CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v R (CRI-2021-409-11) [2021] NZHC 2276

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v R (CRI-2021-409-11) [2021] NZHC2276 [31 August 2021]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OFAPPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S)PROHIBITED BY ORDER MADE IN THE COURT'S INHERENTJURISDICTION. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360347.htmlIN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2015-404-352[2021] NZHC 2276UNDER s 107RA of the Parole Act 2002IN THE MATTER of a review of an Extended SupervisionOrderBETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND R (CRI-2021-409-11)RespondentHearing: 27 July 2021Appearances: C J Boshier for ApplicantG K Edgeler for RespondentJudgment: 31 August 2021JUDGMENT OF OSBORNE JThis judgment was delivered by me on 31 August 2021 at 4.55 pmRegistrar/Deputy RegistrarDate:Introduction[1] The Chief Executive of the Department of Corrections (the Chief Executive)has applied for a review of the respondent's (R) extended supervision order (ESO).R's ESOs[2] The Parole Act 2002 provides for the making of ESOs to protect members ofthe community from those who, following receipt of a determinate sentence, pose areal and ongoing risk of committing serious sexual or violent offences.1[3] R has been subject to two ESOs. The first ran from 24 November 2005 to 23November 2015.2 The second (current) ESO came into force on 27 March 2017 andis calculated by the Chief Executive to expire on 24 June 2027.3[4] Section 107RA Parole Act requires the sentencing court to review an ESO atspecified dates. The determination of the appropriate review date is at issue here, andis addressed below at [40]–[44].[5] Section 107RA(3) requires that a review must be commenced by the ChiefExecutive, which may be made at any time within four months before the review date.[6] Between the first and second ESO, R was subject to an interim supervisionorder (ISO).4[7] Before the ISO was made, the Chief Executive had applied for a publicprotection order (PPO) to be made detaining R pursuant to the Public Safety (PublicProtection Orders) Act 2014 (Public Safety Act). While the Court found the elementsfor a PPO were established (in that R has a very high risk of imminent serious sexualoffending) the Court, under s 12 of the Public Safety Act, directed the Chief Executive1 Parole Act 2002, s 107I.2 Chief Executive of the Department of Corrections v [R] HC Auckland CRI-2005-404-0125, 24November 2005 [2005 judgment].3 Chief Executive, New Zealand Department of Corrections v [R] [2017] NZHC 559. [2017judgment]. Affirmed on appeal [R] v Chief Executive of the Department of Corrections [2020]NZCA 126.4 Section 107FA.to consider compulsory care pursuant to the Intellectual Disability (Compulsory Careand Rehabilitation) Act 2003 (Intellectual Disability Act).5R's compulsory care order[8] R is currently detained pursuant to a compulsory care order (CCO) made on 15April 2019 under the Intellectual Disability Act, with a designation that he be held asa secure care recipient. R's specified term is three years (the maximum available underthe legislation).6 R was initially cared for at Hillmorton Hospital, Christchurch (asecure facility), pursuant to s 63 Intellectual Disability Act. On 10 June 2020, R wasmoved to, and remains at, a secure facility in the community.[9] The order for R's detention in a secure facility results in the conditions of hisESO being suspended.7 Accordingly, for so long as R's present detention continues,the ESO is unlikely to have a practical impact on him.Chief Executive's application[10] The Chief Executive, on 23 February 2021, filed this application for the reviewof R's ESO. Specifically, the Chief Executive sought a review to ascertain whether(under s 107RA(1)(a) Parole Act) there is a high risk that R will commit a relevantsexual offence within the remaining term of the order.[11] In the application the Chief Executive stated that an updated health assessor'sreport was being obtained and would be filed when available.[12] A report of Paul Carlyon (a registered clinical psychologist) dated 17 May 2021was subsequently filed on 29 June 2021.[13] The application was adjourned at its first call on 29 March 2021 to this hearing.5 Chief Executive of the Department of Corrections v R (No 2) [2018] NZHC 3455 at [1], [3] and[52]–[53].6 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 46(2).7 Parole Act, s 107P(3).[14] At the hearing of the application Mr Carlyon was examined in relation to hisreport.Chronology[15] The relevant dates are:(a) 24 November 2005 — first ESO commences;(b) 23 November 2015 — first ESO expires;(c) 23 November 2015–27 March 2017 — ISO in operation;(d) 27 March 2017 — second ESO commences;(e) 13 July 2018 — interim detention order (IDO) made and R enters thesecure residence of Matawhāiti;(f) 1 January 2019 — R taken into custody for alleged offendingcommitted at Matawhāiti;(g) 22 March 2019 — R transferred to Hillmorton Hospital;(h) 15 April 2019 — CCO made for three years (R having been found unfitto stand trial for the alleged January 2019 offending);(i) 10 June 2020 — R moved to a secure placement in the communityunder the CCO;(j) 23 February 2021 — Chief Executive's application for review filed;and(k) 29 June 2021 — health assessor's report filed.The timing of the filing of the health assessor's reportThe issue raised[16] An issue was raised by Mr Edgeler as to the time of filing of the healthassessor's report. Mr Edgeler submits the lack of a timely report had the effect ofbarring the making of an order confirming the ESO. He accepts that if this argumentfails, the substantive issue is whether there is a high risk that R will commit a relevantsexual offence within the remaining term of the ESO.8[17] The Court reviews ESOs under s 107RA Parole Act. The section provides:107RA Review by court(1) A sentencing court must, on or before the review date specified insubsection (2), commence a review of an extended supervision orderin order to ascertain whether there is—(a) a high risk that the offender will commit a relevant sexualoffence within the remaining term of the order; or(b) a very high risk that the offender will commit a relevantviolent offence within the remaining term of the order.(2) The review date of an extended supervision order is,—(a) if an offender has not ceased to be subject to an extendedsupervision order since first becoming subject to an extendedsupervision order, the date that is 15 years after the date onwhich the first extended supervision order commenced; and(b) thereafter, 5 years after the imposition of any and each newextended supervision order.(3) A review under this section must be commenced by way of anapplication by the chief executive, which may be made at any timewithin 4 months before the review date.(4) For the purpose of a review under this section, sections 107F (exceptsubsection (1)), 107G, 107GA, and 107H apply (with any necessarymodification) as if the review were an application for an extendedsupervision order.(5) Following the review, the court must either confirm the order or cancelit.(6) The court may only confirm the order if, on the basis of the mattersset out in section 107IAA, it is satisfied that there is—8 Parole Act, s 107RA(6)(a).(a) a high risk that the offender will commit a relevant sexualoffence within the remaining term of the order; or(b) a very high risk that the offender will commit a relevantviolent offence within the remaining term of the order.(7) For any period during which time has ceased to run on an extendedsupervision order under section 107P, time also ceases to run on theperiod specified in subsection (2) for the purpose of calculating thereview date of an extended supervision order.[18] Mr Edgeler, for R, invokes s 107F(2) Parole Act. It is under s 107F that theChief Executive applies to the sentencing court for an ESO. Section 107F(2), reliedupon by Mr Edgeler provides:(2) An application under this section must be accompanied by a report bya health assessor (as defined in section 4 of the Sentencing Act 2002).[19] Pursuant to s 107RA(4) of the Act, s 107F(2) applies (with any necessarymodification) to this review as if it were an application for an ESO.[20] Mr Edgeler submits the requirement that the Chief Executive's application beaccompanied by a health assessor's report is mandatory. He says that as a result ofthat mandatory requirement the Chief Executive should be treated as having electednot to call evidence, with the consequence that the Chief Executive has not establishedthat R meets the required risk level under s 107RA(6)(a) of the Act.[21] In response, Ms Boshier invokes s 379 Criminal Procedure Act 2011 (CPA)which provides:379 Proceedings not to be questioned for want of formNo charging document, summons, conviction, sentence, order, bond,warrant, or other document, and no process or proceeding may bedismissed, set aside, or held invalid by any court by reason only ofany defect, irregularity, omission, or want of form unless the court issatisfied that there has been a miscarriage of justice.[22] Under s 107G(7)(c) Parole Act, s 379 CPA applies, with all necessarymodifications, to proceedings for an ESO.99 Parole Act 2002.[23] Ms Boshier submits that, were s 107F(2) Parole Act to be construed asrequiring the filing of the health assessor's report contemporaneously with the filingof the Chief Executive's application, then s 379 CPA precludes (absent any miscarriageof justice) the Court disregarding the application by reason of such omission orirregularity. The Court's response, consistent with s 379 CPA, would then be toprovide the offender with further time for review of the (subsequently filed) report andany other appropriate steps (if the offender reasonably required that).[24] Ms Boshier submits that a similar type of jurisdictional challenge to that nowadvanced by Mr Edgeler was dismissed in McDonnell v Chief Executive of theDepartment of Corrections.10 At the time of Mr McDonnell's sentencing hearing inthe High Court, the health assessor who had prepared a report that was filed along withthe Chief Executive's application for an ESO was unavailable, with the consequencethat a different health assessor considered the original report and gave evidence.11 TheHigh Court found that this did not create a jurisdictional bar to an ESO, noting that theoriginal report had fulfilled the requirement that an application is to be accompaniedby a health assessor's report.[25] On appeal, the Court of Appeal said, in relation to this matter, that:12[25] In the High Court, Mr Bott argued that the unavailability of DrZuessman for cross-examination was a fatal flaw that provided a jurisdictionalbar to the issuing of an ESO. This was because Dr Zuessman's affidavit hadaccompanied the application for the ESO. Baragwanath J rejected thatargument: he found that the provisions of Part 1A must be interpreted topromote rather than defeat the statutory purpose expressed in s 107I(1)(protection of a community) and that the procedures had to accommodatecases where the original assessor died or became too ill to be cross-examined.He said that the availability of Dr Wilson's affidavits, and his availability forcross-examination, meant that the health assessment relied on by the ChiefExecutive could be properly challenged.[26] We agree. [26] In reply, Mr Edgeler submits that McDonnell is distinguishable because theChief Executive's application there was accompanied by a health assessor's report.10 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 (2009) 8 HRNZ770.11 Chief Executive of the Department of Corrections v McDonnell HC Auckland CRI-2005-404-239,19 May 2008 at [16]–[18].12 McDonnell v Chief Executive of the Department of Corrections, above n 10.He says the only issue was that the initial report writer, who had authorised anassessment that had accompanied the application for the ESO, was unavailable forcross-examination.[27] Mr Edgeler submits that a better analogy can be drawn with the approach takenby the Court of Appeal when R appealed against the making of an IDO detaining himat Matawhāiti.13 The issue was as to the correct interpretation of the Court's powersunder s 107 Public Safety Act to make an IDO when the application was not madeuntil after intensive monitoring conditions had ceased?[28] The Court of Appeal found that "as a matter of common sense and ordinaryprinciples of interpretation" it must be implicit in the requirements under s 107 thatthere is an application (for a PPO) actually in existence.14 The Court found thatconstruction supported by surrounding provisions. The Court went on to refer also tothe policy reasons underlying the Public Safety Act.15[29] Mr Edgeler submits that the following observations of the Court of Appealapply by analogy here:[38] We therefore consider that Mr Edgeler's interpretation is consistentwith the policy reasons underlying the Public Safety Act and does notundermine them. It does not impede the flexibility of the authorities to act inthe public interest, but rather reinforces the imperative for them to actpromptly. If they do there will be no hiatus, which is beneficial both frompublic safety and good administration perspectives.[39] There is of course always the chance of human error and deadlines canbe missed. The effect of our decision is that if a mistake is made and theapplication for a public protection is filed late, the Court cannot make aninterim detention order. However, that would not need to mean public safetywas put in jeopardy. In such a situation, it would always be open to the ChiefExecutive to seek an urgent hearing of the public protection order application.13 R (CA464/2018) v Chief Executive of the Department of Corrections [2019] NZCA 60.14 At [34].15 At [37]–[38].Discussion[30] I am to construe s 107F(2) Parole Act as it applies to the Court's reviews ofESOs under s 107RA of the Act. For convenience, I repeat the provision:(2) An application under this section must be accompanied by a report bya health assessor (as defined in section 4 of the Sentencing Act 2002).[31] I begin with the text of the section. It does not state in terms that the applicationwhen it is filed must be accompanied by the health assessor's report.[32] The wording of s 107F(2) may be contrasted with that adopted in the HighCourt Rules 2016, in relation to the requirements concerning any affidavit in supportof an interlocutory application. Rule 7.20 High Court Rules provides:Any affidavit in support of the application must be filed at the same time asthe application.16[33] While the use of the verb "accompany" in s 107F(2) conveys the sense of "gowith" or "attach to" that does not of itself command a construction that the report mustgo with or accompany the application at the very time the application is filed.[34] The matter may be tested by considering whether a report filed the day afterthe application was filed has "accompanied" the application. I do not find anynecessary implication in the use of the term "accompanied" to the effect the two filingsmust take place at the very same time.[35] On the other hand, I do not consider that a report filed much later than theapplication, at a time when those acting for the respondent would normally bepreparing for the hearing, could be said to be a report which is "accompanying" theapplication.[36] Such a later filing would also not fit well with the requirements of s 107G(1)(b)Parole Act, which Ms Boshier responsibly drew to my attention. Under that provision,16 Accordingly, there is no right to file affidavits in support of an interlocutory application at a laterstage, although the Court retains a discretion to extend the time for filing a supporting affidavit:See the Commentary in Andrew Beck and others McGechan on Procedure (online ed, ThomsonReuters) at [HR7.20.02] (footnote added).the Chief Executive must ensure that as soon as practicable after the application for anESO is made, the offender is served with both a copy of the application and a copy ofthe health assessor's report (and other identified documents). The drafting of thisprovision suggests that a health assessor's report will not be filed a significant periodafter the application itself.[37] The report in this case, although dated 17 May 2021, was not filed until 29June 2021, some four months after the application.[38] I recognise, in these circumstances, a strong argument that s 107F(2) was notcomplied with on this review. But I do not need to finally determine that issue as theChief Executive is entitled to invoke the provisions of s 379 CPA.[39] It is clear under the review regime of s 107RA (as supplemented by s 107F(2)Parole Act) that before the Court undertakes its review there must be before it a healthassessor's report. The consequence of an irregular filing of the health assessor's reportas urged by Mr Edgeler — that the Chief Executive should be treated as having electednot to call evidence — does not fit with the statutory regime. The authorities establishthat the Court's "satisfaction" in relation to required elements does not rest ontraditional notions of burden or standard of proof. Instead the Court is required tomake up its mind on reasonable grounds.17 The Court is required to have before it forthe purposes of its review a health assessor's report. Under s 107RA(5) the Court atthe end of that review process then either confirms the ESO or cancels it. It must dothat in the light of a health assessor's report.[40] Section 379 CPA addresses the situation in which, for instance, a key documenthas either been omitted or irregularly provided. The process is not to be held invalidunless the Court is satisfied there has been a miscarriage of justice. Responsibly, MrEdgeler did not in his submissions suggest that he can point to a consequentialmiscarriage of justice here. Accordingly, even were it the case that s 107F(2) ParoleAct had not been complied with (which I do not determine), the Chief Executive'sapplication is to be treated as valid and the review must proceed. The provisions of s107RA Parole Act do not reserve to the Court a discretion not to proceed to review.17 McDonnell v Chief Executive of Department of Corrections, above n 10, at [71]–[75].The Court's sole area of discretion (in the event it is satisfied of a risk identified in s107RA(6) Parole Act) is in relation to whether to confirm the ESO.18The determination of the correct review dateThe issue raised[41] Ms Boshier identifies an issue in relation to the identification of the correctreview date in terms of s 107RA(2) Parole Act. Ms Boshier submits that if there werean obstacle to the current review application through the later filing of the report, onone construction of the various threads of legislation, the correct review date may bein August 2021. The consequence would then be that the current application could bewithdrawn and a fresh application (with the health assessor's report) filed (both withinthe period specified under s 107RA(3) that is, within four months before the reviewdate).[42] Ms Boshier, indicates that there has yet been no authoritative decision inrelation to this particular issue as to the determination of the review date. She explainsthe two possible review dates in this way. The issue is that whether time spent on anIDO (or indeed a PPO, if one is made) under the Public Safety Act is time duringwhich an ESO ceases to run under s 107P Parole Act. If R's ESO continued to runwhile subject to an IDO, then the Chief Executive calculates that the review date wasMarch 2021. The current application for review, having been filed on 23 February2021, accordingly was made within the four month period before the review datespecified in s 107RA(3) Parole Act. On the other hand, if the ESO was suspendedpursuant to S107P, then the Chief Executive says the review date would be August2021.[43] Ms Boshier identifies this issue in her submissions as a matter potentiallyaffecting R, and of which the Court should be aware. While she provided moredetailed submissions as to how the threads of the various statutory regimes may betaken to work together, she refrained from making a submission as to one approach orthe other being correct.18 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218.[44] For his part, Mr Edgeler emphasises that the particular focus of the respondentis upon the ESO review taking place so as to enable a determination to be made unders 107RA(5) (whether the ESO should be cancelled). R particularly wants to be freeof the (ESO) condition as to electronic monitoring, which is not a part of therequirements under his CCO secure placement in the community. To that extent therespondent's personal interest is in favour of the March 2021 review date. That said,Mr Edgeler notes that in the event of the later review date (August 2021) any orderconfirming the ESO will have the consequence that R remains under an ESO to a laterdate (covering a longer period in terms of months elapsed) than would occur in theevent of a March 2021 review date.Discussion[45] While recognising the issue raised by Ms Boshier, it is unnecessary on the factsof this case to determine the correct review date. The possibility that the ChiefExecutive might withdraw the present application and file a fresh application will noteventuate. I have determined that the suggested breach of the timing provisions ofs 107RA does not bar the Court from completing the review on the present application.For similar reasons, even were the correct review date August 2021, with theconsequence that the Chief Executive's application was filed more than four monthsbefore the review date, an effective review may still proceed. If the provision unders 107RA(3) (whereby the Chief Executive's application may be made at any timewithin four months before the review date) were taken as constituting a mandatoryrather than permissive timeframe, the early filing of the application would be savedby s 379 CPA (discussed above at [38]–[40]).The statutory regime — review of ESOs[46] Section 107RA Parole Act (set out at [17] above provides for the review ofESOs.[47] Under these provisions, an application for review will largely follow the sameprocesses as an initial application for an ESO. Section 107RA(4) Parole Act sets outthe procedural requirements.[48] Under s 107RA(5) the Court is limited to one of two orders, namelyconfirmation or cancellation of the ESO.[49] Under s 107RA(6) the Court may confirm the ESO only if (having regard tothe matters set out in s 107IAA) it is satisfied of either of the identified risks withinthe remaining term of the order.[50] Nothing in s 107RA requires the Court to make the specific risk assessmentsrequired on the initial making of an ESO under s 107I. Thus the Court is not required(in terms of s 107I(2)(a)) to make a fresh assessment as to whether the offender has orhas had a pervasive pattern of serious sexual or violent offending.[51] Here, accordingly, I may make an order confirming the ESO only if satisfiedthat R will commit a relevant sexual offence within the remaining term of the order.[52] I may be satisfied that there is a high risk that R will commit a relevant sexualoffence only if satisfied that he meets the mandatory criteria in s 107IAA of the Actwhich relevantly provides:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a relevantsexual offence; and(b) has a predilection or proclivity for serious sexual offending;and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.A pervasive pattern of serious sexual offending[53] This has been established in R's case. The pattern is identified in both the 2005and 2017 decisions that considered whether R should be subject to an ESO.19A high risk of a future relevant sexual offence within the remaining term of theorder (s 107RA(6)(a))Displaying of intense drive, desire or urge to commit a relevant sexual offence (s107IAA(1)(a))[54] In the judgment that ordered the making of the first ESO, Rodney Hansen Jsummarised R's offending history as follows:20[8] The health assessor's report under s 107F(2) was prepared by MrCecil Weihahn, a senior psychologist with the Department of Corrections,Psychological Service, Auckland. His report records that Mr [R], now 50years of age, has an extensive history of sexual assaults dating back to whenhe was 14 years of age. He was then admitted to a mental hospital afterallegedly indecently assaulting his sister. Following his discharge, he wasadmitted a year later after an alleged further sexual assault. Then, at the ageof 18 years, he was charged with the rape of a fellow patient in hospital. Hewas found to be under an intellectual disability, made a special patient andtransferred to the secure unit of another hospital.[9] Soon after his discharge in 1985, he was convicted of two charges ofindecent assault and returned to the secure unit of the hospital. In 1986 heabsconded and was convicted of charges of attempted sexual violation andindecent assault of a female aged between twelve and sixteen.[10] In 1994 Mr [R] twice absconded from hospital. On the first occasionhe indecently assaulted two girls. On the second he indecently assaulted awoman and was sentenced to nine months imprisonment. In 1995, on the dayhe was released from prison, he assaulted three women in a lift and wassentenced to 15 months imprisonment. At this time the offending in respectof which he received the nine-year sentence came to light. It emerged thatwhile living with a family member in 1985/1986 following discharge fromsecure care, Mr [R] had sexually violated and indecently assaulted two girls,then aged eight years and five years. The offending came to light when thecomplainants, then teenagers, feared he may renew his attacks on them.[11] The health assessor's report remarks on the pattern of offending soonafter release or escape from hospital or prison, quoting an earlierPsychological Service report which observed that:Mr [R] appears to reoffend very shortly after institutional constraintsare removed, and many of the offences have occurred within days19 2005 judgment, above n 2; and 2017 judgment, above n 3, at [34].20 2005 judgment, above n 2.after release or escape from an institution. In numerous previousassessments available on file, Mr [R]'s offending behaviour hasconsistently been described as highly impulsive and follow anopportunistic pattern. The victims of his sexual offences have all beenfemale and included family members, acquaintances and strangersfrom aged five to adult.[55] In the 2017 decision regarding the second ESO, Edwards J dealt withsubsequent offending by reference to the health assessor's report:21[30] Ms Bakker's report details a number of incidents since the ESO hasbeen in place. In 2007, Mr [R] re-offended while in the community byexposing his genitals and masturbating whilst gesturing to his victim toapproach him.[31] From 2009 to 2012, there were seven documented incidences of Mr[R] exposing his genitals to others and watching others whilst masturbating.That included incidences in the toilet and shower, but also during every dayactivities. They included an incident in 2009 where Mr [R] was caughtexposing himself to a member of the public when he came to the house. In2012, Mr [R] was found by a male staff member with his pants downmasturbating whilst watching a female staff member. When Mr [R] waschallenged about this behaviour he attacked a staff member and required fullrestraint. In 2015, a female staff member complained that Mr [R] waswatching her in the toilets.[32] Ms Bakker's report also details concerns relating to Mr [R] appearingto sexualise or romanticise those in his immediate vicinity, includingneighbours (in 2009 and 2014), children (in 2013), and staff at his residentialfacility. Other documented concerns include Mr [R] placing himself inpotentially high-risk situations at times of momentary lapse in supervision, forexample by approaching and talking to young children.[33] In addition to the documented incidences, Ms Bakker gave evidencethat those she interviewed for the purposes of her assessment spoke of Mr [R]frequently making sexualised comments.[56] For this review, Mr Carlyon by his report has provided up-to-date informationas to R's behaviour within care settings and prison:19 Within care settings and prison, Mr [R] has been reported to haveexhibited intermittent sexually harmful behaviours. In 2019 (S Berry,3 October 2019), Mr [R] was noted to have been suspected ofintentionally exposing himself to a female staff member and he wasrecorded as having made inappropriate sexual comment(s) andgestures. At that time, he acknowledged a high sexual drive andsuggested he was open to receiving anti-libidinal medication if it wereoffered (observing that such medication had previously not had apositive effect). A 2020 assessment (M Dewar, 16 April 2020) referredto a range of voyeuristic and exhibitionistic acts perpetrated by Mr [R]21 2017 judgment, above n 3.while he was in prison or in care; victims included female staff and,less typically, women in public places. Ms Dewar remarked that in2019, there was an incident of Mr [R] exhibiting a sexualised gesturewith his tongue. A Probation Case Note (28 July 2020) referred to Mr[R] "blatantly" masturbating in front of a female residential supportworker and remarked that he had previously made sexualisedcomments about that person's clothing. The Probation Officer stated,"Following this incident, no females are to be left alone at all with [Mr[R]]". In consultation, Mr Mitchell, Care Manager, told this assessorthat Mr [R] has not recently engaged in overtly sexually harmfulbehaviour.22 However, he explained that support staff are highlyvigilant to that risk and were aware of Mr [R]'s capacity to groom andmanipulate staff for potentially sexual reasons. Compounding that, hishighly impulsive presentation that can vary with fluctuating mood andsee Mr [R] rapidly become aggressive and confronting[57] Mr Carlyon, in his report, recorded that R chose not to engage with him in thepreparation of his report. Consequently Mr Carlyon's report is not informed by anycontribution made by R to the health assessment. Equally, Mr Carlyon did not viewhimself as having R's consent to access protected or privileged material, with theconsequence that the report is not informed by information that may be contained insuch material. Mr Carlyon appropriately set out in his report the areas in which hisassessment was to some extent limited by these constraints.23[58] Mr Carlyon opined, based on the evidence, that R has demonstrated an intensedrive, desire and urge to commit a relevant sexual offence. Mr Carlyon recognisedthat on this issue information relevant to the assessment of this domain may bemissing.[59] I am satisfied on the available evidence that R has demonstrated an intensedrive, desire and urge to commit a relevant sexual offence.Having a predilection or proclivity for serious sexual offending (s 107IAA)(1)(b))[60] Mr Carlyon notes that R's sexual offending has been repeated over many years,in multiple context, following on from ostensibly aversive legal consequence, and22 Noting, in contradiction of that, a recent Specialist Assessor's review (L Medlicott, 11 April 2021)remarked about an incident where Mr [R] was angry and threatening and at the same timeexposing his flaccid penis to attending staff.23 See McDonnell v Chief Executive of the Department of Corrections, above n 10, at [26]–[53] fordiscussion on the validity of a health assessor's reports when the subject of the report has notparticipated.against approximately 13 victims who were variously aged and variously either knownor unknown to him. Mr Carlyon opines that R has a preference to engage in serioussexual offending. Mr Carlyon observes that, while the regularity of sexual offendinghas been constrained in recent years through various forms of containment andsupervision, there has been a persistence of offence-analogous behaviours (includingovert sexual behaviours such as exposure) that makes it probable that R would havesought opportunities to commit a serious sexual offence.[61] Mr Carlyon concludes that R has exhibited a predilection and proclivity tocommit serious offences.[62] I am satisfied on the evidence that R has a predilection and proclivity forserious sexual offending.Having limited self-regulatory capacity (s 107IAA(1)(c))[63] Mr Carlyon identifies a pattern in R of poor self-regulation across his lifetime,with some of the sexual offending occurring in a highly impulsive manner. Even in hiscurrent care setting, R is reported as rapidly becoming angry, aggressive andshort-term focused. Mr Carlyon cites a report of R considering cutting off hiselectronic monitoring bracelet. Mr Carlyon also notes a recent report of R indicatinghe required anger-management, suggesting some awareness of this being an area ofvulnerability for him.[64] Mr Carlyon concludes that R exhibits impaired self-regulatory capacity.[65] I am satisfied that R has limited self-regulatory capacity (including in relationto sexual offending).Displaying a lack of acceptance of responsibility or remorse and/or an absence ofunderstanding of impact of offending (s 107IAA(1)(d))[66] Mr Carlyon was not able to conduct an up to date assessment of R within thisdomain, by reason of R's non-engagement. Mr Carlyon was nevertheless able toidentify from past health assessments that R has variably denied or minimised hissexual offending. A Probation Officer has reported that R would not tolerate enquiryabout his sexual offending. Mr Carlyon found no information or evidence to indicateR has taken any stance to consistently take responsibility for his sexual assaults or toexpress genuine regret for them. Nor has he taken the stance whereby he understandsand expresses concern for the impact on victims. Mr Carlyon considers it to beunlikely that R will have experienced a change in these areas of understandings andconcern.[67] Mr Carlyon opines, on balance, that it is very unlikely that R's understandingfor all concerned about the impact of sexual offending on victims or potential victimshas altered since previously assessed. In short, deficits remain in these areas.[68] I am satisfied that R does display both of the sets of attributes identified ins 107IAA(d).A high risk that R will commit a relevant sexual offence within the remaining term ofthe ESO (s 107RA)[69] As I am satisfied that R has each of the four attributes identified in s107IAA(1)(a)–(d) Parole Act, it is open to me to determine that there is a high risk thatR will commit a relevant sexual offence. The test under s 107RA(6)(a) is whether thatis so in relation to the remaining term of the ESO (to June 2027 on the ChiefExecutive's calculation).[70] The Chief Executive submits there is such a risk in R's case and relies both onprevious assessments and findings and on the evidence of Mr Carlyon.[71] Mr Edgeler, in his cross-examination of Mr Carlyon, did not set out toundermine Mr Carlyon's assessment of risk. The matters which Mr Edgeler exploredin cross-examination were more focused on a comparison of the risk mitigationadvantages which might be identified through compulsory care under the IntellectualDisability Act as against detention under an ESO.[72] Mr Carlyon conducted his assessment of R by reference to both actuarialinstruments and clinical risk factors (including instruments that assess static anddynamic risk factors for sexual recidivism). While performing his assessment in termsof common risk language labels, Mr Carlyon recognised that for the Court's purposesunder the Parole Act it was also necessary to provide evidence adopting theterminology used in the Parole Act ("high risk" or "average risk" and so on).[73] Mr Carlyon concluded that R poses a high risk of engaging in further relevantsexual offending. He took into account the fact that R has not completed or appearedto take longer term benefit from any treatment provided with the intention of reducinghis risk of sexual reoffending. The fact that R's profile is characterised by intellectualimpairment means that his challenging and complex personality traits and long-termreliance on external controls and support poses significant and enduring barriers forthe provision of offence-focused treatment.[74] I am satisfied there is a high risk that R will commit a relevant sexual offencewithin the remaining term of the order.Exercise of discretion[75] Following this review, I must either confirm the ESO or cancel it.24[76] Being satisfied there is a high risk that R will commit a relevant sexual offencewithin the remaining term of the order, I may confirm the order (or cancel it).[77] The thrust of Mr Edgeler's submission is that the Court ought to cancel theESO because there is a more appropriate regime in place for R.[78] Mr Edgeler notes R's intellectual disability and the consequence that he isdetained under a CCO with a direction that he be held in secure care (the same formof detention under which any other person whose criminal charges were resolvedunder the Intellectual Disability Act would be kept).[79] Mr Edgeler observes that had the applications in relation to R being dealt within a different order, the possibility of an ESO would not have arisen despite the earlierfinding of the High Court that R met the test under the Public Safety Act. Had the24 Parole Act, s 107RA(5).PPO application been made with a contingent application under s 107GAA Parole Act,the High Court's direction under the Public Safety Act (above at [7]) would have endedthe application without an ESO being made.[80] Mr Edgeler submits that it is clear in these circumstances that Parliamentconsiders that system is sufficiently robust to ensure the safety of the community.Even those with a very high risk of offending may be properly cared for in secure carewithout the additional overlay of the parole legislation.[81] Mr Edgeler submits that the restrictions that are in place in relation to R underthe Intellectual Disability Act are more extensive than could be imposed on him underthe Parole Act (save for electronic monitoring). The requirements of the care co-ordinator are effectively conditions of intensive monitoring (which is no longeravailable for R under his ESO). R has line of sight supervision (or its equivalent) 24hours a day.[82] Mr Edgeler cross-examined Mr Carlyon on these matters. In particularMr Edgeler suggested to Mr Carlyon that a secure care order allows greater level ofmonitoring than an ESO. Mr Carlyon agreed that in terms of the level of support andoversight, the oversight under a secure care order is greater than that under an ESO interms of environmental controls, staff being close by, and so on. He identifiedelectronic monitoring as one of the "key differences" (not being aware of anyprovision under the Intellectual Disability Act for electronic monitoring).[83] Mr Carlyon stated that in his opinion the risk status of a person in secure careis mitigated more than for a person under an ESO. He compared the management ofrisk under the two regimes in this way:That is, if I can contemplate this for a moment, that is if we were to imagine ascenario where the ESO was removed, do you want me to talk on Sir? If therewas no ESO but he remained within the compulsory care framework, then thatwould provide an adequate level of external control in my opinion based onmy appraisal of it and based on the fact there has been no contact sexualoffending while he's been subject to that. If on the other hand we looked at itfrom the other point of view and said, "Remove the compulsory care statusand have only the ESO and permit independent living and so on in the widercommunity, like most people on an ESO are", then I think that that — I don'tthink that would on its own be enough to manage [R]'s risk.[84] For the Chief Executive, Ms Boshier submits that the confirmation of the ESOis fundamentally important, once a high risk assessment has been made of R, becausethere is no assurance that he will for the duration of the term of the ESO be under thecompulsory care regime of the Intellectual Disability Act.[85] The care order in relation to R is due to expire in April 2022.[86] In his evidence, Mr Carlyon confirmed that there is no certainty as to what willhappen at that point. As he observed, there is the possibility of an extension but forthat to happen a number of steps would have to occur. A designated specialistassessor would need to come to the opinion that an extension should be applied for;the Co-ordination Service would then need to make a decision as to whether they agreewith the recommendation to make such an application; and if that occurred theoutcome would be a matter for the Court. As Mr Carlyon observed: from my perspective, of course anything could happen at that point becausethere will be a number of factors at play. So no, there is no certainty aboutwhat will happen from my perspective post current care order expiration.Discussion[87] R is currently subject to an ESO pursuant to a determination of the sentencingcourt under the Parole Act. The decision on a review must primarily have regard tothe risk assessment which is at the heart of the processes involved in the making of theinitial ESO and in the requirements of review.[88] It is important to acknowledge in relation to R's care that the standard of careand supervision currently available to R through the compulsory care order isexcellent. It is appropriate that I note that R, who asked to speak to me directly at thehearing, also acknowledged his appreciation of the quality of that care. That said,there is no assurance that R will remain under that care regime beyond April 2022.The Court's review of the ESO has to take into account the risks that R might pose(both for himself and for the community) should there not be an ESO in place in theevent his compulsory care regime has come to an end.[89] The only appropriate answer is that the ESO must continue for the time being.There would otherwise be clearly identified risks which need to be addressed but areno longer the subject of an appropriate regime. It would not be possible for theDepartment of Corrections to lodge a further application for an ESO at a later date tomeet a future change in R's status under the Intellectual Disability Act.25[90] In these circumstances, I am satisfied it is appropriate to confirm the ESO.Order[91] The extended supervision order made on 27 March 2017 is confirmed.Osborne JSolicitor:Crown Solicitor, ChristchurchBarrister:G K Edgeler, Blackstone Chambers, Wellington25 2005 judgment, above n 3 at [34].