Chief Executive of Department of Corrections v Paul

[2017] NZHC 1294

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI-2017-412-13

[2017] NZHC 1294

CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS

v

JUSTIN MANE PAUL

Hearing:	8 June 2017
Appearances:	P A Currie for the Applicant M Starling for the Respondent
Judgment:	13 June 2017

REASONS FOR JUDGMENT OF MANDER J

[1]    The Chief Executive of the Department of Corrections (the Chief Executive) applied for an extended supervision order (ESO) to be made with respect to Justin Mane Paul.1 The Chief Executive also applied for Mr Paul to be subject to intensive monitoring.2

[2]    Mr Paul accepts he is an eligible offender and meets the criteria for an ESO, which he concedes should be for a period of 10 years. Additionally, he consents to an order being made for intensive monitoring for the first 12 month period of the ESO. A joint memorandum of counsel was filed formally recording Mr Paul’s position.

1      Parole Act 2002, s 107F.

2      Section 107IAB.

CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v PAUL [2017] NZHC 1294 [13 June 2017]

[3]    While Mr Paul does not oppose the making of the orders it is necessary that I be satisfied that the statutory requirements for the making of such orders have been met and that it is appropriate for an ESO to be made.

[4]    Prior to the hearing of the application, I read the material filed by the Chief Executive in support of his application, including the report of a health assessor. After hearing from counsel, I granted an ESO for a period of 10 years, together with an order that Mr Paul be the subject of an intensive monitoring condition of no longer than 12 months. The following are my reasons for granting those orders.

Relevant background

[5]    Mr Paul is 42 years old. He commenced offending when aged only 14 years, and has now accumulated some 130 convictions over the course of 34 Court appearances, two of which were in the Youth Court. He has been sentenced to imprisonment on multiple occasions for a wide range of offending, including burglary and receiving, non-compliance offences including breach of parole and release conditions, possession of drugs, and driving with excess breath alcohol. Relevant to the present application are the large number of convictions Mr Paul has for violence.

[6]    On 19 September 2006, Mr Paul was sentenced on two charges of aggravated robbery and two charges of kidnapping for which he was sentenced to a total period of imprisonment of seven years and six months. The circumstances of that offending involved Mr Paul and a co-offender meeting two male victims at a hotel. The four of them socialised together and consumed alcohol and cannabis. After continuing to socialise at the victims’ home, Mr Paul and his co-offender suddenly attacked their two victims.

[7]    One of the victims was struck on the head from behind with a tomahawk. Both victims were severely beaten. The beating involved kicks to the head and the continuation of violence after the victims’ hands and feet had been bound. Both victims lost consciousness, and were robbed of property. Each victim sustained very serious injuries. Mr Paul accepted that he continued to assault the victims once they were bound, and, indeed, revived the victims for the purpose of continuing his assaults

upon them. He reported obtaining a sense of satisfaction throughout the offending from the infliction of the violence.

[8]    Mr Paul was granted parole on 24 September 2012 notwithstanding a psychological report which assessed Mr Paul’s risk of reoffending as being very high. Mr Paul was admitted to a programme at Moana House. However, on 5 October 2012, he absconded from the residential programme after only two weeks, having allegedly behaved in an intimidating and aggressive manner towards another resident and becoming aware that recall action was being considered by Community Corrections.

[9]    In the 12 day period between Mr Paul leaving Moana House and his arrest, he committed numerous burglaries and dishonesty offences. As a result, he was sentenced on 27 March 2013 to a four year cumulative term of imprisonment on 10 charges of burglary, a representative charge of receiving, and for breach of release conditions.

[10]   Prior to the 2006 aggravated robbery and kidnapping offending, Mr Paul’s pattern of violent offending was already well-established. Mr Paul has previous convictions in addition to the index offences of aggravated robbery (x 2) and kidnapping (x 2) for aggravated assault (other weapon); aggravated robbery (firearm); aggravated robbery (manually); assault with a blunt instrument; assault with a stabbing/cutting instrument (x 2); assault with intent to rob; common assault (x 2); male assaults female (x 4); assaulting police; resisting police; fighting in a public place; and possession of an offensive weapon. His past violent offending includes seven convictions that qualify as specified offences under the Act.3

The application

[11]The application is filed pursuant to s 107F of the Act:

3      Parole Act 2002, s 107.

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)where the offender is subject to a sentence of imprisonment, at any time before the later of—

(i)the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and

(ii)the date on which the offender ceases to be subject to any release conditions; or

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

...

(2)An application under this section must be accompanied by a report by a health assessor (as defined in section 4 of the Sentencing Act 2002).

(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.

...

[12]   Mr Paul’s statutory release date was 26 March 2017, although he was released on 22 March. The Chief Executive’s application was filed on 8 March. An interim order was in place until the substantive application was determined by me, and orders made on 8 June 2017.

Eligibility

[13]   It  is  not  disputed  that  Mr  Paul  qualifies  as  an  eligible  offender  under   s 107C(1)(a). He was subject to a determinate sentence of imprisonment for aggravated robbery and kidnapping which were both relevant violent offences, as defined by s 107B.

[14]   On 24 September 2012, Mr Paul was released from custody but remained subject to statutory release conditions and special conditions which were to run for six months past his release date. As I have already canvassed, whilst subject to those conditions he breached his conditions of parole and committed further offences for which he was sentenced to a total of four years imprisonment on 27 March 2013. As a result, at the time the Chief Executive filed his application, Mr Paul had not ceased since his last conviction for a relevant offence to be subject to a sentence of imprisonment or release conditions.

The test

[15]   Before a Court may make an ESO it must be satisfied of the matters set out in s 107I which relevantly provides:

107I     Sentencing court may make extended supervision order

(1)The 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 offences.

(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:

(i)there is a high risk that the offender will in future commit a relevant sexual offence:

(ii)there is a very high risk that the offender will in future commit a relevant violent offence.

(Emphasis added)

[16]   In Mr Paul’s case, I must be satisfied having considered the matters addressed in the health assessor’s report that Mr Paul:

(a)has, or has had, a pervasive pattern of violent offending; and

(b)there is a very high risk that he will in future commit a relevant violent offence.

Pervasive pattern of serious violent offending

[17]   I have reviewed Mr Paul’s history of previous convictions which of itself discloses a pervasive pattern of serious violent offending. A theme of the health assessor’s report is Mr Paul’s described resort to what is referred to as “instrumental and reactive” violence which he has demonstrated from a young age. Mr Paul’s violence is identified as being precipitated by his perception of having been provoked or challenged, feeling intense anger, engaging in ruminative thinking, and being under the influence of substances. However, additionally, as is demonstrated by the circumstances of the index offending, Mr Paul’s violence is also premeditated, associated with decisions to steal, to threaten, or stand over and intimidate others.

[18]   Mr Paul’s offending shows an escalation in seriousness, with his current sentence being the longest term of imprisonment that he has so far received. Repeated imprisonment has not resulted in any apparent deterrent effect upon him. He has a history of rapidly reoffending subsequent to release from prison and while on release conditions.

[19]   Previous attempts to address Mr Paul’s violent offending have proved unsuccessful. He has not completed rehabilitation programmes, either because of behavioural concerns that he has exhibited, or as a result of him withdrawing his consent to participate. Previous psychological reports have noted superficial motivation and ambivalence towards treatment, rule breaking, and intimidation of other prisoners. Individual therapy sessions have been unsuccessful.

[20]   Mr Paul is assessed with respect to his violent offending as behaving in an impulsive manner, whereby he can become overcome by explosive aggression which can overwhelm his self-control. He is described as having a “readily activated temper” and is likely to be reactive to minor perceived external triggers.

Risk of Mr Paul committing a relevant violent offence in the future

[21]   A Court may only be satisfied that there is a very high risk of Mr Paul committing a relevant violent offence if  it is satisfied that he meets the  criteria in    s 107IAA, which relevantly 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.

[22]   The considerations set out in s 107IAA(2) are mandatory, and the Court must be satisfied as to each of those factors before it can determine there is a very high risk of Mr Paul committing a relevant violent offence.

[23]   For the purpose of assessing the mandatory statutory criteria, I have had the benefit of a report prepared by a clinical psychologist, Jayde Walker. Ms Walker undertook a number of interviews of Mr Paul in the period 11-18 January 2017.     Ms Walker also had access to probation and prison files. She undertook interviews with staff involved in  Mr Paul’s sentence management  and treatment.   Further,   Ms Walker consulted with Mr Paul’s current departmental psychologist, Mr P

Legutko, and importantly was able to access past psychological reports regarding Mr Paul’s treatment and assessment for parole.

Demonstration of intense drive, desire or urge to commit acts of violence

[24]   Ms Walker’s opinion is that Mr Paul’s historical behaviour suggests he has at various times presented with an intense desire or urge to commit acts of violence. The majority of Mr Paul’s violent behaviour has occurred within the context of a general anti-social lifestyle orientation, including gang affiliation where the use of violence has been condoned and reinforced. Violence has become a part of Mr Paul’s typical behaviour “repertoire” to solve problems, control others, and meet his needs. He is assessed as demonstrating a drive to commit acts of violence which is shown to have persisted notwithstanding some development of insight into the effect of his behaviour. Furthermore, Mr Paul in the past has disclosed that he has experienced feelings of satisfaction and enjoyment when engaging in violence.

The extent to which the offender displays extreme aggressive volatility

[25]   Ms Walker’s opinion is that there is reliable evidence supporting the conclusion that Mr Paul is likely to display extreme aggressive volatility in the community. That view was supported by Mr Paul’s criminal history and his institutional conduct whilst in prison which includes verbally threatening other inmates, intimidating behaviour, the use of weapons, physical aggression and property damage. It has been noted that more recently there have been observed examples of Mr Paul being better able to tolerate frustration. This is considered promising and demonstrating potential for increased behavioural control. However, this evidence of self-management has been subject to lapses in the face of acute stressors notwithstanding the highly structured and supervised environment of a prison.

The extent to which the offender has persistent harbouring of vengeful intention to one or more persons

[26]   Mr Paul has provided information which indicates that he continues to condone the use of violence as a means of retaliation and self defence. Mr Paul has reported intermittent periods of engaging in violent ruminative ideation which appears to have been in response to perceptions that he is at risk of harm from others. Ms Walker

opines that such thinking appears to occur in the context of transient stress-related episodes of paranoid thinking rather than representing the presence of specific persistent vengeful thoughts.

Any behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal

[27]   It is Ms Walker’s opinion that Mr Paul presents with a pattern of engaging in instrumental violence to meet his antisocial goals and perceived needs. The index relevant offending is an example of this. While the sentencing Court accepted there was no significant premeditation in terms of weapons or restraints having been brought to the victim’s home, Mr Paul disclosed having clear intentions of assaulting the victims in order to obtain drugs. That self-reporting together with other information suggests that Mr Paul has tended to engage in rudimentary planning of violent offences rather than extensive long-term planning.

The offender’s self-regulatory capacity

[28]   Mr Paul’s pattern of poor general self-regulation has been consistently documented throughout his adult life. Specific areas of poor self-regulation include substance use, emotional behavioural dysregulation, and a largely unstable itinerant lifestyle when in the community. There is consistent evidence of Mr Paul struggling with impulsivity and poor behavioural control with respect to interpersonal aggression. This has been demonstrated even within the confines of a prison environment, where he has demonstrated ongoing difficulties with regulating his behaviour which has required extensive external management and support.

The offender’s understanding or concern about the impact of his or her violent offending on actual or potential victims

[29]   In Ms Walker’s opinion, Mr Paul presents with a superficial capacity for “perspective-taking” and victim empathy. When discussing his behaviour, Mr Paul has a tendency to minimise the extent of harm and to externalise responsibility for his violent conduct. Mr Paul has verbalised regret and remorse for his violent behaviour with limited outward emotional display, however, his criminal history, institutional

conduct, and self-reported engagement in undetected violence indicates a long-term disregard for the safety and rights of others.

Other relevant considerations

[30]   As part of the recent assessment of Mr Paul various clinical risk factors have been taken into account and actuarial instruments utilised to evaluate the risk Mr Paul presents of committing further relevant violent offences while in the community.

[31]   Assessment of static predictors (factors unchangeable by individual effort) reveal Mr Paul to be at a very high risk of imprisonment within five years of release. Based on dynamic risk factors relating to Mr Paul’s violent behaviour and key treatment needs, he falls into the category of high risk and at the upper end of that high risk range. In his case, 20 of the dynamic items were identified as either moderately or strongly related to his current violence risk. Another assessment tool puts Mr Paul as having a higher probability of committing serious violent offences within two years of release into the community than other New Zealand offenders. This is consistent with the presence of interpersonal and affective traits such as a disregard for others, as well as unstable and antisocial lifestyle features. His capacity for change is considered as likely to be limited with his associated risk of serious violent reoffending likely to be sustained over a long period.

[32]   In addition to the conclusions drawn from these actuarial instruments there are other clinical factors relevant to Mr Paul’s risk. These factors include Mr Paul’s trauma and personality functioning which is considered to be associated with his experiences of severe physical and sexual abuse as a child, which appear to have resulted in clinical features consistent with post-traumatic stress symptoms. Mr Paul presents with hyper-vigilance and associated over-arousal, and persistent negative beliefs and expectations. This is considered to contribute to his reactive interpersonal style where his typical response to feeling vulnerable and threatened is one of impulsive aggression.

[33]   Mr Paul is described as having a “personality style” characterised by an instability in interpersonal relationships and identity, emotional inability, behavioural dysregulation, impulsivity, distrust and suspicion of others, poorly developed skills for

managing social challenges and resolving stressors, poorly developed empathy, and a willingness to violate the rights of others in order to prioritise his own needs. Mr Paul is said to present with multiple rehabilitative needs, and as having “responsivity barriers” to engaging meaningfully in, and benefitting from, rehabilitative efforts.

Summary

[34]   In Ms Walker’s opinion, Mr Paul is at a very high risk of committing a further relevant violent offence in the community. Furthermore, there is a very high risk that he will engage in relevant offending within 10 years of release. Mr Paul is considered likely to use violence to achieve desired goals and in response to interpersonally challenging and emotionally-charged situations, especially when he experiences paranoid ideation. The risk he presents is considered to be more imminent when he is under the influence of substances, or associating with antisocial peers.

Conclusion

[35]   I am satisfied on the information provided to the Court that Mr Paul has, or has had, a pervasive pattern of serious violent offending and there is a very high risk that he will in future commit a relevant violent offence.4 Mr Paul has a history of serious violent offending which dates back to when he was a teenager. He presents with multiple dynamic risks associated with his general criminality and violence, as well as antisocial and paranoid personality traits and significant responsivity and reintegrative issues. He has not made sufficient progress in treatment where he is able to manage the risk he presents without external monitoring and management.

Term

[36]   The supervision order may not exceed 10 years. The term of the order must, however, be the minimum period required for the purposes of the safety of the community. Mr Paul does not dispute that a 10 year period, as sought by the Chief Executive, would be appropriate.

4      Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162, 8 December 2004.

[37]   I have concluded that Mr Paul has a pervasive pattern of serious violent offending and remains at a very high risk of committing a relevant violent offence in the future. Mr Paul has not engaged in reintegrative activities during his current sentence and is likely to be poorly equipped to manage activities of daily living. It having been some 10 years since he has lived independently, Mr Paul does not have a well developed personal support network. He presents with a number of complex integration needs and is yet to develop the type of comprehensive risk management plan which would enable him to independently manage his very high risk of reoffending over the longer term.

[38]   For the reasons I have traversed, and consistent with the professional opinion of the risk Mr Paul presents to the community which will remain for the foreseeable future, I am satisfied of the continuing long-term need for him to be managed and supervised. As a result, I accept it is appropriate for the ESO to be made for a period of 10 years. Should Mr Paul take the view that he ought not during the 10 year period be further subject to the order, he may apply to the Court for the cancellation of the ESO on the basis he is no longer likely to commit a relevant offence.5

Intensive monitoring

[39]   At the time of making the ESO, I also made an order requiring the Parole Board to impose an intensive monitoring condition on Mr Paul.6 The making of that order was not opposed. There is no statutory test regarding the imposition of intensive monitoring, however, it will only be imposed where the risk is considered to be very high and where offenders are considered to need external controls to mitigate their risk. I accept that due to the very high risk that Mr Paul presents it is important that he be the subject of intensive monitoring for the full 12 month period, being the first 12 months of the ESO.

Setting of special conditions

[40]   Mr Paul has been subject to an interim supervision order with special conditions pursuant to s 107FA. Those conditions lapsed upon me making the ESO

5      Parole Act, s 107M.

6      Parole Act, s 107IAB(1).

with intensive monitoring on 8 June 2017. The imposition of special conditions is a matter for the Parole Board. Without opposition, I made an interim order pursuant to s 107IA imposing the special conditions to which Mr Paul was previously subject until such time as the Parole Board is able to determine which, if any, special conditions should be imposed.

Orders

[41]   The ESO I made on 8 June 2017 for the term of 10 years came into force on that day.

[42]   As a condition of the ESO I made a further order that Mr Paul be subject to intensive monitoring pursuant to s 107IAB of the Act for a period of 12 months from the date of the making of the ESO.

[43]   An interim order was also made pursuant to s 107IA imposing the special conditions to which Mr Paul was presently subject until such time as the Parole Board is able to determine which, if any, special conditions should be imposed.

Solicitors:

Raymond Donnelly & Co, Christchurch Michael Starling Barrister, Christchurch