THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v IHIMAERA [2019] NZHC 19 [22 January 2019]

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v IHIMAERA [2019] NZHC 19[22 January 2019]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2017-463-000021[2019] NZHC 19BETWEEN THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND LEVI TAMATI MICAH IHIMAERARespondentHearing: 10 December 2018Counsel: C H Macklin for ApplicantD Hall for RespondentJudgment: 22 January 2019JUDGMENT OF KATZ JThis judgment was delivered by me on 22 January 2019 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Gordon Pilditch, Office of the Crown Solicitor, RotoruaCounsel: D Hall, Barrister, RotoruaIntroduction[1] The Chief Executive of the Department of Corrections seeks an extendedsupervision order in respect of the respondent, Levi Ihimaera.1 The order is sought onthe basis that Mr Ihimaera's criminal history discloses a pervasive pattern of serioussexual offending, and that there is a high risk of him committing further serious sexualoffences. The Chief Executive seeks the maximum term available, 10 years, togetherwith an intensive monitoring condition, for a period of one year.[2] Mr Ihimaera opposes the application. He does not dispute that he poses a highrisk of further serious sexual offending.2 He submits, however, that his criminalhistory does not disclose a pervasive pattern of serious sexual offending. On that basis,he submits, one of the key threshold requirements for the making of an extendedsupervision order is not met.Procedural history[3] The Chief Executive's application for an extended supervision order was filedon 20 May 2017. Mr Ihimaera was serving a term of one year and eight months'imprisonment at the time, for indecent assault on a 10-year-old girl.3 He instructed his(then) counsel that he would consent to an extended supervision order being imposed.He objected, however, to the imposition of an intensive monitoring condition.4[4] The application was scheduled to be heard on 31 August 2017, a day afterMr Ihimaera had been released on parole. Prior to the hearing, however, Mr Ihimaeraadvised that he now wished to oppose the imposition of an extended supervision order.He sought an adjournment to obtain an expert psychologist's report, which wasgranted by consent.1 Parole Act 2002, s 107F.2 The expert psychologist retained by Mr Ihimaera, Dr Greg Woodcock, concurred with the viewexpressed by the applicant's psychologist, Dr Juanita Smith, that Mr Ihimaera is at high risk ofcommitting a relevant sexual offence within the community within ten years of release.3 Crimes Act 1961, s 132(3).4 Parole Act 2002, s 107IAC.[5] The Chief Executive then sought an interim supervision order pending finaldetermination of the application for an extended supervision order.5 Muir J declinedto make an interim supervision order, for the reasons set out in his judgment of14 September 2017.6 His Honour was satisfied that Mr Ihimaera's sexual offendingwas serious. He was not satisfied, however, that Mr Ihimaera's two convictions forsexual offending disclosed a "pervasive pattern of serious sexual offending".7 One ofthe threshold requirements for the making of an interim supervision order wasaccordingly not met.The statutory regime[6] Part 1A of the Parole Act 2002 ("Act") is intended to enhance public safety byproviding for the extended supervision of serious violent and sexual offenders in thecommunity, following their release from prison. The purpose of such an order is"to protect members of the community from those who pose a real and ongoingrisk of committing serious sexual or violent offences".8 The regime aims to regulateand manage the ongoing risks posed by such individuals by maintaining a high degreeof ongoing control over them after they have served their finite prison sentences. Thismay include, for a period of up to one year,9 24-hour accompaniment and supervision,together with residence in a secure facility the person is not at liberty to leave.10[7] The term of an extended supervision order may not exceed ten years,11 andmust be limited to the "minimum period required for the purposes of the safety of thecommunity".12[8] An offender is eligible for the imposition of an extended supervision order ifhe or she has been sentenced to a finite term of imprisonment for a "relevant offence"5 Section 107FA.6 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228.7 At [52].8 Parole Act 2002, s 107I(1).9 Section 197K(3).10 Section 107IAC allows the court to impose intensive monitoring conditions. Section 107K allowsthe Parole Board to impose special conditions, including residential restrictions. Section33(2)(c)(ii) provides that such restrictions may include the requirement to be at the specifiedresidence at all times.11 Section 107I(4).12 Section 107I(5).or "relevant sexual offence"13 and they are still in prison for that offence at the time ofthe application, or on parole for that offence, or already subject to an extendedsupervision order.14 The relevant sexual offences range from sexual violation15 andattempted sexual violation16 through a variety of other sexual offending includingindecent assault.17[9] An extended supervision order may only be imposed on an eligible offender ifthe Court is satisfied that:18(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) there is a high risk the offender will in future commit a relevant sexualoffence and/or there is a very high risk that the offender will in futurecommit a relevant violent offence.[10] The Court can only find that there is a high risk of an eligible offendercommitting a relevant sexual offence if the Court is satisfied that the offender has thefollowing traits or behavioural characteristics:19(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence; and(b) has a predilection or proclivity for serious sexual offending; and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse for pastoffending:(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.13 As defined in s 107B.14 Section 107C.15 Crimes Act 1961, s 128B(1).16 Section 129(1).17 Section 135.18 Parole Act 2002, s 107I(2).19 Section 107IAA(1).[11] An application for an extended supervision order must be accompanied by areport by a health assessor20 (essentially a qualified psychiatrist or registeredpsychologist).21 Health assessors' reports must address certain questions. In the caseof sexual offending, the report must address whether the offender displays each of thetraits and behavioural characteristics I have set out at [10] above, and also whetherthere is a high risk that the offender will in future commit a relevant sexual offence.22[12] In summary, when considering whether to impose an extended supervisionorder on a sexual offender, the Court is required to consider the following issues:(a) Is the offender an eligible offender?23(b) Does the offender's criminal history disclose a pervasive pattern ofserious sexual offending?24(c) Is there a high risk that the offender will in future commit a relevantsexual offence25 with specific reference to the traits or behaviouralcharacteristics set out in s107IAA(1), all of which must be present?(d) If all of these criteria are met, should the Court exercise its discretionto make an extended supervision order, in all the circumstances of thecase?26[13] The Court will only have jurisdiction to make an extended supervision order ifthe answer to each of questions (a), (b) and (c) above is "yes". If those jurisdictionalthresholds are met, then the Court may, in its discretion, make an extended supervisionorder if it is satisfied that such a course is appropriate in all the circumstances.20 Section 107F(2).21 As defined in s 4 of the Sentencing Act 2002.22 Parole Act 2002, s 107F(2A).23 Section 107C.24 Section 107I.25 As defined in s 107B.26 The use of the word "may" in s 107I of the Parole Act 2002 indicates that the decision to make anextended supervision order is discretionary.[14] In this case, it is common ground that Mr Ihimaera is an eligible offender, ashe was serving a prison sentence for indecent assault at the time the application wasmade. Nor did Mr Ihimaera seriously challenge the views of both expert psychologiststhat there is a high risk that he will in future commit a relevant sexual offence. In myview, that was appropriate, in light of the expert evidence before the Court. Rather,the key issue in dispute (as it was before Muir J) is whether Mr Ihimaera's criminalhistory discloses a pervasive pattern of serious sexual offending.Does Mr Ihimaera's criminal history disclose a pervasive pattern of serioussexual offending?[15] Muir J declined to grant an interim supervision order on the basis thatMr Ihimaera's criminal history did not meet the threshold requirement of establishinga pervasive pattern of serious sexual offending. His Honour acknowledged, however,that the evidence before him at that stage was provisional, and a different conclusionmight be reached following the hearing of the substantive application, although hethought that such an outcome was unlikely.27[16] Mr Hall submitted, on behalf of Mr Ihimaera, that there is nothing in the furtherevidence before the Court that would support the conclusion that a "pervasive pattern"of serious sexual offending exists. Mr Macklin submitted to the contrary.Mr Ihimaera's offending history[17] Mr Ihimaera is 28 years old. He has been diagnosed with paranoidschizophrenia and an anti-social personality disorder. He has a lengthy criminalhistory, beginning in the Youth Court when he was 15. Since then Mr Ihimaera hasamassed over 90 convictions for a range of offending, spanning from sexual offending,violence, property and dishonesty-related offending, driving and breach of conditionsoffending, drugs-related offending and general anti-social offending. It appears thathe is seldom out of prison for long, before reoffending and being sentenced to a further(usually fairly short) term of imprisonment. Only two of his 90 or so convictions,however, are for sexual offending.27 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [53].[18] The first such conviction relates to offending that occurred in 2009, when MrIhimaera was aged 18. He attended a party at the victim's sister's home. He wasdrunk. During the course of the afternoon he asked a number of women at the partyif they would have sex with him. At around 5.30 pm the victim, who was aged 14 atthe time, went into a bedroom with him. Sexual intercourse took place. Mr Ihimaerawas initially charged with rape. He agreed to plead guilty, however, to a charge ofunlawful sexual connection with a young person between 12 and 16, and the rapecharge was withdrawn. He was sentenced on the basis that he had had "consensualsexual intercourse on one occasion with a girl under 16 years of age."28 The sentenceimposed was 15 months' imprisonment.[19] The second conviction, for indecent assault on a female under 12, related tooffending that took place in 2013, when Mr Ihimaera would have been aged about 22.He was convicted of this offending in 2016. The victim was 10 years old at the timeof the offending. She was sleeping on a mattress in the lounge of a relative's home.In the early hours of the morning, Mr Ihimaera lay down next to the victim and rubbedhis hand over her vaginal area, on top of her underpants. This woke her up.Mr Ihimaera continued rubbing her until her vaginal area became sore. He also keptpulling her underwear down and squeezing her buttocks, while the victim kept tryingto pull her underwear back up. This continued for about 20 minutes. Mr Ihimaerapleaded guilty following a sentence indication, and was sentenced to one year andeight months' imprisonment.Do Mr Ihimaera's previous convictions constitute "serious sexual offending"?[20] The first issue is whether these two convictions relate to "serious sexualoffending," a term that is not defined in the Act.[21] In Holland v Chief Executive of the Department of Corrections the Court ofAppeal rejected the argument that only convictions for the "relevant offences" set outin s 107B(2) of the Act (namely, those offences which qualify an offender as "eligible"for an extended supervision order) can be considered when determining whether a28 R v Ihimaera DC Rotorua CRI-2009-063-4203, 5 July 2010.pervasive pattern of serious sexual offending had been established.29 Rather, what isrequired is a fact-specific assessment of the relevant events, applying the ordinarymeaning of the word "serious" in the context of the Act. The Court stated that:[44] We consider that the phrase "serious sexual offending" falls to beinterpreted by reference to its ordinary meaning viewed against the purpose ofthis part of the Parole Act. In ordinary language "serious" means "important,grave; having (potentially) important, esp. undesired, consequences; givingcause for concern; of significant degree or amount, worthy of consideration".30[45] The imposition of an [extended supervision order] is, of course, asignificant step that restricts an offender's freedom of movement andassociation for up to 10 years after he or she has served the sentence imposedfor the subject offence. These consequences are regarded as justified toprotect the public from future risk. Self-evidently, only offending at the higherend of the range would justify such a step. Parliament could not be taken tohave contemplated that a pattern of offending at the lower end of the spectrumwould justify consideration of such a potentially draconian constraint. It is,however, an assessment for the judge on the facts of the particular case.[22] In this case, Mr Ihimaera's indecent assault on a 10-year-old child isundoubtedly serious sexual offending. The aggravating factors included the victim'sage and associated vulnerability. She was assaulted by an adult man, while asleep ina relative's home. There was an element of breach of trust involved. Mr Ihimaeracontinued with the assault for a prolonged period (approximately 20 minutes) despitethe victim's repeated attempts to deflect him (by pulling her pants up).[23] As Muir J observed, the position in relation to the first sexual offence, whichinvolved Mr Ihimaera, at the age of 18, having consensual sex with a 14-year-old, issomewhat more nuanced. Some cases of consensual sex between two teenagers,where one of them is younger than 16, will likely not reach the threshold of serioussexual offending for the purposes of the Act. In this case, however, I am satisfied thatthe offending was serious. It did not take place in the context of a loving or committedongoing teenage relationship. Rather, Mr Ihimaera was determined to find a sexualpartner at a party, while drunk. He was persistent in pursuit of his goal. Whenthe adult women present declined his repeated overtures he, in effect, preyed on a14-year-old girl who was likely also intoxicated. He took advantage of her for thepurposes of his own sexual gratification, engaging in full penetrative sex. Although29 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [40]–[43].30 The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford 1993) at 2785.sentenced on the basis that the sexual act was consensual, the sentencing Judgedescribed it as "not whole-heartedly so".31 Viewed in context, I am satisfied that thisincident meets the threshold of serious sexual offending.Interpretation of the phrase "pervasive pattern"[24] Having established that Mr Ihimaera's two convictions reach the threshold ofserious sexual offending, it is necessary to consider whether they constitute a"pervasive pattern" of such offending.[25] The Court being satisfied that there is a "pervasive pattern" of serious sexual(or violent) offending is a threshold requirement for the making of an extendedsupervision order.32 Hence, in some cases (and Mr Hall contends that this is one ofthem) the Court will have no jurisdiction to make an extended supervision order,despite being satisfied that an offender poses a high risk of committing serious sexualor violent offences in the future.33 At first blush, such an outcome seems somewhatsurprising, given the public protection focus of Part 1A of the Act. Parliament could,obviously, have chosen to adopt a lower threshold requirement – for example that anoffender had committed a single serious offence, rather than having a "pervasivepattern" of such offending. But the bar has been set considerably higher than that. Thispresumably reflects the difficult balancing exercise that confronted Parliament whenit enacted the extended supervision order regime, and subsequently extended it in 2014from those who sexually offend against children to other serious sexual and violentoffenders.[26] In particular, the extended supervision order regime has the potential tocontravene the right to freedom from arbitrary detention enshrined in s 22 of theNew Zealand Bill of Rights Act 1990 ("NZBORA"). Extended supervision ordersrestrict an offender's freedom of movement and association for up to 10 years after heor she has already served the sentence imposed for the qualifying offence. Extended31 R v Ihimaera DC Rotorua CRI-2009-063-004203, 1 July 2010 [R v Ihimaera (Indication)] at [3].32 Parole Act 2002, s 107I(2)(a).33 Shortcliffe v Chief Executive [2016] NZCA 597 appears to have been such a case, in that theDistrict Court Judge found that there was no pervasive pattern of serious sexual offending, butnevertheless considered that there was a high risk of Mr Shortcliffe committing a relevant sexualoffence in the future. The Court of Appeal confirmed that without such a pattern being presentthere was no basis to consider the question of risk.supervision orders are necessarily based on predictions of the risk of futurereoffending. Predicting future risk is an inherently difficult and potentially unreliableprocess. Part 1A of the Act balances the community's expectations of being protectedfrom high risk offenders against the rights of such persons (a significant proportion ofwhom will never commit further serious crimes) to their liberty once they havecompleted their sentences.[27] Muir J found (as I do) the cautionary observations of the Court of Appeal inSimmonds v Chief Executive of the Department of Corrections to be helpful whenconsidering how the phrase "pervasive pattern" should be interpreted:34[30] Fourth, while the threshold test for an extended supervision order isvery high, and involves the offender being a very serious danger to thecommunity, the concern that such dangerous people be supervised cannot beused to warp the natural meaning of the words in s 107C. Parliament has setout precise limits. It plainly did not intend to make all persons who might bea high risk to the community liable to supervision. We should not extend theclear limitations of the section by imposing an unnatural meaning on plainwords. This is particularly so when s 22 of the New Zealand Bill of RightsAct 1990 is considered. Section 22 provides that "[e]veryone has the right notto be arbitrarily arrested or detained". The Chief Executive's interpretationwould extend the application of s 107C(1)(a), which in turn would extend theinterference to offenders' liberties after they have served a sentence, contraryto s 22 of the New Zealand Bill of Rights Act. Such an interpretation shouldnot be favoured by the courts when the natural interpretation has a lesserimpact on offenders' liberties.[28] Although those observations were made in relation to the interpretation of thephrase "eligible offender", I agree with Muir J that they apply equally to theinterpretation of the phrase "pervasive pattern of serious sexual offending".[29] Muir J offered the following helpful interpretation of the phrase "pervasivepattern":35[46] The word "pervasive" is defined as "having the quality or power ofpervading; penetrative, permeative, ubiquitous".36 It is in turn used to qualifythe word "pattern" which is defined to mean "a regular and intelligible formor sequence discernible in certain actions or situations; esp. one on which theprediction of successive or future events may be based".37 Taken together thetwo words suggest that the previous offending must have characteristics so34 Simmonds v Chief Executive of the Department of Corrections, [2017] NZCA 172.35 Chief Executive of the Department of Corrections v Ihimaera, above n 6.36 "pervasive, adj." OED Online (Oxford University Press, June 2017).37 "pattern, n and adj." OED Online (Oxford University Press, June 2017).prevalent and common as to provide a reliable predictor of relevant futureconduct.[30] His Honour went on to observe that it cannot be intended that in every casewhere there are two serious offences that the serious restrictions that apply to anoffender subject to an interim supervision order or extended supervision order shouldapply, despite the offender having completed their sentence.38 That would be too greatan incursion on s 22 NZBORA rights. On the particular facts of Mr Ihimaera's case,he concluded that:[52] Ultimately I am not satisfied that the Chief Executive has establishedsuch a pattern. One offence involved a post-pubescent consenting sexualpartner in the context of an alcohol-fuelled adolescent party. The other wasan opportunistic indecent assault on a sleeping prepubescent girl. Whateverrisk Mr Ihimaera may pose, the view I reach (on the current provisional stateof the evidence) is that his sexual offending has yet to display a "pervasivepattern". To grant an ISO would in my view, extend the reach of thejurisdiction beyond the limitations inherent in s 22 of the NZBORA.[53] I emphasise, however, that this is a conclusion based on theprovisional state of the evidence and that it is possible (albeit I would havethought unlikely) that it may require to be revisited in the context of the totalevidence available on the extended supervision order application.[31] There are relatively few other cases that have considered the meaning of"pervasive pattern" in Part 1A of the Act (reflecting, perhaps, that the usual focus ison the level of risk posed by an offender).[32] In Shortcliffe v Chief Executive of the Department of Corrections the Court ofAppeal found that "a sequence of related events occurring in the course of a single daycannot constitute a pervasive pattern."39 In a footnote the Court noted that"Parliament's use of the word 'pervasive' is important," but did not elaborate further.40[33] Most of the cases in which an extended supervision order has been madeappear to have involved more than two incidents of offending. Chief Executive of theDepartment of Corrections v Martin, however, is an example of a case where twoincidents of offending (one in 1990 and the other in 1999) were sufficient to constitute38 Chief Executive of the Department of Corrections v Ihimaera, above n 6 at [47].39 Shortcliffe v Chief Executive of the Department of Corrections, above n 33 at [31].40 At [31], footnote 23.a pervasive pattern.41 The 1990 incident resulted in a rape conviction as well as twoconvictions for unlawful sexual connection. The offending was extremely serious –described by the Court of Appeal as a "truly wicked crime".42 The 1999 incident wasalso serious, resulting in a further rape conviction.43[34] Identifying a pattern in offending does not require that an offender's previousoffences be the same, or even very similar. Each case will turn on its own facts, but aunifying theme or pattern may be apparent even if the actual offences committed arequite different. For example, family violence offending often involves a very widerange of different types of offending (physical violence, sexual violence, stalking,arson, theft, burglary, destruction of property, revenge porn, and threatening textmessages). If such offending is viewed without reference to the underlyingrelationship between the offender and victim, no pattern may be discernible. Once theoffending is viewed in its wider context, however, a pattern may well emerge. Forexample, widely disparate offences may all be manifestations of a coercive controlrelationship.[35] Holland v Chief Executive of the Department of Corrections illustrates thispoint in an extended supervision order context.44 The appellant's conviction historyincluded convictions for having and attempting to have intercourse with a femaleunder the age of 16, doing an indecent act on a child under 12 outside New Zealand,and knowingly possessing objectionable material (an offence under the Films, Videosand Publication Classifications Act 1993 ("Classification Act")). Mr Holland arguedthat his offending under that Classification Act was not relevant to an assessment ofwhether a pervasive pattern of sexual offending existed, as it was very different innature to his convictions for direct sexual offending. The Court of Appeal rejectedthis argument, observing that:4541 Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060 at [35].42 R v Martin [1992] 3 NZLR 513 (CA) at 514.43 Chief Executive of the Department of Corrections v Martin, above n 41, at [33].44 Holland v Chief Executive of the Department of Corrections, above n 29.45 At [55]. Mr Holland appealed unsuccessfully to the Supreme Court on the basis that his particularoffences were not "relevant sexual offences" as defined in s 107B(2), and so should not be takeninto account for assessing whether he demonstrated a pervasive pattern of serious sexual offendingunder s 107I(2)(a): Holland v Chief Executive of the Department of Corrections [2017] NZSC 161,[2018] 1 NZLR 771.In our view that history is sufficient to constitute a pattern of serious sexualoffending. It is not necessary for the offences to be the same. There areimportant similarities between them, namely that the offending was againstyoung girls and Mr Holland used his photographic business to create theopportunity to commit the offences.[36] The court is required to consider the matters addressed in the health assessor'sreport when considering both the "pervasive pattern" issue and also the level of futurerisk posed by an offender.46 Viewing the relevant offending through the lens of expertpsychological or psychiatric evidence could reveal a pattern that may not have beenimmediately apparent, particularly where the offending is driven by particularbehavioural characteristics or traits of an offender.[37] In considering whether two or more incidents of offending constitute a pattern,it will usually be necessary to consider a wide range of factors, including factorsrelating to both the offending and the offender. Some of the matters that may berelevant to identifying a pattern include the number of incidents, the connection intime between them, the objective similarity of the offending, whether there is aunifying theme or object (for example, an underlying deviancy or an abusiverelationship or series of relationships), the number of victims, and any behaviouralcharacteristics or traits of the offender that underpin or drive the offending. No doubtthere are many other factors.[38] Even if a clear pattern of offending can be identified, however, it will notnecessarily be a "pervasive" pattern. The Oxford dictionary definition of "pervasive"is set out in the extract from Muir J's judgment at [29] above, namely "having thequality or power of pervading; penetrative, permeative, ubiquitous". The fairly highbar set by the use of the word is also apparent by reference to the synonyms listed inthe Oxford Thesaurus (online), namely:47prevalent, penetrating, pervading, permeating, extensive, ubiquitous,omnipresent, present everywhere, rife, widespread, general, common,universal, pandemic, epidemic, endemic, inescapable, insidious46 Parole Act 2002, s 107I(2).47 Oxford English Thesaurus (online ed, Oxford University Press, 2019).[39] A very limited pattern of offending will not therefore be sufficient. A"pervasive" pattern must be more prevalent or widespread than that. However, as isapparent from the Martin case, two incidents of offending may be sufficient toestablish a pervasive pattern where it is apparent that there are a significant number ofcommon features of the offending, such that the pattern that exists is a reliableindicator of future risk.Is there a "pervasive pattern" of serious sexual offending by Mr Ihimaera?[40] Turning now to the facts of this case, both the Chief Executive and Mr Ihimaerahave provided the Court with expert psychological evidence. The application wassupported by a report from Dr Juanita Smith, a registered clinical psychologist, dated28 February 2017. Dr Smith has also provided an updated report, dated 12 November2018.[41] Mr Ihimaera has provided a report from Dr Greg Woodcock, dated 29 March2018. That report critiques Dr Smith's initial report and provides an interpretation ofthe term pervasive in a psychological context. In particular, Dr Woodcock definespervasive as being something that permeates the entire development and therefore theentire functioning of the individual. It therefore exists in or on and through every partof that person's clinical presentation, including cognition and subsequent behaviour.[42] The only one of the three reports that was not before Muir J was Dr Smith'supdated report of 12 November 2018. Neither that report, nor her initial report,attempted to engage with the interpretation of the word "pervasive" or the phrase "apervasive pattern of serious sexual offending." Dr Smith gave oral evidence at thehearing before me, however, in which she did address this issue. She said that in thefield of psychology, a "pervasive" condition would be one that was evident acrossdifferent times, settings, and contexts. Regarding the term "pervasive pattern,"Dr Smith said:If I'm asked to consider pervasive patterns, which is sexual offending withrespect to Mr Ihimaera's case, I might be inclined to think that two offenceson their own don't constitute a pervasive pattern of sexual offending, or strongevidence of a pervasive pattern. But equally I think that the number ofinstances alone does not always determine a pattern. So, when thinking abouta pattern, I think of it as something that's both regular and intelligible and Ithink that a pattern can be determined from a psychological perspective in thiscase. So, I think that there are, one, shared characteristics across his sexualoffences that assist me in understanding a pattern to his sexual offences. AndI also think that there is a psychological pattern that Mr Ihimaera shows interms of his thinking, feeling and behaving. Like a behavioural signature ifyou like, that explains why he has offended across the board includingsexual offences, and can be relied upon to predict this future offending.[43] Dr Smith identified the shared characteristics of Mr Ihimaera's offending asfollows:So, I think there is a pattern to first of all, his sexual offending instances orconvictions, in that his offences have both occurred in the context ofMr Ihimaera being at a party, intoxicated on alcohol and drugs andexperiencing sexual arousal. I think both the offences are similar in the sensethat they're opportunistic offences that are committed with a high likelihoodof being caught. Both of the offences involved two different victims. Bothoffences, sex involved to some extent distress of the victims in the offending.His victims were both vulnerable by virtue of age and both were victimisedwhen the same age consenting partner was unable to be achieved. Comingback in terms of separated by time, things that do make me think there is apervasiveness to the pattern is that there are two different victims. They havebeen offences that occurred three to four years apart. There was a sanction inbetween them. While there wasn't an escalation in offending that may alsosuggest pervasiveness in pattern in terms of seriousness and intrusiveness,there was a return to a younger aged victim despite being sanctioned with animprisonment for an underaged victim prior to that.[44] In terms of Mr Ihimaera's behavioural signature or psychological pattern,Dr Smith said:In terms of the second way I think about it, the deeper level of personality that– a personality pattern that's pervasive and that contributes to the offending, Iconsider Mr Ihimaera to have an antisocial personality pattern or a criminalpersonality pattern. That explains all of his offences, and included in this istwo sexual offences. This means that generally Mr Ihimaera has little regardfor the rights of others. He manipulates, deceives and dominates others tomeet his needs and wants. He does not consider consequences of his actionsfor himself or others. He has a very well-established tendency to becomeeasily frustrated when he doesn't get what he wants and at those times tothreaten or commit actual violence to try to achieve those needs. He has apervasive pattern of low empathy for others, he has shown no remorse for pastharm, he's impulsive and reckless with his behaviours and decisions. And it'sthat personality style that has been established by my assessment and acrossnumerous mental health assessments in the past.[45] Dr Smith noted that Mr Ihimaera often has adult consenting partners to meethis sexual needs. His antisocial personality attributes, however, put him at high riskof opportunistic sexual offending when a consenting adult partner is not available.This risk is increased if Mr Ihimaera has been drinking or consuming drugs (he has anadmitted, and untreated, alcohol/drug problem).[46] Dr Smith's view was that when both the shared characteristics of the previousoffending, and the personal characteristics of the offender, are considered together, apervasive pattern of offending is evident (as is a high risk of future sexual offending).Viewed through this lens, the incidents are not two isolated and disconnected episodes,but together represent a distinct pattern of offending. Mr Ihimaera's "pathway tooffending" is not a deviant one (Dr Smith does not assess him as having a deviantsexual interest in children) but an antisocial one. It results from his very poorbehavioural and impulse control, very poor self-regulation, and lack of empathy forothers. His offences are opportunistic in nature, rather than being premeditated orinvolving grooming.[47] There are some dissimilarities in the two incidents of offending, as noted byMuir J. However, in light of Dr Smith's expert evidence on this issue (which was notbefore Muir J), I am satisfied that there are also very significant similarities in theoffending, as summarised in Dr Smith's evidence set out at [43] above. I am thereforesatisfied that there is a pattern to Mr Ihimaera's sexual offending. However, as I havepreviously noted, the existence of a pattern of serious sexual offending is not, in itself,sufficient. The Act requires a pervasive pattern of such offending before an extendedsupervision order can be made.[48] I am not satisfied that Mr Ihimaera's pattern of sexual offending could fairlybe described as "pervasive," in the sense I have outlined above. Mr Ihimaera iscurrently 28 years old. The first incident of sexual offending occurred when he was18 and the second when he was 21. He has not committed any further offences in thelast five years or so (albeit I note that he appears to have been imprisoned for asubstantial part of that time). His "pattern" of sexual offending is limited in itsexpression. In my view, it cannot properly be described as "pervasive" in the ordinarysense of that term (as set out above).[49] I keep in mind the Court of Appeal's warning in Simmonds that the thresholdtest for an extended supervision order is very high, and the concern that dangerouspeople be supervised cannot be used to warp the natural meaning of the words in s107C (or in this case, s 107I).48 As I have previously noted, the high threshold teststhat must be met before an extended supervision order can be made reflect the balancestruck by Parliament between the community's interests in being protected from thosewho are at risk of committing serious offences in the future, and the rights of suchpersons (a significant proportion of whom will never commit further serious crimes)to their liberty once they have completed their sentences.[50] I accept that two instances of offending may be sufficient to meet the"pervasive" requirement in some cases, particularly where the offending is at thevery serious end of the spectrum (for example, rape offending) and the pattern that hasbeen identified is very strong. Martin appears to fall in that category, as doesChief Executive Department of Corrections v Skudder.49 In other cases, however, twoincidents of offending, even if they disclose some type of pattern, will not be sufficientto meet the "pervasive pattern" threshold, because the pattern that can be identified isinsufficiently developed, prevalent, widespread or ubiquitous. I consider that to be thecase here. One of the key threshold requirements for the making of an extendedsupervision order is accordingly not met.Result[51] The application is dismissed.[52] If any issue as to costs arises then:(a) Mr Ihimaera is to file his memorandum within 15 working days of thisjudgment.(b) The Chief Executive is to file his memorandum within a further10 days.48 Simmonds v Chief Executive of the Department of Corrections, above n 34, at [30].49 Chief Executive Department of Corrections v Skudder [2016] NZHC 1717.[53] I will then deal with the issue of costs on the papers unless I require the furtherassistance of counsel.__________________________Katz J