Form of Government”
in Cabinet Office Cabinet Manual 2017 1
at 1.
[144] Trans-Tasman
Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 at
[151]. See also Cabinet Office Circular “Te Tiriti o Waitangi/Treaty of
Waitangi Guidance” (22 October 2019) CO (19) 5 at [7].
[145] For example, Te Aka
Matua o te Ture | Law Commission Te Kōpū Whāngai: He Arotake |
Review of Surrogacy (NZLC R146, 2022); and Te Aka Matua o te Ture | Law
Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate
ana | Review of succession law: rights to a person’s property
on death
(NZLC R145, 2021).
[146] Article 2 also gave the
Crown an exclusive right of pre-emption over any land Māori wanted to
“alienate”.
[147] IH Kawharu (ed)
Waitangi: Māori and Pākehā Perspectives of the Treaty of
Waitangi (Oxford University Press, Auckland, 1989) at 321.
[148] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 27.
[149] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report
(Wai 45, 1997) at 114.
[150] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te
Tiriti | The Declaration and the Treaty: The Report on Stage 1 of the Te
Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 526–527.
[151] See Te Aka Matua o te
Ture | Law Commission Te Kōpū Whāngai: He Arotake | Review of
Surrogacy (NZLC R146, 2022) at 3.8 – 3.24; Te Aka Matua o te Ture |
Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka
mate ana | Review of Succession Law: Rights to a person’s property
on death (NZLC IP46, 2021) at 2.6–2.35; Te Aka Matua o te Ture | Law
Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate
ana | Review of Succession Law: Rights to a person’s property on
death (NZLC R145, 2021) at 2.54–2.67; and Te Aka Matua o te Ture | Law
Commission Te Whakamahi i te Ira Tangata i ngā Mātai Taihara |The
Use of DNA in Criminal Investigations (NZLC R144, 2020) at
2.6–2.29.
[152] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora: Report on Stage
One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2023) at
xxviii.
[153] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Whaia te Mana Motuhake
| In Pursuit of Mana Motuhake: Report on the Māori Community
Development Act Claim (Wai 2417, 2015) at 25.
[154] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Whakaputanga me te
Tiriti | The Declaration and the Treaty: The Report on Stage 1 of the Te
Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 419.
[155] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 26.
[156] IH Kawharu (ed)
Waitangi: Māori and Pākehā Perspectives of the Treaty of
Waitangi (Oxford University Press, Auckland, 1989) at 319. Kawharu explained
that the term emphasised to rangatira their complete control according
to their
customs. The term has also been translated as “paramount authority”:
Margaret Mutu “Constitutional Intentions:
The Treaty of Waitangi
Texts” in Malcolm Mulholland and Veronica Tawhai (eds) Weeping Waters:
The Treaty of Waitangi and Constitutional Change (Huia Publishers,
Wellington, 2010) 13 at 19–22; and “absolute authority”: Te
Rōpū Whakamana i te Tiriti
o Waitangi | Waitangi Tribunal Whaia te
Mana Motuhake | In Pursuit of Mana Motuhake: Report on the Māori
Community Development Act Claim (Wai 2417, 2015) at 26.
[157] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 21.
[158] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira
Report (Wai 414, 1998) at 26-27.
[159] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira
Report (Wai 414, 1998). The Tribunal said that rangatiratanga is exercised
by Māori groups and Māori communities, whether tribally
based or not.
The Tribunal preferred the term “non-tribal” to refer to such
groups.
[160] Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 41–42 and 229; and Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World – Māori Perspectives on Justice (March 2001)
at 36–38. See also the discussion in Matike Mai Aotearoa He Whakaaro
Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa – The
Independent Working Group on Constitutional
Transformation (January 2016) at
34.
[161] Moana Jackson The
Māori and the Criminal Justice System | He Whaipaanga Hou – A New
Perspective: Part 2 (Department of Justice, Study Series 18, 1988) at 42.
[162] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 26.
[163] For example, see Ani
Mikaere Colonising Myths: Māori Realities – He Rukuruku Whakaaro
(Huia Publishers, Wellington, 2011) at 263–264. See also the
discussion in Te Rōpū Whakamana i te Tiriti o Waitangi
| Waitangi
Tribunal He Whakaputanga me te Tiriti | The Declaration and the
Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai
1040, 2014) at 348 onwards for an in-depth discussion of the texts.
[164] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report
(Wai 45, 1997) at 385–386.
[165] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report
(Wai 45, 1997) at 386. In this Issues Paper, we refer to the principles of
the Treaty imposing obligations. We use this language to
reflect statements by
the Tribunal. However, we consider the source of these obligations to be the
text of the Treaty.
[166] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report
(Wai 45, 1997) at 192.
[167] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira
Report (Wai 414, 1998) at 27–28.
[168] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Radio Spectrum
Management and Development Final Report (Wai 776, 1999) at 38.
[169] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei:
A Report into Claims Concerning New Zealand Law and Policy Affecting Māori
Culture and Identity –
Te Taumata Tuarua (Wai 262, 2011) at 341.
[170] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei:
A Report into Claims Concerning New Zealand Law and Policy Affecting Māori
Culture and Identity –
Te Taumata Tuarua (Wai 262, 2011) at 341. See
also New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641
(CA) [Lands] at 667 per Cooke P; and Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal The Report on the Crown’s Review
of the Plant Variety Rights Regime: Stage 2 of the Trans-Pacific Partnership
Agreement Claims
(Wai 2522, 2020) at 12.
[171] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Napier Hospital and
Health Services Report (Wai 692, 2001) at xxvi.
[172] Ināia Tonu Nei
Hui Māori Report (Hāpaitia te Oranga Tangata | Safe and Effective
Justice, July 2019) at 16.
[173] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Haumaru: The COVID-19
Priority Report (Wai 2575, 2021) at 44.
[174] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 63.
[175] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 62.
[176] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 63.
[177] Ināia Tonu Nei
Hui Māori Report (Hāpaitia te Oranga Tangata | Safe and Effective
Justice, July 2019) at 16.
[178] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the
Crown’s Review of the Plant Variety Rights Regime: Stage 2 of the
Trans-Pacific Partnership Agreement Claims (Wai 2522, 2020) at 13; and Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i
Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870,
2020) at 12. See also Te Rōpū Whakamana i te Tiriti o Waitangi |
Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and
Disproportionate Reoffending Rates (Wai 2540, 2017) at 26. In the English
text of the Treaty, it is article 2 that provides that the Crown
“guarantees” Māori
the continued possession of their lands and
other resources. Article 3 of both texts also includes an undertaking by the
Crown to
protect Māori rights and interests. The preamble records the
Queen’s desire (in the English translation of the Māori
text) to
“protect the chiefs and subtribes of New Zealand”: Te Puni
Kōkiri | Ministry of Māori Development
He Tirohanga ō Kawa ki
te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as
expressed by the Courts and
the Waitangi Tribunal (2001) at 93.
[179] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Offender Assessment
Policies Report (Wai 1024, 2005) at 12.
[180] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
(Wai 2540, 2017) at 27
[181] New Zealand Crimes and
Victims Survey Māori Victimisation in Aotearoa New Zealand: Results
Drawn from Cycle 1 and 2 (2018/19) of the New Zealand Crime and Victims
Survey (Te Tāhū o te Ture | Ministry of Justice, April 2021).
[182] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 27.
[183] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā
Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 14;
and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua
Māori Act 1993 (Wai 2478, 2016) at 195.
[184] Len Cook A
Statistical Window for the Justice System: Putting a Spotlight on the Scale of
State Custody across Generations of Māori (Institute for Governance and
Policy Studies, Working Paper 20/02, November 2020) at 1.
[185] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 42.
[186] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i Pērā
Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2020) at 13
citing Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Te Urewera Volume VIII (Wai 894, 2017) at 3773.
[187] Te Aka Matua o te Ture |
Law Commission The Treaty of Waitangi and Māori Fisheries: Mataitai Nga
Tikanga Māori me te Tiriti o Waitangi (NZLC PP9, 1989) at 90.
[188] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngāi Tahu Sea
Fisheries Report 1992 (Wai 27, 1992) at 274.
[189] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngāi Tahu Sea
Fisheries Report 1992 (Wai 27, 1992) at 274.
[190] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Napier Hospital and
Health Services Report (Wai 692, 2001) at 65.
[191] Te Rōpū
Whakamana o Te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Fishing
Report (Wai 22, 1988) at 195.
[192] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei:
A Report into Claims Concerning New Zealand Law and Policy Affecting Māori
Culture and Identity –
Te Taumata Tuatahi (Wai 262, 2011) at 24, where
the Tribunal observed in that context that “[a]fter 170 years during which
Māori have been
socially, culturally, and economically swamped, it will no
longer be possible to deliver tino rangatiratanga in the sense of full
authority
over all taonga Māori.” See also the discussion at 269.
[193] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Haumaru: The COVID-19
Priority Report (Wai 2575, 2021) at 46.
[194] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Haumaru: The COVID-19
Priority Report (Wai 2575, 2021) at 46.
[195] Te Uepū Hāpai
I te Ora | Safe and Effective Justice Advisory Group He Waka Roimata:
Transforming Our Criminal Justice System (Hāpaitia te Oranga Tangata |
Safe and Effective Justice, June 2019) at 26.
[196] Kim Workman
Whānau Ora and Imprisonment (Ngā Pae o te Māramatanga, Te
Arotahi Series Paper, 3 September 2019) at 2. We acknowledge that the criminal
justice system
should also help to restore the mana of people who are harmed by
offending. The Chief Victims Advisor has recommended that the government
develop
a system that is focused on restoring victims’ wellbeing and incorporates
tikanga Māori and te ao Māori models
of healing: Chief Victims Advisor
to Government Te Tangi o te Manawanui: Recommendations for Reform
(Hāpaitia te Oranga Tangata | Safe and Effective Justice, September
2019) at 4.
[197] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy 2019-2024
(19 August 2019).
[198] Tai Ahu Tuia te kaho
me te kākaho, kia ahu mai ko te Tukutuku: Working Paper on Preventive
Detention Commissioned by Te Aka Matua o te
Ture | Law Commission
(Whāia Legal, 17 February 2023) at [83].
[199] Hunga Kaititiro i te
Hauora o te Tangata | National Health Committee Health in Justice: Kia Piki
te Ora, Kia Tika! Improving the health of prisoners and their families and
whānau: He whakapiki i
te ora o ngā mauhere me ō rātou
whānau (Manatū Hauora | Ministry of Health, Wellington, 2010) at
34.
[200] Moana Jackson The
Māori and the Criminal Justice System | He Whaipaanga Hou – A New
Perspective: Part 2 (Department of Justice, Study Series 18, 1988).
[201] Khylee Quince
“Māori and the Criminal Justice System in New Zealand” in Julia
Tolmie and Warren Brookbanks (eds)
Criminal Justice in New Zealand
(LexisNexis, Wellington, 2007) 333 at 341.
[202] Moana Jackson The
Māori and the Criminal Justice System | He Whaipaanga Hou – A New
Perspective: Part 2 (Department of Justice, Study Series 18, 1988) at 111.
[203] Te Whakapuakitanga o
te Rūnanga Whakakotahi i ngā Iwi o te Ao mō ngā Tika o
ngā Iwi Taketake | United Nations
Declaration on the Rights of Indigenous
Peoples GA Res 61/295 (2007). The UNDRIP recognises the importance of
protecting the collective rights of indigenous peoples and addresses
the rights
to self-determination, preservation of culture and institutions, participation
in decision-making and consultation, and
rights to lands and resources. As a
declaration rather than a convention, the UNDRIP does not have legally binding
force attached
to it in international law. However, the UNDRIP is widely viewed
as not creating new rights but rather elaborating on internationally
recognised
human rights as they apply to indigenous peoples and individuals and in this way
having a binding effect: Te Rōpū
Whakamana i te Tiriti o Waitangi |
Waitangi Tribunal Whaia te Mana Motuhake | In Pursuit of Mana Motuhake:
Report on the Māori Community Development Act Claim (Wai 2417,
2015) at 34–35, 38–39 and 40–44.
[204] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 26.
[205] There have been too few
people subject to PPOs for any meaningful analysis.
[206] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023). During this period, 47 of the 104 people sentenced to
preventive detention identified as Māori. There
were 329 ESOs imposed
during this period, 138 of which were imposed on a person identifying as
Māori.
[207] Statistics New Zealand
“Māori population share projected to grow in all regions” (29
March 2022) <stats.govt.nz>.
It should be noted that different methods of
classification may have been used for the sources of data for this and other
statistics
cited in this definition, making it difficult to compare statistics
accurately. In Moana Jackson The Māori and the Criminal Justice System:
A new Perspective – He Whaipaanga Hou (Department of Justice, Study
Series 18, February 1987) at 21, Moana Jackson noted that some processes
use self-identification whereas others use an observer’s estimation of
whether a person
is Māori.
[208] Hunga Kaititiro i te
Hauora o te Tangata | National Health Committee Health in Justice: Kia Piki
te Ora, Kia Tika! Improving the health of prisoners and their families and
whānau: He whakapiki i
te ora o ngā mauhere me ō rātou
whānau (Manatū Hauora | Ministry of Health, Wellington, 2010) at
28.
[209] Andrew Carroll and
others “No Involuntary Treatment of Mental Illness in Australian and New
Zealand Prisons” (2020) 32 The Journal of Forensic Psychiatry &
Psychology 1 at 3–4.
[210] Jeremy Skipworth
“The Australian and New Zealand Prison Crisis: Cultural and Clinical
Issues” (2019) 53 Australian &
New Zealand Journal of Psychiatry 472
at 472.
[211] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 25.
[212] Tai Ahu Tuia te kaho
me te kākaho, kia ahu mai ko te Tukutuku: Working Paper on Preventive
Detention Commissioned by Te Aka Matua o te
Ture | Law Commission
(Whāia Legal, 17 February 2023) at [94].
[213] Moana Jackson The
Māori and the Criminal Justice System | He Whaipaanga Hou – A New
Perspective: Part 2 (Department of Justice, Study Series 18, 1988) at
206.
[214] Moana Jackson The
Māori and the Criminal Justice System | He Whaipaanga Hou – A New
Perspective: Part 2 (Department of Justice, Study Series 18, 1988) at
248.
[215] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 16.
[216] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 16–17, 24.
[217] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 16–17, 24.
[218] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 17.
[219] We acknowledge the
community and government initiatives that recommend the reform of Aotearoa New
Zealand’s criminal justice
system more generally to make tikanga
Māori central – for example, Ināia Tonu Nei Hui Māori
Report (Hāpaitia te Oranga Tangata | Safe and Effective Justice, July
2019) and Turuki! Turuki! Move together! Transforming our Criminal Justice
System: The Second Report of Te Uepū Hāpai i te Ora | Safe
and
Effective Justice Advisory Group (Wellington, 2019).
[220] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai Te Rangi!
Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017)
at 26.
[221] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 16.
[222] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 17.
[223] See a list of pathway
projects at Ara Poutama | Department of Corrections “About Māori
Pathways” <www.corrections.govt.nz>;
and Ara Poutama | Department of
Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy 2019-2024 (19
August 2019) at 31–34.
[224] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 31–34. The planned initiatives
include: Hawkes Bay Pathway – “A project to develop a prototype
of a
co-designed kaupapa Māori pathway so people in the care and management of
Ara Poutama Aotearoa experience a kaupapa Māori-centred
approach for their
entire stay with us”; Northland Region Corrections Facility –
“will be a kaupapa Māori
facility with an operating model that will
be co-designed. The process will be grounded in kaupapa Māori thinking and
practice,
and will be delivered within the context of whānau, hapū,
iwi, and communities”; Waikeria Māori Model of Health
–
“A 100-bed mental health facility will be built at Waikeria Prison. The
facility will operate a Māori model of
care and be informed through
co-design with Waikato District Health Board, whānau, hapū, iwi, and
hapori Māori, and
other DHBs and community services.”
[225] See for example Te
Whatu v Department of Corrections [2017] NZHC 3233, [2018] 2 NZLR 822 in
which a probation officer’s direction to a person on an ESO not to
associate with their partner was held to be a failure
to exercise the legal
power consistently with the freedom of association (discussed in Chapter 10);
Vincent v New Zealand Parole Board [2020] NZHC 3316 in which te Kōti
Matua o Aotearoa | High Court found the Parole Board had misapplied the
statutory test for parole to a person
in prison on preventive detention thereby
breaching the person’s right to be free from arbitrary detention; C v
New Zealand Parole Board [2021] NZHC 2567 in which the High Court found that
requiring a person on an ESO to remain at a facility 24 hours a day for two
years was not permitted
by the Parole Act 2002 and constituted arbitrary
detention; and Douglas v Chief Executive of the Department of Corrections
[2022] NZHC 600 in which the chief executive accepted that a previous policy
of not granting to people on PPOs leave from the Matawhāiti residence
to
interact with the community and undertake normal community activities was a
misreading of the residence manager’s powers
under s 26 of the Public
Safety (Public Protection Orders) Act 2014.
[226] There have been
instances where people subject to preventive measures have argued before the
courts that the measures breach various
human rights, but the courts have dealt
with the proceeding without ruling on these arguments. See for example
Vincent v New Zealand Parole Board [2020] NZHC 3316 in which a person
argued that their 52-year imprisonment on preventive detention breached their
right not to be subject to cruel,
degrading or disproportionately severe
treatment or punishment pursuant to s 9 of the New Zealand Bill of Rights Act
1990. The Court
left the argument undetermined because it ordered that the
person be released having found them to be arbitrarily detained for the
purposes
of s 22 of the New Zealand Bill of Rights Act 1990. We note too that te
Kōti Mana Nui o Aotearoa | Supreme Court is
currently considering arguments
that the ESO and PPO regimes are inconsistent with ss 9, 22, 23(5), 25(a), (c)
and (d), and 26(1)
of the New Zealand Bill of Rights Act 1990
(Attorney-General v Chisnall [2022] NZSC 77) but it has not yet released
its decision.
[227] International Covenant
on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December
1966, entered into force 23 March 1976).
[228] Under the Optional
Protocol to the International Covenant on Civil and Political Rights, the United
Nations Human Rights Committee
may receive and consider communications from
individuals who claim to be victims of a violation by Aotearoa New Zealand of
any rights
provided for in the Covenant.
[229] Manuel v
Superintendent of Hawkes Bay Regional Prison [2004] NZCA 440; [2005] 1 NZLR 161 (CA) at [71];
Rameka v New Zealand (2003) 7 HRNZ 663 (UNHRC); Miller v New Zealand
Parole Board [2010] NZCA 600 at [30]; and Vincent v New Zealand Parole
Board [2020] NZHC 3316 at [85].
[230] Manuel v
Superintendent of Hawkes Bay Regional Prison [2004] NZCA 440; [2005] 1 NZLR 161 (CA) at [71];
Miller v New Zealand Parole Board [2010] NZCA 600 at [30]; and Vincent
v New Zealand Parole Board [2020] NZHC 3316 at [85].
[231] Rameka v New
Zealand (2004) 7 HRNZ 663 at [7.3]; and Miller v New Zealand Parole
Board [2010] NZCA 600 at [70].
[232] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.15].
[233] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC).
[234] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.3] citing United Nations Human Rights
Committee General Comment No. 35, Article 9 (Liberty and Security of
the Person) CCPR/C/GC/35 (16 December 2014) at [12].
[235] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.3] citing United Nations Human Rights
Committee General Comment No. 35, Article 9 (Liberty and Security of
the Person) CCPR/C/GC/35 (16 December 2014) at [21].
[236] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.4]. The UNHRC was also concerned that the
Parole Board did not constitute a “court” as required by art 9(4) of
the International Covenant on Civil and Political Rights 999 UNTS 171 (opened
for signature 16 December 1966, entered into force 23 March 1976). This issue is
discussed further in Chapter 10.
[237] Miller v
Attorney-General [2022] NZHC 1832 at [82] citing Zaoui v
Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (CA) at [101].
[238] As was the case in
Vincent v New Zealand Parole Board [2020] NZHC 3316. Mr Vincent, aged 83
and suffering from severe dementia, had served preventive detention for 52 years
following convictions for sexual
offending on minors in the 1960s. The Parole
Board denied Mr Vincent’s applications for parole and applications for
release
on compassionate grounds. The Court found that the Parole Board was
predominantly concerned that no facilities had been found that
could manage Mr
Vincent’s dementia care rather than the risk that Mr Vincent would
reoffend. The Board had therefore misapplied
the statutory test, failed to take
into account relevant considerations and its decisions were unreasonable. Mr
Vincent’s detention
was arbitrary in breach of s 22 of the NZ Bill of
Rights.
[239] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484; and Chisnall v
Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107.
[240] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [115]- [138]. Not all
factors are repeated here. Note, te Kōti Pīra o Aotearoa | Court of
Appeal relied heavily on its earlier decision
in Belcher v Chief Executive of
the Department of Corrections [2006] NZCA 262; [2007] 1 NZLR 507 (CA).
[241] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [148].
[242] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [161].
[243] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [165].
[244] B v R 2365/09
Federal Constitutional Court, Second Senate, 4 May 2011.
[245] Strafgesetzbuch –
StGB [German Criminal Code] 1998 (Germany), s 66c.
[246] Ilnseher v
Germany [2018] ECHR 991 (Grand Chamber) at [81].
[247] Ilnseher v
Germany [2018] ECHR 991 (Grand Chamber).
[248] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [175].
[249] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [164].
[250] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [176].
[251] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [190].
[252] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [190] and [219].
[253] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [223]- [226].
[254] Mosen v Chief
Executive of the Department of Corrections [2022] NZCA 507 at [31].
[255] Mosen v Chief
Executive of the Department of Corrections [2022] NZCA 507 at [31].
[256] Fardon v
Australia, CCPR/C/98/D/1629/2007 (18 March 2010) at [7.4(2)].
[257] In relation to the right
to liberty and freedom from arbitrary detention under article 9 of the
International Covenant on Civil
and Political Rights see Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.3] citing United Nations Human Rights
Committee General Comment No. 35, Article 9 (Liberty and Security of
the Person) CCPR/C/GC/35 (16 December 2014) at [12]. As to the protection
against arbitrary detention under s 22 of the New Zealand Bill of Rights
Act
1990, see Nielsen v Attorney-General [2001] NZCA 143, [2001] 3 NZLR 433
at [33]–[34] and Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 at
[100], which describe the touchstones of “arbitrariness” as
inappropriateness, injustice, unpredictability and disproportionality.
[258] R v Hansen [2007]
NZSC 7, [2007] 3 NZLR 1 at [104], citing the Supreme Court of Canada in R v
Oakes [1986] 1 SCR 103. The courts do not always apply these tests in such a
formal and formulaic way. See D (SC 31/2019) v New Zealand Police [2021]
NZSC 2, [2021] 1 NZLR 213 at [100], in which members of the Supreme Court
preferred a “simpler proportionality analysis”.
[259] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [226].
[260] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [220].
[261] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [220].
[262] Sentencing Act 2002, s
7(1)(g); and Corrections Act 2004, s 6(1)(a).
[263] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [195].
[264] See for example the
United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for
signature 20 November 1989, entered into force 2 September 1990), arts 19 and
34; United Nations Human Rights Committee
General Comment No. 36, Article 6
(Right to Life) CCPR/C/GC/36 (3 September 2019) at [22]–[25];
Convention on the Elimination of All Forms of Discrimination Against Women
General Recommendation No. 35 on Gender-Based Violence
Against Women, Updating
General Recommendation No. 19 CEDAW/C/GC/35 (26 July 2017) at [31];
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment General Comment No. 2 CAT/C/GC/2 (24 January 2008) at [18] and
[22]; and United Nations Human Rights Committee General Comment No. 28,
Article 3 (the Equality of Rights Between Men and Women)
CCPR/C/21/Rev.1/Add.10 (29 March 2000) at [11].
[265] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [217].
[266] Sentencing Act 2002, ss
46 (supervision), 54C (intensive supervision), 69C (community detention), and
80D(2) (special conditions
of home detention). Intensive supervision may be
imposed for up to two years: Sentencing Act 2002, s 54B(2).
[267] Section 7 of the
Sentencing Act 2002 lists the purposes for which a court may sentence or
otherwise deal with an offender. Section
7(1)(g) includes “to protect the
community from the offender”. In some cases, the courts have imposed
determinate sentences
of greater severity for community protective reasons than
would otherwise have been justified: Simon France (ed) Adams on Criminal Law
— Sentencing (online looseleaf ed, Thomson Reuters) at [SA74.06],
citing R v Leitch [1998] 1 NZLR 420, (1997) 15 CRNZ 321 (CA); D
(CA197/14) v R [2014] NZCA 373; and Bell v R [2017] NZCA 90.
[268] Under the Sentencing Act
2002, s 86(2), the court can also impose an MPI if satisfied that the usual
parole eligibility period is
insufficient for the purpose of holding the
offender accountable for the harm done by the offending, denouncing the conduct
in which
the offender was involved or deterring the offender or others from
committing the same or a similar offence.
[269] Parole Act 2002, s
18(2).
[270] Criminal Procedure
(Mentally Impaired Persons) Act 2003, s 24(1)(c).
[271] Child Protection (Child
Sex Offender Government Agency Registration) Act 2016.
[272] Family Violence Act
2018, pt 3.
[273] Family Violence Act
2018, s 79.
[274] For example: (i)
offences that criminalise behaviour on the basis of the risk presented to the
community — such as attempts
to commit offences, threats to kill or harm
others and doing dangerous acts with reckless disregard for the safety of others
(Crimes
Act 1961, ss 72, 306 and 198(2)); (ii) bail conditions or remand in
custody to address risks of offending before trial or sentencing
(Bail Act
2000); and (iii) terrorism suppression control orders that impose prohibitions
and restrictions on eligible people who
pose a real risk of engaging in
terrorism-related activities (Terrorism Suppression (Control Orders) Act
2019).
[275] For example, according
to Ara Poutama | Department of Corrections reporting on recidivism from the July
2021 – June 2022 year,
nine per cent of people convicted of sexual assault
were re-sentenced within 12 months of being released from prison and six per
cent were re-imprisoned. For those convicted of “acts intended to cause
injury”, 33.5 per cent were re-sentenced within
12 months and 20.4 per
cent were re-imprisoned. See Ara Poutama | Department of Corrections Annual
Report 1 July 2021 – 30 June 2022 (E.61, 2022) at 175.
[276] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[277] Justice and Electoral
Committee Parole (Extended Supervision) and Sentencing Amendment Bill 88-2
(14 June 2004) at 3.
[278] Justice and Electoral
Committee Parole (Extended Supervision) and Sentencing Amendment Bill 88-2
(14 June 2004) at 2.
[279] Ara Poutama | Department
of Corrections Regulatory Impact Statement: Management of High Risk Sexual
and Violent Offenders at End of Sentence (18 September 2012) at [17].
[280] Ara Poutama | Department
of Corrections Regulatory Impact Statement: Management of High Risk Sexual
and Violent Offenders at End of Sentence (18 September 2012) at [17].
[281] Ara Poutama | Department
of Corrections Regulatory Impact Statement: Enhanced Extended Supervision
Orders (3 November 2014) at [15].
[282] In a recent example R
v Brider [2023] NZHC 56, Mr Brider was sentenced to preventive detention. He
had been released on parole from a determinate sentence for rape, abduction
for
sexual connection, injuring with reckless disregard and unlawful sexual
connection. Less than three months later, Mr Brider sexually
abducted and
murdered his female neighbour. In an independent review of the New Zealand
Parole Board’s decision to grant parole,
it was suggested that Mr Brider
may have met the standard for an ESO. However, the review suggested that because
of the absence of
a calibrated risk instrument for serious violence towards
intimate partners, and the risk assessments that had been performed on
Mr Brider
did not suggest Mr Brider met the threshold, an application for an ESO may have
been unsuccessful: Devon Polaschek Independent Review Commissioned by NZ
Parole Board Relating to Decision Made 21 October 2021, to Release Mr Joseph
James Brider on
Parole (21 August 2022) at 10.
[283] In 1983, Ian Donaldson
was charged with attempted burglary and assault having been caught trying the
door of a house and having
a metal bar and a bottle of chloroform in his
possession. He was granted bail. While on bail, he befriended a man who had a
young
daughter, apparently with a plan to offend against the daughter. He killed
the man. While serving a prison sentence for previous
convictions of sexual
offending, Mr Donaldson had written to the Prison Superintendent expressing an
intention to torture and murder
a child. A Commission of Inquiry into Mr
Donaldson’s offending referred to a recent recommendation by a Penal
Policy Review
Committee that preventive detention be abolished. The Commission
of Inquiry said that, in light of the experience of Mr Donaldson,
great caution
should be exercised before deciding to abolish preventive detention:
“Report of the Commission of Inquiry into
the Circumstances of the Release
of Ian David Donaldson from a Psychiatric Hospital and of His Subsequent Arrest
and Release on Bail”
(1983) AJHR H4 at 83–84.
[284] In the second reading of
the Public Safety (Public Protection Orders) Bill and the Parole (Extended
Supervision Orders) Amendment
Bill 2013, the Hon Phil Goff explained that his
decision as Minister in 2003 to introduce the legislation that would create the
ESO
regime was prompted by the offending of Lloyd McIntosh: (26 November 2014)
702 NZPD 874. Mr McIntosh had served a determinate sentence for the rape of a
23-month-old baby. Three months after release on parole, he sexually
offended
against an intellectually disabled female.
[285] Rameka v New
Zealand (2004) 7 HRNZ 663 (UNHRC): the determinate sentence the offender
would have been sentenced to allowing for an early guilty plea; Dean v New
Zealand CCPR/C/95/D/1512/2006 (17 March 2009): the maximum sentence provided
for the qualifying offence under the Crimes Act 1961; and Miller v New
Zealand (2017) 11 HRNZ 400 (UNHRC): the 10 year MPI then applying to
preventive detention.
[286] Studies that show the
adverse physical and mental health impacts on prisoners include Hunga Kaititiro
i te Hauora o te Tangata |
National Health Committee Health in Justice: Kia
Piki te Ora, Kia Tika! Improving the health of prisoners and their families and
whānau: He whakapiki i
te ora o ngā mauhere me ō rātou
whānau (Manatū Hauora | Ministry of Health, Wellington, 2010); and
Ian Lambie What Were They Thinking? A Discussion Paper on Brain and Behaviour
in Relation to the Justice System in New Zealand (Kaitohutohu Mātanga
Pūtaiao Matua ki te Pirimia | Office of the Prime Minister’s Chief
Science Advisor, PMCSA-20-2,
29 January 2020).
[287] Justice Committee IPP
Sentences: Third Report of Session 2022-23 (House of Commons, HC 266, 28
September 2022) at [58] and 58.
[288] See for example, for
preventive detention: R v Smith [2020] NZHC 2793; R v Rapana
[2021] NZHC 3407. For ESOs, see for example: Chief Executive of the Dept of
Corrections v Waiti [2019] NZHC 3256; Chief Executive of Dept of
Corrections v Salmon [2021] NZHC 118; Chief Executive, Department of
Corrections v Te Pania [2022] NZHC 2086. For PPOs, see for example Chief
Executive, Department of Corrections v Pori [2021] NZHC 2305.
[289] For example, a 2017
study found that 46 per cent of people starting a prison sentence had a prior
recorded traumatic brain injury,
meaning the injury had resulted in
hospitalisation or an ACC claim was accepted. The study found that offenders
with a traumatic
brain injury have higher reoffending rates, have a higher
number of re-offences and are more likely to have a conviction for a violent
or
sexual offences: Natalie Horspool, Laura Crawford & Louise Rutherford
Traumatic Brain Injury and the Criminal Justice System (Justice Sector
– Crime and Justice Insights, December 2017).
[290] It is telling that of
the few PPOs that have been made to date, all people subject to orders have
significant conditions, such as
autism spectrum disorders, ADHD or
neurocognitive disorders resulting from brain trauma. In Deputy Chief
Executive of Department of Corrections v McCorkindale [2020] NZHC 2484 at
[24], the Court received evidence from an expert forensic psychologist that the
traits and behavioural characteristics set out in s 13(2)
of the Public Safety
(Public Protection Orders) Act 2014 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”.
[291] United Nations
Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for
signature 30 March 2007, entered into
force 3 May 2008).
[292] United Nations
Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for
signature 30 March 2007, entered into
force 3 May 2008), arts 2, 5, and 14.
[293] For a general discussion
of how related brain and behaviour issues are overrepresented in the justice
system, see Ian Lambie What Were They Thinking? A Discussion Paper on Brain
and Behaviour in Relation to the Justice System in New Zealand (Kaitohutohu
Mātanga Pūtaiao Matua ki te Pirimia | Office of the Prime
Minister’s Chief Science Advisor, PMCSA-20-2,
29 January 2020).
[294] Theresa Goddard and
Julie Ann Pooley “The Impact of Childhood Abuse on Adult Male Prisoners: a
Systematic Review” (2018)
34 Journal of Police and Criminal Psychology
215.
[295] Marianne Bevan
“New Zealand Prisoners’ Prior Exposure to Trauma” (2017) 5
Practice: The New Zealand Corrections
Journal 8.
[296] Bronwyn Morrison,
Marianne Bevan and Phil Meredith “‘I Can’t Change my Past, But
I Can Change my Future’:
Perpetrator Perspectives on What Helps to Stop
Family Violence” (2021) 8 The New Zealand Corrections Journal 6. See too
Turuki! Turuki! Move Together! Transforming our Criminal Justice System: The
Second Report of Te Uepū Hāpai i te Ora | Safe
and Effective Justice
Advisory Group (Wellington, 2019) at 46.
[297] R v Hansen [2007]
NZSC 7, [2007] 3 NZLR 1 at [104], citing the Supreme Court of Canada in R v
Oakes [1986] 1 SCR 103.
[298] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [190].
[299] Chief Executive of
the Department of Corrections v Chisnall [2019] NZHC 3126, [2020] 2 NZLR 110
at [98].
[300] It is likely that the
framing of the Public Safety (Public Protection Orders) Act 2014 as a form of
“civil” detention
was an attempt to avoid a finding that PPOs were a
form of punishment. This was probably in response to te Kōti Pīra o
Aotearoa | Court of Appeal’s findings in Belcher v Chief Executive of
the Department of Corrections [2006] NZCA 262; [2007] 1 NZLR 507 (CA) that ESOs were
penalties and infringed the protection against second penalties under s 26(2) of
the New Zealand Bill of Rights Act
1990.
[301] Public Safety (Public
Protection Orders) Act 2014, s 4(2).
[302] Public Safety (Public
Protection Orders) Act 2014, s 104.
[303] R v Mist [2005] 2
NZLR 791 (CA) at [100]–[101]; and T (CA502/2018) v R [2022] NZCA 83
at [30].
[304] Chisnall v Chief
Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83
at [40] per Elias CJ; Chisnall v Chief Executive of the Department of
Corrections [2019] NZCA 510 at [42].
[305] Section 107C(1)(a) of
the Parole Act 2002 defines an “eligible offender” as an offender
who “is not subject to
an indeterminate sentence”.
[306] Public Safety (Public
Protection Orders) Act 2014, s 138.
[307] These standards are
embodied in s 5 of the New Zealand Bill of Rights Act 1990 (the general
limitations clause) as well as in some
key rights (such as the right not to be
arbitrarily detained).
[308] Chisnall v Chief
Executive of the Department of Corrections [2022] NZCA 402 at [15].
[309] We also use the term
“young people” to include people of or over 14 years of age up to
their 18th birthday and “children”
to refer to people under the age
of 14 years. This reflects the usage of these terms in Aotearoa New
Zealand’s youth justice
system: Oranga Tamariki Act 1989, s 2.
[310] See Suzanne
O’Rourke and others The Development of Cognitive and Emotional Maturity
in Adolescents and its Relevance in Judicial Contexts: Literature Review
(Scottish Sentencing Council, January 2020) at 1.
[311] For example, the Young
Adult List (discussed below) applies to people aged 18 to 25, and the Scottish
Sentencing Council’s
guideline for sentencing young people (discussed
below) applies to people under the age of 25. See Suzanne O’Rourke and
others
The Development of Cognitive and Emotional Maturity in Adolescents and
its Relevance in Judicial Contexts: Literature Review (Scottish Sentencing
Council, January 2020) at 1; Prime Minister’s Chief Science Advisor
Improving the Transition: Reducing Social and Psychological Morbidity During
Adolescence (May 2011) at 5.
[312] Sentencing Act 2002, s
87(2)(b).
[313] (18 December 1986) 477
NZPD 6522.
[314] (18 December 1986) 477
NZPD 6522–6523.
[315] Sentencing Act 2002, s
87(2)(b).
[316] (17 April 2002) 599 NZPD
(Sentencing and Parole Reform Bill – Instruction to Committee, Phil Goff).
[317] Technically, a young
person could be eligible for an ESO or a PPO on the basis of certain triggering
offences committed when they
were aged 10 or over.
[318] Most young people (under
18) fall within the jurisdiction of te Kōti Taiohi o Aotearoa | Youth
Court, which does not generally
enter convictions. Section 283(o) of the Oranga
Tamariki Act 1989 allows the Youth Court to enter a conviction against a young
person
and transfer them to te Kōti ā Rohe | District Court (or in
some circumstances, te Kōti Matua o Aotearoa | High Court)
where an offence
is proved and (a) the young person is of or over the age of 15 years, or (b) the
young person is of or over the
age of 14 years and the charge is either a
category 4 offence or a category 3 offence for which the maximum penalty is or
includes
imprisonment for life or for at least 14 years. Categories of offences
are set out in s 6 of the Criminal Procedure Act 2011.
Section 275 of the Oranga Tamariki Act states that proceedings can be
transferred out of the Youth Court (meaning the young person
is liable to
conviction if the offence is proved) if the young person is charged with a
category 3 or 4 offence and elects to be
tried by jury.
Under s 18 of the Sentencing Act 2002, no court can impose a sentence of
imprisonment if the offender was under 18 years of age at
the time of committing
the offence, other than for a category 4 offence or a category 3 offence for
which the maximum penalty is
or includes imprisonment for life or for at least
14 years.
[319] In Chief Executive of
the Department of Corrections v Kerr [2017] NZHC 2366, the appellant had
been subject to an ESO since he was 17 or 18 years old on the basis of
triggering offending committed when he
was 15 years old.
[320] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[321] We do not have general
data on age at the time of the offending, as opposed to age at the time of
sentencing or an order being imposed.
We have located two cases where a person
was sentenced to preventive detention on the basis of offending committed when
they were
under 20 years old: R v Stroobant [2017] NZHC 1122 (19 years at
time of offending); and R v Walter HC Wellington CRI-2006-032-3079, 15
February 2007.
[322] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[323] The commentary to the
United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (the Beijing Rules) GA Res 40/33 (1985) states that research
is an important mechanism for keeping practices up to date with advances in
knowledge and
that mutual feedback between research and policy is especially
important in juvenile justice. The Beijing Rules are not legally binding.
However, the Youth Court commonly refers to the Rules and has stated that they
provide helpful guidance when determining what is
required to respect and uphold
rights under the United Nations Convention on the Rights of the Child (UNCROC):
for example Police v AN [2020] NZYC 609 at [73]; Police v AZ
[2019] NZYC 88 at [43].
[324] See Suzanne
O’Rourke and others The Development of Cognitive and Emotional Maturity
in Adolescents and its Relevance in Judicial Contexts: Literature Review
(Scottish Sentencing Council, January 2020).
[325] Peter Gluckman
It’s Never Too Early, Never Too Late: A Discussion Paper on Preventing
Youth Offending in New Zealand (Kaitohutohu Mātanga Pūtaiao Matua
ki te Pirimia | Office of the Prime Minister’s Chief Science Advisor, 12
June 2018)
at [3].
[326] Nessa Lynch Young
Adults in the Criminal Justice System in Aotearoa New Zealand: A Principled
Framework for Reform (Michael and Suzanne Borrin Foundation, April 2022) at
23.
[327] Suzanne O’Rourke
and others The Development of Cognitive and Emotional Maturity in Adolescents
and its Relevance in Judicial Contexts: Literature Review (Scottish
Sentencing Council, January 2020) at 16.
[328] Suzanne O’Rourke
and others The Development of Cognitive and Emotional Maturity in Adolescents
and its Relevance in Judicial Contexts: Literature Review (Scottish
Sentencing Council, January 2020) at 1.
[329] Suzanne O’Rourke
and others The Development of Cognitive and Emotional Maturity in Adolescents
and its Relevance in Judicial Contexts: Literature Review (Scottish
Sentencing Council, January 2020) at 7–8.
[330] Suzanne O’Rourke
and others The Development of Cognitive and Emotional Maturity in Adolescents
and its Relevance in Judicial Contexts: Literature Review (Scottish
Sentencing Council, January 2020) at 6–7.
[331] Suzanne O’Rourke
and others The Development of Cognitive and Emotional Maturity in Adolescents
and its Relevance in Judicial Contexts: Literature Review (Scottish
Sentencing Council, January 2020) at 58.
[332] Nessa Lynch Young
Adults in the Criminal Justice System in Aotearoa New Zealand: A Principled
Framework for Reform (Michael and Suzanne Borrin Foundation, April 2022) at
19.
[333] Beatriz Luna “The
Relevance of Immaturities in the Juvenile Brain to Culpability and
Rehabilitation” (2012) 63 Hastings
Law J 1469 at 1485.
[334] Justice Committee
Young Adults in the Criminal Justice System: Eighth Report of Session
2017–2019 (House of Commons, HC 419, 12 June 2018) at [48].
[335] For example the
United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (the Havana Rules) GA Res 45/113 (1990), and the United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), which Aotearoa New
Zealand ratified in 1993.
[336] United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing
Rules) GA Res 40/33 (1985) at 3. The Beijing Rules are not legally binding.
However, the Youth Court commonly refers to the Rules and has
stated that they
provide helpful guidance when determining what is required to respect and uphold
rights under the United Nations
Convention on the Rights of the Child (UNCROC):
for example Police v AN [2020] NZYC 609 at [73]; Police v AZ
[2019] NZYC 88 at [43].
[337] United Nations Committee
on the Rights of the Child General Comment No. 24 on Children’s Rights
in the Child Justice System CRC/C/GC/24 (18 September 2019) at [22]. See
also Committee of Ministers of the Council of Europe Recommendation of the
Committee of Ministers to Member States on the European Rules for Juvenile
Offenders Subject to Sanctions and
Measures CM/Rec (2018) 11 (5 November
2008) at [17]; and resolutions of the 17th World Congress of the International
Congress on Criminal Law
as cited in The Transition to Adulthood (T2A) Alliance
Young Adults and Criminal Justice: International Norms and Practices
(King’s College London International Centre for Prison Studies,
September 2011) at [10].
[338] United Nations Committee
on the Rights of the Child General Comment No. 24 on Children’s Rights
in the Child Justice System CRC/C/GC/24 (18 September 2019) at [32].
[339] Nessa Lynch Young
Adults in the Criminal Justice System in Aotearoa New Zealand: A Principled
Framework for Reform (Michael and Suzanne Borrin Foundation, April 2022) at
27.
[340] For example, in November
2021 the Scottish High Court approved a sentencing guideline that applies to the
sentencing of any person
who is under the age of 25 at the date of their guilty
plea or finding of guilt: Sentencing Young People: Sentencing Guideline
(Scottish
Sentencing Council, effective from 26 January 2022). The guideline
notes at [3] that young people generally have a greater capacity
for change and
rehabilitation. When assessing culpability, the guideline notes at [10] that
young people are generally less able
to exercise good judgement when making
decisions, are more vulnerable to negative influences, may take more risks and
may be less
able to think about the impact of their actions, including the
impact on victims and others.
[341] For example Tran v
R [2021] NZCA 464, where the 25-year-old defendant pleaded guilty to
possessing 109.6 kg of methamphetamine for supply; R v Makoare [2020]
NZHC 2289 where the 25-year-old defendant pleaded guilty to one charge of
manslaughter and five of dangerous driving causing injury; and Shimmin v R
[2022] NZCA 434 where the almost-25-year-old defendant was sentenced for
sexual violation by rape and sexual violation by unlawful sexual connection.
[342] Peter Gluckman
It’s Never Too Early, Never Too Late: A Discussion Paper on Preventing
Youth Offending in New Zealand (Kaitohutohu Mātanga Pūtaiao Matua
ki te Pirimia | Office of the Prime Minister’s Chief Science Advisor, 12
June 2018)
at 7.
[343] Jan-Marie Doogue and
John Walker Proposal for a Trial of Young Adult List in Porirua District
Court: Procedural Fairness for the Young and the Vulnerable (Te
Kōti-ā-Rohe o Aotearoa | District Court of New Zealand, 29 August
2019) at 9.
[344] Between 2012/2013 and
2018/2019, on average, 32.3 per cent of people convicted of violent offences
were aged between 17 and 25 (up
to their 25th birthday): Tahū o te Ture |
Ministry of Justice “Violence Offences Data Table” (2022). In the
same
period, on average, 27.1 per cent of people convicted of sexual offences
were aged between 17 and 25 years: Tahū o te Ture |
Ministry of Justice
“Sexual Offences Data Table” (2022).
[345] Jodi Viljoen, Kaitlyn
McLachlan and Gina Vincent “Assessing Violence Risk and Psychopathy in
Juvenile and Adult Offenders:
A Survey of Clinical Practices” (2010) 17
Assessment 377 at 389.
[346] Julie Savignac Tools
to Identify and Assess the Risk of Offending Among Youth (National Crime
Prevention Centre, Public Safety Canada, 2010) at 9.
[347] Anneke Kleeven and
others “Risk Assessment in Juvenile and Young Adult Offenders: Predictive
Validity of the SAVRY and SAPROF-YV” (2022) 29 Assessment 181 at
183.
[348] Roy O’Shaughnessy
and Holly Andrade “Forensic Psychiatry and Violent Adolescents”
(2008) 8 Brief Treatment and
Crisis Intervention 27 at 35.
[349] Anneke Kleeven and
others “Risk Assessment in Juvenile and Young Adult Offenders: Predictive
Validity of the SAVRY and SAPROF-YV” (2022) 29 Assessment 181 at
183.
[350] Lucy Moore Literature
Review — Risk Assessment of Serious Reoffending Commissioned by Te Aka
Matua o te Ture | Law Commission (2023) at 23.
[351] See R v McGregor
[2017] NZHC 2150, where the sentencing judge noted at [21(3)] that the
health assessors had expressed caution in assessing the risk posed by the
20-year-old
defendant because of his age and his potential to change; and
Chief Executive of the Department of Corrections v Kerr [2017] NZHC 2366
where the High Court declined to make a PPO in respect of the 25-year-old
respondent and instead imposed a further ESO. The qualifying
offending had
occurred when the respondent was 15 years old. While the mandatory risk factors
were met, the High Court noted at [80]
the limitations with the risk assessment
tools given the respondent’s relative youth.
[352] Grant v R [2017]
NZCA 614. At the time of the offending, the appellant was serving a sentence of
imprisonment for offending committed when he was 16 years old.
[353] Grant v R [2017]
NZCA 614 at [32].
[354] Grant v R [2017]
NZCA 614 at [32].
[355] House of Commons Justice
Committee IPP sentences: Third Report of Session 2022–2023 (2022)
at [49].
[356] House of Commons Justice
Committee IPP sentences: Third Report of Session 2022–2023 (2022)
at [58].
[357] Melanie Merola
“Young Offenders’ Experiences of an Indeterminate Sentence”
(2015) 17 Journal of Forensic Practice
55. The young adults were all serving
sentences of imprisonment for public protection — a now-repealed
indeterminate sentence
of imprisonment.
[358] Melanie Merola
“Young Offenders’ Experiences of an Indeterminate Sentence”
(2015) 17 Journal of Forensic Practice
55 at 59. Due to the sample size, the
findings may not apply more generally.
[359] Melanie Merola
“Young Offenders’ Experiences of an Indeterminate Sentence”
(2015) 17 Journal of Forensic Practice 55 at 59–60.
[360] United Nations Committee
on the Rights of the Child General Comment No. 24 on Children’s Rights
in the Child Justice System CRC/C/GC/24 (18 September 2019) at [81].
[361] Juan E. Méndez
Report of the Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment A/HRC/28/68 (5 March 2015) at [74].
[362] The New Zealand
Children’s Commissioner’s Report to the United Nations Committee on
the Rights of the Child: New Zealand’s
Sixth Periodic Review under the
United Nations Convention of the Rights of the Child (Manaakitia ā
tātou Tamariki | The Children’s Commissioner, 15 August 2022)
at 75.
[363] Nessa Lynch Young
Adults in the Criminal Justice System in Aotearoa New Zealand: A Principled
Framework for Reform (Michael and Suzanne Borrin Foundation, April 2022) at
25.
[364] R v Dickey [2023]
NZCA 2.
[365] R v Dickey [2023]
NZCA 2 at [181]–[190].
[366] R v Dickey [2023]
NZCA 2 at [180].
[367] In addition, a person
can qualify for an ESO if subpart 3 of Part 2 of the Returning Offenders
(Management and Information) Act
2015 applies to them, which does not require a
conviction for a serious sexual or violent offence. We discuss this in Chapter
7.
[368] Crimes Act 1961, s 135.
[369] Chief Executive,
Department of Corrections v Maindonald [2018] NZHC 946 at [17].
[370] Hofmann v Department
of Corrections [2021] NZCA 256.
[371] Additionally, for ESOs
and PPOs, an offence committed overseas that would come within the definition of
a qualifying offence will
also count as a qualifying offence for the purpose of
eligibility. This is not the case for preventive detention, where the only
qualifying offence that may be committed outside of Aotearoa New Zealand is an
offence under s 144A of the Crimes Act 1961 that relates
to sexual conduct with
children and young people outside of Aotearoa New Zealand. However, in this
case, there is a clear rationale
for the inconsistency. Section 6 of the Crimes
Act 1961 states that no act done outside Aotearoa New Zealand is an offence,
unless
by virtue of any provision of the Act. Therefore, a sentence, such as
preventive detention, cannot be imposed.
[372] These offences under
the Crimes Act 1961 are attempted sexual violation (s 129(1)), attempted sexual
connection with a dependent
family member under 18 (s 131(2)), attempted sexual
connection with a child under 12 (132(2)), attempted sexual connection with a
young person under 16 (s 134(2)), attempted exploitative sexual connection with
a person with significant impairment (s 138(2), attempt
to murder (s 173),
attempting to procure murder (s 174) and conspiracy to murder (s 175).
[373] Crimes Act 1961, s
129A(2): maximum penalty five years’ imprisonment.
[374] Crimes Act 1961, s
131(3): maximum penalty three years’ imprisonment.
[375] Crimes Act 1961, s
138(4): maximum penalty five years’ imprisonment.
[376] Potentially, this is
because murder is punishable by life imprisonment (an indeterminate sentence)
and there is a statutory presumption
that a person convicted of murder must be
sentenced to life imprisonment unless, given the circumstances of the offence
and the offender,
a sentence of imprisonment for life would be manifestly
unjust: Sentencing Act 2002, s 102.
While manslaughter is also punishable by life imprisonment and
is a
qualifying offence for preventive detention, there is no presumption that life
imprisonment will be imposed.
[377] Public Safety (Public
Protection Order) Act 2014, s 7(1)(b).
[378] Parole Act 2002, s
107B(3).
[379] Films, Videos, and
Publications Classification Act 1993, ss 123 and 124: maximum penalty 14
years’ imprisonment.
[380] Films, Videos, and
Publications Classification Act 1993, s 131A: maximum penalty 10 years’
imprisonment.
[381] Films, Videos, and
Publications Classification Act 1993, s 132C: maximum penalty 14 years’
imprisonment.
[382] Risk Management
Authority Literature Review: A Review of the Risk Posed by Internet Offenders
(Scotland, December 2018) at 67–72.
[383] Risk Management
Authority Literature Review: A Review of the Risk Posed by Internet Offenders
(Scotland, December 2018) at 44.
[384] Holland v Chief
Executive, Department of Corrections [2016] NZCA 504 at [48].
[385] For example
Williamson v Department of Corrections [2014] NZHC 98; and Clark v
Chief Executive of Department of Corrections [2016] NZCA 119.
[386] Crimes Act 1961, s 98AA:
maximum penalty 14 years’ imprisonment.
[387] Ellmers v R
[2013] NZCA 676; and Nelson v R [2017] NZCA 407.
[388] Crimes Act 1961, s 201:
maximum penalty 14 years’ imprisonment.
[389] Crimes Act 1961, s 204:
maximum penalty 10 years’ imprisonment.
[390] Crimes Act 1961, s
204A(2): maximum penalty seven years’ imprisonment.
[391] Crimes Act 1961, s
179(1): maximum penalty 14 years’ imprisonment.
[392] Crimes Act 1961, s 182:
maximum penalty 14 years’ imprisonment.
[393] Crimes Act 1961, s 195:
maximum penalty 10 years’ imprisonment.
[394] Crimes Act 1961, s
195A(1): maximum penalty 10 years’ imprisonment.
[395] Films, Videos and
Publications Classification Act 1993, ss 3, 124, 127, 129, 131A and 132C:
maximum penalties from one to 14 years’
imprisonment.
[396] Noting that certain
offences under the FVPC Act where the publication is objectionable because it
promotes or encourages terrorism
are qualifying offences for the purposes of
control orders under the Terrorism Suppression (Control Orders) Act 2019.
[397] Prostitution Reform Act
2003, s 23(1): maximum penalty seven years’ imprisonment.
[398] Offences under s 144A(1)
of the Crimes Act 1961 are qualifying offences for all three preventive regimes.
This section states that
a New Zealand citizen or person ordinarily resident in
Aotearoa New Zealand commits an offence under New Zealand law if they commit
certain offences — including these Prostitution Reform Act offences
— outside Aotearoa New Zealand.
[399] Crimes Act 1961, s 189A:
maximum penalty seven years’ imprisonment.
[400] For example Greathead
v R [2014] NZCA 49.
[401] Crimes Act 1961, s 130:
maximum penalty 10 years’ imprisonment.
[402] B (CA 817/2011) v R
[2012] NZCA 260 at [13].
[403] We note that in te ao
Māori, incest may be seen as a serious offence, transgressing the mana of
the victim: Leonie Pihama and
others “Māori Cultural Definitions of
Sexual Violence” (2016) 7 Sexual Abuse in Australian and New Zealand:
An Interdisciplinary Journal 43. Our preliminary view is that these other
offences are available to cover serious instances of incest.
[404] Law and Order Committee
Sentencing and Parole Reform Bill 2010 (17-2) (commentary) at 5.
[405] In R v G [2021]
NZHC 3527, preventive detention was imposed on a number of charges including one
of incest. Overall, Mr G’s sexual offending spanned
from when he was 13 to
51 years old and included male and female victims who were family members and
non-family members. The sentence
of preventive detention was subsequently
cancelled on the incest charge because Mr G was not eligible at the time it was
committed.
The sentence of preventive detention on other charges remained: R
v G [2022] NZHC 1519.
[406] For example P v R
[2021] NZCA 198 and R v Poa [2021] NZHC 770.
[407] R v V [2017] NZHC
2605.
[408] R v J HC Auckland
CRI-2006-092-16336, CRI-2006-092-16337, 1 April 2008 at [59].
[409] Crimes Act 1961, s 143:
maximum penalty seven years’ imprisonment.
[410] We were able to locate
only three cases where a person had been convicted of bestiality between 1991
and 2020. In the 1991 case,
the sentencing judge noted that the Court had only
been able to locate one precedent, from 1890: Police v Sheary (1991) 7
CRNZ 107.
[411] Crimes Bill 1989
(152-1).
[412] Crimes Act 1961, s 142A:
maximum penalty 14 years’ imprisonment.
[413] Crimes Act 1961, s 144:
maximum penalty three years’ imprisonment.
[414] Law and Order Committee
“Sentencing and Parole Reform Bill – Initial Briefing” (29
April 2009) at [32].
[415] R v Marshall
[2020] NZHC 1271.
[416] Brian Holoyda, Ravipreet
Gosal and K Welch “Bestiality Among Sexually Violent Predators”
(2020) 48 American Academy
of Psychiatry and the Law 358 at 358.
[417] Brian Holoyda, Ravipreet
Gosal and K Welch “Bestiality Among Sexually Violent Predators”
(2020) 48 American Academy
of Psychiatry and the Law 358.
[418] The discussion in this
section is focused on the ESO and PPO regimes because preventive detention can
only be imposed in relation
to qualifying offences under New Zealand law.
Generally, acts done outside Aotearoa New Zealand are not offences under New
Zealand
law and so a person cannot be sentenced for them in Aotearoa New
Zealand: Crimes Act 1961, s 6. One of the few exceptions to this
rule is s 144A
of the Crimes Act 1961, which states that everyone who, being a New Zealand
citizen or ordinarily resident in Aotearoa
New Zealand, commits an offence under
New Zealand law if they do certain acts outside Aotearoa New Zealand that
involve sexual offending against children and young persons. Offences charged
under s 144A are qualifying
offences for preventive detention.
[419] Justice Committee
“Review of the Operation of the Returning Offenders (Management and
Information) Act 2015” (New Zealand
House of Representatives, 1.7B,
September 2019.)
[420] Commissioner of
Police v G [2023] NZCA 93.
[421] Returning Offenders
(Management and Information) Act 2015, s 18.
[422] Returning Offenders
(Management and Information) Act 2015, s 24(2).
[423] Returning Offenders
(Management and Information) Act 2015, s 25. The standard release conditions are
those found in s 14 of the
Parole Act 2002, except that the parole condition
requiring the person to report to a probation officer as soon as practicable,
and
not later than 72 hours, after release on parole is replaced with a
condition to report to a probation officer as soon as practicable,
and not later
than 72 hours, after being served a determination notice.
[424] Returning Offenders
(Management and Information) Act 2015, s 26.
[425] Returning Offenders
(Management and Information) Act 2015, s 26(3).
[426] Returning Offenders
(Management and Information) Act 2015, s 26(2).
[427] Parole Act 2002, ss
107C(1)(c) and 107F(1)(d); Public Safety (Public Protection Orders) Act 2014, s
7(1)(e).
[428] Returning Offenders
(Management and Information) Act 2015, s 33(2).
[429] Parole Act 2002, ss
107C(1)(d) and 107F(1)(d).
[430] Returning Offenders
(Management and Information) Act 2015, s 7(b).
[431] Parole Act 2002 s
107C(1)(b) and Public Safety (Public Protection Order) Act 2014, s 7(1)(d). The
offence must be a qualifying offence
for the relevant regime — for
example, a person will only be eligible for a PPO if the overseas offence is a
qualifying offence
under the PPO legislation.
[432] Parole Act 2002, s
107C(1)(c) and Returning Offenders (Management and Information) Act 2015, s
32.
[433] Between 18 November 2015
and 18 May 2017, 98 per cent of offenders who returned to Aotearoa New Zealand
were returned from Australia:
Letter from Rachel Crawley (Policy Manager –
Sentencing and Rehabilitation, Te Tāhū o te Ture | Ministry of
Justice)
to Sarah Dowie (Chairperson, Justice and Electoral Committee) regarding
Statutory Review of the Returning Offenders (Management and
Information) Act
2015) (4 July 2017) at [28].
[434] R v Mist [2005] 2
NZLR 791 (CA) at [100]–[101]; T (CA502/2018) v R [2022] NZCA 83 at
[30].
[435] T (CA502/2018) v R
[2022] NZCA 83 at [30]–[31].
[436] T (CA502/2018) v R
[2022] NZCA 83 at [30]–[31].
[437] Parole Act 2002, s
107IAA(1).
[438] Parole Act 2002, s
107IAA(2).
[439] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484; Chisnall v
Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107.
[440] R (CA586/2021) v
Chief Executive of the Department of Corrections [2022] NZCA 225 at [53];
Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507
at [31].
[441] Public Safety (Public
Protection Orders) Act 2014, s 3.
[442] Public Safety (Public
Protection Orders) Act 2014, s 13(2).
[443] Chisnall v Chief
Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83
at [40] per Elias CJ; Chisnall v Chief Executive of the Department of
Corrections [2019] NZCA 510 at [42].
[444] Chief Executive of
the Department of Corrections v Douglas [2023] NZHC 1085 at [150].
[445] Ara Poutama | Department
of Corrections Regulatory Impact Statement: Enhanced Extended Supervision
Orders (3 November 2014) at [33].
[446] Ara Poutama | Department
of Corrections Regulatory Impact Statement: Enhanced Extended Supervision
Orders (3 November 2014) at [33].
[447] The other key reason is
that, prior to 2014, violent offending did not qualify for an ESO.
[448] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[449] United Nations Human
Rights Committee General Comment No. 35, Article 9 (Liberty and
Security of the Person) CCPR/C/GC/35 (16 December 2014) at [21]; Miller v
New Zealand (2017) 11 HRNZ 400 (UNHRC) at [8.3].
[450] R v C [2003] 1
NZLR 30 (CA) at [6].
[451] R v Mist [2005] 2
NZLR 791 (CA) at [100]–[101]; T (CA502/2018) v R [2022] NZCA 83 at
[30].
[452] Sentencing Act 2002, s
87(4)(e).
[453] Chisnall v Chief
Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83
at [40]. The Chief Justice’s approach was affirmed by te Kōti
Pīra | Court of Appeal in Chisnall v Chief Executive of the Department
of Corrections [2019] NZCA 510 at [42].
[454] During the passage of
the Public Safety (Public Protection Orders) Bill, the Law Society and the
Legislation Advisory Committee
submitted to the Justice and Electoral Committee
that the legislation should explicitly require the court to consider less
restrictive
options before making a PPO. Ara Poutama | Department of Corrections
advised the Committee not to accept this recommendation because
the principles
of the proposed legislation required the court to only impose a PPO where the
risk justifies the imposition of an
order: Ara Poutama | Department of
Corrections Public Safety (Public Protection Orders) Bill –
Departmental Report (25 February 2014) at [35] and [40].
[455] For ESOs see R
(CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA
225; Wilson v Chief Executive of the Department of Corrections [2022]
NZCA 289; Mosen v Chief Executive of the Department of Corrections [2022]
NZCA 507 at [30]. For PPOs see Chief Executive, Department of Corrections v
Pori [2022] NZHC 3581 at [40] (a prison detention order case) and Chief
Executive of the Department of Corrections v Douglas [2023] NZHC 1085 at
[24].
[456] Legislation Design and
Advisory Committee Legislation Guidelines (2021 edition) at 8. This
principle is exemplified in the NZ Bill of Rights itself: see New Zealand Bill
of Rights Act 1990, ss 5
and 6.
[457] New Zealand Bill of
Rights Act 1990, s 3(a).
[458] Terrorism Suppression
(Control Orders) Act 2019, s 12(3)(b).
[459] COVID-19 Public Health
Response Act 2020, s 9(1)(ba).
[460] Parole (Extended
Supervision Orders) Amendment Bill 2014 (195-1) (explanatory note) at 2; Letter
from Jo Field (Deputy Chief Executive,
Service Development, Ara Poutama |
Department of Corrections) to Mike Sabin MP (Chairperson, Law and Order
Committee) regarding Parole
(Extended Supervision Orders) Amendment Bill –
Initial Briefing (24 October 2014) at [14]; Ara Poutama | Department of
Corrections
Regulatory Impact Statement: Enhanced Extended Supervision Orders
(3 November 2014) at [70].
[461] There is some suggestion
the PPO legislation attempts to capture many of the attributes associated with
psychopathy that are listed
in the psychopathy checklist (PCL-R) and associated
with anti-social personality disorder (ASPD): Jeanne Snelling and John McMillan
“Antisocial Personality Disorders and Public Protection Orders in New
Zealand” in Luca Malatesti, John McMillan and Predrag
Šustar (eds)
Psychopathy: Its Uses, Validity and Status (Springer, Cham, 2022) at
50–51. However, in Chief Executive of Department of Corrections v Waiti
[2019] NZHC 3256 at [38], health assessors gave advice to the court that
they were not aware of any clinical foundation for the requirement that the
person
has a “persistent harbouring of vengeful intentions towards 1 or
more persons”. The Court noted it could not be identified
as psychopathy
and thus the list of traits and characteristics in s 107IAA(2) is the
statute’s own construct.
[462] See discussion in R v
Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52]; and Report of the
Committee on Serious Violent and Sexual Offenders (Scottish Executive,
SE/2000/68, June 2000) at [2.4].
[463] Lucy Moore Literature
Review — Risk Assessment of Serious Offending Commissioned by Te
Aka Matua o te Ture | Law Commission (2023) at 9.
[464] McIntosh v Chief
Executive of the Department of Corrections [2021] NZCA 218 at [23]. See
also Chief Executive of Department of Corrections v Douglas [2016] NZHC
3184 at [83] in respect of PPOs.
[465] Mosen v Chief
Executive of the Department of Corrections [2022] NZCA 507.
[466] See also the
difficulties in interpreting and applying s 107IAA(2)(a)(iii) expressed by te
Kōti Matua o Aotearoa | High Court
in Chief Executive of the Department
of Corrections v Waiti [2019] NZHC 3256 at [36]–[39].
[467] Chief Executive of
Department of Corrections v Ihimaera [2019] NZHC 19 at [34].
[468] W (CA716/2018) v
Chief Executive of Department of Corrections [2019] NZCA 460 at [36].
[469] See for example Chief
Executive of the Department of Corrections v Waiti [2019] NZHC 3256 at
[36]–[39].
[470] In the Cabinet Social
Policy Committee Paper “Public Protection Orders: Establishing a Civil
Detention Regime” (Cabinet
Office Wellington, SOC (12) 16, 23 March 2012)
at [108], the Ministers of Justice and Corrections recognised “[i]t is
probable
that [the proposed PPO regime] would primarily affect offenders of low
intelligence and with intellectual disabilities”. In
Deputy Chief
Executive of Department of Corrections v McCorkindale [2020] NZHC 2484 at
[24], the Court received evidence from an expert forensic psychologist that the
traits and behavioural characteristics set out in s 13(2)
of the Public Safety
(Public Protection Orders) Act 2014 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.
[471] Parole Act 2002, ss
107IAA(1)(c) and 107IAA(2)(b)(ii); Public Safety (Public Protection Orders) Act
2014, s 13(2)(b).
[472] Parole Act 2002, s
107IAA(1)(d)(i).
[473] Public Safety (Public
Protection Orders) Act 2014, s 13(2)(c).
[474] Public Safety (Public
Protection Orders) Act 2014, s 13(2)(d).
[475] As, for example, was the
case in Mosen v Chief Executive of the Department of Corrections [2022]
NZCA 507.
[476] United Nations
Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (opened for
signature 30 March 2007, entered into
force 3 May 2008).
[477] Christopher Slobogin
“Eliminating Mental Disability as a Legal Criterion in Deprivation of
Liberty Cases: The Impact of the
Convention on the Rights of Persons with
Disabilities on the Insanity Defense, Civil Commitment, and Competency
Law” (2015) 40 International Journal of Law and Psychiatry 36 at 36.
[478] Mosen v Chief
Executive of the Department of Corrections [2022] NZCA 507 at [26].
[479] Lucy Moore Literature
Review — Risk Assessment of Serious Offending Commissioned by Te
Aka Matua o te Ture | Law Commission (2023) at 15.
[480] Sentencing Act 2002, s
88(1)(b).
[481] Parole Act 2002, s
107F(2).
[482] Public Safety (Public
Protection Order) Act 2014, s 9.
[483] Sentencing Act 2002, s
88(1)(b); Parole Act 2002, s 107I(2); and Public Safety (Public Protection
Orders) Act 2014, s 13(1).
[484] Sentencing Act 2002, s
4; Parole Act 2002, s 107F(2); and Public Safety (Public Protection Orders) Act
2014, s 3.
[485] Sentencing Act 2002, s
88(1)(b).
[486] Parole Act 2002, s
107F(2).
[487] Parole Act 2002, s
107F(2A).
[488] Public Safety (Public
Protection Orders) Act 2014, s 9(a).
[489] Public Safety (Public
Protection Orders) Act 2014, s 9(b).
[490] Parole Act 2002, s
107H(2); and Public Safety (Public Protection Orders) Act 2014, s 108(1).
[491] Public Safety (Public
Protection Orders) Act 2014, s 108(2).
[492] R v Peta [2007]
NZCA 28, [2007] 2 NZLR 627 at [50]–[54]. See also “Risk Assessment
Methodology and Best Practice” in Simon France (ed) Adams on Criminal
Law (online looseleaf ed, Thomson Reuters) at [PA107I.05].
[493] Armon Tamatea, Nick
Lascelles and Suzanne Blackwell “Psychological Reports for the Courts on
Persons Convicted of Criminal
Offending” in Fred Seymour, Suzanne
Blackwell and Armon Tamatea (eds) Psychology and the Law in Aotearoa New
Zealand (4th ed, Rōpū Mātai Hinengaro o Aotearoa | New
Zealand Psychological Society, Wellington, 2022) 201 at 213 (Table 1);
and Lucy
Moore Literature Review — Risk Assessment of Serious Offending
Commissioned by Te Aka Matua o te Ture | Law Commission (2023) at 13.
[494] Lucy Moore Literature
Review — Risk Assessment of Serious Offending Commissioned by Te
Aka Matua o te Ture | Law Commission (2023) at 18.
[495] Susan Glazebrook
“Risky Business: Predicting Recidivism” (2010) 17 Psychiatry,
Psychology and Law 88 at 98–99.
[496] Lucy Moore Literature
Review — Risk Assessment of Serious Offending Commissioned by Te
Aka Matua o te Ture | Law Commission (2023) at 18.
[497] R v Peta [2007]
NZCA 28, [2007] 2 NZLR 627 at [16]. For an overview of the transition of the
criminal justice and correction system from psychological professional judgement
to evidence-based
tools for predicting reoffending, see Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Offender Assessment
Policies Report (Wai 1024, 2005) at 24–26 and 33–38.
[498] New South Wales
Sentencing Council High-Risk Violent Offenders: Sentencing and Post-Custody
Management Options (May 2012) at [2.75]; Susan Glazebrook “Risky
Business: Predicting Recidivism” (2010) 17 Psychiatry, Psychology and Law
88 at 94; and Kris Gledhill “Preventive Sentences and Orders: The
Challenges of Due Process” (2011) 1 Journal of Commonwealth
Criminal Law
78 at 86.
[499] Kris Gledhill
“Preventive Sentences and Orders: The Challenges of Due Process”
(2011) 1 Journal of Commonwealth Criminal
Law 78 at 86; and Susan Glazebrook
“Risky Business: Predicting Recidivism” (2010) 17 Psychiatry,
Psychology and Law 88 at 97.
[500] Lucy Moore Literature
Review — Risk Assessment of Serious Offending Commissioned by Te
Aka Matua o te Ture | Law Commission (2023) at 18; and Armon Tamatea, Nick
Lascelles and Suzanne Blackwell “Psychological Reports for the Courts on
Persons Convicted
of Criminal Offending” in Fred Seymour, Suzanne
Blackwell and Armon Tamatea (eds) Psychology and the Law in Aotearoa New
Zealand (4th ed, Rōpū Mātai Hinengaro o Aotearoa | New
Zealand Psychological Society, 2022) 201 at 222.
[501] Stephen Gottfredson and
Laura Moriarty “Statistical Risk Assessment: Old Problems and New
Applications” (2006) 52 Crime and Delinquency 178 at 183; and Susan
Glazebrook “Risky Business: Predicting Recidivism” (2010) 17
Psychiatry, Psychology and Law 88 at 94–95.
[502] Stephen Gottfredson and
Laura Moriarty “Statistical Risk Assessment: Old Problems and New
Applications” (2006) 52 Crime and Delinquency 178 at 184; and James Ogloff
and Michael Davis “Assessing Risk for Violence in the Australian
Context” in D Chappell and
P Wilson (eds) Issues in Australian Crime
and Criminal Justice (LexisNexis Butterworths, Chatswood, 2005) 294 at 306.
[503] Lucy Moore Literature
Review — Risk Assessment of Serious Offending Commissioned by Te
Aka Matua o te Ture | Law Commission (2023) at 15.
[504] See Colin Gavaghan,
Alistair Knott, James MacLaurin, John Zerilli, Joy Liddicoat Government Use
of Artificial Intelligence in New Zealand (New Zealand Law Foundation, 2019)
at 56–57; Oliver Fredrickson “Risk Assessment Algorithms in the New
Zealand Criminal
Justice System” (2020) NZLJ 328 at 330; and Susan
Glazebrook “Risky Business: Predicting Recidivism” (2010) 17
Psychiatry, Psychology and Law 88 at 95.
[505] Ewart v Canada
[2018] SCC 30, [2018] 2 S.C.R. 165
[506] Attorney-General
(Qld) v McLean [2006] QSC 137 at [26]; Attorney-General (Qld) v
George [2009] QSC 2 at [33]; and Director of Public Prosecutions (WA) v
Samson [2014] WASC 199 at [50]–[51].
[507] Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Offender Assessment
Policies Report (Wai 1024, 2005).
[508] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (2019) at 12, and Oliver Fredrickson “Risk Assessment
Algorithms in the New Zealand Criminal Justice System” (2020) NZLJ 328 at
330.
[509] See generally Armon
Tamatea “Culture is our business: Issues and challenges for forensic and
correctional psychologists”
(2017) 49(5) Australian Journal of Forensic
Sciences 564; and Oliver Fredrickson “Risk Assessment Algorithms in the
New Zealand Criminal Justice System” (2020) NZLJ 328 at 330.
[510] Darcy J Coulter, Caleb D
Lloyd and Ralph C Serin “Psychometric Properties of a Risk Tool Across
Indigenous Māori and
European Samples in Aotearoa New Zealand: Measurement
Invariance, Discrimination, and Calibration for Predicting Criminal
Recidivism”
(2023) Assessment 1 at 13. Note that the study found that
although Māori assessed by the DRAOR tool were more readily scored
as
having “slight/possible problem” in connection to “peer
associations”, New Zealand Europeans were more
likely to be assessed as
having “definite problems”.
[511] See R v Peta
[2007] NZCA 28, [2007] 2 NZLR 627 at [56], which described the lower
Court’s decision to impose an ESO as giving “sparse” reasons
for the ESO, which gave
rise to concerns the health assessor’s report had
been merely “referred to” and “rubber stamped”. See
too
Barr v Chief Executive of the Department of Corrections CA60/06, 20
November 2006 at [32] and Susan Glazebrook “Risky Business: Predicting
Recidivism” (2010) 17 Psychiatry, Psychology and Law 88 at 103–104.
[512] Susan Glazebrook
“Risky Business: Predicting Recidivism” (2010) 17 Psychiatry,
Psychology and Law 88 at 95.
[513] Lucy Moore Literature
Review — Risk Assessment of Serious Offending Commissioned by Te
Aka Matua o te Ture | Law Commission (2023) at 8.
[514] Chief Executive of
the Department of Corrections v Douglas [2023] NZHC 1085 at [146].
[515] Chief Executive of
the Department of Corrections v Douglas [2023] NZHC 1085 at [151].
[516] Chief Executive of
the Department of Corrections v Douglas [2023] NZHC 1085 at [152].
[517] See for example Peter
Johnston “Assessing Risk of Re-Offending: Recalibration of the Department
of Corrections’ Core
Risk Assessment Measure” (2021) 8 The New
Zealand Corrections Journal 13.
[518] In Miller v
Department of Corrections [2021] NZHC 983 at [34]–[37] the Court found
that the results from the tools, particularly the VRS-SO tool, were likely to
have exaggerated Mr Miller’s
reoffending risk because they were drawn from
sample data that did not reflect more recent studies showing that rates of
sexual recidivism
were declining.
[519] R v Peta [2007]
NZCA 28, [2007] 2 NZLR 627 at [50]–[54]. See also Susan Glazebrook
“Risky Business: Predicting Recidivism” (2010) 17 Psychiatry,
Psychology and Law 88 at 97–103.
[520] R v Peta [2007]
NZCA 28, [2007] 2 NZLR 627 at [51]. See also Susan Glazebrook “Risky
Business: Predicting Recidivism” (2010) 17 Psychiatry, Psychology and Law
88 at 97–103.
[521] See for example
Chisnall v Chief Executive of the Department of Corrections [2019] NZCA
510 at [22]; Chief Executive of the Department of Corrections v Chisnall
[2021] NZHC 32 at [201]; Chief Executive of the Department of Corrections
v Salmon [2021] NZHC 118 at [39]–[40], and Miller v Department of
Corrections [2021] NZHC 983 at [35]–[36].
[522] R v Peta [2007]
NZCA 28, [2007] 2 NZLR 627 at [56]; and Barr v Chief Executive of the
Department of Corrections CA60/06, 20 November 2006.
[523] Algorithm Charter for
Aotearoa New Zealand (Tatauranga Aotearoa | Stats NZ, July 2020) at 1 and
3.
[524] Parole Act 2002, s
29(4)(b). The Parole Board may vary or discharge a condition under s 58 upon
application by the offender or their
probation officer.
[525] Parole Act 2002, s
29AA(2).
[526] Parole Act 2002, s
6(4)(d).
[527] Parole Act 2002, s
29(1).
[528] Parole Act 2002, s
29(3).
[529] New Zealand Parole Board
“What we do” (accessed December 2022) <paroleboard.govt.nz>.
[530] Parole Act 2002, s
14(1).
[531] Parole Act 2002, s
29AA(1).
[532] Parole Act 2002, s
56.
[533] Parole Act 2002, s
15(3).
[534] A special release
condition requiring a person to take prescription medication may only be imposed
if the person gives informed
consent to taking the medication. Withdrawing
consent to take the prescription medication is not a breach of parole
conditions, but
failure to take the medication may give rise to a ground for
recall to prison: Parole Act 2002, s 15(4) and (5).
[535] Parole Act 2002, s
15(2).
[536] Parole Act 2002, s
7(1).
[537] Parole Act 2002, s
7(2)(a).
[538] Parole Act 2002, s
43(1)(a).
[539] Parole Act 2002, s
43(1)(c).
[540] Memorandum of
Understanding between the New Zealand Parole Board and the Department of
Corrections (December 2012) at 8; Tumuaki
o te Mana Arotake | Controller and
Auditor-General Department of Corrections: Managing Offenders on Parole
– Performance Audit Report (Ara Poutama | Department of Corrections,
February 2009); Memorandum from Sir Ron Young (Chairperson of New Zealand Parole
Board)
to John-Luke Day (Principal Legal and Policy Advisor, Te Aka Matua o te
Ture | Law Commission) regarding Preventive Detention, ESO
and Special
Conditions of Parole (21 April 2023) at 1.
[541] Memorandum from Sir Ron
Young (Chairperson of New Zealand Parole Board) to John-Luke Day (Principal
Legal and Policy Advisor, Te
Aka Matua o te Ture | Law Commission) regarding
Preventive Detention, ESO and Special Conditions of Parole (21 April 2023) at 1.
[542] Memorandum from Sir Ron
Young (Chairperson of New Zealand Parole Board) to John-Luke Day (Principal
Legal and Policy Advisor, Te
Aka Matua o te Ture | Law Commission) regarding
Preventive Detention, ESO and Special Conditions of Parole (21 April 2023) at
1.
[543] Section 49(3)(a) of the
Parole Act 2002 entitles the person to appear and make oral submissions. The
Parole Board also always provides
the person with an opportunity to make written
submissions: Memorandum from Sir Ron Young (Chairperson of New Zealand Parole
Board)
to John-Luke Day (Principal Legal and Policy Advisor, Te Aka Matua o te
Ture | Law Commission) regarding Preventive Detention, ESO
and Special
Conditions of Parole (21 April 2023) at 1.
[544] Section 49(3)(c) of the
Parole Act 2002 entitles the person to be represented by counsel with leave of
the Parole Board. In practice,
the Parole Board always grants leave to persons
who are subject to preventive detention: Memorandum from Sir Ron Young
(Chairperson
of New Zealand Parole Board) to John-Luke Day (Principal Legal and
Policy Advisor, Te Aka Matua o te Ture | Law Commission) regarding
Preventive
Detention, ESO and Special Conditions of Parole (21 April 2023) at 1.
[545] Memorandum of
Understanding between the New Zealand Parole Board and the Department of
Corrections (December 2012) at 9.
[546] Parole Act 2002, ss
43(2)(b) and 43(3).
[547] Parole Act 2002, ss 44
and 49(4)(a).
[548] Parole Act 2002, s
107J.
[549] Parole Act 2002, s
107J(2) and s 107O.
[550] Parole Act 2002, s
107JA(1).
[551] Parole Act 2002, s
107O(1).
[552] Parole Act 2002, s 107K.
The exception is intensive monitoring conditions, which are discussed further
below.
[553] Parole Act 2002, s
107IAC(1).
[554] Parole Act 2002, s
15(2).
[555] Parole Act 2002, s
107K(6).
[556] Parole Act 2002, s
107K(7).
[557] Parole Act 2002, s
107K(7).
[558] Memorandum from Sir Ron
Young (Chairperson of New Zealand Parole Board) to John-Luke Day (Principal
Legal and Policy Advisor, Te
Aka Matua o te Ture | Law Commission) regarding
Preventive Detention, ESO and Special Conditions of Parole (21 April 2023) at
2.
[559] Memorandum from Sir Ron
Young (Chairperson of New Zealand Parole Board) to John-Luke Day (Principal
Legal and Policy Advisor, Te
Aka Matua o te Ture | Law Commission) regarding
Preventive Detention, ESO and Special Conditions of Parole (21 April 2023) at
2.
[560] Parole Act 2002, s
107K(3)(a).
[561] Parole Act 2002, ss
107K(3)(b) and 107K(3)(ba).
[562] Parole Act 2002, s
107IAC(2).
[563] Parole Act 2002, s
107IAB.
[564] Parole Act 2002, s
107IAC(1).
[565] Parole Act 2002, s
107FA(3).
[566] Or discontinued: Parole
Act 2002, s 107FA(6).
[567] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 4.
[568] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 25.
[569] Ara Poutama | Department
of Corrections has proposed amendments to the Corrections Act 2004 to strengthen
the approach in Hōkai Rangi. The Cabinet Social Wellbeing Committee
has agreed to introduce some of these amendments to the Corrections Act,
including incorporating
three new principles derived from the principles of the
Treaty that would, so far as reasonably practicable, support the Corrections
system to provide for equitable outcomes for Māori, engage and work with
Māori and promote the wellbeing of Māori
and other people: Cabinet
Social Wellbeing Committee Minute of Decision: Amendments to the Corrections
Legislative Framework: Improving Safety, Rehabilitation and Reintegration
Outcomes
(Cabinet Office Wellington, SWC-22-MIN-0244, 14 December 2022).
[570] Parole Act 2002, ss
15(3)(b) and 16. The person or agency must be approved by the chief
executive.
[571] Corrections Act 2004, s
6(1)(c).
[572] Memorandum from Sir Ron
Young (Chairperson of New Zealand Parole Board) to John-Luke Day (Principal
Legal and Policy Advisor, Te
Aka Matua o te Ture | Law Commission) regarding
Preventive Detention, ESO and Special Conditions of Parole (21 April 2023) at
2.
[573] Kim Workman
“Whānau Ora and Imprisonment” (Ngā Pae o te
Māramatanga, Te Arotahi Series Paper, 3 September
2019) at 12.
[574] See for example Reid
v Parole Board [2006] NZCA 445; (2006) 22 CRNZ 743 (CA).
[575] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 20.
[576] Memorandum from Sir Ron
Young (Chairperson of New Zealand Parole Board) to John-Luke Day (Principal
Legal and Policy Advisor, Te
Aka Matua o te Ture | Law Commission) regarding
Preventive Detention, ESO and Special Conditions of Parole (21 April 2023) at
2.
[577] Parole Act 2002, s
49(3)(d).
[578] Parole Act 2002, s
49(2).
[579] As recognised in Ara
Poutama | Department of Corrections Hōkai Rangi: Ara Poutama Aotearoa
Strategy 2019–2024 (19 August 2019) at 17.
[580] For example, te
Kōti Pīra o Aotearoa | Court of Appeal confirmed that decisions of the
Parole Board in imposing special
conditions must be consistent with the NZ Bill
of Rights in McGreevy v Chief Executive of the Department of Corrections
[2019] NZCA 495 at [21].
[581] Te Whatu v Department
of Corrections [2017] NZHC 3233.
[582] Te Whatu v Department
of Corrections [2017] NZHC 3233 at [2].
[583] To meet concerns about
the possible overreach of the three strikes regime, Cabinet relied on an
administrative requirement that
the local Crown Solicitor review all stage three
charges. When exercising discretion to lay charges, Crown Solicitors are
required
to consider the public interest, which includes NZ Bill of Rights
considerations. The expectation was that prosecutorial discretion
would be
exercised to avoid unjust or disproportionately severe outcomes. In
Fitzgerald v R, te Kōti Mana Nui o Aotearoa | Supreme Court
considered an appeal against conviction and sentence by the appellant, who had
been sentenced to the maximum penalty of seven years’ imprisonment for an
indecent assault that was at the bottom of the range
of seriousness. A majority
of the Court considered the sentence breached the right not to be subjected to
disproportionately severe
treatment or punishment affirmed in s 9 of the NZ Bill
of Rights. The administrative safeguard had failed to prevent a breach of
the NZ
Bill of Rights. All of the judges questioned whether the administrative
safeguard was an appropriate method of guarding against
inappropriately harsh
outcomes in breach of the NZ Bill of Rights. Winkelmann CJ and William Young J
considered that the rule of
law required the safeguard to be “addressed
within the legislation rather than left to ad hoc administrative
decisions”:
Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at
[174] per Winkelmann CJ and at [326] per William Young J.
[584] Parole Act 2002, s
15(3)(ab).
[585] Woods v New Zealand
Police [2020] NZSC 141, [2020] 1 NZLR 743 at [23].
[586] Parole Act 2002, s
33(2).
[587] Parole Act 2002, s
33(4).
[588] Parole Act 2002, s
34(2).
[589] Parole Act 2002, s
35.
[590] Parole Act 2002, s
35(c).
[591] Parole Act 2002, s
33(3).
[592] Parole Act 2002, s
107K(3)(b).
[593] Woods v New Zealand
Police [2020] NZSC 141, [2020] 1 NZLR 743 at [29]: the Supreme Court made
this comment in relation to a number of provisions of the Parole Act 2002 and
also their interaction with
provisions of the Sentencing Act 2002.
[594] Parole Act 2002, s
35(c).
[595] Parole Act 2002, s
107K(1A).
[596] Woods v New Zealand
Police [2020] NZSC 141, [2020] 1 NZLR 743 at [74].
[597] Parole Act 2002, s
7(2)(a).
[598] Miller v New Zealand
Parole Board HC Wellington CRI-2004-485-37, 11 May 2004.
[599] Parole Act 2002, s 4(1)
“release conditions” (emphasis added).
[600] For example see s
107O(2) of the Parole Act 2002, which states that certain sections of the Parole
Act apply “as if the conditions
of the extended supervision order were
release conditions”.
[601] Chief Executive of
the Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162, 8
December 2004 at [33].
[602] Chief Executive of
the Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162, 8
December 2004 at [34].
[603] We discuss other
proceedings involving Mr Chisnall’s challenge of the ESO and PPO regimes
in Chapter 3.
[604] Chief Executive of
the Department of Corrections v Chisnall [2017] NZHC 3120.
[605] Chisnall v Chief
Executive of the Department of Corrections [2019] NZCA 510.
[606] Chief Executive of
the Department of Corrections v Chisnall [2021] NZHC 32.
[607] Chisnall v Chief
Executive of the Department of Corrections [2022] NZCA 402.
[608] Sentencing Act 2002, s
93. A court that sentences an offender to a term of imprisonment of 24 months or
less may impose any special
conditions on the offender, including conditions of
the kind that the Parole Board may impose under s 15(3) of the Parole Act 2002.
[609] Sentencing Act 2002, ss
50, 52, 54G, 54I, 80D and 80P.
[610] Bail Act 2000, s 30.
[611] C v New Zealand
Parole Board [2021] NZHC 2567 at [7].
[612] Parole Act 2002, s
107R.
[613] Parole Act 2002, s
107R(2).
[614] Criminal Procedure Act
2011, s 250(2).
[615] Parole Act 2002, s
107S.
[616] Parole Act 2002, ss
67.
[617] For example in
Coleman v Chief Executive of the Department of Corrections [2020] NZHC
1033 at [33], te Kōti Matua o Aotearoa | High Court said that the
appropriate procedure to challenge the conditions of an ISO would be judicial
review.
[618] Parole Act 2002, s
107IAC(2).
[619] There is one exception.
Prior to 2014, intensive monitoring was a special condition that could be
imposed by the Parole Board without
a court order. It could also only be imposed
for a maximum of 12 months. Under s 107IAC(6), a person who was subject to an
ESO before
12 December 2014 can be made subject to an IM condition even if,
under that ESO, they were subject to an IM condition imposed by
the Parole
Board.
[620] Department of
Corrections v Paniora [2018] NZHC 1505 at [46].
[621] Department of
Corrections v Miller [2017] NZHC 2527 at [16]. This was followed in for
example Chief Executive of the Department of Corrections v Narayan [2022]
NZHC 1535.
[622] Parole Act 2002, s
107IAC(1).
[623] Chief Executive of
the Department of Corrections v Kerr [2017] NZHC 139.
[624] For example Chief
Executive of the Department of Corrections v Clements [2021] NZHC 1383.
[625] Letter from Jo Field
(Deputy Chief Executive, Service Development, Ara Poutama | Department of
Corrections) to Mike Sabin MP (Chairperson,
Law and Order Committee) regarding
the Parole (Extended Supervision Orders) Amendment Bill – Initial Briefing
(24 October 2014)
at [17].
[626] Ara Poutama | Department
of Corrections Regulatory Impact Statement: Enhanced Extended Supervision
Orders (3 November 2013) at 15.
[627] Chief Executive of
the Department of Corrections v R [2018] NZHC 3106; and Chief Executive
of the Department of Corrections v R (No 2) [2018] NZHC 3455.
[628] Parole Act 2002, s
107K(3)(bb).
[629] Parole Act 2002, s
107K(3)(bb)(ii).
[630] C v New Zealand
Parole Board [2021] NZHC 2567 at [19].
[631] For example s 61(e)
provides for grounds of recall “in the case of an offender who is subject
to a special condition that
requires his or her attendance at a residential
programme”.
[632] New Zealand Parole
Board v Attorney-General [Statement of Claim (Application for Declaratory
Judgment) dated 16 May 2022, CIV-2022-485].
[633] Statement of Evidence of
Professor Devon Polaschek on Behalf of Ara Poutama Aotearoa | Department of
Corrections (Criminal Psychology)
to the Independent Hearings Commissioners
before the Christchurch City Council, in the matter of an application by Ara
Poutama Aotearoa/Department
of Corrections for resource consent to establish a
rehabilitative and reintegrative residential accommodation programme with an
existing
property at 14 Bristol Street, Christchurch (RMA/2020/173) (16 August
2021), citing Richard Shuker “Treating Offenders in a
Therapeutic
Community” in L Craig, L Dixon and T Gannon (eds) What Works in
Offender Rehabilitation (Wiley-Blackwell, Chichester, 2013) at 340.
[634] Parole Act 2002, s
107JA(1)(i).
[635] Including certain
offences under the Films, Videos, and Publications Classification Act 1993.
[636] Parole Act 2002, s
107JA(3).
[637] Parole Act 2002, s
86(3).
[638] Parole Act 2002, s
20(1).
[639] Parole Act 2002, s
28(2).
[640] Parole Act 2002, s
7(3).
[641] Parole Act 2002, s
28(1AA).
[642] Vincent v New Zealand
Parole Board [2020] NZHC 3316 at [87].
[643] Parole Act 2002, s
82(3).
[644] Parole Act 2002, s
6(4)(d).
[645] Parole Act 2002, s
29(4)(b).
[646] Parole Act 2002, s 56(1)
and (2).
[647] Parole Act 2002, s 4:
“variation”.
[648] As noted in Grinder v
New Zealand Parole Board [2022] NZHC 3188 at [41].
[649] Grinder v New Zealand
Parole Board [2022] NZHC 3188.
[650] Grinder v New Zealand
Parole Board [2022] NZHC 3188 at [51].
[651] Parole Act 2002, s
71(2).
[652] Parole Act 2002, s 61.
[653] Parole Act 2002, s
107I(4).
[654] Parole Act 2002, s
107C(1)(a)(iii).
[655] Parole Act 2002, s
107L(3).
[656] Parole Act 2002, s
107M(1).
[657] Parole Act 2002, s
107M(1).
[658] Parole Act 2002, s
107RA(2).
[659] Parole Act 2002, s
107P(1)(a).
[660] Parole Act 2002, s
107P(2).
[661] Parole Act 2002, s
107P(3).
[662] Parole Act 2002, s
107O(1). It is unclear whether the Parole Board may vary or discharge an
intensive monitoring condition —
we discuss this in the issues section of
this chapter.
[663] Parole Act 2002, s
107O(2).
[664] Parole Act 2002, s
107RB(2).
[665] Parole Act 2002, s
107RB(1).
[666] Parole Act 2002, ss
107RB(3) and 107RB(4).
[667] Parole Act 2002, ss 107T
and 107TA(2).
[668] Public Safety (Public
Protection Orders) Act 2014, s 15(1).
[669] Public Safety (Public
Protection Orders) Act 2014, s 15(2).
[670] Public Safety (Public
Protection Orders) Act 2014, s 17(1).
[671] Public Safety (Public
Protection Orders) Act 2014, s 16(1).
[672] Public Safety (Public
Protection Orders) Act 2014, ss 18(4) and 93(1). We discuss PSOs in Chapter
1.
[673] Public Safety (Public
Protection Orders) Act 2014, s 94.
[674] Public Safety (Public
Protection Orders) Act 2014, s 96(1).
[675] Public Safety (Public
Protection Orders) Act 2014, s 97.
[676] Public Safety (Public
Protection Orders) Act 2014, s 99.
[677] Public Safety (Public
Protection Orders) Act 2014, s 102(1).
[678] Public Safety (Public
Protection Orders) Act 2014, ss 103 and 103A.
[679] Public Safety (Public
Protection Orders) Act 2014, s 85(1).
[680] Public Safety (Public
Protection Orders) Act 2014, s 85(2).
[681] Public Safety (Public
Protection Orders) Act 2014, s 87(1).
[682] Public Safety (Public
Protection Orders) Act 2014, s 88(1).
[683] Public Safety (Public
Protection Orders) Act 2014, s 89.
[684] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC).
[685] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.15].
[686] This right is affirmed
by the Habeas Corpus Act 2001, s 6.
[687] Miller v New Zealand
Parole Board [2010] NZCA 600 at [51].
[688] See Rameka v New
Zealand (2004) 7 HRNZ 663 (UNHRC) at [7.3]; Miller v New Zealand Parole
Board [2010] NZCA 600 at [70]; and Miller v New Zealand (2017) 11
HRNZ 400 (UNHRC) at [8.3].
[689] Vincent v New Zealand
Parole Board [2020] NZHC 3316 at [86].
[690] Vincent v New Zealand
Parole Board [2020] NZHC 3316 at [86].
[691] Vincent v New Zealand
Parole Board [2020] NZHC 3316 at [87].
[692] In Vincent v New
Zealand Parole Board [2020] NZHC 3316, te Kōti Maua o Aotearoa | High
Court noted at [88] that the Parole Board had refused parole for Mr Vincent, who
was detained
under a sentence of preventive detention, at least 48 times.
[693] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.5].
[694] Vincent v New Zealand
Parole Board [2020] NZHC 3316 at [88] citing RIDCA Central (Regional
Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641
at [90]–[91].
[695] RIDCA Central
(Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012]
1 NZLR 641 at [90].
[696] Public Safety (Public
Protection Orders) Act 2014, s 107.
[697] Parole Act 2002, s
107IAC(3).
[698] Parole Act 2002, s
107IAC(4).
[699] In C v New Zealand
Parole Board [2021] NZHC 2567, the Court at [121] considered that conditions
requiring line-of-sight monitoring for periods of five to six hours at a time
amounted
to intensive monitoring.
[700] Parole Act 2002, s
107O(1A).
[701] Parole Act 2002, ss 107T
and 107TA.
[702] Parole Act 2002, s
15(2).
[703] Offence-paralleling
behaviour is a behavioural pattern that resembles, in some significant respect,
the sequence of behaviours that
has previously led to an offence: Lawrence Jones
“Offence Paralleling Behaviour (OPB) as a Framework for Assessment and
Interventions
with Offenders” in Adrian Needs and Graham Towl (eds)
Applying Psychology to Forensic Practice (Blackwell Publishing, Oxford,
2004) 34 at 38.
[704] Statement of Evidence of
Professor Devon Polaschek on Behalf of Ara Poutama Aotearoa/Department of
Corrections (Criminal Psychology)
to the Independent Hearings Commissioners
before the Christchurch City Council, in the matter of an application by Ara
Poutama Aotearoa/Department
of Corrections for resource consent to establish a
rehabilitative and reintegrative residential accommodation programme with an
existing
property at 14 Bristol Street, Christchurch (RMA/2020/173) (16 August
2021) at 22.
[705] Statement of Evidence of
Professor Devon Polaschek on Behalf of Ara Poutama Aotearoa/Department of
Corrections (Criminal Psychology)
to the Independent Hearings Commissioners
before the Christchurch City Council, in the matter of an application by Ara
Poutama Aotearoa/Department
of Corrections for resource consent to establish a
rehabilitative and reintegrative residential accommodation programme with an
existing
property at 14 Bristol Street, Christchurch (RMA/2020/173) (16 August
2021) at 22–23.
[706] Bail Act 2000, s
30(4)(c). Bail conditions may also be imposed for the purposes of ensuring the
person appears in court and that
they do not interfere with any witness or
evidence against them: Bail Act 2000, ss 30(4)(a) and 30(4)(b).
[707] Bail Act 2000, ss 35 and
37.
[708] Public Safety (Public
Protection Orders) Act 2014, s 107.
[709] Bail Act 2000, ss 39(1)
and 39(3).
[710] Bail Act 2000, s
39(4).
[711] Bail Act 2000, s
8(2)(e).
[712] Email from Phil Meredith
(Manager Strategic Analysis – Research & Analysis, Ara Poutama |
Department of Corrections) to
John-Luke Day (Principal Legal and Policy Advisor,
Te Aka Matua o te Ture | Law Commission) regarding data on preventive detention
and ESOs (14 March 2023).
[713] If preventive detention
is continued and reformed in accordance with Proposal 6, Māori-designed and
Māori-led initiatives
should be made available once a person completes
their minimum term of imprisonment.
[714] Ara Poutama | Department
of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy
2019–2024 (19 August 2019) at 18.
[715] Sentencing Act 2002, s
27; Parole Act 2002, s 107H(2); Public Safety (Public Protection Orders) Act
2014, s 108(1).
[716] See for comparison s
107H(4) of the Parole Act 2002 that requires the chief executive of Ara Poutama
| Department of Corrections,
when applying for an ESO in respect of a person, to
notify every victim of the person about the hearing. Victims may make written
submissions to the court and, with the leave of the court, may appear and make
oral submissions at the hearing: s 107H(5).
[717] Parole Act 2002, s
16(c).
[718] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC); Chisnall v Attorney-General [2021] NZCA
616, [2022] 2 NZLR 484.
[719] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.3] citing United Nations Human Rights
Committee General Comment No. 35, Article 9 (Liberty and Security of
the Person) CCPR/C/GC/35 (16 December 2014) at [21].
[720] Miller v New Zealand
(2017) 11 HRNZ 400 (UNHRC) at [8.3] citing United Nations Human Rights
Committee General Comment No. 35, Article 9 (Liberty and Security of
the Person) CCPR/C/GC/35 (16 December 2014) at [21].
[721] Public Safety (Public
Protection Orders) Act 2014, s 36.
[722] Chisnall v
Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [164].
[723] Strafgesetzbuch –
StGB [German Criminal Code] 1998 (Germany), s 66C.
[724] Corrections Act 2004, s
6(1)(h).
[725] Corrections Act 2004, s
52.
[726] B v R 2365/09
Federal Constitutional Court, Second Senate, 4 May 2011 at [100] and [113].
[727] As stated in Chapter 6,
five young adults were sentenced to preventive detention in the 10-year period
from 1 July 2012 to 30 June
2022.
[728] Terrorism Suppression
(Control Orders) Act 2019, s 12(2).
[729] Terrorism Suppression
(Control Orders) Act 2019, s 12(3).
[730] Sentencing Act 2002, s
94.
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