Chief Executive, New Zealand Department of Corrections v Aima'Asu (aka Tima)

[2016] NZHC 603

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-363 [2016] NZHC 603

UNDER

Sections 107F and 107IAB of the Parole

Act 2002

BETWEEN

CHIEF EXECUTIVE, NEW ZEALAND DEPARTMENT OF CORRECTIONS Applicant

AND

SUAFAI AIMA'ASU (AKA SUA TIMA) Respondent

Hearing:	7 April 2016
Appearances:	K Hogan and M Regan for Applicant P Le'aua'nae for Respondent
Judgment:	7 April 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

7 April 2016 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Manukau

CHIEF EXECUTIVE, NEW ZEALAND DEPARTMENT OF CORRECTIONS v AIMA'ASU  [2016] NZHC

603 [7 April 2016]

Introduction

[1]      The respondent, Mr Suafai Aima’asu, has a history of sexual offending.  In February  2009  he  was  sentenced  to  two  years  six  months’  imprisonment  for offending in 2007 on one charge of exploitive sexual connection with a person with a significant impairment and another of doing an indecent act on a person with a significant impairment.

[2]      In May 2012 the Manukau District Court issued an Extended Supervision order (ESO) in respect of the respondent effective from that date for a period of ten years (original ESO).

[3]      During that term, in June 2013, he was sentenced in the Manukau District Court  to  two  years  six  months’  imprisonment  for  another  exploitive  sexual connection with a person with significant impairment.   During his time in imprisonment time ceased to run on the original ESO.   He was released from Springhill Prison on 4 March 2015 and the original ESO was activated on that date. It is due to expire on 8 November 2024.

[4]      The reason that the Department of Corrections is applying for a further ESO

is in order to impose an intensive monitoring condition on Mr Aima’asu for the first

12 months of the further ESO.   As appears already from the narrative, he was convicted of the further sexual offence after the initial ESO was made and the Department of Corrections sees this as enhancing his risk of committing a relevant sexual offence.

[5]      The application does not however depend upon this view of the Department of Corrections. The basis for granting any ESO has to depend upon expert opinion.

[6]      This application for an ESO relies on s 107C(1)(a)(iii) of the Parole Act 2002 (the Act):

107C   Meaning of eligible offender

(1)      In this Part, eligible offender means an offender who—

(a)       is not subject to an indeterminate sentence but is a person  who  has  been  sentenced  to  imprisonment  for  a relevant offence (and that sentence has not been quashed or otherwise set aside) and has not ceased, since his or her latest conviction for a relevant offence (that has not been quashed or otherwise set aside), to be subject to any or all of the following:

(i)       …

(ii)      …

(iii)     an extended supervision order; or

[7]      And s 107F(1)(b) of the Act:

107F    Chief executive may apply for extended supervision order

(1)       The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—

(a)       …

(b)       where   the   offender   is   subject   to   an   extended supervision order, at any time before the expiry of the order; or….

[8]      And also s 107IAB:

107IABChief   executive   may   apply   for   imposition   of   intensive monitoring condition

(1)       When  the  chief  executive  makes  an  application  under section 107F for an extended supervision order, he or she may at the same time apply to the sentencing court for an order requiring the Board to impose an intensive monitoring condition on the offender under section 107IAC.

(2)       If  the  chief  executive  makes  an  application  under  this section, the sentencing court is, for the purpose of that application and the corresponding application under section

107F, and despite anything in section 107D, taken to be the

High Court.

[9]      An intensive monitoring condition requires the offender to be accompanied and monitored by an approved person for up to 24 hours a day.1    It can remain in force no longer than 12 months.2

[10]     The only way that the Department of Corrections can now obtain an intensive monitoring condition is to make a fresh application to the High Court for a further ESO. As noted above in s 107C(1)(a)(iii), this Court has the jurisdiction to impose a further ESO while the offender is still subject to an existing ESO.

Analysis of two health assessment reports

[11]     In preparation for this hearing I have read thoroughly two reports. The first is by Ms Siaan Nathan.  She is a registered clinical psychologist.  Her report is dated

22 June 2015.

[12]     She concludes that the respondent:

…presents with a number of dynamic risk factors that reflects his high level of risk, which despite treatment, remain present suggesting this risk will remain  at  a  high  level  over  the  longer  term.    Whilst  Mr Aima’asu  has indicated a willingness to manage his risk, he appears to lack the cognitive and behavioural skills to do so effectively and consistently in the absence of strict external controls and support.

[13]     Ms Nathan reports that the use of a multi-method assessment strategy has been endorsed as the best approach to determine convergence among risk factors than to allow assessment of independent contributions.   She used the Automated Sexual Recidivism Scale (ASRS) in the Violent Risk Scale: Sexual Offender version (VRS-SO).

[14]     She adds:

It should be noted that these findings are consistent with the previous Psychological Health Assessment Report (S Bramhall, 25 November 2011) which also deemed Mr Aima’asu to be at high risk.  This indicates his level of risk has remained consistent over time.

[15]     I note that Mr Aima’asu is 58 years old.

[16]     The clinical psychologist, Ms Nathan, has recommended that inter alia, the imposition of strict forms of monitoring for Mr Aima’asu is a necessary ingredient to mitigate his risk.  The Department of Corrections are anticipating expiration of the

24 hour residential restrictions imposed under the original ESO.  It is in this context

that the Chief Executive of the Department of Corrections makes this application with a view to seeking the imposition of an intensive monitoring condition.3

[17]     The second report is by Dr Jon Nuth, a qualified clinical psychologist.  He was retained by Mr Le’au’anae, the barrister for Mr Aima’asu on 10 February of this year.  His report following an assessment of Aima’asu comes to the same conclusion as Ms Nathan.   Both psychologists combined interviews of Mr Aima’asu with the application of psychometric instruments.  Dr Nuth administered the Static-99R and the ASRS and the Stable-2007.  In summary Ms Nathan said:

…based on a multi-method assessment of Mr Aima’asu’s risk of further relevant re-offending using ASRS and VRS-SO ratings, and noted clinical factors, it is considered that there is a high risk of Mr Aima’asu committing a further relevant offence while in the community.

[18]     Dr Nuth concluded:

Based on the information available to me I am of the view that there [is]

strong basis for recommending an Extended Supervision Order for ten years.

[19]     He noted that Mr Aima’asu was resistant to this.  He recorded:

It is my understanding that Mr Aima’asu would transition to an approved provider such as Emerge Aotearoa if he is placed under an ESO.  This would involve electronic monitoring for the first twelve months, 24/7 monitoring and the opportunity to go on approved outings with a Probation Officer.

Orders

[20]     In the light of these assessments the Department of Corrections wants to obtain an intensive monitoring condition.  This is only possible, under the current law, if it is imposed by the High Court.4    Mr Le’aua’nae, for the respondent, was realistic.  He could not advance any argument to the contrary.

[21]     This Court is fully satisfied by these reports and that this application for a further ESO, notwithstanding the existing ESO, is being made for a proper purpose.

[22]     The Court makes the following orders:

(a)      The applicant’s application for a further extended supervision order in respect of the respondent is granted’

(b)In  particular, the Parole Board is  required  to impose an intensive monitoring condition on the respondent for a duration of 12 months;

(c)      The further extended supervision order is imposed for a term of ten years and is to run from the date of the order;5   and

(d)The respondent is subject to the following special conditions on an interim basis pending Parole Board determination of which special conditions should be imposed under s 107K of the Act:6

(i)He is not to purchase, possess or consume alcohol or illicit drugs;

(ii)He is to continue to attend and complete a limited number of one-on-one  treatment  or  counselling  sessions  to  the satisfaction of the probation officer and psychologist;

(iii)He is not to enter or loiter at any premise where intellectually disabled people reside.

(iv)He  is  not  to  associate  with,  or  contact,  any  intellectually disabled person without the prior written approval of a Probation Officer.

(v)He   is   to   comply   with   the   requirements   of   electronic monitoring, which may be used for the sole purpose of monitoring whereabouts from the approved residence and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the

purpose of maintaining the electronic equipment as directed by the Probation Officer.

(vi)He is to submit to electronic monitoring as directed by the Probation officer in order to monitor his compliance with any condition(s) relating to whereabouts.

(vii)He is not to stay away overnight from his residence without prior written approval of a Probation officer.

(viii)He is not to approach, enter or remain on the premises of any schools, pre-schools, parks, playgrounds, or any other place specified in writing by his Probation officer where children under the age of 16 congregate, unless under the direct supervision of an informed adult who has been approved in writing by the Probation officer. An informed adult is a person over the age of 20 years who is fully aware of his previous offending and high risk situations and, in the opinion of the Probation officer, will not support or collude with any further offending.

(ix)    He is not to engage in any voluntary work, training or employment (paid or unpaid) without the prior approval of a Probation officer.

(x)      He is not to access any public events, church services or community-based festivals except in the presence and under the supervision of an approved adult.

(xi)      He is to at an address approved by a Probation officer and not to move from that address, or subsequent approved address, without the prior written approval of a Probation officer.

(xii)   He is required to stay at 36 Plumley Crescent, Mangere, Auckland at all times unless absent in accordance with s 33(4) or (5) of the Parole Act 2002.