DEPARTMENT OF CORRECTIONS v MAINDONALD [2018] NZHC 944

DEPARTMENT OF CORRECTIONS v MAINDONALD [2018] NZHC 944 [4 May 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2017-412-000050[2018] NZHC 944THE CHIEF EXECUTIVE,DEPARTMENT OF CORRECTIONSvREGAN JAMES MAINDONALDHearing: 4 May 2018Appearances: M J Grills for the CrownS A Saunderson-Warner for the DefendantJudgment: 4 May 2018ORAL JUDGMENT OF NATION J[1] Mr Maindonald, on 29 January 2018, your sentence of two years, four months'imprisonment for having unlawful sexual intercourse with a 15 year old girl came toan end. The Department of Corrections has applied for an extended supervision order.If I make an extended supervision order, you will remain under the strict supervisionof the Department of Corrections and the Parole Board for the period I specify for upto 10 years.[2] Corrections have also asked for you to be subject to intensive monitoring for12 months. If I allow that, you will be under 24 hours a day, seven days a weeksupervision. You know what that would be like because, since the end of January, youhave been living under that sort of supervision in the special accommodation whichhas been built for that purpose on the grounds of the Christchurch Prison.[3] I can make an extended supervision order where you have a history of repeatedsexual offending and other sexual misconduct, and when there is a high risk of seriousparticular sexual offending in the future.[4] On 6 March 2013, you swam alongside three older women in a swimming poolin Dunedin and fleetingly but indecently touched them. For that you received asentence of six months and three weeks' imprisonment.[5] In August 2015, you were alone in a house with a 15 year old girl. You hadsex with her. You knew she was only 15. I know you say she was a willing participantbut you were then aged 24 and she was 15. What you did was a criminal offence andyou received your most recent sentence.[6] Your most common offending in the past has been when you have indecentlyexposed yourself to women, even masturbating in front of them. This has happenedin front of strangers and people you knew, when you were visiting a Probation Officeand in front of a prison corrections officer. All the women who had to witness youractions were distressed and no doubt disgusted by what you were doing. The reportsI have read tell me you have no understanding of how this sort of behaviour upsets thepeople who have to see it. You have even criticised them for going to the Police.[7] All the information I have seen indicates there is a real risk that, unless you dosomething to change the way you think and learn to control yourself, you will offendin this way again. The most likely offending is doing an indecent act.[8] You need to understand just how serious the situation is for you. Thepsychologist, Mr Prince, who spoke to you at length recently, told me that you were atleast beginning to understand how serious the situation is.[9] I want to remind you of that.[10] Because of your convictions for indecent assault and unlawful sexualconnection with a young person, you have been given a two strikes warning. With thelaw as it stands, this means that, if you are convicted again of indecently touching awoman, even if only briefly, you will face the maximum sentence of seven years'imprisonment without parole for that offence.[11] If you are convicted of being involved in unlawful sexual conduct with a youngperson under the age of 16 years knowing that she is under age, you will be liable fora maximum prison sentence of 10 or seven years without parole.[12] The three strikes law does not apply to indecent acts in front of an adult but, ifyou commit that sort of offence again in the future, with your history, it is likely youwould be sentenced to imprisonment. If you do an indecent act like that in publicwhere people can see it, you will be bringing trouble on yourself. You will also beseriously upsetting the people who have to witness it.[13] Much of your offending has happened when you were seriously under theinfluence of unlawful drugs or alcohol. If you do not deal with drug and alcoholproblems, the risk of you committing sexual offences will remain.[14] You have also had mental health problems in the past which has meant youhave had to spend different periods in hospital. The reports I have read tell me thatyou need further treatment. You also need more of the individual intense counsellingwith a psychologist that should help you to avoid further offending in the future. Ifyou do not receive that treatment and take advantage of it, you will be a risk to yourselfand to the public.[15] I take it that you understand all of this.[16] Having said that, the making of an extended supervision order is a seriousrestriction on a person's freedom. Parliament and the Court of Appeal have said thatsuch an order may be made only when a person's previous history and theirpsychology and personality means there is a high risk that the person will commitserious relevant sexual offences in the future. I have been given a lot of informationabout your past and your psychological make-up. Based on that information, there isobviously a risk that you will be involved in further offences but that is most likely tobe acting indecently.[17] The evidence has not satisfied me that there is a high risk you will commitanother serious relevant sexual offence, as that is defined in the Parole Act. I havetherefore decided that Corrections' application for an extended supervision order mustbe declined. This means that you will be released from your prison sentence, whichended on 29 January 2018. You will no longer be under intensive supervision, as youhave been up until now.[18] With your earlier sentence, on your release you had to live where directed byCorrections for a period of up to six months. This means Corrections must nowapprove the address you are going to. It will be obvious to Corrections, and it shouldbe obvious to you, that you need to be somewhere where you can receive thepsychological help you need to avoid sexual offending of any sort in the future.[19] I warn you that, if you do not take advantage of that help and if you do offendagain, the consequences for you will be very serious. If you have to be sentencedagain for another offence, the Judge sentencing you will know of all the warnings youhave been given.[20] So, Mr Maindonald, the Department of Corrections' application for the makingof an extended supervision order with intensive monitoring is declined. You must nowreport to a Probation Officer, and there is one present in Court, so that arrangementscan be made as to the address you will now go to, with their approval.[21] As I said, with this decision, I am also releasing my full reserved judgmentwhich, in detail, provides reasons for the decision I have just made.Solicitors:RPB Law, DunedinSA Saunderson-Warner, Barrister, Dunedin.