MCINTOSH v CORRECTIONS [2021] NZCA 218

MCINTOSH v CORRECTIONS [2021] NZCA 218 [31 May 2021]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA737/2020[2021] NZCA 218BETWEEN LLOYD ALEXANDER MCINTOSHAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 11 May 2021Court: Gilbert, Simon France and Edwards JJCounsel: A J Bailey for AppellantB C L Charmley for RespondentJudgment: 31 May 2021 at 9.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] The purpose of an extended supervision order (ESO) is to protect the publicfrom those who pose a real and ongoing risk of committing serious sexual or violentoffences following a fixed term of imprisonment.1 Successive ESOs, each for a termof up to 10 years, may be imposed if the stringent statutory criteria for making suchan order are met.2 Where an offender has been subject to an ESO for 15 years,the sentencing court must conduct a review to ascertain whether, within the remainingterm of the order, there is a high risk the offender will commit a relevant sexual offenceor a very high risk they will commit a relevant violent offence.3 Further reviews mustbe conducted at five-year intervals after the imposition of any additional ESO.4Following review, the court must either confirm the ESO or cancel it.5[2] Mr McIntosh has been subject to two successive ESOs, each for the maximumterm of 10 years. The High Court confirmed the current ESO following the mandatory15-year review.6 Mr McIntosh now appeals. He says the statutory criteria justifyingthe confirmation of the ESO were not made out and the Judge erred in finding that hewas at high risk of committing a relevant sexual offence. Mr McIntosh contends thatthe ESO should have been cancelled.Background[3] Mr McIntosh, now aged 48, has been institutionalised all his adult life.In 1989, when he was 15, he was charged with sexual offending for the ongoing sexualand violent abuse of a very young relative. He was found to be under a disability interms of the Criminal Justice Act 1985 and he was committed to Lake Alice Hospital.In the four and a half year period while he was there, Mr McIntosh received treatmentfrom departmental psychologists.[4] In August 1993, shortly after his release from Lake Alice, Mr McIntosh(then 20) sexually violated a 23-month-old infant by engaging in acts of unlawfulsexual connection with her. It is unnecessary to provide details of this highlydistressing offending. At sentencing on 26 November 1993, Ellis J said he would haveimposed preventive detention for the protection of the public had Mr McIntosh1 Parole Act 2002, s 107I(1).2 Section 107I(4).3 Section 107RA.4 Section 107RA(2)(b).5 Section 107RA(5).6 Chief Executive of Department of Corrections v McIntosh [2020] NZHC 3184 [High Courtjudgment].qualified for such a sentence.7 In sentencing Mr McIntosh to 10 years' imprisonment,the Judge considered the danger Mr McIntosh presented to the public was so gravethat a long term of imprisonment was required. While serving this sentence,Mr McIntosh attended the Kia Marama Special Treatment Unit programme for childsex offenders.[5] Mr McIntosh served the full term of this sentence before being released onstrict parole conditions in June 2003. Three months later, on 14 September 2003,Mr McIntosh (then aged 30) offended against a 25-year-old intellectually disabledfemale. This was despite the close proximity of the security guard who had beentasked with minding him. Mr McIntosh forcibly kissed the victim, pushed her onto abed and pinned her down as he prepared to sexually molest her. The victim managedto escape when Mr McIntosh desisted momentarily to answer his phone. Mr McIntoshwas subsequently sentenced to 18 months' imprisonment for this offending.A concurrent sentence of six months' imprisonment was imposed for separateoffending which involved Mr McIntosh breaching his parole conditions by speakingon the telephone to a child under the age of 16 years, being the daughter of one of hissupervisors.[6] On 8 December 2004, a Full Court of the High Court made an ESO in respectof Mr McIntosh for the maximum period of 10 years commencing on 15 March 2005(the first ESO).8 The making of this ESO was not opposed, only its duration.9The Court was satisfied a 10-year term was required for the protection and safety ofthe community for reasons summarised in the following two paragraphs ofthe judgment:[31] In our view the best evidence of what the future may hold is found inthe past. Mr McIntosh is now 31 years of age. He has disclosed a prolifichistory of sexual offending which occurred prior to his admission toLake Alice in 1989. Following his release from that hospital in 1993 heoffended against a baby within a period of months. He was then imprisoneduntil June 2003. Within three months he committed the offence of assaultupon a female, albeit not a relevant offence, but one committed when he wassubject to close personal supervision.7 R v McIntosh HC Wanganui POL139/5, 26 November 1993.8 Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162,8 December 2004.9 At [4] and [23].[32] Regrettably this history speaks for itself. Despite the interventionsand resources which have been committed to his case, we are satisfiedMr McIntosh still poses a real and ongoing risk to children and young personsin relation to sexual offending. We are in no doubt on the basis of his history,and the reports which are before us, that a ten year term is the minimumrequired for the protection and safety of the community. This, we consider, isan example of a case where anything but a ten year term would beinappropriate.[7] The first ESO did not expire until 29 April 2015 because Mr McIntosh wassubject to two short sentences of imprisonment during this period.[8] A further ESO (the second ESO), also for a 10-year period, was imposed byDunningham J in May 2015 to take effect on expiry of the first ESO.10 The secondESO was also not opposed. Indeed, the Judge recorded that Mr McIntosh "welcomesthe order as a means to provide for continuity of his support and care".11[9] The foregoing brief summary sets the context in which the 15-year review ofMr McIntosh's second ESO was undertaken in the High Court in November 2020.12Before addressing the grounds of Mr McIntosh's appeal, it is helpful to set outthe relevant statutory provisions.Relevant statutory provisions[10] The review is prescribed by s 107RA of the Parole Act 2002 (the Act).This section reads:107RA Review by court(1) A sentencing court must, on or before the review date specified insubsection (2), commence a review of an extended supervision orderin order to ascertain whether there is—(a) a high risk that the offender will commit a relevant sexualoffence within the remaining term of the order; or(b) a very high risk that the offender will commit a relevantviolent offence within the remaining term of the order.(2) The review date of an extended supervision order is,—10 Chief Executive Department of Corrections v McIntosh [2015] NZHC 999.11 At [5].12 High Court judgment, above n 6.(a) if an offender has not ceased to be subject to an extendedsupervision order since first becoming subject to an extendedsupervision order, the date that is 15 years after the date onwhich the first extended supervision order commenced; and(b) thereafter, 5 years after the imposition of any and each newextended supervision order.(3) A review under this section must be commenced by way of anapplication by the chief executive, which may be made at any timewithin 4 months before the review date.(4) For the purpose of a review under this section, sections 107F (exceptsubsection (1)), 107G, 107GA, and 107H apply (with any necessarymodification) as if the review were an application for an extendedsupervision order.(5) Following the review, the court must either confirm the order or cancelit.(6) The court may only confirm the order if, on the basis of the mattersset out in section 107IAA, it is satisfied that there is—(a) a high risk that the offender will commit a relevant sexualoffence within the remaining term of the order; or(b) a very high risk that the offender will commit a relevantviolent offence within the remaining term of the order.(7) For any period during which time has ceased to run on an extendedsupervision order under section 107P, time also ceases to run onthe period specified in subsection (2) for the purpose of calculatingthe review date of an extended supervision order.[11] The critical question for the purposes of the review in this case was whether,on the basis of the matters set out in s 107IAA, there was a high risk that Mr McIntoshwould commit a "relevant sexual offence" within the remaining term of the secondESO. Relevant sexual offence is defined in s 107B(2) of the Act and includesnumerous sexual offences under the Crimes Act 1961 including sexual violation,sexual conduct with a child or young person, indecent assault and sexual exploitationof a person with a significant impairment.[12] Section 107IAA relevantly reads: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 thatthe offender—(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.High Court judgment[13] The Judge had the benefit of reports from two clinical psychologists preparedfor the purposes of the review — a report dated 20 May 2020 from Amanda Richards,Department of Corrections and a report dated 22 October 2020 from Craig Princecommissioned on behalf of Mr McIntosh. Both were extensively cross-examined onthe contents of their reports at the hearing. The Judge was satisfied on the evidencethat Mr McIntosh met each of the criteria in s 107IAA(1).13[14] The only challenge to this aspect of the judgment is directed to the Judge'sfinding that the s 107IAA(1)(d) criterion was met. The asserted error raises a questionabout the correct interpretation of the provision. The Judge considered the statutorywording in s 107IAA(1)(d) — "a lack of acceptance of responsibility or remorse forpast offending" and "an absence of understanding or concern about the impact of hisor her sexual offending on actual or potential victims" — must be interpreted as arelative concept so as not to defeat the intent of the legislation.14 Thus, any level ofacceptance of responsibility or remorse, and any level of understanding or concernabout the impact on victims, no matter how limited, will not necessarily preclude afinding of high risk and the making of an ESO.15 Rather, the acceptance,13 At [46].14 Emphasis added.15 High Court judgment, above n 6, at [38], citing Chief Executive of Department of Corrections vDouglas [2016] NZHC 3184 at [82].understanding or concern must be "sufficient" to "operate to materially reduce the riskof such offending in the future".16[15] The Judge concluded on this criterion as follows:[45] In my view, there is clear evidence that Mr McIntosh has acquired atleast a degree of understanding about the impact of his sexual offending onactual victims. He accepts responsibility for past offending and has showed adegree of remorse to both health assessors. However, I share the concern thatboth health assessors had, that the remorse and the concern were not yet at apoint where they would act as a protective factor against potential or futurevictims. This was demonstrated, at least in an indicative way, by the periodswhen Mr McIntosh went off medication and reverted to sexually deviantthoughts. I am not satisfied that he, as yet, shows the degree of understandingor concern about the impact on victims which would prevent him from futureoffending and this criteria is also met.[16] Being satisfied the four threshold criteria in s 107IAA were met, the Judgeturned to assess whether Mr McIntosh was at high risk of committing a relevant sexualoffence. She concluded that this was established on the evidence:[47] When I combine the relatively consistent picture painted bythe various risks assessment tools, along with his observed offence parallelingbehaviour when he is stressed or angry, I am satisfied that Mr McIntosh is athigh risk of committing a relevant sexual offence. It is only the structure ofthe ESO and the intervention of medication that means this risk has noteventuated in the past 15 years.[17] Finally, the Judge considered whether she should exercise her discretion tocancel the ESO notwithstanding her conclusion that Mr McIntosh was at high risk ofcommitting a relevant sexual offence. The Judge was not prepared to cancel the ESO,observing that there would be "considerable risk if Mr McIntosh were to be releasedinto the community, without significant individualised support".17 Nevertheless, theJudge endorsed the concerns expressed by Mr Prince that Mr McIntosh should begiven more opportunities to demonstrate he has learned from the extensive therapy hehas engaged in and to practise being more independent.1816 At [40].17 At [53].18 At [54]–[56].Grounds of appeal[18] Mr McIntosh advances the following grounds of appeal:(a) The Judge was wrong to find that the requirement in s 107IAA(1)(d)was satisfied.(b) The Judge was wrong to find that Mr McIntosh was at high risk ofcommitting a relevant sexual offence.(c) The Judge ought to have exercised her discretion to cancel the ESO.Was the requirement in s 107IAA(1)(d) satisfied?[19] Mr Bailey, for Mr McIntosh, submits the Judge misinterpreted s 107IAA(1)(d).He argues that whether an offender's level of acceptance, understanding or concernwill be "protective" is irrelevant.19 Mr Bailey says the Act contemplates that anoffender may meet all the criteria in s 107IAA and yet not be at high risk. Conversely,an offender may fail to meet one or more of these criteria and still be at high riskgenerally (but not for the purposes of the Act). While the s 107IAA criteria areprerequisites to a finding of high risk, they are not determinative of this.[20] Mr Bailey accepts that an understanding or concern may be "so distorted,superficial and self-orientated" as to constitute "an absence" in terms of the criterion.20However, that was not the case here. In particular, he says the Judge did not take issuewith the following comments made by Mr Prince in his report:When younger, Mr McIntosh did not appear to fully grasp the impact of hisoffending on his victims. This is because at the time of the offending, he wasangry with others and wanted to hurt them by hurting his victims. He did notdisplay any empathy at the time. From what he reported to me, over time heappears to have gained an intellectual understanding about the impact of hisoffending, and in recent years, he gained a more considered appreciation ofthe effects of his offending on his victims. Treatment helped in this respectand he considered information that he had tried to block from his memory.His account was not rote-learned and appeared to be sincere in nature.19 At [45], quoted above at [15].20 As held in Chief Executive of Department of Corrections v Douglas, above n 15, at [89].[21] In summary, Mr Bailey contends the Judge was wrong to conclude thatthe requirements of s 107IAA(1)(d) were satisfied on the basis Mr McIntosh's level ofunderstanding or concern will not "prevent him from future offending".21 Mr Baileyargues this was the wrong test.[22] Determining whether there is a high risk that a given offender will commit arelevant sexual offence within a stated period is an inherently difficult exercise.Parliament has provided some structure and discipline to the assessment byprescribing the characteristics any offender who poses this high risk will have.The first two — intense drive, desire, or urge to commit a relevant sexual offence andpredilection or proclivity for serious sexual offending — could be seen as animatingcharacteristics. The second two — limited self-regulatory capacity; and lack ofacceptance of responsibility or remorse for past offending and absence ofunderstanding for or concern about the impact of his or her sexual offending on actualor potential victims — could be described as protective characteristics.These characteristics cannot be construed and applied in absolute terms. They arehuman characteristics and, to the extent they are present, they will vary from oneperson to another.[23] Offenders who present a high risk of committing a relevant sexual offence willnot have the protective characteristics described in s 107IAA(1)(d). This is consistentwith the statutory wording which speaks of "a lack of" and "an absence of" theseprotective characteristics. However, the absence (or lack) of these characteristics areindicia of high risk offenders only because these protective characteristics mitigatethis risk. The focus must therefore be on whether the acceptance of responsibility,remorse, understanding or concern are material in the given case in the sense that theyare present to a sufficient degree to mitigate the relevant risk. Parliament cannot haveintended that any degree of presence of these protective characteristics (no matter howlimited and whether or not in any way operative to mitigate the risk), would precludea person from being assessed as being at high risk. Such an interpretation wouldplainly be inconsistent with the statutory purpose of public protection.21 High Court judgment, above n 6, at [45] (quoted above at [15]).[24] The authorities provide support for this analysis. A useful starting point isDavidson J's discussion in Douglas of the comparable provision in the Public Safety(Public Protection Orders) Act 2014:22[83] In my view the lack of, or deficit in understanding or concern must beat such a level as to fit the plain purpose of the Act in this respect, namely toidentify whether the usual behavioural and psychological checks on apotential offender will not apply, because for example, there is no sufficientunderstanding or concern for the effect of the criminal act on a victim.And later:[89] In my view an "absence of understanding or concern" means thatany understanding or concern is so distorted, superficial and self orientated,that it marries with the clear purpose of the legislation, that the checks andbalances inherent in the combined and individual characteristics in s 13(2) arenot operative to negate the risks which derive from those characteristics.[25] This explanation of the underlying legislative rationale was endorsed by thisCourt in P (CA388/2018) v Chief Executive of Department of Corrections:23[53] In our view, s 107IAA(1)(d)(ii) invites a relatively simple inquiry:does P understand the impact of his offending on his victims? As Davidson Jsuggested in Douglas, the underlying legislative and psychologicalassumption is that if an offender is able to imagine the hurt, fear and shamecaused to his or her victims by the relevant offending then he or she is lesslikely to wish to cause such hurt, fear and shame to others in future, therebyreducing the risk of future reoffending. (Footnote omitted.)[26] For these reasons, we do not accept Mr Bailey's contention that it is irrelevant(and the court must therefore disregard) whether an offender's level of acceptance,remorse, understanding or concern will have any protective effect against the riskthe offender will commit a relevant sexual offence. We consider the Judge statedthe test correctly when she said:24There must be sufficient "acceptance of responsibility for past offending", or"understanding for or concern about the impact of sexual offending onactual or potential victims", to operate to materially reduce the risk of suchoffending in the future.22 Chief Executive of Department of Corrections v Douglas, above n 15.23 P (CA388/2018) v Chief Executive of Department of Corrections [2018] NZCA 599.24 High Court judgment, above n 6, at [40].[27] This appears to be the same test the Judge applied when later stating:25However, I share the concern that both health assessors had, that the remorseand the concern were not yet at a point where they would act as a protectivefactor against potential or future victims.[28] We interpret the Judge's use of the expression "would [not] act as a protectivefactor against potential or future victims" as another way of expressing the test she setout earlier — "[would not] operate to materially reduce the risk of such offending inthe future". It could be argued, as Mr Bailey does, that the Judge overstated the testlater in this same paragraph when she said she was not satisfied "the degree ofunderstanding or concern" would "prevent him from future offending". That sets thebar too high. The same could be said for Davidson J's expression in Douglas — "tonegate the risks".26 However, reading the judgment as a whole, it appears the Judgehas used the word "prevent" as shorthand for her earlier expressions "would act as aprotective factor" or "operate to materially reduce the risk".27 We therefore rejectMr Bailey's contentions that the Judge misstated and misapplied the statutory test ins 107IAA(1)(d).[29] In any event, we consider it was open to the Judge to conclude on the evidencethat Mr McIntosh's level of acceptance, remorse, understanding or concern wasinsufficiently material to reduce his risk of committing a relevant sexual offence withinthe remaining term of the ESO.Was there a high risk that Mr McIntosh would commit a relevant sexual offence?[30] Mr Bailey's principal complaint under this ground of appeal is that the Judgemisapprehended the offences that come within the definition of a "relevant sexualoffence" in s 107B(2) and did not undertake the required risk assessment focusedsolely on these offences. He says the Judge wrongly understood that imprisonableoffences under the Films, Videos, and Publications Classifications Act 1993 areincluded in the definition if they involve, promote or support sexual exploitation ofchildren or young persons. As a result of this error, the Judge did not limit her25 At [45].26 Chief Executive of Department of Corrections v Douglas, above n 13, at [89] (quoted above at[24]).27 High Court judgment, above n 6, at [45] and [40].assessment to the correct offences in assessing Mr McIntosh's risk of reoffending.Further, the actuarial tools used by the psychologists are designed to estimatethe likelihood that adult males who have been convicted of sexual offending will becharged or convicted of further sexual offending following their release intothe community (in the case of the Static-99R) or to predict sexual recidivism(in the case of the Violence Risk Scale – Sexual Offenders Version (VRS-SO)).These tools are not calibrated to assess the risk of a "relevant sexual offence" asdefined in the Act and one meaning cannot be equated with another. Finally, Mr Baileysays that it was incumbent on the Judge to explain why she did not accept Mr Prince'srisk assessment that Mr McIntosh was "in the moderate-high to high risk range".[31] The Court may only confirm an ESO if satisfied there is a high risk thatthe offender will commit a relevant sexual offence within the remaining term ofthe order.28 Relevant sexual offences are listed in s 107B(2) and are all offences underthe Crimes Act. As Mr Bailey rightly points out, the definition does not include anyoffences under the Films, Videos, and Publications Classifications Act as the Judgeappears to have thought.29 Some of these latter offences are "relevant offences" interms of s 107B(1) but they are not "relevant sexual offences" in terms of s 107B(2).30[32] Nevertheless, we do not consider this error had any material effect onthe outcome. There was no suggestion Mr McIntosh had ever committed any offenceunder the Films, Videos, and Publications Classifications Act, nor did anyone considerthe prospect he might do so in future. The offences under this Act were not referredto at any stage by either of the psychologists in their reports or in their evidence atthe hearing.[33] Ms Richards' evidence was appropriately focused on relevant sexualoffending. She opined in her written report that there was "a high risk thatMr McIntosh would engage in relevant sexual offending without the high levels ofsupervision, monitoring, and other external supports currently in place". Absent thissupport, she considered Mr McIntosh's "risk would be worryingly acute".28 Parole Act, s 107RA(6)(a).29 High Court judgment, above n 6, at [13].30 Parole Act, s 107B(3).Ms Richards considered the most likely victim would be a prepubescent female butfuture offending "is also likely to target vulnerable persons of an indiscriminatenature". Mr Bailey cross-examined Ms Richards on this point and she confirmed shehad assessed the risk of Mr McIntosh committing a relevant sexual offence as definedin the Parole Act:Q. When you prepared your report, were you conscious of the fact that ithad to be aimed at the likelihood of Mr McIntosh committing arelevant sexual offence?A. As part of the criteria for [s 107IAA], we are looking at relevant sexualoffences and the Parole Act [2002] provides a list of what thoserelevant sexual offences are and Mr McIntosh met criteria for havingengaged in a relevant sexual offence, so the assessment wasundertaken with the idea – with the knowledge that Mr McIntosh hadcommitted a relevant sexual offence and that was the context in whichassessment was taken.[34] Mr Prince was also attuned to the requirement to assess the risk Mr McIntoshwould commit a relevant sexual offence within the remaining five years of the ESO.Consistent with the evidence of the two experts, the Judge referred only to relevantsexual offences when carrying out her risk assessment.[35] Mr Bailey is correct when he observes that the actuarial tools routinely usedby psychologists to assist with these types of assessments are not specificallycalibrated to exclude offences which do not fit within the statutory definition of arelevant sexual offence. But this does not mean the tools are not useful and should notbe relied on. In some circumstances, convictions for non-relevant sexual offences maycontribute to the assessment of the risk that an offender will commit a relevant sexualoffence in the future. In every case, an overall assessment will be required to interpretthe information obtained with reference to the particular offender's profile and allother relevant evidence. In Mr McIntosh's case, non-relevant sexual offences did notfeature in the assessment by the psychologists or the Judge.[36] Mr Bailey explored this issue at some length in his cross-examination ofMs Richards. She explained that Mr McIntosh's risk profile involves relevant sexualoffences, being contact sexual offences, not other sexual offences such as thoseinvolving objectionable publications:Q. So you think the [Autism Spectrum Rating Scales] ASRSR andthe VRSSO, the numbers that they've spit out after the inputs areplaced in, tell the psychologist what the risks of their sexual relevantoffence risk is?A. That's correct.Q. I thought you agreed with me some time ago that the ASRS andthe VRSSO, assess the re-offending –A. Oh, I see what you're asking. It'sit provides a risk of sexualrecidivism, not a specific type of sexual recidivism, butthe assessments [have] been undertaken first and foremost becauseMr McIntosh presents with a relevant sexual offence.Q. Well, he's committed relevant sexual offences?A. That's right.Q. Yep. But he's at at least some risk of committing a non-relevant sexualoffence or are you just not gonna agree with that today?A. He's at some risk.Q. I'll try and clarify. So we've got, you were gonna refer to the list ofrelevant sexual offences?A. Yes, yes, so my understanding is that to be assessed for an ESO,Mr McIntosh has to have committed a relevant sexual offence whichis a contact sexual offence. A non-relevant sexual offence is a, wouldbe a non-contact sexual offence for instance pornography offending.THE COURT:Q. So I think leaving aside which offence, offences are actually.A. Yeah.Q. I think the gist of the question is that the risk includes the risk ofcommitting offences that don't qualify –A. That's correct.Q. – as relevant sexual offences?A. That's correct.Q. Whatever those are.A. Yes. Correct.CROSS-EXAMINATION CONTINUES: MR BAILEYQ. So just if you just use one testing device.A. Yes.Q. And that was all you were gonna use to formulate an opinion and itcame back as the offender's risk of re-offending.A. Yes.Q. Was less than half, well just, it was say 8 out of 10, their risk ofoffending and committing a relevant sexual offence must be less than8 out of 10?A. What I agree with is what the stats say is that that stats come up andare predicting that Mr McIntosh is at risk of sexual recidivism of anytype of offending, however, my risk parameter statement clarifieswhat that risk would look like. Is that helpful?Q. It is but are you including internet based offending that my friend justtalked about then when you talk about your parameter of riskoffending?A. For Mr McIntosh?Q. Yes.A. That would not be considered something that I would think would behigh risk [for] Mr McIntosh.Q. Yeah, but we're getting specific numbers and it might not be high riskbut there's fine lines is there not between medium-high and high?So if, if –A. My, my line isn't that fine.Q. Right, okay.A. I've got Mr McIntosh clearly in the high risk category.[37] For the reasons given, we are not persuaded that the Judge's assessment wasflawed because she failed to confine her attention to relevant sexual offences whenassessing Mr McIntosh's risk. The Judge's error early in her judgment in describingrelevant sexual offences as including some offences under the Films, Videos, andPublications Classifications Act was inconsequential in the circumstances we havedescribed. This error was not repeated and it did not feature in the analysis section ofthe judgment. It was also immaterial that the actuarial tools are not designed tospecifically exclude offences falling outside the statutory definition of relevant sexualoffences given Mr McIntosh's particular risk profile.[38] We turn now to consider Mr Bailey's last submission under this ground ofappeal, namely that the Judge did not explain why she rejected Mr Prince's opinionthat Mr McIntosh was in the "moderate-high to high risk range". We do not considerthis was necessary because there appeared to be broad agreement between the twopsychologists about Mr McIntosh's overall risk. We note first that there is no separaterisk category between "moderate-high" and "high". Mr Prince placed Mr McIntoshsomewhere near the cusp. Mr Prince did not appear to rule out that Mr McIntosh couldproperly be placed in the high category, noting that minor discrepancies would beenough to make the difference:In an effort to consider where Mr McIntosh was currently rated, I scoredthe VRS:SO too. My rating of him prior to him undergoing treatment wassimilar to that of Department of Corrections' scores. With respect to hiscurrent score, now that he has undergone treatment, my score was only a littlemore favourable than that of the Department of Corrections. Based on myassessment, he would just fall into the moderate-high risk category.However, I acknowledge that minor discrepancies in scoring can occur and Iwould prefer to say that he falls somewhere between the moderate-high andhigh risk categories.(Emphasis in original.)[39] Elsewhere in his report, Mr Prince acknowledged there was a high risk thatMr McIntosh would sexually reoffend if no supervision measures were in place andhe stopped taking his medication, stating "there is quite a high risk that he wouldreoffend" and "sexual offending against children is debateable, but still considered ahigh risk of eventuating in particular contexts" (emphasis added). Mr Prince added:Mr McIntosh is significantly institutionalised. Even if I thought that he didnot meet criteria for ongoing ESO legislation, I believe that it would beunethical and unfair to Mr McIntosh to suddenly release him intothe community as a "free man".[40] As these extracts demonstrate, Mr Prince did not take serious issue withMs Richards' high risk assessment. However, Mr Prince noted it was "very difficultfor an offender with high dynamic risk variables [like Mr McIntosh] to shift down toa lower risk category" while subject to stringent constraints and supervision under anESO. These individuals have very little opportunity to demonstrate positive changesand the ability to withstand challenges in high risk situations over an extended period.The consequent danger is that people like Mr McIntosh become locked in aself-perpetuating cycle:Thus, while the ESO conditions minimise reoffending – and are thereforeconsidered to be effective – the problem becomes one where Mr McIntosh isunable to effectively demonstrate changes in himself. A vicious cycle isperpetuated, and the danger becomes one of him remaining on ESOsindefinitely.[41] The Judge was sympathetic to these concerns and considered it "imperative"that Mr McIntosh be given more opportunities for independence without constantsupervision.31 Nevertheless, we consider the Judge was well-justified on the evidenceto conclude that there was a high risk that Mr McIntosh will commit a relevant sexualoffence within the remaining term of the ESO if it were to be cancelled and he wereto be released into the community immediately without supervision.Should the Judge have cancelled the ESO in the exercise of her discretion?[42] The Judge accepted she had a discretion to cancel the ESO even if the statutorycriteria for its continuance were met, reflecting that these orders substantially restrictfundamental rights of freedom of movement and association protected under ss 17 and18 of the New Zealand Bill of Rights Act 1990.32 However, the Judge was notprepared to exercise this discretion because of the considerable risk Mr McIntoshwould pose if he were to be released into the community without significantindividualised support. The Judge endorsed the concerns expressed by Mr Prince thatMr McIntosh should be assisted towards the goal of not requiring the current highlevel of supervision he is subject to under the ESO.33[43] Mr Bailey submits that, even if Mr McIntosh was correctly assessed at highrise under s 107RA(6), the Judge should not have confirmed the ESO. The ESO wasretrospective in the sense that Mr McIntosh's qualifying offending was committedbefore the ESO regime came into force in July 2004. Mr Bailey argues that in thesecircumstances the ESO is a retrospective penalty and is not amenable to justification.34In any case, the risk assessment is necessarily imprecise, and nothing more than a best31 High Court judgment, above n 6, at [55].32 At [52], citing Kiddell v Chief Executive of Department of Corrections [2019] NZCA 171 at [26]and [27].33 At [53]–[57].34 Chief Executive of Department of Corrections v Chisnall [2019] NZHC 3126 at [157]. An appealagainst this judgment was heard by a Full Court of this Court earlier this year but the judgmenthas yet to be released.prediction based largely on statistical averages. Evaluation of Mr McIntosh's risk iscomplicated by the extensive external controls that have been in place since he wasreleased from prison. Mr Bailey says that taking all these matters into account andgiven the extent of the restrictions and the extended period for which these haveapplied, continuing the order for a further five years can be properly described as"inhumane".[44] It is beyond the scope of this appeal to address the conditions of the ESO.35These are imposed by the Parole Board and may be varied or discharged by the Boardon an application made pursuant to s 107O of the Act. There are rights of review andappeal in respect of these decisions.36 We were advised at the hearing thatMr McIntosh's conditions were most recently reviewed and amended by the Board inJanuary 2021, after the High Court judgment was delivered.[45] The sole issue before the Judge was whether to confirm the ESO or cancel it.The question for us on this ground of appeal is whether the Judge was wrong not toexercise her discretion to cancel the order under s 107RA(5). It does not appear to usthat the Judge overlooked any relevant matter, factored in the irrelevant or acted on awrong principle in exercising her discretion. We would only be justified in interferingon appeal if we were persuaded she was plainly wrong to exercise her discretion toconfirm the order.37[46] There was little or no evidence to suggest Mr McIntosh wanted to come offthe ESO or that this would be in his best interests. Ms Richards stated in her reportthat Mr McIntosh did not want the ESO to be cancelled and explained his reasons forthis:Mr McIntosh reported he was keen to continue with his ESO for a further fiveyears. He described how more recently he had strengthened his relationshipwith Departmental staff, having addressed previous grievances, and nowvalued the professional support and oversight that he was offered.35 Parole Act, s 107J.36 Sections 67, 68 and 107S.37 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]. Mr McIntosh reported that he cannot envisage a future where he would beable to live independently in the community. He reported that he could neversee his life without the current supports he has in place, stating these supportsacted as his "safety mechanism", and kept him on track.[47] Mr McIntosh was more ambivalent when speaking to Mr Prince but said hewas anxious about living in the community. He said he was happy to remain livingwhere he was and to continue with the support he currently receives. His main focusappeared to be on making progress towards achieving greater freedom over time:Mr McIntosh was somewhat ambivalent about remaining on an ESO.While he did not believe that he would sexually reoffend if released fromthe order, he was anxious about living in the community. He felt that he maybecome the victim of vigilantes. Further, due to knowing that any sexualreoffending would most likely result in sentences of Preventive Detentionand/or a [Public Protection Order], he wanted to minimise any risks and helpprovide some reassurance to the Court. To this end, he was happy to remainliving where he was with staff support (and feel safe at night), remain on anelectronically monitored bracelet, go on outings with his sponsors (rather thanstaff members), and hopefully secure employment where he can be monitoredby his employer. Over time, if no concerns were raised, he hoped toprogressively receive more "free time". Mr McIntosh added that he lovedhaving the freedoms currently permitted, such as being allowed to go toplaces/activities in the community and being allowed to prepare his own mealsand the likes. He did not want to jeopardise this.[48] We have already referred to Mr Prince's opinion that it would be "unethicaland unfair to Mr McIntosh to suddenly release him into the community". Faced withthis evidence, it is unsurprising the Judge decided not to cancel the ESO.[49] Where it is established that a person meets the high statutory threshold andposes a high risk of committing a relevant sexual offence within the remaining periodof an ESO, it will often be appropriate to confirm the ESO given the statutory purposeof public protection. We consider the Judge was right to confirm the ESO in allthe circumstances of this case.Result[50] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent