BANNAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 227 [13 June 2023]

BANNAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZCA 227[13 June 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA691/2022[2023] NZCA 227BETWEEN SHAUN KENNETH BANNANAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 20 March 2023Court: Brown, Lang and Palmer JJCounsel: R E Webby for AppellantN J Wynne for RespondentJudgment: 13 June 2023 at 10.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)Summary[1] Mr Shaun Bannan, aged 44, has been convicted of, and sentenced for, offencesrelating to grooming young people, in Australia in 2006–2007 and in New Zealand in2020, as well as possession of objectionable material in 2008. On 14 November 2022,in the District Court at Manukau, Judge McGuire made an extended supervision order(ESO) against Mr Bannan for a term of five years.1 Mr Bannan appeals on threegrounds. We dismiss the appeal because Mr Bannan has had a pervasive pattern ofserious sexual offending, he is at high risk of committing a relevant sexual offence inthe future, and there was no error in setting the term of five years.What happened?"12-year-old Australian"[2] Between August 2006 and February 2007, Mr Bannan was 29 years old andliving with his parents in Auckland. During this time, Australian Police conducted acontrolled operation in which a covert police officer assumed the identity of a12-year-old girl in Brisbane, Australia, called "Isabella Stirling". Mr Bannan engagedin online chat engagements with "Isabella". He was reminded on a number ofoccasions that she was 12 and was provided with photographs of a girl who was clearlyunder 16. In his engagements, Mr Bannan told the child to masturbate and coachedher in detail as to how to do so. He stated he wanted to live with her in a sexualrelationship. He told her he had someone "keeping an eye on her".[3] On 19 January 2008, Mr Bannan travelled to Brisbane, was questioned byAustralian Police at the airport, and was arrested. Mr Bannan said he knew the child,he believed she was a minor, and he "probably" spoke to her about topics of a sexualnature. However, he stated he was addicted to methamphetamine at the time of thechats and his memory of the conversations was not good. He appears initially to havefaced two charges. On 17 October 2008, Mr Bannan pleaded guilty to one charge ofusing a carriage service to procure persons under 16 years of age.2 He was sentencedto imprisonment for two years and six months but was released in October 2008 onthe basis of time served.1 Chief Executive of the Department of Corrections v Bannan [2022] NZDC 22191 [District Courtdecision].2 Criminal Code Act 1995 (Cth), s 474.26, carrying a maximum penalty of 15 years' imprisonment.Objectionable material[4] Mr Bannan's arrest in Australia triggered the execution of a search warrant athis home in Auckland. There, the police found over 190 videos, and over 2,900images, of pre-pubescent children involved in sexual acts. On 22 December 2009,after his return to New Zealand, Mr Bannan was charged with 20 charges of possessionof objectionable material under the Films, Videos, and Publications ClassificationAct 1993.3 There were 10 "sample" charges in relation to videos and 10 in relation toimages.[5] Mr Bannan pleaded guilty to the charges. On 18 March 2010, he was sentencedin the District Court at Auckland by Judge Joyce QC to two years of intensivesupervision.4 Conditions included that he was: to undertake intensive treatment forhis addiction through a specialist agency; not to possess computers or electronicequipment that could access the internet; to make available for checking andmonitoring by a probation officer any computer or electronic equipment that was inhis possession; and not to associate or have contact with any person under the age of16 years.5 Mr Bannan completed 197.5 hours of treatment with the SAFE programmeand sessions with a private psychologist. His conditions ended in March 2012.11-year-old New Zealander[6] In March 2020, aged 41, Mr Bannan engaged with an 11-year-old girl in theBay of Plenty by text and social media. He suggested inappropriate actions, such asoral sex, told her he loved her more than anything, that she was the most importantthing in his life, and that he wanted to kidnap her. He elicited videos of her in variousstages of undress and elicited messages with sexual content. He told her he wished hecould drive down and pick her up and that he would carry her to bed. She asked if shecould take her "blankie". On 15 March 2020, Mr Bannan left his home in Aucklandand drove to a Bay of Plenty town to meet the girl. That afternoon the girl's motherdiscovered the conversations on the girl's phone and called the police. Around3 Section 131A, each charge carrying, at the time, a maximum penalty of a fine of $50,000 orfive years' imprisonment.4 R v Bannan DC Auckland CRI-2009-004-26767, 18 March 2010 at [19].5 At [20]–[24].6.30 pm, Mr Bannan was arrested in the town. In the car, the police found condomsand a length of purple rope.[7] The victim impact statements by the girl's parents say that the emotionalimpact on the family has been devastating. It has impacted on all of them andparticularly on their daughter's self-esteem and innocence.[8] Mr Bannan pleaded guilty to a charge of travelling to meet a young personfollowing sexual grooming.6 On 16 June 2020, in the District Court at Tauranga,Judge Ingram sentenced Mr Bannan to 18 months' imprisonment and observed thelegal consequences of the conviction would be significant.7 Mr Bannan was registeredon the Child Sex Offender Register. He was released in December 2020.Interim Supervision Order[9] Some nine months after Mr Bannan's release, towards the end of the period inwhich Mr Bannan remained subject to post-release conditions, the Department ofCorrections applied for an interim supervision order (ISO) under s 107FA of theParole Act 2002 (the Act). The application was heard and granted by consent on21 February 2022.8 The conditions of the ISO were the standard conditions unders 107JA of the Act and the following special conditions:9(a) not to possess, consume or use any alcohol or drugs not prescribed toMr Bannan;(b) to attend a psychological assessment with a department psychologistas directed by a probation officer and complete any treatment and/orcounselling as recommended by the assessment to the satisfaction ofa probation officer;(c) to disclose to a probation officer, at the earliest opportunity, details ofany intimate relationship Mr Bannan commences, resumes orterminates;(d) not to possess nor use any device capable of accessing the Internet,unless Mr Bannan is under the direct supervision of an adult approved6 Crimes Act 1961, s 131B, carrying a maximum penalty of seven years' imprisonment.7 R v Bannan [2020] NZDC 11213 at [7].8 R v Bannan DC Manukau CRI-2020-079-135, 21 February 2022 (Minute of Judge McIlraith)at [5].9 At [13].in writing by a probation officer or unless he has the prior writtenapproval of a probation officer;(e) to undertake and complete appropriate assessment, treatment orcounselling as directed by and to the satisfaction of a probationofficer;(f) to attend an assessment for an alcohol and drug programme as directedby a probation officer, to attend and complete any counselling,treatment or programme as recommended by the assessment asdirected by and to the satisfaction of a probation officer;(g) upon request, to make available to a probation officer or his or heragent any electronic device capable of accessing the Internet that isused by Mr Bannan or in his possession or control for the purpose ofmonitoring his use of that device;(h) to reside at an address as directed by a probation officer and not tomove from that address without prior written approval of a probationofficer; and(i) to attend an assessment for the SAFE programme as directed by aprobation officer, to attend and complete any counselling, treatmentor programme as recommended by the assessment as directed by andto the satisfaction of a probation officer.Law relevant to ESOs in general[10] Part 1A of the Act empowers a court to make an ESO in respect of an offenderwho has been sentenced to imprisonment for a relevant sexual offence and has notceased to be subject to release conditions.10 Section 107I provides, relevantly:107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protect membersof the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexualor violent offences.(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F,the court 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 offending; and(b) either of the following apply:10 Parole Act 2002, s 107C(1).(i) there is a high risk that the offender will in futurecommit a relevant sexual offence:(4) Every extended supervision order must state the term of the order,which may not exceed 10 years.(5) The term of the order must be the minimum period required for thepurposes of the safety of the community in light of—(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.[11] In Chief Executive of the Department of Corrections v Alinizi, this Court setout a three-step process for determining whether an ESO should be made:11(i) the Court must determine whether the offender has, or has had, apervasive pattern of serious sexual or violent offending;(ii) the Court must make specific findings as to whether the offendermeets the qualifying criteria set out in s 107IAA; and(iii) if those criteria are met the Court must make a determination aboutthe risk of the offender committing a relevant sexual or violentoffence.[12] This Court in Chief Executive of the Department of Corrections v Coleman,held:12On its face, an ESO limits the right to freedom of association and the right tofreedom of movement under ss 17 and 18(1) of the New Zealand Bill of RightsAct 1990 (the Bill of Rights Act). Section 3(a) of that Act means a court mayonly make an ESO in a particular case if it does so consistently with the Act.So those limits must be reasonable and demonstrably justified in a free anddemocratic society in a particular case. The decision-making exercise isfact-specific and evaluative.[13] A Full Court of this Court in Chisnall v Attorney-General held that ESOsshould be properly regarded as a second penalty engaging the right not to be punishedfor an offence again under the New Zealand Bill of Rights Act 1990 (Bill of Rights).1311 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [13].12 Chief Executive of the Department of Corrections v Coleman [2021] NZCA 528 at [17].13 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [145].The judgment has been appealed to the Supreme Court.14 Counsel for both partiesaccept that there needs to be "strong justification" for an ESO if the statutory criteriaare met.15Decision under appeal[14] On 20 October 2022, the ESO application filed by Corrections was heard.Corrections obtained two reports from a registered clinical psychologist, Ms AngelaCurtis-Clark. Mr Bannan's counsel obtained a report by another registered clinicalpsychologist, Dr Jon Nuth. Both psychologists were available for cross-examinationat the District Court hearing of the ESO application.[15] On 14 November 2022, Judge McGuire concluded that the criteria forimposing an ESO were satisfied and that an ESO would be appropriate in Mr Bannan'scase.16 The Judge made an ESO for five years on the same conditions as the ISO.17We address aspects of the judgment in more detail when addressing Mr Bannan's threegrounds of appeal in turn.[16] An appeal against a decision to impose an ESO is treated as an appeal againstsentence.18 Under s 250(2) of the Criminal Procedure Act 2011, this Court must allowthe appeal if it is satisfied there was a material error in the decision under appeal anda different decision should have been made.Issue 1: Is there a pervasive pattern of serious sexual offending?Relevant law[17] In Holland v Chief Executive of the Department of Corrections, this Court heldan arbitrary distinction should not be drawn between contact and non-contact offencesfor the purposes of assessing whether there is a pervasive pattern of serious sexual14 Attorney-General v Chisnall [2022] NZSC 77.15 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 at [31].16 District Court decision, above n 1, at [130].17 At [131].18 Parole Act, s 107R(2); and Wilson v Chief Executive of the Department of Corrections [2022]NZCA 289 at [33].offending.19 In Kiddell v Chief Executive of the Department of Corrections, this Courtstated: 20[21] Fourth, the terms "pervasive pattern" and "serious sexual offending"and "high risk" indicate that the assessment requires judgments of quality anddegree. The decision-making exercise is fact-specific and evaluative.[22] Fifth, the term "serious sexual offending" in s 107I(2)(a) is not a termof art but should be given its ordinary meaning. It is not confined to relevantsexual offences listed in s 107B(2).21 The adjective "serious" should also begiven its natural meaning, viewed against the statutory purpose of protectingthe community from those who pose a real and ongoing risk of sexualoffending.22 The relevant sexual offences listed in s 107B(2) are capable ofbeing "serious" but are not exhaustive.23[23] Sixth, a pervasive pattern is one that is sufficiently characteristic ofthe offender to serve as a predictor of future conduct.24 We make several pointsabout this:(a) In ordinary usage, to be pervasive is to be present throughout.25The adjective is here used in connection with the behaviour of aperson, and the legislation also identifies certain relevant traits orcharacteristics: an intense drive to commit relevant sexualoffences, a predilection for serious sexual offending, limited self-regulatory capacity and an absence of responsibility or an absenceof understanding of victim impact.26 It is for these reasons that wehave defined a pervasive pattern simply, as a pattern that ischaracteristic of the offender.(b) The pattern must be sufficiently pervasive to serve as a predictorof future conduct; we adopt that purposive standard because thepattern determines whether the offender is susceptible to an ESO.(c) In ordinary usage "pattern" connotes regularity but a pattern maytake any form or sequence. A pattern that includes relevant but lessserious conduct may be found pervasive.27[24] Seventh, when considering whether the offender presents a high riskof committing relevant sexual offences in future, the court will take intoaccount anything that may exacerbate or mitigate risk, such as community19 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 [Holland (CA)]at [48].20 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171.21 Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR771 [Holland (SC)] at [13]−[14].22 Holland (CA), above n 19, at [44]; and Holland (SC), above n 21, at [13].23 Holland (CA), above n 19, at [43].24 This standard is similar but not identical to that adopted in Chief Executive of the Department ofCorrections v Ihimaera [2017] NZHC 2228 at [46].25 See Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (OxfordUniversity Press, Melbourne, 2008).26 These are used in s 107IAA, which is concerned with risk of future offending, but as explained at[19] a past or present pattern of serious sexual offending may evidence the same characteristics.27 Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [33].support and the offender's response to any treatment that has been undertaken.These considerations are also relevant to the term of an ESO, as noted below.[25] Eighth, the court must be "satisfied" that the criteria in s 107I(2) ands 107IAA have been established. There is no onus or standard of proof; rather,the court must make up its mind on the evidence.28[27] Finally, an ESO engages [Bill of Rights Act]-protected rights.This Court has previously held that the ESO regime creates a retrospectivedouble penalty, so contravening s 26 of the [Bill of Rights Act], butnonetheless must be given effect under s 4 of that Act.29 The Supreme Courthas recognised that the Parole Act's statutory purpose requires that courts notbe denied clearly relevant information when deciding whether an offender iseligible under s 107I for an ESO.30 But when deciding whether to make anESO, and for how long, courts must recognise that the order may impingesubstantially upon the offender's freedom of movement and association.These rights must be borne in mind when deciding both whether the offenderhas or had the necessary pervasive pattern of serious sexual offending andwhether the offender presents a high risk of future serious relevant offending.[18] In Coleman, this Court stated the approach in Kiddell had recently been appliedin two cases:31(a) In Talatofi v Chief Executive of the Department of Corrections,this Court held that two incidents of serious sexual offending in 1992and 2014/2015 did not constitute a pattern that was pervasive.32 Theywere not characteristic of Mr Talatofi such that they served as apredictor of future conduct.33 The Court held that less seriousoffending in 1989, in which the sexual component could have beenincidental, and in 2009 which was primarily violent, were not part ofthe pattern.34(b) In Taakimoeaka v Chief Executive of the Department of Corrections,this Court held that there was a unifying theme or pattern in twoserious episodes of offending (by rape, unlawful sexual connectionand attempted unlawful sexual connection in 2005 and by unlawfulsexual connection, assault with intent to commit rape and indecentassault in 2013) sufficiently pervasive to serve as a predictor ofMr Taakimoeaka's future conduct.35 It rejected the submission that28 Holland (CA), above n 19, at [12] citing R v White (David) [1988] 1 NZLR 264 (CA) at 268; R vLeitch [1998] 1 NZLR 420 (CA) at 428; and Chief Executive of the Department of Corrections vMcIntosh HC Christchurch CRI-2004-409-162, 8 December 2004 at [20]–[21].29 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA). Thisremains the position following the Supreme Court decision in Holland (SC), above n 21, at [18].30 Holland (SC), above n 21, at [19].31 Chief Executive of the Department of Corrections v Coleman, above n 12, at [16].32 Talatofi v Chief Executive of the Department of Corrections [2021] NZCA 258 at [40]–[41].33 At [40].34 At [36].35 Taakimoeaka v Chief Executive of the Department of Corrections [2021] NZCA 467 at [29].two incidents were not sufficient to establish the requisite predilectionor proclivity.36 And it held:37Where a person has committed serious sexual offendingand is at high risk of committing further such offending,it would have to be a rare case where the standard termsof an ESO crafted by Parliament to protect thecommunity from that risk would be regarded by the courtas having no utility.[19] This Court in Coleman said, of the offending there:38We consider the 2011 and 2014 offending was plainly serious. Together, thatoffending points towards a pattern of Mr Coleman forcing himself on youngwomen in order to have sex irrespective of their objections. The fact that hissubsequent offending and other similar behaviour was interrupted, and did notreach as serious an outcome, does not detract from its consistency with theserious nature of the 2011 and 2014 offending. Rather, it reinforces the patternof Mr Coleman's serious offending in those cases. We consider Mr Colemanhas a pervasive pattern of serious sexual offending and is plainly at high riskof committing serious sexual offending in future.Decision under appeal[20] The Judge referred to the legislation and case law regarding "pervasivepattern" and "serious sexual offending".39 He held Mr Bannan's grooming offending,in both Australia and New Zealand, was continuous, intensive, and "serious" in termsof the ordinary meaning of the word.40 The goal of Mr Bannan in respect of both setsof offending was a sexual relationship with a pubescent or pre-pubescent girl.41The Judge observed it was "pure good fortune" that the police were able to intervenebefore Mr Bannan's latest offending escalated any further.42 The Judge concluded thatMr Bannan has had a pervasive pattern of serious sexual offending.43Submissions[21] Ms Webby, for Mr Bannan, submits the Court erred in this finding.The Australian offence being committed on 30 August 2006 indicates he only36 At [35].37 At [41].38 Chief Executive of the Department of Corrections v Coleman, above n 12, at [2].39 District Court decision, above n 1, at [111]–[112].40 At [113]–[114].41 At [113] and [122].42 At [122].43 At [114].offended during the earlier part of the operation and there is no indication there wasongoing discussion with "Isabella". The Australian offending and possession ofobjectionable publications were intertwined as the conviction triggered the searchwarrant. The material circumstances are the same and the nature of the objectionablematerial is similar to the conversations he was having with "Isabella". There were12 years between that and the 2020 offending and, for seven of those years, Mr Bannanwas in the community without supervision. There is no regular pattern of offendingand no pattern that pervades his life, similar to Talatofi. The offending is insufficiently"serious" to justify an ESO, compared with offending such as that in Taakimoeka.Ms Webby submits non-contact offences are not determinative and care needs to betaken not to elevate the fact the victim was a child, which is inherent in the charge.[22] Ms Wynne, for Corrections, submits this Court has recognised that while apattern connotes regularity, it may take any form or sequence. The circumstances ofthe previous offending amount to serious sexual offending given the victims werechildren. The pattern was repeated in the recent offending. The nature and degree ofMr Bannan's messages, and the impact on the victim, shows the offending issufficiently serious.Is there a pervasive pattern of serious sexual offending?[23] We do not consider any weight can be placed on the suggestion that theAustralian offence was committed on the discrete date of 30 August 2006. It is correctthat the New Zealand "Overseas Conviction History" records the "offence date" as30 August 2006. But the Queensland Police Service Court Brief states that the chargerelates to the period between noon 8 September 2006 and midnight on8 February 2007. The facts summarised there for "charge 2 of 2" are "as per chargeone", which states that Mr Bannan chatted with the 12-year-old alias "on a number ofoccasions", spoke to the child about topics of a sexual nature "on a regular basis", andtold her to masturbate "[d]uring several online chats". The verdict and judgmentrecord of the Supreme Court of Queensland states the date of the offence was between30 August 2006 and 25 October 2006. There is no good basis to infer that Mr Bannan"only" offended during the earlier part of the police operation (which does not matteranyway) or that he had no ongoing discussion with "Isabella".[24] Neither can anything be drawn from the objectionable publication offendingbeing discovered through the offending against "Isabella". How offences are detecteddoes not affect them constituting a pattern. In fact, the similar nature of theobjectionable material and the offending against "Isabella" helps constitute a pattern,which is confirmed by their similarity with the 2020 offending. A pattern does nothave to be "regular". As this Court stated in Kiddell, a pattern may take any form orsequence.44[25] The question is whether the offending is sufficiently pervasive to serve as apredictor of future conduct. We are satisfied the pattern here is so pervasive. The factMr Bannan offended in 2020 in a such a similar way to his earlier offending, after arelatively lengthy period of time in the course of which he received extensive treatmentduring intensive supervision, reinforces the pervasiveness of his pattern. This isconsistent with the opinions of both psychologists and is a point particularly made byMs Curtis-Clark. Ms Curtis-Clark also concluded that Mr Bannan shows enduringsexual interest and sexual arousal to pre-pubescent and pubescent girls representing"a predilection and proclivity for sexual offending". This can be predictive of futurebehaviour and is therefore relevant to assessing whether there is a pervasive pattern.Dr Nuth concurred with Ms Curtis-Clark's finding. Mr Bannan's pattern is quitedifferent from the lack of a pervasive pattern in Talatofi, where the offender's criminalhistory was primarily characterised by non-compliance and anti-authoritarianoffending. Furthermore, the offending in Talatofi spanned a period longer than theperiod in this case by 10 years.45[26] The offending, of grooming children with the intention of having sex withthem, is clearly serious. The fact it did not result in contact was not Mr Bannan'sdoing. As the Judge said, it was pure good fortune Mr Bannan's offending in theBay of Plenty did not escalate any further. This Court said in Holland that there is nobasis on which to draw an arbitrary distinction between contact and non-contactoffences.46 It said in Coleman that the fact subsequent offending was interrupted, anddid not reach as serious an outcome, did not detract from its consistency with the44 Kiddell v Chief Executive of the Department of Corrections, above n 20, at [23(c)].45 Talatofi v Chief Executive of the Department of Corrections, above n 32, at [40].46 Holland (CA), above n 19, at [48].serious nature of the earlier offending.47 The considerable amount of objectionablematerial found on Mr Bannan's computer is also relevant. Ms Webby's argumentabout not putting too much focus on the victim being a child is not persuasive.[27] We consider it is clear that Mr Bannan's offending was a sufficiently pervasivepattern of sufficiently serious offending to satisfy the criterion for an ESO. The appealfails on this ground.Issue 2: Is Mr Bannan at high risk of committing a relevant sexual offence?Relevant law[28] Section 107IAA states:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied 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; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.Decision under appeal[29] In relation to s 107IAA(1)(d), the Judge stated:[120] As to (d), the focus is on whether or not Mr Bannan displays anabsence of understanding for or concern about the impact of his sexual47 Chief Executive of the Department of Corrections v Coleman, above n 12, at [32].offending on actual or potential victims. Ms Curtis-Clark says at para 37 ofher 24 May 2021 report:Mr Bannan described his offending from the victims' and thevictims' parents perspective, described the physical abuse CESM[Child Sexual Exploitation Material] victims likely experiencedto gain their compliance and recognised his behaviour wasunacceptable. However, he did not present with a deeperemotional understanding of the impact to his victims and theirfamilies may be long lasting, but his ongoing minimisation andjustifications suggest that he has not fully internalised theseeffects.[121] This lack of understanding for or concern about the impact of hissexual offending on actual or potential victims is evidenced by theunrestrained way in which [Mr Bannan] went about grooming his potentialvictims for considerable periods of time in 2006- 2007 and again over severaldays "at all hours of the day" in 2020.[30] On the basis of the psychologists' reports and all the other information relatingto the offending, the Judge concluded that Mr Bannan was at high risk of committinga relevant sexual offence in the future.48 He noted that from the time of his arrest inBrisbane through to completion of his intensive supervision sentence, Mr Bannan wasabsolutely aware of the seriousness of his offending.49 Appropriate rehabilitation wasavailable, and required, but the 2020 offending showed it was insufficient to ensurefurther serious sexual offending did not occur.50 Furthermore, the Court had been toldthat Mr Bannan had been advised not to fully disclose his sexual thoughts to thepsychologist, Mr Bannan's "safety plan" had gaps, and his response to significantrehabilitation efforts had been less than optimal.51Submissions[31] Ms Webby submits there was no actual sexual connection or physical offendingand this was not at the more serious end of this type of offending. Her instructions arethat his trip to Australia was connected to a job, not going to see "Isabella", and therewere 16 months between the date of his offending and his travel to Australia.She accepts the first three criteria of s 107IAA(1) are supported by Dr Nuth'sconclusions but submits it is not clear Mr Bannan meets the final required criterion.48 District Court decision, above n 1, at [124].49 At [125].50 At [126].51 At [127]–[129].She submits Mr Bannan has shown shame and regret and stated his actions ruined thevictim's life. That is supported by his early guilty plea, his letter to the Court, and hisgains during treatment. Mr Bannan is not at high risk of committing a relevant sexualoffence in future. The Court did not consider the statistical assistance of thepsychologists, who assessed Mr Bannan as in the moderate/high range for staticfactors and moderate range for stable dynamic factors, and Dr Nuth's assessment thathis risk as not low but not high. Mr Bannan was not given the opportunity to explainwhy he did not discuss his sexual thoughts with the psychologists and the weightaccorded to gaps and late disclosure of his safety plan was misplaced because ofinterruption to his psychological sessions.[32] Ms Wynne submits both experts assessed Mr Bannan as having an aboveaverage risk of offending and Ms Curtis-Clark noted his potential for emotionalcollapse, particularly in regard to his poor ability to cope with stress and his pasthistory of alcohol and drug use. Mr Bannan minimised aspects of his offending. It wasMr Bannan's responsibility to alert the Judge if there were further aspects of theevidence he wanted to address.Assessment of risk[33] We found above that the lack of contact does not make a difference to theseriousness of this offending.52 Ms Webby, on Mr Bannan's behalf, does not disputethat he displays an intense drive, desire or urge to commit a relevant sexual offence,has a predilection or proclivity for serious sexual offending, and has limitedself-regulatory capacity. The fourth precondition for Mr Bannan being at high risk ofcommitting a relevant sexual offence is whether he displays a lack of acceptance ofresponsibility or remorse for his past offending or an absence of understanding for, orconcern about, the impact of his offending on actual or potential victims.[34] Mr Bannan's letter to the Court talks mainly about himself — his history,background, and bullying. Towards the end of the letter, he says he recognises hisactions were wrong and apologises. That is an expression of remorse. But we considerthe Judge was correct to find that this precondition was satisfied on the basis of52 At [26] above.Ms Curtis-Clark's report and the nature of his offending in 2006 to 2007 and in 2020.In addition to the paragraph the Judge quoted from Ms Curtis-Clark's report of24 May 2021, her report of 27 July 2022 stated:While his self-report is noted and is not contested by contrary evidence fromthe last 18 months, the writer remains of the opinion that Mr Bannan has notfully accepted responsibility and remorse for his past offending. Of note, hehas since acknowledged that he had a sexual attraction to girls, an attractionhe stated he now no longer experiences. Overall, while Mr Bannan doesexpress some remorse for his offending, his ongoing minimisation andjustification of his offending demonstrates that he has not taken fullresponsibility for his offending.[35] Under cross-examination, Ms Curtis-Clark acknowledged Mr Bannan showedsome remorse but considered he minimised aspects of his offending.[36] Dr Nuth's opinion is a weak basis for resisting the applicability ofs 107IAA(1)(d). He considered that Mr Bannan's desistance from inappropriatepornography use was overshadowed by his exchanges with the victim. While Mr Nuthnoted Mr Bannan's apparent compliance with his Police Case Worker and the fact hehad curtailed his alcohol use, Mr Nuth considered it was a matter for the Court todecide whether that represented sufficient behavioural change in relation to remorseand understanding the impact of his offending on victims.[37] More generally in relation to Mr Bannan's risk, the conclusion ofMs Curtis-Clark's first report was:He is assessed as Above Average risk of committing a further relevant sexualoffence in the community. There is evidence that Mr Bannan does notdemonstrate a consistent desire or drive to commit relevant sexual offencesgiven he has had significant time periods in the community with no knownoffending. However, he has demonstrated a clear drive, desire and urge tooffend at times of relationship stress, emotion dysregulation and sexualpreoccupation. He has demonstrated a durability of sexual interest(predilection) and sexual arousal to prepubescent and pubescent girls spanning20 years; which included a sustained period of CSEM offending over eightyears (proclivity). Mr Bannan has limited self-regulation strategies to supportself-management especially once his sexual urges become activated, has notevidenced full remorse or responsibility for his offending or demonstrated thathe has fully internalised the impact to victims. He previously engaged intreatment (2012) but the treatment gains he initially made appear to haveeroded over the long term. Mr Bannan is currently engaged in treatment, atbest, on a superficial level. He presents with dynamic risk factors that reflectan Above Average risk, and that if his dynamic risk factors remainunaddressed, suggest that his risk will remain at an Above Average level overthe longer term. Mr Bannan has demonstrated he is willing to manage his ownrisk and has appeared able to do this at times, however his offence pattern todate reflects lapses. At present there is little prospect of long term change thatmitigates his risk of further offending if Mr Bannan were not to engagemeaningfully in further offence-focused treatment. Therefore, risk reductionis likely to be more successful when supported by external monitoring andmanagement of Mr Bannan's behaviour.[38] In her second report of 27 July 2022, Ms Curtis-Clark considered theconclusions in her first report remained valid — that Mr Bannan has an"Above Average" risk of committing a further relevant sexual offence within 10 yearsof release, with stress being a particularly relevant factor. Overall, while she notedMr Bannan had developed further insight into his risk factors and pathway tooffending, and had begun to evidence "minor positive change", she stated:At present there is little prospect of long-term change that mitigates his riskof further offending if Mr Bannan were not to engage meaningfully in furtheroffence-focused treatment. The opinion expressed by the writer in theprevious report (24 May 2021) remains the same and Mr Bannan is consideredat Above Average risk of further relevant sexual offending.[39] Under cross-examination, Ms Curtis-Clark agreed Mr Bannan was not at highrisk of re-offending all the time, but considered neither was he at low risk.[40] Dr Nuth assessed Mr Bannan's risk, based on static factors, was in the"Moderate/High range (IVa – Above Average risk)", noting that was not necessarily aconservative estimate. He placed Mr Bannan "firmly within the upper end of theModerate range" on a stable dynamic risk measure. He concurred withMs Curtis-Clark's assessment that Mr Bannan's risk of re-offending is "AboveAverage", compared with sexual offender normative data within 10 years of release,and would be elevated in the context of: unsupervised access to children via theinternet or in person; use of substances and alcohol; not being in a satisfying intimaterelationship; and increased stress. He considered that Mr Bannan presents a moderaterisk of future sexual offending — not a low risk but not high either.[41] We consider the psychologists' reports, and the nature and context ofMr Bannan's offending, provided a sufficient basis for the Court to conclude thatMr Bannan was at high risk of committing a future relevant sexual offence.Mr Bannan's unconvincing statements of remorse do not alter that. Neither does hisguilty plea or his marginal improvement during treatment, which were taken intoaccount by the Judge. While the interruption in his treatment may explain gaps in hissafety plan, the Judge was still entitled to take those gaps into account.[42] We do not consider the Judge erred in concluding that Mr Bannan satisfiedeach of the preconditions specified in s 107IAA and in determining there is a high riskthat Mr Bannan will, in future, commit a relevant sexual offence. We have consideredthe extent to which Mr Bannan's rights and freedoms are impinged upon by the termsof the ESO and weighed this against the risk to public safety Mr Bannan poses.We agree that, in the circumstances of this case, there is a strong justification for anESO to be made. The appeal fails on this ground.Issue 3: Should the ESO have been for less than five years?Decision under appeal[43] In relation to the term of the ESO, the Judge stated:53The order will be for the minimum period provided for in the Parole Act,namely five years, reflecting the level of risk posed by the offender; theseriousness of the harm that might be caused to victims; and the likely durationof the risk.Submissions[44] Ms Webby submits any ESO should only have been ordered for four years andthree months, given that he had already been on a nine-month ISO. There was nological basis for a five-year term. Two years would have been the minimum requiredfor the purposes of community safety. There was no consideration of why Mr Bannanshould be penalised by nine months.[45] Ms Wynne submits five years was appropriate to address the long-term risksMr Bannan poses and the ESO was a justified limitation on his rights under s 26(2) ofthe Bill of Rights.53 District Court decision, above n 1, at [130].Term of ESO[46] The term of an ESO is required by s 107I of the Act not to exceed the minimumperiod required for the safety of the community, given the risk posed by Mr Bannan,the seriousness of the harm that might be caused to victims, and the likely duration ofthe risk. Setting the term involves the exercise of a broad discretion which is subjectto "light-handed appellate control".54 The Judge was well aware that Mr Bannan hadbeen subject to an ISO, which imposed interim safeguards. His assessment was thatan ESO should be imposed, for five years, prospectively. There is nothing to indicatethat five years was manifestly excessive, that the nine-month ISO should have reducedit, or that the Judge erred in setting the term. The appeal fails on this ground.Result[47] The appeal is dismissed.Solicitors:Webby & Associates, Tauranga for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent54 McLennan v Chief Executive of the Department of Corrections [2021] NZCA 629 at [29].