HANARA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZCA 455 [28 September 2020]

HANARA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZCA 455[28 September 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE 2015 COMPLAINANTPROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFTHE 2009 COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINALJUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA326/2019[2020] NZCA 455BETWEEN KAHI DANIEL HANARAAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 24 June 2020Court: Brown, Brewer and Hinton JJCounsel: M J Phelps for the AppellantC Ure for the RespondentJudgment: 28 September 2020 at 10.30 amJUDGMENT OF THE COURTA The application for leave to appeal out of time is allowed.B The appeal is allowed. The extended supervision order imposed by theDistrict Court is varied by substituting a term of seven years for the term often years imposed by that Court.___________________________________________________________________REASONS OF THE COURT(Given by Hinton J)Introduction[1] On 4 May 2018, Judge Adeane imposed an extended supervision order for aterm of ten years on the appellant, Mr Hanara.1 Mr Hanara accepts that the order wasproperly imposed but appeals against the term of the order saying ten years isexcessive and a term of five years is more appropriate.Preliminary matters[2] Mr Hanara accepts his notice of appeal was filed well out of time. It seemsfrom his affidavit that he was experiencing a number of difficulties. The respondentdoes not oppose the grant of leave. Absent any opposition by or prejudice to therespondent, we grant leave to appeal out of time.[3] Part 6 of the Criminal Procedure Act 2011 applies, with necessarymodifications, as if this were an appeal against sentence.2 Like an appellantchallenging their sentence, Mr Hanara must demonstrate the term of the order ismanifestly excessive.3Legislative regime[4] The power to make an extended supervision order is found in s 107I of theParole Act 2002 (the Act), which provides that an order is made "to protect membersof the community from those who, following receipt of a determinate sentence, posea real and ongoing risk of committing serious sexual and violent offences".[5] In order for the Court to make an extended supervision order the offender musthave or have had a pervasive pattern of serious sexual or violent offending. The Courtmust also be satisfied having regard to the matters in s 107IAA that there is a high risk,in the case of serious sexual offending as here, that the offender will commita "relevant sexual offence"4 in future. As noted above, the existence of that pattern ofbehaviour, and of the necessary risk, is not at issue in this case.1 Department of Corrections v Hanara DC Napier CRI-2016-016-1383, 4 May 2018[ESO decision].2 Parole Act 2002, s 107R.3 See for example Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60.4 Being one of those offences listed in s 107B(2) of the Parole Act.[6] Extended supervision orders place severe restrictions on an offender.These include restrictions on place of residence, overseas travel, employment andfreedom of association (especially with those under the age of 16). The Parole Boardmay also require that the offender attend programmes.5[7] Every extended supervision order must state the term of the order.6Under s 107I an order may not exceed ten years and must be the minimum termrequired for the purposes of the safety of the community in light of:7(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.[8] The minimum term falls to be determined on the basis of information beforethe Court in the form of a health assessor's report. The report must be presentedtogether with the Department of Correction's application for an order.8 The report isafforded central importance within the statutory scheme, being the means by whichthe Court is advised (in the case of a sexual offender) whether the offender displayscertain behaviours and psychological characteristics including ability to controlimpulses, predilection to sexual offending, acceptance of responsibility and remorsefor past offending.9 The assessor also advises as to the risk of relevant offences beingcommitted in the future.[9] As this Court has previously held, in setting a term under s 107I the Court isconcerned with managing the risk of future offending, but in a way that isproportionate to the likelihood and likely seriousness of harm of that offending.10The Court is not concerned with proportionality to the gravity of the offender's pastoffending,11 except as that informs the likely seriousness of any future offending.That follows from the purpose and focus of an extended supervision order being to5 Sections 15(3), 16, 107J, 107JA and 107K.6 Section 107I(4).7 Section 107I(5)8 Section 107F(2).9 Sections 107F(2A) and 107IAA(1).10 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [10].11 At [10], citing R v Brown (2005) 22 CRNZ 233 (CA) at [51(b)] and [53].protect the community from future offending, and in particular those members of thecommunity of the age and sex the offender is likely to target in future. However thebest predictor of any such future behaviour will be the offender's past behaviour.12Particularly instructive in this regard will be the circumstances and frequency of prioroffending, how distant in time that offending now is, and whether the offender'senvironment has changed or will change on release.13Background[10] Mr Hanara is 46 years old. He has a long and varied criminal history. His mostserious convictions are for aggravated robbery in 1994 and 1999, for which lateroffence he was sentenced to eight years' imprisonment. Since his release from thatterm of imprisonment, the vast majority of his convictions have related to minordishonesty, drug-related and public order offending.[11] Mr Hanara's first conviction for sexual offending was not until 2009 but hiscounsel accepts there were repeated complaints of sexual misconduct andinappropriate behaviour by Mr Hanara during periods of incarceration between 1994and 2016, a number involving conduct very similar to his sexual offending.These complaints resulted inter alia in his being referred to psychological counsellingby the prison authorities.[12] In addition, according to a brief 2013 psychological assessment report,Mr Hanara volunteered having raped women in the past saying he did not ask forconsent and "went straight into them".[13] Mr Hanara's first conviction for sexual offending related to an incident on21 August 2009 when Mr Hanara committed an indecent assault, to which charge hepleaded guilty.14 He engaged a teenage girl in conversation as she walked towards12 At [10] and [45].13 See at [44]–[49]. See also Holland v Chief Executive of the Department of Corrections[2016] NZCA 504 at [42] and [55], discussing evidence of a pattern of similar behaviour.14 In 2009 indecent assault against an adult was not a relevant offence for the purposes of s 107I,with extended supervision orders limited to those who posed a risk of sexual offending againstchildren or young people. It became listed as a relevant sexual offence as from 12 December 2014when s 107I was extended to the risk of sexual offending against adults: Parole (ExtendedSupervision Orders) Amendment Act 2014, ss 7(2) and 15. The 2009 offending can nonethelessproperly be taken into account for present purposes.a bus stop and asked for her phone number. When she did not give it to him, he offeredher his number. As the victim boarded a bus, Mr Hanara briefly touched her bottomover her clothing.[14] Mr Hanara's second indecent assault conviction arose from an incident inJanuary 2015. He approached a woman while she was shopping with her two childrenin a supermarket. She was previously known to Mr Hanara, the two having workedtogether some years earlier. Mr Hanara had developed an infatuation with her butthere had been no social contact between them except through their shared job.Mr Hanara approached the victim, kissed her, and placed his hand in her groin.This occurred in front of her children and continued for some time. The victim didnot report the incident to the police at the time.[15] In May 2015, the same woman was driving when she noticed a vehiclefollowing close behind her, trying to attract her attention. She pulled over. Mr Hanaraalighted from the following vehicle, walked up to the victim's door, exposed his penisto her, and said "this is for you" and "this is all yours babe".15[16] The victim reported both incidents to the Police. Mr Hanara was charged withdoing an indecent act with intent to offend and also charged with indecent assault forthe January 2015 offending. On 1 October 2015, having pleaded guilty to both thesecharges, Mr Hanara was sentenced to 18 months' imprisonment.16[17] He became subject to an interim supervision order on 23 June 2017.[18] In October 2017, while subject to the interim supervision order and releaseconditions following the period of imprisonment, Mr Hanara entered a grocery storeand concealed four packets of meat down his trousers. To cover the attempt atshoplifting, he took an item of fruit and paid for it at the counter. As he was leavingthe store he walked behind a woman who was paying for items at another till andcupped his hand around one of her buttocks. His hand rested there for about a second.15 The sentencing notes in this matter (Police v Hanara [2015] NZDC 19771) record the datessomewhat differently to the summary of facts, from which this statement is drawn, but thatdiscrepancy makes no difference for present purposes.16 At [7].[19] He was charged with doing an indecent act with intent to offend. He againentered a guilty plea and was sentenced to seven months and two weeks' imprisonment(together with concurrent sentences for charges relating to the shoplifting).17Decision under appeal[20] As noted, on 4 May 2018 Judge Adeane imposed an extended supervisionorder with a term of ten years.[21] The decision is brief. The Judge notes that the Department of Correction'sapplication was based on a health assessor's report completed byJonathan Todd-Downing, a registered psychologist, dated 29 April 2016.18 The reportwas completed without Mr Hanara's participation as he refused to do so. The Judgesummarised the report as concluding that "Mr Hanara lacks insight into his ownbehaviour and the ability to self-regulate adequately to function in the community."19Mr Todd-Downing had given evidence and been cross-examined, but the Judgereferred only to his written report.[22] Having noted the details of Mr Hanara's sexual offending in 2009, 2015 and2017, the Judge rejected the submission that it was not "serious". While accepting theoffending is not "offending of the worst imaginable kind", he said "all sexualoffending is serious" and Mr Hanara's repeatedly approaching and molesting strangersin public places constituted a risk of serious harm to the community.20 In any case,the Judge stated he did not consider it followed from the fact the offending was not ofthe worst imaginable kind that the term of the extended supervision order should befor any less than the longest possible term of ten years.21 The Judge considered a termof that length necessary "so that the community can exercise that extra measure of17 Police v Hanara [2018] NZDC 14938.18 As follows, the report did not take into account the October 2017 offending. Moreover,Mr Todd-Downing's oral evidence was also taken before this further offending. Judge Adeaneconsidered the further incident demonstrated "precisely that same lack of insight into boundariesand ability to self-regulate impulses to which the psychologist referred": ESO decision, above n 1,at [7].19 At [3].20 At [8]–[9].21 At [10]. Ten years is set as the longest period by s 107I(4) of the Parole Act.control over Mr Hanara's behaviour which his repeated past conduct demonstrates isnecessary".22Grounds of appeal[23] The primary point made by Mr Phelps, counsel for Mr Hanara, is thatMr Hanara's offending is not the worst imaginable and so the shortest term necessaryto protect the community is less than the maximum. He emphasises the indecentassaults are the most serious sexual offending for which Mr Hanara has beenconvicted, and both of these involved only fleeting touches over clothing.[24] Moreover, on each occasion, Mr Hanara pleaded guilty and so, Mr Phelpssubmits, he has accepted responsibility for offending. This, together with Mr Hanara'shaving engaged with counselling on various occasions, demonstrates in Mr Phelps'submission that Mr Hanara possesses a degree of insight regarding his offending thatreduces the risk of offending in future.[25] Additionally, Mr Phelps says that by the time even a five-year extendedsupervision order would lapse, Mr Hanara will be 50 years old, and his advancing agerenders any future offending less likely and less likely to be serious.[26] Mr Phelps also says that in any event there is a reducing seriousness inMr Hanara's offending which suggests reduced future risk. He relies here on theOctober 2017 offending having been charged only as the doing of an indecent act, notan indecent assault.[27] For these reasons, counsel submits Mr Hanara's behaviour does notdemonstrate a pervasive pattern of serious sexual offending sufficiently concerning towarrant the imposition of the draconian restrictions associated with an extendedsupervision order for a ten-year period.[28] The Crown opposes any reduction in the term of ten years, relying heavily onthe health assessor's report, which we discuss below.22 At [11].Health assessor's report[29] As noted, the Act requires the Court to set the minimum term on the basis ofinformation in the health assessor's report.[30] The health assessor found that Mr Hanara demonstrates a preoccupation withand ruminates on sexual matters, producing a compulsion to act instinctively on hisdeviant sexual arousal when the opportunity presents itself. We agree with Ms Ure,counsel for the respondent, that repeated warnings and sentences of imprisonmenthave not incentivised Mr Hanara to curtail his deviant expression of these instincts.[31] Also, we note Mr Todd-Downing's assessment that Mr Hanara is more likelyto offend than other sexual offenders. Mr Todd-Downing assessed Mr Hanara usingthe Violence Risk Scale: Sexual Offender version. His evidence was that 30.3 per centof offenders with the same score on that scale as Mr Hanara reoffend within five yearsof assessment, and 43.6 per cent within ten years. In comparison, where offenders ofall risk profiles are looked at together, only 10.9 per cent of sexual offenders reoffendwithin five years of assessment. We note also that Mr Todd-Downing assessedMr Hanara as being in the top seventh per cent of sexual offenders for sexual deviancyand the top fifth per cent for criminality.[32] It follows that the health assessor was clearly of the opinion that Mr Hanarademonstrates a deviant preoccupation and is unable to control that impulse.Taken together with his criminal history, there is a clear risk of Mr Hanara engagingin sexual offending against women he encounters, spontaneously and at random.[33] We note that Mr Todd-Downing did not venture any opinion as to the termrequired for protecting the safety of the community.23Analysis[34] Having regard to the applicable principles we noted at the outset, we have toconsider whether the ten year term set by the Judge is proportionate to the risk of future23 Other report-writers have: see Chief Executive of the Department of Corrections v Alinizi [2016]NZCA 468 at [40].offending and the likely seriousness of harm of that offending. In doing so, we canhave regard to Mr Hanara's past conduct.Acceptance of responsibility and counselling[35] We begin with Mr Phelps' submission that Mr Hanara's guilty pleas, priorengagement with counselling, and attendance at drug and alcohol counselling whileimprisoned in 2015 indicate a reduced risk of future offending.[36] As highlighted in Mr Todd-Downing's report, Mr Hanara's engagement withpsychological support can best be characterised as sporadic. It involved 37 sessionsspread over a period of 26 years. Several of the courses of counselling wereterminated when Mr Hanara ceased to engage. Mr Phelps acknowledges Mr Hanara'sengagement with many of these counselling sessions was abortive. Moreover, we notethat while Mr Hanara attended a basic drug and alcohol programme while in prisonMr Todd-Downing says he then declined referral to an intermediate course. Also, asMs Ure submits, there is no evidence that drugs or alcohol contributed to Mr Hanara'srelevant prior offending, such that his engagement with that treatment may be oflimited relevance.[37] The records indicate that the last treatment in which Mr Hanara participated,apart from the drug and alcohol programme, was in 2013. His prison offender notesrecord that he was unwilling to engage with psychological services or other providersas at April 2016.[38] All of this aligns with Mr Todd-Downing's evidence in cross-examination that,from a psychological perspective, accepting responsibility for one's actions involvesmore than a concession of guilt, and Mr Hanara's inconsistent engagement withtreatment does not evince remorse for or insight into the causes of his behaviour.In this respect, we note also Mr Todd-Downing's professional opinion that a moreintense and consistently focused form of psychological intervention is required toovercome Mr Hanara's clear barriers to engagement with the root causes of hisoffending.[39] Mr Phelps says Mr Hanara has been denied the opportunity for intensivetreatment because he has not spent long enough in custody or been subject to asupervision order for long enough. He understands from Mr Hanara's probationofficer that Mr Hanara is keen to undertake that treatment. However there is noevidence before us to that effect, nor is that borne out by the past.[40] Relying particularly on Mr Todd-Downing's report we do not considerMr Hanara's previous engagement with counselling, or previous guilty pleas, tend tosuggest a lower risk of future offending. Conversely, we consider the availableevidence reinforces the conclusion that, absent more effective support than he has sofar received, Mr Hanara continues to represent a high risk of relevant sexual offendingin the foreseeable future in accordance with the pattern demonstrated by his offendingto date. We see no basis to suggest that risk will be materially reduced in ten asopposed to five years from now, as a result of psychological assistance.Advancing age and declining pattern of offending[41] While generally speaking an offender's advancing age reduces the level of riskposed as a matter of statistical likelihood, that reduction is not significant at the age of50 (as compared to 70),24 and the general observation needs to be considered in anyevent in light of Mr Hanara's individually assessed risk profile under s 107IAA.25 It isclear that Mr Hanara's risk profile will not, on Mr Todd-Downing's assessment, bematerially improved ten years from now as opposed to five years.[42] We also do not accept that the established pattern of Mr Hanara's offending isabating on the basis asserted by Mr Phelps that the October 2017 incident was chargedless seriously than the May 2015 offending. As Ms Ure correctly submits, theOctober 2017 incident was factually indistinguishable from the circumstances of the2009 offending and could equally have been charged as an indecent assault.[43] Ms Ure submits that the 2017 offending is made more serious because itoccurred while Mr Hanara was subject to an interim supervision order. We do not24 See Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [65].25 See at [32]–[33] and [66].share that view on these particular facts. As Mr Phelps notes, at the time of the 2017offending Mr Hanara had only been subject to the order for four months and had notyet obtained the benefit of treatment. We must also factor in the learning difficultiesapparently experienced by Mr Hanara.[44] We consider that while Mr Hanara's sexual offending has not escalated overtime it has not declined and there is no reason to conclude there will be a declinebecause of advancing age over the next ten years.Seriousness of past offending and proportionality[45] That brings us to Mr Phelps' key point, which is that Mr Hanara's likely futureoffending will not be, based on the nature of his proven prior offending, of the worstimaginable kind or in any event his prior offending is no worse than that in other caseswhere terms significantly shorter than ten years have been imposed.[46] As to the proven offending, Ms Ure submits that it is important to recognisethat any sexual touching is a significant imposition on a victim's autonomy anddignity. That is undoubtedly correct. Nonetheless, as Kós P recently observed in thecontext of sentencing for rape, even while it may be somewhat invidious to comparecases of sexual violence, comparison is required for sentencing purposes.26 In thisrespect, we agree with Mr Phelps that Mr Hanara's proven past offending is not theworst imaginable and is not the most serious type of sexual assault.[47] However the 2013 psychological assessment reports Mr Hanara havingvolunteered to "raping" women in the past. The details of this are, owing to his limitedengagement with Mr Todd-Downing and with the author of the 2013 report, unclear.It appears this conduct relates to Mr Hanara's association with the Mongrel Mob,which he said allowed him to use violence, sexual and otherwise, to do as he pleased.It appears his historic violence offences also relate to this association.[48] A health assessor can properly consider an offender's words and actions thathave not resulted in convictions, and also unproven allegations of offending, in making26 Crump v R [2020] NZCA 287 at [91].their risk assessment. A court reviewing such a report may equally have regard tothese considerations.27 It follows that we, as did Mr Todd-Browning, must have regardto both Mr Hanara's less serious proven offending and apparently more serious othermisconduct. This includes both the volunteered rapes, and reports of sexualmisconduct while incarcerated.[49] Accordingly, we do not consider this case can be compared to other cases inwhich the prior offending is exclusively at the less harmful end of the serious range.[50] However, it is of significance that there is no evidence of more serious conductby Mr Hanara other than in the brief 2013 psychological assessment report.The circumstances of Mr Hanara's proven offending do not suggest, as we haveaccepted, a risk of escalation to more serious forms of sexual offending. It is materialin this respect that details of any volunteered offending are not available, reducing theweight this information can be afforded in the risk assessment.[51] Moreover, in any case, offenders with similar or worse histories have beensubject to shorter terms, which is clearly material in assessing considerations ofproportionality. We consider that, as in sentencing,28 the requirement forproportionality also requires consideration of parity with the approach taken incomparable cases.[52] We refer to the decision of this Court in Chief Executive of the Department ofCorrections v Alinizi. The Court imposed an extended supervision order for six years(where none was made at first instance) in the case of an offender who had engagedin sexual offending, including one charge of rape, against two children.29 The healthassessor noted that Mr Alinizi continued to deny responsibility and had refused anyeffort at treatment and assessed him as demonstrating a high risk of re-offending onrelease. In determining the term of the order, the Court noted:[38] Where an offender categorically denies previous offending andconsequently is unwilling to undertake treatment directed to the sexual27 W (CA716/2018) v Chief Executive of the Department of Corrections [2019] NZCA 460at [31]-[32]; and Lepper v R [2016] NZCA 209 at [34].28 See R v Rushby [1977] 1 NSWLR 594 (CA) at 597 per Street CJ.29 Chief Executive of the Department of Corrections v Alinizi, above n 23.offending, it would be open to a Court to direct an ESO of the full 10 yearperiod.[39] We have carefully considered the alternative courses of making anorder of 10 years duration, recognising that it is open to Mr Alinizi to apply atan earlier time for cancellation, or an order of lesser duration in relation towhich the Chief Executive could make an application for extension at theappropriate time.[40] We have concluded that the latter course is appropriate in view ofDr Nuth's professional opinion that a maximum period of 10 years is notnecessarily indicated. In our view a period of six years should provide anadequate opportunity for the development of a safety plan with protectivefactors which would safeguard the community as well as providing a sufficienttime for Mr Alinizi's behaviour in the community to be monitored andassessed. It would be open to the Chief Executive to apply to extend the ordertowards the end of that period in the event that the present circumstances,including Mr Alinizi's categorical denial of his sexual offending, pertain.[53] Mr Phelps also referred us to the cases of Skudder, Popata and Hawkins, eachalso involving more serious proven sexual offending than here and yet the High Courtimposed extended supervision orders of less than ten years' duration (as little as fouryears in Hawkins).30 These offenders denied or otherwise minimised their offending,resisted treatment, and posed a high risk of future offending.[54] In Skudder and Hawkins, like this Court in Alinizi, the Judges considered thatit was necessary to anticipate modification of the offender's behaviour as a result ofthe treatment required by the extended supervision order, together with the possibilityof a proper safety plan being put in place during the term of the order.31 In Popata andHawkins the Judges noted that the Chief Executive of Corrections could seek anextension of the term if required.32 For these reasons in each case the Judge consideredthe proportionate term was materially less than ten years.[55] Ms Ure emphasises that unlike here none of those cases involved offendingwhile the offender was subject to an interim supervision order. She says that theprospect of Mr Hanara's offending being modified significantly by treatment or by the30 Chief Executive of the Department of Corrections v Skudder [2016] NZHC 1717 [Skudder];Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 [Popata]; andChief Executive of the Department of Corrections v Hawkins [2019] NZHC 482 [Hawkins].31 Skudder, above n 30, at [58]; and Hawkins, above n 30, at [86].32 Popata, above n 30, at [64]; and Hawkins, above n 30, at [86].order can be predicted as low with greater certainty than was possible in those cases.For the reasons noted earlier we do not consider this a material point of distinction.33[56] Ms Ure further submits that Mr Hanara's propensity to move spontaneouslyfrom impulse to offending apparently at random against women he encounters inpublic distinguishes his offending from that in the cases to which Mr Phelps refers.In particular, she submits that Mr Hanara may offend against any woman heencounters in public, from which environment he cannot be isolated.[57] We see no difference in this regard between Mr Hanara and Mr Popata.34Mr Popata was a 44 year old who offended randomly against a number of women,including four previous offences involving spontaneous touching of a woman'sbuttocks in a shop. His other offences involved lower-level indecent assaultsaccompanied by stalking and, far more seriously, the sexual violation of a relative.There, Downs J imposed a term of seven years and six months. We consider theJudge's analysis of the necessary term of the order useful:[63] Until Mr Popata addresses his sexual offending, he will continue topose at least a high risk of further sexual offending. So, risk level and durationimply a long order. As to the seriousness of the harm that may be caused, theexperts differ. Dr McWilliams expresses concern planned offending,including use of a ruse, could well escalate to more serious sexual offending.Mr van Rensburg considers future offending is likely to fall at the lower endof the scale. These competing views reflect the experts' assessment of theseriousness of Mr Popata's offending to date.[64] I have found this issue difficult. Mr Popata has no insight to hisoffending, has resisted treatment, and poses at least a high risk of furtheroffending. However, while Mr Popata has committed a pattern of serioussexual offending, worse cases are not difficult to imagine. Or find.Moreover, sexual recidivism generally abates with age. And, an applicationfor extension may be brought if necessary. I consider the proportionateresponse is an order for a period of seven and a half years.[58] Much of this, as follows from our discussion above, can also be said ofMr Hanara. We have adopted a more guarded view of the influence of age onrecidivism in this case but Mr Popata's sexual offending was clearly worse than here.Further, Mr Hanara has not denied his previous offending.33 We also note that in Skudder several of the relevant previous offences had been committed shortlyafter that offender's release from a custodial sentence.34 See Popata, above n 27, at [10]–[24].Overall assessment[59] Having regard to all of the above and in particular this Court's comments inAlinizi and the approach taken by the High Court in the cases to which we havereferred (not least Popata) we consider the term for which the extended supervisionorder was imposed was manifestly excessive.[60] We acknowledge Mr Hanara demonstrates a sustained pattern of opportunisticindecent assault type offending against women which appears highly likely to continuefor the foreseeable future. There is nothing to indicate a possibility of change on thehorizon. Equally however considerations of proportionality and parity suggest themaximum possible term is not sustainable in this case, even having regard to the moreserious sexual misconduct not reflected in Mr Hanara's conviction history. In thissense, it is important that there is no indication of an escalating pattern of offending.[61] For these reasons, we consider a term of seven years appropriate.Result[62] The application for leave to appeal out of time is allowed.[63] The appeal is allowed. The extended supervision order imposed inthe District Court is varied by substituting a term of seven years for the term often years imposed in that Court.Solicitors:Crown Law Office, Wellington for Respondent