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Supreme Court reviews orders in place for repeat sex offender

17 May 2024

| Author: Jamie Dierick

Parole Act 2002 – extended supervision orders – Criminal Procedure (Mentally Impaired Persons) Act 2003 – compulsory care orders – can compulsory care orders and extended supervision orders run concurrently? – can GPS monitoring be imposed under a compulsory care order? – does the New Zealand Bill of Rights Act 1990 affect the exercise of powers to review an extended supervision order?

R v Chief Executive of the Department of Corrections [2024] NZSC 47 per Kós J

 

R, a 69-year-old man, has spent most of his life in institutional care. R has committed multiple sexual offences against women and girls, with the first allegation at age 14.

R also has an intellectual disability which has led him to have been found unfit to stand trial.

R is subject to both an extended supervision order (ESO) under the Parole Act 2002 and a compulsory care order (CCO) under the Criminal Procedure (Mentally Impaired Persons) Act 2003, which is governed by the Intellectual Disability (Compolsuroy Care and Rehabilitation) Act 2003 (the IDCCR Act).

An ESO allows for the imposition of parole-like conditions on high-risk sexual or serious violent offenders. A CCO provides for compulsory care in a designated facility for certain individuals with an intellectual disability, including those declared unfit to stand trial.

The conditions of the ESO are suspended while the CCO remains in force, with the exception of an electronic monitoring condition. The CCO, which R did not oppose, is the primary order in place for him.

Under s 107RA of the Parole Act, the High Court must review R’s ESO every five years and, following the review, either confirm the ESO or cancel it. On 31 August 2021, the court confirmed R’s ESO on the basis that he continued to pose a high risk of committing further sexual offences and that the ESO was needed if the CCO came to an end. R appealed this decision. The Court of Appeal dismissed the appeal and upheld the confirmation of the ESO.

The approved question was how the NZBORA affects the exercise of the court’s discretion to renew an ESO when the individual concerned is also subject to a CCO.

Ultimately, the Supreme Court deemed it unnecessary to address the approved question, given that a key argument underpinning the decisions of the High Court and the Court of Appeal was abandoned by the Department of Corrections. Further, counsel for R had not had the opportunity to obtain his informed instructions regarding new evidence from the respondent, nor were they able to test the evidence by cross-examination.

However, the court concluded that the appeal should be formally allowed, and each of the issues needed to be properly assessed against the background of properly tested facts. The review would be remitted to the High Court for reconsideration.

There were two further specific matters the court: first, do the statutory schemes permit concurrent ESO and CCOs? Second, could GPS monitoring be imposed under a CCO?

First, Kós J held that it was possible for an ESO and CCO to be imposed concurrently, though s 107P of the Parole Act 2002 automatically suspends ESO conditions while a CCO is in place.

Second, the Kós J questioned whether the IDCCR Act could be read so as to permit the imposition of electronic monitoring under a CCO, but declined to express a final view on the matter.

 

Applicable principles: Judicial review and discretion – interplay between legal frameworks – legal rights and justifications – balancing of completing interest – protection of vulnerable individuals.

 

Held: The appeal is allowed. The application by the respondent to adduce further evidence is granted. The proceeding is remitted to the High Court for reconsideration. Pending the court’s decision, R remains subject to the ERO.

 

Jamie Dierick is an employed criminal defence barrister

 

R v DOC 2024-NZSC-47

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