DEPARTMENT OF CORRECTIONS v MAINDONALD [2018] NZHC 946

DEPARTMENT OF CORRECTIONS v MAINDONALD [2018] NZHC 946 [4 May 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2017-412-000050[2018] NZHC 946THE CHIEF EXECUTIVE,DEPARTMENT OF CORRECTIONSvREGAN JAMES MAINDONALDHearing: 10 April 2018Appearances: M J Grills for the CrownS A Saunderson-Warner for the DefendantJudgment: 4 May 2018JUDGMENT OF NATION JAS TO REASONS FOR DECISION[1] Today, 4 May 2018, in open Court, I have told the Department of Correctionsand Mr Maindonald of my decision declining Corrections' application for an extendedsupervision order with an order for Mr Maindonald to be subject to intensivemonitoring for 12 months. This is my judgment providing the reasons for thatdecision.[2] Mr Maindonald is aged 27. On 29 January 2018, his sentence of two years andfour months' imprisonment for having unlawful sexual connection with a 15 year oldgirl came to an end.[3] On 28 August 2017, the Department of Corrections applied for an extendedsupervision order (ESO). On 6 November 2017, by consent, Davidson J made an orderin the High Court for an interim ESO with intensive monitoring. That interim ordercame into effect when Mr Maindonald's sentence finished and is to continue until theDepartment's application is finally determined.[4] Since the ending of his prison sentence, Mr Maindonald has been living in ahouse on the grounds of Christchurch Men's Prison under strict supervision, withsupport from Christchurch Residential Care Limited.[5] Mr Maindonald opposes the application on the grounds that:(i) he does not have a predilection or proclivity for serious sexual offending;and(ii) the Court cannot be satisfied that there is a high risk that he will commit arelevant sexual offence.The legal context[6] This application for an ESO is based on the risk of serious sexual offending. Ihave regard to the relevant provisions of the Parole Act 2002 (the Act) and theguidance from previous judgments of the Court of Appeal and the High Court as tohow that Act is to be applied. I proceed on the basis:(a) In my determinations, I must have regard to the purpose of an ESO, whichis to protect the public from offenders who, after serving a determinantsentence, pose a real and ongoing risk of committing serious sexualoffences.1(b) The Chief Executive must establish that the offender has been convictedof a relevant sexual offence.21 Parole Act 2002, s 107I(1); R v Peta [2007] NZSC 28, [2007] 2 NZLR 627.2 Parole Act 2002, ss 107B and 107C.It is accepted that Mr Maindonald has four such convictions, one for theoffence of unlawful sexual connection with a young person which led tohis most recent sentence of imprisonment and three convictions forindecent assault in 2013.(c) The application for an ESO has to have been made when the offender isstill subject to a sentence of imprisonment, release conditions or an ESO.3This application was made when Mr Maindonald was still subject to asentence of imprisonment.(d) The application for an ESO has to be accompanied by a health officer'sreport which must address the matters specified in ss 107F(2A)(a), that is:i. whether the offender displays each of the traits and behaviouralcharacteristics specified in s 107IAA(1) which are set out below;ii. whether there is a very high risk that the offender will in futurecommit a relevant sexual offence.In this instance, the Department relies on reports provided by DeborahMcLean, a registered clinical psychologist with the Department, dated 7March 2017 and 5 April 2018.(e) The health assessor, and thus the Court, may consider any statement of theoffender or any other person concerning any conduct of the offender,whether or not that conduct constitutes an offence and whether or not hehas been charged with or convicted of an offence in respect of thatconduct.4 The earlier conduct may constitute serious offending withoutnecessarily being relevant sexual offending, as that term is defined in theAct.53 Parole Act, s 107C.4 Section 107F(3).5 Holland v The Chief Executive of the Department of Corrections [2016] NZCA 504 at [36]-[45].(f) The Court must be satisfied that the offender has, or has had, a pervasivepattern of serious sexual offending.6 Taken together, the use of the words"pervasive pattern" indicates that "the previous offending must havecharacteristics so prevalent and common as to provide a reliable predictorof relevant future conduct".7(g) An ESO can be made only if the Court is satisfied that there is a high riskthat the offender will in future commit a relevant sexual offence, as that isdefined in the Act.8 To determine that there is a high risk that an eligibleoffender will commit a relevant sexual offence, the Court must be satisfiedthat the offender:9(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 for pastoffending:(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.(h) In considering whether there has been a pervasive pattern of serious sexualoffending and whether there is a high risk of future relevant sexualoffending, I bear in mind that:10i. Serious is not defined in the Act but, in ordinary language, means"important, grave; having (potentially) important, esp. undesired,consequences; giving cause for concern; of significant degree oramount, worthy of consideration".6 Section 107I(2)(a).7 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].8 Section 107I(2)(b)(i).9 Section 107IAA(1).10 Holland v Chief Executive of the Department of Corrections, above n 5, at [44] with reference tothe New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford 1993) at 2785.ii. An ESO can result in severe restrictions being placed on many aspectsof an offender's life, including residence, employment, associationand travel. Such restrictions can apply for up to 10 years after he hasserved the sentence imposed for a subject offence. Because of this,"self evidently, only offending at the higher end of the range" wouldjustify the imposition of an ESO. Parliament could not be taken tohave contemplated that a pattern of offending at the lower end of thespectrum would justify consideration of such a potentially draconianconstraint.11iii. Indecent assaults are capable of being sufficiently serious because theoffence of indecent assault is included in the list of relevant sexualoffences referred to in the Act.12iv. Whether or not offending is "serious" in a qualifying way requires afact-specific enquiry on a case-by-case basis.13 In Shortcliffe v ChiefExecutive of the Department of Corrections, the Court of Appealemphasised that not all sexual offending would satisfy the test.14v. When considering whether there has been or will be serious sexualoffending, it is appropriate to consider all the circumstances that areproperly regarded as aggravating, both in relation to the actualoffending and in relation to the offender.15(i) In determining whether there is a pervasive pattern of serious sexualoffending and the risk of such offending in the future, the totality ofcircumstances will be important.16(j) There is no evidential burden which the Department has to meet in termsof establishing the criteria for the making of an ESO. The Court simply11 Holland v Chief Executive of the Department of Corrections, above n 5, at [4] and [45].12 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [5].13 Holland v Chief Executive of the Department of Corrections, above n 5, at [45].14 Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 587 at [39].15 Wardle v Chief Executive of the Department of Corrections, above n 12, at [42].16 Chief Executive, Department of Corrections v Popata, [2017] NZHC 2343 at [29].needs to be "satisfied" that the prerequisites are met, which is indicativeof a state where the Court comes to a judicial decision on the evidence.17Mr Maindonald's past offending[7] Mr Maindonald's relevant sexual offending which, in part, means that he iseligible for an ESO, comprises:(a) 6 March 2013 - three charges of indecently assaulting a female over 16.On three occasions, Mr Maindonald swam past 61, 62 and 66 year oldwomen in a public swimming pool in Dunedin and touched their buttocksor legs before swimming away. When sentenced for that offending on 13June 2013, the Judge noted Mr Maindonald suffered from a chronicschizophrenic illness. Mr Maindonald was sentenced on 13 June 2013 tosix months and three weeks' imprisonment, cumulative on earliersentences of five months' imprisonment imposed on 24 April 2013.(b) August 2015 - one charge of sexual connection with a young person. MrMaindonald was boarding at a rural address in North Otago. A 15 year oldgirl was visiting the address. The other adults living there and their youngchild went away from the house leaving Mr Maindonald alone with the 15year old. During that period, they engaged in a range of physical sexualactivity. The other couple returned after midnight and all occupants of theaddress went to bed shortly afterwards. During the night, the 15 year oldvictim got into Mr Maindonald's bed but no further sexual activity tookplace. In the morning, the couple discovered Mr Maindonald and the 15year old in bed together. Mr Maindonald was asked to leave the address,which he did. Mr Maindonald was located and arrested in Oamaru on 1October 2015. At the time of his arrest, he was intoxicated and under theinfluence of drugs to the extent he was unable to be interviewed. Thefollowing morning, he was spoken to by Police, admitted knowing thevictim was 15 years old and to having the sexual contact as described. It17 Holland v Chief Executive, Department of Corrections, above n 5, at [12].was for this offending that Mr Maindonald was sentenced to two years andfour months' imprisonment.[8] The other offending or conduct which Ms McLean referred to in her report of7 March 2017 was as follows:(a) May 2012 - Mr Maindonald sent a text message threatening to rape awoman known to him. Associated with that offence, he had around thattime sent inappropriate sexual texts to another female mental healthworker and one probation staff member. He continued to sendinappropriate sexual texts to women known to him (mental health workers,probation staff, a female family member) and to make inappropriate sexualremarks to female mental health workers after he had been dealt with forthis offence by the Court.(b) 20 February 2013 – doing an indecent act. Ms McLean reported that, inthis incident, Mr Maindonald had exposed himself and masturbated infront of a woman in Oamaru who was known to him and who was standinginside her house in front of the window. He told Ms McLean that he hadbeen sexually aroused, having smoked synthetic cannabis at the time. Hewas sentenced on 24 April 2013 for an assault on his doctor, two separateassaults on a Police officer, breach of a protection order, trespass, andthreatening to damage property. None of those offences related to anysexual offending. The Judge said the separate indecent act "was towardsthe lower end of the scale in one sense" but nevertheless very distressingfor the victim. She noted that Mr Maindonald attempted to suggest thathe did not realise the woman would be affected by what he had donebecause she was able to see him. The Judge rejected that contention onthe basis he had pleaded guilty knowing what he had done and that itwould be regarded as indecent but went ahead and did it anyway. For thatoffence, he received a sentence of one month imprisonment, cumulativeon four months' imprisonment on the other charges.(c) 2 November 2013 – doing an indecent act. Mr Maindonald spoke to afemale who was gardening in front of her Dunedin house. He madeinappropriate sexual comments to her about sleeping together andunzipped his trousers, moving his hand inside the trousers appearing tomasturbate. He left when asked to do so.(d) 9 April 2014 – doing an indecent act. At the doorway of an office at theprobation service where the victim was sitting, Mr Maindonald put hishand in his pants, through the zipper, moving his hand backwards andforwards as if masturbating. When he pulled his hand out, he brieflyexposed his penis before putting it back in his trousers and walking off.He went back and apologised to the person. On 17 April 2014, MrMaindonald was sentenced for that offending and a charge of speakingthreateningly (which the Judge described as "a minor matter really in thewhole wash up"). Mr Maindonald was sentenced to an effective term ofsix months' imprisonment with release conditions which the Judge said hehoped would provide for a staged entry back into the community withassistance.(e) Late 2014 – Ms McLean reports Mr Maindonald having two admissionsto Wakari Hospital and there being a record of his sending sexuallyinappropriate texts to a female Corrections worker, and of approaching(with sexual intentions) two vulnerable patients at Wakari Hospital.(f) 1 February 2015 – indecent act with intent to insult. Mr Maindonald stoodon a chair in front of his bedroom window and was masturbating,intending for that to be seen by the victim who was walking past hiswindow. He was sentenced for that offending on 26 August 2015 but alsoon a charge of contravening a protection order and threatening to kill ordo grievous bodily harm. Both those latter offences were committed on19 July 2015. The sentencing notes indicate the Judge was troubled as towhy he had not been taking his medication when there were recurrencesof symptoms of his illness and he was under a compulsory treatment orderat the time of the offending. The Judge referred to a helpful report fromMr Maindonald's Corrections psychologist. That psychologist recorded"a high risk of sexual reoffending, particularly if [Mr Maindonald] waspsychiatrically unwell using substances, including alcohol or in astressful relationship of some kind". The Judge considered they were allfactors in the offending for which she was sentencing Mr Maindonald.Noting that Mr Maindonald had already been in custody for about five anda half weeks, the Judge sentenced him to intensive supervision for ninemonths with special conditions, requiring him to have counselling andtreatment as recommended. The Judge noted she was concerned aboutrisk management but wanted to ensure that, at the end of the sentence, MrMaindonald was able to cope and control his behaviour. She saidmanagement of his medical condition, with his being subject to acompulsory treatment order, was for the medical authorities to deal with.(g) September 2016 – while in prison, Mr Maindonald was observed to bemasturbating in front of a female Corrections officer and was subject to amisconduct charge because of this.[9] In her report of 7 March 2017, Ms McLean referred to Mr Maindonaldreporting how he had experienced a high level of sexual preoccupation since becomingsexually active at the age of 12 and of there being few restrictions on when sexualactivity would take place within his peer group as he entered adulthood.Previous sexual offending and s 107IAA risk factors[10] I am satisfied there has been a pattern of previous sexual offending in theconduct I have referred to above.[11] I am well satisfied that Mr Maindonald has a predilection or proclivity forsexual offending.[12] I agree with Ms McLean's opinion that Mr Maindonald's desire to engage insexual behaviour has not been constrained by the environment he was in. His sexualinvolvement with the 15 year old girl was not constrained by his knowing she wasonly 15. He has been involved in sexual offending while on bail, when subject to thesentence of intensive supervision and when subject to release conditions. I accept thathe has demonstrated a poor ability to self-regulate his sexual impulses while in mentalhealth and prison environments, and in the community.[13] I am also satisfied that Mr Maindonald regularly displays a lack ofresponsibility or remorse for past offending and has an absence of understanding orconcern about the impact of his sexual offending on actual or potential victims. In hisinterviews with Ms McLean, he said he did not consider there was anything wrongwith his masturbating in front of female victims. He denied there was any sexualintent behind his behaviour with the three victims who he had indecently assaulted inthe swimming pool and told Ms McLean that he believed the victims wereinconsiderate for making a complaint to the Police. He denied there was any sexualintent to his behaviour in front of the woman who had been in her garden and did notconsider his behaviour would have any negative impact on her. He spoke about thewoman he had masturbated in front of, while standing on a chair, in derogatory terms.He said he did not consider that his behaviour would have impacted negatively on herand said that he believed it might have been enjoyable for her. He had a somewhatsimilar attitude to the instances in which he had exposed himself to women, eitherwhile in prison or at the probation office. To Ms McLean, he expressed his anger atvictims having contacted the Police because of the consequences that had for him.[14] I also accept Ms McLean's opinion that the risk of further sexual offending isincreased through Mr Maindonald's use of illicit drugs and alcohol, which are likelyto have the effect of further disinhibiting his already limited self-control. His previoussexual offending has often been associated with his having used illicit drugs.[15] The conclusions I have reached in this regard are consistent with the opinionsexpressed by the psychologist Ms McLean, various Judges who have had to sentenceMr Maindonald for his offending and the psychologist Mr Prince who provided areport for Mr Maindonald at the request of his counsel. Mr Prince differed from MsMcLean only as to whether all of this related to serious sexual offending and as towhether the future risk was as to serious sexual offending.[16] I am not satisfied that Mr Maindonald has or has had a pervasive pattern ofserious sexual offending.[17] I do not wish to minimise how unpleasant Mr Maindonald's sexually indecentacts have been for the victims and others who have observed them but s 107IAA isconcerned with the sort of serious sexual offending which would justify the severerestrictions on many aspects of an offender's life, as referred to by the Court of Appealin Holland v Chief Executive of the Department of Corrections.18 I do not considerthe indecent acts, which are typical of Mr Maindonald's previous offending andbehaviour, are of such seriousness. Although the Court of Appeal has noted thatconduct which is not of a "relevant sexual offence" under the Act may neverthelessconstitute serious sexual offending for the purpose of s 107IAA, I consider it relevantthat Parliament must have considered whether or not convictions for indecent actsshould provide a basis for an ESO. They specified the offences which could constitutea relevant sexual offence. Their definition included offences against s 129A(2) CrimesAct 1961 (indecent act with consent induced by certain threats) and s 131(3) (indecentact on dependent family member), but only if the victim of the offence was under theage of 16 at the time of the offence. It is also of some relevance that Parliament didnot make the offence of doing an indecent act with an adult the subject of the threestrikes legislation.[18] Because of the nature of the indecent assault offences which were committedon 6 March 2013, the circumstances of that offending, and the fact there has been norepetition of that particular offending since then, I am also not satisfied that there hasbeen a pervasive pattern of serious sexual offending in that regard. The three indecentassaults were committed on the same day during a single visit to a swimming pool inDunedin. In Shortcliffe v Chief Executive of the Department of Corrections, the Courtof Appeal agreed with the District Court Judge that a "pervasive pattern" could not befound in offending that occurred over a single day.19[19] At the hearing, I was provided with the summary of facts with regard to histhreatening rape in a text in 2012. The charge brought against Mr Maindonald was ofmisusing a telephone under the Telecommunications Act 2001, for which themaximum penalty is three months' imprisonment or a $200 fine. The summaryreferred to Mr Maindonald being a mental health patient, then under the care of18 Holland v Chief Executive of the Department of Corrections, above n 5.19 Shortcliffe v Chief Executive of the Department of Corrections, above n 14.Waitaki Community Mental Health Services. The victim was a social work therapistworking for that service, and had formerly been Mr Maindonald's manager. She hadgiven him her cell phone number so he could contact her in an emergency. Thesummary referred to him, on a particular day during an alcohol and drug fuelled binge,sending her a series of text messages, most of which were either incoherent jibberishor simply inappropriate, but in the last text there was a threat to rape her. When spokento by the Police, Mr Maindonald said he had been so intoxicated that he could notremember what he had said in the texts. In evidence, Ms McLean said it would "be astretch" to say there was a real threat of rape.[20] Mr Maindonald's sexual offending with the 15 year old girl is of a differentnature. She was only 15 and Mr Maindonald should not have relied on any apparentconsent from her to what he was doing. But there was nothing in the facts of thatoffending to suggest he forced himself upon her or tricked her into the sexual activitywhich occurred. The summary of facts referred to her getting into his bed after thesexual activity had occurred and of no further sexual activity taking place when thathappened. I note that the victim refused to provide a victim impact statement inrelation to that offending. Mr Prince said in evidence that, with such offending havingoccurred on only one occasion, it cannot be said that there has been a predilection orproclivity for such offending with young people. I agree. I am also not satisfied that,with regard to his having sexual connection with a person under the age of 16, therehas been a pervasive pattern of such offending.[21] I have considered the different instances of previous sexual offendingindividually. I have also considered whether, cumulatively, all that conduct andoffending, in all the relevant circumstances, means there has been a pervasive patternof serious sexual offending. I have considered whether, on that basis, it can be saidMr Maindonald displays an intense drive, desire or urge to commit a relevant sexualoffence and a predilection or proclivity for serious sexual offending. The assessmentI make is that his previous offending does not meet that threshold.The risk of future serious and relevant sexual offending[22] In her initial report, Ms McLean concluded that she considered there was avery high risk that Mr Maindonald would engage in relevant sexual offending within10 years of his release. She said "based on his past offending he may commit indecentacts, indecent assault, sexual abuse of a child, or possible rape if his threats to do so inthe past are considered".[23] There is a high risk that Mr Maindonald will be involved in some sort of sexualoffending in the future. Mr Prince accepted this but he considered the most likelyreoffending in the future is as to the way Mr Maindonald exposes himself indecentlyto other people. Such acts would not however be relevant sexual offences, as definedin the Act. The risk of such offending alone would not, in all the circumstances of thiscase, be a risk of sufficiently serious sexual offending as to justify the imposition ofan ESO.[24] I have regard to the circumstances of the rape threat referred to earlier. Thereis no evidence that Mr Maindonald has forced himself upon a woman when hisadvances have either been ignored or rebuffed.[25] Mr Prince said in evidence that, when he discussed with Mr Maindonald theoffending with the 15 year old, Mr Maindonald told him of how the victim had actedin that incident in a way which was consistent with her being sexually experiencedand a willing participant in what happened, at least once it had been initiated.[26] There is no evidential basis on which I can be satisfied there is a high risk thatMr Maindonald will in future commit rape.[27] There is some risk that Mr Maindonald may commit an indecent assault but,as already discussed, there has been no previous pervasive pattern of such offendingand there has been no repetition of that sort of offence since 6 March 2013. It wasalso Mr Prince's opinion, based on the discussion he had with Mr Maindonald on 8March 2018 over a period of two and a quarter hours, that Mr Maindonald appearedto have taken on board how seriously the Court would see any future offending.[28] In this regard, it is of some significance that, with his previous convictions forindecent assault and having unlawful sexual intercourse with a girl under the age of16, Mr Maindonald is now on a third strike warning. Should he offend in this manneragain, with the law as it currently is, he will be potentially liable for a sentence ofseven years' imprisonment without parole. Rationally, that should be a significantdeterrent that reduces the risk of such further offending, although I accept that, in theactual circumstances where he might be at risk of offending in this way, the third strikesanctions may not act as a deterrent.[29] Mr Maindonald has not previously been involved in any offending againstyoung children and there was no pattern of his offending in the way he did with the 15year old. Mr Prince noted, and I accept, there is no evidence in the reports as to MrMaindonald having a pattern of offending against children or young people. There isno evidential basis on which I can be satisfied that there is a high risk of his beinginvolved in the sexual abuse of a child in a way that would be a relevant sexual offence.[30] In her initial report, Ms McLean said she considered there was a very high riskthat Mr Maindonald would engage in "relevant offending" within 10 years of release.It was not however clear from her report that she considered whether and to whatextent in the past Mr Maindonald had been guilty of "serious" sexual offending or ofthe extent to which he was at risk of such offending in the future. In expressing heropinion that there was a very high risk that he would engage in relevant offending, shereferred to indecent acts and indecent assault, but did not acknowledge that the doingof an indecent act was not, of itself, a relevant sexual offence for the purpose of theAct. Her conclusion with regard to whether he had displayed "an intense drive, desire,or urge to commit a relevant sexual offence" concluded with her opinion "that MrMaindonald displays an intense drive, desire, or urge to commit sexual offences"without any expressed comment as to whether such offences would be either a relevantoffence or serious offence in terms of the Act.[31] Under cross-examination, Ms McLean said she had considered the sort ofsexual offending he had been involved in previously or which he was at risk ofcommitting in the future as serious because of features of that offending which wouldbe considered as aggravating in terms of the Sentencing Act 2002. In this regard, shesuggested that his sexual advances towards mental health patients were instances ofhis sexually offending against vulnerable people. As Mr Prince related, at the timesuch offences occurred, Mr Maindonald was also a mental health patient. There wasalso no evidence that such conduct involved any threat or attempt, on his part, tocommit what would have been a serious sexual criminal offence with another patient.[32] In her initial report, Ms McLean referred to various assessment tools which shehad used to assess the risk of further offending. There was nothing, however, in herdescriptions of the assessment tools which she had used to indicate whether they couldbe used to assess the risk of serious sexual offending or relevant sexual offending, asdefined in s 107B(2) of the Act, as against other sexual offences. Under cross-examination, Ms McLean conceded that the "risk parameters" she applied to make afinding of a high risk of future offending were based on past offending, including thenon-qualifying offences.[33] It follows from all of this that the Chief Executive has not satisfied me of thegrounds which must be made out for the Court to make an ESO.Consideration of other cases[34] I have carefully considered the judgments which the Court of Appeal and HighCourt came to in other cases which were brought to my attention. In her submissions,Mrs Grills relied heavily on parallels which she said existed between thecircumstances of this case and those that justified Downs J in making an ESO in ChiefExecutive of the Department of Corrections v Popata.20[35] There are similarities. As here, in Popata, the issue was whether or not therewas a pervasive pattern of serious sexual offending rather than just a pervasive patternof sexual offending and thus whether the future risk was as to serious sexual offendingrather than just sexual offending. Much of Mr Popata's earlier offending was of asimilar nature to that of Mr Maindonald in that it involved brief indecent touching ofstrangers.20 Chief Executive of the Department of Corrections v Popata, above n 16.[36] I nevertheless accept the submission of Ms Saunderson-Warner that there aresignificant differences between the two cases which explains why, in that case, thethreshold for making an ESO had been met, in contrast to my conclusions here.[37] Mr Popata was 46. He had 10 convictions for sexual offending, two forindecent assaults on a female aged 12 to 16, seven for indecent assaults on a femaleover 16 and one for unlawful sexual connection. His victims ranged in age from 15to 65. He had six convictions for male assaults female. The indecent assaults onvictims in a public place were of two 15 year olds and a 19 year old. In January 2000,he had walked into a house and ended up sitting beside and indecently touching avictim. The contact ended when the victim's partner came into the room. Three dayslater, he returned to this woman's house. Later in January 2000, he approached andindecently touched a 24 year old female in a post office. After this, Mr Popatacontinued to stalk that victim. On 14 February 2000, he went into another home,indecently assaulted a victim and subsequently attempted to return into her home.There were a number of offences in the same period involving female victims andbehaviour fairly described as "stalking".[38] On 17 February 2004 and while in prison, Mr Popata indecently assaulted a 65year old librarian. The assault was more serious than any which occurred with MrMaindonald. Mr Popata reached through the bars of his cell and grabbed the victim'sgroin.[39] On 30 March 2011, Mr Popata indecently assaulted a member of his family.With the assault, he undid her pants, rubbed her genital area and penetrated hergenitalia with his fingers. He placed a hand over her mouth to prevent her calling forhelp.[40] On 15 September 2016, Mr Popata again assaulted two female victims in a postoffice. On each occasion, there was an initial indecent assault and then a laterapproach where Mr Popata assaulted the victim again.[41] In short, Mr Popata's offending was more serious and more sustained than MrMaindonald's. Most importantly and in contrast to Mr Maindonald's offending, MrPopata's offending on a number of occasions involved further offending againstvictims who had rebuffed initial advances, and stalking.The need for treatment[42] There is a real risk that, on his release from prison, Mr Maindonald will commitfurther sexual offences that will have serious consequences for him and be distressingfor those who might be the victims or otherwise associated with such offending, eventhough the risk of such offending does not meet the threshold that would justify theimposition of an ESO. An ESO cannot, however, be justified just because it mightenable Corrections to ensure Mr Maindonald receives the counselling or othertreatment which he needs to reduce that risk.[43] If I had been satisfied that the threshold for the imposition of an ESO had beenmet, I would have had to consider whether, in the exercise of my discretion, an ordershould be made and also the appropriate duration of any such order.21 With regard toboth, it would have been relevant that I do not consider he has had the opportunity tobenefit from an individual treatment programme of the sort he needs.[44] In her report of 7 March 2017, Ms McLean said that, when Mr Maindonaldwas serving his last sentence, it was considered it would be more beneficial to him ifhe were to participate in individual treatment focused on his sexual offending. Shethen said he was "currently placed at the top of the individual psychologist's officewaiting list for individual psychological intervention". She noted he had not yet hadthe opportunity to engage in individual treatment with the Department of Corrections'psychologists' office. She said he "will require a detailed and robust release plan if heis to adequately manage his offending risk and mental health issues upon his return tothe community".[45] Ms McLean referred to Mr Maindonald being diagnosed with schizophrenia in2009 when he was 18, being involved with regular excessive use of alcohol since the21 The term of an ESO may not exceed 10 years and 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, (b)the seriousness of the harm that might be caused to victims, and (c) the likely duration of the risk.Section 107I(5).age of 16, and his having regularly used cannabis since the age of 12 or 13. Since2009, he had been a patient of the Southern District Health Board Forensic MentalHealth Services and has had access to outpatient services. He was admitted to WakariHospital on multiple occasions. He has twice been subject to compulsory treatmentunder the Mental Health Act 1992. Her report indicates that Mr Maindonald has beena difficult patient and there have been a number of periods when he has engaged poorlywith Mental Health Services.[46] In her report, Ms McLean referred to the three opportunities he had to engagein treatment with Department of Corrections' psychologists. The first occasion was in2015 when he was in the community and subject to release conditions. Thoseopportunities came to nothing initially because of Mr Maindonald's hostile responseand, when he did indicate he would cooperate, because his sentence came to an end.[47] The second opportunity was in September 2015 when he was subject tointensive supervision. He was initially unable to participate because of being underthe influence of cannabis. He failed to attend the second appointment. Nothing furtherwas possible because of his being charged with the offence for which he was sentencedto his last term of imprisonment.[48] While serving that sentence, Mr Maindonald was assessed for the Kia MaramaSpecial Treatment Unit but it was decided that he would not be suitable for group-based treatment for a number of reasons, including his engagement in sexuallyoffensive behaviour targeted towards female staff and the frequency activation ofparanoia within the group environment. It was because of this that it was consideredit would be more beneficial for him to participate in individual treatment focused onhis sexual offending.[49] In her updated report of 5 April 2018, Ms McLean said that, after her initialreport had been prepared, Mr Maindonald had attended 27 treatment sessions whileresiding at the Otago Corrections Facility and that it had been understood when sheprepared her first report that Mr Maindonald would be transferred to Wakari Hospitalwhere the DHB Forensic Services would provide oversight and management of hismental health symptoms. She said this did not happen during his period ofimprisonment "due to the unavailability of hospital beds coupled with theconsideration by Forensic Services that Mr Maindonald's mental health needs,accommodation needs, and his safety/risk related needs could be adequately met underthe ESO IM legislation (at least while he was subject to an interim ESO with intensivemonitoring)".[50] Ms McLean said that Mr Maindonald was nevertheless considered to haveparticipated in an appropriate manner throughout all treatment sessions and had madepoor-moderate progress over the areas which were being addressed. Those areas wereall to do with reducing the risk of further offending, mainly within the environmentthat Mr Maindonald was then in.[51] Ms McLean said that his treating psychologist had indicated that treatment hadbeen "paused" while Mr Maindonald was accommodated in Christchurch. Thisobviously followed on from the end of his prison sentence and his being housed in theaccommodation associated with Christchurch Men's Prison, available for offenderswho are subject to ESO and intensive monitoring. There has thus been no furtherindividual treatment which Corrections identified Mr Maindonald needed and nofurther work on bringing about the changes he needs to make to allow him to livesafely in the community.[52] I was informed during the hearing that Corrections' original intention had beenfor Mr Maindonald to be able to live in Dunedin during the period of an ESO inaccommodation and under the oversight of the community care organisation knownas PACT. In such a situation, he would also have been able and required to continuewith the individual offence-specific treatment which had been of benefit to him whilehe was still serving his prison sentence. I was however told during the hearing thatPACT does not have the sort of accommodation needed to allow Mr Maindonald to bein such an environment.[53] What has happened indicates that Mr Prince was justified in expressing hisconcern that an ESO might hinder, rather than enhance, the likelihood of MrMaindonald being successfully treated. Due to a somewhat difficult presentation, hemay not always be conducive to engaging and, if this were to occur, he could beconstrued as obstructive and not offered treatment. In his evidence, Mr Princeconfirmed that his fear was that the health authorities would be less inclined to assumethe responsibility for the mental health care which Mr Maindonald needs if, throughthe imposition of an ESO, the Department of Corrections has responsibility forremoving or minimising any risk to the public from his further offending.[54] Mr Prince suggested that it might be beneficial to impose an ESO, effectivelyon an interim basis, for a further year so that the Department of Corrections canprovide ongoing treatment as well as offence-specific treatment to him, with his levelof risk to then be reassessed at the end of that year. I cannot however subject him toan ESO for a period of even one year unless I have been satisfied that the grounds forthe making of such an order have been made out. I am not satisfied that they havebeen.[55] It appears from all of this that Mr Maindonald is at risk of further offending, atleast partly because, while he was doing his prison sentence, he did not receive forlong enough the sort of individual offence-specific intervention which he needed. Italso appears that, if he continues to receive that sort of treatment while in thecommunity, the risk for him and the public will be further reduced.Conclusion[56] The application for an ESO is declined.[57] Mr Maindonald's sentence of two years and four months ended on 29 January2018. Mr Maindonald is accordingly subject to at least the standard release conditionsfor a period of six months through to 28 July 2018. Because Ms McLeanacknowledged in her first report that Mr Maindonald would "require a detailed androbust plan if he is to adequately manage his offending risk and mental health issuesupon his return to the community", I have endeavoured to deliver my judgment in away that might enable the department to ensure that such a plan is in place andsanctioned by Mr Maindonald's need to comply with the standard release conditionswhen this judgment is issued.22 The Department of Corrections should be ensuring22 Parole Act 2002, s 18(2).that Mr Maindonald is living in a situation where he can still benefit from the sort ofindividual offence-specific treatment he was benefiting from at the end of his prisonsentence.Solicitors:RPB Law, DunedinSA Saunderson-Warner, Barrister, Dunedin.