CHAKWIZIRA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 307 [20 July 2023]

CHAKWIZIRA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 307[20 July 2023]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA690/2022[2023] NZCA 307BETWEEN PETROS TAFADZWA CHAKWIZIRAAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 15 June 2023Court: Wylie, Thomas and Brewer JJCounsel: A M S Williams and K E Bucher for AppellantM J McKillop for RespondentJudgment: 20 July 2023 at 11 amJUDGMENT OF THE COURTA The appeal is allowed.B The ESO is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Introduction[1] Following guilty pleas to two charges of doing an indecent act on a girl underthe age of 12 years,1 Mr Chakwizira was sentenced to two and a half years'imprisonment.2 The Chief Executive of the Department of Corrections successfullyapplied for an extended supervision order (ESO) to which Mr Chakwizira has beensubject since his release from prison.3[2] Mr Chakwizira appeals the ESO on the ground that the Judge erred indetermining he had demonstrated a pervasive pattern of serious sexual offending.4Mr Chakwizira's eligibility for an ESO and risk of committing a future sexual offenceare not at issue.BackgroundCriminal history — the first two incidents[3] In 2014, Mr Chakwizira was 17 years old and in a relationship with the14-year-old female victim. They had connected over social media and through school.After their first meeting, they continued to converse over Facebook, eventuallymeeting in a school field where they kissed, Mr Chakwizira fondled the victim'sbreasts and held her hand against his penis while he masturbated. A few days later,they met again and Mr Chakwizira asked the victim to perform oral sex on him. Sherefused and he held her hand against his penis while he masturbated. Later that night,at her invitation via Facebook, Mr Chakwizira entered the victim's bedroom byclimbing in the window. She performed oral sex on him and they had sexualintercourse. The victim's mother discovered Mr Chakwizira in the victim's bed andreported this to police. The victim was described as "extremely vulnerable" and"easily influenced". Mr Chakwizira said he knew the victim was 14 years old but hehad feelings for her.1 Crimes Act 1961, s 132(3) — maximum penalty 10 years' imprisonment.2 R v Chakwizira [2020] NZDC 8820 [Third incident sentencing notes].3 Department of Corrections v Chakwizira [2022] NZDC 24538 [Reserved ESO judgment].4 Mr Chakwizira has a right of appeal under s 107R of the Parole Act 2002. Section 107R(2)provides that the appeal is to be treated as an appeal against sentence under pt 6 of the CriminalProcedure Act 2011.[4] Approximately four weeks later, by which time Mr Chakwizira had alreadybeen charged with sexual contact with a person aged 12–16, and was told he was notto associate with the victim, they arranged to meet via associates through Facebookcommunication. Mr Chakwizira told the victim she owed him oral sex for getting himinto trouble with the police and that he had posted unfavourable comments about heron Facebook which he would remove if she performed oral sex on him. She did andhe deleted the Facebook comments.[5] Following these incidents, Mr Chakwizira pleaded guilty and was convicted oftwo charges of sexual connection with young person aged 12–16 years old, for whichhe was sentenced to two years' intensive supervision to allow him to attend the sexualviolence programme STOP, and 200 hours of community work.5 The Judge made a12 month non-association order to prevent him from contacting the victim. The Judgedid this because he described the victim as "potentially vulnerable" but moreparticularly because he considered Mr Chakwizira had some significant work to doaround his attitudes and beliefs.6 The Judge also imposed judicial monitoring.[6] Three days after sentencing and despite the non-association order,Mr Chakwizira and the victim were in contact over Facebook and arranged to meettwo days later. Before they did, the victim consumed synthetic cannabis which shehad bought that day. They met in a park. Mr Chakwizira digitally penetrated thevictim and he had sexual intercourse with her. At some stage the victim yelled "rape".Mr Chakwizira then straddled the victim's chest and put his penis in her mouth. Thevictim received some bruising and scratches as a result of this incident. This offendingcame to light when police conducted a wellbeing check with the victim and shedisclosed it to them.[7] Mr Chakwizira pleaded guilty and was convicted of two more charges ofsexual connection with a young person aged 12–16 and breach of the non-associationorder. He was sentenced to one year and ten months' imprisonment.7 His sentence onthe earlier charges was cancelled and replaced with concurrent sentences of 22 months'5 R v Chakizira DC Christchurch CRI-2014-009-005356 [First incident sentencing notes].6 At [11].7 R v Chakwizira [2015] NZDC 6306 [Second incident sentencing notes].and 12 months' imprisonment.8 He was released from prison on release conditions inlate 2015.[8] Mr Chakwizira was then convicted 16 times for breaching court orders,sentences and release conditions. There were eight breaches of release conditionsfrom 2015 through to early 2017, two of which were representative. In 2017, hebreached the conditions of the intensive supervision sentence six times.Most recent offending — the third incident[9] At about 11:30 pm on 11 May 2019, Mr Chakwizira, by then 22 years old,arrived at a Christchurch address to attend a party he believed was in progress. Theoccupants did not know him. The party had finished about an hour beforeMr Chakwizira arrived and everyone was in bed.[10] Mr Chakwizira let himself into the address via an unlocked rear door. Heentered a 12-year-old boy's room and spoke to him for some considerable time.Concerned by this behaviour, the boy began to text his step-father. The victim, anine-year-old girl, was asleep in a nearby bedroom.[11] Mr Chakwizira asked the victim's brother how old the victim was and was toldshe was nine. He then began smoking cigarettes which belonged to the victim'smother in the bedroom and lounge area.[12] Mr Chakwizira entered the victim's bedroom where she was asleep in bed. Heremoved his shoes and got into her bed. While underneath the bedding,Mr Chakwizira held the victim around the forearm area and attempted to pull her pantsdown. The victim woke to find him kissing her on the lips while attempting to takeoff her pyjama pants. She told him she needed to go to the toilet which allowed her toalert her family, who asked him to leave and called the police.[13] Mr Chakwizira pleaded guilty and was convicted of two charges of doing anindecent act on a girl under 12 and sentenced to two and a half years' imprisonment.98 At [14]–[15].9 Third incident sentencing notes, above n 2; and Crimes Act, s 132(3).He was released from prison on 11 November 2021, his statutory release date. Aninterim ESO was made on 18 November 2021,10 and, on 13 December 2022,Judge Farish granted the application for an ESO for a period of five years.11Extended supervision order[14] ESOs are imposed under the Parole Act 2002 (the Act) and have the purposeof protecting members of the community from those who, following receipt of adeterminate sentence, pose a real and ongoing risk of committing serious sexual orviolent offences.12 The offence which gives rise to the application must be a relevantoffence under s 107B.13 The offender must be eligible for an ESO 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.[15] Section 107I(2) sets out 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, thecourt 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 futurecommit a relevant sexual offence:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.[16] ESOs are subject to standard conditions and any special conditions whichmight be imposed.1410 Department of Corrections v Chakwizira [2021] NZDC 22769.11 Reserved ESO judgment, above n 3.12 Parole Act, s 107I(1).13 In this case the relevant offending is listed under s 107B(2)(j): Crimes Act, s 132(3) (sexualconduct with a child under 12) is a relevant offence.14 Parole Act, s 107J.Decision under appeal[17] The Chief Executive of the Department of Corrections applied for an ESO fora period of five years. In a reserved interim judgment dated 20 October 2022,Judge Farish discussed whether Mr Chakwizira had a pervasive pattern of serioussexual offending.15 In a subsequent judgment dated 13 December 2022, she addressedqualifying criteria under the Act and the level of risk of future relevant sexualoffending (both of which are not at issue in this appeal).16 She also considered whetheror not the imposition of the ESO was justifiable.1720 October 2022 Interim ESO judgment[18] In the Interim ESO judgment, the Judge was satisfied all of the offences wererelevant sexual offences for the purpose of an ESO.18 She said serious sexualoffending should be given its ordinary meaning of "important, grave; having(potentially) important, especially undesired, consequences; giving cause for concern;of significant degree or amount, worthy of consideration".19 She considered theoffences particularly concerning because they all involved young and vulnerablevictims and it was "serious sexual offending".20[19] The Judge noted that, while there was a gap of five years between theoffending, she agreed with Dr Vertue, the registered clinical psychologist whoauthored the health report required for an ESO application,21 that this was notnecessarily a positive factor.22 There were important similarities in the earlieroffending that survived the interceding five-year period. Mr Chakwizira's offendinginvolved young and vulnerable victims and was driven by a grandiose sense ofentitlement, a disregard for societal norms and a lack of empathy. Mr Chakwizira'ssubsequent conduct, such as his inappropriate use of "sexualised talk" and his resort15 Chief Executive Department of Corrections v Chakwizira [2022] NZDC 20650 [Interim ESOjudgment].16 Reserved ESO judgment, above n 3.17 At [3] and [29]–[31].18 Interim ESO judgment, above n 15, at [17].19 At [16], citing Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at[44].20 At [17]–[18].21 Parole Act, s 107F(2).22 At [22].to "Nofap"23 as a means of addressing his offending, supported the conclusion hepossessed these traits and they played an important role in his offending.24 These traitshad transitioned from his teenage to his adult life. The Judge viewed the offending asindicative of a pattern, but noted the existence of a pattern is not sufficient in itself.25[20] The Judge described a "pervasive pattern" as a fact-specific and evaluativeinquiry and one sufficiently characteristic of the offender to serve as a predictor offuture conduct.26[21] The Judge accepted that, while there were similarities between the 2015 and2019 offending, there were significant differences.27 In 2015, the offending involveda single victim, a two-and-a-half-year difference in age, and allegedly consensual sex.In 2019, Mr Chakwizira offended against a young girl he did not know. She was nineand he was 22. The Judge considered the offending was entirely opportunistic.[22] The Judge noted that the focus of defence submissions was to draw a stronganalogy to Chief Executive of the Department of Corrections v Ihimaera,28 which sheregarded as too narrow.29 She said the underlying drivers of Mr Chakwizira'soffending needed to be considered. She referred to Dr Vertue's opinion that both setsof offending had unique features which were significant hallmarks of Mr Chakwizira— both victims were vulnerable to verbal and/or physical coercion and both werenaive/immature. Mr Chakwizira lacked significant appreciation for the feelings,perspectives or rights of others, demonstrated by his repeat offending against the samevictim when he was 17, and his disregard for social norms or the rights of the childwhen he was 22. He did not appear to understand his culpability for the first twooffences.23 Mr Chakwizira maintains he poses no risk to children or young people because he has engagedwith an online support group called NoFap which serves as a support group for people who wishto stop masturbating or manage their addiction to pornography.24 At [22].25 At [23].26 At [24], citing Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at[21] and [23].27 At [25].28 Chief Executive of the Department of Corrections v Ihimaera [2019] NZHC 19.29 Interim ESO judgment, above n 15, at [28]–[30].[23] The Judge acknowledged that the threshold for an ESO is high and has limits.30However, she considered that the importance of an offender's right not to be arbitrarilydetained, having served their sentence for an offence, should not overwhelm thedecision-making process when the statutory test is "completed".3113 December 2022 Reserved ESO judgment[24] The Judge noted that Mr Chakwizira had a risk of reoffending of 75 per centover a period of in excess of ten years, and a likelihood of reoffending at 60 per centat five years.32 She referred to the purposes of an ESO and considered the proposedorder did no more than was reasonably necessary to achieve that purpose.33 The ESOplaced limits on Mr Chakwizira's living circumstances, employment, potentialrelationships and any treatment options. In the Judge's view, these were reasonablegiven the paucity of supports that Mr Chakwizira had within the community.[25] The Judge was satisfied overall that the ESO was necessary and was areasonable imposition, given the risk Mr Chakwizira posed to the safety of womenand/or children.34Health assessor's report[26] Before addressing the ground of appeal, we briefly discuss the evidence of thehealth assessor, Dr Fran Vertue, a registered clinical psychologist, which was beforethe Judge.[27] Dr Vertue described Mr Chakwizira as someone who believed himself to behighly successful socially, well-adjusted, morally upright and with an extremelypositive view of himself and his abilities. In order to maintain this positiveself-perception, he seeks out opportunities for others to admire him or to assert somepower over them. He will dismiss or distort any feedback to the contrary. The realityis that he has struggled socially, educationally and vocationally, is often actively30 At [32], citing Simmonds v Chief Executive of the Department of Corrections [2017] NZCA 172at [30].31 At [33].32 Reserved ESO judgment, above n 3, at [29].33 At [30]–[31].34 At [33].disliked by others and struggles to manage his emotional states. He has a black andwhite view of right and wrong and may ignore the rights and wellbeing of others.[28] Dr Vertue said Mr Chakwizira considers himself to be extremely sexuallyattractive and that females generally wanted to have sex with him. He believes thatfemales have a less important role in life than males and are attracted to dominatingmen. At times his overvalued beliefs about himself constitute delusions.Mr Chakwizira also believes that, if the law is not consistent with his beliefs, he is notnecessarily bound by that law. Mr Chakwizira has a limited ability to think aboutothers' mental states or to empathise emotionally with others.[29] Dr Vertue said Mr Chakwizira appears extremely egocentric and cannot sustaininterest in others any longer than is required to meet his immediate needs. It may bethat his brain requires high levels of arousal (excitement) for him to feel engaged inthe world and will try to generate situations of excitement involving aggression or sexto feel engaged and powerful. Early sexual experiences and sexual abuse by a teacherwhen he was 13 provided a distorted view of consent and no normative model ofsexual relationships. His view of himself and his distorted models of sexualrelationships with females mean he is convinced his victims were willing participantsin his sexual endeavours.[30] In relation to the first victim, Mr Chakwizira reported that his sexual behaviourwith her was reasonable because he believed they were going to get married and lovedone another. In relation to the second victim, Dr Vertue noted it is possible he went tothe house in the expectation of finding a party and a female to have sex with. Whenit transpired the party was over, he decided to sleep at the house despite not knowingthe occupants. Although he was offered a place to sleep in the living room, he choseto get into the victim's bed, consistent with his lack of appreciation of others'perspectives, including the victim and her family's privacy.[31] Mr Chakwizira's sexual preoccupation, high level of sexual activity and use ofsex to alleviate boredom or discomfort, coupled with his beliefs about his entitlementto have sex with females and his sexual attractiveness, as well as his distorted viewsabout consensual sex, result in the likelihood he will opportunistically have sex withwhomever is nearby and thinks will comply with his sexual urges.[32] We now turn to the ground of appeal — did the Judge err in concludingMr Chakwizira demonstrated a pervasive pattern of serious sexual offending?Has there been a pervasive pattern of serious sexual offending?[33] Mr Williams, for Mr Chakwizira, submitted there was no pattern of sexualoffending. He pointed out that the first two incidents occurred over a short period in2014 and there was a five-year gap between the first two and the third incidents.Mr Williams suggested a five-year gap without sexual offending is significant whendealing with a young person (almost one-third of Mr Chakwizira's life). Mr Williamsobserved that, had the first two incidents occurred today, the charges would be dealtwith in the Youth Court and that this is relevant to an assessment of the seriousness ofthe offending.[34] Mr Williams suggested that similarities between the previous offending werebetter addressed under a (separate) enquiry as to whether any established pattern ofoffending was "pervasive". He contended the initial focus ought to be on the regularityof the prior offending. In Mr Williams' submission, there was not sufficient regularityto Mr Chakwizira's offending to establish a pattern. Mr Williams submitted the Judgeerred in referring to Mr Chakwizira's "inappropriate use of sexualised talk and hisresort to NoFap" in assessing whether there was a pattern, saying, while they may berelevant to future risk, they are not relevant to assessing a pattern of prior sexualoffending.[35] Mr Williams then said that, even if a pattern existed, it was not pervasive. Thecircumstances of the offending were significantly and materially different. There wasonly a two-and-a-half-year difference in age between Mr Chakwizira and the 2015victim. They had attended the same school and were in a dating-type relationship.The sexual relationship was largely consensual. The third incident related to aprepubescent girl unknown to Mr Chakwizira. Mr Williams referred to Ihimaera,3535 Ihimaera, above n 28.describing it as bearing striking similarities to this case. When he was 18, Mr Ihimaerahad apparently consensual sex with a 14-year-old at a party when he was drunk. Whenhe was 22, he lay down next to a 10-year-old while she was sleeping on a mattress inthe lounge of a relative's house. He rubbed his hand over her vaginal area, pulleddown her underwear and squeezed her buttocks. In that case, Katz J in the High Courtconsidered the offending serious and represented a pattern but that it could not bedescribed as "pervasive".36 In Mr Williams' submission, the facts of Mr Chakwizira'soffending could not be said to be of such similarity as to constitute a pervasive pattern.[36] Mr McKillop, for the respondent, submitted that "pervasive pattern" is a singleevaluative and fact-specific inquiry.37 Mr McKillop relied on Dr Vertue's evidence tosay there was a pervasive pattern. He contended that the Judge was right to examinethe underlying drivers of offending and avoid a narrow focus. In his submission, itwas open to the Court to assess the offending collectively when determining whetherthe test of pervasive pattern of serious sexual offending was met, which may involvea critical examination of earlier offences in light of more serious later offences, to seeif the earlier offending disclosed the beginning of a pervasive pattern.38 When takenas a whole, the three instances of sexual offending indicate a pervasive patternreflective of Mr Chakwizira's personality functioning and which suggests a likelyrecurrence in future. The second instance of offending occurred very shortly after hissentencing for the first offence, Mr Chakwizira believing the law about underage sexdid not apply to him. Mr McKillop acknowledged that the third instance of offendinghad quite different facts but noted that Dr Vertue considered this reflectedMr Chakwizira's expectations of sexual gratification. The second and third instancesof sexual offending suggested a pervasive pattern, in his submission.[37] Mr McKillop distinguished Ihimaera on the basis that Mr Ihimaera hadcommitted two sexual offences out of over 90 convictions for diverse offending.3936 At [48].37 Kiddell, above n 26, at [21]. Mr McKillop noted this built on the earlier judgment of Muir J inChief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 which similarlyheld at [46] that the words should be taken together to determine whether the prior offending hascharacteristics so prevalent and common as to provide a reliable predictor of future conduct.38 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [41]–[45]; andHofmann v Department of Corrections [2021] NZCA 256 at [33].39 Ihimaera, above n 28, at [17].This occurred against a background of paranoid schizophrenia and anti-socialpersonality disorder. By contrast, Mr Chakwizira has committed more sexual offencesand sexual offending has predominated his offending history.Analysis[38] This Court's decision in Kiddell v Chief Executive of the Department ofCorrections provides some useful guidance, saying that, while the word "pattern"ordinarily connotes regularity, a pattern may take any form or sequence.40 A patternthat includes relevant but less serious conduct may be found pervasive.41 To bepervasive is to be present throughout and in this context is concerned with theoffender's behaviour. Therefore, a pervasive pattern is a pattern that is sufficientlycharacteristic of the offender to serve as a predictor of future conduct.[39] It is possible, as noted by the High Court in Ihimaera, that in somecircumstances, a small number of sexual offences may form a pattern, and even apervasive pattern, but in other circumstances, two incidents, even if they disclose sometype of pattern, will not be sufficient to meet the pervasive pattern threshold.42 Whatis required is an evaluation of the facts in the particular case.43[40] In Mr Chakwizira's case, the differences in the circumstances of offending areimportant. Mr Chakwizira was 17 years old at the time of the first and second offencesand the facts show that the victim was (to a large degree) a willing participant. Shecontacted him (also knowing, we assume, of the non-association order) and agreed tomeet. This is not to blame the victim but to recognise that the offending occurred inthe context of a teenage relationship. The third offending is in stark contrast.Mr Chakwizira was 22 years old when he randomly assaulted a child he did not know,while apparently intoxicated.[41] At a high level, there is a pattern of offending in that Mr Chakwizira has beenconvicted of three sexual offences. When the offending is examined at a more detailed40 Kiddell, above n 26, at [23(c)].41 At [23(c)]. See also Taakimoeaka v Chief Executive of the Department of Corrections [2021]NZCA 467 at [28].42 Ihimaera, above n 28, at [50].43 Kiddell, above n 26, at [21].level, the similarity or pattern exists in respect of the first two incidents of offendingonly.[42] Dr Vertue, whose evidence is relevant to both pervasive pattern and futurerisk,44 observed that Mr Chakwizira clearly did not understand his culpability for thefirst two offences, suggesting that the power differential between him and the 14-year-old victim was a matter of his being more popular than her at school and suggestinghis ongoing sexual offending with her was a function of her pursuing him and hisdesire to keep her happy. To Dr Vertue, this demonstrated the pervasiveness of hisoffence permissive thinking.[43] Dr Vertue acknowledged the differences in Mr Chakwizira's offending butobserved there were: really important similarities in the offending as contained in the pervasivepatterns of thinking and motivation that have underpinned his offending soboth of his victims were vulnerable to verbal or physical coercion by virtue oftheir youth and inexperience. His ongoing significant lack of appreciation forthe feelings or perspectives or rights of others was demonstrated by hisrepeated offending against the same victim when he was 17 and his disregardfor social norms of the rights of a child when he was 22 [44] Dr Vertue was suggesting there was a pervasive pattern of thinking andmotivation that underlay the second and third incidents of sexual offending inparticular. That is somewhat different from the statutory test, which requires there tobe a pervasive pattern of serious sexual offending.45 Any pervasive pattern must relateto the offending itself.[45] The first limb of the test for an ESO, whether there was or is a pervasive patternof serious sexual offending, which is the issue in this appeal, concerns past behaviourwhereas the second limb, the risk of offending, concerns the future.46 The pervasivepattern of Mr Chakwizira's offence permissive thinking is certainly relevant towhether there is a high risk he will commit a relevant sexual offence in future (aboutwhich there is no dispute). We are not satisfied however that Mr Chakwizira's pastbehaviour shows a pervasive pattern of offending sufficiently characteristic to serve44 Parole Act, s 107I; Kiddell, above n 26, at [18].45 Parole Act, s 107I(2)(a).46 Kiddell, above n 26, at [17].as a predictor of future conduct. There is no doubt that Mr Chakwizira's personalityprofile is distinctly troubling but that is not sufficient to meet the statutory test.[46] In any event, the question is whether there is a pervasive pattern of serioussexual offending.[47] Mr Williams referred to the case of Hofmann where the offending involvedfive incidents of sexual offending, over a short period of time, against five victims.47Mr Hofmann had exposed himself to and masturbated in front of several women. Healso indecently assaulted a woman by pressing himself against her back and buttocks.On another occasion, he entered the home of a woman unannounced, groped herseveral times and forced her to touch his penis before trying to force her head onto hispenis. This Court found that there was a pervasive pattern of sexual offending.48However, the Court did not consider there was a pattern of serious sexual offending— the offending was not at the end of the spectrum which justified the severelimitations imposed by the ESO.49 Mr Williams submitted the offending inMr Chakwizira's case was arguably less serious than the offending in Hofmann andalso does not reach the threshold of serious sexual offending.[48] Mr McKillop referred to the observation of Katz J in Ihimaera, to the effectthat some cases of consensual sex between teenagers where one is younger than16 will not reach the threshold of serious sexual offending for the purposes of the ESOregime.50 Mr McKillop accepted it may be possible to characterise the first offendingin this way, although the victim had been described as being "extremely vulnerable"and "easily influenced". However, the second and third instances were much moreserious, in his submission. The second instance came directly after sentencing for thefirst, and the non-association order, and reflected the fact Mr Chakwizira did notconsider the law applied to him. It was serious enough to attract a 22-month prisonsentence. The third instance involved entry into a stranger's house at night andopportunistic entry into multiple bedrooms until he identified an appropriate victim.47 Hofmann, above n 38.48 At [28].49 At [29]–[34].50 Ihimaera, above n 28, at [23].[49] Mr McKillop submitted that all the offences were serious sexual offences andinvolved young and vulnerable victims. He submitted that offending on its face maynot appear serious but, when viewed in context, it may nevertheless disclose featuresthat elevate the assessment of its gravity to reflect part of a pattern of serious sexualoffending.51[50] The phrase "serious sexual offending" is to be interpreted by reference to itsordinary meaning in light of the ESO regime as a whole. In Holland, this Court notedthat, because an ESO significantly restricts an offender's freedom of movement andassociation after the end of their sentence, only offending at the higher end of the rangewould justify such a step.52 When an offending pattern is pervasive but does notdisclose serious offending, an order cannot be made.53[51] While a charge of sexual connection with a young person aged under 16 iscertainly serious, as evidenced by the maximum penalty of 10 years' imprisonment,the first and second sets of offending, particularly the first, are at the lower end ofseriousness for that offence. We agree with Mr Williams' submission that, hadMr Chakwizira offended today, he would have been dealt with in the Youth Court. Itis highly unlikely the offending would have been considered sufficiently serious as towarrant a transfer to the District Court. That in itself is an indication of the degree ofseriousness of the offending.54 While Mr Chakwizira displayed a lack of regard forthe law, his comment that he loved the victim and wanted to marry her suggests thathe perceived the situation as two teenagers being in love and wanting to be together.This is in contrast to other cases involving a significant power imbalance and/or a51 W (CA716/2018) v Chief Executive of the Department of Corrections [2019] NZCA 460 at [21]–[22]; Wardle, above n 38, at [42]–[44]; and Chief Executive of the Department of Corrections vColeman [2021] NZCA 528 at [32].52 Holland, above n 19, at [45]. See also Wardle, above n 38, at [39]–[43].53 Hofmann, above n 38, at [34]–[35].54 Hofmann, above n 38, at [30]–[31]. We accept that courts have taken Youth Court offending intoaccount when determining whether someone exhibits a pervasive pattern of serious violentoffending.much older offender.55 Here, the age difference was small and none of the usualaggravating factors, for example grooming, were present. The offending involved twoteenagers and was in the context of some kind of relationship. We note the victim wasdescribed as vulnerable. We agree with Mr McKillop that the second charge istroubling, seemingly involving an element of force and coercion, and it gives uspause.56[52] As against that, Mr Chakwizira was 17 years old at the time of the first andsecond sets of offending. This Court has acknowledged that neurological science inrelation to the developing adolescent brain suggests that young people do not have afully developed system for balancing risk and reward, have diminished capacity tocontrol impulsive behaviour, are less future orientated, focus on the here and nowrather than the consequences and tend to discount risks and calculate rewardsdifferently from adults.57 This is important context.[53] By a slim margin, we are not satisfied the second offending constituted serioussexual offending.[54] The third offending was certainly serious. It was an act committed against oneof society's most vulnerable members, a child. While Mr Chakwizira claims to havebeen intoxicated or otherwise not remember what happened, it is clear from hisconversation with the victim's brother that he was aware the victim was nine yearsold. Not only was this a serious offence in the context of societal harms but wasundoubtedly traumatising for the young victim. We accept there was littlepremeditation or grooming, rather it was impulsive offending occurring whileMr Chakwizira was apparently heavily intoxicated. While concerning, the reality isthe offending did not progress to any form of violation or genital contact.55 In Philpot v R [2015] NZCA 212, one of the victims with whom the offender had unlawful sexualcontact was 14 years old. The offender was 33 years old and had been in an intimate relationshipwith the victim's mother. See also R v Brunie [2009] NZCA 300, where the victim was 15 yearsold and resided in a care facility and the offender was a 38-year-old care worker in that samefacility. See also Taylor v R [2022] NZCA 70, where the offender, in his late 30s, sexuallyoffended against the victim when she was aged 13 to 15. The offender was the victim's teacherand she lived with him.56 Mr Chakwizira was originally charged with sexual violation under ss 128 and 128B of the CrimesAct in relation to these events.57 Millar v R [2019] NZCA 570 at [26], citing Churchward v R [2011] NZCA 531 at [53]. See,generally, Churchward v R at [50]–[55] and [77]–[92].[55] When the offending is considered in totality, it has not reached the very highlevel of seriousness required by the Act. While Dr Vertue expressed the opinionMr Chakwizira poses a high risk of offending, the object of an ESO is not to protectthe public from all potential recidivist offenders — Parliament has set the thresholdmuch higher than that.58[56] Even had we concluded there was a pervasive pattern of sexual offending, wedo not consider it meets the standard of serious sexual offending. Ultimately, we arenot satisfied the threshold requirement of a pervasive pattern of serious sexualoffending is reached. Our conclusion is strengthened by a rights-based analysis.[57] An ESO engages rights protected under the New Zealand Bill of Rights Act1990 (NZBORA). The ESO regime creates a retrospective double penalty, socontravenes s 26 of NZBORA, but nonetheless must be given effect under s 4 of thatAct.59 When deciding whether to make an ESO, and for how long, courts mustrecognise the order impinges substantially upon the offender's freedom of movementand association after they have served their sentence.60 Self-evidently, only offendingat the higher end of the range would justify such a step.61 This Court has noted theserights must be borne in mind when deciding both whether the offender has thenecessary pervasive pattern of serious sexual offending and whether the offenderpresents a high risk of future serious relevant offending.62[58] We conclude the Judge erred in determining that Mr Chakwizira has or had apervasive pattern of serious sexual offending. We are mindful of Mr Chakwizira'spersonal qualities which make him at risk of sexual offending. We note he is on theChild Sex Offenders' Register which does provide some degree of protection to thecommunity.6358 See Hofmann v Department of Corrections, above n 38, at [34]; and Simmonds, above n 30, at[30].59 Kiddell, above n 26, at [27], citing Belcher v Chief Executive of the Dept of Corrections [2007]1 NZLR 507 (CA). This remains the position following the Supreme Court decision in Hollandv Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 at[17]–[18]. See also Chisnall v Attorney-General [2022] NZCA 616, [2022] 2 NZLR 484 at [177];and Mosen v Chief Executive of Department of Corrections [2022] NZCA 507 at [31].60 Kiddell, above n 26, at [27].61 Holland, above n 19, at [45].62 Kiddell, above n 26, at [27].63 Child Protection (Child Sex Offender Government Agency Registration) Act 2016.Result[59] The appeal is allowed.[60] The ESO is quashed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent