DYLAN EDWARD COLEMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZSC 41

DYLAN EDWARD COLEMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022]NZSC 41 [7 April 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 148/2021[2022] NZSC 41BETWEEN DYLAN EDWARD COLEMANApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: H G de Groot and T W R Lynskey for ApplicantB C L Charmley for RespondentJudgment: 7 April 2022JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Coleman was convicted of indecent assault offences in 2011 and of sexualexploitation of a person with a significant impairment in 2014. Since then he hascommitted several more minor offences.[2] The Chief Executive of the Department of Corrections (CE) sought anextended supervision order (ESO) for Mr Coleman, which was refused by theDistrict Court on the basis that although there was "a pervasive pattern of sexualoffending and sexualised behaviour", there was no pervasive pattern of serious sexualoffending.1[3] On appeal by the CE, the Court of Appeal overturned that decision and imposeda five year ESO.2 The Court of Appeal considered the 2011 and 2014 offendingserious and pointed to a pattern of Mr Coleman forcing himself on young women inorder to have sex irrespective of their objections.3 The Court considered thatMr Coleman has a pervasive pattern of serious sexual offending and is plainly at highrisk of committing serious sexual offending in the future.4 The Court considered anESO for a period of five years to be in reasonable proportion to the importance ofprotecting the community from the real and ongoing risk of Mr Coleman committingserious sexual offences.5[4] Mr Coleman now seeks leave against the Court of Appeal decision.The legislation[5] In imposing an ESO, s 107I(2) of the Parole Act 2002 requires the Court toconsider whether:(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commit arelevant sexual offence:(ii) there is a very high risk that the offender will in future commita relevant violent offence.1 R v Coleman [2021] NZDC 7789 (Judge Neave) at [92]. The Judge stated that Mr Coleman'soffending whilst under supervision "tends much more to the nuisance level".2 The Chief Executive of the Department of Corrections v Coleman [2021] NZCA 528 (Cooper,Venning and Palmer JJ) [CA judgment] at [42].3 At [32].4 At [16] and [35]. The Court applied the test set out in Kiddell v Chief Executive of the Departmentof Corrections [2019] NZCA 171.5 CA judgment, above n 2, at [38].The parties' submissionsApplicant submissions[6] Mr Coleman submits that his case exposes an issue with the current test: in hissubmission the test places too much weight on future conduct and collapses thestatutory distinction between the "pervasive pattern" threshold in s 107I(2)(a) and the"high risk" threshold in s 107I(2)(b)(i) of the Parole Act. He submits that this Courtshould recast the test for pervasive pattern to remove the emphasis on the predictionof future conduct. He submits that the application of the test in this case led to anerroneous conclusion that there was a pervasive pattern.[7] As a second ground, Mr Coleman submits that there is ambiguity around whatcriteria apply to appeals by a CE for an ESO: whether the same standards apply asthose that apply to an appeal by the Solicitor-General against sentence.6Respondent's submissions[8] The CE submits that the test of pervasive pattern is well settled. ESOs are factspecific and any perceived inconsistencies between the application of the test is due tothe particular offending histories and individual characteristics. In this case it is clearthere was a pervasive pattern.[9] With regard to the second ground, it is submitted that the Court of Appeal hasno discretion to impose a term that is below the minimum period required to mitigatethe risk posed.[10] Finally, it is submitted that there is no risk of a miscarriage of justice as theCourt of Appeal was plainly correct to impose the ESO given the ongoing risk to thecommunity posed by Mr Coleman.6 Citing R v Edwards (Note) [2006] NZSC 52, [2006] 3 NZLR 349 at [9].Our analysis[11] Nothing raised by Mr Coleman suggests that the test for pervasive patternneeds modification or that, in his case, the application of the test led to an erroneousconclusion on that point by the Court of Appeal. There is therefore no matter of publicor general importance or any risk of a miscarriage of justice.7[12] We accept the submission of the CE in relation to the second ground raised byMr Coleman.Result[13] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent7 Senior Courts Act 2016, s 74(2).