TAAKIMOEAKA v CORRECTIONS [2021] NZCA 467

TAAKIMOEAKA v CORRECTIONS [2021] NZCA 467 [14 September 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 AOTEAROACA29/2021[2021] NZCA 467BETWEEN PENISIMANI TAAKIMOEAKAAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 30 August 2021Court: Gilbert, Ellis and Peters JJCounsel: M Starling and N R Wham for AppellantB C L Charmley for RespondentJudgment: 14 September 2021 at 9.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Taakimoeaka appeals against the imposition of an Extended SupervisionOrder (ESO) by Osborne J for a term of five years commencing on 18 December2020.1 The ESO was made on the standard conditions set out in s 107JA of the1 Chief Executive of Department of Corrections v Taakimoeaka [2020] NZHC 3454 [High CourtParole Act 2002 (the Act). These conditions were to remain in force throughout theterm of the ESO except during any period of suspension under ss 107K(3)(c) or 107Pof the Act or as varied by the Parole Board.[2] Mr Taakimoeaka contends that no ESO should have been made because:(a) although he acknowledges he has a history of serious sexual offending,he says it does not constitute a "pervasive pattern" in terms ofs 107I(2)(a) of the Act;(b) there is not a high risk that he will in future commit a serious sexualoffence; and(c) the ESO is unnecessary because the conditions are of no utility and hisrisk is sufficiently mitigated by the treatment he has undertaken sincehis second set of convictions for sexual offending.History of sexual offending2005 offending[3] On 26 March 2005, when Mr Taakimoeaka was aged 17, he and a friendapproached a 16-year-old female. Mr Taakimoeaka made sexual advances that wererejected by her. The young woman was then physically assaulted byMr Taakimoeaka's female associate following which the complainant left and wenthome. Mr Taakimoeaka followed her and entered her house without her consent. Hethen repeatedly sexually assaulted her over the course of the evening, including byraping her and forcing her to perform oral sex on him. Mr Taakimoeaka remained inher house after she left and he sexually assaulted her again when she returned laterthat evening.[4] Arising out of this offending, Mr Taakimoeaka was found guilty of sexualviolation by rape, sexual violation by unlawful sexual connection and attemptedunlawful sexual connection. On 29 September 2006, Mr Taakimoeaka was sentencedjudgment].in the District Court at Nelson to six years and six months' imprisonment on the rapecharge.2 Concurrent sentences of two years' imprisonment were imposed on each ofthe other two charges.[5] Mr Taakimoeaka maintains that this sexual interaction was consensual.[6] Mr Taakimoeaka was released from prison in October 2010 on conditionsincluding residential restrictions and a prohibition on consuming alcohol.He subsequently breached these conditions on two occasions, including by drivingwhile intoxicated.2013 offending[7] On 31 March 2013, some five months after the expiry of his release conditions,Mr Taakimoeaka climbed through a window of an address in Picton at 3.30 am wheretwo 16-year-old females were sleeping. Mr Taakimoeaka was then aged 25.He uplifted one of the women from her bed and took her to an empty bedroom withthe intention of raping her. He placed her on the bed and digitally penetrated her.She managed to escape and returned to her bedroom where her friend was.Mr Taakimoeaka followed her back to that room and started groping the thigh ofthe other young woman. The offending only stopped when a male occupant ofthe house came into the room having heard the women screaming.[8] Following a trial by jury in the District Court at Blenheim, Mr Taakimoeakawas found guilty of sexual violation by unlawful sexual connection, assault with intentto commit sexual violation by rape and three charges of indecent assault.[9] The District Court Judge transferred the case to the High Court for sentencingso that a sentence of preventive detention could be considered.3 On 18 July 2014,Collins J declined to impose preventive detention, sentencing Mr Taakimoeaka toseven years and six months' imprisonment on the charge of assault with intent tocommit sexual violation by rape and ordered him to serve a minimum period of2 R v Taakimoeaka DC Nelson CRI-2005-006-1251, 29 September 2006.3 Sentencing Act 2002, s 90.four years' imprisonment for that offence.4 On the charge of sexual violation byunlawful sexual connection, the Judge sentenced Mr Taakimoeaka to five years andsix months' imprisonment. Sentences of 12 months' imprisonment on each of theindecent assault charges were also imposed.5 All of these sentences were to be servedconcurrently.6[10] The Judge stated that Mr Taakimoeaka had come "perilously close" to beingsentenced to preventive detention because of the emerging pattern of his seriousoffending, the serious harm caused by it, the risk of similar serious offences beingcommitted in the future and the absence of efforts by Mr Taakimoeaka to addressthe causes of his offending.7 However, the Judge declined to order preventivedetention, taking account of various factors including Mr Taakimoeaka'scomparatively young age and consequent greater capacity for rehabilitation.8Treatment[11] During his initial period of imprisonment following the 2005 offending,Mr Taakimoeaka participated in a motivational treatment programme designed toprepare offenders for engagement in specialised programmes that address the specificcauses of their offending. Mr Taakimoeaka was reported to be an active participant inthis group although he continued to maintain that the sexual conduct for which he hadbeen convicted was consensual. Mr Taakimoeaka then received three individualtreatment sessions.[12] Following his release from prison in 2010, Mr Taakimoeaka completeda course of treatment at an alcohol and drug treatment facility. However, as noted,despite receiving this treatment, Mr Taakimoeaka went on to breach his releaseconditions on two occasions, including by driving while intoxicated. He alsocommitted the 2013 offending shortly after the expiry of his release conditions.4 R v Taakimoeaka [2014] NZHC 1654 at [27].5 At [28].6 At [29].7 At [21].8 At [23].[13] During his second period of imprisonment following the 2013 offending,Mr Taakimoeaka engaged in the Adult Sexual Offending Treatment Programme.At the conclusion of that programme, Mr Taakimoeaka was assessed as having limitedinsight into his offending and it was recommended that he engage in further individualtreatment sessions. While initially reluctant to do this, Mr Taakimoeaka eventuallyengaged in six individual weekly treatment sessions in the period 30 July to11 September 2019. While some progress was made, it was considered thatMr Taakimoeaka continued to endorse cognitive distortions associated withminimisation and denial.[14] At the time of the health assessor's report for the purposes of the ESOapplication before the High Court, Mr Taakimoeaka was participating in a fortnightlypeer support group facilitated by Drug-Arm, an organisation that supports individualswho need help to overcome addictions and associated problems.ESO application[15] The purpose of an ESO is to protect the community from those who, followingreceipt of a determinate sentence, pose a real and ongoing risk of committing serioussexual or violent offences.9 In this case, we are only concerned withMr Taakimoeaka's risk of committing serious sexual offences. A sentencing court mayonly make an ESO, where the relevant risk is confined to serious sexual offending, ifsatisfied that two threshold jurisdictional requirements are met. The first is thatthe offender has, or has had, a pervasive pattern of serious sexual offending.10The second, is that there is a high risk that the offender will in future commit a relevantsexual offence.11[16] A court may not determine that there is a high risk that an eligible offender willcommit a relevant sexual offence in future unless it is satisfied of each of the fourmatters set out in s 107IAA(1) of the Act:9 Parole Act 2002, s 107I(1).10 Section 107I(2)(a).11 Section 107I(2)(b)(i).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 aboutthe impact of his or her sexual offending on actual orpotential victims.[17] An application for an ESO must be accompanied by a health assessor's reportaddressing whether the offender displays each of the traits and behaviouralcharacteristics specified above in s 107IAA(1) and whether there is a high risk thatthe offender will in future commit a relevant sexual offence.12 A health assessor maytake account of any statement made by the offender or any other person concerningany conduct of the offender, irrespective of whether that conduct constitutesan offence.13[18] The chief executive of the Department of Corrections applied for the ESO on24 June 2020. The application was accompanied by a comprehensive health assessor'sreport from Gillian Roper, a senior psychologist with the Department of Corrections.This report drew from a range of sources of information dating back to 2005, includingprevious psychological reports and interviews with personnel who had been involvedin providing treatment and other assistance to Mr Taakimoeaka over time, as well asthe summary of facts for his previous offending. Ms Roper stated that during hisformative years Mr Taakimoeaka developed a pervasive pattern of antisocial12 Section 107F(2) and (2A).13 Section 107F(3).behaviour that persisted despite official sanction. During mid-adolescence, thispattern of behaviour culminated in the serious sexual offending in 2005 which sheconsidered reflected his sense of entitlement to seek sexual gratification whiledisregarding the rights and needs of others. Ms Roper considered thatMr Taakimoeaka's subsequent breach of release conditions and reoffending while onparole was indicative of his lack of adherence to societal rules and a continuing focuson his own immediate gratification. The index offending appears to have beena continuation of this pattern. Ms Roper observed:Feeling frustrated at not having his sexual needs met by his [partner atthe time], Mr Taakimoeaka entered a property and sexually offended againsttwo post pubescent female victims who were sleeping at the address.While Mr Taakimoeaka indicated that he entered the house to facilitate hisdrug use, it is likely that he knew one of the victims may be present given hehad previously met her at that address. Given the level of risk taking arousalevident in this offending, it is likely that his desire for sexual gratification,along with his decision making, were impacted by his substance use limitinghis capacity to appropriately appraise the situation or considerthe consequences for himself and the victims.[19] Ms Roper considered that all of the statutory criteria for the making of an ESOwere made out. Using various actuarial tools and applying her clinical judgment,Ms Roper concluded that there was a high risk that Mr Taakimoeaka would engage inrelevant sexual offending within 10 years of release. She considered this would mostlikely be similar to his earlier offending:[T]his would most likely be against a post pubescent female whoMr Taakimoeaka considers vulnerable and could potentially be eithera stranger or an acquaintance. Any future offending is likely to be highlyopportunistic in nature, although a degree of proximal planning is evident inhis sexual offending. The most likely risk scenario for future offending wouldbe impulsive in nature in a context of being intoxicated or in the presence ofunmet sexual needs. Such offending would likely involve indecent assault,unlawful sexual connection and may be as intrusive as rape. Dynamic factorsassociated with increased risk for Mr Taakimoeaka include lack of lifestylestructure, substance abuse, engaging with antisocial peers, offence relateddistortions and sexual entitlement, relationship dysfunction, and a lack ofconsideration of consequences. Until such time as Mr Taakimoeaka candemonstrate the ability to maintain appropriate sexual relationships andmanage his sexual preoccupation and entitlement to engage in sexualbehaviour his risk will remain high.[20] Detailed submissions were filed by the parties in advance of the High Courthearing. Those on behalf of the chief executive were filed on 19 November 2020.Mr Starling, for Mr Taakimoeaka, filed his submissions in response one week later, on26 November 2020. He advised that no expert evidence would be called to counterMs Roper's report. Mr Starling made two points in his submissions. First, hesubmitted that the Court could not be satisfied that Mr Taakimoeaka would commita qualifying sexual offence in the future. Secondly, if an ESO were to be made, heargued that it should be for "a very short duration", significantly less than the five-yearperiod sought. Mr Starling's submissions did not focus attention on the "pervasivepattern" issue. However, Ms Roper was cross-examined extensively at the hearingbefore Osborne J on 1 December 2020 and it is clear from the High Court judgmentthat Mr Starling made an oral submission that Mr Taakimoeaka's previous sexualoffending, although serious, could not be classified as a pervasive pattern.14High Court judgment[21] The Judge noted that Mr Taakimoeaka had amassed nearly 30 previousconvictions, including for offences involving dishonesty, property damage, drivingand one of aggravated robbery. However, the Judge set this offending to one side andappropriately focused only on Mr Taakimoeaka's previous sexual offending in 2005and 2013 in considering whether he had a pervasive pattern of serious sexual offendingunder s 107I(2)(a) of the Act.15 The Judge applied the guidance given by this Court inKiddell v Chief Executive of the Department of Corrections as to the meaning of"pervasive pattern of serious sexual offending" in this context.16 The Judge wassatisfied that Mr Taakimoeaka's offending qualified and this criterion was met.17[22] As to the risk of future serious sexual offending, the Judge observed that, inthe absence of any report obtained by Mr Taakimoeaka, the only expert evidenceavailable to the Court was that of Ms Roper. The Judge reviewed the key findings inMs Roper's report and gave particular consideration to her evidence in response tocross-examination by Mr Starling. The Judge accepted Ms Roper's expert opinion14 High Court judgment, above n 1, at [35].15 At [31].16 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [21]–[23].17 High Court judgment, above n 1, at [37].that there was a high risk that Mr Taakimoeaka would in future commit a relevantsexual offence.18[23] Next, the Judge considered the submission that there would be little to begained by imposing an ESO given Mr Taakimoeaka has obtained full-timeemployment, has entered into a relationship and regularly attends church. Ms Roperaccepted that these matters indicated that Mr Taakimoeaka may be on a desistantpathway, but she considered there would be considerable advantage in an ESO toprotect the community and provide further support to him. The Judge referred inparticular to the following exchange between Mr Starling and Ms Roper on thisissue:19Q. So how is reporting once a week to a probation officer going to make anydifference?A. In terms of difference, what that would allow would be a level ofaccountability, a level of restriction, a protracted approach to moreindependence and demonstrating behaviour change across time. What weknow is that people's risk over time when they are free in the community withno other offending, not just sexual offending, but any offending includinggeneral offending, will actually over time reduce their risk so inMr Taakimoeaka's case, as we've already talked about, he's considered to bein the well above average risk category and we have some research and I havesome here if you're interested in copies of it around one of the risk tools thatI used was the static 99R and that the literature suggests that over time thatrisk will reduce as people are time free in the community.In Mr Taakimoeaka's case, being the well above average risk category, hewould need to be in the community for six years for that category to lower tothe above average category and a minimum of 11 years in order for it to lowerto the average category so in my opinion actually having support in that timeto remain offence free in the community bodes well for him to be able to havea more long-term offence free lifestyle in the future.[24] The Judge continued:[57] When Mr Starling suggested to Ms Roper that the requirements of anESO would be unnecessarily intrusive, Ms Roper responded that she wouldnot see the arrangements as "intrusive" but actually sees them as supportive.She explained that Mr Taakimoeaka needs time for replacement behaviours todevelop. She recognised that there have been positive developments and thather interactions with Mr Taakimoeaka have also been positive and respectfulbut she continued: "we can't lose sight of the fact of where his risk actually18 At [63].19 At [56].currently stands and what is required in order for that to be demonstrated thatit's reduced".[25] After referring to Mr Taakimoeaka's evidence about his present circumstances,the Judge concluded, in agreement with Ms Roper, that an ESO would assist as partof a support network in reducing Mr Taakimoeaka's risk of committing serious sexualoffences in the future.20[26] Finally, the Judge considered the appropriate term of the ESO. Ms Roperconsidered that Mr Taakimoeaka's risk was likely to remain at its current level foraround six years and it would be necessary to monitor his progress during this time.21The Judge accepted that Mr Taakimoeaka's risk level was likely to look significantlydifferent in five years' time.22 He therefore accepted that the application for an ESOfor a five-year term was appropriate.First alleged error — no pervasive pattern of serious sexual offending[27] Ms Wham, who presented the submissions on appeal for Mr Taakimoeaka,contends that the Judge was wrong to find that Mr Taakimoeaka has, or has had,a pervasive pattern of serious sexual offending. Ms Wham emphasises that thiscriterion sets a high bar and this must be respected given the intrusion of an ESO onpersonal liberties. Ms Wham notes that Mr Taakimoeaka has only had two instancesof serious sexual offending and the first of these occurred when he was very young.She says there is no evidence of other less serious sexual offending, nor any evidenceof sexual offence paralleling behaviour. Ms Wham submits that this constitutesa "very limited and underdeveloped pattern" that cannot be said to "pervade" hisbehaviour. Accordingly, she argues there was no jurisdiction to make the order.[28] In Kiddell, this Court stated that a pervasive pattern simply means a patternthat is characteristic of the offender and sufficiently pervasive to serve as a predictorof future conduct.23 While the word "pattern" ordinarily connotes regularity, a pattern20 At [64].21 At [67].22 At [68].23 Kiddell v Chief Executive of the Department of Corrections, above n 16, at [23].may take any form or sequence.24 The health assessor's report is likely to be relevantto the assessment of this criterion as well as the separate risk criterion.25[29] We are not persuaded the Judge made any error in finding that Mr Taakimoeakahas, or has had, a pervasive pattern of serious sexual offending. The Judge appliedthe correct legal test as clarified by this Court in Kiddell and his conclusion was welljustified on the basis of Ms Roper's expert evidence. We agree with Ms Charmley, forthe chief executive, that there is a unifying theme or pattern in the 2005 and 2013offending. The two sets of offending shared distinctive features. Both wereopportunistic and took place after Mr Taakimoeaka had been drinking and was unableto meet his sexual needs. Both sets of offending involved unlawfully entering at nightthe houses of young women he barely knew for the sole purpose of raping them tosatisfy his immediate need for sexual gratification. On both occasions,Mr Taakimoeaka displayed a total disregard for the extremely serious consequencesof his actions for his victims and for himself. While the offending was separated bya period of eight years, Mr Taakimoeaka was in prison or subject to supervision formuch of that time. We consider the Judge was justified in finding this sequence ofoffending showed a pattern, characteristic of Mr Taakimoeaka's sense of entitlementto obtain sexual gratification with total disregard for his victims, that was sufficientlypervasive to serve as a predictor of his future conduct.Second alleged error — no high risk of future serious sexual offending[30] Ms Wham submits the Judge erred by finding that Mr Taakimoeaka meetsthe statutory criteria for high risk of future sexual offending in s 107IAA(1), namelythat he:(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence;(b) has a predilection or proclivity for serious sexual offending;(c) has limited self-regulatory capacity; and24 At [23(c)].25 At [18].(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse for pastoffending;(ii) an absence of understanding for or concern about the impact ofhis sexual offending on actual or potential victims.[31] Ms Wham referred to Ms Roper's acceptance in cross-examination that, sincehis release from prison following the 2013 offending, there has been no evidence ofMr Taakimoeaka having an intense drive, desire or urge to commit a relevant sexualoffence. Ms Wham submits that Mr Taakimoeaka's denial of the 2005 offending isnot relevant to this issue and Ms Roper was wrong to refer to it under this head.Next, Ms Wham argues that two incidents are not sufficient to prove the requisitepredilection or proclivity for serious sexual offending, which, in any event, requiresa forward-looking assessment. As to Mr Taakimoeaka's self-regulatory capacity,Ms Wham submits that he was well-behaved in prison and has complied with hisrelease conditions. He has also gained full-time employment. She says he should notbe judged by whatever "baseline" he went into prison with. Finally, Ms Wham arguesthat while Mr Taakimoeaka may have limited insight into his offending, this does notmean he displays a lack of acceptance or responsibility, nor does it display an absenceof understanding or concern about the impact of his sexual offending on actual orpotential victims.[32] The submission that Mr Taakimoeaka has not displayed an intense drive, desireor urge to commit a relevant sexual offence since his release from prison, and thereforedoes not presently display this characteristic, is answered by this Court's decision inChief Executive, Department of Corrections v Alinizi.26 This Court stated thatthis statutory prerequisite — displays an intense drive, desire or urge to commita relevant sexual offence — is likely to be satisfied "where there is nothing to suggestthat such a trait formerly present no longer subsists".27 As Ms Roper observed,Mr Taakimoeaka's behaviour since release has been in the context of the supervision26 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468.27 At [36].imposed on him. It is yet to be seen whether the positive and commendable steps hehas recently taken will be effective to overcome this trait which plainly enduredunmitigated in 2013 despite the sanction for the 2005 offending and the subsequenttreatment undertaken during his first term of imprisonment.[33] Contrary to Ms Wham's submission that a denial of the offending is notrelevant to the assessment under s 107IAA(1)(a), this Court in Alinizi consideredthe opposite to be true because it bears on the effectiveness of any treatment:28A court will very likely come to such a conclusion where, as here, an offendercategorically denies the sexual offending for which he was convicted and asa consequence has been unwilling to undertake treatment to discuss sexualoffending.[34] While we acknowledge that Mr Taakimoeaka has participated in sometreatment, he maintains his denial of the 2005 offending and has been assessed ashaving limited insight into his offending due to continued cognitive distortionsassociated with minimisation and denial. Applying the reasoning in Alinizi, there isinsufficient evidence to show that the trait formerly present — the intense drive, desireor urge that resulted in Mr Taakimoeaka's serious sexual offending in 2005 and 2013— no longer persists. That "baseline", while obviously not determinative, remainsrelevant to the assessment.[35] The submission that two incidents are not sufficient to establish the requisitepredilection or proclivity cannot be sustained. It is also answered by this Court'sdecision in Alinizi, a case similarly involving two incidents of serious sexualoffending. The Judge was entitled to accept Ms Roper's evidence on this aspect whichincluded the following summary:In summary, based on this multi-modal assessment Mr Taakimoeaka isassessed [as] being high risk for future sexual offending. Whilst it isacknowledged that he has engaged in sexually abusive behaviour on only twooccasions the nature of these offences reflects a concerning offence process.Specifically, Mr Taakimoeaka has engaged in impulsive, aggressive andintrusive behaviour directed towards a stranger and someone with whom hehad little previous contact. Mr Taakimoeaka continued to pursue his desirefor sexual gratification despite overt resistance in a manner reflective of highrisk-taking behaviour and a pressure to pursue his sexual needs with littleregard for the consequences for himself or the victims. Despite sanction he28 At [36].reoffended after a limited time living as an adult in the community(approximately three years). At the current time despite having completedhigh intensity treatment a number of offence factors remain present includingoffence related cognitive distortions and this is consistent with his scores onVRS:SO and the Static-99-R which suggest he is in the 97th percentile.[36] We now turn to Ms Wham's submission that Mr Taakimoeaka hasdemonstrated self-regulatory capacity by his good behaviour in prison and hispro-social behaviour following his release from prison including by gainingemployment, entering into a new relationship and regularly attending church.While we acknowledge this encouraging progress, it does not address directlythe issue of Mr Taakimoeaka's self-regulatory capacity. Ms Roper considered thatwhile Mr Taakimoeaka has developed some skills to manage risk associated with hisoffending and a safety plan, this primarily focused on general affect regulationstrategies and lacked specificity in respect of sexual regulation. For the plan to berobust and protective against his sexual offending, Ms Roper consideredMr Taakimoeaka needed to demonstrate an understanding and capacity to utiliseinternal coping strategies specifically associated with such offending. Ms Roperreported that Mr Taakimoeaka had limited capacity in this respect due to his reluctanceto discuss sexual motivation or intent in the 2013 offending and his continued denialof rape in the 2005 offending. She considered there were limits to his treatmentprogress and he continued to hold a number of cognitive distortions associated withdenial. Ms Roper remained concerned about Mr Taakimoeaka's "level of impulsivityshould he drink and [his] sexual pre-occupation" stating that alcohol consumption was"a significant risk factor and associated with impulsivity for Mr Taakimoeaka".[37] Ms Wham's final point concerns whether the Judge was correct to find thatthe fourth statutory requirement to establish high risk was satisfied, namely, in termsof s 107IAA(1)(d), whether Mr Taakimoeaka displays either or both of the following:(a) A lack of acceptance of responsibility or remorse for past offending.(b) An absence of understanding for or concern about the impact of hissexual offending on actual or potential victims.[38] In addressing this criterion, Ms Roper again referred to Mr Taakimoeaka'scontinuing cognitive distortions which she considered "reflect a lack of ownership andresponsibility". Mr Taakimoeaka reported that he did not notice anything thatsuggested the victim of his 2005 offending was unwilling to engage in sexual activitywith him. His perception was that she went along with it. As to the 2013 offending,Ms Roper reported that Mr Taakimoeaka expressed no remorse for his actions andcontinued to deny having a sexual motivation for breaking into the property.In cross-examination, Ms Roper acknowledged that Mr Taakimoeaka expressed"a level of regret for his actions" and she agreed with Mr Starling's proposition thatMr Taakimoeaka was accepting "responsibility and remorse" for the second set ofoffending. However, Ms Roper did not depart from the view she expressed in herreport regarding Mr Taakimoeaka's understanding for or concern about the impact ofhis sexual offending on his victims:While during the current interview Mr Taakimoeaka reported developingsome recent understanding about his offending and the impact this has had onthe victims, his ongoing endorsement of cognitive distortions that deflectresponsibility, justify and minimise his actions is indicative of limitedunderstanding or concern for his past or potential victims.[39] Having reviewed the evidence, we are not persuaded the Judge was wrong toaccept Ms Roper's expert opinion that this criterion was also satisfied and that there isa high risk that Mr Taakimoeaka will commit a relevant sexual offence in the future.[40] For the reasons given, we consider the Judge was right to find there wasjurisdiction to make an ESO.Third alleged error — no utility in imposing the ESO[41] We do not consider there is anything in this ground of appeal. Where a personhas committed serious sexual offending and is at high risk of committing further suchoffending, it would have to be a rare case where the standard terms of an ESO craftedby Parliament to protect the community from that risk would be regarded by the courtas having no utility. We are far from persuaded this is such a case, including forthe reasons the Judge gave.2929 Summarised at [23]–[25] above.[42] Nor do we consider the Judge erred in setting the term of the ESO at five years.This was fully justified by Ms Roper's expert opinion, which she maintained underextensive cross-examination, as to the length of time it is likely to take forMr Taakimoeaka's risk level to abate. If circumstances change, Mr Taakimoeaka canalways apply to cancel the order or vary its conditions.30Result[43] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent30 Parole Act, ss 107M and 107O.