DEPARTMENT OF CORRECTIONS v TULILOA [2021] NZHC 745

DEPARTMENT OF CORRECTIONS v TULILOA [2021] NZHC 745 [1 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000536[2021] NZHC 745UNDER s 107FA of the Parole Act 2002IN THE MATTER of an application for an interim supervisionorderBETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND PAUL SIMON TULILOARespondentHearing: 30 March 2021Appearances: S McMullan and N Town for the ApplicantH Krebs for the RespondentJudgment: 1 April 2021JUDGMENT OF HINTON JThis judgment was delivered by me on 1 April 2021 at 4:00 pmRegistrar/Deputy RegistrarSolicitors/Counsel:K3 Legal Limited, AucklandMeredith Connell, Auckland[1] This is an application for an interim supervision order (ISO) with an intensivemonitoring condition.[2] Mr Tuliloa is 24 years old and has been in prison since he was 17. He spentconsiderable time in Youth Justice Residences before that. Since November 2010,Mr Tuliloa has committed four sexual offences and four nonsexual violent offences .[3] On the basis of his history and unmet treatment needs Dr Willem Louw hasassessed Mr Tuliloa as being "likely to commit a serious relevant sexual offence withinweeks to months following his release from prison" unless he is the subject of carefulmonitoring and supervision. As a result, the Chief Executive has applied for anextended supervision order (ESO) with an intensive monitoring condition.[4] The current application is made pending determination of the ESO.[5] Mr Tuliloa is remanded in custody awaiting trial in May 2021 for murdering afellow inmate at Auckland Prison. He is not subject to any sentence. If he werereleased from custody other than on bail, he would not be subject to any form ofmonitoring.[6] The application for an ISO is made under s 107FA of the Parole Act 2002 (theAct), to take effect from the date Mr Tuliloa is released from custody (should thatoccur) until the date the ESO is finally determined.1Interim supervision order[7] There is no dispute as to the relevant law which I set out below, largelyadopting the applicant's submissions.[8] An ISO is a temporary measure designed to cover situations where there wouldotherwise be limited or no supervision of an offender. Such an order is generallynecessary and appropriate where "an ESO application hearing post dates the expiry ofrelease conditions".21 Parole Act 2002, s 107FA(l)(a).2 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275, at [36].[9] Before making an ISO, the Court must be satisfied,3 on a provisional basis, thatthe statutory criteria for making an ESO are made out.4 Section 107I of the Act setsout the statutory criteria for making an ESO. Subsection (2) provides (so far as relevanthere) that an ESO may be made if the court is satisfied that:(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commit arelevant sexual offence.[10] A court may only determine that (b)(i) is met if it is satisfied that the offender:5(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence;(b) has a predilection or proclivity for serious sexual offending;(c) has limited self regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse for pastoffending:(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.[11] The Court may consider any evidence or information it thinks fit fordetermining the application, regardless of whether it would be formally admissible.6The Court is also entitled to take into account past sexual conduct, including unprovenallegations and conduct that does not actually constitute an offence.73 Chief Executive of the Department of Corrections v Martin [2017] NZHC 275, at [16] (holdingthat the term "satisfied" imports no burden of proof; the Court is required to make up its mind onan objective basis).4 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228, at [14].5 Parole Act, s 107IAA(1).6 Section 107H(2).7 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504, at [42].Pervasive pattern of serious sexual offending[12] There is no dispute that Mr Tuliloa has a pervasive pattern of serious sexualoffending and I am satisfied that is the case. He has committed three sets of sexualoffending against three separate victims. A fourth incident did not result in aconviction for sexual offending, but appears to have been sexually motivated. It isalso relevant. All four sets of offending evidence Mr Tuliloa's pervasive pattern ofserious sexual offending.[13] The Chief Executive primarily relies on Dr Willem Louw's 22 September 2020health assessment report under ss 107I and 107IAA of the Act.[14] The first relevant offending was on 23 March 2012. Mr Tuliloa was 15 yearsold and knew the victim as he had previously robbed her and she had not reported itto the Police. He went to the victim's address intending to have sex with her andknowing that she would not consent to it. When the victim opened the door, she triedto shut it to keep Mr Tuliloa out, but he forced his way inside. He overpowered thevictim and forced her to perform oral sex on him. He then demanded to have sex withher. When she replied that she was menstruating, he forced her to perform oral sex fora second time.[15] Two days later, on 25 March 2012, Mr Tuliloa committed his second set ofsexual offending, a burglary and an indecent assault on a 15 year old female. Theymet at a party on the night of the offending. At the party, Mr Tuliloa consumed alcoholand cannabis. Mr Tuliloa began to think about the victim in a sexual manner while atthe party and when he later passed by her home, he climbed into her bedroom througha window. Once inside, he got into the victim's bed and began to touch her on thebreast and vagina. The victim then woke up and told him to leave.[16] On 14 December 2012, shortly after his release from a Youth JusticeResidence, Mr Tuliloa committed burglary with sexual undertones. He entered thebedroom of a young woman uninvited. He was unaware at the time that she was inbed with her partner.[17] On 3 April 2014, one month after his release from a Youth Justice Residence,Mr Tuliloa committed his most serious offences, the index offending of the ChiefExecutive's ESO application. As a result of this offending, he was convicted ofburglary, unlawful sexual connection and rape. He was 17 years old at the time.Heavily affected by cannabis and synthetic cannabis, he broke into the house of his 57year old victim. The victim tried to protect herself by running to the bathroom andcalling the Police. However, Mr Tuliloa broke into the bathroom and dragged thevictim to the bedroom. He forced her to perform oral sex on him and then raped her.He later demanded money and drugs and searched the house, taking a few items beforeleaving.High risk of committing a further relevant sexual offence[18] Dr Louw conducted an assessment of Mr Tuliloa's risk of sexual reoffendingtaking into account static and dynamic risk factors and using several clinical tools suchas the Risk of Reconviction/Risk of Imprisonment (RoC*RoI), Static 99 R andViolence Risk Scale: Sexual Offender version (VRS SO). He concluded that MrTuliloa's RoC*RoI score placed him in the very high risk category of imprisonmentfollowing re conviction for any crime. Mr Tuliloa has an estimated re imprisonmentrate of 90 per cent after five years post release. Mr Tuliloa's Static 99R score placedhim in the Well Above Average risk category of further sexual reoffending (the highestrisk category for that clinical tool). Mr Tuliloa's score put him in the 99th percentile,placing him in the top one per cent of the cases in the sample. Mr Tuliloa's VRS:SOscore placed him in the Well Above Average risk category of further sexual offending(again the highest risk category). Mr Tuliloa is in the 89th percentile for SexualDeviancy, 99th percentile for Criminality and 96th percentile for Treatmentresponsivity. The estimated five year rate of sexual recidivism for Mr Tuliloa's scoreis 53.9 per cent and the 10 year rate is 67.3 per cent.[19] Ms Krebs for the respondent submitted the last two scores, graded as "wellabove average risk", were not "high risk". But that is a matter of nomenclature only.Clearly all three place Mr Tuliloa in the high risk category.Intense drive, desire, or urge to commit a relevant sexual offence[20] Dr Louw's opinion is that Mr Tuliloa displays an intense drive, desire, or urgeto commit a relevant sexual offence.[21] Mr Tuliloa did not agree to be interviewed by Dr Louw for this assessment buthe has previously admitted to having a high sex drive and that the use of pornographymakes his sexual urges "uncontrollable".[22] Ms Krebs relies on Department of Corrections v M where the Court was notsatisfied of this factor.8 M is a very different case. In M the respondent had completedtreatment to a very satisfactory degree and subsequently shown some stability in thecommunity. Neither of these factors is applicable here.[23] I am satisfied that Mr Tuliloa's history shows he has an intense drive to commitserious sexual offending.Predilection or proclivity for serious sexual offending[24] Mr Tuliloa has sexually offended against three different victims. Eachinvolved his entry into their own homes at night, the last of which was in traumaticcircumstances.[25] Each of his offences was committed either close in time with other offendingor only a short time after release from custody. Mr Tuliloa has been in custody sincethe index offending.[26] As noted earlier, in Dr Louw's assessment, Mr Tuliloa scores high on allpredictive measures.[27] Ms Krebs says, without citing authority, that this factor is not met because theoffending was opportunistic rather than premeditated, noting in particular that theindex offending occurred in the context of a drug related burglary.8 Department of Corrections v M [2020] NZHC 220, at [63].[28] My view of the evidence is the offending was premeditated. Even if it wereopportunistic that would not be inconsistent with a finding of predilection or proclivityand I am satisfied as to this factor.Mr Tuliloa has limited self-regulatory capacity[29] I am also satisfied on this score.[30] Dr Louw considers that Mr Tuliloa has limited self regulatory capacity.[31] Mr Tuliloa's background shows an inability to regulate sexual behaviourswhen under the influence of mind altering substances. Mr Tuliloa's risk is alsoenhanced by his using sex and pornography to improve his mood. He appearsunwilling to manage these offending related factors.[32] Mr Tuliloa has had opportunities to address these factors. He was engagedwith the WellStop programme before the index offences, but not well engaged with it.He was also removed from the Special Treatment Unit, in which he was undergoingtreatment in October 2019 for aggressive behaviour, and has a low level of compliancewith treatment tasks and rules in the Unit.[33] The applicant points out also that while in custody, Mr Tuliloa has accrued 33incident reports and 18 misconduct reports (between 2013 and 2020) includingfighting other prisoners, disobeying lawful orders and having possession of acellphone and unauthorised prescription medicine.Lack of acceptance of responsibility or remorse for previous offending[34] Dr Louw says that Mr Tuliloa has demonstrated only a surface level ofresponsibility for his past offending and there is no evidence of remorse for the impactof his offending on the victims.[35] The respondent says surface level responsibility is enough and means there isno lack of acceptance of responsibility on the part of Mr Tuliloa. The respondent againpoints to Department of Corrections v M where this factor was not met and the Courtsaid the statute does not require "a counsel of perfection".9[36] However I have already noted that the facts in Department of Corrections v Mwere quite different. The evidence overall was that M demonstrated a "significant andgenuine" level of remorse and acceptance of responsibility for his offending.10 Thisis not comparable to a surface level of responsibility.[37] Mr Tuliloa's history of reoffending shortly after release suggests that he doesnot take responsibility for his past offending. I note he has taken some responsibilityduring his assessment for the Adult Sex Offender Treatment Programme (ASOTP) andcould identify the triggers which led to his offending. However his subsequent failureto properly engage with the programme supports the view that his sense ofresponsibility did not reach beyond surface level. As recorded above, Mr Tuliloa hasengaged in rehabilitative treatment for other risk factors, but has similarly failed to seethese through to completion.[38] Mr Tuliloa has expressed some shame and guilt about his offending, but it isunclear if that is remorse for the consequences of his actions on others or just onhimself.[39] Overall I am satisfied on the evidence before me that Mr Tuliloa does displaya lack of acceptance of responsibility or remorse for previous offending.Absence of understanding for or concern about the impact of his sexual offending onactual or potential victims[40] Dr Louw considers that Mr Tuliloa has a very limited understanding of theimmediate impact of his offending on some victims and there is no evidence ofremorse about the long term impact.[41] Dr Louw states that Mr Tuliloa has previously been able to describe theemotional distress of two of his victims, but also that he was able to disregard that9 At [68].10 At [68].distress and focus on his own needs. Dr Louw opines that Mr Tuliloa may be able toregister distress but "appears to be callously indifferent to his victim's feelings". Hecould not identify any impact on his second victim.[42] Ms Krebs says a very limited understanding is not the same as a lack ofunderstanding but again it is a matter of assessing the evidence overall and in my viewthere is sufficient evidence for this factor to be met.Conditions of ISO[43] When a court makes an ISO it may impose any of the standard conditions thatare imposed under an ESO, or any special conditions that may be imposed.11[44] The standard conditions are set out in s 107JA of the Act.[45] Section 15(2) of the Act states that any special conditions that are sought mustnot be imposed unless they are designed to:(a) reduce the risk of reoffending by the offender;(b) facilitate or promote the rehabilitation and reintegration of theoffender;(c) provide for the reasonable concerns of victims of the offender; or(d) comply, in the case of an offender subject to an extended supervisionorder, with an order of the court, made under s 107IAC, to impose anintensive monitoring condition.[46] In addition to the above, Davison J held in Chief Executive Department ofCorrections v Martin that there must be a nexus between the perceived risk posed bythe offender and the effectiveness of the proposed condition.12Standard conditions[47] The Chief Executive asks for all of the standard conditions provided in s 107JAto be imposed as ISO conditions on Mr Tuliloa.11 Parole Act 2002, s 107FA(3). See also s 107K regarding the imposition of special conditions.12 Chief Executive Department of Corrections v Martin, above n 3, at [48].[48] I am satisfied that all of the standard conditions are appropriate and should beimposed except for the standard condition that Mr Tuliloa have no contact with under16 year olds. Ms Krebs makes the fair point, which the applicant accepts, that there isno particular concern around offending against young people in particular and there isevidence that it would be helpful for Mr Tuliloa to have contact with his prosocialfamily members some of whom have children aged under 16. I will modify thatcondition accordingly as set out in the final orders made.Special conditions[49] The Chief Executive also asks for a number of special conditions to be imposedwhich I consider below.13To be subject to intensive monitoring and to submit to being accompanied andmonitored for up to 24 hours a day, by an individual who has been approved, by aperson authorised by the Chief Executive, to undertake person-to-person monitoring[50] Under s 107FA(3) of the Act an intensive monitoring condition can be imposedas a condition of the ISO.14[51] There is no test in the Act as to when an order for intensive monitoring shouldbe made. Intensive monitoring is likely to be justified only in respect of an offenderwho poses a high risk of sexual offending and that risk "is likely to be exacerbated ifthe transition from prison to the community cannot be safely managed without closeand constant supervision".15[52] I consider an intensive monitoring condition is necessary for all of the reasonsset out in s 15(2)(a) (c) of the Act.Not to possess, use, or consume alcohol, controlled drugs or psychoactive substancesexcept controlled drugs prescribed for you by a health professional13 I note that the application filed on 4 February 2021 included an additional condition relating toemployment, which is no longer sought.14 Section 107IAC(3).15 Department of Corrections v Miller [2017] NZHC 2527, at [16].[53] I accept that this condition is necessary to reduce the risk of reoffending.Mr Tuliloa has an extensive history of alcohol and drug abuse which started when hewas 12 years old. I consider that his offending is closely connected to his alcohol anddrug use.To attend an alcohol and drug assessment, and attend, participate in and complete anytreatment or counselling directed by a Probation Officer[54] For the same reasons as above this condition is necessary.To reside at Kaainga Taupua or any other address approved in writing by a ProbationOfficer, and not move from that address unless you have the prior written approval ofa Probation Officer[55] I accept this condition is necessary to ensure that Mr Tuliloa resides inappropriate accommodation where his conditions can be properly managed and inparticular accommodation which has the resources to provide intensive monitoring. Iconsider that this condition will reduce Mr Tuliloa's risk of reoffending and promotehis rehabilitation and reintegration.To undertake, engage in and complete a reintegration programme administered by aprogramme provider between the hours of 8:00am and 8:00pm daily, as approved bya Probation Officer, and abide by the rules of the programme to the satisfaction of theProbation Officer[56] For the same reasons I consider this condition is necessary.To be at your approved address between the hours of 8.00pm and 8.00am daily unlessyou have prior written approval of a Probation Officer[57] I agree that this condition is necessary to reduce Mr Tuliloa's risk ofreoffending. His previous offending occurred during night time hours.Not to enter the Wellington Region as defined by a Probation Officer in writing unlessyou have the prior written approval of a Probation Officer[58] Mr Tuliloa's previous offending occurred in the Wellington area. I agree thatthis condition is necessary to reduce any risk of Mr Tuliloa having further contact withhis victims, which will in turn reduce his risk of reoffending and promote hisrehabilitation and reintegration.[59] However I note that it is not disputed that Mr Tuliloa has prosocial family atleast some of whom are in Wellington who might provide positive assistance with hisrehabilitation and I strongly encourage his being granted permission to do so at anyreasonable opportunity.To comply with the requirements of electronic monitoring and provide unimpededaccess to your approved residence by a Probation Officer and/or representatives of themonitoring company for the purpose of maintaining the electronic monitoringequipment as directed by a Probation OfficerTo submit to electronic monitoring as directed by a Probation Officer in order tomonitor your compliance with any conditions relating to your whereabouts[60] I accept that electronic monitoring is necessary to ensure that Mr Tuliloacomplies with his curfew condition.To attend a psychological assessment and attend, participate in and complete anyrecommended treatment as directed by a Probation Officer[61] For the same reasons as above I consider this condition is necessary.Conclusion[62] I conclude on the evidence before me that Mr Tuliloa has a pervasive patternof serious sexual offending, there is a high risk he will commit a relevant sexualoffence in the future and an ISO is appropriate.[63] I therefore make an order for interim supervision on the basis of the standardconditions and the special conditions outlined above, including an intensivemonitoring condition, all of which I consider necessary and appropriate except thatthe standard condition relating to contact with 16 year olds is modified to read:Mr Tuliloa is not to associate with children under the age of 16 unless the childis a member of his immediate family or the child of an immediate familymember and Mr Tuliloa is under the supervision of an adult.[64] I also draw attention again to the undisputed evidence that contact withprosocial members of Mr Tuliloa's family could assist with his rehabilitation and Iencourage that being facilitated whenever possible.Hinton J