Chief Executive Department of Corrections v Waho
[2024] NZHC 500
•8 March 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-70
[2024] NZHC 500
THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS v
KAELMN JOHNATHAN JAMES WAHO
Hearing: 20, 23 & 29 February and 6 March 2024 Appearances:
C E R Power for the Applicant
S A Saunderson-Warner for the Respondent
Judgment:
8 March 2024
REASONS JUDGMENT OF HARLAND J
Introduction
[1] The Chief Executive of the Department of Corrections has applied for an extended supervision order (ESO) in respect of Kaelmn Waho. The order is sought for a period of 10 years, with a special condition of intensive monitoring to apply to it.
[2]Mr Waho opposes the making of the order.
The application for an ESO
[3] According to s 107I of the Parole Act 2002 (the Act), the purpose of an ESO is to protect members of the community from those who, following receipt of a
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v WAHO [2024] NZHC 500 [8 March 2024]
determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences. In Mr Waho’s case, the focus is on his propensity to commit serious violent offences.
[4] The application is filed pursuant to s 107F of the Act. Because the application was filed while Mr Waho was subject to a sentence of imprisonment, it was required to be filed in accordance with s 107F(1). As the application was filed on 25 July 2023 and Mr Waho’s release date was 29 November 2023, it was filed in time in terms of the section.
[5] An application for an ESO must be accompanied by a health assessor’s report.1 Relevant to Mr Waho’s case, s 107F(2A) and (3) provide:
107F Chief executive may apply for extended supervision order
…
(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.
(3) To avoid doubt, in addressing any matter to be referred to in the health assessor’s report, the health assessor may take into account 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 the offender has been charged with, or convicted of, an offence in respect of that conduct.
1 Parole Act 2002, s 107F(2).
[6] Mr McKendry, a registered clinical psychologist, prepared a report dated 29 March 2023 which accompanied the application. Subsequently, two addendum reports were provided. Mr Waho also obtained a health assessment from a registered clinical psychologist, Dr Sellbom.
[7] As the application was not able to be determined before Mr Waho’s release date, on 18 October 2023 the Chief Executive filed an application for an interim supervision order (ISO). Following a hearing on 20 November 2023, Eaton J granted this application which was subject to a number of conditions including an intensive monitoring condition.2
[8] Mr Waho was released from custody on 29 November 2023. He is currently subject to the ISO made by Eaton J and release conditions set by the Parole Board.
Background
Personal circumstances
[9] Mr Waho is 33 years of age. He grew up with his biological parents and two older half-siblings, a brother and a sister. Although he characterised his home life to Dr Sellbom as “reasonably good”, it is clear to me, from reading further, that he had a dysfunctional upbringing. Mr Waho told Dr Sellbom that his father had a major drinking problem and was aggressive to everyone in the family. He described his father physically abusing his mother with the violence at times reaching extreme magnitudes, such as watching her being dragged behind a moving car. Mr Waho reports being smacked or punched weekly. Unsurprisingly, he said that violence was normal to him as he did not have any basis for comparison. Mr Waho was also sexually abused within his family on two or three occasions. As well, most of Mr Waho’s relatives were gang-affiliated and in trouble with the law.
[10] Mr Waho stopped going to school after year nine due to expulsion, having been caught with drugs at school. Prior to this, he had been suspended for being disrespectful to teachers and fighting on multiple occasions. He described himself as
2 Chief Executive of the Department of Corrections v Kaelmn Johnathan James Waho [2023] NZHC 3347.
being a quiet child and slow at learning, but he said he was embarrassed to admit his struggles and acted out instead.
[11] After school, Mr Waho started working for his father in the building industry and, while in prison, has been employed in various manual labour positions. Mr Waho also completed various certificates while in prison, in drain-laying, gas-fitting and plumbing, to improve his employability in the construction field.
[12] By the age of 16, Mr Waho was engaged in binge drinking and reported that he was intoxicated when he offended in a seriously violent way. He started smoking cannabis at age 13 which, over time, became an almost daily habit. He told Dr Sellbom he had tried methamphetamine on several occasions, most recently in the five days leading up to the offending that resulted in his most recent term of imprisonment.
[13] Although Mr Waho does not have a mental health treatment history recorded outside of the prison environment, he has been diagnosed with ADHD and it is considered he likely had a conduct disorder in the past.
[14] Mr Waho has had three serious romantic relationships. His first started at age 14 and lasted until 17 when he was imprisoned for family violence offending against this partner. His second relationship lasted for a few months when he was 20 years old and also ended with family violence offending, for which he was charged and imprisoned. His third relationship was between the ages of 26 and 30, during which time he was mostly imprisoned. Mr Waho told Dr Sellbom that this relationship was good but not sustainable because of his imprisonment. Mr Waho denied perpetrating violence against this partner but, during his second interview with Dr Sellbom, he said that he had punched a partner in the stomach in 2020 which possibly resulted in her having a miscarriage. The timeframe for this admission is consistent with it occurring against Mr Waho’s third partner.
[15] Mr Waho is now in a new relationship. He told Dr Sellbom that this partner resides in Invercargill. He said that he and his partner have spoken on the phone and have had visits together. In Mr McKendry’s updating report dated 31 January 2024, he referred to a report about a visit between Mr Waho and his partner at the Tōruatanga
residence, where he has been since his release from prison and while subject to the ISO. Mr McKendry referred to an altercation which occurred sometime during the night on 13 January 2024. While acknowledging that the exact nature and circumstances surrounding the incident were unclear, it appeared that Mr Waho’s partner had hit him with her car and had then driven away from the premises. Subsequently, Mr Waho was served with a non-association order with respect to his partner. In response to being advised about the order, Mr Waho is said to have slammed the table he was seated at and used threatening language and body postures towards staff, but thereafter returned to the meeting and engaged appropriately with them.
Convictions
[16] Mr Waho’s previous convictions extend back to 2009 when he was convicted for offending that occurred in March 2008. At the time of this offending, he was 17 years of age. Of Mr Waho’s 49 convictions, 18 have been for violent offences. As well, there are numerous convictions for breaching conditions.
[17]Relevant to this application, his previous convictions include:
(a) Convictions on 5 May 2009 for offending in December, February and March 2008 of male assaults female (x2), common assault (Crimes Act) (x3), wounding with intent to cause grievous bodily harm, threatening to kill or do grievous bodily harm and injuring with intent to injure with reckless disregard. Mr Waho was sentenced to a term of four years’ imprisonment on the lead charge of wounding with intent to cause grievous bodily harm. His sentence commenced on 5 May 2009. I outline the facts of this offending when I assess the criterion under s 107IAA(2)(a)(iii) in para [50] of this judgment.
(b) On 31 July 2012, Mr Waho was convicted of escaping lawful custody, two charges of breaching Parole Board release conditions and giving false details as to his identity. This offending occurred on 10 May 2012. On 31 July 2012, he was sentenced to a term of imprisonment of four months.
(c) On 30 July 2013, Mr Waho was convicted and discharged in respect of a charge of breaching his release conditions.
(d) On 5 September 2013, Mr Waho was convicted on charges of male assaults female and wounding with intent to cause grievous bodily harm. This offending occurred in May and June 2013, three months after he had been released from prison. The offending was against his second partner. There was an argument, during which Mr Waho challenged the victim’s loyalty to him. He punched her in the face. A few days later, after he had been drinking with the victim and friends, he became angry after the victim’s father called him and asked about her wellbeing. Mr Waho picked up a kitchen knife and threatened the victim with it in front of several people, including a number of children. When the victim tried to escape, Mr Waho stabbed her in the abdomen and then punched her five times in the same area. A relative pulled him away from her. The victim required surgery and intensive care. Mr Waho was sentenced to six years and six months’ imprisonment.
(e) Mr Waho was released from prison in December 2019. On 13 May 2020, he was convicted of four charges of breaching his release conditions on 5 December 2019, 11 February 2020 and on 5 and 6 April 2020. There was also one charge of resisting the Police on 6 April 2020. Mr Waho had reportedly consumed alcohol, lost his accommodation and moved addresses multiple times. He had removed his GPS tracker and the Police were looking for him. He said he had removed the GPS tracker because he was trying to evade detection. Mr Waho was imprisoned for six months on 13 May 2020.
(f) On 20 May 2021, Mr Waho was convicted for offending that occurred on 18 and 24 June, 30 July, 11 and 12 September 2020, which included five charges of breaching court release conditions, two charges of robbery by assault, one charge of aggravated assault and one charge of aggravated injury as well as other charges not relevant to this application. Mr Waho was sentenced on the lead charge to a term of three years’ imprisonment. The first instance of this offending occurred five days after he had been
released from prison. Mr Waho said he had started using methamphetamine, impulsively stole a car and drove around the Christchurch area. He was eventually chased by the Police and managed to get away from them. When he ran out of petrol, he cut someone off, punched them in the face and took their car. He continued driving. He subsequently crashed this car during a Police chase, escaped and managed to steal a third car from another person by pulling them out of the car. He drove around in this car before he was eventually stopped and arrested. When caught, Mr Waho punched a constable in the face, knocking him to the ground. He continued running but was tackled and apprehended by the Police.
(g) On 6 May 2022, Mr Waho was sentenced on two charges for offending on 8 May 2021, one of which was assault with a weapon. In respect of this charge, Mr Waho received a cumulative term of imprisonment of four months and 14 days.
Custodial history
[18] According to the Department of Corrections’ incident information reports, since 23 May 2021, Mr Waho has been cited for 16 separate incidences of misconduct. Nine of these refer to some form of threatening behaviour, verbal abuse and/or physical aggression against staff or other inmates. On one occasion, Mr Waho smashed a window in the visiting hall and threw it against staff. He had been using synthetic marijuana at the time. Mr Waho said he broke the window by accident and was not trying to hurt anyone.
[19] In February 2022, Mr Waho refused to enter his cell and verbally abused an officer, stating he had an AVL appointment. When the officer tried to confirm this, Mr Waho threw a chair in his direction and continued to be verbally aggressive towards him. Mr Waho’s explanation was that he was not trying to hit the officer, but he acknowledged his behaviour was an over-reaction to the situation.
[20] Most recently, in May 2023, Mr Waho was ordered to have a rub search. He proceeded to punch the requesting officer in the head and throat area before being
tackled to the ground. While being restrained, Mr Waho continued to punch officers, who needed medical attention as a result. Mr Waho denied that this had occurred and stated that his charges had been dropped. It appears the charges may have been dropped because they had not been laid in time.
[21] Mr Waho has maintained a high risk security classification while in prison. In March 2022, he was moved to maximum security after a staff assault. He has regularly been transferred between prisons and placed in segregation units, which Dr Sellbom described as being due to his dangerous and disruptive behaviour. Mr McKendry noted that Mr Waho’s behaviour stabilises when segregated.
Rehabilitation progress
[22] There have been various assessments by Department of Corrections psychologists addressing the treatment Mr Waho has undertaken and/or been recommended to undertake. Reports were prepared about this by different departmental psychologists in 2010, 2015, 2017, two in 2020 and one in 2021. Mr Waho has completed some drug and alcohol counselling and attended a Tikanga Māori programme while in the youth unit. He participated in the high-risk personality programme-revised (HRPP-R) in 2014 and was waitlisted for other programmes such as STURP and DTP. Mr McKendry reported that Mr Waho had declined to undertake any other rehabilitation programmes while in custody despite it being recommended that he do so.
[23] Mr Waho engaged in eight individual psychological treatment sessions between August and October 2019 which the treating psychologist reported had improved his insight into his offending behaviour, but following which he was unable to identify strategies and skills to manage situations in the future, including identifying high risk situations for offending.
[24] Although Mr Waho self-referred to He Waka Tapu in 2020, that referral did not proceed due to him being imprisoned again.
[25] In February 2021, Mr Waho attended four sessions, one in the community, but these were suspended due to the COVID-19 pandemic. The treating clinical
psychologist described Mr Waho as open about his violence, but his accounts were superficial, and her opinion was that he appeared to view violence as a positive experience. She noted that Mr Waho had not put risk management strategies in place during treatment, and during the treatment period he had engaged in violence against property and the Police officers who attempted to apprehend him.
Behaviour following release
[26] In his updating report dated 31 January 2024, Mr McKendry outlined the reports made to him about Mr Waho’s behaviour since his release from prison. It is to be noted that Mr Waho, although having been afforded two opportunities to participate in an interview with Mr McKendry for the purpose of completing his reports, declined to do so.
[27] It was originally proposed that Mr Waho would reside at the Salisbury Street Foundation, however their support was withdrawn shortly before his release from prison because they were concerned about his expressed intention to disregard their house rules, including his plans to meet with gang affiliates. Mr Waho was also noted to make comments suggesting he may pose a threat of violence towards other residents, particularly those with child sexual offending convictions.
[28] Mr Waho was referred to and accepted for supported accommodation at Tōruatanga, which is located on the grounds of Christchurch Men’s Prison. Mr Waho appears to have successfully navigated various outings with direct and consistent oversight (i.e. in the line of sight of a staff member) to perform daily living tasks, and he has met occasionally with his female partner and his parents. He has returned two negative random drug tests.
[29] As well, Mr Waho is attending Stopping Violence services and has been referred to He Waka Tapu. Mr Waho’s probation officer has also made referrals to Purapura Whetu Trust and Ngā Maata Waka, both community based Kaupapa Māori services, to further support Mr Waho’s mental health and general functioning. Mr McKendry noted that it was promising that Mr Waho had met with the departmental psychologist on 26 January 2024, during which he expressed an intention to engage in offence-related treatment.
[30] Despite this, Mr Waho continues to make threats when an outcome is not to his liking. He is reported as telling staff that he would assault anyone who attempted to enforce any non-association with his partner’s children and he is said to have minimised the need for such a condition. Then there is the incident on 13 January 2024, to which I have already referred.
[31] Overall, Mr Waho has been significantly supported on the ISO, he has not reoffended, and he is taking positive steps to engage with rehabilitation programmes.
Statutory regime
[32] An application can only be filed in relation to an “eligible offender” as defined in s 107C(1)(a). It is accepted that Mr Waho is an eligible offender under s 107C(1)(a) of the Act. This is because Mr Waho was sentenced to a total term of three years’ imprisonment on 20 May 2021 as outlined above. His two convictions on that date for robbery and aggravated injury are relevant violent offences in terms of the definition of “eligible offender” and as that term is defined in s 107B(2A) of the Act.
[33] The matters the Court must be satisfied about before it can make an ESO are set out in s 107I. As relevant, it reads:
107I Sentencing court may make extended supervision order
...
(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:
…
(ii)there is a very high risk that the offender will in future commit a relevant violent offence.
[34]Under s 107F, the health assessor’s report must address:
(2A) Every health assessor’s report must address one or both of the following questions:
…
(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.
[35] Section 107IAA sets out the matters the Court must be satisfied of when assessing risk. It provides:
107IAA Matters court must be satisfied of when assessing risk
…
(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.
(emphasis added)
[36] Even if I am satisfied that the criteria in ss 107I(2) and 107IAA have been met, I still have a discretion to decide whether I should make an ESO. This means that, as well as the discretion to make an order, there is also the discretion to refuse to make
it.3 However, if the criteria have been established, given the high threshold and statutory concern for public safety, it would only be in exceptional circumstances that such an order would not be made.
[37]I now turn to consider the statutory criteria that apply.
Analysis of statutory criteria
[38] Both health assessors agree that the test of very high risk in s 107IAA(2) has been met but there is disagreement about two of the mandatory criteria set out in that section. I record that it is accepted on Mr Waho’s behalf that he meets the criteria outlined in s 107IAA(2)(a)(i), (ii) and (b)(ii). I agree, having read the evidence of the health assessors and heard their answers during cross-examination, that Mr Waho meets the criteria. However, I still need to decide on two of the criteria before I can be satisfied that the very high risk threshold has been established. There is a dispute as to whether the criteria of s 107IAA(2)(a)(iii) and (c) have been met.
[39]I now deal with each of these.
Persistent harbouring of vengeful intentions towards one or more persons
[40] This phrase has been defined by the Court of Appeal in Mosen v Chief Executive of the Department of Corrections to mean to “maintain or have in ones mind for a long time or recurringly a strong wish to take revenge on someone or to punish someone for the harm that they are perceived to have done”.4
[41] In Mosen, the Court concluded that, while the defendant in that case had vengeful intention, because of the very short duration of the vengeful intent, it did not qualify as a “persistent harbouring” of that intent in and of itself.5 The Court decided that defendant did not meet the criterion required by s 107IAA(2)(a)(iii).6
3 Kiddell v Chief Executive, Department of Corrections [2019] NZCA 171 at [26]; Chief Executive of the Department of Corrections v Popota [2017] NZHC 2343 at [9].
4 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 at [54].
5 Mosen v Chief Executive of the Department of Corrections, above n 4, at [59].
6 See also Wilson v Department of Corrections [2022] NZCA 289 at [39].
[42] In Mosen, a report writer who examined the appellant noted, with regard to the appellant’s satisfaction of the vengeful intention criterion, that:7
[The appellant’s] behaviour is not considered … to be a vengeful desire to cause harm but rather the result of poor self-regulation and problem solving that, at times, has escalated to physical harm being inflicted on others. The writer cannot conclude with certainty that Mr Mosen is keeping feelings or thoughts of harming others in his mind for long periods of time. It is rather considered by the writer to be reactive and in the moment when he expresses these harmful intentions.
[43] The Court deciding the application at first instance found that, despite the report writer’s assertion that a vengeful intention could not be said to be present, the criterion was filled because:8
…the harbouring of vengeful intentions need not be persistent in the sense of longstanding. Rather, it was enough that the vengeful intentions have been persistent in the sense that they have occurred on more than one occasion.
[44] The Court of Appeal accepted that persistent may mean frequent and repetitive, rather than only long-held, but noted that the full phrase of “persistent harbouring of vengeful intentions” must be given effect. The Court found:9
Together the phrase means to maintain or have in one's mind for a long time or recurringly a strong wish to take revenge on someone or to punish someone for the harm they are perceived to have done.
[45] The Court then referred to Department of Corrections v Wilson, where Venning J referred to evidence that the offender had been ruminating about his girlfriend going out with his sister and that rumination and subsequent spinoff emotions such as jealousy and anger led to violent attacks on a number of people. On another occasion, an attack on a prisoner was “preceded by an expression of a desire to harm him and waiting for a moment to act”.10
[46]In Department of Corrections v McCord, Davison J said:11
The applicant submits that McCord's past offending illustrates that he does possess this characteristic of persistent harbouring of vengeful intentions.
7 Mosen v Chief Executive of the Department of Corrections, above n 4, at [48].
8 At [51].
9 At [54].
10 At [55], citing Department of Corrections v Wilson [2016] NZHC 1082 at [39].
11 Department of Corrections v McCord [2017] NZHC 744 at [58].
Having regard to his conduct whereby he acted violently towards both his intimate partners in respect of whom he had developed feelings of sexual jealousy, and also towards others in response to feeling disrespected, I am satisfied that he does possess this characteristic. The violence he has exhibited in those circumstances was not reactive and an immediate response to a particular situation, but rather it appears to have been the result of rumination and a subsequent acting out of a vengeful intention.”
[47] Ultimately in Mosen, the Court of Appeal found the Judge had erred in finding this criterion fulfilled, finding instead that “Mr Mosen acts reactively and impulsively out of frustration and because of poor problem-solving skills”.12 The criterion was not fulfilled by flashing urges to commit acts of violence.13
[48] The real issue for me is whether any vengeful intentions Mr Waho has displayed are persistent as opposed to transient or momentary.
[49] Mr McKendry relied on Mr Waho’s offending in 2009. Judge Zohrab’s sentencing notes were attached to Ms Saunderson-Warner’s submissions.14 I have read them carefully.15
[50] Judge Zohrab was sentencing Mr Waho for what happened overnight on 13-14 March 2009, after he had gone to licenced premises in Nelson with his parents and his then partner. Mr Waho was 17 years of age at the time. Mr Waho and his partner took a taxi with friends and were dropped off at the park. The partner did not stay long. She walked home and packed some of her belongings because she had a feeling that something bad might happen. She then walked back to the park to find Mr Waho and his friends. While she was walking along the street, a male member of the public, an older man, unknown to both Mr Waho and his partner, had arrived home and heard people yelling. He saw Mr Waho’s partner as she was walking down the middle of the road with what was described as a “fazed look on her face”.16 He called out to her and tried to engage her in conversation.
12 Mosen v Chief Executive of the Department of Corrections, above n 4, at [59].
13 At [60].
14 R v Kaelmn Johnathon James Waho CRI-2009-042-001108, 5 May 2009 [Judge Zohrab sentencing notes].
15 Ms Saunderson-Warner submitted that Mr McKendry said he had relied on the summary of facts but this was not available to him and he had referred rather to the Judge’s sentencing notes.
16 Judge Zohrab sentencing notes, above n 14, at [4].
[51] Mr Waho saw the man talking to his partner and took exception to it. He ran up to him and punched him once in the face with a closed fist, striking him on the nose. Mr Waho then told the man that he was going to stab him. The Judge noted the man had done nothing to provoke Mr Waho’s reaction.
[52] Mr Waho caught up with his partner and accused her of walking with the man. He accused her of sleeping, talking and flirting with him. The couple were offered a ride home by a passerby. When Mr Waho and his partner arrived back home, and while his partner had her back to him, Mr Waho hit her over the head with an empty glass bottle, with sufficient force that glass splinters had to be removed from her head. The Judge noted that she thought she was knocked unconscious. While she was lying on the bed, Mr Waho called her a “slut” and a “hoe” before proceeding to punch her in the face four separate times.
[53] Mr Waho was also re-sentenced on two Crimes Act assault matters, which involved assaults on two victims unknown to him by punching them both in the face, one on three occasions, knocking that victim into a shop window.
[54] Mr McKendry also relied on the 2013 offending against another partner, referred to above. He interpreted a request by Mr Waho to see photographic evidence of his second partner’s stab wounds sometime after the event to be evidence supportive of this criterion. However, Dr Sellbom did not consider it to be especially relevant because he said there are many reasons why someone could request to see a photo, including that they wanted to view the evidence against them.
[55] Dr Sellbom accepted that Mr Waho exhibits significant hypervigilance about interpersonal threats in general, is likely to attribute hostility to others in ambiguous circumstances and is often highly reactive when feeling threatened or provoked. He considered it to be possible, if not likely, that Mr Waho will harbour vengeful intentions in the future as much of his past violence in relationships occurred in contexts where he feared abandonment or experienced jealousy. Dr Sellbom explained that this would trigger an impulsive emotional reaction to intimidate, threaten or abuse the other person. However, Dr Sellbom was not clear the vengeful intentions are persistent as opposed to transitory or momentary. He could not predict, with
reasonable scientific certainty, that Mr Waho would exhibit “persistent” harbouring of vengeful intentions toward one or more persons in the future.
[56] Although Mr McKendry accepted that Mr Waho denied explicitly harbouring vengeful intent, unlike Dr Sellbom, he did not accept it. Dr Sellbom’s position was that there was no evidence to counter Mr Waho’s self-report. Mr McKendry’s opinion was that Mr Waho has an entrenched hypervigilance for real or perceived threat to his emotional and physical wellbeing, which he harbours intent to redress through violence. Mr McKendry’s opinion was that Mr Waho had demonstrated an ability to use violence to address that threat repetitively and frequently. For this reason, his opinion was that Mr Waho meets the persistence definition.
[57] Ms Saunderson-Warner submitted that persistent hypervigilance is not the same as persistent vengeful intent as it does not equate to a strong wish to take revenge on someone or to punish someone for the harm they are perceived to have done.17
[58] This is a case where the experts disagree on a point of relevance. While Mr McKendry considers the criterion has been fulfilled, Dr Sellbom has stated he could not “with reasonable scientific certainty” find that the persistent harbouring of vengeful intentions criterion was fulfilled. It is now this Court’s task to work with the evidence it has and come to a conclusion on the matter.
[59] I have found the persistence criterion to be met. I refer first to the 2009 offending. While I acknowledge it occurred some time ago, when Mr Waho was only 17 years of age, in my view, it provides a clear example of “rumination and a subsequent acting out of a vengeful intention”. Mr Waho felt slighted at the mere image of his then partner walking with another man. The two argued in the street and were then offered a ride home, which they took. They then walked home before entering the bedroom, where a violent and prolonged assault took place as described. These were not actions perpetrated by Mr Waho in an uncontrollable flash of rage. It is not suggested that he assaulted his partner on the street initially, in the car, or on the street when they were dropped off near their home. Rather, Mr Waho appears to have waited to act until they were home and out of sight.
17 Relying on Mosen v Chief Executive of Department of Corrections, above n 4, at [54].
[60] Further, there are the events of 2013. Mr Waho struck his then partner, again regarding fears he held of her infidelity. When his partner’s father enquired as to her wellbeing days later, Mr Waho inflicted what may likely be the most grievous injuries in his criminal record. In that instance, Mr Waho was drinking with his partner and associates when he was made aware of her father’s concern. Again, Mr Waho did not react immediately. He waited until he and his partner were home before stabbing her and punching her five times. The fact the incident took place days after the initial perceived slight suggests Mr Waho was tense regarding what he believed to be his partner’s infidelity and he was triggered by her father calling to enquire about her wellbeing.
[61] Provided with two conflicting explanations as to why Mr Waho requested to see evidence of the stab-wounds inflicted by him on his second partner, I prefer Mr McKendry’s interpretation about this request, which I consider was unusual given that it was made sometime after the event.
[62] And then it appears Mr Waho, by his own admission, struck his third partner in 2020, causing her to miscarry. While the circumstances of that assault are unknown as regarding the criterion, I find that it shows a pattern of violence towards partners.
[63] The Court of Appeal in Mosen declared the statutory phrase to allow for a “recurringly…strong wish to take revenge on someone or to punish someone for the harm they are perceived to have done”.18 I have found that to be the case here.
[64] I accept that there is a somewhat fine line between reactive and impulsive conduct and the persistent harbouring of vengeful intention in relation to the 2009 offending. I find that the impulsive and reactive conduct considered not apply to this ground by the Court of Appeal in Mosen, suggests a more immediate response than Mr Waho’s response reveals. I conclude that Mr Waho’s conduct on this occasion does not come within the Court of Appeal’s exclusion of vengeful intent lasting only for a “very short duration”.19
18 Mosen v Chief Executive of Department of Corrections, above n 4, at [54].
19 Mosen v Chief Executive of Department of Corrections, above n 4, at [60].
[65]As well, my finding is consistent with Mr McKendry’s view that:
While Mr Waho denied harbouring vengeful intent, his extensive pattern of interpersonal aggression and self-reported offence-permissive beliefs indicates his use of violence for what her perceives as retribution or gaining control over his environment. Mr Waho acknowledged longstanding concerns regarding prior partners’ fidelity and, more generally, suspicion of ill-intent from others, both of which have regularly triggered his violent behaviour. This pattern of behaviour is supported by Mr Waho’s assessed personality functioning, as marked paranoia and antisociality, including hypervigilagnce for perceived slights and willingness to “act out impulsively in revenge”…In this assessor’s opinion Mr Waho has an entrenched hypervigilance for real or perceived threat to his emotional and physical wellbeing, to which he harbours intent to redress through violence.
[66] With regard to Mr Waho’s denial of harbouring such intentions, I endorse the view of Mr McKendry that greater weight should be given to Mr Waho’s behaviour, which, in his view, “does demonstrate some persistence with respect to the repetitive and frequent nature of violence demonstrated over time”.
[67] The events of 2009 and 2013, alongside Mr Waho’s request to view the photographic evidence of the stabbing, to my mind, reveals that Mr Waho displays a persistent harbouring of vengeful intention towards his partners.
Displays an absence of understanding for or concern about the impact of his violence on actual or potential victims
[68] Absence of understanding for or concern about the impact of his violence on actual or potential victims does not require an offender to have shown they have no understanding whatsoever, rather, there must be an absence of any meaningful understanding or concern. I must ask myself whether Mr Waho understands the impact of his offending on his victims. This is important because the underlying legislative and psychological assumption is that, if an offender is able to imagine the impact their offending has had on their victim, then they are considered less likely to cause the same harm to others in the future, thereby reducing the risk of future reoffending.20
[69] Dr Sellbom was not able to give an opinion about whether Mr Waho meets this criteria, again stating he could not “render an affirmative opinion, with reasonable
20 P(CA388/2018) v Chief Executive of Department of Corrections [2018] NZCA 599 at [53];
McIntosh v Chief Executive of Department of Corrections [2021] NZCA 218 at [19].
scientific certainty, about the presence of this criterion”. He considered that Mr Waho has demonstrated some capacity for remorse and empathy and he was able to describe in some detail the long term impact his behaviour was likely to have had on some of his victims. However, he additionally noted Mr Waho:
[h]as engaged in considerable violence toward others despite allegedly appreciating the impact of his actions, has continued to engage in verbal and physical aggression while in prison, and has shown a tendency to minimise his offending, all of which could potentially counter the notion that his empathy and remorse is genuine.
[70] Mr McKendry also referred to Mr Waho continuing to engage in verbal and physical aggression while in prison and, in his opinion, to show a tendency to minimise his offending. This is a theme reported by the various psychologists who have worked with Mr Waho, the details of which were outlined in Dr Sellbom’s assessment. In Mr McKendry’s opinion, these matters potentially counter the view that Mr Waho’s expressed empathy and remorse are genuine.
[71] Mr McKendry considered that Mr Waho has not demonstrated sustained behavioural change, because he does not appear to have used or implemented what he has learnt from prior psychological interventions, and he has rejected other opportunities for treatment. In his opinion, such behaviour is inconsistent with Mr Waho’s expression of remorse. Mr McKendry considered there are three “prongs” or aspects relevant to an expression of remorse that should be considered. He described these as, first, an expressed understanding or responsibility; second, an expressed emotional, congruent or genuine emotional expression that matches that level of responsibility; and third, behavioural transformation, i.e. attending treatment in a meaningful way and not reoffending.
[72] Dr Sellbom, while agreeing with the first two aspects described by Mr McKendry, did not agree that behavioural change was needed to determine empathy.
[73] Although pleading guilty to the most recent charges displays an expression of remorse and acceptance of responsibility, and although there could be cultural dynamics at play, I agree with Mr McKendry that, so far, Mr Waho has not been able to change his behaviour despite therapeutic interventions to help him do this. I agree
with Mr Power that, as well as this, I can infer from Mr Waho’s previous record over time that he displays an absence of concern about the impact his violence has had on his victims.
[74] While Dr Sellbom’s evidence that he cannot provide reasonable scientific certainty as to the presence of this criterion is useful, the Court is not bound by that level of certainty. I must simply be satisfied that the criterion is met.
[75] It is a “relatively simple inquiry” as to whether Mr Waho “understand[s] the impact of his offending on his victims”.21 While I accept Mr Waho displays a level of understanding and concern for his victims, I am not satisfied it is sufficient to materially reduce the risk of such offending in future.22 Therefore, I am satisfied that this criterion has also been met.
Should an order be made
[76] I am satisfied that the criteria in s 107IAA(2) have been met. I am also satisfied that it is appropriate to exercise my discretion to make such an order. I exercised this discretion taking into account the Court of Appeal’s decision in Chisnall v Attorney- General, in which a declaration of inconsistency was made concerning the ESO regime and the New Zealand Bill of Rights Act 1990.23 I accept that the law requires me to find that there is strong justification for an ESO.24 However, based on the material presented to me, I have reached the view that, in Mr Waho’s case, there is strong justification for the order.
[77]The question is now what the duration of the ESO should be.
[78] I am not satisfied that a term of 10 years, as sought, is warranted. There are signs that Mr Waho has recently taken steps to refer to various agencies who can help him with his rehabilitation.
21 P(CA388/2018) v Chief Executive of Department of Corrections, above n 20, at [42].
22 McIntosh v Chief Executive of Department of Corrections, above n 20, at [26].
23 Chisnall v Attorney-General [2021] NZCA 616.
24 R v Chief Executive of the Department of Corrections [2022] NZCA 225; Wilson v Chief Executive of the Department of Corrections, above n 6.
[79] The evidence from the experts clearly establishes that the prediction of risk over a 10 year period is not sufficiently scientifically certain. Both referred to a five- year term as being the basis of most of the research on this topic.
[80] I am satisfied that a five-year duration for the ESO is the maximum that should be imposed.
Should an intensive monitoring condition be imposed?
[81] Section 107IAC allows me to make such an order. This condition requires a person to submit to be 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 such monitoring. The maximum duration of such a condition must be no longer than 12 months.
[82] As Ms Saunderson-Warner rightly highlighted, there is no statutory test to be met before such a condition is imposed. I agree however that it should only be imposed where the risk is considered to be very high and where an offender is considered to need external controls to mitigate that risk.
[83] Mr Waho has complied with the various conditions of his interim supervision order and has shown some initiative to obtain support in the community. It is also evident that he has significant family support although there are many issues arising from his family background that are problematic.
[84] I cannot ignore that, in the past, Mr Waho has offended within days of his release from prison. But, he has now been back in the community since late November 2023. It was submitted on Mr Waho’s behalf that he had successfully navigated this transition and that the highly invasive condition of intensive monitoring is not required. Ms Saunderson-Warner reminded me that the imposition of intensive monitoring, as with the imposition of an ESO itself, is inconsistent with the New Zealand Bill of Rights Act and therefore I should impose the least restrictive outcome.
[85] I am persuaded that intensive monitoring is required but not for a 12-month period. In my view, Mr Waho has made some progress since the ISO was imposed
and that this ought to be recognised. The maximum duration of such an order must be no longer than 12 months. Mr Waho has already spent three months on such a condition. In my view, the condition should only be extended for a further period of nine months.
Result
[86] I therefore grant the application for an extended supervision order on the same conditions imposed by Eaton J on the interim supervision order, subject to the following amendments:
(a) the condition requiring intensive monitoring will be for a period of nine months from 6 March 2024;
(b) the address will be amended to record Mr Waho’s current living situation; and
(c) the extended supervision order will remain in place for a period of five years.
Harland J
Solicitors:
RPB Law, Dunedin
S A Saunderson-Warner, Barrister, Dunedin.
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