THE DEPARTMENT OF CORRECTIONS v BRADY [2022] NZHC 2179

THE DEPARTMENT OF CORRECTIONS v BRADY [2022] NZHC 2179 [30 August 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2022-483-4[2022] NZHC 2179BETWEEN THE DEPARTMENT OF CORRECTIONSApplicantAND BEAUDINE KAREPE KARIATANABRADYRespondentHearing: 26 August 2022Appearances: J J Harvey for the ApplicantD M Goodlet for the RespondentJudgment: 30 August 2022JUDGMENT OF COOKE J[1] By application dated 14 March 2022 the Department applies for an ExtendedSupervision Order (ESO) under s 107F of the Parole Act 2002 (the Act). Theapplication is supported by a detailed psychological report from Dr Justine Croxendated 15 December 2021. The application seeks an ESO for a period of five years.[2] The application is not opposed by Mr Brady. Ms Goodlet filed a memorandumexplaining the steps that have been taken by Mr Brady, including by takingindependent psychological advice from Dr Clare Brindley. Counsel advises thatMr Brady understands the purposes and principles behind an ESO and the opportunityof support which such an order can provide him, and for that reason he does not opposethe making of the order.[3] The applications were called on Friday 26 August where I heard submissionsfrom Mr Harvey and Ms Goodlet, following which I decided that the applicationsshould be granted in their terms. These are my reasons.The requirements[4] Section 107I of the Act provides that the sentencing court may make an ESO.In the case of Mr Brady the ESO would arise under s 107I(2) on the basis that therehas been a pervasive pattern of serious sexual offending, and that there is a "high risk"that Mr Brady will in future commit a relevant sexual offence. Under s 107IAAspecific matters are identified which the Court must be satisfied of. Under s 107F(2A)an application for such an order must be accompanied by a report by a health assessordirected to the matters that arise for the Court's determination. As indicated such areport has been provided here.[5] In the present case the order is not opposed by Mr Brady. He agrees, aftertaking advice from an independent psychologist and counsel, that such an order willhelp in providing him with the assistance that he will need to avoid re-offending.[6] When an application is not opposed it remains necessary for the Court to satisfyitself of the pre-requisites for the making of such an order, and it is also necessary forthe Court to set out the basis for that satisfaction in a judgment. In short, therequirements of the legislation, and of open justice still need to be satisfied.[7] In Chisnall v Attorney-General the Court of Appeal declared that the terms ofthe legislation allowing imposition of an ESO were inconsistent with s 26(2) of theNew Zealand Bill of Rights Act 1990.1 Leave to appeal to the Supreme Court hasbeen granted.2 I have suggested that Chisnall may give rise to a need for somerecalibration of the approach taken to the imposition of such orders.3 The Court ofAppeal has also recently re-addressed Mr Chisnall's case, and whilst it has not referredto any recalibration the Court has referred to giving the legislation as rights of1 Chisnall v Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107.2 Attorney-General v Chisnall [2022] NZSC 77.3 Department of Corrections v Gray [2021] NZHC 3558.complaint an interpretation and application as is available within the terms of thelegislation.4[8] When such orders are consented to there is a different perspective, however. Itwill remain necessary for the Court to find that the imposition of the orders isdemonstrably justified in a free and democratic society. The level of the risk, and needto protect of the public will need to be addressed in that light. But the furtherperspective arises from the appreciation of the person who is made subject to the orderthat the order will impose measures for their ultimate benefit. Mr Brady does not wishto re-offend. He needs assistance to help him in that objective. Following himobtaining independent advice he consents to what is proposed. I accept that thisconsent is a fully informed one. That is a relevant circumstance when assessingwhether the ESO order should be made in the terms sought.[9] I also consider that it is of significance that Mr Brady has the ability to applyto discharge the ESO under s 107M if he became of the view that the limitation of hisrights arising from the ESO were no longer justified. If such an application were latermade it would be relevant that the initial order was not opposed, and there has beenno contest in relation to the relevant facts and circumstances.Assessment[10] Dr Croxen has provided a comprehensive assessment of the risks associatedwith Mr Brady in her report. Based on that report, and Mr Brady's circumstances, Iaccept that he is at a high risk of committing further serious sexual offences on releaseif he were not subject to the significant controls involved in the ESO.[11] Mr Brady received his first conviction for sexual violence when he was aged17 years, although he had convictions for other offending before that time. Hereceived a nine year sentence of imprisonment. He was released on parole inSeptember 2007. Within three weeks of being released he committed a further seriousviolent sexual offence against a male stranger. He was sentenced to a 13 year sentenceof imprisonment. He has since committed violence offences while in prison.4 Chisnall v Chief Executive Department of Corrections [2022] NZCA 402 at [22].[12] Dr Croxen has applied a number of risk assessment tools. Some of those assesshim at a high risk, and some at a medium or moderate risk. Dr Croxen considers thatoverall he is at a moderate, bordering on high risk of committing further violentoffending within the community, but if robust risk mitigation factors were not put inplace on his release into the community it was probable that his dynamic risk wouldelevate to high. She is also of the opinion that he presents as a high risk of committingfurther relevant sexual offences.[13] Mr Brady has fully participated in rehabilitation programmes while in prison.Dr Croxen reports that he has been open and willing to engage in interventions toeffect positive changes. As I said at the hearing, he is to be commended for the effortshe has made. But as Dr Croxen emphasises he has been incarcerated since he was 17years old and accordingly has, developmentally, spent his entire adult life in prison.She rightly observes that he has a high level of reintegrative need. He has inadequatecommunity support, a lack of employment, a lack of confirmed accommodation andan untested ability to cope with stress. The fact that he offended so quickly with anoffence of sexual violence upon his previous release is very telling.[14] I accept for these reasons that Mr Brady is at a very high risk of committingfurther qualifying sexual offences on release from prison if he is not subject to theESO, and that the mandatory requirements listed in s 107IAA are present, includingfor the reasons identified by Dr Croxen.[15] For these reasons it is appropriate that an ESO be put in place on standardconditions for a period of five years from his release date. Leave is reserved to addressany other matters that I may have overlooked.Cooke JSolicitors:Wilkinson Smith Lawyers, Whanganui for the Applicant