TE PANIA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 161

TE PANIA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 161 [9 May2023]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 AOTEAROACA673/2022[2023] NZCA 161BETWEEN MAAKA JUNIOR TE PANIAAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 28 March 2023Court: French, Dunningham and Cull JJCounsel: G H Vear and A Spika for AppellantC A Brook for RespondentJudgment: 9 May 2023 at 11 amJUDGMENT OF THE COURTA The appeal is allowed in part.B The 2022 extended supervision order is confirmed.C The order of the High Court directing the Parole Board to impose anintensive monitoring condition is set aside. The intensive monitoringcondition of the 2022 extended supervision order should accordingly beremoved.____________________________________________________________________REASONS OF THE COURT(Given by Cull J)[1] Mr Te Pania appeals the decision of Wylie J imposing a 10-year extendedsupervision order (ESO) with a 12 month intensive monitoring (IM) condition(the 2022 ESO).1Background[2] Mr Te Pania is aged 56 and is a recidivist sexual offender, with 18 convictionsfor sexual offending against numerous victims (at least 16) over the last 38 years.[3] Mr Te Pania became subject to an ESO in 2016 (the 2016 ESO) withspecial conditions.2 One of those special conditions required Mr Te Pania to reside ata specified address, which was Manaaki House where he has been living since 2018.In 2019, while the 2016 ESO was in force, Mr Te Pania committed another sexualoffence. He was delivered by a Manaaki House worker to a supermarket, where hefollowed an unaccompanied female shopper around the supermarket, trying to talkto her. Eventually, he indecently assaulted her by touching her left buttock.[4] In sentencing Mr Te Pania for this offence,3 Lang J declined to impose asentence of preventive detention and imposed a term of 12 months' home detention toManaaki House in West Auckland.4 Mr Te Pania's sentence was to expire on4 August 2022.[5] Just prior to the expiry of Mr Te Pania's sentence, and in response to Lang J'sobservations that this course of action was available,5 the Chief Executive of theDepartment of Corrections (the Chief Executive) applied:(a) to vary the conditions attaching to the 2016 ESO;1 Chief Executive of the Department of Corrections v Te Pania [2022] NZHC 2926 [Te Pania —2022 ESO].2 Chief Executive of the Department of Corrections v Te Pania [2016] NZHC 1215.3 R v Tepania [2021] NZHC 2015 (Mr Te Pania's name was wrongly recorded as Tepania in thesentencing notes).4 Manaaki House is a reintegration facility for those who have been in prison with mental healthissues or cognitive difficulties.5 R v Tepania, above n 3, at [28].(b) for an interim supervision order (ISO) with an IM condition, pendingthe Court's consideration of the 2022 ESO; and(c) for a new ESO with an order requiring the Parole Board to impose anIM condition.[6] On 22 August 2022, Downs J granted the ISO with an IM condition.6The Parole Board varied Mr Te Pania's conditions to impose a night-time curfew from8 pm to 8 am daily.7Decision under appeal[7] The substantive 2022 ESO application came before Wylie J, who grantedthe Chief Executive's application for a new ESO with a term of 10 years and anIM condition for the statutory maximum of 12 months.8 The other conditions (asidefrom the IM condition and associated conditions) are the same as the special conditionsof the 2016 ESO.[8] Because of the most recent offending, the Judge considered Mr Te Paniarequired residential restrictions and intensive monitoring when in the community.It was held that Mr Te Pania's high risk of further sexual offending was very likely tocontinue over the next 10 years.9Grounds of appeal[9] The grounds of appeal are that the Judge erred in:(a) ordering the 2022 ESO; and/or(b) imposing the IM condition; and/or(c) imposing the maximum period of 12 months in respect of theIM condition.6 Chief Executive of the Department of Corrections v Te Pania [2022] NZHC 2086.7 Department of Corrections v Te Pania, decision of the Parole Board, undated. The decision is notpublicly available.8 Te Pania — 2022 ESO, above n 1, at [53].9 At [43(e) and (g)] and [46(c)].[10] This appeal is brought under s 107R of the Parole Act 2002 (the Act).Under s 107R(2) of the Act, it is to be treated as a first appeal against sentenceapplying pt 6 and s 244 of the Criminal Procedure Act 2011.Parole Act provisions[11] Part 1A of the Act governs ESOs. The purpose of an ESO is "to protectmembers of the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexual or violentoffences".10 The offence which gives rise to the application for an ESO must be arelevant offence under s 107B,11 and the offender must be eligible under s 107C whichrequires that the offender be either serving a sentence of imprisonment, be subject torelease conditions, or be subject to an existing ESO.12[12] Section 107I(2) then provides when the court may make such an order:(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F,the court is satisfied, having considered the matters addressed in thehealth assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serioussexual or violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commita relevant sexual offence:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.[13] In determining an application for an ESO, the Court must be satisfied of theconsiderations under s 107IAA, which are "mandatory and conjunctive".13The relevant provisions are as follows:(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 that theoffender—10 Parole Act 2002, s 107I(1).11 In this case the relevant offending is listed under section 107B(2)(l): Crimes Act 1961, s 135(indecent assault) is a relevant offence.12 Section 107C(1)(a)(i)–(iii).13 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [21].(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.[14] If, after using its discretion, the Court makes an ESO, the order must be for the"minimum period required for the purposes of the safety of the community"14 and forno more than 10 years.15[15] There is no statutory threshold for the imposition of an IM condition, nor a setof factors that the court must take into consideration.16 An IM condition requires anoffender to submit to being accompanied and monitored for up to 24 hours a day byan individual approved to undertake the monitoring.17[16] An IM condition can only be imposed once, regardless of the number of ESOsa person is subject to, and it cannot extend beyond the statutory maximum of12 months.18 The IM condition must apply at the beginning of a person's ESO period.[17] A Full Court of this Court in Chisnall v Attorney-General confirmed ESOsshould be regarded as a penalty.19 They constitute a second punishment engagings 26(2) of the New Zealand Bill of Rights Act 1990 (NZBORA).2014 Parole Act, s 107I(5).15 Section 107I(4).16 Chief Executive of the Department of Corrections v Paniora [2018] NZHC 1505 at [46].17 Parole Act, s 107IAC(2).18 Section 107IAC(3) and (5).19 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [138].20 At [138].The 2022 ESO[18] There was no issue raised by Mr Te Pania at the substantive ESO hearing inNovember 2022 as to whether the grounds for an ESO were met. The principal issuebefore Wylie J and before us is whether a fresh ESO with an IM condition should beissued in the circumstances.[19] In reaching his decision to grant a fresh ESO, Wylie J considered the fact thatMr Te Pania's home detention sentence was complete, and a full residential restrictionwould still be required to mitigate Mr Te Pania's risk of future offending.21 The Judgereferred to the fact that Mr Te Pania was "not currently detained at Manaaki House"and although he was subject to a condition requiring that he reside where directed, aprobation officer could not unreasonably refuse to approve an alternative suggestedaddress.22[20] The Crown contended that Mr Te Pania was already subject to the mostrestrictive conditions that were able to be imposed under the 2016 ESO (that is, acurfew with GPS monitoring) and yet he was able to reoffend without breaching anyof its conditions. The Crown contended that the conditions had not been breached byMr Te Pania, because he was entitled to go to a supermarket. Thus, further conditionswere required to address the risk posed by Mr Te Pania, given his offending.[21] At the hearing before us, counsel confirmed that when the offending occurredin 2019, Mr Te Pania went to the supermarket unaccompanied. One of the staffmembers of Manaaki House dropped him at a supermarket, three kilometres awayfrom the Manaaki House residence, leaving Mr Te Pania unsupervised. Under the2016 ESO, Mr Te Pania was subject to the following conditions:(8) Not to enter or loiter near any shopping centre specified in writing byyour Probation Officer, or any library, unless you are under the directsupervision of an adult approved in writing by the Probation Officer,or with the consent of a Probation Officer.(9) Not to attend or loiter within 400 metres of any community or culturalevent specified in writing by your Probation Officer, unless you are21 Te Pania — 2022 ESO, above n 1, at [43(e)].22 At [43(a)].under the direct supervision of an adult approved in writing by theProbation Officer, or with the consent of the Probation Officer.(10) Not to loiter near or enter any parks, beaches, playgrounds, schools orpreschools, or areas specified in writing by your Probation Officerwhere children congregate, unless you are under the direct supervisionof an adult approved in writing by the Probation Officer, or with theconsent of the Probation Officer.[22] We understand that for the duration of the 2016 ESO, no shopping centre hadbeen specified in writing for the purpose of condition eight, nor had any "communityor cultural events" for the purpose of condition nine. No "parks, beaches, playgrounds,schools or preschools" had been specified in writing by his Probation Officer for thepurpose of condition 10. Thus, in the absence of a Probation Officer approving adultsupervisors and authorising designated site visits to occur, it appears the staff atManaaki House had not been made aware that Mr Te Pania must be under the directsupervision of an approved adult when entering or loitering near any shopping centre.[23] We do not accept the Crown's submission, therefore, that the 2016 ESOconditions at the time of the relevant offending in 2019 were insufficient orinappropriate. The conditions had simply not been implemented properly. However,the Crown's position that Mr Te Pania had not breached his ESO conditions is correct.It was not Mr Te Pania's fault that he was left unsupervised at a supermarket,three kilometres away from his residence. Nor should he receive more restrictiveconditions because of another's default. The imposition of an IM condition in thesecircumstances can be viewed as particularly punitive when Mr Te Pania had notbreached the conditions of the existing ESO.[24] Although Ms Vear for Mr Te Pania submitted that the 2022 ESO should be setaside, to reactivate the 2016 ESO as the default order, this is not legally possible.Under s 107L(3)(c) of the Act, once a new ESO order comes into force, the previousorder expires. As a result of the making of the 2022 ESO, therefore, the 2016 ESObecame void.[25] As all parties agree, an ESO is necessary to mitigate Mr Te Pania's future riskof offending. The 2022 ESO should therefore remain in force together with the specialconditions that attached to the 2016 ESO.[26] We have also given consideration to the appellant's argument that if the2022 ESO were to remain in force, it should expire in June 2026, as the original2016 ESO would have done. On the basis of the 2022 assessment by Dr Louw,Mr Te Pania displays an intense drive for sexual connection and his urges are almostimpossible for him to resist unless supervised.23 If Mr Te Pania's risks attenuate overtime and as he ages, it is open to him, or to the Chief Executive, to seek variation orextinguishment of the ESO.24 Mr Te Pania's risks of committing a relevant sexualoffence or relevant violent office would have to be reassessed at that time.Foreshortening the duration of the current 2022 ESO requires careful medicalassessment. The evidence before Wylie J did not support a limited duration.25The IM condition[27] Mr Te Pania submits the IM conditions were not the only way to manage therisk of imminent sexual offending and that the Judge failed to take into account thebalance of Dr Louw's evidence, particularly the concession that where the conditionsof the 2016 ESO are in place and are complied with, Mr Te Pania's risk is reduced.It was noted that Mr Te Pania is not in any kind of transitional period of high risk.[28] We uphold the appellant's submission. As noted above,26 if the 2016 ESOconditions had been properly implemented, the offending at the supermarket in 2019could have been avoided.[29] Strict compliance with the 2022 ESO conditions without the IM conditionwould, in our view, be sufficient to mitigate Mr Te Pania's risk in public areas asspecified. There was therefore no need for an intensive monitoring condition, whichrequires 24-hour monitoring by the staff at Manaaki House in addition to the curfewfrom 8 pm to 8 am. Mr Te Pania's risk is being unsupervised at community events,shopping centres and places where the community congregates, as his conditionsstipulate. He is not a risk within his residential environment.23 Te Pania — 2022 ESO, above n 1, at [31]. Parole Act, s 107IAA(1)(a).24 Sections 107M(1) and 107O(1).25 Te Pania — 2022 ESO, above n 1, at [45]–[47].26 At [23].[30] The 2016 conditions provide for Mr Te Pania's residential place to be specified.The evidence of Dr Louw confirms that Mr Te Pania interacts and responds well to thestaff at Manaaki House and that their presence or supervision in his view would be asignificant deterrent for Mr Te Pania.[31] Accordingly, we conclude that the IM condition is not the least restrictiveoption available to mitigate Mr Te Pania's risk. The IM condition should be set asidefrom the 2022 ESO.Duration of the IM condition[32] In light of our conclusions on the first two grounds of appeal, this ground ofappeal falls away. The issue of duration of an IM condition and whether time spenton an IM condition under an ISO should be taken into account should await an appealwhere the issue is determinative.Result[33] The appeal is allowed in part.[34] The 2022 extended supervision order is confirmed.[35] The order of the High Court directing the Parole Board to impose an intensivemonitoring condition is set aside. The intensive monitoring condition of the 2022extended supervision order should accordingly be removed.Solicitors:Public Defence Service, Wellington for AppellantCrown Law Office, Wellington for Respondent