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Chief Executive of the Department of Corrections v Hunia-Rikirangi [2024] NZHC 1430 (31 May 2024)

Last Updated: 17 July 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 31 May 2024 at 3.30 pm

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell (Auckland) for Applicant Shannon Withers (Auckland) for Respondent

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v HUNIA-RIKIRANGI [2024] NZHC 1430 [31 May 2024]

Introduction

• [1] The applicant applies for an extended supervision order (ESO), with an intensive monitoring condition, in respect of the respondent.

• [2] The respondent opposes.

• [3] This Judgment determines the application.

The law

• [4] I will begin by setting out the legal provisions which I must apply. Counsel for the applicant has filed comprehensive submissions, and I draw heavily on them for this section of my Judgment.

• [5] The purpose of an ESO is to protect members of the community from those who, having been sentenced to a term of imprisonment, pose a real and ongoing risk of committing serious sexual or violent offences.¹

• [6] Offenders who are subject to an ESO have imposed upon them parole-type conditions as determined by the New Zealand Parole Board for a period of up to 10 years. The purpose is to enhance community safety by providing ongoing supervision and management of high-risk offenders. The standard conditions are set out in s 107JA of the Parole Act 2002 (the Act). The New Zealand Parole Board can impose special conditions to meet particular risk management needs. The type of supervision envisaged under the regime includes frequent contact with a probation officer and conditions to manage known high-risk situations.

• [7] In the respondent’s case, the applicant seeks an intensive monitoring condition.² The condition usually requires an offender to submit to monitoring, for up to 24 hours a day. The order must specify the maximum duration of the intensive monitoring conditions, which must be no longer than 12 months.

¹ Parole Act 2002, s 107I(1).

² Section 107IAC.

• [8] If an offender subject to an ESO breaches its conditions then that is an offence.

The maximum penalty is two years’ imprisonment.³

• [9] The jurisdiction to make an ESO is set out in s 107I of the Act:

(1) The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.

(2) A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2A), that—

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

(b) either or both of the following apply:

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

(ii) there is a very high risk that the offender will in future commit a relevant violent offence.

(3) To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.

(4) Every extended supervision order must state the term of the order, which may not exceed 10 years.

(5) The term of the order must be the minimum period required for the purposes of the safety of the community in light of—

(a) the level of risk posed by the offender; and

(b) the seriousness of the harm that might be caused to victims; and

(c) the likely duration of the risk.

(6) [Repealed]

• [10] The Court of Appeal has said:⁴

³ Parole Act 2002, s 107T.

⁴ McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 at [71]–[75].

(a) the requirement that the Court be “satisfied” is the same as that used for preventive detention, as set out in R v Leitch.⁵ It is an exercise of judgment, not related to burden or standard of proof; and

(a) a sentencing judge should give separate consideration to the appropriate term of an order.

• [11] In R v Peta, the Court of Appeal addressed how a Court should use the assessment of health professionals in coming to a conclusion of risk.⁶ An offender’s risk must be assessed on an individualised basis rather than by reliance on actuarial or static generic measures.

• [12] The opinions of health professionals will, of course, be of assistance. But the question of whether an ESO should be made is a judicial judgment. The totality of the evidence must be assessed by the Court.

• [13] The first step for the Court is to determine whether the ESO should be made. Once it is established that the offender is an “eligible offender,” the Court is required to engage in a three-step process:⁷

(a) The Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending (s 107I(2)(a));

(b) The Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and

(c) If those criteria are met, the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence (s 107I(2)(b)).

• [14] Once all three steps have been considered, and the Court is satisfied that an ESO should be made, the Court must consider the term of the order. It must be the

⁵ R v Leitch [1998] 1 NZLR 420 (CA) at 428.

⁶ R v Peta [2007] NZCA 28.

⁷ Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [13].

minimum period required for the purposes of the safety of the community in the light of:

(a) the level of risk posed by the offender;

(b) the seriousness of the harm that might be caused to victims; and

(c) the likely duration of that risk.

• [15] A recent addition to the judicial assessment is established by the Court of Appeal in Chisnall v Attorney-General.⁸ In that case, the Court determined that Part 1A of the Act is inconsistent with the New Zealand Bill of Rights Act 1990, and the inconsistency is not justified under s 5 of that Act. The Court issued a declaration accordingly. As a result, there must be strong justification for an ESO before one is imposed, and that strong justification is not met simply because oversight would be desirable or beneficial to the offender as they transition to being in the community.⁹

• [16] The “strong justification” criterion reflects the public safety justification that is required before a person should be subjected to the limits on their freedom of movement and association that an ESO entails. I regard this as something akin to the totality principle in sentencing. That is to say, if I find that the statutory criteria for the imposition of an ESO on the respondent are otherwise met, then I will stand back and consider whether there is strong justification for the imposition of an ESO on the respondent.

The evidence

• [17] The evidence for the applicant was given by Dr Willem Louw, a registered clinical psychologist. I have his report of 28 November 2023, and he gave evidence in the hearing before me.

• [18] The facts of the respondent’s background are not in dispute.

8. Chisnall v Attorney-General [2021] NZCA 616 and Chisnall v Attorney-General [2022] NZCA 24.
9. See R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53].

• [19] The respondent is now 27 years old. He has a longstanding diagnosis of intellectual disability, and has received previous dispositions under the Intellectual Disability (Compulsory Care and Rehabilitation Act) 2003. The respondent’s cognitive functioning was assessed in 2012, when he was aged 16. His Full Scale IQ was 57. This falls within the extremely low range of intellectual ability. On a test of adaptive functioning, he was assessed to fall within the extremely low range of functioning. The respondent was functionally illiterate, did not have basic literacy skills, and was estimated to be functioning at the level of a first year pupil at primary school.

• [20] The respondent’s cognitive functioning was re-assessed in 2017, when he was aged 21. This time his Full Scale IQ score was 61. This is still in the extremely low range, and the respondent’s diagnosis of intellectual disability was confirmed.

• [21] On 17 December 2019, the respondent was sentenced in the District Court to six years and four months’ imprisonment after being found guilty by a jury and convicted of:

(a) Sexual violation by rape on 19 March 2017; and

(b) Three charges of indecent assault or indecent act on 1 February 2018.

• [22] These offences qualify the respondent as an eligible offender under the Act.¹⁰ In other words, they qualify him for the imposition of an ESO if the other statutory criteria are made out.

• [23] The rape conviction relates to the respondent leaving a residence, in which he had been placed under a secure care order, and going into Hamilton city. He came across an intoxicated 16-year-old female who was alone. He initially befriended her and walked around the central business district of Hamilton with her. While they were in a carpark, the respondent dragged the girl on the ground, removed her pants and raped her. He then helped her to get dressed and was seen again later on CCTV footage

10. The respondent is still serving his sentence of imprisonment. His sentence expiry date is 6 August 2024.

walking with her. He reported giving her his sweater to wear as she was cold. The respondent said he was concerned about her and was helping her to get back home.

• [24] The other three charges related to a female in her early 20s who was also a care recipient in the address at which the respondent (then aged 22) was living. The offending occurred between February and March 2018, when the respondent and his victim were alone in an isolated corridor of the facility. The respondent indecently assaulted the victim by grabbing her genitalia over her clothing and slapping her backside. On another occasion he exposed his penis to her.

• [25] At his trial, the respondent faced a further charge of rape. He was acquitted on that charge. The complainant was the 18-year-old girlfriend of an associate of the respondent. The complainant alleged that on 1 August 2016 the respondent (then aged

20) grabbed her phone from her and she chased him to an abandoned address nearby. She alleged that once there the respondent pinned her down and raped her. The respondent’s defence during the trial was that the intercourse was consensual.

• [26] The applicant submits that the respondent’s entire history of “problematic sexual behaviour” must be taken into account. Dr Louw gave evidence of it and the relevant parts of his evidence are summarised in the applicant’s submissions:

History of problematic sexual behaviour

• 4.1 Apart from the four index offences, which occurred in 2017 and 2018 when [the respondent] was aged between 21 and 22, it should be acknowledged that [the respondent] does not have a history of sexual convictions. However, a review of his file and previous expert reports reveals a well-documented history of persistent problematic sexual behaviour (some of which would have amounted to a sexual offence, if charged and convicted) including:

(a) An incident of sexualised behaviour at school when [the respondent] was aged 10;

(b) In 2014 (aged 18), [the respondent] established a friendship with a 15-year-old female neighbour ... He was reported to have continually harassed her and was seen by care staff masturbating behind a fence whilst talking to her. Despite a protection order being applied for, [the respondent] continued to persist in contacting her.

(c) In 2016, [the respondent] allegedly exposed himself to three teenage girls at Otautu Bay. His care manager reportedly

wrote that his inappropriate sexual behaviours had escalated to the point where he was housebound.

(d) In 2017, [the respondent] allegedly trapped the female house manager behind a computer and would not let her out to go home. There were noted concerns about her personal safety and that his behaviour was sexually motivated.

(e) Numerous other file notes of inappropriate behaviour including slapping female staff members on the bottom, whispering to a nurse “how about I put my thing in yours?”, and sexually assaulting one female patient by grabbing her bottom and genitals.

Concerning behaviour in custody

• 4.2 [The respondent] was first remanded in custody for the index offending on 4 April 2018 and remains in custody. His reported conduct in custody outlines further problematic sexual behaviour towards female staff including:

(a) Touching and exposing his aroused penis whilst on an AVL link (11 July 2019);

(b) Putting both hands down his pants as he was about to meet with his female lawyer in the lawyer instruction room (25 July 2019);

(c) Reaching through the cell hatch and grabbing at the female staff member’s pants (19 December 2019):

I was on med round with CO [redacted] and witnessed [the respondent] put his arm out of the hatch and grab a hold of CO [redacted] pants, CO [redacted] removed his hand off her pants and told him not to do it again, however he ignored her order and attempted to do the same again. Prisoner has been spoken to about his behaviour and a misconduct charge will follow for his inappropriate and assaultive behaviour towards staff.

(d) Repeatedly calling a female officer “babe” and “baby” (27 February 2021); and

(e) Making comments to female officers “only if you show us your tits” and ‘you’re such a bad girl, lets watch porn together’; and

(f) Numerous negative files notes for sexualised and offensive behaviour which has resulted in warnings.

• 4.3 Despite formal warnings and misconducts with resulting loss of privileges, [the respondent’s] behaviour in custody has persisted. In total he has accrued 20 proven misconduct reports between 19 December 2019 and 16 August 2022.
• 4.4 [The respondent’s] female case manager (Ms Hooker-Sherwood) reports that he “has a strong sexual focus, strong self-focus, very limited insight or remorse and is easily influenced by others”. He is described as cheeky with sexualised comments and his attention is rapidly diverted when a female staff member walks by. His behaviour inside custody is described as:

Emotionally dysregulated, physically and verbally aggressive (including sexualised comments to female staff), easily influenced by antisocial peers (gang related), vulnerability due to cognitive impairment and requiring special assistance (simplified statements / pictures) to explain concepts or consequences of important decisions he has to make.

• 4.5 In relation to treatment, [the respondent] has historically struggled to engage in both individual and group therapy. He was deemed unsuitable for the special treatment unit and drug treatment unit given his low cognitive abilities. He has been getting individual treatment with a female departmental psychologist, Dr Fink.

• 4.6 Dr Fink observed that the treatment effect was limited as [the respondent] continues to “push the boundaries of acceptable behaviour during treatment” in the face of repeated instructions that his behaviour was inappropriate. Dr Fink advised that [the respondent] was unable to regulate himself with a female therapist and:

(a) Presented with several attitudes condoning sexual violence;

(b) Continued to put his hands down his pants during sessions; and

(c) Asked her out on a date.

• 4.7 Dr Fink opined that any offence focused treatment is likely to have a low ceiling for treatment effectiveness given [the respondent’s] limited cognitivism abilities and self-regulation difficulties (both generally and sexually). Dr Fink considered:

... external monitoring and a carefully structured daily environment following his release to likely be necessary to assist [the respondent] in managing his risk of future sexual offending.

• 4.8 Concerningly, after Dr Fink reported his offence paralleling behaviour with the Parole Board, [the respondent] asked to her retract her statements and then told her to “watch her back”. In addition, after the Parole Board declined him parole, [the respondent] reportedly made aggressive statements including that he should have killed the victim.

• [27] Dr Louw gave evidence about the respondent’s risk of sexual re-offending, referring to assessments by two psychologists in the past four years. These are Dr Thompson and Ms Warren. Their reports are part of the evidence before me.
• [28] Dr Louw, in his report, says:

53. Analysis of the VRS-SO dynamic sub-scales using normative data from the VRS-SO User’s Workbook suggested that [the respondent’s] scores fell at the 54^th percentile for sexual deviance, the 95^th percentile for general criminality and the 97^th percentile for responsivity. This distribution suggests that [the respondent’s] risk of sexual reoffending is more related to his general criminality and limited ability to benefit from targeted sexual offending treatment than sexual deviance.

54. In regards to the dynamic items on the VRS-SO, [the respondent] had scores that indicated that the following items were related to his recidivism risk; sexual compulsivity, cognitive distortions, interpersonal aggression, limited insight, substance abuse, limited community support, release to high risk situations, sexual offending cycle, impulsivity, some difficulties with treatment and community supervision compliance, and intimacy deficits.

55. Consideration of other factors related specifically to [the respondent’s] risk and not directly assessed by the above instruments was made from file and interview information. [The respondent’s] intellectual deficits in combination with his characteristic oppositional defiant reaction to authority significantly limits the potential benefit he could derive from talking therapy-style individual or group interventions. Even when a robust safety plan and release plan is developed for [the respondent], he is unlikely to be able to adhere to these plans without significant external supports in place.

56. Overall, [the respondent] is considered to present with a high risk of committing a further relevant sexual offence while in the community. This opinion is based on [the respondent’s] assessed risk ratings and predicted recidivism rates on relevant standardised risk assessment tools (ASRS-R & VRS-SO) as well as structured professional judgement.

57. The overall psychological assessment supports the following risk parameter statement: Should [the respondent] commit another sexual offence, the most likely victims are adolescent females or adult women either known to him or not; offending may comprise both contact (e.g. indecent assault or rape) or non-contact (exposing his penis) sexual offending. He is most likely to persist with problematic sexual behaviour towards staff and female care recipients in disability support residences, and this behaviour may escalate to sexual offences. [The respondent] is most at risk for future sexual offending when under the influence of alcohol and/or other substances, unsupervised/unaccompanied, and in close proximity to vulnerable and isolated women (e.g. an intoxicated woman walking or sitting by herself in a secluded area).

• [29] As to the endurability of the respondent’s risk, Dr Louw’s evidence is:

59. The combination of [the respondent’s] intellectual disability, history of persistent problematic sexual behaviour across contexts and his

high number of dynamic risk factors means that he cannot reasonably be expected to manage his of risk sexual reoffending by himself – irrespective of the intensity and dose of targeted offence focussed treatment offered to him in prison or in the community, and even if only administered by males. [The respondent] is known in prison and in the community to compulsively seek out opportunities for substance abuse. Even when he had resided in secure care disability support residences in the community, he had managed to abscond on several occasions to places where he could obtain illicit substances, and is likely to continue this pattern once released from prison. [The respondent’s] risk of sexual reoffending is strongly related to his intellectual disability (permanent cognitive impairment), entrenched criminal attitudes (including attitudes supportive of sexual violence) and substance dependence. His assessed high risk of serious sexual reoffending is estimated to persist for at least the next 10 years, given his young age and responsivity issues outlined in this report.

• [30] On the issue of whether the respondent has a pervasive pattern of serious sexual offending, Dr Louw’s opinion is:

67. While [the respondent’s] history of convictions for serious sexual offending (index offences) is not pervasive throughout his life, he appears to have a pervasive pattern of offensive sexual behaviour that could very likely escalate to serious sexual offences in a less restricted environment than prison or secure mental health care, as was the case in the two years prior to his current incarceration.

• [31] Dr Louw’s opinion is that the respondent does exhibit a compulsive sexual drive:

68. [The respondent] accrued three convictions for relevant sexual offences. He was acquitted on a fourth charge of relevant sexual offending. [The respondent’s] pervasive pattern of problematic sexual behaviour provides evidence of an intense drive, desire or urge to engage with women in a sexual manner, whether they consent or not. When female victims have been vulnerable either through their relative age, level of alcohol intoxication, or being isolated from others, [the respondent’s] compulsive sexual drive has resulted in him being convicted of relevant sexual offending.

69. [The respondent’s] persistent problematic sexual behaviour in previous care residences, which continued unabated in prison, provides evidence that he displays an intense drive, desire or urge to engage in a sexual manner with women. In a less restrictive environment (e.g. in the community following his release from prison), and under certain circumstances (proximity to vulnerable and isolated females), this drive could very likely result in further relevant sexual offending.
70. Overall, it is my clinical opinion that [the respondent] has displayed and continues to display an intense drive, desire or urge to commit further relevant sexual offences.

• [32] Similarly, Dr Louw’s opinion is that the respondent has a proclivity for serious sexual offending:

71. For the purpose of this assessment, predilection is understood as “a preference for, or liking of, serious sexual offending behaviour”, and proclivity as “an inclination towards something considered morally wrong” and including “the concept of a pattern”, was guided by the relevant case law. [The respondent’s] self-reported history of sexual behaviour indicates a preference for sexual encounters with consenting women his own age or younger. [The respondent] denied attraction to any deviant sexual stimuli. [The respondent’s] lack of prior charges or convictions for serious sexual offending, points away from a predilection or proclivity for sexual offending.

72. While [the respondent’s] conviction history does not provide clear evidence of a predilection or proclivity for serious sexual offending throughout his life, his sexual offence charges together with his persistent problematic sexual behaviour history over the past ten years, across different secure residential contexts (including prison) provides clear evidence of a proclivity for engaging in sexualised behaviour that could be considered unwanted, unreciprocated and offensive. [The respondent] has a proclivity for opportunistic unwanted sexual advances that could quickly escalate to serious sexual offences in certain circumstances (proximity to vulnerable and isolated females).

73. Overall, it is my clinical opinion that [the respondent] has a proclivity for serious sexual offending.

• [33] The respondent’s history, including his misconduct in prison, led Dr Louw to conclude that he has demonstrated limited self-regulatory capacity.

• [34] The respondent does not accept responsibility for his past offending and exhibits no remorse for it. He has consistently denied all his sexual offence charges and convictions. He maintains he was either falsely accused or wrongly convicted. Dr Louw gives his opinion that the respondent has shown an overall lack of acceptance of responsibility for his sexual offending, with no expressions of remorse to date.

• [35] Similarly, the respondent has displayed an absence of understanding for or concern about the impact of his sexual offending on his victims.

• [36] Dr Louw’s oral evidence gives useful context for his written report.
• [37] First, Dr Louw said that he was unable to obtain information from the Henry Bennett Centre on its care of the respondent because the respondent refused to consent to him doing so. The respondent said he did not think that it would be in his favour to get the information. However, I do have a report from Dr Duncan Thompson dated 5 September 2019. He is a clinical psychologist. In his report he makes observations about the “frequency of unwanted sexual behaviour at the Henry Bennett Centre last year suggests he is reasonably sexually preoccupied” and “[h]e also made sexual advances towards staff and peers at the Henry Bennett Centre despite the clear message that this behaviour was inappropriate and unwarranted”. I infer that these references sketch the information which the respondent did not want Dr Louw to have. Dr Louw was referred to Dr Thompson’s report, and those passages in particular, and agreed with Dr Thompson’s conclusions on how they illustrate the respondent’s sexual propensities.

• [38] Dr Louw was asked for his view on whether the respondent has a pervasive pattern of serious sexual offending:¹¹

Q. Now what was your view in terms of whether [the respondent] has a pervasive pattern of serious sexual offending?

A. Yes. I vexed over this question. My overall view is that he has pervasive pattern of sexual offending behaviour that in less restrictive environments could’ve escalated to serious sexual offending. But because he found himself most of that time in more restrictive environments, I think it’s on the balance for me whether his history or his behaviour is of serious sexual offending. It’s a difficult question to answer, that one.

• [39] Later, Dr Louw gave his opinion that the respondent exhibits “a pervasive pattern of problematic sexual behaviour”.

• [40] Dr Louw was asked about his opinion that the respondent has a proclivity for serious sexual offending. He answered:¹²

Yes. Based on [the respondent’s] history he keeps finding himself into that kind of trouble since 2014, so it’s now 10 years. And even while in prison. So the proclivity, he seems drawn to engage in unwanted sexual interactions with women despite their rejection or communication that this is not what they want. So there seems to be a continuation, a compulsion to carry on with this.

¹¹ Notes of evidence, at 9.

¹² At 9-10.

And so that’s why I found in my assessment that Mr [the respondent] shows a proclivity for serious sexual offending but not a predilection.

• [41] There was then this exchange between Dr Louw and me:¹³

Q. All right. Well, you see, your earlier opinion here appears to have a pervasive pattern of offensive sexual behaviour. And with respect I agree. How does that then jump to a proclivity for serious sexual offending?

A. Yes, that is the difficulty, your Honour. The way I looked at it was that if those behaviour escalated in less restrictive environments, they could very easily have become serious sexual offences. But it’s not like he has a proven track record of serious sexual offences, apart from the index offending. Yes, it is a hard one for me to answer.

• [42] In cross-examination the point was made that the psychological tests administered by Dr Louw assess the respondents in the average risk categories and the doctor’s conclusion of high risk stems from his more subjective assessment of dynamic risk.

• [43] At the end of Dr Louw’s re-examination, I asked a further question:¹⁴

Q. I think I’ve only got one question for you, Doctor, and it’s this. When you consider all of the evidence in respect of the respondent’s sexual proclivities or predilections, where does the rape fit? I ask that because I strongly suspect that if it wasn’t for the rape, none of this would be here?

A. Yes, I agree. What makes it difficult is that [the respondent] has maintained a denial of the rape. So finding out the internal factors that led to that rape is near impossible because he does not agree that that event occurred. So to your question how does the rape fit into a proclivity. My personal opinion is that he doesn’t have a predilection for serious sexual offending. He actually yearns for intimacy and through reciprocal means. I don’t think he wants sexual activity that’s not reciprocated. I think his intellectual disability makes him – and his upbringing also doesn’t help, and it produces sort of a clumsy attempt at invitations when intimacy. But that does lead to a proclivity of problematic behaviour. How does the rape fit into that? I think that was just another example of him attempting intimacy; disregarding the contextual factors that the victim was not able to consent, taking advantage of it. That’s possibly my best answer so far.

¹³ Notes of evidence, at 10.

¹⁴ At 21.

Discussion

• [44] Having considered the evidence, I have no doubt that upon his release the respondent will pose a high risk of further offending. That offending could be varied in nature (he has convictions for non-sexual offending), but there is a high risk that it will include sexual offending.

• [45] The issues for me are:

(a) Does the respondent’s history show he has had a pervasive pattern of

serious sexual offending?

(b) Is there a high risk that the respondent will commit a further relevant

sexual offence?

(c) If the answer to both of the issues above is “yes”, then is there strong justification for the imposition of an ESO on the respondent?

• [46] There is no definition for “serious sexual offending”. It is not confined to offences specified as a “relevant sexual offence” in s 107B(2) of the Act and should be interpreted by reference to its ordinary meaning, viewed against the purpose of the ESO regime.¹⁵ It should not be interpreted to require an unduly high threshold, as seriousness will depend on the circumstances of the particular case.¹⁶

• [47] It has been held that indecent assaults can be sufficiently serious to amount to “serious sexual offending”.¹⁷

• [48] Counsel for the applicant submits that offending that does not appear particularly serious when viewed in isolation may actually be part of a pattern of concerning behaviour.¹⁸ Non-contact offending can form part of a pervasive pattern of serious sexual offending. A lack of physical contact in sexual offending does not

¹⁵ Holland v Chief Executive of the Department of Corrections [2017] NZSC 161 at [13].

¹⁶ Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [48].

¹⁷ Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298.

¹⁸ W (CA716/18) v Chief Executive of the Department of Corrections [2019] NZCA 460 [20].

make that offending less serious than conduct that does involve touching. Again, it is a fact-specific exercise.¹⁹

• [49] The term “pervasive” is to be interpreted in accordance with its plain meaning. In cases where there has been offending over a long period of time against a number of victims, the matter can be self-evident. However, as few as two previous incidents have been found sufficient to form a “pervasive pattern”. In Martin,²⁰ two offences committed nine years apart was found to be a pervasive pattern. In Skudder,²¹ two incidents of multiple rapes committed two weeks apart against the same victim was also found to be a pervasive pattern.

• [50] There is also Court of Appeal authority to the effect that if a health assessor relies on unproven offending, and conduct that does not constitute an offence, then it is permissible for a Court to take that into account in assessing whether there is a pervasive pattern of serious sexual offending.²²

• [51] The rape committed by the respondent is serious sexual offending. I characterise the indecent assaults for which he was convicted as serious sexual offending. The respondent sexually attacked a vulnerable woman in a care home. He targeted her genitals. Importantly, he did so as part of a longstanding pattern of offending.

• [52] When I take into account the respondent’s history of sexual offending, albeit not charged as such, I find there is a pervasive pattern of serious sexual offending. The context is important. The respondent is not deterred by repeated interventions by those in authority. If he can, he makes unwanted physical contact. Otherwise, he makes inappropriate verbal advances. I regard the rape and the indecent assaults for which he was convicted as part of the respondent’s pervasive pattern of serious sexual offending.

¹⁹ Holland v Chief Executive of the Department of Corrections, above n 16.

²⁰ Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060.

²¹ Chief Executive of the Department of Corrections v Skudder [2016] NZHC 1717 at [54]–[55].

²² W (CA716/18) v Chief Executive of the Department of Corrections, above n 18.

• [53] I understand Dr Louw’s characterisation of the respondent’s behaviour as a pervasive pattern of offensive sexual behaviour. But, when seen in overall context, and with the offences of rape and indecent assault being simply part of the pattern, the statutory threshold is crossed, albeit by a slim margin.

• [54] The next issue is whether there is a high risk that the respondent will in future commit a relevant sexual offence. I must, as did Dr Louw, consider the matters set out in s 107IAA(1) of the Act:

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.

• [55] I have considered Dr Louw’s analysis of those matters and I accept it. In brief:

(a) I am satisfied the respondent displays an intense drive, desire, or urge to commit a relevant sexual offence. The respondent’s sexualised conduct is well-documented. He wants to have physical sexual contact with females, particularly females around his age. This means, at least, committing indecent assaults (a relevant sexual offence).

(b) I am satisfied the respondent has a proclivity for serious sexual offending for the reasons given by Dr Louw. The indecent assaults and the rape for which he has been convicted show his proclivity at a time when he was not under the direct control of people with authority to do so.

(c) I am satisfied, for the reasons given by Dr Louw, that the respondent has limited self-regulatory capacity. Indeed, I would characterise it as very limited.

(d) The respondent clearly displays a lack of acceptance of responsibility and remorse for his past offending. Further, he has no understanding for or concern about the impact of his sexual offending on actual or potential victims.

• [56] In sum, not only do I find there is a high risk that the appellant will in future commit a relevant sexual offence, I consider it inevitable that he will do so. He has an intellectual disability that cannot improve. He has a difficult life history. His history of sexual offending speaks for itself. He is a young man. He has made almost no progress with rehabilitation despite the best efforts of mental health professionals. He has an intense desire for sexual contact with females.

• [57] In my view, the respondent should be made subject to an ESO, and there is strong justification for doing so. It could be argued that whenever a person is found to cross the threshold for the imposition of an ESO then there is strong justification, because of the risk to public safety, for imposing it. Nevertheless, the Court of Appeal must have envisaged situations where a strong justification is absent. In this case, where the risk of further relevant sexual offending is so high as to be inevitable, I find there is strong justification for imposing an ESO.

• [58] I now assess the term of the ESO. The applicant seeks the maximum term of 10 years. I agree that should be the term for the reasons that go to his risk of offending:

(a) He has an intellectual disability that limits his ability to rehabilitate.

(b) His pervasive pattern of serious sexual offending has been present since he was about 14 years old.

(c) He is still a young man.

(d) There is no reason to suppose that over the next 10 years his risk profile will decrease.

(e) The seriousness of the harm that might be caused to his victims is high.

• [59] I now assess whether the respondent should be subject to an intensive monitoring condition.

• [60] I accept the applicant’s submissions:

• 7.4 There is strong justification for an intensive monitoring condition in this case to ensure that [the respondent] does not commit a further relevant offence. There is a significant concern that, without close and constant supervision, his risk will be significantly exacerbated when he transitions from prison to the community.

• 7.5 Without consistent oversight, it is unlikely that [the respondent’s] transition can be safely managed. External controls are warranted to manage and mitigate his risk. He has demonstrated a propensity to commit offending, including sexual offences, against victims in his residential placement and in public settings. His pattern of impulsive behaviour combined with his cognitive impairment warrants a restrictive condition to monitor his movements.

• 7.6 [The respondent’s] risk profile and factors are different to those raised in Te Pania,²³ given that the Mr Te Pania was not in any transitional period of high risk and was not a risk in his residential environment. In this case, [the respondent’s] transition into the community will be high risk and, through his proven conduct, he has demonstrated that he is a risk in both residential and secure care environments.

• 7.7 More specifically, the applicant considers that this condition is necessary to mitigate the risk of reoffending and detect any further offending promptly. Without the condition, it would be difficult to monitor [the respondent’s] future interactions with females.

• [61] In view of the respondent’s level of risk, I will specify a maximum duration of 12 months.

²³ Te Pania v Chief Executive of the Department of Corrections [2023] NZCA 161. The Court of Appeal overturned the High Court decision to impose an intensive monitoring condition because Mr Te Pania was not a risk in his residential environment. Strict conditions, including a curfew, would mitigate his risk.

Decision

• [62] The application is granted. I make an order that the respondent be subject to an extended supervision order.

• [63] The extended supervision order will commence on the respondent’s statutory release date of 6 August 2024. Its duration will be 10 years from that date.

• [64] I make an order requiring the New Zealand Parole Board to impose an intensive monitoring condition on the respondent. The duration of the condition is to be 12 months.

Brewer J