CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PARSONS [2023] NZHC 2600 [18 September 2023]

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PARSONS [2023] NZHC 2600[18 September 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2016-409-156[2023] NZHC 2600BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND PIERRE PARSONSRespondentHearing: 20 June 2023(Further submissions filed on 3 August 2023 and 18 August 2023)Appearances: K A White for ApplicantA J Bailey for RespondentJudgment: 18 September 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 18 September 2023 at 3.30 pm, pursuantto r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The respondent, Ms Parsons, has been the subject of two extended supervisionorders (ESOs). The first ESO came into force on 14 June 2006 for a period of10 years.1 When that order expired, a further 10-year ESO was made, which cameinto force on 22 February 2017.2[2] The Parole Act 2002 (the Act) requires a court to review an ESO if an offenderhas been subject to an ESO for a period of 15 years from when the first ESOcommenced.3 The chief executive of the Department of Corrections has thereforemade an application for review of the ESO.The review process[3] The review is conducted under s 107RA of the Act.4 It essentially proceeds asa fresh application for an ESO.5 On review, the court can either confirm the ESO orcancel it.6 The court may only confirm the ESO if it is satisfied there is "a high riskthat the offender will commit a relevant sexual offence within the remaining term ofthe order".7 If the court is not satisfied there is a high risk, it must cancel the ESO.Ms Parsons' background[4] When Ms Parsons was first assessed for an ESO she was referred to asMr Parsons. She has since confirmed she identifies as female, and is now takingtestosterone blocking medication and oestrogen. Accordingly, throughout thisjudgment, I will refer to her as Ms Parsons.1 Chief Executive of the Department of Corrections v Parsons HC Christchurch CRI-2006-409-44,31 May 2006.2 Chief Executive of the Department of Corrections v Parsons [2017] NZHC 229.3 Parole Act 2002, s 107RA.4 I note that s 107RA does not make reference to s 107I and this is presumably because the Courthas already found that the offender has a pervasive pattern of serious sexual offending.5 Parole Act, s 107RA(4).6 Section 107RA(5).7 Section 107RA(6)(a).[5] Ms Parsons was first convicted of offending in 1995 when she was aged18 years. The offending related to the violent sexual assault of a 12-year-old girlunknown to her. The victim was grabbed by Ms Parsons while in the changing roomsof a sports stadium in Dunedin. Ms Parsons then tied a rope around the victim's neck,causing the victim to lose consciousness. Ms Parsons then dragged her into a room,removed her clothing and raped her. She was subsequently sentenced to 11 years'imprisonment.[6] While completing the Kia Marama programme in prison, Ms Parsons disclosedthat she engaged in undetected sexually abusive behaviour during her adolescence.This behaviour included sexual intercourse with an intellectually disabled 15 or16-year-old girl, when she was 16 years old, and touching the genitals of afour-year-old female known to her when she was 17 years old. However, in herinterview with Ms Charlene Lang, a clinical psychologist, in December 2021,Ms Parsons denied engaging in any undetected sexual offending and referred to"almost offending" against a four-year-old when she was 17 years old.[7] On her release from prison, Ms Parsons resided at the Salisbury StreetFoundation and attended the STOP programme. Despite this, she was found to haveimages of children in her room, with staff being concerned she was masturbating tothem. Her secretive behaviour and failure to adhere to the rules of the residence wereconsidered concerning.[8] Ms Parsons first became subject to an ESO in 2006. She has been convictedfor breaching the conditions of this order in 2006, 2011, 2014 and 2016. Theconvictions in 2006 and 2011 were for violations of electronically monitoredboundaries. The conviction in 2014 related to her violating the rules of the supportedresidence she was living in when she arranged to have a sex worker visit her. The2016 convictions related to three incidents which occurred between 2015 and 2016.Two of these breaches related to Ms Parsons approaching an unknown 15-year-old girlin a school uniform and giving her notes on two separate occasions. The first of thesenotes was sexual in nature and the second included a request to buy clothing items andincluded Ms Parsons' mobile phone number. Ms Parsons denies any sexual intent inher behaviour related to these breaches. She also denies that any of the notes given tothe girl were sexual in nature. The other breach around this time related to Ms Parsonsoffering a female staff member, at the residence where she lived, a gift voucher to seethe staff member naked.[9] Ms Parsons was convicted in January 2021 for possession of objectionablematerial for which she received a prison sentence of nine months. This offending aroseafter she was given approval in June 2020 to use an internet-capable device. Shesearched for sexual material on the internet, although none of the behaviour wasillegal. When concerns about the sexual focus of her internet use were raised withMs Parsons, she appeared to have limited insight into why this behaviour wasconcerning. She then downloaded an app to block sexual content but later deleted theapp, citing the financial cost. Her probation officer found that she was deleting herinternet browsing history, and she was warned to stop this.[10] In October 2020,8 her probation officer completed a check of her browsinghistory. There were concerns related to two web pages titled "ten year old girl and20 year man" and "horny little school girls". As a result, Ms Parsons' phone wasconfiscated and forensically examined by police, where a downloaded video of childsexual abuse material (involving an adult female sexually abusing an infant male) wasfound. Ms Parsons claimed she was not seeking child sexual abuse material andaccidentally downloaded the video while looking at legal pornography. While sheattributed this to her lack of understanding of how the internet worked, thatexplanation was considered somewhat implausible given she had demonstrated abilityto navigate the internet.[11] Ms Lang reports that since the current ESO was imposed on 22 February 2017,Ms Parsons has not incurred any breaches of her conditions. She has predominantlyresided in the community, apart from when she was serving a sentence of four and ahalf months' imprisonment. In September 2018, Ms Parsons moved to Dunedin to becloser to her family support. There, she resided in Te Whare Manaaki, a supportedresidence managed by an organisation known as Pact. Eventually, however,8 Although the Health Assessor's report of 7 December 2021 says this occurred in October 2021 atpara 18, at para 23 the date given is October 2020 and this is consistent with her being convictedin January 2021.Ms Parsons was evicted from the Pact accommodation and was subsequentlyimprisoned for the offending involving downloading objectionable material.Ms Parsons would not allow Ms Lang to contact past staff when preparing her report.Ms Parsons was released from prison in March 2021 to reside in Tōruatanga, which issupported accommodation provided by the Department of Corrections, nearChristchurch Men's Prison. It appears she has generally settled in well there and hasengaged with an LGBTQI advocate. Since April 2021 she has also commenced takingtestosterone-blocking medication, with a view to increasing this over time to addressher gender dysphoria.[12] Since commencing hormone treatment, Ms Parsons has stated a preference forbeing addressed as a female and has been more consistently dressing in a femininemanner. She has recently gained employment, working for a company manufacturingtiny homes in Rolleston. She is now having fortnightly outings with staff, and herindependent outings, such as to the beach or to the mall, have increased over time.Staff say that she seems to engage positively with them on outings and is moreconfident to venture into the community independently.[13] Between 26 April 2022 and 7 December 2022, Ms Parsons attended15 individual treatment sessions to address her offending risks, and treatmentrecommenced on 8 February 2023. Overall, Ms Parsons is assessed as demonstratingincreased willingness to engage in treatment. However she still demonstratesemotional avoidance and reluctance to discuss her offending and related risks in detail,and so more specific offence-related work has not yet commenced.The evidence[14] In anticipation of this application, a health assessor's report was prepared byMs Lang on 7 December 2021 (the first report). The application was made on1 June 2022 and set down to be heard on 6 December 202. On 19 September 2022,the respondent sought an adjournment of the hearing with a view to obtaining a secondexpert report.9 On 30 March 2023, recognising there had been delay since her9 Though one has not been provided.first report was prepared, Ms Lang prepared an addendum to her first report (theupdating report). She was also called to give oral evidence and be cross-examined.[15] Ms Lang's first report evaluated Ms Parsons' risk of reoffending using actuarialinstruments and in light of other clinical and offending risk factors. The first actuarialinstrument used was the STATIC-99R which assesses static risk factors (those that arefixed, such as offending history) to predict sexual recidivism in male sexual offenders.Ms Parsons' score of 7 places her in the 97th percentile, or at Level IVb (Well AboveAverage) risk category, being the highest risk category. While Ms Lang cautionedagainst using the score to assess absolute risk probability (as opposed to relative risk),she pointed out that the group of men in the STATIC-99R routine normative samplewho had the same score as Ms Parsons had a predicted rate of sexual reconviction ofbetween 20.9 per cent to 26.7 per cent, with 95 per cent confidence, over five yearsfrom their release in prison. In comparison, in a routine sample of sexual offenders,the average sexual recidivism rate in the first five years is between five and15 per cent.[16] Using the Violence Risk Scale: Sexual Offense Version (VRS-SO), a toolwhich, among other things, assesses sexual recidivism, Ms Parsons was assessedoverall as being at Level IVa (Above Average) risk category. This assessed risk ofsexual reoffending is after five years based on both static and dynamic risk predictors.The estimated sexual recidivism rate for the group with the same total VRS-SO scoreand degree of change as Ms Parsons was between 20.23 per cent and 28.99 per cent,with 95 per cent confidence.[17] In her updating report Ms Lang also utilised the STABLE-2007 which assessesstable dynamic risk factors.10 Ms Parsons was found to be in the high range in termsof risk of sexual reoffending with several dynamic risk items identified. Theproblematic issues for Ms Parsons were: limited positive social influences, a lack ofcapacity for relationship stability, a sense of general social rejection, difficulties withconcern for others, impulsivity, poor problem-solving skills, negative emotionality, ahistory of sexual drive/preoccupation and sexualised coping, a history of deviantsexual interests and a history of poor compliance with supervision. Ms Lang notes the10 That is, factors which are amenable to change but which tend to persevere for months or years.combination of Ms Parsons' STATIC-99R and STABLE-2007 scores places her in theLevel IVb (Well Above Average) risk category.[18] Ms Lang also administered the Psychopathy Checklist: Screening Version(PCL:SV), which is considered to be predictive of a general serious reoffending risk.Ms Parsons' score was the same as the average found for a New Zealand sample.However, her scores on items related to interpersonal and affective deficits were abovethe median score found in the New Zealand sample. Those with above medium scoreson those items had a high probability of committing serious violence offences in thefirst two years of release from prison.[19] Ms Lang then also considered other factors which related to Ms Parsons' riskof reoffending and which were not directly assessed by these instruments. Ms Langnoted that Ms Parsons largely attributes her offending behaviour to her feelings ofgender dysphoria and not being provided with gender affirming care. Ms Lang notesthat there is no evidence that treatment of gender dysphoria reduces risk of sexualrecidivism in transgender individuals. However, there has been only limited researchin this area and it is possible that there are gender-specific risk factors that have notbeen captured by the risk instruments used.[20] The second point Ms Lang notes is that the oversight and restrictions associatedwith the ESO's are likely playing a role in managing the risk of her reoffending. Shesays when there has been a relaxing of restrictions, Ms Parsons has engaged inbehaviour which suggests an increased risk of reoffending. Ms Lang considersMs Parsons will likely need a high degree of support to be able to move towards moreindependent management of her risk. If the ESO was cancelled at this time,Ms Parsons would likely struggle to manage without that support and oversight, andher risk of reoffending would likely increase.[21] On the other hand, Ms Lang notes that Ms Parsons has more recently presentedwith improved compliance with supervision and the conditions of her ESO which islikely to be protective in regard to her risk of reoffending. She has also increased theextent of her social supports, including reconnecting with her family, although theextent to which this will be protective against reoffending is uncertain.[22] Overall, she concludes that Ms Parsons presents as at least being at Level IVa(Above Average) risk of committing a further relevant sexual offence while in thecommunity. If Ms Parsons were to offend again, this would likely be in the context ofincreased emotional dysregulation and negative affect, leading to sexualised copingand deviant sexual fantasy. Given her most recent conviction, she may offend in thecontext of increased sexual preoccupation and deviant sexual interests by accessingimages of child abuse via the internet. She may also make unwanted sexual advancestowards female children or adults whom she perceives may be receptive to suchadvances.[23] While Ms Lang notes the seriousness of Ms Parsons' sexual offending hasdecreased over time, it is uncertain how much of this decrease can be attributed to herability to manage risk factors given she has been subject to an ESO since 2006. It isMs Lang's view that the protective nature of the ESO is what reduced the seriousnessof Ms Parsons' offending behaviour.[24] Ms Lang's first report then goes on to consider the relevant factors ins 107IAA. In summary, Ms Lang considers Ms Parsons continues to present with ahigh number of dynamic risk factors which suggest her risk will remain AboveAverage for the remainder of her current ESO. Her most recent offending suggeststhat she continues to experience an urge to engage in relevant sexual offending andcontinues to demonstrate a predilection or proclivity for sexual offending. She alsocontinues to demonstrate difficulties in relation to her sexual regulation. While sheexpresses some remorse in relation to her earlier convictions, she continues to struggleto accept responsibility for the majority of her offending behaviour. Although she canconsider the impact of her offending on past victims, albeit in a simplistic manner, shedoes not appear to able to apply this when considering the impact of her behaviour onpotential future victims. Ms Lang has little confidence that Ms Parsons will be ableto independently manage her risk of reoffending given she has most recently offendedwhile under a high level of supervision.SubmissionsSubmissions for Ms Parsons[25] Mr Bailey, for Ms Parsons, emphasises that s 107RA anticipates a full,independent and temporal review of the respondent's risk level. If this is done in thiscase, he says the ESO should be cancelled because:(a) the Court will not be satisfied that Ms Parsons displays an intense drive,desire, or urge to commit a relevant sexual offence;(b) even if Ms Parsons does, the Court will not be satisfied that therespondent is at high risk of committing a relevant sexual offence; and(c) even if Ms Parsons is at high risk of committing a relevant sexualoffence, there is not a strong justification for the continuation of theorder.[26] In challenging Ms Lang's conclusion that Ms Parsons' conviction historydemonstrates she has an intense drive to commit relevant sexual offences, Mr Baileypoints out that Ms Parsons has only one conviction for a "relevant sexual offence".That is for the rape offending which occurred when she was 18 years old. At the timeMs Lang prepared her first report, Ms Parsons was 44 years of age and the rape hadoccurred 26 years earlier. Mr Bailey cross-examined Ms Lang on this point, puttingto her that there is "a big difference between going on the internet and looking atimages and having the urge to go out and commit a really serious offence against achild". In Mr Bailey's submission, Ms Lang did not provide a logical explanation forthis conclusion, despite the opportunity afforded to do so. That is because, as a matterof logic, Ms Parsons' conviction history, by itself, cannot be said to establish thatconclusion.[27] In Mr Bailey's submission, Ms Lang also mistakenly treated the internetoffending as "relevant sexual offending". As the Court of Appeal noted in McIntoshv Chief Executive of the Department of Corrections:11 the definition does not include any offences under the Films, Videos, andPublications Classifications Act as the Judge appears to have thought. Someof these latter offences are "relevant offences" in terms of s 107B(1) but theyare not "relevant sexual offences" in terms of s 107B(2).[28] In Mr Bailey's submission, the fact that Ms Parsons has recently committednon-relevant sexual offending does not mean that she has an intense drive, desire orurge to commit a relevant sexual offence. This is supported, he says, by the commentin Ms Lang's report that Ms Parsons' "offending pathway has also appeared to change,given her current offending related to objectionable material". In Mr Bailey'ssubmission, the recent offending simply demonstrates a desire to commit other, lessserious offending, and does not support a conclusion that the criterion ins 107IAA(1)(a) has been met.[29] If that conclusion is reached, then that concludes the enquiry and the ESOshould not continue.12[30] In terms of whether there is a high risk that Ms Parsons will commit a relevantsexual offence within the remaining term of the order, Mr Bailey submits that thereport by Ms Lang is problematic in that she is unable to describe what she means by"high risk". Mr Bailey submits that this is important because it is possible thatMs Lang has not "accurately calibrated" her choice of language to that of thelegislation. If that is the case, then her opinion will not assist the Court.[31] Mr Bailey submits that Ms Lang failed to use precise language or to explainwhat she meant when she said high risk. The best explanation she appeared to offerwas that " high risk would, would be above average". Ms Lang's first report didnot even attempt to make an assessment as to whether or not Ms Parsons was at "highrisk" of committing a relevant sexual offence. Rather, at para 47 of her first report,11 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [31] (footnotesomitted).12 See Chief Executive, Department of Corrections v Martin [2016] NZHC 1060 at [56].she said that Ms Parsons was "considered to present at least a Level IVa (AboveAverage) risk of committing a further relevant sexual offence". In her updating report,Ms Lang did at least refer to the test of being being at high risk, but Mr Bailey criticisesher for not explaining, in a coherent way, what those words meant in her report. In theabsence of such an explanation, Mr Bailey says the Court cannot have confidence thatthe words "high risk" used in her report are calibrated in any way to those words asthey appear in the Act. Without such confidence, the Court could not rely onMs Lang's report and evidence to reach a conclusion on Ms Parsons' risk. Unless therisk category language is precisely used, it carries the risk that offenders will haveESOs imposed on them wrongly. There is a fine line between "high risk" and less than"high risk". Unless the former can be established, the Court has no jurisdiction toimpose an ESO.[32] As an adjunct to this argument, Mr Bailey points out that the testing tools whichMs Lang used to assess risk make no attempt to discriminate between types of sexualoffences (such as "relevant" as opposed to "non-relevant" sexual offences). In thiscase, he says the failure to discriminate between these two is particularly problematic.In terms of s 107RA(1) of the Act, Ms Parsons' risk of committing a further sexualoffence is irrelevant. The Court must focus on only "relevant sexual offences".[33] In this case, Mr Bailey points out that a significant proportion of Ms Parsons'risk of reoffending as assessed by the actuarial tools appears to include non-relevantsexual offences. As Ms Lang accepted, none of the tools attempt to assess the risk thatan offender will commit relevant sexual offences as defined in the Act. GivenMs Lang accepts that Ms Parsons' offending pathway appears to have changed, andwhen she cannot say what proportion of Ms Parsons' risk as assessed by the toolsrelates to relevant sexual offending, the testing tools do not, in any material way, assistto determine Ms Parsons' risk of committing a "relevant sexual offence".[34] The next matter which Mr Bailey says casts doubt on Ms Lang's assessment ofrisk is her failure to take into account the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016. She acknowledged that there was noresearch around the impact of the register, and she accepted that it may assist inmanaging such offending. Mr Bailey points out the purpose of that Act is to reducethe risk posed by serious child sex offenders,13 and, in Wharton v Chief Executive ofthe Department of Corrections, the Court of Appeal acknowledged that the possibilitythe respondent would be on the Child Sex Offender Register would be "a furtherprotective factor to be taken into account".14[35] The next point made by Mr Bailey is that even if the Court was to find thes 107IAA(1)(a) prerequisite was made out, there is insufficient justification for thecontinuation of the ESO. Before a reviewing Court can confirm an ESO, it must alsobe satisfied there is a "strong justification" to continue it.15 Here, Mr Bailey submitsthere is no such strong justification. This is because Ms Parsons has now been subjectto ongoing restrictions relating to offending which occurred in 1995 when she was18 years of age. She has therefore been subject to restrictions pertaining to the rapeoffending for more than 28 years. Mr Bailey submits that the fact the ESO legislationwas not in existence when she committed the rape, but was imposed "retrospectively",makes that more egregious.[36] Furthermore, the restrictions which Ms Parsons has been under are veryrestrictive. She has also not been managed fairly or humanely. For example,Ms Parsons had previously been required to largely cease her cross-dressingbehaviour, which Ms Lang agreed was not necessarily relevant in terms of managingher risk. If the ESO was confirmed, it would be done based on Ms Parsons' possible,as opposed to probable, risk. Given that Ms Parsons' risk of any sexual reoffendingover the next 10 years using the VRS-SO is estimated at 36.31 per cent,16 the risk ofrelevant sexual offending must, of course, be much lower.[37] Finally, Mr Bailey submits that, as the Court of Appeal confirmed in Chisnall,an ESO is a "punishment" for the purposes of the New Zealand Bill of Rights Act1990 (NZBORA).17 Having regard to how long Ms Parsons has been subject to anESO, and the conditions and restrictions she has been placed under, the continuation13 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 3.14 Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 at [37].15 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53].16 Or between 32.16 per cent and 40.68 per cent with 95 per cent confidence.17 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [138]; and Chisnall vAttorney-General [2022] NZCA 24, (2022) 13 HRNZ 107 at [3](a).of her ESO would amount to a disproportionately severe punishment under s 9 ofNZBORA for which there is not a strong justification.Submissions for the chief executive of the Department of Corrections[38] The applicant filed extensive submissions prior to the hearing setting out therelevant law and summarising Ms Lang's evidence on the risk that Ms Parsons wouldcommit a relevant sexual offence within the remaining term of the order. Ms Whitesubmits that having regard to the evidence, the Court could be satisfied that the mattersset out in s 107IAA were present and Ms Parsons remains at a high risk of committinga further relevant sexual offence during the balance of the current ESO.[39] On receipt of the written submissions filed by the respondent, Ms White alsofiled submissions in reply. While the respondent criticised Ms Lang's evidence onwhether Ms Parsons still displayed an intense drive, desire or urge to commit a relevantsexual offence because Ms Lang treated the internet offending as constituting"relevant sexual offending", Ms White says that is not correct. Ms Lang took note ofthe internet offending because it indicated a continued sexual interest in children.Ms White says the continued sexual interest in children is a relevant factor to take intoaccount in assessing whether the intense drive, desire or urge to commit a relevantsexual offence continues. Ms Lang was entitled to take that offending into account tosupport her opinion that Ms Parsons, while denying she is motivated to engage inharmful sexual behaviour, displays behaviour that is contrary to those denials.[40] In response to the criticism of Ms Lang's use of terminology when assessingMs Parsons as being at "high risk" of sexual reoffending, Ms White says that Ms Langacknowledges there is no assessment tool that directly assesses an offender's risk ofcommitting a relevant sexual offence. However, she was clear in her evidence that aperson's score on risk assessment tools is not of itself necessarily a completeassessment of risk. Ms Lang's assessment that Ms Parsons was at high risk ofcommitting a relevant sexual offence was: based on the risk measures that I've considered, also considering herhistory of re-offending, her behaviour while she's been on the ESO, that shepresents a high risk of re-offending [41] Ms White points out that Ms Lang remained unshaken in her evidence thatthere remains a high risk of offending. She also added that while Ms Lang wascriticised for not referring to the Child Protection (Child Sex Offender GovernmentAgency Registration) Act, she gave evidence that there was no research in theNew Zealand context around the impact of the register and so it was hard to say whatimpact registration might have. In those circumstances, it was understandable she didnot include that factor in her risk assessment.Discussion[42] The starting point is that I may only confirm the ESO if, on the basis of thematters set out in s 107IAA, I am satisfied there is a high risk that Ms Parsons willcommit a relevant sexual offence within the remaining term of the order.18 Thisrequires me to be satisfied that Ms Parsons:19(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence; and(b) has a predilection or proclivity for serious sexual offending; and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance or 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.[43] I must be satisfied as to each of these factors. If I am not satisfied as to one ormore of the factors, an order cannot be made.20[44] The relevance of these four factors to offending risk was explained by the Courtof Appeal in McIntosh v Chief Executive of the Department of Corrections asfollows:2118 Parole Act, s 107RA(6)(a).19 Section 107AA(1).20 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [32].21 McIntosh v Chief Executive of the Department of Corrections, above n 11, at [22].Determining whether there is a high risk that a given offender will commit arelevant sexual offence within a stated period is an inherently difficultexercise. Parliament has provided some structure and discipline to theassessment by prescribing the characteristics any offender who poses this highrisk will have. The first two – intense drive, desire, or urge to commit arelevant sexual offence and predilection or proclivity for serious sexualoffending – could be seen as animating characteristics. The second two –limited self-regulatory capacity; and lack of acceptance of responsibility orremorse for past offending and absence of understanding for or concern aboutthe impact of his or her sexual offending on actual or potential victims – couldbe described as protective characteristics. These characteristics cannot beconstrued and applied in absolute terms. They are human characteristics and,to the extent they are present, they will vary from one person to another.[45] The difficulty of this task is exacerbated in the case of an offender, likeMs Parsons, who has been subject to an ESO for a significant period of time. It isunlikely, under the restrictions of an ESO, that what the Court of Appeal describes asthe "animating characteristics" will have clearly manifested themselves. Both thehealth assessor, and the Court, must to a large extent rely on other signals, includingoffence-paralleling behaviour, to determine whether these characteristics remain inplay. With these comments in mind, I turn to consider the evidence in this case.[46] In considering whether Ms Parsons still displays an intense drive, desire orurge to commit a relevant sexual offence, I note the use of the word "displays" in termsof an ESO application does not mean that the behaviour must be externally manifestedat the time of the application. It is sufficient that such behaviour may be "latent andemerge only in certain contexts".22[47] In her first report, Ms Lang relied on both Ms Parsons' conviction history andher most recent sexual offending (downloading child sexual abuse material) toconclude that her underlying intense drive, desire or urge to commit a relevant sexualoffence was still present, even while subject to a high level of supervision and havingundergone various forms of treatment since she was first imprisoned in 1995.Ms Lang acknowledged that Ms Parsons denied being motivated to engage in harmfulsexual offending, but given there was behaviour contradicting her denials, Ms Langput more weight on her history than her self-reporting.22 Chief Executive of the Department for Corrections v Douglas [2016] NZHC 3184 at [86].[48] Particularly troubling for the Court's assessment, though, was the fact thatsince the offending in 2020, Ms Parsons has started taking testosterone blockingmedication and oestrogen. While Ms Lang acknowledged she was not a medicalexpert, she agreed that lowering testosterone levels could have an impact on anindividual's sexual drive. While acknowledging it was a possibility that the hormonetreatment Ms Parsons was taking would lower her sexual drive, Ms Lang said that wasnot necessarily a certainty. The difficulty here was that we are reliant on Ms Parsons'self-reporting as to her current level of sex drive, and it was difficult to know howcredible that was given she had denied any issues with sexual drive in the past, yetcontinued to engage in behaviour that contradicted those assertions.[49] The same issues arise in deciding whether she has a predilection or proclivityfor sexual offending. I am left with the situation where there is a clear pattern ofMs Parsons taking the opportunity, when it arises, to give expression to her sexualdrive, for example, by approaching a school girl as she did in 2015 and 2016, and bydownloading inappropriate material from the internet in 2020. I have no concreteevidence to suggest her intense drive, desire or urge to commit a relevant sexualoffence has abated. While, of course, none of her behaviour since being on an ESOconstitutes a relevant sexual offence, that is to be expected under the restrictions of anESO. What remains of concern to me is that as recently as 2020, Ms Parsons was notopen or honest about what she was doing when searching the internet. For this reason,I have little confidence in her self-reporting and am not prepared to find that herintense drive, desire or urge to commit a relevant sexual offence has abated.[50] The same factors are relevant to the assessment of whether Ms Parsons has apredilection or proclivity for serious sexual offending. Again, there is evidence thatMs Parsons has, even while under the restrictions of an ESO, found opportunities toengage in concerning behaviour with a sexual motive, including the approaches to aschool girl and the downloading of child sex abuse material.[51] I share Ms Lang's concern that Ms Parsons' predilection or proclivity forserious sexual offending remains valid, particularly where she cannot identify oremploy strategies to manage any offence-related sexual interest, nor is the evidencethat she is able to engage in or display healthy sexuality or adaptive sexual behaviours.[52] In terms of Ms Parsons' self-regulatory capacity, there is some evidence ofmore effective self-regulation displayed by her ability to maintain employment over a15 month period through to March 2023. As Ms Lang explains that does reflectpositively on her ability to regulate her behaviour more generally. I also observe thatthere seems to be a trend towards more compliant and less negative behaviour,particularly since Ms Parsons has been undergoing hormone therapy and allowed todress consistently with her gender preference. However, as Ms Lang explains,Ms Parsons continues to require a relatively high level of support to maintain anyapparent improvements in her self-regulation. Where there has been a relaxing ofrestrictions, such as granting her unrestricted access to the internet, her ability tomanage her behaviour has been poor. Ms Lang notes that Ms Parsons has either beendishonest about her sexual preoccupation or compulsivity, or shown a lack of insightinto the problematic nature of her sexual focus, and for this reason, she has littleconfidence that Ms Parsons would be able to regulate these effectively withoutoversight. I accept that the urge to commit a relevant sexual offence is being managedby the level of restrictions she is under rather than by her ability to independentlymanage it.[53] In terms of her acceptance of responsibility and remorse for past offending,Ms Lang notes that Ms Parsons is reluctant to discuss her offending behaviour in detailand externalises responsibility for her most recent offending. Ms Lang remains of theview that Ms Parsons demonstrates limited responsibility and remorse for her sexualoffending in 1995 and shows no remorse or acceptance of responsibility for heroffending subsequent to this.[54] Finally, in terms of Ms Parsons' understanding for or concern about the impactof her sexual offending on actual or potential victims, Ms Lang notes that Ms Parsonshas deficits in relation to empathy, particularly in respect to her victims of sexualoffending. While she could articulate how her actions may have harmed others in asimplistic manner, her ability to generalise the impact of her past sexual offending onher victims appeared poor. In relation to her more recent offending involvingdownloading child abuse material, she did not appear to have concern for how thevictims portrayed in those images may be affected. Ms Lang comments thatMs Parsons appears more focused on her own victimisation and grievances andappeared to have limited concern for how her behaviour could impact potentialvictims.[55] I note these conclusions were not challenged, so I accept them at face value.[56] Having considered those four criteria under s 107IAA, and being satisfied thatthey are still present, I turn to whether there is, taking those conclusions into account,a high risk that Ms Parsons will commit a relevant sexual offence within the remainingterm of the order.[57] Mr Bailey advanced thoughtful submissions on the use of the term "high risk"in s 107RA. I accept that this is a high threshold, although not as high as the thresholdin s 107RA(1)(b) which requires there to be a "very high risk" of committing a relevantviolent offence where the ESO has been imposed on a violent offender.[58] I accept I need to be careful about accepting Ms Lang's conclusions as to "highrisk" as necessarily being equivalent to the statutory threshold. In the end, it is myconclusion as to whether there is a high risk of such offending which must prevail. Inreaching that conclusion, I will have regard to the information provided in Ms Lang'sreports and which forms the basis for her expert opinion and not merely herconclusions on this issue.[59] I have considered the outcome of the actuarial risk assessment tools. TheSTATIC 99-R is, as Ms Lang explains, anchored to the day of release from her mostrecent sexual offence conviction in 2021. It places Ms Parsons in the highest riskcategory, being Level IVb (Well Above Average), and with a score in the97th percentile. The combination of her STATIC-99R and STABLE-2007 scoresplaces her in the Level IVb (Well Above Average) risk category.[60] I accept these risk assessment tools do not differentiate between the risk ofcommitting relevant sexual offences and any other type of sexual offence. However,as a matter of common sense, where someone has committed a relevant sexual offencein the past, this tool must give some indication of their risk of committing a relevantsexual offence in the future. I cannot ignore the information that statisticallyMs Parsons is at very high risk of sexual reoffending compared with other sexualoffenders when deciding her risk of committing a relevant sexual offence.[61] However, Ms Parsons' risk cannot just be assessed based on statisticalprobabilities, and I do not do so. I found the assessment of whether Ms Parsons hadprotective factors which could prevent her offending to be equally, if not more, useful.Using the Structured Assessment of Protective Factors against Sexual Offending(SAPROF-SO), Ms Lang explained what factors might protect Ms Parsons fromfurther offending and which were not present. The SAPROF-SO identified thefollowing factors as supporting Ms Parsons to desist from offending: her employment,her emotional connection to her mother, and her improved attitude towards rules andregulations. However, those were insufficient in Ms Lang's view to manage herongoing risk when regard was had to her low scores on items related to resilience andadaptive sexuality. This was rated as a moderate-high level. The SAPROF-SOindicated that Ms Parsons received a moderate to high level of protection from factorswhich were linked to the professional support she currently receives with her ESOconditions. However, those protective factors would change if Ms Parsons' contextchanged, such as moving from supervised living to living independently.[62] I also place weight on Ms Lang's conclusions as to the endurability ofMs Parsons' risk. She says that while Ms Parsons has been engaged in treatment overthe past year, this treatment has not yet directly addressed risk-related needs. Shouldshe be able to address more risk-relevant issues in the future, this could result in thereduction of her risk.[63] Finally, I have had regard to Ms Lang's conclusion, which she maintains in herupdating report, regarding the type of offending risk Ms Parsons presents:Given Ms Parsons' history of offending, if she were to offend again this wouldlikely be in the context of increased emotional dysregulation and negativeaffect, leading to sexualised coping and deviant sexual fantasy, feelingblocked from meeting her sexual needs and being able to isolate a femalechild. Her past offending suggests that she may also use a degree of force togain compliance from any potential victim. Given her most recent convictionsshe may offend in the context of increased sexual preoccupation and deviantsexual interest by accessing images of child abuse via the internet.Furthermore, considering her behaviour in relation to her breach relatedoffending, she may make unwanted sexual advances towards female childrenor adults whom she perceives may be receptive to such advances.[64] While I acknowledge that accessing child abuse via the internet is not arelevant sexual offence, the risk of her offending against children in particular wouldinvolve relevant sexual offending.23 Given the high statistical probability ofMs Parsons sexually reoffending relevant to other sexual offenders, along with a lackof protective factors were she to be shifted from her currently highly supervisedsituation to minimal supervision, I am satisfied that Ms Parsons would, at this point,be at high risk of committing a relevant sexual offence. Furthermore, I am not satisfiedthat registration on the Sex Offender Register would materially change that risk. Thatwould require Ms Parsons to be inhibited for offending by the mere fact that she is onthe register and must notify the administrators of the register of her personal detailsand of any changes in her circumstances. At present there is no evidence that anythingless than active supervision will have that inhibiting effect on Ms Parsons.[65] That said, I consider that progress has been made, and it is encouraging to readthat the current plan is to transition Ms Parsons to more independent living. Thatincludes transitioning her from Tōruatanga to more independent accommodation inChristchurch. That is proposed to be done over a six-month timeframe. Ms Parsonsacknowledges that she would struggle with the lack of social support, saying she hasfelt well supported in Tōruatanga. While Ms Parsons has support from her mother,she lives in Dunedin, and Ms Parsons needs time to develop a wider network of socialsupport in the Christchurch area.[66] For these reasons, I am satisfied that Ms Parsons remains at high risk ofcommitting a relevant sexual offence and I confirm the ESO. While I acknowledge ithas a punitive element, I also consider Ms Parsons needs that support and it would besetting her up to fail if it was removed abruptly and before Ms Parsons has moved to,and adapted to, a more independent living arrangement. I consider it is important thatall parties should be working to support Ms Parsons living more independently whileshe still has the support of the ESO to fall back on if difficulties arise. A combinationof continued employment, better engagement with a wider support network in the23 See Parole Act, s 107B(2).community and evidence that her intense sexual drive can be managed, whetherthrough her hormone therapy or her own developing social skills, or a combination ofboth, should mean the ESO is not extended beyond the end of this period.Result[67] The ESO made on 22 February 2017 is confirmed under s 107RA(5).Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:A J Bailey, Barrister, Christchurch