Chief Executive, New Zealand Department of Corrections v Popata

[2017] NZHC 1408

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000167 [2017] NZHC 1408

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 Interim
Supervision Order

BETWEEN

CHIEF EXECUTIVE,

NEW ZEALAND DEPARTMENT OF CORRECTIONS

Applicant

AND

RICHARD JAMES POPATA Respondent

Hearing:	22 June 2017
Counsel:	J Murdoch for the Applicant H N Kim for the Respondent
Judgment:	23 June 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 23 June 2017 at 2.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     H N Kim, Auckland

Solicitors:    Meredith Connell, Auckland

CHIEF EXECUTIVE, NZ DEPARTMENT OF CORRECTIONS v POPATA [2017] NZHC 1408 [23 June 2017]

Introduction

[1]      Mr  Popata  is  due  to  be  released  from  prison  on  28  June  2017.    The Department applies for an interim supervision order (ISO) under s 107FA of the Parole Act 2002 pending determination of their application for an extended supervision order (ESO).  Bail is also sought as a means of enforcing the ISO.

[2]      The Department also seeks the imposition of special conditions in addition to the standard ESO conditions which will apply.  Those special conditions include an intensive monitoring condition which provides for Mr Popata to be accompanied and monitored for up to 24 hours a day, GPS monitoring, and a condition requiring Mr Popata  to  advise  his  probation  officer  prior  to  entering  into  an  intimate relationship.

[3]      Mr Popata opposes the application.   He originally challenged the Court’s jurisdiction to make an order under s 107FA given Mr Popata has not yet been released from prison.   However, that ground of challenge was withdrawn at the hearing.   The sole focus of the appeal was whether the ISO, and the associated conditions,  were necessary to  manage the  risk  posed  to  the public pending the hearing of the ESO.

[4]      Following the hearing, I granted the Department’s application for an ISO on the conditions sought.   I also granted bail as a means of enforcing the ISO.   My reasons for that decision now follow.

Mr Popata’s criminal history

[5]      Mr Popata is 44 years of age.   He is currently serving a sentence of six months’ imprisonment for two charges of indecently assaulting a female over 16 and two charges of male assaults female and common assault.

[6]      Mr Popata’s criminal history stretches back to his teenage years.   He has accumulated 88 criminal convictions, of which 25 are for sexual and violent offending.  Some of his offending has taken place whilst in prison.

[7]      Mr Popata received his first conviction for sexual offending in 2000, at the age of 26.  He has, since then, accumulated a total of 10 sexual offences against 11 women from the ages of 15 to 65.  All were unknown to him, although one was a relation by marriage whom he met on the day of his offending.  These offences are for a range of behaviour including touching breasts and buttocks, digital penetration, and stalking. There have been multiple incidents of sexually inappropriate behaviour which are noted in the health assessor’s report in support of the ESO application.

[8]      Mr Popata’s criminal history also reveals a use of violence and aggression throughout his adolescence.  He received a conviction for assaulting police at age 17 and has since that time incurred 14 additional violent offences mostly for domestic violence.  Other convictions include robbery involving a weapon, fighting in public, and stabbing a man who confronted Mr Popata about entering his property without permission.

Legislative framework

[9]      An interim supervision order may be made under s 107FA of the Parole Act. The relevant parts of that section provide:

107FA Sentencing court may make interim supervision order

(1)       This  section  applies  if,  before  an  application  for  an  extended supervision order is finally determined, 1 or more of the following events occur:

(a)      the offender who is the subject of the application is released from detention:

…

(2)       The sentencing court may, on application by the chief executive, order that, until the application for an extended supervision order is finally determined, the offender is subject to the supervision conditions specified in the order.

(3)       When the court makes an order under subsection (2) (an interim supervision order), it may impose any of the standard conditions that

are (under section 107JA), or special conditions that may be (under section 107K), imposed under an extended supervision order.

(4)       If, under an interim supervision order, the court imposes an intensive monitoring condition or residential restrictions, the period for which the interim supervision order is in force is not  to be  taken  into account for the purpose of the limits specified in section 107K(3)(b) and (ba).

(5)       The court may suspend an interim supervision order subject to any conditions that the court thinks fit.

(6)       An  interim  supervision  order  ceases  to  have  effect  when  the application for an extended supervision order is finally determined or discontinued.

[10]     The Department also seeks an order granting bail under s 107G of the Act. Bail is sought in order to provide a route by which the ISO order may be enforced. That is necessary because the Act only makes it an offence to breach an ESO and not an ISO.

[11]     The grant of an ISO is an interim measure pending the determination of an application for an ESO.   In Chief Executive of the Department of Corrections v Martin, Davison J described the approach of the Courts to the grant of an ISO as follows:1

[37]      It follows that when deciding whether to make an ISO, the Court need not be satisfied to the same extent as is required when considering whether to make an ESO. For that reason, I reject the submission made on Mr Martin's behalf that the Court should effectively be satisfied that an ESO should be made before an ISO is made.

[38]     I consider that the nature of the Court's decision in the s 107FA context has much in common with other types of interim orders made by a Court, such as interim injunctions generally and, particularly, interim orders sought under s 8 of the Judicature Amendment Act 1972. Here the Court should have regard to all the circumstances, which include the prima facie strength of the application by reference to the matters and material relied upon, the statutory framework and also the likely effect of an ISO upon the individual in respect of whom it is sought. The statutory framework has been considered at paras [10] to [13] above; the emphasis upon the safety of the community will  clearly be  a  matter of  significant weight  in the  Court's assessment. In light of these considerations, the court should then decide whether those factors justify the temporary restrictions that will be imposed upon the offender pending the Court's full consideration of the matter at the ESO hearing.

[39]      If, having regard to those factors, the Court is satisfied that there is a sufficient and reasonable foundation for the ISO application — and that its operation will be of short duration and on conditions limited to those necessary to protect the safety of the public — the Court has the power to, and will be justified in, making an ISO.

[12]     The underlying purposes and principles of the ESO regime are relevant to the Court’s decision.  The purpose of an ESO is to protect the community from those who pose a real and ongoing risk of committing serious or sexual offences.2  A Court may only make an ESO if satisfied that the thresholds in s 107I(2) have been met, which relate to a pervasive pattern of serious offending, and the risk (either high or very high)  that  the  offender  will  in  future  commit  a  relevant  sexual  or  violent

offence.

Is an ISO, and the conditions sought, necessary to manage risk?

[13]     Mr  Popata  submits  that  his  standard  release  conditions  are  sufficient  to mitigate risk  and  that the imposition of an  ISO is  not necessary.   He says  the conditions sought are unduly onerous and there is no clear nexus between those conditions and the risk posed.  The fact that Mr Popata has already committed two strike offences is also said to act as a necessary deterrent in his case.

[14]     Mr Popata will be subject to release conditions for at least six months after his release from prison.   Those conditions are likely to include: a prohibition on contacting the victims of offending, a requirement to reside at an address approved by a probation officer and not to move from that address, attendance at assessment and treatment programmes, and attendance at a psychological assessment and associated treatment if required.

[15]     The conditions which would be imposed as part of the ISO are significantly more onerous.  They include: intensive monitoring for up to 24 hours a day, GPS monitoring, a prohibition on engaging in employment without prior written approval of the probation officer, and a requirement to advise the probation officer prior to entering into an intimate relationship.

[16]     The risk posed by Mr Popata is referred to in Dr McWilliams’ report filed in support  of the  ESO  application.    In  referring  to  that  report,  I am  mindful  that Mr Popata has not yet had an opportunity to file a health assessor report, and that this is only a hearing at the interim stage.

[17]     Dr McWilliams assesses Mr Popata’s risk of committing a serious sexual offence as high or very high on various actuarial measures.   The overall risk of sexual recidivism has been rated as “very high” together with a “high risk” of violent recidivism.

[18]     Dr McWilliams’ expert opinion is that Mr Popata presents with high sexual preoccupation and sexual compulsivity.  Although the offending is not at the most serious end of the scale, Dr McWilliams considers it is escalating in seriousness, and it involves intrusive force.  She considers that Mr Popata has an inability to manage his own sexual behaviour and needs external support and structure to manage the risks that he poses.

[19]     The nature of Mr Popata’s offending is against females, both strangers and those that he knows.  It has occurred in public places, and has also involved intrusion into private homes.  There is an opportunistic and impulsive character to Mr Popata’s offending which cannot be adequately managed by release conditions in my view. An intensive monitoring condition of up to 24 hours a day, and GPS monitoring, are required to protect the public from the risk of reoffending until the ESO application can be heard and determined.

[20]     Mr Popata’s offending history includes a failure to comply with conditions imposed on him.   He has convictions both for breaches of release conditions and breaches of bail.  The sentences of imprisonment do not appear to have deterred him from reoffending.  Against that background, I am not persuaded that the deterrent effect of being on notice of a third strike offence will satisfactorily mitigate the risk of reoffending in the future.

[21]     Finally, I am satisfied that there is a nexus between the condition requiring Mr Popata to advise the probation officer prior to entering into an intimate relationship, and the particular risk he poses. Although much of his sexual offending is against females he does not know, the digital penetration offending involved a female relative by marriage at a residential house.   There are also a number of incidences of domestic violence in Mr Popata’s offending history which may also contribute to the risk of reoffending against those he is in an intimate relationship with in the future.   I stress that the condition only requires Mr Popata to advise probation of an intimate relationship; there is no condition prohibiting or preventing such a relationship from occurring.

[22]     Finally, the conditions sought will only be in place until the ESO hearing which is currently scheduled for 14 September 2017 (although that date may be shifted to 21 September 2017 to  accommodate the Department’s experts).   The appropriateness of such conditions may be re-examined at that time with the benefit of full information before the Court on the particular risks posed by Mr Popata.

[23]     In summary, I do not consider the release conditions are sufficient to mitigate risk.  I am satisfied that there is a foundation for making the ISO and imposing the conditions sought on a temporary basis.

Result

[24]     On 22 June 2017 I made an order granting the application for an interim supervision order subject to the conditions set out in the schedule attached.   The interim supervision order shall take effect from 28 June 2017 and shall expire on the final determination of the ESO application.

[25]     I also made orders pursuant to s 107G(5)(c)(ii) and s 107G(6) of the Act, bailing Mr Popata from his date of release on condition that he complies with the conditions of the interim supervision order.  The terms of bail are to continue for so long as the interim supervision order remains in force or pending further order of the Court.

[26]     Finally, the Department sought an adjournment of the hearing for the ESO application set down for 14 September 2017, due to the unavailability of expert witnesses.  Counsel have since confirmed that 21 September 2017 is suitable for all concerned.    I  therefore  adjourn  the  application  for  the  hearing  of  an  ESO  to

21 September 2017.  I confirm that Mr Popata must be present at that hearing.

Edwards J

SCHEDULE OF ISO CONDITIONS

1.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.

2.Not to contact the victim(s) of your offending directly or indirectly without the prior written approval of a Probation Officer.

3.To reside at an address as directed by a Probation Officer and not to move from that address without the prior written approval of a Probation Officer.

4.To remain at the approved residential address at all times, unless an absence is approved by a Probation Officer.

5.        To  co-operate  with  and  comply  with  any  lawful  direction  given  by  a

Probation Officer.

6.Not to undertake any (paid/unpaid) employment/training without the prior written approval of the Probation Officer.

7.To  advise  your  Probation  Officer  prior  to  entering  into  an  intimate relationship.

8.To submit to Global Position System (GPS) monitoring as directed by a Probation Officer, in order to monitor your compliance with any condition(s) relating to whereabouts.

9.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.

10.To  attend  and  engage  in  a  rehabilitative  assessment  and  complete  any treatment or programmes as directed by a Probation Officer and/or assessor/treatment provider.