BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Applicant AND TAGO DAVID KEPA ADAMS Respondent
[2023] NZHC 3720
•15 December 2023
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-404-000547
[2023] NZHC 3720
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
TAGO DAVID KEPA ADAMS
Respondent
Hearing: 13 December 2023 Appearances:
J Blythe & A Dawson for the Applicant
J Murdoch & J McPherson for the Respondent
Mr Adams (Respondent) & Mr Hokianga (Case Officer) via VMRJudgment:
15 December 2023
JUDGMENT OF TAHANA J
(Application for an interim supervision order)
This judgment was delivered by me on 15 December 2023 at 12 noon
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Meredith Connell, Auckland Public Defence Service, Manukau
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ADAMS (Application for an interim supervision order) [2023] NZHC 3720 [15 December 2023]
Application for interim supervision order
[1] The Chief Executive of the Department of Corrections (the Applicant) applies for an interim supervision order (ISO) against Mr Adams under s 107FA of the Parole Act 2002 (the Parole Act) pending determination of its application for an extended supervision order (ESO).
[2] In 2018, Mr Adams was sentenced to six years and five months’ imprisonment for burglary, aggravated wounding and abduction for the purpose of unlawful sexual connection.1 He was released from custody after serving his full term of imprisonment on 18 July 2023 and his release conditions are due to expire on 17 January 2024. After release, on 13 October 2023 the Applicant applied for an ESO.
[3]Mr Adams opposes the application.
Background
[4] No Ngāti Maniapoto a Mr Adams. Mr Adams is from Ngāti Maniapoto. He was born in 1985 and had a very troubled childhood, having experienced sexual and physical abuse. His schooling ended at age 13. He was homeless and his offending started while he was still a youth.
[5] Mr Adams has been sentenced on 13 occasions, receiving 30 convictions, including six convictions when he was only 17 years old. Mr Adams’ violence offences include:
(a)In 2005, a conviction for wounding with intent to injure, for which he received a two-year term of imprisonment.
(b)Convictions in 2008 for common assault and assaulting police, which resulted in a year of community-based supervision.
(c)In 2011, Mr Adams was sentenced to seven years and two months’ imprisonment, in respect of four counts of burglary, two of wounding
1 R v Adams [2018] NZHC 1386.
with intent to injure, and one of unlawful interference with a motor vehicle. The two wounding with intent charges were both committed in the course of two burglaries:
(i)The first victim was home along with her children. Mr Adams entered the house, discovered the victim asleep, straddled her and punched her numerous times to the head, before running from the house. As a result, the victim was left severely traumatised and received bruising to both eyes, a graze on the corner of her right eye, swelling and numbness to her left cheek, a fractured left cheek bone, and a fractured left eye socket.
(ii)Some three weeks later, Mr Adams again entered a residential address. Mr Adams entered the bedroom, walked straight up to the female victim, and began punching her numerous times to the head. She too was left severely traumatised and received swelling and bruising to her face, a broken nose, five stitches to her forehead and a cut to the inside of her mouth, and a cut to her lip which required two stitches.
(iii)Mr Adams later admitted to having thoughts of raping these victims.2
(d)On 12 June 2018, Whata J sentenced Mr Adams to six years and five months’ imprisonment for the index offending which occurred in February 2017. Mr Adams had been released from prison in respect of the 2011 offending. He was on parole conditions that were set to apply until 9 May 2017. The circumstances of the offending, and Mr Adams response, are as follows:
(i)On 13 February 2017, Mr Adams approached a woman walking along a road in Mount Eden. He placed her in a headlock, choking her, then pushed her into the footwell of his car.
2 At [15].
Mr Adams proceeded to choke the victim to stop her from screaming. When the victim continued to scream, he gouged her eyes with his fingers. These attacks caused bruising to her forehead and haemorrhaging in both of her eyes. Mr Adams then drove away with the victim still in the footwell. As he did so he touched her genital area on the outside of her clothing, then pushed his hand beneath the victim’s shorts and underwear and touched her skin in the area around her pelvic bone. The victim was able to escape by grabbing the door handle and rolling from the car as it travelled down the road at speed. As a result of having to jump from the moving car, she sustained deep cuts on her right elbow and abrasions over her body.
(ii)Two hours later, Mr Adams entered a property in Mount Eden and stole a number of pairs of female underwear. No other items were taken.
(iii)When he was apprehended by the Police, Mr Adams admitted he had abducted the victim with the intention to rape her.
[6] To his credit, Mr Adams has since 2016, expressed his own concerns as to his thoughts of sexual offending. He is to be commended for his self-awareness and willingness to share those thoughts and ask for help. While Mr Adams has engaged in one-on-one psychological treatment (which I set out below) and various rehabilitation programmes, he “no longer had sufficient time left on sentence to complete the Adult Sexual Offender Treatment Programme (ASOTP), which he was waitlisted for as the most suitable programme based on his risk and needs.”3 Mr Adams expressed reluctance with engaging with the ASOTP because of fear of being stigmatised by other prisoners. Mr Adams’ engagement with rehabilitation includes:
3 Report of Mr Louw dated 15 September 2023 at [40].
(a)March 2014: Mr Adams engaged in the Medium Intensity Rehabilitation Programme (MIRP) and expressed motivation to complete the Dependence Treatment Unit (DTU) programme.
(b)2016: Mr Adams participated in the DTU programme and disclosed that he needed help, and he was scared that if he burgled a house and found a woman alone and asleep, he would likely rape her.
(c)July to November 2016: Mr Adams engaged in 19 sessions of individual psychological treatment.
(d)November 2016: case notes provided by Mr Adams’ counsel record that during individual sessions Mr Adams stated “that he has been experiencing sexual fantasies about lifeless female bodies and that he intended to rape the victims of his last two burglary charges after he knocked them unconscious. He said that [he] was anxious about acting on these thoughts, that he does not want to sexually offend and that he has not talked about this to anybody beforehand.” The notes indicate that they thought a follow up engagement with a psychologist in the community would be helpful. The engagement would take the form of an assessment of outstanding treatment needs and recommendations. Mr Adams was then released into the community and the February 2017 offending occurred.
(e)July to October 2020: Mr Adams engages with a Mason Clinic psychologist to address intrusive thoughts regarding self-harm and harm to others.
(f)October to November 2020: Mr Adams undergoes five sessions of individual treatment with a psychologist. Treatment was terminated due to transfer to another prison.
(g)March 2021: Mr Adams engages in trauma relief therapy.
(h)17 May 2021: Mr Adams reports a preference to engage in individual treatment due to a worry about being perceived by his peers as a sex offender. Mr Adams is assessed by Mr Moon Lee, psychologist for the purposes of reporting to the Parole Board. Mr Lee assesses Mr Adams at a high risk of violent offending and at the top end of the above average risk of further sexual offending. He says Mr Adams would benefit from a comprehensive release plan and relapse prevention plan following offence-related treatment. Mr Lee notes that given his high risk of reoffending in company with entrenched deviant sexual preference, individual treatment is not considered intensive enough to support his rehabilitative needs. However, such engagement may motivate him to attend the group based ASOTP.
(i)October 2022: Mr Adams started individualised psychological treatment but it was interrupted due to matters outside of his control. He was also waitlisted for the ASOTP but he did not have sufficient time left in his sentence to complete it.
[7] In July 2023 Mr Adams was released subject to conditions, which are due to lapse on 17 January 2024.
Statutory scheme
[8] Section 107FA of the Parole Act sets out the circumstances in which a court may make an ISO and provides:
107FA Sentencing court may make interim supervision order
(1)This section applies if, before an application for an extended supervision order is finally determined, 1 or more of the following events occur:
(a) the offender who is the subject of the application is released from detention:
(b) the offender who is the subject of the application ceases to be subject to an extended supervision order:
(c) the offender who is the subject of the application fails to appear at the hearing of the application and is brought before the court under a warrant issued under section 107G(3):
(d) an offender who is a person described in section 107C(1)(b) arrives in New Zealand.
(2)The sentencing court may, on application by the chief executive, order that, until the application for an extended supervision order is finally determined, the offender is subject to the supervision conditions specified in the order.
(3)When the court makes an interim supervision order, it may impose any of the standard conditions that are (under section 107JA), or special conditions that may be (under section 107K), imposed under an extended supervision order.
(4)If, under an interim supervision order, the court imposes an intensive monitoring condition or residential restrictions, the period for which the interim supervision order is in force is not to be taken into account for the purpose of the limits specified in section 107K(3)(b) and (ba).
(5)The court may suspend an interim supervision order subject to any conditions that the court thinks fit.
(6)An interim supervision order ceases to have effect when the application for an extended supervision order is finally determined or discontinued.
[9] The purpose of an ESO “is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.”4 Under s 107I(2), a sentencing court may make an ESO if, following the hearing of an application made under s 107F, the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2A), that—
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b)either or both of the following apply:
(i)there is a high risk that the offender will in future commit a relevant sexual offence:
4 Parole Act 2002, s 107I(1).
(ii)there is a very high risk that the offender will in future commit a relevant violent offence.
Position of parties
[10] Ms Blythe for the Applicant says that the statutory criteria are met on a provisional basis and Mr Adams has, or has had, a pervasive pattern of serious sexual or violent offending; that there is a high risk that Mr Adams will commit a relevant sexual offence and a very high risk that he will commit a relevant violent offence in the future.
[11]The Applicant relies on the following in support of its position:
(a)a report of Mr Louw, psychologist dated 15 September 2023 and an addendum to that report dated 22 November 2023;
(b)an affidavit of Karyn Diane Morris, case manager at Corrections, dated 29 November 2023;
(c)a report of Mr Lee, psychologist, prepared for the New Zealand Parole Board dated 17 May 2021;
(d)a forensic report of Dr Kyros Karayiannis, consultant psychiatrist, prepared pursuant to s 88 of the Sentencing Act 2002 dated 5 April 2021;
(e)a forensic report of Dr Krishna Pillai, consultant psychiatrist, prepared pursuant to s 88 of the Sentencing Act 2002 dated 30 April 2018;
(f)a pre-sentence provision of advice to court (PAC) report dated 19 February 2018;
(g)sentencing notes of Judge A J Johns of 18 March 2011; and
(h)sentencing notes of Whata J dated 12 June 2018.
[12] Ms Murdoch for Mr Adams says that the statutory criteria are not met in relation to either the sexual offending or the violent offending. That only the index offending is sexual offending for the purposes of determining whether there is a pervasive pattern of sexual offending so that the first limb of the test is not met for the sexual offending. Further, that there is no psychological evidence to support a finding that there is a high risk of violent offending so that the criteria in relation to violent offending is also not met. Ms Murdoch says an ISO should not be made but if it is, any conditions should be limited to the current release conditions. Ms Murdoch refers to a report of Mr Paul Carlyon, clinical psychologist, dated 20 March 2014 and psychological case notes dated November 2016.
Is Mr Adams an eligible offender?
[13] It is agreed that Mr Adams is an eligible offender within the meaning of s 107C(1). Mr Adams is not subject to an indeterminate sentence but has been sentenced to imprisonment for relevant offences5 and is currently subject to release conditions until 17 January 2024.
[14] In sentencing Mr Adams, Whata J noted that Corrections has several mechanisms, including extended supervision orders, that might be deployed to mitigate the risks presented by Mr Adams.6
Does Mr Adams have a pervasive pattern of serious sexual or violent offending?
[15] Ms Murdoch accepts that Mr Adams has a pervasive pattern of serious violent offending but not serious sexual offending.
Violent offending
[16] I consider that the history of Mr Adams’ offending as set out at [5] discloses a pervasive pattern of violent offending.
5 Abduction for the purposes of sexual connection is a “relevant sexual offence” as defined in s 107B(2) of the Parole Act. Aggravated wounding and wounding with intent are “relevant violent offences” as defined in s 107B(2A) of the Parole Act.
6 R v Adams, above n 1, at [34].
[17] Counsel for Mr Adams says there has not been disclosure of the alleged instances of violence during Mr Adams’ incarceration. Mr Louw’s report identifies the number of incident reports (54) and misconduct charges (17) and his conviction for common assault while incarcerated. While the Applicant has not yet disclosed the files with the details of these incidents, Mr Adams should be aware of what they relate to and is in a position to provide any explanation in response. I do not consider that the absence of disclosure is a basis to not find that there is a pervasive pattern of violent offending. Even if the violent offending is considered alone (without regard to any incidences while incarcerated), I accept that there is a pervasive pattern of violent offending.
Sexual offending
[18] Ms Murdoch says the sexual offending is not pervasive and refers to the fact that Mr Adams has only one conviction for serious sexual offending and that at the time of his sentencing in 2011, Mr Adams was not considered to be a sex offender. Counsel for Mr Adams refers to the case notes dated November 2016 which record that “[h]e is not classified as a sexual offender and thus is unlikely to be managed as one.” Those case notes went on to share information of Mr Adams’ disclosure of “sexual fantasies” because there was a concern of the potential risk they posed and the need for treatment when he was released on parole.
[19] While Mr Adams has only one conviction for sexual offending, the Applicant says that his index offending must be viewed in the context of the two prior burglaries which had sexual overtones.
[20] In considering whether there is a “pervasive” pattern of serious sexual offending, the Court of Appeal in W v Chief Executive of the Department of Corrections noted the ordinary meaning:7
[24]The ordinary meaning of pervade is: “spread throughout, permeate.”
7 W v Chief Executive of the Department of Corrections [2019] NZCA 460 citing Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Oxford, 2005) at 845.
[21] Counsel for Mr Adams refers to the following parts of Dr Pillai’s report and says the burglaries were motivated by a desire to supplement his income and not by a desire to engage in sexual offending:
38. Mr Adams told me that previous burglary and wounding with intent to injure which occurred in 2009 related to burglaries he was committing near to where he was staying in Takanini at the time. He had broken into the houses involved and these two burglaries were discovered as there were people in the house which he ended up assaulting. He reported to me that both victims on this occasion were young women although he told me this had no influence upon his decision to enter those dwellings.
...
48. It was during this period of time that Mr Adams stated he committed burglaries to supplement the family income and to assist with raising his children. In the context of these burglaries on two occasions he stated he found a young woman in the house. He assaulted the women in question. He acknowledged that during such assaults he had have [sic] thoughts of raping them but stated "I had a conscience" and also stated that he did not want to end up with a rape conviction so did not do this.
[22] In light of Mr Adams’ own concerns about his thoughts during the burglaries, it would be inappropriate to ignore them and not consider that there are sexual overtones to the offending. The thoughts were sufficiently concerning for Mr Adams to raise them in 2016 and then again in 2018 when assessed by Dr Pillai and Dr Karayiannis. Mr Adams himself, was obviously worried about what those thoughts meant and had volunteered them presumably in the hope that he would receive the necessary help to stop him from acting on them. He himself associated the thoughts with the burglaries and volunteered this information.
[23] The circumstances of the burglaries are also relevant and suggest a potential sexual element. In relation to the first victim, Mr Adams stole from the car on 3 July and then returned on 24 July. It was not a therefore a random residence. The victim’s husband and brother had left shortly before Mr Adams entered the premises. The victim felt Mr Adams on top of her and awoke. He then punched her violently when she started screaming.
[24] In relation to the second victim, her wallet had been stolen from her car in June [or July] and then Mr Adams returned to her house on 15 August and broke in after her husband had left for work. Mr Adams saw the victim in her bedroom and pushed
open her partly closed bedroom door and walked straight up to her and punched her numerous times. Both burglaries were accompanied by violence towards the women victims. The fact that the victim was in her room and that there does not appear to have been any basis to enter the bedroom for the purposes of the burglary, suggests that it may have been sexually motivated.
[25] The PAC report writer for the 2018 report also notes that “records suggest his previous convictions may have included a sexual element to his motivation.”
[26] Mr Louw considers that Mr Adams’ index offending “was not an isolated incident but rather the culmination of sexual deviant fantasy and violent rumination based on an entrenched hostility towards women.” Mr Louw concludes in his report:
Although he only has one sexual offence, previous relevant violent crimes against two female victims while committing burglaries at their homes were potentially sexually motivated, and Mr Adams expressed deviant violent and sexual thoughts and fantasies regarding these victims.
[27] The Court of Appeal in W acknowledged that a burglary type offence may be a sexual offence if the circumstances warrant it:
[17] We consider a burglary type offence, whatever specific charge is used, can be a sexual offence depending on the circumstances. To take an obvious example, if the breaking and entering is for the purposes of committing a rape, it would be untenable to exclude that from consideration as not being a sexual offence.
[28] Consistent with W, I consider it appropriate to consider the offending in 2011 as having a sexual element. Mr Adams sees the offending in that way and it was those thoughts that triggered Mr Adams to disclose his concerns in 2016 and again after the index offending when assessed by Dr Pillai and Dr Karayiannis.
[29] While I accept that there appears to be a pattern to the 2011 and 2017 offending, when viewing it in the context of Mr Adams’ overall offending, it is difficult to find that serious sexual offending is “spread throughout” or “permeates” the offending within the ordinary meaning of “pervade.” There was certainly the potential for serious sexual offending, but it did not eventuate. This is consistent with Whata J’s view when he sentenced Mr Adams:
[35] In the result, Mr Adams, I consider that it is too premature to conclude that you present an unmanageable risk of reoffending. Two factors, in particular, drive this conclusion. Your violent offending, while revealing a pattern, does not reveal a repeated pattern of sexual offending. Secondly, you have not benefitted from a treatment plan specifically directed to your needs.
[30] In these circumstances, I am not satisfied that Mr Adams has a pervasive pattern of serious sexual offending.8
Is there a high risk that Mr Adams will in future commit a relevant sexual offence?
[31] If I am wrong as to the characterisation of Mr Adams’ sexual offending history, it is appropriate to consider whether there is nevertheless a high risk of committing a relevant sexual offence. In answering this question, I must be satisfied that Mr Adams:9
(a)displays an intense drive, desire or urge to commit a relevant sexual offence;
(b)has a predilection or proclivity for serious sexual offending;
(c)has limited self-regulatory capacity; and
(d)displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse of past offending;
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
8 Emphasis added.
9 Parole Act 2002, s 107IAA.
Does Mr Adams display an intense drive, desire or urge to commit a relevant sexual offence?
[32] Ms Murdoch says that Mr Louw’s report is unreliable because he has failed to review the reports of Dr Pillai or Dr Karayiannis and he mischaracterises Mr Adams’ attitude to rehabilitation. Both Dr Pillai and Dr Karayiannis identified Mr Adams as being at a high risk of sexual offending and Whata J at sentencing noted that Mr Adams had not, at that stage, had an opportunity to engage in rehabilitative programmes. Mr Louw does not explain why he considers the risk has increased to “very high” since the reports of Dr Pillai and Dr Karayiannis.
[33] Ms Blyth says that Mr Louw is entitled to reach his own view on the relevant risk, and that Mr Louw is not constrained by Dr Pillai and/or Dr Karayiannis’ assessment, which was undertaken at an earlier time.
[34] The evidence of Mr Louw concludes that Mr Adams displays an intense drive to commit relevant sexual offending. He notes that Mr Adams has experienced “violent sexual fantasies” both during the index offending, and his earlier burglary offending. There is also the fact of the burglary of female underwear after the failed abduction.
[35] Mr Louw in his addendum report notes that “Mr Adams’ experience of intrusive and distressing violent and sexual fantasies prior to his index offending was well documented in other non-privileged sources.” He then refers to the sentencing notes of Whata J and the report of Mr Lee in May 2021. Mr Lee’s report notes that “Mr Adams reported experiencing sexual fantasies that involve violent acts and rape scenarios.”
[36] I also accept the Applicant’s submissions which refer to the following as evidencing an intense drive, desire or urge to commit a relevant sexual offence:
(a)The section 88 reports record that Mr Adams “fantasised about sexual practices involving humiliation and violence,” and that he acknowledged that angry thoughts had turned to sexually violent
thoughts on previous occasions, not just the 2018 offending. Mr Adams told one report writer that rape thoughts made him “excited.”
(b)The 2018 PAC report notes that “Mr Adams presented as distraught throughout the interview, which he attributed to being aware of his own distorted perception of the world, his hatred for women, and his desire to offend both violently and sexually.”
(c)When sentencing Mr Adams for the index offending, Whata J observed that: 10
... the present sexual component of your violence is a first for you. It is also relevant that while you admit that you intended to rape the victim and self-report that you have thought about doing so on other occasions, you have not in fact committed any proven acts of actual sexual violation.
(d)Mr Lee in his 2021 report notes Mr Adams reported experiencing sexual fantasies that involve violent acts and rape scenarios.
[37] Taking into account all of the above, I am satisfied that Mr Adams displays an intense drive, desire or urge to commit a relevant sexual offence.
Does Mr Adams have a predilection or proclivity for serious sexual offending?
[38] This Court has considered the meaning of predilection and proclivity as follows:11
[44] The terms “predilection” and “proclivity” are used disjunctively in s 107IAA(1)(b). Neither term is defined in the Act. In context and using the dictionary definitions of the words: “predilection” means preference for or particular liking for some serious sexual offending, “proclivity” embraces an inclination toward something considered morally wrong, such as serious sexual offending.”
[39] Mr Louw considers that Mr Adams has a predilection and proclivity for serious sexual offending and refers to Mr Adams’ violent sexual fantasies and his desire to
10 R v Adams [2018] NZHC 1386 at [15].
11 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44]; See also
Mist v Chief Executive of the Department of Corrections [2023] NZCA 549 at [58].
rape the victims of his earlier burglary offending and index offending and says they demonstrate both a preference and an inclination towards serious sexual offending.
[40] Ms Murdoch accepts that in terms of the index offending, it appears to be sexually motivated.
[41] I am satisfied that the evidence establishes that Mr Adams has a predilection or proclivity for serious sexual offending.
Does Mr Adams have limited self-regulatory capacity?
[42] This Court has considered the meaning of “limited self-regulatory capacity” noting that “limited” suggests that questions of degree are involved in the assessment:12
... Use of the word “limited” suggests that questions of degree are involved in this assessment. The phrase is used in the context of a list of factors that must be established before an extended supervision order can be made. The apparent nexus is between the existence of limited self-regulatory capacity (on the one hand) and the high risk of committing a relevant sexual offence (on the other).
[92] At one level, the inquiry is directed to whether an offender has a limited capacity to self-regulate his or her desires or urges to commit relevant sexual offences. Put another way, the question is whether an offender has sufficient capacity to self-regulate those impulses. Yet, to approach the issue in that way is over simplistic. As a matter of common sense, the extent of any ability to self-regulate those impulses is dependent on the capacity to avoid circumstances in which the relevant drive, desire or urge are likely to manifest themselves.
[43] While I accept that Mr Adams did show he was able to self-regulate his sexual desires in relation to the offending in 2011, the index offending in 2017 indicates otherwise. Further, both the 2011 and 2017 offending indicates an inability to self- regulate his desire to hurt the innocent female victims.
[44] Mr Louw notes that Mr Adams’ risk of reoffending has been managed almost exclusively through incarceration since he was 23 years old. In a brief three-month release in late 2016 and early 2017, he committed the index offending. Mr Louw
12 Chief Executive of the Department of Corrections v Bradbury (No 2) [2016] NZHC 2816 at [91] and [92] (footnotes omitted).
considers that further offending in the community would have been a likely outcome if Mr Adams had not been imprisoned for this time. This observation is consistent with Dr Pillai’s observation that he “has no viable plans for community living and if [he] return[s] to the community at this time [he] pose[s] a very high risk of reoffending within a short space of time.”13
[45] Mr Louw considers that Adams has continued to display limited self-regulatory capacity in prison. During Mr Adams’ recently completed term of imprisonment (February 2017–July 2023) he was named in 54 incident reports and was found guilty on 17 misconduct charges. On 22 September 2023, only two months after his release from Auckland Prison, Mr Adams was arrested after threatening a fellow resident of his supported accommodation facility with a knife.
[46] The role of substance abuse in the index offending is also relevant to capacity for self-regulation. Mr Adams has addiction issues. He has reported abusing cannabis since 10 or 11 years of age and methamphetamine since his mid-20s. Mr Adams has admitted that he was under the influence of GHB at the time of the index offending. The 2021 report writer considered that substance abuse played a role in his index offending. Mr Adams has completed rehabilitative programmes targeting substance abuse multiple times between 2016 and 2018. In his addendum report, Mr Louw reports that Mr Adams has regularly consumed cannabis since his return to the community, and was relying on it to self-medicate after he ran out of prescribed anti- depressant medication a few weeks after his release. Continued substance abuse will inhibit Mr Adams’ self-regulatory capacity.
[47]I am satisfied that Mr Adams has limited self-regulatory capacity.
Does Mr Adams display either a lack of acceptance of responsibility or remorse or an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims?
[48] Ms Murdoch for Mr Adams says neither of these factors are present. Mr Carlyon notes that Mr Adams reported to him in 2014 that “he intends to remain in prison for the entirety of the sentence imposed upon him.”
13 At [89] of Dr Pillai’s report dated 30 April 2018.
[49] The Applicant refers to McIntosh v Chief Executive of the Department of Corrections which indicates that responsibility or remorse must be present to a sufficient degree to mitigate the risks:14
[23] Offenders who present a high risk of committing a relevant sexual offence will not have the protective characteristics described in s107IAA(1)(d). This is consistent with the statutory wording which speaks of “a lack of” and “an absence of” these protective characteristics. However, the absence (or lack) of these characteristics are indicia of high risk offenders only because these protective characteristics mitigate this risk. The focus must therefore be on whether the acceptance of responsibility, remorse, understanding or concern are material in the given case in the sense that they are present to a sufficient degree to mitigate the relevant risk. Parliament cannot have intended that any degree of presence of these protective characteristics (no matter how limited and whether or not in any way operative to mitigate the risk), would preclude a person from being assessed as being at high risk. Such an interpretation would plainly be inconsistent with the statutory purpose of public protection.
[50] The Applicant acknowledges that Mr Adams has previously expressed concern about his capacity for violence, and self-reported that he was relieved police arrested him after the index offending, so that he would not offend further. I accept that Mr Adams has shown remorse and accepted responsibility for his offending.
[51] If it were not for Mr Adams disclosing his inner thoughts, it would have remained unknown that there was a sexual element to the 2011 offending and that Mr Adams intended to rape the victim of the index offending. Mr Adams should be acknowledged for disclosing his inner thoughts which indicate a cry for help rather than a resistance to treatment. Mr Adams himself raised his concerns about his sexual thoughts in 2016 and again in 2018. Mr Adams was only resistant to the ASOTP because of potential stigma from other prisoners which indicates that it was not motivated by a lack of desire to be treated but by what he considered was a legitimate concern. Mr Adams has continually indicated a willingness to engage in individualised treatment.
[52] The issue however, is that Mr Adams has expressed an unwillingness to participate in the ASOTP. Mr Lee in his 2021 report considered that “treatment targeting Mr Adams’ deviant sexual scripts should be prioritised”. Mr Adams’
14 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218.
concerns about being labelled a sex offender outweigh his awareness of the impact on future victims of his failure to undertake programmes that address the risks of sexual offending. While not intentional, I consider that this does indicate an absence of understanding of the impact on future victims.
Is there a high risk of sexual offending?
[53] Mr Louw’s overall assessment is that Mr Adams poses a “very high risk” of committing further serious sexual offending.
[54] Ms Murdoch criticises Mr Louw’s report because his assessment did not include a review of the reports of Dr Pillai and Dr Karayiannis. Dr Karayiannis concludes that Mr Adams has a high risk of sexual offending in the future. Dr Pillai assesses Mr Adams at a high risk of recurrent sexual offending.
[55] I do not consider that Mr Louw’s assessment is inconsistent with Dr Pillai’s or Dr Karayiannis’ assessments. I acknowledge that Mr Louw assesses the risk as very high and that he uses language suggesting Mr Adams lack of rehabilitation is of his own doing. He refers to Mr Adams’ “reluctance to participate in risk-focused discussions” and “low motivation.” I do not accept that Mr Adams has failed to engage with rehabilitation and accept that any reluctance is due to a concern about being stigmatised so is not motivated by bad faith. That however, does not lessen the risk in circumstances where Mr Adams has still not completed a programme directed at sexual offending which has been identified as the most appropriate.
[56] In these circumstances, I am satisfied that there is a high risk of sexual offending.
Is there a very high risk that Mr Adams will commit a relevant violent offence?
[57] I may only determine that there is a very high risk of violent offending if I am satisfied that:15
15 Parole Act 2002, s 107IAA(2).
(a)Mr Adams has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:
(i)intense drive, desires, or urges to commit acts of violence; and
(ii)extreme aggressive volatility; and
(iii)persistent harbouring of vengeful intentions towards one or more other persons; and
(b)Mr Adams either—
(i)displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or
(ii)has limited self-regulatory capacity; and
(c)Mr Adams displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
Does Mr Adams have an intense drive, desires or urges to commit acts of violence?
[58] It is accepted that Mr Adams has an intense drive, desires or urges to commit acts of violence.
Does Mr Adams have extreme aggressive volatility?
[59] It is accepted that Mr Adams has displayed extreme aggressive volatility in the past.
Does Mr Adams have persistent harbouring of vengeful intentions towards one or more persons?
[60] It is accepted that Mr Adams has persistent harbouring of vengeful intentions towards women.
Does Mr Adams display behavioural evidence of clear and long-term planning of serious violent offences or limited self-regulatory capacity?
[61] Ms Murdoch for Mr Adams accepts that his offending indicates there is planning of serious violence offences but not that there is limited self-regulatory capacity. I note that only one of the criteria needs to be present.
[62] The Applicant says that Mr Adams has limited self-regulatory capacity and refers to:
(a)The 2011 sentencing notes for Mr Adams’ burglary/violence offending note that he returned to offend against the victims after first committing non-violent burglaries, and once their male partners had left and they were home alone.
(b)Mr Adams engaged in “a deliberate and planned process of driving around to find a vulnerable female victim to kidnap and sexually assault”.
(c)While Mr Adams occasionally committed reactive violence in prison, he also engaged in coordinated and planned attacks of aggression against staff and other prisoners, often in association with other gang members.
[63] I am satisfied that there is evidence of both planning of serious violence offending and limited self-regulatory capacity.
Does Mr Adams display an absence of understanding for or concern about the impact of his violence on actual or potential victims?
[64] For the same reasons as set out at [54] Mr Adams has displayed an absence of understanding about the impact of his violence on actual or potential victims. While Mr Adams engaged in rehabilitation in 2016 while previously incarcerated, when released he went on to commit the index offending which involved violence.
Conclusion — is there a very high risk that Mr Adams will commit a relevant violent offence?
[65] Mr Louw assessed Mr Adams using the violence risk scale (VRS) and assessed him as being in the very high risk category. Ms Murdoch says there is therefore no psychological evidence of a “very” high risk of violent offending. Further, neither Dr Pillai nor Dr Karayiannis assessed Mr Adams as being at a very high risk of violent offending.
[66] Ms Blythe says that Mr Louw’s assessment of Mr Adams being at a very high risk of sexual offending is relevant when considering risk of violence. When Mr Adams’ offending is viewed in context it is very difficult (if not impossible) to separate out the sexual offending from violent offending. The index offending included violence. The burglaries included violence. Further, it is for the Court to determine risk. I am satisfied that each element in s 107IAA (2) is made out and that taken together this supports Mr Adams being at a very high risk of committing a relevant violent offence.
[67] I am therefore satisfied that I should make an ISO until the determination of the application for an ESO.
What conditions should be imposed?
[68] In making an interim supervision order, I may impose any of the standard conditions under s 107JA or special conditions imposed by an ESO.16
[69] The Applicant requests that the current special release conditions continue (with minor adjustments), that the standard conditions for an ESO be imposed and that additional special conditions be imposed.
[70] Mr Adams’ counsel accepts that if any conditions are imposed, they should be limited to the current special release conditions in place.
16 Sentencing Act 2002, s 107FA(3).
[71] I accept that the current release conditions are necessary and should remain in place as conditions of the ISO until determination of the application for an ESO. I consider below whether the standard conditions of an ESO under s 107JA and the additional special conditions requested should be imposed.
[72] I consider that the standard conditions of an ESO should apply except that I decline to impose the condition of non-contact with persons under 16 years old. Mr Adams has no history of offending against persons under 16 years old. Further, the fact that the offending occurred in circumstances where children were in the residence is not a basis for imposing this condition because the children’s presence was not a factor in Mr Adams’ motivation to offend.
[73]The Applicant also seeks additional residential restrictions, as follows:
(a)Not to drive, be in possession of, or have an interest in a motor vehicle without the prior written approval of a probation officer.
(b)To comply with the requirements of partial residential restrictions and remain in the area defined by a Probation Officer at Kaainga Taupua between the hours of 8pm and 8am daily unless you leave the residence:
(i)to seek urgent medical or dental treatment;
(ii)to avoid or minimise a serious risk of death or injury to you or any other person;
(iii)for humanitarian reasons approved by a Probation Officer; or
(iv)with the prior written approval of a Probation Officer in order to:
(A)comply with any special conditions;
(B)seek or engage in employment; or
(C)to attend training or other rehabilitative or reintegrative activities or programmes.
(c)To submit to electronic monitoring as directed by a Probation Officer, in order to monitor your compliance with any conditions relating to your residential restrictions.
(d)To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a Probation Officer and/or representatives of the monitoring company for the purposes of maintaining the electronic monitoring equipment as directed by a Probation Officer.
(e)To submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised to undertake person-to-person monitoring.
[74] The Applicant says that the conditions are justified pursuant to ss 15, 107FA and 107K of the Parole Act. Any special conditions sought must be designed to do one or more of the following:17
(a)reduce the risk of reoffending by the offender;
(b)facilitate or promote the rehabilitation and reintegration of the offender;
(c)provide for the reasonable concerns of victims of the offender; or
(d)comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under s 107IAC, to impose an intensive monitoring condition.
[75] I consider that the curfew and restriction on having a motor vehicle are necessary to reduce the risk of reoffending but I decline to grant the special conditions
17 Parole Act 2002, s 15(2).
regarding electronic monitoring and intensive supervision. Mr Adams has been in the community since July 2023 and his counsel says it is not necessary to impose electronic monitoring and/or intensive supervision to mitigate the risk of reoffending. Further, Ms Murdoch says Mr Adams has not been charged with any offending since been released. I consider that the issue of electronic monitoring and intensive supervision should be considered at the hearing of the ESO by which time counsel for Mr Adams will have received full disclosure and had an opportunity to file any further relevant evidence.
[76] I acknowledge Mr Adams’ frustrations in circumstances where he has been incarcerated for close to 12 years (other than the three-month period in 2017) and has asked for help since 2016 (seven years ago) but has still not received the rehabilitation he requires to address the risks of his offending. Mr Adams had a harrowing childhood and suffered sexual and violent abuse. He needs all the help he can get. By revealing his innermost thoughts, Mr Adams has shown self-awareness that should be acknowledged and then addressed through targeted rehabilitation. Mr Adams has not sought to hide his thoughts or deny that what he has done is wrong. Further, Mr Adams chose to serve his full sentence terms and it is not unreasonable that he anticipated by doing so, he would be in a position to return to the community. It is unfortunate that the application for an ESO was not discussed with Mr Adams early in his sentence so that he understood the importance of participating in the ASOTP. Mr Adams will now be subject to restrictions for a longer period than he anticipated because he did not receive the rehabilitation he requires.
[77] However, I acknowledge that the Court must, in considering whether an ISO is granted be mindful of the paramount principle of the safety of the community.18 It is in the interests of the community and Mr Adams that he be subject to an ISO so that he has access to the treatment he needs, and the oversight required to protect the safety of the community.
18 Parole Act 2002, s 7(1).
[78] I encourage Mr Adams to view this as an opportunity to access treatment so that he has the tools to be fully reintegrated into the community and so that there are no future victims.
Result
[79]I grant the ISO on the following conditions:
Standard conditions of ESO:
(a)Mr Adams must report in person to a probation officer in the probation area in which Mr Adams resides as soon as practicable, and not later than 72 hours, after commencement of the order.
(b)Mr Adams must report to a probation officer as and when required to do so by a probation officer and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so.
(c)Mr Adams must obtain the prior written consent of a probation officer before moving to a new residential address.
(d)If consent is given under condition 3 and Mr Adams is moving to a new probation area, Mr Adams must report in person to a probation officer in the new probation area in which Mr Adams is to reside as soon as practicable, and not later than 72 hours, after Mr Adams’ arrival in the new area.
(e)Mr Adams must not reside at any address at which a probation officer has directed Mr Adams not to reside.
(f)Mr Adams must not leave or attempt to leave New Zealand without the prior written consent of a probation officer.
(g)Mr Adams must, if a probation officer directs, allow the collection of biometric information.
(h)Mr Adams must obtain the prior written consent of a probation officer before changing his or her employment.
(i)Mr Adams must not engage, or continue to engage, in any employment or occupation in which the probation officer has directed Mr Adams not to engage or continue to engage.
(j)Mr Adams must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
(k)Mr Adams must not associate with, or contact, a victim of the offending without the prior written approval of a probation officer. Mr Adams must not associate with, or contact, any person or class of person specified in a written direction given to Mr Adams for the purposes of this paragraph.
Current conditions of release:
(l)To reside at an address approved in writing by a Probation Officer, and not move from that address unless you have the prior written approval of a Probation Officer.
(m)To attend an alcohol and drug assessment, and attend, participate in, and complete, any treatment or counselling directed by a Probation Officer.
(n)Not to possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.
(o)To attend a psychological assessment and attend, participate in and complete any recommended treatment as directed by a Probation Officer.
(p)To attend, participate in and complete any other programme, treatment or counselling as directed by a Probation Officer.
(q)Not have contact or otherwise associate, with any victim of your offending, including previous offending, directly or indirectly, unless you have the prior written approval of a Probation Officer.
(r)To attend a reintegration meeting as directed by a Probation Officer.
(s)To disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes or terminates.
(t)To obtain the written approval of a probation officer before starting or changing your position and/or place of employment (including voluntary and unpaid work).
(u)Not to communicate or associate, directly or indirectly, with any person known to you to associate with the Killer Beez gang, unless you have the prior written approval of a probation officer.
Amended programme condition:
(v)To attend, participate in, and complete a reintegration and rehabilitation programme as directed by your Probation Officer and administered by Kaainga Taupua, for up to 12 hours per day, between 8:00am and 8:00pm. To abide by the rules of the programme to the satisfaction of a Probation Officer and allow an approved person to supervise and monitor you as necessary to ensure your attendance at classes or participation in other activities associated with the programme.
Additional conditions:
(w)Not to drive, be in possession of, or have an interest in a motor vehicle without the prior written approval of a probation officer.
(x)To comply with the requirements of partial residential restrictions and remain in the area defined by a Probation Officer at Kaainga Taupua between the hours of 8pm and 8am daily unless you leave the residence:
(i)To seek urgent medical or dental treatment;
(ii)To avoid or minimise a serious risk of death or injury to you or any other person;
(iii)For humanitarian reasons approved by a Probation Officer; or
(iv)With the prior written approval of a Probation Officer in order to:
(1) Comply with any special conditions;
(2) Seek or engage in employment; or
(3) To attend training or other rehabilitative or reintegrative activities or programmes.
[80] I grant leave to the Applicant to apply on 24 hours’ notice to add conditions to the ISO if Mr Adams’ circumstances change prior to the determination of the ESO application.
[81] The Registry is to allocate a hearing date for the application for an ESO by the end of May 2024 at the latest.
[82] I order that a communications assistant be appointed to assess Mr Adams’ communications needs so that the Court can determine whether a communications assistant is necessary and if so, what arrangements may be required, for the ESO hearing.
[83] The parties are directed to confer with a view to filing by 9 February 2024 a proposed timetable to provide for any issues regarding the appointment of a
communications assistant and the filing and service of any further evidence and/or submissions.
Tahana J
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