Chief Executive, Department of Corrections v Maindonald
[2018] NZHC 946
•4 May 2018
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2017-412-000050 [2018] NZHC 946
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v
REGAN JAMES MAINDONALD
Hearing: 10 April 2018 Appearances:
M J Grills for the Crown
S A Saunderson-Warner for the Defendant
Judgment:
4 May 2018
JUDGMENT OF NATION J
AS TO REASONS FOR DECISION
[1] Today, 4 May 2018, in open Court, I have told the Department of Corrections and Mr Maindonald of my decision declining Corrections’ application for an extended supervision order with an order for Mr Maindonald to be subject to intensive monitoring for 12 months. This is my judgment providing the reasons for that decision.
[2] Mr Maindonald is aged 27. On 29 January 2018, his sentence of two years and four months’ imprisonment for having unlawful sexual connection with a 15 year old girl came to an end.
DEPARTMENT OF CORRECTIONS v MAINDONALD [2018] NZHC 946 [4 May 2018]
[3] On 28 August 2017, the Department of Corrections applied for an extended supervision order (ESO). On 6 November 2017, by consent, Davidson J made an order in the High Court for an interim ESO with intensive monitoring. That interim order came into effect when Mr Maindonald’s sentence finished and is to continue until the Department’s application is finally determined.
[4] Since the ending of his prison sentence, Mr Maindonald has been living in a house on the grounds of Christchurch Men’s Prison under strict supervision, with support from Christchurch Residential Care Limited.
[5]Mr Maindonald opposes the application on the grounds that:
(i) he does not have a predilection or proclivity for serious sexual offending; and
(ii) the Court cannot be satisfied that there is a high risk that he will commit a
relevant sexual offence.
The legal context
[6] This application for an ESO is based on the risk of serious sexual offending. I have regard to the relevant provisions of the Parole Act 2002 (the Act) and the guidance from previous judgments of the Court of Appeal and the High Court as to how that Act is to be applied. I proceed on the basis:
(a) In my determinations, I must have regard to the purpose of an ESO, which is to protect the public from offenders who, after serving a determinant sentence, pose a real and ongoing risk of committing serious sexual offences.1
(b) The Chief Executive must establish that the offender has been convicted of a relevant sexual offence.2
1 Parole Act 2002, s 107I(1); R v Peta [2007] NZSC 28, [2007] 2 NZLR 627.
2 Parole Act 2002, ss 107B and 107C.
It is accepted that Mr Maindonald has four such convictions, one for the offence of unlawful sexual connection with a young person which led to his most recent sentence of imprisonment and three convictions for indecent assault in 2013.
(c) The application for an ESO has to have been made when the offender is still subject to a sentence of imprisonment, release conditions or an ESO.3
This application was made when Mr Maindonald was still subject to a sentence of imprisonment.
(d) The application for an ESO has to be accompanied by a health officer’s report which must address the matters specified in ss 107F(2A)(a), that is:
i.whether the offender displays each of the traits and behavioural characteristics specified in s 107IAA(1) which are set out below;
ii.whether there is a very high risk that the offender will in future commit a relevant sexual offence.
In this instance, the Department relies on reports provided by Deborah McLean, a registered clinical psychologist with the Department, dated 7 March 2017 and 5 April 2018.
(e) The health assessor, and thus the Court, may consider any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not he has been charged with or convicted of an offence in respect of that conduct.4 The earlier conduct may constitute serious offending without necessarily being relevant sexual offending, as that term is defined in the Act.5
3 Parole Act, s 107C.
4 Section 107F(3).
5 Holland v The Chief Executive of the Department of Corrections [2016] NZCA 504 at [36]-[45].
(f) The Court must be satisfied that the offender has, or has had, a pervasive pattern of serious sexual offending.6 Taken together, the use of the words “pervasive pattern” indicates that “the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct”.7
(g) An ESO can be made only if the Court is satisfied that there is a high risk that the offender will in future commit a relevant sexual offence, as that is defined in the Act.8 To determine that there is a high risk that an eligible offender will commit a relevant sexual offence, the Court must be satisfied that the offender:9
(a) displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b) has a predilection or proclivity for serious sexual offending; and
(c) has limited self-regulatory capacity; and
(d) displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse for past offending:
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
(h) In considering whether there has been a pervasive pattern of serious sexual offending and whether there is a high risk of future relevant sexual offending, I bear in mind that:10
i.Serious is not defined in the Act but, in ordinary language, means “important, grave; having (potentially) important, esp. undesired, consequences; giving cause for concern; of significant degree or amount, worthy of consideration”.
6 Section 107I(2)(a).
7 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].
8 Section 107I(2)(b)(i).
9 Section 107IAA(1).
10 Holland v Chief Executive of the Department of Corrections, above n 5, at [44] with reference to the New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford 1993) at 2785.
ii.An ESO can result in severe restrictions being placed on many aspects of an offender’s life, including residence, employment, association and travel. Such restrictions can apply for up to 10 years after he has served the sentence imposed for a subject offence. Because of this, “self evidently, only offending at the higher end of the range” would justify the imposition of an ESO. Parliament could not be taken to have contemplated that a pattern of offending at the lower end of the spectrum would justify consideration of such a potentially draconian constraint.11
iii.Indecent assaults are capable of being sufficiently serious because the offence of indecent assault is included in the list of relevant sexual offences referred to in the Act.12
iv.Whether or not offending is “serious” in a qualifying way requires a fact-specific enquiry on a case-by-case basis.13 In Shortcliffe v Chief Executive of the Department of Corrections, the Court of Appeal emphasised that not all sexual offending would satisfy the test.14
v.When considering whether there has been or will be serious sexual offending, it is appropriate to consider all the circumstances that are properly regarded as aggravating, both in relation to the actual offending and in relation to the offender.15
(i) In determining whether there is a pervasive pattern of serious sexual offending and the risk of such offending in the future, the totality of circumstances will be important.16
(j) There is no evidential burden which the Department has to meet in terms of establishing the criteria for the making of an ESO. The Court simply
11 Holland v Chief Executive of the Department of Corrections, above n 5, at [4] and [45].
12 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [5].
13 Holland v Chief Executive of the Department of Corrections, above n 5, at [45].
14 Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 587 at [39].
15 Wardle v Chief Executive of the Department of Corrections, above n 12, at [42].
16 Chief Executive, Department of Corrections v Popata, [2017] NZHC 2343 at [29].
needs to be “satisfied” that the prerequisites are met, which is indicative of a state where the Court comes to a judicial decision on the evidence.17
Mr Maindonald’s past offending
[7] Mr Maindonald’s relevant sexual offending which, in part, means that he is eligible for an ESO, comprises:
(a) 6 March 2013 - three charges of indecently assaulting a female over 16. On three occasions, Mr Maindonald swam past 61, 62 and 66 year old women in a public swimming pool in Dunedin and touched their buttocks or legs before swimming away. When sentenced for that offending on 13 June 2013, the Judge noted Mr Maindonald suffered from a chronic schizophrenic illness. Mr Maindonald was sentenced on 13 June 2013 to six months and three weeks’ imprisonment, cumulative on earlier sentences of five months’ imprisonment imposed on 24 April 2013.
(b) August 2015 - one charge of sexual connection with a young person. Mr Maindonald was boarding at a rural address in North Otago. A 15 year old girl was visiting the address. The other adults living there and their young child went away from the house leaving Mr Maindonald alone with the 15 year old. During that period, they engaged in a range of physical sexual activity. The other couple returned after midnight and all occupants of the address went to bed shortly afterwards. During the night, the 15 year old victim got into Mr Maindonald’s bed but no further sexual activity took place. In the morning, the couple discovered Mr Maindonald and the 15 year old in bed together. Mr Maindonald was asked to leave the address, which he did. Mr Maindonald was located and arrested in Oamaru on 1 October 2015. At the time of his arrest, he was intoxicated and under the influence of drugs to the extent he was unable to be interviewed. The following morning, he was spoken to by Police, admitted knowing the victim was 15 years old and to having the sexual contact as described. It
17 Holland v Chief Executive, Department of Corrections, above n 5, at [12].
was for this offending that Mr Maindonald was sentenced to two years and four months’ imprisonment.
[8] The other offending or conduct which Ms McLean referred to in her report of 7 March 2017 was as follows:
(a) May 2012 - Mr Maindonald sent a text message threatening to rape a woman known to him. Associated with that offence, he had around that time sent inappropriate sexual texts to another female mental health worker and one probation staff member. He continued to send inappropriate sexual texts to women known to him (mental health workers, probation staff, a female family member) and to make inappropriate sexual remarks to female mental health workers after he had been dealt with for this offence by the Court.
(b) 20 February 2013 – doing an indecent act. Ms McLean reported that, in this incident, Mr Maindonald had exposed himself and masturbated in front of a woman in Oamaru who was known to him and who was standing inside her house in front of the window. He told Ms McLean that he had been sexually aroused, having smoked synthetic cannabis at the time. He was sentenced on 24 April 2013 for an assault on his doctor, two separate assaults on a Police officer, breach of a protection order, trespass, and threatening to damage property. None of those offences related to any sexual offending. The Judge said the separate indecent act “was towards the lower end of the scale in one sense” but nevertheless very distressing for the victim. She noted that Mr Maindonald attempted to suggest that he did not realise the woman would be affected by what he had done because she was able to see him. The Judge rejected that contention on the basis he had pleaded guilty knowing what he had done and that it would be regarded as indecent but went ahead and did it anyway. For that offence, he received a sentence of one month imprisonment, cumulative on four months’ imprisonment on the other charges.
(c) 2 November 2013 – doing an indecent act. Mr Maindonald spoke to a female who was gardening in front of her Dunedin house. He made inappropriate sexual comments to her about sleeping together and unzipped his trousers, moving his hand inside the trousers appearing to masturbate. He left when asked to do so.
(d) 9 April 2014 – doing an indecent act. At the doorway of an office at the probation service where the victim was sitting, Mr Maindonald put his hand in his pants, through the zipper, moving his hand backwards and forwards as if masturbating. When he pulled his hand out, he briefly exposed his penis before putting it back in his trousers and walking off. He went back and apologised to the person. On 17 April 2014, Mr Maindonald was sentenced for that offending and a charge of speaking threateningly (which the Judge described as “a minor matter really in the whole wash up”). Mr Maindonald was sentenced to an effective term of six months’ imprisonment with release conditions which the Judge said he hoped would provide for a staged entry back into the community with assistance.
(e) Late 2014 – Ms McLean reports Mr Maindonald having two admissions to Wakari Hospital and there being a record of his sending sexually inappropriate texts to a female Corrections worker, and of approaching (with sexual intentions) two vulnerable patients at Wakari Hospital.
(f) 1 February 2015 – indecent act with intent to insult. Mr Maindonald stood on a chair in front of his bedroom window and was masturbating, intending for that to be seen by the victim who was walking past his window. He was sentenced for that offending on 26 August 2015 but also on a charge of contravening a protection order and threatening to kill or do grievous bodily harm. Both those latter offences were committed on 19 July 2015. The sentencing notes indicate the Judge was troubled as to why he had not been taking his medication when there were recurrences of symptoms of his illness and he was under a compulsory treatment order at the time of the offending. The Judge referred to a helpful report from Mr Maindonald’s Corrections psychologist. That psychologist recorded
“a high risk of sexual reoffending, particularly if [Mr Maindonald] was psychiatrically unwell using substances, including alcohol or … in a stressful relationship of some kind”. The Judge considered they were all factors in the offending for which she was sentencing Mr Maindonald. Noting that Mr Maindonald had already been in custody for about five and a half weeks, the Judge sentenced him to intensive supervision for nine months with special conditions, requiring him to have counselling and treatment as recommended. The Judge noted she was concerned about risk management but wanted to ensure that, at the end of the sentence, Mr Maindonald was able to cope and control his behaviour. She said management of his medical condition, with his being subject to a compulsory treatment order, was for the medical authorities to deal with.
(g) September 2016 – while in prison, Mr Maindonald was observed to be masturbating in front of a female Corrections officer and was subject to a misconduct charge because of this.
[9] In her report of 7 March 2017, Ms McLean referred to Mr Maindonald reporting how he had experienced a high level of sexual preoccupation since becoming sexually active at the age of 12 and of there being few restrictions on when sexual activity would take place within his peer group as he entered adulthood.
Previous sexual offending and s 107IAA risk factors
[10] I am satisfied there has been a pattern of previous sexual offending in the conduct I have referred to above.
[11] I am well satisfied that Mr Maindonald has a predilection or proclivity for sexual offending.
[12] I agree with Ms McLean’s opinion that Mr Maindonald’s desire to engage in sexual behaviour has not been constrained by the environment he was in. His sexual involvement with the 15 year old girl was not constrained by his knowing she was only 15. He has been involved in sexual offending while on bail, when subject to the sentence of intensive supervision and when subject to release conditions. I accept that
he has demonstrated a poor ability to self-regulate his sexual impulses while in mental health and prison environments, and in the community.
[13] I am also satisfied that Mr Maindonald regularly displays a lack of responsibility or remorse for past offending and has an absence of understanding or concern about the impact of his sexual offending on actual or potential victims. In his interviews with Ms McLean, he said he did not consider there was anything wrong with his masturbating in front of female victims. He denied there was any sexual intent behind his behaviour with the three victims who he had indecently assaulted in the swimming pool and told Ms McLean that he believed the victims were inconsiderate for making a complaint to the Police. He denied there was any sexual intent to his behaviour in front of the woman who had been in her garden and did not consider his behaviour would have any negative impact on her. He spoke about the woman he had masturbated in front of, while standing on a chair, in derogatory terms. He said he did not consider that his behaviour would have impacted negatively on her and said that he believed it might have been enjoyable for her. He had a somewhat similar attitude to the instances in which he had exposed himself to women, either while in prison or at the probation office. To Ms McLean, he expressed his anger at victims having contacted the Police because of the consequences that had for him.
[14] I also accept Ms McLean’s opinion that the risk of further sexual offending is increased through Mr Maindonald’s use of illicit drugs and alcohol, which are likely to have the effect of further disinhibiting his already limited self-control. His previous sexual offending has often been associated with his having used illicit drugs.
[15] The conclusions I have reached in this regard are consistent with the opinions expressed by the psychologist Ms McLean, various Judges who have had to sentence Mr Maindonald for his offending and the psychologist Mr Prince who provided a report for Mr Maindonald at the request of his counsel. Mr Prince differed from Ms McLean only as to whether all of this related to serious sexual offending and as to whether the future risk was as to serious sexual offending.
[16]I am not satisfied that Mr Maindonald has or has had a pervasive pattern of
serious sexual offending.
[17] I do not wish to minimise how unpleasant Mr Maindonald’s sexually indecent acts have been for the victims and others who have observed them but s 107IAA is concerned with the sort of serious sexual offending which would justify the severe restrictions on many aspects of an offender’s life, as referred to by the Court of Appeal in Holland v Chief Executive of the Department of Corrections.18 I do not consider the indecent acts, which are typical of Mr Maindonald’s previous offending and behaviour, are of such seriousness. Although the Court of Appeal has noted that conduct which is not of a “relevant sexual offence” under the Act may nevertheless constitute serious sexual offending for the purpose of s 107IAA, I consider it relevant that Parliament must have considered whether or not convictions for indecent acts should provide a basis for an ESO. They specified the offences which could constitute a relevant sexual offence. Their definition included offences against s 129A(2) Crimes Act 1961 (indecent act with consent induced by certain threats) and s 131(3) (indecent act on dependent family member), but only if the victim of the offence was under the age of 16 at the time of the offence. It is also of some relevance that Parliament did not make the offence of doing an indecent act with an adult the subject of the three strikes legislation.
[18] Because of the nature of the indecent assault offences which were committed on 6 March 2013, the circumstances of that offending, and the fact there has been no repetition of that particular offending since then, I am also not satisfied that there has been a pervasive pattern of serious sexual offending in that regard. The three indecent assaults were committed on the same day during a single visit to a swimming pool in Dunedin. In Shortcliffe v Chief Executive of the Department of Corrections, the Court of Appeal agreed with the District Court Judge that a “pervasive pattern” could not be found in offending that occurred over a single day.19
[19] At the hearing, I was provided with the summary of facts with regard to his threatening rape in a text in 2012. The charge brought against Mr Maindonald was of misusing a telephone under the Telecommunications Act 2001, for which the maximum penalty is three months’ imprisonment or a $200 fine. The summary referred to Mr Maindonald being a mental health patient, then under the care of
18 Holland v Chief Executive of the Department of Corrections, above n 5.
19 Shortcliffe v Chief Executive of the Department of Corrections, above n 14.
Waitaki Community Mental Health Services. The victim was a social work therapist working for that service, and had formerly been Mr Maindonald’s manager. She had given him her cell phone number so he could contact her in an emergency. The summary referred to him, on a particular day during an alcohol and drug fuelled binge, sending her a series of text messages, most of which were either incoherent jibberish or simply inappropriate, but in the last text there was a threat to rape her. When spoken to by the Police, Mr Maindonald said he had been so intoxicated that he could not remember what he had said in the texts. In evidence, Ms McLean said it would “be a stretch” to say there was a real threat of rape.
[20] Mr Maindonald’s sexual offending with the 15 year old girl is of a different nature. She was only 15 and Mr Maindonald should not have relied on any apparent consent from her to what he was doing. But there was nothing in the facts of that offending to suggest he forced himself upon her or tricked her into the sexual activity which occurred. The summary of facts referred to her getting into his bed after the sexual activity had occurred and of no further sexual activity taking place when that happened. I note that the victim refused to provide a victim impact statement in relation to that offending. Mr Prince said in evidence that, with such offending having occurred on only one occasion, it cannot be said that there has been a predilection or proclivity for such offending with young people. I agree. I am also not satisfied that, with regard to his having sexual connection with a person under the age of 16, there has been a pervasive pattern of such offending.
[21] I have considered the different instances of previous sexual offending individually. I have also considered whether, cumulatively, all that conduct and offending, in all the relevant circumstances, means there has been a pervasive pattern of serious sexual offending. I have considered whether, on that basis, it can be said Mr Maindonald displays an intense drive, desire or urge to commit a relevant sexual offence and a predilection or proclivity for serious sexual offending. The assessment I make is that his previous offending does not meet that threshold.
The risk of future serious and relevant sexual offending
[22] In her initial report, Ms McLean concluded that she considered there was a very high risk that Mr Maindonald would engage in relevant sexual offending within 10 years of his release. She said “based on his past offending he may commit indecent acts, indecent assault, sexual abuse of a child, or possible rape if his threats to do so in the past are considered”.
[23] There is a high risk that Mr Maindonald will be involved in some sort of sexual offending in the future. Mr Prince accepted this but he considered the most likely reoffending in the future is as to the way Mr Maindonald exposes himself indecently to other people. Such acts would not however be relevant sexual offences, as defined in the Act. The risk of such offending alone would not, in all the circumstances of this case, be a risk of sufficiently serious sexual offending as to justify the imposition of an ESO.
[24] I have regard to the circumstances of the rape threat referred to earlier. There is no evidence that Mr Maindonald has forced himself upon a woman when his advances have either been ignored or rebuffed.
[25] Mr Prince said in evidence that, when he discussed with Mr Maindonald the offending with the 15 year old, Mr Maindonald told him of how the victim had acted in that incident in a way which was consistent with her being sexually experienced and a willing participant in what happened, at least once it had been initiated.
[26] There is no evidential basis on which I can be satisfied there is a high risk that Mr Maindonald will in future commit rape.
[27] There is some risk that Mr Maindonald may commit an indecent assault but, as already discussed, there has been no previous pervasive pattern of such offending and there has been no repetition of that sort of offence since 6 March 2013. It was also Mr Prince’s opinion, based on the discussion he had with Mr Maindonald on 8 March 2018 over a period of two and a quarter hours, that Mr Maindonald appeared to have taken on board how seriously the Court would see any future offending.
[28] In this regard, it is of some significance that, with his previous convictions for indecent assault and having unlawful sexual intercourse with a girl under the age of 16, Mr Maindonald is now on a third strike warning. Should he offend in this manner again, with the law as it currently is, he will be potentially liable for a sentence of seven years’ imprisonment without parole. Rationally, that should be a significant deterrent that reduces the risk of such further offending, although I accept that, in the actual circumstances where he might be at risk of offending in this way, the third strike sanctions may not act as a deterrent.
[29] Mr Maindonald has not previously been involved in any offending against young children and there was no pattern of his offending in the way he did with the 15 year old. Mr Prince noted, and I accept, there is no evidence in the reports as to Mr Maindonald having a pattern of offending against children or young people. There is no evidential basis on which I can be satisfied that there is a high risk of his being involved in the sexual abuse of a child in a way that would be a relevant sexual offence.
[30] In her initial report, Ms McLean said she considered there was a very high risk that Mr Maindonald would engage in “relevant offending” within 10 years of release. It was not however clear from her report that she considered whether and to what extent in the past Mr Maindonald had been guilty of “serious” sexual offending or of the extent to which he was at risk of such offending in the future. In expressing her opinion that there was a very high risk that he would engage in relevant offending, she referred to indecent acts and indecent assault, but did not acknowledge that the doing of an indecent act was not, of itself, a relevant sexual offence for the purpose of the Act. Her conclusion with regard to whether he had displayed “an intense drive, desire, or urge to commit a relevant sexual offence” concluded with her opinion “that Mr Maindonald displays an intense drive, desire, or urge to commit sexual offences” without any expressed comment as to whether such offences would be either a relevant offence or serious offence in terms of the Act.
[31] Under cross-examination, Ms McLean said she had considered the sort of sexual offending he had been involved in previously or which he was at risk of committing in the future as serious because of features of that offending which would be considered as aggravating in terms of the Sentencing Act 2002. In this regard, she
suggested that his sexual advances towards mental health patients were instances of his sexually offending against vulnerable people. As Mr Prince related, at the time such offences occurred, Mr Maindonald was also a mental health patient. There was also no evidence that such conduct involved any threat or attempt, on his part, to commit what would have been a serious sexual criminal offence with another patient.
[32] In her initial report, Ms McLean referred to various assessment tools which she had used to assess the risk of further offending. There was nothing, however, in her descriptions of the assessment tools which she had used to indicate whether they could be used to assess the risk of serious sexual offending or relevant sexual offending, as defined in s 107B(2) of the Act, as against other sexual offences. Under cross- examination, Ms McLean conceded that the “risk parameters” she applied to make a finding of a high risk of future offending were based on past offending, including the non-qualifying offences.
[33] It follows from all of this that the Chief Executive has not satisfied me of the grounds which must be made out for the Court to make an ESO.
Consideration of other cases
[34] I have carefully considered the judgments which the Court of Appeal and High Court came to in other cases which were brought to my attention. In her submissions, Mrs Grills relied heavily on parallels which she said existed between the circumstances of this case and those that justified Downs J in making an ESO in Chief Executive of the Department of Corrections v Popata.20
[35] There are similarities. As here, in Popata, the issue was whether or not there was a pervasive pattern of serious sexual offending rather than just a pervasive pattern of sexual offending and thus whether the future risk was as to serious sexual offending rather than just sexual offending. Much of Mr Popata’s earlier offending was of a similar nature to that of Mr Maindonald in that it involved brief indecent touching of strangers.
20 Chief Executive of the Department of Corrections v Popata, above n 16.
[36] I nevertheless accept the submission of Ms Saunderson-Warner that there are significant differences between the two cases which explains why, in that case, the threshold for making an ESO had been met, in contrast to my conclusions here.
[37] Mr Popata was 46. He had 10 convictions for sexual offending, two for indecent assaults on a female aged 12 to 16, seven for indecent assaults on a female over 16 and one for unlawful sexual connection. His victims ranged in age from 15 to 65. He had six convictions for male assaults female. The indecent assaults on victims in a public place were of two 15 year olds and a 19 year old. In January 2000, he had walked into a house and ended up sitting beside and indecently touching a victim. The contact ended when the victim’s partner came into the room. Three days later, he returned to this woman’s house. Later in January 2000, he approached and indecently touched a 24 year old female in a post office. After this, Mr Popata continued to stalk that victim. On 14 February 2000, he went into another home, indecently assaulted a victim and subsequently attempted to return into her home. There were a number of offences in the same period involving female victims and behaviour fairly described as “stalking”.
[38] On 17 February 2004 and while in prison, Mr Popata indecently assaulted a 65 year old librarian. The assault was more serious than any which occurred with Mr Maindonald. Mr Popata reached through the bars of his cell and grabbed the victim’s groin.
[39] On 30 March 2011, Mr Popata indecently assaulted a member of his family. With the assault, he undid her pants, rubbed her genital area and penetrated her genitalia with his fingers. He placed a hand over her mouth to prevent her calling for help.
[40] On 15 September 2016, Mr Popata again assaulted two female victims in a post office. On each occasion, there was an initial indecent assault and then a later approach where Mr Popata assaulted the victim again.
[41] In short, Mr Popata’s offending was more serious and more sustained than Mr Maindonald’s. Most importantly and in contrast to Mr Maindonald’s offending, Mr
Popata’s offending on a number of occasions involved further offending against victims who had rebuffed initial advances, and stalking.
The need for treatment
[42] There is a real risk that, on his release from prison, Mr Maindonald will commit further sexual offences that will have serious consequences for him and be distressing for those who might be the victims or otherwise associated with such offending, even though the risk of such offending does not meet the threshold that would justify the imposition of an ESO. An ESO cannot, however, be justified just because it might enable Corrections to ensure Mr Maindonald receives the counselling or other treatment which he needs to reduce that risk.
[43] If I had been satisfied that the threshold for the imposition of an ESO had been met, I would have had to consider whether, in the exercise of my discretion, an order should be made and also the appropriate duration of any such order.21 With regard to both, it would have been relevant that I do not consider he has had the opportunity to benefit from an individual treatment programme of the sort he needs.
[44] In her report of 7 March 2017, Ms McLean said that, when Mr Maindonald was serving his last sentence, it was considered it would be more beneficial to him if he were to participate in individual treatment focused on his sexual offending. She then said he was “currently placed at the top of the individual psychologist’s office waiting list for individual psychological intervention”. She noted he had not yet had the opportunity to engage in individual treatment with the Department of Corrections’ psychologists’ office. She said he “will require a detailed and robust release plan if he is to adequately manage his offending risk and mental health issues upon his return to the community”.
[45] Ms McLean referred to Mr Maindonald being diagnosed with schizophrenia in 2009 when he was 18, being involved with regular excessive use of alcohol since the
21 The term of an ESO may not exceed 10 years and must be the minimum period required for the purposes of the safety of the community in light of (a) the level of risk posed by the offender, (b) the seriousness of the harm that might be caused to victims, and (c) the likely duration of the risk. Section 107I(5).
age of 16, and his having regularly used cannabis since the age of 12 or 13. Since 2009, he had been a patient of the Southern District Health Board Forensic Mental Health Services and has had access to outpatient services. He was admitted to Wakari Hospital on multiple occasions. He has twice been subject to compulsory treatment under the Mental Health Act 1992. Her report indicates that Mr Maindonald has been a difficult patient and there have been a number of periods when he has engaged poorly with Mental Health Services.
[46] In her report, Ms McLean referred to the three opportunities he had to engage in treatment with Department of Corrections’ psychologists. The first occasion was in 2015 when he was in the community and subject to release conditions. Those opportunities came to nothing initially because of Mr Maindonald’s hostile response and, when he did indicate he would cooperate, because his sentence came to an end.
[47] The second opportunity was in September 2015 when he was subject to intensive supervision. He was initially unable to participate because of being under the influence of cannabis. He failed to attend the second appointment. Nothing further was possible because of his being charged with the offence for which he was sentenced to his last term of imprisonment.
[48] While serving that sentence, Mr Maindonald was assessed for the Kia Marama Special Treatment Unit but it was decided that he would not be suitable for group- based treatment for a number of reasons, including his engagement in sexually offensive behaviour targeted towards female staff and the frequency activation of paranoia within the group environment. It was because of this that it was considered it would be more beneficial for him to participate in individual treatment focused on his sexual offending.
[49] In her updated report of 5 April 2018, Ms McLean said that, after her initial report had been prepared, Mr Maindonald had attended 27 treatment sessions while residing at the Otago Corrections Facility and that it had been understood when she prepared her first report that Mr Maindonald would be transferred to Wakari Hospital where the DHB Forensic Services would provide oversight and management of his mental health symptoms. She said this did not happen during his period of
imprisonment “due to the unavailability of hospital beds coupled with the consideration by Forensic Services that Mr Maindonald’s mental health needs, accommodation needs, and his safety/risk related needs could be adequately met under the ESO IM legislation (at least while he was subject to an interim ESO with intensive monitoring)”.
[50] Ms McLean said that Mr Maindonald was nevertheless considered to have participated in an appropriate manner throughout all treatment sessions and had made poor-moderate progress over the areas which were being addressed. Those areas were all to do with reducing the risk of further offending, mainly within the environment that Mr Maindonald was then in.
[51] Ms McLean said that his treating psychologist had indicated that treatment had been “paused” while Mr Maindonald was accommodated in Christchurch. This obviously followed on from the end of his prison sentence and his being housed in the accommodation associated with Christchurch Men’s Prison, available for offenders who are subject to ESO and intensive monitoring. There has thus been no further individual treatment which Corrections identified Mr Maindonald needed and no further work on bringing about the changes he needs to make to allow him to live safely in the community.
[52] I was informed during the hearing that Corrections’ original intention had been for Mr Maindonald to be able to live in Dunedin during the period of an ESO in accommodation and under the oversight of the community care organisation known as PACT. In such a situation, he would also have been able and required to continue with the individual offence-specific treatment which had been of benefit to him while he was still serving his prison sentence. I was however told during the hearing that PACT does not have the sort of accommodation needed to allow Mr Maindonald to be in such an environment.
[53] What has happened indicates that Mr Prince was justified in expressing his concern that an ESO might hinder, rather than enhance, the likelihood of Mr Maindonald being successfully treated. Due to a somewhat difficult presentation, he may not always be conducive to engaging and, if this were to occur, he could be
construed as obstructive and not offered treatment. In his evidence, Mr Prince confirmed that his fear was that the health authorities would be less inclined to assume the responsibility for the mental health care which Mr Maindonald needs if, through the imposition of an ESO, the Department of Corrections has responsibility for removing or minimising any risk to the public from his further offending.
[54] Mr Prince suggested that it might be beneficial to impose an ESO, effectively on an interim basis, for a further year so that the Department of Corrections can provide ongoing treatment as well as offence-specific treatment to him, with his level of risk to then be reassessed at the end of that year. I cannot however subject him to an ESO for a period of even one year unless I have been satisfied that the grounds for the making of such an order have been made out. I am not satisfied that they have been.
[55] It appears from all of this that Mr Maindonald is at risk of further offending, at least partly because, while he was doing his prison sentence, he did not receive for long enough the sort of individual offence-specific intervention which he needed. It also appears that, if he continues to receive that sort of treatment while in the community, the risk for him and the public will be further reduced.
Conclusion
[56]The application for an ESO is declined.
[57] Mr Maindonald’s sentence of two years and four months ended on 29 January 2018. Mr Maindonald is accordingly subject to at least the standard release conditions for a period of six months through to 28 July 2018. Because Ms McLean acknowledged in her first report that Mr Maindonald would “require a detailed and robust plan if he is to adequately manage his offending risk and mental health issues upon his return to the community”, I have endeavoured to deliver my judgment in a way that might enable the department to ensure that such a plan is in place and sanctioned by Mr Maindonald’s need to comply with the standard release conditions when this judgment is issued.22 The Department of Corrections should be ensuring
22 Parole Act 2002, s 18(2).
that Mr Maindonald is living in a situation where he can still benefit from the sort of individual offence-specific treatment he was benefiting from at the end of his prison sentence.
Solicitors:
RPB Law, Dunedin
SA Saunderson-Warner, Barrister, Dunedin.
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