CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v GRAY [2021] NZHC 2364 [10 September 2021]

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v GRAY [2021] NZHC 2364[10 September 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-404-20[2021] NZHC 2364BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND KAAHU HIRIAM GRAYRespondentHearing: 8 September 2021Counsel: F E Cleary for the ApplicantJ McLeod for the RespondentJudgment: 10 September 2021JUDGMENT OF GWYN JIntroduction[1] Mr Gray is the subject of release conditions, which expire on 10 September2021. The Department of Corrections (the Department) applies for an interimsupervision order (ISO) under s 107FA of the Parole Act 2002 (the Act), pendingdetermination of its application for an extended supervision order (ESO).[2] Mr Gray was previously the subject of an ISO granted by Isac J on5 March 2021 for a period of 10 working days.1 It appears that order was madebecause the application for an ISO that was before Isac J did not refer to the existenceof the release conditions, expiring on 10 September 2021.1 Chief Executive of the Department of Corrections v Gray [2021] NZHC 392.[3] An application for an ESO was made on 13 January 2021. The ESO iscurrently scheduled to be heard on 11 October 2021, after expiry of Mr Gray's releaseconditions.[4] The Department also seeks the imposition of special conditions in addition tothe standard ESO conditions which will apply, as set out in the attached schedule.[5] Mr Gray opposes the application.Mr Gray's criminal history[6] Mr Gray is 33 years of age.[7] In 2014, Mr Gray was convicted and sentenced to seven years, six months'imprisonment for charges of contravening a protection order, breaching releaseconditions, and wounding with intent to cause grievous bodily harm in 2013.2Mr Gray stabbed his then domestic partner twice to the chest and punched herrepeatedly, in a concerted and prolonged attack, after she ended their relationship. Thevictim suffered life-threatening injuries and required surgery. At the time, Mr Graywas subject to both a protection order and release conditions. In sentencing Mr Gray,Duffy J noted the aggravating features of the offending were extreme violence andattacks to the head, the serious injuries the victim sustained, the use of a weapon, thevulnerability of the victim, and the fact the offending involved a home invasion.3Justice Duffy "came close" to imposing a sentence of preventive detention, andencouraged Mr Gray to make use of rehabilitative courses offered by the Department.4[8] Prior to that offending, Mr Gray had a significant history of violent offending,including five convictions of male assaults female, common assault, wounding withintent to cause grievous bodily harm, robbery by assault, possession of an offensiveweapon, and numerous instances of violence while in custody. Mr Gray also has anextensive Youth Court history, and multiple convictions for breaching home detention2 R v Gray [2014] NZHC 789.3 At [64].4 At [102].and release conditions. It is unnecessary to detail all of Mr Gray's criminal history,but I briefly record the most relevant aspects here.[9] In 2013, Mr Gray was sentenced to six months' imprisonment for two chargesof male assaults female.5 After an argument with his then partner, he grabbed her arm,forced her onto the bed, and straddled her. Later, he struck her on the side of her facewith his hand, and again straddled her on the bed and injured her neck.[10] In 2012, Mr Gray was sentenced to one month imprisonment for one charge ofmale assaults female.6 After an argument with his then partner, Mr Gray hit her headwith an empty can, held her in a headlock, and strangled her. I observe thatstrangulation has been a separate offence since 2018, because strangulation in familyviolence circumstances is related to a higher risk of a future fatal attack by theperpetrator on the victim.7 He later presented a knife at her.[11] In 2010, Mr Gray was sentenced to one year, 10 months' imprisonment forrobbery (by assault).8[12] In 2007, Mr Gray was sentenced to four years' imprisonment for one charge ofwounding with intent to cause grievous bodily harm.9 Mr Gray was at an event andgot into a physical fight next to the victim's car. When the victim went to investigate,Mr Gray attacked him and stabbed him in the abdomen. The attack only stopped whensomeone else intervened. The victim required hospital treatment.Legislative framework[13] Under s 107I(1) of the Act, the purpose of an ESO is "to protect members ofthe community from those who, following receipt of a determinate sentence, pose areal and ongoing risk of committing serious sexual or violent offences". Unders 107I(2), the Court may make an ESO if satisfied, relevantly, that:5 Police v Gray DC Tauranga CRI-2013-070-1268, 1 May 2013.6 Police v Gray DC Rotorua CRI-2011-063-4547, 3 May 2012.7 Crimes Act 1961, s 189A; maximum penalty seven years' imprisonment. Law CommissionStrangulation: The Case for a New Offence (NZLC R138, 2016) at [8.1]-[8.2].8 R v Gray DC Rotorua CRI-2010-069-80, 22 September 2010.9 R v Gray DC Hamilton 2006-024-446, 1 May 2007.(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) either or both of the following apply:(ii) there is a very high risk that the offender will in future commita relevant violent offence.[14] 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.[15] In 2006, in Chief Executive of the Department of Corrections v Alinizi, theCourt of Appeal characterised an ESO as involving a three-step process:10(a) First, the Court must determine whether the offender has, or has had, apervasive 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.10 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].(c) Third, if those criteria are met, the Court must make a determinationabout the risk of the offender committing a relevant sexual or violentoffence.[16] An ISO may be made under s 107FA of the Act. The relevant parts of thatsection provide:107FA Sentencing court may make interim supervision order(1) This section applies if, before an application for an extendedsupervision order is finally determined, 1 or more of the followingevents occur:(a) the offender who is the subject of the application is releasedfrom detention:(2) The sentencing court may, on application by the chief executive, orderthat, until the application for an extended supervision order is finallydetermined, the offender is subject to the supervision conditionsspecified in the order.(3) When the court makes an interim supervision order, it may imposeany of the standard conditions that are (under section 107JA), orspecial conditions that may be (under section 107K), imposed underan extended supervision order.(4) If, under an interim supervision order, the court imposes an intensivemonitoring condition or residential restrictions, the period for whichthe interim supervision order is in force is not to be taken into accountfor the purpose of the limits specified in section 107K(3)(b) and (ba).(5) The court may suspend an interim supervision order subject to anyconditions that the court thinks fit.(6) An interim supervision order ceases to have effect when theapplication for an extended supervision order is finally determined ordiscontinued.[17] The grant of an ISO is an interim measure pending the determination of anapplication for an ESO. An application for an ISO must be considered against thecriteria for an ESO. Justice Muir, in Chief Executive of the Department of Correctionsv Ihimaera, considered that to grant an ISO, the Court should be "satisfied, albeit on aprovisional basis and often on untested evidence, that the statutory criteria for an ESOare made out."11 I follow that approach here.11 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14].[18] There must also be a nexus between the perceived risk posed by the offenderand the effectiveness of a proposed condition,12 and the discretion to impose an ISOmust be exercised consistently with the rights and freedoms guaranteed by theNew Zealand Bill of Rights Act 1990 (NZBORA).13SubmissionsThe Department[19] Ms Cleary, for the Department, relies first on Mr Gray's significant history ofviolent offending. Since his release into the community on conditions, Mr Gray hasresumed a relationship with a previous partner, Ms R. On 29 August 2021 the ArmedOffenders Squad was deployed to the address where he was living with Ms R. Theprimary occupant of the address had phoned the police and told them that Mr Graywas beating up Ms R and had a gun. When spoken to by the Police, the primaryoccupant of the residence said that Mr Gray regularly beats up Ms R, and expressedher view that he will eventually kill her. The primary occupant said Ms R had beenbadly beaten up by Mr Gray several weeks earlier, and she had lost her job becauseMr Gray refused to let her leave the house.[20] Ms R downplayed the violence and did not wish to discuss anything in detailwith the Police. She made it clear to them that she wished to remain in a relationshipwith Mr Gray.[21] Mr Gray's Probation Officer has also advised that:(a) Mr Gray took an alcohol and drug test on 1 September 2021 due to GPSdata indicating that he had spent time at an address at which drugs arethought to be present. Ms Cleary advised at the hearing that the resultsof that testing were negative.(b) Mr Gray's GPS monitoring showed that he travelled extensivelynotwithstanding the recent level four COVID restrictions.12 Chief Executive of the Department of Corrections v Turi [2021] NZHC 1429 at [11].13 Department of Corrections v Thorpe [2017] NZHC 2559 at [14].Mr Gray[22] Ms McLeod, for Mr Gray, submits Mr Gray's use of violence appears to havereduced since 2017. In terms of the recent allegations relating to Ms R, Mr Grayalleges the primary occupant of the house made a false complaint to Police.Significantly, the Police did not find a gun and there was no physical evidence of injuryto Ms R. Mr Gray advised the Court that Ms R is also his partner in business ventureshe is trying to establish to get back on his feet. He says her support to him is crucial.Ms McLeod also submits that the person who Mr Gray visited during lockdown is hisbiological cousin, and she points to the negative drug test taken on 1 September.[23] Overall, Ms McLeod submits none of the limbs of the s 107IAA(2) test aremade out.Analysis[24] To assist in assessing the risk Mr Gray poses at this interim stage, I haveMr Gray's criminal history, together with previous sentencing decisions (referred toabove). I also have a health assessment report from Jacques Taylor, psychologist,dated 11 November 2020, filed in support of the ESO application (the health assessor'sreport). In referring to that report, I am conscious that this assessment was conductedwithout Mr Gray's participation, which means there are some limitations on itsfindings, and Mr Gray has not yet filed a health assessor report. Given the lack of upto date information I have from Mr Gray, I consider his post-release behaviour (inparticular, the allegations about Ms R) is important in my assessment at this interimstage; although I do acknowledge it is only hearsay evidence at this point, and theDepartment will require more definitive evidence at the ESO hearing.Does Mr Gray have, or has he had, a pervasive pattern of serious violentoffending?[25] Ms McLeod accepts that "it is at least arguable" that Mr Gray has a pervasivepattern of serious violent offending. However, she notes that Mr Gray's use ofviolence appears to have reduced since 2017.[26] On balance, for the purposes of considering the application for an ISO, I acceptthat Mr Gray has a pervasive pattern of serious violent offending.14 His convictionsas detailed at [6]-[12] above indicate that. It is of particular concern that Mr Gray hasreceived multiple sentences of imprisonment, and appears to regularly violently offendagainst his intimate partners within a short period of time after release from prison.Is there a very high risk that Mr Gray will in future commit a relevant violentoffence?Is there evidence of an intense drive, desire, or urge to commit acts of violence?[27] There is evidence that Mr Gray has an intense drive, desire or urge to commitacts of violence.15 The health assessor's report records that Mr Gray's pattern ofoffending and institutional conduct suggests that he has harboured an intense drive,desire or urge to commit acts of violence across his lifespan. The health assessor'sassessment states it was not possible to accurately assess the intensity of Mr Gray'sdesire/urge/drive to commit violent acts, but the report writer did observe that thepresence of persistent and frequent verbal/threatening aggression is indicative of adrive remaining. While I acknowledge Ms McLeod's submission that some of theprevious information the health assessor drew on is now relatively old, the facts of theestablished offending indicate a clear drive, desire, or urge.Is there evidence of extreme aggressive volatility?[28] There is evidence of extreme aggressive volatility in Mr Gray's behaviour.16The health assessor's report notes that Mr Gray has displayed persistent and frequentaggressive volatility, evidenced by his criminal history, his early adolescent behaviour,violence-related misconduct charges, and his identified violence cycle. Theseriousness of Mr Gray's aggressive volatility (outside that of a partner relationship)does appear to have decreased since approximately 2017, when the last documentedmisconduct charge for fighting was recorded (while Mr Gray was in prison). However,given Mr Gray appears to pose most risk to his intimate partners, a decrease in violencewhile in prison is not entirely persuasive. On balance, having regard to the evidence14 Parole Act 2002, s 107I(2)(a).15 Section 107IAA(2)(a)(i).16 Section 107IAA(2)(a)(ii).of post-release violent behaviour by Mr Gray and without evidence to the contrary, Iaccept there is evidence satisfying this requirement.Is there evidence of persistent harbouring of vengeful intentions towards one or moreother persons?[29] At the time of the health assessor's report, it was not possible to assessMr Gray's insight into violence-supportive attitudes, his engagement in rumination, orhis opinions and sentiments regarding revenge attacks.17 The report writer observedprison case notes indicated that Mr Gray continued to act with a sense of entitlement,engaged in volatile and reactive verbal aggression, and expressed suspiciousness attimes. However, the report writer was unable to clearly assess the extent to whichthese factors contribute to potential vengefulness. While I acknowledge thelimitations in the health assessor's view on this requirement, I consider Mr Gray'swell-established history of violence against both strangers and his intimate partners,together with the most recent allegations about Ms R, are evidence of vengefulintentions towards others (particularly his intimate partners).Does Mr Gray have limited self-regulatory capacity?[30] I am not persuaded there is evidence of clear and long-term planning of seriousviolent offences to meet a premeditated goal.18 But I am satisfied of the alternativerequirement, that Mr Gray has limited self-regulatory capacity.19 The health assessor'sreport expressed the view that Mr Gray's relevant violent offences reflectunpredictable and/or opportunistic circumstances which appear to trigger his sense ofentitlement and violence-supportive attitudes. Historically, Mr Gray has shownpersistent and frequent maladaptive self-regulatory capacity across multiple lifedomains. However, the report writer notes that Mr Gray has displayed signs ofapparent improved self-regulatory capacity (both in regard to violence severity andgeneral behaviour) over the two to three years prior to the report. The report writernotes that this apparent improvement remains relatively recent and untested in the17 Section 107IAA(2)(a)(iii).18 Section 107IAA(2)(b)(i).19 Section 107IAA(2)(b)(ii).community as at the date of the report, which was completed prior to Mr Gray'srelease.[31] In light of the reported violence in a domestic relationship context sinceMr Gray's release on conditions, combined with his criminal history, I am satisfied ofthis criterion.Does Mr Gray display an absence of understanding for or concern about the impactof his violence on actual or potential victims?[32] The report writer notes that a previous assessment of Mr Gray in 2013 foundthere was sufficient evidence to conclude that he displayed limited understanding foror concern about the impact of his violent offending on prior victims;20 both in regardto his ability to show remorse and empathy towards victims. At the time of theassessment, the report writer noted it was unclear what Mr Gray's ability was toexperience remorse and show empathy specifically towards prior victims. The reportwriter observes that prison case notes of Mr Gray's most recent term of imprisonmentindicate behaviours that could be interpreted as general deficits in his ability toexperience remorse and show empathy towards others. I am satisfied that Mr Graydisplays an absence of understanding for, or concern about, the impact of his violenceon victims.The risk of Mr Gray committing a relevant violent offence[33] As Isac J noted, on the health assessor's report it does not appear that the testin s 107I(2)(b)(ii) has been met, in that the report writer concludes that that there is ahigh risk, rather than a very high risk, that Mr Gray will in future commit a relevantviolent offence.21 However, the report writer noted:This risk estimate could increase to very high should the factors of substancemisuse/abuse, intimate relationship instability, weapon use, and affiliationwith criminal peers coincide during the same period of time.[34] While my consideration is necessarily on a provisional basis and on someuntested evidence, having reviewed the Police Family Harm Investigation Report from20 Section 107IAA(2)(c).21 Chief Executive of the Department of Corrections v Gray, above n 1, at [5(b)].August 2021 relating to the allegations of post-release violence by Mr Gray againsthis partner, and the information relating to Mr Gray's movements during the COVIDLevel 4 lockdown, I am satisfied that there is a very high risk that Mr Gray will commita relevant violent offence.[35] I emphasise that while I am satisfied on a provisional basis that the statutorytest is made out, it will be necessary for the Department to present an updated healthassessment at the hearing of the application for an ESO and, if it wishes to rely onpost-release conduct (including the alleged 29 August 2021 events), direct evidenceof such conduct.Conditions[36] The Department seeks the standard conditions in s 107JA of the Act, as well asthe additional conditions recorded in the attached schedule.[37] Ms McLeod submits condition (k), that Mr Gray not enter the Bay of Plentydistrict, is unnecessary. Ms Cleary acknowledged that the condition is sought toprotect the victim of Mr Gray's 2013 offending, but Ms McLeod says that Mr Grayhas not been in contact with that person and indeed it is not clear whether she still livesin the Bay of Plenty. Mr Gray considers the Bay of Plenty to be his home, and he hasancestral land there. He wishes to be able to reconnect with that land and his iwi, inparticular to be able to attend meetings as a shareholder in the relevant land.Ultimately he wishes to use his skills to build on the land, for the benefit of bothhimself and others. Given this offending was eight years ago, there is no evidenceMr Gray has been in contact with the victim, and his relevant violence offences weretypically acts of reactive violence not preceded by long-term planning, and theimportance of supporting Mr Gray's rehabilitation, I agree this condition isunnecessary. I instead impose a condition that Mr Gray is not to contact, directly orindirectly, the victim of his 2013 offending.[38] Ms McLeod submits that it is difficult to see how condition (d), that Mr Graybe subject to a curfew from 8.00 pm to 6.00 am daily, would mitigate any risk ofviolence. She submits that, anecdotally, leaving the house to take a walk when angryis one of the primary things taught on violence courses. I agree this condition isinappropriate.[39] Ms McLeod further submits that conditions (b) and (c), relating to electronicmonitoring, are unnecessary if conditions (d) and (k) are not imposed. I agree.[40] Ms McLeod also notes condition (g), that Mr Gray attend a reintegrationmeeting, is redundant as Mr Gray has already been released from prison. I agree.[41] I am satisfied that there is demonstrated reason for the remainder of specialconditions sought at [1](a), (e), (f), (h), (i), and (j) of the application for the ISO.Orders[42] I grant the application for an interim supervision order for Mr Gray, on thestandard conditions set out at 107JA, as well as the following special conditions:(a) Not to possess, use, or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs prescribed for you bya health professional.(b) To attend an alcohol and drug assessment, and attend, participate in andcomplete any treatment or counselling directed by a Probation Officer.(c) To attend a psychological assessment and attend, participate in andcomplete any recommended treatment as directed by a ProbationOfficer.(d) To disclose to a Probation Officer, at the earliest opportunity, details ofany intimate relationship which commences, resumes, or terminates.(e) To comply with any tenancy agreement or rules issued by the providerof your approved accommodation.(f) To reside at an address approved in writing by a Probation Officer, andnot move from that address unless you have the prior written approvalof a Probation Officer.(g) Not to contact, directly or indirectly, the victim of your 2013 offending.[43] Finally, I note that the application for the ESO is set down for hearing on11 October 2021. It is possible that date will need to be deferred because of theunavailability of expert witnesses, but Ms McLeod is to file a memorandum by closeof business on Friday 17 September 2021 advising on progress in contacting an expertwitness and indicating a timeframe for completion and filing of a report on Mr Gray'sbehalf. I confirm that Mr Gray must be present at the ESO hearing, whether on11 October 2021, or some later date.Gwyn JSolicitors:Crown Solicitor, WellingtonSchedule of ISO conditions sought by the Department[44] The standard conditions outlined in s 107JA of the Parole Act 2002 apply:107JA Standard extended supervision conditions(1) The standard extended supervision conditions are—(a) the offender must report in person to a probation officer in theprobation area in which the offender resides as soon aspracticable, and not later than 72 hours, after commencementof the extended supervision order:(b) the offender must report to a probation officer as and whenrequired to do so by a probation officer, and must notify theprobation officer of his or her residential address and thenature and place of his or her employment when asked to doso:(c) the offender must obtain the prior written consent of aprobation officer before moving to a new residential address:(d) if consent is given under paragraph (c) and the offender ismoving to a new probation area, the offender must report inperson to a probation officer in the new probation area inwhich the offender is to reside as soon as practicable, and notlater than 72 hours, after the offender's arrival in the new area:(e) the offender must not reside at any address at which aprobation officer has directed the offender not to reside:(ea) the offender must not leave or attempt to leave New Zealandwithout the prior written consent of a probation officer:(eb) the offender must, if a probation officer directs, allow thecollection of biometric information:(f) the offender must obtain the prior written consent of aprobation officer before changing his or her employment:(g) the offender must not engage, or continue to engage, in anyemployment or occupation in which the probation officer hasdirected the offender not to engage or continue to engage:(h) the offender must take part in a rehabilitative and reintegrativeneeds assessment if and when directed to do so by a probationofficer:(i) the offender must not associate with, or contact, a personunder the age of 16 years, except—(i) with the prior written approval of a probation officer;and(ii) in the presence and under the supervision of an adultwho—(A) has been informed about the relevantoffending; and(B) has been approved in writing by a probationofficer as suitable to undertake the role ofsupervision:(j) the offender must not associate with, or contact, a victim ofthe offender without the prior written approval of a probationofficer:(k) the offender must not associate with, or contact, any person orclass of person specified in a written direction given to theoffender for the purposes of this paragraph.(2) In this section, contact includes communicating, or attempting tocommunicate, with a person by any means, such as by telephone orvia the Internet.[45] In addition, the Department seeks the following special conditions:(a) Not to possess, use, or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs prescribed for you bya health professional.(b) To submit to electronic monitoring as directed by a Probation Officerin order to monitor your compliance with any conditions relating toyour whereabouts.(c) To comply with the requirements of electronic monitoring and provideunimpeded access to your approved residence by a Probation Officerand/or representatives of the monitoring company for the purpose ofmaintaining the electronic monitoring equipment as directed by aProbation Officer.(d) To be at your approved address between the hours of 08.00 pm and06.00 am daily unless you have the prior written approval of aProbation Officer.(e) To attend an alcohol and drug assessment, and attend, participate in andcomplete any treatment or counselling directed by a Probation Officer.(f) To attend a psychological assessment and attend, participate in andcomplete any recommended treatment as directed by a ProbationOfficer.(g) To attend a reintegration meeting as directed by a Probation Officer.(h) To disclose to a Probation Officer, at the earliest opportunity, details ofany intimate relationship which commences, resumes, or terminates.(i) To comply with any tenancy agreement or rules issued by the providerof your approved accommodation.(j) To reside at an address approved in writing by a Probation Officer, andnot move from that address unless you have the prior written approvalof a Probation Officer.(k) Not to enter the Bay of Plenty District, as defined by a Probation Officerin writing unless you have the prior written approval of a ProbationOfficer.