CHIEF EXECUTIVE, NZ DEPARTMENT OF CORRECTIONS v AMOHANGA [2017] NZHC 1406

CHIEF EXECUTIVE, NZ DEPARTMENT OF CORRECTIONS v AMOHANGA [2017] NZHC 1406 [23 June 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000404[2017] NZHC 1406UNDER Section 107F of the Parole Act 2002BETWEEN CHIEF EXECUTIVE,NEW ZEALAND DEPARTMENT OFCORRECTIONSApplicantAND NICO NORMAN EMERY AMOHANGARespondentHearing: 20 June 2017Counsel: E J McCaughan for the ApplicantQ Duff for the RespondentJudgment: 23 June 2017JUDGMENT OF EDWARDS J[re Application for Extended Supervision Order]This judgment was delivered by Justice Edwardson 23 June 2017 at 2.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Kayes Fletcher Walker Limited, AucklandRichmond Property and Litigation Limited, AucklandIntroduction[1] On 20 June 2017, I made an extended supervision order (ESO) in respect of Mr Amohanga for a period of five years. I also imposed interim special conditions pending a hearing by the parole board. My reasons for making those orders now follow.[2] Mr Amohanga was deported to New Zealand in June 2016 after serving a 12 year sentence of imprisonment for armed robbery. He was made subject to a five year supervision order by the New South Wales Court. On his return to New Zealand, he was made subject to release conditions under the Returning Offenders (Management and Information) Act 2015 (ROA).[3] The application for an ESO was originally opposed by Mr Amohanga on two grounds. First, he said that he did not meet the threshold for an ESO as recent behavioural changes meant that he could not be said to pose a "very high risk" ofcommitting a relevant violent offence in the future. Second, he said that instead of imposing an ESO, this Court should continue the release conditions imposed under the ROA as being the least restrictive option available in the circumstances.[4] At the hearing, Mr Amohanga's counsel conceded that, given the viewsexpressed in the health assessor reports, it was difficult to maintain the position that Mr Amohanga did not meet the threshold for an ESO. The main thrust of his submissions focused on continuation of the ROA conditions as a viable alternative tothe ESO regime. However, in the event that an ESO was imposed, Mr Amohanga'scounsel submitted a term of two to three years would be sufficient to mitigate risk.[5] Although Mr Duff effectively conceded the threshold question, I must be satisfied that I can make an ESO under the Parole Act 2002. I therefore approached the application by first considering whether the threshold for the imposition of an ESO was reached. If so, I considered second what minimum term was necessary to protect the public. I then considered whether or not continuing the release conditions under the ROA provided an adequate alternative to an ESO.Mr Amohanga's circumstances[6] Mr Amohanga is 42 years old. He was born in New Zealand and moved to Australia when he was approximately four years of age. He appears to have had a loving and supportive mother but experienced a violent upbringing and was subject to physical abuse at the hands of his father.[7] At primary school, Mr Amohanga got into regular trouble for fighting and bullying other children. At 12 years of age, he was reported to have attacked a teacher with a knife in revenge for placing him in a time-out room. At high school,his offending continued and he spent time in a boys' home for stealing. From 13years of age, he accumulated convictions for stealing and assault.[8] Mr Amohanga spent the best part of 20 years in an Australian prison. That includes a sentence of 12 years for a serious assault which is described in more detail at [23] of this judgment. He was released from prison on 16 May 2015.[9] On 3 July 2015, he was made subject to an extended supervision order by the NSW Court. Mr Amohanga consented to those orders but opposed the term of the order sought, contending that a three year term rather than a five year term should be imposed. He also argued that there should be no order relating to his employment.[10] The NSW Judge imposed the order for five years including the employment condition. Mr Amohanga has a drug addiction problem which appears to havefuelled his offending. He had admitted to taking "ice" shortly after release, despiteparticipating in the methadone programme. That was a key factor in the Judge'sdecision to make an order for the maximum five year term available.1[11] Mr Amohanga was deported to New Zealand on 23 June 2016. By order of the District Court, he was made subject to special conditions imposed under the ROA. Those conditions include: electronic monitoring, reporting to probation, limitations on travel, prohibitions on substance use and gambling, and a curfew at a stated address.1 State of New South Wales v Amohanga [2015] NSWSC 875 at [44]–[47].[12] There have been a number of incidences since his return which were referred to by both health assessors in their respective reports. Those incidents include smashing the base set for his electronic bracelet and leaving his approved address, drinking in breach of his conditions, and leaving home while still subject to curfew. Probation reports also indicate some antagonistic attitudes towards his probation officer, and threatening type behaviour on an intermittent basis.[13] There have also been several positive signs. Mr Amohanga is in a relationship (although there have been reports of difficulties with that relationship). He has been able to secure employment, and whilst he did leave his first job, he is still currently employed. Both health assessors agreed that there were some positivesigns of reform emerging in Mr Amohanga's behaviour.The ESO regime[14] The purpose of an ESO is to protect the community from those who pose a real and ongoing risk of committing serious sexual or violent offences.2[15] The thresholds for making an ESO are set out in s 107I(2) of the Parole Act 2002. In this case, the Court may make an ESO if it is satisfied, having consideredthe matters addressed in the health assessor's report that:(a) The offender has or has had a pervasive pattern of serious violent offending; and(b) There is a very high risk that the offender will in future commit a relevant violent offence.[16] A "relevant violent offence" is defined in s 107B. The definition includes murder, attempts to murder, accessories after the fact to murder, manslaughter, wounding with intent, injuring with intent to cause grievous bodily harm, aggravated wounding or injury, specified firearm offences, kidnapping, robbery and aggravated robbery, and assault with intent to rob.2 Parole Act 2002, s 107I(1).[17] A court may only determine that there is a "very high risk of committing a relevant offence" if it is satisfied that the offender:3...(a) has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:(i) intense drive, desires, or urges to commit acts of violence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards 1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.[18] In Department of Corrections v Alinizi, the Court of Appeal also set out a three-step process to be followed by the Court once it is established that an offenderis an "eligible" offender. Those three stages are:4(a) First, the Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;(b) Second, the Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and(c) Third, if those criteria are met, the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.3 Parole Act 2002, s 107IAA.4 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].[19] Once the Court has decided to make an ESO, it must then go on to consider the term of the order. That must be the minimum period required for the safety of the community in light of the level of the risk posed by the offender, the seriousness of the harm that might be caused to victims, and the likely duration of the risk.5Eligibility[20] There is no dispute that Mr Amohanga is an eligible offender. He falls within s 107C(1)(c) and (d) of the Parole Act 2002. Those subsections define an eligible offender to include those who are a "returning prisoner" and those who fall withinsubpart 3 of part 2 of the ROA.Pervasive pattern of serious violent offending[21] There is no dispute that Mr Amohanga has a pervasive pattern of serious violent offending.[22] Mr Amohanga's criminal history includes armed robbery, assaults, burglary,threatening witness and wilful damage offences. In 1994, Mr Amohanga was imprisoned for five years for a string of robberies and other associated offences. Whilst incarcerated, he assaulted prison officers on several occasions. He returned to crime after his release in 1999, selling drugs, using heroin, and soliciting prostitutes to work for him.[23] In May 2001, Mr Amohanga was involved in a serious armed robbery involving a brutal attack on an adult male. The male had been invited back to a flat by two young prostitutes where Mr Amohanga and a number of co-offenders were present. The victim was attacked and robbed by Mr Amohanga and a co-offender, both of whom were armed. Mr Amohanga later admitted to using a four-foot long iron bar to hit the victim in the head repeatedly. The victim was left with severe scalp lacerations exposing his brain, and a serious brain injury. The victim can no longer communicate in English (his second language), and has a number of serious physical and mental impairments requiring life-long support.5 Parole Act 2002, s 107I(5).[24] Mr Amohanga was involved in further offending the day after this attack which involved detaining and assaulting another victim and threatening that victim to extort money. Mr Amohanga received a sentence of 12 years' imprisonment forthis offending. In total, he has spent approximately 20 years in an Australian prison.[25] Mr Amohanga has a long history of institutional charges whilst imprisoned. These include assaults on staff and other prisoners, possession of weapons, threats and drug use. However, the majority of these incidences occurred during an early period of his imprisonment and there has been a reduction in the frequency of such incidences over time.Is there a very high risk that Mr Amohanga will in future commit a relevant violence offence?Health assessor reports[26] Dr Wilson gave a report on behalf of the Chief Executive. Dr Isaacson gave a report on behalf of Mr Amohanga. There was substantial agreement between them on the assessment of risk. However, Dr Wilson considered Mr Amohanga posed a"very high risk", whilst Dr Isaacson considered he posed a "high risk".[27] Dr Wilson undertook a risk assessment using a number of actuarial instruments. The assessment using the VRS tool placed Mr Amohanga in the high risk category for future reoffending. This was consistent with previous VRS assessments undertaken in 2013 and 2015.[28] Dr Wilson also assessed Mr Amohanga's future risk using the Psychopathy Checklist: Screening Version (the PCL:SV). He received a very high score using this test. Those with a similar high total score had a very high reoffending rate with 80 per cent reimprisoned for serious reoffending in the five years following release.[29] Dr Isaacson agreed that the VRS results revealed Mr Amohanga to be at a very high risk of reoffending. However, she considered more recent evidence of positive and sustained change would have resulted in a slightly lower rating on some of the PCL:SV items.[30] Dr Isaacson also undertook a Firestone Assessment of Violent Thoughts (FAVT) assessment. The results of that test suggested that Mr Amohanga did not experience a wide variety or greater intensity of thoughts that predisposed him to acting in a violent manner. Dr Wilson considered the use of this test was inapt inassessing Mr Amohanga's future risk.The s 107IAA factors[31] Although the Court must have regard to the health assessor's reports, theassessment of risk is a judicial one. It is to be informed by a consideration of all theevidence adduced at an ESO hearing, and is not solely reliant on a "mechanical and potentially formulaic assessment of risk".6[32] Mr Amohanga's history of violent offending displays an intense drive or desire or urge to commit acts of violence.7 Those acts of violence are characterised by impulsive and explosive aggression often accompanied by the use of a weapon. The incidents of assault on staff and other prisoners whilst incarcerated also evidences an intense drive or urge to commit acts of violence.[33] Although there is some evidence of a positive change in Mr Amohanga's behaviour, recent outbursts and Dr Wilson's evidence regarding Mr Amohanga'spersonality traits suggests that the intense drive or urge remains close to the surface.[34] The nature of Mr Amohanga's offending also indicates an extreme aggressive volatility.8 That is evident in his use of a weapon, with the potential to cause death, in many of these past incidents. Volatility is also evident in the damage of the electronic monitoring base.[35] Mr Amohanga's offending does not demonstrate the targeting of any specificpeople or groups. In that sense, there is no evidence of a persistent harbouring of vengeful intentions towards one or more persons.9 However, some of his offending is characterised by reacting in a violent and aggressive manner to those who impose6 R v Peta [2007] 2 NZLR 627 at [52].7 Parole Act 2002, s 107IAA(2)(a)(i).8 Section 107IAA(a)(ii).9 Section 107IAA(a)(iii).restrictions on him or curtail his freedoms. That is evident in his offending whilst incarcerated. This suggests that those who are tasked with overseeing Mr Amohanga's supervision may be at risk.[36] There is no evidence of long term planning, but there is evidence of limited self-regulatory capacity.10 Dr Isaacson's opinion is that Mr Amohanga's generalpersonality function renders him likely to overreact to misconstrued threats and experience physical sensations of agitation and panic that cause him to act violently. Again, the excessive violence used in many of his offences supports that view.[37] The evidence is conflicted regarding the absence of understanding for or concern about the impact of his violence on actual or potential victims.11Mr Amohanga has expressed shame, remorse and regret regarding his violent offending at times. However, he has also attempted to deflect the responsibility for his actions and minimised his role in the violent assaults. Dr Isaacson considers thatthis conduct hinders Mr Amohanga's deeper understanding of the impact of his pastviolent offending on victims. Dr Wilson's personality assessment of Mr Amohanga suggests that he still holds beliefs which justify his anti-social behaviour. Those beliefs impede a proper understanding or concern for the victims of his offending.[38] Considering all of these factors in the round, I am satisfied that Mr Amohanga poses a very high risk of committing a relevant violent offence in the future. Mr Amohanga therefore reaches the threshold necessary to impose an ESO.What should the term be?[39] Pursuant to s 107I(5), the term of the ESO 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.10 Parole Act 2002, s 107IAA(b)(ii).11 Section 107IAA(2)(c).[40] I need not address the first two factors which are apparent from the discussion above. The real contest is in relation to the likely duration of that risk.[41] The Department originally sought a 10 year term, based on Dr Wilson'sreport. However, just prior to the hearing, Dr Wilson filed an updated report which suggested that a term of five to seven years would be appropriate. Dr Isaacson was considerably more optimistic and suggested that a term of two to three years would be appropriate in all the circumstances.[42] I agree with both health assessors that recent behavioural changes gives some reason to believe that, if continued and sustained, the risk of re-offending in the longterm may decline. That, in combination with Mr Amohanga's increasing age,suggests that a full 10 year term is not necessary to mitigate the risk.[43] However, those positive changes are still in their infancy. Further evidence of continued and sustained progress would be required before I could be satisfied that the risk was likely to abate after two or three years. I consider the risk remains and is likely to endure over the next five years. A five year term is therefore the minimum term required for the protection of the community.Should the ROA orders be continued instead?[44] Mr Duff, for Mr Amohanga, urges me to decline to exercise my discretion for an ESO as the ROA regime adequately addresses the need for public protection. He contends that the ROA release conditions are a more rights-consistent regime and that leaving them in place for a period of two or three years is consistent with imposing the least restrictive sentence in the circumstances.[45] The ROA was introduced into Parliament on 17 November 2015, and passed under urgency on 18 November 2015. Its stated purpose is to obtain information from returning offenders and establish release conditions for offenders returning to New Zealand following a prison sentence of more than one year in an overseas jurisdiction.1212 ROA, s 3.[46] There was no select committee report, but during the readings on the bill, the Minister of Justice said:13 the aim of this bill is to better protect the law-abiding public by ensuring that a similar regime of supervision applies to convicted offenders who served their sentences in prisons overseas as applies to those convicted andimprisoned in New Zealand [47] The substantive provisions relevant to the imposition of release conditions are contained in subparts 2 and 3 of the ROA. Subpart 2 relates to "returning prisoners". It specifies the criteria for determining that a person is a returningprisoner and sets out the consequences of such a determination. Returning prisoners are made subject to standard release conditions, with the Court having the power to impose interim special conditions in some circumstances.[48] Subpart 3 applies to returning offenders who meet the criteria of a "returning prisoner"; who have returned to New Zealand more than six months after release from custody; and have been subject to monitoring, supervision or ESO-like conditions immediately prior to their return.14 Mr Amohanga falls within subpart 3.[49] Pursuant to s 33, the Court has the power to impose conditions on a returning offender who falls within subpart 3. Those conditions must not be imposed morethan six months after the returning offender's return to New Zealand.15 The Court must specify when those conditions are to end.16[50] Subpart 4 sets out amendments to the Parole Act 2002 and the Public Safety (Public Protections Orders) Act 2014. Those amendments make it clear that those who fall within subpart 3 of Part 2 of the Act are eligible for orders under either of those statutes.[51] The general scheme of the ROA therefore, at least as it relates to the imposition of conditions, is to provide for standard release conditions and special conditions to be imposed on returning offenders. However, I do not consider it was13 (17 November 2015) 710 NZPD 8032.14 ROA, s 32.15 ROA, s 33(3).16 ROA, s 33(1).Parliament's intention to prescribe an alternative regime for those who would otherwise meet the ESO thresholds. Rather, it appears that the intention was for the ROA to dovetail with the ESO provisions, and provide a stopgap measure for returning overseas offenders who were already subject to ESO-like conditions.[52] That is apparent from subpart 4 of the Act which amends the Parole Act 2002 to specifically make returning offenders under the ROA eligible for an ESO. It also flows from the fact that release conditions imposed under the ROA expire on the making of an ESO as provided for in s 30.[53] It is also apparent from the lack of statutory machinery by which a risk of reoffending that is likely to endure over the long term may be managed. Although the Court may vary or discharge release conditions under s 28 of the ROA, it is not clear that such a power could be used to extend the duration of release conditions already fixed by the Court. Even if an extension is possible, it seems unlikely that there would be a power to grant it beyond a five year duration which is the maximum duration for standard release conditions.17[54] These provisions indicate that the ROA scheme was not intended to provide an alternative to the ESO regime for those who would otherwise meet the required thresholds for an ESO order. I do not therefore consider the ROA to establish a viable alternative such that I should exercise the discretion not to grant an ESO.Result[55] I granted the application and made the following orders:(a) An extended supervision order in respect of Mr Amohanga for five years;(b) Pending the hearing and determination of an application for special conditions by the Parole Board, I imposed conditions 7 to 13 and 15 of the release conditions as special conditions on an interim basis. Those conditions are set out below:17 Parole Act 2002, s 24.(i) Not to travel outside of New Zealand without the prior written approval of a probation officer;(ii) Not to possess or consume alcohol or illicit drugs, excluding those prescribed by a doctor;(iii) Not to enter a licensed premises, other than a supermarket, without the approval of a probation officer;(iv) Not to enter any licensed gambling premises, including but not limited to Sky City Casino and gaming lounges unless with the prior written approval of a probation officer;(v) Not to stay away overnight between the hours of 9.00 pm and 5.00 am, unless prior written approval is given by a probation officer;(vi) To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a probation officer in order to monitor compliance with any condition(s) relating to whereabouts;(vii) To comply with the requirements of electronic monitoring and provide access to the approved residence for the purpose of maintaining the electronic monitoring equipment as directed; and(viii) Not to possess a firearm.___________________Edwards J