KERR v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2347

KERR v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2347IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2016-409-000149[2021] NZHC 2347UNDER the Parole Act 2002IN THE MATTER of an application to cancel an Extended Supervision OrderBETWEEN SEAN MARK KERRApplicantAND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONSRespondentHearing: 31 August 2021Appearances: A Bailey for Mr Kerr C J Boshier for RespondentJudgment: 20 September 2021JUDGMENT OF DOOGUE JThis judgment was delivered by me on 20 September 2021 at 2.15 pm.Registrar/Deputy RegistrarDate:Introduction[1] The applicant, Sean Mark Kerr, is subject to an Extended Supervision Order (ESO). Gendall J made the ESO and it commenced on 28 September 2017. He ordered that the ESO remain in force for a period of 10 years from that date.[2] Mr Kerr has applied to cancel the order under s 107M of the Parole Act 2002 (the Act).[3] The respondent opposes the cancellation of the ESO at this time but does not seek the imposition of an order precluding Mr Kerr from reapplying within the next two years. 1Factual backgroundThe relevant offending[4] Mr Kerr's history has been documented over an extensive period of time, through a plethora of clinical psychological reports prepared by different clinical psychologists and a series of reports from Corrections. His history between when the relevant offending occurred and when the ESO was ordered by Gendall J was traversed in the Judge's decision.[5] Mr Kerr was sexually abused on a frequent basis between the ages of 10 and 13 by a male peer who was five years older than him. Mr Kerr found the experiences to be positive in nature. On one or two occasions Mr Kerr's abuser coerced him into abusing other young children.[6] After Mr Kerr's abuser left the neighbourhood, Mr Kerr felt lonely and longed for the physical sexual outlet which was not met through frequent masturbation. In this context he sexually offended against 17 prepubescent victims, of which he was only convicted of four offences (the other offending being disclosed later during treatment). His victims were predominately male (bar one or two) and the sex entailed masturbation, oral sex and/or digital penetration. He was 13 when he began offending.1 Parole Act 2002, s 107M(6).[7] The offending with which the Court is concerned began when Mr Kerr was 14-years-old. He was convicted for attempted sexual connection with a child under 12 (x2), assault child (manually), unlawful sexual connection with a male under 12 and indecent assault on a boy under 12. Mr Kerr attempted to perform oral sex on his victims but was unsuccessful bar on one occasion. He also threatened to force his penis into one victim's mouth. His offending was impulsive. At the time he did not care about his victim's distress, instead focusing on meeting his own needs. He was sentenced to two years and six months' imprisonment.2016 to today's date[8] From the beginning of 2016 until very recently Mr Kerr was managed at Christchurch Residential Care (CRC). While he initially tested boundaries, he appears to have matured and ultimately become compliant. Mr Kerr did not appear to be focused on or preoccupied with children, although reports vary in this regard. He still struggled to deal with stressors in an appropriate way, using sex as a means of coping. He also attended ACC (sensitive claims) treatment with some benefit.[9] Mr Kerr reported to both the health assessors who have provided reports to the Court (Ms Falconer Beach and Mr Prince) that following his prison sentence for breaches in 2015 to 2016 he made an active choice to manage himself differently and to actively focus on avoiding future sexual offending. To Ms Falconer Beach, he reported this was because he said he did not want the negative repercussions that would arise for himself, his family or his possible victims if he reoffended. To Mr Prince, he reported that continued breaches could lead to his freedom being curtailed indefinitely and he wanted more from life.[10] In 2017 the Department of Corrections applied for a Public Protection Order (PPO) under the Public Safety Act, but the Court found Mr Kerr did not fulfil the criteria for this. Instead another ESO of 10 years was imposed, commencing on 28 September 2017.[11] By 2019 staff at CRC reported that Mr Kerr was well engaged in their programme, with a view to gaining more independence. He was also more open withall staff when experiencing difficulties, was better able to employ coping skills and was more focused on managing deviant arousal.[12] In 2019 Mr Kerr's life expanded. He undertook a part-time bakery course and joined a gym. Most significantly, however, he entered into a homosexual relationship with a former resident of CRC who was also subject to an ESO. The couple are now engaged.[13] Mr Kerr reported to his treating psychologist that as the relationship with his partner developed his ability to become aroused to same-age peers increased. Mr Kerr now masturbates once or twice a week to adult gay pornography or fantasies about his partner. He reports that this year he has not masturbated to any deviant images.[14] Mr Kerr's devices have been searched and there is no evidence of deviant images nor any attempt by Mr Kerr to have contact with children.[15] Mr Kerr is now living at a hostel on his own where he has been residing since February 2021. He remains under electronic monitoring and curfew from 10 pm to 7 am. The New Zealand Parole Board accepted that the condition Mr Kerr participate in an approved programme was no longer necessary and this condition was discharged.[16] Mr Kerr is spending time working on coursework from an online small business course, for which he is getting good grades.[17] Mr Kerr has been looking for employment and is working with the Community Corrections' employment officer to seek employment that would allow him to fulfil the conditions of his ESO. Mr Kerr is also taking steps to obtain his driver's licence.[18] Mr Kerr is on medication to assist with the management of anxiety and depression. His mood has been stable for the past year, with the exception of a slight decrease in mood when he moved to independent living in February 2021 as he initially felt lonely.[19] Earlier this year Mr Kerr went for a holiday in Blenheim, to visit his partner's parents. The trip was successful. Mr Kerr made a safety plan with his probation officer in advance of the trip and followed it.[20] Mr Kerr has a close relationship with his stepfather and sister. He has some contact with more extended family. The evidence does not indicate who they are.[21] Mr Kerr enjoys leisure activities such as going for walks, shopping and cooking dinner daily for his partner.ESO – the legislative scheme[22] The purpose of an ESO is to protect members of the community from those who, following receipt of a determinant sentence, pose a real and ongoing risk of committing serious sexual or violent offences. 2[23] The effect of an ESO is to impose various standard conditions on eligible offenders made subject to an order. 3[24] The Parole Board can impose any special conditions it considers are required to meet the individual's particular risk management needs.4[25] The overarching purpose is to promote community safety by providing ongoing supervision and management of high-risk offenders, for a period of up to 10 years. 5[26] ESO's can require the offender to have frequent contact with a probation officer and may subject them to residential restrictions and/or GPS monitoring. Conditions can be imposed to manage known high-risk situations, for example and as is relevant in this case, to preclude unsupervised contact with children.2 Parole Act, s 107I(1).3 Parole Act, ss 107J and 107JA.4 Parole Act, s 107K.5 Parole Act, s 107I(4); R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [10]-[11].[27] A person subject to an ESO is not liable for recall but can be charged with breaching the conditions attaching to the ESO an offence with a maximum penalty of two years' imprisonment.6Application to cancel an ESO[28] At any time after an ESO has come in to effect, the offender subject to the ESO or the Chief Executive of the Department of Corrections can apply to the sentencing court to cancel the order on the grounds the offender poses neither a high risk of committing a relevant sexual offence nor a very high risk of committing a relevant violent offence within the remaining term of the order. 7[29] The applicant must satisfy the Court the offender no longer poses a high risk of committing a relevant sexual offence or a very high risk of committing a relevant violent offence within the remaining term of the ESO. If the Court is so satisfied, it "may" order the cancellation of the ESO. 8[30] As Wylie J observed in Moore v Chief Executive of the Department of Corrections, the decision the Court is required to make is binary – either the ESO remains in force or it is cancelled. 9 The Court does not have jurisdiction to vary or cancel the conditions attaching to the ESO.[31] The ESO can only be cancelled if Mr Kerr can satisfy the Court, on the basis of the matters set out in s 107IAA of the Act, he no longer poses a high risk of committing a relevant sexual offence within the remaining term of the order.[32] Relevantly, s 107IAA provides as follows:Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—6 Parole Act, s 107T.7 Moore v Chief Executive of the Department of Corrections [2019] NZHC 1212; Parole Act, s 107M.8 Parole Act, s 107M(4).9 Moore v Chief Executive of the Department of Corrections, above n 7 at [39].(a) displays an intense drive, desire, or urge to commit a relevant sexual 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 for past offending:(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.[33] The requirement the Court "be satisfied" involves the exercise of judgment, it is not related to burden or standard of proof issues.10[34] The Court is not constrained by the opinions of the health assessors called by the parties. Rather, what is required is a careful assessment of all the historical and current factors, along with expert opinion, bearing in mind that an ESO can have a substantial ongoing impact on an offender who has already served their sentence. 11[35] In considering the matter the Court needs to consider the counterfactual when assessing the risk Mr Kerr poses. The counterfactual is: what would Mr Kerr's situation be if the ESO was not in place? If the ESO is cancelled, Mr Kerr would not then be subject to any monitoring requirements, nor to any condition requiring him to accept support from the Department of Corrections or anyone else.The basis of the application[36] Mr Kerr has provided a report dated 6 May 2021 to the Court from a "health assessor", Mr Craig Prince, a consultant clinical psychologist.12 Mr Prince was employed with the Canterbury Regional Forensic Psychiatric Service from 1999 until 2017. He is eminently qualified in the field of providing assessments of the nature undertaken in this case.10 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [71]-[75]; Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.11 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32].12 See Sentencing Act 2002, s 4; a "health assessor" is defined to essentially mean either a psychiatrist or a psychologist[37] Before I refer to the salient points of Mr Prince's report, it is important to note Mr Prince accepted he did not have the full suite of psychological reports relating to Mr Kerr over time nor those from Probation. He also acknowledged he did not speak to Mr Kerr's partner, nor any member of Mr Kerr's family. He had not read the decision of Gendall J.[38] It is Mr Prince's assessment that Mr Kerr has made significant behavioural and attitudinal changes over the last few years, and that through intense treatment Mr Kerr's risk of offending has been ameliorated.[39] Mr Prince opined:47. [Mr Kerr] displays a medium-high to high risk of further relevant sexual offending. If he continues to demonstrate appropriate behaviour for the foreseeable future (the rest of the year), while remaining in the community and being exposed to high risk situations, without any lapses/relapses, his risk category will almost certainly drop to the moderate-high range.[40] In the final paragraph of his report he gives an opinion, which I will examine later on in this decision because it has caused me great pause for thought in terms of the counterfactual. He says:48. While it could be argued that he no longer meets criteria for an ESO, Mr Kerr has only gained more independence and freedoms recently, and those who work with him believe that he would benefit from their input during this time of transition. In my opinion, Mr Kerr would probably benefit from this, given his degree of institutionalisation, although it is not considered essential for reducing risk.[41] Mr Prince reported Mr Kerr had attended 54 individual treatment sessions with a Department of Corrections psychologist, Ms Head, between April 2018 and December 2020. Sessions during the first year occurred weekly, fortnightly during the second year and finally on only a few occasions (as required) during the final year. Ms Head reported to Mr Prince that Mr Kerr engaged well, completed his homework and completed all his goals. She finished treating him, as I have just said, in December 2020.[42] Mr Prince reported:20. Towards the end of 2019, treatment efforts were consolidated, and the focus became one of reintegrating Mr Kerr into the community following a lengthy period of institutionalisation, and by transitioning him to more independent living. This occurred, with him living at [a hostel]. During 2020, when he sought help after difficulties arose (for example, family issues), by the time Ms Head contacted him, he had generally worked through the difficulties himself in a constructive manner.21. It was opined that Mr Kerr had certainly made positive progress, there was no specific treatment left to be done, and he continued to be moving in the "right direction". A cautious approach was being adopted, given that the extent of his independence was still relatively new.[43] Mr Prince also got an update from Mr Kerr's probation officer, Ms Creig. He reported about that as follows:22. Ms Creig confirmed that Mr Kerr had recently moved into independent accommodation and that he had access to Internet- capable devices. While there had been nothing of concern in this regard, things were still in their infancy, and it was felt that he may lack some understanding about keeping himself safe on social media. For this reason, it was opined that he required guidance, support, and oversight.23. Mr Kerr's relationship with his partner appeared to be going well, and he spent two nights a week with his partner. While Mr Kerr hoped to live with his partner, this was not currently viable, as Mr Kerr would lose his benefit, and therefore have no money. One way of solving this would be if he gained employment and an income. He had been employed briefly on two occasions, and continued to seek employment opportunities.24. With respects to deviant sexual arousal, Mr Kerr was open about this being an ongoing issue, and it was felt that this may well remain so indefinitely. The important thing was that Mr Kerr acknowledged this difficulty, and appeared to be open about communicating this with professionals. There had been no reported "near misses". Mr Kerr was encouraged to report any incidents so that these could be incorporated into his Safety Plan. To this end, he was still being supported.26. Overall, Mr Kerr was progressing well. It was felt that his degree of independence was still very recent, and it was recommended that he receive ongoing support and oversight for some time before this was ceased.[44] As to Mr Kerr's insight, Mr Prince reported as follows:28. Mr Kerr reported that the PPO application and return to prison for breaching his ESO conditions in 2017, led to him receiving a "wake- up call" and a maturing in his attitude. While he had previously pushed boundaries for his own gain, he had come to realise that such a pathway could lead to his freedom being curtailed indefinitely, and he wanted more from life. He therefore committed himself to treatment and behavioural change, and to being open with staff.[45] As far as Mr Kerr's relationship is concerned, Mr Prince reported:32. Mr Kerr accepted that if his relationship ended, then this could be a time of vulnerability. However, he had considered and discussed this, and believes that he could cope effectively should this eventuate.[46] Mr Prince said in his opinion Mr Kerr poses a medium-high-to-high risk of engaging in further sexual offending, including relevant sexual offending.[47] Mr Prince reported that Mr Kerr's sexual predilection and proclivity remains to be one focused on children and possibly teens/young adults. While he is in a relatively stable relationship, this has not detracted from him engaging in deviant sexual thoughts.[48] Mr Prince observed:39. During the last 2-3 years, Mr Kerr has made significant progress in self-regulation. He learnt emotion-regulation skills and coping strategies, and he has applied these skills to difficulties faced. Whereas his negative behaviour towards staff, and other breaches of conditions, had been present for years, there have been no further incidents of concern in over three years. Mr Kerr is also taking antidepressant medication, and has not resorted to binge-eating and deliberate self-harm to cope with stressors in a long time. Similarly, he no longer resorts to sex as a coping mechanism to regulate negative emotions. He appears to have displayed a maturing in his attitude. As a result, he has been given more independence and freedoms in recent months, and thus far, there are no indications that he has abused such privileges. In my opinion, his self-regulatory capacity is no longer problematic to the extent that it meets this criterion.[49] Further:43. it is my opinion that he accepts that his sexual deviance is problematic and not something that he wants, but that he struggles to dismiss. This will hopefully change over time, but may also remain entrenched. However, it is my opinion that his understanding and concern about creating further victims – knowing the effect of his actions on them – will significantly assist in deterring him from futuresexual offending. Therefore, in my opinion, he does not fulfil this criterion.44. Mr Kerr has successfully completed an intensive treatment package. This should mitigate any future risks. He continues to make positive progress, and this is reflected in the fact that the NZ Parole Board discharged him from attending further approved programmes, he lives independently, is not tracked by staff, and has Internet capable devices. Some of these factors are relatively recent in nature, and some professionals believe that Mr Kerr requires further support and oversight over the ensuing months to ensure that he copes with any difficulties appropriately.45. Mr Kerr seeks to be discharged from his ESO. While his behaviour in the past reflected the need for conditions associated with an ESO, he has demonstrated significant positive behavioural and attitudinal changes over the last few years. He appears to have gained a maturing in his attitude, accepted that he needed to change his ways, accepted treatment, engaged well in treatment, and was open with his probation officer and other staff monitoring him. His positive progress has seen him receive more independence and gaining of privileges. While deviant sexual arousal remains present, he manages this effectively. He is also in a relatively stable adult relationship.[50] The second health assessor to give evidence was Ms Katrina Falconer Beach. She provided a report to the Court on behalf of the National Commissioner for Corrections Services. Her report is dated 12 July 2021. She has extensive relevant experience in forensic assessment.[51] Ms Falconer Beach assessed Mr Kerr as being (above average)/high risk of committing a further sexual offence. She said were Mr Kerr to sexually offend, it would most likely involve a prepubescent or pubescent male (but possibly a female if no males were accessible).[52] Ms Falconer Beach said offending would most likely occur were Mr Kerr to experience an increase in his loneliness; a significant decrease in mood, for example following a relationship breakdown, a return to relying on sex to cope and a return of his previous high preoccupation with sex.[53] Victims would likely be children, either known or not known, to Mr Kerr whom he would access in public settings such as swimming pools, parks and publictoilets. Offending would most likely involve oral genital contact but could involve attempts by Mr Kerr to use his fingers or penis to penetrate the victim.[54] Having made those observations however she said there were signs Mr Kerr is on a genuine desistence pathway. Those signs include him having his intimacy and sexual needs met by being in a relationship, having regular contact with other support people and discussing any negative emotional states he might have, using a range of coping skills to cope with stress and distress and continuing to build up a stable lifestyle with rewarding activities and social connections.[55] Based on Mr Kerrs progress in the community , both via him engaging in treatment but also via him taking steps to create a prosocial life with normative sex, Ms Falconer Beach assessed his risk of sexual reoffending as being "relevant in the medium term". She said Mr Kerr does not have enduring personality characteristics associated with recidivism. She believes Mr Kerr has made considerable progress in reducing his arousal to deviant material and his reliance upon sex to cope with negative mood states.[56] A salient passage of her report reads:43 Mr Kerrs current behaviour and lifestyle is considered to be sufficient to mitigate his risk of sexual recidivism. It is recognised that Mr Kerrs ability to cope with a significant period of distress, for example should his relationship end, without offending, has not yet been tested. However, Mr Kerr, albeit with support and containment, coped with the death of his mother in 2013 without resorting to offending behaviour which may indicate he is capable of coping with a highly distressing event in a prosocial manner. As Mr Kerr has spent the majority of his adolescent and adult life under considerable supervision with easily accessible support, it would be important for Mr Kerr to be provided with the means to access support in the community, for example via the health system, should he require it.[57] When asked to elaborate on what she meant by the last sentence of that paragraph, she said Mr Kerr could utilise the services of his GP to access both the general and mental health services available to every person in the community. She said she felt she had an ethical obligation to persons in Mr Kerr's position and would make herself personally available to him even in the absence of any sentencing framework. Having said that, she said he would then have access to specialist clinicalpsychological services through her or someone else she could put Mr Kerr in touch with.[58] Her conclusion was as follows:44 Mr Kerr has had many periods of both group and individual treatment and while his ability or desire to apply what he had learned when he was younger was thought to be possibly limited, during the last period of treatment he was considered to be highly engaged. He has demonstrated treatment gains and has a safety plan that is likely to assist him to manage his sexual offending risk. Over the past five years in particular Mr Kerrs ability to manage himself and his deviant sexual arousal is considered to have steadily increased. While he previously demonstrated a predilection and a proclivity for child sexual offending and a poor ability to regulate his sexual impulses, currently Mr Kerr is not considered to display either of these things. He has remorse and accepts responsibility for his sexual offending and demonstrates understanding of and concern about the impact of his behaviour on his victims. Mr Kerr has developed a prosocial support network that he uses appropriately to assist him to manage times of stress or distress. Mr Kerr has continued to demonstrate regulated behaviour and an internalised ability to manage his risk of sexual recidivism since living independently in the community for the past six months. As this is a relatively short period it is difficult to predict whether Mr Kerr will need additional monitoring to that provided under other means than Corrections, for individuals who have offending against children.SubmissionsApplicant's submissions[59] Mr Bailey, appearing for Mr Kerr, submitted I can be satisfied Mr Kerr no longer poses a high risk of committing a relevant sexual offence and that the s 107IAA criteria are not met. Further, both experts predicted a downward projection of future risk based on age factors.[60] Mr Bailey submitted in such circumstances the starting point for the Court ought to be that in the event an offender is not high risk he or she should not be subject to the Act.[61] He submitted the ESO should be cancelled because Mr Kerr has:(a) the necessary protective factors to curb his deviant thoughts so as not to act on them;(b) a low level of reintegrative needs;(c) an extremely high cost to pay in terms of the restraints on his personal freedoms; and(d) been on an ESO since 2010 and has "well and truly" done his time.Respondent's submissions[62] Ms Boshier, appearing for the respondent, acknowledged that on the evidence it was open to the Court to find Mr Kerr may no longer meet some or all the s 107IAA factors. However, she submitted the Court should nonetheless exercise its discretion and decline the application for the following reasons:(a) while Mr Kerr has made significant progress, such progress has been made relatively recently and Mr Kerr has not faced any significant life events without the support inherent in the ESO;(b) Mr Prince opined Mr Kerr must still actively manage regular deviant thoughts;(c) Mr Kerr's interpersonal and emotional functioning profile is one where he has chronic feelings of dejection, apathy is sensitive to rejection and can become dependent on others;(d) Mr Kerr had masturbated to deviant imagery as recently as six months before Mr Prince and Ms Falconer Beach did their assessments of him;(e) Mr Kerr is highly vulnerable were his current relationship to encounter difficulties;(f) Mr Kerr continues to have the benefit of professional support under the ESO, which is preferable to the counterfactual where he would have to generate his own support network; and(g) Finally, and in many ways most significantly, both experts emphasise the relatively short period for which Mr Kerr has been living independently in the community.Analysis[63] In terms of considering the characteristics as part of the risk assessment, the Court of Appeal has recently made comment in McIntosh v Chief Executive of the Department of Corrections: 13[22] Determining whether there is a high risk that a given offender will commit a relevant sexual offence within a stated period is an inherently difficult exercise. Parliament has provided some structure and discipline to the assessment by prescribing the characteristics any offender who poses this high risk will have. The first two — intense drive, desire, or urge to commit a relevant sexual offence and predilection or proclivity for serious sexual offending — could be seen as animating characteristics. The second two — limited self-regulatory capacity; and lack of acceptance of responsibility or remorse for past offending and absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims — could be described as protective characteristics. These characteristics cannot be construed and applied in absolute terms. They are human characteristics and, to the extent they are present, they will vary from one person to another.[64] I turn to consider the s 107IAA(1) matters.Section 107IAA(1)(a) - displays an intense drive, desire or urge to commit a relevant sexual offence[65] The use of the word "displays" in terms of an ESO application, as with the word "exhibits" in s 13(2) when applying for a PPO, does not mean those traits and behavioural characteristics must be externally manifested at the time of the application, particularly where the evidence may be derived from self-reporting.1413 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218.14 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [26]-[28].[66] As explained by Davidson J in Chief Executive of the Department of Corrections v Douglas: 15[86] It is not necessary that the person concerned is presently displaying the characteristics for assessment, but it is sufficient that they may be latent and emerge only in certain contexts.[67] Ms Falconer Beach says Mr Kerr does not display an intensive drive or urge to commit a relevant sexual offence. She attributes this to successful treatment.[68] In his written report to the Court, Mr Prince concluded Mr Kerr did still retain some intense urges associated with deviant arousal. In his viva voce evidence, he was concerned to qualify this further. He explained:A. Yes, he clearly does still have deviant thoughts are coming to his mind and he act - he actively desists from experiencing those by using the strategies that he has been taught. So if anything those urges and the likes are latent in nature. They are in the background and youll probably want to ask but Im going to flow on to the next because its the same with the predilection and proclivity. I think that he has – there is an inclination to still have these deviant thoughts so there is a pattern, there is something that occurs regularly in his mind but once again they seem to be latent. Its not his preferred choice anymore about wanting to act on those deviant thoughts but he does have to actively manage those urges.[69] Given Mr Kerr had told both Ms Falconer Beach and Mr Prince that within the preceding six months of their assessments he had masturbated to a deviant image, it seems tolerably clear the urges are still present and could be reactivated.[70] Given the length of time these urges have been present, I consider they remain entrenched and persistent. I am satisfied Mr Kerr meets this criterion.Section 107IAA(1)(b) - has a predilection or proclivity for serious sexual offending[71] Serious sexual offending is broader than relevant sexual offending, as discussed. The distinction between "predilection" and "proclivity" has been discussed by Heath J in this Court. 16 He noted the terms are used disjunctively, that neither is defined in the Act, but that in context "predilection" means preference for or15 Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184.16 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712.particularly liking for some serious sexual offending and "proclivity" embraces an inclination towards something considered morally wrong, such as serious sexual offending. 17[72] A person has a predilection for serious sexual offending if they have a preference or particular liking for serious sexual offending. 18 A "proclivity" for serious sexual offending encompasses the concept of a pattern. 19[73] In Ms Falconer Beach's assessment, she concludes Mr Kerr no longer displays a proclivity for relevant sexual offending. At [39] of her report she explains why:39 The individuals predilection or proclivity for serious sexual offending.In the writers opinion, Mr Kerr had a predilection and a proclivit y for offending sexually against prepubescent children, particularly males, from when he was approximately 11 to 15 years of age. Since this time he continued to have a strong predilection to sexually offend against children, as shown by his frequent deviant fantasies that he masturbated to, up until the past three years, but he has not sought to either approach or offend against a child. Almost without exception Mr Kerr has actively avoided children since his release, on occasion asking for assistance from staff to do this since released from prison, including for the past two and a half years when he has not been under Intensive Monitoring. During the last three years he has asked for and received treatment to address his deviant arousal and subsequently commenced a successful sexual relationship with a peer. Mr Kerr reports that he masturbates to adult themes, and that the last time he masturbated to a deviant image, which distressed him, was six months ago. He has been open with both professional and informal supports about his occasional deviant thoughts and how he manages these. In the writers opinion while Mr Kerr may have mixed predilection, meaning he can experience attraction to both adults and children, he no longer displays a proclivity for relevant sexual offending.[74] Mr Prince, on the other hand, opined in his report that Mr Kerr's sexual predilection and proclivity remains to be one focused on children and possibly teens/young adults. Further, he said:17 At [44].18 Chief Executive of the Department of Corrections v Dixon [2017] NZHC 1126 at [16]; Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44].19 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [41], upheld on appeal by the Supreme Court in Holland v Chief Executive of the Department of Corrections[2017] NZSC 161, [2018] 1 NZLR 771, NZCA 504.38. While he is in a relatively stable relationship, this has not detracted from him engaging in deviant sexual thoughts.[75] In addressing this difference of opinion between the two health assessors it is instructive to see what other psychologists have concluded.[76] Mr Kerr was assessed by Ms Roper, a senior psychologist with the Department of Corrections, in December 2015. She reported Mr Kerr had indicated his sexual preference had shifted towards adults but that Mr Kerr's physical description of the individuals he found sexually attractive remained prepubescent or early pubescent, including a reported abhorrence to secondary sex characteristics.[77] A year later, Ms Sonja Bakker, a registered clinical psychologist in the employ of the Department of Corrections, provided a report for the purposes of the application for a PPO. At that point in time Ms Bakker reported there was a high risk Mr Kerr would engage in sexual reoffending. She predicted that if Mr Kerr sexually reoffended, based on his long-standing deviant interest, victims would most likely be prepubescent boys.[78] Significantly, she reported that Mr Kerr proclaimed he did not have a sexual interest in adult stimuli, unless it was graphic and specific:34. It was noted that while he demonstrated a working knowledge of his risk factors, he lacked internal motivation to make any changes to his behaviour. At the point that Mr Kerr had completed his treatment he was still reporting that he was continuing to fantasise about and masturbate to deviant fantasies, stating he did not find adult fantasies arousing unless explicit.[79] At that time Ms Bakker observed Mr Kerr had not had adult sexual (romantic) relationships, so did not have the opportunity to demonstrate this capacity.[80] Given the relative recency with which Mr Kerr has become attracted to adult sexual stimuli and his longstanding and intense attraction to prepubescent and pubescent stimuli, I consider it is more likely than not Mr Prince is correct when he says Mr Kerr remains primarily attracted to pubescent and prepubescent stimuli. I am satisfied therefore Mr Kerr meets this criterion.[81] Having said that, I consider this may change at some point in the future if Mr Kerr's interpersonal, emotional and sexual needs are met by an ongoing and increasingly mutually supportive intimate adult relationship.Section 107IAA(1)(c) - has limited self-regulatory capacity[82] As Davidson J observed in Douglas, in relation to s 13(2) of the Public Safety Act, the tests are all expressed differently, according to the characteristics referred to in each subsection. 20 While some tests are higher - an intense drive or urge, or a lackof acceptance or absence of understanding - in relation to this limb it is a lower test oflimited self-regulatory capacity.[83] In Chief Executive of the Department of Corrections v Bradbury (No 2) Heath J considered the meaning of "limited self-regulatory capacity" as follows: 21[91] I am not aware of any authority that has considered specifically the question of what is meant by the phrase "limited self-regulatory capacity". Use of the word "limited" suggests that questions of degree are involved in this assessment. The phrase is used in the context of a list of factors that must be established before an extended supervision order can be made. The apparent nexus is between the existence of limited self-regulatory capacity (on the one hand) and high risk of committing a relevant sexual offence (on the other).[92] At one level, the inquiry is directed to whether an offender has a limited capacity to self-regulate his or her desires or urges to commit relevant sexual offences. Put another way, the question is whether an offender has sufficient capacity to self-regulate those impulses. Yet, to approach the issue in that way is over simplistic. As a matter of common sense, the extent of any ability to self-regulate those impulses is dependent on the capacity to avoid circumstances in which the relevant drive, desire or urge are likely to manifest themselves. [84] Ms Falconer Beach was adamant in her view Mr Kerr does not currently display regulatory problems that would leave him at risk of sexual offending. Mr Prince concluded Mr Kerr's self-regulatory capacity is no longer problematic to the extent it meets this criterion. Having reviewed the evidence, I agree. I am satisfied Mr Kerr no longer meets this criterion.20 Chief Executive of the Department of Corrections v Douglas, above n 15.21 Chief Executive of the Department of Corrections v Bradbury (No 2) [2016] NZHC 2816 (footnotes omitted).Section 107IAA(1)(d) - displays either or both of the following; (i) a lack of acceptance of responsibility or remorse for past offending, or (ii) an absence of understanding for or concern about the impact of his or her sexual offending on the actual or potential victims[85] Subsection (d) is expressed in two parts. Either or both can be satisfied.[86] An "absence" of understanding does not require that the offender is shown to have no understanding whatsoever, but rather that there be an absence of any meaningful understanding or concern. A level of understanding on an intellectual basis or an understanding that might be parroted or said by rote may not meet the necessary threshold. 22[87] The expression in s13(2)(c) as to "absence of understanding or concern" does not require that there is no understanding or concern: 23[82] The expression "inability to cope with " in s 13(2)(b) must also have an element of relativity about it because otherwise the mere demonstration of some ability, even extremely limited in scope, would defeat the plain intent of the legislation.[88] Further, in Douglas:[89] In my view, "an absence of understanding or concern" means that any understanding or concern is so distorted, superficial and self-orientated, that it marries with the clear purpose of the legislation, that the checks and balances inherent in the combined and individual characteristics in s 13(2) arenot operative to negate the risks which derive from those characteristics.[89] The Court in P (CA 388/18) v Chief Executive of the Department of Correctionsput it thus:24[53] In our view, s 107IAA(1)(d)(ii) invites a relatively simple inquiry: does P understand the impact of his offending on his victims? As Davidson J suggested in Douglas, the underlying legislative and psychological assumption is that if an offender is able to imagine the hurt, fear and shame caused to his or her victims by the relevant offending then he or she is less likely to wish to cause such hurt, fear and shame to others in future, thereby reducing the risk of future reoffending. The adjective "serious" should also be given its natural meaning, viewed against the statutory purpose of protecting the community from those who pose a real and ongoing risk of sexual offending.22 P (CA388/18) v Chief Executive of the Department of Corrections [2018] NZCA 599 at [42].23 Chief Executive of the Department of Corrections v Douglas, above n 15.24 P (CA388/18) v Chief Executive of the Department of Corrections, above n 22.[90] Ms Falconer Beach reported that in her view Mr Kerr has accepted responsibility for his offending and displays genuine remorse for his actions. It is also her view he appears to be genuinely concerned about and understands the impact of his offending on his victims. Mr Prince agreed. Having reviewed all of the evidence I am satisfied Mr Kerr no longer meets this criterion.[91] In summary, Mr Kerr has satisfied me he does not pose a high risk of committing relevant sexual offences given that he does not meet all the criteria in s 107IAA. The remaining question to be answered therefore is whether the Court should exercise its s 107M(4) discretion in favour of cancelling the ESO.Should the Court exercise its discretion in favour of cancelling the ESO?[92] Section 107M says:Sentencing court may cancel extended supervision order(1) At any time after an extended supervision order has come into force, the offender who is subject to the order, or the chief executive, may apply to the sentencing court to cancel the order [on the grounds that the offender poses neither a high risk of committing a relevant sexual offence, nor a very high risk of committing a relevant violent offence, within the remaining term of the order].(2) On receipt of an application for cancellation, the Registrar of the sentencing court must set the matter down for hearing.(3) The applicant for cancellation must, as soon as practicable, serve on the other party—(a) a copy of the application:(b) notice of the date of the hearing.(4) [The sentencing court may order the cancellation of an extended supervision order only if the applicant satisfies the court, on the basis of the matters set out in section 107IAA, that the offender poses neither a high risk of committing a relevant sexual offence, nor a very high risk of committing a relevant violent offence, within the remaining term of the order.](5) Section 107G(7) and (8) applies to proceedings under this section.(6) If the sentencing court declines to order the cancellation of an order, the court may at the same time, and on its own initiative or on application by the chief executive, order that the offender not be permitted to apply under this section for a specified period of not more than 2 years.[93] I accept Mr Kerr has significant progress whilst subject to the ESO. The amount of progress he has made is not to be underestimated against his life history and the entrenched deviant behaviours that he developed at a very young age. Nevertheless, I have found the deviant thoughts remain and were acted on relatively recently when Mr Kerr masturbated to a deviant image.[94] Such progress as has been made is, however, relatively recent and has been made in a highly institutionalised and psychologically supportive setting. The disquiet I have concerns the sustainability of that progress in the event of the counterfactual. In other words: is it too soon to say that, absent the supports afforded by the ESO, Mr Kerr's progress will continue in that he will sustain his current self-regulation?[95] In my judgment, notwithstanding the considerable progress Mr Kerr has made for which he is to be commended, it is helpful to conceptualise progress in terms of recent, medium and long term.[96] Both health assessors see Mr Kerr's progress as "recent". It has only been sustained for a number of months. Mr Prince saw it as needing to be sustained for at least 12 months before a greater measure of comfort could be gained about its permanence.[97] I agree with both health assessors that Mr Kerr has become accustomed to a high level of support from the professional advisers that have been put in place by the Department of Corrections to assist in his rehabilitation. The resources that have been applied to Mr Kerr and the dedication shown by the psychologists assisting have been highly commendable, as has the assistance he has had from his probation officer.[98] Both Mr Prince and Ms Falconer Beach forcefully expressed the opinion that at some point Mr Kerr's therapeutic needs mandate he stand alone, without the ESO. However, Mr Prince was less forceful on this than Ms Falconer Beach. That must be because she is firmer in her view Mr Kerr's risk of offending is moderate and not high.[99] Mr Prince did opine that Mr Kerr would probably benefit from those who work with him continuing to do so during his transition because of his high degree of institutionalisation.[100] I acknowledge Ms Falconer Beach says she can offer Mr Kerr support without the sentencing framework being in existence, and that he can access any other help he needs in the community himself. However, in my view, Mr Kerr's continued progress is dependent on those external supports, at least in the medium term.[101] Were the ESO cancelled, I could not impose a condition requiring Mr Kerr to have regular mental health checks, or regularly meet with Ms Falconer Beach or any other psychologist for that matter.[102] Further, Mr Kerr remains socially isolated to an extent. This was evident as recently as February of this year when he moved to his current independent accommodation, when he felt lonely and his mood was affected.[103] Mr Kerr, significantly, has never had any long-term friendships. It may be hoped his fiancé and he will sustain their relationship and Mr Kerr will not remain socially isolated. Plainly the relationship has not progressed to the point where it provided complete protection against the feelings of isolation and loneliness that manifested in February this year. Mr Kerr will need to sustain this relationship fulsomely and into the medium term. This is especially important given reliance is placed on his now being attracted to adult sexual stimuli rather than pubescent and prepubescent sexual stimuli significantly in part as a result of this relationship. This progress too is only recent.[104] Both the health assessors added a note of caution that such progress as has been made has not demonstrated what Mr Kerr's coping mechanisms would be in the event of a major life stressor occurring, such as the breakdown of his relationship with his fiancé. Mr Kerr acknowledged himself this would be a time of vulnerability, although he thought he could cope because he had coped with the death of his mother.[105] As the health assessors opined and Mr Bailey submitted forcefully for Mr Kerr, no one can predict whether or when Mr Kerr may have to face a major life stressor. On that basis Mr Bailey said Mr Kerr may not, and it is unfair to restrict his liberty on such an open-ended basis.[106] I consider Mr Kerr is still vulnerable in this regard.[107] I say that for three reasons:(a) he himself acknowledged he was vulnerable emotionally as recently as his move to a hostel in February this year;(b) it is not a valid comparison to compare the death of his mother and the potential breakup with his fiancé, because the latter relationship is pivotal in suppressing his attraction to pubescent and prepubescent sexual stimuli; and(c) finally, his emotional vulnerability and his sexual offending are intrinsically linked so that he offends when he cannot cope emotionally.[108] Much store was placed by the health assessors on the support Mr Kerr gains from family members and his fiancé. Mr Prince did not interview Mr Kerr's fiancé, stepfather or sister. Ms Falconer Beach relied on second-hand reports on these matters and a text exchange with Mr Kerr's fiancé. I am surprised, given the weight both health assessors placed on family supports being an adequate substitute for the ESO, so little independent objective enquiry was made by them about these matters. I consider the Court is entitled to have much more fulsome evidence on this before it could safely come to the proposition accepted by the health assessors in this respect.[109] Finally, I refer to the evidence that Mr Kerr's current ability to self-regulate may be assisted by the fact he remains under the auspices of the ESO.[110] In summary, whilst I accept significant recent progress has been made, and Mr Kerr deserves credit for that, this application is premature in the sense the Court would need to see some sustained medium term progress, coupled with better evidenceof the family support and other supports that would exist in the counterfactual of there being no ESO in place.[111] I have considered whether or not to make an order pursuant to s 107M(6) and I choose not to do so. I consider that at some point in 12 to 18 months' time, if Mr Kerr continues on his current trajectory of progress without incident, he will have demonstrated, in his particular circumstances, sustained medium-term progress. If he is able to do so, together with producing positive evidence from family and other community support persons, Mr Kerr may well succeed on a further application to cancel the ESO within that timeframe.Result[112] The application for cancellation of the ESO is declined.Doogue JCrown Solicitor's Office, ChristchurchCC:A Bailey, Christchurch