CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v KAHU [2023] NZHC 1645

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v KAHU [2023] NZHC 1645 [30 June2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-311[2023] NZHC 1645UNDER s 107F of the Parole Act 2002IN THE MATTER of an application for an extended supervisionorderBETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND WATTIE ADOLF KAHURespondentHearing: 21 June 2023Appearances: B Tantrum and D Karl for the ApplicantF Iggulden for the RespondentJudgment: 30 June 2023JUDGMENT OF GORDON JThis judgment was delivered by meon 30 June 2023 at 3 pmRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Meredith Connell, AucklandF Iggulden, Barrister, AucklandIntroduction[1] The Chief Executive of the Department of Corrections (Chief Executive) hasapplied for an extended supervision order (ESO) in respect of Wattie Kahu. Mr Kahuopposes the making of the order.BackgroundPersonal circumstances[2] Mr Kahu was born on 9 June 1966. He is now 57 years old. He is of Tainuiand Ngāti Maniapoto descent. From a young age Mr Kahu was exposed to alcoholand drug use, gang life, criminal activities, domestic violence, neglect and abuse. Atage 10 he was removed from the family by the Department of Social Welfare andplaced in a boys' home where he was exposed to further violent and abusivebehaviours. Mr Kahu's subsequent pathway featured dysfunctional behaviour,substance abuse, criminal attitudes and violence. He was frequently truant fromschool and got into trouble for fighting with other students. Mr Kahu left school atthe age of 12 with no qualifications and did not learn to read or write.[3] Mr Kahu joined the Black Power gang at age 13 because the gang offered himprotection from abusive peers at the boys' home. This added criminal peer influencesto the factors shaping and maintaining his anti-social and violent behaviour. His longhistory of substance abuse began with cannabis use from age 16, progressing tomethamphetamine, party pills and alcohol. Mr Kahu has never been in long termemployment.Conviction history[4] Mr Kahu's offending has been characterised by persistent and serious violentoffending. He has twice been considered for preventive detention which was not,however, imposed on either occasion.1 On the second of those two occasions Moore Jsummarised Mr Kahu's conviction history as follows:21 R v Kahu HC Wanganui CRI-2007-083-1598, 19 October 2009; and R v Kahu [2017] NZHC 983.2 R v Kahu [2017] NZHC 983 at [18]–[21]. your first recorded offence was robbery in 1981 when you were aged just14. You were admonished. When you were 16 you were sentenced tosupervision for dishonesty offending and a month after that you received yourfirst sentence of imprisonment. Since that time you have spent almost all ofyour life in jail.[19] Some of those terms were lengthy. They include a four year sentencein 1984 for kidnapping and aggravated offending. In 1986 you were sentencedto two years' imprisonment for violent offending and in 1988 you weresentenced to eight years and 10 months for kidnapping and other violent anddishonesty offences. In 1994 you were sentenced to a term of four years andsix months' imprisonment for assault with a stabbing or cutting instrument andother offending. In 1996 you were sentenced to 12 and a half years'imprisonment for kidnapping and related serious violent offending and in2009 you received a six year sentence for using a firearm to resist arrest andviolent offending against your partner. At your sentencing in 2009 the Crownapplied for preventive detention.[20] A more in depth examination of the circumstances of this catalogue ofoffending reveals an obvious and repetitive pattern of violence, use ofweapons, home invasion and kidnapping. For example, the 1988 offendinginvolved you breaking into a house, pointing a rifle at the occupants,discharging the firearm and then forcing one of the occupants into a car atgunpoint.[21] In 1996 you assaulted your then wife by threatening her with an axeand then entering a house and chasing and stabbing the occupants. You alsobroke into a shop and held a knife to the throat of the shop keeper and lateryou kidnapped a woman by pointing a gun to her head. That was your fifthconviction for kidnapping.[5] The offending referred to at the end of [19] of Moore J's decision above, forwhich Mr Kahu was sentenced in 2009, was committed the day after Mr Kahu hadbeen released from prison for prior offending.3[6] The circumstances of Mr Kahu's most recent offending are summarised in thesentencing notes of Moore J as follows:4[6] Early on the morning of Sunday, 20 March 2016 you and another man,Mr Walker, broke into a vacant house in Whanganui. It was being renovated.The two of you stole decorating equipment worth about $2,000.[7] You drove away with no lights on and, no doubt because of that, youcame to the attention of the Police who told you to stop.[8] Instead of stopping, you took off at speed hitting a fence and drivingthrough a stop sign before losing control, spinning out and crashing into aparked car. You and Mr Walker ran off. Not long afterwards Mr Walker, who3 R v Kahu HC Wanganui CRI-2007-083-1598 at [17].4 R v Kahu [2017] NZHC 983.had suffered a shoulder injury in the crash, gave himself up at the Policestation.[9] The Police did not find you but they knew who you were. They spoketo your partner who told them that you did not want to be found and so anoperation was planned to arrest you a few days later when you were due toattend an appointment at Whanganui Probation at 8:00 am on 24 March 2016.[10] That day, just minutes before 8:00 am, the Police received a call aboutsomeone loitering around the back of a residential address in Whanganui. Thedescription fitted you. Just minutes later the Police received another call fromsomeone at another address just a few properties away. As a result, a Policecordon, which included armed officers and a dog handler, was set up.[11] Not long after, the victim, who for the present purposes I shall refer toas AB and whose home was apparently within the cordon, was about to go towork. As she stood in her driveway an officer told her to go back inside.[12] Just a few minutes later you jumped over the fence into her propertycarrying what looked like a genuine pistol but what was, in fact, an air gunwhich had been modified in a way which made it look authentic.[13] You went to the front door and asked to be let in. AB unlocked thefront door and you followed her inside. You say you told her that the gun wasplastic but as is obvious from what happened later she believed it was a realgun. Her partner was asleep in the couple's bedroom. You took her into thekitchen and told her that you did not want to be caught. Several times, yousaid, "Don't tell them" and "Don't tell on me". You kept looking out at thewindows.[14] AB told you that her partner was asleep. You threatened to shoot himif she told anyone, a comment which must puts the lie to any suggestion youtold her the gun was not real. You also threatened to shoot her and then saidthat you were just joking. Despite this, you continued to hold the gun in onehand and her in the other. You took her through various rooms in the houselooking out the windows. Again you told her you were not going to shoot her.Finally, you climbed out the bedroom window where her partner was sleeping.[15] Once outside you began to climb over the neighbour's fence. One ofthe Police told you to stop. You responded by presenting the gun at him.Believing the gun was real the Police chased you and called on you tosurrender. Instead you turned round and pointed the gun at them.Unsurprisingly they shot you. You suffered injuries to your left leg and theback of your head. You were taken to hospital where you refused treatment.[16] It was only after these events that it became apparent that what wasbelieved to be a firearm was, in fact, an air pistol modified to look like a Glock17. To the Police, you said you wanted to be shot by them. You said that whenyou pointed the gun at the Police officer it was an accident. You said that youmodified the air pistol to make it look more realistic and you also asked thatyour apologies be conveyed to AB for pointing the pistol at her.[7] Mr Kahu was sentenced to a term of imprisonment for seven years on thecharge of aggravated burglary and shorter concurrent terms on the other chargesincluding kidnapping and two charges of using a firearm to prevent or resist arrest. Inpassing sentence Moore J stated that Mr Kahu avoided preventive detention "by theskin of [his] teeth."5[8] Mr Kahu was released on parole in March 2023 and is subject to standard andspecial conditions of release until 23 September 2023 (six months after his sentenceend date). The Chief Executive initially indicated he may seek an interim supervisionorder (ISO). However, after receiving the Parole Board decision detailing Mr Kahu'srelease conditions, counsel for the Chief Executive confirmed that an ISO would notbe sought.The application[9] The Chief Executive may apply to the Court for an ESO pursuant to s 107F(1)of the Parole Act 2002 (the Act) in respect of an eligible offender:107F Chief executive may apply for extended supervision order(1) The chief executive may apply to the sentencing court for an extendedsupervision 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 theoffender is subject that has the latest sentence expirydate, regardless of whether that sentence is for arelevant offence; and(ii) the date on which the offender ceases to be subject toany release conditions;[10] There is no dispute that Mr Kahu qualifies as an eligible offender unders 107C(1)(a) of the Act. As noted above, in 2017 he was sentenced to seven years'imprisonment for offences including kidnapping (the "relevant violent offence") andwas still subject to that sentence of imprisonment at the time the Chief Executive filedthe application on 25 August 2022.5 R v Kahu [2017] NZHC 983 at [102].Evidence[11] The Chief Executive relies on a report dated 4 July 2022 prepared byRegistered Clinical Psychologist Fred Bauer (the report). To prepare the report,Mr Bauer interviewed Mr Kahu, conducted a review of Mr Kahu's probation, prison,and psychological records and contacted the case manager. Mr Kahu also providedwritten consent for Mr Bauer to access prison medical staff and records, contact familymembers, and to use information from his previous psychological treatment atTe Whare Manaakitanga Special Treatment Unit and his individual treatment withDepartmental psychologists.[12] Mr Bauer gave updating evidence orally at the hearing.6 In the course of hisoral evidence Mr Bauer mentioned the organisation Te Pā, previously known asPARS,7 which has been involved in supporting Mr Kahu since his release on parole.On occasion, as he gave his evidence, Mr Bauer looked to a representative of Te Pāwho was seated in the public gallery for confirmation of the point he was making. TheCourt considered it would be beneficial to hear directly from the representative ofTe Pā. With the agreement of Mr Tantrum, counsel for the Chief Executive, andMs Iggulden, counsel for Mr Kahu, and after having obtained the necessary approvalfrom his superiors, Michael Lloyd of Te Pā was questioned by the Court and counsel.The test[13] Before a Court can make an ESO it must be satisfied of the matters set out ins 107I(2) of the Act, namely that:(a) Mr Kahu has, or has had, a pervasive pattern of serious violentoffending; and(b) there is a very high risk that Mr Kahu will in future commit a relevantviolent offence.6 The Court was told that Ms Iggulden, counsel for Mr Kahu, had been advised of the content of theproposed updating evidence and there was no issue with the further evidence being given orally.7 As explained by Mr Bauer, the full name is Prisoners at Risk Services. It is also referred to asPrisoners Aid and Rehabilitation Society (R v Kahu [2017] NZHC 983 at [86]). Te Pā assistsreleased prisoners with their reintegration into society.[14] The term "satisfied" does not connote a burden or standard of proof. It simplymeans the Court must make up its own mind on whether the threshold in s 107I(2) ofthe Act is met.8A pervasive pattern of serious violent offending[15] This matter is not in dispute.[16] Mr Tantrum submits that Mr Kahu has, or has had, a pervasive pattern ofserious violent offending. He says the question is whether the serious violentoffending permeates or spreads across the offender's background9 such that the patternis a characteristic that can serve as a predictor of future conduct.10 Mr Tantrum pointsto Mr Kahu's lengthy history of serious violent offending that contains 16 convictionsfor relevant violent offences as defined under the Act. These convictions includekidnapping, the use of firearms or weapons to resist arrest, wounding with intent tocause grievous bodily harm, acting dangerously with intent, the commission of a crimewith a firearm, aggravated robbery, and robbery.[17] Ms Iggulden accepts that given Mr Kahu's extensive criminal history includingrelevant violent offences, there is a pervasive pattern of serious violent offending.[18] That is a proper acknowledgement on behalf of Mr Kahu. In referring to thiscriterion Mr Bauer notes the following: Mr Kahu was 14 when he first appeared beforethe courts and was admonished for a violent offence; his first conviction for a violentoffence was in 1981 (non-aggravated robbery – threats to person) when he was aged14; on 16 occasions Mr Kahu has been convicted for violent offending which includeshome invasions and kidnapping of victims unrelated to him, usually while armed witha knife or a gun; the most recent offending includes both of those elements along withbrandishing a weapon towards the Police; his violent offending has been characterised8 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352; (2009) 8HRNZ 770 at [72], [74] and [75], adopting the approach taken in R v Leitch [1998] 1 NZLR420 (CA) at 428, in relation to sentencing decisions involving preventive detention.9 Chief Executive, Department of Corrections v van der Plaat [2016] NZHC 3186 at [45]. Thisdecision was later appealed but not in relation to a pervasive pattern.10 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [23]. Counselrefers to these comments of the Court of Appeal in relation to serious sexual offending and submitsthey apply in the context of serious violent offending. Ms Iggulden did not take issue with this.by use of weapons including using or threatening to use knives, kitchen carving knives,a bayonet, an axe, and a gun; and the most recent offending involved use of animitation firearm fashioned to resemble a Police-issue firearm.[19] A pervasive pattern of serious violent offending is clearly established.A very high risk of committing a relevant violent offence in the future[20] This Court may determine there is a very high risk that Mr Kahu will commita relevant violent offence in the future only if it is satisfied that Mr Kahu:11(a) has a severe disturbance in behavioural functioning established byevidence of each of the following characteristics:(i) intense drive, desires, or urges to commit acts of violence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards 1 ormore other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet a premeditatedgoal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about the impactof his or her violence on actual or potential victims.[21] Mr Tantrum submits that while all these pre-conditions are expressed in thepresent tense, the real question is whether Mr Kahu has the particular characteristic,such that it may manifest in the right set of circumstances.12 Mr Tantrum submits thatthe relevant criteria are met in this case, relying on the report prepared by Mr Bauer.[22] Ms Iggulden submits that when these criteria are carefully considered, theCourt cannot be satisfied that there is a very high risk that Mr Kahu will commit arelevant violent offence in the future.11 Parole Act 2002, s 107IAA.12 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]–[27]. Thesecomments were in the context of relevant sexual offending but counsel submits they apply in thecontext of relevant violent offending as well.[23] I refer to each of the characteristics in turn noting counsel's submissions andthen my decision on each.Does Mr Kahu display intense drive, desires or urges to commit acts of violence?[24] Mr Tantrum refers to indications by the courts that this characteristic will besatisfied where there is evidence of a lengthy history of violence, particularly where ithas been used as a problem-solving tool,13 or where the violence is characterised byimpulsive and extreme aggression often accompanied by the use of a weapon.14[25] Ms Iggulden says that while Mr Kahu has used violence as a problem-solvingtool in the past, he has avoided reverting to violence since his most recent incarcerationon 24 March 2016. She also notes that Mr Kahu has now been in the community forthree months with no apparent offending or violent behaviour since being released.[26] Mr Bauer considers this criterion is met. He refers to Mr Kahu's long historyof committing instrumental violence as well as reactive violence in response toemotional triggers. He says Mr Kahu's traumatic childhood, youth experiences andantisocial peer associations developed and reinforced violence-supportive beliefs andintense urges to commit violence. Violence has been a typical method of solving arange of situations and difficulties for Mr Kahu, reinforced by antisocial peerassociations. Mr Bauer says it appears that Mr Kahu has suppressed his violentbehaviour in prison during the most recent term by expending considerable energyinto controlling himself as well as considering the consequences of his actions. Whileacknowledging that this is a change from previous behaviour during other sentencesof imprisonment, Mr Bauer notes that Mr Kahu has "yet to demonstrate desistencefrom violence when faced with high-risk situations and triggers of past violence in thecommunity." Accordingly, it is Mr Bauer's opinion that Mr Kahu still possesses thecharacteristics that contribute to intense urges to commit acts of violence but theintensity of such urges was attenuated in a controlled prison environment.13 Department of Corrections v McCord [2017] NZHC 744 at [53]–[54].14 Chief Executive, New Zealand Department of Corrections v Amohanga [2017] NZHC 1406 at[32].[27] I accept Mr Tantrum's submission that while the pre-conditions in s 107IAA(2)are expressed in the present tense, they do not necessarily need to be presentlymanifested at the time the ESO application is determined. I accept that Alinizi can beapplied to relevant violent offending. The issue is whether Mr Kahu has the particularcharacteristic which will then manifest in the right set of circumstances.15 In this caseI consider the evidence establishes that he does.Does Mr Kahu have extreme aggressive volatility?[28] Mr Tantrum submits that Mr Kahu's criminal history evinces a pattern ofaggressive volatility that has persisted during previous terms of imprisonment. Hesays Mr Kahu has consistently used offensive weapons including an axe, carvingknives, and firearms to further his offending.[29] Ms Iggulden notes that Mr Bauer is of the opinion that Mr Kahu does notcurrently display extreme aggressive volatility, although he has done so in the past.She says Mr Kahu was able to demonstrate restraint and there was a relative absenceof reported aggressive volatility towards others in the prison environment during hismost recent period of incarceration.[30] As Ms Iggulden notes, Mr Bauer's opinion is that Mr Kahu does not currentlydisplay extreme aggressive volatility, while he has done so in the past. Nonetheless,Mr Bauer recognises that this development has occurred within a structured prisonenvironment. Mr Bauer also notes that Mr Kahu has identified himself, that hestruggles with emotional regulation and anger issues. He has expressed his ownconcern regarding the level of anger he continues to feel and his potential to reactviolently.[31] Following the approach in Alinizi I consider that while Mr Kahu is notpresently manifesting extreme aggressive volatility, his criminal history and self-identified risk factors mean that he has this particular characteristic such that it wouldmanifest in the right set of circumstances. I consider that in light of both the15 Alinizi, above n 12, at [26]–[27]. See also Chief Executive of the Department of Corrections vCJW [2016] NZHC 1082 at [33].concentrated efforts Mr Kahu has taken to suppress his volatility in a controlled prisonenvironment and the limited time he has now spent in a relatively uncontrolledenvironment in the community, the "right set of circumstances" would result inMr Kahu's extreme aggressive volatility manifesting itself. Accordingly, I amsatisfied this characteristic is still present.Does Mr Kahu have persistent harbouring of vengeful intentions towards one or moreother persons?[32] Mr Tantrum submits that while Mr Kahu does not presently harbour vengefulintentions, he has consistently acted in a violent and aggressive manner in thecommunity. Mr Tantrum notes in particular Mr Kahu's increased aggression andpersistent resort to violence when faced with Police. Mr Tantrum refers the Court toAmohanga,16 and Chief Executive of the Department of Corrections v Waiti.17[33] Ms Iggulden relies on Mr Bauer's opinion that Mr Kahu does not persistentlyharbour vengeful intentions now, although he may be subject to relapse. She says thatthe index offending in 2016 did not demonstrate any vengeful intentions, nor hasMr Kahu demonstrated such intentions while in prison. Accordingly, any vengefulthinking occurred at least seven years ago.[34] The Court does not derive any real assistance from the two cases referred to in[32] above. In both cases the respondent consented to the making of an order.Although the Court is obliged to make its own assessment, in the circumstances withthe order being consented to, the discussion in each case is relatively limited.Additionally, in Waiti (as fairly acknowledged by Mr Tantrum) Mr Waiti had a historyof paranoia and persecutory delusions18 which makes that case factually distinct.[35] The decision of the Court of Appeal in Mosen v Chief Executive of theDepartment of Corrections is of assistance.19 It contains a detailed discussion asregards interpreting this criterion. It was submitted for the respondent in Mosen that16 Amohanga, above n 14, at [35] where the Court held the criterion was met in circumstances wherethe offending was characterised by reacting in a violent and aggressive manner to those whoimpose restrictions or curtail freedoms.17 Chief Executive of the Department of Corrections v Waiti [2019] NZHC 3256.18 Waiti, above n 17, at [41].19 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507."persistent" can mean frequent and repetitive rather than just long-held and consistent.It was further submitted that the respondent's vengeful intentions were persistent inthat they were recurring even though they were only briefly held at the time theymanifested. The Court said:20[54] We accept that "persistent" can mean frequent and repetitive ratherthan just long-held. Dictionary definitions include "enduring" and "constantlyrepeated", "incessantly repeated" and "unrelenting", and "lasting for a longtime or difficult to get rid of". However it is the phrase "persistent harbouringof vengeful intentions" as whole that must be given meaning. The ordinarymeaning of "harbouring" is to "maintain secretly", "to think about or feelsomething, usually over a long period" and "to hold especiallypersistently". "Vengeful" means a person "wanting or inclined to takevengeance", "desiring revenge", or "expressing a strong wish to punishsomeone who has harmed you or your family or friends". Together the phrasemeans to maintain or have in one's mind for a long time or recurringly a strongwish to take revenge on someone or to punish someone for the harm they areperceived to have done.[36] The Court in Mosen considered the above interpretation was consistent withChief Executive of the Department of Corrections v Wilson where the respondent hadbeen "ruminating" about his girlfriend going out with his sister and had acknowledgedthat another instance of offending was the culmination of hostile rumination towardsthe victim's family.21 The Court in Mosen stated that similarly, in Department ofCorrections v McCord Davison J had noted that the violence the respondent hadexhibited was not reactive and an immediate response to a particular situation butrather the result of rumination and a subsequent acting out of a vengeful intention.22[37] In Mosen the Court of Appeal concluded that the brevity of the respondent'sintense anger was more consistent with impulsive frustration that took its form asviolence rather than persistent harbouring of a vengeful intention.23[38] In the present case the evidence is to the contrary. Mr Bauer refers to apsychological treatment report by M Stairmand and S Goodier (23 November 2020)which provided a revised formulation of some of Mr Kahu's violent offending fromhis disclosures, which included in addition, a tendency to build intense anger and20 Mosen, above n 19, (footnotes omitted).21 Chief Executive of the Department of Corrections v Wilson [2016] NZHC 1082 at [39].22 McCord, above n 13, at [58].23 Mosen, above n 19, at [59]–[60].resentments towards others for perceived wrongdoings (originating from childhoodabuse and trauma) followed by a strong desire for revenge and subsequent use ofextreme violence as punishment.[39] Mr Bauer's opinion is that Mr Kahu's experiences of abuse and trauma in hisearlier years likely led to feelings of powerlessness and resentment. He says Mr Kahureportedly developed violence-supportive beliefs as a means of problem-solving orgaining efficacy. He has shown intolerance and pervasive mistrust of others as apersonality trait as an adult, along with a reported tendency to build resentment andthen punish others for perceived wrongdoings (as referred to in [38] above). This hascontributed to a strong desire for revenge against more than one individual and use ofextreme violence. Thus, Mr Bauer says a pattern of vengeful thinking has beenreported in relation to some of his violent offending prior to but, he accepts, notincluding, his relevant index offending. Mr Bauer also says there has been noindication of vengeful or grievance thinking during Mr Kahu's recent term in prisonor in treatment. He says Mr Kahu has demonstrated a growing pattern of takingresponsibility for his actions.[40] Again, applying Alinizi, while there is no evidence that Mr Kahu is presentlyharbouring vengeful intentions, having regard to his pervasive mistrust of others,tendency to build resentment and then punish others for their perceived wrongdoingsalongside his persistent resort to violence when faced by Police, all indicate that thischaracteristic is still present.Does Mr Kahu display behavioural evidence of clear and long-term planning ofserious violent offences to meet a premeditated goal or limited self-regulatorycapacity?[41] Mr Tantrum realistically does not argue that the first characteristic is present,in the light of Mr Bauer's evidence.[42] Ms Iggulden relies on Mr Bauer's conclusion that Mr Kahu does not displaythe first characteristic.[43] Mr Bauer notes that while Mr Kahu's history of offending indicates a "chronicstate of preparation" through possession of weapons, there is limited evidence of long-term planning of offending. Mr Bauer considers the offending can be described aslargely opportunistic influenced by his carrying of weapons.[44] I also note that in sentencing Mr Kahu for the index offending, Moore Jdescribed the offending as "more in the nature of a spontaneous exploit" with "noevidence of premeditation or planning".24 Rather, the Judge considered the offending"might best be described as a spontaneous and impromptu reaction driven by panicand a total lack of judgement".25 Similarly, in sentencing Mr Kahu in 2009 Mallon J,when describing the aggravating features of the lead offence: using a firearm to resistarrest, said that there was "a degree of pre-meditation because you knew the Policewere looking for you at the time and you did that to avoid apprehension".26 NeitherJudge found evidence of long-term planning.[45] This characteristic is not present. There is no evidence of "long-termplanning". However, it is an alternative to the next characteristic.[46] Mr Tantrum relies on Mr Bauer's conclusion that Mr Kahu has limited self-regulatory capacity. He points to how the index offending resulted from Mr Kahu'sinability to handle the stresses of being in the community. Mr Kahu is currentlysubject to a number of special conditions imposed by the Parole Board. Mr Tantrumsubmits these are necessary to manage Mr Kahu's limited self-regulatory capacity andwithout them, any improvement in self-control may lapse.[47] Ms Iggulden acknowledges Mr Bauer's conclusions but adds that it is alsorelevant for this Court to consider that Mr Kahu had no misconduct reports during themost recent sentence, even prior to starting the high intensity treatment. She describesthis as a significant change from previous sentences where he had a history of anti-social behaviour including misconduct and violence and this demonstrates his24 R v Kahu [2017] NZHC 983 at [43(a)].25 At [43(a)].26 R v Kahu HC Wanganui CRI-2007-083-1598, 19 October 2009 at [23].willingness and ability to comply. Ms Iggulden further says that Mr Kahu has beenable to maintain his self-control while having been in the community for three months.[48] Mr Bauer's opinion is that Mr Kahu's lifetime patterns of: emotionaldysfunction following serious childhood trauma; substance abuse; frequency ofgeneral and violent offending; and rapidity of reoffending following release (in oneinstance being just one day) all indicate poor self-regulatory capacity both generallyand regarding violence. Mr Kahu's violent offending has included reactive andemotionally driven violence. Mr Bauer refers to the index offending having occurredwhen the stresses of life outside prison began to overwhelm Mr Kahu. He resorted tosome of his previous behaviours including taking drugs such as methamphetamine,which resulted in him losing his job. He then increased his substance abuse furtherand began associating with gang members and old anti-social friends. His thoughtpatterns returned to offending-supportive cognitions.[49] While Mr Bauer notes that over the past five years in prison, Mr Kahu hasapparently desisted from substance abuse and violence and reported using replacementconflict resolution behaviour, nevertheless, in treatment during this sentence Mr Kahuhas expressed concern regarding the level of anger he continues to feel and hispotential to react violently. Mr Bauer says that while Mr Kahu has learned to exertsufficient self-control to avoid serious physical violence in the structured prisonenvironment, this control appears to be fragile and may lapse in stressfulcircumstances in the community. He has very little experience or demonstration ofself-regulation in the community.[50] Mr Bauer concludes that Mr Kahu has recently developed a tenuousimprovement in self-regulatory capacity in prison but has yet to demonstrate andmaintain this reliably in the community.[51] On the basis of Mr Bauer's evidence I consider that the characteristic of limitedself-regulatory capacity is satisfied.Does Mr Kahu display an absence of understanding for or concern about the impactof his violence on actual or potential victims?[52] Mr Tantrum submits that the level of understanding Mr Kahu has shown forhis offending is insufficient to materially reduce his risk of committing relevant violentoffences in the future. He relies on the comments of Davison J that the phrase"absence of understanding" does not mean there must be no understanding orconcern,27 and the approval of the Court of Appeal where the High Court hadconcluded that despite a degree of understanding, the level was insufficient tomaterially reduce the risk of the offender committing future relevant offending.28[53] Ms Iggulden says that Mr Kahu has expressed remorse for the kidnappingvictim in the index offending, has acknowledged the negative impact of his previouscriminal lifestyle on his children, and has not resorted to violence in his most recentsentence. She submits these factors, together, demonstrate that Mr Kahu has reacheda level of understanding sufficient to materially reduce the risk of committing futureviolent offending.[54] Mr Bauer's opinion is that Mr Kahu has "some understanding and concern"about the impact of his violent offending on actual or potential victims. However, assubmitted by Mr Tantrum, this may not prevent the Court from determining there isan absence of understanding to the level required, such that this criterion is met.[55] There are indications that go both ways for this characteristic. Mr Bauer notesthat earlier documented expressions of remorse by Mr Kahu were followed by violentreoffending. However, Mr Bauer also says that since the index offending, Mr Kahuhas consistently expressed remorse for the impact of his actions on his kidnappingvictim, including during the interview for Mr Bauer's assessment. Mr Bauer's opinionis that the expressed remorse appears to have been genuine. Mr Bauer notes thatMr Kahu engaged in the intensive STU:VO29 programme. There were reported gainsand insight across all identified dynamic risk factors (including insight and cognitivedistortions). Mr Bauer says this suggests an improved understanding about the impact27 Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 at [82]–[83].28 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [29]; and ChiefExecutive of the Department of Corrections v McIntosh [2020] NZHC 3184 at [45].29 Special Treatment Unit Programme for Violent Offenders.of his violent offending on others. Unfortunately, it seems that the fortnightlymaintenance sessions that were to proceed did not occur, through no fault of Mr Kahu.[56] In Amohanga (although as noted above at [34], discussion on the variouscharacteristics was relatively limited) the Court considered that despite the respondentexpressing shame, remorse and regret regarding his violent offending, he had alsoattempted to deflect the responsibility for his actions and minimised his role in theviolent assaults.30 The evidence was that these attempts hindered his deeperunderstanding of the impact of his past violent offending and that he still held beliefswhich justified his anti-social behaviour.31 In those circumstances, the Judge acceptedthat this criterion was satisfied.[57] Here, as Mr Tantrum points out, a similar pattern can be seen in relation toMr Kahu's index offending. While on the one hand showing remorse for the victimthat Mr Bauer assesses as genuine, Mr Kahu's explanation for the offending appearsto be inconsistent with the facts of the offending. This would demonstrate some lackof insight on his part. Mr Kahu's position during the psychological assessment for theCourt for the 2017 sentencing was that he accidentally came across the female victimof his offending. He also stated he showed her that the gun was an imitation weaponso that she would not be frightened. He repeated that claim during Mr Bauer'sassessment interview. This claim was not accepted by Moore J at sentencing. TheJudge noted Mr Kahu's claim that he tried to show the victim the gun and told her notto "freak" because it was plastic.32 The Judge did not accept that.33 I acceptMr Tantrum's submission that this claim is inconsistent with the subsequent threats hemade to shoot the victim's husband if she went to the authorities and that he wouldshoot her (although, as noted by Moore J, he apparently later said he was joking).34[58] Mr Kahu has similarly denied elements of his offending in the past in thecontext of his use and/or possession of firearms. Justice Mallon noted that whileMr Kahu accepted the salient facts of his offending (including pointing a sawn-off30 Amohanga, above n 14, at [37].31 At [37].32 R v Kahu [2017] NZHC 983 at [43](b).33 At [43](b).34 At [43](e).double-barrelled shotgun at the constables attending the incident at the residentialproperty) he previously gave a different version of events, including that he did nothave a gun but rather a portable cellphone.35[59] While it is apparent from Mr Bauer's evidence that Mr Kahu has made progressduring his most recent period of imprisonment, his lack of insight when in thecommunity and pending sentence indicates that his level of understanding of theimpact of his violence on actual or potential victims is limited so that there is anabsence of sufficient understanding. Therefore, this criterion is met.[60] In summary, on the criteria in s 107IAA, I have found that one criterion, long-term planning is not met. However, that is an alternative to the criterion of havinglimited self-regulatory capacity, which I have found to be met. The section providesthat the Court may determine there is a very high risk that the offender will commit arelevant violent offence only if it is satisfied of the specified criteria. That being thecase, I now move to consider that issue.Does Mr Kahu pose a very high risk of committing a relevant violent offence in thefuture?[61] Mr Bauer's overall risk assessment is that Mr Kahu presents a high risk ofcommitting a further relevant violent offence while in the community (in other words,not a very high risk). This conclusion is based on his assessment of factors ins 107IAA(2) of the Act, and his analysis of actuarial instruments predicting static anddynamic risk factors for violence recidivism.[62] Mr Tantrum reminds the Court that when considering ESO applications Judgesneed not accept nor "rubber stamp" opinions of health assessors.36 The Court ofAppeal said that what is required is:3735 R v Kahu HC Wanganui CRI-2007-083-1598, 19 October 2009 at [5]–[6].36 Barr v the Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32].See for example Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712where both health assessors found the respondent was at a medium-high risk of committing arelevant sexual offence in the future, although one health assessor opined the risk was high in theimmediate future. The Judge, however, reached a conclusion that the respondent posed a high riskof committing a relevant sexual offence in the future.37 Barr, above n 36, at [32]. a careful assessment of all the historical and current factors, along withexpert opinions of others, bearing in mind that an ESO can have substantialongoing impact on an offender who has already completed the sentenceimposed by the court for the offending. The risk of re-offending has to besuch that cannot properly be ignored when viewed against the gravity of likelyre-offending. [63] Mr Tantrum submits that on all of the evidence there is a very high risk thatMr Kahu will commit a relevant violent offence in the future.[64] Ms Iggulden submits that if the Court is satisfied the s 107IAA(2) criteria aremet, while Mr Bauer's assessment is not determinative, he is well placed to be able tooffer the opinion he does and Mr Kahu does not pose a very high risk of committing arelevant violent offence in the future.[65] Two key paragraphs in Mr Bauer's report contain a summary of the events thatoccurred after Mr Kahu's penultimate release from prison. Mr Bauer says:23 During the assessment by M. Simons (2017), Mr Kahu reportedthat he had been released to his then partner's address in Whanganui,and had support from Community Probation, Prisoners At RiskServices (PARS), a Police liaison person, and his partner. With thehelp of these supports, he obtained work at a freezing works inWhanganui, where he managed to work for three months. Herecounted positive reports from his employer at that time. He reportedhe engaged in relationship counselling and alcohol and drugcounselling in the community.24 Mr Kahu stated that from his experience, progress began to happentoo fast after release, and in order to manage the stress of being in thecommunity, he resorted to some of his previous behaviours:specifically substance abuse including methamphetamine. Hisemployer completed a drug test, which returned a positive test formethamphetamine. This resulted in Mr Kahu losing his employmentat the freezing works. Mr Kahu stated that in response to losing hisemployment, he increased his substance abuse further, and beganassociating with gang members and old anti-social friends. Histhought patterns returned to offending-supportive cognitions. He alsoreported that he hid this behaviour and offending-supportive thinkingfrom his then partner, as he knew she would disapprove.[66] There followed the offending for which Mr Kahu was sentenced by Moore J.As earlier noted, the offending for which Mr Kahu was sentenced by Mallon J occurredone day after his prior release from prison. Mr Bauer correctly says that Mr Kahu'soffending record is notable for rapid recidivism following release. That rapidrecidivism to serious offending has resulted in Mr Kahu spending most of his adultlife in prison.[67] The issue for the Court, is essentially, will it be different this time? Mr Kahusays it will be. He says the words of Moore J at the end of the Judge's sentencingremarks resounded with him:38[102] Mr Kahu, as you would [sic] picked up this was a fine run thing. Youavoid preventive detention by the skin of your teeth. What tipped the balanceis that at the age of 50 for the first time you are showing real evidence ofwanting to change. That is not just because you say so. That would never beenough. But the experts now say this although there is still a lot to be donebefore you will be ready to be released. Also we now have ESOs which canoperate to monitor you post-release in a very intensive way which was notavailable last time you were sentenced.[103] Do not let your partner and those who have shown trust and support inyou down. If you do it will almost certainly be the very last chance you willever get to live a life outside jail. And before you do you have a lot of workahead before you can prove you really are ready.[68] The history of Mr Kahu's previous treatment (prior to the treatment during hismost recent period of imprisonment) is not promising. Mr Bauer summarises it asfollows:34 Mr Kahu attended six treatment programmes between 1988 and 2000to address his substance abuse, anger problems, and gain perspectiveinto his cultural needs. He participated in individual counselling witha social worker in 2001, and with a Departmental psychologist in2005. File information suggests that despite his participation intreatment, relapse to alcohol and drug abuse and aggressive behaviourwhile on sentence was noted at the time. He completed theMontgomery House Violence Prevention Programme between Apriland June 2006 and at the conclusion of treatment was reported to havedeveloped insight, but to still hold beliefs supportive of anti-socialbehaviour. He continued to receive individual treatment forapproximately three months (nine sessions) from a Departmentalpsychologist following release later in 2006. However, he found itdifficult to implement relapse prevention skills, resumed gangassociation and substance abuse, and committed further violentoffences.35 Mr Kahu attended the Drug Treatment Programme (DTU) in 2013,but was exited from the programme and the Maori Focus Unit. It wasnoted that he struggled with group dynamics and literacy, and this mayhave influenced his ability to participate in treatment.38 R v Kahu [2017] NZHC 983.36 Mr Kahu participated in individual offence-focussed treatment whilein prison between November 2013 and June 2014, which consisted of18 sessions with a Departmental psychologist. The goal of treatmentwas reported as addressing his dynamic risk factors related to hisviolent offending. The treating psychologist noted that Mr Kahu waspolite and respectful throughout treatment sessions and engaged wellin treatment. He was reported to have appeared reflective andthoughtful, and was motivated to work on his difficulties, although hefound it difficult to make behavioural changes. It was recommendedthat Mr Kahu be referred to Psychological Services after his releasefrom prison in light of his very high risk of re-offending.37 Mr Kahu was offered appointments with Departmental psychologistsin the community on 22 October 2014 and 6 July 2015. On bothoccasions Mr Kahu attended the appointments, but did not consent toparticipate in assessment or treatment. This suggested that he was notmotivated to work with a psychologist at that time.38 In summary, Mr Kahu continued to re-offend up to the time of hiscurrent index offending, despite participating in various treatmentoptions over a number of years.[69] There does, however, seem to have been something of a change duringMr Kahu's most recent period of imprisonment, which is consistent with his statedintention to turn his life around. As already noted, Mr Kahu completed the STU:VO.That was between 10 February 2020 and 15 October 2020. Mr Bauer extracts thefollowing from the treatment report dated 23 November 2020:39 ... Mr Kahu demonstrated motivation to change and engaged in theprogramme, overcoming literacy challenges and self-doubt onoccasion. His participation in group discussions and wider communityactivities increased as the programme progressed, he made valuablecontributions, and he was seen to offer prosocial support andencouragement to other group members. Reported treatment progressincluded insights across all identified needs linked to the developmentof his attitudes, emotions, behaviour, and peer associations that led tohis violent offending pathway and use of weapons. While at[Te Whare Manaakitanga], Mr Kahu demonstrated behaviouralchanges and the application of skills learned. He also showed agrowing understanding of his personal barriers to healthyrelationships, and was seen to apply this understanding in hisinteractions with others with some degree of success. There wereseveral lapses reported, which included engaging in passiveaggressive communication, and an interaction in the final week inwhich Mr Kahu challenged another programme participant to a fightand threw a chair in his direction. Mr Kahu reportedly tookresponsibility for these lapses and took appropriate action afterwards,for example seeking support and apologising for his behaviour.Psychometric re-assessment on completion of the programmesuggested that Mr Kahu continued to have a pervasive mistrust ofothers, and possessed traits linked to seeing the world as a competitiveplace and prioritising his own needs over others. He was also morelikely to experience and suppress anger than other men his age, butless likely to express his anger outwardly than he was at the beginningof treatment. Mr Kahu developed "a comprehensive relapseprevention plan" which identified key areas of risk and managementstrategies. This said, it was opined that, as was normal in the changeprocess, the majority of Mr Kahu's changes were fragile and subjectto lapses. As is usual, follow-up maintenance sessions wererecommended. A gradual reintegration pathway with multi-agencyand pro-social community supports was also recommended.[70] Mr Bauer notes that a subsequent report dated 23 April 2021 records thatMr Kahu attended only three individual maintenance sessions in March and April 2021for the purpose of consolidating and applying previous treatment programme learning,but because of his transfer to another prison, had not completed the recommendedmaintenance sessions.[71] Mr Bauer further notes that in May 2022, at his own initiative, Mr Kahucommenced one-to-one counselling with a forensic mental health nurse for the statedpurpose of further addressing the impacts of his traumatic childhood abuses of variousforms and furthering his anger management/emotional regulation skills. However,Mr Kahu became increasingly demanding of health staff beyond the scheduledsessions which indicated to Mr Bauer impatience and entitlement thinking.[72] At his interview with Mr Kahu, Mr Bauer questioned him on the benefits ofthe STU:VO to him, his own insights, attitudinal and behavioural progression duringthe then current term of imprisonment, and his intentions for the future. Mr Bauersays:43 On the basis of this assessment and the STU:VO treatment report,the writer is of the opinion that Mr Kahu has derived benefits frompsychological treatment during this sentence and is practicing them aswell as he can in a prison environment. His positive behaviouralchanges while in custody are also consistent with treatment gains.This pattern appeared to continue with his engagement in Counsellingthrough the health service (although he became overly demanding ofthis service). Mr Kahu appears to have acted on his apparentmotivation to make positive changes as noted at his sentencing. Hepresented as motivated to engage further with a Departmentalpsychologist before and after his release. Mr Kahu is likely to needconsiderable psychological support (among others) in maintaining hisapparent treatment gains during his reintegration into a prosocialsector of community, being mindful of past lapses followingtreatment.[73] Mr Bauer also employed actuarial instruments for the purpose of assisting toestablish the level of risk that Mr Kahu would commit further relevant violent offencesin the community. One was the RoC*RoI.39 On the basis of a computer-generatedRoC*RoI score offenders are classified into one of five categories from low to veryhigh risk of imprisonment. Mr Kahu had a RoC*RoI score that indicated a very highrisk of imprisonment within five years of being released.[74] Mr Bauer also assessed Mr Kahu using the Psychopathy Checklist-ScreeningVersion (PCL:SV).40 Mr Kahu had previously been assessed in 2017 for the HighCourt sentencing. At that time he was found to be well above the average score forNew Zealand offenders. Mr Bauer says of that earlier testing:46 Furthermore, Mr Kahu's higher score on Factor 1 (interpersonaland affective deficits), including superficiality, grandiosity,deceitfulness, lack of remorse, lack of empathy, and difficulties takingresponsibility; indicating a higher probability of committing seriousviolent offences within two years of release into the community. HighPCL:SV scores have also been found to indicate responsivity barriersto treatment and/or management for some offenders. This findingreinforced the assessment of Mr Kahu being at very high risk ofviolent reoffending at the time of sentencing. ...[75] In his report Mr Bauer said that although the PCL:SV is a relatively stable riskmeasure, he reviewed it and reassessed it in his assessment for his report. Mr Kahuwas assessed as having demonstrated a number of positive changes which supportedreduction in scoring (and assessed risk) on both Factor 1 (interpersonal and affectivedeficits) and the behavioural facet of Factor 2 (impulsivity, lacks goals andirresponsible). Therefore, Mr Kahu was reassessed as being at high risk of violentoffending following release.[76] In the report Mr Bauer says that as a means of further assessing risk factorsrelated to Mr Kahu's violent behaviour and his key treatment needs, the violence risk39 An actuarial risk measure developed for the Department of Corrections to assist in the predictionof an offender's risk of imprisonment following reconviction. It is based on static predictors(factors unchangeable by individual effort).40 The PCL:SV is a structured assessment instrument that provides an estimate of risk of seriousreoffending which is supported by published international and New Zealand research.scale (VRS)41 was completed at the commencement of the STU:VO in December2019. He was assessed then as being in the high risk category. Mr Bauer says heupdated the VRS stages of scoring in the assessment for his report to indicate assessedchanges in Mr Kahu's dynamic risk factors, and an updated risk of violent reoffendingsuggested by this instrument. He concluded:47 Mr Kahu has demonstrated positive change across a number ofareas but these have yet to be tested across time and settings,especially in the less restrictive environment of the community. Thishas indicated some reduction in his overall assessed risk but this stillfalls in the high risk category. This probability of violent reoffendingis based on both static and dynamic risk predictors.[77] The Court questioned Mr Bauer about the score noting that the VRS does notmake a distinction between "high" and "very high" risks of further offending.Mr Bauer said that the possible scoring range for "high" is between 51 and 78. Hesaid Mr Kahu's scoring in 2017 was at the 65 mark which indicated "very high risk".[78] Mr Bauer then said the reassessed score was 59 on the VRS scale. His oralevidence was that, qualitatively, the score had moved from the very high risk range towithin the high range.[79] In summary, Mr Bauer said in terms of changes made during the most recentperiod of imprisonment:49 it is assessed that Mr Kahu is now in the Preparation stage ofchange in all the above identified dynamic risk factors, with theexception of further progression to the Action stage of change inInterpersonal Aggression and Violence During Institutionalisation.This represents a significant improvement and some mitigation inrisk. These factors have been the focus of treatment for Mr Kahu andwill provide a baseline for assessing further progress.[80] Mr Bauer then turned in his report to consider potential protective factors. Hesays they include Mr Kahu's pro-social goals and pro-social view of himself.Mr Bauer is of the opinion these are supported by his demonstrated motivationtowards achieving a different future for himself than his past lifestyle, along with41 The Violence Risk Scale (VRS) is a risk assessment tool that was developed specifically for usewith offenders to integrate information about violence assessment, risk prediction, and treatmentreadiness and change. It rates 20 dynamic factors and six static factors.behavioural evidence of change within the prison setting. Mr Bauer says the relativelynewfound connection and supportiveness of his adult children is also likely toreinforce Mr Kahu's resolve to avoid further offending. I note that the Court receivedletters from two of Mr Kahu's sisters (both of whom live in the South Island) referringto a lot of contact that they have had with Mr Kahu by video calls and by phone sincehis release on parole. They both confirm their support for him.[81] Mr Bauer says, however, that Mr Kahu will likely require substantialcommunity support in order to succeed. He says:50 Mr Kahu's acceptance by Prisoners At Risk Services (PARS) forsupported accommodation and other services is viewed as potentiallyprotective, provided that he does not disengage with them as he did inthe past before reoffending. Mr Kahu's improved literacy, newfoundwork ethic, and reported treatment gains provide him with additionalstrengths that may serve as potential protective factors in relation torelevant violent reoffending.[82] Mr Bauer says that his assessment of Mr Kahu as having a high risk ofcommitting a further relevant violent offence represents some mitigation in risk fromhis assessed risk in 2017. He says that reoffending by Mr Kahu would likely bepreceded by succumbing to stress, disillusionment or through difficulties inreintegration, a collapse in community supports and/or withdrawal from his supports,re-association with anti-social peers and/or substance abuse. He says a significanthigh risk situation would be Mr Kahu giving up and returning to a criminal lifestyle.Should Mr Kahu reoffend it is most likely to take the form of violent and/or generaloffending (such as dishonesty).[83] The expression a "very high risk" that the offender will in the future commit arelevant violent offence does not mean an immediate threat to public safety. The "veryhigh risk" criterion relates not to the imminence of the risk but its likelihood.42 Asfurther said by the Court of Appeal in Mosen:43 The high bar this criterion sets reflects the public safety justification that isrequired to be met before a person is subjected to the limits on their freedomof movement and association that an ESO entails.42 Mosen, above n 19, at [27].43 At [27].[84] Assessing the level of risk in this case is not easy. But in the end I acceptMr Bauer's opinion that the level of risk is high (but not very high). As Mr Baueraccepts, over the past five years or so during his period of imprisonment Mr Kahu hasdemonstrated a concerted effort at changing his life's pathway and addressing hisidentified risk factors. There have been observable positive results. This, however,has occurred in the structured prison environment. There will be challenges as heseeks to integrate into a pro-social lifestyle following release from the familiar prisonenvironment. Significant support will be required to assist him with what is still afragile ability to cope with rapid change and stress.[85] That support does seem to be available, at least during the period of parole,which will come to an end in September this year.[86] There is evidence that the Court heard in the course of oral evidence fromMr Bauer of Mr Kahu working at breaking some of his old habits and learning newskills in the three months since his release. One example provided by Mr Bauer fromMr Kahu's probation officer was that Mr Kahu had received a phone call from ayounger family member who was in trouble. In the past Mr Kahu, using his status asa violent person and previous gang associations, would have dealt with the issuepersonally and would have provided protection. However, after speaking to hisprobation officer about the request made to him, Mr Kahu agreed not to travel to thelocation where the events were occurring, understanding that such matters were forthe authorities, not for him.[87] Another example relayed to Mr Bauer was about friction between Mr Kahuand another person in the residence he is in, which was resolved " by verbal means,by talking it out with others and not revert [sic] to even a low level tussle or punch up". Mr Bauer said in the past Mr Kahu would have "most likely lashed outphysically".[88] The present supervision under parole is providing both a supervisory role aswell as providing coaching of new skills. Mr Bauer reported a recent conversationwith Mr Kahu's probation officer, with the probation officer saying it was a work inprogress but Mr Kahu is progressing.[89] Mr Bauer referred to a "magic twelve month period" where "things are eitherput in place or fall over". For the present, the organisation Te Pā is providingsignificant support during Mr Kahu's period of parole. But the Court understood fromMr Lloyd that some of that support would be able to continue after the end of theprobation period in September 2023. For example, alcohol and drug counselling willcontinue to be available. Similarly, contact with the assigned "navigator" (the supportworker at Te Pā) will continue to be available to Mr Kahu. That is not on a formalbasis and of course is entirely voluntary. It will depend on Mr Kahu accessing thatsupport.[90] The attenuation in risk from the previously assessed "very high risk" flowsfrom Mr Kahu's response to treatment during his most recent period of imprisonmentand since release. Of course, while in custody, Mr Kahu was in a controlledenvironment. Control is also present but to a lesser extent while on parole.[91] After his parole period ends Mr Kahu will need to access such supports thatcontinue to be available to him to continue the progress made while he was in prison.There is still a risk he will revert to his old habits and commit a relevant violentoffence, but having regard to changes he has made I assess that as a high risk, not avery high risk.Result[92] I have found that Mr Kahu possesses the relevant characteristics which thenenables the Court to go on and consider whether there is a very high risk that Mr Kahuwill in future commit a relevant violent offence. I have found there is a high risk (nota very high risk). That is insufficient to satisfy the statutory test. The application bythe Chief Executive for an extended supervision order is therefore refused._____________________________Gordon J