Chief Executive, New Zealand Department of Corrections v Komene
[2023] NZHC 1870
•13 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-429
[2023] NZHC 1870
UNDER Section 107F of the Parole Act 2002 BETWEEN
CHIEF EXECUTIVE, NEW ZEALAND DEPARTMENT OF CORRECTIONS
Applicant
AND
JACOB KOMENE
Respondent
Hearing: 13 July 2023 Appearances:
S Bicknell for the Applicant MJ Hamlin for the Respondent
Judgment:
13 July 2023
ORAL JUDGMENT OF BECROFT J
[As to Extended Supervision Order]
Solicitors/Counsel:
Kayes Fletcher Walker, Auckland M Hamlin, Auckland
CHIEF EXECUTIVE, NEW ZEALAND DEPARTMENT OF CORRECTIONS v KOMENE [2023] NZHC 1870 [13 July 2023]
The application
[1] The chief executive of the New Zealand Department of Corrections applies for a five-year Extended Supervision Order (ESO) in respect of Mr Jacob Komene under s 107F of the Parole Act 2002 (the Act). Mr Komene opposes the application.
The hearing and resolution
[2] At the hearing today, evidence was heard from two “health assessors” (as defined in s 4 the Act) who are both registered clinical psychologists, and whose standing and expertise was not disputed. Dr Willem Louw provided a report for the applicant. Dr Hamish Bartle provided a report for Mr Komene.
[3] Both Drs Louw and Bartle gave evidence at the hearing and were subject to cross-examination. Before the cross-examination of Dr Bartle was completed and during the luncheon adjournment, Mr Komene responsibly re-considered his position. He now not only does not object to the application, but consents to it on the basis that it is an application for a three-year ESO.
[4] The three-year duration came about as a result of cross-examination of Dr Louw who conceded that was the minimum period of the order required for the purposes of safety of the community, in light of:1
(a)the level of risk posed by Mr Komene;
(b)the seriousness of harm that might be caused to victims; and
(c)the likely duration of risk.
[5] In light of Dr Louw’s evidence, I accept that three years is suitable and appropriate as a minimum period for Mr Komene’s ESO.
1 See s 107I of the Parole Act 2002, which at subs (5) sets out these general criteria for determining the length of an ESO. Section 107IAA sets out the more detailed criteria for an ESO in relation to the risk of the offender committing a relevant sexual or violent offence.
[6] I record, given that Mr Komene is here in Court, that his express consent to this application is responsible, mature and appropriate. I congratulate him for doing so. It is the best outcome in these circumstances.
Why the Court would have granted the ESO in any case
[7] On the basis of the almost-completed evidence that I had heard, I need to make clear that I would have made the order in any case. I briefly summarise why that is so. It may be of help to the Parole Board who I understand will be considering the appropriateness of any special conditions for Mr Komene.
[8] I need to record also, and Mr Komene responsibly accepts this, that all the evidence that I heard was that if he was receiving family support, external mental health support and kept taking his medication, and was otherwise properly supervised, the very high risks of him re-offending violently and committing one of the serious specified offences in the Act would be significantly reduced. Mr Komene knows how important it is that he gets that help. So does his family.
[9] In terms of the legislation, it is convoluted and difficult to understand but it seems necessarily so given that a person’s rights are at stake. This type of order is a serious imposition on civil liberties and must only be applied if all the statutory conditions are met.
“Relevant offence” and “eligible offender”
[10] On 23 July 2023, Mr Komene was convicted and sentenced to nine years' and eight months’ imprisonment on a charges of wounding with intent to cause grievous bodily harm and aggravated burglary. The former is a “relevant offence” under the Act.2 A minimum period of imprisonment of six years was imposed. He was released from custody in respect of that charge, and another prison-related assault which resulted in a cumulative sentence, on 14 June 2023. Since that time, he has been subject to release conditions. Thus far, he has apparently been doing “ok” and Mr
2 See s 107B.
Komene nods to agree with that. It is accepted that Mr Komene is an “eligible offender” under the Act.3
Pervasive pattern of serious violent offending (s 107I(2)(a))
[11] In terms of the statutory criteria, this Court is satisfied that Mr Komene “has, or has had, a pervasive pattern of serious violent offending”.4 With respect to Mr Komene, when his criminal history is analysed as set out in paras [2.1] to [2.30] of the applicant’s excellently written submissions, no other description of his behaviour other than it represents a pervasive, if not endemic, pattern of serious violent offending is possible.
[12] At the hearing, that was explicitly accepted by both Ms Bicknell who appeared for the applicant and Mr Hamlin who appeared for the respondent.
Very high risk in the future of committing a relevant violent offence (s 107I(2)(b)(ii))
[13] Under s 107I(2)(b)(ii), I am also satisfied that there is a very high risk that the offender, that is Mr Komene, will in the future commit a relevant violent offence. The definition “very high risk” is only satisfied if the matters set out in s 107IAA(2)(a) to
(c) apply to Mr Komene. In my view they do. I set out my reasoning as follows.
Very high risk
[14] In terms of the general required statutory standard of “very high risk”, on the face of it, Dr Louw and Dr Bartle were at odds. Only Dr Louw described Mr Komene’s risk as “very high”. Dr Bartle described it only as “high”. When their evidence, however, is unpacked, and when the particular criminogenic tools that they used are explained, it seems to me that the differences were largely of a semantic nature. To maintain any difference between their views would be akin to dancing on the head of a pin.
3 See s 107C.
4 Section 107I(2)(a).
[15] The crucial fact is that in the two tools they both used that relate specifically to violence – that is the Violence Risk Scale (VRS) and the HCR-20 tool – both reached the same, or virtually the same, conclusions. As to the VRS, both concluded Mr Komene was at “high risk” (which is the top range allowed in the tool). For the HCR-20, Dr Louw’s conclusion was “high” and Dr Bartle’s “high risk”. Again, this was the highest possible score. Only Dr Louw used the Risk of Conviction*Risk of Imprisonment (RoC*RoI) offending tool which categorised Mr Komene as being at “very high risk”. Dr Bartle responsibly conceded that had he too used that tool, he would almost certainly have obtained the same result.
[16] The differences between their categorisation, in my view, relates primarily to the tools that were used and I was quite satisfied on the completed evidence that I heard on that point, that there was a “very high risk” of Mr Komene committing a relevant violent offence.
The statutory criteria for “very high risk” (s 107IAA(2))
[17] The resolution of the differences between the two health assessors as to their risk assessments is, however, not the fundamental point. This is because “very high risk” is a term that is only statutorily established if the Court is satisfied of a number of quite complicated statutorily prescribed conditions under s 107IAA(2) of the Act. All of these are satisfied here, as follows.
“Severe disturbance in behavioural functioning established by….”
[18] Mr Komene “has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics”:5
(a)“[I]ntense drive, desires or urges to commit acts of violence” (s 107IAA(2)(a)(i)). This was effectively not in dispute and specifically conceded by responsible counsel.
(b)“Extreme aggressive volatility” (s 107IAA(2)(a)(ii)). That, too, was expressly conceded by responsible counsel and was not an issue.
5 Section 107IAA(2)(a).
(c)“Persistent harbouring of vengeful intentions towards 1 or more other persons” (s 107IAA(2)(a)(iii)). This was in dispute and became a focus in the evidence and submissions. There is no clinical tool or psychological definition of persistent. But there is a legal definition. For instance, the Court of Appeal in Mosen v Chief Executive of the Department of Corrections noted that persistent can mean frequent and repetitive rather than just long-held and consistent.6 That is, one definition of “persistent harbouring of vengeful intentions” is a consistent, ongoing and continuing harbouring of vengeful intentions; while another is the repetitive and recurring episodic harbouring of vengeful intentions.
On that latter definition, Dr Louw amended his initial conclusion that Mr Komene did not present as persistently having those intentions. He instead accepted that, in terms of the legal definition, there were at least three demonstrated instances of recurring, episodic harbouring of vengeful intentions and, perhaps, more which could not be established. He accepted these satisfied the definition of persistent in the sense that they were repetitive and recurring episodes.
On his evidence thus far, it seemed to me that Dr Bartle also accepted this was indeed a characteristic experienced by Mr Komene, but only when he was mentally unwell. Otherwise, there was mixed evidence as to that criterion being satisfied.
Having heard the evidence, I am, myself, satisfied that there is evidence of a persistent harbouring of vengeful intentions.
Limited self-regulatory capacity (s107IAA(2)(b)(ii))
[19] In terms of s 107IAA(2)(b) it was responsibly accepted by both counsel that Mr Komene displayed no behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal.7 But it was responsibly accepted
6 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507, (2022) 30 CRNZ 751 at [53] – [54].
7 Parole Act 2002, s 107IAA(2)(b)(i).
by both counsel that he clearly has limited self-regulatory capacity.8 Part of the reason for that is because of his childhood ill-treatment; his profound fetal alcohol spectrum disorder; and also what is called his schizo-affective condition, which needs regular medication.
Absence of understanding for or concern about the impact of violence on actual or potential victims (s 107IAA(2)(c))
[20] The final matter of which I need to be satisfied is under subs 2(c). That is, that Mr Komene displays an absence of understanding for, or concern about, the impact of his violence on actual or potential victims. This, again, is a subtly complex concept. It is clear from decisions such as McIntosh v Chief Executive of the Department of Corrections that the issue is not so much an outright absence of understanding for or concern about the impact of his violence; but more about whether there are sufficient factors in his understanding and remorse about his violence that would act as a protective factor in the future.9
[21] This was probably the nub of Mr Hamlin’s concern on the evidence that the Court had heard.
[22] However, certainly, on Dr Louw’s evidence I am quite satisfied that it is demonstrably evident here.
[23] I say that because there is no evidence of that understanding or concern before or during the offending – but there is some, as Dr Louw put it, “vocalisation” of regret and remorse thereafter. In Dr Louw’s view that, however, was not sufficient to constitute compliance with what the statute requires in that it would not protect against further specified violent offending if Mr Komene was provoked while mentally unwell.
8 Section 107IAA(2)(b)(ii).
9 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218, at paras [22] and [23].
[24] Dr Bartle essentially agreed but was more hopeful. He felt that positive signs were already being displayed by Mr Komene towards the end of his prison sentence and upon his release. He posited that there were grounds for hope, not yet tested, that in the community Mr Komene’s understanding and concern about the impact of his violence would act as a sufficiently protective factor, meaning that there was a low risk of further specified violent offending. That, however, is an entirely optimistic and hopeful assessment. And, as I say, and as conceded by Dr Bartle, that assessment depends on the test of time.
Conclusion
[25] So, in my view, all the matters about which I must be satisfied when assessing “very high risk” under s 107IAA are made out.
[26] I have taken the trouble to set this all out because I am told, and I hope, it will assist the Board in its assessment of the next steps to be taken.
[27] As I say, the length of the order must be the minimum period required for the purposes of safety of the community in light of the factors that I previously specified in s 107I of the Act. Under cross-examination, Dr Louw’s concession as to the appropriateness of the three-year period must be accepted. It was supported informally by Dr Bartle.
[28] Having set all that out, which provides a parallel basis for the order additional to Mr Komene’s consent, I formally make the order that Mr Komene is subject to a three-year Extended Supervision Order. To be clear, Mr Komene, that is for three years not the five-year order.
[29] There has been some discussion as to when that order should start. Ms Bicknell for the Department has asked that it start in one month’s time. I do not understand Mr Hamlin to oppose. On that basis, the order will start on Friday, 11 August 2023.
[30] The final matter that I note is that the standard conditions, helpfully provided to me, contain one condition that Mr Hamlin views as unnecessary if not inappropriate in this case. That relates to the prohibition of contact with those under 16 unless
approved by the Probation Officer. To the extent that the Board has the ability to amend or delete a standard statutory condition, then that is something that requires consideration. If there are any special conditions to be imposed, then the Board has the next month to address that issue in discussion with Mr Hamlin.
[31] The final thing to say Mr Komene, is that I have been greatly helped by both Ms Bicknell and Mr Hamlin. Their submissions in writing have been excellent; their approach in Court in focussing on the key issues and making significant concessions about what was not in dispute has made my job much easier. I think this has made it easier for you also – to help you understand, and to make it easier in terms of resolving this application. I simply want to record my thanks to both of them, and to Ms Kedge
– the communication specialist who is in Court today assisting you.
Becroft J
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