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Chief Executive of the Department of Corrections v Wells [2023] NZHC 3356 (24 November 2023)

Last Updated: 7 December 2023

JUDGMENT OF GORDON J

This judgment was delivered by me on 24 November 2023 at 10.30 am s

Registrar/Deputy Registrar Date:

Solicitors: Meredith Connell, Auckland Copy to: L Wells

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WELLS [2023] NZHC 3356 [24

November 2023]

• [1] The Chief Executive of the Department of Corrections (Chief Executive) applies for an interim supervision order (ISO) under s 107FA of the Parole Act 2002 (the Act) against the respondent Lewis Wells, pending the hearing of the Chief Executive’s application for an extended supervision order (ESO) against Mr Wells.¹

• [2] On 20 April 2023, Mr Wells was sentenced to one year and four months’ imprisonment on two charges of doing an indecent act on a young person under s 134(3) of the Crimes Act 1961 and a charge of failing to comply with the reporting obligations of the Child Sex Offender Register.² By the time he was sentenced Mr Wells had spent 21 months in custody and accordingly, was eligible for immediate release.

• [3] Mr Wells was subject to release conditions until 19 October 2023. The Chief Executive filed his application for an ESO on 21 September 2023.³ That application will be heard on 11 April 2024.

• [4] The Chief Executive sought a hearing of the application for the ISO prior to the expiry of Mr Wells’ release conditions but there was no available hearing time.

• [5] Mr Wells, representing himself, opposes the making of both an ISO and an ESO.

Interim supervision orders

• [6] An ISO is a temporary measure to provide for the supervision of an offender before an application for an ESO can be determined, in circumstances where the offender is not otherwise subject to release conditions.

• [7] Section 107FA does not prescribe any particular test for an ISO. I follow the approach of Muir J in Chief Executive of the Department of Corrections v Ihimaera, namely that before making an ISO the Court must be satisfied that the statutory criteria

1. Mr Wells is an eligible offender under the Parole Act 2002 (the Act) having been convicted of “relevant sexual offences” as defined in s 107B(2): sexual violation (s 128B); sexual conduct with a person under 12 (s 132(3)); and sexual conduct with a person under 16 (s 134(3)).

² R v Wells [2023] NZHC 856.

³ Thus complying with the time for filing an application in s 107F(1)(a)(ii) of the Act.

for making an ESO are made out (albeit on a provisional basis and where the evidence is often untested)⁴.

Statutory criteria for an ESO (and an ISO)

• [8] Section 107I of the Act provides, as relevant, that the Court may make an ESO if the Court is satisfied, having considered the matters addressed in the health assessor’s report, that:⁵

(a) the offender has, or has had, a pervasive pattern of serious sexual offending; and

(b) there is a high risk that the offender will in future commit a relevant sexual offence.

• [9] Section 107IAA then sets out the matters the Court must be satisfied of in order to establish (b) above. The section provides in relevant part:

107IAA Matters court must be satisfied of when assessing risk

(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—

(a) displays an intense drive, desire, or urge to commit a relevant sexual offence; and

(b) has a predilection or proclivity for serious sexual offending; and

(c) has limited self-regulatory capacity; and

(d) displays either or both of the following:

(i) a lack of acceptance of responsibility or remorse for past offending:

(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

...

4. Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [13]–[14], in light of the Supreme Court decision in Chisnall v Chief Executive of Department of Corrections [2017] NZSC 114, [2018] NZLR 83.

⁵ Section 107I(2).

• [10] For the Court to be “satisfied” no burden of proof is imported. The Court makes up its mind on an objective basis.⁶

• [11] If the criteria in s 107IAA are met, the Court must then consider whether it should exercise its discretion to make an order.

Assessment of risk and justification for order

• [12] The determination of “high risk” is a judicial assessment, not solely reliant on a “mechanical and potentially formulaic assessment of risk”.⁷

• [13] While the pre-conditions for making an order are expressed in the present tense, those traits and characteristics, while needing to be present, do not need to be manifested at the time an ESO application is determined. The real question is whether Mr Wells has the particular characteristic such that it may manifest itself in the right set of circumstances.⁸

• [14] There must be a “strong justification” for an ESO before an order is made.⁹ That “strong justification” is not met simply because oversight would be desirable or beneficial to the offender as they transition into the community.¹⁰

• [15] This justification applies when the Court determines whether the criteria for an ESO are made out on a provisional basis for the purpose of making an ISO.

Case for the Chief Executive

• [16] The Chief Executive relies primarily on the report of Dr Charlotte Gibson, a registered clinical psychologist, dated 1 September 2023 and prepared for the ESO hearing. (Dr Gibson will be available for cross-examination at that hearing.)

6. McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [75] adopting the approach in R v Leitch [1998] 1 NZLR 420 (CA) at 428, in relation to sentencing decisions involving preventive detention.

⁷ R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52].

⁸ Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]–[27].

9. Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [190] and Chisnall v The Attorney-General [2022] NZCA 24 at [3(a)]. See also R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53].

¹⁰ Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [47].

Dr Gibson bases her assessment on Department of Corrections file information, including psychological reports, as well as interviews with staff involved with Mr Wells’ care and supervision. Dr Gibson also interviewed Mr Wells and employed psychometric instruments to inform her assessment. The Court is also referred to two reports prepared pursuant to s 88 of the Sentencing Act 2002 for Mr Wells’ sentencing on 20 April 2023 from: clinical psychologist Dr Willem Louw dated 6 December 2022; and forensic psychiatrist Dr Oliver Hansby dated 12 January 2023.

• [17] The Chief Executive says that the evidence establishes that:

(a) Mr Wells has, or has had a pervasive pattern of serious sexual offending;

(b) there is a high risk Mr Wells will commit a relevant sexual offence in the future; and

(c) the statutory criteria have been made out on a provisional basis.

• [18] The Chief Executive also seeks the imposition of the standard conditions for an ESO in s 107JA of the Act,¹¹ and certain special conditions that may be imposed on an ESO under s 107K.¹²

Mr Wells’ background and sexual offending

• [19] Mr Wells is 81 years old. He has a number of tertiary qualifications and worked as a teacher for 20 years. His sexual offending began when he was 64 years old. Dr Gibson notes that Mr Wells is observed to reoffend approximately every two to three years, typically coinciding with him completing his community sentence. His most recent convictions took place two years after he completed a six month sentence of home detention but coincided with the ending of treatment with a private psychologist with whom he engaged from 2018 to 2021.

• [20] There are four sets of sexual offending as follows.

¹¹ Provided for in s 107FA(3) of the Act.

¹² Provided for in s 107FA(3) of the Act.

2007–2009

• [21] On 3 June 2010 Mr Wells entered guilty pleas to representative charges of sexual offending during the period of March 2007 to September 2009. He was sentenced on 12 November 2010 in the District Court at Auckland to four years and six months’ imprisonment.¹³ The charges were:

(a) two representative charges of sexual violation by unlawful sexual connection;

(b) one representative charge of sexual conduct with a person under 12; and

(c) two representative charges of sexual conduct with a person under 16.

• [22] At the time the offending commenced Mr Wells was aged 64 and the victim was 11 years old. They met when the victim assisted Mr Wells with the removal of inorganic rubbish from a garage and Mr Wells paid him for that service. The victim, described by the sentencing Judge as coming from a “very challenging and somewhat harsh home environment”, began visiting Mr Wells at Mr Wells’ home.¹⁴ The victim undertook odd jobs for Mr Wells, some for which he was paid. Mr Wells mentored the victim through supplementary studies and assisted with his education.

• [23] Over the months that followed Mr Wells became infatuated with the victim. His offending began with a mouth-to-mouth kiss between the two which sexually aroused Mr Wells. As the relationship between the two continued over the following two years, the victim’s family became grateful for what they thought was the innocent care of their child and permitted Mr Wells to have open contact with the victim whenever he wished. The family ultimately permitted him to spend the night at Mr Wells’ place. Mr Wells continued to provide the victim with gifts and money.

• [24] After 21 November 2007 when the victim was 12 years old, Mr Wells’ offending progressed to him masturbating the victim and performing oral sex on him.

¹³ R v Wells DC Auckland CRI-2009-004-022990, 12 November 2010.

¹⁴ At [3].

Sometimes Mr Wells would masturbate himself. He told the victim that he loved him and that their relationship was very important to both of them.

• [25] From the outset, Mr Wells made it clear to the victim that the true nature of their relationship was to remain a secret. The sexual offending occurred repeatedly until September 2009.

• [26] Over the period Mr Wells was involved with the victim he estimated he spent in the vicinity of $3,000 to $4,000 on the victim.

• [27] When he was spoken to in October 2009, Mr Wells said he knew the relationship was wrong and he had taken advantage of the victim’s naivety, but found himself unable to control his sexual desires and activity. He also asserted that the victim was a willing participant at all times. Mr Wells was said to be apologetic for his wrongful behaviour.

2015 offending

• [28] On 29 September 2015 this Court allowed Mr Wells’ appeal against sentence and imposed a sentence of nine months’ home detention on two charges of doing an indecent act with a child (boy) under 12.¹⁵

• [29] Mr Wells had met the victim, a nine year old boy, on the footpath in Auckland on two occasions between the beginning of December 2014 and the end of January 2015. On both of those occasions Mr Wells gave the victim money and offered to give him a ride in his car or to buy him fast food. On another day at the end of January 2015, Mr Wells drove his motorbike to the victim’s address. He approached the victim and his 11 year old brother in front of their home and asked them if they remembered him. He then put his hand on the victim’s head before rubbing it down his back to his bottom where he held and squeezed the victim’s buttocks.

• [30] Mr Wells then gave the victim and his brother money from his wallet before again touching the victim. Mr Wells leaned forward lowering his head to the same

¹⁵ Wells v R [2015] NZHC 2075 and Wells v R [2015] NZHC 2371.

level as the victim, pulling the boy’s head into him and again lowered his hand to the boy’s bottom where he held and squeezed the victim’s buttocks once more.

• [31] Two passing public health nurses intervened and alerted the victim’s parents. Mr Wells was aged 72 at the time.

2017 offending

• [32] In July 2018 Mr Wells appeared for sentence on a charge of indecent assault on a boy under 12 years. At the time of the offending the boy was aged nine and Mr Wells was 74 years old.

• [33] In August 2017 the victim was at a Briscoes store with his aunt. Mr Wells approached the victim after the victim had become separated from his aunt. After checking his surroundings Mr Wells began to engage with the victim. Over approximately 45 minutes the following (as recorded on the store’s CCTV) occurred:

(a) After talking to the victim for about a minute, Mr Wells pulled the victim in towards his body from behind and hugged him by wrapping both arms around him.

(b) Mr Wells then stood behind the victim with his left hand on the victim’s left shoulder while they looked at items on the shelf in front of them.

(c) While still looking at items on the shelf, Mr Wells moved himself further forward behind the victim so that he stood right up against him. Mr Wells gestured to an item on the shelf and briefly rubbed the victim’s right shoulder with his right hand.

(d) Mr Wells continued talking to the victim and stepped in close to him, bending down slightly so that the side of his face was up close to the victim’s face. Using his left hand Mr Wells reached down and touched the victim’s left hip and rubbed the left side of the victim’s torso for about eight seconds.

(e) Mr Wells stepped away from the victim and continued talking to him. Again Mr Wells came in close toward the victim, put his face up close to the victim’s face and tickled his chest with his hands.

(f) Mr Wells stepped away from the victim, who stood still looking at the ground.

(g) Mr Wells reached towards the victim and took the victim’s right wrist in both of his hands. Mr Wells cupped the victim’s face with both hands and briefly rubbed his back with his left hand.

(h) Mr Wells stepped to the side of the victim and continued to talk to him and look at what was on the shelf. After about 30 seconds, Mr Wells stepped up close against the victim and gestured toward what was on the shelf.

(i) Mr Wells briefly stepped away from the victim to look at an item on the shelf and quickly stepped back up close against the victim still looking at the items.

(j) The victim stepped closer towards the shelf prompting Mr Wells to take a step in closer and bend down so that his head was alongside the victim’s head.

(k) Mr Wells stood upright but remained close to the victim while looking at and touching an item on the shelf for approximately a minute.

(l) Mr Wells stepped back and continued looking at items with the victim for another minute before he briefly rubbed the back of the victim’s neck and back with his right hand.

(m) After about another minute Mr Wells again placed his right hand on the victim’s back briefly, before continuing to browse the shelf.

(n) After about a further minute, Mr Wells stepped behind the victim and pulled him towards his body. With the victim leaning against him, Mr Wells reached over the victim’s shoulders and briefly touched his chest with both hands and reached down and touched each of the victim’s knees with his hands.

• [34] After a young girl, approximately seven to eight years old, looked towards where Mr Wells and the victim were, Mr Wells approached her briefly and then walked to another area in the store near the front of the coffee machines. The victim followed Mr Wells to that area and Mr Wells, standing about a metre away from the victim, continued to talk to him. After a short period Mr Wells reached towards the victim and briefly touched his right wrist before stepping back and continuing to talk to the victim. Mr Wells remained talking to the victim, standing apart from him for approximately four and half minutes before taking the victim’s hand in his hand briefly and walking alongside the shelving. Mr Wells stopped walking briefly and tussled the victim’s hair with his right hand.

• [35] The victim walked away from Mr Wells until he came across his aunt. Mr Wells then approached the same area. After about a minute, Mr Wells reached over towards the victim with one arm, pulled him towards his body by his head, rubbed his shoulder and patted his back briefly. Mr Wells continued to talk to both the victim and his aunt and then licked his finger and wiped the victim’s face with it.

• [36] After the victim and his aunt moved from that part of the store, Mr Wells again approached them, placing his right hand on the victim’s back and his left hand on the victim’s chest, briefly rubbing it while talking to the victim’s aunt. Mr Wells then rubbed the left side of the victim’s face and hair. He then rubbed the victim’s hair with both hands.

• [37] The victim’s aunt walked away and Mr Wells quickly approached the victim and gave him a hug. The victim then followed his aunt away from Mr Wells.

• [38] Around five minutes later the victim was again in the area where Mr Wells was. Mr Wells reached towards the victim and pulled him backwards towards his body,

reached over the victim and grabbed the victim’s knees with each hand. Mr Wells stood upright and walked with the victim whilst rubbing the victim’s back and neck with his hand. Mr Wells then stood next to the victim and looked at the shelf briefly before using his left arm to put the victim in a headlock, tussling his hair and tickling him.

• [39] Mr Wells then spoke to the victim about two coffee mugs he had selected, before walking down an aisle with the victim, placing his right hand on the back of the victim’s head as they walked together. Mr Wells continued to walk down the aisle with his right arm around the victim’s head, shoulder and neck, hugging him closely as they walked. At the end of the aisle Mr Wells rubbed the victim’s back with his hand and stopped walking momentarily to point at the shoes he was wearing.

• [40] Mr Wells then placed one of the coffee cups that he was carrying back on the shelf and continued to talk to the victim. After about 30 seconds of talking Mr Wells quickly glanced to his right and then immediately focused on the victim. He reached down with his left hand and placed the palm of his hand onto the victim’s t-shirt where it was overhanging the lower abdominal/crotch area of his shorts. Mr Wells grabbed the bottom of the victim’s t-shirt and lifted it up exposing the victim’s stomach briefly. Mr Wells continued talking to the victim, reaching towards him with his hand, taking hold of the victim’s wrist, and holding it briefly before the victim reacted abruptly pulling his hand away.

• [41] Mr Wells again took hold of the victim’s right wrist and held on to it briefly before moving his hand and touching the back of the victim’s neck and head. Mr Wells continued to talk to the victim in the same place and after a couple of minutes got out his cell phone from his jacket pocket and showed it to the victim. As he did so Mr Wells put his right arm around the victim and moved to stand directly behind him with one arm on either side of the victim, holding the cell phone in front of him. Mr Wells, still standing behind the victim, briefly pulled the victim hard up against his front so that the victim’s back was against Mr Wells’ front.

• [42] The victim’s aunt then approached the two of them. Mr Wells talked to her for a couple of minutes and in front of her tussled the victim’s hair with his hand and held

on to each of the victim’s hands, pulling him backwards and forwards a few times and then gave him a hug. Mr Wells again touched the victim’s hand and wrist, hugged him again and rested his hand briefly on the victim’s chest. Mr Wells again hugged the victim while standing behind him, squeezed his right shoulder and pulled the victim’s face close up to his own, rubbing the victim’s nose against his nose before walking away.

• [43] When spoken to by the Police, Mr Wells stated that the victim was very friendly and happy to be cuddly with him. He said he was seeing a psychologist to help him with his urges.

• [44] On 19 July 2018 Judge A J Johns sentenced Mr Wells to home detention.¹⁶ In doing so, the Judge took into account the fact that Mr Wells had spent some 10 months in custody (equivalent of a 20-month sentence) and imposed a sentence of six months home detention.¹⁷ The Judge also ordered that Mr Wells be placed on the Child Sex Offender Register and gave him a second strike warning.¹⁸

Index offending (2021)

• [45] On 20 April 2023, Woolford J imposed a sentence of one year and four months’ imprisonment after Mr Wells pleaded guilty to two charges of indecently assaulting a child between the age of 12 and 16,¹⁹ and one charge of failing to comply with reporting obligations of the Child Sex Offender Register.²⁰ In his sentencing decision Woolford J summarised the offending first in relation to charges 1 and 2, an indecent act on a young person, as follows:²¹
  • [3] The offending to which charges 1 and 2 relate occurred between May and June 2021. The complainant was 12 years old at the time, and you were 78. You met the complainant and his family in early 2021, and in March you went to their home address after seeing a Facebook post by the complainant’s mother on a community page. Once there, you told the complainant’s mother that you had previously worked as a teacher and offered to provide free tutoring to the complainant, which she accepted.

¹⁶ R v Wells [2018] NZDC 14817.

¹⁷ At [23].

¹⁸ At [26].

¹⁹ Crimes Act 1961, s 134(3). Maximum penalty: seven years’ imprisonment.

20. Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39. Maximum penalty: one year imprisonment and/or a $2,000 fine.

²¹ R v Wells, above n 2.

• [4] In May 2021 a tutoring session took place, and after the lesson you tickled the complainant under his armpits, around his chest area and belly. The complainant’s mother was uncomfortable with this and sent a text message saying that the tutoring was no longer needed.

• [5] The first offence occurred between May and early June 2021, after the tutoring had stopped. You went to the complainant’s address uninvited and spoke to him about his schoolwork. During this, you touched his head and moved your hand lower, touching his bottom approximately four times.

• [6] The second offence occurred a few days later, when you again approached the complainant outside his address and touched him in a similar manner.

• [7] The complainant was uncomfortable after each incident of touching and told his mother about the interaction. His mother had seen one of the incidents and on 2 June 2021 she texted you, asking that you stop coming to their address unannounced.

• [46] On charge 3, failing to comply with reporting obligations, Woolford J summarised the offending as follows:²²

• [9] On 19 July 2018, you were placed on the Child Sex Offender Register. On 20 July 2018, you were inducted into the Register and advised of your obligations, which included the requirement to provide details of any online social networks that you use or intended to use.

• [10] On 19 July 2020, you completed an Annual Information Report pursuant to those obligations but failed to disclose a Facebook account under the name “Lew Wells” which was active and included posts from November 2020 and June 2021.

Does Mr Wells have, or has he had, a pervasive pattern of serious sexual offending?

• [47] The term “serious sexual offending” is not defined in the Act. I adopt the following general principles regarding “serious sexual offending” as set out in the submissions of counsel for the Chief Executive:

(a) “Serious sexual offending” should be interpreted by reference to its ordinary meaning, viewed against the purpose of the ESO regime.²³ In ordinary language, “serious” means important, grave, having potentially important consequences, giving cause for concern, of

²² R v Wells, above n 2.

23. Holland v The Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 at [13].

significant degree or amount, or worthy of consideration.²⁴ It is an assessment for the Judge on the facts of the particular case.²⁵

(b) In cases where there has been offending over a long period of time against a number of victims, this has been sufficient without the need for further analysis.²⁶

(c) Whether or not offending meets the threshold “requires a fact specific inquiry on a case by case basis”.²⁷ The totality of circumstance is important to determine whether a pervasive pattern of serious sexual offending existed.²⁸

(d) The “serious” requirement in this context should not be interpreted to impose an unduly high threshold. Seriousness depends on the circumstances of the offending in the particular case.²⁹

(e) When assessing seriousness a Court may conduct a retrospective examination of the offending and determine that an offence which, in isolation, appears less serious, can in fact be part of a more insidious pattern of conduct.³⁰

(f) It is not necessary for the offences to be the same for them to constitute a pattern of serious sexual offending, provided that there are important similarities between them.³¹

²⁴ Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44] citing The New Shorter Oxford English Dictionary (4th ed, Clarendon Press ,Oxford 1993) at 2785.

²⁵ Holland v Chief Executive of the Department of Corrections, above n 24, at [45].

²⁶ As was the case in Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712; The Chief Executive of the Department of Corrections v Rimene [2015] NZHC 2721; and Chief Executive of Department of Corrections v Te Pania [2016] NZHC 1215.

²⁷ Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 597 at [38].

28. Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [29] citing Wardle v The Chief Executive of the Department of Corrections [2017] NZCA 298 at [42]–[43].

²⁹ Holland v Chief Executive of the Department of Corrections, above n 24, at [48].

³⁰ W (CA716/2018) v Chief Executive of the Department of Corrections [2019] NZCA 460 at [20].

³¹ Holland v Chief Executive of the Department of Corrections, above n 24, at [55].

(g) Indecent assaults are capable of being sufficient to constitute “serious sexual offending”.³²

• [48] I also bear in mind what was said by the Court of Appeal in Kiddell v Chief Executive of the Department of Corrections regarding protected rights under the New Zealand Bill of Rights Act 1990:³³

[27] Finally, an ESO engages BORA-protected rights. This Court has previously held that the ESO regime creates a retrospective double penalty, so contravening s 26 of the New Zealand Bill of Rights Act 1990, but nonetheless must be given effect under s 4 of that Act. The Supreme Court has recognised that the Parole Act’s statutory purpose requires that courts not be denied clearly relevant information when deciding whether an offender is eligible under s 107I for an ESO. But when deciding whether to make an ESO, and for how long, courts must recognise that the order may impinge substantially upon the offender’s freedom of movement and association. These rights must be borne in mind when deciding both whether the offender has or had the necessary pervasive pattern of serious sexual offending and whether the offender presents a high risk of future serious relevant offending.

• [49] As to whether a “pervasive pattern” exists, this term was discussed by the Court of Appeal in Kiddell as follows:³⁴

• [23] Sixth, a pervasive pattern is one that is sufficiently characteristic of the offender to serve as a predictor of future conduct. We make several points about this:

(a) In ordinary usage, to be pervasive is to be present throughout. The adjective is here used in connection with the behaviour of a person, and the legislation also identifies certain relevant traits or characteristics: an intense drive to commit relevant sexual offences, a predilection for serious sexual offending, limited self-regulatory capacity and an absence of responsibility or an absence of understanding of victim impact. It is for these reasons that we have defined a pervasive pattern simply, as a pattern that is characteristic of the offender.

(b) The pattern must be sufficiently pervasive to serve as a predictor of future conduct; we adopt that purposive standard because the pattern determines whether the offender is susceptible to an ESO.

32. See, for example, Wardle v The Chief Executive of the Department of Corrections [2017] NZCA 298.

³³ Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 (footnotes omitted).

³⁴ Footnotes omitted.

(c) In ordinary usage “pattern” connotes regularity but a pattern may take any form or sequence. A pattern that includes relevant but less serious conduct may be found pervasive.

• [50] I also refer to the statement by Muir J in Chief Executive of the Department of Corrections v Ihimaera:³⁵

[46] The word “pervasive” is defined as “having the quality or power of pervading; penetrative, permeative, ubiquitous”. It is in turn used to qualify the word “pattern” which is defined to mean “a regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based”. Taken together the two words suggest that the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct.

• [51] Mr Wells, while acknowledging his offending in 2007–2009 was “of a serious nature”, submits that his offending since then cannot be regarded as serious sexual offending. He refers to the judgments of both Duffy J and Woolford J to say that his offending falls at the low end of the spectrum.³⁶ He also says that, what he describes as the “infrequent and random reported events”, do not make for a “pattern”.

• [52] In this case Mr Wells has 10 relevant sexual violence convictions. In her report, Dr Gibson provides a helpful summary for the purpose of considering whether there is a pervasive pattern of serious sexual offending. She says:

31 To summarise, since age 64, Mr Wells has demonstrated a chronic pattern of sexual offending, in spite of detection and legal sanction (imprisonment and home detention). Mr Wells’ sexual offending history has exclusively involved prepubescent (9-13) Māori or Pasifika males and has been restricted to unlawful sexual connection (first victim only), indecent acts and indecent assaults. Mr Wells’ first period of offending demonstrated a greater degree of planning, deception and intrusiveness, involving grooming and occurring over a significant length of time, whereas his more recent offences have been more impulsive and against individuals with whom he had little to no prior relationship with, in public settings. ...

• [53] Dr Gibson also notes, as referred to in the various summaries of facts, that:

³⁵ Chief Executive of the Department of Corrections v Ihimaera, above n 4, (footnotes omitted).

³⁶ In R v Wells, above n 2, the Crown acknowledged that Mr Wells’ offending fell at the lowest end of that type of offending (indecent acts) and Woolford J adopted the same starting point (18 months’ imprisonment) that Duffy J considered appropriate for Mr Wells’ prior offending in R v Wells [2015] NZHC 2075. Justice Duffy considered Mr Wells’ offending was less serious than many of the cases raised by counsel.

... Mr Wells has additionally engaged in psychological coercion (using rewards such as money, food, favours, as well as playful engagement, affection, and threats of getting in trouble) to obtain the victims’ trust and avoid detection, which serves to ensure compliance during the interaction. ...

• [54] Dr Gibson says that Mr Wells’ pattern of offending across time appears to be one of reducing severity. However, she notes that the latter three sets of offending took place in the presence of others who intervened and had they not, Mr Wells may have progressed to more serious sexual offending over time.

• [55] As to the regularity of Mr Wells’ offending, Dr Gibson states:

... Mr Wells offends approximately every three years and most typically, immediately after external monitoring ends. It is considered that at these times, Mr Wells disregards the consequences of offending, due to his grandiose views about interacting with children and enjoyment of risk-taking behaviour. ...

• [56] In passing sentence Woolford J considered that the index offending did not meet the required level of seriousness for the imposition of preventive detention (which the Crown acknowledged) but said: “it is clear that further supervision is necessary to manage the risk of reoffending in your case, as made clear by both s 88 reports and the PAC report”.³⁷

• [57] Mr Wells’ sexual offending in 2007 to 2009 was serious. The balance of his sexual offending is less serious having regard to the level of physical contact involved. All of the offending after 2009 involved touching over clothing (although in the Briscoes offending I note Mr Wells lifted up the victim’s t-shirt) and for relatively brief periods. However, and this is clear from Holland v Chief Executive of the Department of Corrections, an assessment of seriousness is to be made on the totality of the circumstances.³⁸

• [58] The offending in 2015 has serious aspects to it. Mr Wells went to the victim’s address after having approached him twice previously in the street when the victim was unknown to him, and on both of those occasions he offered the victim money, a

³⁷ R v Wells, above n 2, at [37].

³⁸ Holland v Chief Executive of the Department of Corrections, above n 24, at [48].

ride in his car or offered to buy him fast food. On the occasion of the offending Mr Wells gave the victim and his brother money.

• [59] The offending in 2017, again while less serious than the 2007–2009 offending, was opportunistic and brazenly carried out in a public place, a retail store. While Mr Wells says (as recorded in the summary of facts) the victim was “happy to be cuddly with me”, the Judge in her sentencing remarks said “[The victim], very briefly, says he did not feel good about what happened and now he does not talk to strangers”.³⁹

• [60] The index offending occurred on the deck of the victim’s address and a few days later outside the victim’s address after his mother had become uncomfortable with Mr Wells’ conduct and told him that the tutoring was no longer needed. In sentencing Mr Wells, Woolford J stated:⁴⁰

[31] There [the 2015 offending], a starting point of 18 months’ imprisonment was adopted by Duffy J on the basis that, while the connection itself was at the lower level of seriousness, there was a degree of premeditation and grooming that warranted a higher starting point. Your counsel submits that the instant case is distinguishable as you did not give money to the complainant. I do not consider that whether or not you gave money to the complainant is a significant factor. In both cases, you took steps to ingratiate yourself with the victim or their family, through offering money or free tutoring in order to gain proximity. The same factors of premeditation are present, as well as the vulnerability of the victim and a significant age disparity, which was even greater at the time of this offending.

• [61] I consider all the offending, in combination, qualifies as serious sexual offending. The victims were vulnerable due to their age and the resulting age disparity with Mr Wells. The offending also has aspects of psychological coercion involving money and offers of food or favours. The presence of others in the last three sets of offending appears to have precluded any escalation of Mr Wells’ actions. I note Mr Wells’ submission that he was the one who stopped on each occasion, but it seems to me that it was the presence of others which prevented any further offending against the victims.

³⁹ R v Wells, above n 16, at [14].

⁴⁰ R v Wells, above n 2.

• [62] I consider that the four sets of offending have characteristics that are prevalent and common to all and the totality of circumstances demonstrate a pervasive pattern of serious sexual offending. Mr Wells tends to offend approximately every three years and most typically after external monitoring ends.

• [63] I am satisfied that Mr Wells has or has had a pervasive pattern of serious sexual offending.

Is there a high risk Mr Wells will commit a further relevant sexual offence?

• [64] In order to answer this question the Court must consider the criteria in s 107IAA of the Act. I address each in turn.

Does Mr Wells display an intense drive, desire, or urge to commit a relevant sexual offence?

• [65] Dr Gibson notes that Mr Wells typically begins by engaging in playful touching with a prepubescent male, which can progress towards sexual touching, namely tickling and patting the child on the bottom over their clothing. He is observed to find this urge for contact with a child difficult to manage and his sexual offence history suggests he will be compelled to revisit the victim until stopped by legal sanction. Dr Gibson states that Mr Wells’ behaviour of repeat offending suggests a pattern of difficulties in controlling the intensity of urges for both emotional and sexual contact with children.

• [66] Dr Gibson says Mr Wells’ continual experiencing of sexual attraction towards prepubescent males serves to maintain an intense desire towards sexual offending. She observes that Mr Wells’ offending in public has reflected the presence of an intense drive, as he continues in spite of the high likelihood of observation and potential apprehension. Dr Gibson considers that Mr Wells’ ongoing urges are driven not only by attraction towards prepubescent males but also grandiose views of himself and offence-supportive beliefs (eg that his offending is not harmful to the child).

• [67] Dr Gibson notes that Mr Wells’ drive, desires and urges were well-monitored by his release conditions and he has expressed a desire to desist from his offending.

However, she says that while Mr Wells has been proactive in developing strategies to manage situations where he perceives there to be a risk (eg being around young boys in public settings), these strategies remain untested. She is of the view that without the support of Community Corrections or external control, Mr Wells’ history would suggest a rapid deterioration in the ability to maintain such skills.

• [68] I am satisfied, based on Dr Gibson’s evidence, that this characteristic is present.

Does Mr Wells have a predilection or proclivity for serious sexual offending?

• [69] A person has a predilection for serious sexual offending if they have a preference or particular liking for serious sexual offending.⁴¹ A person who has a proclivity has an inclination toward something considered morally wrong, such as serious sexual offending.⁴²

• [70] As Dr Gibson notes, Mr Wells has offended approximately every three years over the last sixteen years, and typically his offending coincides with the conclusion of external monitoring and oversight. She notes that Mr Wells has previously been diagnosed with paedophilic disorder (and he appears to accept the diagnosis). Dr Gibson says this diagnosis is supported in her current assessment indicating that Mr Wells holds a strong sexual preference for prepubescent males. She says Mr Wells has consistently acknowledged his sexual attraction towards, and thereby a “predilection” for, prepubescent males across his time with the Department of Corrections. Dr Gibson considers that when faced with similar circumstances as in the past (eg feelings of insecurity and in response to heightened sexual preoccupation) he is likely to again demonstrate a proclivity for sexual offending against prepubescent males.

• [71] I am satisfied that this characteristic is present.

⁴¹ Chief Executive of the Department of Corrections v B [2016] NZHC 2816 at [66].

⁴² At [66].

Does Mr Wells have limited self-regulatory capacity?

• [72] The expression ‘limited self-regulatory capacity’ was considered by Heath J in

Chief Executive of the Department of Corrections v B:⁴³

• [91] I am not aware of any authority that has considered specifically the question of what is meant by the phrase “limited self-regulatory capacity”. Use of the word “limited” suggests that questions of degree are involved in this assessment. The phrase is used in the context of a list of factors that must be established before an extended supervision order can be made. The apparent nexus is between the existence of limited self-regulatory capacity (on the one hand) and high risk of committing a relevant sexual offence (on the other).

• [92] At one level, the inquiry is directed to whether an offender has a limited capacity to self-regulate his or her desires or urges to commit relevant sexual offences. Put another way, the question is whether an offender has sufficient capacity to self-regulate those impulses. Yet, to approach the issue in that way is over simplistic. As a matter of common sense, the extent of any ability to self-regulate those impulses is dependent on the capacity to avoid circumstances in which the relevant drive, desire or urge are likely to manifest themselves. ...

• [73] Dr Gibson states that Mr Wells appears to have demonstrated appropriate self- regulation skills across most aspects of his life, for most of his life. She notes that he has been able to raise a family, engage in long-term employment, sustain long-term friendships and pursue higher education.

• [74] In terms of his sexual offending Dr Gibson says that file information indicates that, following each offence, Mr Wells expresses a desire to desist and states that he must stay away from potential victims. She says, however, this intention has not yet translated into sustained behavioural change as evidenced by his repeat offending. She considers that when provided with an opportunity to engage in physical contact with a potential victim, Mr Wells desires the contact so greatly that he disregards the potential consequences of his actions.

• [75] Dr Gibson says that Mr Wells’ self-report appears to be shifting towards a greater motivation to regulate his sexual desires and behaviour, with the identified goal of regaining contact with his grandchildren and not returning to prison. (That was a point Mr Wells made in his submissions to the Court.) She says it is of note that whilst

⁴³ Footnote omitted.

under Community Corrections supervision, Mr Wells appeared able to regulate his experiences of sexual desire and urge towards sexual offending (albeit likely due to the direct awareness of consequences and regular points of connection with his probation officer). But Dr Gibson comments that his offence history and self-report indicate that he becomes more impulsive, has grandiose views of his right to interact with male children, and has less regard for the consequences, after his sentences have ended, thus resulting in further offending.

• [76] Dr Gibson says, with this in mind, it is her opinion that while Mr Wells shows an ability to self-regulate more generally, his sexual self-regulation remains problematic for him. She acknowledges he is in the process of gaining further insight but says that any changes are so far untested.

• [77] On the basis of Dr Gibson’s evidence I am satisfied that Mr Wells has limited self-regulatory capacity in relation to serious sexual offending.

Does Mr Wells display a lack of acceptance of responsibility or remorse for past offending?

• [78] Dr Gibson notes that Mr Wells has expressed degrees of remorse and responsibility across his offending history. However, regarding the first victim, while on the one hand appearing to take a degree of responsibility for that offending, he minimised his role in the abuse stating that the victim was a willing participant when in fact Mr Wells held significant power over him. Dr Gibson expresses her opinion concisely as follows:

64 It is the writer's opinion, on current evidence, that Mr Wells reports remorse and has taken some responsibility for his offending (e.g., pleading guilty, attempts at treatment). The writer considers that, consistent with his personality profile, Mr Wells’ expressed remorse relates to the immediate and/or direct costs to himself (e.g., the loss of a desired sexual object, the loss of freedom, the impact on his relationship with his family), more so than remorse for harm caused to others. It is of note, that Mr Wells has expressed similar sentiments regarding regretting his behaviour and a desire to desist following each offence, suggestive that his expressions of regret and remorse alone do not sufficiently mitigate his risk of further reoffending. His repeated return to offending upon the cessation of external monitoring, in the presence of cognitive distortions and engagement in minimisation, would indicate that the remorse expressed is not internalised or impactful on Mr Wells’ behaviour.

• [79] I consider that it is appropriate for this Court when considering s 107IAA(1)(d), to take into account both Mr Wells’ verbal expressions and his conduct. If a Court were to be limited to a consideration of a person’s verbal expressions, it seems to me that it would be all too easy for a person to say one thing but mean another. I consider that a Court must be able to have regard to a person’s conduct, so as to assess whether any expressions which apparently display an acceptance of responsibility, remorse and understanding, are meaningful.

• [80] I acknowledge that, as Mr Wells points out, he has pleaded guilty to the charges arising out of the four sets of offending. That indicates some acceptance of responsibility for the offending.

• [81] However, based on Dr Gibson’s report, I am not certain that Mr Wells displays full acceptance of responsibility or remorse, in that I am not certain he understands how his behaviour has affected the lives of the victims he offended against, or their families. For example, in relation to the index offending, Woolford J refers to the victim impact statement from the victim as follows:⁴⁴

... He says that never in his life would he have thought he would be a victim of sexual assault. Every time he thinks about you makes him sick to his stomach. Sometimes he wakes up in the middle of the night due to the nightmares he has about you. He has tried to forget about you multiple times, but what you did has stuck with him.

• [82] In his submissions to the Court Mr Wells suggests that the victim was not uncomfortable with his behaviour. Rather, Mr Wells says the language used in the victim impact statement was the language of an adult, not the victim himself. In relation to the other victims, Mr Wells’ position also was that the victims were not uncomfortable with his behaviour. For example, in relation to the 2017 offending (at Briscoes) he suggests the impact on the victim was created by the aunt later on.

• [83] On the whole, I consider that any verbally expressed acceptance of responsibility or expressed remorse does not indicate a full acceptance of responsibility or remorse by Mr Wells’ for his past offending.

⁴⁴ R v Wells, above n 2, at [8].

Does Mr Wells display an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims?

• [84] It is not necessary for a finding to be made on this characteristic if the Court is satisfied, as I am, in relation to the above characteristic. They are alternatives. I will, however, go on to consider it. I have, in part, considered it in the context of my discussion of the characteristic above.

• [85] Dr Gibson is of the view that Mr Wells’ awareness and concern about the impact of his sexual offending on victims appears limited. As regards the first victim, Mr Wells reported that there was some negative impact caused by his actions as well as some caused by the involvement of authorities. As to the subsequent victims, Mr Wells was of the view that there were no negative impacts but conceded that as the victims had reported negative impacts, he had to believe them. Dr Gibson observed that Mr Wells appeared averse to the idea that his interactions with children would ever cause harm, repeatedly stating that he was loved by children and that a motivator for his offending was to make children feel happy. He believes that he interacts well and appropriately with children in a way that they enjoy.

• [86] Dr Gibson suggests that Mr Wells’ rapid return to offending repeatedly after release from conditions is further evidence that any concerns regarding harm to potential victims does not present as a sufficient barrier to further offending alone. Dr Gibson concludes that in her opinion, Mr Wells does not fully understand the impacts of his sexual offending on actual or potential victims.

• [87] I accept that opinion based on all the evidence.

Actuarial measures

• [88] As well as making her clinical assessments referred to above, Dr Gibson also administered various psychometric instruments that assess static and dynamic risk factors for sexual recidivism: the STATIC-99R; the STABLE-2007; and the Violence Risk Scale – Sexual Offence Version (VRS-SO). I address each in turn.

• [89] First, in relation to the STATIC-99R, Dr Gibson says:
  38. The STATIC-99R is a ten-item measure assessing static risk factors empirically identified as being predictive of sexual recidivism. It has five risk categories ranging from Level I (Very Low) risk to Level IVb (Well Above Average) risk. Given Mr Wells’ age and his North American heritage, the STATIC-99R was considered to be able to provide a more accurate prediction of Mr Wells’ risk of reoffending, comparative to other available tools for assessing static risk factors.

39. In the common risk language, Mr Wells’ STATIC-99R score of 4 placed him in the Level IVa Above Average risk category for being charged or convicted of another sexual offence. ...

• [90] As regards the STABLE-2007, Dr Gibson says:

41 The STABLE-2007 assesses stable dynamic factors which have been shown to increase or decrease the likelihood of sexual recidivism determined from static risk factors alone. The scale has shown an acceptable ability to differentiate between sexual recidivists and non- recidivists when used in addition to an assessment of static risk factors. The STABLE-2007 consists of 13 items related to psychological, interpersonal and sexual functioning which are added together to create a total score. Mr Wells scored 11 out of a possible

26 on the STABLE-2007. The following STABLE items were identified as problematic for Mr Wells: significant social influences, capacity for relationship stability, lack of concern for others, emotional identification with children, poor problem-solving skills, impulsivity, sex drive/preoccupation, deviant sexual interest, and cooperation with supervision. STABLE-2007 does not measure all targets relevant to risk and correctional rehabilitation and Mr Wells may have other needs not included in this measure.

• [91] Mr Wells’ VRS-SO score was substituted for a STATIC-99R to better account for the expected reduction in risk associated with Mr Wells being over the age of 60 years at the time of his release from prison. The estimated sexual recidivism rate for the group with the same STATIC-99R score was 22 per cent after five years and 32 per cent after 10 years (the base rate for all sexual offenders in the normative sample was 11.9 per cent after five years and 18.2 per cent after 10 years). In this assessment, Mr Wells has a similar score to those found to be in the 89th percentile for the Sexual Deviancy sub-scale and 33rd percentile for the criminality sub-scale. The treatment responsivity subscale score, however, was in the 96th percentile. This means that Mr Wells’ sexual recidivism is most likely due to his poor response to treatment and sexual attractions towards prepubescent males.

Dr Gibson’s overall assessment

• [92] Overall (taking into account her clinical assessment as well as the results of the scores on the psychometric instruments), Dr Gibson is of the opinion that Mr Wells presents a moderate to high risk of committing a further relevant sexual offence while in the community. However, I note that this risk assessment was made when Mr Wells was subject to release conditions, including electronic monitoring. Dr Gibson says that given Mr Wells’ past pattern of offending over the last 16 years, his risk is likely to escalate relatively quickly should he remain unsupervised in the community.

• [93] Dr Gibson’s overall psychological assessment, in her view, supports the following risk parameter statement:

50. Based on his previous offending, any further relevant sexual offending is likely to be committed against a pre- or peri-pubescent boy aged between 9 and 13 who becomes known to Mr Wells. Mr Wells is likely to come into contact with a potential victim incidentally (e.g., in Department Stores, on the street) or through grooming a family while in a teaching or tutoring role. Due to a combination of attraction to the child, grandiose views of himself, a desire to engage in risk-taking behaviour, and seeking out attention and positive feelings about himself from the child, Mr Wells is likely to be drawn to engaging with the child. Contact is likely to begin at first as friendly and playful and quickly progress to physical contact (e.g., touching their head, neck and shoulders, tickling them, patting their bottom). This contact could occur in a public place and will likely be over clothing. Throughout the engagement, Mr Wells is likely to disregard potential consequences and justify his interaction as appropriate. Offending could escalate to more intimate interactions if Mr Wells is given the opportunity to spend more time alone with the potential victim in a private place. In this instance, Mr Wells may begin by taking on a caregiving role, grooming the potential victim and their family for the purposes of further sexual contact, normalising the potential victim to physical touch, and/or providing for him (e.g., buying food or driving him to places).

51. Mr Wells' history of offending reflects little consideration for the impact his offending has on others, prioritising his own gratification and desire to feel connected with prepubescent males. Mr Wells’ risk would likely be increased in the presence of changes in personal circumstances, such as further disconnect from his family, rejection by others, increased sexual preoccupation, a lowered sense of self- worth and an over-confidence regarding his own ability to keep himself safe. It is important to note that the risk assessment completed here is dynamic and may change if Mr Wells’ circumstances change, for example, a change in his health or cognitive status.

Reports prepared for sentencing

• [94] In his report dated 6 December 2022 prepared under s 88 of the Sentencing Act for sentencing for the index offending, Dr Louw was of the opinion Mr Wells had a high likelihood of committing another qualifying sexual offence,⁴⁵ albeit on the lower end of the scale of seriousness. Dr Hansby, in his 12 January 2023 s 88 report, was of the opinion that Mr Wells was at above-average risk for being charged with or convicted of a qualifying sexual offence. Dr Hansby commented that it was concerning that repeated sanctions and three previous offending treatment inputs had not seen desistance to date.

Court’s assessment of risk of Mr Wells committing a relevant sexual offence in the future

• [95] I have found that Mr Wells has or has had a pervasive pattern of serious sexual offending and that Mr Wells displays the characteristics set out in s 107IAA of the Act.

• [96] In Chief Executive of the Department of Corrections v Wrigley Heath J had before him evidence of two health assessors.⁴⁶ One found Mr Wrigley posed a medium-high risk and the other found he posed a moderate-high risk of committing a relevant sexual offence in the future.⁴⁷ The Judge stated:⁴⁸

While I have been assisted by their opinions, the question whether an extended supervision order should be made is a judicial judgement, to be reached on the basis of the totality of evidence before the Court. It is the Court, not the health assessors that bears the responsibility for making that determination.

• [97] Mr Wells has offended against four prepubescent males across a period of 16 years, beginning when he was aged 64. He offended within the context of sexual attraction towards a vulnerable victim, whereby in the first set of offending, he took on a care-taking role and then perpetrated significant, intrusive and repeated contact sexual offending. He then offended in the second set of offending by way of

⁴⁵ Per s 87(5)(a) of the Sentencing Act, a qualifying sexual offence includes a sexual crime under Part 7 of the Crimes Act 1961 punishable by seven or more years’ imprisonment, ie including sexual conduct with a child or young person under ss 132 and 134 respectively.

⁴⁶ Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [26].

⁴⁷ At [28].

⁴⁸ At [27] (footnote omitted). See also Reuben v Chief Executive of the Department of Corrections

[2023] NZCA 564 at [47].

opportunistic contact patting the victim’s bottom over clothing in a public place. In the third set of offending, again in a public place, Mr Wells patted the victim across his body and pulled the victim into his own body and held him there. In the index offending Mr Wells returned to the victim’s home after the victim’s mother told him not to go there.

• [98] Mr Wells has previously engaged in three periods of treatment for his sexual offending: the SAFE programme from May 2012 to November 2013, 20 sessions of individual treatment with a Departmental psychologist from October 2016 to June 2017, and 35 sessions of individual psychological treatment with a private psychologist from August 2018 to April 2021. Across each period of treatment Mr Wells has been seen to gain insight into his offence pathway and personality structure. However, translation of this awareness into behavioural change has been identified as a challenge for him, which is reflected in his cycle of reoffending.

• [99] Additionally, every time Mr Wells has no longer been subject to external monitoring (which has occurred as a result of sentencing for sexual offences), he has committed further sexual offending against prepubescent males.

• [100] On the other hand, Mr Wells has stated that he wishes to desist from his offending and has identified his children and grandchildren as key motivators in that he wishes to regain connections with them. He keeps in regular contact with his son and friends, all of whom are aware of his offending. However, of concern, Dr Gibson notes that all of Mr Wells’ friends were seen to engage in some minimisation regarding the most recent offending, reflective of a potentially limited ability to hold Mr Wells accountable and challenge his cognitive distortions or problem behaviours. Mr Wells disputes that and in support refers to recent comments by two of his friends that suggest otherwise.

• [101] Dr Gibson’s opinion is that Mr Wells’ offending is typically precipitated by a desire for validation and appreciation, a strong sexual attraction to prepubescent males, a disregard of consequences, a grandiose view of self and cognitive distortions pertaining to the degree of harm caused. Further, despite Mr Wells reporting a desire

to desist from offending, he continues to experience sexual attraction towards prepubescent males.

• [102] Of note, in a report of 29 June 2023, it is recorded that Mr Wells was observed to be staring at a young boy in a waiting room. When asked about this, Mr Wells acknowledged he had found the boy beautiful. Mr Wells stated to the probation officer that he had not seen such a handsome boy since his release and so looked at him, thus contradicting earlier statements that he no longer wanted to look at children and was committed to his strategy of avoidance.

• [103] I take into account that Mr Wells’ developing strategies to manage his sexual attraction towards prepubescent males are recently implemented and are not yet tested without the oversight of Community Corrections or in high-risk situations.

• [104] Although Dr Gibson concludes that Mr Wells presents a moderate to high risk of committing further sexual offending, this assessment was made while Mr Wells was subject to release conditions. Dr Gibson adds that given Mr Wells’ past pattern of offending over the last 16 years, his risk is likely to escalate relatively quickly should he remain unsupervised in the community. I consider, making my own assessment based on Dr Gibson’s assessment and all the evidence, that Mr Wells is at high risk that he will in future commit a relevant sexual offence.

Whether an order should be made

• [105] If the statutory criteria are satisfied an order is not necessarily mandated. However, as was said by Downs J in Chief Executive, Department of Corrections v Popata:⁴⁹

... it would be exceptional not to make an order when the criteria had been established, particularly given the high threshold for an order and the statutory concern of public safety.

• [106] I take into account Dr Gibson’s evidence that Mr Wells’ profile is suggestive of someone who experiences pleasure by focusing on their feelings of superiority to maintain self-assurance. Mr Wells spoke of his confidence in himself. Dr Gibson

⁴⁹ Chief Executive, Department of Corrections v Popata, above n 28, at [57].

considers in Mr Wells’ interactions with prepubescent males, he interprets their response through this lens and feels positively about himself, thus maintaining and supporting his desire to continue to connect with them. Further, she says his narcissism may contribute to an overconfident view of his ability to control his sexual offending behaviour. Mr Wells said he identified with the term narcissist.

• [107] I exercise my discretion based on all the evidence to make an order as sought.

Result/Orders

• [108] I make an order granting the Chief Executive’s application for an ISO. The order will be subject to both standard and special conditions as set out below and will expire upon the final determination of the ESO application.

Standard conditions

• [109] Mr Wells is subject to the standard conditions in s 107JA of the Act.

Special conditions

• [110] Any special condition must not be imposed unless it is designed to:⁵⁰

(a) reduce the risk of reoffending by the offender; or

(b) facilitate or promote the rehabilitation and reintegration of the offender; or

(c) provide for the reasonable concerns of victims of the offender; or

(d) comply, in the case of an offender subject to an ESO, with an order of the Court, made under s 107IAC to impose an intensive monitoring condition.

⁵⁰ Parole Act, s 15(2).

• [111] There must be a nexus between the perceived risk posed by the offender and the effectiveness of the proposed condition.⁵¹ I consider the special conditions proposed by the Chief Executive variously reduce or mitigate against the risk of reoffending and promote rehabilitation. I therefore impose the following conditions on the ISO:

(a) To reside at an address approved by a probation officer and not to move address without the prior written approval of a probation officer.

(b) To submit to electronic monitoring as directed by a probation officer in order to monitor your compliance with any conditions relating to your whereabouts.

(c) Not to enter any school, early childhood education centre, park, library, swimming pool, other recreational facility, church, or other area specified in writing by a probation officer, unless you have the prior written approval of a probation officer, or unless an adult approved by a probation officer in writing, is present.

(d) Attend a psychological assessment with a Departmental psychologist. Attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of a probation officer and treatment provider.

(e) Not to undertake any paid employment or voluntary work without the prior written permission of a probation officer.

⁵¹ Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49].

(f) To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a probation officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a probation officer.

Gordon J