POU v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 593

POU v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 593 [15 December2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011 AND/OR S 139 OF THECRIMINAL JUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA92/2017[2017] NZCA 593BETWEEN JOSEPH HOHEPA POUAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 29 November 2017Court: Winkelmann, Venning and Duffy JJCounsel: C Tuck for AppellantZ R Johnston for RespondentJudgment: 15 December 2017 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Mr Pou has served sentences of imprisonment for sexual offending and is nowsubject to an extended supervision order (ESO) of 10 years.1 He appeals against thisorder.[2] Mr Pou has sexually offended on three separate occasions.[3] In 1989 Mr Pou was convicted of indecent assault on a 12-year-old boy andwas sentenced to one year's imprisonment. Mr Pou had put his hand down the boy'spants and fondled the boy's genitals.[4] Then in 2011 Mr Pou was convicted of sexual violation of an adult female andwas sentenced to three years and 11 months' imprisonment. Mr Pou was staying atthe female's home. Prior to this offending they had been out together socialising andeach had consumed alcohol. On their return home they went to bed. They shared thesame bedroom. The female slept in a bed with her six-year-old son while Mr Pou slepton the floor. Sometime in the early hours of the morning the female woke to findMr Pou on the bed engaged in oral sex with her.[5] Two years later Mr Pou was convicted of two charges of historic sexualoffending against a nine-year-old girl in 1981 and was sentenced to two years'imprisonment, cumulative on the sentence of three years and 11 months imposed forthe 2011 offending. He had invited the girl into bed with him and rubbed her genitals.He then put her hand on his penis and made her rub it.[6] Mr Pou also has an extensive criminal history involving general offending and,in particular, offences involving driving motor vehicles while under the influence ofalcohol. The level of this offending alone reveals he has a very serious alcoholproblem.The District Court decision[7] Mr Pou accepted he was an eligible offender. There was no dispute that theprocedural requirements for an ESO were satisfied. However, he did dispute the other1 Department of Corrections v Pou [2017] NZDC 1108.requirements for an ESO were present by arguing that his offending was not pervasive,and there was no evidence he posed a high risk of future offending of the relevant kind.[8] Judge Snell found the requirements for making an ESO were made out and wassatisfied the duration of the order should be for 10 years.[9] The Judge had the benefit of hearing expert evidence from a health assessor,Nemsha Naidu, who is a registered clinical psychologist employed by theCorrections Department. She had assessed Mr Pou as posing a high risk of sexualreoffending.[10] In a carefully reasoned decision the Judge took account of Ms Naidu'sassessment, the statutory criteria in light of Mr Pou's criminal history and conductwhile in prison, and the submissions of counsel. Mr Pou was found to have evidencedpoor self-regulation and to have demonstrated a pattern of reoffending in a similarmanner under similar conditions. This was coupled with denial of significant aspectsof the sexual offending, failure to accept responsibility for this offending, a lack ofappreciation of the risk of him reoffending in the future as well as the effect of suchoffending on the victims. The Judge particularly took note of Mr Pou's refusal whilein prison to discuss the sexual offending, which would then have allowed him toreceive treatment for it. Accordingly, the Judge concluded that Mr Pou demonstrateda pervasive pattern of sexual offending and there was a high risk that he would commita relevant sexual offence in the future. The Judge also concluded that because of thelength of the gaps in Mr Pou's sexual offending and the "high risk created by hissyndrome of ongoing risk factors", the term should be for 10 years.2Arguments on appeal[11] Mr Pou contends the evidence does not establish there is a high risk he willsexually offend in the future. In this regard, he argues that drugs and alcohol were theunderlying influences in his offending and those problems can be addressed andmonitored outside of an ESO, through the use of targeted release conditions. He alsocontends the sentences of imprisonment he has just served were sufficiently punitive2 Department of Corrections v Pou, above n 1, at [21].to mitigate the risk of him reoffending. He further says that the link between hisalcohol and substance abuse and general offending has been decoupled throughtreatment he received for such abuse while in prison, which together with his "agingout" of offending makes an ESO unnecessary.[12] Mr Pou also argues that his personal circumstances following release fromprison render an ESO unworkable and unfair. This is because on release from prisonhe was initially of no fixed abode, had limited whānau support and had limitedresources. This meant the imposition of the ESO led to him breaching the orderfollowed by detention in custody for a short time. He foresees the existence of theESO as inevitably resulting in future breaches and subsequent incarcerations whichwill add to what he says was an already punitive sentence. He is now 64 years oldwhich makes a 10-year ESO essentially a "lifelong penalty". For this reason, hesubmits that even if necessary, the present ESO is too long.[13] The Crown contends there is no error in Judge Snell's decision. First, the threeincidents of sexual offending are sufficient to constitute a pervasive pattern of sexualoffending. Secondly, Ms Naidu's evidence establishes that each of the relevant factorsin s 107IAA(1) are met — the other qualifying criteria in the Parole Act 2002. Thirdly,Judge Snell correctly concluded that Mr Pou poses a high risk of future sexualoffending. Regarding the latter, the Crown submits the judicial risk assessment wasappropriately informed by Ms Naidu's clinical assessment, which was notsignificantly challenged.[14] Regarding the duration of the ESO, the Crown submits that the imposition ofa 10-year ESO where previous offending is denied is unremarkable. Given the lengthof time over which the offending spanned, a 10-year ESO is appropriate.Discussion[15] We see no error in the decision to impose a 10-year ESO.[16] Mr Pou faces the difficulty of having no expert evidence to counter that ofMs Naidu. In the District Court his counsel did his best in cross-examination toundermine Ms Naidu's evidence, but without expert evidence to contradict her opinionthis was not achieved. The transcript of the hearing reveals that Ms Naidu had soundanswers for the cross-examination questions. Her opinion was well reasoned and wellexpressed. She had fully considered all relevant material. This left Judge Snell, as itleaves us, with seemingly reliable and uncontradicted expert evidence in support of anESO.[17] Like Judge Snell we see no reason to doubt Ms Naidu's opinion. Secondly,our own assessment of Mr Pou's criminal history accords with Ms Naidu's opinion.Over a 29-year period on three separate occasions, each of which was quite distant intime from the others, Mr Pou engaged in significant sexual offending. There is asimilarity to all incidents, namely that each victim was vulnerable to Mr Pou, althoughfor different reasons. Two were children and the third was a sleeping adult — all wererelated to him. On each occasion his relationship with the victim meant there was anabuse of trust. Accordingly, we are satisfied there is a pervasive pattern of serioussexual offending.[18] The fact Mr Pou has sexually offended against two children and an adultwoman (while in the presence of a six-year-old) who were related to him satisfies usthat he has displayed an intense drive, desire or urge to commit a relevant sexualoffence and that he had a predilection or proclivity for serious sexual offending whichis coupled with limited self-regulatory capacity.3[19] Mr Pou has denied offending against the children and he has asserted he hasno memory of, and now doubts, the offending against the adult female. All of thissatisfies us he does not accept responsibility or feel remorse for his past offending.We are also satisfied such conduct demonstrates an absence of understanding for orconcern about the impact of his sexual offending on his victims.[20] Regarding risk assessment of future sexual offending, we acknowledge that ingeneral criminal offending will diminish with age. However, Mr Pou's risk of furthersexual offending must be viewed in the light of him committing sexual violation at theage of 57 years, which gave rise to his most serious conviction for sexual offending.3 Parole Act 2002, s 107IAA(1).[21] We acknowledge that when he was first released from prison, Mr Pouseemingly experienced difficulties finding suitable accommodation and in otherwisemeeting the requirements of the ESO. However, as the Crown submits, this is noreason for removing the ESO, which has been designed to encourage his rehabilitationand reintegration into the community. Ms Naidu's evidence makes it plain that anuncertain release plan without provision for suitable accommodation will harm thoseprospects. Mr Pou has limited whānau support and limited resources. Alcohol andsubstance abuse underlie his offending. If he were left alone to lead an itinerantlifestyle there is a greater risk he will resort to alcohol and substance abuse, which inturn will increase the already high risk of him committing further relevant sexualoffences. Moreover, as the Crown identifies, there are no alternative means to ensureMr Pou receives the supervision he needs. For example, release conditions under theParole Act can only be imposed for a period of up to six months.[22] Accordingly, we are satisfied an ESO was warranted. We are also satisfied the10-year term is appropriate. The high risk of further relevant sexual offending coupledwith the lack of acceptance and insight into past sexual offending warrants the ESObeing this long. We accept the Crown's submission that if over time the requirementsof the ESO unduly obstruct the lifestyle that Mr Pou wants to lead, either those termscan be varied or the order cancelled.4 At this early stage, we are not prepared tointerfere with it.Result[23] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent4 Parole Act, ss 107M and 107RA.