Judges of the Supreme Court sit in Auckland to consider the case. Form left to right, the judges are: Sir Stephen Kós, Dame Ellen France, Dame Helen Winkelmann, Sir Joe Williams and Justice Forrest Miller. Photo: Nick Monro/RNZ
Supreme Court justices have questioned the public risk threshold that has kept an autistic and intellectually disabled man locked up in a secure facility for 18 years.
The man, known as Jay* because his real name is suppressed, has been detained under the Intellectually Disabled Compulsory Care and Rehabilitation Act since 2006, because he is considered too dangerous to release.
He was arrested after breaking four windows but his care order has been extended 11 times because he's been assessed by multiple experts as posing a very high risk to the public.
The Crown told the court that risk justified his long detention.
Chief Justice Helen Winkelmann questioned what the threshold was, comparing it to preventive detention in the criminal justice system, which had a very high threshold of serious violent or sexual offending
"It's not just any offending, it not just any violence, it's pitched quite high.
"He might reoffend, or reoffending might be smashing someone's car windows. He hasn't to this point been convicted of any serious violent offending."
Justice Williams questioned the level of care rehabilitation offered to Jay, and why there were no plans to transition him into the community.
"How, within a legal framework, does one light a fire under the system?
"This guy's been in detention for 18 years, and the system is not holding out a torch of hope here.
"We've got someone in detention for 18 years with no real prospect of release. Seems to me, at some point, you reach a tipping point where stuff needs to change and resources need to be allocated because the oppression is unbearable," he said.
In response, Crown lawyer Kim Laurenson said Jay's care was "very expensive" but he had been previously provided with guitar lessons, outings and a cultural advisor.
Justice Winkelmann also questioned why there were no plans to eventually move Jay into the community.
"It's so disproportionate to the index offence that there must be a plan."
Crown lawyer Kim Laurenson said while Jay posed a risk to the community she did not disagree.
"At a certain point there is ... a tipping point where liberty interests will outweigh the other things that counterbalance it. I don't take issue with that."
Representing Jay's mother, lawyer Graeme Edgeler said that tipping point had long been reached for Jay,
"His liberty interest, given what is involved here, I don't think can get higher.
"And if there was a tipping point, it was quite some time ago."
On Tuesday, the Human Rights Commission told the court that Ashley Peacock, an autistic man who spent 20 years locked in a mental institution, was once considered one of the most dangerous men in New Zealand, but now lived happily in "a cottage by a river", cared for by one or two staff.
In her closing remarks on Wednesday, Commission lawyer Taz Haradasa said any risk assessment must consider how lengthy detention "perpetuates and worsens risk".
"Put simply, we need to consider what is the cottage by the river option for any given individual.
"That is consistent with the social model of disability, which has at its premise that it is society that disables people."
The two-day hearing is now concluded and the court's judgement is reserved.