CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v JOE [2020] NZHC 351

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v JOE [2020] NZHC 351 [3 March 2020]ORDER PROHIBITING IDENTIFICATION OF COMPLAINANTSPURSUANT TO S 203 OF THE CRIMINAL PROCEDURE ACT 2011 AND S 139OF THE CRIMINAL JUSTICE ACT 1985.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-194[2020] NZHC 351BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND KITIONA JOERespondentHearing: 31 October 2019 (supplementary submissions filed on8 November 2019)Appearances: B Charmley and L Sullivan for the ApplicantJ Grainger for the RespondentJudgment: 3 March 2020JUDGMENT OF GAULT JThis judgment was delivered by me on 3 March 2020 at 2:30 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Ms B Charmley and Ms L Sullivan, Kayes Fletcher Walker, Office of the Crown Solicitor, ManukauCityMr J Grainger, Public Defence Service, Auckland[1] The Chief Executive of the Department of Corrections applies for an extendedsupervision order (ESO) in respect of the respondent, Mr Joe, for a term of seven yearsunder s 107I of the Parole Act 2002 (the Act). The grounds are that Mr Joe has apervasive pattern of serious sexual offending, and there is a high risk he will commita relevant sexual offence in the future. As required, the application was accompaniedby a report from a health assessor,1 Ms Batley, a registered clinical psychologist.[2] Mr Joe opposes the ESO being made. He disputes that there is a high risk thathe will in future commit a relevant sexual offence. He relies on a report from anotherpsychologist, Ms Isaacson. She disagrees with Ms Batley's report in several materialrespects, including as to there being a high risk that Mr Joe will commit a relevantsexual offence in the future.[3] Both Ms Batley and Ms Isaacson gave evidence at the hearing.The statutory regime[4] Part 1A of the Act provides jurisdiction for the making of ESOs, lasting up to10 years at a time, where offenders have been convicted of certain offences and havebeen assessed by a health assessor.2 The purpose of an ESO is to protect members ofthe community from offenders who, after serving a determinate sentence, pose a realand ongoing risk of committing serious sexual or violent offences.3 It does so throughthe imposition of a closely monitored regime of supervision and management of suchpersons. The threshold for making an ESO is high, reflecting the severe restrictionsthat it places on many facets of the recipient's life.4[5] Section 107I(2) sets out the grounds on which a Court may make an ESO:A sentencing court may make an extended supervision order if, following thehearing of an application made under section 107F, the court is satisfied,having considered the matters addressed in the health assessor's report as setout in section 107F(2A), that—1 Section 107F(2). The report addressed the matters required by s 107F(2A).2 Section 107A.3 Section 107I(1).4 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4]. See alsoChief Executive, Department of Corrections v T [2017] NZHC 2179 at [13].(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) there is a high risk that the offender will in future commit arelevant sexual offence:(ii) there is a very high risk that the offender will in future commita relevant violent offence.[6] In relation to the requirement for the Court to be satisfied that there is a highrisk that the offender will in future commit a relevant sexual offence unders 107I(2)(b)(i), s 107IAA(1) provides that a Court may determine that there is such arisk only if it is satisfied that the offender:(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence; 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 pastoffending:(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.[7] Section 107I(2) is framed in a way that leaves the Court with a discretion tomake an order. As Downs J said in Chief Executive, Department of Corrections vPopata, it would be exceptional not to make an order when the criteria had beenestablished.5 Statutory powers must be exercised in conformity with the purpose thatthe provision serves in the statutory scheme. The mandated criteria set a highthreshold and the purpose of an ESO is to protect members of the community.[8] If the Court decides to make an ESO, it must go on to determine the durationof the order. Section 107I(5) states that the term must be the minimum period requiredfor the purposes of the safety of the community in light of:(a) the level of risk posed by the offender; and5 Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [57].(b) the seriousness of the harm that might be caused to victims; and(c) the likely duration of the risk.[9] A person who is the subject of an ESO must comply with the standardconditions set out in s 107JA of the Act and any special conditions imposed by theParole Board under s 107K. In addition, the Court may impose special conditions onan interim basis (pending imposition of conditions by the Parole Board).6 Thestandard conditions regulate the offender's residential address, place of employment,rehabilitation and reintegration, and contact with young people, victims and otherclasses of persons if specified. Special conditions can include residential restrictionsand electronic monitoring. Breaching the conditions is an offence punishable byimprisonment of up to two years.7[10] After an ESO order has been made, s 107M provides that, on application byeither the offender or the Chief Executive, the Court may cancel the ESO if satisfiedon the basis of the matters set out in s 107IAA that the offender poses neither a highrisk of committing a relevant sexual offence, nor a very high risk of committing arelevant violent offence within the remaining term of the order.Issues[11] Following the statutory framework and the Court of Appeal's statement of theapproach in Chief Executive, Department of Corrections v Alinizi,8 the issues fordetermination are as follows:(a) Is Mr Joe an eligible offender under the ESO regime?(b) Does Mr Joe have, or has he had, a pervasive pattern of serious sexualoffending?6 Section 107IA.7 Section 107T.8 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].(c) Does Mr Joe meet the qualifying criteria set out in s 107IAA, listedabove at [6]?(d) Does Mr Joe present a high risk of committing a relevant sexual offencein the future?Eligible offender[12] There is no dispute that Mr Joe is an eligible offender sentenced to a finite termof imprisonment for a relevant sexual offence who has not ceased to be subject torelease conditions.9 He was sentenced on 10 May 2013 to six years and five months'imprisonment by Dobson J for sexual violation by unlawful sexual connection (x2),doing an indecent act on a boy under 12 and doing an indecent act on a boy between12 and 16.10 They are relevant sexual offences.11[13] Mr Joe was released on parole on 30 January 2019. He is subject to releaseconditions imposed by the Parole Board for six months from his sentence expiry date(9 October 2019). He will therefore cease to be subject to release conditions after8 April 2020.Pervasive pattern of serious sexual offending[14] Mr Grainger, counsel for Mr Joe, accepts that Mr Joe has, or has had,a pervasive pattern of serious sexual offending. I nevertheless address this issue asI need to be satisfied in relation to this threshold requirement and as Mr Joe's pastoffending is relevant to the predictive risk assessment.Relevant offending[15] Mr Joe has seven convictions for sexual offending. The first three convictionsrelate to the following offences committed between 1986 and 1990 for which he was9 Sections 107B and 107C.10 R v Joe [2013] NZHC 1047.11 Section 107B(2)(a), (j) and (k).sentenced to two years and three months' imprisonment in the District Court inFebruary 1991:12(a) indecent assault on a boy under 12 in 1986; and(b) indecent assault on a boy between 12 and 16 (x2) in 1989 and 1990.[16] The other four convictions relate to the offences for which he was sentenced in2013, referred to at [12] above. These four offences occurred between 2004 and 2012.[17] The summary of facts for the 1986 to 1990 offending records that the victimwas a young boy aged eight or nine, who was a neighbour. The 1986 charge involvedMr Joe (then aged 18 or 19) taking the young boy to his bedroom, lying on the bedand telling the victim that if he was allowed to kiss the victim he would give the victima game. The victim said no. Mr Joe pulled the victim towards him and kissed thevictim on the lips. The 1989 and 1990 charges (when Mr Joe was aged 22 to 23)related to regular offending every weekend for over a year against the same victim,then aged 12 to 13, that included Mr Joe kissing the victim on the lips and masturbatingthe victim. The background to this offending was that Mr Joe taught the victim to playpoker, the victim lost a large amount of money to Mr Joe and Mr Joe told the victimthat if he came over each week and had sex with him that he would reduce the amountowing.[18] The summary of facts for the offending in 2004 to 2012 (when Mr Joe wasaged between 36 and 45) records that the two victims were Mr Joe's [ ], T andB. In 2004, when T was 14, Mr Joe licked and sucked his testicles. In 2006, when Twas 16, Mr Joe licked and kissed his penis and testicles. In 2007 to 2008, Mr Joelicked and sucked on his penis. In addition to these specific incidents, similaroffending occurred regularly throughout the same four year period. This offendinggave rise to a representative charge of sexual violation by unlawful sexual connection.[19] Between September 2005 and September 2007, when B was aged 9 or 10,Mr Joe stimulated B's penis with his hand (indecent assault). Between September12 R v Joe DC Ōtāhuhu S1/91, 8 February 1991.2009 and March 2012, when B was aged 13 to 15, Mr Joe indecently assaulted B inthe same way on approximately seven or eight occasions.[20] Between September 2009 and September 2010, when B was aged 13, Mr Joesucked on B's penis. Between that incident and December 2011, when B was aged 13to 15, Mr Joe did so on a further three or four occasions. This offending gave rise tothe second representative charge of sexual violation by unlawful sexual connection.Serious sexual offending[21] Serious sexual offending is not defined in the Act and falls to be interpreted byreference to its ordinary meaning viewed against the purpose of this part of the Act.13Here, the sexual offending was serious. Sexual violation is the most serious type ofsexual crime. The indecent assaults also had aggravating features.14 The first isolatedoffence in 1986 is less serious considered on its own as it did not involve contact withprivate parts, but it featured inducement.Pervasive pattern[22] I consider Mr Joe has had a "pervasive pattern" of offending against youngboys. This Court has interpreted this requirement as not imposing a particularly highthreshold.15 Nevertheless, I note the definition of 'pattern' is "an arrangement or orderdiscernible in objects, actions, ideas, situations etc",16 and also the Court of Appeal'sfootnote in Shortcliffe v Chief Executive of the Department of Corrections that"Parliament's use of the word 'pervasive' is important".17[23] I acknowledge the significant gap between the two sets of offending from 1990to 2004 but I do not consider this negates a pervasive pattern. Indeed, it may be saidthat Mr Joe has had a pervasive pattern based on the 2004 to 2012 offences alone.In any event, I am satisfied, viewing his offending collectively, that Mr Joe has had a13 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44].14 See Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [40]-[44].15 Chief Executive, Department of Corrections v Martin [2016] NZHC 1060 at [35]; and ChiefExecutive of the Department of Corrections v Skudder [2016] NZHC 1717 at [54]-[55].16 Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007).17 Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 597 at [31], fn 23.See also Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [37].pervasive pattern of serious sexual offending notwithstanding the gap between the twosets of offences. The extent of offending (including representative charges) and itssimilarity (all involving boys under 16 and all except the 1986 offence involvingstimulating the victim's penis by hand or mouth) lead me to conclude that Mr Joe hashad a pervasive pattern of serious sexual offending.Does Mr Joe meet the qualifying criteria set out in s 107IAA?[24] Before dealing with the specific criteria required to be addressed by the healthassessor and the Court, I should refer to Mr Joe's background and the issues that haveconfronted him.[25] Mr Joe is of New Zealand and Cook Island Māori descent. He was subject toa whāngai arrangement at birth within his maternal family. He was spoiled anddeveloped beliefs of entitlement. At age eight he was periodically sexually violatedby a teenage family member. He became isolated and also became overweight. Heleft school at age 15 without formal qualifications due to feeling embarrassed becauseof his weight, reading difficulty and loneliness. He had labour type work at thefreezing works from age 16 to 18 but when the plant closed down he stayed home onthe benefit, engaged in comfort eating and increased his weight further. At age 20 hewas diagnosed with diabetes and other health complications due to obesity. In 2012(aged 44 to 45) his leg was amputated.[26] As a teenager he realised he was gay but typically denied it. He has not hadany stable intimate relationships. He has not gained independence as an adult; heremained living in the family home. Following his release on parole in January 2019,he resided in supported accommodation with People At Risk Solutions. Mr Joe is nowaged 52.[27] I turn to the qualifying criteria set out in s 107IAA.Does Mr Joe display an intense drive, desire, or urge to commit a relevant sexualoffence?[28] As Ms Charmley submitted for the applicant, the Court of Appeal in Alinizi hasconfirmed that "displays" in this context means that the relevant traits and behaviouralcharacteristics must be currently possessed or present but does not import arequirement that they must be externally manifested at the time of application.18[29] Also relying on the Court of Appeal's judgment in Alinizi, Ms Charmleysubmitted that an intense drive, desire, or urge to commit a relevant sexual offencewill be present "where there is nothing to suggest that such a trait formerly present nolonger subsists".19[30] Ms Charmley acknowledged that, although Mr Joe was not able to completethe Kia Marama group treatment programme due to lack of wheelchair access andthrough no fault of his own, he completed 25 individual treatment sessions with adepartmental psychologist from March 2017 until October 2018, so has done thingsto address his offending. The treating psychologist, Mr Louw, described Mr Joe'sparticipation positively and reported to Ms Batley that Mr Joe appeared motivateddespite having difficulty discussing his offending and reportedly tending not tocomplete between session tasks. Notwithstanding that positive participation,Ms Batley considered that Mr Joe has demonstrated an intense drive, desire, or urgeto commit a relevant sexual offence, particularly when the circumstances would affordease of victim access. Ms Batley considered that any treatment gains are likely toremain limited, recent, and untested outside the prison setting.[31] Ms Isaacson offered insight into Mr Joe's offending, describing him as havingan avoidant rather than active sexual offending pathway – intimacy deficit rather thandeviant sexual scripts. She emphasised the circumstances of Mr Joe's offendingagainst children known to him, and considered that he is reported to have developedadequate insight and a safety plan. She considered Mr Louw's treatment to beappropriate given Mr Joe's early sexualisation, intimacy deficit and cognitive18 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]-[27].19 At [36].distortions. She concluded that he does not currently display an intense drive, desire,or urge to commit a relevant sexual offence.[32] Ms Charmley acknowledged that my assessment in relation to this criteriondepends on whether I prefer the evidence of Ms Batley or Ms Isaacson as to whetherMr Joe's treatment has effectively mitigated this trait. But ultimately, I must make myown finding having considered the health assessors' reports and evidence.[33] Both experts are registered clinical psychologists with experience in relationto sexual offenders. Ms Batley qualified as a registered clinical psychologist in 2014.She has worked for the Department of Corrections since December 2015. She hasworked with child sexual offenders but was not able to say how many. Ms Isaacsonwas registered as a full clinical psychologist in 2005. After time at the Mason Clinic,she worked at the Department of Corrections and then Serco from 2008 to 2016 beforegoing into private practice, so she has over 15 years' experience in the Corrections andForensic Mental Health field, including considerable experience with high risk childand adolescent sexual offenders. Both experts spent some hours interviewing Mr Joe.[34] I accept Ms Batley's evidence that Mr Joe has in the past demonstrated anintense drive, desire, or urge to commit a relevant sexual offence. That is sonotwithstanding that his offending has been against children known to him and mayhave been curtailed by his lack of mobility. But the issue is whether he still displaysthat trait notwithstanding treatment, acknowledging that it need not be externallymanifested at the time of application. Ms Batley acknowledged in cross-examinationthat her conclusion is based largely on Mr Joe's history of offending and she is notnecessarily suggesting that he displays that characteristic now. That is a materialconcession.[35] As Ms Batley says, Mr Joe's treatment gains are relatively recent – but thatdoes not necessarily mean they are not real, especially when the treatment has beenonly recent through no fault of Mr Joe's. Even if he had not been prevented by hisdisability from attending the group programme, it was accepted this would likely havebeen near the end of his sentence.[36] I do not accept that Mr Joe has to be presented with opportunity to offend suchas victim access before it can be said that his previous intense drive or urge no longerexists. The treatment gains have been tested outside of the prison setting as Mr Joehas been released since January 2019 – although he has been subject to releaseconditions and therefore supported by the Department of Corrections. In that sense,they remain untested in an unsupported environment.[37] My main concern in relation to this criterion is whether the treatment gains arelimited as Ms Batley considers so as not to displace the trait evident in the past.Mr Louw's report indicates that Mr Joe made progress during treatment – the mostsignificant shift involved decreased cognitive distortions that minimised and justifiedhis offending. This indicates progress with insight. Mr Joe also developed a safetyplan. But I consider Ms Batley fairly described the gains as limited. As she explained,Mr Joe undertook 25 hours of individual treatment compared with approximately 315hours of group and individual treatment if he had completed the group treatmentprogramme. Mr Louw said Mr Joe's engagement fluctuated and explaining his safetyplan without prompts remained a challenge for him. Mr Louw considered it wasimperative that Mr Joe continue to learn his safety plan in a way that would enablehim to communicate it simply to others.[38] While Ms Isaacson concluded that Mr Joe does not currently display an intensedrive, desire, or urge to commit a relevant sexual offence, she was appropriatelydiffident in relation to the treatment gains, saying that Mr Joe is reported to havedeveloped adequate insight and a safety plan. That indicates reliance on Mr Louw'sreport. Overall, I consider that the level of insight and extent of the treatment gainsare not yet sufficiently clear to conclude that the intense drive, desire, or urge tocommit a relevant sexual offence present at the time of Mr Joe's offending is no longerpresent. Therefore, on balance, I am just satisfied that Mr Joe displays an intensedrive, desire, or urge to commit a relevant sexual offence.Does Mr Joe have a predilection or proclivity for serious sexual offending?[39] Both experts agreed that Mr Joe has a predilection or proclivity for serioussexual offending. Given his offending history against boys under 16, I am alsosatisfied in relation to this criterion.Does Mr Joe have limited self-regulatory capacity?[40] Ms Batley acknowledged that there is little evidence of impulsivity butconsidered that Mr Joe experienced difficulty regulating sexual impulses, reportingthat he had found victim resistance sexually arousing at times and indicating that easeof victim access primarily facilitated his offending. She also acknowledged thatself-regulatory capacity is indicated by his compliance with communityoversight/prison rules and a lack of observed sexual offending paralleling behavioursin prison – although his preferred victim profile is not likely to be available in theprison setting. She considered that Mr Joe tended to under-control emotion and thatthis contributed to impaired self-regulation of sexual impulses when combined with ahigh sense of entitlement and difficulty engaging in age appropriate intimaterelationships.[41] Ms Batley acknowledged that Mr Joe has engaged positively in treatment anddescribed alternative strategies that would likely assist him to self-regulate negativeemotionality – but he has not had the opportunity to demonstrate the ability togeneralise these skills in the community setting. In her updated report, she acceptedthat Mr Joe had, since her earlier report, had some opportunity to demonstrateself-regulatory behaviour in the community setting, albeit with professional oversightand support.[42] Overall, Ms Batley considered that Mr Joe is likely to have impairedself-regulatory capacity in the absence of being able to demonstrate it withoutprofessional oversight offered currently by probation services. She considered heseemed very reliant on professional support, and had very limited community or otherpersonal support that might be effective for him in relation to self-regulatory capacity.[43] Ms Isaacson's opinion was that Mr Joe does not present with impairedself-regulatory capacity. Rather than impulsive, she considered that his pattern ofsexual offending was largely planned and groomed through inducements and threats.Referring to Mr Joe's early childhood experiences and consequential obesity, sheconsidered that his sexual offending and fraudulent offending seemed to parallelperiods of poor self-regulation in coping with negative emotional states despite direconsequences.20 However, she noted he was able to manage his deviant sexualimpulses within the community for a period of 12 years before reoffending.[44] Mr Joe has clearly demonstrated limited self-regulatory capacity in the past,notwithstanding the gap between his two sets of sexual offending. But the question iswhether his self-regulatory capacity is limited now. That is not evident when he isprofessionally supported and he appears to have demonstrated some ability to utiliseprofessional support since his release, but I need to consider whether there remains anunderlying lack of self-regulatory capacity at least in the absence of such support.Again, this depends on an assessment of Mr Joe's treatment gains. Having concludedthey are limited, I consider, on balance, that Mr Joe still has limited self-regulatorycapacity.Does Mr Joe display either or both of: a lack of acceptance of responsibility or remorse for past offending: absence of understanding for or concern about the impact of his sexual offending?[45] The Court of Appeal has stated the Court must be satisfied the respondent hasan absence of understanding; the respondent is not required to show a completeunderstanding.21 I consider this applies equally to the lack of acceptance ofresponsibility or remorse. As Ms Charmley acknowledged, it is a question of degreehaving regard to the statutory purpose of mitigating risk.[46] Dealing first with acceptance of responsibility or remorse for past offending,Ms Batley acknowledged that Mr Joe has evidenced a gradual yet significant shiftduring treatment towards accepting increased responsibility for his offending andexpressing some empathy for the victims. She referred to his expressions of remorse20 This reference to fraudulent offending was to a bout of 23 offences in 1997 to 1998.21 P v Chief Executive of the Department of Corrections [2018] NZCA 599 at [49].but noted that he appears to have a strong sense of entitlement to have his needs metat the expense of others, which may contribute to him having difficulty articulating orexperiencing genuine remorse. She concluded that while Mr Joe verbalises acceptanceof responsibility and sentiments of remorse for his offending, the depth andgenuineness of such remorse and level of self-responsibility remain unclear. In heropinion the evidence seems mixed and Mr Joe's verbalisation of responsibility andremorse is very recent. She referred again to the treatment being recent and treatmentgains untested outside the prison setting.[47] In her updated report, Ms Batley reported that Mr Joe has acknowledged duringhis current treatment that a history of low self-esteem contributed to his offending.She considered that, when combined with his reported compliance with conditionsto date and references to a safety plan, these factors may reflect acceptance ofresponsibility but also that it appears he remains largely focused on his needs inrelation to his reintegration. Mr Joe had indicated that he wished to reconcile with thefamilies of his victims and seek forgiveness, and the treating psychologist hadconsidered that the primary motivation was to restore family relationships and supportsystems, rather than remorse or concern for his victims.[48] Ms Isaacson considered that prison records indicated that Mr Joe acceptedresponsibility for his sexual offending. He had struggled to express remorse but sinceengaging in treatment, he has been recognised for developing insight into the harm hissexual offending caused and identifying his responsibility to manage his impulses andhigh risk situations. Probation notes detail that Mr Joe has consistently expressedmotivation to desist from future offending. Ms Isaacson concluded that Mr Joe hasaccepted full responsibility and displayed genuine remorse for past sexual offending.She reported that, at interview, his sense of personal responsibility was somewhatpassive although his expressed remorse and regret appeared genuine.[49] Ms Charmley submitted there is mixed evidence and it appears Mr Joe'sacceptance of responsibility and remorse remain superficial. She acknowledgedMr Joe's positive progress in treatment to date but submitted he requires ongoingtreatment and oversight to reach the point where he fully accepts responsibility anddisplays genuine remorse for his offending.[50] Given that Ms Isaacson considered Mr Joe has accepted full responsibility anddisplayed genuine remorse, and Ms Batley said that the depth and genuineness of suchremorse and level of self-responsibility remained unclear, I am not prepared toconclude that Mr Joe's indications of accepting responsibility and of remorse are notgenuine. The remaining issue is whether his indications go far enough or whether alack of acceptance of responsibility or remorse remains.[51] I accept Ms Batley's concern that in some respects Mr Joe still appears self-focused but, in context, I do not consider that indicates a lack of acceptance ofresponsibility or remorse. Mr Joe's motivation for reconciliation with the families ofhis victims may be to restore family relationships and support systems. That may bepartly self-focused but I agree with Ms Isaacson that it does not negate his acceptanceof responsibility or remorse. Also, there is no suggestion he is seeking to place himselfin a high risk situation.[52] In relation to the "mixed evidence", Ms Charmley acknowledged this is not acase involving behaviour that undermines expressions of remorse. Ms Batley seemedto acknowledge in oral evidence that it is mainly Mr Joe's history which throws somedoubt on his expressed remorse. I note that the Department of Corrections report ofanother registered clinical psychologist, Mr Membery, for the Parole Board in October2018 stated that Mr Joe displayed appropriate remorse and empathy for his offendingactions and victims as evidenced through discussions. He displayed some insight intohis precipitance and inability to manage his sexual urges, substance use and a lack ofconsequential thinking contributed to his offending. Mr Joe reflected that he felt guiltand shame as he had caused his victims to experience the same psychological pain thathe experienced as a child through being sexually abused. Ms Batley stated that theParole Board reports are more general and more focused on risk and release planning,whereas her report specifically was asked to focus on the s 107IAA criteria. Therefore,she assessed remorse more comprehensively. That may be so, but I consider thepreponderance of evidence indicates that Mr Joe does now accept responsibility andhave remorse for his offending in a sufficiently meaningful way.[53] Overall, I am not satisfied that Mr Joe displays a lack of acceptance ofresponsibility or remorse for past offending.[54] Turning to understanding for or concern about the impact of his sexualoffending, Ms Batley considered that Mr Joe's offending reflects a lack of concern forhis victims due to the manipulation, inducements and threats used over a long period.She acknowledged that he appears to have gained insight into the impact of his sexualoffending on the victims subsequent to engaging in treatment but considered he maytend to minimise or over-simplify his offending. She said it was difficult to ascertainwhether this reflected a lack of insight or shame and/or culturally informed beliefsreferring to sexual matters, particularly with a female assessor, but nevertheless heexpressed some concern and empathy for the victims during the assessment. Sheacknowledged he appeared to have a clear understanding of the need to adhere to hissafety and relapse prevention plans and specifically to seek support to cope with highrisk situations. Ms Batley concluded that Mr Joe has gained some understanding forthe impact of his sexual offending on his victims but any treatment gains in this regardare recent and limited to the prison setting.[55] In her updated report, Ms Batley acknowledged that Mr Joe appeared to havean understanding of the need to identify potential high risk situations and a need toseek support should he experience lifestyle stresses, but continues to have limitedpersonal and community support. She said that Mr Joe seemed vague when referringto the impact on the victims of his offending should he attend a family occasion wherethey may also be present, appearing more concerned about the likely disapproval oftheir mother and reflecting that it was the victim's choice and that he was unsure howhe would manage this. In this context too, she considered that his self-report that heis seeking forgiveness from his family seems primarily focused on his needs, ratherthan a reflection of understanding for, or concern about, the impact of his offendingon his victims. She maintained her opinion in relation to this criterion, except that sheacknowledged that Mr Joe appears to have evidenced compliance with, andconsideration of, his safety plan over a brief period of time in the community whilesubject to oversight and remaining in supported accommodation.[56] Ms Isaacson considered that Mr Joe has a good understanding of and evidencesgenuine concern about the impact of his sexual offending on actual and potentialvictims and himself. She noted he expressed sadness that his victims likely hated himfor what he had done and acknowledged they would suffer longstandingconsequences. She also referred to Mr Louw's report as indicating a shift in Mr Joegetting to understand the harm he had caused.[57] Ms Charmley acknowledged Mr Joe's recent positive progress in treatment butsubmitted that his insight into the impact his offending has had on his victims remainslimited. She submitted that he appears to be largely focused on the damage hisoffending has caused to familiar relationships and his own support structures, ratherthan the impact on the victims personally. She submitted that Mr Joe has not displayedsufficient understanding or concern for his victims such that behavioural andpsychological checks will prevent him from reoffending in the future.[58] As indicated, the recency of Mr Joe's treatment is not his fault. I acceptMs Batley's evidence that at times Mr Joe appeared vague or required promptingaround aspects of his safety plan. Mr Louw indicated this. But I do not infer fromany remaining difficulty articulating the detail of his safety plan that Mr Joe displaysan absence of understanding for or concern about the impact of his sexual offending.Mr Louw did not suggest that.[59] Ms Batley explained in evidence that her statement in her updated report thatMr Joe had an "intellectual understanding" of his safety plan meant that Mr Joe didnot seem to appreciate the impact of some of his reintegration goals potentially on thevictims. She would have expected him, when verbalising his reintegration plans,perhaps to volunteer how that may impact on his victims and how he would intend tomanage that potential risk or potential impact on him. But again I do not infer fromthis an absence of understanding for or concern about the impact of his sexualoffending. Ultimately, Ms Batley acknowledged that Mr Joe has gained someunderstanding of the impact of his sexual offending on his victims.[60] Taking into account the various reports and the oral evidence, includingMs Batley's acknowledgements, I accept Ms Isaacson's evidence that Mr Joe now hasa good understanding of and evidences genuine concern about the impact of his sexualoffending. I am not satisfied that Mr Joe displays an absence of understanding for orconcern about the impact of his sexual offending.[61] These two limbs of s 107IAA(1)(d) are alternatives but I have concluded thatneither is satisfied in this case.Conclusion[62] Accordingly, I conclude that not all the qualifying criteria in s 107IAA aresatisfied. In those circumstances, I cannot be satisfied that there is a high risk thatMr Joe will in future commit a relevant sexual offence under s 107I(2)(b)(i) andtherefore may not make an ESO.[63] Nevertheless, in case I am wrong about the qualifying criteria, it may be helpfulif I address my risk assessment.Does Mr Joe present a high risk of committing a relevant sexual offence in thefuture?[64] Here too, the experts differed.[65] In evaluating the risk that Mr Joe would commit further relevant sexualoffences, Ms Batley applied three different risk assessment tools:(a) RoC*RoI: an actuarial risk measure developed for the Department ofCorrections to assist in the production of an offender's risk ofreimprisonment, which is based on static predictors (unchangeable byindividual effort) from criminal history information.(b) The Automated Sexual Recidivism Scale – Revised (ASRS-R): a briefactuarial static risk screening instrument designed to estimate thelikelihood of further convictions for sexual offences among offenderswho have already been sentenced in the District Court or High Courtfor a sexual offence, which is electronically generated from theoffender's official criminal record.(c) The Violence Risk Scale – Sexual Offender Version (VRS-SO): a tooldeveloped specifically for use with sexual offenders, designed tointegrate information relating to risk assessment, treatment planning,and changes in risk as a result of treatment, which includes both staticfactors, such as gender and convictions, and also dynamic risk factorsthat are amenable to change.[66] Applying the RoC*RoI, Ms Batley assessed Mr Joe as being at low risk ofreimprisonment within five years. Applying the ASRS-R, Ms Batley assessed Mr Joeas being at medium-low risk of further sexual offending. Applying the VRS-SO,Ms Batley assessed Mr Joe as being at high risk of reoffending (at the lower end ofthe high risk category – she acknowledged in cross-examination she scored Mr Joe atthe very bottom of the high risk band). Overall, using this multi-method assessment,Ms Batley considered there is a high risk of Mr Joe committing a further relevantoffence while in the community. She elaborated that should he reoffend, it is likely tobe against a pre-pubescent or pubescent male (or possibly female) who is either relatedor known to him and be premeditated, with the use of grooming behaviours as well asthreats and inducements to assist him maintain victim access and compliance.[67] Ms Isaacson applied the Static-99R (on which ASRS-R is substantively based)and VRS-SO methods. She explained that Static-99R is internationally recognised asthe best validated actuarial measure of static risk for sexual offending – it is consideredthe international gold standard for assessment of sexual recidivism risk. Ms Isaacsonconsidered that combining Static-99R with the VRS-SO dynamic risk factors performsbetter than using the VRS-SO static and dynamic risk factors only.[68] Applying Static-99R, she assessed Mr Joe as being of above average risk.Applying VRS-SO, she assessed Mr Joe as being of average risk. Overall, also usingthe multi-method assessment, Ms Isaacson considered Mr Joe presents with an aboveaverage (medium-high) risk of sexual reoffending.[69] Ms Isaacson also noted that Mr Membery of Corrections had assessed Mr Joeas medium-high risk in October 2018. Ms Batley explained that the differencebetween her conclusion and Mr Membery's merely reflected the fact that she had usedan updated VRS:SO manual and that they were not very far apart even though she wasin the lower end of high risk.[70] It is necessary to address two respects in which the experts differed in theirapplication of VRS-SO. First, it emerged in evidence that a difference between theexperts' application of a static component of VRS-SO was that Ms Isaacsoncharacterised Mr Joe with a child victim profile, whereas Ms Batley characterised himas a mixed offender because his victims included persons aged 14 or above.This follows a 2017 clarification in the scoring rules, changing from sex offender typeto sexual offence victim profile. Characterising Mr Joe as a mixed offender results ina slightly higher score. Ms Isaacson acknowledged that with one unrelated and onerelated victim aged 14 when Mr Joe first offended against the victim, that wouldtechnically categorise Mr Joe as a mixed adult/teen and child offence victim profile.She said, however, that given the continuity of under-age males, the author of VRS-SOhas suggested that Mr Joe could also be classified as having a child victim profile.This results in a two point score difference. Ms Isaacson did not dispute thatMs Batley's VRS-SO static assessment was technically correct – in aggregate theywere only a point apart – but as indicated Ms Isaacson favoured using Static-99Rrather than the VRS-SO statics in her overall risk parameter.[71] Secondly, there was also a difference between the experts in relation to thedescription of the risk bands applying VRS-SO. Ms Isaacson preferred to use the newrisk categories in the 2017 manual, which she explained are used not only in VRS-SObut also in Static-99R, whereas Ms Batley said the Department of Corrections hadchosen not to use the new category descriptions, which she considered involvedchanging the way risk was communicated rather than the risk itself. The descriptionchanges are as follows:Previous risk labels Total scoreLow 0-20Moderate-low 21-30Moderate-high 31-40High 41-722017 risk labels Total scoreVery low 0-14.5Below average 15-24.5Average 25-39.5Above average 40-49.5Well above average 50-72[72] I accept that Ms Batley has adopted the 2017 clarification in the scoring rulesbut not the new risk category descriptions, and that Department policy is not itself asufficient reason for continuing to use the earlier descriptions when the 2017 manualhas changed them.[73] However, the disadvantage of the new descriptions is that they do not neatlyalign with the need for a high risk of committing a relevant sexual offence in the ESOregime. The new descriptions, which Ms Isaacson explained were based on updatedinternational normative data indicating that sexual recidivism is declining, essentiallysplit the high risk category into two sub-categories of above average risk and wellabove average risk, albeit that the lowest score for above average is one point belowthe score for high under the previous categorisation (apparently as a consequence ofthe treatment of half marks). Neither expert suggested that lowering the cut-off byone point between the re-labelled categories was significant, nor that the re-labellingin VRS-SO had any particular relevance to my assessment of high risk in terms of theAct. Using the new descriptions, a well above average VRS-SO score and even anabove average score (at least above 40, the bottom of the category) corresponds to theprevious high risk score. A score of 40 at the bottom of the new above averagecategory would have been at the top of the previous moderate-high category.[74] While I need to understand the different descriptions used by the two experts,I need not determine how the VRS-SO risk categories are best described. The Courtultimately must assess whether the risk of committing a relevant sexual offence is highas required by the Act, not according to VRS-SO or another assessment tool.As Heath J said in Bradbury (No 2), care must be taken that the available actuarialtools align sufficiently with the mandated statutory criteria.22 The Court is assisted by22 Chief Executive of the Department of Corrections v Bradbury (No 2) [2016] NZHC 2816 at [35].assessors addressing whether the risk is high as required by the Act, whichever riskcategory labels are adopted in relation to VRS-SO. Ms Batley acknowledged thatwhen she expressed her opinion that the risk is high, she meant high as understoodwithin that (VRS-SO) categorisation. In considering the experts' risk assessment aspart of my own assessment of the level of risk, I focus on their overall evidence ratherthan the VRS-SO category labels.[75] In relation to the dynamic factors, Ms Isaacson scored Mr Joe lower thanMs Batley. One aspect was measuring change given that Mr Joe was in a custodialenvironment and then in supported accommodation. Ms Isaacson did not agree withMs Batley's initial assessment of sexual deviant lifestyle being at the highest level andthen giving no discount for treatment. Also, one of the VRS-SO dynamic risk factorsis insight. Ms Batley scored Mr Joe towards the high end. Given the mixed evidencein relation to Mr Joe's level of insight reflected in my discussion of the two limbs ofs 107IAA(1)(d) above, I consider that a lower score could well have been appropriate,which Ms Batley accepted would put him in the lesser band.[76] Following counsel's submissions about the differing risk categoryterminology, a difference arose as to the meaning of "high risk" in the Act.Mr Grainger submitted that "high risk" meant compared with other sexual offenders,that is above average, whereas Ms Charmley submitted no such comparison isrequired. I gave leave for the parties to file supplementary submissions. Ms Charmleydid so, referring to the statutory purpose in s 107I(1) and the Court of Appeal'sreference in Wharton to its earlier observation in Belcher, that risk be "both real andongoing and one that cannot sensibly be ignored having regard to the nature andgravity of the likely reoffending".23 I also bear in mind that, at the time Belcher wasdecided, s 107I of the Act required the Court to be satisfied that the offender was"likely" to commit a relevant offence whereas now the Court must be satisfied a"high risk" exists. But I do not consider that the "high risk" test involves a comparison23 Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 at [14]; Belcher vChief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [11].with other sex offenders. The test requires an individualised assessment of risk.24Ultimately, the decision-making exercise is fact-specific and evaluative.25[77] Stepping back, I consider that the professional treatment undertaken by Mr Joein custody and subsequently, including his acknowledgement of the impact of hisoffending, development of a safety plan and adherence to it following his release, haslessened his risk of reoffending. Overall, irrespective of the category labels, I am morepersuaded by Ms Isaacson's professional assessment of Mr Joe's level of insight intohis offending following treatment and interview, and the overall level of risk. I am notsatisfied there is a high risk that Mr Joe will in future commit a relevant sexual offence.[78] I also note that Mr Joe is registered as a child sex offender and therefore has apolice case manager to provide oversight and monitoring. Ms Batley accepted that isa professional support. Mr Joe would have to report to police if he were to live witha child or become involved with an organisation that includes children, which wouldbe obvious risk factors. Without suggesting that is the same as the position under anESO, where a person cannot have contact with a child without the prior approval of aprobation officer, it is a protective factor relevant to the risk assessment.26 AsMs Charmley submitted, the degree of oversight by a probation officer under an ESOwould be much greater. When asked whether Mr Joe required the additional oversightof an ESO, Ms Batley said that in her opinion he would benefit from it. However,I have indicated that the threshold for making an ESO is high, reflecting the severerestrictions that it places on many facets of the recipient's life.27 Perceived benefit tothe offender is not a substitute for the high risk of reoffending threshold.[79] I conclude that the pre-requisites for making an ESO have not been established.Duration of the order[80] Even if an order were appropriate, I consider the minimum period required forthe purposes of the safety of the community having regard to the statutory factors24 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52]; and Chief Executive of the Department ofCorrections v Bradbury (No 2) [2016] NZHC 2816 at [34].25 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [21].26 Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 at [37].27 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4].would be considerably less than seven years.28 That period should be the minimumrequired for Mr Joe's treatment gains to be confirmed and enhanced to ensure his riskof re-offending is no longer high. I consider two years would have been the minimumperiod required.Result[81] The application is dismissed.________________________________Gault J28 Parole Act 2002, s 107I(5).