Chief Executive, Department of Corrections v Paniora
[2018] NZHC 1505
•22 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2017-404-0274
[2018] NZHC 1505
BETWEEN CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
ApplicantAND
PHILLIP JOHN PANIORA
Respondent
Hearing: 14 June 2018 Appearances:
S McColgan and S Wilson for Applicant R Mansfield for Respondent
Judgment:
22 June 2018
JUDGMENT OF JAGOSE J
This judgment is delivered by me on 22 June 2018 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Meredith Connell, Auckland
Ron Mansfield, Barrister, Auckland
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v PANIORA [2018] NZHC 1505 [22 June 2018]
Contents
Mr Paniora’s offending....................................................................................... [5]
The health assessors’ reports.............................................................................. [7]
—Ms Nelmes’ reports [9]
—Dr Brindley’s report [17]
—Ms Nelmes’ evidence [20]
Considering an extended supervision order.................................................... [23]
—pervasive serious offending [25]
—qualification for risk assessment [27]
—risk of future relevant violent offending [31]
The term of the order........................................................................................ [33] Imposition of intensive monitoring condition..................................................................... [46]
Imposition of special conditions on interim basis........................................... [54]
Orders................................................................................................................. [61]
[1] The Chief Executive of the Department of Corrections seeks an extended supervision order (“ESO”) in respect of Mr Paniora.1 An ESO is “to protect members of the community from those who … pose a real and ongoing risk of committing serious sexual or violent offences”.2
[2] The application is brought on grounds I should be satisfied, having considered proffered health assessors’ reports, Mr Paniora has, or had, a pervasive pattern of serious violent offending, and there is a very high risk he will in future commit a relevant violent offence.3 The Chief Executive also seeks the maximum term for such an order, of 10 years.4 However, if I make the ESO, I must make it for the “minimum period required for the purposes of the safety of the community”.5
[3] Since his release from imprisonment on 26 January 2018, and pending determination of the ESO application, Mr Paniora has been subject to an interim supervision order,6 with special conditions,7 including an intensive monitoring
1 Parole Act 2002, s 107F.
2 Parole Act 2002, s 107I(1).
3 Parole Act 2002, s 107I(2).
4 Parole Act 2002, s 107I(4).
5 Parole Act 2002, s 107I(5).
6 Parole Act 2002, s 107FA.
7 Parole Act 2002, s 107IA.
condition for its maximum duration of 12 months.8 The Chief Executive also seeks an intensive monitoring condition in connection with the ESO. Although the District Court last sentenced Mr Paniora, that sought condition gives me jurisdiction here.9
[4] Mr Paniora opposes both imposition of the maximum term for the ESO, and re-imposition of the intensive monitoring condition. He says there is no evidential justification for the maximum term, the imposition of which would be arbitrary and counterproductive. And he says his compliance with the terms of the interim supervision order since release illustrates intensive monitoring is not required, or should take into account that period of supervision since release.
Mr Paniora’s offending
[5] Mr Paniora is 49 years old, with tribal connections to Ngati Whatua, Te Roroa, and Ngapuhi. He has extensive criminal history, commencing in 1984 with relatively minor and nuisance offences, but escalating to serious violence in 1988, with persistent serious violent offending thereafter.
[6] In 2011, Mr Paniora was sentenced to nine years’ imprisonment on seven counts of violent and sexual offending, including serious sexual offending. His serious violent and sexual offending are all “relevant offences” for the purposes of an ESO. And his present circumstances as outlined at [3] above render him an “eligible offender” for those purposes, at least in terms of the latest serious sexual offending.10
The health assessors’ reports
[7] The Chief Executive commissioned a health assessment report from Angela Nelmes, a registered clinical psychologist. Her principal report is dated 26 May 2017, and supplemented by a brief updating report dated 12 June 2018. Of the latter Ms Nelmes notes “[t]his update is limited to a descriptive analysis as there has been insufficient time from the date of request [on 8 June 2018] to complete an updated risk
8 Parole Act 2002, s 107IAC: “(2) An intensive monitoring condition is a condition requiring an offender 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 by the chief executive, to undertake person-to- person monitoring.”
9 Parole Act 2002, ss 107D and 107IAB(2).
10 Parole Act 2002, s 107C.
assessment”. Mr Paniora’s then counsel, Hugh Leabourn, also commissioned a psychological report from Clare Brindley, also a registered clinical psychologist, dated 10 December 2017. Mr Paniora’s new counsel, Ron Mansfield, sought Ms Nelmes for cross-examination.
[8] Section 107F(2A) requires every health assessor’s report “to address one or both of the following questions”:
(2A) Every health assessor’s report must address one or both of the following questions:
(a) whether—
(i) the offender displays each of the traits and behavioural characteristics specified in section 107IAA(1); and
(ii) there is a high risk that the offender will in future commit a relevant sexual offence:
(b) whether—
(i) the offender displays each of the behavioural characteristics specified in section 107IAA(2); and
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.
For completeness, s 107IAA(1) and (2) provide:
107IAA Matters court must be satisfied of when assessing risk
(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—
(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.
(2) A court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender—
(a) 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 1 or more other persons; and
(b) 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) displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
—Ms Nelmes’ reports
[9] Ms Nelmes interviewed Mr Paniora over three hours on 3 November 2016. He was known to her, I infer, from her work with the Department of Corrections. She reviewed various sentencing notes, psychological and Parole Board reports, and other records from Mr Paniora’s files, as well as discussing him with a senior probation officer on 10 March 2017. For her updated report, she reviewed Mr Paniora’s probation files, and interviewed two probation officers on 8 and 12 June 2018.
[10] Ms Nelmes summarised Mr Paniora’s violent and sexual offending, for which he had “been sentenced to terms of imprisonment totalling over 26 years” since his early teenage years. She additionally noted 28 incidents during Mr Paniora’s terms of imprisonment, including “15 related to abuse and violence towards prisoners and staff”, illustrating “impulsive, poor emotion control resulting in assaults, destroying property and involv[ing] instrumental violence and threats intended to result in him achieving a preconceived goal”. She recorded Mr Paniora’s active membership of the
Tribesmen gang, which Mr Paniora intended “will continue into the community on his release”.
[11]Ms Nelmes concluded:
16 Mr Paniora demonstrates a number of problematic interpersonal behaviours related to his antisocial personality style throughout his prison and community sentences. He has verbalised that receiving a sentence of Preventative Detention would make him a “star”, and has made reference over time to his risk of committing murder. In order to meet his needs he has a predatory view towards others, where he employs manipulation and/or superficial engagement to establish a positive persona in front of others to hide his antisocial intent. However, he struggles to maintain this superficial presentation over time, and readily resorts to both instrumental and reactive violence to gain mastery over others. This ability to be at times superficially charming and grandiose would in the opinion of the writer account for his ability to establish short-term relationships with young more impressionable females that overtime become characterised by violence to maintain control.
17 Mr Paniora’s superficial engagement and propensity to gravitate rapidly into violence was seen within his intimate relationships and was evident within his sexual offending. Mr Paniora has utilised violence over time that far exceeded that needed to gain compliance, and in the clinical opinion of the writer his violence was prolonged and intensified to gain physiological arousal. Mr Paniora evidences a rape profile that is primarily motivated by displaced hostility and anger. Those with similar anger/vindictive rapist pathways tend to be more spontaneous and impulsive in their assaults with rapes characterised by considerable force, physical and verbal aggression and the potential for considerable physical injury. These anger/vindictive rape offences are motivated to be degrading and humiliating (as evidenced by Mr Paniora using violence and forcing the victim to perform sexual acts on her wedding night) and are seen to be more related to expressing anger than solely for sexual gratification.
18 Mr Paniora has been offered attendance at the Adult Sex Offender Treatment Programme and the Special Treatment Unit Rehabilitation Programme (STURP). He has repeatedly declined to engage in treatment, and it is considered that the presence of the aforementioned personality traits may act as a responsivity barrier for treatment. Mr Paniora’s lack of engagement in recommended intensive validated treatment is consistent with his prior incarceration behaviour.
[12] Ms Nelmes applied a number of “actuarial instruments and noted clinical risk factors” to assess the risk of Mr Paniora’s commission of further serious violent or sexual offending in the community. On each the Automated Sexual Recidivism
Scale,11 and the Violence Risk Scale: Sexual Offender version,12 she assessed Mr Paniora as being in a medium-high risk category. On the balance – the Ontario Domestic Assault Risk Assessment,13 the Spousal Assault Risk Assessment,14 and the Psychopathy Check List: Screening Version15 – she assessed Mr Paniora as being in a high-risk category.
[13] Taking into account her “clinical consideration of his past offending and institutional behaviour”, Ms Nelmes considers “there is a very high risk of Mr Paniora committing a further relevant offence while in the community”. More specifically:
31 It is considered that there is a very high risk that Mr Paniora will engage in relevant violent offending within ten years of release. This violence is likely to be against a female with whom he has entered into a brief relationship. The level of violence is likely to escalate rapidly and to be vindictive in motivation and could include extreme acts of violence/torture over an extensive time period. On that basis the potential for serious injury or fatality can not be discounted. Mr Paniora is also likely to engage in acts of reactive violence towards males and police; this may be during criminal activities with antisocial peers or random acts of violence, exacerbated by drugs and/or alcohol.
32 It is considered that there is a medium-high risk of Mr Paniora engaging in sexual offending within ten years of release. It is considered that the risk would be more imminent in the context of intimate partner violence, where he wanted to degrade and humiliate the victim and would be primarily a manifestation of violence, rather than purely sexually motivated.
[14] Ms Nelmes then turns to the s 107IAA traits and behavioural characteristics. While she does not consider Mr Paniora materially to demonstrate those by reference specifically to relevant sexual offending, she considers Mr Paniora is intensely driven to “act out violently, which he has declined to address in treatment”, and displays extreme aggressive volatility. She cannot discount Mr Paniora’s potential to seek revenge through violence, and identifies such conduct in his past offending. His future
11 Alexander Skelton and others “Assessing risk for sexual offenders in New Zealand: Development and validation of a computer-scored risk measure” (2006) 12 Journal of Sexual Aggression, 277.
12 Sarah M Beggs and Randolph Grace “Assessment of dynamic risk factors: An independent validation study of the violence risk scale: sexual offender version” (2010) 22 Sexual Abuse: Journal of Research and Treatment 234.
13 NZ Hilton and others “A Brief Actuarial Assessment for the Prediction of Wife Assault Recidivism: The Ontario Domestic Assault Risk Assessment” (2004) 16 Psychological Assessment 267.
14 PR Kropp and others Manual for the spousal assault risk assessment guide (3rd ed, Multi-Health Systems, Toronto, 1999).
15 Stephen Hart, David Cox and Robert Hare The Hare Psychopathy Checklist: Screening Version. (Toronto, Multi-Health Systems, 1995).
sexual offending “would likely be an extension of intimate partner violence, and motivated to degrade and humiliate the victim”.
[15] In Ms Nelmes’ opinion, Mr Paniora evidences poor self-regulation of his violence and aggression, and has:
… a clear enduring goal of using violence across settings and time to gain dominance and to access rewards he feels entitled to which is driven by his level of psychopathic personality traits.
Across both sexual and violent offending, she notes Mr Paniora does not either accept responsibility or show remorse for his past offending, and lacks empathy for the victims of that offending. She characterises him as exhibiting “psychopathic personality traits, including manipulation [and] deceitfulness”. She concludes:
… Mr Paniora’s personality characteristics, his current violence, his extensive history of violence, his callous disregard for his victims, his prior poor compliance and his lack of treatment makes him at very high risk of re-offending violently.
[16] Ms Nelmes’ updating report observes Mr Paniora has continued “to evidence interpersonal aggression and hostility in his engagement[s]” under supervision, in which any initial constructive involvement “tends to deteriorate negatively as the sessions progress”. She noted indications of Mr Paniora’s continuing manipulation, including in a new intimate relationship, in which “Probation is not currently confident that his partner is aware of the extent of his offending”. Ms Nelmes finds those observations and indications to be consistent with her earlier assessment of Mr Paniora, and notes of particular concern he has “rapidly engaged in a relationship without having addressed his very high risk of violence.”
—Dr Brindley’s report
[17] Dr Brindley applies other assessment tools,16 to conclude Mr Paniora is at “very high risk of violence recidivism and high risk of sexual recidivism”. She also
16 Kevin Douglas and others HCR-20V3: Assessing risk of violence – user guide (Burnaby, Canada, Mental Health Law and Policy Institute Simon Fraser University, 2013); Douglas Boer and others The Manual for the Sexual Violence Risk-20 (Burnaby, Canada, Mental Health Law and Policy Institute Simon Fraser University, 1997).
works her way through the s 107IAA traits and behavioural characteristics to conclude “[h]e poses a high risk of serious imminent harm to others in the community setting”.
[18] In Dr Brindley’s view, “supervision would be an appropriate way to afford [Mr Paniora] the opportunity of accessing rehabilitative interventions”, but his “history of failure to comply with boundaries” and his “significant barriers to treatment” mean there is no release plan “that adequately defines management strategies to minimise the level of risk he poses within the community”.
[19] Consistently with Ms Nelmes, Dr Brindley is of the view, while evidence of the risk of Mr Paniora’s future serious sexual offending may be equivocal, he is intensely motivated to be violent, including for revenge. His lack of self-control, and lack of empathy for victims of his offending, is emblematic in his offending.
—Ms Nelmes’ evidence
[20] In evidence-in-chief, Ms Nelmes expanded on her assessment of Mr Paniora’s placement in the 100th percentile on the Psychopathy Check List: Screening Version assessment. She said:
It basically means that you couldn’t score higher on that. So he scores both high on Factor 1 scores, and Factor 2. Factor 1 concerns really interpersonal ineffective behaviour, whereas the Factor 2’s are more related to criminality. He scores a total score on both of those, the highest you could achieve.
She added:
There’s a lot of issues around the treatment of psychopathy. So at one period certainly [during] the 90s it’s considered that people who scored in that range that Mr Paniora does, are untreatable. That’s since come up for various different treatment pathways that have been considered. It’s still not a categorical treatment pathway for somebody who scores in that PCL range.
[21] In terms of Mr Paniora’s Violent Risk Scale assessment, Ms Nelmes measured it at “4.7, nearly 5 years”. She noted the consistency of the risk in all the assessments, both her own and Dr Brindley’s (although Dr Brindley’s assessments related to the present risk, while her assessments were predictive). She commented:
What it doesn’t account for is the psychopathy aspect of it. So if you take that, what we know about psychopathy is that with Factor 1s are resistant to change and they’re not seen to change and be dependent on age. Factor 2, so those
people scoring higher in Factor 2, there’s more opportunity for change. Potentially that is because it links into [inaudible] high risk behaviours that actually as somebody gets older it hurts more. They’re less likely to engage in it. And so, whereas the Factor 1s are personality entrenched factors that don’t change.
…
In terms of Factor 1, Factor 1 will not change regardless of age. So again, depending on the individual’s profile, Mr Paniora scores higher on both of those aspects whereas another offender may score only high or predominantly high on Factor 2. That has the potential to be influenced by age, but not for Mr Paniora.
…
… [I]f we were looking at somebody who is scoring high on a VRS, a Violent Risk Scale, in isolation, there are factors there that could be modified over time. In Mr Paniora’s case there is no indication that that would be modified with this PCL Factor 1 scores.
[22]In answer to later questions from me, Ms Nelmes said:
[W]hilst five years makes sense under the VRS and the violent projection of risk, the PCL suggests to me that it could extend longer than that to actually consider that any change has taken place and to assess the likelihood of any change actually to having taken place.
I asked her if, taken together with the absence of post-release management plans for Mr Paniora, this meant his risk of relevant violent recidivism extended beyond five years. She explained the data did not support a risk assessment of longer than five years. She agreed that was because the assessment is made against a five-year reoffending matrix, but it “would be inappropriate” for her to exceed the assessment.
Considering an extended supervision order
[23]Section 107I(2) provides:
(2) A sentencing court may make an extended supervision order if, following the hearing of an application made under section 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:
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.
[24] In Chief Executive, Department of Corrections v Alinizi, the Court of Appeal explained the three-step process following determination of the offender as “eligible” for an ESO: I must determine if Mr Paniora is a pervasive sexual or violent offender; I must assess his specific qualification in terms of the s 107IAA traits and behavioural characteristics; and, if qualifying, I must determine the risk of his future serious sexual or violent offending.17
—pervasive serious offending
[25] I am satisfied Mr Paniora has, or had, a pervasive pattern of serious violent offending. He was convicted of injuring with intent to cause grievous bodily harm in 1988;18 aggravated assault and aggravated robbery in 1991;19 assault on a female in 1995; 20 threatening to kill or do grievous bodily harm in 1996; 21 injuring with intent in 1999 and 2000;22 wounding with intent in 2001;23 assault with intent to injure in 2009;24 and the index violent offending of threatening to kill or do grievous bodily harm, injuring with intent, and assaults on a female in 2008.
[26] I do not overlook the violence inherent in the index sexual offending, of sexual violation, both by rape and by unlawful sexual connection with another person, being his wife, on the night after their marriage.25 I note the sentencing Judge’s reference to “a return to [Mr Paniora’s] violent practices”, which he earlier described as Mr Paniora “practising bullying and violence” to compensate for his inability “to deal with life”.26
17 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
18 Crimes Act 1961, s 189(1).
19 Crimes Act 1961, ss 192 and 235.
20 Crimes Act 1961, s 194.
21 Crimes Act 1961, s 306.
22 Crimes Act 1961, s 189.
23 Crimes Act 1961, s 188.
24 Crimes Act 1961, s 193.
25 Crimes Act 1961, ss 128(1)(a) and (b) and 128B.
26 R v Paniora DC Auckland CRI 2009-011-0058, 6 July 2011 at [6] and [9].
—qualification for risk assessment
[27] I am also satisfied Mr Paniora ‘qualifies’ for my determination whether he will in future commit a relevant violent offence.
[28] First, I am satisfied Mr Paniora’s behavioural functioning is severely disturbed. This is evidenced by the intensity of his drive to commit acts of violence, as illustrated by his progressively more serious criminal history, the universality of violence in his relationships with others, its continuation while incarcerated, and his own acknowledgment of reversion to violence to secure his objectives. It is plain the ease with which Mr Paniora adopts seriously violent responses to relatively minor incitements – such as the index offending arising from his ‘grumpiness’ – establishes his extreme aggressive volatility. His offending is characterised by reversion to violence to gain redress for perceived slights, or to obtain desired reward, and his depiction of himself as the ‘victim’, for which revenge is sought or taken. I have in mind, in particular, his 2001 offending against his partner, the sentencing notes for which record him as blaming her for his conviction, and contending she was paid by the police to give evidence against him. But his bullying, and resistance to authority, also have vengeful motivation.
[29] Next, I am satisfied from his criminal record, but also from the psychologists’ reports, Mr Paniora has limited self-regulatory capacity. To some degree, this is the alternative characterisation of his aggressive volatility. To the extent it is not, then that volatility is an outworking of his deliberate use of violence to achieve his ends. But the evidence suggests Mr Paniora instinctively uses violence, rather than strategically deploys it, in response to incitement or prospective reward. Of note in this context is his refusal to participate in rehabilitative courses, which may have offered alternative coping mechanisms.
[30] Last, Mr Paniora’s lack of empathy for his victims, and his lack of understanding for the impact of his violent offending on them, is endemic in his offending. This is consistent with the perception of his own victimhood, and his normalisation of violence as an appropriate response to challenges. I find Ms Nelmes’
location of the index sexual offending in his serious violent offending insightful. Intimate partner violence is particularly redolent of a lack of empathy.
—risk of future relevant violent offending
[31] Mr Paniora’s ‘qualification’ for my determination of his risk of relevant violent offending, his past offending and continuing personal characteristics as predictive of his future conduct, and his rating at the far horizon of actuarial tools designed to provide assessments of violent recidivism, all satisfy me there is a very high risk Mr Paniora will commit a relevant violent offence. Mr Paniora’s placement at the worse end of those risk assessment scales is particularly informative, as the only forward- looking factually-based evidence before me. Within the constraints of their designs, his consistent attainment at about their maximum ratings suggests their predictions of his future relevant violent offending are at least conservative, if not positively understated.
[32] I will therefore make an ESO, to protect the community from the real and ongoing risk of Mr Paniora’s serious violent offending on his release into it.
The term of the order
[33]Section 107I(4) and (5) provide:
(4) Every extended supervision order must state the term of the order, which may not exceed 10 years.
(5) The term of the order 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; and
(b) the seriousness of the harm that might be caused to victims; and
(c) the likely duration of the risk.
[34] Obviously, given his relevant violent offending qualifies for the making of an ESO, the level of risk posed by Mr Paniora is very high. The seriousness of the harm that might be caused to victims is of those relevant violent offences. Ms Nelmes said “the potential for serious injury or fatality can not be discounted”. In Dr Brindley’s view, “the extent of injur[i]es could result in death due to excessive use of violence,
particularly in the presence of weapon use”. The persistent escalation of seriousness of Mr Paniora’s violence over the decades of his offending suggests those concerns are not overwrought, but informed professional assessments as to the future.
[35] Especially noteworthy is the psychologists’ insistence any change in their prognoses for Mr Paniora’s future will only come from treatment, which Mr Paniora has been resolute in avoiding, and is incapable of substituting by self-regulation. And Ms Nelmes reinforced, in its institutional provision in prison, that is intensive treatment of 300 hours’ duration, delivered four days a week (if for, say, five hours a day, then over 3½-4 months), and reinforced by the institution for the duration of the offender’s detention. But, outside the institution, treatment is only realistically available by consultation with a psychologist for, say, an hour a week – requiring nearly six years to achieve even the 300 hours treatment, but then without the necessary attendant intensity and reinforcement. Ms Nelmes confirms Dr Brindley’s observation Mr Paniora has no risk-minimising release plan, because such management strategies require Mr Paniora’s voluntary participation.
[36] The only evidence of any insight on Mr Paniora’s part as to the desirability of treatment is his attendance at a single psychologist’s session in the almost five months since his release. Mr Mansfield emphasised that as providing some optimism for Mr Paniora’s prospects for change and development. He produced through Ms Nelmes two recent weekly reports of Mr Paniora’s monitoring and supervision, and half a dozen ‘offender notes’ made by the Department of Corrections since Mr Paniora’s release. He recognised they contained “both the good and the bad” but relied on them diligently to identify other indications of insight and action on Mr Paniora’s part.
[37] As a standout example, Mr Mansfield highlighted as indicative of Mr Paniora’s new-found capacity for self-regulation, in the course of a dispute with Corrections about his parole entitlements, a note recording:
During this time [Mr Paniora] noticed [the Corrections officer’s] name on ID and asked if [the Corrections officer] was related to a certain prison staff member. Thereafter his attitude changed. [Mr Paniora] apologised for his interactions and stated he attempts to manipulate agencies, where possible, to his advantage.
But Ms Nelmes took the view the exchange illustrated Mr Paniora’s “grandiosity”, which she agreed was the same view taken by the note’s author, in summary recording “[p]oor initial rapport then after seem[s] to try to impress [the Corrections officer]”. In answer to later questions from me, she added:
It is … a combination between poor emotion control and grandiosity. So the grandiosity is around that superficial positive presentation but the inability to maintain it or sustain it. So you kind of see this want to impress in the first instance, and wanting to engage with that person for some rationale. But it quickly changes even within that period of that session. So yes, it does refer to grandiosity within that.
[38] Ms Nelmes reviewed all the ‘offender notes’, which numbered “more than 1000”. In her view, the positive indicators available from the notes were more explicable of Mr Paniora’s attempts to manipulate circumstances to his benefit, and the negative indicators largely his response to failure. In other words, far from illustrating Mr Paniora’s fledgling steps toward self-management, his post-release behaviours are exactly consistent with those qualifying him for extended supervision.
[39] The Court of Appeal suggested, in Moeke v Chief Executive of the Department of Corrections, the Chief Executive ensure health assessor reports accompanying ESO applications “include a considerably greater focus on the appropriate s 107I(5) minimum term”.27 The Court indicated those materials should include:28
(a)a section in the psychological report that addresses fully the minimum term sought for the particular offender against the s 107I(5) criteria;
(b)a thorough assessment of the efficacy and suitability of post-release plans including their nature and duration;
(c)relevant updating information at the date of the extended supervision order hearing; and
(d)steps which the offender has taken to address perceived risks.
[40] For Mr Paniora, though, there are no post-release plans, the absence of which means there is no (let alone efficacious and suitable) mitigation of his risk of serious violent recidivism, and no steps taken (or, according to Ms Nelmes, likely to be taken) by him to address that risk. And Ms Nelmes is stymied by her assessment tool’s
27 Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60 at [28].
28 At [29].
maximum five-year projection, to not want to address any minimum term beyond that prediction. Yet the psychologists agree there is no indication Mr Paniora’s risk will diminish during that period.
[41] Thus Ms Nelmes was insistent the minimum term should be “five years going by the data and the tests I’ve undertaken”, which “it would be inappropriate” for her to exceed. Mr Mansfield submitted, against the Chief Executive’s claim to a ten-year ESO, that was the only reliable evidence of the duration of risk on which the Court could rely in making an ESO. He noted it would be open to the Chief Executive, if circumstances warranted it, then to apply for a further period of supervision. A five- year term was justified by the incentive it provided to Mr Paniora to continue to engage in treatment.
[42] In Department of Corrections v Nepia, Kós J observed “[c]ases where an ESO of ten years have been ordered typically involve a recurring pattern of sexual offending”.29 Lesser terms are justified by offenders’ advancing age,30 but also by their acceptance of responsibility, positive response to treatment, and access to support.31 An organising principle for the imposition of a minimum term at the maximum period available may be the pathological nature of such offending, habitually denied by offenders, and therefore an absence of treatment. Comparatively, serious violent offending appears more frequently environmental, less open to denial, and for which treatment and support are more accepted.
[43] In my assessment, ‘the likely duration of the risk’ here exceeds the five years predicted by Ms Nelmes’ model. That is because the model does not predict beyond five years, and therefore its prediction of the risk presented by Mr Paniora’s reoffending is only to say it is at the far bounds of the available prediction. Mr Paniora’s violent offending is literally pathological, and unlikely to diminish with age. In Ms Nelmes’ words, “there’s no indication that Mr Paniora can manage his own
29 Department of Corrections v Nepia [2014] NZHC 1448 at [41].
30 Eg, Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298; Chief Executive, Department of Corrections v van der Plaat [2016] NZHC 3186.
31 Eg, Chief Executive of the Department of Corrections v H (CA359/05) CA359/05, 1 May 2006 (five years); Chief Executive Department of Corrections v Clark [2017] NZHC 771 (two years)
risk”, and “[s]elf-management is what would be required to reduce the risk”.32 She agreed with Mr Mansfield only time would tell if any potential for Mr Paniora’s change sustainably manifested itself.
[44] On that basis – in light of the very high risk of serious violent offending posed by Mr Paniora, the serious injury or death that might be caused to his victims, and the absence of any predictable limit to the duration of that risk – the “minimum period required for the purposes of the safety of the community” in my view exceeds ten years. In coming to that view I am unable to have regard for Mr Paniora’s possible incentivisation by any shorter period. That is not a relevant consideration in deciding the ‘minimum period required’. (I acknowledge actual incentive may reflect in “the level of risk posed by the offender”, but there is inadequate evidence Mr Paniora would be incentivised by a shorter period.)
[45] I will therefore make an ESO for a term of ten years, which is the maximum period for such a term.
Imposition of intensive monitoring condition
[46] As said, the Chief Executive seeks an intensive monitoring condition in connection with the ESO.33 When I make the ESO, I may make an order requiring the Parole Board to impose an intensive monitoring condition,34 and to specify its maximum duration, which can be no longer than 12 months.35 Notably, that is not an order requiring the Board to impose such a condition of any specified duration – only that I am to specify the maximum duration of any condition I order the Board to impose. Except for the coincident making of an ESO, and the Chief Executive’s application, there is no statutory threshold for the order. But its exceptionally intrusive, time-limited, and one-off aspects are all indicia it is a response to a need to assert external control at a transitional point of high risk.36
32 Ms Nelmes’ latter comment was made expressly in relation to a specific domestic violence risk, but is plainly of wider application.
33 At [3] above.
34 Parole Act 2002, s 107IAC(1). Subs (2) defines “intensive monitoring condition”: see above n 8.
35 Parole Act 2002, s 107IAC(3).
36 See also Chief Executive of Department of Corrections v Paul [2017] NZHC 1294 at [39].
[47] It is clear from the evidence intensive monitoring remains justified. Ms Nelmes explained it is:
… a containment of that risk [of offending] so we’re saying that somebody is unable themselves to manage their risk without some kind of aspect of high intensity monitoring. It removes an element of their kind of responsibility in that so because what we’re saying is they’re actually not modifying their own behaviour in any way. So we have somebody there that monitors that to ensure that they are not able to access situations where they would reoffend. So that is the purpose of intensive monitoring, for somebody who is considered to be not able to manage their own risk.
Mr Paniora is such a person. Indeed Mr Paniora has been subject to intensive monitoring since his release.
[48] Mr Mansfield argues Mr Paniora’s compliance with the various conditions of his interim supervision order, and indications of positive changes in his taking responsibility for himself,37 illustrate intensive monitoring is no longer required. But, under cross-examination, Ms Nelmes said “… behavioural change and attitudinal change in the moment or within a short period of time is not a good assessment of actual change, with Mr Paniora”. She advocated for caution over time. I agree. The case for Mr Paniora’s intensive monitoring remains. I will order the Board to impose an intensive monitoring condition on Mr Paniora.
[49] In that case, Mr Mansfield submits, Mr Paniora’s time already spent subject to intensive monitoring should be taken into account in specifying its maximum duration. The Chief Executive says I am not entitled to do so, and points to s 107FA(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).
The relevant provision here is s 107K(3)(ba), which states “any intensive monitoring condition may apply only within the first 12 months of the term of the order”. Mr Mansfield replies s 107K(3) only applies “[w]hen the Board imposes special conditions”. The Court is not so constrained, and should take ‘time served’ into
37 These related to Mr Paniora attending gyms, keeping his accommodation tidy, and reporting commencement of an intimate relationship.
account as a matter of principle, particularly given the maximum duration of any intensive monitoring.
[50] The Chief Executive also relies on Chief Executive of the Department of Corrections v SRA, in which Woodhouse J observed:38
… The maximum duration of such a condition, made on a final application for an extended supervision order, is 12 months, as recorded in s107IAC(3) above. The provisions of the Act relating to interim supervision orders, which can include what might be called an “interim intensive monitoring condition”, and the separate provisions dealing with orders for intensive monitoring conditions as part of a final extended supervision order, can be construed as enabling successive intensive monitoring orders for periods of 12 months each, notwithstanding the prohibition contained in s107IAC(5). In particular, s107FA(4), read in conjunction with s107K(3)(ba), suggest that successive orders for intensive monitoring conditions, interim and then final, may have been contemplated by the legislature.
…
The two provisions, read together, do not contain an express provision for an “interim” intensive monitoring condition to be followed by a “final” intensive monitoring condition, but the possibility of such an occurrence seems to be implied.
[51]I find interpretive support for that perspective in the provisions themselves:
(a)“the period” not to be taken into account under s107FA(4) is not that during which an intensive monitoring condition applies, but that during which the interim supervision order is in force. It is not at all necessary the period of an intensive monitoring condition be coextensive with the period of the interim supervision order; and
(b)“the limit” specified in s 107K(3)(ba) is that an intensive monitoring condition may only apply within the first 12 months of the ESO. For ‘the period’ not to be taken into account for the purposes of ‘the limit’ is only to say the period of the interim supervision order is not part of the limit presented by the first 12 months of the ESO.
[52] To summarise my decision on this aspect, only the Board imposes intensive monitoring conditions; the Court’s role is to “make an order requiring the Board” to
38 Chief Executive of the Department of Corrections v SRA [2017] NZHC 1088 at [92]-[95].
do so.39 If so ordered by the Court, the Board is to impose an intensive monitoring condition.40 The maximum duration of that condition is to be specified by the Court.41 Whatever duration up to that maximum is imposed by the Board, the condition only applies during the first 12 months of the ESO.42 Neither the Court in specifying the maximum duration, nor the Board in imposing the condition, is either required to take or prohibited from taking into account time spent on intensive monitoring conditions in association with interim supervision orders.
[53] Given the risk here sought to be ameliorated by the intensive monitoring condition, Mr Paniora’s inability to manage that risk, and the community interest in keeping him from reoffending, it is my view the Board should have the greatest discretion as to the duration of the intensive monitoring condition it imposes. I will specify the maximum duration of the intensive monitoring condition as 12 months.
Imposition of special conditions on interim basis
[54] Last, the Chief Executive seeks orders imposing special conditions on Mr Paniora on an interim basis, including an intensive monitoring condition. ‘Special conditions’ are designed to:43
(a)reduce the risk of reoffending by the offender; or
(b)facilitate or promote the rehabilitation and reintegration of the offender; or
(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 … to impose an intensive monitoring condition.
[55] When I make the ESO, I may make such special conditions, but only if I am satisfied there may not be sufficient time, before the ESO comes into force, for the Board to determine which (if any) should be imposed.44 The special conditions apply
39 Parole Act 2002, s 107IAC(1).
40 Parole Act 2002, s 107IAC(4).
41 Parole Act 2002, s 107IAC(3). 42 Parole Act 2002, s 107K(3)(ba). 43 Parole Act 2002, s 15(2).
44 Parole Act 2002, s 107IA.
for three months, or until the Board determines any earlier application for special conditions.45
[56] As said, Mr Paniora is presently subject to an interim supervision order, with special conditions.46 On my making of the ESO, the interim supervision order “ceases to have effect”.47 However, although any standard release conditions are discharged when the ESO comes into force,48 standard extended supervision conditions then apply,49 and any special conditions to which Mr Paniora is subject when the ESO comes into force continue in force for three months, or until the Board determines any earlier application for special conditions.50 That is, of course, the same extent as would apply to any special conditions I made on an interim basis.51
[57] I apprehend the Chief Executive’s objective, in seeking orders imposing special conditions on Mr Paniora on an interim basis, is to maintain the special conditions associated with the interim supervision order, pending the Board’s determination of special conditions to be associated with the ESO. Discontinuity in the conditions’ application is possible if an ESO was determined to come into force at a later date, if special conditions associated with an applicable interim supervision order ceased to have effect at the time of the ESO’s determination, and thus did not apply to the offender when the ESO came into force. But that is addressed by having the ESO come into force on the day it is made,52 as the Chief Executive seeks and the legislation establishes by default. (That coincidence of timing satisfies me there may not be sufficient time, before the ESO comes into force, for the Board to determine which (if any) special conditions should be imposed.)
[58] It is therefore unclear what purpose the special conditions now sought on an interim basis have, if they are only to duplicate the special conditions already applying
45 Parole Act 2002, s 107L(2A).
46 See [3] above.
47 Parole Act 2002, s 107FA(6). 48 Parole Act 2002, s 107L(2). 49 Parole Act 2002, s 107J(2)(a).
50 Parole Act 2002, s 107L(2A).
51 Parole Act 2002, s 107IA(4)(b).
52 Parole Act 2002, s 107L(1)(c)(i).
to Mr Paniora. I am reluctant to make orders duplicating special conditions to which Mr Paniora is already subject when the ESO comes into force.
[59] I raised this issue with counsel by minute of 15 June 2018. The Chief Executive accepts it is unnecessary to duplicate the special conditions. But Ms Wilson says s 107L(2A)’s “special conditions” is to be understood as a reference to ‘special release conditions’, and not the intensive monitoring condition forming part of the interim supervision order. That condition requires to be made on an interim basis, if it is to endure until the Board again has carriage of Mr Paniora’s special conditions. Mr Mansfield responds the Act has “standard release conditions” and “special conditions”, but no ‘special release conditions’. And the special conditions contemplated by s 15 include at s 15(3)(g) “an intensive monitoring condition”; Mr Mansfield says it follows such would continue to have effect after the ESO came into force.
[60] In my view, Mr Mansfield is correct. But I accept the interim supervision order was drawn up in terms expressly stating the intensive monitoring condition is effective “until the application for an extended supervision order is finally determined”. Out of an abundance of caution, and given Mr Mansfield’s acceptance the present intensive monitoring condition would continue in any event, I will impose an intensive monitoring condition on an interim basis under s 107IA.
Orders
[61] I make an extended supervision order in relation to Mr Paniora in terms of s 107I of the Parole Act 2002, with a term of ten years.
[62] Under s 107IAC of the Parole Act 2002, I require the Parole Board to impose on Mr Paniora an intensive monitoring condition, the maximum duration of which is 12 months.
[63] I make an order under s 107IA of the Parole Act 2002, imposing an intensive monitoring condition on Mr Paniora on an interim basis.
—Jagose J
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