THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v THOMPSON [2018] NZHC 1821

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v THOMPSON [2018] NZHC 1821[18 July 2018]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES ORIDENTIFYING PARTICULARS OF THE COMPLAINANTS.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-28[2018] NZHC 1821THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONSvSCOTT SIMEON THOMPSONHearing: 6 and 18 July 2018Appearances: S C Carter for the CrownJ M Robertson and J Bonifant for the DefendantJudgment: 18 July 2018ORAL JUDGMENT OF GRICE J(Extended supervision order)[1] The Chief Executive of the Department of Corrections applies for an extendedsupervision order against Mr Thompson. The maximum that can be sought is10 years.1[2] Mr Thompson is presently in prison as he was sentenced on 2 December 2003to a total of 14.5 years' imprisonment with a minimum non-parole period 9.5 years.2Mr Thompson's release date is 1 August 2018.1 As per s 107A(c) of the Parole Act 2002, the order may last for not more than 10 years at a time.2 R v Thompson HC Hamilton T.025644, 2 December 2003.[3] The mother of the complainant from the 2002 offending made oral submissionsat the hearing. She read out a statement.3 She opposes Mr Thompson being releasedwithout an extended supervision order.Mr Thompson's relevant sexual offending[4] Mr Thompson's first instance of sexual offending occurred in 1997 (the 1997offending). He was convicted of two charges of sexual violation, both pertaining to awoman he had a sexual relationship with at that time.[5] The first conviction for sexual violation by unlawful sexual connection relatedto an incident when, following consensual intercourse, Mr Thompson inflicted injurieson the complainant causing significant lacerations to the victim's vagina requiringhospitalisation and surgery.[6] His second conviction for sexual violation by rape involved an incident thatwas more serious in nature as it involved prolonged abuse, threats of violence andforced anal intercourse. The complainant collapsed and was taken to hospitalunconscious. At his sentencing, the Judge referred to Mr Thompson's "dominatingand arrogant" conduct in general through the period in question.4 As a mitigatingfactor, Mr Thompson submitted his partner had provoked him through what heregarded as inappropriate conduct with two people he knew. He was sentenced to nineyears imprisonment for those charges, as well as two charges of male assaults female.[7] In 1998 when Mr Thompson was still a serving prisoner for the aboveoffending, he commenced a relationship with his new partner which lasted until eightmonths after his release in February 2002. During the course of that relationship,Mr Thompson subjected his new partner to significant violence on a number ofoccasions, mainly triggered by domestic incidents (for instance, the children's untidybedroom or her refusal to buy him a car).3 Leave was granted for the complainant to make oral submissions at the hearing; Parole Act 2002,s 107H(5).4 R v Thompson HC Rotorua T.88/96, 4 June 1997 at 2.[8] Mr Thompson was also convicted of two charges for sexual offending againsthis new partner's 7-year-old daughter. Mr Thompson's conviction for indecent assaulton a female under 12 involved him touching her genitals when she was in bed withher mother and Mr Thompson. The charge of sexual violation by unlawful sexualconnection occurred immediately after the offending discussed above, when MrThompson left the room with the complainant and forced the her to suck and rub hispenis. The offending stopped when the child's mother came out of the bedroom.Mr Thompson told the child not to tell her mother or else he would give her a hiding.He gave the child money and bought her lollies. The sentencing judge said:5h) You are assessed as being at a high risk of re-offending. Yourmotivation and readiness to change is assessed as low as you have re-offended while on parole. You have, to a large degree misrepresentedyourself to your parole supervising probation officer and you have nottaken responsibility for any of the current matters. You were reluctantto be involved in the interview process.[9] Preventative detention on the 2002 offences was considered but not imposedin 2003.Eligible offender[10] There is no dispute that Mr Thompson is an "eligible offender" withconvictions for "relevant sexual offences".6[11] Mr Thompson has convictions for four "relevant offences"; three convictionsfor sexual violation (two by way of unlawful sexual connection and one by rape) andone conviction for indecent assault with a female under 12.7 Mr Thompson is alsopresently serving a sentence of imprisonment. Therefore, he is an "eligible offender".8The legislative framework[12] The Chief Executive of Corrections may apply for an extended supervisionorder before the expiry of a defendant's sentence or the lapsing of a previous order.95 R v Thompson above n 2, at [6(h)].6 Parole Act 2002, ss107B(2) and 107C.7 Section 107B.8 Section 107C.9 Section 107F; Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060 atThe application must be accompanied by a report from a health assessor addressingspecified matters.10 The Court cannot "rubber stamp" health assessor's reports.11 TheCourt must explain why the evidence is accepted and make a conclusion based on anindividualised assessment, taking into account all of the relevant factors.12[13] An extended supervision order allows the imposition of a penalty to restrict anindividual's freedom because of what a court considers they might do in the future. Itis not a penalty for past offending.13[14] The order may be varied in certain circumstances by the Parole Board and itmay be cancelled by the Court at any time on the grounds that the offender does notpose a high risk of sexual offending within the remaining term of the order.14[15] The legislation also provides for the standard terms of an order and allows theimposition of intensive monitoring conditions.15 The Parole Board may imposespecial conditions on an offender.16 These include residential restrictions or intensivemonitoring within the first 12 months of the order, a requirement to participate inrehabilitation programmes, restrictions on the use of drugs and alcohol and electronicmonitoring.[16] The Parole Board must review any "high impact" condition of an extendedsupervision order.17 The Court must also review an extended supervision order after15 years of consecutive orders and every five years after that date.18[17] An order places considerable restrictions on the freedom of the offender. Imust be satisfied there is jurisdiction to make the order, and if there is, that an order iswarranted on the basis of the evidence.19[18].10 Section 107F.11 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32].12 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].13 Chief Executive of the Department of Corrections v Thorpe [2017] NZHC 2559 as per Palmer J at[12].14 Parole Act 2002, ss 107M and 107O.15 Section 107IAC.16 Sections 107K and 107IA.17 Section 107RB.18 Section 107RA.19 Chief Executive of the Department of Corrections v Martin, above n 9, at [23].[18] The Court of Appeal in Alinizi set out a three-step process in its considerationof the imposition of an order:20(a) The Court must determine whether the offender has, or has had apervasive pattern of sexual or violent offending;(b) The Court must make a specific finding as to whether the offendermeets the qualifying criteria set out in s 107IAA;(c) If those criteria are met, the Court must make a determination about therisk of the offender committing a relevant sexual or violent offence.[19] The Court of Appeal in McDonnell noted that there is no burden of proofinvolved in an application for an order but rather the Court must be "satisfied" for thepurposes of s 107I(2).21 A Court simply "makes up its mind" as it does in preventativedetention applications.22The arguments[20] The Department makes an application for an extended order in relation toMr Thompson on the basis that he "has or has had a pervasive pattern of serious sexualoffending" and that "there is a high risk that the offender will in future commit arelevant sexual offence".23 The Department argues that he meets the four mandatoryand conjunctive requirements set out in s 107IAA(1)(a) to (d), and is at a high risk ofreoffending.[21] Mr Thompson says the statutory requirements for the imposition of anextended supervision order are not met in the following respects:20 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [13].21 McDonnell v Chief Executive of Department of Corrections [2009] NZCA 352, [2009] 8 HRNZ770 at [71] – [75].22 At [72].23 Parole Act 2002, ss 107I(2)(a) and 107I(2)(b).(a) The fundamental threshold has not been met because the Court cannotbe satisfied, as required, that Mr Thompson has or has had a pervasivepattern of serious sexual offending;24 and/or(b) That the four mandatory and conjunctive factors in s 107IAA, of whichthe Court must be satisfied before it can go on to determine there is ahigh risk of reoffending, are not met.Does Mr Thompson have or has had a pervasive pattern of serious sexualoffending?[22] The first issue this Court must consider before it is able to impose an extendedsupervision order is whether the offender has, or has had, a "pervasive pattern ofserious sexual or violent offending".25 There is no evidential burden in terms of thepre-requisites upon which I must be satisfied under that section. I must come to ajudicial decision on the evidence.26[23] In Martin, Wylie J noted that this question should be read in light of s 107I,which notes the purpose of an extended supervision order is to "protect members ofthe community from those who, following receipt of a determinative sentence, pose areal and ongoing risk of committing serious sexual offences". 27[24] The Department brings this application on the basis that Mr Thompson had apervasive pattern of serious sexual, rather than violent, offending. At the outset of thehearing the Department sought to extend the ambit of its application by submittingthat Mr Thompson's offending indicated there was a pervasive pattern of violentoffending. However following submissions on behalf of Mr Thompson, it concededthat relying on the "violent offending" alternative was outside the scope of theapplication as filed. It therefore withdrew its submission.24 Section 107I(2)(a).25 Parole Act 2002, s 107I(2)(a); Chief Executive of the Department of Corrections v Alinizi, aboven 20, at [13].26 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [12].27 Chief Executive of the Department of Corrections v Martin, above n 9, at [17]; Parole Act 2002, s107I(a)(i).[25] I have already summarised Mr Thompson's relevant sexual offending. He hasbeen found guilty of four relevant sexual offences arising from three separateincidents. The first two were committed in 1997 and involved considerable sexualviolence inflicted on his adult partner. The second two were committed in 2003 andinvolved sexual activity with a seven-year-old child in a domestic setting, with a threatby Mr Thompson to hurt her if she told her mother, his new partner.[26] When Mr Thompson was sentenced for his 2002 offending, the Judgecommented that Mr Thompson lacked any remorse in relation to the previous 1997sexual offending and that he was assessed at high risk of re-offending. His readinessto change was classified as low.28 The Judge specifically noted Mr Thompson refusedto cooperate with the two psychiatrists who had been commissioned to provide reportsto the Judge for sentencing in view of the option of preventative detention.29 TheJudge in consideration of preventative detention due to that lack of cooperation. TheJudge said he was not assisted in assessing future risk of either sexual or violentoffending through these reports. Despite this, he concluded there was no discerniblepattern in the qualifying sexual offending at that point. Nevertheless, he consideredthere was a clear indication of a tendency by Mr Thompson to commit violent, violentsexual or non-violent sexual offending insofar as the reports were concerned. Theexact nature and circumstances of the offending was, however, a matter of conjecture.[27] Mr Thompson had, by the time of that sentencing, completed a number ofprogrammes without any apparent change to his behaviour or otherwise. He continuedto regard himself as a victim and tried to shift the blame for the offending to the victimand others.30 The Judge said:31j) The conclusion is that these offences collectively (and to some extentseverally), represent a sinister pattern of physical and psychologicalabuse by you against your then partner, and that the sexual offendingagainst the infant complainant further exacerbates your alreadyprecarious position. You understand that the Court was looking atpreventive detention. Overall you impressed the Probation Officer asmanipulative and lacking any insight into your own propensity todamage and negatively impact the lives of others. The28 R v Thompson, above n 2, at [6(n)].29 At [28].30 At [6(i)].31 At [6(j)].recommendation by the probation officer was, not surprisingly,imprisonment.[28] The two incidents in 1997 were seen as connected. They showed anindifference to whether or not the victim his partner consented and the effect of theoffending on her. In addition, Mr Thompson blamed her and acted in a dominatingand arrogant manner toward the victim generally.32[29] The 2002 offending was against a backdrop of domestic violence, although thatviolence had been committed against the child's mother. This is not an applicationbased on violent offending, nevertheless this background remains relevant. His newpartner had been left with injuries ranging from black and swollen lips to brokenfingers and a broken rib. At least one assault happened in front of one of the children.On another occasion, an outbreak of violence by Mr Thompson was precipitated bythe children's toys being untidy. Another substantial beating of his partner wastriggered by her refusal to buy him a car. In the midst of administering this beatingMr Thompson took a child to work and came home extremely angry because of whathe thought the mother had told the child. In that incident Mr Thompson broke thechild's mother's ribs and threatened to kill her and the children.[30] In the 2002 sexual offending Mr Thompson chose a child victim who wasunder his domestic control. He was indifferent to her age and inability to consent. Hedid not consider the emotional impact of the offending on the child. The sentencingnotes disclose subsequent disturbing changes in her behaviour. Mr Thompson stillrefuses to discuss the offending against that child. To that extent the health assessorsin this case face similar problems to that of the psychiatrist at the sentencing in 2003.Nevertheless, the present health assessor's reports by Mr Fourie contain far more thaninformation than was obviously able to be gleaned from that of the psychiatristengaged before Mr Thompson's 2003 sentencing. I have had the benefit of morethorough and extensive information than was before the sentencing Judge. I had threereports from two health assessors before me. Mr Fourie's initial report was datedNovember 2017 and was updated in June 2018. Mr Riley's report was requested byMr Thompson and is dated May 2018. The health assessors are appropriately qualified32 R v Thompson, above n 4, at 2.psychologists in terms of the legislation. No issue has been taken with either of theirqualification to provide the reports.[31] In his 9 November 2017 report, Mr Fourie says:Mr Thompson's offending history highlights the indiscriminate nature ofpotential future victims of sexual re-offending. Future victims of sexualoffending could be an adult female intimately known to him or against afemale child familiar to him or for whom he has parental responsibilities. Theabsence of more detailed information about the child sexual offence providesa challenge to formulate a detailed offence pathway and to provide a likely re-offence scenario. The following statement should therefore be consideredtentative. It is likely that a future sexual offence against a child could becommitted as a means for instant sexual gratification in order to satisfy hissexual needs against a vulnerable victim.[32] The Court is entitled to consider all of the evidence it has before it.33 Theoffending occurred in domestic situations, using threats of violence,34 and in situationswhere Mr Thompson was in a position of dominance and control over the victim.[33] In CJW, Venning J said:35I am satisfied that there is evidence that Mr W has an intense drive or urge tocommit violent assaults against others. Whether that urge or drive isunleashed will depend on the situations that Mr W finds himself in.[34] Although these comments were made in the context of considering whether theoffender displayed an intense urge or drive to commit the relevant offences, it appliesequally here to confirm that the relevant offending cannot be divorced from thecircumstances. Here, Mr Thompson's sexual offending cannot be seen in isolationfrom the domestic circumstances in which it is likely to occur. I have set out thosecircumstances above. I am satisfied that Mr Thompson has or has had a pervasivepattern of serious sexual offending.33 Parole Act 2002, s 107H(2).34 R v Thompson, above n 4, at 2; R v Thompson, above n 2, at [5(j)].35 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [35].Are the criteria in s 107IAA(1) of the Parole Act 2002 met?[35] In order to impose an extended supervision order, I must be satisfied of eachof the mandatory prerequisites set out in s 107IAA(1) of the Parole Act 2002 are met.Section 107IAA(1) provides: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.[36] These are in effect jurisdictional conditions that must be present before findingMr Thompson poses a high risk of committing a relevant sexual offence.Does Mr Thompson display an intense drive, desire or urge to commit a relevantsexual offence?[37] Under s 107IAA(1)(a), I must be satisfied Mr Thompson "displays an intensedrive, desire or urge to commit a relevant sexual offence".[38] This section requires a demonstration of an intense drive, desire or urge to bepresent now, rather than previously.36 The assessment must be undertaken as at thedate of the hearing, confirmed by what has occurred in the past, in an endeavour toanticipate what might happen in the future.36 Chief Executive of the Department of Corrections v Martin, above n 9, at [38].[39] The Court of Appeal in Alinizi confirmed that the word "displays" (as it appliesto aspects of a person's personality traits and behavioural characteristics in the contextof an extended supervision order) requires that the relevant traits or behaviourcharacteristics to be present, but does not require that they are externally manifestedat the time of the application.37[40] Mr Thompson argued that his sexual offending never came from a place ofdrive, desire or urge to commit sexual offences – it rather came from a drive to bevindictive, humiliate and impose his will through dominance. Mr Thompson alsopoints to Mr Fourie's comments that the evidence of an intense drive, desire or urgeto commit the relevant sexual offence is mixed – he was unable to state withconfidence that Mr Thompson did have an intense drive to commit relevant sexualoffences.[41] Again I refer to Mr Fourie's comments in his November 2017 report:27 Mr Thompson's offending history highlights the indiscriminate natureof potential future victims of sexual re-offending.That Future victims of sexual offending could be an adult femaleintimately known to him or against a female child familiar to him orfor whom he has parental responsibilities.In the absence of more detailed information about the child sexual itis difficult to assess the likely circumstances, but Mr Fourie said itcould be sexual gratification. It is likely that a future sexual offenceagainst a child could be committed as a means for instant sexualgratification in order to satisfy his sexual needs against a vulnerablevictim.[42] He went on to say:28 The offender's demonstration of an intense drive, desire, or urgeto commit a relevant sexual offence.The historical sexual offending against his then partner wasperpetrated in the context of intimate partner violence, likelyprecipitated by his reliance on control through violence andretribution for perceived wrongdoing. It is not considered to havebeen due to an intense sexual drive but rather a vindictive drive tohumiliate and to impose his will through dominance. The writerconceptualised the nature of his historical sexual offence as anextension of Mr Thompson's personality traits triggered by mistrust37 Chief Executive of the Department of Corrections v Alinizi, above n 20, at [27].and his need to control and dominate. The index violence victimoffence elicited similar emotional reactions in Mr Thompson withouthim resorting to sexual violence against her. However, during theindex offending period Mr Thompson sexually offended against onechild victim on one occasion. Overall, in the writer's opinion there ismixed evidence for the presence of an intense drive, desire, or urge tocommit a relevant sexual offence. The writer is therefore unable tostate with confidence that Mr Thompson has an intense drive tocommit a relevant sexual offence.[43] It appears that the nature of Mr Thompson's sexual offending is an extensionof his personality traits which are triggered by mistrust and a need to control anddominate. Section 107IAA(1)(a) does not assess motivation, rather the Court is toassess the offenders present drive, urge or desire to commit relevant sexual offences.Therefore, while his motivation to offend may be related to a vindictive drive tohumiliate and to impose his will through dominance over vulnerable victims in adomestic situation, this does not diminish or change the fact that he may have urge ordrive to commit relevant sexual offences. There are many motivations that triggersexual offending. Domination and control are common motivations for suchoffending.[44] In Mr Riley's May 2018 report, he noted that Mr Thompson was not willing todiscuss matters relating to the sexual aspect of his most recent offending. He said: He made it clear that he was not willing to discuss matters pertaining to thesexual aspect of his most recent offending, which he has maintained to otherprofessionals who attempted to engage him in the assessment process. Heprovided his reason for this as concerns which he had about the process of histrial, and particularly matters to do with the prosecution's failure to disclosecertain matters, which he considered disadvantaged him. He has madecomment to others that he has taken the opportunity to raise this matter withother counsel and they have indicated to him that his contention is not withoutmerit. Notwithstanding Mr Thompson's decision to refrain from anydiscussion of his sexual offending, he appeared to answer my questionsdirectly, and his answers were consistent with information documented on hisfile, and I did not feel that he was making significant efforts to portray himselfin a positive light, nor to excuse any aspects of his behaviour which have beendocumented on institutional files.[45] Mr Thompson gave the reason for his failure to discuss the child sexualoffending to concerns he had about the process of the trial and matters to do with theprosecution's failure to disclose certain matters which he considered disadvantagedhim. This is consistent with the reasons outlined by Mr Fourie in his report.Mr Thompson also reported to Mr Riley that he had disclosed at a group therapysession and that the same information that had been taken out of the session. It resultedin an incident which he had to defend himself against a violent attack from a fellowprisoner. He said that was why he would not engage in the group counselling sessionswhich were offered to him. I take into account these reasons, but do not consider theyare sufficient to restrict my ability to consider Mr Thompson's lack of cooperationwith the preparation of the reports insofar as his failure to discuss child sex offending.[46] The Court of Appeal in Alinizi commented on the difficulties faced by a Judgewhen an offender would not cooperate with the report writers.38 The Court of Appealacknowledged that health assessor reports are key when looking at whether anoffender has an intense drive to commit the relevant sexual offence.39 This is becausethe psychologist relies on self-reporting and subsequent behaviour to establish if anintense drive is still present and offenders that deny their offending are unlikely to self-report. They haven't had an opportunity, being in prison, to display an intense driveto reoffend. If there has been a lack of compliance with the assessment process thenit is easy to 'fool' a court.[47] Under s 107H(3) of the Parole Act 2002, I am able to consider an offenderslack of co-operation with the preparation of the health assessors report. I must takeinto account any reasons given for the refusal to cooperate with the preparation of thehealth assessor's report.40 I have dealt with these above.[48] Mr Thompson has refused to acknowledge his sexual offending against hisadult victim. He refuses to acknowledge, although does not deny, his offending againstthe child. This refusal to discuss his offending, particularly when it comes to assessinghis urge, desire or drive to relevantly sexually offend, presents difficulties for theCourt. However, Mr Thompson has four convictions for three separate instances ofsexual offending. This supports the inference that Mr Thompson has an urge or desireto sexually offend. He has failed to acknowledge his offending, he has failed to seektreatment specifically for his sexual offending and therefore he still is likely possesses38 At [23] - [28].39 Chief Executive of the Department of Corrections v Alinizi, above n 8, at [23] – [28].40 Parole Act 2002, s 107H(3).the characteristics that he had when he originally committed the offences. MrThompson, through his refusal to discuss his sexual offending, has been unable toshow the Court that he does not still have a drive, desire or urge to relevantly sexuallyoffend.[49] Further, Heath J in Wrigley noted that "past behaviour is the best predictor offuture behaviour. The nature, extent and duration of the offending that occurred in theperiod between 1997 and 2002 evidences a pattern of behaviour that is indicative ofan urge or desire to offend in that way."41 A matter of months after getting out ofprison in 2002 for sexual offending, Mr Thompson sexually offended again. As inWrigley, this supports that Mr Thompson presently has a drive, urge or desire tocommit relevant sexual offences.[50] I acknowledge that is difficult for Mr Thompson to demonstrate the skills andinsights gained through the one to one counselling he has received, as he has not beenable to demonstrate its effects in the circumstances in which his offending occurs.However, this difficulty has been amplified by his refusal to discuss his offending.[51] The situation remains that Mr Thompson continues to display the intense drive,desire or urge to commit a relevant sexual offence. This drive is not externallymanifested, in part due to the of lack of opportunity Mr Thompson has had to showhis ability to cope as he has refused to co-operate with the report writers and ispresently in prison. For the reasons given above I am satisfied that this prerequisitehas been met.Does Mr Thompson show a predilection or proclivity for serious sexual offending[52] Under s 107IAA(1)(b), I must be satisfied Mr Thompson "has a predilectionor proclivity for serious sexual offending".[53] "Proclivity" for serious sexual offending has been interpreted to encompassthe concept of a pattern.42 The offending must be serious and at the higher end of the41 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [40].42 Holland v Chief Executive of the Department of Corrections, above n 26, at [41].range in order to justify an order.43 A "predilection" is more akin to something like apreference or particular liking and proclivity is "an inclination towards somethingconsidered morally wrong, such as sexual offending".44[54] I put to one side Mr Thompson's earlier offending, which was for drivingoffences and other minor offending. Mr Thompson argued that these offences indicatehe does not have a predilection for serious sexual offending as most of his offendinghas been non-sexual. I note that an offender can have more than one predilection interms of offending, and therefore the fact that he has been convicted of other types ofoffending does not detract from the fact that he may have a predilection for serioussexual offending.[55] Mr Fourie reached the conclusion that Mr Thompson showed the requisiteproclivity. He said:Mr Thompson's overall history does not suggest a clear preference for serioussexual offending. Although restricted by long periods of incarceration he hasbeen able to form and maintain age appropriate sexual relationships andreported a preference for such sexual relationships. The rapid rate of sexualre-offending after being released on parole against a different victim typecould indicate an inclination to commit a serious sexual offence.Mr Thompson's unwillingness to discuss his behaviours and cognitionsleading up to and during the child sexual offending and denial of the adultsexual offences did not pose a challenge during the assessment. However, thewriter is of the opinion that the versatility in victim type and the rapid rate ofsexual re-offending following release does provide evidence of proclivity forserious sexual offending.[56] I am satisfied that Mr Thompson meets the prerequisite of showing apredilection or proclivity for serious sexual offending. The rapidity of his sexualoffending upon his release from prison for the 1997 sexual offending shows a clearinclination toward serious sexual offending.Does Mr Thompson have limited self-regulatory capacity?[57] Under s 107IAA(1)(c), I must be satisfied Mr Thompson "has limited self-regulatory capacity".43 At [44].44 Chief Executive of the Department of Corrections v Wrigley, above n 40, at [44].[58] Mr Thompson had attended 32 sessions with a psychologist since May 2017and has had 8 treatment sessions with a senior psychologist since November 2017.Treatment appears to be helping him, but it was not yet complete at the time Mr Fourieinterviewed him in June 2018. There are indications that Mr Thompson has becomebetter at self-regulation and his behaviour in custody has significantly improved overhis behaviour in earlier years. Mr Thompson is showing improvement in hisaccommodation in the self-care units which involves living in a flatting situation, hiscooperation with other offenders and his work ethic are also improving. This has beenrecognised by prison staff and in his work place. He travels into the communityeveryday by bus and associates with others at his work place.[59] Nevertheless, Mr Fourie was of the view that despite Mr Thompson's level ofself-regulatory capacity improving, it remained insufficient. The difficulty is that it ishard to assess Mr Thompson's self-regulatory capacity in relation to sexual offendingwhen he is not faced with the circumstances that have triggered his offending in thepast.[60] All of Mr Thompsons previous sexual offending has occurred within thecontext of a domestic setting. While he has shown improvement in his ability tocontrol his life overall and in how he interacts with others, the last time he was releasedhe reoffended quickly. The difficulty also remains that Mr Thompson does not wantto discuss his child sex offending, making an assessment of Mr Thompsons self-regulation limited in this respect. No questions have been answered about why heengaged in the offending and under what circumstances it might occur again.[61] Based on the evidence before me, I am satisfied that Mr Thompson continuesto have a limited self-regulatory capacity.Does Mr Thompson accept responsibility, show remorse, concern or understanding ofthe impact of his offending on victims?[62] Under s 107IAA(1)(d), I must be satisfied Mr Thompson displays both oreither "a lack of acceptance of responsibility or remorse for past offending" and/or "anabsence of understanding for or concern about the impact of his or her sexual offendingon actual or potential victims".[63] Mr Thompson does not accept that he sexually offended against the child.Mr Fourie noted that he also has limited understanding of the harm he has caused tohis victims. Mr Thompson does not deny this is the case. Mr Riley noted that it wasdifficult for Mr Thompson to show empathy to victims because of his own earlyexperiences.[64] In the circumstances, I am satisfied that he does not accept responsibility ornor does show remorse, concern or understanding of the impact of his offending onhis victims.Is there a high risk that Mr Thompson will in the future commit a relevant sexualoffence?[65] The final limb of the assessment is whether the Court is satisfied that there isa high risk that Mr Thompson will, in the future, commit a relevant sexual offence.[66] The Department refers to Mr Fourie's key findings in relation to the riskassessments. In Mr Fourie's November 2017 report, he noted that Mr Thompson hadcompleted an earlier psychological assessment, in which the Millon Clinical MultiaxalInventory – third edition (MCM-III) was completed.. Mr Fourie noted the measurewas not re-administered in Mr Thompson's most recent assessment as personalitytraits are considered to be enduring and therefore the results were considered valid forthe present purposes. The results indicated that Mr Thompson's scores pointed tohighly clinically significant personality features relating to avoidance, sadistic(aggressive) masochistic (self-defeating) and paranoid personality traits. Thesepersonality traits may present as pervasive suspiciousness and a tendency to attributehostile motives to others above what the evidence warrants. This, Mr Fourie said, maylead to pre-emptive actions in which they inflict hostile punishment in response to aperceived threat. Mr Fourie considered these personality descriptions were consistentwith Mr Thompson's presentation during the assessment, his self-report, custodialbehaviour and offending history.[67] The RoC*RoI actuarial risk measurement was also administered. This is astatic risk measurement, meaning it relies on factors that are unchangeable byindividual effort (such as criminal history). It indicated Mr Thompson was at alow/moderate risk of imprisonment within five years of release. However, that riskmeasure did not incorporate Mr Thompson's Australian conviction history andMr Fourie considered it under represented risk level and therefore was not consideredan accurate tool for this assessment.45[68] The STATIC-99R tool was also administered to measure the static risk ofsexual recidivism. It relies on demographic and criminal history information. MrThompson's score on this measure placed him in the above average risk category forbeing charged or convicted of another sexual offence.[69] A further measure used was the Violence Risk Scale, Sexual Offender Versionand (VR:SO) in which Mr Thompson was assessed overall as being in the high-riskcategory.[70] Both the STATIC-99R and the VRS:SO measures take into accountMr Thompson's age. Mr Thompson will be 50 next year. The estimated sexualrecidivism rate for the high-risk group with the same total VRS:SO score asMr Thompson after five years was 19.5 per cent and at ten years was 30 per cent.Mr Fourie in his evidence confirmed that given Mr Thompson's age, the risk of hissexual reoffending, as indicated by the research, would decrease over the ages of 50to 59. He said the risk at two to three years beyond the age of 50 was very high butthere remained a high risk for up to five years after reaching 50.[71] A further risk assessment that was used to assess Mr Thompson's risk ofintimate partner (domestic) violence recidivism, was the Ontario Domestic ResultRisk Assessment (ODARA). On this measure Mr Thompson was assessed as being inthe highest risk category.[72] Mr Fourie summarised his views based on the multi method assessment ofMr Thompson's risk of further relevant reoffending and clinical indications as follows:24 In summary, based on a multi-method assessment of Mr Thompson'srisk of further relevant offending using STATIC-99R, VRS, and VRS:45 Mr Riley challenged this view, as he says the incorporation of the Australian convictions mightnot have the level of impact on the statistical model as assumed. However, he commented that itwas "true to a degree".SO ratings, ODARA, and noted clinical factors in particular hispersonality profile, it is considered that there is a high risk ofMr Thompson committing a further relevant sexual and/or violentoffence while in the community. However, due to Mr Thompson'shigh level of suspiciousness and a tendency to attribute hostilemotives onto others his risk could increase to Very-High in an intimaterelationship low on trust. Such a situation could lead to a desire tocontrol and exert his dominance through violence or to inflict physicalpunishment in the face of perceived wrongdoing.25 Risk parameter statement: Analysis of static and dynamic risk factorsalong with specific information related to his offence pattern, supportsthe following risk parameter statement:26 It is considered that there is a high risk that Mr Thompson will engagein relevant sexual offending within ten years of release and a high riskof committing a violent offence. Mr Thompson is most likely to re-offend against an intimate partner and offending could be both violentand/or sexual offending. Factors precipitating potential re-offendingcould be Mr Thompson distrusting his partner or perceiving her to beunfaithful or untrustworthy. Mr Thompson risk could increase toVery-High in an intimate relationship low on trust. Such a situationcould lead to a desire to control and exhort his dominance throughviolence or to inflict physical punishment in the face of perceivedwrongdoing. He is also likely to engage in threats to kill his partneror her children.27 Mr Thompson's offending history highlights the indiscriminate natureof potential future victims of sexual re-offending. I again refer toMr Fourie's November report about the future victims of sexualoffending could be an adult female intimately known to him or againsta female child familiar to him or for whom he has parentalresponsibilities. The absence of more detailed information about thechild sexual offence provides a challenge to formulate a detailedoffence pathway and to provide a likely re-offence scenario.[73] In Mr Fourie's June 2018 updating report he notes that Mr Thompson had, bythat stage, received eight additional treatment sessions with a senior psychologist sincethe November report. In total Mr Thompson received 32 treatment sessions since hecommenced the psychological treatment in May 2017. The report that Mr Fouriereceived from Mr Vasbenter, the psychologist delivering the treatment sessions, waspositive. However, Mr Fourie said that Mr Thompson's denial of culpability for thehistorical sexual offences and his unwillingness to either deny or acknowledge thechild sex offences precluded the treating psychologist from addressing some of the sexoffending specific dynamic risk factors in treatment. He said: Mr Vasbenter formulated the historical adult sexual offence as an extensionof intimate partner violence rather than primarily motivated by deviantpreference. The focus and treatment has therefore been on an emotionregulation, relationship and interpersonal skills. Mr Vasbenter describedtreatment as not yet completed and recommends treatment to continue in thecommunity following release. Mr Thompson said he was willing to continuewith treatment and could see the benefit of doing so.[74] Mr Fourie noted:(a) Mr Thompson had continued with a trajectory of improved behaviourin less restrictive environments such as the selfcare unit and theassociated activity such as shopping and working in the community.(b) Mr Thompson's treatment and the associated behaviouralimprovements indicate some progression on following dynamic riskfactors in relation to the violent risk scale bracket (VRS).[75] Mr Fourie concluded:11 Mr Thompson's behaviour and proactive attitude towards change ispromising, however these change behaviours needs to be observedover a prolonged period across a variety of settings whereMr Thompson is exposed to relevant risk scenarios in order to take agreater mitigating effect on his risk to warrant a reduction in hisassessed risk.12 In summary, the assessment of Mr Thompson's risk, as outlined in theHealth Assessment dated 9 November 2017, is considered to remainaccurate at this time.13 Mr Thompson's high level of suspiciousness and a tendency toattribute hostile motives onto others his risk could increase to "very-high" in an intimate relationship low on trust. This author maintainshis opinion that in these specific circumstances Mr Thompson's riskcould escalate to very-high.[76] Therefore, Mr Fourie did not alter his views as expressed in his Novemberreport including those relating to Mr Thompson's risk measures relevant to the mattersthat he was required to report on under s 107IAA.[77] While Mr Riley, the other health assessor, had some criticism of Mr Fourie'sassessment of Mr Thompson according to the VRS:SO measure used, he noted that itwas an entirely appropriate instrument for use in such cases. He also commented therewas a level of unknown ambiguity and until such time as Mr Thompson cooperateswith such the process, regarded the measure as at best, tentative.[78] Mr Riley also emphasised that an issue that required consideration in makingan assessment of Mr Thompson's risk is his advancing age. Consistent findings incriminology is that criminal behaviour decreases as an offender ages and sexualrecidivism is no exception. While the assessment tools were the subject of criticismby Mr Riley he did not suggest the measures used were inappropriate.[79] Mr Riley notes that it was hard to assess Mr Thompson's future risk ofoffending as he had declined to enter into a detailed assessment which involved anexamination of his feelings and impulses associated with the area of his sexualoffending and violence. This constrained his report.[80] Mr Thompson will not discuss with psychologists on the sexual offending withthe child. It means that the risk assessment is based on incomplete information. Thereason that Mr Thompson advances for not providing the information is that he wishesto preserve his position in relation to some future, unspecified legal attack on his 2003conviction. Mr Thompson claims he is looking at the possibility of taking further courtaction in relation his offending. It is not clear what further steps he will be taking inthis regard. He exhausted his appeals against conviction through the Court of Appealas well as the Supreme Court.46[81] The health assessors have made assumptions given Mr Thompson's failure toco-operate. Those assumptions must be made and relied upon in reaching theconclusions in this decision. It will be clear from the judgment I have relied to a largeextent, although not exclusively on Mr Fourie's report.[82] I agree with the Department, I am satisfied there is a high risk that MrThompson will commit a relevant sexual offence.Conclusion as to imposition of extended supervision order[83] I am satisfied that grounds are made out for the imposition of an order on theevidence currently before me.46 R v T [2006] 2 NZLR 577 (CA); Thompson v R [2006] NZSC 3.How long should the order last?[84] Section 107I(5) of the Parole Act 2002 provides:(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.[85] The order must be made "for the minimum period required to achieveprotection of vulnerable members of the community".47 The maximum period of anextended supervision order is ten years.[86] The Court is not concerned with ensuring the duration of an order isproportionate to the offences that have already been committed, but rather look toensure the order is proportionate to the risk posed by the offender. The Court said inR v Peta:48[10] While the statement is correct as far as it goes, proportionality inrelation to likely future offending is a relevant factor in setting the term of anESO in the same way that there is an element of proportionality in decidingwhether or not an ESO should be imposed: see the test enunciated above at[8]. This follows from the reference in s 107I(5)(b) to the seriousness of theharm that might be caused to victims. The more serious the likely futureoffences, the more serious the harm would usually be to victims. We also notethat the likely seriousness of future offences is usually best predicted byreference to past behaviour (as discussed below at [45]).[11] That said, the main focus in setting the term of any ESO must be onthe safety of the community and, in particular, that of children and youngpersons, in light of the factors set out in s 107I(5). [87] In this case Mr Thompson has denied the sexual offending. The previousoffending is serious. The Court of Appeal in Alinizi said:4947 Belcher v Chief Executive of the Department of Corrections (CA) [2007] 1 NZLR 507, (2006) 22CRNZ 787 at [108] citing Chief Executive of the Department of Corrections v McIntosh HCChristchurch CRI 2004-409-162, 8 December 2004 at [27].48 R v Peta, above n 12, at [10] – [11] .49 Chief Executive of the Department of Corrections v Alinizi, above n 20, at [38].Where an offender categorically denies previous offending and consequentlyis unwilling to undertake treatment directed to the sexual offending, it wouldbe open to a court to direct an ESO of the full ten year period.[88] In that case an ESO, six years was considered sufficient for the developmentof a safety plan with protective factors which would safe guard the community as wellas providing sufficient time for the offender's behaviour to be monitored andassessed.50[89] In this case, the Department submits that Mr Thompson should be subject toan order for a period of five years. I am guided by the risk assessment carried out byMr Fourie. Mr Fourie commented that the highest risk period for Mr Thompson willprobably within the first two to three years from when he is released in prison, but willremain high for up to five years. After five years there is a significant reduction in there-offending rate for the high-risk group to which Mr Thompson belongs.[90] I also note that the reduction in the risk of reoffending does not suddenly occurat age 50 or decrease in a staged fashion, but rather the reduction is demonstratedgradually through the age group of 50 to 59 years. In view of Mr Fourie's evidence,which was supported by Mr Riley's comments, the re-offending risk remains highfrom the ages of 50 to 55 years.[91] In the circumstances, as Mr Thompson has shown considerable progress withhis counselling, and before I considered whether this supported an order being madefor less than five years.[92] A further factor which is of concern is Mr Thompson's continued denial of thechild sex offending. Both health assessors noted the limitations this introduced bothin assessing risk but also in appropriate treatment.[93] For these reasons, I am of the view the order should be for five years. Thatwill give sufficient time for further counselling and other therapy to be provided. Itwill also provide a better assessment of Mr Thompson's ability to apply the skills and50 At [40].insights that he has demonstrated and outlined in the psychologists reports in acommunity setting.[94] Mr Riley noted the need for collaborative and supportive assistance forMr Thompson in his reintegration into the community. Mr Riley anticipated thatMr Thompson would experience significant difficulties on the way but cautionedagainst the implementation of an inflexible, restrictive management regime.[95] Mr Thompson will automatically be subject to the standard conditions set outin s 107JA of the Act. Special conditions will be imposed by the Parole Board in duecourse.Result[96] I make an extended supervision order on the standard terms, proposed by theDepartment.51[97] The extended supervision order shall come into force upon Mr Thompson'srelease for a period of five years.[98] If there are any further matters relating to his release or otherwise, leave isreserved for the matter to be brought back before me._________________Grice JSolicitors:Crown Law Office, Wellington for ApplicantQuay Legal, Wellington for Respondent51 Parole Act 2002, ss 107J and 107JA.