New Zealand’s first Public Protection Order (PPO) was imposed on 21 December 2016 in the matter of The Chief Executive of the Department of Corrections v Glen Anthony Douglas [2016] NZHC 3184.

A PPO is a court order that allows the detention of very high-risk individuals at a secure facility within prison precincts. The Public Safety (Public Protection Orders) Act 2014 came into force on 12 December 2014 and while interim detention orders are in force, the only previous application to be determined was declined.

The object of the legislation is to protect the public from almost certain harm inflicted by serious sexual or violent offences. The object is not to punish. A PPO should only be imposed if the magnitude of the risk justifies the imposition of the order.

These ‘civil detention’ orders may be put in place for individuals who have served a finite prison sentence, but still pose a very high risk of imminent and serious sexual or violent offending and cannot be safely managed in the community.

A subject person is detained in a ‘civil facility’ within the prison grounds. Currently, the only residence in New Zealand is within the Christchurch Men’s Prison.

Each resident will have a management plan that will set out any restrictions they are subject to, as well as any identified needs and goals that could contribute to their potential release. Detention is said to be protective rather than punitive, and residents have ‘as many of the civil right of ordinary citizens as possible without endangering the community or themselves’.

However, residents will not be able to leave the residence except under escort and supervision for medical care and other approved absences such as court appearances. Many of the rules that apply are directly parallel to the rules within the prison. Despite the ‘civil’ nature of the detention, one of the Department of Corrections psychologists gave evidence that the residence was “essentially a prison”.

The threshold for an Order is that a person is aged over 18 and is serving a sentence (or subject to an extended supervision order (ESO)) for a qualifying sexual offence (s7 Public Safety (Public Protection Orders) Act 2014).

If the threshold is met the Court can order a PPO if there is a very high risk of imminent serious sexual or violent offending if they are released into the community.

The Court may not make a finding of very high risk of imminent offending unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:

1. an intense drive or urge to commit a particular form of offending;
2. limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties;
3. absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims;
4. poor interpersonal relationships or social isolation or both.

These considerations are gateway determinations and the Court must be satisfied that the respondent exhibits each of the characteristics described to a high level.

In the case of Douglas, the main issue was in relation to ‘absence’ of understanding of the impact of offending. The expert witnesses agreed that he had some understanding, however the Court held that ‘absence’ is not an absolute measure. The criteria was fulfilled by a high level of deficit that any understanding was inoperable as a check on further offending. The Court held he did not demonstrate ‘meaningful’ understanding or concern.

The Court also found that, based on the evidence, Douglas posed a very high risk of imminent sexual offending. However, that was not the end of the matter as the Court recognised that the imposition of a PPO remains discretionary. There was an alternate application for an ESO with intensive monitoring before the Court and Justice Davidson noted that if an ESO would be an adequate response for the protection of the public he would have exercised his discretion not to impose a PPO.

The issue with an ESO is that the one-on-one personal monitoring must cease after 12 months and the experts agreed this may not be sufficient time for the necessary behavioural changes.

The continuing justification for a PPO must be reviewed annually by a review panel and Corrections must apply to the Court for a review of continuing justification every five years.

The upshot is that an individual who has completed serving his/her sentence remains detained within the precincts of the prison indefinitely. Whether the order remains justified will largely depend on what rehabilitation is offered through the management plan. If considerable resourcing is not placed on rehabilitating the individual, it is unlikely that their risk will diminish to a point they no longer meet the criteria.

Hansard suggested that PPOs would be imposed for rare to extreme cases and would only be made once a year or perhaps every two years. However, there are a number of applications currently before the Court and, given the primacy placed on protection or the public, more individuals could be joining Douglas in the ‘residence’ indefinitely.

Sarah Saunderson-Warner is a Dunedin barrister and a member of the NZLS Criminal Law Committee.