CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WAITI [2019] NZHC 3256

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WAITI [2019] NZHC 3256 [11December 2019]EMBARGOED FROM PUBLICATION IN OR BY ANY MEDIUM UNTIL9.00AM ON TUESDAY, 17 DECEMBER 2019. SEE [70] BELOW.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-0278[2019] NZHC 3256BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND SONNY TE ARAMOANA WAITIRespondentDate of hearing: 28 November 2019Appearances: HDL Steele and J-H Kang for the applicantM J Dyhrberg QC for the respondentDate of judgment 11 December 2019JUDGMENT OF JAGOSE JThe judgment was delivered by me on 11 December 2019 at 4.45pm.Registrar/Deputy RegistrarSolicitors/Counsel:Marie Dyhrberg QC, AucklandMeredith Connell, Auckland[1] The Chief Executive of the Department of Corrections seeks an extendedsupervision order ("ESO") in respect of Mr Waiti.1 An ESO is "to protect members ofthe community from those who pose a real and ongoing risk of committing serioussexual or violent offences".2[2] The application is brought on grounds I should be satisfied, having consideredproffered health assessors' reports, Mr Waiti has, or had, a pervasive pattern of seriousviolent offending, and there is a very high risk he will in future commit a relevantviolent offence.3 The Chief Executive also seeks such an order endure for five years.4However, if I make the ESO, I must make it for the "minimum period required for thepurposes of the safety of the community".5[3] Since his release from imprisonment on 23 October 2019, and pendingdetermination of the ESO application, Mr Waiti has been subject to an interimsupervision order,6 with special conditions,7 including an intensive monitoringcondition for its maximum duration of 12 months.8 The Chief Executive also seeksan intensive monitoring condition in connection with the ESO. Although the DistrictCourt last sentenced Mr Waiti, that sought condition gives me jurisdiction here.9[4] Mr Waiti does not oppose either imposition of a five-year ESO, orre-imposition of the intensive monitoring condition. But I am obliged to make my ownassessment.101 Parole Act 2002, s 107F.2 Section 107I(1).3 Section 107I(2).4 Section 107I(4).5 Section 107I(5).6 Section 107FA.7 Section 107IA.8 Section 107IAC: "(2) An intensive monitoring condition is a condition requiring an offender tosubmit to being accompanied and monitored, for up to 24 hours a day, by an individual who hasbeen approved, by a person authorised by the chief executive, to undertake person-to-personmonitoring."9 Sections 107D and 107IAB(2).10 Paniora v Chief Executive of the Department of Corrections [2018] NZCA 607 at [21].Mr Waiti's offending[5] Mr Waiti is 33 years old, of Māori and Samoan descent, with affiliations toNgāti Tūwharetoa and Te Arawa iwi. He has an extensive criminal history,commencing in 2002 with relatively minor offences (although following a history ofviolence at school), but rapidly escalating to serious violence the following year, withpersistent serious violent offending thereafter.[6] In 2013, Mr Waiti was sentenced to six years and five months' imprisonment,with a four-year minimum period of imprisonment for kidnapping. Kidnapping is a"relevant offence" for the purposes of an ESO.11 Mr Waiti's present circumstancesoutlined at [3] above render him an "eligible offender" for those purposes, at least interms of the latest offending and its sequelae.12The health assessors' reports[7] The Chief Executive commissioned a health assessment report fromSteve Berry, a registered clinical psychologist and neuropsychologist. His report isdated 19 March 2019. Marie Dyhrberg QC, then acting as amicus,13 alsocommissioned a psychological report from Jim van Rensburg, also a registeredclinical psychologist, dated 5 November 2019.[8] Section 107F(2A) requires every health assessor's report to "address one orboth of the following questions":(a) whether—(i) the offender displays each of the traits and behaviouralcharacteristics specified in section 107IAA(1); and(ii) there is a high risk that the offender will in future commit arelevant sexual offence:(b) whether—(i) the offender displays each of the behavioural characteristicsspecified in section 107IAA(2); and11 Parole Act 2002, s 107B.12 Section 107C.13 With gratitude for her plain care in performance of the role as amicus, on 17 September 2019,Brewer J gave Ms Dyhrberg leave to be released from the role if she sought to represent Mr Waiti.That is the position she takes before me, as Mr Waiti's counsel.(ii) there is a very high risk that the offender will in future commit arelevant violent offence.For completeness, s 107IAA(1) and (2) provide: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 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 of responsibility or remorse for pastoffending:(ii) an absence of understanding for or concern about the impact ofhis or her sexual offending on actual or potential victims.(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfied thatthe offender—(a) has a severe disturbance in behavioural functioning established byevidence of each of the following characteristics:(i) intense drive, desires, or urges to commit acts of violence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards 1 or moreother persons; and(b) either—(i) displays behavioural evidence of clear and long-term planning ofserious violent offences to meet a premeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about the impactof his or her violence on actual or potential victims.[9] Mr Berry interviewed Mr Waiti for 45 minutes on 1 November 2018 and twohours on 22 November 2018. The first interview was interrupted by Mr Waiti's reportCorrections "were piping voices through the speakers at night-time in order to unsettlehim". After assessment by the Forensic Service, Corrections was advised by theMason Clinic no further intervention was necessary.[10] Mr Berry summarised Mr Waiti's violent offending, noting more than 20 of hisnearly 50 convictions involve serious violence, including with weapons and indisguise, against men and women known and unknown to him as well as police andprison officers. In addition to the index kidnapping offence, he has three other'relevant offences': two aggravated robberies, and wounding with intent to causegrievous bodily harm, all in August 2003. As well as using violence for material gain,Mr Waiti is violent in personal and intimate relationships, exacerbated by paranoidtendencies given rise by his history of chronic substance abuse and psychosis. Hisrecourse to violence as an emotional response has continued in prison.[11] Also while in prison both in 2007 and (38 offences later) 2014, Mr Waitireceived substantial therapy and treatment in the course of Corrections' intensive HighRisk Personality Programmes. The former appeared to give him "some increasedinsight [into] and some limited and fragile management" of the risk factorsculminating in his offending. In the course of the latter, he was referred for psychiatricassessment and prescribed medication to address his paranoia and low mood. Themedication permitted his continued participation in the programme, with goodevidence his behaviour improved during that time (until his use of violence againstanother inmate had him removed). Mr Waiti also responded well to two months'treatment in 2017 for violent and general offending, although that also came to an endwith violence towards an inmate and physical aggression toward a prison officer. Buthis deteriorating conduct may have been related to his ceasing to take his medicationand experiencing increased paranoia. Mr Waiti says he participates in the programmesonly to improve his prospects for release; nonetheless, he has not been resistant to anytreatment offered.[12] Mr Berry applied a number of "actuarial instruments and noted clinical riskfactors" to assess the risk of Mr Waiti's commission of further serious violentoffending in the community. On each the RoC*RoI,14 the Violence Risk Scale,15 andthe Ontario Domestic Assault Risk Assessment,16 he assessed Mr Waiti as being in a14 Leon Bakker, James O'Malley and David Riley "Risk of Reconviction: Statistical Models whichpredict four types of re-offending" (1999) Department of Corrections<www.corrections.govt.nz/resources/research_and_statistics/risk-of-reconviction>.15 Stephen Wong and Audrey Gordon "The validity and reliability of the Violence Risk Scale: Atreatment-friendly violence risk assessment tool" (2006) 12 Psychology Public Policy and Law279.16 N. Zoe Hilton and others "A Brief Actuarial Assessment for the Prediction of Wife AssaultRecidivism: The Ontario Domestic Assault Risk Assessment" (2004) 16 PsychologicalAssessment 267.high-risk category. On the Psychopathy Checklist-Revised17, he reported Mr Waiti's2009 assessment as "indicative of an individual with a high overall level ofpsychopathy and antisocial personality", which high score is "highly predictive ofserious violent offending and fast speed of recidivism leading to reimprisonment".Mr Berry's short-form re-assessment of Mr Waiti established no change from theassessment ten years earlier.[13] Taking into account all those factors, and other neuropsychological testing andclinical observations, Mr Berry considers "there is a Very High risk of Mr Waiticommitting a further relevant offence when he is next released into the community".More specifically:Considering a combination of static and dynamic factors, Mr Waiti's overallrisk of violent recidivism if he were to be released now, in the writer's opinionis Very High. If he begins a new relationship, his partner would be at elevatedrisk of being assaulted by Mr Waiti, especially if he ceases to take hismedication and consequently becomes paranoid and agitated. He could alsobe violent to anyone in the community who aggravates him particularly in asituation in which he is using alcohol and/or other drugs to becomeintoxicated. Members of the community may also be harmed if Mr Waitichooses to use violence to satisfy his material wants and needs. If he were tobecome involved in a dispute with a member of the general public, that personor people they are with, would be at significant risk of being assaulted by MrWaiti, either with or without a weapon. His violent behaviour could escalateto be excessive and life-threatening. Police who have been called to deal withMr Waiti's criminal behaviour could also be at significant risk of beingassaulted by Mr Waiti. Rival gang members are also at risk of being subjectedto violence by Mr Waiti if he were to re-new his gang associations. Finally,staff in institutional settings in which Mr Waiti may be placed are at significantrisk of being assaulted by Mr Waiti if he feels he is being treated unfairly orhas been disrespected.[14] Mr Berry then turns to the s 107IAA traits and behavioural characteristics.He considers Mr Waiti is intensely driven to "commit acts of violence, particularlywhen angered in either domestic or other settings, when engaging in gang relatedactivities and in response to perceived slights or perceived wrongdoing by others",and displays extreme aggressive volatility. He notes Mr Waiti's behaviour is notconstrained by external controls, and exacerbated if not medicated for psychosis.Behavioural change obtained in prison programmes has not sustained.17 Stephen Hart, David Cox and Robert Hare The Hare Psychopathy Checklist: Screening Version(Toronto, Multi-Health Systems, 1995).[15] In Mr Berry's opinion, Mr Waiti's behaviour, while open to characterisation asvengeful, is not persistently so, but rather more reactive to situational factors.Correspondingly, neither is there evidence of long-term planning to use seriousviolence to achieve premeditated goals. But he displays: a lifelong lack of self-regulatory capacity in relation to his violence and,as yet, there is limited evidence of any related skill acquisitionnotwithstanding some observed [temporary] general behaviouralimprovement .His understanding of his offending's impact on its victims is "embryonic", at best.[16] Mr Berry concludes Mr Waiti presents a very high risk of violent recidivism toanyone with whom he is in a relationship, or in dispute.[17] Mr van Rensburg interviewed Mr Waiti for two and a half hours on 19September 2019. He also spoke with Ms Dyhrberg on 29 October 2019, and toMr Waiti's father on 5 November 2019. Although without conducting alternativeassessments and without access to Mr Berry's scoring data, his familiarity with theactuarial instruments used by Mr Berry and his knowledge of Mr Waiti's offendingallow him to score Mr Waiti on the Violence Risk Scale "in the upper region of thehigh risk band", indicating his "very high probability of future violent offending".Mr van Rensburg finds affirmation for that prediction in Mr Waiti's offending inprison and on release.[18] Mr van Rensburg's review of the s 107IAA traits and behaviouralcharacteristics largely is consistent with Mr Berry's. He notes Mr Berry's recordingof Mr Waiti's involvement in some 177 incidents of prison misconduct, 77 of whichare described as 'prisoner behaviour', and extrapolates Mr Waiti's "sensitivity andreactivity to perceived injustice or rebuff in a constant state of readiness to reactviolently should he feel rejected, humiliated or intimidated". He observes the moreextreme aspects of Mr Waiti's offending appear to have been committed while underthe influence of alcohol or methamphetamine.[19] Mr van Rensburg offers the suggestion Mr Waiti's "persistent readiness (partlydue to paranoid ideation or due to poly-substance abuse)" to resort to violence mightbe seen as qualifying vengeful intention towards authority figures, including intimatepartners and parents, by whom Mr Waiti has "ample reasons" to consider himselfabandoned and mistreated. But he agrees Mr Waiti's behaviour – described as 'violentself-preservation', asserted "pre-emptively and instrumentally to meet his needs" – isreactive and unregulated.[20] The psychologists were empanelled to give concurrent evidence before me, inparticular to address the duration of the proposed order, required to be "the minimumperiod required for the purposes of the safety of the community",18 on which theirreports largely were silent.19 Mr Berry said:[I]f Mr Waiti was to be judged successful in terms of leading an offence-freelifestyle for five years I would think that that would be a good indication thathe was therefore of considerably reduced risk at that time. But at this stage it'sdifficult to pinpoint an exact appropriate time period but I do note Mr Waiti isat the highest end of the risk scale.Mr van Rensburg largely concurred:[I]f he can stay clean and not re-offend within two to three years the chancesare that he won't re-offend, well I won't say won't re-offend, but that the riskbecomes a lot lower and it's on that basis that the shortest possible periodwould probably be a good sign to him that there is some trust or someconfidence in his ability this time to remain offence free.But Mr Berry cautioned:[G]enerally the literature and research suggests that most resources should bedirected at the most serious offenders. If you take that and extend that logicallythen one would expect Mr Waiti to be in the upper half of the duration of [the]order.Mr van Rensburg's detailed a range of positives that we can see in Mr Waitibut I also am cautious because the actuarial results are typically what we relyon to determine risk and in this case it confirms a very high risk.Considering an extended supervision order[21] Section 107I(2) provides:18 Parole Act 2002, s 107I(5).19 See Moeke v The Chief Executive of the Department of Corrections [2010] NZCA 60 at [28]–[29],commending the Chief Executive ensure psychological reports include a considerably greaterfocus on the appropriate minimum term.(2) A sentencing court may make an extended supervision order if, followingthe hearing of an application made under section 107F, the court issatisfied, having considered the matters addressed in the health assessor'sreport as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commit arelevant sexual offence:(ii) there is a very high risk that the offender will in future commit arelevant violent offence.[22] In Chief Executive, Department of Corrections v Alinizi, the Court of Appealexplained the three-step process following determination of the offender as "eligible"for an ESO: I must determine if Mr Waiti is a pervasive sexual or violent offender;I must assess his specific qualification in terms of the s 107IAA traits and behaviouralcharacteristics;20 and, if qualifying, I must determine the risk of his future serioussexual or violent offending.21—pervasive serious violent offending[23] I am satisfied Mr Waiti has, or had, a pervasive pattern of serious violentoffending.[24] Mr Waiti was convicted of wounding with intent to cause grievous bodily harmand injuring with intent to injure on separate occasions in 2004;22 aggravated assaultson prison and police officers respectively in 2005 and 2008;23 assault of a woman, andseparately three counts of common assault, in 2009;24 and assault with a weapon in2011.25 There also are intermediate convictions for disorderly behaviour in athreatening manner or one likely to cause violence in 2002, 2009 and 2010;26 andaggravated robberies with, and separate possessions of, offensive weapons in 2002,2004, 2008, and 2010.2720 At [8] above.21 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].22 Crimes Act 1961, ss 188(1) and 189(2).23 Section 192(2).24 Sections 194(b) and 196.25 Section 202C(1).26 Summary Offences Act 1981, s 3.27 Crimes Act 1961, ss 202A(4) and 235(c).[25] I do not overlook the violence in the index kidnapping,28 in which he draggedhis intimate partner, caught by her leg on his car's tow bar in an attempt to escape fromits boot into which he had forced her, along the highway for some 1.6 kilometres atspeeds between 90 to 100 kilometres per hour despite witnesses' attempts to have himstop. Some more kilometres down the road, after his swerve at one witness dislodgedthe victim from the car and tow bar, a witness saw him "pull over walk around thevehicle and then drive off". That allows an inference Mr Waiti knew the victim wasbeing dragged behind his car. The sentencing Judge found "actual and threatenedviolence and indeed in my view the injury inflicted on her was to a degreeforeseeable", and imposed a minimum period of imprisonment as necessitated insignificant part by his "almost continuous [violent offending] since 2002".29—qualification for risk assessment[26] I also am satisfied Mr Waiti 'qualifies' for my determination if there is a veryhigh risk he will in future commit a relevant violent offence. To explain, the questionof Mr Waiti's qualification requires my satisfaction as to each his severe disturbancein behavioural functioning; either his planning of violent offences to achieve apremeditated goal, or his limited self-regulatory capacity; and his lack of empathy forhis victims.[27] First, I am satisfied Mr Waiti's behavioural functioning is severely disturbed.I accept disturbance is evidenced by the intensity of his drive to commit acts ofviolence, as illustrated by his criminal history, his resort to violence in contest with'authority' figures, and its continuation while incarcerated. The ease with whichMr Waiti resorts to serious violence, even in circumstances in which that is to hisdetriment in excluding him from recognised desirable treatment, establishes hisextreme aggressive volatility.[28] But Mr Waiti's violent behaviour is characterised as his self-preservingreaction to perceived challenge. While possibly 'vengeful' – in the sense of defeatingsuch challenges, and restoring his unchallenged presence – there is little evidence such28 Section 209.29 R v Waiti DC Rotorua CRI 2013-063-001725, 25 October 2013 at [3]–[4], [15], and [23].is his persistently harboured intention, and still less against one or more other people(although the latter is not material, if open to being met by the target "at the time").30Mr Berry says instead "his offending has been typically reactive to situational factors(such as arguments and gang confrontations)". Subject to his suggestion of a possiblemeaning to be attributed to s 107IAA(2)(a)(iii)'s phrase,31 Mr van Rensburg agrees.[29] There are cases in which ESOs have been made despite the particularcharacteristic not expressly being found "established by evidence".32 But on the faceof s 107IAA(2), the characteristics are mandatory requirements; there must beevidence establishing "each" stipulated characteristic, for me to be satisfied of theoffender's severely disturbed behavioural functioning. That is reinforced bys 107IAA(2)(a)'s subparagraphs' conjunctives "and". If so, the existence of suchevidence constitutionally is important, because it founds a deprivation of liberty.33[30] Section 107IAA was inserted by the Parole (Extended Supervision Orders)Amendment Act 2014 on 12 December 2014, to enhance the prior ESO regime (whichaddressed only offenders presenting "a real and ongoing risk of committing sexualoffences against children or young persons"). In its draft formulation, paragraph (a)only stipulated "has a severe disturbance in behavioural functioning ".34 The Lawand Order Select Committee recommended its clarification:35We recommend including in clause 12 of the bill a list of behaviouralcharacteristics of an eligible violent offender indicative of a "severedisturbance in behavioural functioning". The Public Safety (Public ProtectionOrders) Bill defines this concept, but this is not suitable for extendedsupervision orders, because it sets an inappropriately high threshold. Withouta reference to what constitutes "severe disturbance in behaviouralfunctioning", specifically in respect of violent offenders, the court would haveto define those behaviours, and might adopt the public protection ordersterminology. We consider that including types of "severe disturbance in30 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [41].31 At [19] above.32 For example, Chief Executive of Department of Corrections v Paul [2017] NZHC 1294 at [26];and Chief Executive, New Zealand Department of Corrections v Amohanga [2017] NZHC 1406at [35].33 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR83 at [35]–[36] and [83], albeit in relation to evidence of (minorly) different characteristics underthe Public Safety (Public Protection Orders) Act 2014 (but see also [13] in relation to the ParoleAct 2002).34 Parole (Extended Supervision Orders) Amendment Bill 2014 (195–1), cl 12.35 Parole (Extended Supervision Orders) Amendment Bill 2014 (195–2) (select committee report) at3–4.behavioural functioning" appropriate to the specific context of extendedsupervision orders is necessary.[31] In so recommending, the Select Committee was accepting submissions madeto it by the Legislation Advisory Committee, to avoid "difficulties with having thesame terminology in two (closely-linked) Acts if they are not intended to have thesame meaning", suggesting:36the Committee gives consideration to the definition of "severe disturbanceof behavioural functioning" and "disturbance of behavioural functioning".Untangling this matter is important as this factor is the hinge on which theESO regime turns, and if the RIS estimates of its incidence are accurate, therewill be few opportunities to test and confirm aspects of the interpretation. Alogical and well-established set of practical criteria should be clearly included.[32] The "RIS estimates" came from the original Regulatory Impact Statementdated 21 November 2013.37 It estimated only "1–2 very high risk violent offendersapproximately every five years" would be placed on ESOs.38 Without any moreindication of source, the revised RIS dated 3 November 2014 included at its Appendix1 the proposed criteria:4. In determining whether an offender poses a very high risk of seriousviolent offending, the court must be satisfied that an offender:(a) displays severe disturbance in behavioural functioning, establishedby:• behavioural evidence of intense drive, desires or urges to commitacts of violence; and/or• evidence of extreme aggressive volatility; and/or• persistently harbouring vengeful intentions towards one or moreother persons.As proposed, any one of the three characteristics would suffice to establish thedisturbance, and evidence was not expressly required of the last.36 Legislation Advisory Committee "Submission to the Law and Order Select Committee on theParole (Extended Supervision Orders) Amendment Bill 2014" at [18].37 Department of Corrections Regulatory Impact Statement: Enhanced Extended Supervision Orders(21 November 2013).38 Department of Corrections Regulatory Impact Statement: Enhanced Extended Supervision Orders(3 November 2014) at [34].[33] From that legislative history, it is notable s 107IAA(2)(a)'s characteristics wereintended to distinguish applications for ESOs from the "inappropriately highthreshold" to be established for the court's satisfaction as to severe disturbance onapplications for public protection orders. The Public Safety (Public Protection Orders)Bill's threshold (precisely replicated at s 13(2) of the Public Safety (Public ProtectionOrders) Act 2014) was: a severe disturbance in behavioural functioning established by evidence toa high level of each of the following characteristics:(a) an intense drive or urge to commit a particular form of offending:(b) limited self-regulatory capacity, evidenced by general impulsiveness, highemotional reactivity, and inability to cope with, or manage, stress anddifficulties:(c) absence of understanding or concern for the impact of the respondent'soffending on actual or potential victims (within the general sense of thatterm and not merely as defined in section 3):(d) poor interpersonal relationships or social isolation or both.[34] It is perhaps unfortunate the Select Committee used the word 'threshold' todeal with the Advisory Committee's plea for practical clarity. The public protectionorders legislation uses "threshold" as a term of art for those orders' imposition on aperson, one of which is the person is subject to an ESO with particular conditions.39A public protection order additionally requires the court to be satisfied of a very highrisk of "imminent" offending.40 But, as enacted, s 107IAA(2)(a) clearly establishes amuch higher threshold to be satisfied of the offender's disturbance on application foran ESO than a public protection order, especially as public protection orders' (b) and(c) characteristics of the disturbance are required separately to be established in anyevent under s 107IAA(2)(b)(ii) (as an alternative) and (c).[35] The result, effectively, is qualification for an ESO is all that severe disturbancequalifying for a public protection order, and more. Yet, in passage of the Bill,parliamentarians commended the select committee for:41 [its] good work here in making sure that the criteria were not quite asprescriptive as what would apply for a public protection order. The thresholdtest, again, is different. We are talking about a lower threshold.39 Public Safety (Public Protection Orders) Act 2014, s 7(1)(b).40 Section 13(1)(b).41 (2 December 2014) 702 NZPD 1021.[36] Looking at ESO-qualifying 'severe disturbance' alone, such is required to beestablished from the combination of the required characteristics. While the completestatutory wording is important, to summarise, it is a severe disturbance characterisedby violence, volatility, and vengeance. But the disturbance's materiality is in theoffender's either planned resort to violence to achieve a specific end, or disinhibition.The point is, either by design or inadvertence, the offender's disturbed behaviour maybe realised. And the offender lacks comprehension of the impact of the violence onvictims, meaning there is no claim on self-control. In that context, "persistentharbouring of vengeful intentions" is required to provide motivation for unpredictableresort to violence. But why only that particular combination qualifies as the necessary'severe disturbance' is unexplained.[37] The singular characteristic of "persistently harbouring of vengeful intentionstowards 1 or more other persons" is followed by the as-singular alternative to thecourt's additional satisfaction the offender has "limited self-regulatory capacity" – thats/he "displays behavioural evidence of clear and long-term planning of serious violentoffences to meet a premeditated goal".42 It is unclear how those two forward-lookingfactors – intention and premeditation – should interrelate, as they must when relianceis placed on the latter, and especially if the vengeance characteristic only has resonancetogether with its violent and volatile counterparts. (Similarly, "extreme aggressivevolatility" is "closely aligned to" "limited self-regulatory capacity".)43 If persistentvengeful intention is part (together with intense violent disposition and extremeaggressive volatility) of every severe disturbance justifying an ESO, then it seemsimplausible it would be evidenced by other than as also would qualify for planning ofserious violent offences to meet a premeditated goal. Only offenders' empathy wouldbe enough to avoid an ESO's imposition.[38] Notably, the health assessors advise they are not aware of any clinicalfoundation for s 107IAA(2)(a)(iii)'s phrase.44 Thus the 'severe disturbance' of which42 Parole Act 2002, s 107IAA(2)(b).43 Chief Executive of the Department of Corrections v CJW, above n 30, at [36].44 The health assessors gave concurrent expert oral evidence, predominantly on the duration of theproposed order. I address that at [49] and following below. But the health assessors remained incourt during subsequent legal argument, including on s 107IAA(2)'s aggregation. In response tomy query if paragraph (a)(iii) had any clinical foundation, the Commissioner's counsel, HenrySteele, offered to obtain the health assessors' advice, which they gave in answer to my question.it is a part also cannot be an identified psychopathy. Paragraph (a)'s combinationtherefore is the statute's own construct. But that seems not to have been appreciatedin the parliamentary debates: "[t]he sort of behavioural conditions we are talking abouthere are those that can be assessed only by a registered and highly trained medicalprofessional".45[39] For all the above reasons, s 107IAA(2)(a)'s literal construction may not havebeen intended: it is to establish a standalone "severe disturbance in behaviouralfunctioning" without any aetiology, and presents a threshold significantly above that(for public protection orders) assessed to be "inappropriately high". Instead, any ofparagraph (a)'s characteristics – at least the former two recognisably having clinicalfoundation, and then to be reinforced by paragraphs (b) and (c) criteria for therealisation of the risk – may be thought 'appropriate' to establish the qualifyingdisturbance.[40] Even if paragraph a's "and"s may have been open to being construed as 'or's,46that course is closed by its requirement also the offender's disturbance be "establishedby evidence of each of the following characteristics" (emphasis added). That isconsistent with the exceptional nature of the provision, in pursuing community safetyby providing for particular violent offenders' extended supervision in the community,after conclusion of their sentence, as an alternative to a sentence of preventivedetention at the outset.47 There is to be "very high risk" of their future violent offendingbefore ESOs are justified.[41] The requirement for paragraph (a)'s particular combination provides thatexceptionality; its establishment is a matter for my assessment of the evidence. I acceptthe assessors' evidence of Mr Waiti's violence and volatility. So far as his "persistentharbouring of vengeful intentions" is concerned, his history of paranoia (especially inrelation to "perceived disrespect and wrongdoing") provides a foundation for theintention, while his as-persistent resort to violence makes it out. Mr Berry observes45 (2 December 2014) 702 NZPD 1028.46 Doe d Bedford v White (1827) 4 Bing 276, 130 ER 773; Boy Scouts of Canada v Doyle (1997) 149DLR (4th) 22 at [58]; and Waitemata Health v Attorney-General [2001] NZFLR 1122 (CA) at[122] (cited in University of Canterbury v Insurance Council of New Zealand Inc [2013] NZCA471, [2014] 2 NZLR 12 at [30]).47 Chief Executive of the Department of Corrections v Chisnall [2019] NZHC 3126 at [85] and [98]."even seemingly instrumentally motivated offences, such as aggravated robberies,have been motivated by [Mr Waiti's] desire to deflect and release negative emotions".In providing such motivation, Mr Waiti's continuous determination to redress hispersecutory delusions may be described as his vengeful intention. Although thatdetermination is not addressed against any individual (and Mr Berry records Mr Waiti"did not reveal any current ideation associated with harming himself or others"), it isenough such will be his target.48[42] I therefore am satisfied by the evidence Mr Waiti has a qualifying severedisturbance in his behavioural functioning.[43] But I do not come easily to that conclusion. It rests on a construction whichdoes not flow easily from s 107IAA(2)(a)(iii)'s words, or as a necessary inferencefrom their place in the paragraph's formulation, or to characterise any recognised"severe disturbance in behavioural functioning". I am troubled by the subparagraph'slack of clinical foundation, and its redundancy in (or of) the "behavioural evidence"anticipated by s 107IAA(2)(b)(ii). In providing that enabling interpretation, I aminfluenced by both parties' request for an ESO's imposition here – including veryarticulately and non-demonstratively from Mr Waiti himself, as providing the securityhe requires safely to transition to his "new" self in the community – and the healthassessors' advice there is a very high risk of Mr Waiti's violent (re-)offending againstindeterminate members of the community.[44] If it is also to be a purposive construction, as the Chief Executive urged I shouldmake, Parliament's intention needs to be rather more clear than can be taken from thestatutory words or their context alone. I do not know if Parliament's intention isreflected by comments of its members in the course of the Bill's passage, but thethreshold for ESO-qualifying "disturbance" seems materially higher than thatqualifying for public protection orders. Those comments include a plea:49 Parliament maintain oversight over these orders to ensure they areappropriately used, because they are taking us well beyond where our previousconventions have taken us. Internationally they are not used widely either. Wedo accept the need for these orders. We do accept the need for flexibility to48 Chief Executive of the Department of Corrections v CJW, above n 30, at [41].49 (04 December 2014) 702 NZPD 1169.manage serious offenders who continue to pose a risk to the community, butwe also ask that we take our role very seriously in ensuring their appropriateuse and their frugal use.The forecast frugality of "1–2 very high risk violent offenders approximately everyfive years" also seems an understatement;50 in the five years since s 107IAA(2)'sintroduction, at least five ESOs already have been made to address the very high riskof future violent offending.51[45] Next, I also am satisfied from his criminal record, but also from thepsychologists' reports, Mr Waiti has limited self-regulatory capacity. To some degree,this is the alternative characterisation of his aggressive volatility.52 But the evidencesuggests Mr Waiti strategically deploys violence in response to perceived slight, ratherthan instinctively uses it as an inveterate coping mechanism. Of note in this contextalso is his participation in rehabilitative courses, which presumably offer alternativecoping mechanisms, and his fledgling ability (but fleeting preparedness) to adopt theminstead. Nonetheless, what self-regulatory capacity he may have remains limited.[46] Last, Mr Waiti's lack of empathy for his victims, and his lack of understandingfor the impact of his violent offending on them, is endemic in his offending. DespiteMr Waiti's mental health issues, predominantly presenting as paranoid ideation andagitation, also of note is his intelligence, creativity, and (incarcerated) steps towardsself-improvement. The psychopathy reported from 2009 continues undiminished, butMr van Rensburg is optimistic much was driven from Mr Waiti's poor mental health,now less prevalent due his maturity and medication.—risk of future relevant violent offending[47] Mr Waiti's 'qualification' for my determination of his risk of relevant violentoffending, his past offending and continuing personal characteristics as predictive ofhis future conduct, and his rating in the "upper half" of actuarial tools designed to50 At [32] above.51 Department of Corrections v McCord [2017] NZHC 744 (although made in relation to the risk ofthe offender committing a future relevant sexual and/or violent offence); Chief Executive,Department of Corrections v Paniora [2018] NZHC 1505; Chief Executive, New ZealandDepartment of Corrections v Amohanga, above n 32; Chief Executive of Department ofCorrections v Paul, above n 32; and Chief Executive of the Department of Corrections v CJW,above n 30.52 Chief Executive of the Department of Corrections v CJW, above n 30, at [36].provide assessments of violent recidivism, all satisfy me there is a very high riskMr Waiti will commit a relevant violent offence. Mr Waiti's placement in the worsepart of those risk assessment scales is particularly informative, as the only forward-looking factually-based evidence before me. It serves to offset what aspirations maybe taken from his reinvention, despite their clear desirability and hopeful prospect.[48] I therefore will make an ESO, to protect the community from the real andongoing risk of Mr Waiti's serious violent offending on his release into it.The term of the order[49] Section 107I(4) and (5) provide:(4) Every extended supervision order must state the term of the order, whichmay 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.[50] Obviously, given his relevant violent offending qualifies for the making of anESO, the level of risk posed by Mr Waiti is very high. The seriousness of the harm thatmight be caused to victims is of those relevant violent offences. Mr Berry said victimswere "at significant risk of being assaulted by Mr Waiti, with or without a weapon ,[which] could escalate to be excessive and life-threatening".[51] Also material is Mr Berry's observation "Mr Waiti's release plans are lackingbecause they are not detailed and not backed by confirmed agreement. [Their]absence is an egregious gap in [his] preparation for release". An adequate planwould identify risk factors, risk situations, and coping mechanisms. The Court ofAppeal commended health assessors' "thorough assessment of the efficacy andsuitability of post-release plans including their nature and duration" for considerationof an ESO's minimum term.5353 Moeke v The Chief Executive of the Department of Corrections, above n 19, at [29(b)].[52] Mr Waiti has taken some steps to address the perceived risks, but they are"embryonic".54 Nonetheless, those first steps – taken together with Mr van Rensburg'shopefulness Mr Waiti's psychopathic tendencies may have been more redolent offormerly untreated symptoms of his mental illness than of any enduring pathology –are what enable a minimum term short of the maximum permissible. Mr Berrycautiously allows any diminution in psychopathy may be able to be demonstrated oversubsequent years.[53] In Department of Corrections v Nepia, Kós J observed "[c]ases where an ESOof ten years have been ordered typically involve a recurring pattern of sexualoffending".55 Lesser terms are justified by offenders' advancing age,56 but also by theiracceptance of responsibility, positive response to treatment, and access to support.57An organising principle for the imposition of a minimum term at the maximum periodavailable may be the pathological nature of such offending, habitually denied byoffenders, and therefore an absence of treatment. Comparatively, serious violentoffending appears more frequently environmental, less open to denial, and for whichtreatment and support are more accepted.58[54] In my assessment, 'the likely duration of the risk' here is five years, as a periodof time during which any diminution of risk will become evident as not requiring theESO's continuation, and conversely any persistence or exacerbation justifying itsreview.59[55] I will therefore make an ESO for a term of five years.54 At [15] above.55 Department of Corrections v Nepia [2014] NZHC 1448 at [41].56 See Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [65]; andChief Executive, Department of Corrections v van der Plaat [2016] NZHC 3186 at [70].57 See The Chief Executive of the Department of Corrections v H (CA359/05) CA359/05, 1 May2006 (five years); and Chief Executive Department of Corrections v Clark [2017] NZHC 771 (twoyears).58 Chief Executive, Department of Corrections v Paniora [2018] NZHC 1505 at [42]; Paniora vChief Executive of the Department of Corrections, above n 10, at [22], citing Chief Executive,Department of Corrections v Alinizi, above n 21, at [38].59 Parole Act 2002, s 107RA.Imposition of intensive monitoring condition[56] As said, the Chief Executive seeks an intensive monitoring condition inconnection with the ESO.60 When I make the ESO, I may make an order requiring theParole Board to impose an intensive monitoring condition,61 and to specify itsmaximum duration, which can be no longer than 12 months.62 Notably, that is not anorder requiring the Board to impose such a condition of any specified duration – onlythat I am to specify the maximum duration of any condition I order the Board toimpose. Except for the coincident making of an ESO, and the Chief Executive'sapplication, there is no statutory threshold for the order. But its exceptionally intrusive,time-limited, and one-off aspects are all indicia it is a response to a need to assertexternal control at a transitional point of high risk.63[57] Mr Berry explained "Mr Waiti's current plan is insufficient to manage his riskupon release". Mr Waiti has been subject to intensive monitoring since his release, inconnection with the currently applicable interim supervision order. Sanctions havebeen ineffective to constrain his violence, which appears maintained by: a range of antisocial beliefs, the pursuit of alcohol and other drugs, atendency to act in an impulsive and disinhibited fashion after using alcohol orother drugs and periods of non-compliance with taking medication forauditory hallucinations and paranoia. He also has been influenced byrelationships with antisocial associates.It is clear from the evidence intensive monitoring remains justified. It is essentially for'line of sight' person-to-person monitoring of Mr Waiti.[58] Only the Parole Board imposes intensive monitoring conditions; my role is to"make an order requiring the Board" to do so.64 If so ordered, the Board is to imposean intensive monitoring condition.65 The maximum duration of that condition is to bespecified by the Court.66 Whatever duration up to that maximum is imposed by the60 At [3] above.61 Parole Act 2002, s 107IAC(1). Subsection (2) defines "intensive monitoring condition": see aboven 8.62 Parole Act 2002, s 107IAC(3).63 See also Chief Executive of Department of Corrections v Paul, above n 32, at [39].64 Parole Act 2002, s 107IAC(1).65 Section 107IAC(4).66 Section 107IAC(3).Board, the condition only applies during the first 12 months of the ESO.67 Neither theCourt in specifying the maximum duration, nor the Board in imposing the condition,is either required to take or prohibited from taking into account time spent on intensivemonitoring conditions in association with interim supervision orders.68[59] Given the risk here sought to be ameliorated by the intensive monitoringcondition, Mr Waiti's inability to manage that risk, and the community interest inkeeping him from reoffending, the Board should have the greatest discretion as to theduration of the intensive monitoring condition it imposes. I am provided with no basisto contemplate limiting the Board's discretion. I will specify the maximum durationof the intensive monitoring condition as 12 months.Imposition of special conditions on interim basis[60] Last, the Chief Executive seeks orders imposing special conditions on Mr Waition an interim basis, including an intensive monitoring condition. 'Special conditions'are designed to:69(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of theoffender; or(c) provide for the reasonable concerns of victims of the offender; or(d) comply, in the case of an offender subject to an extended supervisionorder, with an order of the court to impose an intensive monitoringcondition.[61] When I make the ESO, I may make such special conditions, but only if I amsatisfied there may not be sufficient time, before the ESO comes into force, for theBoard to determine which (if any) should be imposed.70 The special conditions applyfor three months, or until the Board determines any earlier application for specialconditions.7167 Section 107K(3)(ba).68 Chief Executive, Department of Corrections v Paniora, above n 58, at [52]; Paniora v ChiefExecutive of the Department of Corrections, above n 10, at [28] and [33].69 Parole Act 2002, s 15(2).70 Sections 107IA(1) and (2).71 Section 107L(2A).[62] As said, Mr Waiti is presently subject to an interim supervision order, withspecial and intensive monitoring conditions.72 On my making of the ESO, the interimsupervision order "ceases to have effect".73 However, although any standard releaseconditions are discharged when the ESO comes into force,74 standard extendedsupervision conditions then apply,75 and any special conditions to which Mr Waiti issubject when the ESO comes into force continue in force for three months, or until theBoard determines any earlier application for special conditions.76 That is, of course,the same extent as would apply to any special conditions I made on an interim basis.77[63] I apprehend the Chief Executive's objective, in seeking orders imposingspecial conditions on Mr Waiti on an interim basis, is to maintain the special conditionsassociated with the interim supervision order, pending the Board's determination ofspecial conditions to be associated with the ESO. Discontinuity in the conditions'application is possible if an ESO was determined to come into force at a later date, ifspecial conditions associated with an applicable interim supervision order ceased tohave effect at the time of the ESO's determination, and thus did not apply to theoffender when the ESO came into force. But that is addressed by having the ESO comeinto force on the day it is made,78 as the Chief Executive seeks and the legislationestablishes by default. (That coincidence of timing satisfies me there may not besufficient time, before the ESO comes into force, for the Board to determine which (ifany) special conditions should be imposed.)[64] It is therefore unclear what purpose the special conditions now sought on aninterim basis have, if they only are to duplicate the special conditions already applying(and continuing to apply) to Mr Waiti. I am reluctant to make orders duplicatingspecial conditions to which Mr Waiti is already subject when the ESO comes intoforce. But I accept the interim supervision order was drawn up in terms expresslystating it "applies until the application for an ESO with intensive monitoring condition72 See [3] above.73 Parole Act 2002, s 107FA(6).74 Section 107L(2).75 Section 107J(2)(a).76 Section 107L(2A).77 Section 107IA(4)(b).78 Section 107L(1)(c)(i).is finally determined". Out of an abundance of caution, I will impose the special andintensive monitoring conditions sought on an interim basis under s 107IA.[65] The Chief Executive may wish to consider if applications for special conditionson an interim basis are warranted on any future application for an ESO (whether ornot in relation to Mr Waiti). A better approach may be to allow the statutory mechanismfor interim supervision orders full effect.Orders[66] I make an extended supervision order in relation to Mr Waiti in terms of s 107Iof the Parole Act 2002, with a term of five years.[67] Under s 107IAC of the Parole Act 2002, I require the Parole Board to imposeon Mr Waiti an intensive monitoring condition, the maximum duration of which is 12months.[68] I make an order under s 107IA of the Parole Act 2002, imposing special andintensive monitoring conditions on Mr Waiti on an interim basis.Directions[69] My minute of 10 December 2019 – in response to Stuff Limited's applicationto access this judgment under the Senior Courts (Access to Court Documents) Rules2017, opposed by Ms Dyhrberg on grounds "[t]here are sensitive matters in thedocuments that ought to be suppressed" – advised I will embargo the judgment frompublication for a brief period after its issue to enable her to consider if anything in itmay be affected by any suppression order Mr Waiti would seek. But, as my minuteexplained, Stuff Limited's right to access the judgment is not affected.[70] I therefore direct:(a) this judgment is embargoed from publication until 9.00 am onTuesday, 17 December 2019;(b) Ms Dyhrberg is to identify any of its content as may be affected by anysuppression order Mr Waiti would seek by memorandum filed no laterthan 5.00 pm on Thursday, 12 December 2019;(c) the Commissioner (and, if it wishes to do so, Stuff Limited) is torespond by memorandum filed no later than 5.00 pm on Friday, 13December 2019;(d) a teleconference be convened before me at 9.00 am on Monday, 16December 2019, to determine what (if any) interim redaction may berequired in advance of determination of any application for suppressionorders.—Jagose J