Application for final order — special conditions — suspended sentence — sexual offending against child — returning offenders — deportee — freedom of movement and association — right not to be subject to double punishment — "rights-consistent" interpretation — Returning Offenders (Management and Information) Act 2015, ss 17, 25, 26, 32, 33 & 34 — Crimes Act 1961, s 134 — Sentencing Act 2002, s 93 — Parole Act 2002, ss 14 & 15 — New Zealand Bill of Rights Act 1990, ss 6, 17, 18 & 26 — Migration Act 1958 (Cth), s 501 — Penalties and Sentences Act 1992 (Qld), ss 92, 93, 94, 103, 110C, 112, 113, 114, 115, 143, 144, 145 & 151R — Child Protection (Offender Reporting And Offender Prohibition Order) Act 2004 (QLD) — Corrective Services Act 2006 (Qld), s 200(1)(f) — Returning Offenders (Management and Information) Bill 98—1, explanatory note at 2 — (17 November 2015) 710 NZPD 8032 — (17 November 2015) 710 NZPD 8052 — Chief Executive, New Zealand Department of Corrections v Amohanga [2017] NZHC 1406 — Commissioner of Police v G [2023] NZCA 93, [2024] 3 NZLR 116. The applicant, the Chief Executive of the Department of Corrections, sought a final order imposing special conditions on the respondent under the Returning Offenders (Management and Information) Act (ROMI Act). The respondent was a New Zealand citizen, who had been deported back to New Zealand from Australia following conviction and imprisonment in Queensland on a number of charges of sexual offending against a child. The respondent had served 15 months in custody in Australia and was subject to a suspended sentence for a period of four years. The applicant had been granted an interim order from the District Court that the respondent be made subject to interim special conditions, which was served on the respondent on his arrival in New Zealand. The interim order was subsequently extended for a period of time, and extended on application for the final order to allow counsel time to file submissions. The interim order stipulated eight conditions, which included requiring the respondent to report to his probation officer, engage in and attend rehabilitative assessment and, if recommended, treatment, and prevented him from doing various things except with prior written permission from his probation officer. At issue was whether there was jurisdiction to make the special conditions order in respect of the respondent, given he was subject to a suspended sentence at time of deportation. The criteria for the ROMI Act to apply were that the respondent must have been: convicted in an overseas jurisdiction for conduct constituting an imprisonable offence; sentenced to a term of more than one year's imprisonment; and immediately before his return to New Zealand been subject to monitoring, supervision or other conditions for the relevant sentence. The first two criteria were met, so the main issue was whether a suspended sentence amounted to "monitoring, supervision or other conditions for the relevant sentence". The Court considered the relevant provisions of the ROMI Act, which included the explanatory notes and Parliamentary debates on the Bill; the Penalties and Sentences Act (Qld); various other legislative provisions; legal commentary; and the scant case law on the matter. The Court determined that a suspended sentence did not have any features similar to the proposed special conditions. Special conditions imposed under the ROMI Act were intended to reflect the conditions that an offender was subject to in the overseas jurisdiction, which were absent from the suspended sentence scheme. Finally, the Court considered the respondent's rights under the New Zealand Bill of Rights Act (NZBORA), of freedom of movement, freedom of association and the right not to be subject to double punishment. A rights-consistent interpretation was to be preferred. The proposed conditions went beyond what the respondent had been subject to in Australia, and could therefore not be reconciled with NZBORA. The Court determined there was no jurisdiction to grant the order as sought. The application for final orders was refused and the interim orders discharged. The Court did comment that this matter was one that required legislative attention. The proposed conditions were appropriate for the management of a convicted sex offender. Had the Court found that it had jurisdiction, it would have granted the final order as sought. Judgment Date: 12 December 2024.