CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v TE PANIA [2016] NZHC 1215

THIS IS A REDACTED VERSION OF THE JUDGMENT. PORTIONS RELATING TO IDENTIFYING PARTICULARS OF VICTIMS HAVE BEEN REMOVED.CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v TE PANIA [2016] NZHC 1215 [8 June 2016]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF VICTIM(S) PROHIBITED BY S 203 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-42[2016] NZHC 1215CHIEF EXECUTIVE OFDEPARTMENT OF CORRECTIONSvMAAKA JUNIOR TE PANIAHearing: 31 May 2016Appearances: P A Currie for ApplicantM Starling and N Wham for RespondentJudgment: 8 June 2016REASONS FOR JUDGMENT OF MANDER JApplication for ESO[1] The Chief Executive of the Department of Corrections (the Chief Executive) has applied for an extended supervision order (ESO) under the Parole Act 2002 (the Act) against Maaka Junior Te Pania. Mr Te Pania did not oppose the making of the order, however, it is necessary that I be satisfied the statutory requirements for the making of an order have been met and it is appropriate for an ESO to be made.[2] Prior to the hearing of the application I read the materials filed in support ofthe application by the Chief Executive, including the health assessor's report. After hearing counsel, I granted an ESO with reasons to follow. These are the reasons.Background to Mr Te Pania's offending[3] Mr Te Pania is 49 years old. His earliest recorded sexual offence was for peeping in 1981 when he was aged 14 years. He denied any sexual motivation when entering the property which he claimed was with an intention of stealing clothing from a washing line. However, he reported finding the female who he viewed through a window of the house attractive and acknowledged there may have been some sexual motivation. He denied any specific planning around this, and denied any intention to use force to enter the house to sexually coerce the female.[4] Mr Te Pania's next recorded sexual offence was for attempted sexual violation in 1988 when he was aged 21. Despite there being previous observations in the records doubting the actual sexual nature of this offending, Mr Te Pania has himself confirmed that there was some sexual motivation to the offence which resulted from a burglary that went wrong. Following this offence, Mr Te Pania received five convictions for indecently assaulting females over 16 and one conviction of an indecent act, for offending that occurred between 1989 and 1996 when he was aged 22-29. Mr Te Pania acknowledged that this offending either involved touching females unknown to him or using a mirror to look up their skirts in public areas.[5] In October 1997, when aged 30, Mr Te Pania was convicted of three counts of rape; two counts of unlawful sexual connection; two counts of assaulting a person with a stabbing/cutting instrument; and one count of assaulting a person with a blunt instrument. This offending took place over a four day period when Mr Te Pania was on bail. The offending involved him repeatedly raping his victim, punching and kicking her, and threatening to kill her. Before the victim eventually managed to escape, Mr Te Pania had attempted to coerce her to cut off one of her fingers, threw knives at her, and attempted to coerce her into committing suicide by jumping off a cliff. He is reported to have told police at the time of his apprehension that he would have killed his victim had a firearm been available. Mr Te Pania received a 13 year sentence of imprisonment, in respect of which he was released on parole in August 2005.[6] In November 2005, Mr Te Pania committed an indecent act which involved masturbating and rubbing himself against a 15 year old female in a public library. His victim had moved away from Mr Te Pania on several occasions and he had followed her. At approximately the same time, two other females aged 14 and 15 were also followed by Mr Te Pania in the library, and at one point he crouched on thefloor and looked up the 15 year old girl's skirt. Mr Te Pania was recalled to prisonand received a further conviction.[7] In August 2009, Mr Te Pania was released from prison and subsequently committed further indecent acts in December 2009 and August 2013, the latterinvolved him attempting to look up a female's skirt using a mirror while in a store. During this period Mr Te Pania received two convictions for violence perpetrated against female partners.[8] In September 2010, Mr Te Pania disclosed to his probation officer that he had engaged in historical sexual offending approximately 12-13 years previously []. No charges resulted from this disclosure, although Mr Te Pania was subsequently issued with a non-association order that prohibited contact with persons under the age of 16. Additionally, the sentencing notes in respect of the index offence reveal that Mr Te Pania was trespassed from [].[9] Within two months of Mr Te Pania being released from a six month sentence of imprisonment following his 2013 conviction, he approached an 11 year old female in a store in January 2014. When the girl was separated from her family members, Mr Te Pania approached her and stroked her arm. The victim moved away from himbut he followed her and told her she was a "beautiful young girl" before touching her dress. He then touched the victim's legs before she moved away again. Mr Te Pania followed however and stroked her buttocks on the outside of her clothing at which point she sought out family members and Mr Te Pania left the store. He was subsequently arrested by police.[10] As a result of this offending, a sentence of preventive detention was considered by this Court but ultimately not imposed. Mr Te Pania was instead sentenced to a finite term of 2 years, 5 months imprisonment on the charge ofindecently assaulting a female under 12. His sentence expiry date is 17 June 2016 which is also his statutory release date.The application[11] The Chief Executive may apply to the Court for an ESO pursuant to s 107F(1) of the Parole Act in respect of an eligible offender. That section provides:107F Chief executive may apply for extended supervision order(1) The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—(a) where the offender is subject to a sentence of imprisonment, at any time before the later of—(i) the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and(ii) the date on which the offender ceases to be subject to any release conditions;Eligibility[12] There is no dispute that Mr Te Pania qualifies as an eligible offender under s 107C(1)(a). He was subject to a determinate sentence of imprisonment which was for a relevant sexual offence as defined in s 107B(2) of the Act, namely that of indecent assault on a female under 12, for which he was convicted and sentenced on 15 September 2014.1 He remained subject to that sentence of imprisonment at the time the application for the ESO was made on 6 May 2016.2The test[13] Before a Court can make an ESO it must be satisfied of the matters set out in s 107I which, as relevant, reads as follows:1 Crimes Act 1961, s 132(1).2 Parole Act 2002, s 107F(1)(a).107I Sentencing court may make extended supervision order(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—(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.[14] In Mr Te Pania's case I must be satisfied having considered the mattersaddressed in the health assessor's report that Mr Te Pania:(a) has, or has had, a pervasive pattern of serious sexual offending; and(b) there is a high risk that he will in future commit a relevant sexual offence.Pervasive pattern of serious sexual offending[15] I am satisfied Mr Te Pania has a pervasive pattern of serious sexual offending which is apparent from his history of previous convictions.3 His 88 previous convictions since 1981 include 17 for sexual offending including rape, unlawful sexual connection, and a series of sexual offences against young girls.3 Chief Executive of the Department of Corrections v McIntosh HC Christchurch CRI-2004-409- 162, 8 December 2004; R v Leitch [1998] 1 NZLR 420 (CA) at [428]; McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770.Risk of Mr Te Pania committing relevant sexual offences in the future[16] A Court may only be satisfied that there is a high risk that Mr Te Pania will commit a relevant sexual offence if it is satisfied that he meets the criteria in s 107IAA, which relevantly provides:107IAA Matters court must be satisfied of when assessing risk(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:(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.[17] The considerations set out in s 107IAA(1) are mandatory and the Court must be satisfied as to each of those factors before it can determine there is a high risk of Mr Te Pania committing a relevant sexual offence.[18] An ESO must state the term of the order which may not exceed 10 years.4Under s 107(5) of the Act, the term must be the minimum period required for the safety of the community in light of the level of risk posed by the offender in committing a sexual offence against children or young persons, the seriousness of the harm that might be caused to the victims, and the likely duration of the risk.[19] For the purpose of examining the mandatory statutory criteria, the Court has the benefit of a report prepared by a registered clinical psychologist, Ms Sarah Head.4 Parole Act 2002, s 107I(4).Between 7 and 29 January 2016, Ms Head met with Mr Te Pania for the purpose of interview over a seven hour period across five sessions. Ms Head also had access to various reports and electronic files, including a pre-release report to the New Zealand Parole Board of September 2006 and a psychological treatment report of 20 December 2004, in respect of which Ms Head gained further background information.Does Mr Te Pania have an intense drive, desire or urge to commit a relevant sexual offence?[20] Mr Te Pania has described a history of high sexual preoccupation evidenced by frequent sexual thoughts, regular use of pornography, and frequent engagement in sexual acts with others, whether or not he was in an intimate relationship. He has described his sexual offending behaviour as addictive, which is consistent with his pattern of reoffending following the imposition of sanctions. Although Mr Te Pania self-reported a decrease in his level of sexual preoccupation, he himself observed that during his incarceration little stimulation has been available to him. It is suggested that the current lowering of his sexual preoccupation is contextually related to his prison environment. In Ms Head's opinion, the available evidencesuggests that Mr Te Pania is likely to still demonstrate an intense desire or urge to commit relevant sexual offences.Does Mr Te Pania have a predilection or proclivity to serious sexual offending?[21] As already noted, Mr Te Pania has some 17 previous convictions for sexual offending spanning over 30 years. His offending includes at least 15 identified victims, the majority of whom were unknown to him. Although Mr Te Pania more frequently offends against adult offenders, his more recent offending has included females under the age of 16. While the severity of Mr Te Pania's offending hastypically been at a less intrusive level, he has been convicted of serious sexual offending involving violence. This indicates a capacity to engage in more serious behaviour should reactive aggression be triggered in the lead-up to the sexualoffending. Mr Te Pania's formal offence history and his own self-reporting of offending indicates he has continued to sexually offend despite sanctions and treatment.[22] In 2008, while serving a previous sentence, he completed the adult sex offender treatment programme. Mr Te Pania had also received individual psychological intervention in 1994, 2003-2005, 2007 and 2010. The number of sessions he attended varied between three and 37. Mr Te Pania has also previously attended ACC Sensitive Claims counselling. During his last sentence he attended the Kia Marama special treatment unit. Based on the available information Ms Head is of the opinion that Mr Te Pania continues to demonstrate a predilection and proclivity towards sexual offending, although this is generally at a less serious and less intrusive level. His predilection and proclivity towards more serious sexual offending such as rape is said to be less evident, and likely contextual to intimate relationships.Mr Te Pania's self-regulatory capacity[23] Mr Te Pania's offending history suggests longstanding difficulties with self- regulation both in terms of general and sexual behaviour. He tends to sexually offend in an impulsive manner when triggered by relatively benign cues (such as sighting women wearing skirts or dresses), and with little consequential thinking. Further, there appears to be a degree of compulsion and persistence in his sexual offending actions once they are initiated.[24] Mr Te Pania himself has reported an improved ability to control his sexual thoughts but this remains largely untested outside of a highly-structuredenvironment. It is Ms Head's opinion that there can be limited confidence in thedurability of his self-regulation skills following release, particularly in terms of his sexual self-regulation.Mr Te Pania's acceptance of responsibility and remorse for past offending[25] Mr Te Pania has typically pleaded guilty to his offending at the earliest opportunity and reported frequent feelings of shame and anger at himself for offending. He reports that he accepts full responsibility for his offending. His willingness to attend intensive programmes targeting his sexual offending does indicate a degree of responsibility on his part. However, he has previously undertaken intensive treatment and subsequently reoffended. Ms Head is of theopinion that while Mr Te Pania appears to accept some responsibility for his offending and appears receptive to the need to change, this has unfortunately not stopped him from reoffending, and she considers the reliability of his apparent remorse and responsibility to be uncertain.Mr Te Pania's understanding for or concern about the impact of his sexual offendingon actual or potential victims[26] Mr Te Pania is reported as having demonstrated a reasonable understanding of the likely impact of his offending on victims. He voiced some consideration for the consequences to potential victims should he offend in the future. However, Ms Head's opinion is that while Mr Te Pania does appear to demonstrate improvement in his understanding of the impact of his sexual offending this may be undermined by a lack of self-regulatory capacity whereby Mr Te Pania foregoes consideration of consequences in favour of immediate sexual gratification, particularly given the impulsive nature of his offending when he experiences sexual interest.Summary[27] It is considered there is a high risk of Mr Te Pania engaging in relevant offending within 10 years of his release. This is based upon analysis of static and dynamic risk factors along with specific information related to his offence pattern. It is considered that further offending would likely involve the indecent assault of females, adults or minors, unknown to Mr Te Pania. Further serious sexual and violent offending against future partners, however, cannot be discounted. It is also noted that Mr Te Pania has disclosed sexual offending [], and it is possible that future victims may also include females known and related to him.Conclusion[28] The offending for which Mr Te Pania is presently serving a sentence of imprisonment represents his seventeenth conviction for sexual offending. It was perpetrated against an 11 year old female who was not known to him. The offending was perpetrated against a history of high sexual preoccupation and sexual deviancy which, consistent with his offence history and own self-reporting, demonstrates apredilection and proclivity for sexual offending which has spanned some 30 years. While the severity of his offending has lessened, he has been convicted of very serious sexual offending involving serious violence on one past occasion. Information from Mr Te Pania's offence history and his own self-reporting shows that he continues to sexually offend in spite of previous sanctions and treatment.[29] Overall, it is the health assessor's opinion that Mr Te Pania presents with ahigh number of dynamic risk factors which, if not adequately managed, suggest that his risk will remain at a high level over the long term. That conclusion has not been disputed.[30] It is for the Court to determine on the evidence and material provided whether it is satisfied that an ESO should be made. That requires a careful assessment of all historical and current factors along with the expert opinion that has been provided, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending.5[31] I have already concluded that Mr Te Pania has a pervasive pattern of serious sexual offending. I am also satisfied there is a high risk that Mr Te Pania will in future commit a relevant sexual offence. While there has been a lowering of his sexual preoccupation whilst in prison, he is likely to still have an intense desire to involve himself in relevant sexual offences. His predilection or proclivity for serious sexual offending remains albeit at a less serious and less intrusive level. It is evident from his offending history that Mr Te Pania has difficulty with self-regulation, and his more recent offending illustrates the impulsive nature of his sexual offending and his inability to control himself which remains untested outside the prison environment.[32] While it is acknowledged that Mr Te Pania has reported responsibility for his offending and a willingness to engage in treatment to make behavioural changes, the fact remains that past interventions have not prevented him from reoffending. Similarly, his apparent remorse and responsibility have not been sufficient to prevent5 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006.him from offending again. Any demonstrated improvement in his understanding of the impact of his offending has not prevented his impulsive behaviour when triggered by his sexual interest. I agree with the health assessor's opinion thatMr Te Pania remains at high risk of committing a relevant sexual offence in the future.Term[33] A supervision order may not exceed 10 years. The term of the order must, however, be the minimum period required for the purposes of the safety of the community. Mr Te Pania has not disputed that a 10 year period as sought by the Chief Executive would be appropriate.[34] I have concluded that Mr Te Pania has a pervasive pattern of serious sexual offending and remains at a high risk of committing a relevant sexual offence in the future. Ms Head has expressed the view that because of the presence of a high number of dynamic factors, in the absence of adequate management the risk Mr Te Pania presents will remain at this high level over the long term.[35] For the reasons traversed, and in the absence of any opposition and the apparent acceptance on the part of Mr Te Pania that he needs continued management and supervision over the long term (which acceptance is consistent with the professional opinion), I am satisfied the risk to the community will remain in the foreseeable future. Because Mr Te Pania poses a real and ongoing risk to the community which will remain for a significant period of time, I accept it is appropriate for the ESO to be made for a period of 10 years. Should Mr Te Pania take the view that he ought not during that 10 year period be further subject to the order, he may apply to the Court for the cancellation of the ESO on the basis he is no longer likely to commit a relevant offence.6Order[36] The ESO I made on 31 May 2016 for the term of 10 years will come intoforce upon Mr Te Pania's statutory release date of 17 June 2016.6 Parole Act 2002, s 107M.[37] The standard extended supervision conditions set out in s 107JA of the Act are to apply from the time the order comes into force and throughout its term, except otherwise during any period when any conditions are suspended by the Parole Board under s 107K(3)(c) or s 107P of the Act, or otherwise varied by the Parole Board.[38] The Parole Board may also impose special conditions on Mr Te Pania.Solicitors:Raymond Donnelly & Co, ChristchurchM Starling Barrister, Christchurch