Chief Executive, Department of Corrections v Hakes

[2019] NZHC 2440

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000038

[2019] NZHC 2440

THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS

v

ZAC HAKES

Hearing:

26 September 2019

Appearances:

R P Bates for the Crown

S A Saunderson-Warner for Mr Hakes

Judgment:

26 September 2019

ORAL JUDGMENT OF NATION J

[1]        Mr Hakes, you are aged 22. On 12 December 2018, you ended a sentence of imprisonment for two years and two months on charges of sexual connection with a young person 12 to 16 and common assault. Corrections filed an application for an extended supervision order (ESO) and also an application for an interim supervision order with intensive monitoring. I made such an interim order on 12 December 2018 and you have been subject to that order since that time.

[2]        There was to have been a hearing of Corrections’ application for the substantive ESO today, on 26 September 2019. Corrections’ original application was supported by detailed reports from a Corrections Department psychologist, Ms Cristina Fon. Your counsel had obtained a report from Mr Craig Prince. It was anticipated that both psychologists would have to be available for cross examination on their reports.

CHIEF EXECUTIVE, DEPT OF CORRECTIONS v HAKES [2019] NZHC 2440 [26 September 2019]

[3]        Just prior to the scheduled hearing, yesterday I was told that agreement had been reached as to the making of an ESO and the particular terms of that order. I have been advised by your counsel that it has been confirmed such an agreement has been reached. The important features of what has been agreed to are that you are going to be subject to an ESO for five years and you are going to be subject to intensive monitoring for a further 10 months. I am sure those terms have been discussed with you carefully and you understand them.

[4]        It has also been accepted by your counsel that all the essential requirements and elements that have to be established for the making of an ESO have been met.

[5]        I do record that you are an eligible offender for the making of an ESO because of your convictions from 2016 for two offences of sexual connection with a young person and the charge of assault. You also had prior convictions for offences of a violent nature, namely three charges of male assaults female. On that, you were sentenced to six months’ intensive supervision on 20 May 2014. You also have a conviction on a charge of threatening to kill or do grievous bodily harm on which you were sentenced on 22 July 2014 to 80 hours’ community work.

[6]        Ms Fon’s report, which was submitted in support of your original application, indicated to her there was a high risk of your committing a further relevant sexual offence in the community within the next 10 years. The report indicated that you had presented with a high level of sexual preoccupation and engagement in sexually exploitive behaviour from the age of 13.

[7]        Your previous involvement in treatment programmes did little to reduce the risk of further relevant sexual offending.

[8]        Between March 2015 and October 2015, while serving a sentence of intensive supervision, you had attended 23 individual therapy sessions but the report indicated that your engagement with the programme was limited. Over that time, it was considered you had displayed limited capacity to regulate your behaviour and you continued to deny there was any problem with sexualised behaviour.

[9]        While you were serving your prison sentence, you had to be discharged from the Kia Marama Special Treatment Programme in June 2017.

[10]      Ms Fon addressed relevant risks in terms of the matters referred to in s 107IAA Parole Act 2002. In summary, the report indicated that you displayed an intense drive to commit relevant sexual offences and had a high level of sexual preoccupation associated with young women under the age of consent. You were assessed by her as having limited capacity to regulate your behaviour. You had not acknowledged your prior sexual behaviour with the two victims of the offending for which you received a prison sentence as being harmful or inappropriate. You did not appear to appreciate the impact your behaviour could have on your victims.

[11]      Mr Prince provided a detailed report for the Court in May. Mr Prince considered there was little evidence to support the notion that you had a deviant sexual interest or preference for underaged females but acknowledged that you had engaged in inappropriate and coerced sexual behaviour with girls when younger. Mr Prince noted that a number of examples of inappropriate and concerning sexualised behaviour were associated with psychological immaturity. Mr Prince was concerned at the way an ESO of 10 years’ duration could be a crushing blow to you. He assessed you as being a young man who realised the error of your ways and he said there was information which suggested that you were making progress as a result of engagement with a clinical psychologist on a one-to-one basis and considered you were appearing to become more mature. He was of the opinion that you did not then fulfil all the relevant criteria under the Parole Act with regard to the risk of reoffending in a relevant manner.

[12]      Mr Prince’s report was considered by Ms Fon and was the subject of a further detailed report from her of 9 September 2019. In that report, Ms Fon provided information as to a number of instances in which you had breached your release conditions and interim ESO conditions in the period after your release from prison on 12 December 2018. There were instances of your threatening violence to staff at the PACT residence where you were living and accessing pornography on a cell phone. Associated with that, you admitted telling your probation officer that you were addicted to pornography and could not live without it. After the terms on your interim

ESO had been changed to ban you from having an internet capable device and from accessing the internet, you obtained the use of a fellow resident’s phone to gain access to the internet. As a result, you were sentenced to three months’ imprisonment. After that, you admitted accessing pornography sites depicting deviant sexual behaviour, including “animal porn”. The report said that you were continuing to experience arousal with females falling within the 12 to 16 year old age bracket.

[13]      Ms Fon also noted some progress had been made for you through your relationship with a treating psychologist Mr Greer but, at the same time you appeared to be making that progress, you were arrested for breach of conditions in accessing the internet.

[14]      In reviewing her assessment of the risk of you committing a further relevant sexual offence in the community, Ms Fon noted that, since your earlier sentence had been completed, you had been released from prison, recalled for breach of conditions, and then re-released to the PACT residence. You had made use of individual psychological treatment, had attempted to develop an age-appropriate relationship and had developed a safety plan. She noted however that you continued to demonstrate emotional dysregulation, impulsivity and sexual preoccupation.

[15]      Ms Fon again addressed risk issues relevant to s 107IAA. She identified factors which, to her, meant there was still a significant risk of relevant sexual offending. It remained her assessment that you were at a high risk of committing relevant sexual offending. It was her view that risk would remain until you had improved your ability to regulate your behaviour and to develop only age-appropriate relationships. Ms Fon accepted that the term of any ESO should not be potentially crushing and that you needed the opportunity to explore and develop age-appropriate relationships but considered that you needed to do that with the support available from an appropriate therapeutic relationship. That support, she suggested, would be available only with the making of an ESO.

[16]      Mr Hakes, you have obviously talked carefully with your counsel about all the evidence that was before me in these reports and you accept that it is appropriate for an ESO to be made for a further term of five years, with all the terms that are set out in the orders that have been prepared.

[17]      In summary, what all this means is that I am satisfied, on all the information before me, that it is appropriate for you to have the support and assistance that will be available to you through the making of an ESO. The making of that order should also reduce the risk that exists for further relevant sexual offending. I am thus satisfied it is appropriate to make an ESO on the terms agreed to between Corrections and yourself.

[18]      I want to say to you that it is now over to you to see whether you can continue to take advantage of the assistance which will be available to you. You need to work hard with those who are trying to help you regulate your behaviour, emotions and sexual interests to further reduce the risk of you committing further sexual offences. You need to do this and make further progress in that way to avoid a future extension after five years of the ESO. I hope you can do that, but work hard at it.

[19]      I make an extended supervision order in terms of the draft order that has been presented to me with the special standard conditions and interim special conditions that are referred to in those draft orders.

Solicitors:

RPB Law, Dunedin

S A Saunderson-Warner, Barrister, Dunedin.