LLOYD ALEXANDER MCINTOSH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZSC 172

LLOYD ALEXANDER MCINTOSH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS[2021] NZSC 172 [3 December 2021]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 77/2021[2021] NZSC 172BETWEEN LLOYD ALEXANDER MCINTOSHApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: William Young, O'Regan and Williams JJCounsel: A J Bailey for ApplicantB C L Charmley for RespondentJudgment: 3 December 2021JUDGMENT OF THE COURTThe application for recall of this Court's judgment of 27 October 2021(McIntosh v Chief Executive of the Department of Corrections [2021] NZSC 142)is dismissed.____________________________________________________________________REASONS[1] The applicant applies for recall of this Court's judgment of 27 October 2021,in which we dismissed his application for leave to appeal.1[2] Although the basis for recall is not articulated, it appears to be on the basis thatthere is a very special reason requiring recall.21 McIntosh v Chief Executive of Department of Corrections [2021] NZSC 142.2 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].[3] The applicant says the Court misunderstood his counsel's argument in supportof his application for leave to appeal. In his submissions in support of the applicant'sleave application, counsel argued the Court of Appeal misinterpreted s 107IAA(1) ofthe Parole Act 2002. That provision sets out the matters of which the Court must besatisfied when assessing whether there is a high risk that an offender who is eligibleto be made subject to an extended supervision order will commit a relevant sexualoffence. The focus was on the factors in s 107IAA(1)(d) (remorse, acceptance ofresponsibility for past offending and understanding about the effect of the offendingon victims).[4] The Court of Appeal said the focus must be on whether the presence of one ofthe factors listed in s 107IAA(1)(d) was material, in the sense that it was present to asufficient degree to mitigate the risk the offender poses. Counsel argued this waswrong because s 107IAA does not refer to the effect of the absence or presence of thes 107IAA(1) factors. He added: "What s 107IAA requires is an objective judicialdetermination as to whether an offender displays the respective state of minds orpossesses the specified characteristics/qualities".[5] This Court described that argument as an argument that any degree of remorse,acceptance of responsibility or understanding for the effect of the offending on victimsis sufficient to rule out a finding that the criterion in s 107IAA(1)(d) is met. Counselsays he in fact accepted that "a requisite degree" of the relevant s 107IAA(1)(d) factoris required. He does not say what the requisite degree is and by what yardstick thatwould be measured if not by reference to the risk of future offending.[6] We do not see this refinement of the applicant's argument as affecting ourjudgment. We saw the argument that the Court of Appeal's approach was wrong ashaving insufficient prospects of success to justify leave being granted. If we hadarticulated the applicant's argument in the manner he says we should have, theoutcome would not have been different.[7] The application for recall is dismissed.Solicitors:Crown Law Office, Wellington for Respondent