Harvey v TC [2020] NZFC 11596

Published 01 June 2021

Compulsory care order — extension — community protection — Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, ss 3, 7, 11 & 85 — Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(2) — RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641 — J v Attorney-General [2018] NZHC 1209. The applicant sought an extension of the compulsory care order ("CCO") under the Intellectual Disability (Compulsory Care and Rehabilitation) Act ("IDCCRA") in respect of the subject person. The order had been made and the Judge's reasons followed. An order had been made in 2014 under the Criminal Procedure (Mentally Impaired Persons) Act detaining the subject person as a special care recipient, and he had been subsequently detained in a secure care unit. Expiry of that order had been deferred several times while specialist reports could be completed. When considering a CCO extension a court must consider the subject person's eligibility; community protection/risk assessment; the subject person's liberty interest; and the balance between community protection and the subject person's liberty interest. The considerations are to be guided by the principles and purposes found in ss 3 and 11 of the IDCCRA. For the eligibility criteria, a court must be satisfied that the subject person has an intellectual disability as defined in s 7 of the IDCCRA. This is to be assessed from a combination of clinical tests and observations. The specialist report writers concluded that the subject person met the criteria of intellectual disability. In assessing the risk posed to the community were the CCO not to be extended, evidence from the reports established that the subject person had a deviant sexual interest in children which he had acted on previously. Treatment for this had been unsuccessful. The subject person therefore posed a high risk to the community were he to be released. The subject person had been in detention (which included informal voluntary detention) for some 20 years, and his liberty must be given greater weight due to the time spent subject to a CCO. However, given the challenges to his rehabilitation the subject person was better placed to be cared for in the secure unit with the goal of moving towards supervised care. The Judge was satisfied that an extension of the CCO for a three-year period was appropriate in the circumstances and made an order accordingly. Judgment Date: 23 December 2020. * * * Note: names have been changed to comply with legal requirements. * * *