Convicted child rapist Mark Chisnall has public protection order removed despite being deemed high risk

The Court of Appeal has ruled a Public Protection Order against convicted child rapist Mark David Chisnall can be removed. Photo / NZME

A convicted child rapist has won the right to have a public safety order potentially keeping him in custody for life removed - despite him admitting there's a high risk he could reoffend.

Mark David Chisnall, who committed his first rape at a Taranaki park in 2001 when he was aged 14, was jailed for eight years in 2006 and a further three years for another crime in 2009.

But, despite his sentence being due to end in 2016, he has been living in a residential lockdown facility on the grounds of Christchurch Men's Prison due to a public protection order (PPO).

The rare PPO, granted by the High Court at Auckland at the request of Corrections, allows offenders considered a "high risk of imminent serious sexual or violent offending" to be indefinitely held at a secure facility. It was granted so Chisnall could rehabilitate and reintegrate into society while protecting the public from harm he might cause in the future.

Since the order was imposed Chisnall has argued his ongoing incarceration well beyond his sentence expiry goes against the principles guaranteed by the Bill of Rights Act.

Now the Court of Appeal has cancelled the order, despite Chisnall accepting he presented a high risk of, but not a very high risk of imminent, serious sexual offending.

Chisnall, who has convictions for the rape of an 8-year-old girl and a woman in her 20s in Whanganui, as well as sexual assaults of a 7-year-old boy and a 20-year-old woman, argued imposing an extended supervision order (ESO) with intense supervision would suffice.

The Court of Appeal agreed and forwarded Correction's chief executive's application for an IM ESO back to the High Court to be decided.

"Given the Supreme Court's recognition of the extreme nature of the deprivation of personal liberty and autonomy presented by a PPO, and the need to calibrate risk and necessary restraint, we are satisfied that an IM ESO would be sufficient to mitigate the risks of imminent serious sexual offending that would arise were Mr Chisnall no longer to be subject to supervision."

Pending the decision the Court of Appeal exercised its rights, under the Parole Act 2002, and imposed an interim supervision order, with special conditions, on the terms sought by the chief executive's original application in 2016 to avoid a gap in Chisnall's monitoring.

By imposing an ESO Chisnall would be able to stay at a residential facility outside prison fences, albeit perhaps with an electronic ankle bracelet, and allow him to work towards his goal of getting a job.

If he didn't make any progress while on the ESO for 12 months a new application could be made for a PPO.

Authorities have previously said Chisnall's 11 years in prison included reports of continuing aggressive behaviour and sexual fixations.

Last week's decision came after the Court of Appeal found in November 2021, special orders used to indefinitely hold offenders considered a "high risk of imminent serious sexual or violent offending" were inconsistent with the Bill of Rights Act.

The Supreme Court of New Zealand then ruled the decision could be challenged by both the Crown and Chisnall, who has had more than 100 supervised visits outside the gates in the past year with no reported incidents following changes to the way the PPO facility operated.

The Crown sought to appeal the declaration PPOs and extended supervision orders (ESO) were inconsistent with the Bill of Rights while Chisnall claimed the orders were responsible for significantly more breaches of that legislation than the court ruled.