CHIEF EXECUTIVE, NEW ZEALAND DEPARTMENT OF CORRECTIONS v KOMENE [2023] NZHC 1870

CHIEF EXECUTIVE, NEW ZEALAND DEPARTMENT OF CORRECTIONS v KOMENE [2023] NZHC 1870[13 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-429[2023] NZHC 1870UNDER Section 107F of the Parole Act 2002BETWEEN CHIEF EXECUTIVE, NEW ZEALANDDEPARTMENT OF CORRECTIONSApplicantAND JACOB KOMENERespondentHearing: 13 July 2023Appearances: S Bicknell for the ApplicantMJ Hamlin for the RespondentJudgment: 13 July 2023ORAL JUDGMENT OF BECROFT J[As to Extended Supervision Order]Solicitors/Counsel:Kayes Fletcher Walker, AucklandM Hamlin, AucklandThe application[1] The chief executive of the New Zealand Department of Corrections applies fora five-year Extended Supervision Order (ESO) in respect of Mr Jacob Komene unders 107F of the Parole Act 2002 (the Act). Mr Komene opposes the application.The hearing and resolution[2] At the hearing today, evidence was heard from two "health assessors" (asdefined in s 4 the Act) who are both registered clinical psychologists, and whosestanding and expertise was not disputed. Dr Willem Louw provided a report for theapplicant. Dr Hamish Bartle provided a report for Mr Komene.[3] Both Drs Louw and Bartle gave evidence at the hearing and were subject tocross-examination. Before the cross-examination of Dr Bartle was completed andduring the luncheon adjournment, Mr Komene responsibly re-considered his position.He now not only does not object to the application, but consents to it on the basis thatit is an application for a three-year ESO.[4] The three-year duration came about as a result of cross-examination of DrLouw who conceded that was the minimum period of the order required for thepurposes of safety of the community, in light of:1(a) the level of risk posed by Mr Komene;(b) the seriousness of harm that might be caused to victims; and(c) the likely duration of risk.[5] In light of Dr Louw's evidence, I accept that three years is suitable andappropriate as a minimum period for Mr Komene's ESO.1 See s 107I of the Parole Act 2002, which at subs (5) sets out these general criteria for determiningthe length of an ESO. Section 107IAA sets out the more detailed criteria for an ESO in relationto the risk of the offender committing a relevant sexual or violent offence.[6] I record, given that Mr Komene is here in Court, that his express consent tothis application is responsible, mature and appropriate. I congratulate him for doingso. It is the best outcome in these circumstances.Why the Court would have granted the ESO in any case[7] On the basis of the almost-completed evidence that I had heard, I need to makeclear that I would have made the order in any case. I briefly summarise why that is so.It may be of help to the Parole Board who I understand will be considering theappropriateness of any special conditions for Mr Komene.[8] I need to record also, and Mr Komene responsibly accepts this, that all theevidence that I heard was that if he was receiving family support, external mentalhealth support and kept taking his medication, and was otherwise properly supervised,the very high risks of him re-offending violently and committing one of the seriousspecified offences in the Act would be significantly reduced. Mr Komene knows howimportant it is that he gets that help. So does his family.[9] In terms of the legislation, it is convoluted and difficult to understand but itseems necessarily so given that a person's rights are at stake. This type of order is aserious imposition on civil liberties and must only be applied if all the statutoryconditions are met."Relevant offence" and "eligible offender"[10] On 23 July 2023, Mr Komene was convicted and sentenced to nine years' andeight months' imprisonment on a charges of wounding with intent to cause grievousbodily harm and aggravated burglary. The former is a "relevant offence" under theAct.2 A minimum period of imprisonment of six years was imposed. He was releasedfrom custody in respect of that charge, and another prison-related assault whichresulted in a cumulative sentence, on 14 June 2023. Since that time, he has beensubject to release conditions. Thus far, he has apparently been doing "ok" and Mr2 See s 107B.Komene nods to agree with that. It is accepted that Mr Komene is an "eligibleoffender" under the Act.3Pervasive pattern of serious violent offending (s 107I(2)(a))[11] In terms of the statutory criteria, this Court is satisfied that Mr Komene "has,or has had, a pervasive pattern of serious violent offending".4 With respect to MrKomene, when his criminal history is analysed as set out in paras [2.1] to [2.30] of theapplicant's excellently written submissions, no other description of his behaviour otherthan it represents a pervasive, if not endemic, pattern of serious violent offending ispossible.[12] At the hearing, that was explicitly accepted by both Ms Bicknell who appearedfor the applicant and Mr Hamlin who appeared for the respondent.Very high risk in the future of committing a relevant violent offence (s 107I(2)(b)(ii))[13] Under s 107I(2)(b)(ii), I am also satisfied that there is a very high risk that theoffender, that is Mr Komene, will in the future commit a relevant violent offence. Thedefinition "very high risk" is only satisfied if the matters set out in s 107IAA(2)(a) to(c) apply to Mr Komene. In my view they do. I set out my reasoning as follows.Very high risk[14] In terms of the general required statutory standard of "very high risk", on theface of it, Dr Louw and Dr Bartle were at odds. Only Dr Louw described Mr Komene'srisk as "very high". Dr Bartle described it only as "high". When their evidence,however, is unpacked, and when the particular criminogenic tools that they used areexplained, it seems to me that the differences were largely of a semantic nature. Tomaintain any difference between their views would be akin to dancing on the head ofa pin.3 See s 107C.4 Section 107I(2)(a).[15] The crucial fact is that in the two tools they both used that relate specificallyto violence – that is the Violence Risk Scale (VRS) and the HCR-20 tool – bothreached the same, or virtually the same, conclusions. As to the VRS, both concludedMr Komene was at "high risk" (which is the top range allowed in the tool). For theHCR-20, Dr Louw's conclusion was "high" and Dr Bartle's "high risk". Again, thiswas the highest possible score. Only Dr Louw used the Risk of Conviction*Risk ofImprisonment (RoC*RoI) offending tool which categorised Mr Komene as being at"very high risk". Dr Bartle responsibly conceded that had he too used that tool, hewould almost certainly have obtained the same result.[16] The differences between their categorisation, in my view, relates primarily tothe tools that were used and I was quite satisfied on the completed evidence that Iheard on that point, that there was a "very high risk" of Mr Komene committing arelevant violent offence.The statutory criteria for "very high risk" (s 107IAA(2))[17] The resolution of the differences between the two health assessors as to theirrisk assessments is, however, not the fundamental point. This is because "very highrisk" is a term that is only statutorily established if the Court is satisfied of a numberof quite complicated statutorily prescribed conditions under s 107IAA(2) of the Act.All of these are satisfied here, as follows."Severe disturbance in behavioural functioning established by."[18] Mr Komene "has a severe disturbance in behavioural functioning establishedby evidence of each of the following characteristics":5(a) "[I]ntense drive, desires or urges to commit acts of violence"(s 107IAA(2)(a)(i)). This was effectively not in dispute andspecifically conceded by responsible counsel.(b) "Extreme aggressive volatility" (s 107IAA(2)(a)(ii)). That, too, wasexpressly conceded by responsible counsel and was not an issue.5 Section 107IAA(2)(a).(c) "Persistent harbouring of vengeful intentions towards 1 or more otherpersons" (s 107IAA(2)(a)(iii)). This was in dispute and became a focusin the evidence and submissions. There is no clinical tool orpsychological definition of persistent. But there is a legal definition.For instance, the Court of Appeal in Mosen v Chief Executive of theDepartment of Corrections noted that persistent can mean frequent andrepetitive rather than just long-held and consistent.6 That is, onedefinition of "persistent harbouring of vengeful intentions" is aconsistent, ongoing and continuing harbouring of vengeful intentions;while another is the repetitive and recurring episodic harbouring ofvengeful intentions.On that latter definition, Dr Louw amended his initial conclusion thatMr Komene did not present as persistently having those intentions. Heinstead accepted that, in terms of the legal definition, there were at leastthree demonstrated instances of recurring, episodic harbouring ofvengeful intentions and, perhaps, more which could not be established.He accepted these satisfied the definition of persistent in the sense thatthey were repetitive and recurring episodes.On his evidence thus far, it seemed to me that Dr Bartle also acceptedthis was indeed a characteristic experienced by Mr Komene, but onlywhen he was mentally unwell. Otherwise, there was mixed evidenceas to that criterion being satisfied.Having heard the evidence, I am, myself, satisfied that there is evidenceof a persistent harbouring of vengeful intentions.Limited self-regulatory capacity (s107IAA(2)(b)(ii))[19] In terms of s 107IAA(2)(b) it was responsibly accepted by both counsel thatMr Komene displayed no behavioural evidence of clear and long-term planning ofserious violent offences to meet a premeditated goal.7 But it was responsibly accepted6 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507, (2022) 30 CRNZ751 at [53] – [54].7 Parole Act 2002, s 107IAA(2)(b)(i).by both counsel that he clearly has limited self-regulatory capacity.8 Part of the reasonfor that is because of his childhood ill-treatment; his profound fetal alcohol spectrumdisorder; and also what is called his schizo-affective condition, which needs regularmedication.Absence of understanding for or concern about the impact of violence on actual orpotential victims (s 107IAA(2)(c))[20] The final matter of which I need to be satisfied is under subs 2(c). That is, thatMr Komene displays an absence of understanding for, or concern about, the impact ofhis violence on actual or potential victims. This, again, is a subtly complex concept.It is clear from decisions such as McIntosh v Chief Executive of the Department ofCorrections that the issue is not so much an outright absence of understanding for orconcern about the impact of his violence; but more about whether there are sufficientfactors in his understanding and remorse about his violence that would act as aprotective factor in the future.9[21] This was probably the nub of Mr Hamlin's concern on the evidence that theCourt had heard.[22] However, certainly, on Dr Louw's evidence I am quite satisfied that it isdemonstrably evident here.[23] I say that because there is no evidence of that understanding or concern beforeor during the offending – but there is some, as Dr Louw put it, "vocalisation" of regretand remorse thereafter. In Dr Louw's view that, however, was not sufficient toconstitute compliance with what the statute requires in that it would not protect againstfurther specified violent offending if Mr Komene was provoked while mentallyunwell.8 Section 107IAA(2)(b)(ii).9 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218, at paras [22] and[23].[24] Dr Bartle essentially agreed but was more hopeful. He felt that positive signswere already being displayed by Mr Komene towards the end of his prison sentenceand upon his release. He posited that there were grounds for hope, not yet tested, thatin the community Mr Komene's understanding and concern about the impact of hisviolence would act as a sufficiently protective factor, meaning that there was a lowrisk of further specified violent offending. That, however, is an entirely optimistic andhopeful assessment. And, as I say, and as conceded by Dr Bartle, that assessmentdepends on the test of time.Conclusion[25] So, in my view, all the matters about which I must be satisfied when assessing"very high risk" under s 107IAA are made out.[26] I have taken the trouble to set this all out because I am told, and I hope, it willassist the Board in its assessment of the next steps to be taken.[27] As I say, the length of the order must be the minimum period required for thepurposes of safety of the community in light of the factors that I previously specifiedin s 107I of the Act. Under cross-examination, Dr Louw's concession as to theappropriateness of the three-year period must be accepted. It was supported informallyby Dr Bartle.[28] Having set all that out, which provides a parallel basis for the order additionalto Mr Komene's consent, I formally make the order that Mr Komene is subject to athree-year Extended Supervision Order. To be clear, Mr Komene, that is for threeyears not the five-year order.[29] There has been some discussion as to when that order should start. Ms Bicknellfor the Department has asked that it start in one month's time. I do not understand MrHamlin to oppose. On that basis, the order will start on Friday, 11 August 2023.[30] The final matter that I note is that the standard conditions, helpfully providedto me, contain one condition that Mr Hamlin views as unnecessary if not inappropriatein this case. That relates to the prohibition of contact with those under 16 unlessapproved by the Probation Officer. To the extent that the Board has the ability toamend or delete a standard statutory condition, then that is something that requiresconsideration. If there are any special conditions to be imposed, then the Board hasthe next month to address that issue in discussion with Mr Hamlin.[31] The final thing to say Mr Komene, is that I have been greatly helped by bothMs Bicknell and Mr Hamlin. Their submissions in writing have been excellent; theirapproach in Court in focussing on the key issues and making significant concessionsabout what was not in dispute has made my job much easier. I think this has made iteasier for you also – to help you understand, and to make it easier in terms of resolvingthis application. I simply want to record my thanks to both of them, and to Ms Kedge– the communication specialist who is in Court today assisting you._____________________________Becroft J