CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v McINTOSH [2020] NZHC 3184 [3 December 2020]

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v McINTOSH [2020] NZHC 3184[3 December 2020]IDENTIFYING DETAILS OF ONE VICTIM HAVE BEEN REDACTEDIN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2015-409-000038[2020] NZHC 3184BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND LLOYD ALEXANDER McINTOSHRespondentHearing: 18-19 November 2020Appearances: C J Boshier for ApplicantA J Bailey for RespondentJudgment: 3 December 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 3 December 2020 at 2.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate3 December 2020Introduction[1] The respondent, Lloyd McIntosh, is 47 years old. He committed serious sexualoffences against young and vulnerable people in his youth for which he wasimprisoned. On his release from prison in 2004 the Chief Executive of the Departmentof Corrections applied to make him subject to an extended supervision order (ESO).Mr McIntosh has now been subject to an extended supervision order (ESO) since2005.1[2] The statutory regime in the Parole Act 2002 (the Act) requires this Court toreview the imposition of an ESO 15 years after the date on which the first ESO wasmade and, thereafter, five years after the imposition of any and each new ESO.2Mr McIntosh is now the subject of such a review which appears to be the first suchreview of an ESO to be conducted under s 107RA of the Act.3[3] On review this Court must determine whether there is a high risk thatMr McIntosh will commit a relevant sexual offence within the remaining term of theESO.4 Following its review, this Court must either confirm the ESO or cancel it.5[4] The risk of committing a relevant sexual offence must be assessed on the basisof the matters set out in s 107IAA(1).6 That section provides as follows:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a relevantsexual offence; and(b) has a predilection or proclivity for serious sexual offending;and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse forpast offending:1 An ESO was imposed by the High Court in Chief Executive of Department of Corrections vMcIntosh HC Christchurch CRI-2004-409-000162, 8 December 2004 and again by the High Courtin Chief Executive Department of Corrections v McIntosh [2015] NZHC 999.2 Parole Act 2002, s 107RA(2).3 As Mr McIntosh was the first person to have an ESO imposed, it follows that he is almost certainlythe first to undergo a s 107RA review, notwithstanding the fact his ESO has been suspended fortwo brief periods of imprisonment.4 Parole Act, s 107RA(1).5 Section 107RA(5).6 Section 107RA(6).(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.[5] At issue in this hearing is whether Mr McIntosh is still at high risk of relevantsexual offending and, even if he is, whether I should cancel the ESO given the issuesMr Bailey raises in his submissions.Background[6] Mr McIntosh was first charged with sexual offending in 1989 for the ongoingsexual and violent abuse. He was committed to Lake Alice Hospital (due to anassessment of diminished capacity) when he was 16. Within months of his releasefrom Lake Alice Hospital, he was convicted for the violent sexual assault of a28 month old female. He was sentenced to imprisonment for 10 years. Withinthree months of being released on parole, and while on 24 hour supervision, he wasconvicted of an assault on an intellectually disabled adult female whom he hadorganised to come into his home. He has disclosed other offending which has notresulted in criminal proceedings, although his previous claims of there being up to150 incidents of sexual assault are considered to be exaggerated.[7] Mr McIntosh has engaged in extensive sexual offending related treatment,including the Kia Marama Special Treatment Unit programme in 1997 to 1998 and thecommunity-based STOP programme for child sex offenders in 2004. He has also hadregular individual counselling sessions throughout the time he has been on an ESO.[8] The terms of his ESO require him to live at an address approved by theDepartment of Corrections, to be subject to GPS monitoring, to abide a curfew, and toattend department arranged programmes. He has been prescribed anti-androgenmedication to reduce his libido. He is also on anti-depressant medication. While heis not subject to intensive monitoring, he is nevertheless subject to a great deal ofsupervision and, as Mr Bailey points out, Mr McIntosh is unable to do things whichnormal people might do, such as go to the shops unaccompanied, or use the internet.[9] For much of the time he has been subject to the ESO, he has been at theSalisbury Street Foundation, a rehabilitative centre set up to help reintegrate seriousoffenders back into the community. Mr McIntosh was transferred to Toruatanga inJanuary 2020 which is residential accommodation situated on prison grounds. I amadvised it is a less restrictive environment than at Salisbury Street, althoughMr McIntosh can only leave the Toruatanga grounds if accompanied by a staff memberor an approved support person.[10] Mr McIntosh's views about remaining on an ESO have varied. Wheninterviewed by a clinical psychologist, Ms Amanda Richards, earlier in the year, hereported that he could not envisage a future where he would be able to liveindependently in the community and he acknowledged that the current supports actedas his "safety mechanism" and kept him on track. However, when interviewed byanother clinical psychologist, Mr Craig Prince, in September, he was more ambivalentabout remaining on an ESO. He did not believe that he would sexually reoffend if theESO was cancelled, but he was concerned that he may become the victim of vigilantesif he was released to the community. He was hoping to progressively receive morefree time and to go to places and activities in the community.[11] His current position is that he wants to live a less restricted lifestyle, albeitacknowledging he would need support to transition to full independence, which is whyMr Bailey is instructed to oppose the confirmation of the ESO.The evidence[12] The procedure for review of the ESO adopts specified provisions of the Actrelating to an application to make an extended supervision order.7 These include therequirement that the application for review be accompanied by a report by a healthassessor which addresses:8(a) whether –(i) the offender displays each of the traits and behaviouralcharacteristics specified in s 107(1AA)(1); and(ii) there is a high risk that the offender will in future commit arelevant sexual offence.7 Section 107RA(4).8 Section 107F(2A).[13] The term "relevant sexual offence" is defined at s 107B(2) of the Act andencompasses virtually all forms of contact sexual offending. It also includes offencesunder the Films, Videos, and Publications Classification Act 1993 if the offence ispunishable by imprisonment, and involves, promotes or supports sexual exploitationof children or young persons.[14] In the present case, the application was accompanied by a detailed report fromMs Richards, a registered clinical psychologist with the Department of Corrections. Asecond health assessor's report was prepared by Mr Prince, a consultant clinicalpsychologist, at the request of counsel for Mr McIntosh.[15] Both report writers appeared at the hearing and were extensivelycross-examined on the opinions they had proffered. I found both psychologists'reports helpful, and their opinions were considered, balanced and constrained by aclear understanding of their role as an expert witness.[16] Ms Richards' report was prepared in May 2020 and followed extensiveinterviews of Mr McIntosh at his current place of residence, as well as reviews of otherdocumentation relating to Mr McIntosh. Ms Richards administered a number ofassessment tools to determine his risk of sexual recidivism. To assess static risk factors(that is, factors that are not amenable to change, such as offending history), theSTATIC-99R was administered. To assess his dynamic risk factors (that is, potentiallychangeable factors), the Violence Risk Scale: Sex Offense version (VRS:SO) and theSTABLE-2007 were administered. The VRS:SO measures a combination of static anddynamic factors associated with risk of sexual recidivism and the STABLE-2007measures dynamic risk factors associated with the risk of sexual recidivism.[17] Ms Richards used the relatively new Common Risk Language descriptors toexplain the outcome of these assessments. The descriptors identify five risk levels forsexual offending recidivism, ranging from Level I (very low) risk to Level IVb (wellabove average) risk. On the STATIC-99R, Mr McIntosh received a score which placedhim in Level IVa – above average risk. On the VRS:SO, Mr McIntosh was assessedas being in Level IVa – above average risk. The STABLE-2007 placed him at the94th percentile of adult males and identified the areas of clinically significant concernfor Mr McIntosh as his:capacity for relationship stability, impulsivity, negative emotionality, sexdrive/sex preoccupation and deviant sexual preference.[18] When the STABLE-2007 and STATIC-99R measures were combined, thecomposite assessment placed Mr McIntosh at Risk Level IVb, or well above averagerisk, which is the highest risk category identified for sexual offending recidivism usingthe Common Risk Language descriptors.[19] Ms Richards also administered the Psychopathy Checklist: Screening Version(PCL: SV). Although he was scored on this screening test 15 years ago, the assessmentwas updated and rescored to include all further information available since 2004.Ms Richards advised he scored 24 out of 24, the highest score possible on that test.He had previously scored 23 out of 24. She says the combination of psychopathictraits and sexual deviance is associated with a risk of sexual recidivism that istwo times higher and also more enduring over time, than for offenders who do nothave that combination of factors.[20] Based on the four risk assessment tools she used and other clinical factors, sheconsiders there is a high risk of Mr McIntosh committing a further relevant sexualoffence if left unsupervised in the community. When his dynamic and static riskfactors are combined, he falls into either Risk Level IVa or Risk Level IVb, dependingon which sample subgroup he is placed in. She concludes that "without the confinesof 24 hour monitoring and supervision Mr McIntosh would more likely fall intoRisk Level IVb".[21] She acknowledges that evaluation of Mr McIntosh's sexual offending risk iscomplicated due to the extensive controls that have been put in place since his releaseand says the controls have served as a protective factor and have significantly inhibitedopportunities for Mr McIntosh to place himself in a situation where he could sexuallyoffend. However, she considers that were that support to be absent, and his noted riskfactors triggered, "his risk would be worryingly acute".[22] Her report then addresses the four criteria contained in s 107IAA(1) andconcludes that he meets all four criteria to be considered at high risk of sexualoffending. She says: there is evidence that Mr McIntosh continues to demonstrate an intensedrive, desire or urge to commit a relevant sexual offence, a sexual proclivityfor pre-pubescent females, and a predilection for serious sexual offending.Mr McIntosh has evidenced lifelong difficulties in controlling his emotionalstates, and he is considered to have enduring deficits in self-regulation.Mr McIntosh accepts responsibility for the sexual offending for which he hasreceived sanctions for, however, there remain questions as to how reliable thisshift in perspective is in protecting against further sexual deviance. Hestruggled to demonstrate a genuine understanding of the impact of his sexualoffending on his victims, and his expression of remorse and concern areconsidered rudimentary at best.[23] Mr Prince interviewed Mr McIntosh in September 2020 and also reviewedrelevant reports regarding Mr McIntosh's history. He produced his report in October,which was several months after Ms Richards produced her report. In terms ofMr McIntosh's sexual offending history, he noted that the offending occurred beforehe was 16 and his sexual offending against the 28 month old victim was when he was20 years old. In many ways, given his age, low intellectual functioning andimpulsivity associated with being young, Mr McIntosh could be considered as a"youth offender", and Mr Prince considered some of those factors would have changednow that Mr McIntosh is a 47 year old adult, particularly as it is "well-known thatrecidivism rates decline with advancing age".[24] Mr Prince assessed Mr McIntosh's risk of recidivism using the updated versionof the Automated Sexual Recidivism Scale (ASRS-R), noting that this test is entirelybased on New Zealand norms and takes declining age into account. He says that ifonly the sexual offending for which Mr McIntosh was formally sanctioned is takeninto account, he falls in the medium-low risk category. If the additional sexualoffending against the other victim is included, his risk category would increase to themedium-high level.[25] He also scored Mr McIntosh using the VRS:SO, and based on his assessmentMr McIntosh would just fall into the moderate-high risk category, although he said hewould "prefer to say that he falls somewhere between the moderate-high and high riskcategories". However, he points out that the VRS:SO scoring manual allows credit ifthe offender can demonstrate that "positive changes have been stable over an extendedperiod of time and have withstood challenges across a variety of relevant situations,that is, high-risk situations related to the individual's problem behaviour(s)". He saysMr McIntosh cannot practically demonstrate the changes under an ESO that wouldmove him to a low or medium risk rating due to the stringent supervision strategies heis under. As Mr McIntosh is unable to effectively demonstrate changes "[a] viciouscycle is perpetuated, and the danger becomes one of him remaining on ESOsindefinitely".[26] In discussing whether Mr McIntosh was at high risk of committing furtherrelevant sexual offences, Mr Prince expressed doubt that he fulfilled the two criteriaunder s 107IAA(1)(d). However, he also observed that Mr McIntosh is "significantlyinstitutionalised" and it would be "unethical and unfair" to Mr McIntosh to suddenlyrelease him to the community. In his view, there needs to be a concerted effort to helpMr McIntosh transition towards greater independence if he is to have any prospect ofbeing freed from an ESO.[27] In summary, Mr Prince's primary concern was that Mr McIntosh be given theopportunity for his restrictions to be lessened so he could progress towards greaterindependence. His view was that if Mr McIntosh were released immediately, but notadequately prepared for life without restrictions, "[t]his would set him up to fail".Assessment of risk of committing a relevant sexual offence[28] In assessing whether or not there is a high risk of committing a relevant sexualoffence, the Court must be satisfied of the matters set out in s 107IAA(1). As bothhealth assessors acknowledge, the assessment is complicated by the fact Mr McIntoshhas been living under an ESO for 15 years and has had limited opportunity to "display"the behaviour of concern. However, as was said in Chief Executive, Department ofCorrections v Alinizi, the wording of s 107IAA(1) does not mean that those traits andbehavioural characteristics must be externally manifested at the time of theapplication, although they must be "present".99 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]-[28].[29] I now turn to consider each criterion of s 107IAA(1), and the evidence to showthese factors are still present despite the lack of opportunity to offend. This includesconsideration of the risk assessments undertaken by the psychologists, but also thehistory of Mr McIntosh's behaviour while on the ESO.Does Mr McIntosh display an intense drive, desire or urge to commit a relevant sexualoffence?[30] Clearly, when Mr McIntosh was first made subject to an ESO, he demonstratedan intensive drive, desire or urge to commit a relevant sexual offence. Ms Richards'view is that these urges have remained despite 20 years of intensive treatment and areonly temporarily constrained by the anti-androgen medication, in combination withextensive supervision and oversight. As she explained to the Court, Mr McIntosh stilldemonstrated an intense, drive, desire or urge to commit a relevant sexual offencebecause he continued to engage in "offence paralleling behaviours" when under stress,or when rejected or criticised. Thus, when he is experiencing negative emotions orfeeling aggrieved, he will revert back to deviant sexual fantasies to manage thatemotion. He had also covertly taken himself off his anti-androgen medication in thepast, which in itself was concerning, and this had lead to lapses in behaviour.[31] Mr Prince cautioned against simply using Mr McIntosh's offending history toreach a conclusion on this issue. He pointed out that sexual drive diminishes with ageand recidivism rates are lower for people like Mr McIntosh who have successfullycompleted the Kia Marama programme. That said, Mr Prince acknowledged withoutsupervision, there would be "quite a high risk" that Mr McIntosh would reoffend,although his focus was on giving Mr McIntosh structured opportunities to becomemore independent to manage that risk.[32] I accept that Mr McIntosh's desire to commit a relevant sexual offence is likelyto be lower than it was when the ESO was first made, taking note of what Mr Princehas said about the utility of risk assessment tools and the factors which will havereduced Mr McIntosh's desire to offend. However, the reversion to offence parallelingbehaviours is still of concern, and I accept that at this stage, without supervision,Mr McIntosh would readily revert to relevant sexual offending. Consequently, I amsatisfied that Mr McIntosh does still meet the criteria in s 107IAA(1)(a).Does Mr McIntosh have a predilection or proclivity for serious sexual offending?[33] Much the same considerations apply to the assessment of Mr McIntosh'spredilection or proclivity for serious sexual offending. While Ms Richards noted therehad been "a reduction in the pervasiveness of Mr McIntosh's predilection andproclivity for serious sexual offending from the period of his convictions", she said itwas difficult to assess how much this change is a "rote style approach to supportedcommunity living", and therefore vulnerable to a change in circumstances, stressorevents, and victim access. However, his behaviour when he was not adhering with hisanti-androgen medication meant she still concluded that in the absence of care andsupport, he would present with an observable predilection and proclivity for serioussexual offending.[34] Mr Prince said that while Mr McIntosh displayed a proclivity for deviantsexual offending during his youth, there appears to have been some shift in this respect,with Mr McIntosh now reporting attraction and fantasies toward adult males andfemales. Furthermore, his predilection for deviant offending is largely because he hasnever been exposed to, or had the opportunity to develop healthy adult relationships.Nevertheless, Mr Prince confirmed in cross-examination that Mr McIntosh did fulfilthe criterion of having a predilection and proclivity for serious sexual offending.[35] Again, I accept that Mr McIntosh's reversion to sexually deviant thoughtswhen under stress, and his deliberate cessation of his anti-androgen medication onoccasions, mean he still has a predilection or proclivity for serious sexual offending.Does Mr McIntosh have limited self-regulatory capacity?[36] Both health assessors agree that Mr McIntosh has continued to displaydifficulties in regulating and managing his emotions, particularly when not on hismedication. While he has made progress in regulating his behaviour, his self-controllapses when he is under stress or prevented from getting his own way. Both healthassessors accepted that Mr McIntosh had enduring deficits in his self-regulation skillsand I am satisfied that this criterion is met.Does Mr McIntosh demonstrate (a) acceptance of responsibility or remorse for pastoffending; and (b) understanding for or concern about the impact of sexual offendingon actual or potential victims?[37] Section 107IAA(1)(d) has two limbs to it. It requires the Court to be satisfiedeither that Mr McIntosh 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.It was on these criteria that there was the sharpest division between the two healthassessors.[38] Before discussing their respective views, I acknowledge that these criteria mustbe interpreted and applied consistently with the purpose of the legislation. AsDavidson J said in Chief Executive of the Department of Corrections v Douglas, whendiscussing similar criteria as they apply to public protection orders, the expressionabsence of understanding or concern does not require that there is no understanding orconcern, as a person may "express intellectually an understanding, or concern, or it might be parroted or rote".10 Instead, there must be "an element of relativity aboutit because otherwise the mere demonstration of some ability, even extremely limitedin scope, would defeat the plain intent of a legislation".11[39] He went on to explain:[89] In my view, an "absence of understanding or concern " means thatany understanding or concern is so distorted, superficial and self-orientated,that it marries with the clear purposes of the legislation, that the checks andbalances inherent in the combined and individual characteristics in s 13(2) arenot operative to negate the risks which derive from those characteristics.[40] I consider the same principles apply when deciding whether a respondentmeets the criteria in s 107IAA(1)(d). There must be sufficient "acceptance ofresponsibility or remorse for past offending", or "understanding for or concern about10 Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 at [82].11 At [82].the impact of . sexual offending on actual or potential victims", to operate tomaterially reduce the risk of such offending in the future.[41] Mr McIntosh has engaged in extensive therapy and intervention to address hissexual offending. Mr Prince is of the view that Mr McIntosh genuinely grasps whatthe consequences were for his victims and says he appeared remorseful about this.However, as even Mr Prince acknowledged, the fact he still has, on rare occasions,resorted to masturbating to deviant thoughts, raises concerns about how remorseful heactually is.[42] Ms Richards felt that the understanding Mr McIntosh expressed and hisexpressions of regret were focused more on his own negative experiences as aconsequence of the offending, rather than genuine remorse for his victims. She feltany expressions of acceptance of responsibility or remorse for his offending needed tobe treated with caution, particularly given the way he reverted to sexually deviantfantasies when off his medication.[43] In terms of his understanding for, or concern about the impact of his offendingon actual or potential victims, Ms Richards says he has been "increasingly able to labelthe emotional impact that his victims' may have experienced", but that his expressionsof concern have been "transient in nature, and likely superficial". Although he became"tearful and distressed when discussing the impact of his offending on his victims",her concern was that he had developed a "overlearned repertoire of appropriate socialresponses, which may not generalise out to genuine concern". In her view, hisexpressions of concern for his victims were rudimentary at best and would be unlikelyto diminish his risk at times his sexual deviance was activated.[44] Mr Prince acknowledges that in the past Mr McIntosh has not displayed anyempathy with his victims. However, he has gained understanding through therapy andnow shows an appreciation of the effects of his offending on his victims. That said,he accepted it was debatable whether Mr McIntosh could extrapolate thisunderstanding in order to refrain from engaging in offending against potential victims.[45] In my view, there is clear evidence that Mr McIntosh has acquired at least adegree of understanding about the impact of his sexual offending on actual victims.He accepts responsibility for past offending and has showed a degree of remorse toboth health assessors. However, I share the concern that both health assessors had,that the remorse and the concern were not yet at a point where they would act as aprotective factor against potential or future victims. This was demonstrated, at leastin an indicative way, by the periods when Mr McIntosh went off medication andreverted to sexually deviant thoughts. I am not satisfied that he, as yet, shows thedegree of understanding or concern about the impact on victims which would preventhim from future offending and this criteria is also met.Is Mr McIntosh at high risk of committing a relevant sexual offence?[46] I am satisfied that all four criteria under s 107IAA are met, which is afundamental pre-requisite to finding that Mr McIntosh is at high risk of committing arelevant sexual offence.[47] When I combine the relatively consistent picture painted by the various risksassessment tools, along with his observed offence paralleling behaviour when he isstressed or angry, I am satisfied that Mr McIntosh is at high risk of committing arelevant sexual offence. It is only the structure of the ESO and the intervention ofmedication that means this risk has not eventuated in the past 15 years.[48] However, this is not a "tick box" exercise and I consider it will be increasinglydifficult to undertake this assessment over time while Mr McIntosh stays on an ESO.In particular, I note Mr Prince's caution against relying too heavily on the sexualrecidivism assessment tools when the scores on these are unlikely to change whileMr McIntosh remains subject to an ESO. Without the ability to demonstrate changesto the dynamic risk factors, his static risk factors will always place him in at least amedium to high risk of reoffending, and there is, and increasingly will be, a need tolook beyond these when considering what risk he poses.[49] For completeness, I note that Mr Bailey also criticised the risk assessment toolsbecause they encompassed all risk of sexual offending and not simply the risk of"relevant" sexual offending. By that, he meant that the risk of reoffending assessedby these tools included non-relevant sexual offending, such as possession ofobjectionable material. However, I did not find this approach useful. There was noevidence of what kind of sexual offending was captured by the assessment tools whichwould not be considered "relevant sexual offending" as defined in the Act, and itseemed to me this would be a very limited category of offending. In any event, it didnot alter the fact that, compared with other sexual offenders, Mr McIntosh fell intoeither the highest or second to highest category for risk of sexual reoffending and thisencompassed the risk of committing relevant sexual offending.Should I nevertheless cancel the ESO?[50] Having reached the conclusion that Mr McIntosh is at high risk of committinga relevant sexual offence, the next issue is whether I have a residual discretion tocancel the ESO which I should exercise.[51] Mr Bailey argues that I should. He points out that s 107RA(5) gives the Courta broad discretion to either "confirm the order or cancel it". The only constraint is thatthe Court can only choose to confirm the order if, based on the matters set out ins 107IAA, it is satisfied there is a high risk that the offender will commit a relevantsexual offence within the remaining term of the order. The only logical way of readingthese provisions together is that the Court has no ability to confirm the order unlessthe Court is satisfied that the statutory risk threshold is met. However, the use of theword "may" indicates that the Court may nevertheless cancel the order despite afinding of high risk.[52] I accept that even where the statutory criteria have been met, there is adiscretion to refuse the order.12 This discretion reflects the fact that an ESO engagesrights which are protected under the New Zealand Bill of Rights Act 1990 and theCourts must recognise that the ESO may impinge substantially upon the offender'sfreedom of movement and association.13 While an ESO is designed to protect thepublic from high risk offenders, the Court is not required to be satisfied that therewould be no risk if the ESO was cancelled. It may be that a framework could be12 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [26].13 At [27].proposed for the support of the offender in the community that would sufficientlymitigate the ongoing risk, to enable the ESO to be cancelled.[53] However, in the present case, the professionals involved in Mr McIntosh's lifeaccept that there would be considerable risk if Mr McIntosh were to be released intothe community, without significant individualised support. There is no specificproposal before me which would bridge that gap. While Mr Bailey suggests thatregistration under the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 will be a check on Mr McIntosh, particularly given hisoffending is not spontaneous but involves victims within his circle of contact, I am notsatisfied that this is a sufficient protection. It is primarily a registration regime, so thatrelevant authorities know where an offender lives. It does not provide any kind ofsupport or supervision to the offender which I consider is required.[54] However, this leads me to endorse the concerns expressed by Mr Prince thatMr McIntosh is being given virtually no opportunity to demonstrate that he has learnedfrom the extensive therapy he has engaged in and to practice being more independent.If that is not done, Mr McIntosh remains in a catch-22 situation. His scores on riskassessment tools will always remain high because he cannot practically lower his scorewhile on an ESO, and he cannot demonstrate that he has acquired self-regulatory skillsand empathy for others without being afforded more freedom to interact with peoplenormally.[55] I consider it is imperative that Mr McIntosh be given more opportunities to dothings independently and without constant supervision. There are modest risks indoing this but they are addressed, in part, by the following factors:(a) his sexual drive will have abated with age;(b) he now has greater understanding of the need for his medication regimewhich manages his sexual drive;(c) he has a strong fear of the consequences for him of further sexualoffending, being the imposition of a public protection order; and(d) his offending is not random, but occurs with people who are within hiscircle of contacts, so short excursions, for example to buy groceries, areunlikely to result in offending occurring.[56] The ESO regime, including the regular statutory review of the ESO, anticipatethat ESOs will not endure for longer than necessary. It is incumbent on thosesupervising Mr McIntosh that they help him towards that goal as far as practicable. Itis only by doing that, that Mr McIntosh can hope to demonstrate he no longer requiresthe high level of supervision which an ESO requires.Result[57] The ESO is confirmed for the balance of the five year period. However, Iexpect its renewal to be considered critically in light of the comments I have made. Inthe interim, every opportunity should be given to Mr McIntosh to enable him totransition to a more independent lifestyle and to demonstrate what he has learned fromintensive and ongoing therapy. If he succeeds, he should see the end of the ESOregime. If he does not, then at least he will understand why the regime must continue.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:Andrew Bailey, Barrister, Christchurch