Chief Executive Department of Corrections v Hakes

[2018] NZHC 3294

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000038

[2018] NZHC 3294

CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS

v

ZAC HAKES

Hearing:

12 December 2018

Appearances:

R P Bates for the Crown

S A Saunderson-Warner for the Defendant

Judgment:

13 December 2018

ORAL JUDGMENT OF NATION J

[1]    Mr Hakes is aged 21. Today he ends a sentence of imprisonment on charges of sexual connection with a young person 12 to 16, and common assault. He was sentenced to imprisonment for two years, two months. Corrections have filed an application for an extended supervision order and also an application for an interim supervision order with intensive monitoring. Accompanying the applications is an extensive report from a clinical psychological Christina Fon.

[2]    Mr Hakes came to Court this morning. Fortunately, he has been assigned Ms Saunderson-Warner who was able to speak with him during the day and no doubt also considered the papers that have been filed and the report. The matter was called before me at 2.15 pm today.

CHIEF EXECUTIVE, DEPT OF CORRECTIONS v HAKES [2018] NZHC 3294 [13 December 2018]

[3]    Mr Bates indicated the real issue between Corrections and Mr Hakes is over whether or not there needs to be the protection of intensive monitoring which would be part of an interim supervision order.

[4]    Ms Saunderson-Warner addressed me and submitted that Mr Hakes’ risk of offending relates to consensual sexual activity with underage girls. She said that, although he is ending his prison sentence, he is subject to special release conditions which are extremely strict and she suggested that, with those conditions already being imposed by the Parole Board, and with Mr Hakes having to comply with those conditions, there is no need for the intensive monitoring that would be part of an interim supervision order and is essentially what Corrections are saying is necessary at this stage. She pointed out that one of the conditions imposed by the Parole Board is that he submit to electronic monitoring as directed by a probation officer. There are conditions that he is only to access the internet for employment or educational purposes and not to access Facebook, dating sites or any other social media site that he is advised of by his probation officer. There is a direction that he not have contact or otherwise associate with a person under the age of 16 years unless that is approved in writing by a probation officer. There are limits and controls over where he can live or work and he is not to enter or loiter near any school or any childhood education centre and other similar such areas.

[5]    The difference is that, without intensive monitoring, he would be able to leave the address at which he is living and simply be away from that address. Obviously, he would still have to comply with those conditions but, with his being away from the approved address, he would no longer be under the 24-hour, seven day a week oversight that would apply with intensive monitoring.

[6]    Mr Bates, for the Department, referred me to crucial parts of the psychologist’s report, particularly the risks referred to in paras 27 to 31 of that report, also para 36. I have considered the whole of that report carefully, having read it previously. The risk that is referred to is not just of consensual sexual activity, although that is obviously serious enough given it is with underaged people, there is also a risk of violence occurring in the context of such a relationship. What is of concern with regard to the particular issues that have been raised over the need for his intensive monitoring is the

difficulty that Mr Hakes has with self-regulation, as it is said, his not having a real understanding of the way his conduct can impact on his victims and also just the intensity of his desire to commit a relevant sexual offence. Reading the report, the concern is that, if he left the address at which he is going to be living and was not under the direct oversight and supervision of staff at that address, when away from it, he might find himself in a situation where those intensive urges and desires cause him to do something which is, first, prohibited by his release conditions but which would also be a danger to himself and to a potential victim of further offending.

[7]    The report referred positively to Mr Hakes continuing to view Corrections staff as a source of support which can be utilised to reduce his risks in the future. That also should be how he sees the support available from the staff at the address which it is proposed he will reside at in Mosgiel on his release.

[8]    Having regard to the level of risk, and bearing in mind that an interim supervision order is an order that is for his protection as well as for members of the public generally, I consider that it is necessary at this stage that there be intensive monitoring which is obviously something more extensive than is provided for with the special release conditions that are imposed by the Parole Board.

[9]    That being the case, I am satisfied this is a situation where there should be, and I am going to make, an interim order for extended supervision. That is to continue until the application for a supervision order itself on a substantive basis is heard.

[10]   Ms Saunderson-Warner has identified that it is likely she will have him assessed by an independent psychiatrist.

[11]   I am going to reserve leave to Mr Hakes to have the matter brought back to Court once such a report has been obtained with regard to the interim order that has been made. Otherwise, in the absence of it being brought back before the Court, the interim order will remain in place until the application for a final extended supervision order is heard.

[12]   The interim supervision order is made subject to the standard conditions that are attached to the application and the further special conditions that were also attached to the application.

[13]   Mr Hakes, you understand you are going to be subject to intensive monitoring. It is not very different from the conditions you would have been under in terms of the release conditions imposed by the Parole Board but there is more intensive supervision and monitoring than was provided for by the Parole Board. The object of that is to protect you as well as members of the public to ensure there is no possibility of further offending while that order remains in place.

[14]   The proceedings are now adjourned to 10.00 am on Wednesday 5 June 2019. Mr Hakes is to appear at Court on that day.

Solicitors:

RPB Law, Dunedin

SA Saunderson-Warner, Barrister, Dunedin.