A unit was built on the grounds of Christchurch Men’s Prison for those under public protection. (File photo)
The Crown is trying to defend the use of public protection orders that can control violent and sexually violent offenders even when their sentences have ended.
It wants to overturn a Court of Appeal ruling that a public protection order issued to a double rapist violated the bill of rights because it was a second penalty.
In the Supreme Court in Wellington on Monday, the Solicitor General, Una Jagose KC, argued before the Attorney General and Director of the Department of Corrections against the decision that the order violated the Bill of Rights.
She said the orders were for offenders who had reached the end of their sentence and the treatment had not reduced the risk they posed to the public.
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This week’s hearing is the second part of a case that began last year. Since the case began, the law has been amended to introduce a formal process for referring statements of inconsistency back to parliament.
Mark David Chisnal was sentenced to eight years’ imprisonment in Whanganui in 2006, and in 2009 overtaken a previous offense and was sentenced to a further three years in New Plymouth. Chisnall was 14 when he committed his first sexual offense in 2001 in a park in Taranaki.
When his sentence was about to expire in 2016 The Department of Corrections requested an oversight ordereither one public protection order or a less restrictive extended supervision order with the first year of intensive supervision.
New Zealand Parliament
A bill to improve the response of the justice system to sexual violence has passed in parliament at first reading. (first published July 2019)
Both determine where the person can live and limit their freedom of movement.
Jagose said public protection orders were therapeutic and highly individualized regimens. She admitted it was a penalty. Chisnall had insisted on his right not to let anyone see information about the treatment he received and its effect on him, she said.
Chisnall was issued a public protection order, which may be indefinite. According to the warrant, the person lived on prison grounds and was subject to a set of rules, including escorting him out of prison.
The appeals court ruled that both types of orders were applicable is in violation of the Law on the Rights of the Rights because they amounted to punishing an offender twice for the same crimes. More evidence was needed to justify issuing the orders, the court said.
Chisnall, however, agreed to have the less restrictive extended surveillance order imposed on him, though he said it also violated his rights.
One of the points the Supreme Court justices wrestled with on Monday was how the case was framed in the abstract without knowing how the plan worked for Chisnall.
Jagose agreed that the case may have “failed prematurely” as a result, but added that it was up to the Supreme Court judge to consider issuing a public protection order to determine whether the proposed checks were justified.
The central question was whether the public protection order law could be applied in a way consistent with the Bill of Rights, she said.
One of Chisnall’s lawyers, Ben Keith, said other countries have found ways to treat dangerous people without violating their rights. The Crown did not say that Chisnall or others were untreatable.
Under these circumstances, it would be wrong to attempt to justify public protection orders against individuals.
In addition to the Crown’s appeal against the declaration of conflict with the Bill of Rights, Chisnall has made a cross-appeal asking for declarations of conflict with a much wider range of rights, including the right to be presumed innocent and not arbitrarily convicted. detained, or given a retroactive sentence, or subjected to cruel treatment.
Chisnall lived under the public protection order Specifically, a purpose-built residence on the grounds of Christchurch Men’s Prison. He couldn’t leave unless staff accompanied him.
The Supreme Court hearing continues on Tuesday.