Chief Executive Department of Corrections v Waho

[2024] NZHC 471

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-70

[2024] NZHC 471

THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS

v

KAELEMN 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:

6 March 2024

RESULTS JUDGMENT OF HARLAND J

[1]                  Mr Waho, I acknowledge you, your friends, families and supporters here today. I understand that this is a very important day for you, given that I am now going to let you know of my decision whether you should be subject to an extended supervision order for a period of 10 years, with a condition of intensive monitoring.

[2]                  Decisions such as these are never easy, particularly because, as Ms Saunderson-Warner correctly highlighted, extended supervision orders have been declared to be contrary to the Bill of Rights Act because they are imposed after a person’s sentence has been served.

[3]                  But, as you have heard, the key purpose of an extended supervision order is 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

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v WAHO [2024] NZHC 471 [6 March 2024]

offences. The focus in your case Mr Waho was on your propensity to commit serious violent offences.

[4]                  There are statutory provisions I must consider in determining whether the grounds for an extended supervision order have been made out. I am not going to go through these now but, as I have said, they will be included in my written judgment which will set out the reasons about why I have reached the outcome I have.

[5]                  As you know, I have had to consider a number of reports; three from Mr McKendry for the Department of Corrections and one, Mr Waho, from Dr Sellbom for you. Both psychologists were cross-examined. They agreed that you meet all of the criteria apart from two, being the criteria set out in s 107IAA(2) of the Parole Act, which are the factors I must consider in assessing whether there is a very high risk that you will commit a relevant violent offence. They disagreed about whether you display the characteristics of persistent harbouring of vengeful intentions towards one or more other person and whether you display an absence of understanding for or concern about the impact of your violence on your actual or potential victims.

[6]                  I have very carefully considered all of the evidence, but I have reached the view that both characteristics have been established on the evidence. This means 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 is Chisnall v Attorney-General, in which a declaration of inconsistency was made concerning the ESO regime and the New Zealand Bill of Rights Act 1990.1 I accept that the law requires me to find that there is strong justification for an ESO.2 However, based on the material presented to me, I have reached the view that, in your case, there is strong justification for such an order.

[7]The question is now what the duration of the ESO should be.

1      Chisnall v Attorney-General [2021] NZCA 616.

2      R v Chief Executive of the Department of Corrections [2022] NZCA 225; Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289.

[8]                  I am not satisfied that a term of 10 years, as sought, is warranted. There are signs that you have recently taken steps to refer to various agencies who can help you with your rehabilitation. You have had sessions with the Department of Corrections’ psychologist for one-on-one treatment and made referrals to He Waka Tapu for drug and alcohol assistance. You have also re-engaged with the Stopping Violence Programme and Ngā Maata Waka, all of which are very important and responsible steps for you to have taken.

[9]                  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.

[10]              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?

[11]              Section 107IAC allows me to make an intensive monitoring condition. 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.

[12]              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.

[13]              Mr Waho, you have complied with the various conditions of your interim supervision order and you have shown initiative to obtain support in the community. It is also evident that you have significant family support. I cannot ignore that, in the past, you have offended within five days of your release from prison. But, you have now been back in the community since late November 2023. It was submitted on your behalf that you have successfully navigated this transition and that the highly invasive condition of intensive monitoring is not required. Ms Saunderson-Warner reminds 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.

[14]              I am persuaded that intensive monitoring is required but not for a 12 month period. In my view, you have made some progress since the ISO was imposed and this ought to be recognised. The maximum duration of such an order must be no longer than 12 months. You have 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

[15]              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)        first, the condition requiring intensive monitoring will be for a period of nine months from today;

(b)       second, the address will be amended to record your current living situation; and

(c)        third, the extended supervision order will remain in place for a period of five years.

[16]              In making these orders Mr Waho, I am nonetheless hoping that you will carry on with the approach you have taken since the interim supervision order was put in place. You will require the support of many people to achieve your goal of receiving help for the problems you face. You have started on a positive journey. The organisations through which you are receiving help are good organisations and, if you are willing to accept their help and learn from what they are teaching you, it might be that, after the five year term I have imposed, you can, as still a relatively young man, proceed to live a more normal life in the community free from violence.

Harland J

Solicitors:

RPB Law, Dunedin

S A Saunderson-Warner, Barrister, Dunedin.