Chief Executive of the Department of Corrections v Kerr [2017] NZHC 2366 (28 September 2017)

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Hearing:	13 and 22 June 2017 Additional Submissions Applicant: 29 June 2017 Respondent: (a) 6 July 2017 (b) 7 August 2017
Appearances:	C J Boshier for Applicant M Starling for Respondent
Judgment:	28 September 2017
_Reissued:	_{29 September 2017}

CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v KERR [2017] NZHC 2366 [28 September

Introduction	[1]
Relevant Principles	[5]
Approach to an Application for a PPO	[9]
The threshold test	[9]
Ability of the Court to Impose a PPO	[12]
Background to the Present Application	[17]
Index offending	[20]
Breaches and responses to ESO	[23]
Health assessors’ reports	[26]
Psychopathy and Duplicity	[31]
Section 13(2)(a) – Intense Drive or Urge to Commit Sexual Offending	[40]
Section 13(2)(b) – Limited Self-Regulatory Capacity	[45]
Section 13(2)(c) – Absence of Understanding or Concern for Impact of Offending	[49]
Section 13(2)(d) – Poor Interpersonal Relationships/Social Isolation	[54]
Risk Assessment Under s 13(1)	[59]
State of affairs against which risk to be measured	[61]
Overall risk here	[68]
Conclusion on PPO	[83]
Ongoing Arrangements and an ESO	[88]
_Result	[92]

[1] The applicant, the Chief Executive of the Department of Corrections (the Chief Executive) has applied to this Court for a Public Protection Order (PPO) in respect of the respondent, Sean Mark Kerr. In the alternative, it is contemplated that this Court will impose an Extended Supervision Order (ESO) with conditions, to take effect and supersede the existing ESO to which the respondent is currently subject.

[2] The application has its genesis in sexual offending which occurred in 2006 and

2007, at a time when the respondent was 15 years old, and for which he was sentenced to imprisonment. Since that time, the respondent has been continuously placed in institutional settings, whether in prison, a restricted home environment, or in other residential care facilities.

[3] The application for a PPO is opposed by the respondent. Essentially, the respondent submits that “none of the 5 experts for the applicant provide sufficient information to allow the Court to consider the threshold being met”. Counsel’s reference to the “threshold” is to requirements relating to risk of imminent sexual reoffending contained in the relevant legislation.

[4] The applicant’s position is that there are a number of expert reports which all comment on the relevant statutory criteria, and which reach a conclusion that would allow this Court to make the order sought. The respondent in the main relies on a report by Mr Ghazi Metoui, whose conclusions on the relevant statutory criteria are that the respondent represents a “high” risk but there is not the required “very high” risk of “imminent” sexual offending, such as would justify the PPO sought.

[5] An application for a PPO is governed by the Public Safety (Public Protection

“almost certain harm” resulting from the commission of serious violence/sexual

offences.¹Punishment of any person to be subject to such an order is explicitly not one of the purposes of the Act.²Ultimately, a PPO should be imposed only if “the magnitude of the risk posed by the respondent justifies the imposition of the order”.³

[7] Indeed, the imposition of a PPO represents a serious constraint on individual liberty. To impose a PPO has been said to engage the “very long reach of the law in the containment of a person based on the risk of offending, as opposed to a sentence of imprisonment or other detention”.⁴Any imposition of a PPO inherently involves ramifications for enshrined rights under the New Zealand Bill of Rights Act 1990, including the right to individual liberty.⁵

[8] In order for the Court to make its decision on a PPO application, reports from at least two relevant health assessors, including a registered psychologist, must be obtained. These are required to address the various criteria the court must consider under s 13 of the Act.⁶

[9] The starting point is that the person in respect of whom an order is sought must meet the threshold test in s 7. For purposes relevant here, those requirements are:

(1) A person aged 18 years or older meets the threshold for the imposition of a public protection order if–

(i) is, or has been, subject to a condition of full- time accompaniment and monitoring imposed under section 107K of the Parole Act 2002; or

⁴Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 at [10].

(ii) is subject to a condition of long-term full- time placement in the care of an appropriate agency, person, or persons for the purposes of a programme under sections 15(3)(b) and

(2) For the purposes of this Act, a person meets the threshold for a public protection order if the person meets the threshold at the time that the chief executive applies for that order against the person.

[10] The respondent is over 18 years of age; at the time of the application he was (and remains) subject to an ESO order; that was one under which he was previously subject to a condition of full-time accompaniment and monitoring, and he is currently in a long-term full-time placement.

[12] The capacity of the Court to make a PPO regarding the respondent here turns on the application of s 13 of the Act. This provides:

(1) After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—

(b) there is a very high risk of imminent serious sexual or violent offending by the respondent if,—

(i) where the respondent is detained in a prison, the respondent is released from prison into the community; or

(2) The court may not make a finding of the kind described in subsection (1)(b) unless satisfied that the respondent exhibits

a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:

(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:

(c) absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):

[13] The provision contemplates a two-part process. First, the Court must consider whether the four “gateway” elements of s 13(2) are present and established “by evidence to a high level”, which turns on an assessment of the various health assessor reports. That is a pre-requisite to a finding under s 13(1). Then, the Court must consider whether there is a “very high risk of imminent serious sexual or violent offending”, which, to a large extent, will be informed by the satisfaction of the s 13(2) factors.

[14] The Court must be “satisfied” of the necessary very high risk. The phrase “is satisfied” was addressed in the context of a preventive detention application in R v Leitch,⁷but has been applied in the PPO context in Chief Executive of the Department of Corrections v McIntosh,⁸and in Chief Executive of the Department of Corrections v Douglas.⁹It simply denotes that the Court must exercise its judgment and “make up its mind”. However, the general construction found in R v Leitch must be tempered somewhat by the fact that s 13(1) contemplates a specific threshold, namely the

⁸Chief Executive of the Department of Corrections v McIntosh HC Christchurch CRI-2004-409-

⁹Chief Executive of the Department of Corrections v Douglas, above n 4 at [20].

that to meet the subsection it is required that “the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each...characteristic”. This carries two possible meanings: either there must be a high level of evidence of each characteristic, or the evidence must show that the characteristic is present to a high level. Venning J preferred the latter interpretation in Chief Executive of the Department of Corrections v Wilson,¹⁰and Davidson J agreed with that approach in Chief Executive of the Department of Corrections v Douglas.¹¹

This interpretation, in my view, is the more consistent with the statutory scheme of the

[16] Since the hearing of the present application before me, the Supreme Court has released its decision in Chisnall v Chief Executive of the Department of Corrections,¹²which adds further judicial comment to the growing corpus of law in this area. The relevant PPO in that case was an interim order only, but many principles apply equally to substantive PPOs of the kind contemplated here.

[17] The context for the present application stems from offending in the nature of sexual abuse against children, perpetrated by the respondent when he was 15 years old. The respondent is now 25 years of age. In the intervening 10 years or so, he has spent time variously in prison and institutional facilities. Following his initial sentence of imprisonment, Mr Kerr was released into residential care, under an ESO. He is currently resident at the Christchurch Residential Care (CRC) facility, where he has been since his release from prison in February 2016, following imprisonment for breach of ESO conditions.

[18] The respondent, it seems, was himself the subject of serious sexual abuse for a period of around two to three years, beginning when he was 10 years old. That abuse

_{was apparently inflicted by a boy five years older than Mr Kerr. It
involved an}

¹¹Chief Executive of the Department of Corrections v Douglas, above n 4 at [61]-[62].

¹²Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114.

escalating pattern of sexual offending. This began with grooming that culminated at first in mutual masturbation, but then to reciprocating oral and anal sex.

[19] The health assessors who met and interviewed the respondent describe his childhood and developmental history. He is assessed as having a low average level of intelligence.

[20] The index offending, on which a large part of the evidence in this application is based, involved various sexual assaults by Mr Kerr against a number of younger victims Specifically, he faced charges of indecent assault on a boy under 12, two counts of attempted unlawful sexual connection with a female under 12, unlawful sexual connection with a male under 12, and assault of a child.

[21] On the most serious charge, that of sexual violation, he was sentenced by Judge Moore in the District Court to two and a half years’ imprisonment.¹³In the course of that sentencing, Judge Moore acknowledged that it was an “extraordinarily difficult sentencing”, due in no small part to Mr Kerr’s youth, the legal consequence of which was that imprisonment was a permitted sentencing option on the unlawful sexual connection charge only.

[23] An important factor in this case, and one which distinguishes it from others in which courts are dealing with the question of a PPO, is that there has been no direct sexual reoffending since Mr Kerr’s initial offending in 2007. There have, however,

[24] Shortly after he became subject to the ESO, Mr Kerr breached his conditions in June 2010 by making a series of unauthorised phone calls from his home address (being a breach of treatment programme conditions). In June 2011, he breached programme conditions by swearing and shouting at a Richmond House staff member. In June 2012, Mr Kerr used the house facilities to access, without permission, Facebook and other internet sites. He also contacted an ex-prisoner at the Youth Justice Facility where he had been incarcerated. In December 2012, whilst on a shopping outing in Christchurch, Mr Kerr verbally assaulted the staff member accompanying him, and physically assaulted her by shoulder-barging her. In January

2013, Mr Kerr once again accessed Facebook without permission, creating a new Facebook account under an assumed name. Mr Kerr attempted the same thing in March 2013. In September 2013, he breached the conditions of his ESO by verbally abusing a Richmond House staff member. In November 2013, it transpired that

Mr Kerr, in breach of his conditions, had sent a letter to a 16 year old female encouraging her to keep in contact with him. In January 2015, it was discovered that Mr Kerr had been accessing the internet unsupervised and without approval. Finally, and around that time, it became clear that in the course of accessing the internet,

Mr Kerr had been in contact with a 14 year old girl. His explanation for this was that she was the sister of someone who had abused Mr Kerr when he was young, and that Mr Kerr was trying to gain information about it. In respect of the last two breaches (his 9^thand 10^threspectively), Mr Kerr was sentenced to 15 months’ imprisonment.¹⁴

conviction, to community work, to community detention, and then home detention imposed in April 2014.

[25] Clearly, some of these breaches are of greater relevance and concern than others, in terms of the risk of Mr Kerr re-offending. The evidence of the health assessors addresses these breaches and what they represent in terms of the various s

[26] Six health assessors have given evidence relating to Mr Kerr. All are registered clinical psychologists. Sonja Bakker, Paul Carlyon, Gillian Roper, Nicola Reynolds, and Dr Nicholas Wilson, gave evidence which, in the main, supported the application made by the Department. Ghazi Metoui was called by the respondent. Of the Department’s experts, only Ms Bakker, Mr Carlyon, and Ms Roper had the benefit of meeting with and observing Mr Kerr. Ms Reynolds (who is the Chief Psychologist for the Department of Corrections at Wellington), and Dr Wilson, (who is currently employed as the Principal Advisor, Psychologist Research, working with the Office of the Chief Psychologist for the Department of Corrections at Wellington), made their respective assessments from Ms Bakker’s and Mr Carlyon’s reports, without seeing the respondent. Mr Metoui interviewed the respondent on several occasions, and made his report accordingly.

[27] Ms Roper provided a report dated 16 December 2015, which had been prepared in the context of an earlier ESO application which was to be made. It remains relevant to the present application, although it represents evidence about Mr Kerr at an earlier stage in time. In addition, it does not reflect some of the developments in Mr Kerr’s circumstances to which other evidence, particularly that of the respondent’s witness, Mr Metoui, refers.

[28] The evidence of Dr Wilson and Ms Reynolds was procured as something of a “second opinion” for the assessments made by the primary health assessors for the Department. The respective authors base their analyses on the primary reports of Ms Bakker and Mr Carlyon but, of most significance here, they both reach the conclusion that Mr Kerr meets the threshold level of risk for imposition of a PPO.

[29] The health assessors who have prepared material on the respondent give various perspectives on Mr Kerr’s personality. In some respects they reach differing conclusions, particularly as regards psychopathic tendencies, discussed further below.

[30] Mr Kerr has received treatment in the course of his institutional care. Between

2011 and 2013 he attended the STOP programme, a treatment programme designed to address sexual offending against children. This involved some 80 group sessions and

48 individual sessions. His limited intellectual capacity meant that he was eventually placed in the “assisted learning” part of that programme. The health assessors place varying degrees of stock in the efficacy of that programme for Mr Kerr, to the extent that it demonstrates real progress in the context of motivation to change. Mr Kerr had also previously received treatment under an iteration of the STOP programme.

[31] A part of the evidence in this case is the extent to which Mr Kerr has been assessed as having psychopathic traits. The relevance of such is evidence that, where psychopathy and sexual deviance coincide, the product generated in terms of recidivist risk posed is much greater than would be the case where only one such trait is present.

[32] The Department psychologists who saw Mr Kerr reached the view that Mr Kerr exhibited sufficient psychopathic traits in the context of the assessment tools utilised. By way of contrast, Mr Metoui found, applying a different assessment instrument, that Mr Kerr did not reach a level which indicated he was a psychopath or had serious psychopathic traits.

[33] The assessment tools used to gauge the degree of Mr Kerr’s psychopathy were the subject of some attention during examination and cross-examination of the various health assessors. The Department psychologists utilised the Psychopathy Checklist: Screening Version (PCL:SV) tool. Mr Metoui carried out what is perhaps a more detailed assessment using the Psychopathy Checklist- Revised (PCL-R) tool. Mr Starling for the respondent attempted, in examination-in-chief, to put it that the former assessment was not as accurate a measure as that used by Mr Metoui, and that it was not recognised as being capable of providing a clinical diagnosis of psychopathy.

Mr Metoui, however, conceded that it is not the case that one is “better” than the other. They were both empirically robust psychometric tools, but were addressed to slightly different matters, and different clinicians had their respective preferences.

[34] It was not disputed that the PCL:SV was inapt as a diagnostic tool, and that only the PCL-R could be used for making a diagnosis. However, diagnosis was not the primary function of the assessments carried out by the health assessors. Their tasks were to assess Mr Kerr with a view to answering particular questions for the purposes

of this application, not to make a clinical diagnosis for the purposes of treatment. The question before this court is ultimately one which asks about a particularised risk, and is informed by a multitude of factors, one of which is the presence or absence of traits consistent with psychopathy.

[35] The legislative scheme does not require me to make any findings on this matter, nor would it be appropriate for this Court to attempt to reach a conclusion on what is essentially a matter of clinical judgment. Nevertheless, the evidence in this regard remains relevant to the overall question of whether Mr Kerr exhibits a sufficient degree of risk of imminent sexual reoffending. In that respect, there is evidence both ways.

[36] Considerable time was devoted at the hearing to the question of duplicity on the part of Mr Kerr. Mr Metoui considered that Mr Kerr presented as honest and open, and he emphasised what he said were the insights demonstrated by Mr Kerr in the course of the interviews. Mr Kerr’s credibility in that regard was bolstered by corroborative accounts of various events given by others involved. This included, for example, accounts given by Mr Kerr about an 18 month period during which he was employed at a local café. The employer, who has been described as a friend to Mr Kerr and someone who has taken an interest in his life, was spoken to by Mr Metoui. Her accounts of Mr Kerr’s behaviour and demeanour whilst employed were not materially different to what Mr Kerr himself was reporting to Mr Metoui. It was a significant feature of cross-examination of the Department’s experts by Mr Starling, for the respondent, that the Department experts had erred by failing to speak to, or even mention in their reports, the positive factors said to be present in this period of gainful employment, when Mr Kerr was out in the community, albeit constantly supervised. At various points, Mr Starling suggested that this was a deliberate and calculated omission, but at no point did he place anything before the Court to substantiate this in any way. Nevertheless, this 18 month employment period is a relevant part of all the circumstances to be considered in answering the questions raised by the present application.

[37] Ms Bakker and Mr Carlyon, in their reports for the Department, emphasised previous recorded instances in Mr Kerr’s history where he had been duplicitous or manipulative in order to secure a particular outcome. Some of the breaches of his ESO

evidenced this pattern. This occurred, for example, when Mr Kerr had manipulated a staff member in order to get himself into a position where he was not supervised. It also appeared that Mr Kerr had not been as open and forthcoming in his self-reporting in interviews with Ms Bakker and Mr Carlyon than he had with Mr Metoui. Mr Kerr did not, unprompted, discuss the matter of his 18 months’ employment. Put to him during cross-examination that Mr Kerr might have been more “on-side” with Mr Metoui because he perceived him to be friendly to his cause, Mr Metoui did not discount this possibility. He conceded that Mr Kerr could possibly have been displaying this behaviour, but stood by his overall assessment that Mr Kerr’s expressed insights were genuine, and represented honest and definite progress.

[38] Clearly, issues of reliability in relation to how well an offender’s outwardly expressed insights and self-reporting match the reality, will often arise in a case like the present. Ultimately it is for the health assessors, in line with their experience and clinical judgment, to reconcile what is observable with what has been observed or what is likely from other acknowledged factors.

[39] Having discussed the background to the application with respect to Mr Kerr, and a general canvass of some of the evidence, it is necessary now to examine the particular factors listed in s 13(2), which must be present to the sufficiently “high degree” before an order may be made.

[40] In her assessment of “intense drive” to further commit sexual offending,

Ms Bakker emphasises Mr Kerr’s sexual deviancy, evidenced by the index offending:

Mr Kerr’s official history reflects a deviant interest in children with his four victims being prepubescent boys. His offending pattern suggests that the strength of his urges and inclination to offend in that he used force when his victims resisted, and reacted violently when a third party intervened. On all occasions the sexual offending ceased only due to Mr Kerr being interrupted by third parties.

She also referred to the development of Mr Kerr’s circumstances following this offending, in terms of reported behaviour:

Offence analogous behaviour evident subsequent to Mr Kerr’s convictions suggests this urge has continued up to the present time. This includes, despite ongoing monitoring, seeking opportunities that would give him access to potential victims and demonstrating an ongoing interest in sex with children evidenced by his sexual preoccupation in images and sounds associated with children...At interview Mr Kerr denied an ongoing sexual preoccupation or deviance although he consistently reported this until recently. Without significant intervention and effort it is unlikely that his enduring patterns of poor sexual self-regulation would have changed so rapidly.

[41] Mr Carlyon too, refers to a range of factors, including what has been reported by Mr Kerr and what has been observed by those overseeing him, as well as his perceived responses to treatment:

[Mr Kerr]...reported that until late 2015 he had continued to experience sexual interest in individuals much younger than himself, including pubescent males. In September 2016, this writer was informed...that Mr Kerr has had a recurrence of “dreams” that have seen him become aroused to internal visual imagery of prior sexual assaults he has committed and, concurrently, CRC staff noted an increased level of sexual preoccupation (i.e., he disclosed more frequent masturbation than was typical for him). Mr Kerr made minimal progress in prior treatment attempts and has been subject to supervision and restriction by professional people he is assessed as unlikely to experience sexual interest in. He has behaved in deceitful ways to access the internet and has contacted young people via that method, suggesting a strong urge to connect to individuals younger than he.

[42] Mr Carlyon concludes that “in [his] view...Mr Kerr continues to have an intense drive to engage in sexual assaults upon young people.”

[43] Mr Metoui referred to the fact that Mr Kerr continues to entertain paedophilic intrusive thoughts, but he said that Mr Kerr has insight into these thoughts and they cause him distress. Overall, Mr Metoui was not persuaded that an intense drive can be said to be present to a high level, where there have been opportunities for such a desire to manifest but where it has not done so:

...since his release from custody Mr Kerr has never absconded despite his placement being in non-secure residents (sic) and going on almost daily community outings. He has also worked in a café for approximately 18 months that children often frequented. These, of course, all occurring under his constant supervision of care staff. Regardless, never on any occasion while under his ESO has Mr Kerr sexually offended despite having opportunities to do so if he were brazenly inclined. This certainly casts doubt that Mr Kerr can be attributed to have ‘an intense drive’ to commit a hands on sexual offence to a ‘high level’.

[44] Having considered all the evidence, and notwithstanding Mr Metoui’s suggestions to the contrary, I find that this “intense drive or urge to commit sexual offending” characteristic is present here to the requisite degree.

[45] Ms Bakker assessed this factor as being present to a high level, commenting that:

Mr Kerr’s behaviour over time has been reflective of poor self regulation. He shows a tendency, which may have a neurodevelopmental basis, when emotionally aroused to behave without considering consequences, in the context of a focus on obtaining personally meaningful rewards...Mr Kerr’s history and personality functioning reflects minimal competencies to independently manage and resolve stress...Results of the psychometric testing suggest Mr Kerr may not have the requisite coping strategies or skills to manage life’s stressors which contribute to his sexual problems and Mr Kerr has stated to a number of professionals that he would offend if he did not have the level of oversight that he has had. At times Mr Kerr’s behaviour suggests he may be able to work with others to self manage his risk, but gains have not been sustained.

Consistent with her assessment of Mr Kerr’s current offending approach pathway, she considers that, ultimately, “self regulation of [Mr Kerr’s] sexual behaviour will not be his primary goal”.

[46] Mr Carlyon’s opinion broadly concurs with that of Ms Bakker; he emphasises Mr Kerr’s previous behaviour, including breaches of ESO conditions, as indicative of limited capacity for self regulation:

– Mr Kerr has repeatedly demonstrated impaired self-regulatory capacity. That has manifested via aggressive outbursts but, more usually, is apparent in

with supervision – as evidenced by 10 breaches of his ESO – and reliance upon sex as a means of coping highlights his emotional reactivity and impoverished capacity to appropriately manage stress...Mr Kerr’s sexual offences, committed some years ago when he was an adolescent, were suggestive of impaired consequential thinking and an impaired ability to reliably regulate his behaviour and that has persisted to the current time.

Mr Kerr...continues to evidence an unreliable ability to self-regulate when emotionally aroused and that sometimes manifests in outbursts and

[47] In his report, Mr Metoui does not reach an unequivocal conclusion on this point. However, whilst acknowledging that Mr Kerr’s history demonstrates serious issues with self-regulation, he refers to Mr Kerr’s presentation in the following terms:

For approximately the past 12 months, Mr Kerr has not demonstrated a propensity for emotional reactivity in the form of aggression or anger dyscontrol. He does, however, continue to lack adequate coping skills at times of stress and is currently considerably overweight due to binge eating.

[48] In all the circumstances here, I consider that Mr Kerr does have the requisite lack of self-regulatory capacity.

Section 13(2)(c) – Absence of Understanding or Concern for Impact of Offending

[49] In her evidence, Ms Bakker refers to the limited understanding and concern which she assesses Mr Kerr as exhibiting. She considers that:

...there is no pattern of Mr Kerr blaming his victims...over time, although reports suggest he has often been more concerned regarding perceived grievances against him and has tended to focus on the impacts of his own sexual abuse when discussing the impacts on victims. Mr Kerr is able to verbalise some understanding and concern for his victims now. However, due to his tendency to be superficial in terms of his emotional expression and generalised empathy deficits related to his personality functioning, the genuineness of his statements are questionable. Mr Kerr’s pattern suggests that even if genuine empathetic concern is present, if he were to become reward focused...he would not consider the consequences either for him or future potential victims.

Her prognosis, therefore, is that although there are perhaps the beginnings of understanding or concern, and whilst these have been expressed, they are perhaps superficial, or are unlikely to have the “countering” or curbing effect such might otherwise have on the drivers of his offending.

[50] Mr Carlyon considered that, at least from his own assessment of Mr Kerr, that Mr Kerr had not demonstrated or described any spontaneous regret or concern for his victims. However, he noted that in earlier interviews, Mr Kerr had reportedly expressed such concern. Nevertheless, it is Mr Carlyon’s opinion that:

[Mr Kerr] was able to describe a range of likely negative effects for the various victims but it was [Mr Carlyon’s] impression that such understanding was intellectual and had no marked influence on his emotional experience or, at least, his emotional expression at interview. Information originating from psychological intervention did not suggest Mr Kerr made meaningful progress in his understanding of, or concern for, victims or potential victims of sexual offending.

Mr Kerr appeared to have an impaired ability to understand the impact of offending upon children and young people and, relatedly, evidenced no depth of concern for any impact that might arise.

[52] Mr Metoui refers to significant remorse expressed by Mr Kerr, in the context of the trauma which Mr Kerr now realises his offending is likely to have caused for his victims. This came with an acknowledgement that in the past, he had not felt or expressed remorse for such actions. Mr Metoui summarised Mr Kerr’s current presentation:

[Mr Kerr] easily accepted that he continues to have paedophilic interests and urges and reported that he recognises these as a problem and is ashamed of himself for having them. Mr Kerr stated that he is actively making attempts at changing his sexual focus to adults from children. As already stated, he was emphatic that he did not wish to reoffend and expressed a high motivation to receive professional help from STOP or Corrections Psychological Services.

[53] Overall, however, I am satisfied that this factor is present to the requisite degree.

[54] Ms Bakker describes Mr Kerr’s difficulties with forming relationships in the following terms:

Information available suggests that over time Mr Kerr has sought interpersonal relationships but has struggled to make connections. This was noted at the time of his offending and when he was in custodial settings...His personality functioning would also impede his capacity to sustain relationships over time...The contexts required to manage Mr Kerr’s risk would have impacted further on his developmental trajectory impacting on his ability to learn the requisite skills to sustain appropriate relationship (sic).

[55] Mr Carlyon considers this factor to be present, and he describes its application to Mr Kerr as follows:

Mr Kerr is socially isolated and that reflects, for the most part, his experience of the world to date. He has limited support other than that provided professionally and has no genuine or longstanding friendships. He has never engaged in a satisfying intimate relationship...Mr Kerr’s relationships with supervising staff have included many instances of deceptiveness and manipulation, suggesting his model of relationships is somewhat transactional or instrumental rather than based on mutuality and respect.

[56] Mr Metoui emphasises the support which Mr Kerr has from members of his family, and the previous employer who is described as Mr Kerr’s friend. He notes that Mr Kerr has exhibited difficulties in socialising with other residents at the care facility, but that Mr Kerr’s difficulty in developing interpersonal relationships is understandably explained in some part by his spending a considerable part of his life in institutional settings.

[57] Mr Metoui’s report ultimately concludes in a somewhat equivocal manner that:

Mr Kerr has some relationships that he values and offer important support to him, but these are limited and he is also socially very isolated. He does, however, desire having meaningful relationships with others.

[58] Having assessed the evidence of all the health assessors, I am satisfied that this element is present to a high degree.

[59] It follows from my findings above, that I consider the four s 13(2) elements to be met in Mr Kerr’s case. There is strong support for this conclusion in the various reports prepared by the Departmental psychologists. For the most part, Mr Metoui’s assessment does not represent an extensive departure from those conclusions.

[60] It therefore becomes necessary for me to consider the ultimate question under s 13(1), namely whether Mr Kerr exhibits a “very high” risk of imminent serious sexual offending, such that this Court should impose a PPO. A preliminary issue here concerns the nature of the relevant circumstances in which that risk assessment is to be made, especially whether or not it is to be examined in terms of the “current regime”, namely a highly-monitored environment.

[61] I have been addressed on the appropriate setting within which this Court must decide whether the necessary bar has been reached for the imposition of a PPO, that is, whether I should have regard to the current measures and controls which operate on Mr Kerr to manage the risk he presents, or whether the question of risk is to be

answered without context as if Mr Kerr were to be released into the community with none of the oversight which he currently has.

[62] I consider that the appropriate view, supported by the purpose of the legislation, is that I should consider the level of risk Mr Kerr presents having regard to the fact that, in any case, he would not be in the community without a level of oversight. As the respondent submits, to view it otherwise would mean that the only relevant determinable level of risk would be one based on static risk factors. Clearly a dynamic risk assessment is a highly relevant component of the overall risk profile. That is a proper reflection of the “last resort” nature of a PPO. Finally, it is consistent with authority in the Supreme Court in Chisnall. Again, I note that case was concerned with an interim PPO order, but logically principles concerning the least restrictive outcome remain apposite when the Court is faced with a PPO that will apply to a respondent indefinitely.

[63] There, Elias CJ, in the course of giving her minority opinion, considered that:¹⁵

...the Public Safety Act requires the court in making an interim detention order under the Act to be satisfied on the balance of probabilities not only that the statutory criteria for making a public protection order have been provisionally made out but that risk to public safety cannot be sufficiently met by less restrictive options to interim detention. That is consistent with the policies of the Act in permitting public protection orders to be made, not for punishment, but only when “the magnitude of the risk posed by the respondent justifies the imposition of the order”. It is also commensurate with the human rights interests affected.

[64] Elias CJ herself lends support to the proposition in the context of a substantive

[40] If conditions can be put in place without detention that would remove the opportunity or restrict it to an extent that there is no longer very high risk of imminent offending of the type, then a public protection order or an interim detention order ought not to be made. That is clear from the scheme of the legislation...

¹⁶Chisnall v Chief Executive of the Department of Corrections, above n 12, per Elias CJ.

[65] The majority in Chisnall concurred with the opinion of the Chief Justice on this issue, holding that:¹⁷

...in making either an interim detention order or a substantive public protection order, it is necessary for the court to consider the least intrusive means of managing any risk posed by the person in respect of whom the order is sought.

[66] That principle of “least intrusive means of managing risk” necessitates consideration of other possibilities of managing risk. In this case, one such possibility is accepted by the parties as the imposition of an ESO with intensive monitoring. The concept of the “current regime” must, at least, be forward-looking, in the sense that the particular controls, which may be “current” must also be capable of continuing to exist as necessary to mitigate risk. Mr Starling, counsel for Mr Kerr gives, as an example of an illogical outcome which follows from a strictly “current regime” approach, a child sex offender who, because they were currently imprisoned, could never be found to be at very high risk of imminent sexual offending because there is no access to child victims in prison. However, I consider this misconstrues the issue. In such a situation, a PPO application would only be considered and, if thought appropriate, imposed because the offender’s sentence was shortly to expire. The question is not whether a current state of imprisonment means that there is no risk, but whether there are controls and measures inherent in a particular and ongoing outcome available to the court which can ameliorate that risk. In that sense, the inquiry, understood in the light of principles articulated in cases like Chisnall amongst others, is whether there is the necessary “very high” level of risk in a situation where there will, or can be, a degree of control and oversight of the respondent.

[67] To the extent the applicant submits that the question of risk under a PPO must be approached in a vacuum, devoid of reference to less restrictive measures which may (or may not, as a particular analysis might demonstrate) sufficiently meet a

_{respondent’s posed risk, that is not, at least since
Chisnall, the applicable
law.}

¹⁷Chisnall v Chief Executive of the Department of Corrections, above n 12, at [83] (emphasis added).

[68] In her evidence before me, Ms Bakker refers to the index sexual offending, the barometer against which an assessment of Mr Kerr has been made. She considers that it demonstrates “a potential to offend given the first opportunity”. That conclusion must be qualified by the context that this offending occurred some 10 years ago. Ms Bakker remains sceptical that Mr Kerr has demonstrated the progress adverted to by Mr Metoui. Her summation of the s 13(2) factors in the context of Mr Kerr’s overall risk profile describes the following:

Mr Kerr has demonstrated a strong urge to sexually offend over time. He has not demonstrated self management of his offending behaviour or aggressive behaviours against those managing his risk, although due to his apparent approach pathway this is not likely his ultimate goal. Mr Kerr claims that he regrets the harm he has caused to his victims but his ongoing offence related behaviour does not support this.

[69] Overall, Ms Bakker concludes that “there is a high risk that Mr Kerr will engage in sexual re-offending” (emphasis added). Notably, her conclusion does not align with the statutory language which sets out the “very high” standard.

[70] Mr Carlyon also concludes that Mr Kerr is at a high risk of imminent sexual reoffending:

Taking a necessarily multi-model approach to assessing risk of sexual recidivism, it is considered by this assessor that there is a high risk that

Furthermore, Mr Carlyon considers that, with regard to the s 13(2) factors, there is the possibility that Mr Kerr’s risk will in fact increase under certain circumstances:

In this writer’s opinion, given a particular set of circumstances, Mr Kerr’s risk of sexual recidivism would situationally elevate. Given opportunity and access to pre-pubescent or young pubescent children, Mr Kerr would likely seek to sexually offend. That is considered to reflect: The presence of an intense drive to have sexual contact with young people; limited self-regulatory capacity, particularly when sexually aroused and/or subject to stress related to unwanted restrictions; a limited understanding of, or concern for, the effects of sexual victimisation upon child or young victims and; a lack of social connection to others...

hearing. She had not, as discussed above, seen Mr Kerr. Her evidence was therefore largely an evaluation of the reports made by the two Department psychologists who had seen Mr Kerr: Ms Bakker, and Mr Carlyon. She did not discuss in any particular detail the s 13(2) factors examined above.

[72] The critical aspect of her report is her conclusion, which she acknowledges differs from that reached by Ms Bakker and Mr Carlyon. Although they both found that Mr Kerr presented a “high” risk only of relevant reoffending, it was

In conclusion, my opinion that Mr Kerr is at very high risk of relevant reoffending is based on consideration of the information contained in both Mr Carlyon’s and Ms Bakker’s reports, the information that I had available to me as part of the Public Protection Order Advisory Board and my knowledge from my overview of offenders who have had health assessments prepared for them for consideration of either an application for Extended Supervision or a Public Protection Order.

[73] And lastly, for the Department, Ms Roper’s report assessed Mr Kerr as being at “high risk” of committing further relevant offending. That is the level required for imposition of an ESO, which was the primary function of her report, and so the question of whether or not Mr Kerr was at a “very high risk” of such offending was not directly engaged.

[74] Mr Metoui found that not all of the s 13(2) factors were present for Mr Kerr to the necessary degree. He said “[the] ‘severe disturbance in behavioural functioning’, as demonstrated by the s 13(2) characteristics, is not present”. It followed somewhat naturally from this that he also did not consider Mr Kerr to be at the necessary “very high” risk of relevant re-offending. His report discussed the elements informing that conclusion as follows:

In consideration of all the available information...Mr Kerr’s static and stable- dynamic risk factors would indicate a Hi gh risk of future reoffending in a similar manner to the index offending without adequate supervision. This does not imply ver y hi gh i mma nenc y (sic) of risk though, particularly given Mr Kerr’s settled period over the past approximate 18 months and his current reporting that he wishes to desist entirely from sexual reoffending and engage in offence specific treatment to assist him with achieving this.

Taken together, it is my opinion that on a bal ance of probabil it ies , Mr Kerr is a high risk (sic) of future sexual reoffending, but may not be a ver y hi gh ri sk

[76] That conclusion is expressed in somewhat equivocal language. The totality of his evidence here and given orally, however, demonstrates that Mr Metoui is of the clear view that Mr Kerr does not meet the “very high” test captured by the statutory language.

[77] In his evidence, Mr Metoui also utilised the STABLE 2007 risk assessment tool, which assesses stable-dynamic risk based on scored individual factors. A number of these factors were considered to be clinically significant for Mr Kerr, including increased levels of sex drive and sexual preoccupation, and deviant sexual preference. Overall, the index score of 12/26 placed Mr Kerr just within the bounds of having a “high” range of dynamic risk.

[78] It was Mr Metoui’s opinion that “in [Mr Kerr’s] current environment and whilst under an Extended Supervision Order...Mr Kerr cannot be described as being of very high risk of imminent sexual reoffending”. Rather, Mr Metoui was optimistic that Mr Kerr had demonstrated progress and motivation towards change, and that there were indicators that his risk was being well-managed.

[79] A significant factor in the present case, and one which was emphasised, particularly by Mr Metoui, is that Mr Kerr has not engaged in actual sexual reoffending since his initial offending when he was 15. As I have already noted, this immediately distinguishes somewhat this case from other cases in which PPOs have been imposed on offenders who have, by their actions demonstrated, a proclivity for repeated sexual offending.¹⁸Whilst there have been a number of breaches of his ESO conditions, some of which have resulted in Mr Kerr’s return to prison, these have, it seems, been in the nature of indirect or substituted behaviour. These include, for example, unauthorised contact by telephone, and the accessing of internet sites without permission. They are matters of concern, and they show that Mr Kerr clearly has presented and may still present a high level of risk. However, the fact remains that there is a lack of any direct

_{sexual offending in the past 10 years. Mr Starling emphasised that this
was despite}

¹⁸For example, Chief Executive of the Department of Corrections v Douglas, above n 4.

the various opportunities Mr Kerr had to do so, for example in the course of his employment at a local café. To some extent that was supported by the evidence of Mr Metoui discussed above, although these opportunities may have been more apparent than real, as Mr Kerr was supervised on these occasions. There is a concern, which hangs over these entire proceedings, that Mr Kerr may yet be being judged and assessed on the basis of offending which occurred many years ago and which, in the years since, has not seen direct repeat. Of course, the assessment of risk in any PPO case is by its nature forward-looking. It is informed, however, by previous events, including the initial (or, where applicable, the subsequent) offending, attitudes and responses to treatment, and the careful undertaking of a multi-factorial risk assessment by experienced experts. But I consider, especially in a case like the present, that the policy rationale, which permits such an austere intrusion into individual liberty on the basis of assessed risk, must be one that is unequivocally met.

[80] Another important aspect of this case, as it pertains to Mr Kerr’s extreme youth at the time of his offending, and still relative youth today, are the acknowledged limitations with the risk assessment tools utilised by the various health assessors. These utilise, as relevant frames of reference, data relating primarily to adult sexual offenders. To that extent, there may well be issues about how well that data applies to Mr Kerr.

[81] Ultimately, the state of the evidence before the Court is that there are four expert opinions concluding that Mr Kerr is at “high” risk only (although one report is prepared specifically in the context of an ESO). Two health assessors, both with considerable experience and seniority in their field, have considered themselves able to say here that Mr Kerr nevertheless is at a “very high” risk of imminent sexual re- offending. The difficulty faced by this Court in reconciling that disagreement is perhaps not as acute as it appears. These characterisations of risk are based on clinical judgment. Ultimately, it is for the Court to conclude whether, as a matter of law, the legal criteria are met such that a PPO should be imposed. That will involve an evaluative judgment which takes into account all relevant considerations.¹⁹On the

_{one hand, it follows, as Ms Boshier for the applicant properly points
out, that a finding}

¹⁹Chief Executive of the Department of Corrections v Clark [2017] NZHC 771 at [54].

of only “high” risk by the majority of experts (and all those who saw Mr Kerr), is not fatal to the application. Equally, however, it means that the designation of “very high” by Ms Reynolds and Dr Wilson is simply part of the evidence as a whole. The extent to which that distinction, between “high” and “very high” can be made is also, it seems, subject to debate within the field of psychology generally. I heard evidence on this application, particularly from Mr Metoui, that the discipline has not yet reached the point at which that distinction can clearly be drawn. Indeed, this has been a feature of the evidence in other PPO cases.²⁰

[82] Under his current care arrangements, Mr Kerr is subject to 24 hour supervision and a degree of electronic monitoring. This level of oversight would remain under the conditions of an ESO, which, as discussed further below, the evidence shows must be inevitable here if a PPO is not made. The applicant refers to these restrictive conditions, but submits that this has not lessened Mr Kerr’s risk on a long-term basis.

[83] I have carefully considered the statutory criteria in light of all the evidence that has been put before the Court.

[84] Ultimately, I find, on balance, that the necessary threshold tests, which the authorities and statutory language show were intended to create a high bar, are not met in this case. I therefore decline to make the PPO order sought by the applicant.

[85] In my view, this is a reflection of the very high bar which the legislation and the authorities canvassed indicates was meant to be set for these kinds of orders. Applications for such orders were intended by Parliament to be made in comparatively few numbers. As Venning J, drawing support from relevant Hansard extracts, remarked in Chief Executive of the Department of Corrections v Wilson:²¹

[I]t appears Parliament considered the imposition of a PPO would be for rare or extreme cases where the offender was certain to offend again. Importantly, it was expected a PPO would only be made once a year or perhaps one every two years.

²⁰See for example, Chief Executive of the Department of Corrections v Douglas, above n [4].

²¹Chief Executive of the Department of Corrections v Wilson, above n 10 at [83].

[86] That sentiment has not, it seems, been borne true. It was a feature of the evidence in this case that there were, at the time of hearing, in excess of 30 extant applications for PPOs before New Zealand Courts.

[87] In my view, this is a clear case in which a less restrictive option is available, which will sufficiently mitigate the risk that Mr Kerr poses, viewed in light of the evidence as a whole.

[88] There remains the question of Mr Kerr’s ongoing arrangements. The evidence of all the health assessors is that he requires ongoing management and a degree of institutional control. Of course, the departmental psychologists are of the view that controls short of those inherent in a PPO will be insufficient to curb the respondent’s perceived risk. I have found that not to be the case, however. The presence of current institutional controls in Mr Kerr’s life is a large factor going to the question of whether he would pose the necessary very high risk. Mr Metoui, who for the most part stood on his own in his view that a PPO was not appropriate here, also accepted that there must be institutional measures in place for Mr Kerr. To do otherwise would, in effect, be setting Mr Kerr up to fail. To the extent that the current conditions and control measures available under an ESO would be sufficient to meet Mr Kerr’s risk, there was general agreement, subject to a few reservations, amongst the experts in their evidence given during the hearing. And, what was clear at the hearing before me was that Mr Starling confirmed that Mr Kerr himself thought a new ESO with intensive monitoring was appropriate here and he consented to such an order being made.

[89] In these circumstances, I consider it appropriate to make an ESO. Section 107L of the Parole Act 2002 permits the imposition of such an order, notwithstanding that Mr Kerr’s earlier ESO is not set to expire until 2020.²²

[90] I have also considered the ability of the Court to impose an initial 12 months intensive monitoring condition as part of that, and the utility in doing so. That

²²Section 107L(1)(b); Chief Executive of the Department of Corrections v Ranui [2016] NZHC

condition was not available under the legislative framework as it was when Mr Kerr’s first ESO was imposed. Mr Metoui expressed optimism that, with the current track of

Mr Kerr’s progress, as he assessed it, intensive supervision would enable further treatment and progress to be made in a relatively short timeframe. The applicant, relying on the Department’s health assessors, did not share that optimism. Ms Bakker and Mr Carlyon both considered it was “unrealistic” to assume that, in the space of only a year, Mr Kerr would develop the necessary insight and offence-replacement patterns to mitigate the risk he would continue to pose after the expiry of that year. This opinion is bolstered by Mr Kerr’s treatment history, which has not, it seems, been wholly promising. There is, however, something of an acknowledgement of the sufficiency of intensive monitoring, where counsel concludes that “[t]he conditions available under an ESO, save for the 12 months of intensive monitoring, are insufficient to protect the community”.

[91] By way of final comment, I note that the door on a PPO being made against Mr Kerr at some stage, is not closed. The statutory scheme allows the applicant to seek a PPO after one year. That will broadly coincide with the expiry of the intensive monitoring period which I consider to be a necessary component of the ESO to be imposed. As acknowledged by counsel, the legislation does not allow for a further intensive monitoring period thereafter as part of this ESO or indeed any other.²³As the applicant submits, it is not a long term solution to manage Mr Kerr’s long term risk. In that way, how Mr Kerr responds during that time may well be the acid test for whether his responses to treatment and his motivation to address issues and change is sufficient for him to remain in the community. If Mr Kerr does not make the progress necessary to obviate the need for intensive monitoring, another Court, faced with a fresh application for a PPO, may well find the test met, and a PPO the only realistic option. Indeed, that possibility was recognised here, even by Mr Metoui. Of course,

[92] For the reasons I have outlined above, the application for a Public Protection Order (PPO) is dismissed. The application for an Extended Supervision Order (ESO), however, is granted.

[93] An Extended Supervision Order (ESO) under s 107I(2) of the Parole Act 2002 is made to commence from 27 October 2017. The order is to remain in force for a period of 10 years from 27 October 2017. A further order is made pursuant to s 107IAC(1) of the Parole Act 2002 requiring the Parole Board to impose an intensive monitoring condition on Mr Kerr for 12 months from 27 October 2017.

[94] The existing earlier ESO to which Mr Kerr is subject at present is to remain in force in the meantime and, in terms of s 107L(3) of the Parole Act 2002 it is to expire on 27 October 2017 being the date on which the new replacement ESO is to commence.

[95] In due course the Parole Board will need to impose final special conditions (in addition to the intensive monitoring condition noted at [93] above) that will remain in force for the duration of the new replacement ESO ordered in this judgment. I reserve leave to the applicant and the respondent to apply to the Court for any assistance that may be required in the meantime relating to the imposition of those final special conditions.

[97] Since releasing this judgment, two matters have been drawn to my attention. Amendments to the judgment are now made accordingly.

[98] First, in para [86] of the judgment I referred to “in excess of 30 extant applications for PPOs”. That is an error. There are in fact only three extant PPO applications currently before the New Zealand Courts. I amend the figure “30” to “three”.

[93] An Extended Supervision Order (ESO) under s 107I(2) of the Parole Act 2002 is made to commence on 28 September 2017. The order is to remain in force for a period of 10 years from 28 September 2017.

[94] Intensive monitoring for 12 months thereafter is imposed as an interim special condition on this order under s 107IA in the meantime until direction of the Parole Board imposing a 12 month intensive monitoring order or further order of this Court. Mr Kerr is subject to a special condition on the intensive monitoring to submit to being accompanied and monitored for up to 24 hours’ per day by an individual who has been approved by a person authorised by the Chief Executive to undertake person to person monitoring.

BETWEEN	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Applicant
AND	SEAN MARK KERR Respondent

High Court of New Zealand Decisions

Chief Executive of the Department of Corrections v Kerr [2017] NZHC 2366 (28 September 2017)