CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v SRA [2018] NZHC 1088

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v SRA [2018] NZHC 1088 [17 May 2018]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES,VICTIMS, AND CONNECTED PERSONS PURSUANT TO S 202 CRIMINALPROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENTPURSUANT TO S 201 CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2016-441-36[2018] NZHC 1088BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND SRARespondentHearing: 19 October 2017 and further submissions 27 October 2017,1 November 2017 and 30 April 2018(Heard at Hamilton)Appearances: R Guthrie for the ApplicantD Allan for the RespondentJudgment: 17 May 2018JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 17 May 2018 at 3:00 p.m.pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors / Counsel:Mr D Allan, Barrister, HamiltonMs M Mitchell, Elvidge & Partners, Office of the Crown Solicitor, NapierMs R Guthrie, Almao Douch, Office of the Crown Solicitor, Hamilton[1] The chief executive of the Department of Corrections has applied for anextended supervision order against the respondent for a term of 10 years, coupledwith an intensive monitoring condition for a period of 12 months.The offences[2] There are name suppression orders in the interests of the victims. I will referto the respondent as "S".[3] On 15 February 2013 S was sentenced to imprisonment for 4 years and 6months by Judge G M Ross in the District Court for sexual offending against threecousins in 2011 and 2012.1[4] The offences occurred over a 13 month period when S was aged between 14and 15 years. The victims were a male cousin aged between 10 and 11, a femalecousin aged between 8 and 9, and another female cousin aged 4. There were twooffences of rape of a female under the age of 12; one offence of sexual connectionwith a female under the age of 12; four offences of doing an indecent act with afemale under the age of 12; three offences of doing an indecent act with intent toinsult; and three offences of doing an indecent act with or upon a boy under 12.[5] A summary of the facts of the offending is conveniently taken from a healthassessment report from Dr Branko Coebergh, a registered psychologist.Dr Coebergh provided two reports for this application.2 I have made some minoramendments to Dr Coebergh's summary. I have also substituted the abbreviation"S" for the respondent's family name, which I will do with all quotations. Thesummary is as follows:The majority of S's offences against the oldest male victim were betweenMarch and September 2011, while the victim regularly stayed with hismaternal grandparents and during a period of sharing the same residence asS. S initially enquired whether the victim knew about masturbation and,after the victim responded that he did not, S masturbated him. In time, S1 Police v S-RA (Young Person) DC Palmerston North CRI-2012-254-34, 15 February 2013.2 The reports are dated 1 September 2016 and 18 September 2017. The second report was anupdating report for the hearing. References to Dr Coebergh's "report", without a date, are to thesecond report.regularly woke up the victim (the exact number of times is unknown) whilethey shared a room and told the victim to masturbate him, which he did.S sexually offended against the oldest female victim between June andSeptember 2011 while she shared the same residence as S, and on twosubsequent occasions when visiting his residence. He initially offendedagainst her while watching television with her and his male victim. S keptlying on top of the victim and put his hand inside her pants, touching theoutside of her vagina for a time. On a subsequent night he asked the femalevictim to come into his bedroom. S pushed her backwards onto the bed, layon and kissed her before removing her top and touching her breasts. He alsomoved in an up and down motion on top of her. On another occasion Spulled down all his lower garments while with the female victim anddirected her to do likewise, which she did. He then kissed the victim andtouched all over her body. S forced his erect penis into the victim's vaginalarea in a repeated effort to penetrate her. On a further occasion, he wasgiven responsibility to care for the two oldest victims while their parents leftthe residence for a short time. S masturbated himself in their view andresponded to the female victim's related expression of revulsion by claimingthat it was "what all boys do". He went on to express excitement whenachieving ejaculation in the situation. In April 2012, the two female victimswere staying overnight in the same bedroom. S entered the room and kissedthe oldest female victim's lips before briefly leaving after the youngestfemale victim interrupted his offending. Upon returning he directed theoldest female victim to take off her pants and went on to kiss her, lick hervagina, and feel her bottom. The offending stopped when S heard someoneon the stairs. On a final occasion he entered a bedroom where the twofemale victims were inside a tent made from blankets. After joining them heslipped his hand inside the oldest female's pants, touching her bottom andthe outside of her vagina.S sexually offended against the youngest victim when her family moved intohis residence and the earlier victims moved to another address. Over a fivemonth period he repeatedly hugged and kissed the four-year-old victim onthe lips in her bedroom or while seated on stairs. During this time S wouldalso touch her bottom under her pants. He took every opportunity to pull herpants down in an attempt to sexually touch her, however at times the victimwould pull her pants back up in an effort to stop his offending. On oneoccasion he removed the victim's pants and his own pants and lay on top ofthe victim, rubbing his erect penis over her vaginal area. He failed topenetrate her vagina despite several attempts.Parole applications, first release and recall[6] S's final release date was 10 November 2016. Parole applications weredeclined on 7 November 2013 and 8 May 2014. Following a hearing on 6 January2015, S was granted parole from 28 January 2015 to live at his grandparents' home.One condition of release was that S was not to associate or otherwise have contactwith any person 16 years old or younger unless another adult, over the age of 20years and who had previously been approved in writing by a probation officer, waspresent. S was then aged 17.[7] Dr Coebergh noted that S, before his first release, had undertaken "30individual offence-focused treatment sessions" with a departmental psychologist, buthis age precluded attendance at a specialised group-based child sex offendertreatment programme for adult offenders. In respect of assessments and treatmentfollowing the initial release, Dr Coebergh's summary is as follows:Following initial release from prison, S undertook seven individualassessment sessions with a Departmental psychologist between March andJune 2015. They had a treatment component that was designed to assist S tobuild upon his earlier safety plan to better fit with his then lifecircumstances. S was described as co-operative and able to understand hishigh risk situations. It was recommended that he undertake treatment withthe WellStop sex offender programme. The treating psychologist advised S'sProbation Officer that S had been ambivalent about the safety plan work.Only preliminary contact with WellStop occurred due [to] his recall toprison, but he was recorded as evidencing preceding reluctance to attend theintervention because he did not judge it necessary. S presently disputed thisfile record and stated that his reluctance solely related to the group-basedtreatment component.[8] On 3 November 2015 the Parole Board made a final recall order. Theallegations leading to the application for recall, and S's response, are recorded in theBoard's decision as follows:The main allegation is that in the week prior to 19 August 2015 S went to hisgreat-aunt's address in Taupo, with his grandparents, and while there tried tosleep in an area in the house where some girls under 16 were present. Healso lied about going there and in fact told Probation that although his familyhad gone he had not. The occasion was a funeral.Community Corrections have produced an email from a person whointerviewed the woman whose husband had died and who lived at the housethat S went to, and that explicitly says that over the course of four nights hehad attempted to sleep in the lounge where she was sleeping with the girls,some of whom were under 16. However the woman would not allow thisand sent him back to sleep in the room with his grandparents.It is notable that his index offending was against family members in adomestic setting.It is alleged that the grandparents knew of the non-association condition butwere collusive in allowing S to stay overnight and as a result CommunityCorrections maintains that their address is no longer suitable.S himself today concedes the facts behind the allegations from theCommunity Corrections Department, and tells us that it was [his] decision togo to Taupo. Be that as it may, his grandparents should not have allowedhim to go.[9] S remained in custody until his final release date on 10 November 2016,when he was 19. He had been denied a further application for parole on 2 March2016.Interim supervision order with intensive monitoring[10] The present application was filed in this Court on 19 October 2016. At thesame time the chief executive made an application under s 107FA of the Parole Act2002 (the Act) for an interim supervision order with a special condition that S besubject to intensive monitoring; that is, in respect of the condition, that he submit tobeing accompanied and monitored for up to 24 hours a day. The interim supervisionorder, with the special condition, was made by Simon France J on 8 November2016.3[11] On the question of intensive monitoring the Judge said:[6] An intensive monitoring condition involves full time mentoring andsupervision in a secure facility. It is seen as a transitional programmeallowing intensive assistance to facilitate integration into the community.[7] I am satisfied that the risks of releasing S into a lesser degree ofsupervision on Thursday are too great, and that an interim intensivemonitoring condition should be imposed upon his release plan pendingdetermination of the primary application. It is necessary for the safety of thepublic. It would also proffer the best opportunity for S to develop the skillsneeded to live safely in the community.Supervision and conduct following final release[12] The interim supervision order and intensive monitoring was contracted by theDepartment of Corrections to Anglican Action Mission Trust, an agency which isbased in Hamilton and has been working with offenders for over 20 years. S hasbeen required to live at a specialised intensive monitoring facility on the grounds ofthe Springhill Corrections Facility, but outside the secure perimeter. Dr Coeberghrecorded relevant matters following S's final release as follows:3 Chief Executive of the Department of Corrections v S [2016] NZHC 2664.During his current return to the community, S has complied with hisconditions and typically presented well with his Probation Officer and othersworking with him. He has mostly proactively applied himself to self-identified goals for his sentence; including those related to physical exercise,gaining confidence in independent living, and achievement of workexperience. S has also been recorded in Probation case notes as remainingreluctant to discuss his offending and offering little information when askedabout his current sexual functioning. He has consistently denied sexualpreoccupation but also reported distracting himself from sexual thoughts bykeeping himself busy. At one point, Probation case notes recordedobservation that S 'will go to great lengths to get his own way', whenreferencing how his failure to gain desired approval from one staff membersaw him seek it from another.S has received positive reports about his work ethic in a kitchen role at theAnglican Action (AA) café. At the time of writing, his IM conditions hadbeen reduced to 12-hour monitoring (8pm-8am) for approximately twomonths.4 Some concern has been recorded about S seeking a female AAstaff member (managing him in the kitchen) as an adult sponsor for specificjogging excursions without regard for the appropriate staff-client boundary.AA subsequently investigated a workplace allegation that he and the otherparty had formed an intimate relationship and concluded that there wereinsufficient grounds to judge the allegation valid. Both parties denied anintimate relationship. AA went on to ensure that the two were never alone inthe workplace and warned her that functioning as his support person wasunacceptable to the organisation. S is described as minimally associatingwith fellow residents at Puna Whakamutunga and mostly socialising inlimited ways with others due to restrictions of his conditions and not wantingto potentially account for his conditions. He is recorded as forming afriendship, including gym exercising together, with a fellow AA worker whohas sexually offended against children. This suggests S had insufficientregard for the potential risks associated with such friendships. He hasreported some phone and social media contact with former peers. S'sgrandparents remain his primary support people and it is concerning thatthey were his caregivers during the offending period and formerly colludedwith him entering a high risk situation and deceiving Probation.Until recently, staff-supported planning for potential non-IM Court outcomeswas focused on S returning to Hawkes Bay. He now plans to remain inHamilton regardless of the Court outcome. S described this decision asmotivated by a desire for greater independence and initially advisedProbation that he had been offered permanent employment at the AA café.Subsequent enquiry showed that this had not been the case. S presentlydisputed the accuracy of this file record; stating that he did not recalladvising that employment had been offered and that he had instead onlymentioned that there was some chance of continuing employment at the café.His Probation Officer expressed concern about this decision to remain in4 I am satisfied this statement was based on a misunderstanding. The correct position wasexplained in affidavit evidence and a memorandum for the chief executive, filed at my requestafter the hearing. For a period of approximately 15 weeks, when S was undertaking approvedwork, what is called the "IM Governance Group" decided that S's mentor did not have to bepresent because S was "for all intents and purposes still under constant supervision". Sunexpectedly resigned from his job when this arrangement was in place and "person-to-personintensive monitoring on a 24 hour basis" at Spring Hill village resumed.Hamilton given his more established support network and approved addressin Napier and uncertainty about potential Court outcomes precludingdetailed planning for his residing in Hamilton. S subsequently advised thatwork is available to him locally with a business that had previouslyemployed offenders. This opportunity was facilitated by the aforementionedfemale AA staff member. It should be noted that she is the mother of ayoung child. Despite her awareness of his sex offender status, this behaviouris considered offence-paralleling because he has formed a trustedrelationship with a caregiver of a young child. S has confirmed initialawareness of and lack of concern for her parental status. His treatingpsychologist advised that one of the potential risk scenarios identified withhim related to a trusted relationship with a child caregiver and noted that hehad acknowledged in treatment that prior to his prison recall he hadminimised the importance of being more mindful of protective behaviour.The statutory framework[13] Extended supervision orders may be made when there is high risk of sexualoffending or a very high risk of violent offending. The argument in this case is thatthere is a high risk of sexual offending. There is no argument that there is also a veryhigh risk of violent offending. In consequence, the summary of relevant statutoryprovisions that follows refers only to sexual offending and specific provisions in thatregard.[14] An extended supervision order may only be made in respect of an "eligibleoffender".5 S is an eligible offender. This was not in issue.[15] The purpose of an extended supervision order is to protect members of thecommunity from those who, following receipt of a determinate sentence, pose a realand ongoing risk of committing serious sexual offences.6[16] The Court may make an extended supervision order if, having considered ahealth assessor's report, the Court is satisfied that two matters have beenestablished:7(a) The offender has, or has had, a pervasive pattern of serious sexualoffending.5 Parole Act 2002, s 107F(1). "Eligible offender" is defined in s 107C.6 Section 107I(1).7 Section 107I(2).(b) There is a high risk that the offender will in future commit a relevantsexual offence.[17] The Court may determine that there is a high risk that the offender willcommit a relevant sexual offence only if it is satisfied that the offender displays, orhas, what may be referred to as four "characteristics".8 The Court must be satisfiedthat the offender:(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.[18] An application by the chief executive must be accompanied by a report by ahealth assessor.9 In cases such as the present, directed to sexual offending, everyhealth assessor's report must address the questions whether "the offender displayseach of the traits and behavioural characteristics", being the four characteristics justreferred to, and whether "there is a high risk that the offender will in future commit arelevant sexual offence".108 Section 107IAA(1).9 Section 107F(2). The definition of "health assessor" in s 4 of the Sentencing Act 2002 applies.10 Section 107F(2A).[19] As noted by the Court of Appeal, once it is established that an offender is an"eligible offender", there is a three-step process in determining the application.11Restating the three steps by reference to the present application, they are as follows:(a) Does S have, or has he had, a pervasive pattern of serious sexualoffending?(b) If so, does S display, or have, the four characteristics?(c) If the four characteristics are present, a determination must be madeby the Court about the risk of S committing a relevant sexual offence.An order can only be made if the Court concludes that there is a highrisk that S will in the future commit a relevant sexual offence.[20] If the Court concludes that an order should be made, the Court must thendetermine the length of that order, with a maximum of 10 years.[21] As earlier noted, the chief executive has also sought a special condition forintensive monitoring. I will discuss that application after considering the primaryapplication for the extended supervision order.Dr Coebergh's report[22] Dr Coebergh, for his first report, interviewed S for a total of 2 hours 40minutes and for his second report, a year later, for a total of 1 hour 15 minutes. Inthe usual way, Dr Coebergh also reviewed psychological assessment reports andnotes from a range of sources, which had been made since May 2013, as well asother relevant information.[23] After summarising the facts of S's offending, Dr Coebergh's preliminaryassessment, in light of the facts of the offending, was as follows:S's pattern of sexual offending convictions evidenced the early onset ofdeviant sexual interest/arousal to prepubescent or early pubescent female andmale victims. All three victims were known and related to him. S's deviant11 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].sexual compulsivity saw him take or create (e.g. telling a victim to come intohis bedroom) regular opportunities to offend. The strength of S's sexualcompulsivity was evidenced by: the frequency of his offending and the factthat it continued until detected; the highly repetitive nature of some of hisoffending (representative convictions); separately offending against morethan one victim of different ages and genders across extended periods; thevariety of forms it took; and occasions of offending against a victim in thepresence of a second victim. This last behaviour, together with statementshe made to victims normalising his offending, functioned as a means ofsexual grooming (efforts to lower the victims' inhibitions against hisoffending). S's offending was further facilitated by establishing sufficienttrust with the victims (the JSN described how the victims enjoyed hiscompany prior to the offending) and with his own caregivers to gain regularvictim access. [This] included on more than one occasion being left incharge of victims by their parents. An escalation in the seriousness of hissexual offending occurred over its course, trending from indecent assault torape and sexual violation. The final rape was against the most vulnerable ofthe victims.Overall, S's offending reflected callousness and a sense of entitlement tomeet his sexual needs, including through rape, without regard for its harmfulimpact upon his victims. Although physical coercion was not the mostcommon feature of his offending he nonetheless was, as an older boy,physically larger and stronger than the victims. S initiated and engaged inthe offending despite some overt resistance (e.g. one victim expressedrevulsion at his masturbating in her view and the youngest victim pulled upher pants on occasions in an effort to stop the sexual offending) and knowingit was wrong (made efforts to avoid detection). He also instructedcompliance with aspects of his offending behaviour (e.g. told male victim tomasturbate him, instructed a female victim to remove her undergarments).Such behaviour suggests that he exercised notable levels of power andcontrol in the offending situations through psychological and, to someextent, physical coercion.[24] Referring to the behaviour which led to S's recall, Dr Coebergh made thefollowing observations: The behaviour resulting in the recall is considered offence-parallelingbecause it involved: knowingly entering a high risk situation (his indexoffending was against related children in a domestic setting); exercisingdeception to gain potential covert victim access (lying to Probation); anddeceiving caregivers by presenting himself as trustworthy and posing no orminimal risk of sexual offending. Deception was also evidenced in S'sfailure to advise Probation of the occasional presence of children at hisworkplace and by his failure, despite being asked by Probation multipletimes, to advise his employer (father of these children) of the nature of hisoffending until given a final opportunity to do so. During the currentassessment, S expressed surprise that he had been recalled, citing the factthat no offending occurred in the situation, that he had attempted to sleep inthe lounge because his grandparents were snoring, and that he had notjudged the situation as risky due to the presence of adults.[25] Dr Coebergh provided an overview of his conclusions, following his mostrecent assessment interviews, as follows:During the current assessment interviews, S evidenced limited insight intofactors contributing to his sexual offending. He described not being able tomake sense of his offending but believing that he was no longer the personwho had sexually offended. S reported negative thoughts and feelings(related to being 'unwanted', 'left out'), sexual preoccupation, and beingsolely focused on achieving sexual gratification without regard for its impactupon the victims at the time. He stated now better knowing that theoffending was wrong, despite also admitting that he knew it was wrong atthe time. S presently identified the age differences between him and hisvictims, the familial nature of his relationships with the victims, and beingsomeone the victims looked up to as reasons why the offending was wrong.He was able to generally describe why the Age of Consent law is in place.When asked about the likely impacts upon the victims, S made globalstatements condemning his offending but did not specify the likely nature ofimpacts, stating that he does not 'like to think about it'. He was recorded inProbation case notes as being reluctant to discuss his past offending, in part,because he 'does not see himself as a convicted criminal'. When asked todescribe his updated treatment-promoted safety plan, without directlyconsulting the documented copy, S was unable to recall the majority of itscontent. This is concerning because, in the absence of a thoroughlyinternalised treatment-promoted safety plan, it is unlikely that he willreliably recall his safety plan when anticipating or unexpectedlyencountering high risk situations or should early warning signs of elevatedrisk re-emerge.S was able to name high risk situations more globally – any contact withunderage individuals and being in situations where children mightcongregate (shops, supermarkets – particularly outside of school hours) – butthe only personally tailored example he gave was a caregiver asking him tobabysit a child. He evidenced an ability to identify basic coping strategiesshould he experience early warning signs of risk elevation or if heunexpectedly entered high risk situations. It was notable that S identified nospecific strategies for managing the re-emergence of deceitful ormanipulative at-risk behaviour and for avoiding developing trustedrelationships with caregivers of children, and he did not see any familycontact situations as high risk. The reasons S gave for the latter were that'all my family know about my offending and understand my conditions' andhis grandparents now share his consequential thinking with respect toviolation of conditions. Evident in this self-report was focus on avoidance ofviolating his conditions rather than on self-managing sexual recidivism risk.This appeared consistent with S's continuing denial of sexual deviancy andof posing sexual recidivism risk.Risk assessment[26] The next section of Dr Coebergh's report is concerned with an assessment ofthe risk of further relevant sexual offending.[27] Dr Coebergh carried out a preliminary assessment using the AutomatedSexual Recidivism Scale (ASRS) followed by an assessment using the Violence RiskScale (Sexual Offender Version) (VRS-SO). The assessment requiring considerationis the latter.[28] The assessment for the first report put S in the high risk category of furtheroffending. The results of the VRS-SO assessment used for the second report weremeasured having regard, in particular, to the fact that S had completed "additionaloffence-focused treatment since the last assessment". Progress at one level wasfound, but this was subject to the following concerns: However, because of the limited change that was evidenced his estimatedpost-treatment recidivism rates were higher than his corresponding pre-treatment rates. Of note, analysis of the VRS-SO sexual deviancy, criminality, andtreatment responsivity post-treatment sub scales scores using normative datashowed that S's total scores on these sub scales was similar to those found tobe in the 100th, 80.8th, and 69.9th percentiles, respectively. His total post-treatment VRS-SO score using normative data was similar to those found tobe in the 88.8th percentile.(emphasis in original)[29] Dr Coebergh noted that the VRS-SO results for S needed to be viewed "withsome caution" because the normative samples did not include offenders whose indexoffending occurred under the age of 18 years. Mr Allan, counsel for S, cross-examined Dr Coebergh at some length on the suitability of the VRS-SO assessmentfor someone, such as S, who was under the age of 18 at the time of the offending. Iwill address that point in due course.[30] Dr Coebergh referred to what he considered was further offence-parallelingbehaviour by S following his final release.12[31] Dr Coebergh concluded this section of his report with his opinion that S is athigh risk of engaging in relevant sexual offending if a range of identified risk factors12 The behaviour of concern to Dr Coebergh is outlined in the paragraphs of his report reproducedabove at [12].remain present. They were risk factors which Dr Coebergh found were present up tothe date of his most recent interview.Section 107IAA: the four "characteristics"[32] The next section of the report is directed to what I call the four characteristicsidentified in s 107IAA. It will be convenient to summarise Dr Coebergh's approach,and his conclusions, in my evaluation which also considers challenges made byMr Allan to this part of Dr Coebergh's report.Dr Coebergh's conclusion[33] Dr Coebergh's conclusion was preceded by a further section discussing S'smanagement and behaviour following his initial release and following the finalrelease. Relevant aspects of this have already been summarised or quoted.[34] The conclusion is as follows:S has been convicted of sexual offending against three children aged 4-11years, all of whom are considered additionally vulnerable due to their youngages. His sexual preoccupation with and arousal to children was evidencedat an early age and was regularly acted upon over a 13-month period until itwas detected. S's nine months in the community following initial releasesaw offence-paralleling behaviour and related victim access and rejection ofsupervision. He has engaged in a large number of individual offence-focused treatment sessions to mitigate his risk, including nine sessions sincehis most recent release from prison, but has evidenced limited treatmentgains. S presents with a high number of dynamic risk factors that reflect hislevel of risk and his limited response to treatment suggests that this risk willremain at a high level over the longer term. He has not demonstrated that heis able to independently manage his risk and in the absence of detection ofthe 2015 offence-paralleling behaviour, some of which resulted in convictionfor breach of sentence and recall to prison, he may have continued on atrajectory towards sexual recidivism risk. Therefore, risk reduction is likelyto be more successful when supported by external monitoring andmanagement of S's behaviour.Evaluation[35] I will consider two broad submissions by Mr Allan before assessing theelements of the statutory enquiry.Dr Coebergh's methodology[36] Mr Allan submitted that there was material error by Dr Coebergh in hisapproach, or methodology. This was said to arise from the fact that a risk assessmentwas made before an assessment of the four characteristics including, in particular,the use of the VRS-SO assessment before consideration of the four characteristics.Mr Allan cross-examined Dr Coebergh on this, and put it to him, in essence, that hisapproach "pre-loaded" the answer to the questions contained in the statutory enquiry;the question of risk, it was argued, was addressed before the statutory elements – thefour characteristics – bearing on that question had even been considered. Mr Allanreferred Dr Coebergh to the three-step approach summarised by the Court of Appealin R v Alinizi and put it to Dr Coebergh that the template Dr Coebergh used for hisreport, which appears to be one formulated by the Department of Corrections, iscontrary to what is required by the Court of Appeal.[37] I do not accept that the sequence in which Dr Coebergh referred to matters inhis report is contrary to requirements in the Act. Nor do I accept that the sequence inwhich he proceeded in carrying out his investigations and assessment has affectedthe validity of his conclusions, either in respect of the four characteristics or on thequestion of overall risk. The Court of Appeal's summary of the three-step approachdoes not indicate anything to the contrary. The Court there was summarising thebroad steps in the decision making process of the Court, not the way in which ahealth assessor should go about his or her task.13[38] I also record that I am positively satisfied from Dr Coebergh's evidence,some of it in reasonably extensive answers, that he has used his independent clinicaljudgment properly to address the matters that are required to be addressed by ahealth assessor under the Act.The VRS-SO assessment for offenders under the age of 18 years[39] As earlier noted, Dr Coebergh recorded a caution in relation to the use of theVRS-SO assessment for an offender who was under the age of 18 years at the time ofthe offending because the normative sample used to create the VRS-SO did not13 See [19] above.include such offenders. In cross-examination Mr Allan challenged Dr Coebergh'sreliance on the VRS-SO because of S's age at the time of his offending. Mr Allansupported his challenge by reference to an article published by the AmericanPsychological Association in 2013, a copy of which Mr Allan had made available, inwritten submissions, before the hearing and which Dr Coebergh was familiar with.14[40] Dr Coebergh, in his report, after expressing the caution, had neverthelesssaid: However, the tool's use with S is considered valid because the normativesample likely included sex offenders with juvenile sexual offendingconvictions in their criminal history. It is also notable, that research hasshown that several assessed risk factors for adolescent sexual offenders(aged 12-18 years) substantially correspond with those for adult sexualoffending.[41] In the course of the cross-examination Dr Coebergh explained in reasonabledetail why he was confident that the result for S could be given weight,notwithstanding his age. His opinion was directed both to the known facts inrelation to S – in particular the nature of the offending against the three victims, withincreasing seriousness in the offending over time and ending with a very youngvictim – and to the academic literature.[42] I am satisfied that the VRS-SO assessment was properly used and that, for thepurpose of the decision I have to make, weight is to be attached to Dr Coebergh'sinterpretation of the results.A pervasive pattern of serious sexual offending?[43] It was not in issue that S has had a pervasive pattern of serious sexualoffending. This is clearly established by the offending for which he was convicted.14 Christopher A Ralston and Douglas L Epperson "Predictive validity of adult risk assessmenttools with juveniles who offended sexually" (2013) 25(3), Psychological Assessment 905.Section 107IAA(1)(a): Does S display an intense drive, desire, or urge to commit arelevant sexual offence?[44] I will refer to this question as directed to "characteristic (a)". Dr Coeberghaddressed it under a heading as follows:The offender's demonstration of an intense drive, desire, or urge to commit arelevant sexual offence.[45] The opinion he expressed, after reference to aspects of the offending, was asfollows: The level of sexual deviance S has demonstrated at a young age is suchthat it would be expected to endure, and can be seen as underlying thepersistence of desire to sexually re-offend. Although he did not sexually re-offend, S has evidenced offence-paralleling behaviour during both periods ofrelease to the community. The potential trajectory of such behaviour had itcontinued undetected and unchecked, was towards sexual recidivism.It is the writer's opinion that the persistence of an intense drive, desire, orurge to sexually re-offend remains a sufficient concern to bring into questionS's ability to avoid such re-offending in the absence of external monitoringand management.[46] Mr Allan submitted that the conclusion Dr Coebergh reached, having regardto the way it is expressed, is not a conclusion in conformity with the wording of theAct. Dr Coebergh was cross-examined on this part of his report, including theheading.[47] Dr Coebergh said that the headings in his report, in respect of the fourcharacteristics, and with the fourth separated into its two distinct components underseparate headings, come from a template provided by the Department of Corrections.[48] The precise wording for the template heading for characteristic (a) is differentfrom the words used in the Act. The template headings for the other characteristicsalso deviate to an extent from the words used in the Act. Given the fact that thispoint has been raised in this case, I do record that it is unfortunate that the templatedoes not use the words of the Act. I also consider that, if there is to be a template, itmay be best to express the headings as questions, in the way in which I have done.Putting each matter as a question, and using the precise words of the Act, directsattention accurately to what needs to be answered by the health assessor and, in theend, by the Court.[49] I am nevertheless satisfied that the template headings, and the way in whichDr Coebergh has expressed himself in relation to the substance, has not resulted in ahealth assessor's report which does not provide substantial help to the Court in themanner anticipated by the Act. What needs to be considered is the substance of DrCoebergh's opinion, including his answers in cross-examination, not the precisewords used, unless they leave doubt.[50] Reading Dr Coebergh's opinion on characteristic (a), in the context of thereport as a whole, and cross-examination, did not leave me in doubt. Dr Coebergh'sopinion was that S "displays" an intense drive, desire or urge to commit a relevantsexual offence.[51] In the end, it is the Court that must be satisfied that each of the characteristicsis displayed. If the health assessor expressed an opinion that the relevantcharacteristic is not displayed the Court might hesitate before reaching a contraryconclusion. However, that was not Dr Coebergh's opinion.[52] I am satisfied that S displays an intense drive, desire, or urge to commit arelevant sexual offence.Section 107IAA(1)(b): Does S have a predilection or proclivity for serious sexualoffending?[53] Dr Coebergh's concise opinion on characteristic (b) was as follows:Proclivity is evidenced by the frequency of S's sexual offending, multiplevictims, and victims of both genders. Predilection for serious sexualoffending is evidenced by the re-emergence of offence-paralleling behaviourdespite the risks of its detection and the potential availability to him oflegally-aged sexual partners or friends without children at the time.It is the writer's opinion that S evidences a predilection for serious sexualoffending. This opinion is consistent with the outcome of his overall riskassessment that placed him in a high-risk category. Of particular note, S wasassessed as achieving the maximum score on the CRS-SO sexual recidivismrisk tool's sexual deviancy items.[54] Mr Allan accepted that this characteristic is present. That was a responsibleacknowledgement. I am satisfied that S has both a predilection and a proclivity forserious sexual offending.Section 107IAA(1)(c): Does S have limited self-regulatory capacity?[55] Dr Coebergh's opinion was as follows:The offender's self-regulatory capacity.S does not appear to have a realistic appraisal of his sexual recidivism risk orthe enduring nature of his sexual deviancy, and displayed limited retention ofhis treatment-promoted safety plan. His stated belief that his sexualdeviancy has ended and that he poses no risk of related recidivism likelyreduces problem recognition and related internal motivation to actively self-regulate his behaviour to keep both himself and others safe. S's limitedrecall of his safety plan reduces his capacity to reliably self-regulate hisbehaviour across a fuller range of potential risk scenarios. Thesecharacteristics appear to have contributed to the lack of adequate attention toself-regulation which saw offence-paralleling behaviour when subject toboth lower and higher levels of Probationary oversight.In the writer's opinion, S's self-regulatory capacity is likely to be insufficientto mitigate his sexual recidivism risk in the absence of external monitoringand management.[56] Mr Allan also accepted that this characteristic is present. I am satisfied that itis.Section 107IAA(1)(d): A lack of acceptance of responsibility or remorse? Anabsence of understanding or concern about impact on victims?[57] Paragraph (d) of s 107IAA(1) refers to four different "characteristics".15[58] The headings for Dr Coebergh's opinion on the two parts of paragraph (d),and his opinions, are as follows:The offender's acceptance of responsibility and remorse for past offending.S made general statements accepting responsibility and remorse for pastoffending but they appeared superficial and practiced. Such statements werenot accompanied by congruent emotional expression and his ability toexplain why the offending was wrong tended to lack adequate specification.15 Paragraph (d) is fully recorded above at [17].In the writer's opinion, S evidences superficial acceptance of responsibilityand remorse for past offending.The offender's understanding of, or concern about, the impact of his or hersexual offending on actual or potential victims.S was able to more generally describe some of the likely impact of hisoffending on actual or potential victims. However, such statements wereagain not accompanied by congruent emotional expression and his ability toexplain the likely impact tended to lack adequate specification. Efforts toprompt greater specification, on more than one occasion, saw S respond bysaying that he did not like to think about it. Such avoidant thinking habitslikely undermine his ability to readily experience empathy for victims or tohelpfully remind himself of how such offending impacted on them. Most ofS's statements about the negative consequences of his offending werefocused on those suffered by him rather than the victims.In the writer's opinion, S displays limited understanding of or concern aboutthe impact of his sexual offending on actual or potential victims.[59] Before the hearing, Mr Allan had given notice, at a pre-trial conference, ofthe matters in respect of which he wished to cross-examine Dr Coebergh. This didnot include any challenge to these opinions. However, I granted leave for cross-examination on this part of Dr Coebergh's opinion.[60] The essence of the contentions put to Dr Coebergh was that his opinions fellshort of opinions that there was a total lack of acceptance of responsibility orremorse, or a total absence of understanding for or concern about impact on victims;and that his opinions were that the positive characteristics were in fact present to anextent.[61] I am satisfied that Dr Coebergh did address the relevant questions and that hisopinion, as a psychologist, was that S does display a lack or absence of thecharacteristics referred to in paragraph (d).[62] An essential aspect of Dr Coebergh's responses to the questions in Court wasthat, as a psychological assessment, it was not possible to express a conclusion inabsolute terms; he could not state that there was a total absence or total lack of thecharacteristic or trait in question.[63] The Act does not require the Court to be satisfied that there is a total lack, orabsence, of any aspect of the characteristic before the Court can be satisfied that theoffender displays a lack or absence of the characteristic.[64] The words in paragraph (d), as with the words in the other paragraphs, needto be read in the full statutory context. Section 107I(1) is of particular importance:The purpose of an extended supervision order is to protect members of thecommunity from those who, following receipt of a determinate sentence,pose a real and ongoing risk of committing serious sexual or violentoffences.[65] What the Court must be satisfied of is a lack or absence of the relevantcharacteristic to an extent which bears in a material way on the ultimate question towhich the characteristics are directed; that is, whether there is a high risk that theoffender will commit a relevant sexual offence.[66] Dr Coebergh's answers reached that threshold. For example, on the questionwhether S displays a lack of acceptance of responsibility or remorse, it was put tohim that his answer does not confirm a lack of acceptance of responsibility orremorse as required by the Act. He responded:Mhm. So it's tricky because the, the legal, like what the statute requires is asort of black and white, it sounds how you're presenting it's black and whiteand in terms of a psychological assessment of considering this type of thingyou're really – it's, it's not a black or white thing. It's really does someonehave an acceptance for responsibility and a remorse, a degree of remorse.Are they able to display it to such a level that that is potentially will mitigatetheir risk of sexual re-offending and so how I'm thinking of it – so what I'msaying here is he's saying the right things but the accompanying presentation– well sorry he's saying some of the right things. He's not necessarily goinginto a lot of detail, he's making more global statements and the presentationwhen he's saying those things, so the emotions that he displays when he'ssaying those things in my clinical opinion were not convincing in terms ofhim actually having a deeper emotional acceptance of responsibility orremorse.And further, on the question of remorse: I don't see how anyone using any methodology can absolutely saywhether someone has remorse or not. All I can say is that based on hispresentation with me, what he said, how he said it, that it appearedsuperficial as opposed to genuine.[67] On the question whether S displays an absence of understanding for theimpact on his victims, Dr Coebergh's expanded opinion included the following:16 So he's able in very global terms to say that the offending was a bad thingessentially and it was, you know the victims were young and that they werevulnerable so he's able to say that. But he doesn't specify much moreclearly the reasons why; that he doesn't show a more specific understandingof the reasons why the ways in which the offending was likely to impacton the victims over the short and long term. [In] terms of the lack ofconcern I'm more confident in talking about its absence and the reason forthat is that he, you know he generally doesn't want to talk about it, about theimpact on the victims and it's difficult to see how someone who is genuinelyconcerned in a situation where their attitudes and thoughts about their sexualoffending [were] being assessed – you know very closely in a context that isquite an important one – that he wouldn't show more openness to actuallytalk about difficult thoughts and feelings, if indeed he has them. And so tome that reflected more of a tendency to avoid having to talk about it and atendency that if actually you're carrying through your life that you'reactually not wanting to remind yourself of the impact of offending uponvictims and not remind yourself of why you should be concerned about it.That to me suggests a greater degree of superficiality in terms of wanting toappear to be saying the right things rather than actually demonstrating it.And again he didn't show any congruent affect in terms of a congruentemotional response when talking about these things. And finally he wasmuch more focussed on the impact upon himself than upon the victims. Sowith the victims "I don't want to talk about that". Where he showed he hadreal concern – where he was more than happy to talk – was about the impacton himself of having served a prison sentence at a young age and goingforward.[68] I found Dr Coebergh's evidence on the questions under paragraph (d) ofsubstantial help in deciding whether I am satisfied on the relevant question orquestions under paragraph (d). Aided by that opinion, and putting it into the fullfactual context, I am satisfied that S does display a lack of acceptance ofresponsibility for his past offending, that there is no genuine remorse, and that hedisplays an absence of relevant understanding for or concern about the impact of hisoffending on his victims.Is there a high risk S will in the future commit a relevant sexual offence?[69] As recorded earlier in this judgment, Dr Coebergh's opinion, for reasons hefully set out, is that there is a high risk S will in the future commit a relevant sexualoffence. As also recorded, I am satisfied that there were no deficiencies in16 I have edited the original transcript in minor ways – principally with punctuation. The changesdo not affect meaning.Dr Coebergh's methodology, or in other respects, which diminishes the weight to beplaced on his opinion. It is for the Court to determine this question, but I have againobtained substantial help from Dr Coebergh's opinion, founded on the range ofmatters set out in earlier quotations or summaries of what he said.[70] Mr Allan accepted that, if I was satisfied that the four characteristics ins 107IAA(1) are present, there would be a high risk that S will in future commit arelevant sexual offence. It may be that Mr Allan's concession in this regard was onemade on the basis of assumptions of fact arising out of the evidence in this case,rather than a proposition of law. On the law, the Court cannot determine that there isa high risk unless it is satisfied that the four characteristics are present, but the Courtis not bound to determine that there is high risk when it is satisfied that the fourcharacteristics are present. The Act makes clear that, given a conclusion that thecharacteristics are present, the Court "may" determine that there is a high risk.17 Ihave directed myself accordingly in order to reach my own conclusion.[71] My determination is that there is a high risk that S in the future will commit arelevant sexual offence and that, in consequence, an extended supervision order isrequired. In coming to that conclusion, and as I have already indicated, I agree withthe range of reasons advanced by Dr Coebergh leading to his ultimate opinion thatthe statutory risk exists. It is unnecessary to seek to summarise those opinions again.[72] The reasons for my conclusion, however, are not limited to the specificreasons advanced by Dr Coebergh. It comes from an evaluation of a wide range ofevidence of fact relating to S's original offending, and his subsequent conduct in arange of circumstances, and in a variety of ways, which are of concern, coupled withexplanations he gave in relation to conduct of concern. In relation to the evidence ofconduct and things said by S, it is of significance that the allegations of fact against Son this application were not challenged in any material way.[73] In relation to the ongoing matters of concern, both in terms of actions andreported statements, and in particular statements to Dr Coebergh, it is also ofsignificance that, by the time of the hearing before me, S had already been subject to17 Sections 107I(2) and 107IAA(1).the interim extended supervision order for almost 12 months, coupled with theinterim intensive supervision order. And because of the extended period of theinterim order Dr Coebergh also had an opportunity to review his assessment 12months after the first assessment in light of what had occurred, and not occurred,while S had been subject to the interim orders.[74] There is one further consideration. On a number of matters of consequence,for the purpose of the statutory enquiry, Mr Allan placed substantial weight on S'sage at the time of his offending. Some points in that regard have already beenreferred to. S's youth was also advanced as grounds for distinguishing his case fromother cases where extended supervision orders have been imposed on offenderswhose offences occurred when they were adults.[75] As a general proposition, S's youth is a factor that needs to be taken intoaccount at this stage, as well as a factor that was taken into account by the Judge onsentencing.18 But S's youth when he committed the offences does not of itselfdictate a lenient response to an application for an extended supervision order. Itmight, but all relevant considerations need to be brought into account.[76] In my opinion, weighing all relevant factors, commencing with the facts ofthe offending, and tracking through all subsequent events, S's age at the date of hisoffending, and his age at the present time, are not factors weighing against anassessment of high risk. In my judgment, in this case, the fact that he committed thisparticular range of offences at such a young age, the nature of his behaviour since,and the lack of sufficiently encouraging responses to treatment, indicate that his ageat the time of the offending and now lends weight to the need for an order.The term of the order[77] Section 107I(5) of the Act is directed to the term of an order, as follows:The term of the order must be the minimum period required for the purposesof the safety of the community in light of—(a) the level of risk posed by the offender; and18 Police v S-RA, above n 1, at [2], [9], [17]-[20], and [27].(b) the seriousness of the harm that might be caused to victims; and(c) the likely duration of the risk.[78] The chief executive applied for an extended supervision order for themaximum period of 10 years. The application contained a bare statement that the"duration of the order sought is 10 years". No grounds were recorded. There was noevidence contained in Dr Coebergh's reports to assist the Court on the term of anorder. Nor was any other evidence tendered by the chief executive.[79] In cross-examination on this question, Mr Allan asked Dr Coebergh if he hadgiven any thought to the appropriate length of the order. He said he had not. Heexplained that the reason was that the duration of any order and conditions such asintensive monitoring does not "come under the scope of the health assessment". Hesaid:Those recommendations are made by a panel that's based in National Officethat includes representation from other agencies as well as Corrections staffand they consider the health assessment report and I believe they may beconsidering some other information as well in order to come to a decisionabout whether to make an application, for how long a duration and whetheror not to seek [intensive monitoring].[80] I express no criticism of Dr Coebergh for his approach. But I consider thatthis approach by the chief executive is decidedly unhelpful to the Court. In Moeke vChief Executive of the Department of Corrections, the Court of Appeal said:19[28] We consider, and suggest the respondent ensure in future caseswhere extended supervision orders are being sought, that the psychologicalreports provided include a considerably greater focus on the appropriates 107I(5) minimum term. There was some suggestion in counsel'ssubmissions that the respondent, relying on the assessment tools it employs,almost invariably seeks a ten year minimum term. Whether the maximumprescribed by Parliament should usually be the minimum; whether thestatistical information is unassailable; and indeed whether the respondent hasany such practice, are not matters about which we will speculate in thisappeal.[29] Nonetheless we consider that the materials placed before a courtinvited to make an extended supervision order should include:19 Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60.(a) a section in the psychological report that addresses fully theminimum term sought for the particular offender against thes 107I(5) criteria;(b) a thorough assessment of the efficacy and suitability of post-releaseplans including their nature and duration;(c) relevant updating information at the date of the extended supervisionorder hearing; and(d) steps which the offender has taken to address perceived risks.[81] I received information referred to at [29](c) and (d) of that judgment. I didnot receive the other information. In the further submissions, and information,provided after the hearing at my request, I did receive some further material bearingon the efficacy and suitability of post-release plans. But there was no expert opinionbearing on the appropriate term of an order. This is surprising given the observationsof the Court of Appeal. It is also surprising given the clear statutory directive thatthe term of the order must be the minimum period required for the purposes stated ins 107I(5). And in my opinion, if the general practice is to seek the maximum term, itis a practice contrary to the statutory directive.[82] Dr Coebergh was the only witness available to me from whom someinformation could be obtained. He was at a disadvantage in expressing an opinionon the term of an order not only because had he not made any assessment, but alsobecause he was unclear about what methodology should appropriately be used toassess an appropriate term.[83] In answer to questions from me Dr Coebergh also referred to the difficulty inproviding an opinion on the term of the order because it was not known whetherthere would be more positive responses from S to treatment compared withresponses to date.[84] In the end we had the following exchange:Q. Dr Coebergh, all of the questions are problematic in a sense becausewe do not know –A. Yeah exactly.Q. – what will happen?A. Yeah.Q. Assuming a reasonable progress, reasonable trajectory in the normalcourse and I know "normal" is as long as a piece of string, whatwould be a reasonable – and that there is ongoing treatment of anappropriate sort with monitoring and other things – what would be areasonable length of time to review the matter? Not to end the ordernecessarily, but to review it?A. Yes.Q. Two years?A. I guess in two years there would have been sufficient time fortreatment and for looking at his behaviour in the community wherehe has some level of oversight in terms of external control thoughthat would provide, that would be a reasonable period of time toreassess based purely on if, if in fact he, you know has the idealresponse to treatment.Q. Yes.A. Yes then I guess that would be a reasonable period of time to reviewprogress.Q. Well that's – your answer helps me because in your opinion with allof the contingencies that we're aware of, after two years a reasonablyreliable assessment could be made as to whether there has beenmaterial progress bearing on the ultimate issues that the Court has toaddress. Yes?A. Yeah.[85] In closing submissions Mr Allan, understandably, submitted that, if there is tobe an extended supervision order, it should not be for more than 2 years. He placedemphasis on an amendment of the Act in 2014 which enables the chief executive toapply for a further order.20[86] Ms Guthrie, for the chief executive, had some difficulty in responding to DrCoebergh's evidence given the way in which the application had been advanced andher instructions that an order for the maximum term was to be sought. Ms Guthriewas not in a position to take the matter beyond a submission that, in light ofDr Coebergh's evidence, a period of 2 years would be sufficient if, over theintervening period in relation to treatment, "everything worked optimally". That wasa reasonable response. Dr Coebergh's acceptance of my enquiry whether 2 years20 Section 107F(1)(b), as inserted by s 11(1) of the Parole (Extended Supervision Orders)Amendment Act 2014.would be sufficient was founded on assumptions that there would be measurablypositive responses from S.[87] Against that background, allowing for the evidence of actual responses totreatment from S, and weighing other relevant information, I have concluded that thelength of the order should be 2 ½ years from the date of this judgment. The resultwill be that, by the time this new order expires, S will in substance have been subjectto an extended supervision order for approximately 4 years. I am satisfied that thatis the minimum period required in terms of s 107I(5). The fact that part of this totalperiod arose from an interim extended supervision order does not make anydifference to the substance of what has been involved to date with the interim order.Intensive monitoring order[88] When an extended supervision order is sought, an application may also bemade to the court for an order requiring the Parole Board to impose an intensivemonitoring condition.21[89] Section 107IAC makes provision for the court order. Relevant subsectionsare the following:(2) An intensive monitoring condition is a condition requiring anoffender to submit to being accompanied and monitored, for up to 24hours a day, by an individual who has been approved, by a personauthorised by the chief executive, to undertake person-to-personmonitoring.(3) The order must specify the maximum duration of the intensivemonitoring condition, which must be no longer than 12 months.(4) If the court makes an order under this section, the Board mustimpose an intensive monitoring condition on the offender as aspecial condition.(5) The court may not make an order under this section in respect of anoffender more than once, even if the offender is subject to repeatedextended supervision orders.[90] Beyond those provisions, there is no statutory guidance as to when anintensive monitoring order should be made. In addition, as with the term of the21 Parole Act 2002, s 107IAB.extended supervision order, Dr Coebergh's instructions did not include instructionsto consider whether this is a case where, in addition to the interim order with theintensive monitoring condition, there should be a further order for such a conditionand, if so, the term of the intensive monitoring condition.[91] I have concluded that this application should be declined, for the followingreasons.[92] S has already been subject to an intensive monitoring condition for 12months. The maximum duration of such a condition, made on a final application foran extended supervision order, is 12 months, as recorded in s 107IAC(3) above. Theprovisions of the Act relating to interim supervision orders, which can include whatmight be called an "interim intensive monitoring condition", and the separateprovisions dealing with orders for intensive monitoring conditions as part of a finalextended supervision order, can be construed as enabling successive intensivemonitoring orders for periods of 12 months each, notwithstanding the prohibitioncontained in s 107IAC(5). In particular, s 107FA(4), read in conjunction withs 107K(3)(ba), suggest that successive orders for intensive monitoring conditions,interim and then final, may have been contemplated by the legislature.[93] Section 107FA(4) is as follows:If, under an interim supervision order, the court imposes an intensivemonitoring condition or residential restrictions, the period for which theinterim supervision order is in force is not to be taken into account for thepurpose of the limits specified in section 107K(3)(b) and (ba).[94] Section 107K makes provision for the Parole Board to impose specialconditions. Section 107K(3)(ba) provides that:When the Board imposes special conditions under this section,—(ba) any intensive monitoring condition may apply only within the first12 months of the term of the order [95] The two provisions, read together, do not contain an express provision for an"interim" intensive monitoring condition to be followed by a "final" intensivemonitoring condition, but the possibility of such an occurrence seems to be implied.[96] Although the relevant statutory provisions may be construed as enablingsuccessive orders for intensive monitoring conditions to be imposed, I am not in thiscase persuaded that the vagaries of factual circumstances that have occurred,including a procedural history over which S will not have had any control, shouldresult in intensive monitoring orders being imposed for successive periods of 12months. It is reasonable to assume that, in enacting these provisions, and inparticular provision for interim orders, Parliament anticipated that the hearing of thesubstantive application would occur reasonably promptly after interim orders weremade. In this case, the hearing of the substantive application occurred on 19 October2017 almost 12 months after the interim orders were made, and further writtensubmissions were required to be filed following that hearing.[97] My conclusion that an intensive monitoring order is not required is reinforcedby consideration of the powers of the Board, without a court order to impose anintensive monitoring condition, to impose conditions which can provide a high levelof external supervision over all aspects of an offender's life.[98] Section 15(3) of the Act provides that conditions that may be imposed asspecial conditions include, without limitation, the following:(a) conditions relating to the offender's place of residence (which mayinclude a condition that the offender reside at a particular place), orhis or her finances or earnings:(ab) residential restrictions:(b) conditions requiring the offender to participate in a programme (asdefined in section 16) to reduce the risk of further offending by theoffender through the rehabilitation and reintegration of the offender:(ba) conditions prohibiting the offender from doing 1 or more of thefollowing:(i) using (as defined in section 4(1)) a controlled drug:(ii) using a psychoactive substance:(iii) consuming alcohol:(c) conditions that the offender not associate with any person, persons,or class of persons:(d) conditions requiring the offender to take prescription medication.(e) conditions prohibiting the offender from entering or remaining inspecified places or areas, at specified times, or at all times:(f) conditions requiring the offender to submit to the electronicmonitoring of compliance with any release conditions or conditionsof an extended supervision order, imposed under paragraph (ab) or(e), that relate to the whereabouts of the offender:[99] Section 15A contains further detailed provisions relating to electronicmonitoring, and s 33 similarly detailed provisions relating to residential restrictions.[100] For those reasons I decline to make a further order for the Board to impose anintensive monitoring condition.Variation of interim special conditions[101] By memorandum dated 30 April 2018 the chief executive submitted that, ifthere is no further order for an intensive monitoring condition, alternative interimspecial conditions should be imposed pursuant to s 107IA because it may be threemonths before the Parole Board can meet to consider the final conditions to beimposed as part of the extended supervision order made by this judgment.[102] I accept that it is appropriate to impose interim special conditions. These arerecorded under the result heading below.Result[103] There is an order that the respondent, S, be subject to an extended supervisionorder for a period of 2 years and 6 months from the date of this judgment.[104] The application for an order pursuant to s 107IAC of the Parole Act 2002 thatthe Parole Board impose an intensive monitoring condition is dismissed.[105] Under s 107IA of the Parole Act 2002 the following special conditions,expressed as proposed in the memorandum for the chief executive, are imposed onan interim basis in accordance with the provisions of that section:(a) To undertake and engage in a reintegration programme with a serviceprovider, as approved by the probation officer, to the satisfaction ofthe programme provider and probation officer.(b) Not to possess or consume alcohol or illicit drugs.(c) To attend and complete an appropriate drug and alcohol programme tothe satisfaction of your probation officer and programme provider.Details of the appropriate programme to be determined by yourprobation officer.(d) To reside at an address as directed by your probation officer, to abideby any residence agreement that is in place, and not to move from thataddress without the prior written approval of a probation officer.(e) Not to be away from your approved address between the hours of10:00 pm and 6:00 am each day without the prior written approval ofa probation officer.(f) You are not to undertake any employment, training or voluntary workwithout the prior written approval of your probation officer. You mustdisclose the nature of your offending to your employer, which mustthen be verified by your probation officer for approval to occur.(g) Not to communicate or associate with the victims of your offending,unless you have the prior written consent of your probation officer.(h) Not to enter or remain in schools, parks, recreational centres or otherplaces identified in writing by your probation officer where childrencongregate unless under the supervision of an approved adult and withthe prior written permission of the supervising probation officer.(i) To comply with the requirements of electronic monitoring, andprovide access to the approved residence to the probation officer andrepresentatives of the monitoring company, for the purpose ofmaintaining the electronic monitoring equipment as directed by theprobation officer.(j) To submit to electronic monitoring in the form of global positioningsystem (GPS) technology as directed by a probation officer in order tomonitor your compliance with any condition(s) relating to yourwhereabouts and, when issued a mobile cellphone device by theDepartment, to carry and keep it charged and turned on at all timesand to answer it for the purpose of communications with the probationofficer._________________________________Woodhouse J