CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v NARAYAN [2022] NZHC 1535

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v NARAYAN [2022] NZHC 1535 [30June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2022-404-000127[2022] NZHC 1535BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND SUMIT SHAYAMAL NARAYANRespondentHearing: 16 June 2022Appearances: B D Tantrum & E W Palsenbarg for the ApplicantJ B Wickliffe for the RespondentJudgment: 30 June 2022JUDGMENT OF TAHANA JThis judgment was delivered by me on 30 June 2022 at 3.00pmRegistrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, AucklandGuardian Chambers, Auckland[1] The Chief Executive of the Department of Corrections (Chief Executive)applies for an Interim Supervision Order (ISO) against Mr Narayan, pursuant tos 107FA of the Parole Act 2002 (the Parole Act).[2] Mr Narayan has spent over 21 years in prison for sexual offending against threevictims. He was released from prison on 11 May 2022 and is currently subject tospecial release conditions.[3] Prior to Mr Narayan's release, the Chief Executive applied for an ExtendedSupervision Order (ESO). A hearing for that application is set down for 3 August2022. Pending determination of that application, an ISO is sought with an intensivemonitoring condition.[4] Mr Narayan opposes the application and says that the ISO is unnecessarybecause the special release conditions provide sufficient protection and the ESOapplication will be heard shortly.Factual background[5] In 1997, when Mr Narayan was 19 years' old he committed his first sexualoffending. He approached the victim, a sex worker, and her client in a parked car. Heincapacitated the client with a "stun gun" and made him get out of the car, take hispants off and lie face down on the ground. Mr Narayan then ordered the victim toaccompany him to another car park where he indecently assaulted her by touching herpubic area. Mr Narayan took the victim to a nearby car and drove her to a park wherehe made her lie down on the ground. Mr Narayan penetrated the victim's anus andvagina using his finger, attempted to insert his penis into her anus then forced her tosuck his penis. He then made her roll over and successfully inserted his penis into heranus. Mr Narayan threatened the victim and said he would shoot her if she told anyonewhat had happened.[6] Mr Narayan was only able to be connected to this offending because ofadvances in DNA testing. He was ultimately convicted of this offending in 2014.[7] In 2000, Mr Narayan committed his second set of offending at age 22. Heagain targeted sex workers. Mr Narayan approached the first victim, who wassoliciting clients on the street. She got in Mr Narayan's car where he threatened herwith a knife and demanded money. The first victim manged to escape. Mr Narayanpicked up a second victim and did the same thing. She attempted to escape butMr Narayan grabbed her by the hair and forced her back into the car where he madeher perform oral sex on him. He then instructed her to insert her tongue into his anus.He began to defecate. When he realised that she was using her hands to protect hermouth, he smeared his faeces on her face. He then penetrated her anus with a cigarettelighter before penetrating her anus with his penis to the point of ejaculation.[8] Following Mr Narayan's arrest, pornography and objectionable publicationswere found on his personal computer depicting bestiality, bondage, torture, childsexual abuse and defecation. These pictures had been accessed prior to the offending.[9] Mr Narayan was sentenced to 15 years' imprisonment in 2002 for the secondset of offending. In 2014, he was sentenced to seven years' imprisonment to be servedcumulatively on his existing sentence.[10] Mr Narayan was released from prison on 11 May 2022. He is currently subjectto the standard release conditions1 and a number of special release conditionsincluding requirements that he:(a) attend psychological assessment and the recommended treatment;(b) undertake a reintegration programme;(c) abide by a curfew;(d) gain approval before starting or changing employment;(e) abide by a residential condition;1 Parole Act 2002, s 14(1).(f) submit to electronic monitoring;(g) comply with the requirements of electronic monitoring;(h) not associate with persons under the age of 16, without prior writtenapproval or unless supervised by an adult approved in writing by aprobation officer;(i) not to enter any brothel or red light area;(j) disclose to a probation officer as soon as possible, details of anypersonal relationships which commence, resume or terminate;(k) attend a drug and alcohol assessment and treatment as required;(l) not possess or consume alcohol or controlled drugs;(m) not associate with victims of his offending;(n) comply with tenancy agreement;(o) not possess any electronic device capable of accessing the internet;(p) present any electronic device for monitoring;(q) attend a reintegration meeting;[11] A health assessment report was prepared on Mr Narayan on 21 March 2022 byDr Hamish Bartle, a registered clinical psychologist (Dr Bartle's Report).Parole Act 2002[12] The Court may make interim supervision orders until the application for anESO is finally determined.22 Parole Act 2002, s 107FA (2).[13] The Parole Act does not contain a statutory test that must be satisfied beforethe Court can make an ISO. However, this Court has repeatedly held that whenconsidering an application for an ISO, the Court must be satisfied that the statutorycriteria for an ESO has been made out; "albeit on a provisional basis and often onuntested evidence".3[14] Section 107I(2) of the Parole Act sets out the criteria for an ESO as follows:(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F, thecourt is satisfied, having considered the matters addressed in thehealth assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serious sexualor violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in futurecommit a relevant sexual offence:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.[15] Section 107IAA(1) of the Parole Act sets out the relevant matters the Courtmust be satisfied of when determining whether there is a high risk the offender willcommit a relevant sexual offence in the future:(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a relevantsexual offence; and(b) has a predilection or proclivity for serious sexual offending;and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse for pastoffending:3 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228, at [14]; referredto in Chief Executive of the Department of Corrections v Kepu [2021] NZHC 2745, at [7]; andChief Executive of the Department of Corrections v Wilson [2021] NZHC 3325, at [7].(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual or potentialvictims.[16] In this context, 'satisfied' imports no burden of proof, the Court is required tomake its determination on an objective basis.4AnalysisRelevant Sexual Offence[17] A relevant sexual offence is defined in s 107B(2) of the Parole Act and includesthe type of sexual offending identified in Dr Bartle's Report in relation to Mr Narayan.Eligible offender[18] Ms Wickliffe for Mr Narayan noted that he disputes that he is an "eligibleoffender" for the purposes of s 107IAA of the Parole Act. Mr Narayan disputes thecalculations by Corrections and says his sentence ended 18 months ago. That issue issubject to a separate judicial review application. Ms Wickliffe acknowledged for thepurposes of this application it is open to the Court to accept the Chief Executive'scalculations, which I do.Is there a pervasive pattern of serious sexual offending?[19] I must be satisfied that Mr Narayan has, or has had, a pervasive pattern ofserious sexual or violent offending. Ms Wickliffe says that Dr Bartle's Report doesnot address this issue directly and does not provide a conclusion.[20] Dr Bartle's Report includes as a heading "PATTERN OF PREVIOUSOFFENCES" to which paragraphs 7 to 17 of the report relate. Dr Bartle describesMr Narayan's previous sexual offending as set out in the factual background above.He refers to the sentencing notes of Glazebrook and Brewer JJ and then comments onthe pattern of offending as suggesting an early onset of problematic sexual behaviour,behavioural and cognitive rehearsal of more severe sexual offending (throughpornography and sexual offending), a degree of impulsivity, a disregard for sanctions4 Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [8].or consequences, antiauthoritarian attitudes, criminal versatility, and an escalation inseverity of offending.[21] I am satisfied that Dr Bartle did consider Mr Narayan's previous sexualoffending and identified the nature of the offending and the identifiable patterns to theoffending. The issue is then whether the incidences and patterns are sufficient tosatisfy the requirement in s 107I(2)(a) of the Parole Act.[22] In considering the requirements of s 107I(2)(a), the Court of Appeal has heldthat "serious" should be given its natural meaning, viewed against the statutorypurpose of protecting the community from those who pose a real and ongoing risk ofsexual offending.5 A "pervasive pattern" is one that is sufficiently characteristic of theoffender to serve as a predictor of future conduct.6[23] The Chief Executive relies on Taakimoeaka v Chief Executive of theDepartment of Corrections, where the Court of Appeal found that two incidents ofserious offending were sufficient to establish a unifying theme or pattern which wassufficiently pervasive to serve as a predictor of future conduct.7[24] Mr Narayan's sexual offending occurred on two occasions against threevictims. In all instances threats and weapons were used and the victims were sexworkers. As identified by Ms Wickliffe, the common features of Mr Narayan'soffending are the targeting of sex workers, the use of weapons and the offences takingplace in public parks or car parks.[25] The number of incidents giving rise to Mr Narayan's offending is similar toTaakimoeaka. I am satisfied that Mr Nayaran has had a pervasive pattern of serioussexual offending.[26] I now consider whether there is a high risk that Mr Narayan will in futurecommit a sexual offence.5 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [22].6 At [23].7 Taakimoeaka v Chief Executive of the Department of Corrections [2021] NZCA 258 at [29].Is there a high risk that Mr Narayan will commit a further relevant sexual offence?[27] I may determine that there is a "high risk" if I am satisfied that Mr Narayan:8(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.[28] I have reviewed Dr Bartle's Report which deals with each of the above issuesand concludes, as follows:Mr Narayan's display of an intense drive, desire, or urge to commit arelevant sexual offence(a) A feature of Mr Narayan's offending is his intense drive, desire, or urgeto commit a relevant sexual offence as his previous offending involvedviolence and threats to gain compliance and exhibited a disregard ofvictim's distress and resistance.Mr Narayan's predilection or proclivity for serious sexual offending(b) There is evidence for predilection due to the use of objectionablematerial in the lead up to the offences, the use of coercion and8 Parole Act at s 107IAA.humiliation beyond what was required for the commission of theoffence, by sexual behaviours unlikely to gain consent or provokeenjoyment, and from engagement in this offending while otherconsensual sexual partners were (reportedly) available. The evidencefor proclivity is inconclusive as the offending occurred over a confinedperiod of time, and, while initially present, problematic sexualbehaviour in the prison seem to have ceased.Mr Narayan's self-regulatory capacity(c) Mr Narayan previously had limited self-regulatory capacity. He hasshown an increasing capacity for self-regulation in prison. However,capacity to self-regulate in a manner that reduces risk has not beenevidenced by engagement in intensive treatment or robust releaseplanning.Mr Narayan's acceptance of responsibility, remorse, concern forvictims(d) Mr Narayan's acceptance of responsibility and remorse are consideredlacking. He has inadequate concern for his victims or an understandingof the impact of his offending.Mr Narayan's understanding for or concern about the impact of hissexual offending on actual or potential victims(e) Mr Narayan's understanding of the impact of his offending is unclear,however his level of concern would appear inadequate in terms ofmanaging risk. Dr Bartle noted that whatever his level of understandingor concern for past or potential victims, it had not been adequate tomotivate him to engage with intensive treatment or robust releaseplanning. Dr Bartle concluded that there would appear to be a linkbetween inadequate concern for victims and ongoing risk.[29] Dr Bartle also conducted several assessments of Mr Narayan's risk of sexualre-offending using actuarial instruments and clinical risk factors for sexual recidivism.Using the STATIC-99R, which is an internationally recognised measure of the staticfactors associated with the risk of sexual recidivism, Mr Narayan's score put him inthe 89th percentile. The estimated five-year recidivism rate for Mr Narayan's score is21.2 per cent and the estimated ten year rate is 32.1 per cent.[30] On the Violence Risk Scale - Sexual Offence Version (VRS:SO) whichassesses 17 static and dynamic risk factors, Mr Narayan was placed in the 'AboveAverage' risk category. Although Mr Narayan treatment circumstances make itdifficult to score him on this particular factor as the change score is based on men whohave completed intensive residential rehabilitation whereas Mr Narayan has onlycompleted a brief intervention. The estimated five-year recidivism rate forMr Narayan's score is between 19 and 28.9 per cent. The estimated ten-year rate isbetween 28.9 and 34.5 per cent.[31] The Psychopathy Checklist: Screening Version (PCL:SV) was alsoadministered during the assessment and Mr Narayan's score was above average forNew Zealand offenders.[32] Dr Bartle made two clinical observations he says are relevant to Mr Narayan'srisk:(a) Studies have shown a link between a high prevalence of psychopathictraits and high sexual deviancy. Together these traits may increase thelikelihood of recidivism additional to the findings of the otherassessments. Mr Narayan scored above average on both the PCL:SVand on the VRS:SO. Dr Bartle states the interaction between sexualdeviance and a callous disregard for (or enjoyment of) other's distressis apparent in his offending.(b) Mr Narayan's inconsistent motivation for treatment. Dr Bartle statesthat Mr Narayan denies some of his offending and has minimised hisneed for treatment and ultimately does not consider himself to be at riskof re-offending. Mr Narayan therefore does not consider that he needsto avoid future risks of re-offending in the community, and it is unclearwhether he has the intention or capability to manage his risk.[33] Ms Wickliffe says that Dr Bartle acknowledges that there is inconclusiveevidence of a proclivity to offend. The Parole Act only requires that I be satisfied thatthere is a predilection or proclivity for serious sexual offending.9 Both are notrequired. As Dr Bartle concludes that Mr Narayan has a predilection, this is sufficientto meet the statutory requirement.[34] Given the matters set out in Dr Bartle's Report addressing each of the factorsin s 1071AA and given the assessments of risk, there is sufficient material, on aprovisional basis for me to be satisfied that there is a high risk that Mr Narayan willin future commit a relevant sexual offence.Grounds for ISO made out[35] For the reasons set out above, the requirements set out in s 107I for the grantingof an ESO are satisfied such that it is appropriate to grant the application for an ISO.Special conditions[36] In addition to the standard conditions provided in s 107JA of the Parole Act theCrown also requests special conditions. Mr Tantrum, for the Chief Executive, soughtleave to include two special conditions that were inadvertently omitted from thememorandum of counsel dated 20 May 2022 seeking an ISO – these are the specialconditions listed at paragraphs 15(8) and (13) of the reserved decision of the ParoleBoard dated 30 March 2022. I grant leave for these two special conditions to beincluded within the ISO application.Intensive monitoring and variation to programmes conditions[37] The special conditions sought largely mirror the special release conditionsalready imposed on Mr Narayan, with two exceptions:9 Parole Act 2002, s 107IAA(1)(c). (Emphasis added).(a) Additional intensive monitoring special condition: To be subject tointensive monitoring and to submit to being accompanied andmonitored, for up to 24 hours a day, by an individual who has beenapproved, by a person authorised by the chief executive, to undertakeperson to person monitoring; and(b) Variation to the programmes condition: While residing at KaingaTaupua to undertake, engage in and complete a reintegrationprogramme administered by a programme provide between the hoursof 8am and 8pm daily, as approved by a probation officer, and abide bythe rules of the programme to the satisfaction of a probation officer. Toallow an approved person to supervise or monitor you, for nolonger than is necessary, to ensure your attendance at classes orparticipation in other activities associated with the programme.[bold text indicated the amended part of the condition].[38] There is no test under the Parole Act as to when an order for intensivemonitoring should be made. Intensive monitoring is likely to be justified only ifMr Narayan poses a high risk of sexual offending and that risk "is likely to beexacerbated if the transition from prison to the community cannot be safely managedwithout close and constant supervision."10[39] A proposed condition should only be imposed where there is a nexus betweenthe perceived risk posed by the offender and the effectiveness of the proposedcondition.11[40] Ms Wickliffe says that the ISO is unnecessary because the special releaseconditions are in place and will remain in place until after the hearing of the ESO inAugust 2022. She says that Kainga Taupua is located on the grounds of Spring Hillprison and Mr Narayan is not therefore in the "community" and the risk to "communitysafety" has already been addressed.10 Department of Corrections v Miller [2017] NZHC 2527, at [16].11 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49].[41] While Kainga Taupua is located on prison grounds, it is not subject to the samerestrictions as prison and residents are able to enter the community. WhileMs Wickliffe says that Kainga Taupua has a policy to escort residents when they arein the community, no details of the policy were provided. A "policy" does not providethe same certainty as the intensive monitoring condition and the condition supportsthe policy. Given the risks of re-offending identified by Dr Bartle, intensivemonitoring is necessary to reduce the risk of re-offending. Further, the previousoffending occurred at night and the additional monitoring condition is necessary toreduce that risk by providing 24-hour monitoring.[42] I accept there are existing restrictions on Mr Narayan. The intensivemonitoring however, will provide additional protection to reinforce those conditionsand importantly to reduce the high risk of re-offending as assessed by Dr Bartle.[43] Further, Mr Narayan does not consider himself to be at risk of further offendingso has not demonstrated the capacity or intention to manage his own risk. Theintensive monitoring is necessary in reducing and managing this risk.[44] I now consider the variation to the programme condition.[45] Ms Wickliffe submits that there is nothing in Dr Bartle's Report to indicateMr Narayan will not comply with the education opportunities. She argues that heshould be given an opportunity to show a willingness to engage before the Court takesthe step of imposing an intensive supervision order on an interim basis without a fullhearing on the matter and input by another health assessor.[46] Dr Bartle's Report does consider Mr Narayan's understanding of the impact ofhis offending and his willingness to engage in treatment and concludes:His acceptance of responsibility and remorse are both considered lacking.Similarly, while he reports some level of understanding of the impact of sexualoffending on prior or potential victims, his level of concern has not beenadequate to prompt any concerted effort to engage in appropriate treatment orrelease planning to avoid future such offending.[47] I accept the conclusions of Dr Bartle as supporting the necessity of ensuringMr Narayan attends the programs and engages to enable rehabilitation. The variationto the programmes is therefore necessary.Other special conditions[48] The other special conditions sought by the Chief Executive mirror the specialrelease conditions. I note that these special conditions are already in place and thepurpose for seeking these is to ensure there is no gap should the special releaseconditions expire before the ESO is determined. Given that these conditions are thesame as the special release conditions, there is no additional hardship to Mr Narayanin these conditions being imposed. These conditions will also remove any risk thatthe special release conditions expire before the ESO is determined and provideadditional protection with the two new special conditions sought.[49] There should be a nexus between the perceived risk posed by Mr Narayan andthe effectiveness of the proposed special condition.12 The Chief Executive says thatthe following conditions are necessary to reduce Mr Narayan's risk of re-offendingand/or to promote his rehabilitation and reintegration:(a) To attend a psychological assessment and attend, participate in andcomplete any recommended treatment as directed by a probationofficer.(b) To be at your approved address between the hours of 8pm and 7amdaily unless you have the prior written approval of a probation officer.(c) To obtain the written approval of a probation officer before starting orchanging your position and/or place of employment (includingvoluntary and unpaid work). To notify a probation officer if you leaveyour position of employment.12 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49](d) To comply with the requirements of electronic monitoring and provideunimpeded access to your approved residence by a Probation Officerand/or representatives of the monitoring company for the purpose ofmaintaining the electronic monitoring equipment as directed by aProbation Officer.(e) To submit to electronic monitoring as directed by a Probation Officerin order to monitor your compliance with any conditions relating toyour whereabouts.(f) Not to enter any brothel/red light district/or area where sex workers arelikely to congregate or work as defined by a probation officer in writingunless you have the prior written approval of a probation officer.(g) To disclose to a probation officer at the earliest opportunity, details ofany intimate relationship which commences, resumes or terminates.(h) To attend an alcohol and drug assessment, and attend, participate in andcomplete any treatment or counselling directed by a probation officer.(i) Not to possess, use or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs or controlled drugsprescribed to you by a health professional.(j) To comply with any tenancy agreement or rules issued by the providerof your approved accommodation.(k) Not to possess or use any electronic device capable of accessing theinternet other than a device that has been approved in writing by aprobation officer.(l) Upon request to make available to a probation officer, or his or heragent, any electronic device capable of accessing the internet that isused by you, or is in your possession or control, for the purpose ofmonitoring your use of the device.(m) To attend a reintegration meeting as directed a probation officer.[50] I accept the Crown's submissions that the above conditions are necessary toreduce risks and/or promote rehabilitation and reintegration.[51] Given the nature of Mr Narayan's offending as set out in Dr Bartle's Report,the conditions regarding movements at night, notifying changing positions /employment, intimate relationships and not visiting sex workers are necessary toreduce the risk of re-offending.[52] Mr Narayan has been in prison for over 20 years and needs support toreintegrate. Attendance at programs, reintegration meeting and assessment by apsychologist are necessary to promote Mr Narayan's rehabilitation and reintegration.Supervision and monitoring are necessary to ensure attendance and engagement inthose programs thereby promoting rehabilitation.[53] Electronic monitoring is necessary to both reduce the risk of re-offending andwill help to ensure Mr Narayan complies with the restrictions on his movements atnight and in relation to brothels.[54] Dr Bartle has identified substance abuse as a warning sign of further offending.The conditions regarding alcohol and drugs are therefore necessary to reduce the riskof re-offending and to assist in rehabilitation and reintegration.[55] Dr Bartle has also identified accessing pornography and objectionable materialas an early warning sign of future offending. The conditions regarding compliancewith rules and the tenancy agreement and access to electronic devices are necessary toreduce Mr Narayan's risk of re-offending by ensuring he does not use such devices toaccess such material.[56] For the reasons above, the other special conditions are necessary.New Zealand Bill of Rights Act 1990[57] Counsel for Mr Narayan says that given the punitive nature of the intensivemonitoring condition and the ISO, the orders should not be imposed where existingrelease conditions already serve to mitigate any risk of offending.[58] Ms Wickliffe referred to s 18 of the New Zealand Bill of Rights Act 1990 (NZBill of Rights Act) which protects the right to freedom of movement. She also refersto Belcher v Chief Executive of the Dept of Corrections which held that the impositionof restrictions under an ESO are punitive and therefore engage ss 25 and 26 of the NZBill of Rights Act.13[59] Section 26 of the NZ Bill of Rights Act protects persons against doublejeopardy. Ms Wickliffe says the imposition of the additional monitoring provisionamounts to double jeopardy and is not justified, especially given the ESO applicationwill be heard on 3 August 2022.[60] Section 5 of the NZ Bill of Rights Act provides that subject to section 4, therights and freedoms contained in the Bill of Rights may be subject only to suchreasonable limits prescribed by law as can be demonstrably justified in a free anddemocratic society.[61] For the reasons set out above and based on the findings of Dr Bartle, theintensive monitoring condition and other special conditions are justified to reduce therisk of re-offending and to promote Mr Narayan's rehabilitation and reintegration.Mr Narayan is subject to the special release conditions and I do not consider thatimposing the ISO with the additional intensive monitoring and program variationamount to double jeopardy.13 [2007] 1 NZLR 507.Result[62] The interim supervision order is granted with the special conditions sought bythe Chief Executive until determination of the application for the extended supervisionorder.______________________Tahana J