P (CA388/2018) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 599

P (CA388/2018) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 599 [18December 2018]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA388/2018[2018] NZCA 599BETWEEN P (CA388/2018)AppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 26 November 2018Court: Winkelmann, Ellis and Whata JJCounsel: J M Scott and A Spika for AppellantD G Johnstone for RespondentJudgment: 18 December 2018 at 12 pmJUDGMENT OF THE COURTA The appeal is allowed.B The extended supervision order made by the High Court on 12 June 2018is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] On 12 June 2018 P was made subject to a two-year extended supervision order(ESO), pursuant to s 107I of the Parole Act 2002 (the Act).1 P now appeals againstthat decision on the ground that one of the four statutory pre-conditions for the exerciseof the Court's ESO jurisdiction was not met. Specifically, P says thatthe High Court Judge was wrong to find that he displayed an "absence ofunderstanding for or concern about the impact of his sexual offending on actual orpotential victims".2BackgroundOffending history[2] On 5 December 2003, P was sentenced in the High Court at Auckland to14 years' imprisonment, having been found guilty of three charges of sexual violationby rape, two charges of attempted sexual violation by rape, four charges of indecentlyassaulting a girl under 12 (the offending beginning when the girl was seven andcontinuing over several years), and one charge each of sexual violation by unlawfulsexual connection, indecently assaulting a boy under 12, and inducing or permitting aboy under 12 to do an indecent act (relating to a single event, when the boy was 10).3The boy was the step-brother of his partner, W, and the girl was her daughter. Bothcomplainants are now adults.Subsequent events[3] Between September 2011 and June 2012 P received treatment inthe Kia Marama Special Treatment Unit at Rolleston prison. During this time, hedisclosed his own history of childhood abuse, including abuse suffered while in aboys' home. It was also during this time that he voluntarily disclosed two furtherincidents of his own sexual offending (against an 11-year-old girl and a 14-year-oldboy), when he was 17.1 Department of Corrections v P [2018] NZHC 1381 [High Court judgment] at [119].2 Parole Act 2002, s 107IAA(1)(d)(ii).3 R v [P] HC Auckland T031233, 5 December 2003.[4] In June 2012, following this treatment, a prison psychologist recorded her viewthat P: has gained an awareness of and modified a number of cognitive distortionswhich he previously used to justify his sexual offending. Throughouttreatment he appeared to reflect on and gain a greater understanding of theimpact his behaviour had on others throughout his life. As such he appearedto make good progress in gaining an empathic appreciation of the harm hisactions have caused the victims of his sexual offending.[5] She also expressed the view that P should remain at Kia Marama until hisrelease because a return to other prison units would "potentially expose him toinfluences that may undermine his treatment gains".[6] That recommendation was not followed and the psychologist's predictionsproved accurate. As a result, P was readmitted to Kia Marama, where he receivedfurther treatment between February and November 2013.[7] On 22 December 2014 P was released on parole. Just prior to his release apsychological treatment report was prepared in which he was assessed as presenting a"medium-high" risk of further sexual offending. The report writer noted that he was: able to gain a sound intellectual understanding of his offence process, aswell as develop an emotional appreciation of the impact of his sexual abusivebehaviour on the victims of his sexual offending.[8] P's release conditions included that:(a) he was not to enter the "Franklin area";4 and(b) he was not to associate with children under the age of 16, except withapproved supervision.[9] While on parole P was compliant with his reporting obligations and attendedRelapse Prevention Group (RPG) sessions. He remained offence free for 18 months.4 The reason for this condition was that P had "former anti-social and gang connections" inPukekohe (which is within the Franklin area).But in July 2016 he was arrested and charged with two breaches of his releaseconditions.[10] The relevant circumstances were that P travelled to his family home inPukekohe. Because Pukekohe is within the Franklin area, this was the first breach.The object of his visit was to see his older son (who was over 16) who had just beenarrested for aggravated robbery. P's undisputed account was that he wanted to talk tohis older son about making better "life choices". The second breach occurred becausehis younger son, who was 14 at the time, was also (unexpectedly) at home. We observethat P has never offended against his own children and there was no specific conditionthat he not associate with them. Rather, his coming into contact with his 14-year-oldson was a breach of the general condition that he not associate with anyone underthe age of 16 without supervision by an approved person.[11] Nonetheless, because P's previous offending had occurred in a family homecontext, the Department of Corrections viewed his decision to make the visit asintentionally placing himself in a "high risk" situation.5 There is, however, no disputethat the Pukekohe address was not the location of his historic offending. Nor had thevictims of his earlier offending ever lived there.[12] P accepted his breaches (and his error of judgement) immediately but wasrecalled to prison and sentenced to a further five months' imprisonment. P wasreleased again on 19 July 2017 and was again subject to release conditions, whichexpired on 4 February 2018. The conditions included that he "not associate" with W"without the written consent of his probation officer".[13] The nature of P's previous offending meant that he was an "eligible offender"for the purposes of the ESO regime. To that end, P was interviewed by a Correctionspsychologist, Dr Toyia McWilliams, who recorded her findings in a report dated28 August 2017. Her view was that P presented a high risk of committing a relevantsexual offence in the future. We return to the contents of this report in more detail,later.5 A view with which Dr Clarke disagreed at the ESO hearing.[14] On 21 November 2017, the Chief Executive filed an application for an ESO.The proposed duration of the ESO was 10 years.[15] On 29 November 2017, P consented to the imposition of an interim supervisionorder (ISO) under s 107FA of the Act pending determination of the ESO application.One of the special conditions of the ISO was "[n]ot to associate with [W], unless youhave the prior written consent of a Probation Officer."[16] On 17 December 2017, P sought and obtained approval from his probationofficer to make and maintain telephone contact with W, who was then undergoingtreatment for cancer.[17] In February 2018, P met with Dr Annabel Clarke who had been engaged by hislawyer for the purposes of the ESO application. Her view was that P presented onlya moderate risk of committing a relevant sexual offence in future. Again, we returnto the detail of her report later.[18] P continued to attend monthly RPG meetings and was described as an active,open and engaged member. He also obtained full time employment.The ESO hearing and decision[19] In order to decide whether to make an ESO, the Judge had to determine(under s 107I of the Act) whether P has or has had a pervasive pattern of serious sexualor violent offending, and whether there is a high risk that he will in future commit arelevant sexual offence.6 In light of the nature of P's historic offending, there was nodispute as to the existence of the relevant pattern so we do not need to discuss thatfurther in this judgment.[20] A finding of "high risk" required it to be established that P displays all of thefour pre-conditions set out in s 107IAA, namely:(a) an intense drive, desire or urge to commit a relevant sexual offence; and6 Parole Act, s 107I(2).(b) a predilection or proclivity for serious sexual offending; and(c) a limited self-regulatory capacity; and(d) either or both of the following:(i) a lack of acceptance of responsibility or remorse for pastoffending; and/or(ii) an absence of understanding for or concern about the impact ofhis or her sexual offending on actual or potential victims.The evidence about risk[21] Both Dr McWilliams' and Dr Clarke's reports were before the Court.Both also gave evidence orally and were cross-examined. They did not agree eitherabout P's level of risk using the standard risk assessment tools or as to whether the fourstatutory preconditions for a finding of "high risk" were met.[22] Their conclusions based on the use of actuarial risk assessment tools were:(a) using the RoC*RoI static risk tool,7 Dr McWilliams concluded that Ppresented a moderate risk of imprisonment within five years;(b) using the Automated Sexual Recidivism Scale (ASRS) static risk tool,Dr McWilliams concluded that P presented a medium-high risk ofsexual reoffending;(c) using the Violence Risk Scale: Sexual Offender Version (VRS:SO)measure of static and dynamic risk:(i) Dr McWilliams concluded that P presented a medium-high riskof sexual reoffending;7 The RoC*RoI is a tool used by the Department of Corrections that measures the offender's Risk ofReConviction multiplied by the offender's Risk of Imprisonment.(ii) Dr Clarke concluded that P presented a moderate-low risk ofsexual reoffending; and(d) using the Static-99R measure, Dr Clarke assessed P as presenting anaverage risk of sexual and violent recidivism.[23] Overall, when these results were combined with clinical risk factors:(a) Dr McWilliams' view was that P presented a high risk of sexualreoffending; and(b) Dr Clarke's view was that P presented a moderate risk of sexualreoffending.[24] Dr McWilliams also considered that all four statutory pre-conditions were metin P's case whereas Dr Clarke considered that none of them were. Dr Clarke'sconclusion was that:[P] does not demonstrate an intense drive, desire, or urge to commit a relevantsexual offence at this time and has not done so since his recall to prison in2016. Furthermore, he has not demonstrated proclivity for serious sexualoffending since his release in 2014. [P's] self-regulatory capacity isconsidered adequate and, whilst the adequacy level is not considered to havebeen long-held, it is solidly based on skills learnt in treatment and has beenproven through difficulties in the community. [P] accepts responsibility andremorse for his offending and has a reasonable level of understanding for orconcern about the impact of his sexual offending on actual victims.[25] No issue on appeal has been taken with the Judge's contrary findings in relationto the first three pre-conditions. As noted earlier, the focus of P's appeal was solelyon his findings concerning the second aspect of the last pre-condition, namely P's"absence of understanding for or concern about the impact of his or her sexualoffending on actual or potential victims".8 It is necessary therefore to consider theevidence on that issue in more detail.8 Parole Act, s 107IAA(1)(d)(ii). It was accepted by the Chief Executive that the first and alternativelimb of s 107IAA(1)(d) could not be relied on; the evidence was clear that P did display bothacceptance of responsibility and remorse for his offending.[26] In her written report, Dr McWilliams recorded:During the current interview, [P] accepted partial responsibility for his sexualoffending behaviour, and expressed empathy and remorse for his actions.While he admitted to and acknowledged his sexual offending against hisvictims, the fact that he intends to reunite with his partner despite the impactit may have on his victims shows his lack of concern for his victims andunwillingness to help his victims feel safe; thus, demonstratingirresponsibility on his part. However, he was clearly able to identify how hisvictims must have felt while he was offending against them and based this offhis own experience. He also drew a link between his own sexual abuse andhow he re-enacted the abuse with his own victims. At the end of the discussion,he expressed respect and admiration toward his victims for disclosing theoffending. In his words, "I'm glad she actually spoke up and said something.I probably still would be doing it. She helped me by speaking out. They didsomething I couldn't do for myself — tell someone. They were stronger thanme".[27] Later, in the report under the heading: "The offender's understanding for orconcern about the impact of his or her sexual offending on actual or potential victims"Dr McWilliams said:During the current assessment, [P] was able to identify how his sexualoffending behaviour impacted on his victims and their families by comparinghis own experience with theirs. He became tearful when he talked about howhe has hurt the victims and acknowledged the pain, fear, and shame they musthave felt.[28] But then, she said:However, it is the opinion of the writer that he does not appear to understandhow maintaining a relationship with his partner (the victims' mother andsister) affects the relationship these victims have with his partner. It does notseem to occur to him that their relationship with her is strained due to hercontinued contact with and support of him. In summary, [P] seems to havesome limited understanding on how sexually offending behaviour harmsothers.[29] The question of P's desire to have continued contact with W was exploredfurther with Dr McWilliams during her oral evidence. She said that the issue had comeup "several times" during her interview with P and that she gave him feedback aboutit:The feedback I gave was just that, the concern that he wasn't considering thevictims' feelings, thoughts and feelings about that, about how they may see orhow it may affect their own relationship with his partner at the time. So wedid have a discussion about that and I did note that I saw it as problematic atthe time.[30] When it was put to Dr McWilliams that P had told Dr Clarke that he no longerwished to reunite with W and that Dr Clarke was of the view that he had someunderstanding of the impact of continued telephone-based friendship with W on hisvictims,9 Dr McWilliams said: [Dr Clarke's] commenting on the fact that he showed a lower level ofunderstanding about the impact of his continued telephone-based friendshipwith his ex-partner upon the victims and I see that as exactly the same thingas when he wanted to reunite with his partner [31] But she also said:Well, now that I know, or that we've been told that he doesn't want to reunitewith her and that it's just more support and they do have children together, itmight have changed my opinion, yes. At the time he told me, like I said, hewas kind of back and forth with that and he wasn't quite sure with the leaningmore towards reuniting with her, and that's what was the concern for me.[32] Elsewhere in her evidence Dr McWilliams queried whether P's apparent retreatfrom his desire to have more than a telephone relationship with W might simply havebeen a "learned response" to her having raised the matter of contact as problematic.Under cross-examination she said that she could not be sure whether P's change ofheart regarding his relationship with W was "something that he genuinely feels or ifhe knows that's what we would like to hear".[33] In Dr Clarke's report, her conclusion on the question "empathy" was expressedas follows:[P] accurately verbalised some of the potential effects upon the victims of hissexual offending, identifying both unpleasant feelings, and behaviouralchanges and difficulties. He demonstrated empathy for the victims within thisdiscussion, becoming tearful when he talked about the long-term nature of thehurt caused and then aligning the victim's experiences with his own.[34] But she, too, expressed some reservations about the question of telephonecontact:[P] showed a lower level of understanding about the impact of his continuedtelephone based friendship with his ex-partner upon the victims. However, hedid show some basic understanding that his ongoing contact with hisex-partner made her relationships with the victims more difficult, but it9 P had received permission to make telephone contact with W some months after his interview withDr McWilliams.appears his understanding was limited by not having his own experiences todraw upon.[35] Nonetheless, her conclusion was that: [P] has a reasonable level of understanding for or concern about the impactof his sexual offending on actual victims.[36] When questioned at the hearing on the general point, Dr Clarke reiterated:So he did show good understanding for the kind of direct impact on his victimsin terms of what that experience of abuse was like for them and what some oftheir behaviour and emotional outcomes would have been and I thought thatwas quite accurate and it was clear he was drawing from his own experienceas well because he referred back to that within that wider discussion.[37] But on the specific question of telephone contact, her focus changed:I also asked him about the issue with his ex-partner and I found, so that wasspecifically about kind of how difficult it is for her to continue to have arelationship with him, even if it's only a telephone relationship and also haverelationships with the victims and I found that he only had quite a basicunderstanding of what that was like for her and I guess he realised, which waskind of thing, he realised it might be difficult but he didn't really know howhe couldn't really put that into words for me and so my perception was that isa much more complex kind of empathy task to understand that issue and thathe doesn't have his own experience to draw on so that made it a bit moredifficult for him as well. So I felt that just that one area was a little bit basicbut in terms of the more direct impact on the victims I thought he showed goodunderstanding for what that was and concern for them, yes.[38] In the questioning that immediately followed, Dr Clarke continued to focus onthe impact of telephone contact on W, rather than the victims of his offending.[39] Although Dr Clarke accepted in response to a specific question that thecomplainants "may well have concerns" about their mother or sister keeping in contactwith P, she later returned to her earlier emphasis on the effects on W herself. Thatfocus was made quite clear in the following exchange at the end of her cross-examination:Q. Just finally on the section that we've been focusing on, the absence ofconcern for or understanding about the impact of his sexual offendingon actual or potential victims, in terms of his understanding of theimpact on the children he offended against –A. Yes.Q. Your view is that he had good understanding of that –A. Yes.Q. – am I characterising it – the difficulty is his understanding onrelationships at a later date, would that be fair in terms of the effects–A. That kind of – yeah I forget – the kind of the follow on effects fromthat in terms of the wider impact on others that are not direct victimsbut indirect victims.Q. And your view is that there was some understanding limited but not...A. I thought it was – well this is specific to the ex-partner. I thought itwas basic understanding and he recognised it might be difficult for herbut he couldn't talk really – I didn't get much else out of him in termsof how or why or what, you know...Q. So when we're talking in that section about victims –A. Yeah.Q. – do you take her into account as being the victim or are you reallyreferring to the impact of the phone calls on the actual victims?A. I'm referring to the effect on her as an indirect victim.Q. And would you expect him to have an understanding about therelationships between the victims and the ex-partner and does he andshould he?A. Sorry repeat the question?Q. Well just in terms of that more distant relationship between the victimsand the ex-partner, you're not referring to a lack of understanding ofhow that phone call would affect those two parties?A. No I'm not.[40] As to whether P's more recent position on contact with W might be said to havebeen "learned" Dr Clarke said: yes, that's a good example actually with basic understanding about howthings might be difficult for his ex-partner. I do think that he has learned overtime. I think that staff mentioned to him things or the Relapse PreventionGroup something happens and he kind of goes away and thinks about it andprocesses it and kind of continues to enhance his understanding. And I thinkmaybe, it's entirely possible that it was that conversation with Dr McWilliamsthat caused him to think about it and develop what I've then later came alongand said was basic understanding.[41] Then, in response to a question about whether a "learned" response is somehowless legitimate or authentic, she said:Well I wouldn't – I'm not sure I would refer to it as a learned response, I don'tknow what Dr McWilliams means by that. I would – the whole of life is alearning process, isn't it, and he's continuing to learn as he goes through as Iam too.The High Court decision[42] As noted earlier, our sole focus in this judgment is on the High Court findingthat P demonstrated an absence of understanding for or concern about the impact ofhis offending on his victims. The Judge began his analysis of that issue by noting thatthe meaning of the phrase "absence of understanding or concern" had been consideredby the High Court in Chief Executive of the Department of Corrections v Douglas andfollowed in a number of other High Court decisions.10 There (in the context of anapplication under the Public Safety (Public Protection Orders) Act 2014) Davidson Jheld that an "absence" of understanding did not require that a respondent be shown tohave no understanding whatsoever but, rather, that there be an absence of anymeaningful understanding or concern.11 A person could, therefore, express a level ofunderstanding on an intellectual basis or an understanding that "might be parroted orrote", without meeting the necessary threshold.12 The Judge quoted with approvalDavidson J's conclusion that:13 the lack of, or deficit in understanding or concern must be at such a levelas to fit the plain purpose of the Act in this respect, namely to identify whetherthe usual behavioural and psychological checks on a potential offender willnot apply, because for example, there is no sufficient understanding or concernfor the effect of the criminal act on a victim.[43] We set out the remainder of the Judge's reasoning on the issue in full:10 High Court judgment, above n 1, at [72]; citing Chief Executive of the Department for Correctionsv Douglas [2016] NZHC 3184.11 Chief Executive of the Department for Corrections v Douglas, above n 10, at [96]. This approachhas been endorsed by Gendall J in The Deputy Chief Executive of the Department of Correctionsv McCorkindale [2017] NZHC 2536 at [56] and by Wylie J in The Chief Executive of theDepartment of Corrections v Chisnall [2017] NZHC 3120 at [67]–[68].12 Chief Executive of the Department for Corrections v Douglas, above n 10, at [82].13 [High Court judgment], above n 1, at [72]; citing Chief Executive of the Department forCorrections v Douglas, above n 10, at [83].[74] Both experts in this case accept that P has shown a clear understandingof the impact of his sexual offending on his direct victims in terms of howthey may have experienced the abuse and how it may have affected them.Both describe how P demonstrated empathy for his victims and was tearfulwhen describing the long term pain, fear and shame that he must have caused.Significantly, he did not focus on how the offending has affected himself.[75] However, the opinions of the experts diverge on the degree andsignificance of P's lack of understanding of the possible effect of telephonecontact with his ex-partner on her relationship with the victims. Dr Clarkeassessed that P held a basic understanding of this more complex task inempathy, whereas Dr McWilliams assessed his understanding as limitedfollowing his advice to her that he was unsure whether he wished to reunitewith his partner.[76] By the time Dr Clarke assessed P in February 2018 he claimed he nolonger wished to pursue a relationship with his former partner. He wasauthorised to have telephone contact with her and advise that he intended toprovide her with friendship and support during her cancer treatment.Dr McWilliams conceded that had she been possessed of that up-to-dateinformation she may have changed her opinion.[77] However, the evidence of both health assessors is that P did not havea meaningful understanding of the impact on his victims should he engage inongoing contact with his ex-partner.[78] There is evidence that P's expressions of understanding and empathyare likely to have been learned responses following his meeting withDr McWilliams and reviewing her report, which identified this feature as amatter of concern.[79] This example of limited understanding is not isolated. I have alreadydiscussed the difficulties P experienced when attempting to explain or identifythe nature of the risk when he breached his parole conditions. In other words,he appears to be able to recite by rote the existence of a risk of some sort butwhen asked to analyse the underlying nature and source of the risk, hestruggles.[80] It is that inability to properly appreciate risk, in this context risk ofharm, which particularly concerns me. In breaching his parole conditions Ptravelled to his home where the original offending occurred and where hisvictims lived. He did not turn his mind to the potential risk that in visiting hisson he might also encounter the victims of his offending and when asked toidentify the nature of the risk he understood it only in the context of his own,personal paradigm; that he might get caught and be recalled.[81] Similarly, that P, in maintaining contact with his partner, even bytelephone, did not appreciate the residual effect this contact might have on hisvictims or the possibility he might encounter his victims is telling.[82] Again, while to his credit P has made substantial gains in terms ofinsight into the effect of his actions on his victims and expresses empathytowards them, I am satisfied this conduct falls well short of a completeunderstanding. For these reasons I am satisfied that P displays an absence ofunderstanding for or concern about the impact of his offending on his actualor potential victims.Approach on appeal[44] Under s 107R of the Act, an appeal against the imposition of an ESO(or the refusal to impose an ESO) may be brought as if it were an appeal againstsentence, in accordance with pt 6 of the Criminal Procedure Act 2011 (the CPA).By virtue of s 250(2) of the CPA, therefore, this Court must allow such an appeal ifsatisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.The merits[45] We have concluded that the facts of the matter do not bear out the Judge'sconclusion that P had an absence of understanding about the impact of his offendingon his victims, for the reasons that follow.[46] First, it is not disputed that there is a factual mistake at [80] of the High Courtjudgment. As we have noted, P's breach of parole did not involve returning either tothe location of his original offending occurred or to the place where his victims lived.To the extent there was, still, a relevant failure by P to appreciate the risk around thatvisit, it should be weighed against P's apparently commendable motivation for makingit. And while it is true that he does not seem to have considered the possibility that his14-year-old son might be present at the address, we have noted earlier that his pastoffending was not against his own children and there was no specific conditionimposed on P regarding contact with them.[47] Nor can we accept the Chief Executive's submission that this error was notmaterial. The Judge regarded it as another example (and so supportive) of P's lack ofunderstanding and of his "learned responses". Read in context, it clearly forms a linkin the chain of reasoning which led to the conclusion presently in issue.[48] Secondly, Ms Scott submitted that the Judge applied the wrong legal test. Shesaid that this was evidenced by his statement in [82] that P's "conduct falls well shortof a complete understanding".[49] We agree that, on its face, the word "complete" both puts the relevant thresholdtoo high and also suggests a reversal of onus. The Chief Executive was required tosatisfy the Court that P has an absence of understanding; P was not required to showthat his understanding was "complete". The correct test is articulated in the discussionwhich precedes it. The real issue on appeal is whether the application of that test inP's case properly leads to the result that was reached.[50] In the most direct and obvious sense, the health assessors were in fact agreedthat P does genuinely understand the effect of his offending on his victims. We haveset out the relevant passages from their reports and evidence above. This wasacknowledged by the Judge. It is plain that his conclusion that P nonetheless did notexhibit the requisite level of understanding was, instead, based on P's desire to havesome form of ongoing contact with W, and a factual misapprehension about P's earlierbreach of his release conditions.[51] As far as the desire for contact with W is concerned, it is relevant to note thatthe health assessors were not in agreement about this. The view expressed byDr Clarke in her written report was that P did have a reasonable level of understandingabout the ramifications of such contact. And on our reading of the transcript of heroral evidence at the hearing it seems clear that her principal concern was that contactby P (or his desire for contact) might put W herself in a difficult position, not the effectthat would have on P's victims. By and of itself that suggests that the exercise inempathy under discussion was a complex one.[52] More importantly, however, we are uncomfortable with the suggestion that Pshould have appreciated that one "impact" of his offending on his victims is that theywould not wish him to have any further interactions with W, who is the mother of hischildren and ill with cancer. That seems to be several steps removed from the corefocus of s 107IAA, namely the risk of reoffending.[53] In our view, s 107IAA(1)(d)(ii) invites a relatively simple inquiry: does Punderstand the impact of his offending on his victims? As Davidson J suggested inDouglas, the underlying legislative and psychological assumption is that if an offenderis able to imagine the hurt, fear and shame caused to his or her victims by the relevantoffending then he or she is less likely to wish to cause such hurt, fear and shame toothers in future, thereby reducing the risk of future reoffending.14 By contrast,the proposition here is that P showed a lack of understanding about the effect on hispast victims of his (otherwise understandable) desire to contact a third party. Even onthe basis that this does reveal some deficit in empathy on his part, it seems to be adeficit that has little obvious connection with reoffending risk.[54] The point just made is, we think, considerably reinforced when account is takenof the fact that, not only did the conditions of P's ISO contemplate that he might havecontact with W, but he was expressly given permission by his probation officer to doso. To then require P to appreciate that he must restrain himself from acting inaccordance with authority he has sought and obtained seems to us to require a level ofintellectual contortionism that is beyond the purpose of s 107IAA(1)(d)(ii). Moreimportantly, imposing an ESO on P for acting in accordance with his ISO conditionsseems likely to undermine the ESO regime itself.[55] To the extent more is needed, we also record that we are not persuaded that P'sexpressions of understanding subsequent to his discussion with Dr McWilliamsaround his desire to maintain a relationship with W should simply be discounted as"learned responses". For those whose past lives and circumstances have notencouraged or modelled empathy for others, it is a response that can only be "learned".And the ability to understand a (rather complex) point sufficiently to repeat it maywell be an indication that the requisite process of education is, at least, in train.15We are therefore inclined to agree with views expressed by Dr Clarke about that.1614 Chief Executive of the Department for Corrections v Douglas, above n 10, at [83].15 Even Dr McWilliams said that she could not be sure whether P's change of heart about hisrelationship with W was "something that he genuinely feels or if he knows that's what we wouldlike to hear".16 We have set out those views at [40] and [41] above.[56] In summary, we consider that there were a number of material errors inthe process by which the Judge reached the conclusion that P had an absence ofunderstanding for or concern about the impact of his offending on his victims. Whenthe expert evidence is assessed in light of the purpose of s 107IAA(1)(d)(ii), we areunable to agree that the threshold was not met. That is fatal to the Chief Executive'sapplication and the ESO imposed on P on 12 June 2018 must be quashed accordingly.Result[57] The appeal is allowed.[58] The extended supervision order made by the High Court on 12 June 2018 isquashed.Solicitors:Public Defence Service, Auckland for AppellantCrown Solicitor, Auckland, for Respondent