Department of Corrections v M [2020] NZHC 220

Department of Corrections v M [2020] NZHC 220 [20 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-312[2020] NZHC 220BETWEEN DEPARTMENT OF CORRECTIONSApplicantAND MRespondentHearing: 5 and 9 December 2019Counsel: BD Tantrum and NE Town for applicantCG Wright for respondentJudgment: 9 December 2019Reasons: 20 February 2020REASONS JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 20 February 2020 at 11:30 am.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandPublic Defence Service, AucklandIntroduction[1] On 5 and 9 December 2019, I heard the applicant's (the Department's)application for an extended supervision order (ESO) in relation to the respondent. Atthe conclusion of the hearing, I declined the application. I stated that my detailedreasons for doing so would follow, but in summary, that I was not satisfied:1 M displays either or both the characteristics set out in s 107IAA[1](d) ofthe Parole Act 2002 (Act) concerning lack of acceptance of responsibility orremorse; and/or an absence of understanding for or concern about the impactof the offending on actual or potential victims). I also have real doubts as towhether that characteristic set out at s 107IAA[1](a) (an intense drive, desire,or urge to commit a relevant sexual offence) is presently possessed by M[2] This judgment sets out my detailed reasons for declining the Department'sapplication.Factual background[3] M's early childhood environment was generally described in the materialsbefore me as abusive, in which he was subject to physical and sexual abuse by adultsknown to him, as well as bullying from his peers.[4] It is suggested that at some stage prior to his first recorded sexual offence in1992, M was charged with sexual offences against a complainant who was aged14 years at the time. A report pursuant to s 121 of the Criminal Justice Act 1985 notedthat M was charged after he had approached the Police to confess his offending. Hewas convicted and subject to periodic detention. I note that there is no formal recordof this on M's conviction history.2[5] M was convicted for further sexual offending in 1992 at the age of 21, on acharge of sexual intercourse with a female aged 12 to 16 years old. While nodocumentation was available in relation to this offending, M reported that he met a12-year-old female at a party, though was under the impression she was 17. Theybegan living together almost immediately after meeting and she fell pregnant to him.1 Chief Executive of the Department of Corrections v M [2019] NZHC 3231 at [3].2 However, the Court may consider any information that it thinks fit for the purpose of determiningthe application, whether or not it would be admissible in a court of law. Parole Act 2002, s107H(2).M stated that when he later discovered she was under Social Welfare care and livingin a foster home, and after becoming aware of her actual age, he voluntarily attendedon the Police and confessed to the relationship.[6] Shortly thereafter, M began a relationship with a woman who he eventuallymarried and was with for some 14 years. The relationship was troubled, and therewere frequent separations. The couple had five children together.[7] In 2005, M was convicted of one count of sexual violation by rape of a femaleunder 12, five counts of sexual violation of a female under 12 and two counts ofinducing a female under 12 to do an indecent act. The offending was against M's twodaughters, over a period of approximately 4 and a half years.[8] Although M's trial for this offending had taken place in the District Court, theCrown sought a sentence of preventive detention. The matter was accordinglytransferred to the High Court and M was sentenced by Allan J on 21 February 2006.[9] M had to that point denied his offending. But in a second pre-sentence report,he was recorded as having acknowledged his offending and expressed deep regret forthe harm caused. When sentencing M, Allan J stated:3You have even indicated you are willing to be de-sexed as you put it, to preventyou from offending in the future. While on remand you have attended a lifeskills programme, and you have indicated your willingness to attend furtherprogrammes while in custody, such as the programme at Te Piriti.[10] Allan J made the obvious point that while M's dramatic change of mind waswelcome, it did require careful consideration, and it was regrettable it had not comebefore trial and thus spared his daughters the ordeal of giving evidence.[11] Turning to whether a sentence of preventive detention should be imposed,Allan J considered the case finely balanced. Ultimately he did not consider itappropriate to do so. He nevertheless said: "M, to some extent you are getting the3 R v M HC Auckland CRI-2004-90-7513, 21 February 2006 at [11].benefit of a doubt".4 He sentenced M to 15 years' imprisonment with a minimumperiod of imprisonment of nine years.[12] As matters have transpired, it seems M's attitude at the time of sentencing,while belated, was genuine. During his time in custody, he completed the child sexoffender special programme, Te Piriti, in 2014 and 2015. By all accounts heparticipated successfully in that programme. He was also prescribed medication forhis anxiety, which was followed by a significant improvement in his self-management.[13] M was released on parole on 13 March 2017. Since that time, he has beenunder intense supervision and management.5[14] M is now 49 years of age. He lives at a Housing New Zealand apartment inGreys Avenue in Central Auckland. At the time of the hearing before me, he wasunemployed, but engaged in employment-related training and counselling. He ismotivated to seek gainful employment. Counsel for M, Mr Wright, acknowledged thatthere have been some breaches by M of his parole conditions, but notably, there hasbeen no suggestion of an increased risk of sexual offending.[15] Not long after being released on parole, M began a short-lived relationship withan adult woman. He attempted suicide by overdose due to that relationship failing.M subsequently commenced another relationship with an adult woman which lastedfor some time, but by all accounts, it was also tumultuous. By the time of the hearing,he had extracted himself from that relationship.Legal principles[16] For the Court to impose an ESO, an offender must be an "eligible offender"under s 107C of the Parole Act 2002 (the Act). There is no dispute M is an eligibleoffender.[17] Section 107I sets out the purpose of and grounds for making an ESO:4 At [52].5 His parole conditions expired on 12 February 2020. The Department filed its application for anESO in June 2019.107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protect membersof the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexualor violent offences.(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F, thecourt is satisfied, having considered the matters addressed in thehealth assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of 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:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.(3) To avoid doubt, a sentencing court may make an extended supervisionorder in relation to an offender who was, at the time the applicationfor the order was made, an eligible offender, even if, by the time theorder is made, the offender has ceased to be an eligible offender.(4) Every extended supervision order must state the term of the order,which may not exceed 10 years.(5) The term of the order must be the minimum period required for thepurposes of the safety of the community in light of—(a) the level of risk posed by the offender; and(b) the seriousness of the harm that might be caused to victims;and(c) the likely duration of the risk.[18] In this case, it was accepted that M has, or has had, a pervasive pattern ofserious sexual offending. Accordingly, the issue for determination under s 107I waswhether there is a high risk that M will in the future commit a relevant sexual offence.[19] Section 107IAA specifies certain criteria that must be met before the Court canbe satisfied that there is such a high risk: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.[20] While these four pre-conditions are expressed in the present tense, the Courtof Appeal confirmed in Alinizi that they do not necessarily need to be presentlymanifested at the time the application for an ESO is determined.6[21] It is accepted on behalf of M that he has a predilection or proclivity for serioussexual offending. The issues arising under s 107IAA were accordingly whether I wassatisfied M:(a) displays an intense drive, desire or urge to commit a relevant sexualoffence;(b) has limited self-regulatory capacity; and(c) displays either or both of:(i) a lack of acceptance of responsibility or remorse for pastoffending:6 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468.(ii) an absence of understanding for or concern about the impact ofhis sexual offending on actual or potential victims.[22] If satisfied an ESO should be imposed, the Court must then consider itsduration. The maximum term is 10 years. In this case, the Department sought theESO for a term of three years.[23] Any application for an ESO must be accompanied by a report of a healthassessor (as defined in the Sentencing Act 2002).7 While the Court must take intoaccount the advice of any health assessors when considering an application for anESO, whether such an order should be made is ultimately one of judicial judgment.8Given the restrictions an ESO places on many aspects of an offender's life,9 thethreshold for making an ESO is high.10 An ESO is punitive in nature and is in effecta retrospective criminal punishment.11The health assessor reportsReport for the Department[24] Ms Fon, a registered clinical psychologist, carried out an assessment of M andset out her conclusions in a report dated 4 March 2019 (March Report). She alsoprepared an updating report in November 2019 (November Report), and gave evidencebefore me at the hearing. The following is a brief summary of her evidence.[25] Ms Fon first considered M's early childhood environment. In her view, it ledto M suffering from low self-esteem, as well as having problems developing healthyrelationships, regulating his emotions and problem-solving.7 Parole Act 2002, s 107F(2). The Department's application was accompanied by a report byMs Fon, a registered clinical psychologist. In response, M submitted a report of Ms Issacson, alsoa registered clinical psychologist.8 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [27].9 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4].10 See Chief Executive of the Department of Corrections v T [2017] NZHC 2179 at [13]; ChiefExecutive of the Department of Corrections v Clark [2017] NZHC 771 at [5]; and Chief Executive,Department of Corrections v Popata [2017] NZHC 2343 at [57].11 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [49] and[52].[26] Addressing M's index offending, Ms Fon stated that "M's difficulties withmaintaining a satisfying intimate relationship with his wife was a central factor to hisoffending". She noted M's admission of his sexual offending, but that he continuedto specifically deny any penile/anal penetration (and to minimise the level ofintrusiveness of his penetrative assaults).[27] Ms Fon also considered a range of assessments of M over time. She stated:Across assessments M appears to have variously admitted to a generalisedsexual attraction to prepubescent children. When asked whether he had actedon any deviant ideation towards other children in the past, he stated that hehad been deterred by the fear of being physically harmed by the children'sparents. M appeared to understand the greater impact his offending will havehad upon his victims and that these effects were likely to be enduring. It wasnoteworthy however, that his first response to a question of likely impact wasself-referential about his daughters missing out on his physical presence intheir lives, rather than the significant psychological impact the deviant aspectsof his sexual offending will have had upon them. M appeared remorseful,with an expressed sense of disgust and shame regarding his offendingbehaviour. He emphasised several times that he wished to engage in arestorative process with his children, which had been his wish since early inhis prison sentence.[28] Ms Fon then addressed the treatment provided to M during his incarceration.As noted, he completed the Te Piriti Special Treatment Unit programme betweenAugust 2014 and May 2015. Ms Fon noted that "within group M was said to be anactive participant who was observed to take responsibility for his offending behaviourand expressed remorse in a congruent manner. He was considered to have made agenuine effort to understand his offending".[29] She went on to note:The [Te Piriti] exit report noted that despite his gains, there were concernsregarding M's ability to consistently and effectively employ more adaptivecoping skills. It was opined that he may be easily destabilised and return toold patterns on release and it was also suggested that he had under-estimatedthe degree of challenge involved.[30] Ms Fon stated "overall this personality structure suggests a pervasive difficultyforming and maintaining positive and supportive relationships with othersaccompanied by an overly negativistic view of life".[31] Ms Fon went on to assess M's risk of reoffending using two risk screeninginstruments. The first was the Automated Sexual Recidivism Scale-Revised (ASRS-R). Ms Fon described this as a "brief actuarial static risk screening instrumentdesigned to estimate the likelihood of further convictions for sexual offences amongoffenders who have already been sentenced in the New Zealand District or High Courtfor a sexual offence".[32] M's ASRS-R score placed him at a medium-low risk of further sexualoffending. Ms Fon noted that for all sexual offenders within the same score as M, thefive-year recidivism rate is 6.35 per cent. The recidivism rate for offenders in that riskbracket with child sex offences is 6.93 per cent in the five-year period followingrelease, and 9.62 per cent in the ten-year period following release.[33] The second assessment measure used by Ms Fon was the Violence Risk Scale:Sexual Offence version (VRS:SO). This assesses a range of dynamic, rather thanstatic, factors. Under this, M was assessed as being at the low end of the high-riskcategory. The established sexual recidivism rate for persons with the same VRS:SOscore as M after five years is 15.3 per cent and after 10 years, at 23.9 per cent.[34] Having completed these assessments, Ms Fon stated the following:Analysis of M's current presentation suggests that compared to hispresentation pre-treatment he has likely made slow and incremental progresson items related to insight, cognitive distortions, interpersonal aggression,impulsivity, his release proposal, and his use of community supports. Hesuccessfully completed treatment and has gained an understanding of hisdeviant lifestyle pattern and deviant sexual preferences. There is nosuggestion that he has engaged in any deviant sexual activity or fantasiesregarding children or urophilia across his release period. His present level ofsexual preoccupation is considered managed. M has been in the communityfor over 22 months and is increasingly establishing stability. He continueshowever, to experience marked difficulties in the areas of intimacy andemotional regulation, and continues to be rated highly on the deviance subscale factors largely due to the lifetime scoring of these items and the slowchange that is often observed in these factors.[35] In considering both the ASRS-R and VRS:SO ratings, Ms Fon concluded therewas a high risk of M committing a further relevant offence while in the community.She noted, however, that while he was considered to present as high risk:the situations under which further offending is likely to occur is primarilythose that mimic his index offending. Any further offending is likely to beperpetuated against prepubertal and/or pubertal females who are known to Mand over whom he has formed a trusting, caretaking role.[36] Ms Fon then turned to the risk factors under the Act. As to whether M displaysan intense drive, desire or urge to commit a relevant sexual offence, Ms Fon said thefollowing (in her March Report):Since completion of treatment and release into the community there is nocurrent evidence of M's engagement in deviant sexual activity or ideation. Hehas shifted from denial to acceptance, and developed insight into how hissexual urges and deviant arousal contributed to his offending. While M clearlydisplayed evidence of an intense drive and urge to commit sexual offences inthe past, there is no evidence to suggest that he continues to experience anydesire or urge to offend since completion of treatment.(emphasis added)[37] In terms of M's self-regulatory capacity, she noted that M had generallyimproved self-regulatory capacity, although continued to rely heavily upon others toassist him with problem-solving, managing his anxiety and with general self-management.[38] In relation to an acceptance of responsibility and remorse, Ms Fon noted thatM "displays considerable remorse and disgust regarding his conduct". She noted thatwhile he denied some of the intrusive aspects of his offending, since he decided toadmit to the offences, he has been open regarding the nature of his offending. Sheconcluded "overall M is considered to accept responsibility for his offending and hisremorse is considered genuine".[39] As to M's understanding for or concern about the impact of his sexualoffending on actual or potential victims, Ms Fon stated that while he is aware of theharm that his actions have caused his two daughters "he may not truly be able tocomprehend the emotional perspective of his victims". She noted that M's desire toengage in restorative justice with his victims:suggests that he may not fully appreciate the degree of emotionalimpairment that he has caused them and the likely trauma his reappearance intheir lives may generate. In my opinion, M has a cognitive appreciation of theimpact of his sexual offending upon his victims but lacks the nuancedunderstanding that reflects an emotional appreciation.[40] Ms Fon concluded as follows:As M's risk for further offending is only likely to occur within a relationshipcontext, this may not present for some time, even years. He is considered lesslikely to groom children outside of a familial context. M has just over12 months remaining of his current sentence. As M's risk is considered to fallat the lower end of the high-risk band, it is possible that by the end of hissentence that he is displaying improved self and emotional regulation skillsand may fall under the threshold of high risk. It is therefore recommendedthat a re-assessment of his risk and the benefit of prolonged monitoring occurtowards the end of this period.[41] Ms Fon accordingly reassessed M in November 2019 (that is, her NovemberReport). The overall theme of this report was that M had regressed somewhat, or atleast not progressed as she would have hoped since her last assessment. Much of thisstemmed from the issues arising from the relationship M had been in since the priorassessment (as noted at [15] above), as well as concerns arising out of M beinguntruthful at times with his parole officer as to that relationship and the purchasing ofalcohol. This gave Ms Fon some concern in fully relying on M's self-reports (as to,for example, not accessing any inappropriate deviant material). Nevertheless, Ms Fonnoted that M had made progress in forming more connections in the community.While from time to time he has triggered his GPS alerts due to being on the edges ofexclusion zones, it did not appear that he had been in or near non-permitted areas suchas parks or schools.[42] Ms Fon also stated that it appeared M had regressed somewhat in acceptanceof responsibility for his index offending, given a new probation officer had recordedthat M had:stated that his ex-wife does not believe that he committed the offences hecommitted and that the victims are also confused as to why he was chargedwith something he did not do to them. M denied his offending and stated thatthe charges were misconstrued. He admitted touching them but nothing more.[43] I note that Ms Fon does not record any similar sentiment being expressed byM to her in the November 2019 assessment. Indeed, and on the contrary, during thatassessment, M maintained that his ex-wife was fully aware and accepting of his guilt.[44] Assessing his potential to re-offend, M's ASRS-R and VRS:SO scoresremained unchanged from the March 2019 assessment. However, after having givenevidence at the hearing, Ms Fon was recalled to clarify that there was an error in thisaspect of her November Report, and that M's VRS:SO score actually put him at thehigh end of the medium-high risk category (that is, rather than the lower end of thehigh risk category). In making this clarification, Ms Fon stated that M "sits on thatcusp, that he is on that downward trajectory, but that we haven't seen sufficient timeto be able to drop him into that lower risk."[45] Addressing again the particular risks set out in s 107IAA of the Act, Ms Fonreiterated that: there is no current evidence to suggest that M continues to experience anydesire or urge to commit a relevant sexual offence.As opined in the initial health assessment, M is not considered to display anintense drive, desire or urge to commit a relevant sexual offence at this stage.M's last sexual offending occurred 15 years ago and there has been noevidence of offence analogous behaviours resembling attempts to gain accessto children over this period of release. However, as noted above M's pathwaythrough to offending is likely to be more passive. That is, he is more likely toplace himself in situations where he is incidentally exposed to childrenthrough relationships that he develops with persons who may be morevulnerable. Thus, in M's case the absence of evidence of any current drive,does not suggest that this would not be present and re-emerge should victimaccess occur.[46] I sought to clarify this aspect of Ms Fon's evidence at the hearing. She statedthat "this isn't a slam dunk case," but remained concerned at the signs ofdestabilisation in M's life in the more recent assessment period. The followingexchanges took place with her:Q. one of the factors I need to consider, I'm going to talk about it as acharacteristic, is that the offender, M in this case, displays an intensedrive, desire, or urge to commit a relevant sexual offence. Now theauthorities have suggested that that characteristic, so displaying anintense drive, desire or urge to commit a relevant sexual offence, mustbe currently possessed by the offender though it need not haveexternal expression. And when I look at paragraph 27 of your reportand you say, "There is no evidence to suggest that he continues toexperience any desire or urge to offend since completion oftreatment." So really it's just to clarify, do you have a view on whetheras a characteristic he currently has an intense drive, desire or urge tocommit a relevant sexual offence even though it might not havemanifested externally or are you saying in the future he may have thatcharacteristic?...A. I don't think we've had sufficient time for us to be confidentthat he doesn't continue to possess it. So, I don't think it currentlymanifests but I don't think we've had sufficient time to be able to saythat it doesn't because it certainly was displayed and we've had apassage of time. But, he also has the underlying predilection and thatis the continuation, that's what is kind of like latent that could re-emerge if activated.Q. Well talking about predilection or proclivity for serious sexualoffending, that's a separate factor that I must consider and I think bothyourself and Ms Isaacson are in agreement that that is there, but inaddition to that, I need to consider whether M currently possesses anintense drive, desire or urge to commit a relevant sexual offence.Now, the authorities do say well, if it's clear that that factor clearlywas there in the past and there's nothing to suggest that it no longersubsists, then the Court may consider it's still there because there'snothing – and the Court's given examples of a complete denial ofoffending lack of treatment it strikes me that from what you'vebeen saying there has been quite a lot of change, are you suggestingthat not enough change to necessarily be comfortable that it's – thatprior trait hasn't gone now? I don't want to put words in your mouthbut is that what you were saying earlier or?A. It is. I don't think I am at the position that – I don't – there's not anactive display of it, but I don't think I'm in a position that I think thatthat intense drive is no longer a possibility so, I think that – it's acharacteristic that the person has, yeah? And so I think that there wehaven't had sufficient time to be able to say that that no longer exists,that he no longer possesses it. And I think that that comes back to theevidence that we're predominantly relying on self-report for that andhe hasn't been in situations where that would've been tested.Q. Just coming back to your second report, and it's paragraph 35, onpage 9 and I'm just really trying to marry what you've said in your reportto what we've just been discussing, and you say, "In some ways thisis not considered to display an intense drive, desire, or urge to commita relevant sexual offence at this stage," and then there's somediscussion you say, "Thus in M's case, the absence of evidence of anycurrent drive does not suggest that this would not be present and re-emerge should victim access occur." So again, in terms of acharacteristic of currently now possessing an intense drive, desire orurge to commit a relevant sexual offence, I just want to be reallyclear what you've said there, are you saying that he does currentlypossess that characteristic? Or he possesses other characteristics thatare enduring that may mean that that characteristic, of that intensedesire emerges, or re-presents at some point in time?A. Yes.Q. It's the latter?A. Yes. That it's a – this is a – this could re-emerge, that intense desirecould re-emerge with victim access, yeah. But the propensity that hecarries, the latent propensity that he carries, is there, that's whatI'm suggesting.Report for the respondent[47] Ms Isaacson, a registered clinical psychologist, was engaged by the defence toassess M and provided a report dated 5 November 2019.[48] Ms Isaacson reported similar characteristics in M to those reported by Ms Fon,including being prone to communicate in a somewhat verbose manner and over-inclusive of details, underlying anxiety, dysthymia and low self-esteem. She statedthat his presentation was consistent with that described in previous psychologicalreports. She noted that while he continued to deny some of the more intrusive acts ofhis offending, M "discussed his index sexual offending, participation in specialisttreatment and safety plan in an insightful and candid manner". She went on to statethat "his expressed sense of self-responsibility, remorse and victim empathy appearedsincere".[49] She noted that alcohol abuse and associating with peers engaged in anunstructured lifestyle have been a particular feature throughout M's life. Ms Isaacsonnoted, however, that neither have been directly linked to M's child sexual offending.Having summarised a number of M's turbulent relationships over the years,Ms Isaacson noted "he likely used sex to cope with negative emotions, low self-esteemand fear of rejection".[50] Ms Isaacson's overall views as to M's presentation were similar to those ofMs Fon. She stated:In summary, early developmental experiences and difficulty establishing anadaptive sense of social belonging resulted in M developing an enduringpersonality pattern underpinned by a sense of mistrust of others, fragile senseof self, attachment insecurity, inadequacy and sensitivity to criticism andrejection. His experience of sexual abuse during a critical period ofpsychosexual identity formation also resulted in distorted beliefs regardingsexual activity and emotional intimacy. He gravitated to the margins ofsociety where he led a largely unstructured lifestyle and developed a sense ofacceptance within a substance using and antisocial peer group. With thatcontext, M struggled to develop secure intimate relationships. He usedalcohol and sexual activity with similarly challenged women in order to copewith negative emotions and his deep sense of inadequacy and loneliness;rapidly forming intense but insecure attachments. His marriage evolved asone such relationship and M likely experienced his wife's infidelity and sexualunavailability as rejection and justification for involving others in their sexualactivity, his own infidelity and his later sexual offending.[51] Ms Isaacson referred to M's expression during her assessment of a "continuedsense of disgust in himself, remorse and victim empathy". She stated "he was able todetail the negative and long-lasting impact of his offending on his victims. He alsoconsidered that they had lost his presence as a father and, in the future, he hoped toengage in a process of restorative justice".[52] In terms of M's treatment, Ms Isaacson observed M's positive participation inthe Te Piriti programme. She stated:Within interview, M was able to discuss treatment concepts and strategies withgood understanding. He identified his high-risk situations to include sexualpreoccupation, loneliness, unbalanced lifestyle, inappropriate pornography,deviant arousal and being alone with children. He also identified his need todisclose his offending to others whom he intended to develop a relationshipwith and also to be mindful how others might perceive him because theywould not know his intention to never reoffend. M reported that he continuesto participate in the community relapse prevention group where he hasdeveloped a number of positive social supports. Overall, M was consideredto have developed a good understanding of the drivers to his sexual offending,adaptive coping strategies and sincere motivation to desist.[53] Ms Isaacson then turned to M's potential to reoffend. Like Ms Fon, she alsocarried out a risk assessment based on ASRS-R. On this measure, M received a totalscore which places him in the average risk of sexual reoffending.[54] Ms Isaacson also considered M's risk assessment pursuant to VRS:SO. Onthis basis, M's predicted five-year sexual recidivism was estimated to be between 3.5and 8.8 per cent. His 10-year sexual recidivism was estimated to be between 6.2 percent and 13.1 per cent. Ms Isaacson stated that this risk estimation converged with theASRS-R results, and "is considered an accurate reflection of [M's] current risk ofsexual reoffending". Ms Isaacson went on to state that: given that M was only released in March 2017, it is expected that hisestimated risk will decrease commensurate with his time offence free in thecommunity. It is the opinion of the writer M's risk of sexual recidivism willbe well-managed if he does not share a home with or become involved in acaretaking or trust position with children.[55] On this basis, Ms Isaacson concluded:It is estimated that M presents with an average risk of sexual re-offending.There was no evidence to suggest M presented a risk of sexual offendingagainst children unknown to him. M's risk of sexual re-offending will mostlikely manifest within the home environment.[56] Ms Isaacson then turned the factors in s 107IAA of the Act. She noted that inthe past, "M had exhibited an intense drive, desire or urge to sexually offend againsthis prepubescent daughters over a protracted period". She referred to M's consistentmotivation to engage in treatment and his present understanding of his offending.Given these matters, Ms Isaacson stated "[I] agree with [Ms Fon] (4 March 2019) thatM does not currently display an intense drive, desire or urge to commit a relevantsexual offence".[57] In terms of self-regulatory capacity, Ms Isaacson noted that M's enduringpersonality style indicates a difficulty in developing trusting relationships, a fragileself of self and sensitivity to criticism. Underlying symptoms of anxiety anddepression also contribute to and exacerbate his episodic impaired self-regulation.However, Ms Isaacson stated: impressions formed during interview and available information, includingcomments in the health assessment report (4 March 2019) indicated that M isnot generally inclined to impulsive and/or uncontrolled behaviour (observedacross both community and prison settings).[58] Ms Isaacson accordingly opined that M has demonstrated adequate self-regulatory capacity in various areas of his life.[59] In terms of M's acceptance of responsibility and remorse for past offending,Ms Isaacson was of the view that M genuinely accepts responsibility for his sexualoffending and is remorseful for it. She was also of the view that M has gained anadequate understanding of the harm he caused his victims, though like Ms Fon, notedM has a tendency to become defensive in light of constructive criticism, which impairshis ability for critical self-reflection.[60] Ms Isaacson concluded as follows:The current assessment used a multi-method process to establish convergenceamongst, and contribution of, individual risk factors for sexual offending.Based on this, M is assessed at Average risk of relevant sexual reoffendingwithin a home environment through indecent assault, penile and digitalpenetration, anal penetration and coercing urophilia. Potential victims couldinclude pre- and post-pubescent female children known to him. To his credit,since incarceration, M has consistently expressed remorse, acknowledgedresponsibility and maintained motivation to desist from reoffending. He hassuccessfully completed specialist treatment and he demonstrates treatmentgains. There has been no sexual offence-paralleling behaviour.It is considered that stringent restrictions [under his parole conditions] thathinder M from integrating within society and engaging in constructiveactivities (e.g., social activities, relationships, community areas such as parks,libraries, etc.,) could potentially aggravate his potential to relapse intosubstance use and/or associate with disenfranchised others. Considering M'senduring personality style, low self-esteem and fragile sense of self it isconsidered risk mitigating that he is supported to engage in structuredactivities where he is able to strengthen a sense of efficacy and socialcontribution (e.g., paid or voluntary work).DiscussionDoes M display an intense drive, desire or urge to commit a relevant sexual offence?[61] Mr Tantrum, counsel for the Department, submitted that overall, the Courtcould be satisfied this underlying characteristic is present in M, even though it maynot manifest or present until he is in circumstances mirroring those present in his indexoffending. Mr Tantrum quite responsibly recognised, however, that across her writtenand oral evidence, Ms Fon was not clear on whether this characteristic presently exists.[62] Mr Wright naturally pointed to Ms Isaacson's quite clear views and thatMs Fon's (potentially) different views in her November Report and at the hearing arebased on M's enduring personality traits, rather than a current and intense drive, desireor urge to commit a relevant sexual offence. Given the high threshold for theimposition of an ESO, Mr Wright submitted that on the basis of all the information,the Court simply could not be satisfied of this pre-condition.[63] As I summarised in my result judgment, based on all the evidence, I have realdoubts as to whether M currently displays this characteristic, rather than there being arisk of it re-emerging over time (given M's underlying personality traits). There is nodoubt M has personality characteristics which manifest in difficulties formingmeaningful relationships and confusing sexual and emotional needs. But I am notsatisfied this in and of itself translates to M currently having an intense drive, desireor urge to commit a relevant sexual offence. And while it is clear M previously hadthis characteristic, this case is relatively far removed from those in which the offendercontinues to deny their offending and/or has not engaged in treatment for it, and wherethe Court will reasonably readily infer the characteristic remains. This is reinforcedby both experts observing that, despite M being under somewhat "microscopic"monitoring and oversight since his release, there have been no signs of behavioursconsistent with this characteristic. Ms Isaacson in particular noted that if M currentlyhad an intense drive, desire or urge to commit a relevant sexual offence, and given thevery detailed oversight of him, "some indicator" that he was gravitating to offending"would have leaked out".[64] I accordingly do not consider this risk factor to be present.Does M have a predilection or proclivity for serious sexual offending?[65] As noted earlier in this judgment, both experts agreed this characteristic waspresent and Mr Wright did not suggest otherwise. Having read Ms Fon andMs Isaacson's reports, there is no principled basis for me to reach an alternativeconclusion. I am accordingly satisfied this risk factor is present.Does M have limited self-regulatory capacity?[66] There are clearly some concerns around this factor. M has, since his release,put himself in difficult relationships and then has had difficulty extracting himselffrom them. He is over-sensitive to criticism and seeks to relationship-manage.[67] This risk factor is finely balanced. But standing back, and despite M's verypositive engagement in his treatment, his underlying personality traits do suggest hehas an ongoing difficulty with self-regulation. On balance therefore, I find this riskfactor to be present.Does M display a lack of acceptance of responsibility or remorse, or an absence ofunderstanding for or concern about the impact of his sexual offending?[68] In his oral submissions at the conclusion of the hearing, Mr Tantrum acceptedthat he could not submit M has an "absence" of understanding for or concern aboutthe effect of his offending on his victims. In my view, this was a proper concession.While his understanding may not yet be described as "full" or "perfect", both expertsconsidered it adequate. I agree. The statute does not require a "counsel of perfection"in this context.[69] The evidence overall also demonstrates that M's level of remorse andacceptance of responsibility for his offending is, in substance, significant and genuine.The overall theme over a relatively long period has been one of M's acceptance of hisoffending, feelings of self-disgust and remorse. I do not consider his ongoing desireto engage in restorative justice with his daughters undermines this. Rather, it appearsto represent a misguided attitude that doing so will somehow assist his victims. Thatmisguided view does not alter M's demonstrated and genuine remorse for hisoffending.[70] Accordingly, this risk factor is not made out.Conclusion[71] Given I was not satisfied M currently displays an intense drive, desire or urgeto commit a relevant sexual offence, and that neither of those factors set out ats 107IAA(1)(d) of the Act are present, it was not possible for me to conclude that thereis a high risk of M committing a relevant sexual offence in the future.[72] These are my reasons for declining to grant the application.____________________Fitzgerald J