DEPARTMENT OF CORRECTIONS v KEPU [2022] NZHC 2044

DEPARTMENT OF CORRECTIONS v KEPU [2022] NZHC 2044 [18 August 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-383[2022] NZHC 2044BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND LATU SAVELIO HALANGINGIE KEPURespondentHearing: 14 July 2022Appearances: BD Tantrum and OR Thomson for the ApplicantDJ Dufty for the RespondentJudgment: 18 August 2022JUDGMENT OF FITZGERALD[Application for Extended Supervision Order]This judgment was delivered by me on 18 August 2022 at 10.30 amRegistrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandTo: D Dufty, AucklandIntroduction[1] The Chief Executive of the Department of Corrections (the Chief Executive)applies for a five-year extended supervision order (ESO) in respect of Mr Kepu. Thisfollows the granting of an interim supervision order (ISO) by Peters J on 13 October2021.1[2] Mr Kepu opposes the application.Factual background[3] Mr Kepu has an extensive criminal history, which I set out in more detail laterin this judgment. For present purposes, it is helpful to outline the events followingMr Kepu's release after serving his most recent prison sentence, which included asentence of six years and four months for the manslaughter of a prison officer.2Mr Kepu was released after serving a composite sentence of 12 years and five months'imprisonment for violent offending, including the manslaughter offending.[4] Mr Kepu was released from prison on 13 April 2021. On his release, he wassubject to the standard conditions of release, as well as special conditions imposed bythe Parole Board, which included:(a) to submit to electronic monitoring as directed by a probation officer;(b) to remain at his approved address between the hours of 8 pm and 8 amdaily, unless he has the prior written approval of a probation officer, oras permitted by s 33(4) of the Parole Act 2002 (the Act);(c) not to enter any area north of Warkworth as defined by a probationofficer in writing unless he has the prior written approval of a probationofficer; and1 Chief Executive of the Department of Corrections v Kepu [2021] NZHC 2745 [ISO decision].2 R v Kepu HC Hamilton CRI-2010-019-4803, 17 September 2010 [Manslaughter sentencingnotes].(d) not to possess, use or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs prescribed for him bya health professional.[5] The condition not to travel north of Warkworth responded to concerns of thefamily of Mr Kepu's manslaughter victim, who live north of Auckland and wereconcerned that he might approach them.[6] Mr Kepu's release conditions continued for six months from his statutoryrelease date, expiring on 17 October 2021.3[7] Since his release, Mr Kepu has been convicted and sentenced on five additionalcharges:(a) breaching his release conditions by failing to abide by his curfew (dated21 May 2021);(b) breaching his release conditions by tampering with and removing hiselectronic monitoring device (between 10 September 2021 and13 October 2021);4(c) possession of a knife in a public place (dated 21 May 2021);(d) driving in a dangerous manner (dated 12 May 2022); and(e) failing to stop when followed by red and blue lights (dated 12 May2022).[8] On 12 August 2021, the Chief Executive applied to this Court for an ESO inrespect of Mr Kepu. Given the proximity of the application to the expiry of Mr Kepu'srelease conditions, the Chief Executive sought an ISO. The following specialconditions were proposed:53 Parole Act 2002, s 18(2).4 Representative charge.5 ISO decision, above n 1, at [51].(a) to reside at an approved address, and not move from that address unlessMr Kepu has the prior written approval of a probation officer;(b) not to enter any area north of Warkworth as defined by a probationofficer in writing unless he has the prior written approval of a probationofficer;(c) to submit to electronic monitoring as directed by a probation officer inorder to monitor his compliance with any conditions relating to hiswhereabouts; and to comply with the requirements of electronicmonitoring and provide unimpeded access to his approved residence bya probation officer and/or representatives of the monitoring companyfor the purpose of maintaining the electronic monitoring equipment asdirected by a probation officer;(d) to attend a psychological assessment, and attend, participate in andcomplete any recommended treatment as directed by a probationofficer;(e) to attend an alcohol and drug assessment, and attend, participate in andcomplete any treatment or counselling directed by a probation officer;and(f) not to possess, use, or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs prescribed for him bya health professional.[9] As noted earlier, on 13 October 2021, Peters J granted the application for anISO.6 Mr Kepu did not in fact object to the ISO or the special conditions sought, otherthan electronic monitoring and the non-alcohol condition.[10] Peters J noted that on an ISO application, the Court must be satisfied that thestatutory criteria for an ESO have been made out, albeit on a provisional basis and6 ISO decision, above n 1.often on untested evidence.7 When considered through that lens, Peters J was satisfiedthat there was a very high risk that Mr Kepu would in future commit a relevant violentoffence and that his offending evidenced a pervasive pattern of serious violentoffending.8 The Judge imposed all of the special conditions sought by theChief Executive, except the condition at [8(f)] above insofar as it relates to alcohol.In relation to the electronic monitoring condition, the Judge said that she was"persuaded (just)" to impose such a condition "for the moment", noting that the needfor the condition was a matter to be looked at in greater depth when the ESO wasdetermined.9 Peters J noted that electronic monitoring had been sought by theChief Executive to deter Mr Kepu from breaching, and to monitor his compliancewith, the condition not to travel north of Warkworth.10[11] On 26 November 2021, Mr Kepu was charged with a number of violentoffences including assault of a person with a firearm and behaves threateningly.Ultimately, however, these charges were withdrawn by police. I accordingly saynothing further about them and place no weight on them.[12] Mr Kepu currently has four active Corrections charges before theDistrict Court, each for breaching the condition of his ISO that he submit to electronicmonitoring. Three of the breaches relate to Mr Kepu's electronic monitoring deviceshutting down, apparently as a result of him failing to charge the battery (once on12 March 2022 and twice on 16 May 2022). The fourth breach (on 1 May 2022)involved Mr Kepu removing his electronic monitoring device, failing to presenthimself to police to have it reattached, and absconding for 11 days. He wassubsequently arrested on 12 May 2022 and charged with the police charges of drivingin a dangerous manner and failing to stop (see [7] above).[13] The Chief Executive also notes in his submissions that since Mr Kepu'srelease, on at least 12 separate occasions he has made requests to leave his addressduring curfew hours to seek medical care, but on several occasions returned home7 ISO decision, above n 1, at [7], referring to Chief Executive of the Department of Corrections vIhimaera [2017] NZHC 2228 at [14].8 ISO decision, above n 1, at [48] and [25].9 At [61].10 At [57]–[58]. The Chief Executive's submissions on the ISO application did not seek to suggestthat electronic monitoring would reduce the risk of Mr Kepu reoffending per se.without receiving any form of medical treatment. Further, on at least seven occasions,Mr Kepu removed his electronic monitoring device.[14] Mr Kepu also has three active police charges, being two charges of threatensto kill or do grievous bodily harm and one charge of intentional damage. The allegedoffending involved Mr Kepu's ex-partner, whom I will refer to in this judgment as V.The following summary of the alleged offending is taken from the summary of facts.11[15] The police allege that on 13 May 2022, approximately three weeks afterMr Kepu and V separated, Mr Kepu drove to the address where V was residing,jumped over the fence and walked inside, straight to V's room. V then entered herroom and saw a revolver sitting on top of her dresser next to where Mr Kepu wasstanding, with five bullets sitting next to it. The next day, Mr Kepu called V multipletimes and threatened to kill her and her family. He then sent V a picture of himselfholding a firearm. Two days later, on 16 May 2022, Mr Kepu went to V's parents'home and smashed the front window of the address before driving away. Mr Kepu iscurrently remanded in custody as a result of these charges.12[16] Finally by way of background, shortly before the hearing of the ESOapplication, the Chief Executive filed a memorandum seeking leave to add furtherinterim special conditions to the ESO (if made), in addition to the existing conditions.13The further proposed interim special conditions are:(a) not to threaten or use violence;(b) not to have contact or otherwise associate with V, directly or indirectly,unless Mr Kepu has the prior written approval of a probation officer;(c) not to associate, directly or indirectly, with any person associated withthe Killer Beez gang unless Mr Kepu has the prior written approval ofa probation officer; and11 Mr Kepu has not yet been tried on these charges and is entitled to the presumption of innocence.12 A bail hearing is scheduled for 18 August 2022, the same day that this judgment is being delivered.13 Pursuant to the Parole Act, s 107IA(3)(a).(d) for Mr Kepu to be at his approved address between the hours of 10 pmand 6 am daily, unless he has the prior written approval of a probationofficer.Procedural history[17] The hearing of the ESO application has a somewhat tortuous proceduralhistory.[18] The Chief Executive filed his application for an ESO, together with theapplication for an ISO, on 12 August 2021. On 31 August 2021, Moore J allocated aone day hearing for the ESO application of 10 February 2022. That date wasspecifically allocated to give Mr Kepu the opportunity to instruct an expert should hewish to do so. As addressed above, on 13 October 2021, Peters J granted the ISOapplication.[19] The 10 February 2022 hearing of the ESO application did not, however,proceed. This was because a psychologist's report could not be prepared in time onbehalf of Mr Kepu. At that time, there was no opposition by the Chief Executive toMr Kepu's application for an adjournment. The context to that adjournment is,however, important. Mr Kepu's then counsel, Ms Smith, filed a memorandum on18 January 2022 advising that she had initially been instructed by Mr Kepu that he didnot oppose the making of the ESO and for that reason, she had not briefed apsychologist to prepare a report. Ms Smith recorded in her memorandum thatMr Kepu had then instructed her that he did want to oppose the application, hencecounsel taking steps at that time to engage the services of a psychologist, but nothaving sufficient time in which to do so. This led to Gault J's comment in his minuteof 19 January 2022 (granting the adjournment) that it was "unfortunate" thatMr Kepu's instructions had changed at a late stage.[20] A new hearing date for the ESO application was scheduled for 28 April 2022.In early April 2022, Ms Smith advised that Mr Kepu was in receipt of a healthassessor's report but it had been completed without his input. She advised thatMr Kepu did not want to rely on that report and sought an adjournment of the 28 Aprilhearing to obtain a further health assessor's report. Ms Smith also sought leave towithdraw, there having been a breakdown in the relationship between her andMr Kepu.[21] In my role as Criminal List Judge, I convened two telephone conferences toaddress the matters arising. In my minute dated 8 April 2022, I asked Ms Smith to: convey to Mr Kepu that, in the event an adjournment were granted, thereis unlikely to be any further adjournment of the application, given there hasalready been an adjournment from February this year. Mr Kepu hasaccordingly had an appropriate opportunity to obtain materials to be used inresponse to the ESO application.[22] In my second minute (dated 12 April 2022), I granted leave for Ms Smith towithdraw as counsel. On the adjournment application, I noted that while it waspreferable for Mr Kepu to have the opportunity to file his own health assessor's report,he had had ample opportunity to do so to that point. Nevertheless, given the ISO termswere to continue in force pending determination of the ESO application, I (reluctantly)vacated the 28 April 2022 hearing.[23] The matter was then called in criminal callover on 27 April 2022 for thepurpose of setting a new hearing date (14 July 2022 being allocated). At that point,Mr Dufty had only just been assigned as counsel to Mr Kepu, but confirmed thatMr Kepu did want to obtain an expert report for the purposes of the ESO application.Mr Dufty noted that Mr Kepu wanted him to engage a forensic psychologist known toMr Kepu's family, and was to provide Mr Dufty with those details shortly thereafter.At a later callover, Mr Dufty noted that regrettably, and despite repeated requests,Mr Kepu had not provided him with the expert's details. Mr Kepu then abscondedfrom his bail address14 and was at large until he was arrested and remanded in custody.[24] Against this backdrop, Mr Kepu applied shortly prior to the 14 July 2022hearing of the ESO application for a further adjournment, again on the basis thatfurther time was needed for Mr Kepu to obtain an expert report. The Chief Executiveopposed the adjournment on the basis that there had already been two successiveadjournments, and that Mr Kepu had had ample opportunity to secure a healthassessor's report if he chose to do so.14 Then being on bail on his current charges.[25] I was not prepared to adjourn the hearing of the application for an ESO for athird time. The Chief Executive's application had been filed in mid-August 2021, andthere was no question that Mr Kepu had had more than ample time to engage in theprocess and secure a health assessor's report had he chosen to do so.[26] At the hearing of the ESO application before me, Mr Kepu renewed hisapplication for an adjournment. Despite being represented by counsel (Mr Dufty), heeffectively made the application himself, and frequently interjected during the hearing.As I indicated to Mr Kepu at the hearing, I had only just dealt with his application foran adjournment and there was no material change in circumstances to warrantrevisiting that decision. Evidently unhappy with this response, Mr Kepu thensuggested that he was dissatisfied with Mr Dufty's service and purported to "fire" him.I apprehended, however, that this was a device to secure an adjournment, given noconcerns with Mr Dufty's service had previously been raised. I took a briefadjournment so Mr Dufty could discuss the matter with Mr Kepu. I made it clear thatabsent any significant matters arising, I proposed to continue with the hearing.[27] Upon Court resuming, Mr Dufty confirmed that Mr Kepu wanted to sack himas his lawyer, and Mr Dufty accordingly sought leave to withdraw. I granted leave.On the basis that I did not perceive there to be any relationship breakdown betweenMr Kepu and Mr Dufty,15 I considered it appropriate to appoint Mr Dufty as standbycounsel to Mr Kepu. I explained the role of standby counsel to Mr Kepu. I confirmedthat the hearing would proceed and that Mr Dufty would be available to Mr Kepu atall times should he wish to seek assistance from him.[28] The Chief Executive called Mr Stephen Els, a clinical psychologist, whoproceeded to give evidence. Partway through the evidence, Mr Kepu confirmed thathe wished to re-engage Mr Dufty as his counsel for the hearing. Mr Dufty was willingto accept that appointment and the hearing continued on that basis.15 Reinforced by the fact that following the ESO application hearing, Mr Kepu has continued toretain Mr Dufty as his counsel.Mr Kepu's criminal history[29] I turn now to Mr Kepu's relevant criminal history.[30] In 2004, Mr Kepu was convicted of aggravated robbery, assaults on police,fighting in a public place, common assault and possession of an offensive weapon,committed over various incidents in 2003. He was 14 or 15 years old at the time ofthis offending. On the materials before the Court, it appears the aggravated robberyinvolved Mr Kepu impulsively using a beer bottle to assault a taxi driver to rob him.[31] In 2005, Mr Kepu received further convictions in the Youth Court for robberyand assault with intent to injure.[32] In 2009, Mr Kepu was sentenced to two years and eight months' imprisonmentfor offending over several incidents in 2007 and 2008, which included injuring withintent to injure, common assault (x 2), threatening to kill, assault with intent to injureand resisting police.16 The sentencing notes record that Mr Kepu kicked a policeofficer in the head six times during the process of arrest; and on another occasionthreatened to kill a victim "because she was Samoan", pushed over a victim who wasseven months pregnant, punched another victim in the head until he fell to the groundand repeatedly kicked him until the police arrived, and punched someone whoattempted to call the police.17[33] In May 2010, while serving the above sentence, Mr Kepu's securityclassification was upgraded to "maximum security" and he was placed insegregation.18 Apparently confused as to why he was being segregated, Mr Kepu hada discussion with his supervising prison officer, which agitated Mr Kepu. He thenspent the morning brooding and resolved to assault the officer when the opportunityarose.19 When the officer later returned to his cell, Mr Kepu punched him in the face,causing him to fall back and hit his head. The officer later died as a result of braininjuries.16 R v Kepu DC Auckland CRI-2008-004-27776, 27 August 2009.17 At [6].18 See R v Kepu HC Hamilton CRI-2010-019-4803, 17 September 2010 [Disputed facts decision] at[5]–[20].19 At [15]–[16].[34] Mr Kepu pleaded guilty to manslaughter and was sentenced to six years andfour months' imprisonment.20 A disputed facts hearing was held before sentencing, onwhether the assault was premeditated and whether Mr Kepu showed genuine remorse.Heath J concluded that the offending was premeditated and that Mr Kepu was not trulyremorseful for his actions, including because he had made light of the victim's deathon two separate occasions, including to the victim's co-workers.21[35] In October 2012, Mr Kepu punched a prison officer in the face "withoutwarning" with such force that the officer had to have a tooth removed.22 Ten dayslater, Mr Kepu kicked another prison officer in the stomach without warning. Mr Kepupleaded guilty to common assault and assaulting a prison officer, and was sentencedto seven months' imprisonment.[36] In October 2015, Mr Kepu and a co-offender entered another prisoner's celland Mr Kepu was seen removing an item from his waistband area. The prisonerreceived multiple stab wounds to his back and torso (with one wound just below hisneck), as well as head injuries. Mr Kepu pleaded guilty to assault with intent to injureand was sentenced to 13 months' imprisonment, which was upheld on appeal.23[37] In October 2017, Mr Kepu committed a similar offence. He was seen removingan item from his waistband while entering another prisoner's cell. The victim receivedat least 12 stab wounds. Mr Kepu was sentenced to 21 months' imprisonment for thisoffending.24[38] As noted earlier, since his release Mr Kepu has been convicted and sentencedon a charge of possession of a knife in a public place, and has been charged withthreatening to kill or do grievous bodily harm and intentional damage in respect of hisex-partner (see [7] and [14] to [15] above). At the hearing before me, counsel for theChief Executive also referred to Corrections records which allege that on 19 August2021, Mr Kepu said to a parole officer, about another parole officer, "I will punch her20 Manslaughter sentencing notes, above n 2.21 Disputed facts decision, above n 18, at [22]–[28].22 Police v Kepu DC North Shore CRI-2012-044-6662, 21 May 2013 at [2].23 Kepu v Police [2016] NZHC 2410.24 Police v Kepu [2018] NZDC 25473.if I see her"; further, that on 24 September 2021, Mr Kepu told a parole officer: "Ifyous make me breach tonight because I have nowhere to go then yous will find outwhat happens"; and that on 30 June 2022, Mr Kepu (then back in custody) told a prisonstaff member: "I'll shoot you when I get out" (or words to that effect).25The ESO regime[39] I turn now to outline the statutory regime for ESOs, which is set out in Part 1Aof the Act. The purpose of an ESO is "to protect members of the community fromthose who, following receipt of a determinate sentence, pose a real and ongoing riskof committing serious sexual or violent offences".26 An ESO can be made in respectof an offender who has been sentenced to imprisonment for a relevant sexual or violentoffence and has not ceased to be subject to a sentence of imprisonment, releaseconditions or an ESO previously made.27[40] The application for an ESO must be accompanied by a health assessor'sreport.28 In the case of relevant violent offending,29 the report must address whetherthe offender displays each of the behavioural characteristics about which the Courtmust be satisfied,30 and whether there is a very high risk that the offender will in futurecommit a relevant violent offence.[41] An ESO may be made if, following the hearing of the application, the Court issatisfied, having considered the matters addressed in the health assessor's report,that:31(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:25 I gave Mr Kepu the opportunity to file further evidence and submissions about these allegedinteractions following the ESO application hearing, an opportunity which he took up.26 Parole Act, s 107I(1).27 Section 107C(1).28 Section 107F(2).29 Section 107F(2A)(b).30 Specified in s 107IAA(2).31 Section 107I(2).(ii) there is a very high risk that the offender will in future commita relevant violent offence.[42] A "relevant violent offence" is one listed in s 107B(2A). Those offencesinclude murder, manslaughter, wounding with intent, injuring with intent to causegrievous bodily harm, kidnapping, robbery, aggravated robbery and assault with intentto rob.[43] Under s 107IAA(2), the Court may determine that there is a "very high risk"that the offender will commit a relevant violent offence only if it is satisfied that theoffender:(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.[44] Under s 107I(4), every ESO must state the term of the order, which may notexceed 10 years. The term of the order must be the minimum period required for thepurposes of the safety of the community in light of the level of risk posed by theoffender, the seriousness of the harm that might be caused to victims and the likelyduration of the risk.3232 Parole Act, s 107I(5).[45] As the Court of Appeal said in Chief Executive, Department of Corrections vAlinizi, the Court is required to follow a three-step process for determining whether anESO should be made:33(i) the Court must determine whether the offender has, or has had, apervasive pattern of serious sexual or violent offending;(ii) the Court must make specific findings as to whether the offendermeets the qualifying criteria set out in s 107IAA; and(iii) if those criteria are met the Court must make a determination aboutthe risk of the offender committing a relevant sexual or violentoffence.[46] In a recent decision in Chisnall v Attorney-General, a full bench of the Courtof Appeal made a declaration that Part 1A of the Act is inconsistent with s 26(2) of theNew Zealand Bill of Rights Act 1990 (the NZBORA).34 That section provides thatno one who has been finally acquitted or convicted of, or pardoned for, an offenceshall be tried or punished for it again. In its substantive decision in Chisnall, the Courtobserved:35[218] ESOs and PPOs [public protection orders] are imposed on personsnearing the end of the sentences imposed on them by the courts in response totheir criminal offending, applying the purposes and principles of sentencingset out in the Sentencing Act including the important purpose of protecting thecommunity from the offender. The restrictions which then flow from bothESOs and PPOs are potentially very severe, and in the case of PPOs canamount to indefinite detention. This is punishment, in the absence of trial andconviction for a further offence. It is a marked departure from the legal orderreflected in s 26(2) of the [NZBORA].[220] We do not consider it is an adequate response to say, in assessingwhether the limits on the right contained in the legislation have beendemonstrably justified, that orders will not be made in individual caseswithout a full assessment by judicial officers. In essence, that reduces the s 5analysis to a case by case consideration without asking the essential questionof whether the ESO and PPO regimes represent reasonable limits of the s 26(2)right. That is the question raised by s 3 of the [NZBORA] which applies theAct's provisions to acts done by the legislative branch of government, as wellas the other branches. To say the Acts may be able to be applied in a rights-compliant way does not answer the central question, which is whether therelevant provisions of the Parole Act and the [Public Safety (Public Protection33 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].34 Chisnall v Attorney-General [2022] NZCA 24; but see Attorney-General v Chisnall [2022] NZSC77, in which leave was granted to appeal the Court's decision.35 Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484.Orders) Act 2014] delineate regimes that limit rights in a way, and to an extent,that has been demonstrably justified.[47] In R (CA586/2021) v Chief Executive of the Department of Corrections, theCourt of Appeal discussed Chisnall and observed:36[53] We accept the submission of R that consequent upon Chisnall, thecontinuation of the ESO needs to be clearly justified. Whilst that has alwaysbeen the case, the declarations of inconsistency made by the Court emphasisethe need for careful scrutiny. In this regard we note Chisnall holds that s 26(2)of the NZBORA (the second penalty provision) is capable of being subject toa reasonable limit. "Strong justification" will, however, be required, and thataccordingly is the lens through which we assess whether the Judge erred inconfirming the order.[48] The "strong justification" approach was affirmed by the Court of Appeal inWilson v Chief Executive of the Department of Corrections.37ESO conditions[49] When an ESO is imposed, the offender becomes automatically subject to thestandard extended supervision conditions set out in s 107JA of the Act.38[50] The special conditions of an ESO (if any) are determined by the Parole Boardunder s 107K of the Act, and not the Court. Nevertheless, the Chief Executive mayapply under s 107IA for an order by the Court imposing any special conditions thatthe Board may impose under s 107K of the Act. The Court may make such an orderonly if satisfied that there may not be sufficient time before the ESO comes into forcefor the Board to determine which (if any) special conditions should be imposed.[51] Any special conditions, including those imposed under s 107IA by the Court,to which the offender is subject when an ESO comes into force continue for threemonths after the ESO order comes into force.39 This therefore includes specialconditions in force pursuant to an ISO. This approach is clearly intended to provide a36 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 (footnotesomitted).37 Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [19]–[20].38 Parole Act, s 107J(1)(a).39 Section 107L(2A)(a)."stopgap" measure in the event there is a gap between the ESO having effect and theBoard determining the special conditions (if any) of that ESO.[52] Finally, I note that pursuant to s 107IA(5) of the Act, the offender may applyto the Court for an order cancelling or varying a subsisting order under subs (1)(interim special conditions imposed by the Court pending the Board determiningspecial conditions), if satisfied that the cancellation or variation needs to be madebefore the Board determines what special conditions should be applied. In this case,and in the event I were to order an ESO, Mr Kepu applies for an order that the interimspecial condition of electronic monitoring be cancelled. I return to this particular topicat [92] to [93] below.Health assessor's report[53] As already noted, the application for an ESO must be accompanied by a healthassessor's report. The Chief Executive relies on a report dated 19 July 2021 preparedby Mr Els, who as mentioned earlier is a clinical psychologist. Mr Els also gaveevidence at the ESO application hearing and was questioned by the parties and theCourt. As discussed earlier, while Mr Kepu indicated his intention to obtain his ownhealth assessor's report, this did not eventuate.[54] In his report, Mr Els assessed Mr Kepu's risk of violent reoffending usingvarious actuarial instruments, including the RoC*RoI measure, the Violence RiskScale (VRS) and the Psychopathy Checklist: Screening Version (PCL:SV). Hesummarised the results as follows:(a) Mr Kepu's RoC*RoI score places him in the category of moderate riskof imprisonment within five years of being released. The RoC*RoI testis based on static factors and has been shown to be about 75 per centaccurate.(b) Mr Kepu's VRS score places him in the high-risk category of furtherviolent offending. The estimated recidivism rate for the high-risk groupwithin 4.4 years was 51.1 per cent (with the base rate for violentoffences in the normative sample being 31.2 per cent). Out of the20 dynamic risk factors, 17 were related to Mr Kepu's recidivism risk.40Mr Els was unable to factor "mental disorder" into this assessment asMr Kepu did not consent to the release of his treatment information,41nor "stability of relationship" as at the time of the assessment, Mr Kepuhad not had the opportunity to form intimate relationships, having beenimprisoned for much of his adult life.(c) Mr Kepu's PCL:SV score was above the average score forNew Zealand offenders. Furthermore, his higher score on interpersonaland affective deficits indicates a higher probability of committingserious violent offences within two years of release into the community.[55] Taking into account these results, Mr Kepu's criminal history and his behaviourin prison and in the community since his release, Mr Els considers that Mr Kepupresents a "very high risk" of committing a relevant violent offence in the future. Heconsiders Mr Kepu most likely to offend against male persons who are known orunknown to him, such as those in positions of authority (like law enforcement) or rivalgang members if he feels they have wronged him. He notes that Mr Kepu also hasanother much shorter and more difficult to discern pathway to violence, in that hiseventual victims may not see any outward sign that he is about to engage in violence.Mr Els states that factors like antisocial associates and substance abuse may contributeto Mr Kepu's offending, but they are not required for him to offend.[56] Mr Els is of the opinion that Mr Kepu's risk of serious violent offending ismost likely to endure over the longer term. He refers to Mr Kepu's lengthy history ofviolence in different contexts and against victims of varying profiles, his continuedviolence despite close management in prison, his failure to engage in intensive grouptherapy and his assessment results, which raise further concern about his willingnessor ability to manage his risk of reoffending.40 Being violent lifestyle, criminal personality, criminal attitudes, work ethic, criminal peers,interpersonal aggression, emotional control, violence during institutionalisation, weapon use,insight into violence, substance abuse, community support, release to high risk situations, violencecycle, impulsivity, cognitive distortion, and compliance with community supervision.41 Mr Els also notes that Mr Kepu reportedly suffered a brain injury at age 15 but this could not befurther considered for the same reason.[57] Mr Els notes that Mr Kepu has received individual treatment with differentpsychologists at different times. However, he states that Mr Kepu's continuedantisocial behaviour, including in prison, indicates that he has a low motivation to usethe skills offered, and that his beliefs and attitudes regarding violence have not beenaddressed. Therefore, Mr Els concludes that treatment does not appear to havemitigated Mr Kepu's risk of violent reoffending.[58] In terms of the s 107IAA criteria, Mr Els considers that the evidence indicatesthat Mr Kepu has an intense drive to commit acts of violence. This evidence includesMr Kepu's criminal history, as well as his tendency to engage in explosive anger,persistent threats and physical violence to redress perceived wrongs, gain dominanceor control over others, or dissipate strong emotions like anger or resentment. Mr Elspoints to Mr Kepu's continued offending in the controlled prison environment, withMr Kepu displaying a well-established pattern of abusing and threatening prison staff,often over minor issues. Mr Els considers that this factor will remain stable over time,as Mr Kepu appears to have limited skills to pro-socially manage this drive and thefactors underlying his violent offending remain substantively unaddressed. He notesthat Mr Kepu's attitudes to violence have been reinforced through his association withthe Killer Beez gang.[59] Mr Els considers that Mr Kepu displays extreme aggressive volatility, asdemonstrated by his criminal history and pattern of aggressive interactions with prisonstaff. Mr Els notes that Mr Kepu has stable attitudes that support extreme aggressivevolatility to maladaptively solve problems; therefore, he is likely to be highly reactivein situations where he misinterprets events or develops preconceived fixedperspectives.[60] Mr Els is of the opinion that the evidence indicates a pattern of Mr Kepupersistently harbouring vengeful intentions that, when combined with him engagingin rumination, find expression in violent behaviours. He refers to Mr Kepu'smanslaughter offending, which involved Mr Kepu ruminating on a perceived wrongbefore attacking the victim when the opportunity presented itself. Mr Els records thatMr Kepu threatened to do violence to prison staff and their families upon his release,though the nature of these threats is unclear from the report.[61] Mr Els considers that Mr Kepu's criminal history, his offending in prison andhis manslaughter offending demonstrate a capacity for planning and executing seriousviolence to meet a premeditated goal, that being the serious harm of a victim.[62] Mr Els considers that Mr Kepu's PCL-SV and VRS scores, and his behaviourin prison and in the community since his release,42 indicate poor self-regulatorycapacity both generally and in relation to violence. He notes that Mr Kepu spent mostof his imprisonment in a high or maximum security setting, and was still beingmanaged in a behavioural management unit just prior to his release, indicating a lackof ability to self-regulate.[63] Although Mr Kepu acknowledges his violent offending, Mr Els considers thathe demonstrates a pattern of justifying, minimising and rationalising his behaviour.Similarly, while Mr Kepu has expressed remorse, Mr Els notes that this has not had apositive impact on his behaviour. Mr Els considers that Mr Kepu has shown a verylimited capacity for understanding or being concerned about the impact of his violentoffending on victims. He refers to Mr Kepu's mocking of the colleagues of the victimof his manslaughter offending.[64] Finally in terms of Mr Els' written report, he records that Mr Kepu wasreluctant to engage with a departmental psychologist (as required by his releaseconditions) but appears to have done so after it was made clear that he would facebreach action.[65] As noted, Mr Els gave evidence at the hearing of the ESO application. In hisexamination-in-chief, Mr Els confirmed that since preparing his report he had receiveddetails of Mr Kepu's new convictions, his active charges and the charges that werewithdrawn. He stated that the material did not alter his opinion in his report; rather itconfirmed it.[66] Mr Els was questioned by me as to whether he had an opinion on whetherelectronic monitoring reduces the risk of Mr Kepu reoffending. Mr Els said that he42 Mr Els refers to Mr Kepu engaging in drug use, driving without a licence, breaching his curfewand pushing boundaries with Community Corrections staff despite warnings.thought electronic monitoring "can help" but acknowledged that "also there has beenevidence of Mr Kepu still managing to become unmonitored", so his answer was "notan unqualified yes or no". Upon further questioning as to what he meant by "it canhelp", Mr Els elaborated:I think maybe more in real time [Mr Kepu being] obviously aware of potentialissues that might arise in terms of not being where he's supposed to be or notabiding by rules that have been put in place in terms of time and place that hehas to be. That at times – when people have talked to him about – saying wehave concerns about what you're doing and where you are, Mr Kepu has attimes been responsive to that and I think it has emulated some issues that havecome up for him. But at other times when it doesn't appear to have emulatedthose issues either.[67] Upon clarification that he was being asked for his opinion on risk mitigationrather than the different issue of overseeing Mr Kepu's compliance with his conditions,Mr Els replied that "for me they go hand-in-hand and I think yes, it will lead to riskmitigation".[68] In cross-examination, however, Mr Els accepted that electronic monitoringwould not stop Mr Kepu from doing what he wanted. The following exchangebetween Mr Dufty and Mr Els took place:Q. You were asked some questions about electronic-monitoring ofMr Kepu. You'd accept that Mr Kepu is quite strong willed?A. I do, yes.Q. So, if he wanted to go somewhere and do something he's probablygoing to do it isn't he?A. He might, he might.Q. So, in terms of electronic-monitoring with GPS where Mr Kepu is freeto go where he likes, that's not going to stop him from doing what hewants, is it?A. No, it's not.SubmissionsChief Executive[69] Counsel for the Chief Executive submit that Mr Kepu has, and has had, apervasive pattern of serious violent offending, relying on Mr Kepu's criminal historyas well as his offending since his release. Counsel submit that Mr Kepu's recentconviction for possession of a knife in a public place is particularly concerning in lightof his history of assaults with stab weapons. Counsel further submit that his currentcharges relating to alleged violence against his ex-partner continue his pattern ofserious violent offending in response to being wronged.[70] Counsel argue that there is a very high risk that Mr Kepu will commit a furtherrelevant violent offence, and that each of the s 107IAA criteria are met. In this regard,counsel rely on Mr Els' risk assessment, his conclusions on each of the s 107IAAcriteria and Mr Kepu's criminal history. Counsel also refer to the Court of Appeal'sobservation in Alinizi that the s 107IAA criteria, while required to be "present", do notneed to be externally manifested at the time of the ESO application.43[71] Counsel highlight that since Mr Kepu's release in April 2021, he has returnedto custody at least four times,44 which has impacted his ability to engage withtreatment, obtain community support and address his many risk factors. Counsel notethat while the "stability of relationship" risk factor was omitted from Mr Els'assessment of Mr Kepu's VRS score, following his release Mr Kepu formed anintimate relationship with V, and now faces serious charges relating to her.[72] Regarding the duration of the order, counsel submit that the ESO should be fora period of five years, being the minimum period required for the purpose of the safetyof the community in light of Mr Kepu's risk.[73] Finally, counsel submit that while s 107I(2) gives the Court a residualdiscretion, this Court has held that "it would be exceptional not to make an order whenthe criteria had been established, particularly given the high threshold for an order andthe statutory concern of public safety".45 Counsel submit that there are no other formsof monitoring that would provide adequate monitoring and risk management inrelation to Mr Kepu; therefore, the Court should exercise its discretion to make anESO.43 Chief Executive, Department of Corrections v Alinizi, above n 33, at [26]–[27].44 The first being for a period of two and a half months while on bail from May 2021, which waseventually deemed time served on the relevant charges.45 Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [57].Mr Kepu[74] As noted, Mr Kepu opposes the application. Mr Dufty accepts that on theevidence before the Court, all criteria appear to be met for the imposition of an ESO.He observes that Mr Kepu is not in a position to dispute Mr Els' opinions, having notengaged his own expert. Counsel accepts that if an ESO is made, a period of five yearswould seem appropriate.[75] Counsel confirms, however, that Mr Kepu maintains his opposition to theproposed electronic monitoring condition. Mr Dufty notes that if an ESO is made, theelectronic monitoring condition under the ISO will continue in force for three monthsor until the Parole Board determines any earlier application for special conditions.46Counsel records that the Chief Executive sought the imposition of such a condition atthe ISO hearing to deter Mr Kepu from breaching, and monitor his compliance with,the condition that he not enter any area north of Warkworth, to provide for thereasonable concerns of the family of Mr Kepu's manslaughter victim.47[76] In terms of Mr Kepu's application to vary the ESO (if made), Mr Dufty arguesthat it is unreasonable to continue with the electronic monitoring condition. First,counsel submits that electronic monitoring conditions severely restrict a person'sliberty and privacy. Second, there is already a condition restricting Mr Kepu fromtravelling north of Warkworth which will remain in force for at least three monthsfrom the date of the ESO. Finally, there is nothing to suggest that Mr Kepu knows thevictim's family or where they live, that he has attempted to travel to their address, thathe is seeking retribution against them or that his offending related to them in any way.Further, Mr Dufty notes that balanced against the seriously intrusive nature ofelectronic monitoring, the expert evidence suggests that there is no clear benefit, interms of reducing the risk of offending, from such monitoring. Mr Dufty refers toMr Els' evidence that Mr Kepu will do what he wants, irrespective of such monitoring.[77] Counsel notes that Mr Kepu also opposes the additional interim specialconditions sought by the Chief Executive (see [16] above) for the following reasons:46 Parole Act, s 107L(2A); and see [51] above.47 Section 15(2)(c).(a) Not to threaten or use violence. Given it is an offence to threaten oruse violence, Mr Dufty submits this condition is redundant as theseactions would likely result in arrest and Mr Kepu's remand in custodyin any event.(b) Not to have contact or otherwise associate with V, directly or indirectly,unless Mr Kepu has the prior written approval of a probation officer.Mr Kepu has current charges relating to alleged offending against V.He has conditions not to contact or associate with her and is presentlyin custody, and such a condition will be inevitable were he to be grantedbail. Mr Dufty accordingly submits this condition is unnecessary as aspecial condition of the ESO.(c) Not to associate, directly or indirectly, with any person associated withthe Killer Beez gang, unless he has the prior written approval of aprobation officer. Mr Dufty submits this condition is unnecessary asthere is little history of gang-related violence offending by Mr Kepu.He argues it is also too broad, potentially curtailing any contactMr Kepu has with people remotely associated with the Killer Beez.(d) To be at his approved address between the hours of 10 pm and 6 amdaily, unless he has the prior written approval of a probation officer.Mr Dufty submits that a night-time curfew is a severe restriction ofMr Kepu's liberty and is unnecessary to prevent any risk of violence.He submits there is no indication that Mr Kepu is at greater risk ofoffending during the night than during the day.[78] Finally, and in response to those alleged communications by Mr Kepu toCorrections or parole officers referred to at [38] above, Mr Dufty suggests that thesecomments, if accepted, were made in situations of high stress, and emphasises thatnone of the alleged threats have ever been carried out.[79] Before turning to my decision on the application, I note that I was not providedwith any submissions by any of the victims of Mr Kepu's offending.48Analysis[80] I must first consider whether Mr Kepu has, or has had, a pervasive pattern ofserious violent offending. Given Mr Kepu's criminal history, there can really be nodoubt that such a pattern exists, and that it is pervasive. Sadly, Mr Kepu has beenengaged in violent offending, much of it of a serious nature, since a young age and ona fairly regular basis during his lengthy times in custody. This factor is made out.[81] I accordingly turn to those factors set out in s 107IAA(2) of the Act, of whichI must be satisfied before I may determine that there is a very high risk that Mr Kepuwill commit a relevant violent offence.[82] Turning first to s 107IAA(2)(a), I am satisfied that Mr Kepu has a severedisturbance in behavioural functioning established by evidence of each of thefollowing characteristics listed at subs (i) to (iii) of the statutory provision. I acceptMr Els' evidence that Mr Kepu's criminal history and behaviour indicates a patternover time of Mr Kepu expressing or threatening violence and subsequently acting onwhat Mr Els describes as a "drive to commit acts of violence". I note that a "drive" tocommit acts of violence is different to a "desire" to do so. It is accordingly notnecessary for me to conclude that Mr Kepu wants to commit acts of violence, thoughI consider the evidence in some circumstances indicates that is the case.[83] In terms of whether Mr Kepu exhibits extreme aggressive volatility, in myview this is plainly made out on the evidence. As demonstrated by Mr Kepu's patternof offending, this is most evident in scenarios where Mr Kepu feels he has beendisrespected or wronged, such as his interactions on a number of occasions withDepartment of Corrections staff. I also take into account, though do not place verysignificant weight on, Mr Kepu's interactions with probation officers since his release.I accept that he has not engaged in any actual violent conduct towards them.Nevertheless, there is again a pattern of extreme aggression when Mr Kepu perceives48 Parole Act, s 107H(5).things are not going his way. References to committing violence and shooting personsmay well be threats that are not carried out, but the very fact they are being made, andnot as a one-off instance, does tend to support that the underlying characteristic ofextreme aggressive volatility continues to subsist.[84] Turning to persistent harbouring of vengeful intentions towards one or moreother persons, while the evidence for this factor is not as strong as that for extremeaggressive volatility, I am satisfied that this characteristic is also made out. Asobserved by the Court of Appeal in Alinizi, the characteristic does not need to beactively manifested at the time an application for an ESO is made, but rather thereneeds to be evidence that the offender actually possesses the characteristic.49 I amsatisfied the evidence demonstrates such a characteristic on Mr Kepu's part. This ismost evident in relation to his "brooding" and planning of his violent attack on theprison officer who Mr Kepu perceived had slighted him in custody. While the chargeof manslaughter demonstrates that it was not suggested Mr Kepu intended to kill theprison officer, his intention was plainly to inflict reasonably serious violence. I alsotake into account Mr Kepu's pending charges in relation to V. I acknowledge thatthose charges are not proven and Mr Kepu is entitled to the presumption of innocence.Nevertheless, the alleged conduct is very serious and it is concerning that conduct ofsuch a nature is apparently being displayed so soon after Mr Kepu's release.[85] In terms of s 107IAA(2)(b), I am satisfied that the evidence demonstrates thatMr Kepu has limited self-regulatory capacity. This is plainly evident, in my view, andessentially goes hand in hand with the clear evidence of Mr Kepu's extreme aggressivevolatility. It is also of concern that despite being in the most structured and monitoredenvironment of custody, Mr Kepu's lack of self-regulation has manifested itself in apattern of difficult and often violent engagement with Department of Correctionsofficers, leading to Mr Kepu spending significant periods in a high or maximumsecurity prison setting. Mr Kepu's lack of self-regulatory capacity is also no doubtexacerbated by him not having engaged in real and sustained rehabilitative efforts.49 Chief Executive, Department of Corrections v Alinizi, above n 33, at [26]–[27].[86] I do not place significant weight on Mr Kepu's more recent poor compliancewith his release and ISO conditions. As noted by the Court of Appeal in Wilson vChief Executive of the Department of Corrections, an offender's breach of post-releaseor ISO/ESO conditions might be evidence of an "undesirable attitude" but may not bea particularly good predictor of the offender committing further serious violentoffending.50 Nevertheless, I do not consider this evidence wholly irrelevant.As Mr Els noted in his report, even as of July 2021: Mr Kepu's pattern of poor self-management has continued since releasefrom prison, but has, as yet, not included violence. It is however of concernthat aspects of his current problematic behaviour are directly related to anincreasing number of risk factors as identified by the VRS, which clearly haveplayed a role in his previous violent offending.51(Emphasis added.)[87] Unfortunately, Mr Kepu's behaviour in the months following Mr Els' reporthas not improved.[88] Finally, I am satisfied that the evidence demonstrates that Mr Kepu displays anabsence of understanding for or concern about the impact of his violence on actual orpotential victims.52 Mr Els describes Mr Kepu's understanding in this regard as "verylimited". Again, this factor is most evident in relation to the victim of Mr Kepu'smanslaughter offending, and resulted in Heath J's specific finding of an absence ofremorse.53 And as Mr Els notes, Mr Kepu's response to his violent offending, whileacknowledging the offending, is often to seek to shift the blame to the person againstwhom he has inflicted violence, in terms of that person disrespecting or wronging him.Such "blame shifting" is inconsistent with a genuine understanding of the impact ofhis violence on his victims.[89] I am accordingly satisfied that there is jurisdiction for me to make a findingthat Mr Kepu is at a very high risk of committing a relevant violent offence in future.Sadly, and without real and sustained engagement by Mr Kepu in rehabilitative efforts50 Wilson v Chief Executive of the Department of Corrections, above n 37, at [42].51 Dynamic factors of the VRS include interpersonal aggression, emotional control, impulsivity andcompliance with supervision.52 Parole Act, s 107IAA(2)(c).53 Disputed facts decision, above n 18, at [29].in the short to medium term, I conclude that it is almost inevitable. I accordingly findthis factor made out.[90] The next question is whether there is "strong justification" for an ESO. In myview there is. This is not a marginal case. Mr Kepu appears to have entrenchedcharacteristics suggesting that further serious violent offending is highly likely.Mr Kepu will need a fairly structured environment around him upon his release, atleast during the initial period of the ESO.[91] Turning to the duration of the ESO, as counsel for Mr Kepu acknowledges, aperiod of five years would seem appropriate. As already noted, many of Mr Kepu'scharacteristics discussed earlier appear fairly entrenched. This is reflected in hislengthy criminal history regularly peppered with violent offending. Mr Els considersMr Kepu's risk of serious violent offending "is most likely to be endurable over thelonger term". All three of those factors at s 107I(5) of the Act suggest a period ofaround five years is appropriate and the minimum period required for the safety of thepublic.54 It will of course remain open to Mr Kepu to apply to cancel the ESO,55 or tovary or discharge any of the conditions of the ESO, should circumstances developmore positively over the short to medium term.[92] Turning finally to interim special conditions, those imposed by Peters J on theISO will continue for a period of three months following this ESO being made,including the electronic monitoring condition. As noted, however, Mr Kepu hasapplied to cancel or vary that condition. Mr Kepu relies in this respect on s 107IA(5)of the Act.[93] It is not clear to me, however, that I have jurisdiction to cancel or vary theelectronic monitoring condition. The power to do so under s 107IA(5) of the Actapplies only in relation to "a subsisting order under subsection (1)", subs (1) relatingto interim special conditions imposed by the Court when making an ESO. I have notmade any interim special condition in relation to electronic monitoring when making54 The level of risk posed by the offender, the seriousness of the harm that might be caused to victims,and the likely duration of the risk.55 Parole Act, s 107M.the ESO; rather the condition was imposed by Peters J at the time of making the ISO.Nor do I consider the power arises under s 107IA(3) of the Act, as that section appliesonly to an application for an order under subs (1), such application only being able tobe made by the Chief Executive and not the offender. Rather, it seems that theappropriate way forward for Mr Kepu should he wish to pursue the application toremove the electronic monitoring interim special condition is to apply to the Boardpursuant to s 107O(1) of the Act.[94] Nevertheless, given the appropriateness of an electronic monitoring conditionwas argued before me, I offer the following observations. It is plainly a specialcondition to which the Board will need to give careful consideration.[95] On the evidence before Peters J when determining the ISO application, theJudge was clearly concerned about this condition and concluded that she was "just"persuaded it was appropriate, "for the moment".56 I share the Judge's concerns, atleast on the basis of the evidence currently before the Court.[96] Electronic monitoring is of course a reasonably intrusive type of specialcondition.57 Pursuant to s 107K of the Act, any special condition imposed on an ESOmust meet the requirements of s 15 of the Act. Section 15 relevantly provides:15 Special conditions(2) A special condition must not be imposed unless it is designed to—(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of theoffender; or(c) provide for the reasonable concerns of victims of the offender; or(d) comply, in the case of an offender subject to an extendedsupervision order, with an order of the court, made under section107IAC, to impose an intensive monitoring condition.56 ISO decision, above n 1, at [61].57 Electronic monitoring is classed as a "high-impact" condition under the Act: see s 107RB.[97] As noted, in his submissions in support of the ISO, the Chief Executive arguedthat electronic monitoring was required to monitor and enforce Mr Kepu's compliancewith the condition not to travel north of Warkworth, which in turn was said to respondto reasonable concerns of the family of Mr Kepu's manslaughter victim. But it is notclear to me that there is any real evidence of Mr Kepu being a threat to those persons.Certainly since his release, and during many unmonitored periods (including for anumber of days at one point), there is no suggestion any issues arose in this regard.[98] Nor do I consider an electronic monitoring condition would be designed tofacilitate or promote Mr Kepu's rehabilitation or reintegration. On the contrary, itseems it may have the opposite effect, given Mr Kepu's very clear opposition to sucha condition and his response to it to date.[99] The question is therefore whether electronic monitoring reduces Mr Kepu'srisk of reoffending.58 Again, the evidence supporting electronic monitoring beingappropriate for this reason is also thin. Plainly electronic monitoring has not deterredMr Kepu from reoffending since his release, or engaging in his alleged offending inrelation to V. Mr Els quite candidly accepted that Mr Kepu will ultimately do whateverhe wants, irrespective of electronic monitoring. I accept that Mr Els said that Mr Kepuknowing that his whereabouts are being monitored by probation services may assist inreducing the risk of reoffending. While in theory I can see that link, I am somewhatsceptical of its benefits in reality, given Mr Kepu's entrenched characteristics and inparticular his aggressive volatility. Knowing where Mr Kepu is at any given point willnot ameliorate the risks arising from that characteristic.[100] Finally, I turn to those additional interim special conditions for which theChief Executive applies pursuant to s 107IA(1) of the Act.[101] I do not propose to add a specific condition not to threaten or use violence.I do not consider this is necessary, given threatening or using violence is an offence in58 Even if electronic monitoring could be imposed for this reason alone, I note that the purpose ofelectronic monitoring as a special condition is to deter an offender from breaching conditionsrelating to his or her whereabouts, and to monitor compliance with those conditions: Parole Act,s 15A(1). I accept, however, that if the purpose of a "whereabouts condition" is to reduce the riskof reoffending (rather than, say, responding to the reasonable needs of victims), electronicmonitoring could be considered through the lens of reducing the risk of reoffending.and of itself. I am also conscious that such a condition may well be a condition of anybail granted to Mr Kepu, which in my view is the proper forum for such a conditionto be considered.[102] These observations apply equally to the condition not to have contact orotherwise associate with V. In my view, the appropriate forum for that condition to beconsidered (if this has not already occurred) is in connection with Mr Kepu's chargesfor alleged offending against V, rather than in the broader context of an ESO. To theextent not already made, such restrictions can be applied for while Mr Kepu is incustody pursuant to s 168A of the Criminal Procedure Act 2011. In the event Mr Kepuis granted bail, a no-contact condition in relation to V is inevitable. Finally, shouldMr Kepu be convicted in relation to that offending, no contact with V will be coveredby the standard conditions of Mr Kepu's ESO.59[103] I also decline to impose as an interim special condition that Mr Kepu notassociate, directly or indirectly, with any person associated with the Killer Beez gang.There is no suggestion that Mr Kepu's propensity for violence is specifically gangrelated or evidenced in gang contexts. It is unfortunately much broader than that.I accept that associating with gangs, or associates of gangs, will not necessarilyimprove Mr Kepu's chances of not reoffending. But again, the proposed condition isbroad in scope and highly intrusive, in terms of encroaching on Mr Kepu's right offreedom of association. For such an intrusive condition to be imposed, there wouldneed to be a closer nexus between the proposed condition and risk mitigation. I alsonote in this context that when setting Mr Kepu's release conditions, the Parole Boarddeclined to impose a condition that Mr Kepu not associate with any gangs, consideringit "unnecessarily onerous".[104] I am satisfied, however, that the proposed night-time curfew condition of10 pm to 6 am is appropriate, at least pending further consideration by theParole Board. I accept there is no clear pattern of Mr Kepu offending at night.Nevertheless, the benefit of such a condition, at least for a relatively short period,would be to provide some structure and stability to Mr Kepu's movements and his59 Parole Act, s 107JA(1)(j).living arrangements upon his release into the community. It is common sense thatnight-time is a more volatile time, and also a period more likely to overlap with theconsumption of alcohol. Further, the curfew period is reasonably limited. I considera condition such as this to be more targeted at risk mitigation than general electronicmonitoring, and consistent with Mr Kepu's rehabilitation and reintegration. Again,however, given its intrusive nature, even if the Parole Board were persuaded that thecurfew condition ought to continue, it is likely that this should be for a relatively shortperiod of time only.Result[105] I make an ESO in respect of Mr Kepu for a period of five years.[106] The special conditions will be set by the Parole Board.[107] For the reasons outlined at [92] to [93] above, I do not consider I havejurisdiction to cancel or vary the electronic monitoring condition, which continuespursuant to s 107L(2A)(a). Nevertheless, I have set out my observations at [94] to[99] above as to whether electronic monitoring should be a special condition imposedby the Board. It will also be open to Mr Kepu to apply to the Board pursuant to s 107Oof the Act for removal of the electronic monitoring condition.[108] I decline to impose those additional interim special conditions sought by theChief Executive, other than that Mr Kepu be at his approved address between the hoursof 10 pm and 6 am daily, unless he has the prior written approval of a probation officer._______________________________Fitzgerald J