THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v TURI [2021] NZHC 1429 [16 June 2021]

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v TURI [2021] NZHC 1429[16 June 2021]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-5[2021] NZHC 1429BETWEEN THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND HARLEM RAWIRI TURIRespondentHearing: 16 June 2021Counsel: M J R Blaschke for the ApplicantM J Phelps and E N Richards for the RespondentJudgment: 16 June 2021ORAL JUDGMENT OF PALMER JCounsel/Solicitors:Crown Solicitor's Office, NapierM J Phelps, Barrister, HastingsWhat happened?[1] Mr Harlem Turi, aged 40 of Ngāti Kahungunu, has an extensive criminalhistory dating to 1994, including nearly 50 convictions for assault or other violentoffending, resisting police, and breaching release conditions or failing to answer bail.On 20 September 2012, after drinking, Mr Turi and another person, both wearingMongrel Mob regalia, entered the house of a known small-time drug dealer. Mr Turiassaulted him, fracturing his nose and eye socket and causing profuse bleeding. Thevictim later died. Mr Turi was convicted of manslaughter and theft. On13 September 2013, on the basis he was responsible for a reasonably substantialbeating, Dobson J sentenced Mr Turi to eight years and three months' imprisonmentfor manslaughter and a concurrent sentence for theft.1 The overall sentence was laterreduced by the Court of Appeal to six years and six months' imprisonment.2[2] On 12 August 2014, in prison, Mr Turi assaulted another prisoner with abroom, punched him repeatedly in the face and head, and threw an object at him,resulting in a fracture to his back and numerous facial fractures.3 On27 February 2015, he was sentenced by the District Court to a further one year andseven months' imprisonment for injuring with intent to injure.4[3] On 13 July 2020, Mr Turi was released on parole subject to a variety ofconditions.5 On the day of his release, GPS monitoring indicated he entered a zone hehad been prohibited from entering. Corrections says he failed to report to a probationofficer weekly from 9 September 2020 and he tested positive for methamphetamine,cannabis and alcohol.6 GPS monitoring indicated he frequented a known gangresidence in Hastings, tenanted by his brother, captain of the Hastings Mongrel Mob,contrary to his release conditions. There were various other breaches of conditions.Corrections applied to recall Mr Turi to prison on 14 September 2020. An interimrecall order was made and an arrest warrant issued. Mr Turi was unable to be locateduntil 14 December 2020. By then, his sentence had expired.1 R v Turi [2013] NZHC 2411.2 Turi v R [2014] NZCA 254.3 R v Turi [2015] NZDC 3319.4 At [4]–[5].5 Notice of Application to Recall, 14 September 2020.6 At [9] and [11].[4] On 8 January 2021, Mr Turi was convicted and discharged by the HastingsDistrict Court on two breach of release conditions. Following release, he again failedto comply with the original release conditions. He was arrested again in Northland inFebruary 2021 and charged with driving offences, resisting and obstructing police, andtwo breaches of release conditions. In the Whakatane District Court he pleaded guiltyand was sentenced to nine months' imprisonment on 18 February 2021. No specialrelease conditions were imposed. Mr Turi is now due to be released from detentionon 4 July 2021. His original parole conditions expire on 23 July 2021.[5] The Crown has applied for a three-year Extended Supervision Order (ESO)against Mr Turi. The application is supported by a report by a Health Assessor for theDepartment of Corrections, who concluded:71 Within the broader context of gang affiliation and criminal versatility MrTuri has been convicted for 27 violent offences, including three relevantviolent offences, over the course of 19 years. Mr Turi also displayed persistentand significant institutional rule-breaking while in prison including aggressiveand violent behaviour.72 Over the course of 19 years, Mr Turi has displayed an intense drive, desire,or urge to commit violent offending as indicated by the repetitive nature of hisoffending despite previous treatment and sanctions, high risk of detection,victim protest and attempts by victims to escape. Mr Turi's volatile aggressionappears to be an established and persistent interpersonal style (evidence overat least 10 years as an adult), with two of the three relevant offences displayingreactive-anger related violence, which could be considered of an extremenature. Mr Turi displayed excessive force and limited planning for someviolent offences, with some planning evident for others. Mr Turi's violencehas been motivated by a number of needs: poor emotional regulation; to gaincontrol to a perceived threat or challenge. It also appears there is evidence ofvengeful intent that has motivated some of his violent offending. In thewriter's opinion Mr Turi was disinhibited by a lack of empathy, absence ofguilt and personal responsibility taking, and the belief that violence isacceptable in response to threat or challenge.73 Based on a multi-method assessment Mr Turi is considered to be at highrisk for violent re-offending. However, in my clinical opinion, given specificidiosyncratic and environmental factors Mr Turi's risk will escalate quickly toa very high risk of further violent offending, which could escalate to a levelof seriousness indicative of relevant offending. Mr Turi is considered to be ata high risk of general re-offending with breaches, traffic or driving relatedoffences or dishonesty offending most likely to occur.74 Mr Turi presents with a number of high-end and complex dynamic risksrelated to his violent offending. His previous treatment and current releaseplan are not considered sufficient to mitigate his risk. Of importance to MrTuri's successful reintegration and mitigation of risk will be his attitudetowards support services, particularly Probation services, and his willingnessto meaningfully engage with these; as well as his ability to distance himselffrom his gang association. As such he may require a significant degree ofexternal structure and support to assist him with these.76 Mr Turi has not yet adequately addressed his substance use, which doesact as a disinhibitor for Mr Turi on occasion.[6] But the hearing has been adjourned pending availability of an assessment foran independent psychologist for Mr Turi. Until then, which is likely to be in October2021, the Crown applies for an Interim Supervision Order (ISO). Mr Turi opposesthat.Relevant Law[7] Under s 107I(1) of the Parole Act 2002 (the Act), the purpose of an ESO is "toprotect members of the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexual or violentoffences". Under s 107I(2), the Court may make an ESO if satisfied, relevantly, that:(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) either or both of the following apply:(i) (ii) there is a very high risk that the offender will in future commita relevant violent offence.[8] Under s 107IAA(2), "a court may determine that there is a very high risk thatan eligible offender will commit a relevant violent offence only if it is satisfied thatthe offender–(a) has a severe disturbance in behavioural functioning established byevidence 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 ormore other persons; and(b) either–(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet a premeditatedgoal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about the impactof his or her violence on actual or potential victims.[9] In 2016, in Alinizi, the Court characterised an ESO as involving a three-stepprocess:7(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 theoffender meets the qualifying criteria set out in s 107IAA.(c) Third, if those criteria are met, the Court must make a determinationabout the risk of the offender committing a relevant sexual or violentoffence.[10] Section 107FA of the Act empowers the Court to make an ISO if an offenderis released from detention before an application for an ESO is finally determined. Itmust be considered against the criteria for an ESO. Muir J, in Chief Executive of theDepartment of Corrections v Ihimaera, considered that to grant an ISO, the Courtshould be "satisfied, albeit on a provisional basis and often on untested evidence, thatthe statutory criteria for an ESO are made out".8 I agree with and follow this approach,which is also accepted by the Crown here. It is a different approach from that inChief Executive of the Department of Corrections v Martin that, in granting an ISO,"the Court need not be satisfied to the same extent as is required when consideringwhether to make an ESO".9[11] There must also be a nexus between the perceived risk posed by the offenderand the effectiveness of a proposed condition.10 And, the discretion to impose an ISOmust be exercised consistently with the rights and freedoms guaranteed by theNew Zealand Bill of Rights Act 1990.117 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].8 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14].9 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [37].10 At [49].11 Department of Corrections v Thorpe [2017] NZHC 2559 at [14].Submissions[12] Mr Blaschke, for the Department of Corrections, submits the ISO is requiredhere because the standard release conditions are insufficient and the original paroleconditions only run until 23 July 2021. He submits this is demonstrated by Mr Turi'scriminal history and the application to recall him on his 2013 sentence. He submitsMr Turi has never complied with his parole conditions for the reintegration into thecommunity, has spent substantial periods of time avoiding arrest, and immediatelyresumed gang activities, though he has not committed violent offending while onrelease. He submits substantial conditions, for reintegration into the community likeparole conditions, are required to meet his risk of further offending. He submits theoriginal psychological report establishes that Mr Turi poses a substantial risk of violentre-offending. Mr Blaschke submits Mr Turi's sustained non-compliance with, anddetermined defiance of, his release conditions is the strongest factor supporting anISO, being relevant to the Court's overall assessment. He submits that is also relevantto the necessary strength of the conditions of the ISO sought. He accepts the curfewand electronical monitoring conditions may not end up being part of the ESO sought.But he submits they are necessary for the ISO, though a more limited way of achievingthe end of the electronic monitoring may be possible. He accepts the conditions shouldnot prevent Mr Turi from having contact with his family members.[13] Mr Phelps, for Mr Turi, submits he will be subject to standard conditions onrelease. He submits the grounds for making an ISO have not been made out becausethe Court cannot be satisfied that:(a) Mr Turi has persistent harbouring of vengeful intentions, becauseinterview information was unable to be collected and Corrections'Health Assessor concluded the persistence of these intentions wasdifficult to quantify. He submits Mr Turi's index offending is probablymore a reflection of his reactive nature.(b) There is any behavioural evidence of clear and long-term planning ofserious violent offences to meet a pre-meditated goal becauseCorrections' Assessor considered the planning shown by Mr Turi wasover a period of hours or days at most.[14] In relation to the proposed conditions of an ISO, Mr Phelps submits that anyconcerns about contact with the family of the victim of the index offence would bemet by a condition prohibiting contact with them, which are standard conditionsanyway. He submits the proposed condition prohibiting entry to the Wellington andBay of Plenty regions, and therefore the proposed electronic monitoring (EM)condition, is not necessary and is not linked to the risk of re-offending or to Mr Turi'sreactive nature. He also submits that there is nothing to suggest the proposed curfewbetween 10.00 pm and 6.00 am is likely to assist in reducing Mr Turi's risk of re-offending. Rather, it appears designed to pin him down which is not sufficiently linkedto re-offending. And he submits that the proposed prohibition on contact withmembers or associates of the Mongrel Mob would set Mr Turi up to fail, and beproblematic for his ongoing rehabilitation and reintegration, since many of his familyare gang members.Should an ISO be granted?[15] Mr Turi's offending is not as bad as others I have seen. But on balance, for thepurposes of considering the application for an ISO, I accept he has a pervasive patternof serious violent offending. The convictions for manslaughter, injuring with intent toinjure and the pattern of numerous convictions for assault indicate that. However, Ilack information about the seriousness of the assaults. I expect a Court consideringany ESO application would require more information about that.[16] In terms of the requirements of s 107IAA(2), I consider:(a) There is evidence that Mr Turi has intense drives, desires or urges tocommit acts of violence and extreme aggressive volatility. The facts ofthe established offending indicate that.(b) The health assessor acknowledges the evidence of persistentharbouring of vengeful intentions is more limited and difficult toquantify. But she notes evidence from previous offending and states"he persistently appears to harbour vengeful intentions towards thosewho may threaten him, [pursuing] them even after they have attemptedto leave and posed little threat to him".12 She considers this isconsistent with Mr Turi's recorded psychometric information,indicating an enduring sense of threat from the world. And she states"Mr Turi has persistently responded with intense anger, escalating toviolence, when he perceives he is disrespected or thwarted in someway".13 On balance, for the purposes of the ISO and without evidenceto the contrary, I accept there is evidence satisfying this requirement foran ISO.(c) I am not persuaded there is evidence of clear and long-term planning ofserious violent offences to meet a premediated goal. But I am satisfiedof the alternative requirement, that Mr Turi has limited self-regulatorycapacity in terms of the unfortunately named s 107IAA(2)(b)(ii).14(d) I am satisfied Mr Turi displays an absence of understanding for, orconcern about, the impact of his violence on victims.[17] Accordingly, for the purposes of the ISO application and on the basis of theinformation before me, I determine there is a very high risk that Mr Turi will commita relevant violent offence.[18] In terms of the proposed conditions, the test for these is not the same as paroleconditions. Nor is an ISO a punishment for breach of release conditions. Theconditions of the ISO should be the least restrictive conditions necessary to adequatelymitigate the risk of future offending that is the point of the ISO, until the ESO hearingin a few months. To mitigate that risk, I am not satisfied there is a sufficientlydemonstrated reason to prohibit him from entering the Wellington and Bay of Plentyregions or to subject Mr Turi to electronic monitoring. I also do not consider theproposed curfew is justified. And I do not set up Mr Turi to fail by prohibiting him12 Department of Corrections Health Assessment Report to National Commissioner CorrectionsServices (22 September 2020) at [57].13 At [57].14 At [62].from associating with his family members of the Mongrel Mob as responsiblyacknowledged by counsel for Corrections.Orders[19] I grant the application for an Interim Supervision Order for Mr Turi, on theconditions that he is:(a) to reside at an address approved in writing by a Probation Officer, andnot move from that address unless he has the prior written approval ofa Probation Officer;(b) not to contact the family members of the victim of the 2012 offending;(c) not to possess, use, or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs prescribed to him bya health professional;(d) not to communicate or associate with his co-offender Desmond Leafdirectly or indirectly, unless he has the prior written approval of aProbation Officer; and(e) not to have contact with any person(s) who are members or associatesof the Mongrel Mob except for immediate family members, unless hehas prior written approval of a Probation Officer.Palmer J