IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2020-409-000229
[2020] NZHC 1446	

BETWEEN	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant	
AND	TOMMY APERA PORI
Respondent	

Hearing:	24 June 2020	
Appearances:	C J Boshier for Applicant M Starling for Respondent	
Judgment:	25 June 2020	

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 25 June 2020 at 9.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date 25 June 2020

[1]	The Chief Executive of the Department of Corrections (the Chief Executive) has applied, under s 104 of the Public Safety (Public Protection Orders) Act 2014 (the Public Safety Act), for a public protection order (PPO) in respect of Mr Pori.

[2]	Corrections has also applied for an order pursuant to s 107 of the Public Safety Act that Mr Pori be subject to an interim detention order (IDO) to have effect until the application can be heard in full.

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PORI [2020] NZHC 1446 [25 June 2020]

[3]	Mr Pori is currently remanded in custody on a charge of breach of the existing extended supervision order (ESO).1   He is due to be sentenced on that  breach on    25 June 2020. While it is expected that Mr Pori will receive a term of imprisonment for the breach of the ESO, he may be close to release on a time served basis given the time he has spent in custody. For this reason, the applicant has requested that the application for an interim detention order be heard prior to the 25 June sentencing date.

[4]	Both the public protection order and the interim detention order applications include an application pursuant to ss 85 and 107(2) of the Public Safety Act seeking that Mr Pori serve his IDO and PPO in prison instead of Matawhāiti residence, which is a purpose built, secure facility located alongside Christchurch Men’s Prison and designed to house individuals who are subject to a PPO.

[5]	Mr Pori opposes the applications, saying he should have the opportunity to obtain his own health assessors’ reports and, in the interim he is subject to an ESO with intensive monitoring which provides sufficient protection for the public. He also rejects the application to have the IDO and PPO served in prison, and submits that in any event, there is no jurisdiction to direct that an IDO be served in prison.

Interim detention orders

[6]	The hearing on 24 June 2020 dealt with the application for an IDO. The order is sought pursuant to s 107 of the Public Safety Act. That section provides:

107 Court may order interim detention of, or interim imposition of conditions on, respondent

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

(a)	a respondent is released from detention:

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

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

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

1	The existing ESO was imposed in December 2017 and is currently set to expire on 7 August 2026.

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

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

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

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

[7]	In this case, the triggering event under s 107(1) is Mr Pori’s imminent release from detention.2

[8]	The test which applies to the making of an interim detention order is the same as for the substantive PPO. In Chisnall v Chief Executive of the Department of Corrections, it was said:3
… it is appropriate to indicate agreement with the view that interim orders under s 107 of the Public Safety Act can be made only when the court is satisfied on the balance of probabilities of eligibility under s 7 and that the conditions in s 13 are established.

[9]	However, as the Court in Chisnall noted:4

Applications for interim detention order or interim supervision order are necessarily determined on a provisional view of the evidence because until the substantive hearing of the public protection order application the evidence may not yet be fully tested or countered by evidence called on behalf of the respondent.

[10]	While Mr Starling, counsel for Mr Pori, seeks an adjournment to obtain his own health assessors’ reports, noting there is a concern that Mr Pori suffers from cognitive impairment and dementia is a possibility, I consider the application for an IDO should proceed. It is an interim measure designed to address public safety issues. I still must impose the least restrictive outcome that is appropriate, albeit on a

2	Under s 107(1)(a).
3	Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [33].
4	At [20].

provisional basis. Any views on the evidence reached in this hearing can be revisited when the application for a PPO is heard.

Does the evidence provisionally satisfy me that the conditions in s 13 are established?

[11]	Mr Pori meets the jurisdictional threshold for the imposition of a public protection order (and  therefore an interim detention order) which are set out in         s 7(1)(b), in that he is over 18 years of age, he is subject to an ESO, and he is or has been subject to a condition of full-time accompanying and monitoring imposed under s 107K of the Parole Act 2002.

[12]	However, I also need to be satisfied, at least on a provisional basis, that he is a person who meets the threshold for such an order because he is at very high risk of imminent serious sexual or violent offending. That is established by considering the four behavioural characteristics set out at s 13(2) of the Public Safety Act which are:

(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 victim of the respondent’s offending on actual or potential victims; and

(d)	poor interpersonal relationships or social isolation, or both.

Is there an intense drive or urge to commit a particular form of offending (s 13(2)(a))?

[13]	The application is brought primarily on the basis of Mr Pori’s drive to commit sexual offending. Prior to being under an ESO, Mr Pori had the following convictions:

(a)	a 1983 conviction for rape from the Cook Islands;

(b)	convictions from 1988 for being unlawfully found and assault on a child under 14 from the Cook Islands;

(c)	a 1993 conviction for rape from the Cook Islands; and

(d)	convictions from 2006 for sexual violation by unlawful sexual connection and indecent assault of a nine year old girl in New Zealand.

[14]	His offending in 1983 and 1988 involved entering the victim’s house at night, without consent.

[15]	Ms Waugh, who is a registered clinical psychologist and neuropsychologist and has provided a report dated 25 November 2019, states:

Mr Pori demonstrates a history of offending that can occur in an impulsive, opportunistic manner; or by actively seeking out and creating opportunities to offend. His offending is motivated by an intense desire for sexual gratification and ungoverned by impulse control, anticipation of the consequence for himself or others, or an ability to take another’s perspective. … His sexual offending has occurred over more than 35 years, with continued sexual offending and sexualised behaviour occurring during the period of his Extended Supervision Order. He has offended against females of different ages and within different environments.

These factors, in the writer’s opinion, all reflect an intense and persistent drive or urge to actively seek sexualised contact.

[16]	That opinion is supported by Dr Mattson, who is a registered clinical psychologist and who has provided a report dated 15 January 2020.

[17]	I am satisfied that Mr Pori’s record, combined with his observed behaviour while under an ESO demonstrates an intense drive to commit sexual offending.

Does Mr Pori demonstrate limited self-regulatory capacity?

[18]	Dr Mattson says that in her opinion:

… Mr Pori displays poor self regulation capacity. Further, that he has a personality profile and cognitive difficulties that mean he is unlikely to develop the requisite skills for appropriate management without external support and monitoring.

[19]	Ms Waugh concurs. She says:

Mr Pori has demonstrated a very limited self-regulatory capacity throughout his life and particularly over recent years. He displays frequent dysregulated emotional and aggressive outbursts in response to minimal triggers including perceived injustices and criticisms, change, when his goals are thwarted, and other forms of stress.

[20]	She concludes that he demonstrates a limited self-regulatory capacity both in regard to his sexual behaviour and his emotions and behaviour more generally.

[21]	I am satisfied that the health assessors’ reports, supported by the more recent reports from Ms Katey Gibling and Mr Andrew Burger, who have been involved with Mr Pori during his time residing at Tōruatanga, give numerous examples of Mr Pori’s poor capacity for self-regulation. He clearly meets this criterion.

Is there an absence of understanding or concern for victims?

[22]	Ms Waugh reports that:

… Mr Pori presents with a lack of understanding or concern regarding the impact of his sexual and violent offending against past or potential victims. He has shown no comprehension of the effects of his actions on victims, and rather minimised the harm caused. Throughout his life, Mr Pori has either denied his offending, or, markedly minimised his culpability. When he has acknowledged it, he has blamed others, circumstance, or misunderstanding, with no acknowledgment of personal responsibility. Mr Pori has shown little or no motivation to address his offending behaviour, denying the need to implement measures to prevent future risk of harm to others.

[23]	Dr Mattson also concludes that Mr Pori “currently lacks the ability to appreciate the impact and sequelae of effects of sexual or violent offending on victims.”

[24]	I am satisfied, by a clear margin, that Mr Pori does not have any understanding or concern for his victims.

Does Mr Pori have poor interpersonal relationships or social isolation?

[25]	Dr Mattson describes Mr Pori as having “rudimentary social skills and an unsophisticated ability to appropriately connect with others”. However, she qualifies that by saying “[w]ithin those connections, he is able to sustain appropriate social

behaviour as long as the other person is complying with his wishes or expectations.” However, she points that:

[w]henever Mr Pori experiences an interpersonal situation when he is not getting what he desires, he quickly reverts to agitation and aggression or sexualises his behaviour to manipulate the outcome he desires.

She concludes that Mr Pori continues to have poor interpersonal relationships and will therefore experience social isolation.

[26]	Similarly, Ms Waugh concludes that “Mr Pori has no adequate interpersonal support that may assist him manage his risk”.

[27]	Again, I accept Mr Pori has poor interpersonal relationships. He does not behave in a way that would foster meaningful relationships and manage his offending risk. His interactions are self-centred and take no account of whether his behaviour is appropriate from the other person’s perspective.

Is there a very high risk of imminent serious sexual offending?

[28]	I accept that all the personal characteristics listed in s 13(2) are demonstrated by Mr Pori. However, I must still be satisfied there is a very high risk of imminent serious sexual or violent offending if Mr Pori is left unsupervised.

[29]	In this case, the offending is sexual offending under Part 7 of the Crimes Act 1961 which is punishable by seven or more years’ imprisonment.

[30]	“Imminence” in this context means that the offender would be expected to commit such an offence as soon as he had a suitable opportunity to do so.5

[31]	Both health assessors are clear that Mr Pori is at very high risk of engaging in sexual reoffending and that risk would be imminent in the absence of a regime that includes strict monitoring.

5	Public Safety (Public Protection Orders) Act 2014, s 3.

[32]	Again, those opinions  are reiterated by the staff who currently work  with  Mr Pori in Tōruatanga residence. He continues to engage in sexually explicit communications with female staff and if he is challenged on his inappropriate sexual comments, he responds with aggression and anger. This has clearly caused significant difficulties in managing him to avoid unwanted advances to female staff.

[33]	Having read these accounts, I accept Ms Boshier’s submission that the evidence paints a picture of an individual who views most or all interactions with females through the lens of his sexual desires and he is incapable of exercising any empathy or self-control that might prevent him from acting on those desires in intrusive, aggressive and ultimately violent ways. He is at very high risk of imminent serious sexual offending if left unsupervised.

Is there an adequate alternative option?

[34]	Having decided that Mr Pori, at least on a provisional basis, meets the statutory criteria for making a PPO (and therefore an IDO), I also have to consider whether the risk to public safety can be sufficiently met by less restrictive options to interim detention.6

[35]	In August 2011, the Chief Executive sought and obtained an ESO for a period of 10 years. Mr Pori breached that order on multiple occasions and was also convicted of violent offending on multiple occasions. In 2017, although the ESO had not expired, the Chief Executive sought a new order with a direction for intensive monitoring for the maximum statutory period of 12 months.  Given  at that stage,   Mr Pori had already served three years of the 2011 ESO, the new ESO was made for a period of seven years, so as not to extend the total time that he was to be subject to an ESO.

[36]	In response to my query as to how long the intensive monitoring conditions have to run, Ms Boshier was able to advise the Court that Mr Pori had approximately five months of intensive monitoring to run. This is because, although it was imposed

6	Chisnall v Chief Executive of the Department of Corrections, above n 3, at [37].

on 11 December 2017, it was suspended between the following dates, when Mr Pori was imprisoned:

11 December 2017 – 14 February 2018

24 May 2018 – 3 October 2018

5 December 2018 – 18 June 2019

29 July 2019 – 27 February 2020

4 March 2020 – present date.

[37]	As the above record shows, Mr Pori has repeatedly breached his ESO. The offending involves violent and threatening behaviour, inappropriate contact with female staff and leaving the address where he is required to reside without authorisation. When he was sentenced on 30 August 2009, it was noted that he had 15 previous convictions for breach of an extended supervision order. He is about to be sentenced for his seventeenth breach.

[38]	The applicant’s position is that Mr Pori requires 24 hour monitoring to manage his risk. Ms Waugh says:

In the absence of intensive monitoring or a similarly resourced regime, it is considered highly likely that Mr Pori will deliberately seek out or respond impulsively to opportunities for sexual gratification. Mr Pori requires limitations placed on his ability to access potential victims either intentionally or incidentally. He requires a structured environment in which the routines and behavioural expectations are clear; agreed processes in place for care staff to follow in response to his behaviour problems; and close and consistent monitoring of his whereabouts. In addition, it is considered that any staff working with Mr Pori require training to ensure that his complex needs are met; those being his health needs, particularly in relation to a health model of care response to his behavioural impairments, and the effective management of his risk.

[39]	Dr Mattson also concludes that:

[t]o date and despite his frequent non-compliance with [the ESO], it seems that the support inherent in the Intensive Monitoring has been essential in preventing sexual offending. Without the high degree of responsiveness from Departmental staff and the Police, Mr Pori may well have attempted to sexually offend against the children or women he approached in the community.

[40]	Thus, as Ms Boshier submits, it is clear that Mr Pori requires 24 hour monitoring if he is not in a secure environment. She accepts that he could return to be managed under the existing ESO with intensive monitoring until that order expires. However, she points out that in a practical sense, that option is not available because there is no suitable residence to provide the 24 hour monitoring of Mr Pori. For the reasons explained in Ms Gibling’s and Mr Burger’s evidence, he is not able to return to Tōruatanga. As Ms Gibling says:

… Mr Pori’s presentation is such that even with extensive resource it is not possible to manage him without a significant risk of harm to other residents, staff, visitors and the community. Due  to this, the current  position is that  Mr Pori will not be accepted back at Tōruatanga if or when he is released from custody.

[41]	Mr Burger also explains why he does not consider Matawhāiti is suitable for Mr Pori. He says:

There are no other options available at Matawhāiti that have not already been tried, and failed, at Tōruatanga. Unlike Tōruatanga, Matawhāiti is surrounded by an electrified fence. This could potentially escalate Mr Pori’s anxieties and heighten his risk to staff informing him he was unable to leave the facility.

[42]	Mr Burger expresses particular concerns about the large number of female staff working at Matawhāiti who would be at risk from his ongoing tendency towards unpredictable behaviour, violence and aggression, particularly towards females.

[43]	It is for this reason that Ms Boshier seeks that Mr Pori be subject to an IDO that is served in custody, particularly where, as Ms Waugh noted in her report, that in prison, Mr Pori’s behaviour was notably more settled than when he is in the community as he appears to respond well to the routine structure and close attention afforded by the prison environment. However, as she points out, the court must proceed by taking into account s 5(d) which expresses the principle that:7
persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.

7	Public Safety (Public Protection Orders) Act 2014, s 5(d).

[44]	While that principle focuses on a public protection order I am satisfied that the same considerations should apply when considering an IDO and I need to be satisfied that the person cannot safely be accommodated in a non-prison residence before I can make an IDO which detains the person in prison.

[45]	Ms Boshier submits that the totality of the evidence presented shows that    Mr Pori poses an unacceptably high risk to others and this cannot be safely managed at either Tōruatanga or Matawhāiti.

[46]	As a side issue, she notes that there is uncertainty about the availability of emergency powers to Matawhāiti staff when dealing with persons on a IDO. The Public Safety Act, in s 3, defines a PPO as an order imposed under s 13 of the Public Safety Act whereas an IDO is an order imposed under s 107 of the Public Safety Act. The Public Safety Act also expressly defines a “resident” as a person subject to a PPO. It provides certain powers as to seclusion and restraint within the residence, but the powers are expressly stated to apply to residents which she says, read logically, relates to those on substantive PPOs.

[47]	Ms Boshier submits that the uncertainty over whether these powers apply to someone who is subject to an IDO is a relevant consideration when the court is deciding whether Mr Pori can be safely managed at Matawhāiti.

[48]	In her submission, therefore, the evidence shows there is no adequate alternative option other than the imposition of an IDO, to be served in a prison.

[49]	Counsel for Mr Pori, Mr Starling, considers, first, that there is no jurisdiction to order detention in a prison during the currency of an IDO, and in any event, the threshold is not met in its instance.

[50]	He points out that the court should only make such an order if the respondent would pose an unacceptably high risk to themselves or others, and all less restrictive appropriate options have been tried. He says in this case, the respondent may well be suffering from dementia or some other cognitive dysfunction and he should be treated in an appropriate mental health facility rather than remain in prison. That approach is

consistent with the provisions in a New Zealand Bill of Rights Act, including s 23(5), that Mr Pori is entitled to receive medical treatment that is reasonably necessary.

[51]	In the present case, he argues that at the end of his current sentence, Mr Pori would not be released from prison to an environment with no support and supervision. He is still subject to an ESO with intensive monitoring. That will endure for a further five months. While there may have been difficulties with that, Mr Pori has nevertheless been assigned to a female probation officer, has a female manager at Tōruatanga and both reports for the PPO application were written by female psychologists. It appears therefore, that Mr Pori has been able to have interactions with female staff and he is sceptical of the evidence by Ms Gibling and Mr Burger as to the inability to keep him in such a facility in the interim. While Mr Starling accepts Mr Pori has repeatedly offended during the term of his ESO, he says Mr Pori has not committed any further serious sexual offending so the ESO could be said to have addressed the identified risk. An IDO should not, in his submission, be made simply because Mr Pori is difficult to manage and repeatedly commits other offences.

[52]	Mr Starling also submits that even if the threshold for making an IDO is reached, there is no jurisdiction to direct Mr Pori to serve his IDO in prison. While s 107(2) allows the court to order that the respondent is to be “detained by a person, and in a place, specified in the order”, that cannot be read to encompass a prison. The ability to order a respondent to be held in prison is specifically addressed under s 85 and applies only to a person subject to a public protection order. Furthermore, the rights and obligations of a person subject to a prison detention order found in s 86 must, logically, only apply to a person who is subject to a public protection order and who is directed to be detained in prison under s 85. The legislation cannot be read to imply those rights to persons subject to an interim detention order under s 107. Similarly, the protection of having a prison detention order reviewed by a review panel, which is provided for under s 87, only relates to persons who are subject to a public protection order and detained under s 85. Because the Public Safety Act only provides for a prison detention order (with various statutory safeguards) to apply to someone subject to a PPO, Mr Starling argues there is no ability to direct that a person subject to an IDO be detained in prison under s 107(7).

Discussion

[53]	I do not need to consider whether I have jurisdiction to direct an IDO to be served in prison, given my view, expressed to counsel, that it would be premature to direct that. However, my tentative view is that s 107(2) is drafted broadly enough to encompass that option, and the other provisions relating to prison detention orders would necessarily be read, as applying to an IDO directed to be served in prison. Consequently, if s 107(2) does allow me to direct that an IDO be served in prison, I consider that the prerequisites for making such a direction in respect of a PPO provided in s 85(2) would need to be met. That section provides:

(2)	The court may make an order under subsection (1) only if satisfied that—

(a)	the person would, if detained or further detained in a residence, pose such an unacceptably high risk to himself or herself 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.

[54]	In the circumstances of this case, I would not be prepared to order that Mr Pori be detained in prison. While I accept the evidence demonstrates that s 85(2)(a) is met, I am not satisfied that s 85(2)(b) is met. Matawhāiti is purpose-built to deal with serious offenders. While I acknowledge Mr Burger’s evidence that he manages both Matawhāiti and Tōruatanga and considers that there are “no other options available at Matawhāiti that have not already been tried, and failed at Tōruatanga”, I am not prepared to consider prison as the only option when Matawhāiti has not been tried. Although, Mr Burger says that Mr Pori’s “ongoing tendency towards unpredictable behaviour, violence and aggression (particularly towards females), together with his inability to get along with others or respect their rights to an orderly facility, will have the potential to severely disrupt the Matawhāiti operations, and compromise the welfare of Mr Pori and other residents, staff and visitors”, this is insufficient to deny Mr Pori the opportunity to try this less restrictive option first.

[55]	The more vexing question, however, is whether I should decline to make an interim detention order on the grounds that the risk to public safety can be sufficiently met by less restrictive options to interim detention.8

[56]	On this issue Mr Starling strongly submitted that despite Mr Pori’s aggressive and disruptive behaviour, the ESO with intensive monitoring had adequately managed Mr Pori’s risk to public safety and he had not committed a serious sexual offence during that time. Thus, no matter how unsatisfactory the present situation was, it did not warrant the making of the more restrictive IDO under the Public Safety Act.

[57]	Ms Boshier, however, considered the requirements of s 85 applied with equal force to my consideration of whether an IDO was required in preference to an ESO. In this case, the evidence was unequivocal that Mr Pori posed an unacceptably high risk to others within the unit and could not be safely managed in the residence. The evidence of Ms Gibling gives examples of him threatening to kill, punch or slash staff or other residents. She cites, in particular, a recent example where he became aggressive in response to some confusion about the location of a teaspoon. Although she tried to de-escalate the situation, Mr Pori lunged at her and was only prevented from grabbing her by supervisors pulling him to the ground and restraining him.

[58]	Furthermore, he has written her numerous letters to female prison staff and to Ms Gibling, some of which is sexually explicit in content. If he is challenged on this, he becomes aggressive and angry.

[59]	In my view, the behaviour described is indicative of the risk Mr Pori still poses. He appears to know no boundaries. I do not consider the absence of serious sexual offending in the time spent on the ESO is indicative of his risk being successfully managed. He has spent a significant amount of that time in prison in any event, and I am satisfied, at least provisionally, that Mr Pori would take advantage of any situation, where staff could not get to him in time, to sexually offend.

8	Being the test articulated by the Supreme Court in Chisnall v Chief Executive of the Department of Corrections, above n 3, at [37].

[60]	In considering his risk to the public, I must also take into account the risk to staff at the Tōruatanga facility. I do not consider there needs to have been an actual offence for me to take account of the ongoing risk that staff say Mr Pori still poses.

Result

[61]	In my view, the threshold for an interim detention order is made out and I order that Mr Pori be subject to an interim detention order commencing today, 25 June 2020. It is to be served at the Matawhāiti residence.

The next stage

[62]	This should not be taken as determining the outcome on the PPO application. That may result in a less or more restrictive outcome depending on the evidence presented at that date. I also note that Mr Pori may be someone who is mentally disordered or intellectually disabled and I direct the Chief Executive to consider the appropriateness of an application in respect of the respondent under s 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under s 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.9

[63]	The application for a public protection order is to be called in the civil list on 3 August 2020 to monitor progress on obtaining  further  reports  as  signalled  by Ms Boshier at the hearing, and to progress that application (or any associated applications) to a prompt hearing.

Solicitors:
Raymond Donnelly & Co., Christchurch M Starling, Barrister, Christchurch

9	Pursuant to s 12 Public Safety Act.