HOFMANN v DEPARTMENT OF CORRECTIONS [2021] NZCA 256

HOFMANN v DEPARTMENT OF CORRECTIONS [2021] NZCA 256 [21 June 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA718/2020[2021] NZCA 256BETWEEN LYRIC DAISHAN HOFMANNAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 19 May 2021Court: Cooper, Simon France and Edwards JJCounsel: J D Lucas and J A Campbell for AppellantB C L Charmley for RespondentJudgment: 21 June 2021 at 10 amJUDGMENT OF THE COURTA The appeal is allowed.B The extended supervision order dated 2 December 2020 is set aside.___________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Hofmann is 23 years old. He has three Youth Court notations for doing anindecent act in 2012 and 2013, and two convictions for indecent assault in 2015 and2017.[2] On 2 December 2020, Mr Hofmann was made subject to a three-year extendedsupervision order (ESO).1 He appeals from the ESO on the grounds that the statutorycriteria were not met in that he has neither a "pervasive pattern of serious sexual offending",2 nor a "predilection or proclivity for serious sexual offending".3Statutory regime[3] The ESO regime is set out in pt 1A of the Parole Act 2002 (the Act).The purpose of an ESO is "to protect members of the community from those who,following receipt of a determinate sentence, pose a real and ongoing risk ofcommitting serious sexual or violent offences".4[4] A court may make an ESO in relation to sexual offending if it is satisfied that:(a) the offender has, or has had, a pervasive pattern of serious sexualoffending (s 107I(2)(a)); and(b) with regard to the factors set out in s 107IAA(1) of the Act, there is ahigh risk the offender will in future commit a relevant sexual offence(s 107I(2)(b)).[5] Section 107IAA(1) provides that the court may determine there is a high riskthat an offender will commit a relevant sexual offence only if it is satisfied that theoffender:(a) displays an intense drive, desire, or urge to commit a relevantsexual offence; and1 Department of Corrections v Hofmann [2020] NZDC 22818 [District Court judgment].2 Parole Act 2002, s 107I(2)(a).3 Section 107IAA(1)(b).4 Section107I(1).(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.[6] A "relevant sexual offence" is defined in s 107B(2) and includes indecentassault.Relevant offending[7] Mr Hofmann's first Youth Court notation was for offending in December 2012,when he was 15 years old. The offending involved exposing himself and masturbatingin public at a Four Square supermarket.[8] The incident occurred at about 4.00 am. Mr Hofmann opened the externalbakery door, looked inside and saw a woman. He then shut the door, exposed his penisand started to masturbate. The complainant opened the door and told him there weresecurity cameras in the area. Mr Hofmann walked towards her, continuing tomasturbate. She went inside and shut the door after her. Mr Hofmann ejaculated overthe external bakery door and then left.[9] Approximately one month later, Mr Hofmann urinated on a lamp post whilelooking directly at a 67-year-old woman who was standing at her kitchen window.He later returned to the same location, pulled his pants down and began masturbatingwhile making eye contact with the complainant. He ran away when she called herhusband.[10] The third incident occurred in 2013, when Mr Hofmann exposed himself to awoman walking her dog at a beach reserve and began masturbating his erect penis.He looked at the woman directly while doing this. The woman yelled out, "no, youcan't do this" and ran away.[11] We will refer to these incidents collectively as the "Youth Court offending".Mr Hofmann was sentenced to 100 hours' community work on 17 December 2013 forthis offending.[12] Two years later, in 2015, Mr Hofmann was convicted of indecent assault(2015 offending). He was 18 years old at the time. Mr Hofmann entered a localcommunity centre and told the 76-year-old female volunteer he was looking for a toyfor his dog. As she assisted Mr Hofmann, he indecently assaulted her by pressinghimself against her back and buttocks. When the complainant sat back down, he askedher if she had a partner and whether she lived alone, informing her that she shouldhave a partner. He was sentenced to one year's intensive supervision, six months'community detention and 80 hours' community work on 4 April 2017.5[13] The index offence occurred approximately three weeks after this sentencing,when Mr Hofmann was 19 years old (2017 offending). Mr Hofmann entered awoman's home unannounced as she was having dinner with her four-year-old child.He offered to sell her cannabis, which she declined. He then grabbed thecomplainant's buttocks and wrists, forcing her left hand down his pants and onto hispenis. Before she was able to remove her hand, he used his other hand to touch hergroin over the top of her clothing. She avoided his attempts to kiss her on the lips.At this point, the complainant's child ran outside and hid. The complainant repeatedlytold Mr Hofmann "no".[14] Mr Hofmann then pulled his pants down and tried to force the complainant'shead onto his exposed penis. He also asked the complainant to spend five minuteswith him in her bedroom. The complainant managed to get up from the table and awayfrom Mr Hofmann but not before he grabbed her buttocks again. He then left, tellingher to keep the incident a secret. She ran to a nearby house and reported what hadhappened.5 R v Hofmann [2017] NZDC 7367.[15] Mr Hofmann initially denied the offending, but eventually pleaded guilty tothe charge of indecent assault. He was sentenced to 21 months' imprisonment withsix months of post-release conditions.6Psychologists' reports[16] A clinical psychologist, Mr Hamish Dixon, prepared a report for theYouth Court in 2013 in relation to Mr Hofmann's Youth Court offending.[17] Mr Dixon identified concerning aspects of the offending including: returningto the same venue multiple times despite receiving a strong negative response;continuing the behaviour to the point of ejaculation; and not being dissuaded by theknowledge that he was being filmed, or threats. Mr Dixon recorded that teachers atMr Hofmann's school had reported concerns about the level of controlling behaviourand possessiveness that he showed towards his then girlfriend. He was living with herand her family at that time.[18] Mr Hofmann then attended the WellStop programme but did not complete it ashis family moved to another city. Mr Hofmann was reported as saying that he wasashamed of his behaviour and was under the influence of drugs at the time of hisoffending. The end of treatment summary recorded Mr Hofmann as being at "mediumrisk" of reoffending as a result of not completing the programme.[19] Following conviction for the 2015 offending, another clinical psychologist,Ms Shelly Lomas, assessed Mr Hofmann under s 38(1)(c) and (d) of the CriminalProcedure (Mentally Impaired Persons) Act 2003 to assist the Court with sentencing.[20] Ms Lomas noted that the Youth Court offending appeared to have taken placewhen Mr Hofmann's mother was diagnosed and treated for a brain tumour. He thenremained offence-free until 2015 when his mother once again became ill.Mr Hofmann's mother died a week before Ms Lomas' assessment of Mr Hofmann.Ms Lomas assessed Mr Hofmann as being in the "moderate high" risk category usingthe STATIC-99R and STABLE-2007 tools. She noted that Mr Hofmann's current6 R v Hofmann [2018] NZDC 8401.presentation was of a person suffering from reactive depression and his offending hadoccurred when he was under the influence of drugs. She noted that Mr Hofmann'ssexual behaviour did not warrant specialised sexual offender treatment, but if it causedfurther concern, he could be referred back to a community programme.[21] Dr Toyia McWilliams prepared a health assessor report dated 19 December2019 in support of the application for an ESO. She concluded that Mr Hofmann'sgeneral pattern of sexual offending was considered to be impulsive, with an escalationin seriousness over time. It was also associated with substance use which exacerbatedhis underlying mental health issues. Common to each of his offences was the fact thathe was grieving the loss of someone close to him at the time. Mr Hofmann wasassessed as posing a high risk of engaging in relevant sexual offending within 10 yearsof release. Dr McWilliams also considered that the factors identified in s 107IAA ofthe Act were established. She prepared an addendum report dated 29 July 2020 inwhich she confirmed her earlier findings.[22] Those findings were also confirmed in oral evidence given by Dr McWilliamsat the hearing. She was questioned about the treatment Mr Hofmann had received. Inher original report, she had noted that Mr Hofmann had attended nine sessions with adepartmental psychologist. He was reported to have actively engaged in thosesessions, completing homework, undertaking written tasks during sessions andevidencing insight into the triggers for his offending. Dr McWilliams was unable togive any further update on those sessions, except that Mr Hofmann was continuing tosee a psychologist and that he enjoyed attending the sessions.A pervasive pattern of serious sexual offending?[23] Judge D J L Saunders in the District Court concluded that there was a patternof increasing seriousness of sexual offending which had progressed from theYouth Court offending to the 2017 offending.7[24] Mr Lucas, counsel for Mr Hofmann, challenges this finding on the groundsthat:7 District Court judgment, above n 1, at [37]–[38].(a) the Judge followed the wrong methodology and did not make a findingin relation to the statutory prerequisites;(b) Mr Hofmann's offending was not "pervasive"; and(c) the Judge erred in assessing the seriousness of the past offending.[25] It would have been preferable for the Judge to approach the decision inaccordance with the three-step methodology set out in Chief Executive, Department ofCorrections v Alinizi,8 but there was no mandatory requirement for him to do so. Inany event, we are not persuaded that the sequence in which the Judge addressed thestatutory criteria led him into error. The focus of this appeal is on whether the Judgewas correct to find the requirement in s 107I(2)(a) established.[26] We start with whether there is a "pattern" of sexual offending. As this Courtnoted in Kiddell v Chief Executive of the Department of Corrections, a patternconnotes "regularity" but "may take any form or sequence".9 We consider there is apattern in Mr Hofmann's sexual offending. There is a total of five incidents over afive-year period. The Youth Court offences were committed within months of eachother. The other offending occurred within a two-year period; the 2017 offendingoccurring shortly after Mr Hofmann was sentenced for the 2015 offending.[27] The next question is whether the pattern is "pervasive". A "pervasive" patternis one that permeates or spreads across an offender's background and is sufficientlycharacteristic of the offender to serve as a predictor of future conduct.10 We considerMr Hofmann's pattern of sexual offending meets that definition. The sexual offencesmark Mr Hofmann's criminal history, starting at a young age and carrying through toadulthood.[28] There are also links between the offending. The Youth Court and 2017offending involved exposure of Mr Hofmann's penis, and persistence in the face of8 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].9 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [23(c)].10 At [23]; and W (CA716/2018) v Chief Executive of the Department of Corrections [2019] NZCA460 at [24].opposition. The 2015 offending was of a different character, but there was an elementof control in that offending which was also evident in his other offending. Each of theoffences occurred when Mr Hofmann was grieving about the illness or loss of a lovedone. Dr McWilliams opined that sexual gratification was used as a coping mechanismwhen Mr Hofmann was experiencing distressing emotions. Substance abuse andintoxication appeared to be another feature present on each occasion. These are allfeatures which are characteristic of Mr Hofmann's offending and, together, serve tomeet the requirement of pervasiveness.[29] Next, we turn to the key issue in this case: whether Mr Hofmann's pervasivepattern is of "serious" sexual offending. This Court discussed the meaning of thatphrase in Holland v Chief Executive of the Department of Corrections:11[44] We consider that the phrase "serious sexual offending" falls to beinterpreted by reference to its ordinary meaning viewed against the purpose ofthis part of the Parole Act. In ordinary language "serious" means "important,grave; having (potentially) important, esp. undesired, consequences; givingcause for concern; of significant degree or amount, worthy of consideration".[45] The imposition of an ESO is, of course, a significant step that restrictsan offender's freedom of movement and association for up to 10 years afterhe or she has served the sentence imposed for the subject offence. Theseconsequences are regarded as justified to protect the public from future risk.Self-evidently, only offending at the higher end of the range would justify sucha step. Parliament could not be taken to have contemplated that a pattern ofoffending at the lower end of the spectrum would justify consideration of sucha potentially draconian constraint. It is, however, an assessment for the judgeon the facts of the particular case.[30] Putting aside the 2017 offending, which was clearly serious in nature, we donot consider the remaining offences are at the end of the spectrum that justifies thesevere limitations imposed by an ESO. The Youth Court offending did not involvephysical contact. Although we accept that non-contact offending is not determinativeof whether the offending is serious,12 each case is to be determined on its own facts.We do not diminish the impact of this offending on the complainants, but in light ofthe range of sexual offending covered by an indecent assault charge, the Youth Courtoffending was at the lower end of the scale.11 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 (footnote omitted).12 At [48].[31] The 2015 offending also falls short of the relevant threshold. This offendingdid not have an overt sexual component, and the contact appeared to be fleeting.Although no doubt distressing for the complainant, in our view, the nature of thisindecent assault does not qualify as "serious" within the meaning of the Act.[32] Considering the totality of the offending does not alter that conclusion.While Mr Hofmann's behaviour is concerning, the overall gravity of the offendingremains the same. This distinguishes Mr Hofmann's case from the offending inKiddell, which was said by Ms Charmley for the Crown to be analogous.13 That casealso involved convictions for exposing genitalia and masturbating in public.Mr Kiddell was much older than Mr Hofmann (having been born in 1957) and had anextensive criminal history that had continued into his later years. Some of hisconvictions involved exposing his penis to young girls, and he was found to have138 images and 14 video files of an objectionable nature on his computer, includingsexual activity between adults and children.14 It was the totality of the conduct in thatcase that established a pervasive pattern of serious sexual offending.15 Those featuresare absent from Mr Hofmann's offending even when his criminal history is consideredas a whole.[33] In Wardle v The Chief Executive of the Department of Corrections, this Courtrecognised that seriousness may be aggravated by an offender's past history of relevantoffending, and in retrospect, an offence may be seen as forming part of a pattern whenan offender's subsequent conduct is taken into account.16 The escalation inMr Hofmann's offending is a matter of real concern. We accept that the escalation inthis case means that the earlier offences take on a greater level of seriousness, but wedo not consider any elevation in overall gravity to be sufficient to meet the thresholdrequired for the imposition of an ESO.[34] There is, of course, a real and genuine concern that Mr Hofmann will continueto offend in the future. The desire to protect the community from future offending isnatural in those circumstances. But the object of an ESO is not to protect the public13 Kiddell v Chief Executive of the Department of Corrections, above n 9.14 At [8].15 At [29]–[30].16 Wardle v The Chief Executive of the Department of Corrections [2017] NZCA 298 at [44]–[45].from all recidivist offenders. Parliament has set the threshold much higher than that.Given the serious intrusion on fundamental rights and freedoms, we do not considerMr Hofmann's pervasive pattern of offending is a pattern of "serious" sexualoffending within the meaning of s 107I(2)(a).[35] The challenge on this ground succeeds and the ESO must be set aside.Other grounds[36] Our finding on the first ground means it is unnecessary to consider thechallenge to the Judge's assessment under s 107I(2)(b), in particular, the determinationthat Mr Hofmann has a "predilection or proclivity for serious sexual offending" unders 107IAA(1)(b).[37] However, we do wish to make a comment about treatment. The earlypsychological report prepared by Mr Dixon suggests Mr Hofmann was resistant tospeaking about his sexual offending and engaging in treatment. That is perhaps notsurprising given he was 15 years old at the time, and dealing with the emotionaldistress of a sick, and then dying, mother. However, the evidence before the Court atthe ESO hearing suggested Mr Hofmann's attitude towards treatment had changed.He was more willing to speak about his sexual offending and had attended nineindividual sessions with a departmental psychologist.[38] Regrettably, detailed information regarding the efficacy of that treatment wasnot disclosed to Dr McWilliams and was not before the Court. This was informationwithin the control of the Department of Corrections, but not accessible byDr McWilliams after she left. We consider it was incumbent on the Department ofCorrections to ensure that all relevant information was disclosed to the health assessorand placed before the Court. That was particularly important in Mr Hofmann's casegiven his young age, and the fact that substance abuse and the emotional distresscaused by the death of his mother had been identified as triggers for his offending.Information regarding the treatment received by Mr Hofmann may have been relevantto the criteria in s 107IAA(1) and the overall assessment of his future risk.Result[39] The appeal is allowed.[40] The extended supervision order dated 2 December 2020 is set aside.Solicitors:Crown Law Office, Wellington for Respondent