COREY REUBEN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 564

COREY REUBEN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 564[15 November 2023]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA258/2023[2023] NZCA 564BETWEEN COREY REUBENAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 25 July 2023Court: Miller, Moore and Palmer JJCounsel: S J Fraser for AppellantS C Carter and N J Ellis for RespondentJudgment: 15 November 2023 at 2.00 pmJUDGMENT OF THE COURTA The appeal is allowed.B The extended supervision order is quashed.C The application for name suppression is declined.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)Summary[1] On 2 May 2023, in the District Court at Wellington, Judge B Davidson imposedan extended supervision order (ESO) on the appellant, Mr Corey Reuben, for twoyears.1 Mr Reuben appeals. He also applies for name suppression.[2] We hold that, on the evidence before the Court and having regard to thelimitation of rights inherent in an ESO, Mr Reuben is not at high risk of committingfurther relevant sexual offences. We uphold the appeal and quash the ESO. Wedismiss the application for name suppression.What happened?Offending[3] Mr Reuben, now aged 23, has a history of sexual offending:(a) [Redacted].(b) Around 5.30 pm on Friday 24 November 2017, in a supermarket inLower Hutt, Mr Reuben pulled his penis out of his shorts and swung itaround for two seconds, while in close to proximity to two femalemembers of the public, including a young girl. He was convicted ofdoing an indecent act in a public place.2(c) That night, around 1 am on Saturday 25 November 2017, Mr Reubenfollowed, grabbed, and assaulted a woman on Allenby Terrace incentral Wellington. He started choking her, pushed her to the ground,knelt on her, and pulled his penis out. He masturbated and ejaculatedinto her mouth, and over her hair and clothing. He took her wallet and1 Chief Executive Department of Corrections v Reuben [2023] NZDC 8109 [District Courtjudgment] at [63].2 Crimes Act 1961, s 125. Maximum penalty of two years' imprisonment.cellphone. He was convicted of sexual violation by unlawful sexualconnection, injuring with intent to injure, and theft.3 We refer to thesexual violation offending as the index offending.[4] On 20 July 2018, Mr Reuben pleaded guilty to the 2017 charges. He wassentenced to four years' imprisonment for the index offending and, concurrently, to12 months' imprisonment for the indecent act, 12 months' imprisonment for injuringwith intent to injure, and nine months' imprisonment for theft.4 Judge P J Butler notedMr Reuben, then aged 18, had significant mental health problems, had no home orcommunity support, and suffered from substance abuse and a binge-drinking pattern.5[5] Around 2 pm on 22 June 2021, at his cell window in Rimutaka Prison,Mr Reuben made a masturbating action to a woman standing outside the wing.He then smiled at her, exposed his penis, and masturbated. He pleaded guilty to acharge of doing an indecent act in a public place after accepting a sentencing indicationon 18 May 2022.6 He was ordered to come up for sentence if called upon. However,the Judge noted that, if an ESO was not granted, Mr Reuben would be sentenced tosupervision for this offending.[6] While he was in custody from 2017 to 2021, Mr Reuben is recorded by theDepartment of Corrections as indecently exposing himself to prison staff, nursingstaff, and other health professionals at the prison 44 times. Corrections thought thatwas likely an underestimation. Mr Reuben explained to the District Court that it wastrue, was always to female staff and "the main reason was boredom, but also sexualarousal or low mood, and interest in how the targeted staff member would respond".7He said he was sometimes laughed at, sometimes ignored, and on 16 occasions givena misconduct. He claimed one of the therapists engaged in sexual behaviour with him.3 Sections 128(1)(b), 128B(1), 189(2) and 223(c). Each offence carries a maximum penalty ofimprisonment for 20, five, and one year respectively.4 R v Reuben [2018] NZDC 14849 at [22]–[23].5 At [16].6 Crimes Act, s 125(1). Maximum penalty of two years' imprisonment.7 District Court judgment, above n 1, at [22].Application and release[7] On 6 September 2021, before Mr Reuben's release date from prison on29 November 2021, the Department of Corrections applied for an ESO for five years.Until it was heard, an interim supervision order (ISO) was granted, by consent, on23 November 2021. Post-release conditions applied to Mr Reuben until 28 May 2022.[8] The application for an ESO was supported by two reports from a healthassessor, Mr Lance Thompson, dated 26 July 2021 and 23 September 2022.Mr Reuben's opposition to the ESO application was supported by a report fromMr Alexander Skelton dated 26 January 2022.[9] Since his release, while subject to the conditions of the ISO, Mr Reuben haslived with his partner. He has a son with her, has had employment training, has familyin the area, and is supported by a local marae. He has complied with the conditions ofthe ISO.Decision under appeal[10] The District Court heard the evidence of Mr Thompson and Mr Skelton inrelation to the ESO application on 18 July 2022. The hearing was adjourned to allowfor an updated report from Corrections, which was completed on 20 March 2023.On 2 May 2023, Judge Davidson held that the criteria of imposing an ESO were met.8He held an ESO would be justified for three and a half years so, given the ISO hadbeen in place for a year and a half, he imposed an ESO for a further two years.9 Thespecial conditions included:(a) to attend psychological and alcohol and drug assessments and attend,participate and complete any recommended treatment as directed by aProbation Officer;(b) to submit to electronic monitoring; and8 District Court judgment, above n 1, at [56]–[57].9 At [62]–[63].(c) to remain at his approved address between 9 pm and 6 am every dayexcept with prior written approval of a Probation Officer.Law of extended supervision orders[11] The Parole Act 2002 provides, relevantly:107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protectmembers of the community from those who, following receipt ofa determinate sentence, pose a real and ongoing risk of committingserious 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 inthe health assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serioussexual or 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:[12] The standard conditions of the ESO under ss 107J and 107JA includerequirements to report to a probation officer, to obtain consent of the probation officerbefore moving to a new residential address or obtaining new employment orassociating alone with a person under 16, to allow the collection of biometricinformation, to take part in a rehabilitative needs assessment if and when directed todo so by a probation officer, and not to associate with or contact victims.[13] In Chief Executive, Department of Corrections v Alinizi, this Court set out thethree-step process for determining whether an ESO should be made:10(i) the Court must determine whether the offender has, or has had, apervasive pattern of serious sexual or violent offending;(ii) the Court must make specific findings as to whether the offendermeets the qualifying criteria set out in s 107IAA; and10 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].(iii) if those criteria are met the Court must make a determination aboutthe risk of the offender committing a relevant sexual or violentoffence.[14] In Mosen v Chief Executive of the Department of Corrections, this Courtconsidered a human rights challenge to the ESO regime and held:11[31] [I]f the statutory criteria are met, a court must balance the right notto be subject to a second penalty (that is, being subject to an ESO when aperson has served his sentence for a relevant [sexual] offence) against thestatutory purpose to protect the public from the very high risk that an offenderwill commit a relevant [sexual] offence. Put more simply ... "strongjustification" is required for an ESO and this is the "lens" through which thisCourt must assess whether the Judge erred in making the order.[15] This Court also said in Kiddell:12[27] Finally, an ESO engages BORA-protected rights. This Court haspreviously held that the ESO regime creates a retrospective double penalty, socontravening s 26 of the New Zealand Bill of Rights Act 1990, but nonethelessmust be given effect under s 4 of that Act. The Supreme Court has recognisedthat the Parole Act's statutory purpose requires that courts not be deniedclearly relevant information when deciding whether an offender is eligibleunder s 107I for an ESO. But when deciding whether to make an ESO, andfor how long, courts must recognise that the order may impinge substantiallyupon the offender's freedom of movement and association. These rights mustbe borne in mind when deciding both whether the offender has or had thenecessary pervasive pattern of serious sexual offending and whether theoffender presents a high risk of future serious relevant offending.[16] The District Court here quoted the passage from Mosen quoted above andexplicitly proceeded on the basis that there must be a strong justification for an ESO.13[17] Mr Fraser, for Mr Reuben, submits as a stand-alone issue that there is no strongjustification for an ESO here. Mr Reuben has spent over a year in the communitywithout any allegations of sexual offending. The Court had other, less restrictive,options available which were not addressed, including supervision for a minor charge.But it imposed no penalty for them. Strong justification is not suspicion or aninference that there might be serious offending if circumstances change.11 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 (footnote omitted).12 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 (footnotes omitted).13 District Court judgment, above n 1, at [10].[18] Ms Carter, for Corrections, acknowledges the limitations imposed by an ESOand the importance of refraining from imposing secondary penalties or infringing uponrights unless there is a strong justification to do so. She submits there is strongjustification for an ESO, given expert evidence of high risk of offending, the seriousnature of the index offending, and the repeated and persistent serious sexual offendingthat occurred even when in custody.[19] The ESO regime as enacted by Parliament restricts a person's rights andfreedoms even though they have already served a sentence for their relevant crimes.It is based on there being a pervasive pattern of serious sexual offending and a highrisk of the person committing a further relevant sexual offence. We examine belowwhether those two requirements are satisfied here. The current case law makes clearthat, in doing so, we must bear in mind the impact of the ESO on rights and freedoms.Issue 1: Is there a pervasive pattern of serious sexual offending?Law[20] The first step is to determine whether the offender "has, or has had, a pervasivepattern of serious sexual or violent offending" under s 107I(2)(a). Section 107H(2)provides that a court considering an application for an ESO may receive and take intoaccount any evidence or information that it thinks fit for the purpose of determiningthe application, whether or not it would be admissible in a court of law. Appellatecourts have held on a number of occasions that, accordingly, the court is not confinedto considering offending that has resulted in convictions.14[21] We note that we can find nothing explicit in the legislative history whichexplains why s 107I(2)(a) extends to an offender who "has had" a pervasive pattern ofoffending. The requirement to determine that an offender "has, or has had a pervasivepattern of serious sexual or violent offending" was not introduced into the Parole Actuntil 2014.15 As discussed recently by Te Aka Matua o Te Ture | The Law14 See, for example, Holland v Chief Executive of the Department of Corrections [2016] NZCA 504at [42] affirmed in Holland v Chief Executive of the Department of Corrections [2017] NZSC 161,[2018] 1 NZLR 771 [Holland (SC)] at [13]; Kiddell, above n 12, at [22]; and Wardle v ChiefExecutive of the Department of Corrections [2017] NZCA 298 at [39].15 Compare Parole Act 2002, s 107I(2) (as at 8 July 2004) and Parole Act 2002, s 107I(2) (currentversion).Commission, it is probable that the introduction of ESOs was a direct response toconcerns of the Department of Corrections about certain individuals who were due tobe released from sentencing.16 It is likely the change to the test in 2014 was alsoreactionary.17 As the Commission reports, there is no research or clear reasoning tosupport the test in s 107I(2)(a).18 But the wording of the text of the Act is clear and itsmeaning was not disputed by either of the parties here.[22] In 2017, in Wardle v Chief Executive of the Department of Corrections, thisCourt stated:[44] Seen on its own, the conduct for which Mr Wardle was convicted in1993 is not serious compared with the range of potential sexual offending.However, given that it was the first sexual offending of which Mr Wardle wasconvicted, the penalty imposed was not insignificant. The fact that the seriousoffending of 1995 followed within a comparatively short time and alsoinvolved young complainants may, in retrospect, be seen as part of a pattern.The pattern further developed in 2008 with a further indecent assault on amuch younger complainant. Although not as significant as what occurred in1995, this was still a significant indecent assault. By this stage, its seriousnesswas aggravated by Mr Wardle's past history.[45] This was then followed by the 2012 offending, which again involveda significant indecent assault. The complainant was not as young asMr Wardle's previous complainants, but there was again a significant agedisparity, of about 35 years. By this stage, Mr Wardle's past history was aseriously aggravating factor. In all the circumstances, we consider thatMr Wardle has a pervasive pattern of serious sexual offending thatcommenced in 1993.[23] Also in 2017, in Holland v Chief Executive of the Department of Corrections,the Supreme Court stated:19[13] The scheme of the legislation reinforces the view that the phrasesexual offending should be given its ordinary meaning. The term sexualoffending must be construed in light of the ESO regime as a whole. It wouldbe very odd if the offending against the Classification Act could be taken intoaccount for eligibility and assessing risk but not for assessing whether there isa pervasive pattern of serious sexual offending. That would deprive the courtof clearly relevant material at one stage of the assessment.16 Te Aka Matua o Te Ture | Law Commission Hapori whānui me te tangata mōrea nui: he arotakeo te mauhere ārai hē me ngā ōta nō muri whakawhiu | Public safety and serious offenders: areview of preventive detention and post sentence orders (NZLC IP51, 2023) at [1.27].17 See (3 July 2014) 700 NZPD 19217; and (2 December 2014) 702 NZPD 1027.18 Te Aka Matua o Te Ture, above n 16, at [8.36].19 Holland (SC), above n 14.[24] In 2019, in Kiddell v Chief Executive of the Department of Corrections, thisCourt held:20[23] Sixth, a pervasive pattern is one that is sufficiently characteristic ofthe offender to serve as a predictor of future conduct. We make several pointsabout this:(a) In ordinary usage, to be pervasive is to be present throughout. Theadjective is here used in connection with the behaviour of a person,and the legislation also identifies certain relevant traits orcharacteristics: an intense drive to commit relevant sexual offences, apredilection for serious sexual offending, limited self-regulatorycapacity and an absence of responsibility or an absence ofunderstanding of victim impact. It is for these reasons that we havedefined a pervasive pattern simply, as a pattern that is characteristic ofthe offender.(b) The pattern must be sufficiently pervasive to serve as a predictor offuture conduct; we adopt that purposive standard because the patterndetermines whether the offender is susceptible to an ESO.(c) In ordinary usage "pattern" connotes regularity but a pattern may takeany form or sequence. A pattern that includes relevant but less seriousconduct may be found pervasive.[25] This approach has been applied in other relevant judgments of this Court:(a) In Talatofi v Chief Executive of the Department of Corrections, thisCourt held that two incidents of serious sexual offending in 1992 and2014/2015 did not constitute a pattern that was pervasive.21 They werenot "characteristic of Mr Talatofi such that they [served] as a predictorof future conduct".22 The Court held that less serious offending in1989, in which the sexual component could have been incidental, andin 2009, which was primarily violent, were not part of the pattern.23(b) In Taakimoeaka v Chief Executive of the Department of Corrections,this Court held that there was a unifying theme or pattern in two seriousepisodes of offending by rape, unlawful sexual connection, andattempted unlawful sexual connection in 2005 and by unlawful sexual20 Kiddell, above n 12, at [23] (footnotes omitted).21 Talatofi v Chief Executive of the Department of Corrections [2021] NZCA 258 at [40]–[41].22 At [40].23 At [36].connection, assault with intent to commit rape, and indecent assault in2013.24 It held that was sufficiently pervasive to serve as a predictor ofMr Taakimoeaka's future conduct.25(c) In Chief Executive of the Department of Corrections v Coleman, thisCourt held that two serious episodes of offending (by indecent assaultin 2011 and sexual exploitation of a person with a significantimpairment in 2014) showed a pattern of Mr Coleman forcing himselfon young women.26 His subsequent offending was more minor. TheCourt held that the minor offending reinforced the pattern of seriousoffending in 2011 and 2014.27Evidence[26] Mr Thompson noted in his report of 26 July 2021 that Mr Reuben's behaviourin prison included "a pervasive, ongoing pattern of sexual exposure". This, togetherwith his known offending and his engagement with Wellstop, a programme designedto support people who have demonstrated harmful or concerning sexual behaviour, asa teenager, suggested to Mr Thompson that Mr Reuben had "a lifespan pattern ofproblematic and likely compulsive sexualised behaviour". Mr Thompson noted of theindex offending:12 The author would note that although this was the sole instance ofknown contact offending there are shared precipitants and behaviouralsimilarities between this series of offences and his noncontact offending.Specifically, in both his contact and noncontact offending some level ofproximal planning was evident. In the index offence he followed the victimto a secluded area and forcibly subdued her then stole her phone in an apparentattempt to avoid being reported. In his prison-based sexually harmfulbehaviour he would wait until he believed he was visible to one or two femalevictims before he would expose himself, often masturbating as in his indexrelevant offence. In at least one instance a male custodial officer arrived whenhe had expected a female officer and he had accidentally exposed himself tothem. In this instance he stated he had expected a female officer.24 Taakimoeaka v Chief Executive of the Department of Corrections [2021] NZCA 467 at [29].25 At [29].26 Chief Executive of the Department of Corrections v Coleman [2021] NZCA 528 at [19].27 At [19].[27] Mr Thompson's evidence on Mr Reuben's patterns of offending, in the contextof assessing future risk, was:Q. Now you mentioned, and this is just to break down your last comment,you mentioned the singular range and it appeared that you werediscussing the index offending relative to the indecent exposure. Areyou able to just break that down more in terms of your comment aboutthere being shared risk factors?A. Mr Reuben has engaged in a lifelong pattern of either problematicharmful sexual behaviour throughout his life. It has been quiteentrenched and although it may appear that the index contact offenceis different in some ways to the exposure based offending, there are anumber of shared features that go along with it and the risk factorsthat underly [sic] them are very similar. So I would see this as a seriesof points in a pattern, rather than being distinct behaviours in ofthemselves. So in my assessment, I have looked at the clinicallyrelevant and research based risk factors that are able to give us anestimate of future likelihood of offending and believe that they areshared across the behaviours.Q. So your analysis is that the fact of a matter being an indecent exposureper se, is not the critical factor. The critical factor is what are theunderlying similar shared risk presentations?A. Yes. I would consider the index contact offence to be a more severeversion of an overall pattern of behaviour rather than being clear anddistinct from the broader range of harmful sexual behaviour that hasbeen displayed.Q. In terms of potential risk moving forward of serious sexual offendingare you able to make any comment as to whether that would – the riskis – specifically pertains to contact or non-contact offending or is thatnot the right way to frame that question?A No. I – my clinical position is that you cannot distinguish between thetwo based on the shared risk factors and the overlap between the riskfactors. The way that I conceptualise Mr Reuben's behaviour is thatthe raw pattern of harmful sexual behaviour is largely consistent andquite coherent. It does form a pattern but that the contact indexoffence was sort of the height of that. It was the apex. The riskmeasures as they stand don't allow you to pull apart the risk forspecific subtypes of sexual offending.District Court decision on pervasive pattern[28] The District Court held that "serious sexual offending" is to be given itsordinary meaning having regard to the purposes of the ESO regime, is not limited tocontact offending, and may include non-contact offending.28 It held that "[r]epeatedlower-level offending can be regarded as serious sexual offending".29 It concluded:[24] Mr Reuben's indecent exposure and masturbation (both in publicand prison) is so prevalent that in combination with the index offending apervasive pattern of serious sexual offending is demonstrated. It is worthy ofnote that he has exposed himself, and at times masturbated, in various settingsincluding prison, health interviews, at a supermarket and in public during theindex offending itself. The pattern emerges from the ongoing similarity inconduct. No one specific instance of exposure or masturbation would beenough but, in my view, a clear pattern emerges from its enduring and repeatednature. As a result it is a pervasive pattern of serious sexual offending.Submissions[29] Mr Fraser submits the pattern was not of serious sexual offending. Low levelindecent exposure to prison staff is not serious sexual offending. There is only oneinstance of serious sexual offending in Mr Reuben's history. The cases of Wardell andKiddell both involved children, which is more serious. Finding a pervasive pattern ofserious offending here would set a new precedent. One serious event and a clump oflow-level events do not make a pervasive pattern. The index offending was seriousbut was a long time ago relative to his life to date. Mr Reuben has had treatment sincethen and is older and there have been no allegations of any offending since he has beenout of prison.[30] Ms Carter submits that Mr Reuben's conduct shows a pervasive pattern ofserious sexual offending. The enduring and repeated nature of the incidents in asupermarket, a prison cell, and during health appointments heightens those incidentsto that of serious offending and a clear pattern has emerged. There are repeatedinstances of masturbation which escalated in the index offending. The Judge wascorrect to find a pervasive pattern of serious sexual offending.Pervasive pattern of serious sexual offending[31] Whether the overall pattern of offending that is characteristic of an offender isof serious sexual offending is determined by assessing the pattern as a whole. As thisCourt held in Kiddell, a pattern that includes relevant but less serious conduct can be28 District Court judgment, above n 1, at [20].29 At [20].found to be pervasive. Whether it does or not, depends on the particular nature andcircumstances of the pattern of the individual offender. This is a matter of judicialevaluation.[32] The cases of Wardle, Holland, and Kiddell involved sexual offending againstchildren and/or young people. In that context, the less serious offending did not detractfrom the overall patterns in those cases being of serious sexual offending. InTaakimoeaka two episodes of serious offending constituted a pattern. In Talatofi, twoserious incidents did not constitute a pervasive pattern and two incidents of less seriousoffending did not make a difference to that conclusion. In Coleman, two seriousepisodes of offending constituted a pattern of the offender forcing himself on youngwomen and more minor offending reinforced that.[33] Here, we accept that Mr Reuben has demonstrated a pattern of problematic,harmful sexual behaviour throughout his life. On one occasion in 2017, preceded bya more minor incident, Mr Reuben quickly gravitated to serious sexual offending.There have been many other occasions since that offending when minor incidents havenot gravitated to serious offending. That suggested that the impulse to offendcontinued. If those incidents in prison carried the potential to gravitate to more seriousoffending, they could not do so because of institutional constraints.[34] Mr Thompson's expert evidence is that the index offending was a more severeversion of an overall pattern rather than being distinct from the broader range ofharmful sexual behaviour. He considered the pattern was largely consistent and quitecoherent. Some level of planning was present in both the serious offending and theless serious incidents. On the basis of Mr Thompson's opinion, and the nature andfrequency of the prison incidents, we consider Mr Reuben has had a pattern of serioussexual offending up until his release from prison on 29 November 2021.[35] Accordingly, and having regard to the limitation of rights inherent in an ESO,we conclude that the Judge was correct that Mr Reuben "has had" a pervasive patternof serious sexual offending. The requirement of s 107I(2)(a) is satisfied.Issue 2: is there a high risk of future sexual offending?Law[36] For an ESO to be imposed, s 107I(2)(b)(i) requires the Court to be satisfiedthat there is a high risk that the offender will in future commit a relevant sexualoffence. Section 107IAA expands upon the matters of which the Court must besatisfied when assessing whether there is a high risk of committing future sexualoffending:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a 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 forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.Evidence[37] Mr Thompson's opinion was that Mr Reuben met each of the thresholds ins 107IAA(1)(a)–(d). The following paragraph encapsulates Mr Thompson'sassessment of Mr Reuben's risk in his report of 22 September 2022:34. Consideration of empirically validated risk measures includingchanges made since the last period of assessment indicate that Mr Reubencontinues to present with a Well Above Average risk of sexual reoffending.As previously indicated, this would most likely present as indecent exposuredirected towards females of a broad array of ages. However, given his indexoffence involved contact offending this cannot be ruled out in future if MrReuben's personal circumstances deteriorate. In the author's opinion this riskwould be amplified in the context of use of synthetic cannabis, alcohol, orother disinhibiting substances. Mr Reuben currently has limited internal skillsto manage his risk of reoffending and would be best supported throughexternal risk mitigation strategies and supports who are well versed in his riskand safety plan. Although his current circumstances have significantlystabilised they revolve around a very limited number of key supports includinghis Probation Officer who will no longer be working with him once offsentence. The author would reiterate that his assessed mental health diagnosesand well documented behaviour across time continue to be relevant and theindividual treatment he has accessed has not yielded the insight or self-regulatory strategies necessary to independently mitigate his risk. Aspreviously indicated, it would appear his oppositionality and personalitystructure/trauma impair his willingness to adhere to rules, expectations, and inmany cases support. This has likely contributed to his current lack ofmotivation for further treatment alongside a sense of abandonment followingthe premature cessation of recent risk-relevant treatment.[38] In that report, Mr Thompson also stated:27. Overall, when change made through risk-related intervention is takeninto account alongside his recent stabilisation in personal circumstances MrReuben continues to fall within the Level IVb, Well Above Average range.Further, it is the opinion of the author that much of the observed and reportedstabilisation in his personal circumstances appears to be supported by hiscurrent partner and engagement with his Probation Officer rather than his ownability to mitigate his assessed risk level. This opinion is based on his criminalhistory, assessment of his behaviour in prison and upon release, review of hisoverall support structure, assessment of his progress and retention of risk-related intervention, and noted behavioural indicators. Although this risk ismost likely to manifest in the form of non-relevant offences as his indexoffence is relevant it remains a part of his repertoire. Should he experience asignificant period of decompensation (particularly if he were to be disinhibitedby substances) his risk of a relevant offence is likely to increase.[39] Mr Skelton's opinion, however, was:82. Although Cory is currently assessed at a well above average risk ofsexual offending, the predicted sexual risk is for indecent exposure and notcontact sexual offending. Cory has not demonstrated an intense drive orpredilection for relevant or serious sexual offending, he accepts responsibility,has shown remorse for his contact sexual offence, and is equipped to avoidfurther sexual offending. Accordingly, in this case, the writer does not supportthe imposition of an Extended Supervision Order.District Court decision[40] The District Court held the s 107IAA factors were demonstrated:[38] I conclude Mr Reuben continues to display an intense drive, desire, orurge to commit a relevant sexual offence. If destabilised and if his prosocialsupport mechanisms collapse there is a high risk his drive, desire, or urge willagain manifest itself. It is vital, as Mr Thompson notes, to appreciate that hispervasive non-contact sexual offending occurred where his access to victimswas limited by various enforced controlling factors (a prison environment); inother words the intensity of his drive, desire or urge was curbed by the dailyrestrictions of prison life.[43] This aspect [of a predilection or proclivity for serious sexualoffending] is made out. Clearly Mr Reuben has, at the very least, an inclinationtowards what I conclude is serious sexual offending; repeated exposure andmasturbation over a long period of time. This shows an inclination towardswrongdoing.[46] Again, I see this criteria [of limited self-regulatory capacity] as madeout. What must be borne in mind is that this criteria focuses on Mr Reuben'sself-regulatory capacity (ie. internal to him).[47] It does not focus on external regulatory controls. It is clear that MrReuben has responded to several external controls, but it cannot be said thatthese, at this stage, have of themselves reduced his personal regulatorycapacity. I would see that as a much longer process.[50] Again, in my view, this criteria [of lack of acceptance of responsibilityor remorse or an absence of understanding about the impact of his offending]is made out. At best Mr Reuben has shown some acceptance of responsibilityor remorse for the index offending, but continues to display an absence ofunderstanding or concern about the impact of his other sexual offending onactual or potential victims.[51] In summary, I conclude Mr Reuben displays an intense drive tocommit a relevant sexual offence; he has an inclination towards serious sexualoffending (repeated exposure and masturbation); his self-regulatory capacityparticularly in relation to such offending is limited although he has respondedwell to external regulatory controls; while showing some acceptance ofresponsibility or remorse for the index offending he has an absence ofconsideration for actual and potential victims of his exposure andmasturbation.[41] The District Court's overall assessment of risk noted:[53] It is very clear that Mr Reuben has made genuine progress since hisrelease on parole and the imposition of the ISO. This progress includes hisrelationship, the birth of his son, employment training, whanau andcommunity support, continued therapy sessions, remaining largely offencefree and largely adhering to various conditions.[42] The Court quoted Mr Thompson's conclusion that Mr Reuben had a "WellAbove Average" risk of sexual reoffending, which would most likely be indecentexposure but contact offending "cannot be ruled out in future if Mr Reuben's personalcircumstances deteriorate".30 The conclusion also identified that the risk would beamplified through drug or alcohol use and his current circumstances, while stable,revolve around a very limited number of key supports including the Probation Officerwho would no longer work with him after the sentence is complete.[43] The Judge considered that Mr Reuben still poses a high risk of committing arelevant sexual offence for seven reasons:56.1 his sexual offending, including the index offending, spans a period inexcess of 5 years from March 2016 to July 2021. It includes bothcontact and non-contact offending. His non-contact offending haslargely occurred in circumstances where his contact risk is reduced byexternal controls (prison/supermarket). Despite this his non-contactoffending has continued and in the presence of prison and healthworkers whose very presence might be expected to curb and controlsuch offending;56.2 his index offending was very serious, forcing oral sex in a randomway on a vulnerable member of the public;56.3 the index offending occurred following various precursorsdestabilising his life;56.4 he is still relatively young; his relationship is still relatively brief; hehas a young child; such circumstances are stressful and difficult andmust carry a risk of destabilising;56.5 Mr Thompson concludes he remains well above average risk ofcommitting a relevant sexual offence;56.6 virtually all his risk management is external;56.7 his self-regulatory capacity is limited and largely untested.Submissions on risk[44] Mr Fraser acknowledged that a court may find there is a high risk of offendingeven if expert evidence does not suggest that, but submits that should not normally bethe case. Here, neither psychologist was conclusive in considering that the criteria forbeing at high risk of offending were clearly met. One expert said Mr Reuben was not30 At [54].at high risk and the other used words such as "well above average" and contactoffending "cannot be ruled out" if his circumstances deteriorated. This is not theidentification of a high risk. It is speculative and conditional. He emphasises thatMr Reuben has not offended at all while he has been with his partner. The indecentexposure incidents at prison were not relevant sexual offences.[45] Ms Carter submits that the Judge was correct that each of the criteria ins 107IAA of the Act are met, due to Mr Reuben's significant history, repeated sexualoffending, and Mr Thompson's conclusions. The exercise is forward-looking. Thelack of offending since release reflects the support provided by probation officers andhis partner. Further serious sexual offending is a real possibility if Mr Reuben'sestablished prosocial support mechanisms collapse. The Judge properly had regard tothe restrictive environment Mr Reuben had been in since the index offending. Thiscase is analogous to Kiddell where most of the offending was non-contact but adefendant's history indicated he would escalate to contact offending if the victim doesnot resist.High risk[46] In his first report, Mr Thompson concluded that Mr Reuben presented a"Well Above Average" risk of committing a further relevant sexual offence, whichwould most likely take the form of exposure-based offending. He considered contactoffending "must be considered an ongoing potential outcome of his enduring risk".His second report effectively reiterated that while noting that Mr Reuben's personalcircumstances had stabilised.[47] Although a health assessor's report is useful evidence in helping the court toassess the risk the offender poses, the decision still lies with the judge — not the healthassessor.31 The Judge here gave seven reasons for finding that Mr Reuben still presentsa high risk of committing a relevant sexual offence. Each of those points is accurate:Mr Reuben's sexual offending spanned more than five years; his non-contactoffending continued in prison; his index offending was very serious following31 See McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8HRNZ 770 at [46] citing Barr v Chief Executive of the Dept of Corrections CA60/06,20 November 2006 at [32].destabilisation of his life; he is still relatively young and having a young child can bestressful; Mr Thompson concludes his risk is well above average; virtually allMr Reuben's risk management is external; and his self-regulatory capacity is limitedand largely untested.[48] However, we do not agree that, individually or together, those points lead tothe conclusion that Mr Reuben currently displays an intense drive, desire, or urge tocommit a relevant sexual offence.32 With that requirement not satisfied, the conditionsfor imposing an ESO under s 107IAA are not met. But even if those conditions weremet, we do not consider the Court could be satisfied he poses a high risk of committinga relevant sexual offence. The reasons for both of those conclusions are the same.[49] By the time of the District Court ESO decision in May 2023, Mr Reuben hadnot committed any sexual offence, contact or non-contact, since he was released fromprison in November 2021. His circumstances are stable. There is always a riskcircumstances will change. But ss 107I(2)(b)(i) and 107IAA requires assessment ofwhether there "is" a high risk. The Court is concerned with Mr Reuben's current risk,not his potential future risk.[50] Furthermore, the expert psychological evidence of Mr Thompson concerns awell above average risk which relates to exposure offending. But the exposure-basedoffences here are not "relevant" offences as defined by s 107B of the Act.Mr Thompson's expert evidence does not suggest that Mr Reuben is at high risk ofcommitting a relevant sexual offence, which is what ss 107I(2)(b)(i) and 107IAA(1)require. The expert psychological evidence of Mr Skelton does not support an ESOat all. The Judge's findings that there is a high risk if certain conditions occur in thefuture, and that Mr Reuben has an inclination to serious sexual offending, are notsufficient. Neither is Ms Carter's submission that serious sexual offending "is a realpossibility" equivalent to there being a high risk.[51] Having regard to the limitation of rights inherent in an ESO, we do not considerthat the evidence before the Court supports a finding that Mr Reuben is currently athigh risk of committing a relevant sexual offence.32 Parole Act, s 107IAA(1)(a).Issue 3: name suppression[52] Mr Reuben seeks name suppression for the appeal under s 200(2)(a) of theCriminal Procedure Act 2011.33 That requires, relevantly, that the Court must besatisfied that publication would be likely to cause extreme hardship to Mr Reuben ora person connected with him. Mr Fraser submits that it can be inferred that publicationof his name is likely to cause extreme hardship to himself, his partner, and his son.[53] Ms Carter opposes name suppression.[54] Extreme hardship is a high threshold for the applicant to meet, connoting avery high level of hardship.34 That is required to avoid dilution of the strongpresumption in favour of open justice and to provide adequate protection for freedomof expression.35[55] There is no evidence from a medical professional or anyone else of what thenature or extent of the extreme hardship here is said to be. Mr Reuben has offeredinsufficient evidence to show he or his family will experience extreme hardship. Evenif there were extreme hardship, the competing public interest militates againstsuppression. Mr Reuben's name was not suppressed in the original sentencingdecision. As Mr Fraser acknowledges, there is already material about him on theinternet in relation to the index offending. There is public interest in the circumstancesof the ESO being publicly available. There are no grounds for it to be suppressed here.Result[56] The appeal is allowed.[57] The extended supervision order is quashed.[58] The application for name suppression is declined.Solicitors:Crown Solicitor, Wellington for Respondent33 Section 200 of the Criminal Procedure Act 2011 applies by virtue of s 107G(10) of the Parole Act.34 Robertson v Police [2016] NZCA 7 at [48]–[49].35 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].