CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MR W [2016] NZHC 1082

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MR W [2016] NZHC 1082 [18 May2016]INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS, OF APPLICANTPENDING ANY APPEAL IN TERMS OF PARAS [89]–[90]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000146[2016] NZHC 1082BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND MR WRespondentHearing: 16, 17 and 18 May 2016Appearances: D J Dufty and S Wilson for ApplicantJ W Clearwater and J Nouri for RespondentJudgment: 18 May 2016Reasons: 23 May 2016REASONS FOR JUDGMENT OF VENNING JThis judgment was delivered by me on 23 May 2016 at 5.00 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandClearwater & Associates, AucklandApplication for ESO[1] The Chief Executive of the Department of Corrections applies for an ExtendedSupervision Order (ESO) under the Parole Act 2002 (the Act) against Mr W. Theapplication was made in the alternative to a Public Protection Order (PPO) application.After hearing the application for the PPO I dismissed it and then heard this applicationfor the ESO immediately afterwards. At the conclusion of the hearing for the ESO, Igranted an ESO with reasons to follow. These are the reasons.Background to Mr W's offending[2] Mr W is 40 years old. His offending began when he was 15 years of age. Hisfirst appearance in the District Court was on 24 September 1992 when he wassentenced for a number of offences committed on 8 December 1991, namelyunlawfully takes a motor vehicle, unlawfully interfering with a motor vehicle, theft,wilful damage, possession of a knife in a public place, and escaping from policecustody. On the same date he was sentenced in relation to charges of burglary,attempted unlawful taking of a motor vehicle and wilful damage, which related toincidents on 30 July 1992 and 10 September 1992. He received a sentence ofcorrective training for all this offending.[3] On 25 August 1993 Mr W was sentenced to three years, nine months'imprisonment for an aggravated robbery involving a firearm on 27 May 1993.[4] In 1996 Mr W was convicted of being unlawfully on property, obscenelanguage, and driving with excess breath alcohol. He was fined in relation tounlawfully being on a property, and was disqualified from driving and sentenced tono-resident periodic detention in relation to driving with excess breath alcohol. On 26February 1997 Mr W was charged with driving whilst disqualified and failing to stopfor a police officer.[5] While on bail for the driving offences and at the age of 21 Mr W and anaccomplice committed several violent offences on 28 March 1997. The offences wererobbery by assault, aggravated robbery (x2), injuring with intent to injure, breakingand entering, burglary, aggravated injury, aggravating wounding, and injuring withintent cause grievous bodily harm.[6] The offending spree had begun when Mr W visited a burger bar. Withoutprovocation he attacked a 15 year old youth, punching him in the nose and kickinghim in the face. He then broke into a hotel. When discovered by the manager to bedrinking from stolen bottles of spirits he struck the manager in the face with a fullbottle. After leaving the hotel he and his accomplice violently robbed another personwalking on the street. The publican's wife came out to see what was happening. MrW attacked her, punching and kicking her. He kicked her in the face and genitalia,injuring her vagina so much that she required surgery. A short time later he and hisassociates became involved in what the High Court Judge who sentenced him inAugust 1997 described as a "totally mindless attack on a group of young people sittingin a car, which eventually included stabbing of an innocent man". The victims wererobbed at knife point. One of them was stabbed in the chest by Mr W. Shortly afterthat incident Mr W committed a burglary at a sports store.[7] Mr W received an effective sentence of seven and a half years' imprisonmentfor that spate of offending.[8] On 27 June 2001 Mr W was released on parole. On 8 July 2001, less than twoweeks after release, Mr W raped and indecently assaulted a 13 year old girl. Two dayslater when he found out the father of the victim was looking for him, he made a pre-emptive attack on the father and seriously assaulted him using a rake as a weapon. MrW was sentenced to preventive detention for the sexual violation and three years'imprisonment for the other offences.[9] On 26 August 2002 the sentence of preventive detention was quashed on appealand replaced with a finite sentence of 14 years' imprisonment.[10] While in prison Mr W has been convicted of four further counts of assault: twocounts of common assault, which occurred on 5 September 2005; one of assaulting aprison officer on 25 July 2010; and one of assault with intent to injure on 11 November2014. In September 2005 Mr W and another inmate had a fight. They were separatedby two prison officers. When Mr W was pushed into his cell by the officers heimmediately came out of the cell and punched the first officer, causing him to staggerbackwards and fall on his back. Mr W then turned to the other officer, punching himon the head also. That prison officer stumbled backwards and hit his head on the celldoor. As a result he was knocked unconscious. It was only when other staff arrivedthat Mr W was able to be restrained.[11] More recently there was an incident in November 2014 involving an assault ona prison officer. Mr W delivered numerous punches to the officer's head. The incidentonly ceased when other Corrections officers were able to come and restrain Mr W. MrW says he was provoked, but the intensity of his actions in both those assaults in theprison support a finding of an intense drive or urge to commit serious violentoffending.[12] In addition to these convictions, Mr W has also been the subject of internaldisciplinary proceedings arising from other incidents he has been involved in while inprison.The purpose of an ESO[13] According to s 107I of the Act, the purpose of an ESO is to protect membersof the community from those who, following receipt of a determinate sentence, posea real and ongoing risk of committing serious sexual or violent offences. In Mr W'scase it is accepted that in light of the evidence before the Court, the focus of concernis on his propensity to commit serious violent offences. The application is not pursuedon the basis of a propensity for serious sexual offending.1Eligibility[14] There is a threshold requirement which Mr W satisfies. He is an eligibleoffender under s 107C(1)(a). He was subject to a determinate sentence, was sentenced1 That is consistent with the Court of Appeal finding in R v W CA135/02, 26 August 2002, (2002)19 CRNZ 555, at [24] that: "The sexual offences are not indicative, by their type or circumstances,of a dangerous propensity warranting a sentence of preventive detention".to imprisonment for a relevant offence, and had not ceased, since his latest convictionfor the relevant offence, to be subject to a sentence of imprisonment at the time theapplication for the ESO was made. The application was made before the sentenceexpiry date.2[15] The matters the Court must be satisfied on before it can make an ESO are setout in s 107I. As relevant it reads:107I Sentencing court may make extended supervision order(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F, thecourt is satisfied, having considered the matters addressed in thehealth assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serioussexual or violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in futurecommit a relevant sexual offence:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.[16] In Mr W's case the Court must be satisfied, having considered the mattersaddressed in the health assessor's report, that Mr W:(a) has, or has had, a pervasive pattern of serious violent offending; and(b) there is a very high risk that he will in the future commit a relevantviolence offence.3[17] Mr W has a pervasive pattern of serious violent offending while in thecommunity. That pattern of violent offending has continued even while in prison(albeit that Mr W has not, while in prison, been charged with offences meeting thedefinition of serious violent offences under the Act).2 Parole Act 2002, s 107F(1)(a).3 Relevant violent offences are set out in s 107B(2A).[18] The Court may only determine that there is a very high risk that Mr W willcommit a relevant violent offence if it is satisfied that he meets the criteria ins 107IAA. In the present case, as the application is directed at the risk of Mr Wcommitting a relevant violent offence, the relevant provision is:(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfiedthat the offender—(a) has a severe disturbance in behavioural functioningestablished by evidence of each of the followingcharacteristics:(i) intense drive, desires, or urges to commit acts ofviolence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet apremeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about theimpact of his or her violence on actual or potential victims.[19] The provisions in the Act relating to an ESO were amended in December 2014at the same time the Public Safety (Public Protection Orders) Act 2014 was passed. Anumber of the requirements of s 107IAA are similar, albeit not identical, to theconsiderations under the Public Safety (Public Protection Orders) Act. There arehowever additional considerations, namely whether Mr W exhibits the characteristicsof extreme aggressive volatility and persistent harbouring of vengeful intentionstowards one or more other persons.[20] Under the Public Safety (Public Protection Orders) Act the Court must besatisfied the respondent exhibits the characteristics to a high level. The requirementsfor an ESO are not at that elevated level. It is sufficient for an ESO if thecharacteristics are present.[21] The considerations set out in s 107IAA(2) are mandatory and conjunctive. TheCourt must be satisfied as to each of those factors before it can determine there is avery high risk Mr W would commit a relevant violent offence.[22] In this context, to be satisfied requires the Court to make up its mind and onthe evidence come to a judicial decision: McDonnell v Chief Executive of theDepartment of Corrections.4[23] There is a substantial amount of evidence before the Court. Four witnessesgave evidence in relation to the PPO: Dr Skipworth, Dr Goodwin, Dr Blackwell andMr Britton. All are health assessors in terms of the Act and counsel agreed theirevidence is also admissible on this application for the ESO. For the purposes of theESO the Department also led the further evidence of Mr Louw, a psychologist. Mr Wdeclined to be interviewed by Mr Louw. Mr Louw had access to all Mr W's files andnotes and based his report on those reports and other relevant material.Does Mr W have intense drive, desires or urges to commit acts of violence?[24] As relevant, I repeat the passages from my decision on the PPO in relation tothese issues.[25] Dr Skipworth's focus was on the current situation rather than Mr W's pastbehaviour. He focused on Mr W's recent behaviour and engagement and noted Mr Wdenied any such urge.[26] Dr Goodwin's focus was on the issue of sexual drive rather than a drive inrelation to violent offending. He could not detect any evidence of intense drive orurge, noting Mr W has always stated that he has never had any attraction to pubertalor prepubertal females and that he was quite willing to engage with appropriatetreatment for sexual offending.[27] Dr Blackwell also focused on the present situation, noting that Mr W had selfreported to her that he acknowledged it was time to "grow up instead of blaming other4 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 (CA).people for stuff". She also noted his current intention to settle into a domesticrelationship.[28] Mr Britton on the other hand considered that Mr W's offending history, andprior psychological assessments, when taken with his current assessment indicatedthat he had such an intense drive or urge to commit offences of violence.[29] In Mr Britton's opinion Mr W's conduct in 1997 indicated he was undeterredby the presence of bystanders and their attempts to intervene, which is evidence of astrong urge towards violence.[30] Similarly, the circumstances which led to Mr W attacking the father of the girlthat he raped and indecently assaulted are evidence of an urge towards violence. Itappeared that when Mr W became aware the father knew of the sexual assault on theman's daughter his response to it was to assault the father to the head with a gardenrake.[31] Mr W's convictions for violence at the prison are also relevant.[32] In addition, Mr Louw also considered that Mr W's offending history andinstitutional conduct indicated a persistent pattern of hostile violent ideation andjustification for the use of violence to meet his own needs. In his opinion Mr W hascontinued to display a strong drive to commit acts of violence, evidenced by his beingcapable of using violence as a means to an end which has continued during his presentperiod of incarceration.[33] The urge or drive need not be presently manifested. The issue is whether MrW still has the characteristic, rather than the circumstances in which it might apply.Both Mr Britton and Mr Louw have considered the issue of drive in relation to Mr W'shistory of offending.[34] That is consistent with the approach of the Court in Chief Executive of theDepartment of Corrections v Wrigley and Chief Executive of the Department ofCorrections v Rimene.5[35] I am satisfied that there is evidence that Mr W has an intense drive or urge tocommit violent assaults against others. Whether that urge or drive is unleashed willdepend on the situations that Mr W finds himself in.Does Mr W have extreme aggressive volatility?[36] This characteristic was not expressly considered by the experts whenconsidering the requirements for the PPO as it is not one of the relevant characteristicsunder the Public Safety (Public Protection Orders) Act 2014. It is, however, closelyaligned to the concept of limited self regulatory capacity when violence is the focusof the inquiry. I note the Court must be satisfied of an extreme aggressive volatility.[37] In Mr Louw's opinion Mr W's violent offending in March 1997 showed acapacity for extreme aggressive volatility which he again demonstrated in July 2001when he assaulted the father of the girl he had sexually assaulted. In Mr Louw'sopinion, while the violence in prison was less harmful, Mr W's conduct still indicateda continuation of this pattern of volatility.[38] I agree. I am satisfied Mr W discloses a significant or extreme degree ofaggressive volatility. The offending in March 1997 was random and vicious. To attackthe father of the girl that he had raped in July 2001 (two days after the rape) alsodisplayed his aggressive nature was uncontrolled and volatile. Mr W's volatility isapparent from the way he reacts to situations of confrontation and from the extent ofhis reaction. It is extreme.5 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712, and ChiefExecutive of the Department of Corrections v Rimene [2015] NZHC 2721.Does Mr W persistently harbour vengeful intentions towards one or more otherpersons?[39] In Mr Louw's opinion Mr W has a capacity for harbouring vengeful thoughtsand, concerningly, displacing them onto others. That was a feature of the assault onthe publican's wife in March 1997. He had been ruminating about his girlfriend goingout with his sister and had feelings of jealousy and anger which led to his violentattacks on a number of people. Mr W also acknowledged that his 2001 sexualoffending was a culmination of hostile rumination towards the victim's family. Hewas reported to have acknowledged fantasies of burning down the family's home uponrelease and wanting to ruin their lives. This was reported by Mr W to a Mr Neil in aninterview on 14 September 2012. Mr W also acknowledged in discussions with a MsE Suttich on 24 May 2011 that he struggled to control his thoughts and feelings andthat he was concerned he might act violently or explode based on negative ruminationsof others. The attack on a fellow prisoner in December 2010 was preceded by anexpression of a desire to harm him and waiting for a moment to act.[40] Dr Blackwell also accepted that once Mr W perceived or got into his mind thathe had been wronged, he acted out his vengeful intention.[41] On the basis of the evidence taken as a whole (particularly Mr Louw's evidencewhich was not seriously challenged on this point), and Mr W's history, I am satisfiedMr W has persistent vengeful intentions, not necessarily towards one particular personbut directed at whomever he considers may have slighted him at the time.Does Mr W display behavioural evidence of clear and long-term planning of seriousviolent offences?[42] Mr Louw considered there was evidence of long-term planning of seriousviolent offences to damage the girl's family in particular. He suggested that long-termplanning was also evidenced when Mr W became aggressive and verbally threatening,picking up the chair and smashing the guard room's window in July 2014 in order toachieve his aim of a change in placement at the prison.[43] I do not consider the examples Mr Louw refers to amount to "clear and long-term planning to meet a premeditated goal". While Mr W may have ruminatedabout his position before acting as he did, the incidents were still examples of himreacting to the situation as he perceived it to be, rather than clear planning on his part.Mr W's offending is largely unplanned and random, which of itself is a particularconcern.Does Mr W have limited self regulatory capacity?[44] In the alternative to clear and long-term planning of violent offending the Courtmust be satisfied of Mr W's limited self-regulatory capacity.[45] Dr Skipworth believes Mr W has a "significant deficit" in relation to thischaracteristic, which is evidenced by his ongoing aggressive outbursts in stressfulsituations when frustrated or challenged or when he perceives he is being denigrated.Mr W's difficulties in the area have been exacerbated in the context of intoxicationand have led to offending on many occasions.[46] Dr Goodwin is of the opinion that there is some evidence in Mr W's history ofimpulsivity, but no evidence of high emotional reactivity or an inability to cope withor manage stress and difficulties.[47] Dr Blackwell accepted that the historical evidence indicates that Mr W has inthe past exhibited "limited ability" to self regulate his behaviour and emotions, whichis consistent with his having borderline personality traits. But Dr Blackwell noted thatduring her interviews with Mr W he was emotionally stable at all times despite thesometimes intrusive and very personal nature of the questioning. She considers hemay have obtained some improved control over his emotional reactivity.[48] Mr Britton noted that at the time he interviewed Mr W on 20 August 2015 hewas held in the Special Needs Block at Auckland Prison as a result of repeatedaggressive and impulsive acts. He considered those acts were the result of Mr W'spervasive and persistent emotional reactivity. Mr Britton noted that while Mr W hadbeen provided with psychiatric and psychological treatment to assist with hisemotional reactivity and depressive ideation they did not appear to have producedlasting or robust improvements in terms of Mr W's emotional function or selfregulatory capacity at the time of the current assessment.[49] In Mr Louw's opinion also, Mr W's offending background was indicative of apoor ability to regulate his own impulses and displayed a pattern of behaviour whichremained in effect.[50] I prefer Mr Britton's and Mr Louw's assessment. It is consistent with Mr W'sactions including while in prison. I am satisfied that Mr W displays a very limitedability to self-regulate. He is unable to cope with or manage stress and difficulties.That was apparent in his earlier offending and it is still apparent even in the regulatedenvironment of a prison.Does Mr W have an absence of understanding or concern for the impact of hisoffending on actual or potential victims?[51] Dr Skipworth considered that Mr W has "some" deficits in the area ofempathetic understanding but did not consider he was without any understanding inthis area.[52] Dr Goodwin said he was unable to ascertain any absence of understanding orconcern, noting that Mr W had expressed concern as to how his release might be seenby the victims and the victims' family. He considered Mr W had the ability or capacityfor empathy and an understanding of the deleterious nature of his actions on others.[53] Dr Blackwell noted Mr W was able to report concern and describe the likelyimpact of his past offending on his victims. He had a very strong shame presentation.However she did accept that he exhibited a limited ability to feel empathy or to haveemotional understanding of others.[54] Mr Britton considered that it was of concern that a number of Mr W's victimshad been strangers or recent acquaintances. He noted that some of the victims hadbeen selected in order to cause anguish to third parties such as victims' familymembers. Attempts to interrupt Mr W during commission of the offences had resultedin him assaulting bystanders or those attempting to intervene. In addition, in hisinterview with Mr Britton, Mr W continued to blame the victim of his 2014 assault.Mr Britton noted that while Mr W was reported to have gained some insight into hisoffending-related attitudes during recent treatment, he did not engage in other aspectsof the treatment as he was concerned with how others might view him.[55] Mr Louw notes that Ms E Suttich noted Mr W had a dominant shamepresentation during treatment. Dr Blackwell has also noted the same effect. In MrLouw's opinion it is not clear whether the shame is predominantly linked to the impacton Mr W and the distress caused to him or his family, or whether it is indicative ofsome remorse in relation to his victims. In his opinion the past pattern of ruminativecognitions and vengeful actions suggests any concern as to the impact of his offendingon the victims have done little to mitigate Mr W's risk of offending.[56] Taken overall the impression I am left with is that while Mr W may haveexpressed some understanding that his offending affects others, he does not have anyparticular empathy with the victims of his offending and is more focussed on theimpact of his offending on himself. I am satisfied that he displays an absence of realunderstanding about the impact of his offending on his victims.Is there a very high risk that Mr W will commit a relevant violent office in the future?[57] I return to consideration of the ultimate issue, whether there is a very high riskthat Mr W will commit a relevant violent offence in the future.[58] Taken overall Mr Louw's opinion was that there was a very high risk Mr Wwould engage in relevant serious violent offending within 10 years of release. Themost likely scenario would include the use of instrumental violence against membersof the public.[59] Even those witnesses who did not consider Mr W to meet the criteria for aPublic Protection Order considered that the close supervision provided for by an ESOwould be appropriate. Dr Goodwin for instance said that he was of the opinionsupervision would certainly be of great assistance in Mr W's release into thecommunity: it's just that often those type of orders ESOs can actually be veryhelpful in continuing treatment with somebody like Mr W.Q. So in this particular case would an ESO be a good measure to ensurethat he had adequate supervision and monitoring in the community?A. It would certainly be helpful.Later, in answer to a question from the Court, Dr Goodwin confirmed that he wouldin principle support such an order.[60] In her report Dr Blackwell also stated that Mr W requires a detailed andgraduated release plan co-ordinated by one responsible person and involving a multi-disciplinary team. She noted Mr W had indicated a willingness to comply with postparole supervision and would consent to an ESO and accepted the need to embracesupervision and support in the community. During her evidence she clarified thatperhaps she should not have referred to an ESO report as her focus was on the criteriafor a PPO. Nevertheless her overall evidence was supportive of the need for an ESO.Mr W does not have any realistic release plan.[61] Again, the analysis and evidence from the PPO hearing is relevant to this issue.Mr W had a RoC*RoI score indicating a high risk of imprisonment within five yearsof being released.6 I put to one side the Automated Sexual Recidivism Scale as thisapplication is now advanced on the basis of the serious violence. On the ViolenceRisk Scale (VRS) 18 of the 20 dynamic items were identified as moderately or stronglyrelated to his current violent risk. The identified factors were violent lifestyle, criminalpersonality, criminal attitudes, work ethic, criminal peers, interpersonal regression,emotional control, violence during incarceration, weapon use, insight into violence,substance abuse, community support, release to high risk situations, violent cycle,impulsivity, and cognitive distortion, compliance with supervision, security level ofrelease, institution. These factors are considered potential treatment targets for Mr Wwill provide a base line for change.[62] A number of points must be made about those actuarial assessments. Mr Wfalls into the "high risk" category for the VRS. That is the highest category that thereis. While Mr W falls in the medium to high on the RoC*RoI scale rather than the veryhigh for that scale, as the Court of Appeal have confirmed it is necessary to consider6 The RoC*RoI, or risk of reconviction/risk of imprisonment model is an actuarial risk measurewhich predicts an offender's risk of re-imprisonment.the actuarial assessments tools in context.7 As Dr Skipworth also said, the best formof risk assessment is a multi method assessment which looks not only at the riskassessment tools but also takes into account the clinical assessments of the individual,in this case Mr W.[63] Despite the evidence from the experts the issue is ultimately a matter for theCourt to determine. In Barr v Chief Executive of the Department of Corrections theCourt of Appeal observed:8[32] We wish to make it clear, however, that first instance Judges need notaccept it as necessary, or right, to rubber stamp opinions of health assessorsadvanced by the Department of Corrections in ESO applications (and we makeit clear that the Judge did not do that in this case). What is required is a carefulassessment of all the historical and current factors, along with expert opinionsof others, bearing in mind that an ESO can have substantial ongoing impacton an offender who has already completed the sentence imposed by the Courtfor the offending. The risk of reoffending has to be such that cannot properlybe ignored when viewed against the gravity of likely re-offending. [64] Risk is contingent upon factors that are both environmental and inherent in theindividual. The Court's risk assessment should draw upon a variety of differentsources of information. Such an approach also helps avoid the shortcomings of amechanical and potentially formulaic assessment of risk, one that is overly reliant onstatic historical factors and potentially insensitive to features of the individual thatchange with time and context.9[65] Patterns of past behaviour can be clear indicators of risk. In this regard MrW's actions whilst in custody in prison, particularly in relation to the violent incidents,are relevant.10[66] I am satisfied that there is a very high risk that Mr W will commit a relevantviolent offence in the future. The behavioural characteristics he exhibits underscorethe fact he has real difficulty controlling himself in situations of conflict. He has beeninvolved in several instances of relevant violent offending in the past. He has had verylimited help with the issues underlying that offending and has limited interpersonal7 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627, (2007) 22 CRNZ 925 at [52].8 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006.9 R v Peta, above n 7.10 Rosewarne v R [2015] NZCA 537; R v Neketai [2015] NZHC 396.skills. His history of violent offending confirms the way he may react in situationswhere he considers he has been slighted. While I accept Mr W may not intend tooffend again, if he is placed in a situation of conflict, there is a very high risk that hewill react violently and commit a relevant offence.Term[67] A supervision order may not exceed 10 years. The term of the order musthowever be the minimum period required for the purposes of safety of the communityin light of:(a) the level of risk posed by the offender; and(b) the seriousness of the harm that might be caused to victims; and(c) the likely duration of the risk.11[68] The Department seek an order for 10 years. Mr Britton suggested a 10 yearperiod would be appropriate. Mr Clearwater submitted two years would be sufficient.[69] Dr Blackwell noted that what is known from the research is that when high riskpeople reoffend they tend to reoffend quickly, and the rates of offending drop off quiteconsiderably after about five years without a new offence.[70] In Mr W's case the main issue of concern will be the first few years after hisreintroduction into society. He is now 40 years old. While older men may still commitserious acts of violence, as he gets older and becomes more settled under the controlledregime that will be in place, the risk of violence can be expected to fall away as DrBlackwell observed. I am satisfied this is a case where it is not necessary to imposethe maximum permitted term of 10 years. I consider a term of seven years is theminimum period required to achieve an appropriate balance between the risk of harmand the likely duration of the risk.11 Section 107I(4) and (5).[71] I am also satisfied in this case that it is appropriate to impose specialconditions, initially including intensive monitoring. Mr W has been removed fromsociety for much of the last 20 years. His reintroduction to society will be challenging,particularly initially. He will need intense monitoring extending to personal supportfor the first few months.[72] For those reasons I made the following orders:The following special conditions are made in addition to or (whereappropriate) in replacement for the standard conditions. Mr W is:(a) to reside at an approved address as directed by a probation officer andnot to move from that address without the prior written approval of aprobation officer;(b) to remain at the approved address at all times (unless granted approvalfrom a probation officer to leave the residence) and to comply with allthe requirements of the special condition of residential restrictions, asper s 33 of the Parole Act 2002, for the first 12 months of the ExtendedSupervision Order;(c) to be subject to intensive monitoring and to submit to beingaccompanied and monitored, for up to 24 hours a day, by individualswho have been approved by a person authorised by the applicant toundertake person-to-person monitoring. That intensive monitoring isto run for a period of six months;(d) to attend an assessment for alcohol and other drugs and complete anytreatment/counselling as recommended by the assessment to thesatisfaction of the probation officer and programme provider;(e) to attend a psychological assessment and complete anytreatment/counselling as recommended by the psychologicalassessment to the satisfaction of the probation officer and treatmentprovider;(f) to engage with Community Mental Health as directed by the probationofficer and/or treatment provider, to the satisfaction of the probationofficer and treatment provider;(g) to take (with his consent) any prescription medication prescribed tohim by a medical practitioner;(h) not to possess or consume any alcohol or illicit drugs;(i) to notify his probation officer prior to starting, terminating orchanging any position or place of employment; and(j) to be electronically monitored (not GPS), and to comply with therequirements of electronic monitoring and provide access to theapproved residence to the probation officer and representatives of themonitoring company for the purpose of maintaining the electronicmonitoring equipment as directed by the probation officer (to enforceresidence condition (b) above).Suppression[73] Mr W has had interim name suppression which has been continued until thedelivery of the reasons for declining the PPO and for making the ESO.[74] At the conclusion of the hearings, when I indicated the ESO would be made,Mr Clearwater sought permanent name suppression for Mr W. The application isopposed by the applicant and also by Mr Hobbs, representing TVNZ.[75] I approach the application on the basis it falls to be considered in the contextof the ESO application, as that is the final order made by the Court on theseapplications.[76] Interim name suppression was granted by Courtney J.12 For present purposesI adopt the following relevant passages of the Judge's reasoning in relation to thejurisdiction and approach to an application for the orders:[6] The Parole Act makes specific provision for name suppression inrelation to applications for extended supervision orders through s 107G(10),which imports the relevant provisions of the Criminal Procedure Act 2011:Subpart 3 of the Part 5 of the Criminal Procedure Act 2011 (whichrelates generally to name suppression) applies, with all necessarymodifications, to the hearing of an application for an extendedsupervision order as if the hearing were a proceeding in respect of anoffence under any of ss 128 to 142A of the Crimes Act 1961.[7] Section s 200 of the Criminal Procedure Act relevantly provides that:(1) A court may make an order forbidding publication of the name,address or occupation of a person who is charged with, orconvicted or acquitted of, an offence.(2) The court may make an order under subsection (1) only if theCourt is satisfied that publication would be likely to –(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or anyperson connected with that person; or12 W v Chief Executive of Department of Corrections [2016] NZHC 469.(b) casts suspicion on another person that may causeundue hardship to that person; or(c) cause undue hardship to any victim of the offence; or(d) create a real risk of prejudice to a fair trial; or(e) endanger the safety of any person; or(f) lead to the identification of another person whosename is suppressed by order or by law; or(g) prejudice the maintenance of the law, including theprevention, investigation, and detection of offences;or(h) prejudice the security or defence of New Zealand.[8] In Robertson v NZ Police the Court of Appeal reiterated the approachto be taken in considering an application under s 200(2):As already noted by this Court in Fagan v Serious Fraud Office, thesection contemplates a two stage analysis. Stage one is a thresholddetermination. Stage two is a discretionary assessment.At the first stage, the judge must consider whether he or she is satisfiedthat any of the threshold grounds listed in 200(2) has been established.That is to say, whether publication would be likely to lead to one of theoutcomes listed in subs (2). The listed outcomes are prerequisites to acourt having jurisdiction to suppress the name of the defendant. It is"only if" one of the threshold grounds has been established that thejudge is able to go on to the second stage.At the second stage, the judge weighs the competing interests of theapplicant and the public, taking into account such matters as whetherthe applicant has been convicted, the seriousness of the offending, theviews of the victims and the public interest in knowing the character ofthe offender[9] Under this approach:Publication is the norm. Suppression orders are only to be made inrestricted circumstances and the threshold is high. The onus is on theapplicant to satisfy the Judge that suppression should be ordered.[10] As to the meaning of "extreme hardship" the Court said: We consider it clear beyond argument that it connotes a very highlevel of hardship. The word "hardship" on its own means "severesuffering or privation". The addition of the qualifier "undue" ins 200(2)(c) indicates that something more than hardship simple isrequired, while the word "extreme" in s 200(2)(d) indicates somethingmore again.An assessment of whether the contended hardship is "extreme" cannottake place in a vacuum. It is self-evidently contextual and in our viewmust entail a relative comparison between the contended hardship andthe consequences normally associated with a defendant's name beingpublished. It must be something beyond the ordinary associatedconsequences.(citations omitted)[77] Mr Clearwater relies on Dr Blackwell's report as to the risk that Mr W mayself harm to support the application for name suppression. He also suggested faintlythere might be some basis to support name suppression to protect the victims of MrW's offending, but given the automatic name suppression by operation of the CriminalProcedure Act and the lack of connection between Mr W and the victims I put thatground to one side.[78] Also, now that Mr W is no longer in prison, I put to one side his expressedconcern about the possible violence from fellow prisoners. In any event that concernseems to arise out of the suggestion that he is a paedophile and such offenders aresubjected to violence in prison. The evidence before the Court from the healthassessors is that Mr W is not at a high risk of sexual offending. His sexual offendingwas not against children under the age of 12 or anything of a kind which would qualifyhim as a paedophile.[79] The issue for the Court on the application for name suppression is limited towhether it can be said that if Mr W's name is published that it would be likely to causehim extreme hardship or to endanger his safety.[80] There are two material considerations. The first is whether publication of MrW's name might affect his compliance with the ESO order and reintegration into thecommunity. Given Mr W's lengthy criminal history and offending I accept he willexperience embarrassment if his name is published in connection with the applicationfor PPO and ESO. However that embarrassment falls short of being extreme. I notethat Mr W's name has not been suppressed in relation to the offending in the past.[81] During the most likely period of publicity following delivery of thesedecisions, Mr W will be living in a controlled environment and under close supervisionunder the conditions of the ESO. In the circumstances I am unable to see that therewould be a risk to his compliance with that order or to his reintegration into society ata level that could be said to be extreme hardship either.[82] That leaves the issue of whether it could be said the risk of self harm is at alevel where either it amounts to extreme hardship or Mr W's personal safety isendangered. Dr Blackwell's evidence about that is based on Mr W's feelings of deepshame which are largely related to the suggestion that he is a child molester. Mr Whas no prior history of self harming but has reported suicidal ideation. Dr Blackwell'sopinion is that the shame he may experience is based on negative assessments of hisentire being and that it could contribute to significant mental health problems,including depression and suicidality.[83] The possibility of suicide as a ground to support suppression has recently beenconsidered by the Court of Appeal in D (CA443/2015) v Police.13 In that case theCourt made the following points or observations:[30] It is not uncommon for applicants to seek suppression on the groundthat publication will cause them to self-harm or commit suicide. Areview of the principal cases is instructive. A number of points maybe made:(a) The possibility of self-harm or suicide always gives a courtcause for anxious consideration. Suicide would be adevastating and unacceptable consequence of publication andit cannot always be assumed that an at-risk person will behaverationally. But the court cannot adopt the stance that any riskis unacceptable. Under s 200 it must be satisfied that therelevant subs (2) risk is likely; that is, a real and appreciablepossibility.(b) Judges know that people may experience suicidal ideationwhen confronted with criminal proceedings, which areimmensely stressful, but very seldom, if ever, act upon it. Theproceeding is normally the principal cause of stress, althoughpublication identifies the proceeding with the defendant andmay cause great anxiety at particular points in time.(c) For these reasons a defendant who relies on a risk of self-harmor suicide attributable to publication of his or her name mustnormally point to something more than the usual feelings ofanxiety and despair that may attend proceedings. It is usual tooffer evidence that the defendant is psychologically troubledfor other reasons and is particularly susceptible to publicity.This may be coupled with(d) The defendant's condition may be such that it also impingeson his or her ability to participate fully in the trial. If so, thereis a fair trial risk to consider as well.13 D (CA443/2015) v Police [2015] NZCA 541.(e) Anything that reinforces or mitigates other risk factors mayaffect the likelihood that publication will precipitate self-harmor suicide.(f) The opinions of medical professionals deserve respect, but acourt need not defer to them. It is unlikely to question anuncontradicted medical diagnosis of the defendant'scondition, but such opinions may assume that any risk is toomuch risk or (as in this case) urge suppression withoutadequately addressing alternative ways in which the riskmight be managed.(g) There normally are ways of managing the risk. Wherepossible, medical reports prepared to assist the courts shouldrecommend and evaluate those options. For example, a briefperiod of suppression may reconcile the defendant to theinevitability of publicity after the initial shock of arrest andfirst appearance. Support structures can be identified anddeployed. Sensitive information of a personal nature may besuppressed.(h) Suppression does not follow automatically from the courtbeing satisfied that a relevant risk exists. The court mustfurther consider the second issue: whether an order ought tobe made in the exercise of discretion.(Citations omitted)[84] Importantly in the present case, as a result of the ESO Mr W is subject tointensive supervision for a period of six months during which it can be expected themedia storm will pass. He is also subject to and will have the support and access tomedical treatment for any issues of depression. Any fair and accurate report wouldnot suggest Mr W was a paedophile. In the circumstances I am unable to find that MrW satisfies the first stage threshold criteria for permanent name suppression.[85] If I am wrong in that, I consider that in any event the balance favourspublication. The applications for the PPO and ESO are of proper public interest. TheCourt's consideration of whether a PPO or ESO order should be imposed is a matterof some importance. It is important for the issues to be debated and considered withall the circumstances disclosed, including the identity of the respondent, particularlywhere the respondent has been convicted of serious criminal offending in the past andhis name has not been suppressed in relation to that offending.[86] It is also relevant that Mr W has in the past been identified in connection withthese applications in at least two media articles. The public interest in publication ofa matter of this kind outweighs Mr W's personal interests.[87] It was quite proper that Mr W had the protection of interim name suppressionto enable him to prepare properly for the applications at a time when he was still inprison and perhaps without the level of support that he can reasonably expect underthe ESO. Those reasons for suppression no longer apply.[88] For those reasons the application for permanent name suppression is declined.[89] Mr Clearwater indicated that if the application for permanent name suppressionwas unsuccessful he might well receive instructions to appeal that decision. To enablehim to consider the matter further I make an order for interim name suppression for afurther period of 20 working days from delivery of this decision.[90] In the event that an appeal has not been filed with the Court of Appeal withinthat time the interim order will lapse.__________________________Venning J