PENISIMANI TAAKIMOEAKA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZSC 175

PENISIMANI TAAKIMOEAKA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021]NZSC 175 [10 December 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 123/2021[2021] NZSC 175BETWEEN PENISIMANI TAAKIMOEAKAApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: M Starling for ApplicantM R L Davie for RespondentJudgment: 10 December 2021JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] An extended supervision order (ESO) was imposed on Mr Taakimoeaka for aterm of five years commencing December 2020.1 His appeal against that decision wasdismissed by the Court of Appeal.2 He now seeks leave to appeal to this Court.1 Chief Executive of the Department of Corrections v Taakimoeaka [2020] NZHC 3454 (Osborne J).2 Taakimoeaka v Chief Executive of the Department of Corrections [2021] NZCA 467 (Gilbert, Ellisand Peters JJ) [CA judgment].Background[2] In 2005, Mr Taakimoeaka, then aged 17, was convicted of serious sexualoffending against a 16-year-old young woman after entering her house withoutconsent. He was sentenced to six and a half years' imprisonment for that offendingand released in October 2010.[3] In 2013, five months after the expiry of his release conditions, Mr Taakimoeakaclimbed through a window where two 16-year-old young women were sleeping andsexually assaulted one of them. He was sentenced to concurrent sentences of sevenyears and six months for assault with intent to commit sexual violation by rape, fiveyears and six months for sexual violation by unlawful sexual connection and 12months for each of the three charges of indecent assault. The sentencing Judge saidMr Taakimoeaka had come "perilously close" to being sentenced to preventivedetention.3[4] During his last period of imprisonment, while attending a sexual treatmentprogramme, the co-ordinators noted that Mr Taakimoeaka continued to minimise hisactions.4Grounds of appeal[5] Mr Taakimoeaka seeks leave to appeal to this Court. He submits that the twoincidents of sexual offending fail to reach the "pervasive pattern" threshold requiredunder the amended s 107I(2)(a) of the Parole Act 2002.5 He then submits that theCourt of Appeal placed too much weight on the views of the health assessor inconcluding there was a pervasive pattern. He also submits that the Court of Appealerred by deciding that there was an intense drive and a predilection for serious sexualoffending on the basis of his prior offending alone as opposed to undertaking a currentassessment of the individual.3 R v Taakimoeaka [2014] NZHC 1654 (Collins J) at [21].4 See CA judgment, above n 2, at [13].5 Amended by the Parole (Extended Supervision Orders) Amendment Act 2014.Court of Appeal judgment[6] The Court of Appeal considered there was sufficient evidence for the judge toestablish that there was a pervasive pattern.6 It also found that the test set out inKiddell v Chief Executive of the Department of Corrections7 was correctly applied andthe fact that there were only two incidents of offending did not mean a pattern couldnot be established.8 In particular, the Court considered that the two sets of offendinghad common distinctive features.9[7] In terms of whether there was a risk of future serious sexual offending, theCourt was not persuaded that the Judge was wrong to accept the opinion of the seniorpsychologist on this point.10Our analysis[8] The matters Mr Taakimoeaka seeks to raise are essentially issues related to theparticular facts of this case. No point of general or public importance arises.11 Hischallenge to the imposition of the ESO was carefully considered by the Court ofAppeal and nothing raised suggests that the Court's analysis may have been wrong.There is thus no risk of a miscarriage of justice.12Result[9] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent6 CA judgment, above n 2, at [29].7 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171.8 CA judgment, above n 2, at [29].9 At [29].10 At [39].11 Senior Courts Act 2016, s 74(2)(a).12 Section 74(2)(b).