CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PENGELLY [2021] NZHC 2057

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PENGELLY [2021] NZHC 2057 [4 August 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000051[2021] NZHC 2057UNDER the Parole Act 2002IN THE MATTER of an Application for an Extended Supervision OrderBETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONSApplicantAND STEVEN KEITH PENGELLYRespondentHearing: 4 August 2021Appearances: C J Boshier for Applicant R G Glover for RespondentJudgment: 4 August 2021ORAL JUDGMENT OF OSBORNE JThis judgment was delivered by me on 10 August 2021 at 3.30 pmRegistrar/Deputy RegistrarDate:Introduction[1] The Chief Executive of the Department of Corrections (the Chief Executive) has applied for an extended supervision order (ESO) in relation to Steven Keith Pengelly, for a period of three years. ESOs are provided for in s 107F Parole Act 2002 (the Act).[2] Mr Pengelly has consented to the making of an ESO.[3] He has addressed me directly in Court this morning and I will later make some comments as to this discussion.[4] The Chief Executive's application was accompanied by a health assessor's report prepared by Amanda Richards, a registered clinical psychologist (the report).Application for an ESO[5] The Chief Executive's application is pursuant to s 107F(1) of the Act, which provides:107F Chief executive may apply for extended supervision order(1) The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—(a) where the offender is subject to a sentence of imprisonment, at any time before the later of—(i) the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and(ii) the date on which the offender ceases to be subject to any release conditions; or[6] Mr Pengelly's statutory release and sentence expiry date was 20 July 2021. His release conditions end on 19 January 2022.[7] Mr Pengelly was released from custody on 19 July 2021. The Chief Executive did not seek an interim order because Mr Pengelly's current release conditions are considered sufficient to manage his risk.[8] The Chief Executive's application was filed on 15 April 2021.Conviction for a relevant offence by an eligible offender[9] An application for an ESO must relate to an "eligible offender" as defined in s 107C(1) of the Act. The definition reads:107C Meaning of eligible offender(1) In this Part, eligible offender means an offender who—(a) is not subject to an indeterminate sentence but is a person who has been sentenced to imprisonment for a relevant offence (and that sentence has not been quashed or otherwise set aside) and has not ceased, since his or her latest conviction for a relevant offence (that has not been quashed or otherwise set aside), to be subject to any or all of the following:(i) a sentence of imprisonment (whether for a relevant offence or otherwise):(ii) release conditions (whether suspended or not):(iii) an extended supervision order; or[10] A relevant violent offence, as defined in s 107B(1) of the Act, includes the offence of attempted murder. Mr Pengelly was sentenced on 19 March 2013 to eight years and eight months' imprisonment on a charge of attempted murder. 1[11] Mr Pengelly is not subject to an indeterminate sentence. Nor has his sentence been quashed or otherwise set-aside. He has not ceased, since his last conviction for a relevant offence, to be subject to a sentence of imprisonment.[12] He is, in these circumstances, an eligible offender for the purposes of s 107C(1).1 R v Pengelly [2013] NZHC 527. Three other charges were considered in this decision: threatening to kill, dishonest use of a document and theft.Grounds justifying an ESO[13] The grounds on which the sentencing court, in this case the High Court, may make an ESO are set out in s 107I of the Act:107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.(2) A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commit a relevant sexual offence:(ii) there is a very high risk that the offender will in future commit a relevant violent offence.[14] Section 107I(4) of the Act requires the court to state the term of the ESO, which may not exceed 10 years.[15] Section 107I(5) of the Act requires the term of the ESO to be the minimum period required, having regard to an identified risk assessment. The risk assessment is set out in the subsection as follows:107I Sentencing court may make extended supervision order(5) The term of the order must be the minimum period required for the purposes 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.[16] It has been established that the court, in making an ESO, must explain the reasons why the ESO is being made, including the basis upon which the statutory test has been met. 2[17] That is what I now do.Legal principles[18] The legal principles which I am to apply are relatively settled and, through his consent to the making of the ESO, Mr Pengelly has implicitly recognised the principles justify the making of an order.[19] I will therefore briefly summarise the applicable principles before devoting more detailed attention to their application to the facts. These principles are drawn from the ten points identified by the Court of Appeal in Kiddell v Chief Executive of the Department of Corrections. 31. Present or past behaviour and future risk[20] The Court is concerned with present or past behaviour, which determines an eligible offender's susceptibility to an ESO, and future risk which ultimately determines whether the ESO is made. There are therefore two distinct criteria. Both criteria must be satisfied. 42. Relevance of the health assessor's report[21] The health assessor's report must be considered by the Court in relation to both criteria (pervasive pattern and future risk). 52 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].3 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 [Kiddell] at [16]– [27].4 At [17].5 At [18].[22] In assessing whether or not there is a very high risk that the offender will commit a relevant violent offence, and whether the offender exhibits certain risk- related traits or behavioural characteristics, the Court is to be guided by the factors set out in s 107IAA(2) of the Act, which provides:107IAA Matters court must be satisfied of when assessing risk...(2) A court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender—(a) has a severe disturbance in behavioural functioning established by evidence 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 more other persons; and(b) either—(i) displays behavioural evidence of clear and long-term planning of serious 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 impact of his or her violence on actual or potential victims.[23] It has been recognised that the Court, in making an ESO, must be satisfied as to each of the factors in s 107IAA(2) of the Act. It follows that if the Court is not satisfied as to any one (or more) of the factors, an ESO cannot be made. 63. Relevant evidence or information[24] The information provided in the report need not qualify as admissible evidence in criminal or civil proceedings. Similarly, the court is not limited to considering offending which has resulted in convictions.76 Shortcliffe v Chief Executive of the Department Corrections [2016] NZCA 597 at [13].7 Kiddell, above n 3, at [20].4. Each evaluative judgement[25] The Court undertakes a fact specific and evaluative exercise. The assessments of pattern, seriousness and risk all require a judgement of quality and degree. 85. "Serious violent offending"[26] The term "serious" as used in s 107I(2)(a) is to be given its ordinary meaning viewed against the statutory purpose of protecting the community from those who pose a real and ongoing risk of violent offending. 96. Pervasive pattern[27] A pervasive pattern is one which is sufficiently characteristic of the offender to serve as a predictor of future conduct.107. Assessment of "very high risk"[28] The Court, in assessing whether the offender presents a very high risk of committing relevant violent offences in future, will take into account anything that may exacerbate or mitigate risk, such as community support and the offender's response to any treatment that has been undertaken. 118. Level of proof[29] The requirement that the Court be "satisfied" of criteria under ss 107I(2) and 107IAA connotes no onus or standard proof, but instead requires that the Court make up its mind on the evidence. 128 Kiddell, above n 3, at [21].9 W v Chief Executive of the Department of Corrections [2019] NZCA 460 at [4]; Kiddell, above n 3, at [22].10 Kiddell, above n 3, at [23].11 At [24].12 At [25].9. Discretion[30] As the Court under s 107I(2) may make an ESO where the statutory criteria are satisfied, there is a discretion to refuse the order.1310. The offender's rights to freedom of movement in association[31] The Court, in reaching its decision, must recognise that the ESO may impinge substantially upon the offender's freedom of movement and association (being protected rights under the New Zealand Bill of Rights Act 1990). 14Consideration of the statutory criteria in relation to Mr PengellyIntroduction[32] I cannot make an ESO unless I am satisfied as to the criteria identified in s 107IAA(2).[33] The Court is obliged in this regard to Ms Richards for the clear manner in which she has addressed each of the criteria in her report.Demonstration of intense drive, desires or urges to commit acts of violence[34] Mr Pengelly is 48 years of age. Ms Richards identifies that from a young age he showed a willingness and capacity to engage in acts of interpersonal violence. Ms Richards reports him as having described committing numerous acts of violence during his lifetime, with a total disregard for the rights of others. The diversity of his violent behaviour provides evidence of the extent to which he has been willing to physically harm others for personal gain.[35] Mr Pengelly spent the last eight years and eight months in prison, during which time there were incidents of aggressive behaviour towards staff. Mr Pengelly also self-reported two occasions in which he had engaged in reactive violence to other prisoners.13 At [26].14 At [27].[36] The spate of index offending took place from February 2012 onwards, following a seven year sentence for violent offending. The index offending spanned an eight month period beginning six months after Mr Pengelly's release from prison. The most serious aspects were his attempted murder by stabbing a victim and slitting his throat with a bread knife, preceded by threatening to kill (by variously shooting or stabbing an ex-girlfriend and also threatening to kill her sister and her community nurse).[37] In sentencing Mr Pengelly in 2013, Kós J (as he was then) noted the psychological assessment that Mr Pengelly regarded himself as "morally right" and the victim deserving of his injuries; he noted that psychological tests indicated Mr Pengelly had strong psychopathic traits.15[38] Ms Richards opines that Mr Pengelly has historically displayed an intense drive, desire or urge to commit acts of violence. While his tendency toward violent behaviour reduced during his recent incarceration, Ms Richards nevertheless opines that the environment stressors that have previously precipitated Mr Pengelly's violent behaviour will again be present. She says this will allow the desires, drive or urge to re-emerge under exposure to lesser restrictions. Ms Richards considers this may remain particularly relevant in the context of Mr Pengelly's intimate relationships, but may extend to peers and strangers.[39] I am satisfied that Mr Pengelly has displayed intense drive, desires or urges to commit acts of violence.Extreme aggressive volatility[40] Ms Richards observes that Mr Pengelly has demonstrated both reactive and instrumental aggressive volatility across his lifetime and in different settings. He has been volatile within intimate relationships, towards his peers, strangers and towards those in authority. His volatility reportedly becomes more acute when he is under the influence of substances. Ms Richards concludes that Mr Pengelly's volatile aggressive behaviour is primarily activated by perceptions of harm, slights or rejection by others15 R v Pengelly, above n 1, at [24]–[25].and (as well as at an instrumental level) his desire to achieve personal goals. He has levels of mistrust which are activated rapidly and result in extreme and unpredictable aggression towards his partners. He has used weapons both to threaten and to inflict serious harm upon his victims, placing lives at risk with an acceptance of the potential for their death. While the recent incarceration saw a reduction in Mr Pengelly's aggressive volatility, likely due to the structured and balanced environment with an absence of substances and other external pressures, Ms Richards sees evidence of covert and subtle measures of instrumental violence on the part of Mr Pengelly. This includes intimidation and manipulation of others to meet his needs.[41] Ms Richards concludes that Mr Pengelly has an extensive history of volatile, aggressive behaviour. This has been absent during his recent incarceration, but with covert styles of aggression remaining a prominent feature of Mr Pengelly's functioning. I am satisfied that Mr Pengelly has a characteristic of extreme aggressive volatility.Persistently harbouring vengeful intentions to other persons[42] Ms Richards observes there is extensive evidence to suggest that Mr Pengelly has harboured vengeful intentions. She states that, historically, Mr Pengelly has persistently obsessed about harming others, particularly those who have rejected him, those he feels rejected by, or those he assumes to have had a history of sexual offending against children. His vengeful intentions are acutely evidenced in the context of his intimate relationships, demonstrated by persistent threats and eventual harm towards intimate partners. Mr Pengelly himself described being obsessed by vengeful fantasies and he reported that often these vengeful fantasies would be acted out either at the time of harbouring such thoughts (if the potential victim was present) or at a later date when the opportunity arose. That said, Ms Richards noted that Mr Pengelly currently denied the presence of vengeful intent towards others.[43] Ms Richards concludes that, while there is no current behavioural evidence of vengeful intent on the part of Mr Pengelly towards others within the prison environment, such vengeful intentions had been evidenced through his extensivehistory. She considers that it remains a notable area of risk against which Mr Pengelly would require support to maintain stability of thought when in the community.[44] I am satisfied that Mr Pengelly persistently harbours vengeful intentions towards other persons.Clear and long-term planning of serious violent offences to meet pre-meditated goals[45] Ms Richards notes Mr Pengelly's "extensive history of serious violent behaviour marked by purposeful intent". Ms Richards refers to a "lifestyle marked by parasitic behaviour" which includes violence with a total disregard for the rights of others, carried out by Mr Pengelly to achieve his personal goals and meet his financial needs. Ms Richards viewed the index offending as more reactive, but his subsequent behaviour still indicated a willingness to engage in planned violent behaviour to meet his goals. That included a calm retreat from his nearly killing someone, closely followed by involvement with a family who were strangers to him and his planning of an attack on a lone female backpacker. Ms Richards notes Mr Pengelly's engagement in "vengeful rumination" as a further example of his capacity for planned and calculated violent behaviour. Again, Ms Richards recognises there is limited evidence of the display of such behaviour during Mr Pengelly's recent incarceration.[46] Ms Richards concludes that Mr Pengelly has historically planned numerous serious violent offences to meet pre-meditated goals and that in situations of lifestyle or relationship stress his distorted thinking style will result in anti-social planning of violent fantasies.[47] I am satisfied that Mr Pengelly engages in clear and long-term planning of serious violent offences to meet pre-meditated goals.Limited self-regulatory capacity[48] Ms Richards observes that Mr Pengelly's offending has involved numerous instances where he failed to regulate himself appropriately. While at times his violent behaviour is deliberately planned, it is also reflective of poor self-management. Mr Pengelly displays an inability to tolerate certain negative emotional experiences. MsRichards nevertheless recognises that while in prison, Mr Pengelly has shown extended and appropriate self-regulation which suggests to her that, if he is motivated, he has the capacity to manage himself appropriately.[49] Ms Richards concludes that Mr Pengelly has some capacity to self-regulate when in a stable and structured environment, but freed from such constraints and in emotionally triggering situations, his ability to self-regulate will remain highly questionable.[50] I am satisfied that Mr Pengelly's self-regulatory capacity is limited.Absence of understanding for or concern about the impact of his violence on victims[51] Ms Richards states that the repetitive, unrepentant nature of Mr Pengelly's violent offending, before and during his index offending, strongly suggests that any awareness of the harm he has caused others has not been sufficient to preclude ongoing violence. Ms Richards records that during the present assessment, Mr Pengelly was able to identify that his victims would have experienced terror and agony. But Ms Richards observes that while Mr Pengelly was able to label the emotional impact likely experienced by his victims, she observes limited evidence that Mr Pengelly had experienced any genuine concern.[52] Ms Richards concludes that, while Mr Pengelly has an understanding about the impact of his violence upon others, it is not reliably accompanied by empathic concern for his victims.[53] I am satisfied that, although Mr Pengelly has recently articulated some understanding of the impact of his violence on his victims, he has a lack of understanding or genuine concern about the impact of his violence on his actual and potential victims. It is significant that Mr Pengelly reported to Ms Richards that he found it easy to detach from his emotions. Significantly, Kós J in sentencing Mr Pengelly in 2013, noted that Mr Pengelly saw his actions in relation to the attempted murder charge "as justified". 1616 R v Pengelly, above n 15, at [61].Risk of offender committing relevant violent offences in the future (s 107I(2))[54] Under s 107I(2)(b)(ii) of the Act, I need to be satisfied, if there is to be an ESO, that there is a very high risk that Mr Pengelly will in future commit a relevant violent offence.[55] I am satisfied (for the reasons above stated) that the criteria under s 107IAA(2)(a), (b) and (c) are established. I am therefore in a position to make my assessment as to whether there is a very high risk that Mr Pengelly will commit a relevant violent offence.[56] I am assisted in this assessment by the expert opinion of Ms Richards based on standard risk assessment tools. In Ms Richards' opinion, Mr Pengelly presented with a high risk of engaging in further violent behaviour. More particularly, assuming he were to be in the community unsupported, his risk would be considered very high. Ms Richards identifies a concern that it is highly questionable whether the degree of self-regulation that Mr Pengelly has displayed within the prison environment could be sustained when Mr Pengelly is faced with emotionally triggering situations, particularly in intimate relationships or when his goals are thwarted. Ms Richards does not see Mr Pengelly's degree of intellectual understanding of his conduct on his victims as a protective factor against future harm to others. The rapid return to crime which Mr Pengelly has demonstrated in the past is an important indicator in the risk assessment.[57] I am satisfied in these circumstances that there is a very high risk that Mr Pengelly will in future commit a relevant violent offence.[58] It is appropriate that the Court make an ESO.Length of the ESO[59] The Chief Executive seeks an order for a period of three years. I am satisfied that that is an appropriate term having regard to the evidence in this case.Date of the ESO[60] I will provide for the order to come into force today (4 August 2021).[61] These matters stated I consider it important to record in this judgment my appreciation of the manner in which, and the detail with which, Mr Pengelly has addressed the Court this morning.[62] In her report Ms Richards identifies the progress Mr Pengelly has been making, notwithstanding the risk assessments that she identifies and which I have summarised in this judgment. Ms Richards' particular observations in this regard are set out at pages one and two of her report to the Court.[63] It is clear that over the last several years, Mr Pengelly went to some lengths to put in place what he would refer to as the "wrap-around support" that he had recognised was necessary if he is to be rehabilitated into the community in a way that protects others, and indeed himself, from the harms that can come from his previous behaviour.[64] Mr Pengelly has spoken in glowing terms this morning of the support he has obtained from the Salisbury Street Foundation, support which has now been in place for the two weeks since his release from prison. He clearly recognises in the way he has addressed me the benefits of the close structuring and monitoring of that support, addressing me for instance this morning on the difference between the orange light and red light systems, which he recognises are a necessary part of his life and his transition to a fully functioning role in society.[65] The Court wishes Mr Pengelly well in what will be very challenging times ahead. The Court appreciates the way in which he has dealt with matters for this hearing.Orders[66] I order:(a) There is an extended supervision order in respect of Steven Keith Pengelly (the order);(b) the order comes into force today; and(c) the term is three years beginning today.Osborne JSolicitors:Raymond Donnelly & CoBarrister:R G Glover Barrister, Christchurch