A New Zealand judge who considered how he should be dealt with on return said the man’s offending was serious and “his risk profile is such that ongoing oversight and engagement with a probation officer is appropriate”.
However, District Court Judge David Robinson found he did not have jurisdiction to impose a final order placing conditions on the man under the Returning Offenders (Management and Information) Act 2015, known as the ROMI Act.
That was because the man spent 15 months in custody in Queensland before being released to serve the rest as a “suspended sentence” – a situation the ROMI Act did not cater for when it was set up to govern the oversight of returning deportees.
The man is not named in a recently published district court decision, and the location of the court where the case was heard has been deleted.
Instead, the offender has been given the fictitious name Tom Findley in the court documents, which showed he spent two periods in an immigration detention centre in Australia before being sent home.
He had lived in Australia since 1999 and was deported under Section 501 of the Australian Immigration Act, under which a person’s visa can be cancelled if they fail a “character test”.
The section has been widely used to deport New Zealanders who have picked up criminal convictions in Australia. Collectively, these people have become known as “501s”.
Findley arrived back in New Zealand and was made subject to an interim order under the ROMI Act in July.
It included conditions not to associate with people under 16, to not consume alcohol or illicit drugs and to live where a probation officer told him to.
The Department of Corrections then applied for a final order in September last year – in what should have been a routine procedure to maintain oversight over him and allow for him to be assessed for a rehabilitative programme.
Instead, Judge Robinson found he did not have jurisdiction in Findley’s case to make the final order sought by the department.
Findley could not be treated as a “returning prisoner” under the ROMI Act, because he had been free in the community for more than six months after serving his jail time and between his two stints in immigration custody.
He was also not subject to parole or “monitoring, supervision, or other conditions” under a court order in the community.
Instead, he was in the suspended part of his jail term – a four-year period where he was free but still technically under sentence after serving 15 months in custody.
Judge Robinson said his jurisdiction to impose an oversight order on Findley came down to whether a suspended sentence under Queensland law amounts to “monitoring, supervision, or other conditions for the relevant sentence” for the purposes of the New Zealand ROMI Act.
He found that it did not after consulting Australian legal authorities, who said a suspended sentence does not involve any form of monitoring, control or directed rehabilitation.
“The suspended sentence scheme under [Queensland law] has no features similar to standard or special release conditions applicable to short terms of imprisonment, or parole conditions that could be applied in New Zealand,” Judge Robinson said.
“Those are, of course, the conditions that can be applied under the ROMI Act.”
He turned down the Department of Corrections’ application for a final order and discharged the interim orders that had been imposed previously.
“This is a matter which, in my view, requires legislative attention,” Judge Robinson said.
“The offending for which Mr [Findley] was convicted was serious, and his risk profile is such that ongoing oversight and engagement with a probation officer is appropriate.”
But he said the ROMI Act should be “explicit” if it was intended to apply to people on a suspended prison sentence when they are deported to New Zealand.
“Had I found there was jurisdiction to make the final orders sought, I would have found the conditions necessary to facilitate Mr [Finley]’s rehabilitation and reintegration, and to reduce the risk of reoffending, the judge said.
“The proposed conditions were entirely appropriate for the management of a convicted sex offender.”
A spokesperson for Corrections said the department was aware of the judgment.
“We are currently considering the court’s decision and how we will respond, including any appeal.
“While this matter is under consideration it would be inappropriate to comment further at this stage.”
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of front-line experience as a probation officer.
