WARDLE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 298

WARDLE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 298 [13 July 2017]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA525/2016[2017] NZCA 298BETWEEN BERNARD KEITH WARDLEAppellantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 8 May 2017Court: Cooper, Mallon and Wylie JJCounsel: N M Dutch for AppellantC A Brook for RespondentJudgment: 13 July 2017 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] Section 107F(1) of the Parole Act 2002 (the Act) authorises the Chief Executive of the Department of Corrections to apply to the sentencing court for an extended supervision order in respect of an eligible offender. Judge Farish made such an order against the appellant, Mr Wardle, specifying that the order should have a term of 10 years, the maximum period provided by s 107I(4) of the Act.1[2] The sentencing court's power to make an extended supervision order requires the court to be satisfied that the offender has or has had "a pervasive pattern of serious sexual or violent offending". The court must also be satisfied, in a caseconcerning a sex offender, that there is a high risk that the offender will in future commit a relevant sexual offence.2[3] Mr Wardle's appeal challenges the District Court's conclusion that his historyshows a pervasive pattern of serious sexual offending. The appeal also challengesthe Judge's finding that there is a high risk that Mr Wardle will in future commit arelevant sexual offence and her decision to impose the order for a 10 year term.The statutory scheme[4] Part 1A of the Act articulates a legislative scheme enabling persons who have been convicted of certain specified offences to be made subject to an extended supervision order for up to 10 years.3 Extended supervision orders may be madeagainst a person who is an "eligible offender". Relevantly, an eligible offender is a person who is not subject to an indeterminate sentence but has been sentenced to imprisonment for a relevant offence.4[5] The expression "relevant offence" is defined in s 107B(1) by reference tosubs (2), (2A), and (3). Those subsections list offences by reference to the sections1 The Chief Executive of the Department of Corrections v Wardle [2016] NZDC 25762.2 Parole Act 2002, s 107I(2)(b)(i). The relevant provisions of the Parole Act deal with offending of both a sexual and violent nature. This case does not involve the latter: the focus is on sexual offending.3 Section 107A(a) and (b).4 Section 107C(1).of the statute that create them. Insofar as relevant sexual offences are concerned, they range from sexual violation5 and attempted sexual violation6 through a variety of other sexual offending including indecent assault.7 There is no issue that Mr Wardle is an eligible offender having regard to his convictions.[6] An application for an extended supervision order must be accompanied by a report by a health assessor as defined in s 4 of the Sentencing Act 2002.8Health assessors' reports must address certain questions. In the case of sexualoffending, the reports must address:9(a) whether –(i) the offender displays each of the traits and behavioural characteristics specified in s 107IAA(1); and(ii) there is a high risk that the offender will in future commit a relevant sexual offence:[7] Section 107G requires that, as soon as practicable after an application for an extended supervision order is made, the Chief Executive must ensure that the offender who is the subject of the application is personally served with a copy of it,and amongst other things, a copy of the health assessor's report.10[8] Section 107I of the Act contains the court's power to make an extendedsupervision order. It begins with a statement of the legislative purpose:(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.[9] Section 107I(2) then provides:(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 thehealth assessor's report as set out in section 107F(2A), that—5 Crimes Act 1961, s 128B(1).6 Section 129(1).7 Section 135.8 Parole Act, s 107F(2).9 Section 107F(2A).10 Section 107G(1)(a) and (b).(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.[10] Also relevant for present purposes are s 107I(4), which provides that every extended supervision order must state the term of the order (not to exceed 10 years) and s 107I(5), which states:(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.[11] It is clear from s 107I(2) that the court is required to consider the mattersaddressed in the health assessor's report before asking whether it is satisfied of thematters set out in paras (a) and (b) of the subsection. As mentioned, the health assessor's report must address, amongst other things, whether the offenderdisplays each of the traits and behavioural characteristics specified (where the risk relates to sexual offending) in s 107IAA(1).11 Section 107IAA is headed "Matters court must be satisfied of when assessing risk". Subsection (1) provides:(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:11 Section 107F(2A).(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.[12] In the present case, Judge Farish was satisfied that Mr Wardle's conductdisplayed a pervasive pattern of serious sexual offending. She was also satisfied about the matters set out in s 107IAA(1). In order to put her conclusions into context, it is necessary to set out the relevant history of Mr Wardle's offending and refer to the two health assessor's reports considered by the Judge.Mr Wardle's offending[13] Mr Wardle was born on 31 December 1956. He was first convicted for sexual offending in June 1994 arising from an incident that occurred in 1993. Mr Wardle indecently assaulted two young females who were friends of one of his sons. Mr Wardle engaged in sexual talk and sexual touching of the complainants before driving them home. He was convicted of indecent assault and sentenced to200 hours' community service and 18 months' imprisonment suspended for twoyears. At the time of this offending, Mr Wardle was 36.[14] In 1997 Mr Wardle was again convicted of sexual offending in 1995 against two female complainants. They were also friends of his son, and the offendingoccurred while they were holidaying with Mr Wardle's family. He had sexualintercourse with one of the complainants, aged 14, and assaulted the other, who washis son's 15 year old girlfriend, with intent to rape her. He was convicted on two charges of sexual intercourse with a female aged between 12 and 16, and also assaultwith intent to commit rape. Concurrent sentences of 18 months' imprisonment were imposed in respect of the former charges, and four years' imprisonment with respect to the assault with intent to rape. Mr Wardle was aged 38 at the time of this offending.[15] In May 2008, Mr Wardle indecently assaulted a 16 year old girl, by touching her genitals under her clothes while they were sitting in a car. Mr Wardle was convicted of indecently assaulting a female between the age of 12 and 16 years, andsentenced to 18 months' imprisonment in December 2009. At the time of thisoffending, Mr Wardle was 51. An extended supervision order was considered but not able to be made because the statute only contemplated such an order in respect of offences of indecent assault against children under the age of 16.12[16] In November 2011, Mr Wardle breached the release conditions of that sentence by failing to report to his probation officer and also by having unauthorised contact with a female under the age of 16.[17] In October 2012, two months after he had been sentenced for the breaches of the release condition applying in respect of the 2008 offending, Mr Wardle indecently assaulted a 20 year old American tourist riding with him in his truck as a hitchhiker. He touched her genitalia under her clothes despite her protests. He wassentenced to two years and six weeks' imprisonment. The sentencing Judgeobserved that he had given consideration as to whether he ought to decline jurisdiction so that the High Court could consider imposing a sentence of preventive detention. Although he did not adopt that course, the Judge told Mr Wardle that he should be under absolutely no illusions that if there were any repetition of such conduct that is the course that would be followed.13 At the time of this offending, Mr Wardle was 55 years of age.[18] Mr Wardle was released on parole on 2 December 2014. The application for an extended supervision order was made in May 2015 while he remained subject to release conditions. An interim order was made and bail conditions imposed. Mr Wardle breached the bail conditions in December 2015 when the substantive application was yet to be heard. He left Christchurch and travelled to Auckland unaccompanied and without permission.14 His purpose was to move to Opotiki and live there with his partner. However, he had not told her of his prior history and thatwas significant because his partner's granddaughter resided with her. Despite12 Section 107B(2)(oa).13 R v Wardle DC Christchurch CRI 2012-009-12444, 31 May 2013 at [11].14 He had previously sought a variation of bail to enable him to travel to Auckland and return driving a truck back to Christchurch. The variation was opposed by the Probation Service and refused by the District Court on 31 August 2015.meeting with his Probation Officer in Christchurch on 18 December he made no mention of his intention to move out of his accommodation and travel north.[19] He did report to the Probation Office in Opotiki on 24 December, telling an officer that he had arranged with his lawyer to move from Christchurch to Opotiki to be with his family. When asked if he had bail conditions he replied that they were"all bullshit". He was arrested in Opotiki for the breach of bail and remanded incustody pending the hearing of the application for extended supervision order.15The health assessor's reports[20] The Judge received two reports from a registered psychologist, Ms Cristina Fon: one dated 8 April 2015 and an "addendum report" dated 25 May 2016.[21] The first report recorded that two appointments had been made to see Mr Wardle in February 2015, but he did not attend. A third appointment was made but not kept, Mr Wardle advising a probation officer that he would not attend on the basis of legal advice.[22] Mr Wardle had been told that the assessment would proceed on the basis ofinformation on the Department of Corrections' file, including psychological reportsas well as an interview of staff involved in his care and supervision. He was also advised that the assessment would include the use of psychometric instruments, including those known as the ASRS and STABLE-2007.16 The material available to Ms Fon included four Parole Board decisions, two parole assessment reports, a"Psychological Service Assessment Report" to Corrections Services, additionalPsychological Service Reports prepared for the Parole Board and the Community Probation and Psychological Services, as well as the notes of sentencing from May 2013, May 2010, December 2009 and 11 July 1997. Summaries of facts in relation to the previous offending were also considered.15 These events were set out in a statement by a Probation Officer, Brian Shaw, who gave evidence at the hearing before Judge Farish.16 The reference to ASRS is to the Automated Sexual Recidivism Scale.[23] Under a heading "Treatment provided", Ms Fon recorded that Mr Wardle had not completed any treatment to directly address his sexual offending, despite orders that he do so. In 1998, while serving the sentence of imprisonment for his 1995 offending, he had initially expressed interest in attending the Kia Marama programme. However, his interest had declined when he became aware the programme was focused on him taking responsibility for his sexual offending rather than being for neurological rehabilitation. When he was on parole in 1999 he had been assessed for suitability to attend the Hamilton Community Sex Offenders Programme, but he was found unsuitable for that programme due to memory impairments.[24] When assessed in 2011, having been released from prison, he was considered"unmotivated for treatment". He was again assessed at Kia Marama in August and September 2013. As a result of those assessments, he was described as "hostile",uncooperative and reluctant to answer questions. Ms Fon wrote:His responses were described as tangential and cryptic, and his apparent lack of clear and logical thought processing was considered likely related to reported cognitive deficits. Mr Wardle was said to deny any culpability in criminal behaviour. He expressed no motivation to engage in treatment, and appeared to want to focus solely on brain injury rehabilitation needs.[25] Elsewhere in the report Ms Fon referred to a long history of "impulsecontrol" problems, which she thought were related to but not solely explained bybrain injuries.17[26] In a section of her report headed "Potential to reoffend", Ms Fon explainedthe actuarial assessments and evaluation of clinical risk factors had been carried out to establish the level of risk that Mr Wardle would commit further relevant sexual offences when in the community. The measures employed assessed both static and dynamic risk factors for sexual recidivism. On the ASRS, Mr Wardle was assessed as being in the medium–high risk category. She noted that in the high risk category,17 It appears from statements made by Judge Neave in sentencing Mr Wardle on 31 May 2013 that he thought Mr Wardle sustained a head injury in 1992. Ms Fon referred to head injuries sustained in 1990 and 1991 due to a work and car-related incident respectively. The Judge said that the injuries made it more difficult for Mr Wardle to deal with some of his issues, whileobserving that he had to take responsibility "at some point" for the fact that he continued to posea risk to the community: R v Wardle, above n 13, at [8].offenders would reoffend at a rate approximately four times that of the average rate. She said that for the medium–high risk category group, the five and 10 year recidivism rate for those who reoffend was 12 per cent and 30 per cent respectively.[27] Mr Wardle had been scored on the basis of routine psychological assessments for the Probation Service in 2011 using the STABLE-2007 psychometric instrument (which assesses stable dynamic factors — factors amenable to change but that tend to persevere for months or years). He was found to be in the high risk group. In 2013 there was a further assessment based on STABLE-2007 carried out when Mr Wardle was being assessed for the Kia Marama programme. Again, his overall score fell within the high risk group. Problematic issues identified included hostile attitudes towards women, lack of concern for others, negative emotionality, impulsivity, sexual preoccupation, deviant sexual interest and poor cooperation with supervision. Ms Fon wrote that the assessment completed in 2013 was most likely torepresent Mr Wardle's dynamic risk factors at the time she wrote the first report. Sheacknowledged that while STABLE-2007 could be "scored from file information", amore comprehensive assessment required interview data. Nevertheless, she expressed the opinion that there was no new information that was likely to override or negate the information used in the 2013 assessment.[28] Ms Fon systematically addressed each of the statutory considerations required for health assessments by s 107F(2A)(a). It is not necessary to summarise what she said at this point. It is sufficient to note that she considered Mr Wardle displayed each of the traits and behavioural characteristics specified in s 107IAA(1), and concluded: there is a high risk that Mr Wardle will engage in relevant offending within 10 years of release. Mr Wardle's likely victims are females known tohim, and further offending is most likely to take the form of indecent assault but could also involve attempted rape or sexual violation (digital or penile).[29] She also gave her opinion that it was likely Mr Wardle fell into the small subgroup of older offenders who continue to sexually offend despite their advancing age. She observed:His repeated offending following detection across a 20-year period can be considered strong evidence that Mr Wardle does not have the necessaryskills to prevent further sexual offending and has no inherent understanding or motivation to learn these skills.[30] As the Judge explained, there was a delay in scheduling the hearing of the application for the extended supervision order. As a consequence, Ms Fon preparedwhat she described as an "addendum report" dated 25 May 2016 in anticipation that the application would be heard on 10 June.18 For the purposes of the addendum report, Mr Wardle had cooperated by attending an appointment with Ms Fon so she was able to talk to him about his offending. In her addendum report, Ms Fon reported that he had denied any engagement in sexually inappropriate behaviour withrespect to all of the offending apart from admitting that he had "stuffed up" withregard to one of the complainants of his 1995 offending. Even then, however, he claimed it was a case of indecent assault rather than sexual intercourse. He categorically denied any attempted sexual intercourse with the second complainant.Ms Fon thought that his explanations of the offending "reflected entrenched distortedbeliefs regarding his culpability, and a tendency to blame his victims".[31] On this occasion, Mr Wardle was again assessed as being in the medium‒high risk category on the ASRS. He remained in the high risk group under the STABLE-2007. A further assessment instrument was also used, the Violence Risk Scale: Sexual Offender (VRS-SO). He was assessed as being in the high risk category under that as well. Problematic dynamic items were identified, including cognitive distortion, impulsivity and intimacy deficits. Ms Fon wrote:In summary, the present Addendum Health Assessment concurs with the finding from the April 2015 health assessment that, based on a multi-method approach using ASRS, VRS-SO and STABLE-2007 ratings, and notedclinical factors, Mr Wardle's risk of further relevant re-offending while in the community is considered high.[32] Once again, Ms Fon dealt individually with the relevant risk assessment issues under s 107IAA. She concluded that there was a high risk that Mr Wardle would engage in relevant offending within 10 years of release. As she had concluded in her first report, she expressed the view that his likely complainants would be post-pubescent females known to him, and said the offending would most18 In fact, it did not proceed until 2 September 2016. On 10 June, however, the Judge grantedMr Wardle bail.likely involve indecent assault. It might also involve attempted penetrative sex, although the likelihood of that was less likely than indecent assault.[33] There was no evidence that over the preceding 12 month period he hadgained the necessary skills to prevent further offending. His "self-regulation deficits", and "underdeveloped risk mitigation strategies" meant that externalmonitoring would be the strategy most likely to reduce risk.[34] Ms Fon gave evidence at the hearing and was cross-examined. She adhered to the conclusions expressed in her two reports. No expert evidence was called to challenge her opinions.19The AppealPervasive pattern of sexual offending(a) Submissions[35] The first ground of appeal challenged the Judge's conclusion that Mr Wardlehad a pervasive pattern of serious sexual offending.20 In the course of dealing withthis issue, the Judge noted that there was no definition of "serious sexual offence" inthe Act and rejected a submission made by counsel who acted for Mr Wardle in theDistrict Court that the only measure of a "serious sexual offence" was the penaltythat could be or was in fact imposed.21 She considered that other matters would be relevant in assessing the seriousness of the offending, including what she describedas the "level of invasion and intrusion into the personal privacy of thecomplainant".22 An indecent assault could have significant effects upon a claimant and could be considered serious particularly if there were aggravating features. She19 A probation officer, Brian Shaw, was called to discuss the circumstances of the breach of bail in 2015, and he suggested in cross-examination that Mr Wardle should be given further opportunities to engage in treatment even though he had declined it on previous occasions. But he did not (and could not) challenge Ms Fon's conclusions about the statutory considerations onwhich she was required to report.20 Parole Act, s 107I(2)(a).21 The Chief Executive of the Department of Corrections v Wardle, above n 1, at [15] and [17].22 At [17].also emphasised that the statute required an assessment of all of the offending over a period of time rather than an analysis focusing on the individual offences.23[36] Mr Dutch, who did not appear in the District Court, submitted for Mr Wardlethat the Judge's approach was wrong. He argued that the Court should assessseriousness guided by the principles set out in s 8(b)–(d) of the Sentencing Act, namely, the maximum penalties prescribed for the different offences and a comparative analysis of the seriousness of particular offending against the range of cases that might arise. He was critical of a statement made by the Judge that all ofMr Wardle's offending could be viewed as serious sexual offending, submitting thatthe 1993 events could not be seen as serious because they had resulted in a community-based sentence. Similarly, he argued that the 2008 and 2012 offending were also not in the serious category. While the 1995 offending could be categorisedas "moderately serious", one incident could not properly be regarded as showing apattern and in any event the legislation requires a "pervasive pattern" of sexual offending which is "serious". Overall, there was not a pervasive pattern of serious sexual offending.[37] Mr Dutch relied on this Court's decision in R v Peta, in which it was said that:24 offenders who have demonstrated a pattern of serious offences involving penetrative sexual assaults and the use of abduction or force would be those presenting the highest risk of such serious offences in the future. Conversely, offenders whose offences fall in the less serious range of sexually inappropriate behaviour, if their offending is repeated, would be expected in most cases to demonstrate a level of severity similar to their past offences.[38] Ms Brook, for the respondent, submitted that an indecent assault was capable of constituting serious sexual offending. Whether or not it was would depend on an analysis of the facts. In this case each incident involved the applicant making sexual advances towards young females, on one occasion proceeding to full intercourse. The Judge had been right to say the offending involved Mr Wardle pursuing his own sexual gratification, and to emphasise his maturity and the vulnerability of his much23 At [18].24 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [45].younger complainants. She submitted that viewing the offending overall, the Judge was correct to find it was serious enough to warrant the conclusion there was a pervasive pattern of serious sexual offending.(b) Discussion[39] In Holland v Chief Executive of the Department of Corrections this Court rejected a proposition advanced for the offender in that case that only convictions for relevant offences set out in s 107B(2) of the Act could be considered when determining whether a pervasive pattern of serious sexual offending had been established.25 The Court held that what was required was a fact-specific assessmentof the relevant events, applying the ordinary meaning of the word "serious" in thecontext of the Act. The Court said:[44] We consider that the phrase "serious sexual offending" falls to beinterpreted by reference to its ordinary meaning viewed against the purposeof this part of the Parole Act. In ordinary language "serious" means "important, grave; having (potentially) important, esp. undesired,consequences; giving cause for concern; of significant degree or amount,worthy of consideration".26[45] The imposition of an [Extended Supervision Order] is, of course, asignificant step that restricts an offender's freedom of movement andassociation for up to 10 years after he or she has served the sentence imposed for the subject offence. These consequences are regarded as justified to protect the public from future risk. Self-evidently, only offending at the higher end of the range would justify such a step. Parliament could not be taken to have contemplated that a pattern of offending at the lower end of the spectrum would justify consideration of such a potentially draconian constraint. It is, however, an assessment for the judge on the facts of the particular case.[40] Adopting that approach, we are in no doubt that the 1995 offending comprised serious sexual offending. Apart from the actual conduct constituting the offences, there was a very significant age disparity between Mr Wardle and the complainants. There was also a breach of trust given that these were young people holidaying with Mr Wardle's family.[41] The other offending is, in each case, less serious considered on its own. But indecent assaults are clearly capable of being sufficient for the purposes of25 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [40]–[43].26 The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford 1993) at 2785.s 107I(2)(a): that follows from the inclusion of indecent assault in the list of relevant sexual offences in s 107B(2). In this case we consider that collectively the offendingis sufficient to constitute what the Act describes as a "pervasive pattern of serious sexual offending".27 While we do not reject Mr Dutch's suggestion that it might be relevant to consider issues such as those contained in ss 8(b)–(d) of the Sentencing Act, if regard is to be had to relevant principles of sentencing, then all of the matters set out in ss 8 and 9 are potentially relevant.[42] The Sentencing Act provisions are not, of course, specifically referred to in the Act and any resort to them would be by way of analogy as a possible analyticalapproach to considering the issue of whether offending is "serious sexual offending".But this would necessarily include circumstances that are properly regarded as aggravating both in relation to the actual offending and in relation to the offender. Such circumstances might tend to show conduct that might otherwise be regarded as at the lower end of the spectrum in a more serious light. We consider that is the case here.[43] This approach is in accordance with the statutory purpose. Section 107I(1) isa clear statement of Parliament's intent to protect the community from those whopose a real and ongoing risk of further serious offending. That requires a broad approach to be taken that looks at all the characteristics of the particular offending and the offender in assessing the seriousness of the conduct.[44] Seen on its own, the conduct for which Mr Wardle was convicted in 1993 is not serious compared with the range of potential sexual offending. However, given that it was the first sexual offending of which Mr Wardle was convicted, the penalty imposed was not insignificant. The fact that the serious offending of 1995 followed within a comparatively short time and also involved young complainants may, in retrospect, be seen as part of a pattern. The pattern further developed in 2008 with a further indecent assault on a much younger complainant. Although not as significant as what occurred in 1995, this was still a significant indecent assault. By this stage,its seriousness was aggravated by Mr Wardle's past history.27 Parole Act, s 107I(2)(a).[45] This was then followed by the 2012 offending, which again involved a significant indecent assault. The complainant was not as young as Mr Wardle'sprevious complainants, but there was again a significant age disparity, of about 35 years. By this stage, Mr Wardle's past history was a seriously aggravating factor.In all the circumstances, we consider that Mr Wardle has a pervasive pattern of serious sexual offending that commenced in 1993.[46] We accordingly reject this ground of appeal.High risk that Mr Wardle will in future commit a relevant sexual offence[47] The second ground of the appeal centres on the Judge's conclusion that therewas a high risk that Mr Wardle would commit a relevant sexual offence having regard to the considerations set out in s 107IAA(1). Mr Dutch referred in particular to subs (1)(a)–(c).[48] Mr Dutch submitted that Mr Wardle's offending was insufficient to found aconclusion that he "displays an intense drive, desire, or urge to commit a relevant sexual offence".28 He was critical of the Judge's reference to Mr Wardle having nine sexual convictions, and six complainants. Mr Dutch submitted this was an artificial approach, and the Judge should have proceeded on the basis that there were reallyonly four separate incidents. Given Mr Wardle's age, that did not amount to the "intense drive" or "urge" required by the statute.29[49] We do not accept that submission. First, it is based on part only of what the Judge said in holding that the requirements of s 107IAA(1)(a) were met. She also emphasised the fact that the offending had spanned a period of 20 years, and that the circumstances of the offending showed that Mr Wardle did not weigh theconsequences of his actions and is "driven by his arousal". She also referred to hislack of insight into his behaviour and what is appropriate, noting that he had again offended after his release from prison.28 Section 107IAA(1)(a).29 The Chief Executive of the Department of Corrections v Wardle, above n 1, at [28].[50] Second, we do not accept the claim of artificiality. Referring to the actual offences and the number of complainants is clearly relevant to assessing the seriousness of the offending.[51] It should also be noted that the Judge had the uncontradicted evidence of Ms Fon who stated in her first report that Mr Wardle's offending reflected "acapacity and continued demonstration of an intense drive, desire and urge to commitsexual offences, that he does not resist in the context of opportunity and arousal".Ms Fon repeated those observations in her second report. Although not obliged to accept them, the Judge was required to take them into account under s 107I(2) of the Act. She was entitled to accept them, in the absence of any evidence to the contrary.[52] Mr Dutch also challenged the Judge's conclusion that Mr Wardle had a "predilection or proclivity for serious sexual offending" in terms of s 107IAA(1)(b).Here, he repeated the submission made under the first ground of appeal that the Judge had wrongly concluded that the sexual offending was "serious". We reject thatsuggestion, for the same reasons given above.[53] Next, Mr Dutch was critical of the Judge's conclusion that Mr Wardle has "limited self-regulatory capacity", the consideration relevant under s 107IAA(1)(c).In dealing with that issue the Judge referred to Mr Wardle's breach of bail, which she thought demonstrated underlying difficulties he has in "thinking through the consequences of his actions".30 She also referred to interactions with both prisonofficers and probation officers, which she considered demonstrated "marked emotional and behavioural impulsivity".31[54] Mr Dutch submitted that a single breach of bail was insufficient evidence of limited self-regulatory capacity, and he suggested that the circumstances surrounding the breach of bail were in any event not clear. He submitted that it was more likely a planned and calculated action rather than evidence of limited self-regulatory capacity.30 At [30].31 At [31].[55] We consider Mr Dutch's submission mischaracterises the Judge's findings onthis issue. While she referred to the breach of bail, she did so in terms that treated it as symptomatic of an underlying difficulty Mr Wardle has in thinking through the consequences of his actions. That was a conclusion the Judge was entitled to draw on the basis of the overall evidence of his conduct. Once again, it can be noted thatMr Wardle's self-regulatory capacity was one of the mandatory issues dealt with inMs Fon's reports. As mentioned, she expressed the opinion that Mr Wardle had poor self-regulatory skill "in a general, emotional and sexual sense". She referred to a "long history of impulse control problems related to but not solely explained by his brain injuries". She made additional observations in the second report, stating:He has a longstanding history of poor impulse control that continues to manifest across settings and domains. He demonstrates marked emotional (labile moods, irritability) and behavioural impulsivity (verbal aggression, dyscontrol) and has failed to inhibit his sexual urges by engaging in sexual offending behaviour in an opportunistic and persistent manner.[56] We are satisfied there was sufficient factual foundation for the Judge'sconclusion that Mr Wardle had limited self-regulatory capacity.[57] The Judge also concluded that the requirements of s 107IAA(1)(d) were satisfied in respect of both limbs, that is he lacked remorse for past offending and exhibited a lack of concern or appreciation of the impact of his offending on his complainants.32 We did not understand Mr Dutch to challenge these conclusions.[58] Overall, we consider the Judge had, and articulated, a proper basis for concluding that the requirements of s 107IAA(1) were met; there was a high risk that Mr Wardle would in future commit a relevant sexual offence. This meant that the requirements of s 107I(2)(b)(i) were also satisfied.Length of order[59] The final ground of appeal concerns the fact that the Judge imposed the extended supervision order for a period of 10 years. Mr Dutch submitted that the Judge had not stated valid reasons for imposing the order for that length of time.32 At [32]–[34].Mr Dutch referred in this respect to the following statement the Judge made in this part of the judgment:33I am satisfied that the research indicates that Mr Wardle falls into a group of individuals where his risk level will remain stable over an extended period of time with that risk remaining for a period of up to 10 years.[60] Mr Dutch submits that identifying the risk as applying for a period up to 10 years was an arbitrary calculation based on the fact that the statistical analysis worked on 10 year periods.[61] The Judge had earlier said she was satisfied that Mr Wardle "may well fallinto a subgroup of older offenders who continue to sexually offend despite theiradvancing age".34 She thought this was reflected in the apparent lack of deterrent effect of the sentences of imprisonment imposed on Mr Wardle in the past.[62] These findings were apparently based on observations made by Ms Fon, who said in her first report:Without treatment Mr Wardle's risk is considered likely to remain high overthe long term. His most recent offence was committed after he had reached the age of 60. After this age a significant decline in offending rates is often noted in normative group samples of offenders. Given Mr Wardle has continued to offend after this age, it is likely that he falls into the small subgroup of older offenders who continue to sexually offend despite their advancing age.As can be seen, some of this language has been repeated in the judgment under appeal.[63] The difficulty with the passage is that it proceeds on a misapprehension as toMr Wardle's age at the time of his most recent sexual offending in October 2012. Hewas then aged 55 years (just short of 56), and not 60. Ms Fon acknowledged the error when giving oral evidence. She also explained that statistics show that therecidivism risk decreases with age in general, tending to "drop off after 50" and,after age 60, very few reoffend. She went on, however, to explain:33 At [38].34 At [36]. despite that decline in recidivism risk with age, there is actually a subgroup of people that actually will continue to offend and Mr Wardle actually reoffended after the age of 50 when we do see this decline andthat I think puts him into the category of offenders when the offending risk is likely to endure regardless of their age.[64] On this basis, it seems that Ms Fon's reasoning remains despite the error about Mr Wardle's age in her first report. In cross-examination, Ms Fon adhered to the view that Mr Wardle was one of a subgroup of offenders that reoffend notwithstanding advancing years and prior convictions that have not had the effect of deterring his proclivity.[65] We have some reservations as to whether in this kind of case a 10 year period will be warranted. The consequence would be that it would apply until the offender was almost 70 years of age.35 It would be in accordance with normal statisticalexpectations for the level of risk posed to decline at some stage during the offender'sseventh decade with a commensurate reduction of the duration of the risk posed and the seriousness of harm that might be caused.36[66] However, given Ms Fon's evidence that Mr Wardle was properly to beconsidered as within a category of offenders who pose an enduring risk regardless of age, we are unable to conclude that the Judge was wrong to impose a 10 year term.Result[67] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent35 The District Court judgment was delivered on 23 September 2016. A 10 year period expiring on23 September 2026 would mean that Mr Wardle was just short of his 70th birthday, which wouldbe on 31 December 2026.36 As noted above at [10], these are the relevant considerations under the Parole Act, s 107I(5).