Chief Executive, Department of Corrections v Popata
[2017] NZHC 2343
•26 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000167 [2017] NZHC 2343
UNDER Sections 107F and 107FA of the Parole
Act 2002
IN THE MATTER
of an application for an Extended Supervision Order and an application for an intensive monitoring condition
BETWEEN
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Applicant
AND
RICHARD JAMES POPATA Respondent
Hearing: 21 September 2017 Counsel:
SL McColgan and SA Wilson for Applicant
H Kim for RespondentJudgment:
26 September 2017
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 26 September 2017 at 4.30 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, Auckland.
H Kim, Auckland.
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v POPATA [2017] NZHC 2343 [26 September
2017]
The application
[1] The Chief Executive of the Department of Corrections seeks an extended supervision order in relation to Mr Popata on the basis he has a pervasive pattern of serious sexual offending and poses a high risk of committing further such offending.1
Mr Popata opposes the application. He contends the statutory criteria are not met because his offence history does not disclose a “pervasive pattern of serious sexual offending”—nor does he have a “predilection or proclivity for serious sexual offending”. Little else is contested.
Background
[2] Mr Popata is 44 years old. His criminal history dates back to his teenage years. In all, he has accumulated 88 criminal convictions, 25 of which are for sexual or violent offences.
[3] Mr Popata was released from prison on 28 June 2017 after serving six months’ imprisonment for two charges of indecently assaulting a female over 16, two charges of male assaults female and one charge of assault. Edwards J made an interim supervision order.2
[4] Mr Popata has 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. Mr Popata’s victims range in age from 15 to 65. Mr Popata has sexually offended in public places, private homes and in prison. More detail later.
[5] Mr Popata also has convictions for violence. He has six for male assaults female, the most serious of which resulted in a sentence of 12 months’ imprisonment. Mr Popata has two convictions for assaulting a child, one for common assault, three for assaulting or resisting Police, one for aggravated robbery
and one for injuring with intent to injure. The last resulted in a sentence of three
1 In written submissions the Chief Executive also submitted it would be open to conclude Mr Popata has a pervasive pattern of serious violent offending. This submission was not pursued and I do not address it.
2 Chief Executive, New Zealand Department of Corrections v Popata [2017] NZHC 1408.
years and six months’ imprisonment. Much of Mr Popata’s violent offending has occurred in a domestic context. For example, Mr Popata attempted to run down his former partner with a car when she refused to stay with him for the night.
[6] Mr Popata has been assessed by two experienced health assessors: Dr Toyia McWilliams and Mr Jim van Rensburg. There is little difference between them. Significantly, both consider Mr Popata poses at least a high risk of sexual re-offending. However, Dr McWilliams considers Mr Popata’s offence history discloses a pervasive pattern of serious sexual offending. Mr van Rensburg does not. Dr McWilliams considers Mr Popata has a proclivity (but not a predilection) for serious sexual offending. Mr van Rensburg considers Mr Popata has both a predilection and proclivity for sexual offending—not serious sexual offending.
Principle
[7] An extended supervision order seeks to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.3 An extended supervision
order may be imposed on an eligible offender4 when the Court is satisfied the
offender has, or has had, a pervasive pattern of serious sexual offending and there is a high risk the offender will commit a relevant sexual offence.5 This last aspect requires satisfaction the offender:6
(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:
3 Parole Act 2002, s 107I.
4 It is common ground Mr Popata is an eligible offender.
5 As defined in s 107B of the Parole Act. The Court must have regard to at least one health
assessor’s report which “should not … be rubberstamped”: R v Peta [2007] NZCA 28, [2007]
2 NZLR 627 at [56].
6 Parole Act, s 107IAA.
(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[8] “Satisfied” in this context is synonymous with the approach in relation to the sentence of preventive detention. The Court must make up its own mind. The term does not import notions of a burden or standard of proof.7 In Chief Executive of the Department of Corrections v Alinizi the Court of Appeal summarised the three-step process a Court should undertake in relation to an “eligible offender”:8
(a) The Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;
(b)The Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and
(c) If those criteria are met, the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.
[9] If these are met, a fourth inquiry is also necessary: should the Court exercise its discretion to make an order? Section 107I of the Parole Act implies the existence of a discretion through use of the term “may”.
Does Mr Popata have, or has he had, a pervasive pattern of serious sexual offending?
[10] On 4 January 2000 Mr Popata was at a supermarket in Kaitaia. He approached a 15-year-old staff member and ran his hand across her buttocks. Mr Popata did likewise 15 minutes later.
[11] Mr Popata returned to the supermarket the next day. He approached a
19-year-old staff member from behind and placed a hand on her buttocks. He then approached a third victim, a 15-year-old patron, and brushed his hand over her
buttocks.
7 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 at [75].
8 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [13].
[12] On 23 January 2000 Mr Popata walked into a house. He entered the lounge where a woman was sitting on the couch with a dog on her lap. Mr Popata had met this victim several days earlier in a nearby park. Mr Popata sat next to her and stroked the dog. He then brushed his hand along the victim’s thigh. Unsurprisingly, she felt uncomfortable. The victim’s partner emerged from a shower. He spoke to Mr Popata, who left.
[13] Three days later, Mr Popata returned to the home. He asked to use the victim’s telephone. Mr Popata returned again a few days later and asked for money or a job. The partner told him firmly to leave.
[14] On 28 January 2000 Mr Popata went to the Kaitaia Post Office. He crouched down behind a 24-year-old female, who was waiting at the counter. His face was very close to her legs. He stood up. She turned to find Mr Popata staring at her, and breathing on her neck. Mr Popata was served by a staff member. Mr Popata then brushed his hand across the victim’s buttocks. She left, startled. Mr Popata watched her—and identified her workplace.
[15] Mr Popata went there the following week and asked for a job. He left and returned. He then sought entry to the victim’s office. Staff had to usher him away. Days later, Mr Popata found the same victim in a pharmacy. He stared at her for a long time.
[16] Mr Popata continued to “stalk” this victim. The final incident occurred on
17 February 2000. Mr Popata waited at her workplace. He then hid in an alleyway with a view of her office. Police apprehended him shortly thereafter in relation to other matters.
[17] On 14 February 2000 Mr Popata went to a home. He asked the victim to use her bathroom and engaged her in conversation. Mr Popata draped an arm around her shoulder, brushed his hand across her breasts and tried to kiss her. Mr Popata eventually left. He returned several days later. The victim did not allow him to come inside.
[18] Mr Popata committed a number of other offences in the same period: entering with intent; being unlawfully in an enclosed yard; and criminal harassment. These offences involved female victims and behaviour fairly described as “stalking”. In all but one instance, others’ intervention was required for Mr Popata to leave.
[19] Mr Popata was then 26. Judge Everitt considered “the pattern [was] of concern”.9 Mr Popata was sentenced to two years’ imprisonment for all of the offending described above.
[20] On 17 February 2004—and while in prison—Mr Popata indecently assaulted a 65-year-old librarian. He reached through the bars of his cell and grabbed the victim’s groin. She slapped his hand away. Judge Hobbs imposed a cumulative one month term of imprisonment.10
[21] On 30 March 2011 Mr Popata was at family member’s home. In the early hours of the next morning, he undid the victim’s pants, rubbed her genital area and penetrated her genitalia with his fingers.11 Mr Popata placed a hand over the victim’s mouth to prevent her calling for help. He also placed a leg over her body to stop her struggling. She and Mr Popata were related by marriage. Judge Andrée Wiltens sentenced Mr Popata to two years and 10 months’ imprisonment.12 Mr Popata received a first strike warning.
[22] Mr Popata’s remaining convictions for sexual offending arose on
15 September 2016. Mr Popata went to the Papatoetoe Post Office. Mr Popata approached the first victim and rubbed his hand on her buttocks. He walked away, returned and pinched her bottom.
[23] Mr Popata approached the second victim and rubbed his hand on her buttocks. She assumed the contact had been accidental. Mr Popata approached the
victim again and touched her buttocks. She challenged him. Mr Popata became
9 Police v Popata DC Kaikohe CRN 00293348-9 and CRN-00293351-2, 7 April 2000.
10 R v Popata DC Auckland CRN-2004-044-2548, 25 August 2005.
11 The victim’s age is not clear.
12 R v Popata DC Manukau CRI-2011-092-6703, 9 March 2012.
aggressive. He pushed a greeting card stand towards the victim who thought it was going to hit her or her young son. Mr Popata then left.
[24] Mr Popata was convicted of two offences of indecent assault, one of common assault, and two unrelated offences of male assaults female. He was sentenced to six months’ imprisonment and received a second strike warning.13
[25] As observed, Mr Popata has a total of 10 convictions for sexual offending: two for indecent assault on a female aged 12 to 16; seven for indecent assault on a female over 16; and one for unlawful sexual connection.
[26] The Act does not define “serious sexual offending”. In Holland v Chief Executive of the Department of Corrections the Court of Appeal held the phrase conveyed its ordinary meaning, noting “serious” means “important; grave; having (potentially) important, esp. undesired, consequences; giving cause for concern; of significant degree or amount; worthy of consideration”.14 The Court noted an extended supervision order restricts an offender’s freedom of movement and association for up to 10 years. Consequently, “only offending at the higher end of the range would justify such a step”. Parliament could “not have contemplated
that a pattern of offending at the lower end of the spectrum would justify
consideration of such a potentially draconian constraint”.15
[27] In Shortcliffe v Chief Executive of the Department of Corrections the Court of Appeal endorsed Holland, observing “whether or not offending is ‘serious’ in a qualifying way requires a fact specific inquiry on a case by case basis”.16 The Court emphasised not all sexual offending would satisfy the test.17
[28] The issue was live in the recent Court of Appeal decision of
Wardle v Chief Executive of the Department of Corrections.18 The Court observed
“indecent assaults are clearly capable of being sufficient”, because the offence of
13 A copy of the Judge’s sentencing notes was not provided to the Court.
14 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44].
15 At [45].
16 Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 597 at [38].
17 At [39].
18 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298.
indecent assault is included in the list of applicable sexual offences in the Act.19 The Court held the defendant had a pervasive pattern of serious sexual offending. The defendant indecently assaulted two young females in 1993; had sexual intercourse with a 14-year-old and attempted to rape a 15-year-old in 1995; indecently assaulted a 16-year old in 2008 (touching her genitalia under clothing); and indecently assaulted a 20-year-old hitchhiker in 2012 (again, by touching genitalia under clothing). The Court said:20
Seen on its own, the conduct for which Mr Wardle was convicted in 1993 is not serious compared with the range of potential sexual offending.… The fact that the serious offending of 1995 followed within a comparatively short time period and also involved young complainants may, in retrospect, be seen as part of a pattern. The pattern further developed in 2008 with a further indecent assault on a much younger complainant. Although not as significant as what occurred in 1995, this was still a significant indecent assault. By this stage, its seriousness was aggravated by Mr Wardle’s past history.
This was then followed by the 2012 offending, which again involved a significant indecent assault. The complainant was not as young as Mr Wardle’s previous complainants, but there was again a significant age disparity, of about 35 years. By this stage, Mr Wardle’s past history was a seriously aggravating factor. In all the circumstances, we consider that Mr Wardle has a pervasive pattern of serious sexual offending that commenced in 1993.
[29] In short, totality of circumstance was held to be important in determining whether a pervasive pattern of serious sexual offending existed.21
[30] In Chief Executive of the Department of Corrections v Ihimaera Muir J
considered the phrase “pervasive pattern”.22 His Honour observed:23
The word “pervasive” is defined as “having the quality or power of pervading; penetrative, permeative, ubiquitous.” It is in turn used to qualify the word “pattern” which is defined to mean “a regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based”. Taken together the two words suggest that the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct.
19 Wardle v Chief Executive of the Department of Corrections, above n 18, at [41].
20 At [44]–[45].
21 At [42]–[43].
22 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228.
23 At [46].
[31] Ms Kim acknowledges the seriousness of Mr Popata’s 2011 offending, but contends no pervasive pattern of serious sexual offending exists. Ms Kim submits the balance of Mr Popata’s sexual offending sits towards and is perhaps at the lowest end of the scale. Ms Kim contends Mr Popata’s recent offending is similar to his early offending. Consequently, she argues the 2011 offending has not been repeated and stands on its own. Ms Kim also notes six of Mr Popata’s 10 convictions for sexual offending date back to 2000.
My assessment
[32] Mr Popata’s 2011 offending was serious. The victim was asleep when the offending commenced; there was digital penetration; Mr Popata restrained the victim throughout; and, he prevented any attempt to call for help. The offending also involved a significant breach of trust. As observed, the victim was related to Mr Popata through marriage.
[33] The balance of Mr Popata’s sexual offending is less serious, particularly given the level of physical contact involved. All of the remaining offences involved touching over clothing, and for brief periods only. To this extent, I accept Ms Kim’s submission. However, it is elementary criminal law—and clear from Holland and its progeny as discussed earlier—assessment of seriousness is referable to totality of circumstance.
[34] The 2000 offending has a number of serious features. Mr Popata stalked at least two of his six victims from this period, and perhaps a third. He entered two homes and returned to both (he went to one home three times). The obvious inference is that Mr Popata hoped to engage in further sexual contact. Presence of others appears to have precluded escalation. The Judge who dealt with this offending was troubled by its pattern.
[35] The victim of the 2004 indecent assault was vulnerable by age and circumstance. As will be recalled, she was a 65-year-old prison librarian. This offending is also aggravated by the fact Mr Popata was serving a term of imprisonment (of six years for injuring with intent to injure, burglary and other offences). Mr van Rensburg notes incidents of this nature happen in prison, and
need not necessarily imply a propensity for sexual offending. An offender may hope to convey, for example, he rather than the victim is “the boss”. However, it does not follow an offence of this nature cannot be indicative of a propensity for sexual offending, particularly if the offender has committed a number of sexual offences both before and after that committed in prison. For this reason, I consider the 2004 offence should be considered as sexual in nature, and as exhibiting the aggravating features described above.
[36] The 2011 offending I have already examined, which leaves that in 2016. This offending has similarities to the 2000 offending in that it involved more than one victim and was committed in daylight in a public place. On this occasion Mr Popata was challenged—and became aggressive. One of the two victims had her young son with her. Mr Popata appears to have been untroubled by this aspect.
[37] All 10 of Mr Popata’s convictions for sexual offending resulted in terms of imprisonment. There are now a total of 10 victims, ranging in age between 15 and
65. All but one were strangers. Mr Popata stalked at least two of his victims with a view to further sexual contact. Some of the offending appears to have been premeditated; the balance opportunistic. Mr Popata has committed sexual offences in public places, private homes and prison. Most have involved indecent assaults over clothing, albeit in connection with other significant aggravating features. The
2011 offending is self-evidently more serious but viewed in context, not atypical of Mr Popata’s underlying propensity for sexual offending against a wide range of victims.
[38] Importantly, circumstance appears to have precluded escalation in relation to many of the sexual offences. For example, a partner has come out of the shower, or someone has spoken firmly to Mr Popata, or Police have intervened. As far back as
2000, a Judge was troubled by the “pattern”. And, Mr Popata has committed sexual offences at regular intervals: 2000; 2004; 2011; and 2016.
[39] For these reasons, I consider Mr Popata has or has had a pervasive pattern of serious sexual offending in the sense described by the authorities.
Does Mr Popata meet the balance of the qualifying criteria set out in s 107IAA?
Does Mr Popata display an intense drive, desire, or urge to commit a relevant sexual offence?
[40] Dr McWilliams concludes Mr Popata displays an intense drive, desire, or urge to commit a relevant sexual offence. She considers Mr Popata presents with “high sexual preoccupation” and “high sexual compulsivity” as evidenced by his offending history and multiple incidents of sexually inappropriate behaviour while incarcerated.
[41] Mr van Rensburg agrees. He considers Mr Popata’s offending indicates a strong drive or urge to commit the relevant offences. The offence pattern “probably reflects intrusive sexual thoughts and possibly a need for excitement when bored”.
[42] I accept this evidence. It accords with Mr Popata’s record of sexual
offending.
Does Mr Popata have a predilection or proclivity for serious sexual offending?
[43] Dr McWilliams considers Mr Popata has a “proclivity” for serious sexual offending “in consideration of his tendency to seek opportunities to sexually offend against a wide range of female victims”.
[44] Mr van Rensburg is of the opinion Mr Popata has both a proclivity and predilection for sexual offending. However, Mr van Rensburg does not consider either is for serious sexual offending. In Mr van Rensburg’s view, Mr Popata has only committed one serious sexual offence, that in 2011.
[45] Assessment of seriousness in this context is not governed by diagnostic criteria or indeed, expertise. Rather, it is a matter of judicial evaluation. I consider this conclusion is largely established by the antecedent conclusion Mr Popata has a pervasive pattern of serious sexual offending. Again, while the 2011 offending is more serious than the balance of Mr Popata’s sexual offending, it is not atypical of Mr Popata’s underlying propensity for sexual offending against a wide range of victims. And as observed, circumstance appears to have precluded escalation in
relation to many of Mr Popata’s sexual offences. I conclude Mr Popata has a
proclivity for serious sexual offending.
Does Mr Popata have limited self-regulatory capacity?
[46] Dr McWilliams considers Mr Popata’s self-regulatory capacity is inadequate to prevent future sexual re-offending.
[47] Mr van Rensburg characterises Mr Popata’s sexual offending as opportunistic which, in his view, reflects poor self-regulation. Mr van Rensburg considers Mr Popata has demonstrated self-regulatory capacity “in terms of containing most of his offending to a less serious level of intrusiveness and seriousness”. As observed earlier, I consider circumstance rather than intent largely explains the apparent difference in seriousness as between the 2011 offending and the balance of Mr Popata’s sexual offending. However, Mr van Rensburg concludes Mr Popata has not demonstrated adequate self-regulatory capacity in terms of his sexual offences. I agree.
[48] This criterion is satisfied.
Does Mr Popata display a lack of acceptance of responsibility or remorse for past offending or an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims?
[49] To Dr McWilliams, Mr Popata denied committing any sexual offences and maintained the victims or Police fabricated the allegations. Dr McWilliams concludes Mr Popata does not accept responsibility or remorse for his past offending, and does not demonstrate an understanding or concern about the impact of sexual behaviour on actual or potential victims.
[50] Mr van Rensburg reaches the same conclusion for essentially the same reasons.
[51] This criterion is met.
Does Mr Popata pose a risk of committing further relevant sexual offence?
[52] Dr McWilliams considers there is a “very high risk” of Mr Popata engaging in relevant sexual offending within 10 years. Mr van Rensburg considers there is a “high risk” Mr Popata will sexually re-offend. He considers future offending would likely involve “Mr Popata running his hands over the clothed buttocks or breasts of
his victims”.
[53] Mr Po Dr
pata’
(a)
McWilliams employed three psychometric instruments to assess s risk of sexual re-offending:
RoC*RoI, an actuarial measure relying on static factors. On this,
Mr Popata was at high risk of imprisonment for sexual offending within five years. (b)
The Automated Sexual Recidivism Scale, a screening instrument designed to estimate the likelihood of further sexual offending.
Mr Popata was in the high risk category. (c)
The Violence Risk Scale Sexual Offender version, a tool developed
specifically for sexual offenders. This measure considers both variable factors and static factors. Mr Popata was assessed as being in the high risk category.
[54] Mr van Rensburg used an actuarial risk instrument called Static-99R, which, as its name implies, considers static risk factors. Mr Popata was well above the average risk level; approximately 31 out of 100 individuals with the same score as Mr Popata would be charged or convicted of a sexual offence after five years in the community.
[55] Mr van Rensburg also used STABLE 2007, an instrument which assesses variable factors in connection with sexual recidivism. Mr Popata was in the high risk group. Dynamic risk factors included limited social support, social rejection, lack of a stable relationship, sexual preoccupation, and lack of concern for others.
[56] I am satisfied Mr Popata poses at least a high risk of sexual re-offending. The actuarial instruments support this view. So too expert opinion—and Mr Popata’s record. Mr Popata has had many opportunities to address his offending. He has declined help. Troublingly, Mr Popata does not accept he is a recidivist sexual offender. Mr Popata has consistently declined to discuss both his violent and sexual offending with clinicians.
Should the Court exercise the discretion not to make an order?
[57] Satisfaction of the statutory criteria does not mandate an order. That said, it would be exceptional not to make an order when the criteria had been established, particularly given the high threshold for an order and the statutory concern of public safety.
[58] In evidence, Mr van Rensburg identified a “working hypothesis” by which Mr Popata’s offending—and refusal to acknowledge it—is largely driven by a narcissistic personality disorder. He said Mr Popata may be protecting a “fragile ego”, and this may stand in the way of insight and reform. Mr van Rensburg accepted it was difficult to treat a recidivist sexual offender when the individual would not acknowledge being such an offender. However, Mr van Rensburg considered rehabilitation may be possible if a clinician were able to establish a suitable level of trust with Mr Popata, and work toward resolving his narcissistic personality traits, assuming that is the underlying problem.
[59] I am satisfied an order is required. Mr van Rensburg may be correct. Or not. But whatever the correct position, Mr Popata has thus far resisted treatment. He is at least at high risk of further sexual offending. An extended supervision order is designed to protect the public. And, public protection is necessary in this case.
How long should the order be? And on what conditions?
[60] The Chief Executive contends an order should be made for 10 years given Mr Popata’s risk of re-offending. Ms Kim submits Mr Popata poses an insufficiently high risk to warrant the 10-year maximum.
[61] The term of the order must be the minimum period required for the purpose of the safety of the community having regard to:24
(a) The level of risk posed.
(b) The seriousness of the harm that may be caused. (c) Likely duration of risk.
[62] In Alinizi the Court of Appeal said “where an offender categorically denies previous offending and consequently is unwilling to undertake treatment directed to the sexual offending, it would be open to a Court to direct an ESO of the full 10 year period”.25 The Court also observed it is open to a defendant to apply for cancellation of an order, and for the Chief Executive to seek an extension of an order that would otherwise expire.
[63] Until Mr Popata addresses his sexual offending, he will continue to pose at least a high risk of further sexual offending. So, risk level and duration imply a long order. As to the seriousness of the harm that may be caused, the experts differ. Dr McWilliams expresses concern planned offending, including use of a ruse, could well escalate to more serious sexual offending. Mr van Rensburg considers future offending is likely to fall at the lower end of the scale. These competing views reflect the experts’ assessment of the seriousness of Mr Popata’s offending to date.
[64] I have found this issue difficult. Mr Popata has no insight to his offending, has resisted treatment, and poses at least a high risk of further offending. However, while Mr Popata has committed a pattern of serious sexual offending, worse cases are not difficult to imagine. Or find. Moreover, sexual recidivism generally abates with age. And, an application for extension may be brought if necessary. I consider
the proportionate response is an order for a period of seven and a half years.
24 Parole Act, s 107I(5).
25 Chief Executive of the Department of Corrections v Alinizi, above n 8, at [38].
An intensive monitoring condition?
[65] The Chief Executive seeks an intensive monitoring condition. Mr Popata opposes this condition.
[66] An intensive monitoring condition requires a defendant to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved to undertake person-to-person monitoring. The duration of the order must be specified, and cannot exceed 12 months. This special condition applies only to the first 12 months of the term of an extended supervision order. There is no statutory test governing the imposition of an intensive monitoring condition. In Chief Executive of the Department of Corrections v Brown Davidson J commented intensive monitoring is “generally … only sought where the offender’s risk is
considered to be high and external controls are necessary to mitigate this risk.26
[67] The Chief Executive submits Mr Popata has a significant history of failing to comply with conditions, and his offending has continued within prison. Many of Mr Popata’s convictions stem from conduct commenced by indiscriminate approaches. Person-to-person monitoring would significantly reduce the risk of re-offending.
[68] Ms Kim submits an intensive monitoring condition is unnecessary because Mr Popata’s most recent conviction for failing to comply with release conditions was entered in 2009 and Mr Popata’s existing release conditions mitigate risk. So too the fact of a second strike.
[69] I am satisfied an intensive monitoring order is necessary for a period of
12 months, the statutory maximum. First, Mr Popata’s current release conditions expire in only six months (March 2018). Second, Mr Popata’s compliance with release conditions has been haphazard. Mr Popata breached release conditions on three separate occasions in 2008. Mr Popata also has older convictions for non-compliance with Court orders and breaches of parole. Third, while Mr Popata is
cognisant of his second strike, and hence the potential for significant penalty in the
26 Chief Executive of the Department of Corrections v Brown [2016] NZHC 1038 at [36].
event of further strike offending, his sexual offending exhibits poor impulse control notwithstanding appreciable risk of prompt detection. Consider, for example, his indecent assault of the prison librarian. Fourth, person-to-person monitoring is the most obvious means of mitigating risk in connection with Mr Popata’s pattern of indiscriminate sexual offending, in terms of both offence prevention and escalation.
Special conditions to be imposed on an interim basis
[70] The Chief Executive seeks an order imposing special conditions on Mr Popata on an interim basis pursuant to s 107IA of the Act. The Court may make such an order only if satisfied there may not be sufficient time, before the extended supervision order comes into force, for the Parole Board to determine which (if any) special conditions should be imposed on the offender.
[71] This is appropriate. I make the order.
Result
[72] Mr Popata is subject to an extended supervision order for a period of seven and a half years commencing today. Mr Popata is also subject to:
(a) Intensive monitoring for a period of 12 months commencing today.
(b)An interim order imposing the special conditions in the schedule annexed to this judgment (until such time as the Parole Board is able to determine which, if any, special conditions should be imposed).
……………………………..
Downs J
Schedule 1: Special conditions of ESO sought to be imposed on an interim basis
(1)To reside at an address as directed by the Probation Officer and not to move from that add, or any subsequent address, without the prior written approval of a Probation Officer.
(2)To remain at your approved address between 8 pm – 8 am each day, unless with the prior written approval of a Probation Officer.
(3)To be subject to intensive monitoring and 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.
(4)To abide by the residency agreement of the approved residential programme to the satisfaction of the Probation Officer and Service Provider.
(5)If directed, to undertake, engage in and complete a reintegration programme administered by a programme provider as approved by a Probation Officer and to abide by the rules o the programme to the satisfaction of the Probation Officer and programme provider.
(6)To comply with the requirements of electronic monitoring, and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.
(7)To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a Probation Officer in order to monitor your compliance with any condition(s) relating to your whereabouts.
(8)Not to enter any licensed premises unless with the prior written approval of your Probation Officer.
(9)To seek prior written approval from a Probation Officer to undertake any education/training courses, and/or change or terminate any employment (paid or unpaid).
(10) Not to possess, consume or use any alcohol or drugs not prescribed to you.
(11)To advise your Probation Officer prior to entering into an intimate relationship.
(12)Not to undertake any employment/training (paid or unpaid) without the prior written approval of the Probation Officer.
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