PANIORA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 607 [19 December 2018]

PANIORA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 607[19 December 2018]NOTE: PUBLICATION OF NAME OR IDENITFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA414/2018[2018] NZCA 607BETWEEN PHILLIP JOHN PANIORAAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 24 October 2018Court: Brown, Courtney and Katz JJCounsel: R M Mansfield for AppellantC A Brook for RespondentJudgment: 19 December 2018 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Paniora appeals against a judgment of the High Court which:11 Chief Executive, Department of Corrections v Paniora [2018] NZHC 1505.(i) imposed on him an Extended Supervision Order (ESO) under s 107I ofthe Parole Act 2002 (the Act) for the maximum 10 year term;2 and(ii) made an order under s 107IAC of the Act requiring the Parole Board toimpose on Mr Paniora an intensive monitoring condition (IMC) andspecifying a maximum duration of the condition of 12 months.3[2] While Mr Paniora accepts that the Court was correct to make an ESO, heappeals against the 10 year term contending that on the evidence the order should havebeen for no more than five years. Secondly, he contends that in specifying an IMC of12 months maximum duration the Judge erred by failing to take into account the timewhich Mr Paniora had already spent under intensive monitoring conditions as part ofinterim supervision orders which applied following his release from imprisonment on26 January 2018 and pending the determination of the ESO application.4[3] The Court must allow an appeal against orders under those sections if satisfiedthat there was an error in the imposition of the orders and different orders should bemade. Otherwise the appeal must be dismissed.5Statutory framework[4] The purpose of an ESO is to protect members of the community from thosewho, following receipt of a determinate prison sentence, pose a real and ongoing riskof committing serious sexual or violent offences.6 An application for an ESO unders 107F of the Act must be accompanied by a report by a health assessor whichaddresses one or both of the following questions:7(a) whether—(i) the offender displays each of the traits and behaviouralcharacteristics specified in section 107IAA(1); and2 At [61].3 At [62].4 Parole Act 2002, s 107FA.5 Section 107R; and Criminal Procedure Act 2011, s 250(2) and (3).6 Section 107I(1).7 Section 107F(2A).(ii) there is a high risk that the offender will in future commit arelevant sexual offence:(b) whether—(i) the offender displays each of the behavioural characteristicsspecified in section 107IAA(2); and(ii) there is a very high risk that the offender will in future commita relevant violent offence.[5] Under s 107I(2) the court may make an ESO if satisfied, having considered thematters addressed in the health assessor's report, that:(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commit arelevant sexual offence:(ii) there is a very high risk that the offender will in future commita relevant violent offence.[6] The term of the order, which may not exceed 10 years, must be the minimumperiod required for the purposes of the safety of the community in light of:8(a) the level of risk posed by the offender; and(b) the seriousness of the harm that might be caused to victims; and(c) the likely duration of the risk.[7] The matters which the court must be satisfied about when assessing risk are setout in s 107IAA:(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(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; and8 Section 107I(5).(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfiedthat the offender—(a) has a severe disturbance in behavioural functioningestablished by evidence of each of the followingcharacteristics:(i) intense drive, desires, or urges to commit acts ofviolence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet apremeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about theimpact of his or her violence on actual or potential victims.[8] An IMC is a condition requiring an offender to submit to being accompaniedand monitored, for up to 24 hours a day, by an individual who has been approved toundertake person-to-person monitoring.9 When making an ESO the court may at thesame time make an order under s 107IAC(1) requiring the Parole Board to impose anIMC on the offender.[9] As the Crown's submissions note, there is no guidance in the legislation as tothe approach to be taken to the imposition of such an order, save that the maximumduration must be no longer than 12 months10 and the court may not make such an order9 Section 107IAC(2).10 Section 107IAC(3).in respect of an offender more than once, even if the offender is subject to repeatedESOs.11Factual background[10] Mr Paniora has an extensive criminal history. It commenced in 1984 withrelatively minor and nuisance offences but escalated to serious violence from 1988with persistent serious violent offending including:(a) In 1991 he was sentenced to five years' imprisonment for aggravatedrobbery.(b) In 1999 he was sentenced to two years' imprisonment for injuring withintent to injure.(c) In 2002 he was sentenced to 18 months' imprisonment for a maleassaults female charge.(d) In 2002 he was sentenced to five and a half years' imprisonment forwounding his then partner with intent to injure.(e) In 2010 he was sentenced to nine months' imprisonment for assaultwith intent to injure.[11] Then in 2011 he was sentenced to nine years' imprisonment on seven countsof violent and sexual offending. The offending involved two serious incidents ofassault and sexual violation.[12] The ESO application was supported by a health assessment report of aregistered psychologist, Ms Nelmes. Her primary report concluded in this way:Mr Paniora has committed three relevant violent offences evidencing acapacity for prolonged violence causing extensive harm. These relevantoffences only capture a small number of the offences of violence for which hehas been convicted. Despite his age and the contained setting of prison he hascontinued his pattern of interpersonal violence. He has verbalised his own11 Section 107IAC(5).concerns about his risk that has mirrored the concerns of Judges and reportwriters. He has chosen not to engage in any offender treatment on his currentor previous sentences. Mr Paniora's psychopathic personality traits includingmanipulation, deceitfulness and his lack of empathy and remorse increase hisrisk and lead to a poor prognosis for his future management and supervisionand are a responsivity barrier to treatment. He has an extensive history ofnon-compliance and has made no comprehensive plans to aid his managementof his risk on release and is planning on maintaining antisocial gangassociations. It is considered that Mr Paniora's personality characteristics, hiscurrent violence, his extensive history of violence, his callous disregard forhis victims, his prior poor compliance and his lack of treatment makes him atvery high risk of re-offending violently.[13] Mr Paniora's then counsel commissioned a psychological report from aregistered clinical psychologist, Dr Brindley, for the purpose of assessing theappropriateness of an ESO of 10 years duration. Dr Brindley's conclusions included:It is not possible to predict with any certainty the probability that Mr Paniorawill commit serious offences in the future. Previous psychologicalassessments and the current risk assessments have utilised best practice, andevidence based frameworks and methodologies to conclude opinionsregarding risk of violence recidivism and risk of future sexual offending.A pluralism of assessments have been employed to assess static and dynamicrisk factors and to formulate possible explanations of offending behaviour asway[s] of identifying risk management plans. A level of convergence wasestablished by use of a number of risk assessment tools. Mr Paniora has beenassessed as an individual who presents very high risk of future violence andhigh risk of sexual offending. He poses a high risk of serious imminent harmto others in the community setting. It is important to note that despite clearconditions imposed by the Courts, Mr Paniora has previously reoffendedwhilst subject to supervision and restrictions.The High Court judgment[14] Jagose J reviewed in detail the content of the reports of Ms Nelmes andDr Brindley, together with the oral evidence of Ms Nelmes who had been requested toattend for cross-examination. After addressing the considerations in s 107I(2) andconcluding that it was necessary to make an ESO to protect the community from thereal and ongoing risk of Mr Paniora's serious violent offending on his release,12the Judge turned to the terms of the order and the question of the imposition of an IMC.12 Chief Executive, Department of Corrections v Paniora, above n 1, at [32].[15] After noting Ms Nelmes' evidence that the test used to assess Mr Paniora'slikelihood of reoffending involved a five year reoffending matrix which sheconsidered it would be inappropriate for her to exceed, the Judge concluded:[43] In my assessment, 'the likely duration of the risk' here exceeds thefive years predicted by Ms Nelmes' model. That is because the model doesnot predict beyond five years, and therefore its prediction of the risk presentedby Mr Paniora's reoffending is only to say it is at the far bounds of theavailable prediction. Mr Paniora's violent offending is literally pathological,and unlikely to diminish with age. In Ms Nelmes' words, "there's noindication that Mr Paniora can manage his own risk", and "[s]elf-managementis what would be required to reduce the risk". She agreed with Mr Mansfieldonly time would tell if any potential for Mr Paniora's change sustainablymanifested itself.[44] On that basis — in light of the very high risk of serious violentoffending posed by Mr Paniora, the serious injury or death that might becaused to his victims, and the absence of any predictable limit to the durationof that risk — the "minimum period required for the purposes of the safety ofthe community" in my view exceeds ten years. In coming to that view I amunable to have regard for Mr Paniora's possible incentivisation by any shorterperiod. That is not a relevant consideration in deciding the 'minimum periodrequired'. (I acknowledge actual incentive may reflect in "the level of riskposed by the offender", but there is inadequate evidence Mr Paniora would beincentivised by a shorter period).(Footnote omitted.)[16] Turning to the issue of an IMC the Judge noted there was no statutory thresholdfor an order requiring the Board to impose such a condition.13 He observed that itsexceptionally intrusive, time limited and one-off aspects were all indicia that such anorder is a response to a need to assert external control at a transitional point of highrisk.14[17] Noting that Mr Paniora had been subject to intensive monitoring since hisrelease, the Judge concluded on the basis of Ms Nelmes' evidence that such monitoringremained justified.15 Rejecting the submission from Mr Paniora that time alreadyspent should be taken into account in specifying the maximum duration of an order,the Judge concluded:[52] To summarise my decision on this aspect, only the Board imposesintensive monitoring conditions; the Court's role is to "make an order13 At [46].14 At [46], citing Chief Executive of Department of Corrections v Paul [2017] NZHC 1294 at [39].15 At [47].requiring the Board" to do so. If so ordered by the Court, the Board is toimpose an intensive monitoring condition. The maximum duration of thatcondition is to be specified by the Court. Whatever duration up to thatmaximum is imposed by the Board, the condition only applies during the first12 months of the ESO. Neither the Court in specifying the maximum duration,nor the Board in imposing the condition, is either required to take or prohibitedfrom taking into account time spent on intensive monitoring conditions inassociation with interim supervision orders.[53] Given the risk here sought to be ameliorated by the intensivemonitoring condition, Mr Paniora's inability to manage that risk, and thecommunity interest in keeping him from reoffending, it is my view the Boardshould have the greatest discretion as to the duration of the intensivemonitoring condition it imposes. I will specify the maximum duration of theintensive monitoring condition as 12 months.(Footnotes omitted.)ESO duration[18] Mr Mansfield commenced by drawing attention to this Court's observation inMoeke v The Chief Executive of the Department of Corrections that the ChiefExecutive should ensure that psychological reports include a considerably greaterfocus on the appropriate s 107I(5) minimum term.16[19] Mindful of that direction Jagose J asked Ms Nelmes whether she was able toarticulate what she considered should be the minimum term of an ESO in relation toMr Paniora. Her initial response of five years was expanded upon in this way:A. Your Honour asked me for the minimum.Q. Yes.A. So which would be in terms of five years going by the data and thetests I've undertaken. Within times after that there's no indication thatMr Paniora is currently likely to put in place anything past thatfive year mark. In terms of reoffending rates my data covers thefive years.Q. I understand that, perhaps I should make sure I do. It is that thescheme that you use to assess Mr Paniora's likelihood of reoffendingis one which is chartered against a five year reoffending matrix?A. Yes.Q. And so you simply find that nothing short of five years but you can'tgo over five years?16 Moeke v The Chief Executive of the Department of Corrections [2010] NZCA 60 at [28]–[29].A. It would be inappropriate to go over five years.[20] Given the health assessors' evidence Mr Mansfield contended thatthe respondent was unable to refer to any reliable evidence justifying the statutorymaximum period as the minimum period required in this case. He suggested thatthe 10 year period sought and ordered appeared to be an entirely arbitrary periodselected as the maximum available. Where the assessment tools are limited to aforecast of five years, it was his submission that the Court should not engage inspeculation as to risk beyond that period, particularly given the opportunity availableto the Chief Executive to bring a further application. He made the point that a laterapplication would afford the opportunity for updated reports thereby providing a morereliable forecast for the next period.[21] While it appears that the various risk assessment tools utilised by the healthexperts do not enable them to provide a specific risk projection beyond a five yearhorizon, the court retains both the power and the obligation to make its ownassessment. Its decision is of an evaluative nature, not merely rubber-stamping thehealth assessor's reports.17[22] In Chief Executive, Department of Corrections v Alinizi this Court observedthat where an offender categorically denies previous offending and consequently isunwilling to undertake treatment directed to the sexual offending, it would be open toa Court to direct an ESO of the full 10 year period.18 Dr Brindley's report relevantlynoted that Mr Paniora had continued to deny his index offence and consequently hadnot participated in any offending behaviour programme to address sexual offending.At the interview he stated he would continue to decline any offer of attendance of anyprogramme designed to address sexual offending.[23] In any event there were clear indications in the health assessors' reportsconcerning the longer term risk which Mr Paniora posed for the community.Dr Brindley's summary and recommendations recorded that Mr Paniora had beenassessed as an individual who represents a high risk of sexual offending. She stated17 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].18 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [38].that he has limited self-regulatory capacity and displays a lack of acceptance ofresponsibility or remorse for past offending and an absence of understanding for orconcern about the impact of sexual offending on actual or potential victims.She further noted that Mr Paniora has been assessed as an individual who represents avery high risk of violent offending.[24] Similarly Ms Nelmes' report noted there was a very high risk that Mr Paniorawill engage in relevant violent offending within 10 years of release and a medium tohigh risk of Mr Paniora engaging in sexual offending within 10 years of release.[25] In our view there was ample evidence in the history of Mr Paniora's offending,his lack of understanding of or concern about the impact of his offending and theevidence of the two health assessors to support the Judge's conclusion that an ESO ofthe maximum ten year term was necessary for the purposes of the safety of thecommunity. We do not consider that there was any error in his conclusion.The IMC order[26] The nature of intensive monitoring was explained by Ms Nelmes in herevidence-in-chief:Q. As part of this application the Department is seeking forMr Paniora to be subject to intensive monitoring for a period of12 months. Could you explain how you consider intensivemonitoring, by which I'm meaning person-to-person 24 hourmonitoring, would impact on his risk of offending?A. Person to person monitoring is basically is a containment of that riskso we're saying that somebody is unable themselves to manage theirrisk without some kind of aspect of high intensity monitoring.It removes an element of their kind of responsibility in that so becausewhat we're saying is they're actually not modifying their ownbehaviour in any way. So we have somebody there that monitors thatto ensure that they are not able to access situation[s] where they wouldreoffend. So that is the purpose of intensive monitoring, forsomebody who is considered to be not able to manage their own risk.[27] In response to a question about Mr Paniora's capacity to manage his own riskshe said:A. In terms of all the risk assessments that I've undertaken, there is noindication that Mr Paniora would be able to manage his risk in thecommunity. He's avoided treatment that may modify that and mayhave addressed that over time, but as it currently sits there's noindication that Mr Paniora can manage his own risk.[28] The bulk of the discussion in the judgment on the IMC issue was devoted tothe Chief Executive's proposition, relying upon s 107FA(4), that time already spent byMr Paniora subject to intensive monitoring was not able to be taken into account inspecifying the maximum duration in an order under s 107IAC. The Judge ruled againstthat proposition.19 The Chief Executive does not maintain the point. Ms Brookacknowledged that s 107FA(4) only prevents a prior period of monitoring from beingtaken into account for the purposes of calculating the time limits in s 107K(3)(ba),namely that an IMC may apply only within the first 12 months of the ESO.[29] Hence Ms Brook accepted that an earlier period of monitoring pursuant tointerim conditions is a permissive, but not mandatory, consideration in the court'sassessment of an order. Similarly the Board is not required to impose an IMC for themaximum duration set by the court but may impose the condition for a lesser periodfor any reason.[30] Mr Mansfield contended that greater recognition should have been given towhat he characterised as Mr Paniora's positive response to the intensive monitoring todate. He argued that at [48] of his judgment the Judge placed improper weight on anextract from Ms Nelmes' evidence concerning the significance of a short period oftime in the context of an assessment of behavioural and attitudinal change.We consider it is useful to set out the entirety of the relevant exchange incross-examination, which followed a discussion about the desirability for cautionregarding indications of potential change:Q. Would you agree with me that if we saw an extended period ofconsistent positive change, we might become more confident about adesire by Mr Paniora to in fact identify the issues and to change?A. Absolutely.Q. So we would agree, wouldn't we, that if he is intending on changingand he is making steps that appear to indicate change, opportunity, sotime would be the only thing that informs us as to whether he doeschange or not?19 At [52] quoted at [17] above.A. Absolutely. I think and clearly in my report I outline that behaviouralchange and attitudinal change in the moment or within a short periodof time is not a good assessment of actual change, with Mr Paniora.Q. But it's as good as we're going to get if we're looking at where he'sat now, as good as we're going to get as seeing some signs from himthat he's seeking to engage and there are positive aspects in relationto his conduct?A. As I say, in the moment on each moment, that is potentiallymeasurable. Or in looking at that, it would appear that there arepositive changes. What we don't know is what underlines the thinkingfor Mr Paniora about why he is presenting in this particular manner atthis particular time.[31] Ms Brook accepted as a general proposition that compliance and progresswhile under an interim IMC were considerations which might lead the Board to imposea condition for a lesser period than the 12-month maximum set by the Court.However, she contended that it did not appear that Mr Paniora's circumstancessupported the imposition of a shorter period.[32] Although no breaches had been reported in the period of his supervision,Mr Paniora did have notations of displaying hostility and negative attitudes towardssome staff members. Furthermore, he had already requested the ability to visit escortsand prostitutes which, while acknowledged not to be illegal, was considered to showa lack of insight into his then risk situation.[33] The Judge considered that in view of Mr Paniora's inability to manage his riskof reoffending and the community interest in there being no repetition of offending, itwas appropriate for the Board to have the greatest discretion as to the duration of anIMC.20 In our view that was an acceptable approach in the circumstances of this case.We do not consider that there was any error either in the weight which the Judgeattributed to Ms Nelmes' evidence or in the Judge's ultimate conclusion.20 At [53].Result[34] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent