MOSEN v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2022] NZCA 507

MOSEN v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2022] NZCA 507 [25 October 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA616/2020[2022] NZCA 507BETWEEN WILLIAM GEORGE MOSENAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 22 August 2022Court: Cooper P, Mallon and Wylie JJCounsel: Appellant in personM R Bott as counsel to assist the CourtB C L Charmley and J B Watson for RespondentJudgment: 25 October 2022 at 4.00 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application for leave to adduce fresh evidence is granted.C The appeal is allowed.D The extended supervision order is cancelled.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Table of ContentsPara NoIntroductionBackgroundPersonal circumstancesConviction historyCustodial historyESO application historyCurrent circumstancesStatutory regimeInterpretation of the statutory regime in light of Chisnall vAttorney-GeneralThis caseHealth assessment reports before the District CourtPervasive pattern of serious violenceIntense drive, desires or urges to commit acts of violenceExtreme aggressive volatilityPersistent harbouring of vengeful intentions to one or moreother personsBehavioural evidence of clear and long-term planning of seriousviolent offences to meet a premeditated goalLimited self-regulatory capacityAbsence of understanding or concern about the impact of hisviolenceVery high risk of committing a relevant violent offence in thefutureIs an ESO strongly justified?TermResult[1][5][5][8][11][12][15][19][24][32][32][35][37][44][48][62][63][64][65][72][73][74][32]Introduction[1] Mr William Mosen has a history of violent offending. On 3 July 2020 theDistrict Court imposed an extended supervision order (ESO) on him for a period offive years, being satisfied that he had a pervasive pattern of serious violent offendingand a very high risk of committing a further relevant violent offence.1 The ESO wassubject to standard and special conditions intended to address his risk and protect thecommunity from that risk.[2] Mr Mosen now appeals this decision. He says the Judge did not interpret thestatutory criteria for an ESO consistently with the New Zealand Bill of Rights Act1 Department of Corrections v Mosen [2020] NZDC 11123.1990 (BORA). He says that a BORA-consistent interpretation of the "very high risk"criterion is a risk that is "almost unavoidable" and involves an "immediate threat topublic safety". He says that he does not meet this criterion.[3] Mr Mosen's appeal is out of time.2 The appeal was initially filed in theHigh Court. Shortly before it was scheduled to be heard, counsel realised that theappeal was filed in the wrong court.3 A notice of appeal was then promptly filed inthis Court. The contention on this appeal is that a "recalibrated" approach to thestatutory criteria for an ESO is necessary in light of this Court's decision inChisnall v Attorney General, delivered in November 2021.4 The correct approach tothe statutory criteria for an ESO in light of Chisnall is an important one. It is thereforeappropriate to hear this appeal although it was brought out of time. We grant anextension of time to appeal.[4] Mr Mosen also seeks leave to adduce the report of Ms Sabine Visser,a registered psychologist, on this appeal.5 The respondent opposes the application onthe basis the report is not fresh nor cogent. Ms Visser had the opportunity to interviewMr Mosen for three hours in late January 2022. While her report is not fresh,it provides the most recent assessment of Mr Mosen. Her report is also in largemeasure consistent with the reports and evidence considered in the District Court andprovides additional commentary on them. It is in the interests of justice to consider it,especially when an ESO imposes substantial restrictions on a person's liberty andimposes a limit on the right affirmed in the BORA not to be subject to asecond penalty.6 We are satisfied the respondent is not prejudiced by this. We grantleave to adduce the evidence.2 Court of Appeal (Criminal) Rules 2001, r 107R(2); and Criminal Procedure Act 2011, s 248(2).3 See Parole Act 2002, s 107R.4 Chisnall v Attorney General [2021] NZCA 616, [2022] 2 NZLR 484. As we discuss later, at [25]below, in Department of Corrections v Gray [2021] NZHC 3558 at [23], the High Courtconsidered a recalibrated approach was necessary.5 Court of Appeal (Criminal) Rules, r 12B.6 New Zealand Bill of Rights Act 1990, s 26(2).BackgroundPersonal circumstances[5] Mr Mosen had a difficult and dysfunctional upbringing. His father was a"Skin Head", was violent and drank excessively. Mr Mosen suffered neglect and attimes was not clothed or fed by his parents. He was removed from his family by whatwas then Child, Youth and Family Services before he was five years old. He thensuffered from emotional, physical and sexual abuse in the welfare homes in which hewas placed. When he was 13 or 14 years old, he lived with his grandmother for arounda year. After that, he lived on the streets until he became subject to custodial sentences.[6] Mr Mosen had very little schooling and was illiterate, although has madeprogress on his education during periods of imprisonment. He does not have a historyof stable employment. During his teens, he formed an association with the skinheadculture. He became the president of a group known as the "Nazi Rodents". He beganusing alcohol and drugs in his early teens. From a young age he was using intravenousopiates and stole property to fund this. He was on methadone when in prison andresumed his opiate use on release. He reported having ceased using methadonesince 2017.[7] Mr Mosen is now 41 years old. He has spent most of his adult life in prison.He is recently married.Conviction history[8] In 1997, at 16 years old, Mr Mosen appeared in the Youth Court for an assault,burglaries, and other dishonesty offending. The following year he appeared in theDistrict Court for burglaries and cannabis offending and received his first sentence ofimprisonment. Appearances in the District Court and sentences of imprisonmentcontinued thereafter, predominantly for burglaries and other dishonesty offending,7violent offending8 and breach of release conditions.9[9] Details about some of the offending are not available. However, from theinformation that is available, the following is the most relevant:(a) 2000: wounding with intent to cause grievous bodily harm —Mr Mosen and an associate went to a house wearing army-styleclothing and balaclavas, and were armed with a loaded cut-downshotgun. They waited for the owner of the house to come outside.When he did, they fired a shot at his dog and then at him. The ownerwas hit on the upper left side of his body. Mr Mosen was sentencedto five years' imprisonment for this offending, along with charges ofunlawful possession of a pistol, burglary, theft, and shopliftingcommitted on other dates of that year.(b) 2003 to 2009: various assaults, including:(i) 2007: male assaults female, which involved choking a womanfor several seconds and for which he received a six-monthsentence of imprisonment.7 Mr Mason's Youth Court appearances were for offending including multiple burglaries, a theft anda robbery. In the adult jurisdiction he has convictions for burglary (1998 x 11, 2000 x 2, 2010 x 1and 2017 x 1), theft (2000 x 2 and 2009 x 1), shoplifting (1999 x 1, 2000 x 3, 2008 x1 and2010 x 3), receiving stolen property (1998 x 1 and 1999 x 1) and unlawfully getting onto amotorcycle (2019 x 1).8 Including aggravated robbery (2010 x 1); wounding with intent to do grievous bodily harm(2000 x 1); injuring with intent (2019 x 1); male assaults female (2007 x 1); assault (2008 x 3 and2009 x 1); assault of a police officer (2008 x 2 and 2009 x 2); threats to kill (2009 x 2); possessionof a knife (2000 x 1 and 2008x 1); unlawful possession of a pistol or firearm (2001 x 1, 2020 x 2and 2021 x 1); possession of an offensive weapon (2008 x 1, 2017 x 1 and 2018 x 1); and behavingor speaking threateningly (2007 x 1, 2019 x 1 and 2021 x 1).9 Including breach of release conditions (2007 x 2, 2010 x 5 and 2018 x 4); breach of standardconditions (2017 x 2); breach of interim supervision order (ISO) and ESO (2018 x 1, 2021 x 1 and2022 x 2); breach of parole (1999 x 1); and escaping from a penal institution (2003 x 1). He alsohas convictions for wilful damage (1998 x 1, 2005 x 1, 2007 x 1, 2008 x 2, 2009 x 1 and 2017 x 1);intentional damage (2009 x 1); contravening a protection order (2000 x 1 and 2008 x 2);possession of cannabis or cannabis oil (1999 x 1, 2000 x 2, 2005 x 1 and 2018 x 1); possession ofmethamphetamine (2018 x 1); and various driving offences (2005 x 3, 2007 x 2 and 2018 x 1).(ii) 2008: two counts of assaulting a police officer, for which hereceived a cumulative four-month sentence of imprisonment aspart of sentencing for other offending.(iii) 17 April 2009: assaulting a police officer, threatening to kill,unlawfully taking a car, and intentionally damaging property,for which, along with an earlier charge of threatening to kill inJanuary 2009, he received a sentence of one year and 12 months'imprisonment.(iv) 24 May 2009: assaulting a prison officer by hitting him in theface, for which he received a six-month sentence ofimprisonment concurrent on his sentence for the Apriloffending.(c) 29 August 2010: aggravated robbery — Mr Mosen entered asupermarket with a sawn-off shotgun, held his finger on the triggerwhile pointing it directly at the heads of several employees, and took$1,994.60 from them. He was subject to release conditions at the time.He was sentenced to four years and six months' imprisonment andreceived his first strike warning for this offending.10(d) 6 January 2013: injuring with intent to cause grievous bodily harm —while serving his sentence for the aggravated robbery, Mr Mosen and aco-offender attacked a fellow prisoner in the exercise yard, withMr Mosen kicking and punching the victim to the head and body.Mr Mosen was sentenced to two years and six months' imprisonmentand received a final strike warning for this offending.11(e) 21 October 2017: possession of an offensive weapon and wilful damage— this offending took place three months after his release from prison.He was sentenced to supervision but was subsequently sentenced to10 Sentencing Act 2002, s 86B.11 Section 86C.imprisonment for breaching his release conditions, burglary andunlawfully being in an enclosed area in December 2017.(f) 2018: four counts of breach of release conditions, and one count eachof possession of cannabis plant, possession of methamphetamine,and breach of an interim supervision order (ISO),12 for which hereceived short-term sentences of imprisonment.(g) January/February 2019: two counts of breach of an ISO.(h) 5 July 2019: possession of a shotgun and cartridges, and unlawfullygetting into a car — in March 2020 Mr Mosen was sentenced to22 and a half months' imprisonment for this offending.(i) 13 December 2019: injuring with intent to injure — this related to afight with a cellmate when Mr Mosen was in prison. Mr Mosen wasinitially told the incident would be dealt with internally by theDepartment of Corrections but he was subsequently charged.On 21 January 2021 he was sentenced to one year and three months'imprisonment concurrent on his sentence for the 2019 offending.[10] Following the ESO, Mr Mosen's conviction history has involved:(a) 2021: breach of an ESO, speaking threateningly and unlawfulpossession of a pistol.(b) 2022: two counts of breach of an ESO.Custodial history[11] Custodial records indicate that as at July 2017 Mr Mosen had accumulated over280 incident reports, of which over 70 resulted in misconduct reports. Most of thesewere for breaking rules or being in defiance of them. Ten were for threatening or12 See [12] below.abusing other prisoners or staff and four were for fighting with other prisoners.These included the injuring with intent conviction in 2013, referred to at [9](d) above,and Mr Mosen punching a prison officer in the face when he was irritated that theshower was not working properly. He has spent periods with a "maximum" securityclassification but at other times has had "high" and "low" classifications.ESO application history[12] In anticipation of Mr Mosen's release from prison and the expiry of releaseconditions, the respondent applied for an ESO in July 2017. Pending the substantivehearing of that application, an ISO was imposed on 5 February 2018.13 As a result ofhis further offending in 2017 and 2018, Mr Mosen received further sentences ofimprisonment and the ESO application was not determined until 23 March 2020.When the application was considered, a five-year ESO was imposed by consent.14[13] On 9 April 2020 the Judge set aside the ESO because, on further consideration,he was concerned that one of the requirements for an ESO, that the offender has"persistent harbouring of vengeful intentions", may not have been satisfied.15He sought further information on that factor from the psychologists.16 In themeantime, the ISO was reinstated.17[14] Following a further hearing on 5 June 2020, an ESO was imposed for five yearson 3 July 2020.18 In addition to the standard conditions, the special conditionsincluded: to live at an approved address; not to stay overnight elsewhere withoutapproval; not to have contact with any victim of the offending; not to possess orconsume alcohol or drugs; to undertake assessment, treatment or counselling;to disclose any intimate relationship that commences, terminates or resumes;not to reside in or travel into Whanganui; not to be near or visit any gang premises;to submit to and comply with electronic monitoring; not to have contact with anyone13 R v Mosen DC Whanganui CRI-2017-083-1608, 5 February 2018.14 See Department of Corrections v Mosen DC Palmerston North CRI-2017-083-1608, 9 April 2020[Minute of Judge G M Lynch setting aside the Extended Supervision Order made 23 March 2020]at [1].15 At [2]–[3], [7]–[9] and [13], referring to Parole Act, s 107IAA(2)(a)(iii).16 At [15].17 At [13].18 Department of Corrections v Mosen, above n 1, at [130] and [142].under 16 years old without approval; and to attend a psychological assessment to theprobation officer's satisfaction.Current circumstances[15] Mr Mosen filed an affidavit in support of his appeal advising that he was thenliving in his car. This was because he could not live with his wife, as she lives withher son, who is under 16 years of age. He has lived in other approved addresses butthose arrangements came to an end for various reasons. He said:11. I have done the right steps in keeping myself safe yet I feel [an] ESOis setting me up to fail. I also feel that my wife has sacrificed andhelped me through all these setbacks that have been inflicted on meby probation and that I only wish to live a happier and healthier lifewith my new family.12. Growing up I felt like I had nothing and was nothing, I felt I could nottrust anyone. I now have a wife, and want a chance to live with theperson I love and trust, as a normal person within a family.13. I would like for this ESO to go away.[16] Ms Mahinarangi Wynard, Mr Mosen's probation officer, filed two affidavitsupdating the Court after the hearing of the appeal. She explained the circumstancesleading to Mr Mosen choosing to reside in his car even though there was an approvedaddress available to him. He lived in his vehicle for four nights, at which point hiswife offered her sister's address to him. This address was approved and Mr Mosenhad been living there for a few weeks as at 29 August 2022.[17] In the second updating affidavit, Ms Wynard advised that on 30 August 2022Mr Mosen was required to leave the address for two weeks because his wife's sisterwas going to be hosting family, including minors, during that time. Ms Wynardarranged for Mr Mosen to stay in a cabin. The owner of the property consented toMr Mosen living there subject to several conditions, including that he not consumealcohol or drugs. On 2 September 2022, the owner withdrew her consent.This followed an incident on 1 September when Mr Mosen was speeding in his car ina dangerous manner up and down the road and in and out of her driveway, and verballyabused her.[18] Ms Wynard directed Mr Mosen to undergo an alcohol and drug test on2 September 2022. He attended the office that day but failed to provide a specimenfor the drug test in the allocated time. He was charged with breaching his ESO byfailing to undergo a testing procedure when required to do so. The summary of factsrefers to three previous ESO breaches in the past year, including one for usingmethamphetamine and another for failing to submit to a drug test.Statutory regime[19] Part 1A of the Parole Act 2002 provides for ESOs. A person who hascommitted a "relevant violent offence" is eligible for an ESO if they remain subject toa sentence of imprisonment, release conditions, or an extant ESO.19 Mr Mosen'sconviction for aggravated robbery is a relevant violent offence.20[20] Following a hearing and consideration of the matters addressed in ahealth assessor's report under s 107F, the court may make an ESO if satisfied that:21(a) the offender has, or has had, a pervasive pattern of serious violentoffending; and(b) either or both of the following apply:(ii) there is a very high risk that the offender will in future commita relevant violent offence.[21] Under s 107F, the health assessor's report must address:22(b) whether—(i) the offender displays each of the behavioural characteristicsspecified in section 107IAA(2); and(ii) there is a very high risk that the offender will in future commita relevant violent offence.19 Parole Act, s 107C(1)(a).20 Section 107B(2A)(o).21 Section 107I(2).22 Section 107F(2A).[22] Section 107IAA(2) provides:(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfiedthat the offender—(a) has a severe disturbance in behavioural functioningestablished by evidence of each of the followingcharacteristics:(i) intense drive, desires, or urges to commit acts ofviolence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet apremeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about theimpact of his or her violence on actual or potential victims.[23] We will address the evidence and what the Judge held on each of the aboveESO criteria later in this judgment. We turn first to consider Mr Mosen's argument onthe "very high risk" criterion in light of this Court's decision in Chisnall.Interpretation of the statutory regime in light of Chisnall v Attorney-General[24] In Chisnall this Court held that the ESO regime imposes limits on the right notto be punished again for an offence, as affirmed by s 26(2) of the BORA.23 As this isa right of fundamental importance, any departure requires strong justification.24The most concerning features of the ESO regime are the significant restrictions ofmovement and association, electronic monitoring and the potential for detention athome.25 The severe restrictions are based on the legislature's view that, without thoserestrictions, the offender would constitute a danger to the public. While Parliament is23 Chisnall v Attorney General, above n 4, at [177].24 At [190].25 At [223].entitled to implement the regime, the evidence before the Court did not show that thelimits the regime imposes on the right not to be subject to a second penalty isdemonstrably justified.26 Importantly, however, the Court said that it was "not a casewhere there is any doubt about the purpose of the legislation, or its meaning".27The Court granted a declaration of inconsistency with the BORA.28[25] Subsequent decisions have considered how an application for an ESO shouldbe approached in light of Chisnall. In Department of Corrections v Gray, Cooke Jconsidered that a degree of recalibration may be necessary in the Court's approach tothe statutory test.29 He took the view that the presumption of innocence was "clearly"engaged because the Court was being asked to predict whether future offending wouldbe committed.30 His approach was to interpret the "very high risk" criterion as oneinvolving "an immediate risk of something that is highly likely to happen" if the ESOis not granted.31 This approach required the Court "to be sure that further violentoffending will be committed by the [offender] in the immediate future" as"more medium term risks introduce greater degrees of temporal uncertainty".32The Judge considered that an "immediate threat to public safety [is] needed beforesuch orders are justified".33 He noted that this had implications for health assessorreports, which usually assess risk over five and 10-year periods.34[26] Mr Bott, counsel assisting, submits this Court should follow the Grayinterpretation of the "very high risk" criterion. We agree that the statutory criteria26 At [225]–[226].27 At [216].28 Chisnall v Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107.29 Department of Corrections v Gray, above n 4, at [23].30 At [21]. This is a controversial point. A division of this Court in Wilson v Department ofCorrections [2022] NZCA 289 at [17] subsequently also took the view that an ESO "clearlyengaged" the presumption of innocence. However, this is contrary to the earlier view of this Courtin McDonnell v Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [39]–[40].The Court then held it was inappropriate to treat an application for an ESO as being analogouswith the bringing of a fresh charge against the offender. Rather, it was analogous with thesentencing process which follows conviction. The presumption of innocence was thereforeinapplicable. Similarly and earlier, the Human Rights Commission by majority held in Rameka vNew Zealand (2003) 7 HRNZ 663 at [7.4] that the presumption of innocence had no applicationto a sentence of preventative detention because no new charge to attract that presumption hadbeen laid.31 At [23].32 At [24].33 At [24].34 At [24].should be interpreted as consistently with the BORA as possible.35 However, thatinterpretation must be one that is open on the words of the statute in light ofParliament's intention.36 In our view, the Gray approach is not open because:(a) The statutory requirement is a "very high risk" that the offender "will infuture" commit a relevant violent offence.37 There is no temporalrequirement in that test.(b) The fact that an ESO may be made for up to 10 years contemplates thatthe risk may relate to offending within a 10-year time frame.38(c) The criterion of "displays behavioural evidence of clear and long-termplanning of serious violent offences to meet a premeditated goal"39indicates that an ESO is available for those whose risk relates toviolence that has involved "long-term planning". That kind of risk isnot one that would necessarily give rise to an "immediate" risk.[27] We therefore do not agree that a "very high risk" that the offender will in thefuture commit a relevant violent offence means an immediate threat to public safety.We note that there is no suggestion in two decisions of this Court subsequent to Gray,R (CA586/2021) v R and Wilson v Department of Corrections, that any recalibratedinterpretation of the statutory criteria is appropriate, albeit they were concerned withthe ESO criteria where the risk related to sexual offending.40 We consider that the"very high risk" criterion relates not to the imminence of the risk but its likelihood.The high bar this criterion sets reflects the public safety justification that is requiredto be met before a person is subjected to the limits on their freedom of movement andassociation that an ESO entails.35 New Zealand Bill of Rights Act, s 6.36 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [90]–[92] per Tipping J. See also at [252]per McGrath J; and D (SC 31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213at [281] per William Young J.37 Parole Act, s 107I(2)(b)(ii).38 See ss 107A(b) and 107I(4).39 Section 107IAA(2)(b)(i).40 R (CA586/2021) v Department of Corrections [2022] NZCA 225; and Wilson v Department ofCorrections, above n 30.[28] In Gray, the Judge also took the view that, because the making of an ESO isultimately discretionary, a court should not make an ESO unless it is a demonstrablyjustified limitation on the offender's rights.41 Applying the R v Hansen methodologyon whether a limit on a right is demonstrably justified,42 the Judge considered it wasnecessary to evaluate whether the ESO as proposed, including its terms and conditions,properly protects the public from the very high risk, and that the restrictions do nomore than is reasonably necessary to achieve that protection.43[29] We do not agree that application of the R v Hansen methodology is required.The issue was considered by the Supreme Court in D (SC 31/2019) v New ZealandPolice in relation to the statutory power to make a registration order under theChild Protection (Child Sex Offender Government Agency Registration) Act 2016.44The Court accepted that such an order limited the rights to freedom of movement,association and expression.45 The power was discretionary in that the Court"may order" registration if it was satisfied that the offender posed a risk to the life orsexual safety of a child or children.46[30] Two members of the Court held that, although the power was discretionary,it did not require a court to undertake the R v Hansen analysis to determine whetherregistration was demonstrably justified in the particular case. Rather, a "simplerproportionality analysis", involving balancing the values of the BORA right at issueagainst the statutory objectives of the legislation, was appropriate.47 The power toorder registration should be interpreted in accordance with s 6 of the BORA.That meant the level of risk the offender posed must be of sufficient gravity to justifythe making of the registration order with the consequent impacts on the rights ofthe offender.4841 Department of Corrections v Gray, above n 4, at [22].42 R v Hansen, above n 36, at [104] per Tipping J.43 Department of Corrections v Gray, above n 4, at [25].44 D (SC 31/2019) v New Zealand Police, above n 36.45 At [88] per Winkelmann CJ and O'Regan J. See New Zealand Bill of Rights Act, ss 14, 17 and 18.46 At [20] per Winkelmann CJ and O'Regan J; and Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016, s 9(2).47 At [100]–[101] per Winkelmann CJ and O'Regan J. Glazebrook J at [263] approached the mattersimilarly. Ellen France J at [149]–[151] considered that there was little room for the discretion tooperate if the statutory criteria was met. William Young J at [293] and [296] was of a similar viewto Ellen France J.48 At [101] per Winkelmann CJ and O'Regan J.[31] Applying this approach to the ESO regime, if the statutory criteria are met,a court must balance the right not to be subject to a second penalty (that is, beingsubject to an ESO when a person has served their sentence for a violent offence)against the statutory purpose to protect the public from the very high risk that anoffender will commit a relevant violent offence. Put more simply in R (CA586/2021)v R, and as adopted in Wilson v Department of Corrections, "strong justification" isrequired for an ESO and this is the "lens" through which this Court must assesswhether the Judge erred in making the order.49This caseHealth assessment reports before the District Court[32] In the District Court, Judge Northwood had before him a health assessmentreport from Mr Jimmie Fourie, a registered psychologist with the Department ofCorrections. Mr Fourie's report was dated 5 July 2017 and was updated in anaddendum dated 26 April 2019, which was provided due to the period of time that hadelapsed since the 2017 report. The Judge also had before him a memorandum dated8 May 2020 that was provided in response to the District Court's request for furtherinformation on the "persistent harbouring of vengeful intentions" criterion.[33] The Judge also had a report from Mr Nick Lascelles, a registered clinicalpsychologist engaged by defence counsel, dated 3 December 2019, and asupplementary report dated 28 April 2020 that was provided in response to theDistrict Court's request for further information on the "persistent harbouring ofvengeful intentions" criterion.[34] Both psychologists gave evidence and were cross-examined at a hearing beforethe Judge.49 R (CA586/2021) v Department of Corrections, above n 40, at [53]; and Wilson v Department ofCorrections, above n 30, at [19]–[20].Pervasive pattern of serious violence[35] The Judge was satisfied that Mr Mosen had a pervasive pattern of seriousviolent offending.50 He noted that Mr Mosen's violent criminal history extended over20 years and featured serious offending, including two counts of wounding with intentto cause grievous bodily harm, unlawful possession of a pistol, and aggravatedrobbery.51 He also referred to Mr Mosen's convictions for assault and that Mr Forrie'sreport of Mr Mosen's behavioural issues in prison outlined that Mr Mosen had beendisciplined for assault and other similar occurrences.52[36] This conclusion was well open to the Judge and was not challenged on appeal.We note the slight error the Judge made in referring to two convictions for woundingwith intent to cause grievous bodily harm when there was one such offence (in 2000)and a later offence of injuring with intent to cause grievous bodily harm (in 2013).Those two offences were serious. The former involved firing a shot from a loadedfirearm directly at a person. The latter involved punches and kicks to the victim's headand body. The aggravated robbery (in 2010) involved Mr Mosen pointing a loadedshotgun with his finger on the trigger at several people. All of this offending is seriousbecause of the risk to life it entailed. His convictions for assault were for dangerousoffending (involving choking) or showed no respect for authority and law enforcement(involving assaults on police officers). In recent times Mr Mosen has been found inunlawful possession of firearms and has also been convicted for injuring with intentto injure a prisoner.Intense drive, desires or urges to commit acts of violence[37] The Judge was satisfied that Mr Mosen had the characteristic of an "intensedrive, desires or urges to commit acts of violence".53 He referred to Mr Fourie's viewthat Mr Mosen has an intense drive to commit acts of violence that can be triggeredby specific but highly likely environmental and idiosyncratic factors.54 He also50 Department of Corrections v Mosen, above n 1, at [41], referring to Parole Act, s 107I(2)(a).51 At [39].52 At [40].53 At [52], referring to Parole Act, s 107IAA(2)(a)(i).54 At [49].referred to Mr Lascelles' view that Mr Mosen has demonstrated urges to commitviolence through to the present day.55[38] Mr Fourie's view was based on Mr Mosen's regular pattern of violence orthreats of violence, limited time in the community since adolescence, limitedinterpersonal function and pro-violence cognitions (as indicated by his custodialhistory), and the absence of specialist treatment to equip him with alternative strategiesto cope during challenging times.[39] Mr Lascelles' view was also based on the frequency and persistence ofMr Mosen's convictions for violence and aggressive conduct in prison, and thatMr Mosen expressed thoughts of harming Mr Lascelles during their interview.Mr Lascelles did, however, make the point that Mr Mosen's intense drive was typicallyevidenced through threats, intimidatory behaviour and destruction of property,as opposed to more serious violent offences.[40] Mr Bott contends that this criterion is not made out because Mr Fouriedescribed Mr Mosen's intense drive as "latent at the time of the assessment". Latencywas contrary to the Gray view that a very high risk must involve a characteristic thatcreates an immediate risk.56 Mr Bott also submits that the criterion must relate to anintense drive to commit a "relevant violent offence". He refers to Mr Lascelles'comment that Mr Mosen's intense drive has typically been evidenced in offending ofa lesser kind. Similarly, Ms Visser's report notes that most of Mr Mosen's violencehas been at the lower end of the scale.[41] We have already discussed that we do not accept that an immediate risk tocommit a violent offence is necessary to meet the criterion. The test is whether thereis a very high risk that the offender will in the future commit a relevant violent offence.An intense drive to commit "acts of violence" is but one of the factors the Judge mustbe satisfied of before he or she can be satisfied of the very high risk of a future55 At [51].56 Department of Corrections v Gray, above n 4, at [23]."relevant violent offence".57 An intense drive may be present even if it is not presentlyexternally manifested and is unleashed only if conducive circumstances arise.58[42] We also do not accept that the intense drive must be one to commit a"relevant violent offence". Parliament has specified that the intense drive must relateto committing "acts of violence".59 It has not specified any particular violent act.The fact that the intense drive typically manifests in violent acts of a non-serious kindis relevant to the overall assessment of whether there is a very high risk of Mr Mosencommitting a "relevant violent offence". However, it is also the case that Mr Mosen'sintense drive sometimes manifests in violent acts of a serious kind. The aggravatedrobbery, and wounding or injuring with intent to cause grievous bodily harmconvictions are evidence of this.[43] We consider the Judge did not err in finding this criterion was satisfied.Extreme aggressive volatility[44] The Judge was satisfied that Mr Mosen had the characteristic of "extremeaggressive volatility".60[45] The Judge relied on Mr Fourie's view that: Mr Mosen's criminal and custodialrecords indicate an "array of threats of extreme aggression"; his aggressive behaviourin a custodial setting seemed to be an established interpersonal style; he resorted tointimidation when his needs and demands were not met, especially in relation tocustodial staff and police; his volatility was exacerbated by withdrawal frommethadone and physical symptoms associated with this; and he had some periodswhen he had not displayed volatility.6157 Parole Act, s 107IAA(2)(a)(i).58 Department of Corrections v Alinizi [2016] NZCA 468 at [27]. See also Departmentof Corrections v Wilson [2016] NZHC 1082 at [33] and [35].59 Parole Act, s 107IAA(2)(a)(i).60 Department of Corrections v Mosen, above n 1, at [57], referring to Parole Act, s 107IAA(2)(a)(ii).61 At [53].[46] The Judge also referred to Mr Lascelles' view that Mr Mosen's behaviour incustody in the two years prior to 2019 demonstrated aggressive volatility that was partof a longer-term pattern, although there were also periods of relative calm.62[47] The Judge's conclusion on this criterion was not challenged on appeal.We consider the Judge did not err in reaching it. Mr Mosen's history demonstrates hehas this characteristic. Even in the context of the highly regulated prison environment,his record shows an array of threats of extreme aggression which have sometimesresulted in physical violence.Persistent harbouring of vengeful intentions to one or more other persons[48] Mr Fourie concluded in his 2017 report that he was not aware of informationto suggest that Mr Mosen has demonstrated "a persistent pattern of rumination orholding persistent vengeful intentions towards one or more persons".63 He remainedof this view in his 2019 addendum report. When directed by the Judge to address thisissue further, he closely examined Mr Mosen's custodial misconduct and incidentreports. He said:8 In the writer's opinion, Mr Mosen's abusive and threateningbehaviour towards individuals is a persistent way in which he behaveswhen he perceives his needs have not been met. This behaviour couldbe explained as a maladaptive strategy by Mr Mosen attemptingto exert agency and control over matters that are important to him.Mr Mosen appears to lack the nuanced skills to tolerate frustration andproblem solve effectively in these situations, he has demonstrated apersistent behavioural pattern of being reactive and impulsive to suchperceived situational threats. The repeated nature of this behaviour isa typical way in which Mr Mosen is dealing with these situationalproblems rather than a persistent desire to cause harm. In the writer'sopinion, examination of behavioural problems in the custodialenvironment has failed to find evidence that Mr Mosen has a patternof ruminating on perceived injuries and harbouring intentions to harmothers seen by him as responsible. Further, Mr Mosen hasdemonstrated that when given time and space to calm down he hasdeescalated rather than built up resentment.9 In the writer's opinion, at times, Mr Mosen displaysthreatening, aggressive, abusive and violent behaviour towards one ormore persons, and this has been a persistent way of behaving.This behaviour is not considered to be a vengeful desire to causeharm but rather the result of poor self-regulation and problem solving62 At [55].63 Referring to s 107IAA(2)(a)(iii).that, at times, has escalated to physical harm being inflicted on others.The writer cannot conclude with certainty that Mr Mosen is keepingfeelings or thoughts of harming others in his mind for long periods oftime. It is rather considered by the writer to be reactive and in themoment when he expresses these harmful intentions.10 Therefore, the writer is of the opinion that Mr Mosen does not displaypersistent harbouring of vengeful intentions towards one or morepersons.[49] Mr Lascelles' 2019 report also said that Mr Mosen did not "elicit any indicationof persistent vengeful intentions toward any specific people or class of people".His 2020 report said:647. In revisiting this issue, I have looked further at what is meant by termsthat seem key to the item, vengeful and persistent. The term vengefulis defined in the Online Cambridge Dictionary as "expressing a strongwish to punish someone who has harmed you or your family orfriends", while persistent is defined as "lasting for a long time ordifficult to get rid of".8. Mr Mosen has a long-term pattern of threatening behaviour in thecontext of feeling wronged by others and experiencing brief butintense anger. This has been directed at people such as custodial staff,a Probation Officer, other prisoners and peers in the community.It included myself, as Mr Mosen disclosed thoughts of strangling meduring interview while experiencing anger about questions put to him.However, these episodes seem to be typically brief and I am not awareof Mr Mosen evidencing long term stable intentions of harmingspecific persons.9. It is for the Court to decide the intention and meaning of the criterionof "persistent harbouring of vengeful intentions". If it requiresdemonstrating that the person has held the desire to harm or punishone or more specified persons over an extended period of time,Mr Mosen would not seem to reach that threshold.10. However, Mr Mosen does demonstrate a persistent pattern of brieflyharbouring vengeful intentions toward a range of other people.In terms of situational factors, he is prone to perceiving threat of harmfrom others, which is not limited to expecting to be physicallyattacked. Mr Mosen also can respond with intense anger when heperceives that he is being slighted, disrespected, or thwarted insome way.[50] The two psychologists gave further evidence about this at the hearing beforethe Judge. Mr Fourie considered that Mr Mosen resorts to violence when his needswere not met, his response is reactive, and it is not to punish or harm someone but it64 Footnotes omitted and original emphasis.is his way of problem solving. Mr Lascelles said there is a pattern of exaggeratedresponses to the perception of threat. During his interview, Mr Mosen began to seeMr Lascelles as the enemy and had thoughts of wanting to harm him. Mr Lascellesconsidered that Mr Mosen harbours his intentions "for seconds or minutes and then itdissipates as quickly as it arises". Mr Lascelles said "there is persistence in a patterncontinuing over time but not the persistent harbouring towards one or more persons".[51] The Judge reviewed this evidence and some High Court cases.65 He concludedthat the harbouring of vengeful intentions need not be persistent in the sense oflongstanding. Rather, it was enough that the vengeful intentions have been persistentin the sense that they have occurred on more than one occasion.66 He considered thisfitted with the purpose of an ESO because a tendency to harbour vengeful intentionsagainst persons was particularly dangerous, especially in combination with the others 107IAA(2)(a) characteristics.67 On the basis of the psychologists' evidence,the Judge considered that Mr Mosen persistently harboured vengeful intentions forshort periods of time. The Judge therefore found this criterion was satisfied.68[52] Mr Bott submits this interpretation was wrong and not BORA-consistent.He says Mr Mosen's violence is reactive rather than motivated by vengeance.Mr Mosen does not harbour vengeful intentions towards any identifiable person.[53] The respondent supports the interpretation the Judge took. The respondentsubmits that "persistent" can mean frequent and repetitive rather than just long-heldand consistent. Moreover, Mr Mosen's vengeful intentions are persistent in that theyare recurring, even though they are only briefly held at the time they manifest.[54] We accept that "persistent" can mean frequent and repetitive rather than justlong-held. Dictionary definitions include "enduring" and "constantly repeated",69"incessantly repeated" and "unrelenting",70 and "lasting for a long time or difficult65 Department of Corrections v Mosen, above n 1, at [88]–[111].66 At [120].67 At [122].68 At [126]–[128].69 Lesley Brown (ed) Shorter Oxford English Dictionary (5th ed, Oxford University Press, Oxford,1993) at 2167.70 Collins English Dictionary (13th ed, HarperCollins Publishers, Glasgow, 2018) at 1487.to get rid of".71 However it is the phrase "persistent harbouring of vengeful intentions"as whole that must be given meaning. The ordinary meaning of "harbouring" isto "maintain secretly",72 "to think about or feel something, usually over a longperiod"73 and "to hold especially persistently".74 "Vengeful" means a person "wantingor inclined to take vengeance",75 "desiring revenge",76 or "expressing a strong wishto punish someone who has harmed you or your family or friends".77 Togetherthe phrase means to maintain or have in one's mind for a long time or recurringly astrong wish to take revenge on someone or to punish someone for the harm they areperceived to have done.[55] We consider that this interpretation is consistent with Department ofCorrections v Wilson.78 In that case, Venning J referred to evidence that the offender,Mr Wilson, had been "ruminating" about his girlfriend going out with his sister andhad feelings of jealousy and anger which had led to his violent attacks on a number ofpeople.79 Mr Wilson acknowledged that another instance of offending was theculmination of hostile rumination towards the victim's family. He also acknowledgedthat he struggled to control his thoughts and feelings and that he was concerned hemight act violently or explode because of negative ruminations about others. An attackon a fellow prisoner was preceded by an expression of a desire to harm him andwaiting for a moment to act.[56] Similarly, in Department of Corrections v McCord, Davison J said:80[58] The applicant submits that McCord's past offending illustrates that hedoes possess this characteristic of persistent harbouring of vengeful intentions.Having regard to his conduct whereby he acted violently towards both hisintimate partners in respect of whom he had developed feelings of sexualjealousy, and also towards others in response to feeling disrespected, I amsatisfied that he does possess this characteristic. The violence he has exhibitedin those circumstances was not reactive and an immediate response to a71 "Persistent" Cambridge Dictionary <www.dictionary.cambridge.org>.72 Collins English Dictionary, above n 70, at 892, definition of "harbour".73 "Harbouring" Cambridge Dictionary <www.dictionary.cambridge.org>.74 "Harbor" Merriam-Webster <www.merriam-webster.com>.75 Brown, above n 69, at 3517.76 Collins English Dictionary, above n 70, at 2200.77 "Vengeful" Cambridge Dictionary <www.dictionary.cambridge.org>.78 Department of Corrections v Wilson, above n 58.79 At [39].80 Department of Corrections v McCord [2017] NZHC 744.particular situation, but rather it appears to have been the result of ruminationand a subsequent acting out of a vengeful intention.[57] Again similarly, in Department of Corrections v Paul, where the offenderaccepted that an ESO of 10 years should be imposed, Mander J referred tothe offender's "reported intermittent periods of engaging in violent ruminativeideation which appears to have been in response to perceptions that he is at risk ofharm from others".81[58] In the District Court, the Judge was referred to two other High Courtdecisions.82 In those cases, the Court were satisfied the criterion was met even thoughthe vengeful intention was not targeted at any particular individual.83 In Departmentof Corrections v Amohanga, the ESO was not opposed by the offender and theevidence that could support the vengeful intention was only briefly referred to.84In Department of Corrections v Paniora, as the Judge noted, one psychologist referredto the offender's "potential to seek revenge through violence, and identifies suchconduct in his past offending" and the other was of the view that the offender wasintensely motivated to be violent, including for revenge.85[59] We consider that Mr Fourie's evidence does not support a conclusion thatMr Mosen has the characteristic of "persistent harbouring of vengeful intentionstowards one or more persons".86 Mr Fourie said that Mr Mosen acts reactively andimpulsively out of frustration and because of poor problem-solving skills.[60] We also consider that Mr Lascelles' evidence does not support Mr Mosenhaving the characteristic either. He gave the example of Mr Mosen wanting to stranglehim because he did not like the questions. That is a vengeful intent but, given its veryshort duration, does not qualify as "persistent harbouring" of that intent in and of itself.Mr Lascelles also referred to a long-term pattern of threatening behaviour in the81 Department of Corrections v Paul [2017] NZHC 1294 at [26].82 Department of Corrections v Amohanga [2017] NZHC 1406; and Department of Corrections vPaniora [2018] NZHC 1505.83 See Department of Corrections v Amohanga, above n 82, at [35] and [55]; and see generallyDepartment of Corrections v Paniora, above n 82, at [28] and [32].84 Department of Corrections v Amohanga, above n 82, at [4] and [26]–[30].85 Department of Corrections v Paniora, above n 82, at [14] and [19], as cited in Departmentof Corrections v Mosen, above n 1, at [109].86 Parole Act, s 107IAA(2)(a)(iii).context of feeling wronged by others and experiencing brief but intense anger.We consider the brevity of this intense anger is more consistent with impulsivefrustration that takes its form as violence rather than "persistent harbouring of avengeful intention". Mr Mosen does not ruminate or hold onto thoughts of obtainingrevenge for a perceived lack of response to his needs or demands. His reactive threatsand violence are better captured by the "intense urges to commit acts of violence"and the "extreme aggressive volatility" criteria.87 We consider the additional"persistent harbouring of a vengeful intention" characteristic has not been shown.[61] For completeness, we note that this conclusion is supported by Ms Visser.She considers Mr Mosen's violent responses are mostly driven by reactive short-termresponses related to past trauma and lack of control.Behavioural evidence of clear and long-term planning of serious violent offences tomeet a premeditated goal[62] The Judge was satisfied that Mr Mosen displayed this behavioural evidence.88He referred to the views of both psychologists that Mr Mosen's relevant violentoffences showed evidence of planning to commit the crime but any planning probablyoccurred over relatively shorter periods.89 The Judge did not explain why he wasnevertheless satisfied of this criterion. This is of no moment, however, becauses 107IAA requires that the Court be satisfied either of this criterion or the next criterion("limited self-regulatory capacity").90 There is no doubt that this next criterionwas met.Limited self-regulatory capacity[63] The Judge was satisfied that Mr Mosen had limited self-regulatory capacity.91That conclusion was supported by the evidence of both Mr Fourie and Mr Lascelles.The Judge recorded that Mr Fourie had noted that Mr Mosen's rapid reoffendingfollowing releases from prison illustrated his limited self-regulatory capacity,87 Section 107IAA(2)(a)(i) and (ii).88 Department of Corrections v Mosen, above n 1, at [61], referring to Parole Act, s 107IAA(2)(b)(i).89 At [59].90 Parole Act, s 107IAA(2)(b).91 Department of Corrections v Mosen, above n 1, at [64], referring to Parole Act, s 107IAA(2)(b)(ii).even though there were some intermittent, but unstable, improvements in this area.92The Judge's conclusion on this is not challenged on appeal. We consider the Judgedid not err in reaching it.Absence of understanding or concern about the impact of his violence[64] The Judge was satisfied that this criterion was met.93 This conclusion wassupported by the psychologists' evidence.94 It is not challenged on appeal.Very high risk of committing a relevant violent offence in the future[65] Because the Judge found the criteria in s 107IAA was established, it was opento him to determine that there was a very high risk that Mr Mosen would commit arelevant violent offence.95 The Judge noted what the psychologists had said about thisand concluded that he was satisfied about it.96[66] We have found that one of the criterion in s 107IAA(2) is not met.That section provides that the Court may determine there is a very high risk that theoffender will commit a relevant violent offence only if it is satisfied of the specifiedcriteria. Our conclusion that the criterion of "persistent harbouring of vengefulintentions" is not met means it is not open to us to be satisfied that there is a very highrisk that Mr Mosen would commit a relevant violent offence. We nevertheless reviewthe evidence on this.[67] Mr Fourie's view was as follows:21 In summary, based on a multi-method assessment of Mr Mosen's riskof further relevant re-offending using RoC*Rol, VRS and PCL:SVratings, it is considered that there is a High risk of Mr Mosencommitting a further relevant offence. However, noted clinical factorsincluding his very-high rate of prison misconducts, his risk to commita relevant offence could increase to Very High given specific92 At [62].93 At [68], referring to Parole Act, s 107IAA(2)(c). See Department of Corrections v Alinizi,above n 58, at [13] setting out a three-step process involving: (i) determining whether the offenderhas, or has had, a pervasive pattern of sexual or violent offending; (ii) making specific findings asto whether the offender meets the criteria in s 107IAA; and (iii) if those criteria are met,determining the risk of the offender committing a relevant offence.94 See at [65]–[67].95 Parole Act, s 107I(2)(b)(ii).96 Department of Corrections v Mosen, above n 1, at [42]–[48] and [129].idiosyncratic and environmental factors. In particular, Mr Mosen hasreverted rapidly to relevant offending in the presence of destabilisers(relationship difficulties) in order to get drugs. Mr Mosen also haslimited prosocial and stable values, goals or support and has had notreatment to develop effective coping strategies. In summary,the likelihood of Mr Mosen shifting from High to Very-High wouldseem to be almost certain.33 Mr Mosen's offending includes five convictions for relevant violentoffences. Mr Mosen is considered to be at high risk for violentre-offending. However, given specific idiosyncratic andenvironmental factors Mr Mosen's risk will escalate to very-high.Future situations where his risk will be very-high include a relapseinto drug abuse and more specifically the associated financialdifficulties to sustain his drug addiction. In the event that Mr Mosenremains a recipient of a methadone prescription, his risk couldescalate to very high if problems arise with his methadoneprescription. Likely problems could be the availability of prescribedmethadone or if he is provided more than one day's supply,for instance over a weekend, and he consumes it all at once.Interpersonal conflict and personally distressing events wouldexacerbate these potential periods of acute risk. Mr Mosenpresents with a number of high end and complex needs and his currentrelease plan is not considered sufficient to mitigate his risk.Paramount to successful reintegration and mitigating his risk will beMr Mosen's attitude towards the support services, including theProbation Service and his willingness to engage. Mr Mosen'santi-authority attitudes and [beliefs] are considered a major obstaclein his engagement with these support services.[68] Mr Fourie remained of this view in his addendum report.[69] Mr Lascelles' view was as follows:49. In summary, I generally concurred with Mr Fourie's scoring of therisk instruments. Based on the information available to me, and myinterview with Mr Mosen, I scored both the PCL:SV and the VRSslightly higher than Mr Fourie. In my view, Mr Mosen's risk offurther offending leading to reimprisonment is very high, withbreaches of conditions of release being consistent with his historyboth in the community and his consistent rule breaking in prison.50. Mr Mosen's high to very high risk of further violent offending is alsowell established in my view. However, it is the nature of any futureviolence that is less clear, particularly in regard to the relevant violentoffending described by the Extended Supervision legislation.The most likely violent offence in the short term is expected to involvesome form of threatening behaviour, through a verbal means or aphysical display of intimidation.51. Mr Mosen's capacity for more serious violence is expected to emergein certain specific circumstances and scenarios. Two key riskscenarios in my view are:a. Conflict or perception of threat by a peer is likely to result inMr Mosen reacting impulsively to "neutralise" [the]perceive[d] threat and feeling entitled to act by strongly heldbeliefs supporting such behaviour. This is as opposed toavoiding or managing conflict through more peaceful means.Mr Mosen's resolve to remain part of the Skinhead culture,his prominent tattoos, and reputation are all likely to increasehis risk of coming into serious conflict with others.b. If Mr Mosen relapses into illicit drug (or methadone use), andis temporarily unable to access a supply, he will be stronglymotivated to carry out acts of impulsive violence to obtainfunds or drugs directly. This may involve the use of weapons,and place members of the public at risk.[70] We certainly accept that there is a very high risk of Mr Mosen offending againfor the reasons the psychologists give. However, we agree with Mr Lascelles that it isless clear that this offending will be of a relevant violent offence. This is alsoMs Visser's view. Mr Mosen's last relevant violent offence was in 2013. He has,however, spent much of the time since then in the controlled prison environment.Of most concern is that, following the ESO and his time in the community, he hascontinued to offend by having unlawful possession of firearms, and has refused toprovide specimens for drug testing as he is required to do. Drug taking and possessionof firearms is a risky and potentially lethal combination, particularly if he does nothave the money to pay for drugs.[71] On the other hand, it is clear that Mr Mosen finds the ESO restrictionsfrustrating. He wants to get on with his life with his wife. Ms Visser is of the opinionthat the ESO is more likely to create a situation where Mr Mosen offends due to thosefrustrations. His history shows that he responds to situations where he does not havecontrol, such as a custodial setting, with rebellion. Mr Mosen's anti-authority attitudespresent a major obstacle in his engagement with the support services that are availableto him under an ESO. Ms Visser considers that Mr Mosen can change, and that hewants to, but this will require time for him to develop a therapeutic relationship witha psychiatrist.Is an ESO strongly justified?[72] We consider that an ESO would have been strongly justified if Mr Mosen metall the criteria for being of a very high risk that he would commit a relevant violentoffence. The need for public safety would outweigh Mr Mosen's right to be free froma second penalty and justify some limits on his freedom of movement and association.But the statutory criteria have not all been met.Term[73] Mr Bott submits the Judge did not assess whether a five-year term wasnecessary and proportionate to justify the limitations on Mr Mosen's rights. However,the Judge concluded on the basis of the psychologists' reports and evidence thatfive years was "the minimum period" to address the risks and that he "would havebeen open to imposing a higher term, given the pessimistic outlook for Mr Mosen'sability to address issues of violence".97 This conclusion was open to him on theevidence. For example, Mr Fourie said that, in order to address the root causes ofMr Mosen's offending, Mr Mosen would require intensive psychological treatment fortwo to three years, with pre-treatment work before that (assuming he would be willingto engage in such work). Mr Lascelles said Mr Mosen is at high to very high risk ofviolent offending during the next five years. We therefore do not accept Mr Bott'ssubmission. We would have upheld the five-year term if we had found that the criteriafor an ESO were established.Result[74] The application for an extension of time to appeal is granted.[75] The application for leave to adduce fresh evidence is granted.[76] The appeal is allowed.[77] The ESO is cancelled.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent97 Department of Corrections v Mosen, above n 1, at [141].