CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v TAAKIMOEAKA [2020] NZHC 3454

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v TAAKIMOEAKA [2020] NZHC 3454[18 December 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-92[2020] NZHC 3454UNDER the Parole Act 2002IN THE MATTER an application for an extended supervisionorderBETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND PENISIMANI TAAKIMOEAKARespondentHearing: 1 December 2020Counsel: P A Currie for ApplicantM Starling for RespondentJudgment: 18 December 2020JUDGMENT OF OSBORNE JThis judgment was delivered by me on 18 December 2020 at 4.15 pmRegistrar/Deputy RegistrarDate:[1] The Chief Executive of the Department of Corrections applies, pursuant tos 107F Parole Act 2002, (the Act) for an Extended Supervision Order (ESO) in respectof Penisimani Taakimoeaka for a period of five years.[2] The criteria for an order are that an offender has or has had a pervasive patternof serious sexual or violent offending and presents a high risk of committing a relevantoffence in future.1Mr Taakimoeaka's qualification as an "eligible offender"[3] Mr Taakimoeaka qualifies as an "eligible offender" against whom an ESO maybe made by reason of the definition in s 107C of the Act, which relevantly provides:107C Meaning of eligible offender(1) In this Part, eligible offender means an offender who—(a) is not subject to an indeterminate sentence but is a person whohas been sentenced to imprisonment for a relevant offence(and that sentence has not been quashed or otherwise setaside) and has not ceased, since his or her latest conviction fora relevant offence (that has not been quashed or otherwise setaside), to be subject to any or all of the following:(i) a sentence of imprisonment (whether for a relevantoffence or otherwise):(ii) release conditions (whether suspended or not):(iii) an extended supervision order; Mr Taakimoeaka's history of sexual offending[4] On 18 July 2014, Mr Taakimoeaka was sentenced in the High Court atBlenheim to seven and a half years' imprisonment on charges of indecent assault,assault with intent to commit rape and sexual violation by unlawful sexualconnection.2[5] Each of these convictions was for a "relevant sexual offence" as defined ins 107B(2) of the Act.31 Parole Act 2002, s 107I(2).2 R v Taakimoeaka [2014] NZHC 1654.3 Respectively pursuant to ss 135, 129(2) and 128B(1) Crimes Act 1961.[6] In terms of s 107C of the Act, Mr Taakimoeaka qualifies as an eligible offenderbecause:(a) he is not subject to an indeterminate sentence;(b) his sentences have not been quashed or otherwise set aside; and(c) he has not ceased, since his last conviction for a relevant offence, to besubject to release conditions.Mr Taakimoeaka's history of sexual offending[7] The following account is based on Mr Taakimoeaka's convictions and theofficial information accessed by Gillian Roper, the Department of Corrections' SeniorPsychologist who has presented the Health Assessment Report required unders 107F(2) of the Act. Mr Taakimoeaka's previous sexual offending occurred in March2005 and the index offending in March 2013. Significantly, Mr Taakimoeakamaintains that the sexual events involved in the 2005 offending occurred consensually.He minimises the 2013 offending.Offending in March 2005[8] In March 2005, Mr Taakimoeaka engaged in serious sexual offending whichresulted in his being convicted of sexual violation by unlawful sexual connection, rapeand attempted sexual violation by unlawful sexual connection.[9] Mr Taakimoeaka and a friend approached the 16 year old female victim andmade sexual advances that were objected to by her. The victim was subsequentlyphysically assaulted by a female associate of Mr Taakimoeaka before he followed herhome. The summary of facts refers to Mr Taakimoeaka having repeatedly over thecourse of an evening sexually assaulted the victim, including by forcing her to haveoral genital contact and by raping her. He remained at her address after she left andhe sexually assaulted her again when she returned some time later.[10] Mr Taakimoeaka explained to Ms Roper that he had been drinking with hisassociates prior to the offending. He maintains that his sexual interaction with thevictim was consensual.[11] For this offending, which occurred when Mr Taakimoeaka was 23 years old,he was sentenced to six and a half years' imprisonment. He was released from prisonin October 2010.Offending in March 2013[12] Mr Taakimoeaka's offending in March 2013 resulted in the convictions I havereferred to at [4] above.[13] On that occasion, Mr Taakimoeaka entered a Picton house where two 16 yearold girls were asleep in one bedroom. He climbed through a window. He took one ofthe girls into a spare room for the purpose of raping her, placed her on the bed andinserted his finger into her vagina. She managed to escape back to the other bedroom.Mr Taakimoeaka followed her back into that room where he groped the thigh of thesecond victim. He stopped his offending only when a male occupant of the housecame into the room in response to the young woman's screaming.[14] Mr Taakimoeaka was found guilty of the charges by a jury in the BlenheimDistrict Court, whereupon the District Court Judge transferred his case to the HighCourt so that a sentence of preventive detention could be considered.[15] In this Court, Collins J sentenced Mr Taakimoeaka to seven and a half years'imprisonment with a minimum period of imprisonment of four years.[16] Ms Roper has described Mr Taakimoeaka's account of this offending asendorsing aspects of minimisation whereby he justified his motive for breaking intothe property being to steal drugs.The ESO application[17] The ESO application was brought on 2 July 2020. The application wasaccompanied by the report (dated 6 March 2020) of Ms Roper as health assessor. Shegave oral evidence at the hearing before me.[18] The application was (in August 2020) set down for this hearing. The timingtook into account the fact that Mr Taakimoeaka had instructed Mr Starling to instructan independent expert to prepare a separate report. Such a report was not subsequentlyfiled. The only health assessment evidence was therefore that of Ms Roper.The statutory tests[19] Section 107I of the Act establishes the Court's jurisdiction to make an ESO:107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protect membersof the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexualor violent offences.(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.(3) To avoid doubt, a sentencing court may make an extended supervisionorder in relation to an offender who was, at the time the applicationfor the order was made, an eligible offender, even if, by the time theorder is made, the offender has ceased to be an eligible offender.(4) Every extended supervision order must state the term of the order,which may not exceed 10 years.(5) The term of the order must be the minimum period required for thepurposes of the safety of the community in 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.[20] Under s 107I, there are therefore two distinct criteria, both of which must besatisfied:4(a) the Court is concerned with present or past behaviour, whichdetermines an eligible offender's susceptibility to an ESO; and(b) the Court is concerned with future risk, which ultimately determineswhether an ESO ought to be made.[21] Under s 107I, the health assessor's report may be relevant to both pervasivepattern and future risk, because the Court must consider the report when addressingboth criteria.5[22] Under s 107F(2A) of the Act, the health assessor's report (when the applicationfor an ESO is based on high risk under s 107IAA(1)) must address whether there is ahigh risk that the offender will in future commit a relevant sexual offence and whetherthe offender exhibits each of the traits and behavioural characteristics specified in s107IAA(1), that provision stating:(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:4 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [17].5 Kiddell, above n 4, at [18].(i) a lack of acceptance of responsibility or remorse forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.[23] The Court of Appeal in Kiddell v Chief Executive of the Department ofCorrections recognised that the assessor's opinion on those matters may inform theCourt's conclusions on both of the s 107I(2) criteria.6 By way of illustration, the Courtadded that "an assessor may conclude that an offender exhibits a predilection orproclivity for offending because he has a past pattern of behaving in that way".7[24] Pursuant to s 107F(3) of the Act, the information contained in the report neednot qualify as admissible evidence in criminal or civil proceedings, the assessor beingentitled to take into account any statement of the offender or any other personconcerning any conduct of the offender, whether or not it constitutes an offence or hasbeen the subject of charge or conviction.[25] The Court of Appeal recognised in Kiddell that the terms "pervasive pattern","serious sexual offending" and "high risk" indicate that the assessment requiresjudgements of quality and degree, the decision-making exercise being fact-specificand evaluative.8[26] The term "sexual serious offending" used in s 107I(2)(a) of the Act is to begiven its ordinary meaning and is not confined to relevant sexual offences as listed ins 107B(2).9[27] A pervasive pattern is one that is sufficiently characteristic of the offender toserve as a predictor of future conduct.106 Kiddell, above n 4, at [19].7 At [19], citing Holland v Chief Executive of the Department of Corrections [2016] NZCA 504[Holland (CA)] at [41]–[42].8 At [21].9 At [22], citing Holland v Chief Executive of Department of Corrections [2017] NZSC 161, [2018]1 NZLR 771 at [13]–[14].10 At [23].[28] The Court, when considering whether an offender presents a higher risk ofcommitting relevant sexual offences in the future, will take into account anything thatmay exacerbate or mitigate risk, such as community support and the offender'sresponse to any treatment that has been undertaken.11[29] The requirement under ss 107I(2) and 107IAA of the Act that the Court be"satisfied" means that the Court must make up its mind on the evidence, with no onusor standard of proof applying.12[30] Once the Court is satisfied under s 107I of the Act that the statutory criteriahave been met, the Court has a discretion to refuse an order as indicated by theprovision (in s 107I(2)) that the Court may make the ESO.13 An ESO engages rightsprotected under the New Zealand Bill of Rights Act 1990 — when deciding whetherto make an ESO, and for how long, courts must recognise that the order may impingesubstantially on the offender's freedom of movement and association.14A pervasive pattern of serious sexual offending?[31] Mr Taakimoeaka, as noted in Mr Harvey's submissions, amassed nearly 30previous convictions by the age of 32. The convictions date from 2003 to 2013 (forfour years of which he was in prison) and occurred between the ages of 15 and 25years. Apart from the 2005 set of sexual offences and the 2013 set of sexual offences,the other convictions were of a different nature (such as dishonesty, property damage,driving offences and in one case, aggravated robbery). In my consideration of thepresent application, I put to one side that part of his record which did not involveserious sexual offending.[32] At the time Collins J sentenced Mr Taakimoeaka for the 2013 offending, MrTaakimoeaka was the subject of an assessment report for the consideration of11 At [24].12 At [25], citing Holland (CA), above n 7, at [12].13 At [26], citing Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at[9].14 At [27], citing Holland (CA), above n 7, at [45].preventive detention. In sentencing Mr Taakimoeaka, his Honour focussed on the riskof reoffending posed by Mr Taakimoeaka. His Honour stated:15[21] You have come perilously close to being sentenced to preventivedetention because of:(1) the emerging pattern of your serious offending;(2) the seriousness of the harm to the community caused by youroffending;(3) the possibility of you committing serious offences in thefuture; and(4) the absence of efforts on your part to date to address thecauses of your offending.[22] I was particularly concerned by the assessment of Mr Carlyon, apsychologist, who believes there is a medium to high risk of you committingserious sexual offences in the future.[33] It is to be recognised that the Judge's risk assessment (in relation to preventivedetention) took into account Mr Taakimoeaka's previous offending which at that pointrelated to matters other than serious sexual offending. But the risk assessment whichhis Honour noted, by reference to the report of the psychologist, was specifically inrelation to the medium to high risk that Mr Taakimoeaka would commit serious sexualoffences in the future.[34] It has transpired that the degree of risk assessed in 2014, as to a patterndeveloping, eventuated in the 2013 sexual offending.[35] For Mr Taakimoeaka, Mr Starling submitted that the sexual offending,although serious, cannot be classified as pervasive because, while Mr Taakimoeakahas committed a large number of offences, it is only the qualifying offences which fallto be considered when determining whether the sexual offending is pervasive.[36] In determining whether Mr Taakimoeaka has or has had a pervasive pattern ofserious sexual offending, I am bound to follow the observations of the Court of Appealin Kiddell, and in particular those identified at [25] and [27] above. The decision-making exercise is fact-specific and evaluative and the assessment requires15 Taakimoeaka, above n 2 (footnote omitted).judgements of quality and degree. A pervasive pattern is one which is sufficientlycharacteristic of the offender to serve as a predictor of future conduct.[37] Mr Taakimoeaka's offending clearly qualifies as displaying a pervasive patternwhen these tests are applied. In Mr Taakimoeaka's case, the pervasive pattern, servingas a predictor of future conduct, was clearly to be seen at the point, in March 2013,when, against the background of his March 2005 offending, Mr Taakimoeakacommitted his Picton offending.A high risk of committing relevant sexual offences in future?[38] In this case the Court has the assistance of the report of a very experiencedpsychologist in Ms Roper. Her report was prepared after interviews with MrTaakimoeaka over a period when he requested further time.[39] His full interview took place over three hours in January 2020. Ms Roper'sreport was dated 6 March 2020. It was in Mr Taakimoeaka's hands (in draft) forreview in April 2020.[40] In the absence of any report obtained by Mr Taakimoeaka, the only expertevidence available to the Court is that of Ms Roper.[41] Ms Roper assessed Mr Taakimoeaka as being high risk for future sexualoffending. While recognising that there have been only two occasions of sexuallyabusive conduct, Ms Roper opined that the nature of those offences reflects a"concerning offence process". Specifically, she recorded that Mr Taakimoeaka hasengaged in impulsive, aggressive and intrusive behaviour directed towards a strangerand someone with whom he had little previous contact. He then continued to pursuehis desire for sexual gratification despite overt resistance in a manner reflective of highrisk-taking behaviour and a pressure to pursue his sexual needs with little regard forthe consequences for himself or the victims. His reoffending within a limited time asan adult in the community (approximately three years after release from prison)occurred despite that sanction.[42] In reaching her opinion, Ms Roper relied on her current health assessment andactuarial instruments. She noted clinical risk factors in order to evaluate the risks.Those measures included instruments which assess static and dynamic risk factors forsexual recidivism, details of which Ms Roper provided as an appendix to her report.[43] Ms Roper reported that Mr Taakimoeaka's RoC*Rol score indicated amoderate risk of "imprisonment general offending" within five years of being releasedfrom prison.16[44] On the Static-99R risk tool (specifically designed in relation to sexualrecidivism) Mr Taakimoeaka's score placed him in the Level IVb (well above averagerisk) category. By reference to the group which Mr Taakimoeaka most closelyresembles, Ms Roper found that the five-year sexual reoffending risk for MrTaakimoeaka is 27.2 per cent, placing him in the 97th percentile, defined as a mid-point average. That is, out of 100 sexual offenders, 96 would have a lower score thanMr Taakimoeaka, 2.5 would have the same score and 1.5 would have a higher score.17[45] Ms Roper reported that on the Violence Risk Scale: Sexual Offender version(VRS:SO), Mr Taakimoeaka was assessed as overall being in the Level IVa (aboveaverage risk category).18[46] In relation to the dynamic items on the VRS:SO version as a whole, MrTaakimoeaka had scores that indicated that the following items were strongly ormoderately related to his recidivism risk: sexual compulsivity, offence planning,elements of criminal personality, cognitive distortions, interpersonal aggression,problems with emotional control, insight, substance abuse, community support,16 RoC*Rol being an actuarial risk measure developed for the Department of Corrections to assist inthe prediction of an offender's risk of imprisonment for all types of offending followingreconviction.17 The Static-99R is an empirically-derived risk tool designed to evaluate the risk of sexualrecidivism based on commonly available demographic and criminal history information,generating five risk categories from Level 1 (very low risk) to Level IVb (well above averagerisk). This is a risk estimate based on static factors only.18 VRS:SO is a risk assessment instrument based on both static and dynamic risk predictors, thenormative sample being derived from a prison-based sample. On the VRS:SO analysis, Ms Roperfound Mr Taakimoeaka had a score similar to those found to be in the 70.3rd percentile for theSexual Deviancy sub-scale and the 71.6th percentile for the Criminality sub-scale score, while forthe Treatment Responsivity sub-scale (measuring poorer treatment outcome) this was at the 89.6thpercentile.release to high risk situations, the presence of a sexual offending cycle, problems withcompliance with supervision, treatment compliance and intimacy deficits.[47] Ms Roper concluded:At the current time despite having completed high intensity treatment anumber of offence factors remain present including offence related cognitivedistortions and this is consistent with his scores on VRS:SO and the Static-99-R which suggest he is in the 97th percentile.[48] Ms Roper referred to the protective factors which have been in place for MrTaakimoeaka. She recorded:In terms of protective factors, Mr Taakimoeaka has completed group treatmentand individual treatment and developed some skills to manage risk associatedwith his offending and a safety plan. However, it is noted that during thecurrent assessment Mr Taakimoeaka's safety plan primarily focused ongeneral affect regulation strategies and while he discussed aspects of sexualregulation, this seemed to lack specificity and focused on external factors suchas distraction. In order for this plan to be robust and protective in assisting MrTaakimoeaka to manage his risk of sexual offending he needs to demonstratean understanding and capacity to utilise internal coping strategies specificallyassociated with his sexual offending. It is further noted that his capacity togeneralise this understanding beyond what was discussed during treatmentwas limited due to his reluctance to discuss sexual motivation or intent in theindex offending and denial of rape in the first offence.[49] Ms Roper then provided a risk parameter statement, based on her analysis ofstatic and dynamic risk factors along with specific information relating to MrTaakimoeaka's offence pattern. She stated:It is considered that there is a high risk that Mr Taakimoeaka will engage inrelevant sexual offending within ten years of release. Based on his previousoffending, should Mr Taakimoeaka sexually re-offend, this would most likelyto be against a post pubescent female who Mr Taakimoeaka considersvulnerable and could potentially be either a stranger or an acquaintance. Anyfuture offending is likely to be highly opportunistic in nature, although adegree of proximal planning is evident in his sexual offending. The most likelyrisk scenario for future offending would be impulsive in nature in a context ofbeing intoxicated or in the presence of unmet sexual needs. Such offendingwould likely involve indecent assault, unlawful sexual connection and may beas intrusive as rape. Dynamic factors associated with increased risk for MrTaakimoeaka include lack of lifestyle structure, substance abuse, engagingwith antisocial peers, offence related distortions and sexual entitlement,relationship dysfunction, and a lack of consideration of consequences. Untilsuch time as Mr Taakimoeaka can demonstrate the ability to maintainappropriate sexual relationships and manage his sexual preoccupation andentitlement to engage in sexual behaviour his risk will remain high.[50] Ms Roper concluded that Mr Taakimoeaka had demonstrated an intense drive,desire and urge to commit relevant sexual offences. She further stated, with referenceto his predilection or proclivity for serious sexual offending, that Mr Taakimoeaka'scriminal history reflects his sense of entitlement to have sex whenever he wants toirrespective of the consequences, reflecting a high degree of sexual preoccupation andobjectification of women, with a proclivity to engage in sexually abusive behaviour.Ms Roper further found that Mr Taakimoeaka has poor self-regulation capacity andhis convictions represent occasions where he has not been able to control his sexualurges, resorting to alcohol and drug use to cope with life stressors, at which point hehas demonstrated he is more likely to make poor decisions including engagement inabusive behaviour.[51] Ms Roper found that Mr Taakimoeaka articulates limited responsibility andaccountability for his offending and has limited insight into the choices and planningassociated with his offending. He failed to express to Ms Roper specific remorse forhis actions in the 2013 offending and continued to deny sexual motivation for breakinginto the property in question. Ms Roper added that Mr Taakimoeaka's ongoingendorsement of cognitive distortions involves a deflection of responsibility and ajustification or minimisation of his actions, indicative of limited understanding orconcern for his past or potential victims.[52] At the times Ms Roper interviewed Mr Taakimoeaka and subsequentlyprepared her report, he remained in custody. He was subsequently paroled on 20 May2020 and has since remained in a supported accommodation and programme situationwith the Pathway Trust. He is currently subject to release conditions which expire(with his sentence) on 2 April 2021.[53] Mr Starling referred Ms Roper to Mr Taakimoeaka's current circumstances (ofwhich he was also to give evidence). After his most recent Parole Board hearing, MrTaakimoeaka no longer has to wear an electronically monitored bracelet. He has full-time employment five days a week. He regularly attends church on Sundays. He hasentered into a relationship (which has been disclosed to his Probation Officer). He hascurfew restrictions which he observes. He reports once weekly to his ProbationOfficer.[54] Against the background of these matters, Mr Starling suggested to Ms Roperthat there was little point in imposing an ESO on a person "where it's going to be ofno useful effect".[55] Ms Roper replied: "Okay. So Mr Taakimoeaka is certainly a gentleman thatyou describe who may very well be on a desistant Pathway."[56] Mr Starling pressed Ms Roper on whether continued monitoring, such as wouldbe available under an ESO, would serve any purpose. This exchange occurred:Q. So how is reporting once a week to a probation officer going to makeany difference?A. In terms of difference, what that would allow would be a level ofaccountability, a level of restriction, a protracted approach to moreindependence and demonstrating behaviour change across time. What weknow is that people's risk over time when they are free in the community withno other offending, not just sexual offending, but any offending includinggeneral offending, will actually over time reduce their risk so in MrTaakimoeaka's case, as we've already talked about, he's considered to be inthe well above average risk category and we have some research and I havesome here if you're interested in copies of it around one of the risk tools thatI used was the static 99R and that the literature suggests that over time thatrisk will reduce as people are time free in the community. In MrTaakimoeaka's case, being the well above average risk category, he wouldneed to be in the community for six years for that category to lower to theabove average category and a minimum of 11 years in order for it to lower tothe average category so in my opinion actually having support in that time toremain offence free in the community bodes well for him to be able to have amore long-term offence free lifestyle in the future.[57] When Mr Starling suggested to Ms Roper that the requirements of an ESOwould be unnecessarily intrusive, Ms Roper responded that she would not see thearrangements as "intrusive" but actually sees them as supportive. She explained thatMr Taakimoeaka needs time for replacement behaviours to develop. She recognisedthat there have been positive developments and that her interactions with MrTaakimoeaka have also been positive and respectful but she continued: "we can't losesight of the fact of where his risk actually currently stands and what is required inorder for that to be demonstrated that it's reduced".[58] Mr Starling also cross-examined Ms Roper as to the period since her reportwas prepared (before Mr Taakimoeaka's release from prison).[59] He suggested that because of the timing of the report, it over-stated the riskbased on what Ms Roper would say if she wrote a report now. Ms Roper concededthat, across time where someone is released from prison their risk will naturally reduceif living an offence-free lifestyle, which would suggest that they are putting offencereplacement behaviours in place. But Ms Roper stated that, with Mr Taakimoeaka'slevel of risk, any change in his score would not be to the degree that he would moveout of the high risk range.[60] Given that the Chief Executive has applied for an ESO of five years' duration,I asked Ms Roper what makes an ESO of that duration more appropriate than for anyother period. Ms Roper replied:So in terms of the length of order that the department has requested it wouldbe safe to say that should Mr Taakimoeaka go five years in the communityand continue on the desistance pathway that seems to be in place now that hewould hopefully by then have had a lot less scaffold and so on around him andwould have had an opportunity to demonstrate ongoing replacementbehaviours. The demonstration of ongoing replacement behaviours are seenas protective and the longer someone's out in the community demonstratingthat then the less likely they are to re-offend, not that they may never re-offendbecause we know that that's not true but the risk does slowly go down. SoI'm not sure in terms of five or six years particularly why they've gone fiveyears and not longer or shorter but in my view probably by five years if MrTaakimoeaka was on a desistance pathway then risk would be looking quitedifferent in terms of his capacity to manage it and replacement behaviourswhich would be seen as positive. Should he not demonstrate that by thatperiod of time, my understanding is the department can request another orderand, equally, should he actually show a desistance earlier and some persistencein that he can also apply to look to have an order reduced is my understanding.[61] Mr Taakimoeaka was also called by Mr Starling to give evidence. Heconfirmed the details of his current living and working arrangements. He stated thathe has made a commitment to himself and God that he won't drink or smoke drugsanymore.[62] In cross-examination, he rejected Ms Roper's opinion that he is at high risk ofcommitting another relevant sexual offence. He conceded that he would see it is agood thing if the Department of Corrections could continue to have a condition thathe not have alcohol. When questioned on the fact that his lengthy sentence on the2005 offending had not stopped him from committing the 2013 offending, MrTaakimoeaka said he had not had a chance the first time to have the alcohol educationand support that he has subsequently had. He suggested in his answers that he did notneed ESO-type conditions to stop him from offending again because at the moment hegets that help from Pathway and all his supporters at his church.Conclusion[63] I accept the assessments made by Ms Roper. In particular, I find that there isa high risk that Mr Taakimoeaka will in future commit a relevant sexual offence.[64] For the reasons identified by Ms Roper, it is to be expected that the level ofrisk posed by Mr Taakimoeaka will reduce over time but that will be achieved with asupport network in place over the short to mid-term.[65] Accordingly, I find that the criteria for an ESO are satisfied.The appropriate term of the ESO[66] Section 107I(5) provides that the term of the order must be the minimumnecessary for community safety in 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.[67] Ms Roper, by reference to the instruments and tools she has utilised, stated thatthe significant level of risk is likely to remain at its level for a period of around sixyears. A period of that nature would provide the necessary time for the monitoring ofprogress by Mr Taakimoeaka.[68] I am satisfied that Mr Taakimoeaka's risk level is likely to look significantlydifferent in five years' time in terms of his capacity to manage his desistance pathwayand replacement behaviours. Having regard to Ms Roper's evidence, the ChiefExecutive's request for a five-year term is appropriate.Order[69] There is an Extended Supervision Order in respect of Penisimani Taakimoeakafor a term of five years from the date of this order.Osborne JSolicitors:Crown Solicitor, ChristchurchCounsel:M Starling, Barrister, Christchurch