CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v KEPU [2021] NZHC 2745

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v KEPU [2021] NZHC 2745 [13 October 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-0383[2021] NZHC 2745UNDER Section 107FA of the Parole Act 2002IN THE MATTER of an application for an interim supervision orderBETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONSApplicantAND LATU SEVELIO HALANGINGIE KEPURespondentHearing: 29 September 2021Appearances: N E Town for Applicant K Allen for RespondentJudgment: 13 October 2021JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 13 October 2021 at 3.30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: K Allen, Auckland[1] The Department of Corrections ("Corrections") seeks an interim supervision order ("ISO") in respect of Mr Kepu, on the standard conditions provided in the Parole Act 2002 ("Act"), and certain special conditions. 1[2] Without prejudice to his position on Corrections' application for the imposition of an extended supervision order ("ESO") to which I refer below, Mr Kepu does not object to the making of an ISO, nor to most of the special conditions sought. He does, however, oppose the proposed conditions of electronic monitoring and that he not consume alcohol.Jurisdiction[3] The Court may make an ISO if the offender in question is released from detention before an application for an ESO is finally determined. 2[4] Mr Kepu was released from prison on or about 13 April 2021. On his release, he was subject to the standard conditions of release imposed under s 14 of the Act, and additional special conditions imposed by the Parole Board, and subsequently varied on 24 August 2021.[5] The release conditions imposed expire on 17 October 2021. Corrections made an application for an ESO on 11 August 2021. That application is to be heard on 10 February 2022. Accordingly, the jurisdictional requirements for the making of an ISO are met.[6] An application for an ESO must be accompanied by a report from a health assessor, as defined in s 4 of the Sentencing Act 2002. 3 The present application is accompanied by a report from Mr Els, a clinical psychologist employed or engaged by Corrections, dated 19 July 2021. Counsel for Corrections, Ms Town, also filed an affidavit sworn on 17 August 2021 by Ms Danielle Tuilotolava. Ms Tuilotolava is one of Mr Kepu's probation officers, the other being Ms D Ray. Both have been responsible for managing Mr Kepu, both before and after his release.1 Sections 107JA and 107K.2 Section 107FA(1).3 Section 107F(2).Criteria[7] In Chief Executive of the Department of Corrections v Ihimaera, Muir J held that in considering an application for an ISO, the Court must be satisfied that the statutory criteria for an ESO have been made out; "albeit on a provisional basis and often on untested evidence". 4[8] The word "satisfied" implies no particular burden of proof: 5 The enabling section in respect of ESOs requires only that the Court be "satisfied" that the requirements of s 107I(2)(a) and (b) are made out. InMcDonnell v Chief Executive of the Department of Corrections the Court of Appeal held that "satisfied" in this context has the same meaning as it does in relation to the imposition of a sentence of preventative detention — in other words it requires the Court to exercise its judgment. It is inappropriate therefore to import notions of the burden of proof. As Wylie J said in Chief Executive; Department of Corrections v Martin:"The word 'satisfied' simply requires the court considering the application to make up its mind, and, on the evidence, to come to a judicial decision."[9] Mr Kepu has a history of violent offending. Bearing in mind [7] and [8] above, and having considered the matters addressed in Mr Els' report, I may only make an ISO in respect of Mr Kepu if satisfied that: 6107I Sentencing court may make extended supervision order(a) the offender has, or has had, a pervasive pattern of serious ... violent offending; and(b) either or both of the following apply:(i) ...(ii) there is a very high risk that the offender will in future commit a relevant violent offence.[10] A "relevant violent offence", as referred to in s 107I(2)(b)(ii), is one listed in s 107B(2A). The offences include murder and manslaughter, wounding with intent or4 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14].5 At [15] (footnotes omitted).6 Parole Act, s 107I.injuring with intent to cause grievous bodily harm, kidnapping, robbery and aggravated robbery and assault with intent to rob.7[11] The Court may determine that there is a "very high risk" the offender will commit a relevant violent offence only if satisfied that the offender: 8(a) has a severe disturbance in behavioural functioning established by evidence 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 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.[12] I turn now to consider whether the required pervasive pattern of serious violent offending exists; if so, whether the required "very high risk" of future commission of a relevant violent offence exists; and, if so, whether I should exercise my discretion in favour of making the ISO sought.Pervasive pattern of serious violent offending[13] Mr Kepu's criminal history includes the following.[14] In 2004, Mr Kepu was convicted of aggravated robbery and common assault, assaulting Police, fighting in a public place, and possession of an offensive weapon, committed across three incidents between August and November 2003. Mr Kepu was aged 14 or 15 years at the time of this offending. It appears from other documents that the aggravated robbery consisted of threatening a taxi driver with a beer bottle.7 Section 107B(2A).8 Section 107IAA(2).[15] In 2005 Mr Kepu received further Youth Court convictions for robbery and assault with intent to injure.[16] In 2009, Mr Kepu was sentenced to two years, eight months' imprisonment for offences committed in several separate incidents in 2008. This offending comprised crimes against property and breaches of bail, but also included charges of assault, injuring with intent to injure, common assault (x 2), threatening to kill, and assault with intent to injure.[17] Judge Treston's sentencing notes record that Mr Kepu kicked a Police officer in the head six times; threatened to kill one victim "because she was Samoan"; on another occasion pushed over a heavily pregnant woman; punched another victim until he fell to the ground and then repeatedly kicked him whilst he was on the ground; and then punched someone who attempted to call the Police.9[18] In May 2010, whilst serving the above sentence, Mr Kepu's prisoner security classification was upgraded to "maximum security", and he was placed in segregation. Apparently unclear as to why he had been placed in segregation, Mr Kepu spent the morning "agitated" and "brooding", and resolved to attack the Corrections officer who had moved him.10 Mr Kepu punched the officer at the first opportunity, causing the officer to fall back and hit his head, which in turn caused the officer's death. 11[19] Mr Kepu pleaded guilty to manslaughter. Heath J sentenced him to six years, four months' imprisonment, cumulative on his existing sentence, and with a minimum period of imprisonment of four years, two months.12[20] On 20 October 2012, Mr Kepu punched another Corrections officer in the face "without warning", requiring the officer to have a tooth removed. On 30 October 2012, again without warning, Mr Kepu kicked an officer in the stomach. Mr Kepu pleaded guilty to common assault and assaulting a Prison officer, and in May 2013 he9 R v Kepu DC Auckland CRI-2008-004-27776, 27 August 2009.10 R v Kepu HC Hamilton, CRI-2010-019-4803, 17 September 2010 (disputed facts) at [15].11 At [17].12 R v Kepu HC Hamilton, CRI-2010-019-4803, 17 September 2010 (sentence) at [31].was sentenced to seven months' imprisonment, cumulative on his sentence for manslaughter.13[21] On 3 October 2015, Mr Kepu and an associate entered another prisoner's cell, and Mr Kepu was seen removing an item from his waistband. The prisoner received 12 stab wounds, some of them deep. Mr Kepu pleaded guilty to assault with intent to injure and was sentenced to 13 months' imprisonment, again cumulative. 14[22] On 8 October 2017, Mr Kepu committed a similar offence. He was seen removing an item from his waistband while entering another prisoner's cell. That prisoner also received at least 12 stab wounds. Mr Kepu again pleaded guilty to assault with intent to injure, and received a further cumulative sentence of 21 months' imprisonment.15[23] Corrections submits this offending constitutes a pervasive pattern of serious violent offending.[24] Ms Allen did not make submissions on this point. As I have said, the application for an ISO is not opposed, without prejudice to Mr Kepu's position when the application for the ESO is heard.[25] I am satisfied, on a provisional basis, that Mr Kepu's offending evidences the required pervasive pattern of serious violent offending. Aside from the Youth Court matters, Mr Kepu has been convicted of violent offending, some of it extremely serious, on five occasions since 2009. For present purposes that is sufficient to establish the required pattern.Very high risk of committing a relevant violent offence[26] Corrections submits that there is sufficient evidence of a very high risk that Mr Kepu will in future commit a relevant violent offence. Before turning to the criteria13 Police v Kepu DC North Shore CRI-2012-044-6662, 21 May 2013 at [2]-[3].14 Kepu v Police [2016] NZHC 2410.15 Police v Kepu [2018] NZDC 25473.by which this is to be assessed, I shall set out what the information presently available to me discloses as to Mr Kepu's current circumstances.Current situation[27] First, Mr Kepu is said to have renewed his association with the Killer Beez. However, there is no special condition that Mr Kepu will not associate with a gang and, indeed, the Parole Board expressly declined to impose such a condition.[28] Secondly, in her affidavit, Ms Tuilotolava states that Mr Kepu has moved address several times since his release. This has been for a variety of reasons, including the presence of a rival gang, incompatibility with a family member, or that the accommodation has been unsuitable for a long-term stay.[29] Thirdly, Mr Kepu is said to have engaged well with his probation officers initially, but in their view he is increasingly "pushing boundaries". This has included breaching the curfew to which Mr Kepu has been subject since his release to visit an emergency department for what Corrections considers non-urgent medical reasons which Mr Kepu should resolve outside of his curfew hours.[30] Fourthly, apparently Mr Kepu has been charged with breaching the release condition pertaining to the curfew; has been found in possession of a knife (for which he has also been charged); and has also been warned for driving without a licence.[31] Fifthly, Mr Kepu has tested positive for drug use (cannabis). Mr Kepu's release conditions require that he refrain from consuming any drugs other than those properly prescribed.[32] Sixthly, Mr Kepu is also said to have been reluctant to engage with a Corrections' psychologist, although his release conditions require this also. And, although Mr Kepu's family are considered to be a highly positive influence, Mr Kepu appears to be keeping them at arm's length.Risk assessment tools[33] Mr Els administered various risk assessment tools. These included the Millon Clinical Multiaxial Inventory — Fourth Edition, a "self-report, objective inventory of adult personality designed to provide assessment information on an individual's emotional and interpersonal functioning" ("MCMI-IV") and the Roc*Rol test, this being based only on static factors and shown to be about 75 per cent accurate. This indicated Mr Kepu had a "moderate" risk of imprisonment within five years of his release.[34] Under the Violence Risk Scale, based on both static and 20 dynamic factors ("VRS"), Mr Kepu was assessed as being in the high-risk category of violent re- offending. A Canadian study anticipates violent recidivism for the high-risk group as 51.1 per cent, as opposed to a normative sample of 31.2 per cent. Mr Els was unable to factor "mental disorder" into Mr Kepu's VRS test as Mr Kepu did not consent to the release of his treatment information, nor "stability of relationships" as Mr Kepu, imprisoned for most of his adulthood to date, has not had the opportunity to form long- term relationships.[35] Mr Els also administered the Psychopathy Checklist: Screening Version ("PCL:SV"). Mr Kepu scored above average, particularly on "interpersonal and affective deficits", apparently due to his MCMI-IV results described above; his willingness to be deceitful; and his lack of remorse for or acceptance of his past violence, in that he continued to commit violent crimes. Mr Els considers Mr Kepu's PCL:SV score indicates a greater chance of violent re-offending.[36] Taking into account these results or assessments, and the information regarding Mr Kepu's criminal history, Mr Els considers Mr Kepu poses a "very high risk" of committing a relevant violent offence in the future. Mr Els considers Mr Kepu most likely to offend if he perceived a figure in authority, for instance a police officer, or rival gang members have wronged him.[37] The next matter to consider is whether there is sufficient evidence at present that Mr Kepu has a severe disturbance in behavioural functioning established by the criteria in s 107IAA(2)(a) of the Act.Intense drive, desire or urge to commit acts of violence[38] Mr Els considers the available evidence indicates Mr Kepu has an intense drive to commit acts of violence. This evidence includes Mr Kepu's criminal history, a tendency to yield to "explosive anger", and persistent threats of physical violence to redress perceived wrongs and to control others. Mr Els also points to the many offences Mr Kepu committed whilst in prison as evidence of a drive to do violence that is sufficiently intense to overcome the restrictions of the prison environment.[39] Mr Els considers the factors that caused Mr Kepu to be violent have not been addressed and that, at least at present, Mr Kepu does not possess the personal skills required to manage this drive to do violence.Extreme aggressive volatility[40] For much the same reasons, Mr Els considers Mr Kepu displays extreme aggressive volatility, particularly if, rightly or wrongly, he considers he is being wronged.Persistent harbouring of vengeful intentions to one or more persons[41] Mr Els considers Mr Kepu's manslaughter conviction evidence of a tendency to persistently harbour vengeful intentions. In that case, Mr Kepu "ruminated" on a perceived wrong for a day, appearing calm before suddenly lashing out at the victim. Mr Kepu also continued to assault prison officers and, in his report, Mr Els records that Mr Kepu has threatened to do violence to prison staff and their families upon his release. The nature of these threats is unclear from the report.[42] The combined effect of the matters referred to in [38] to [41] provides sufficient evidence that Mr Kepu has the required severe disturbance in behavioural functioning.[43] The next issue is whether either of the criteria in s 107IAA(2)(b) are met.Clear and long-term planning of serious violent offences to meet a premeditated goal[44] Mr Els' view is that Mr Kepu's manslaughter offending, and his subsequent violent offending in prison, evidence his clear planning of serious violent offences to meet a premeditated goal, that goal being to harm the victim.Limited self-regulatory capacity[45] Mr Els also considers that Mr Kepu's VRS and PCL:SV results, as well as his behaviour in prison and subsequently, evidence poor self-regulatory capacity at present. For most of his sentence Mr Kepu was a high or maximum-security prisoner, and even immediately prior to his release was housed in a behaviour management unit. This indicates to Mr Els an inability to self-regulate, again at least at present.Understanding or concern about the impact of violent offending on victims[46] The final matter to address is whether Mr Kepu displays an absence of understanding for or concern about the impact of his violence on actual or potential victims.[47] Although Mr Kepu acknowledges his violent offending and expresses remorse, Mr Els considers Mr Kepu seeks to justify, minimise, and rationalise his behaviour, and that such remorse as he does feel has not had a "positive impact" on his behaviour. Mr Els considers Mr Kepu's responses to perceived wrongs as highly disproportionate. Mr Els considers Mr Kepu has shown a very limited capacity to understand or be concerned about the impact of his offending on victims, actual or potential. Mr Els also refers to Mr Kepu's alleged mocking of the colleagues of the victim of his manslaughter.Conclusion[48] Having regard to the information before me, I am satisfied (to the standard referred to in [7] above), that there is a very high risk that Mr Kepu will in future commit a relevant violent offence. This, coupled with the conclusion reached in [25]above that Mr Kepu's offending evidences the required pattern, means that the statutory criteria for the imposition of an ISO have been made out. In thosecircumstances, and also having regard to Mr Kepu's current situation, in the exercise of my discretion, I shall impose an ISO pending determination of the application for an ESO.ConditionsStandard conditions[49] The standard conditions to be imposed on an ESO are those set out in s 107JA of the Act. Corrections seeks the imposition of all, with the exception of a condition that Mr Kepu not to associate with persons under 16.16[50] Mr Kepu does not object to the imposition of the standard conditions (with the exclusion to which I have referred) and I impose them accordingly.Special conditions[51] Corrections also seeks the imposition of special conditions. The proposed special conditions are:(a) to reside at an approved address, and not move from that address unless you have the prior written approval of a probation officer;(b) not to enter any area north of Warkworth as defined by a probation officer in writing unless you have the prior written approval of a probation officer;(c) to submit to electronic monitoring as directed by a probation officer in order to monitor your compliance with any conditions relating to your whereabouts; andto comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a probation officer and/or representatives of the monitoring company for the purpose of16 Parole Act, section 107JA.maintaining the electronic monitoring equipment as directed by a probation officer;(d) to attend a psychological assessment, and attend, participate in and complete any recommended treatment as directed by a probation officer;(e) to attend an alcohol and drug assessment, and attend, participate in and complete any treatment or counselling directed by a probation officer; and(f) not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.[52] Mr Kepu also does not object to the imposition of these special conditions, except for condition (c) and condition (f) in so far as it relates to alcohol.[53] The effect of ss 107K(4) and 15(2) of the Act is that the Court may only impose a special condition if designed to: 17(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of the offender; or(c) provide for the reasonable concerns of victims of the offender; or(d) comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under section 107IAC, to impose an intensive monitoring condition.[54] In addition: 18 in determining whether a restriction is justified or not, the inquiry should be fact-specific. That is, there must be a nexus between the perceived risk posed by the offender and the effectiveness of the proposed condition.17 Sections 107K(4) and 15(2).18 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49].[55] Accordingly, notwithstanding Mr Kepu's lack of objection other than to conditions (c) and (f) in part, it is necessary to be satisfied that all of the conditions proposed are intended to meet one or more of the identified purposes and that there is a nexus between the perceived risk Mr Kepu poses and the effectiveness of the proposed condition(s).[56] Condition (a) is said to be necessary to reduce Mr Kepu's risk of reoffending and to promote his rehabilitation and reintegration. Mr Kepu has moved address many times since his release and this instability is considered not to be assisting him.[57] Condition (b) is said to be required because the family of Mr Kepu's manslaughter victim live north of Warkworth and they are concerned that Mr Kepu may seek to approach them. Accordingly, this condition is said to be required to meet the reasonable concerns of victims.[58] Condition (c), the "EM condition", is sought to deter Mr Kepu from breaching condition (b) and to monitor his compliance with condition (b).[59] Counsel for Mr Kepu, Ms Allen, submits the EM condition is unnecessary. Mr Kepu has been subject to electronic monitoring since release, has been largely compliant, and wishes to obtain employment which electronic monitoring will hinder.[60] In response to these submissions, Ms Town acknowledged that Mr Kepu has been on electronic monitoring since his release in April 2021 and also states that Corrections will support Mr Kepu if he seeks to find employment. However, there is no evidence the monitoring condition is preventing Mr Kepu from securing employment and, indeed, the material before me is to the effect that he has not sought employment.[61] In the circumstances, I am persuaded (just) to impose condition (c) for the moment, but Corrections will understand that the need for this condition will be a matter to be looked at in greater depth when the ESO is determined.[62] Condition (d) is said to be required to reduce Mr Kepu's risk of re-offending and to promote his rehabilitation and reintegration as he has unmet treatment needs.[63] The proposed conditions (e) and (f) are said to be necessary to reduce Mr Kepu's risk of re-offending and to promote his rehabilitation and reintegration. Ms Town submits Mr Kepu has previously had issues with drug and alcohol abuse, submits that Mr Kepu was intoxicated at the time of his 2009 offending, and refers to Mr Els' view that further offending may occur in the context of substance abuse.[64] There is no opposition to condition (e) and Ms Allen states in her submissions that Mr Kepu accepts he must address his drug use. Given that, I am satisfied condition (e) will assist in reducing the risk of re-offending by Mr Kepu and will facilitate his rehabilitation and reintegration.[65] However, I accept Ms Allen's submission that I should decline to impose condition (f) to the extent it precludes the consumption of alcohol. The most serious of Mr Kepu's offending has been committed whilst unaffected by alcohol (or drugs for that matter). In those circumstances, I am not persuaded that any of the purposes for which a special condition may be imposed exist, nor that the required nexus referred to in [54] above is made out.[66] Subject to that, I impose the special conditions sought.Result[67] I grant the applicant's application for an interim supervision order in respect of Mr Kepu pending determination of its application dated 11 August 2021 seeking the imposition of an extended supervision order.[68] I impose the interim supervision order on the standard conditions in s 107JA of the Act, excluding the standard condition that Mr Kepu not associate with persons under 16.[69] I impose the following special conditions:(a) to reside at an approved address, and not move from that address unless you have the prior written approval of a probation officer;(b) not to enter any area north of Warkworth as defined by a probation officer in writing unless you have the prior written approval of a probation officer;(c) to submit to electronic monitoring as directed by a probation officer in order to monitor your compliance with any conditions relating to your whereabouts; andto comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a probation officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a probation officer;(d) to attend a psychological assessment, and attend, participate in and complete any recommended treatment as directed by a probation officer;(e) to attend an alcohol and drug assessment, and attend, participate in and complete any treatment or counselling directed by a probation officer; and(f) not to possess, use, or consume controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.Peters J