Phillip John Smith fights ban on child sex offenders having sex in prison rehabilitation units

High-profile murderer and child sex offender Phillip John Smith is fighting a court ruling that says preventing men from having sex at a special prison unit for child sex abusers is not a breach of human rights.

Smith took Corrections to court over the sex ban in 2022, claiming the rule discriminated against prisoners because of their sexual orientation and breached the Homosexual Law Reform Act and the Bill of Rights Act.

His legal challenge was declined, and Smith is taking the matter to the Court of Appeal in Wellington this morning.

Smith gained international attention in 2014 when he fled to South America while on temporary release from jail. He was serving a life sentence for murdering the father of a boy he was sexually abusing in the 90s.

Smith was recognised by a tourist in Rio de Janeiro who had seen him on the news, and was captured and brought back to New Zealand. Since then he has taken numerous civil cases against Corrections and other Government bodies.

This latest challenge revolves around a rule banning sexual activity between prisoners in the Kia Marama and Totara Unit, special treatment units for male child sex offenders at Rolleston Prison, near Christchurch. Smith was a prisoner there in August 2021.

The rule was introduced in 2017, after some relationships between prisoners within the units ended in “less than amicable” ways. It was then updated in 2019 and again in 2021.

The latest version stated prisoners in the units must not participate in sexual activity, or encourage, pressure, or threaten other prisoners to participate in sexual activity.

Involvement in the treatment programme is voluntary and prisoners are made aware of the sex ban in an information booklet.

Breaking the rules could result in punishments such as solitary confinement, expulsion from the rehabilitation programme, or loss of privileges.

The prison director believed sexual relationships between prisoners created a “distraction” from the focus on treatment and rehabilitation.

Phillip John Smith was unsuccessful in his application for a judicial review of a rule banning child sex offenders in prison from having sex. Photo / Nick Reed

Some prisoners are also vulnerable to manipulation and exploitation, said the unit’s manager of psychological services.

“In the absence of access to children and adolescents, men in this environment sometimes substitute their sexual interest, or express their sexual preoccupation towards other men in the unit, typically those they perceive as more vulnerable and who possess characteristics reflective of their preferred victim type,” she said.

In the Court of Appeal today, Smith, who represented himself, said the disciplinary process for prisoners breaching the ban was “quasi-judicial . . . resulting in conviction, albeit not a criminal one, and punitive sanctions for an expression of what is lawful under New Zealand law”.

He said as involvement in the programme was voluntary, by implication so too was the consent to abstain from sexual activity and prisoners should have the free choice to withdraw their consent to abstaining.

He argued prisoners in a “romantic relationship” should be able to seek approval for their relationship from Corrections on a case-by-case basis.

Smith also said the rule was discriminatory because it only affected people with a sexual orientation “that’s not heterosexual”.

Phillip John Smith at the airport in 2014 when he fled New Zealand.

Crown lawyer Peter Gunn said this view was “too simplistic”, and noted there were prisoners in the programme who might be heterosexual but still had violent or predatory characteristics and might seek ways to take advantage of other prisoners.

He also noted there was not a ban on romantic relationships, and that prisoners could still seek permission for a wedding or civil union if they wished to.

Gunn said part of Smith’s argument focused on a difference in punishments between two out of the three child sex offender treatment units around New Zealand. The Te Piriti unit in Auckland did not include solitary confinement and loss of privileges in its penalties.

But for this point to succeed on appeal, Smith must establish there was deferential treatment between the units on a prohibited ground in relation to the Bill of Rights legislation.

“The Crown says there is no differential treatment on a prohibited ground. The rule applies to all prisoners in these units regardless of their sexual orientation,” he said.

The court has reserved its decision.

Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.