CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WELLS [2023] NZHC 3356

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WELLS [2023] NZHC 3356 [24November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-492[2023] NZHC 3356UNDER Section 107F of the Parole Act 2002IN THE MATTER of an application for an extended supervisionorderBETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND LEWIS PAYNE WELLSRespondentHearing: 16 November 2023Appearances: K Li for the ApplicantL Wells self-represented Respondent in personJudgment: 24 November 2023JUDGMENT OF GORDON JThis judgment was delivered by meon 24 November 2023 at 10.30 amsRegistrar/Deputy RegistrarDate:Solicitors: Meredith Connell, AucklandCopy to: L Wells[1] The Chief Executive of the Department of Corrections (Chief Executive)applies for an interim supervision order (ISO) under s 107FA of the Parole Act 2002(the Act) against the respondent Lewis Wells, pending the hearing of the ChiefExecutive's application for an extended supervision order (ESO) against Mr Wells.1[2] On 20 April 2023, Mr Wells was sentenced to one year and four months'imprisonment on two charges of doing an indecent act on a young person unders 134(3) of the Crimes Act 1961 and a charge of failing to comply with the reportingobligations of the Child Sex Offender Register.2 By the time he was sentencedMr Wells had spent 21 months in custody and accordingly, was eligible for immediaterelease.[3] Mr Wells was subject to release conditions until 19 October 2023. The ChiefExecutive filed his application for an ESO on 21 September 2023.3 That applicationwill be heard on 11 April 2024.[4] The Chief Executive sought a hearing of the application for the ISO prior tothe expiry of Mr Wells' release conditions but there was no available hearing time.[5] Mr Wells, representing himself, opposes the making of both an ISO and anESO.Interim supervision orders[6] An ISO is a temporary measure to provide for the supervision of an offenderbefore an application for an ESO can be determined, in circumstances where theoffender is not otherwise subject to release conditions.[7] Section 107FA does not prescribe any particular test for an ISO. I follow theapproach of Muir J in Chief Executive of the Department of Corrections v Ihimaera,namely that before making an ISO the Court must be satisfied that the statutory criteria1 Mr Wells is an eligible offender under the Parole Act 2002 (the Act) having been convicted of"relevant sexual offences" as defined in s 107B(2): sexual violation (s 128B); sexual conduct witha person under 12 (s 132(3)); and sexual conduct with a person under 16 (s 134(3)).2 R v Wells [2023] NZHC 856.3 Thus complying with the time for filing an application in s 107F(1)(a)(ii) of the Act.for making an ESO are made out (albeit on a provisional basis and where the evidenceis often untested)4.Statutory criteria for an ESO (and an ISO)[8] Section 107I of the Act provides, as relevant, that the Court may make an ESOif the Court is satisfied, having considered the matters addressed in the healthassessor's report, that:5(a) the offender has, or has had, a pervasive pattern of serious sexualoffending; and(b) there is a high risk that the offender will in future commit a relevantsexual offence.[9] Section 107IAA then sets out the matters the Court must be satisfied of in orderto establish (b) above. The section provides in relevant part:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligibleoffender will commit a relevant sexual offence only if it is satisfiedthat the offender—(a) displays an intense drive, desire, or urge to commit arelevant sexual 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 aboutthe impact of his or her sexual offending on actualor potential victims.4 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [13]–[14], inlight of the Supreme Court decision in Chisnall v Chief Executive of Department of Corrections[2017] NZSC 114, [2018] NZLR 83.5 Section 107I(2).[10] For the Court to be "satisfied" no burden of proof is imported. The Courtmakes up its mind on an objective basis.6[11] If the criteria in s 107IAA are met, the Court must then consider whether itshould exercise its discretion to make an order.Assessment of risk and justification for order[12] The determination of "high risk" is a judicial assessment, not solely reliant ona "mechanical and potentially formulaic assessment of risk".7[13] While the pre-conditions for making an order are expressed in the presenttense, those traits and characteristics, while needing to be present, do not need to bemanifested at the time an ESO application is determined. The real question is whetherMr Wells has the particular characteristic such that it may manifest itself in the rightset of circumstances.8[14] There must be a "strong justification" for an ESO before an order is made.9That "strong justification" is not met simply because oversight would be desirable orbeneficial to the offender as they transition into the community.10[15] This justification applies when the Court determines whether the criteria for anESO are made out on a provisional basis for the purpose of making an ISO.Case for the Chief Executive[16] The Chief Executive relies primarily on the report of Dr Charlotte Gibson, aregistered clinical psychologist, dated 1 September 2023 and prepared for the ESOhearing. (Dr Gibson will be available for cross-examination at that hearing.)6 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8HRNZ 770 at [75] adopting the approach in R v Leitch [1998] 1 NZLR 420 (CA) at 428, in relationto sentencing decisions involving preventive detention.7 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52].8 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]–[27].9 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [190] and Chisnall v TheAttorney-General [2022] NZCA 24 at [3(a)]. See also R (CA586/2021) v Chief Executive of theDepartment of Corrections [2022] NZCA 225 at [53].10 Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [47].Dr Gibson bases her assessment on Department of Corrections file information,including psychological reports, as well as interviews with staff involved withMr Wells' care and supervision. Dr Gibson also interviewed Mr Wells and employedpsychometric instruments to inform her assessment. The Court is also referred to tworeports prepared pursuant to s 88 of the Sentencing Act 2002 for Mr Wells' sentencingon 20 April 2023 from: clinical psychologist Dr Willem Louw dated 6 December2022; and forensic psychiatrist Dr Oliver Hansby dated 12 January 2023.[17] The Chief Executive says that the evidence establishes that:(a) Mr Wells has, or has had a pervasive pattern of serious sexualoffending;(b) there is a high risk Mr Wells will commit a relevant sexual offence inthe future; and(c) the statutory criteria have been made out on a provisional basis.[18] The Chief Executive also seeks the imposition of the standard conditions foran ESO in s 107JA of the Act,11 and certain special conditions that may be imposed onan ESO under s 107K.12Mr Wells' background and sexual offending[19] Mr Wells is 81 years old. He has a number of tertiary qualifications and workedas a teacher for 20 years. His sexual offending began when he was 64 years old.Dr Gibson notes that Mr Wells is observed to reoffend approximately every two tothree years, typically coinciding with him completing his community sentence. Hismost recent convictions took place two years after he completed a six month sentenceof home detention but coincided with the ending of treatment with a privatepsychologist with whom he engaged from 2018 to 2021.[20] There are four sets of sexual offending as follows.11 Provided for in s 107FA(3) of the Act.12 Provided for in s 107FA(3) of the Act.2007–2009[21] On 3 June 2010 Mr Wells entered guilty pleas to representative charges ofsexual offending during the period of March 2007 to September 2009. He wassentenced on 12 November 2010 in the District Court at Auckland to four years andsix months' imprisonment.13 The charges were:(a) two representative charges of sexual violation by unlawful sexualconnection;(b) one representative charge of sexual conduct with a person under 12;and(c) two representative charges of sexual conduct with a person under 16.[22] At the time the offending commenced Mr Wells was aged 64 and the victimwas 11 years old. They met when the victim assisted Mr Wells with the removal ofinorganic rubbish from a garage and Mr Wells paid him for that service. The victim,described by the sentencing Judge as coming from a "very challenging and somewhatharsh home environment", began visiting Mr Wells at Mr Wells' home.14 The victimundertook odd jobs for Mr Wells, some for which he was paid. Mr Wells mentoredthe victim through supplementary studies and assisted with his education.[23] Over the months that followed Mr Wells became infatuated with the victim.His offending began with a mouth-to-mouth kiss between the two which sexuallyaroused Mr Wells. As the relationship between the two continued over the followingtwo years, the victim's family became grateful for what they thought was the innocentcare of their child and permitted Mr Wells to have open contact with the victimwhenever he wished. The family ultimately permitted him to spend the night atMr Wells' place. Mr Wells continued to provide the victim with gifts and money.[24] After 21 November 2007 when the victim was 12 years old, Mr Wells'offending progressed to him masturbating the victim and performing oral sex on him.13 R v Wells DC Auckland CRI-2009-004-022990, 12 November 2010.14 At [3].Sometimes Mr Wells would masturbate himself. He told the victim that he loved himand that their relationship was very important to both of them.[25] From the outset, Mr Wells made it clear to the victim that the true nature oftheir relationship was to remain a secret. The sexual offending occurred repeatedlyuntil September 2009.[26] Over the period Mr Wells was involved with the victim he estimated he spentin the vicinity of $3,000 to $4,000 on the victim.[27] When he was spoken to in October 2009, Mr Wells said he knew therelationship was wrong and he had taken advantage of the victim's naivety, but foundhimself unable to control his sexual desires and activity. He also asserted that thevictim was a willing participant at all times. Mr Wells was said to be apologetic forhis wrongful behaviour.2015 offending[28] On 29 September 2015 this Court allowed Mr Wells' appeal against sentenceand imposed a sentence of nine months' home detention on two charges of doing anindecent act with a child (boy) under 12.15[29] Mr Wells had met the victim, a nine year old boy, on the footpath in Aucklandon two occasions between the beginning of December 2014 and the end of January2015. On both of those occasions Mr Wells gave the victim money and offered to givehim a ride in his car or to buy him fast food. On another day at the end of January2015, Mr Wells drove his motorbike to the victim's address. He approached the victimand his 11 year old brother in front of their home and asked them if they rememberedhim. He then put his hand on the victim's head before rubbing it down his back to hisbottom where he held and squeezed the victim's buttocks.[30] Mr Wells then gave the victim and his brother money from his wallet beforeagain touching the victim. Mr Wells leaned forward lowering his head to the same15 Wells v R [2015] NZHC 2075 and Wells v R [2015] NZHC 2371.level as the victim, pulling the boy's head into him and again lowered his hand to theboy's bottom where he held and squeezed the victim's buttocks once more.[31] Two passing public health nurses intervened and alerted the victim's parents.Mr Wells was aged 72 at the time.2017 offending[32] In July 2018 Mr Wells appeared for sentence on a charge of indecent assaulton a boy under 12 years. At the time of the offending the boy was aged nine andMr Wells was 74 years old.[33] In August 2017 the victim was at a Briscoes store with his aunt. Mr Wellsapproached the victim after the victim had become separated from his aunt. Afterchecking his surroundings Mr Wells began to engage with the victim. Overapproximately 45 minutes the following (as recorded on the store's CCTV) occurred:(a) After talking to the victim for about a minute, Mr Wells pulled thevictim in towards his body from behind and hugged him by wrappingboth arms around him.(b) Mr Wells then stood behind the victim with his left hand on the victim'sleft shoulder while they looked at items on the shelf in front of them.(c) While still looking at items on the shelf, Mr Wells moved himselffurther forward behind the victim so that he stood right up against him.Mr Wells gestured to an item on the shelf and briefly rubbed thevictim's right shoulder with his right hand.(d) Mr Wells continued talking to the victim and stepped in close to him,bending down slightly so that the side of his face was up close to thevictim's face. Using his left hand Mr Wells reached down and touchedthe victim's left hip and rubbed the left side of the victim's torso forabout eight seconds.(e) Mr Wells stepped away from the victim and continued talking to him.Again Mr Wells came in close toward the victim, put his face up closeto the victim's face and tickled his chest with his hands.(f) Mr Wells stepped away from the victim, who stood still looking at theground.(g) Mr Wells reached towards the victim and took the victim's right wristin both of his hands. Mr Wells cupped the victim's face with both handsand briefly rubbed his back with his left hand.(h) Mr Wells stepped to the side of the victim and continued to talk to himand look at what was on the shelf. After about 30 seconds, Mr Wellsstepped up close against the victim and gestured toward what was onthe shelf.(i) Mr Wells briefly stepped away from the victim to look at an item on theshelf and quickly stepped back up close against the victim still lookingat the items.(j) The victim stepped closer towards the shelf prompting Mr Wells to takea step in closer and bend down so that his head was alongside thevictim's head.(k) Mr Wells stood upright but remained close to the victim while lookingat and touching an item on the shelf for approximately a minute.(l) Mr Wells stepped back and continued looking at items with the victimfor another minute before he briefly rubbed the back of the victim'sneck and back with his right hand.(m) After about another minute Mr Wells again placed his right hand on thevictim's back briefly, before continuing to browse the shelf.(n) After about a further minute, Mr Wells stepped behind the victim andpulled him towards his body. With the victim leaning against him,Mr Wells reached over the victim's shoulders and briefly touched hischest with both hands and reached down and touched each of thevictim's knees with his hands.[34] After a young girl, approximately seven to eight years old, looked towardswhere Mr Wells and the victim were, Mr Wells approached her briefly and then walkedto another area in the store near the front of the coffee machines. The victim followedMr Wells to that area and Mr Wells, standing about a metre away from the victim,continued to talk to him. After a short period Mr Wells reached towards the victimand briefly touched his right wrist before stepping back and continuing to talk to thevictim. Mr Wells remained talking to the victim, standing apart from him forapproximately four and half minutes before taking the victim's hand in his hand brieflyand walking alongside the shelving. Mr Wells stopped walking briefly and tussled thevictim's hair with his right hand.[35] The victim walked away from Mr Wells until he came across his aunt.Mr Wells then approached the same area. After about a minute, Mr Wells reached overtowards the victim with one arm, pulled him towards his body by his head, rubbed hisshoulder and patted his back briefly. Mr Wells continued to talk to both the victim andhis aunt and then licked his finger and wiped the victim's face with it.[36] After the victim and his aunt moved from that part of the store, Mr Wells againapproached them, placing his right hand on the victim's back and his left hand on thevictim's chest, briefly rubbing it while talking to the victim's aunt. Mr Wells thenrubbed the left side of the victim's face and hair. He then rubbed the victim's hair withboth hands.[37] The victim's aunt walked away and Mr Wells quickly approached the victimand gave him a hug. The victim then followed his aunt away from Mr Wells.[38] Around five minutes later the victim was again in the area where Mr Wells was.Mr Wells reached towards the victim and pulled him backwards towards his body,reached over the victim and grabbed the victim's knees with each hand. Mr Wellsstood upright and walked with the victim whilst rubbing the victim's back and neckwith his hand. Mr Wells then stood next to the victim and looked at the shelf brieflybefore using his left arm to put the victim in a headlock, tussling his hair and ticklinghim.[39] Mr Wells then spoke to the victim about two coffee mugs he had selected,before walking down an aisle with the victim, placing his right hand on the back ofthe victim's head as they walked together. Mr Wells continued to walk down the aislewith his right arm around the victim's head, shoulder and neck, hugging him closelyas they walked. At the end of the aisle Mr Wells rubbed the victim's back with hishand and stopped walking momentarily to point at the shoes he was wearing.[40] Mr Wells then placed one of the coffee cups that he was carrying back on theshelf and continued to talk to the victim. After about 30 seconds of talking Mr Wellsquickly glanced to his right and then immediately focused on the victim. He reacheddown with his left hand and placed the palm of his hand onto the victim's t-shirt whereit was overhanging the lower abdominal/crotch area of his shorts. Mr Wells grabbedthe bottom of the victim's t-shirt and lifted it up exposing the victim's stomach briefly.Mr Wells continued talking to the victim, reaching towards him with his hand, takinghold of the victim's wrist, and holding it briefly before the victim reacted abruptlypulling his hand away.[41] Mr Wells again took hold of the victim's right wrist and held on to it brieflybefore moving his hand and touching the back of the victim's neck and head. Mr Wellscontinued to talk to the victim in the same place and after a couple of minutes got outhis cell phone from his jacket pocket and showed it to the victim. As he did soMr Wells put his right arm around the victim and moved to stand directly behind himwith one arm on either side of the victim, holding the cell phone in front of him.Mr Wells, still standing behind the victim, briefly pulled the victim hard up against hisfront so that the victim's back was against Mr Wells' front.[42] The victim's aunt then approached the two of them. Mr Wells talked to her fora couple of minutes and in front of her tussled the victim's hair with his hand and heldon to each of the victim's hands, pulling him backwards and forwards a few times andthen gave him a hug. Mr Wells again touched the victim's hand and wrist, hugged himagain and rested his hand briefly on the victim's chest. Mr Wells again hugged thevictim while standing behind him, squeezed his right shoulder and pulled the victim'sface close up to his own, rubbing the victim's nose against his nose before walkingaway.[43] When spoken to by the Police, Mr Wells stated that the victim was very friendlyand happy to be cuddly with him. He said he was seeing a psychologist to help himwith his urges.[44] On 19 July 2018 Judge A J Johns sentenced Mr Wells to home detention.16 Indoing so, the Judge took into account the fact that Mr Wells had spent some 10 monthsin custody (equivalent of a 20-month sentence) and imposed a sentence of six monthshome detention.17 The Judge also ordered that Mr Wells be placed on the Child SexOffender Register and gave him a second strike warning.18Index offending (2021)[45] On 20 April 2023, Woolford J imposed a sentence of one year and four months'imprisonment after Mr Wells pleaded guilty to two charges of indecently assaulting achild between the age of 12 and 16,19 and one charge of failing to comply withreporting obligations of the Child Sex Offender Register.20 In his sentencing decisionWoolford J summarised the offending first in relation to charges 1 and 2, an indecentact on a young person, as follows:21[3] The offending to which charges 1 and 2 relate occurred between May andJune 2021. The complainant was 12 years old at the time, and you were 78.You met the complainant and his family in early 2021, and in March you wentto their home address after seeing a Facebook post by the complainant'smother on a community page. Once there, you told the complainant's motherthat you had previously worked as a teacher and offered to provide freetutoring to the complainant, which she accepted.16 R v Wells [2018] NZDC 14817.17 At [23].18 At [26].19 Crimes Act 1961, s 134(3). Maximum penalty: seven years' imprisonment.20 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39.Maximum penalty: one year imprisonment and/or a $2,000 fine.21 R v Wells, above n 2.[4] In May 2021 a tutoring session took place, and after the lesson you tickledthe complainant under his armpits, around his chest area and belly. Thecomplainant's mother was uncomfortable with this and sent a text messagesaying that the tutoring was no longer needed.[5] The first offence occurred between May and early June 2021, after thetutoring had stopped. You went to the complainant's address uninvited andspoke to him about his schoolwork. During this, you touched his head andmoved your hand lower, touching his bottom approximately four times.[6] The second offence occurred a few days later, when you again approachedthe complainant outside his address and touched him in a similar manner.[7] The complainant was uncomfortable after each incident of touching andtold his mother about the interaction. His mother had seen one of the incidentsand on 2 June 2021 she texted you, asking that you stop coming to theiraddress unannounced.[46] On charge 3, failing to comply with reporting obligations, Woolford Jsummarised the offending as follows:22[9] On 19 July 2018, you were placed on the Child Sex Offender Register.On 20 July 2018, you were inducted into the Register and advised of yourobligations, which included the requirement to provide details of any onlinesocial networks that you use or intended to use.[10] On 19 July 2020, you completed an Annual Information Report pursuantto those obligations but failed to disclose a Facebook account under the name"Lew Wells" which was active and included posts from November 2020 andJune 2021.Does Mr Wells have, or has he had, a pervasive pattern of serious sexualoffending?[47] The term "serious sexual offending" is not defined in the Act. I adopt thefollowing general principles regarding "serious sexual offending" as set out in thesubmissions of counsel for the Chief Executive:(a) "Serious sexual offending" should be interpreted by reference to itsordinary meaning, viewed against the purpose of the ESO regime.23 Inordinary language, "serious" means important, grave, havingpotentially important consequences, giving cause for concern, of22 R v Wells, above n 2.23 Holland v The Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1NZLR 771 at [13].significant degree or amount, or worthy of consideration.24 It is anassessment for the Judge on the facts of the particular case.25(b) In cases where there has been offending over a long period of timeagainst a number of victims, this has been sufficient without the needfor further analysis.26(c) Whether or not offending meets the threshold "requires a fact specificinquiry on a case by case basis".27 The totality of circumstance isimportant to determine whether a pervasive pattern of serious sexualoffending existed.28(d) The "serious" requirement in this context should not be interpreted toimpose an unduly high threshold. Seriousness depends on thecircumstances of the offending in the particular case.29(e) When assessing seriousness a Court may conduct a retrospectiveexamination of the offending and determine that an offence which, inisolation, appears less serious, can in fact be part of a more insidiouspattern of conduct.30(f) It is not necessary for the offences to be the same for them to constitutea pattern of serious sexual offending, provided that there are importantsimilarities between them.3124 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44] citing TheNew Shorter Oxford English Dictionary (4th ed, Clarendon Press ,Oxford 1993) at 2785.25 Holland v Chief Executive of the Department of Corrections, above n 24, at [45].26 As was the case in Chief Executive of the Department of Corrections v Wrigley [2015] NZHC1712; The Chief Executive of the Department of Corrections v Rimene [2015] NZHC 2721; andChief Executive of Department of Corrections v Te Pania [2016] NZHC 1215.27 Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 597 at [38].28 Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [29] citing Wardle vThe Chief Executive of the Department of Corrections [2017] NZCA 298 at [42]–[43].29 Holland v Chief Executive of the Department of Corrections, above n 24, at [48].30 W (CA716/2018) v Chief Executive of the Department of Corrections [2019] NZCA 460 at [20].31 Holland v Chief Executive of the Department of Corrections, above n 24, at [55].(g) Indecent assaults are capable of being sufficient to constitute "serioussexual offending".32[48] I also bear in mind what was said by the Court of Appeal in Kiddell v ChiefExecutive of the Department of Corrections regarding protected rights under the NewZealand Bill of Rights Act 1990:33[27] Finally, an ESO engages BORA-protected rights. This Court haspreviously held that the ESO regime creates a retrospective double penalty, socontravening s 26 of the New Zealand Bill of Rights Act 1990, but nonethelessmust be given effect under s 4 of that Act. The Supreme Court has recognisedthat the Parole Act's statutory purpose requires that courts not be deniedclearly relevant information when deciding whether an offender is eligibleunder s 107I for an ESO. But when deciding whether to make an ESO, andfor how long, courts must recognise that the order may impinge substantiallyupon the offender's freedom of movement and association. These rights mustbe borne in mind when deciding both whether the offender has or had thenecessary pervasive pattern of serious sexual offending and whether theoffender presents a high risk of future serious relevant offending.[49] As to whether a "pervasive pattern" exists, this term was discussed by the Courtof Appeal in Kiddell as follows:34[23] Sixth, a pervasive pattern is one that is sufficiently characteristic of theoffender to serve as a predictor of future conduct. We make several pointsabout this:(a) In ordinary usage, to be pervasive is to be present throughout.The adjective is here used in connection with the behaviourof a person, and the legislation also identifies certain relevanttraits or characteristics: an intense drive to commit relevantsexual offences, a predilection for serious sexual offending,limited self-regulatory capacity and an absence ofresponsibility or an absence of understanding of victimimpact. It is for these reasons that we have defined apervasive pattern simply, as a pattern that is characteristic ofthe offender.(b) The pattern must be sufficiently pervasive to serve as apredictor of future conduct; we adopt that purposive standardbecause the pattern determines whether the offender issusceptible to an ESO.32 See, for example, Wardle v The Chief Executive of the Department of Corrections [2017] NZCA298.33 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 (footnotes omitted).34 Footnotes omitted.(c) In ordinary usage "pattern" connotes regularity but a patternmay take any form or sequence. A pattern that includesrelevant but less serious conduct may be found pervasive.[50] I also refer to the statement by Muir J in Chief Executive of the Department ofCorrections v Ihimaera:35[46] The word "pervasive" is defined as "having the quality or power ofpervading; penetrative, permeative, ubiquitous". 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". Taken together thetwo words suggest that the previous offending must have characteristics soprevalent and common as to provide a reliable predictor of relevant futureconduct.[51] Mr Wells, while acknowledging his offending in 2007–2009 was "of a seriousnature", submits that his offending since then cannot be regarded as serious sexualoffending. He refers to the judgments of both Duffy J and Woolford J to say that hisoffending falls at the low end of the spectrum.36 He also says that, what he describesas the "infrequent and random reported events", do not make for a "pattern".[52] In this case Mr Wells has 10 relevant sexual violence convictions. In her report,Dr Gibson provides a helpful summary for the purpose of considering whether thereis a pervasive pattern of serious sexual offending. She says:31 To summarise, since age 64, Mr Wells has demonstrated a chronicpattern of sexual offending, in spite of detection and legal sanction(imprisonment and home detention). Mr Wells' sexual offendinghistory has exclusively involved prepubescent (9-13) Māori orPasifika males and has been restricted to unlawful sexual connection(first victim only), indecent acts and indecent assaults. Mr Wells' firstperiod of offending demonstrated a greater degree of planning,deception and intrusiveness, involving grooming and occurring overa significant length of time, whereas his more recent offences havebeen more impulsive and against individuals with whom he had littleto no prior relationship with, in public settings. [53] Dr Gibson also notes, as referred to in the various summaries of facts, that:35 Chief Executive of the Department of Corrections v Ihimaera, above n 4, (footnotes omitted).36 In R v Wells, above n 2, the Crown acknowledged that Mr Wells' offending fell at the lowest endof that type of offending (indecent acts) and Woolford J adopted the same starting point(18 months' imprisonment) that Duffy J considered appropriate for Mr Wells' prior offending inR v Wells [2015] NZHC 2075. Justice Duffy considered Mr Wells' offending was less serious thanmany of the cases raised by counsel. Mr Wells has additionally engaged in psychological coercion (usingrewards such as money, food, favours, as well as playful engagement,affection, and threats of getting in trouble) to obtain the victims' trust andavoid detection, which serves to ensure compliance during the interaction. ...[54] Dr Gibson says that Mr Wells' pattern of offending across time appears to beone of reducing severity. However, she notes that the latter three sets of offendingtook place in the presence of others who intervened and had they not, Mr Wells mayhave progressed to more serious sexual offending over time.[55] As to the regularity of Mr Wells' offending, Dr Gibson states: Mr Wells offends approximately every three years and most typically,immediately after external monitoring ends. It is considered that at thesetimes, Mr Wells disregards the consequences of offending, due to hisgrandiose views about interacting with children and enjoyment of risk-takingbehaviour. [56] In passing sentence Woolford J considered that the index offending did notmeet the required level of seriousness for the imposition of preventive detention(which the Crown acknowledged) but said: "it is clear that further supervision isnecessary to manage the risk of reoffending in your case, as made clear by both s 88reports and the PAC report".37[57] Mr Wells' sexual offending in 2007 to 2009 was serious. The balance of hissexual offending is less serious having regard to the level of physical contact involved.All of the offending after 2009 involved touching over clothing (although in theBriscoes offending I note Mr Wells lifted up the victim's t-shirt) and for relatively briefperiods. However, and this is clear from Holland v Chief Executive of the Departmentof Corrections, an assessment of seriousness is to be made on the totality of thecircumstances.38[58] The offending in 2015 has serious aspects to it. Mr Wells went to the victim'saddress after having approached him twice previously in the street when the victimwas unknown to him, and on both of those occasions he offered the victim money, a37 R v Wells, above n 2, at [37].38 Holland v Chief Executive of the Department of Corrections, above n 24, at [48].ride in his car or offered to buy him fast food. On the occasion of the offendingMr Wells gave the victim and his brother money.[59] The offending in 2017, again while less serious than the 2007–2009 offending,was opportunistic and brazenly carried out in a public place, a retail store. WhileMr Wells says (as recorded in the summary of facts) the victim was "happy to becuddly with me", the Judge in her sentencing remarks said "[The victim], very briefly,says he did not feel good about what happened and now he does not talk tostrangers".39[60] The index offending occurred on the deck of the victim's address and a fewdays later outside the victim's address after his mother had become uncomfortablewith Mr Wells' conduct and told him that the tutoring was no longer needed. Insentencing Mr Wells, Woolford J stated:40[31] There [the 2015 offending], a starting point of 18 months' imprisonmentwas adopted by Duffy J on the basis that, while the connection itself was atthe lower level of seriousness, there was a degree of premeditation andgrooming that warranted a higher starting point. Your counsel submits thatthe instant case is distinguishable as you did not give money to thecomplainant. I do not consider that whether or not you gave money to thecomplainant is a significant factor. In both cases, you took steps to ingratiateyourself with the victim or their family, through offering money or freetutoring in order to gain proximity. The same factors of premeditation arepresent, as well as the vulnerability of the victim and a significant agedisparity, which was even greater at the time of this offending.[61] I consider all the offending, in combination, qualifies as serious sexualoffending. The victims were vulnerable due to their age and the resulting age disparitywith Mr Wells. The offending also has aspects of psychological coercion involvingmoney and offers of food or favours. The presence of others in the last three sets ofoffending appears to have precluded any escalation of Mr Wells' actions. I noteMr Wells' submission that he was the one who stopped on each occasion, but it seemsto me that it was the presence of others which prevented any further offending againstthe victims.39 R v Wells, above n 16, at [14].40 R v Wells, above n 2.[62] I consider that the four sets of offending have characteristics that are prevalentand common to all and the totality of circumstances demonstrate a pervasive patternof serious sexual offending. Mr Wells tends to offend approximately every three yearsand most typically after external monitoring ends.[63] I am satisfied that Mr Wells has or has had a pervasive pattern of serious sexualoffending.Is there a high risk Mr Wells will commit a further relevant sexual offence?[64] In order to answer this question the Court must consider the criteria ins 107IAA of the Act. I address each in turn.Does Mr Wells display an intense drive, desire, or urge to commit a relevant sexualoffence?[65] Dr Gibson notes that Mr Wells typically begins by engaging in playful touchingwith a prepubescent male, which can progress towards sexual touching, namelytickling and patting the child on the bottom over their clothing. He is observed to findthis urge for contact with a child difficult to manage and his sexual offence historysuggests he will be compelled to revisit the victim until stopped by legal sanction.Dr Gibson states that Mr Wells' behaviour of repeat offending suggests a pattern ofdifficulties in controlling the intensity of urges for both emotional and sexual contactwith children.[66] Dr Gibson says Mr Wells' continual experiencing of sexual attraction towardsprepubescent males serves to maintain an intense desire towards sexual offending. Sheobserves that Mr Wells' offending in public has reflected the presence of an intensedrive, as he continues in spite of the high likelihood of observation and potentialapprehension. Dr Gibson considers that Mr Wells' ongoing urges are driven not onlyby attraction towards prepubescent males but also grandiose views of himself andoffence-supportive beliefs (eg that his offending is not harmful to the child).[67] Dr Gibson notes that Mr Wells' drive, desires and urges were well-monitoredby his release conditions and he has expressed a desire to desist from his offending.However, she says that while Mr Wells has been proactive in developing strategies tomanage situations where he perceives there to be a risk (eg being around young boysin public settings), these strategies remain untested. She is of the view that withoutthe support of Community Corrections or external control, Mr Wells' history wouldsuggest a rapid deterioration in the ability to maintain such skills.[68] I am satisfied, based on Dr Gibson's evidence, that this characteristic is present.Does Mr Wells have a predilection or proclivity for serious sexual offending?[69] A person has a predilection for serious sexual offending if they have apreference or particular liking for serious sexual offending.41 A person who has aproclivity has an inclination toward something considered morally wrong, such asserious sexual offending.42[70] As Dr Gibson notes, Mr Wells has offended approximately every three yearsover the last sixteen years, and typically his offending coincides with the conclusionof external monitoring and oversight. She notes that Mr Wells has previously beendiagnosed with paedophilic disorder (and he appears to accept the diagnosis).Dr Gibson says this diagnosis is supported in her current assessment indicating thatMr Wells holds a strong sexual preference for prepubescent males. She says Mr Wellshas consistently acknowledged his sexual attraction towards, and thereby a"predilection" for, prepubescent males across his time with the Department ofCorrections. Dr Gibson considers that when faced with similar circumstances as inthe past (eg feelings of insecurity and in response to heightened sexual preoccupation)he is likely to again demonstrate a proclivity for sexual offending against prepubescentmales.[71] I am satisfied that this characteristic is present.41 Chief Executive of the Department of Corrections v B [2016] NZHC 2816 at [66].42 At [66].Does Mr Wells have limited self-regulatory capacity?[72] The expression 'limited self-regulatory capacity' was considered by Heath J inChief Executive of the Department of Corrections v B:43[91] I am not aware of any authority that has considered specifically thequestion of what is meant by the phrase "limited self-regulatory capacity".Use of the word "limited" suggests that questions of degree are involved inthis assessment. The phrase is used in the context of a list of factors that mustbe established before an extended supervision order can be made. Theapparent nexus is between the existence of limited self-regulatory capacity (onthe one hand) and high risk of committing a relevant sexual offence (on theother).[92] At one level, the inquiry is directed to whether an offender has alimited capacity to self-regulate his or her desires or urges to commit relevantsexual offences. Put another way, the question is whether an offender hassufficient capacity to self-regulate those impulses. Yet, to approach the issuein that way is over simplistic. As a matter of common sense, the extent of anyability to self-regulate those impulses is dependent on the capacity to avoidcircumstances in which the relevant drive, desire or urge are likely to manifestthemselves. [73] Dr Gibson states that Mr Wells appears to have demonstrated appropriate self-regulation skills across most aspects of his life, for most of his life. She notes that hehas been able to raise a family, engage in long-term employment, sustain long-termfriendships and pursue higher education.[74] In terms of his sexual offending Dr Gibson says that file information indicatesthat, following each offence, Mr Wells expresses a desire to desist and states that hemust stay away from potential victims. She says, however, this intention has not yettranslated into sustained behavioural change as evidenced by his repeat offending. Sheconsiders that when provided with an opportunity to engage in physical contact witha potential victim, Mr Wells desires the contact so greatly that he disregards thepotential consequences of his actions.[75] Dr Gibson says that Mr Wells' self-report appears to be shifting towards agreater motivation to regulate his sexual desires and behaviour, with the identified goalof regaining contact with his grandchildren and not returning to prison. (That was apoint Mr Wells made in his submissions to the Court.) She says it is of note that whilst43 Footnote omitted.under Community Corrections supervision, Mr Wells appeared able to regulate hisexperiences of sexual desire and urge towards sexual offending (albeit likely due tothe direct awareness of consequences and regular points of connection with hisprobation officer). But Dr Gibson comments that his offence history and self-reportindicate that he becomes more impulsive, has grandiose views of his right to interactwith male children, and has less regard for the consequences, after his sentences haveended, thus resulting in further offending.[76] Dr Gibson says, with this in mind, it is her opinion that while Mr Wells showsan ability to self-regulate more generally, his sexual self-regulation remainsproblematic for him. She acknowledges he is in the process of gaining further insightbut says that any changes are so far untested.[77] On the basis of Dr Gibson's evidence I am satisfied that Mr Wells has limitedself-regulatory capacity in relation to serious sexual offending.Does Mr Wells display a lack of acceptance of responsibility or remorse for pastoffending?[78] Dr Gibson notes that Mr Wells has expressed degrees of remorse andresponsibility across his offending history. However, regarding the first victim, whileon the one hand appearing to take a degree of responsibility for that offending, heminimised his role in the abuse stating that the victim was a willing participant whenin fact Mr Wells held significant power over him. Dr Gibson expresses her opinionconcisely as follows:64 It is the writer's opinion, on current evidence, that Mr Wells reportsremorse and has taken some responsibility for his offending (e.g.,pleading guilty, attempts at treatment). The writer considers that,consistent with his personality profile, Mr Wells' expressed remorserelates to the immediate and/or direct costs to himself (e.g., the loss ofa desired sexual object, the loss of freedom, the impact on hisrelationship with his family), more so than remorse for harm causedto others. It is of note, that Mr Wells has expressed similar sentimentsregarding regretting his behaviour and a desire to desist followingeach offence, suggestive that his expressions of regret and remorsealone do not sufficiently mitigate his risk of further reoffending. Hisrepeated return to offending upon the cessation of externalmonitoring, in the presence of cognitive distortions and engagementin minimisation, would indicate that the remorse expressed is notinternalised or impactful on Mr Wells' behaviour.[79] I consider that it is appropriate for this Court when considerings 107IAA(1)(d), to take into account both Mr Wells' verbal expressions and hisconduct. If a Court were to be limited to a consideration of a person's verbalexpressions, it seems to me that it would be all too easy for a person to say one thingbut mean another. I consider that a Court must be able to have regard to a person'sconduct, so as to assess whether any expressions which apparently display anacceptance of responsibility, remorse and understanding, are meaningful.[80] I acknowledge that, as Mr Wells points out, he has pleaded guilty to the chargesarising out of the four sets of offending. That indicates some acceptance ofresponsibility for the offending.[81] However, based on Dr Gibson's report, I am not certain that Mr Wells displaysfull acceptance of responsibility or remorse, in that I am not certain he understandshow his behaviour has affected the lives of the victims he offended against, or theirfamilies. For example, in relation to the index offending, Woolford J refers to thevictim impact statement from the victim as follows:44 He says that never in his life would he have thought he would be a victimof sexual assault. Every time he thinks about you makes him sick to hisstomach. Sometimes he wakes up in the middle of the night due to thenightmares he has about you. He has tried to forget about you multiple times,but what you did has stuck with him.[82] In his submissions to the Court Mr Wells suggests that the victim was notuncomfortable with his behaviour. Rather, Mr Wells says the language used in thevictim impact statement was the language of an adult, not the victim himself. Inrelation to the other victims, Mr Wells' position also was that the victims were notuncomfortable with his behaviour. For example, in relation to the 2017 offending (atBriscoes) he suggests the impact on the victim was created by the aunt later on.[83] On the whole, I consider that any verbally expressed acceptance ofresponsibility or expressed remorse does not indicate a full acceptance ofresponsibility or remorse by Mr Wells' for his past offending.44 R v Wells, above n 2, at [8].Does Mr Wells display an absence of understanding for or concern about the impactof his sexual offending on actual or potential victims?[84] It is not necessary for a finding to be made on this characteristic if the Court issatisfied, as I am, in relation to the above characteristic. They are alternatives. I will,however, go on to consider it. I have, in part, considered it in the context of mydiscussion of the characteristic above.[85] Dr Gibson is of the view that Mr Wells' awareness and concern about theimpact of his sexual offending on victims appears limited. As regards the first victim,Mr Wells reported that there was some negative impact caused by his actions as wellas some caused by the involvement of authorities. As to the subsequent victims,Mr Wells was of the view that there were no negative impacts but conceded that as thevictims had reported negative impacts, he had to believe them. Dr Gibson observedthat Mr Wells appeared averse to the idea that his interactions with children wouldever cause harm, repeatedly stating that he was loved by children and that a motivatorfor his offending was to make children feel happy. He believes that he interacts welland appropriately with children in a way that they enjoy.[86] Dr Gibson suggests that Mr Wells' rapid return to offending repeatedly afterrelease from conditions is further evidence that any concerns regarding harm topotential victims does not present as a sufficient barrier to further offending alone.Dr Gibson concludes that in her opinion, Mr Wells does not fully understand theimpacts of his sexual offending on actual or potential victims.[87] I accept that opinion based on all the evidence.Actuarial measures[88] As well as making her clinical assessments referred to above, Dr Gibson alsoadministered various psychometric instruments that assess static and dynamic riskfactors for sexual recidivism: the STATIC-99R; the STABLE-2007; and the ViolenceRisk Scale – Sexual Offence Version (VRS-SO). I address each in turn.[89] First, in relation to the STATIC-99R, Dr Gibson says:38 The STATIC-99R is a ten-item measure assessing static risk factorsempirically identified as being predictive of sexual recidivism. It hasfive risk categories ranging from Level I (Very Low) risk to Level IVb(Well Above Average) risk. Given Mr Wells' age and his NorthAmerican heritage, the STATIC-99R was considered to be able toprovide a more accurate prediction of Mr Wells' risk of reoffending,comparative to other available tools for assessing static risk factors.39 In the common risk language, Mr Wells' STATIC-99R score of 4placed him in the Level IVa Above Average risk category for beingcharged or convicted of another sexual offence. [90] As regards the STABLE-2007, Dr Gibson says:41 The STABLE-2007 assesses stable dynamic factors which have beenshown to increase or decrease the likelihood of sexual recidivismdetermined from static risk factors alone. The scale has shown anacceptable ability to differentiate between sexual recidivists and non-recidivists when used in addition to an assessment of static riskfactors. The STABLE-2007 consists of 13 items related topsychological, interpersonal and sexual functioning which are addedtogether to create a total score. Mr Wells scored 11 out of a possible26 on the STABLE-2007. The following STABLE items wereidentified as problematic for Mr Wells: significant social influences,capacity for relationship stability, lack of concern for others,emotional identification with children, poor problem-solving skills,impulsivity, sex drive/preoccupation, deviant sexual interest, andcooperation with supervision. STABLE-2007 does not measure alltargets relevant to risk and correctional rehabilitation and Mr Wellsmay have other needs not included in this measure.[91] Mr Wells' VRS-SO score was substituted for a STATIC-99R to better accountfor the expected reduction in risk associated with Mr Wells being over the age of60 years at the time of his release from prison. The estimated sexual recidivism ratefor the group with the same STATIC-99R score was 22 per cent after five years and32 per cent after 10 years (the base rate for all sexual offenders in the normative samplewas 11.9 per cent after five years and 18.2 per cent after 10 years). In this assessment,Mr Wells has a similar score to those found to be in the 89th percentile for the SexualDeviancy sub-scale and 33rd percentile for the criminality sub-scale. The treatmentresponsivity subscale score, however, was in the 96th percentile. This means thatMr Wells' sexual recidivism is most likely due to his poor response to treatment andsexual attractions towards prepubescent males.Dr Gibson's overall assessment[92] Overall (taking into account her clinical assessment as well as the results of thescores on the psychometric instruments), Dr Gibson is of the opinion that Mr Wellspresents a moderate to high risk of committing a further relevant sexual offence whilein the community. However, I note that this risk assessment was made when Mr Wellswas subject to release conditions, including electronic monitoring. Dr Gibson saysthat given Mr Wells' past pattern of offending over the last 16 years, his risk is likelyto escalate relatively quickly should he remain unsupervised in the community.[93] Dr Gibson's overall psychological assessment, in her view, supports thefollowing risk parameter statement:50 Based on his previous offending, any further relevant sexual offendingis likely to be committed against a pre- or peri-pubescent boy agedbetween 9 and 13 who becomes known to Mr Wells. Mr Wells is likelyto come into contact with a potential victim incidentally (e.g., inDepartment Stores, on the street) or through grooming a family whilein a teaching or tutoring role. Due to a combination of attraction to thechild, grandiose views of himself, a desire to engage in risk-takingbehaviour, and seeking out attention and positive feelings abouthimself from the child, Mr Wells is likely to be drawn to engagingwith the child. Contact is likely to begin at first as friendly and playfuland quickly progress to physical contact (e.g., touching their head,neck and shoulders, tickling them, patting their bottom). This contactcould occur in a public place and will likely be over clothing.Throughout the engagement, Mr Wells is likely to disregard potentialconsequences and justify his interaction as appropriate. Offendingcould escalate to more intimate interactions if Mr Wells is given theopportunity to spend more time alone with the potential victim in aprivate place. In this instance, Mr Wells may begin by taking on acaregiving role, grooming the potential victim and their family for thepurposes of further sexual contact, normalising the potential victim tophysical touch, and/or providing for him (e.g., buying food or drivinghim to places).51 Mr Wells' history of offending reflects little consideration for theimpact his offending has on others, prioritising his own gratificationand desire to feel connected with prepubescent males. Mr Wells' riskwould likely be increased in the presence of changes in personalcircumstances, such as further disconnect from his family, rejectionby others, increased sexual preoccupation, a lowered sense of self-worth and an over-confidence regarding his own ability to keephimself safe. It is important to note that the risk assessment completedhere is dynamic and may change if Mr Wells' circumstances change,for example, a change in his health or cognitive status.Reports prepared for sentencing[94] In his report dated 6 December 2022 prepared under s 88 of the Sentencing Actfor sentencing for the index offending, Dr Louw was of the opinion Mr Wells had ahigh likelihood of committing another qualifying sexual offence,45 albeit on the lowerend of the scale of seriousness. Dr Hansby, in his 12 January 2023 s 88 report, was ofthe opinion that Mr Wells was at above-average risk for being charged with orconvicted of a qualifying sexual offence. Dr Hansby commented that it wasconcerning that repeated sanctions and three previous offending treatment inputs hadnot seen desistance to date.Court's assessment of risk of Mr Wells committing a relevant sexual offence inthe future[95] I have found that Mr Wells has or has had a pervasive pattern of serious sexualoffending and that Mr Wells displays the characteristics set out in s 107IAA of the Act.[96] In Chief Executive of the Department of Corrections v Wrigley Heath J hadbefore him evidence of two health assessors.46 One found Mr Wrigley posed amedium-high risk and the other found he posed a moderate-high risk of committing arelevant sexual offence in the future.47 The Judge stated:48While I have been assisted by their opinions, the question whether an extendedsupervision order should be made is a judicial judgement, to be reached on thebasis of the totality of evidence before the Court. It is the Court, not the healthassessors that bears the responsibility for making that determination.[97] Mr Wells has offended against four prepubescent males across a period of16 years, beginning when he was aged 64. He offended within the context of sexualattraction towards a vulnerable victim, whereby in the first set of offending, he tookon a care-taking role and then perpetrated significant, intrusive and repeated contactsexual offending. He then offended in the second set of offending by way of45 Per s 87(5)(a) of the Sentencing Act, a qualifying sexual offence includes a sexual crime underPart 7 of the Crimes Act 1961 punishable by seven or more years' imprisonment, ie includingsexual conduct with a child or young person under ss 132 and 134 respectively.46 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [26].47 At [28].48 At [27] (footnote omitted). See also Reuben v Chief Executive of the Department of Corrections[2023] NZCA 564 at [47].opportunistic contact patting the victim's bottom over clothing in a public place. Inthe third set of offending, again in a public place, Mr Wells patted the victim acrosshis body and pulled the victim into his own body and held him there. In the indexoffending Mr Wells returned to the victim's home after the victim's mother told himnot to go there.[98] Mr Wells has previously engaged in three periods of treatment for his sexualoffending: the SAFE programme from May 2012 to November 2013, 20 sessions ofindividual treatment with a Departmental psychologist from October 2016 to June2017, and 35 sessions of individual psychological treatment with a privatepsychologist from August 2018 to April 2021. Across each period of treatmentMr Wells has been seen to gain insight into his offence pathway and personalitystructure. However, translation of this awareness into behavioural change has beenidentified as a challenge for him, which is reflected in his cycle of reoffending.[99] Additionally, every time Mr Wells has no longer been subject to externalmonitoring (which has occurred as a result of sentencing for sexual offences), he hascommitted further sexual offending against prepubescent males.[100] On the other hand, Mr Wells has stated that he wishes to desist from hisoffending and has identified his children and grandchildren as key motivators in thathe wishes to regain connections with them. He keeps in regular contact with his sonand friends, all of whom are aware of his offending. However, of concern, Dr Gibsonnotes that all of Mr Wells' friends were seen to engage in some minimisation regardingthe most recent offending, reflective of a potentially limited ability to hold Mr Wellsaccountable and challenge his cognitive distortions or problem behaviours. Mr Wellsdisputes that and in support refers to recent comments by two of his friends thatsuggest otherwise.[101] Dr Gibson's opinion is that Mr Wells' offending is typically precipitated by adesire for validation and appreciation, a strong sexual attraction to prepubescentmales, a disregard of consequences, a grandiose view of self and cognitive distortionspertaining to the degree of harm caused. Further, despite Mr Wells reporting a desireto desist from offending, he continues to experience sexual attraction towardsprepubescent males.[102] Of note, in a report of 29 June 2023, it is recorded that Mr Wells was observedto be staring at a young boy in a waiting room. When asked about this, Mr Wellsacknowledged he had found the boy beautiful. Mr Wells stated to the probation officerthat he had not seen such a handsome boy since his release and so looked at him, thuscontradicting earlier statements that he no longer wanted to look at children and wascommitted to his strategy of avoidance.[103] I take into account that Mr Wells' developing strategies to manage his sexualattraction towards prepubescent males are recently implemented and are not yet testedwithout the oversight of Community Corrections or in high-risk situations.[104] Although Dr Gibson concludes that Mr Wells presents a moderate to high riskof committing further sexual offending, this assessment was made while Mr Wells wassubject to release conditions. Dr Gibson adds that given Mr Wells' past pattern ofoffending over the last 16 years, his risk is likely to escalate relatively quickly shouldhe remain unsupervised in the community. I consider, making my own assessmentbased on Dr Gibson's assessment and all the evidence, that Mr Wells is at high riskthat he will in future commit a relevant sexual offence.Whether an order should be made[105] If the statutory criteria are satisfied an order is not necessarily mandated.However, as was said by Downs J in Chief Executive, Department of Corrections vPopata:49 it would be exceptional not to make an order when the criteria had beenestablished, particularly given the high threshold for an order and the statutoryconcern of public safety.[106] I take into account Dr Gibson's evidence that Mr Wells' profile is suggestiveof someone who experiences pleasure by focusing on their feelings of superiority tomaintain self-assurance. Mr Wells spoke of his confidence in himself. Dr Gibson49 Chief Executive, Department of Corrections v Popata, above n 28, at [57].considers in Mr Wells' interactions with prepubescent males, he interprets theirresponse through this lens and feels positively about himself, thus maintaining andsupporting his desire to continue to connect with them. Further, she says hisnarcissism may contribute to an overconfident view of his ability to control his sexualoffending behaviour. Mr Wells said he identified with the term narcissist.[107] I exercise my discretion based on all the evidence to make an order as sought.Result/Orders[108] I make an order granting the Chief Executive's application for an ISO. Theorder will be subject to both standard and special conditions as set out below and willexpire upon the final determination of the ESO application.Standard conditions[109] Mr Wells is subject to the standard conditions in s 107JA of the Act.Special conditions[110] Any special condition must not be imposed unless it is designed to:50(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 ESO, with an order ofthe Court, made under s 107IAC to impose an intensive monitoringcondition.50 Parole Act, s 15(2).[111] There must be a nexus between the perceived risk posed by the offender andthe effectiveness of the proposed condition.51 I consider the special conditionsproposed by the Chief Executive variously reduce or mitigate against the risk ofreoffending and promote rehabilitation. I therefore impose the following conditionson the ISO:(a) To reside at an address approved by a probation officer and not to moveaddress without the prior written approval of a probation officer.(b) To submit to electronic monitoring as directed by a probation officer inorder to monitor your compliance with any conditions relating to yourwhereabouts.(c) Not to enter any school, early childhood education centre, park, library,swimming pool, other recreational facility, church, or other areaspecified in writing by a probation officer, unless you have the priorwritten approval of a probation officer, or unless an adult approved bya probation officer in writing, is present.(d) Attend a psychological assessment with a Departmental psychologist.Attend and complete any treatment/counselling as recommended by thepsychological assessment to the satisfaction of a probation officer andtreatment provider.(e) Not to undertake any paid employment or voluntary work without theprior written permission of a probation officer.51 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49].(f) To comply with the requirements of electronic monitoring and provideunimpeded access to your approved residence by a probation officerand/or representatives of the monitoring company for the purpose ofmaintaining the electronic monitoring equipment as directed by aprobation officer._____________________________Gordon J