MIST v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 549

MIST v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 549 [6 November2023]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA162/2023[2023] NZCA 549BETWEEN BASIL STEVEN MISTAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 27 July 2023Court: Mallon, Moore and Palmer JJCounsel: A J Bailey for AppellantS C Baker and S R Lamb for RespondentJudgment: 6 November 2023 at 12 pmJUDGMENT OF THE COURTA The application for leave to appeal out of time is granted.B The application for leave to file a post-hearing memorandum is granted.C The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Table of contentsIntroduction [1]Background [3]Statutory framework [10]Decision under appeal [12]Approach on appeal [18]Grounds of appeal [19]Leave to file post-hearing memorandum [20]Did the Judge give sufficient reasons? [40]Does Mr Mist have a pervasive pattern of serious sexual offending? [49]Is there is a high risk that Mr Mist will commit a relevant sexual offence? [52]Does Mr Mist display an intense drive, desire, or urge to commit a relevant sexual offence? [53]Does Mr Mist have a predilection or proclivity for serious sexual offending? [58]Does Mr Mist have limited self-regulatory capacity? [63]Does Mr Mist display a lack of remorse and/or an absence of understanding or concern about theimpact of his offending? [73]Conclusion [77]Result [81]Introduction[1] On 26 August 2022, Cooke J made an extended supervision order (ESO) withan intensive monitoring condition (IMC) against Basil Mist.1 Despite consenting tothe orders being made in the Court below, Mr Mist now appeals the making of theESO on the basis that the Judge gave insufficient reasons for finding that the groundsfor making the order were made out and, in any event, there was no evidence, or nosufficient evidence, to support such a finding.[2] Mr Mist also applies for leave to file the appeal out of time and leave to file apost-hearing memorandum, both of which we grant in the interests of justice.Although at 111 working days the delay was not insignificant, we are satisfied anextension is justified in view of the restrictions on liberty imposed by an ESO.Background[3] Mr Mist was sentenced in 2003 on a raft of serious violent and sexual charges,committed when he was aged between 17 and 20.1 Department of Corrections v Mist [2022] NZHC 2178 [Decision under appeal].[4] The victim of the violent offending was his late 17-year-old partner. Theirrelationship was marred by domestic violence culminating in her death in March 2002.Mr Mist was convicted of her manslaughter and a representative charge of maleassaults female following a trial by jury. He had earlier pleaded guilty to a separate,representative charge of male assaults female.[5] The sexual offending was committed against five young girls, aged betweenseven and 15. It covered the period from October 1998 to January 2002. Mr Mist'spartner, the victim of the violent offending, was involved with him as a party in morethan one of the sexual offences. Mr Mist was convicted of six sexual chargesfollowing a trial by jury. These comprised two representative charges of sexualconduct with a young person aged 12 to 16, two charges of sexual violation by rape,and two charges of sexual violation by unlawful sexual connection.[6] Mr Mist's end sentence, imposed on 16 August 2007 following four years ofappeals across the senior courts, was 20 years' imprisonment with a minimum periodof imprisonment of 10 years.2[7] Mr Mist was later convicted (in 2009) of a single charge of assault while inprison. Importantly for present purposes, he did not complete any treatmentprogrammes offered in the two decades he spent in prison. A year before his releasehe indicated a desire to participate in the Te Piriti Special Treatment Unit rehabilitationprogramme. However, he was not enrolled following advice from the Department ofCorrections (Corrections) that there was insufficient time to complete the course.[8] On 4 March 2022, in anticipation of Mr Mist's release, Corrections applied foran ESO and the imposition of an IMC.3 For the ESO, Corrections sought themaximum 10-year term and for the IMC a term of 12 months. The applications weresupported by a psychological report dated 22 September 2021 authored by registeredpsychologist, Ruth Pracy. Mr Mist consented to both applications.2 R v Mist [2007] NZCA 352. The Supreme Court had earlier overturned a sentence of preventivedetention on the basis that such a sentence could not be imposed to someone of Mr Mist's age:Mist v R [2005] NZSC 77, [2006] 3 NZLR 145.3 Parole Act 2002, ss 107F and 107IAC.[9] When the applications were called on 26 August 2022, the Judge determinedthat they should be granted. On 30 August 2022 he delivered his reasons.4Statutory framework[10] The power to make an ESO is contained in s 107I of the Parole Act 2002(the Act). That section provides:107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protect membersof the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexualor violent offences.(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F, thecourt is satisfied, having considered the matters addressed in thehealth assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serioussexual or violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in futurecommit a relevant sexual offence:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.(3) To avoid doubt, a sentencing court may make an extended supervisionorder in relation to an offender who was, at the time the applicationfor the order was made, an eligible offender, even if, by the time theorder 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 thepurposes 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.4 Decision under appeal, above n 1.[11] In assessing the risk under s 107I(2)(b), the court is required to be satisfied thatfour additional features are present. In relation to sexual offending these are listed ins 107IAA(1):107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a relevantsexual 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 forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.Decision under appeal[12] The Judge began by noting that Mr Mist's counsel, Ms Goodlet, had filed anumber of memoranda explaining the steps taken by Mr Mist in relation toCorrections' applications. These included the engagement of an independentpsychologist to provide advice and discussions with Ms Goodlet on the effect of boththe ESO and IMC.5 The Judge stated that Mr Mist "decided to consent to theapplications after this advice".6[13] The Judge went on to state that, in Mr Mist's case, the jurisdiction to make anESO arose under s 107I(2) because there had been a pervasive pattern of serious sexualoffending and a high risk that he would in future commit a relevant sexual offence.75 Decision under appeal, above n 1, at [2].6 At [2].7 At [6].[14] The Judge noted that, where the orders are not opposed, the court is stillrequired to satisfy itself of the pre-requisites under the Act and set out the basis onwhich it is so.8 The fact of consent, however, which the Judge regarded in the presentcase was fully informed, brought a different perspective to the question of whether theESO is demonstrably justified and was a relevant consideration when assessingwhether the order should be made on the terms sought.9 The Judge also considered itwas significant that Mr Mist could apply to discharge the ESO under s 107M if hecame to view the limitation of his rights as no longer justified.10[15] The Judge accepted, on the basis of the comprehensive psychological reportprepared for Corrections by Ms Pracy, that Mr Mist was at high risk of committingfurther serious sexual offences upon release in the absence of an ESO.11 He alsoconcluded that it was highly likely Mr Mist would offend violently, noting he had nopersonal or community support, nor a possible release address.12[16] The Judge went on to state:[15] For the reasons identified in Ms Pracy's report I also accept that eachof the necessary matters identified in s 107IAA are present.[17] The Judge was thus satisfied that an ESO ought to be put in place on standardconditions for a period of 10 years from 4 January 2023, together with an IMC for thefirst 12 months.13Approach on appeal[18] An appeal against the imposition of an ESO is treated, insofar as applicablewith the necessary modifications, as an appeal against sentence.14 This Court mustonly allow the appeal if satisfied that for any reason there was an error in the sentenceimposed, and that a different sentence ought to be imposed.158 At [8].9 At [10].10 At [11].11 At [12].12 At [14].13 At [16].14 Parole Act, s 107R(2).15 Criminal Procedure Act 2011, s 250(2).Grounds of appeal[19] For Mr Mist, Mr Bailey's focus was relatively confined. He concentrated ontwo aspects of Cooke J's decision: first that the Judge's reasons as set out at [15] ofthe judgment under appeal were insufficient to explain why he was satisfied that eachof the four s 107IAA factors had been met; and, secondly, that the Judge's findingMr Mist had "limited self-regulatory capacity" was not founded or available on theevidence.Leave to file post-hearing memorandum[20] The hearing before this Court took place on 27 July 2023. The following day,Mr Bailey filed an application for leave to file a post-hearing memorandum. Leave isopposed by the respondent.[21] The post-hearing memorandum deals with two separate but interrelated issues.The first concerns the competence of previous counsel. The second concerns whatMr Bailey describes as erroneous information in the decision under appeal.[22] Addressing waiver first, Mr Mist's position, as described in a supportingaffidavit, is that it was not until he contacted Mr Bailey to seek a variation of theconditions of his ESO that he was advised that the materials filed by the respondentdid not establish the prerequisites for making an ESO. Mr Mist asserts that he had notpreviously received such legal advice. Despite this he has attempted to advance hisappeal without relying on allegations against his previous counsel; focusing insteadon the adequacy of the Judge's reasoning and the availability of an ESO on theevidence.[23] Mr Baker, for the respondent, maintains that the appeal necessitates a waiverof privilege from Mr Mist, in part out of fairness to his former counsel Ms Goodlet.He says that there is no way for this Court to allow the appeal without it reflecting onMs Goodlet, even impugning her reputation, in circumstances where she has not hadan opportunity to respond.[24] As to the issue of erroneous information, twice in the decision under appeal,the Judge refers to Mr Mist instructing and taking advice from an independentpsychologist before consenting to the ESO and IMC.16 Mr Bailey submits, to thecontrary, that Mr Mist never met with an independent psychologist for the purposes ofthe High Court proceeding. He attaches an email sent by Ms Goodlet to Ms Brindley,an independent psychologist, in which she writes:I note you were to meet with Mr Mist on or about 8 August. Mr Mist assures me that he has fully considered the position and he now nolonger wishes to oppose the intensive monitoring condition.I gave him the opportunity of continuing to meet with you on 8 August and,as a part of your report, I advised that you would be in a position to really fullycanvass with Mr Mist his views on this condition. However, he was adamantthat he wishes to no longer oppose the condition and with respect doesn't needto meet with you.[25] Mr Bailey submits that the respondent continues to rely on the erroneousinformation that Mr Mist had met with an independent psychologist by pressing theimportance of the Judge's earlier discussion (summarised above at [12]–[15]) for thepurposes of interpreting the Judge's conclusion on the s 107IAA matters (at [16]above). He says that this Court during the hearing made comments which were at leastarguably supportive of this approach. Moreover, while Mr Bailey's submission wasthat if the appeal was allowed the correct approach would be to remit the matter backto the High Court for reconsideration, he expressed some alarm at this Court'ssuggestion at the hearing that it might make its own assessment of Mr Mist'sself-regulatory capacity. Mr Bailey's concern is that if the Court followed that courseit might do so based on inaccurate information prejudicial to the appellant.[26] Mr Bailey suggests that both of his concerns could be remedied by Mr Mistgiving a limited waiver of legal privilege in respect of his communications withMs Goodlet,17 but only to the extent necessary to enable her to:(a) respond to paragraph eight of Mr Mist's affidavit (that is, his claim thathe had not previously received legal advice that the evidence did notestablish the grounds for making an ESO); and16 Decision under appeal, above n 1, at [2] and [7].17 Evidence Act 2006, s 65.(b) confirm whether Mr Mist met with, or received advice from, anindependent psychologist.[27] We are satisfied the broader interests of justice favour the granting of leave tofile the post-hearing memorandum but that no waiver of privilege is necessary for theCourt to properly determine the appeal.[28] As Mr Baker submits, and Mr Bailey accepted during the course of argument,the appellant was on notice prior to the filing of written submissions that therespondent considered a waiver appropriate in the circumstances. The respondent'swritten submissions were consistent with that stance. Mr Baker's position at thehearing could not have come as any surprise. Despite this, the appellant resolved toadvance the appeal without reliance on competency of counsel grounds andmaintained that a legal waiver was not necessary. Against that background therespondent's position is that it is now too late for the appellant to change tack.[29] We agree. The appeal was advanced and argued on the adequacy of the Judge'sreasoning and the availability of an ESO on the material before the Court. Details ofadvice given by Mr Mist's previous counsel have limited relevance to and bearing onthe issues engaged in this appeal. Inquiries of the kind proposed risk complicating andfurther delaying the determination of this appeal.[30] As to the alleged factual error, we do not consider this takes the appeal anyfurther. We are guided in this respect by the six memoranda filed by Ms Goodlet onbehalf of Mr Mist, which the Judge referred to in his decision.18 These set out a cleartimeline regarding Mr Mist's instructions to consent to the orders being made and theengagement of an independent psychologist. The memorandum of 26 May 2022records that although arrangements were being made for Mr Mist to meet with thepsychologist for the purpose of completing the report, that had not yet taken place.Subsequent memoranda make no mention of any such meeting. The email fromMs Goodlet provides some explanation as to why that may not have happened;Mr Mist saw no reason for such a meeting given his intention to consent to the orders.18 Decision under appeal, above n 1, at [2].[31] A more detailed summary of the timeline revealed in the memoranda supportsthe conclusion that from an early point Mr Mist intended to consent to the ESO:(a) On 30 March 2022, after reviewing disclosure and discussing thepurposes, principles and function of an ESO with counsel, Mr Mistinstructions were that he did not oppose the order; in fact he believed itwould assist him with support, rehabilitation and reintegration in thecommunity.(b) On 6 April 2022, Mr Mist confirmed that he still consented to the ESO.However, he opposed the respondent's application for an IMC andinstructed counsel to obtain an independent psychological report toadvise on the appropriateness or otherwise of this condition.(c) As noted earlier, on 26 May 2022, Ms Goodlet confirmed that anindependent psychological assessment report was being undertaken.Mr Mist confirmed that he still consented to the ESO.(d) On 27 June 2022, counsel advised the Court that she had taken updatedinstructions from Mr Mist on 23 June that he would consent to theimposition of an IMC in addition to the ESO. He had discussed thepracticalities and logistics of the condition "at length" with his casemanager, and now believed that it would be of benefit to him.(e) On 25 August 2022, counsel confirmed that this was still the position.(f) On 26 August 2022, in oral submissions before the Judge with Mr Mistpresent by way of audio-visual link, Ms Goodlet stated:He was interested more in the intensive monitoring conditionand we've spent some time you'll see from the process of thiscase looking at that. We did retain an independentpsychologist and Mr Mist has had a lot of discussions with hisvery experienced case manager just outlining what thecondition will mean for him[32] Although there is no express mention of Mr Mist ever taking advice directlyfrom the psychologist, on the materials before him this was an understandable, albeitnow apparently incorrect, assumption on the part of the Judge. The question iswhether this additional evidence makes a material difference. For several reasons weare not satisfied it does.[33] First, the Judge did not explicitly state that Mr Mist had met with thepsychologist. He stated that Mr Mist "agrees, after taking advice from an independentpsychologist and counsel, that such orders will help in providing him with theassistance he will need to avoid re-offending".19 That statement needs to be read inthe context of counsel's memoranda, the effect of which was that Mr Mist's consentwas informed, a finding which the Judge explicitly made.20[34] Secondly, this appeal is concerned with the imposition of the ESO, not theIMC. Mr Mist's initial concern, and the reason he instructed counsel to obtain anindependent psychological report, was because he opposed the IMC. There is noevidence that he ever opposed the ESO, until now. To the contrary, it was confirmedin each subsequent memorandum that he consented to the ESO.[35] Thirdly, while it may be best practice and desirable, there is no requirement foran offender to obtain advice from an independent psychologist before consenting toan ESO or IMC. That despite efforts to do so Mr Mist did not ultimately meet with apsychologist does not somehow vitiate his consent to the ESO or IMC. We querywhether it would have made a material difference to the Judge's analysis had Mr Mistdone so. He had several discussions with counsel and with his "very experienced casemanager",21 following which he came to the view that both orders were not onlyappropriate but beneficial.[36] Fourthly, we do not consider that making the ESO hinged on Mr Mist'sconsent. The Judge was plainly aware that consent, while a relevant circumstancewhen assessing whether the ESO order should be made, was not the end of the19 At [7].20 At [10].21 These were the words used by Ms Goodlet in oral submission before the Judge.inquiry.22 He noted that it remains necessary for the court to satisfy itself that thestatutory prerequisites for the making of an ESO are met. The Judge determined theywere met on the basis of the comprehensive health assessor's report. Whether theJudge's reasoning in that respect was sufficient is a separate question to which we shallshortly return.[37] Finally, if this Court considers the Judge's reasons were inadequate, there is norequirement to remit the matter back to the High Court for reconsideration. An appealagainst the imposition of an ESO is treated as an appeal against sentence; the appealcourt also has the option to consider the matter afresh.23 In this event, the validity orotherwise of Mr Mist's initial consent to the ESO, or the extent to which it could becharacterised as informed, becomes irrelevant. However, Mr Mist's consent to theIMC could in theory remain relevant, for example demonstrating that he appreciatedhis own shortcomings in relation to the risk analysis. At any rate, we do not proposeto rely on Mr Mist's consent to the IMC in the event this Court undertakes the ESOassessment afresh.[38] Although we grant leave to file the post-hearing memorandum we do notconsider there is any value in making further inquiries of Ms Goodlet or receivingfurther evidence on the point.[39] We now turn to the substantive issues raised on this appeal.Did the Judge give sufficient reasons?[40] This Court has long observed that the making of an ESO is a judicial decisionand not that of the health assessor.24 Furthermore, the Court has warned againstautomatic deference to health assessor reports. On this topic in Barr v Chief Executiveof the Department of Corrections the Court said:25[32] We wish to make it clear, however, that first instance Judges need notaccept it as necessary, or right, to rubber stamp opinions of health assessorsadvanced by the Department of Corrections in ESO applications. What is22 Decision under appeal, above n 1, at [8]–[10].23 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [2]; and Criminal Procedure Act 2011, s 251.24 Grieve v Chief Executive of the Department of Corrections (2005) 22 CRNZ 20 (CA) at [15].25 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006.required is a careful assessment of all the historical and current factors, alongwith expert opinions of others, bearing in mind that an ESO can havesubstantial ongoing impact on an offender who has already completed thesentence imposed by the Court for the offending. The risk of re-offending hasto be such that cannot properly be ignored when viewed against the gravity oflikely re-offending. Naturally, every case requires individual judgement andassessment. Jurisdiction to make the ESO arises only if there is a real andongoing risk of committing relevant sexual offences.[41] More particularly, in R v Peta, the Court said:26[8] The Judge's decision to impose an ESO must be made on the basis ofthe test set out in s 107I(2) in light of the factors set out in s 107F(2)(a) – (d)and any other relevant factors. The effect of that statutory test is that thejurisdiction for making an ESO depends on the risk of relevant offendingbeing both real, ongoing and one that cannot sensibly be ignored having regardto the nature and gravity of the likely reoffending (see Belcher v ChiefExecutive of the Department of Corrections [2007] 1 NZLR 507 at para [11]).[42] Whether or not the evidence of the health assessor is accepted, it is crucial thatthe Judge making the order undertakes an individualised assessment and provides fullreasons for any conclusion reached. In Peta it was put this way:[56] An ESO has the potential to place major restrictions on the freedomof movement and freedom of association of an offender. This makes it evenmore important than in the ordinary course of cases for a Judge, whenimposing an ESO, to explain clearly to the offender why such an order is beingmade. This entails more than a mere reference to the health assessor's report.More importantly, however, a health assessor's report should not merely berubber-stamped. The fact that the reasons given by the Judge were so sparsegives rise to concern that this is what happened in this case.[57] A Judge is, of course, perfectly entitled to accept the evidence of ahealth assessor, particularly in a case where no contrary evidence has beenpresented. It must, however, be explained why the evidence was accepted andwhy that leads, on an individualised assessment, to the conclusion that thestatutory test for the imposition of an ESO is met. In a case where there is ahistory of serious sexual offending, where no countervailing factors areidentified and where the ASRS and SONAR assessments and anyindividualised risk factors suggest a high risk of reoffending against children,the Judge's reasons can be relatively brief. However, in a case like Mr Peta'swhich has some unusual features, the analysis should, in our view, have beenmuch more extensive. 26 R v Peta, above n 23.[43] In Chief Executive, Department of Corrections v Alinizi, this Court set out athree-step process for determining whether an ESO should be made:27(i) the Court must determine whether the offender has, or has had, apervasive pattern of serious sexual or violent offending;(ii) the Court must make specific findings as to whether the offendermeets the qualifying criteria set out in s 107IAA; and(iii) if those criteria are met the Court must make a determination aboutthe risk of the offender committing a relevant sexual or violentoffence.[44] As previously noted, Mr Bailey's main concern on appeal surrounds step two.The Judge's reasons for being satisfied of the four s 107IAA mandatory requirementswere recorded in a brief, single paragraph. However, that paragraph should not beread in isolation and out of context. It was preceded by a discussion of Ms Pracy'sassessment and a determination that Mr Mist was at high risk of committing furtherserious sexual offending on release, if he was not subject to the significant controls ofan ESO and the intensive monitoring afforded by an IMC. The Judge quoted fromMs Pracy's report where she observed that based on static and dynamic risk factors,Mr Mist shares the characteristics of a group of men at high risk of sexual and violentoffending. In the absence of personal support, community support and a possiblerelease address, the Judge concluded that it was highly likely Mr Mist would sexuallyand violently offend again. The Judge also referred to Ms Goodlet's efforts in workingwith Corrections on the practicalities of any IMC and Mr Mist's apparent acceptancethat he would benefit from it.[45] Given the evidence that Ms Goodlet had invested considerable time and energyinto liaising with Corrections and explaining the consequences of the orders toMr Mist — who agreed they would be in his best interests and consented to them beingmade — it is understandable the Judge adopted the approach he did. Moreover, theanalysis when orders are consented to may not need to be quite so comprehensive asit would if contested, though it must still address each statutory criterion. The questionfor us is whether viewed in that context, the Judge's reasoning was sufficient.27 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].[46] We accept that the Judge did turn his mind to the specific s 107IAA matters.Earlier in his judgment, he had noted that the court was required to be satisfied ofthem.28 At [15] the Judge said that he accepted, on the basis of the reasons inMs Pracy's report that "each of the necessary matters" in s 107IAA were present.However, we consider that more was required even though the Judge understoodMr Mist to have given his informed consent to the ESO. While it was open to theJudge to accept Ms Pracy's evidence on these points, he was required by virtue of thecomments in Peta to explain why that evidence was accepted and why that led, on anindividualised assessment, to the conclusion that the statutory test for the impositionof an ESO was met.29 This is also important having regard to this Court's decision inChisnall v Attorney-General and the implications for such an order in terms of s 26(2)of the New Zealand Bill of Rights Act 1990, notwithstanding Mr Mist's consent.30 Weconsider, for example, that it was crucial for the Judge to address why he was satisfiedthat Mr Mist displayed limited self-regulatory capacity because parts of Ms Pracy'sreport on this point were arguably inconclusive. However, an explanation of whyMs Pracy's evidence was accepted on all four of the s 107IAA matters was required.31[47] We are satisfied that the Judge's failure to address and make specific findingson each of the s 107IAA factors in turn amounts to an error. To allow the appeal, wemust also be satisfied that a different sentence, in this case either an ESO of a differentterm or no ESO at all, should be imposed. For that reason we are required to undertakethe three-step process set out above afresh, albeit with a greater focus on the narrowgrounds of appeal advanced by Mr Mist.32[48] We also wish to record at the outset that we do not propose to assess Mr Mist'seligibility for an ESO on the basis of his risk of violent offending, but only as to hisrisk of relevant sexual offending. The position under the Act is "either or both".33Although there is some overlap, risk of violent offending is assessed against a different28 Decision under appeal, above n 1, at [8].29 R v Peta, above n 23, at [57].30 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484.31 Chief Executive, Department of Corrections v Alinizi, above n 27, at [13(ii)].32 Namely, whether each of the four s 107IAA factors is satisfied, and in particular whether Mr Misthas limited self-regulatory capacity.33 Parole Act, s 107I(2).criteria to that for sexual offending.34 The court must also be satisfied that there is a"very high risk" that the offender will in future commit a relevant violent offence, ascompared to a "high risk" of sexual offending.35 Although the health assessor's reportcovers both, the focus in the High Court and on appeal has been Mr Mist's risk ofsexual offending. In any event, it is unnecessary for this Court to make specificfindings on Mr Mist's risk of violent offending given our findings on his risk of sexualoffending. It is to that analysis we now turn.Does Mr Mist have a pervasive pattern of serious sexual offending?[49] This is the first broad criterion that we must be satisfied of under s 107I(2)(a).It requires a historical assessment of conduct past.36[50] Mr Mist sexually offended against five victims in little over three years. Thelatter stages of the offending occurred while Mr Mist was serving a non-custodialsentence for aspects of the earlier. It was offending of the most serious kind, includingsexual violation by rape and sexual conduct with a young person. Some of the chargeswere representative. The victims were each younger than he, one as young asseven years' old. At the time he was in his late teens. He took steps to isolate thevictims, including by inviting them into his home and locking them in a room. Onoccasions he supplied them with alcohol and drugs before threatening that they had to"pay their way". On other occasions threats of violence were used to securecompliance, including holding a knife to one victim's throat. He also forced some ofhis victims to watch him engage in sexual activity with his partner.[51] We have little trouble in concluding that the nature, extent and duration of theabove amounts to a pervasive pattern of serious sexual offending for the purposes ofs 107I(2)(a). Indeed, we did not understand Mr Bailey to dispute this.34 Section 107IAA.35 Section 107I(2)(b).36 Chief Executive of the Department of Corrections v Bradbury [2016] NZHC 2816 at [31(a)].Is there is a high risk that Mr Mist will commit a relevant sexual offence?[52] This is the second broad criterion that we must be satisfied of unders 107I(2)(b). It is a predictive exercise.37 The assessment of risk is undertaken byreference to the four prerequisites in s 107IAA(1), each of which must be satisfiedbefore an order for an ESO can be made. We address each of these in turn.Does Mr Mist display an intense drive, desire, or urge to commit a relevant sexualoffence?[53] There can be no dispute that Mr Mist showed an intense drive to commit arelevant sexual offence, primarily involving underage victims, at the time of theoffending. It progressed from offending in the home environment against victims whowere known to him or his partner, to offending against a stranger in public. The riskof detection did not appear to deter him from reoffending, nor his conviction andsentence for sexual offending.[54] Although more than two decades have since passed, we accept Ms Pracy'sevidence that Mr Mist's intense drive to commit a relevant sexual offence persists. Ofnote is that Mr Mist himself continues to report a high sexual drive in prison, albeitnot as high as at the time of his offending. Ms Pracy attributes this to the fact Mr Misthas limited access to sexual stimuli and to suitably aged victims susceptible tocoercion.[55] It is also relevant that Mr Mist continues to deny and minimise aspects of hisoffending, despite taking responsibility for other aspects. In general, he is said todownplay the level of violence and somewhat shift responsibility. As this Court heldin Alinizi:38[36] In our view the general approach adopted in CJW, Wrigley and ChiefExecutive of the Department of Corrections v Rimene is sound and weconsider that a Court is likely to be satisfied that the statutory prerequisite in[s 107IAA(1)(a)] is present where there is nothing to suggest that such a traitformerly present no longer subsists. A court will very likely come to such aconclusion where, as here, an offender categorically denies the sexualoffending for which he was convicted and as a consequence has beenunwilling to undertake treatment to discuss sexual offending.37 At [31(b)].38 Chief Executive, Department of Corrections v Alinizi, above n 27.[56] While Mr Mist's failure to fully accept responsibility for his offending doesnot rise to the level of categorical denial, the fact that he has not undertaken anytreatment to address his risk of sexual offending is concerning.[57] In these circumstances, we are satisfied that Mr Mist displays an intense drive,desire, or urge to commit a relevant sexual offence.Does Mr Mist have a predilection or proclivity for serious sexual offending?[58] The terms "predilection" and "proclivity" are used disjunctively in the Act.39They are also undefined. As such, the courts have previously adopted the dictionarydefinitions and placed them in context: "predilection" being a preference or particularliking for serious sexual offending; "proclivity" referring to an inclination towardsomething considered morally wrong, such as sexual offending.40[59] Ms Pracy found that Mr Mist's repeated sexual offending supports the presenceof an inclination to sexually offend against young female victims between seven and15, as evidenced by his relationship and sexual contact with young girls while in anintimate relationship. We adopt that finding here and add the following.[60] Mr Mist selected victims who were either situationally or inherently vulnerableon account of their age or surroundings. His offending is hypothesised by Ms Pracyto provide him with a level of power and sexual gratification in a world where he hasoften felt vulnerable and disconnected from others. There is nothing on theinformation before us to suggest that these desires or feelings have declined.[61] Given his present situation, as Ms Pracy notes, it is yet to be determinedwhether Mr Mist's preference in sexual partners has changed as he has matured.Re-entering the community as a 42-year-old adult, however, the power imbalance in39 Parole Act, s 107IAA(1)(b).40 Chief Executive of the Department of Corrections v Bradbury, above n 36, at [66], citingChief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44]. See alsoHolland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [41] in whichthis Court described proclivity as "in ordinary parlance encompass[ing] the concept of apattern".situations like those for which he was convicted would be heightened as would thelevel of potential gratification such offending could provide.[62] We are thus easily satisfied that Mr Mist has a predilection or proclivity forserious sexual offending.Does Mr Mist have limited self-regulatory capacity?[63] Mr Bailey submitted that Ms Pracy's report did not provide a basis for theJudge to be satisfied that Mr Mist had limited self-regulatory capacity at the time thejudgment was issued. This was the primary focus of Mr Bailey's submissions.[64] The section of the report discussing self-regulatory capacity in relation tosexual offending is reproduced in full below:Mr Mist's sexual and violent offending shows clear evidence of a limitedself-regulatory capacity in the past. Specifically, his sexual offending isconsidered to show limited sexual self-regulation. The evidence regardingimpulsivity is mixed. His sexual offending sometimes appears somewhatplanned, and/or a result of premeditated opportunism (with planning orstructuring of his life supporting repeated exposure to situations in whichopportunistic offending can occur). Mr Mist reported substance use in thecommunity and that this had tended to make him angry. On occasion, hissexual offending occurred in the presence of/with the involvement of histhen-partner.Mr Mist's behaviour in prison shows improved self-regulation with regards toemotions, impulses, and aggression. It is unclear whether this is due to theabsence of potential triggers/stimuli, the impact of a structured environment,or behavioural change on the part of Mr Mist. He is able to describe somebasic strategies for emotional/anger management.Overall, Mr Mist's self-regulatory capacity appears improved within astructured environment with limited victim access. In the communitysignificant self-regulatory difficulties were evident. His self-regulation withinthe community has not been tested for a significant period.[65] Mr Bailey submitted that aspects of the above, if anything, operated against afinding of limited of self-regulatory capacity. More than once Ms Pracy referred toevident improvements in self-regulatory capacity, albeit observed in the structuredenvironment of prison. In the absence of an express finding that 20 years after theindex offending Mr Mist's presentation was unchanged, the Judge's finding on thiscriterion called for speculation.[66] With respect, we do not accept these submissions.[67] Mr Mist evidently had deficits in self-regulatory capacity when he committedthe offending. He reports significant childhood abuse and neglect, which Ms Pracyopines very likely impacted his self-regulation, social skills and empathy. He is nowin a structured environment in which self-regulatory capacity is difficult to properlyassess because the opportunities for him to exhibit a lack thereof are limited.Therefore, while Mr Mist's behaviour in prison is reported to show improvedself-regulation, the question of these deficits remaining dormant but remerging uponhis release represents, in our view, a significant risk.[68] We are reinforced in this view by the fact that Mr Mist has declined to engagein intensive intervention designed to address his risk of sexual recidivism, or anytreatment at all for that matter, in the two decades he has been incarcerated. Thisincreases the likelihood that his improved self-regulation reflects his environs and thelack of exposure to potential victims rather than true behavioural change.[69] This Court has on multiple occasions held that the variable use of the word"displays" in the Act does not import a requirement that the particular traits andbehavioural characteristics be externally manifested at the time of application; onlythat they are currently possessed.41 As it went on to state in Alinizi:42[28] Were it otherwise the task of proving those requirements could berendered quite impossible in circumstances where as s 107F(3) anticipates thesource of evidence may rely on self-reporting. [70] Ms Pracy grapples with this difficulty in her report, noting:The ongoing presence of a number of risk factors is difficult to assess. [R]isk factors relating to sexual deviancy/pre-occupation are heavily relianton self-report, particularly as regards perpetrators with child victims whenthey are in prison.41 Chief Executive, Department of Corrections v Alinizi, above n 27, at [27]; Chief Executive of theDepartment of Corrections v CJW [2016] NZHC 1082 at [33]–[34]; Chief Executive of theDepartment of Corrections v Rimene [2015] NZHC 2721; and Chief Executive of the Departmentof Corrections v Wrigley, above n 40.42 Chief Executive, Department of Corrections v Alinizi, above n 27.[71] Nonetheless, she finds "ongoing evidence of the presence of a number of riskfactors, particularly interpersonal deficits, within the custodial environment". She alsonotes that Mr Mist has limited insight into a number of these risk factors, which mayimpact his ability to manage them. As in Chief Executive of the Department ofCorrections v Wrigley, the absence of family or friends who can assist Mr Mist in thatregard must be given some weight in this assessment.43 He has no personal supportother than two friends acquired in prison. His release plan is assessed as insufficientto assist him in managing his risk of reoffending.[72] In the absence of a high level of external monitoring and rehabilitative support,we are not satisfied that Mr Mist's progress with regard to self-regulatory capacitywould be sustained upon his release. On the contrary, we consider that Ms Pracy'sreport, read in the context of relevant case law, provides a sufficient basis on which toconclude that Mr Mist has limited self-regulatory capacity. It follows we are satisfiedthat this criterion is satisfied.Does Mr Mist display a lack of remorse and/or an absence of understanding orconcern about the impact of his offending?[73] These are described as "protective characteristics".44 The underlyingassumption is that an offender who is able to understand the harmful effects of theiroffending is less likely to cause such effects to others in future.45[74] Ms Pracy's findings on this criterion in relation to Mr Mist's sexual offendingare reproduced in full below:Mr Mist has taken responsibility for some of his sexual offending; and hasdenied or minimised other aspects. In the past he has also justified suchoffending. Past assessors have commented on incongruence betweenexpressed shame, taking responsibility, and his affect within the interviews. Ininterviews for this assessment Mr Mist reported being assaulted for showingemotion as a child and thus learning to suppress these, and he showed subtleemotions in session. This may explain the previous observations and wouldalso appear consistent with the assessment of personality.Overall, Mr Mist is considered to have shown limited remorse and mixedresponsibility for past offending. In general, he appears to tend to downplay43 Chief Executive of the Department of Corrections v Wrigley, above n 40, at [48].44 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [22].45 P(CA388/2018) v Chief Executive of the Department of Corrections [2018] NZCA 599 at [53].the level of violence, shift responsibility somewhat, and continues to denysome of his sexual offending, while taking responsibility for other aspects.[75] These findings suggest that Mr Mist displays at least a limited degree ofremorse and some understanding of the impact of his offending, as opposed to acomplete "lack" or "absence". Under relevant case law, however, this does notpreclude a finding that s 107IAA(1)(d) is satisfied.46 As noted in McIntosh v ChiefExecutive of the Department of Corrections:47 [T]he absence (or lack) of these characteristics are indicia of high riskoffenders only because these protective characteristics mitigate this risk. Thefocus must therefore be on whether the acceptance of responsibility, remorse,understanding or concern are material in the given case in the sense that theyare present to a sufficient degree to mitigate the relevant risk. Parliamentcannot have intended that any degree of presence of these protectivecharacteristics (no matter how limited and whether or not in any way operativeto mitigate the risk), would preclude a person from being assessed as being athigh risk. Such an interpretation would plainly be inconsistent with thestatutory purpose of public protection.[76] We do not consider that Mr Mist's remorse and understanding is present tosuch a degree to materially mitigate the risk of him committing a relevant sexualoffence in future. The position may have been different if Mr Mist had undertakentreatment designed to mitigate his risk of sexual recidivism. As it stands, we are notsatisfied that his remorse and understanding are yet at a level where they would act asprotective factors against potential future victims.48 This criterion is thereforesatisfied.Conclusion[77] For the reasons already given, we are satisfied that each of the four mandatoryrequirements in s 107IAA are met. When taken together, these lead us to the clearconclusion that Mr Mist presents a high risk of committing a relevant sexual offencein future.49 This, coupled with our finding that Mr Mist has a pervasive pattern of46 McIntosh v Chief Executive of the Department of Corrections, above n 44, at [23]; andChief Executive of The Department For Corrections v Douglas [2016] NZHC 3184 at [82]–[84].47 McIntosh v Chief Executive of the Department of Corrections, above n 44, at [23].48 At [28].49 Parole Act, s 107I(2)(b).serious sexual offending, means that the statutory criteria for making an ESO havebeen established.50[78] This Court has previously said that where an offender meets this highthreshold, it will often be appropriate to confirm the ESO given the overarchingstatutory purpose of public protection.51 We are satisfied that such an order wasappropriate in all the circumstances of this case. It logically follows that the Judge didnot err in making the ESO.[79] That leaves the question of term. While 10 years is the maximum termavailable for an ESO,52 we consider it to be the minimum term required in this casefor the safety of the community in light of the level of risk posed by Mr Mist, theseriousness of harm that might result and the likely duration of the risk.53[80] As the Judge noted,54 it remains open to Mr Mist at any time to apply to varyor discharge the ESO.55 This observation was echoed by Ms Pracy in her report whenshe noted that it will be possible to provide further guidance regarding risk onceMr Mist has spent time in the community. As at the time of imposition,56 however, weare satisfied that he poses the requisite risk and an ESO is appropriate.Result[81] The application for leave to appeal out of time is granted.[82] The application for leave to file a post-hearing memorandum is granted.[83] The appeal is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondents50 Section 107I(2)(a).51 McIntosh v Chief Executive of the Department of Corrections, above n 44, at [49].52 Parole Act, s 107I(4).53 Section 107I(5). See also R v Peta, above n 23, at [9].54 Decision under appeal, above n 1, at [11].55 Parole Act, ss 107O and 107M.56 R v Peta, above n 23, at [14].