The Court of Appeal is grappling with a decision on whether a repeat sexual offender should be dealt with through criminal legislation or health.
Lawyers for Tommy Apera Pori say the High Court was wrong to approve a public protection order (PPO) and the Department of Corrections should have considered an order for Pori under the Mental Health Act instead.
PPOs are post-sentence orders. Under the order, a person must be detained after the end of their sentence in a secure facility within prison precincts.
The act states it is to protect members of the public from the “almost-certain” harm that would be inflicted and that it is not an objective to punish people.
But in front of an appeals panel in Christchurch, Pori’s lawyers argued the Public Safety (Public Protection Orders) Act explicitly excluded people who could be managed through health-based legislation.
“A public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003,” section 5 reads.
Lawyer Michael Starling said “should not” were key words.
“This is an exclusionary approach to the entire Act … Those who are affected severely by mental illness, or intellectual disability, they have no part in the Public Safety (Public Protection Orders) Act.
“They are managed under the relevant legislation and if there are problems in that legislation, then that is of course for Parliament to clarify.”
The High Court made a PPO against Pori in September 2021.
He was detained in Matawhāiti, a purpose-built facility on a site next to Christchurch Men’s Prison.
The High Court judgment two years ago explained Pori was “approximately 59 years old”.
“He was born in the Cook Islands and raised by his grandparents. Little is known about his personal history because, as [the psychologist] notes, ‘Mr Pori has never been a reliable informant about that aspect of his life’. However, it is accepted that he suffered a head injury when he was approximately 18-20 years old.”
The Court also heard evidence Pori did not have an intellectual disability but that there was “some evidence” he suffered from a mental disorder as defined in the Mental Health Act, and other evidence suggested it would not be treatable.
The Public Protection Orders legislation confirms instead of a PPO, the judge may direct the Corrections chief executive to consider an application under the Mental Health Act.
In Pori’s case, lawyers argued the less-punitive option of an Extended Supervision Order would work in conjunction with the Mental Health Act “both to protect the community and assist him”.
It would also mean he might be housed somewhere other than Matawhāiti.
In the High Court Corrections’ lawyers argued if Pori was detained under the Mental Health Act it would “result in a placement which would be significantly more restrictive” than Matawhāiti.
Pori’s lawyers disagreed, saying detainment under the Mental Health Act would at least remove him from a custodial environment “managed by qualified people with a health background rather than by custodial staff”.
However, there is no secure or highly specialised neuropsychiatric facility in existence that is able to provide the therapeutic environment required for his treatment.
Starling said this should not be a factor in the court’s decision.
He also said there would inevitably come a time when staff at Matawhāiti would feel unable to manage Pori because of his mental disorder, and at that point he would be transferred to prison, in breach of his rights under the UN Convention on the Rights of Persons with Disabilities.
Corrections lawyer Claire Boshier argued the High Court decision to grant the PPO was correct because the judge had used her discretion that an order under the Mental Health Act would be unlikely to help Pori because it was doubtful there would be a place for him in a facility, and that any placement would put him and others at risk.
“To manage that risk, Mr Pori would need to be placed in a highly restrictive and monitored environment within such a facility. The practical reality is that Mr Pori would be subject to conditions which essentially replicate those he currently lives under at Matawhāiti.”
The court has reserved its decision.