CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ROSS [2023] NZHC 3127

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ROSS [2023] NZHC 3127 [6 November2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2023-463-85[2023] NZHC 3127BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND LESLIE PETER ROSSRespondentHearing: 3 November 2023Appearances: A Gordon for the applicantB Gloyn for the respondentJudgment: 6 November 2023JUDGMENT OF CAMPBELL J[Application for interim supervision order]This judgment was delivered by me on 6 November 2023 at 3.00 pmRegistrar/Deputy Registrar[1] The Chief Executive of the Department of Corrections (Corrections) hasapplied for an extended supervision order (ESO) in relation to Mr Ross. Mr Ross hasalready been released from prison. He is subject to release conditions. Thoseconditions expire on 4 January 2024. Corrections' application for an ESO will not bedetermined before then. Accordingly, Corrections now applies for an interimsupervision order (ISO) pending determination of its application for an ESO.Procedural history[2] The ESO application was first called on 8 September 2023. Mr Gloynappeared for Mr Ross. As Mr Gloyn had only just received instructions, the Courtgranted an adjournment to ascertain whether Mr Ross wished to oppose theapplication.[3] The application was next called on 22 September 2023. By then, Mr Ross hadinstructed an expert to prepare a psychological report to assist him to consider hisposition on the ESO application. The ESO application was relisted for 16 February2024. As Mr Ross's release conditions were to expire on 4 January 2024, Mr Gloynaccepted that there would need to be an ISO. He said he was awaiting instructionsfrom Mr Ross on interim conditions that had been proposed by Corrections.[4] The application was next called on 13 October 2023, to review whetherconditions for an ISO had been agreed. Mr Gloyn advised that he had been unable toobtain instructions from Mr Ross and sought a further adjournment. The applicationwas further adjourned to 3 November 2023.[5] Unbeknownst to counsel or the Court, prior to that call Mr Ross had, on29 September 2023, removed an electronic bracelet that he had been wearing as partof his release conditions. A warrant has been issued for his arrest for breach of hisrelease conditions. His whereabouts are presently unknown.[6] When the application was further called on 3 November 2023, Ms Gordon,counsel for Corrections, asked that I make an ISO. Mr Ross was not present.Mr Gloyn appeared on Mr Ross's behalf but had no instructions.Can the court make an ISO in the absence of the respondent?[7] Ms Gordon submitted that I could made an ISO notwithstanding that Mr Rosswas not present at the hearing. She referred me to a judgment of Moore J in ChiefExecutive of the Department of Corrections v Broadbent.1 In that case, the respondentwas represented by counsel at a hearing of an application for an ISO, but therespondent was not present, as he did not wish to be at the hearing. Moore J held, aftera detailed examination of the provisions of the Parole Act 2002, that a court couldmake an ISO in the respondent's absence. His Honour made it clear that his decisionwas not to be taken as authority for the proposition that an ISO could be made in therespondent's absence in every case, noting that where the respondent wished to bepresent at the hearing, special and compelling reasons would be needed before thecourt could proceed to hear the application in the respondent's absence.2[8] Mr Ross has chosen not to be present and has absconded from his releaseconditions. I am satisfied that in those circumstances I am able to make an ISO,notwithstanding that Mr Ross was not present at the hearing. I record that Mr Gloynaccepted that I could made an ISO in Mr Ross's absence.Should I make an ISO?[9] Mr Ross is 52 years old. He has a lengthy criminal history. His relevantconvictions include kidnapping in 2019, sexual violation by rape and kidnapping in2008 and wounding with intent to injure in 1990.[10] Corrections' application relies on a health assessment report from Jo Hallett, apsychologist, dated 18 April 2023. Ms Hallett interviewed Mr Ross. She said that, inaddition to the convictions just noted, Mr Ross acknowledged his involvement in asignificant degree of undetected offending, including gang-related violence andcoercive sex with intimate partners. She assessed him as having a very high risk ofcommitting a relevant violent offence and a high risk of committing a further relevantsexual offence.1 Chief Executive of the Department of Corrections v Broadbent [2020] NZHC 2496.2 At [14].[11] Before making an ISO, the court must be satisfied, on a provisional basis, thatthe statutory criteria for making an ESO are established.3 Those criteria are set outin s 107I of the Parole Act. A court may make an ESO if the court is satisfied, havingconsidered the matters addressed in the health assessor's report, that:(a) the respondent 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 respondent will in future commita relevant sexual offence;(ii) there is a very high risk that the respondent will in futurecommit a relevant violent offence.[12] Section 107IAA then sets out matters of which the court must be satisfiedbefore determining that there is a high risk that the respondent will commit a relevantsexual offence or a very high risk that the respondent will commit a relevant violentoffence:(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a relevantsexual offence; 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 forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.3 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228.(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfiedthat the offender—(a) has a severe disturbance in behavioural functioningestablished by evidence of each of the followingcharacteristics:(i) intense drive, desires, or urges to commit acts ofviolence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet apremeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about theimpact of his or her violence on actual or potential victims.[13] Ms Hallett's assessment of Mr Ross is presently untested. However, based onher report (including Mr Ross's self-reporting of undetected offending) and Mr Ross'scriminal history, I am provisionally satisfied that Mr Ross has had a pervasive patternof serious sexual and violent offending. I am equally satisfied that Mr Ross presentswith both the risks stated in s 107I. In reaching that provisional view, Ms Hallett'sreport satisfied me of each of the matters stated in s 107IAA. I record that Mr Gloynsaid that he could not point to any material to dissuade me from reaching theseprovisional conclusions.[14] I am therefore satisfied that I should make an ISO in relation to Mr Ross.[15] Ms Gordon provided me with a list of proposed ISO conditions. Mr Gloyn didnot take issue with any of them. I will make an ISO on those conditions.Result[16] I order under s 107FA of the Parole Act that, until the application for an ESOis finally determined, Mr Ross is subject to the following supervision conditions:(a) The standard conditions set out in s 107JA of the Parole Act.(b) Mr Ross is to reside at an approved address, or any other addressapproved in writing by a Probation Officer, and not move from thataddress unless prior written approval of a Probation Officer has beenobtained.(c) Mr Ross is not to possess, use, or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs prescribed by a healthprofessional. He is to submit to alcohol and other drug testing ifrequested by the Police or a Probation Officer.(d) Mr Ross is to disclose to a Probation Officer, at the earliest opportunity,details of any intimate relationship which commences, resumes, orterminates.(e) Mr Ross is to obtain the written approval of a Probation Officer beforestarting or changing position and/or place of employment (includingvoluntary and unpaid work). He is to notify a Probation Officer if heleaves his position of employment.(f) Mr Ross is not to communicate or associate, directly or indirectly, withany person known to him to associate with the Black Power Gangunless prior written approval of a Probation Officer has been obtained.(g) Mr Ross is not to enter the Waikato District as defined by a ProbationOfficer in writing unless the prior written approval of a ProbationOfficer has been obtained.(h) Mr Ross is to submit to electronic monitoring in the form of GlobalPositioning System (GPS) technology as directed by a ProbationOfficer in order to monitor his compliance with any condition(s)relating to his whereabouts.(i) Mr Ross is to comply with the requirements of electronic monitoringand provide access to the approved residence to the Probation Officerand representatives of the monitoring company, for the purpose ofmaintaining the electronic monitoring equipment as directed by theProbation Officer.(j) Mr Ross is to attend a psychological assessment with a departmentalpsychologist as directed by a Probation Officer and complete anytreatment and/or counselling as recommended by the assessment to thesatisfaction of a Probation Officer.______________________Campbell J