Chief Executive of the Department of Corrections v Adams
[2024] NZHC 3961
•20 December 2024
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
See
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-547
[2024] NZHC 3961
UNDER Section 107F of the Parole Act 2002 IN THE MATTER OF
an application for an extended supervision order
BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
TAGO DAVID KEPA ADAMS
Respondent
Hearing: 20 November 2024 Appearances:
J Blythe and A Dawson for Plaintiff
J Murdoch and J McPherson for Defendant
Judgment:
20 December 2024
JUDGMENT OF BECROFT J
This judgment was delivered by me on 20 December 2024 at 2pm.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
Crown Solicitor, Auckland J Murdoch, Blenheim
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ADAMS [2024] NZHC 3961 [20
December 2024]
Table of Contents
Para No.
Introduction and result [1]
The application[3]
Corrections’ position[8]
Mr Adams’ position[10]
Overall approach to an ESO application and the evidence[15]
Mr Adams’ offending history[21]
Mr Adams’ “institutional” conduct and history since June 2018[38]
The statutory scheme for ESOs[52]
Is Mr Adams an “eligible” offender?[60]
Does Mr Adams have, or has he had, a pervasive pattern of
serious sexual or violent offending?[61]
Risk assessment that Mr Adams will commit a relevant sexual or
violent offence[75]
Is there a “very high risk” that Mr Adams will commit a relevant violent offence?[82]
Intense drive, desires, or urges to commit acts of violence[84]
Extreme aggressive volatility[86]
Persistent harbouring of vengeful intentions towards
one or more other persons 19
Planning of serious violent offences or limited self-regulatory capacity[88]
Absence of understanding or concern for impact on victims[95]
The relevance of actuarial risk assessments[99]
Conclusion as to very high risk of relevant violent offending[102]
Is there a “high risk” that Mr Adams will commit a relevant
sexual offence?[111]
Intense drive, desire, or urge to commit a relevant sexual offence[112]
A predilection or proclivity for serious sexual offending[117]
Limited self-regulatory capacity[122]
Lack of acceptance of responsibility or remorse or an absence of
understanding or concern about the impact of the offending[127]
Conclusion as to high risk of relevant sexual offending[133]
Overall conclusion[138]
Duration of the ESO [141]
Should an intensive monitoring order be made?[150]
What interim special conditions should be imposed?[159]
Varying the programme condition and residential restriction
interim conditions[162]
Interim intensive monitoring and interim electronic monitoring[167]
Cancellation of the “under 16” standard condition[176]
Observations on the Department of Corrections’ approach to
this application[184]
Why was the ESO application left so late?[185]
Lack of treatment so far for Mr Adams[192]
Treatment recommendations for Mr Adams[198]
Result[200]
Introduction and result
[1] It is often said that the true test of any society, is the way in which it treats its prisoners.1 This is an application for an extended supervision order. Such orders constitute significant restrictions on the rights of a released prisoner.2
[2] Here, I grant the application. But I cannot help but observe that perhaps more could have been done. First to ensure the prisoner had the opportunity to engage in meaningful rehabilitation while in custody. And second to advise him at an earlier stage about the likelihood of such an application being made.
The application
[3] The Chief Executive of the Department of Corrections (Corrections) applies for a 10-year Extended Supervision Order (ESO) against the respondent, Mr Tago David Kepa Adams under s 107F of the Parole Act 2002 (the Act).
[4] Corrections also applies under s 107IAC of the Act for an order requiring the Parole Board to impose an intensive monitoring order on Mr Adams for 12 months.
[5] Further, Corrections seeks three interim special conditions until the Parole Board can fully consider what special conditions need to be imposed. Those conditions are as follows:
(a)residential restrictions and programme conditions;
(b)electronic monitoring of Mr Adams’ residential restriction conditions; and
(c)an intensive monitoring condition, until the Parole Board can impose the 12-month intensive monitoring order referred to in [4] above.
[6]The application was first filed on 16 October 2023.
1 This quote is often attributed to Mahatma Ghandi, Oliver Wendell Holmes Jnr and sometimes Sir Winston Churchill, but it seems its provenance is contested. Fyodor Dostoyevsky apparently said something similar, “the degree of civilization in a society can be judged by entering its prisons.”
2 See Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484.
[7] Mr Adams is currently subject to an Interim Supervision Order (ISO) applying from 17 January 2024 until the final determination of this ESO application. The decision of Tahana J imposing the ISO provides helpful background information and should be read in conjunction with this decision.3
Corrections’ position
[8]Corrections considers that an ESO should be imposed because, in summary:
(a)Mr Adams has, or has had, a pervasive pattern of serious violent and serious sexual offending; and
(b)there is a very high risk that Mr Adams will commit both a relevant violent offence and a relevant sexual offence in the future.
[9] The maximum 10-year term for an ESO is sought on the basis of necessity for the safety of the community. It is said to be necessary considering the high-level and likely long duration of the risk posed by Mr Adams, as well as the seriousness of the harm that might be caused to any future victims.
Mr Adams’ position
[10] Mr Adams is represented by Ms Murdoch, a very experienced criminal barrister.
[11] Mr Adams does not specifically oppose the application. He realistically accepts that an ESO order is likely, but he emphasises he has already served his time.
[12] There is also recognition that a 10-year term is likely justified, although Mr Adams is significantly concerned by the probable duration and would rather it be less.
3 Chief Executive of the Department of Corrections v Adams [2023] NZHC 3720 [ISO decision].
[13] However, Mr Adams objects to the imposition of both an intensive monitoring condition and interim electronic monitoring together, even on an interim basis. He says he can accept one or the other, but not both. He is particularly concerned by the imposition of electronic monitoring. In his view, ankle bracelets can be prone to failure, including battery failure, and can lead to unjustified non-compliance charges.
[14] Mr Adams has had the help of a communications assistant during this hearing, Mr Mark Stephenson, who is known to this Court. He is highly qualified and very experienced and has been of great help to Mr Adams and the Court. On one occasion Mr Stephenson requested that a break be taken. Mr Adams was finding the complexities of the statutory scheme for ESO’s too complicated to grasp. I had some sympathy for him; as the relevant provisions are something of a labyrinth, even for lawyers.
Overall approach to an ESO application and the evidence
[15] The making of an ESO order does not depend on the lack of opposition or even consent. What is required is a careful assessment of all the evidence in light of the comprehensive statutory criteria. A considered judicial decision is necessary.4
[16] In this application, Corrections rely on four successive reports by a health assessor, Mr Charl Louw, a registered psychologist, who satisfies the criteria set out in s 4 of the Act.5 I have also been referred to a report from Mr Moon Lee, a registered psychologist, dated 17 May 2021, prepared for the Parole Board. Mr Adams also obtained his own independent report, dated 6 August 2024, from Dr Justin Barry- Walsh, an experienced and respected psychiatrist and specialist assessor.6 There is what I would describe as broad congruence between the report writers, for instance, as to the level of risk regarding future serious sexual offending. But there is a difference in approach and analysis by Dr Barry-Walsh to which I will return.
4 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [27]; citing Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32], approved in R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].
5 The four reports are dated 15 September 2023; 22 November 2023; 8 August 2024; and 20 October 2024.
6 Mr Louw and Dr Barry-Walsh also gave evidence before the Court and were both subject to considerable cross-examination.
[17] There are also two psychiatric reports prepared in 2018 by Dr Karayiannis and Dr Pillai for Mr Adams’ sentencing and various other Corrections reports.7
[18] However, it is important that I reach my own conclusions as to whether I am satisfied that the statutory preconditions for the ESO and the interim orders sought are fulfilled. The health assessor’s reports and other material are not determinative. As was observed by Heath J in Chief Executive of the Department of Corrections v Wrigley:8
While I have been assisted by their opinions, the question whether an extended supervision order should be made is a judicial judgment, to be reached on the basis of the totality of the evidence before the Court. It is the Court, not the health assessors, that bears the responsibility for making that determination.
[19] In McDonnell v Chief Executive of the Department of Corrections the Court of Appeal canvassed the ESO regime, as it was at that time, in some detail, noting:9
(a)the requirement that the Court be “satisfied” is the same as that used for preventative detention, as set out in R v Leitch.10 It is an exercise of judgement, not related to burden or standard of proof; and
(b)a sentencing Judge should give separate consideration to the appropriate term of an order.11
[20] I acknowledge the excellent submissions filed by Ms Murdoch, and Ms Blythe for Corrections. They have been of considerable assistance.
Mr Adams’ offending history
[21] Mr Adams is now 39 years old. He has informed psychologists he has a daughter born in 2008, and a son born in 2009 or 2010 when he was in prison.
7 See s 107H(2) of the Parole Act 2002, which entitles a Court to take into account any information it sees fit for the purpose of determining an application.
8 Above n 4.
9 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [71]–[75]. The approach set out in this decision has been adopted in numerous cases since.
10 R v Leitch [1998] 1 NZLR 420 (CA) at 428.
11 McDonnell v Chief Executive of the Department of Corrections, above n 9, at [96]. The nine-year term at issue in that case was upheld.
[22] He was adopted at birth, with his sister, by his biological father’s cousin. Mr Adams reports that he was significantly sexually and physically abused by adult family members since a young age. He reported to Dr Barry-Walsh that he felt rejected from the beginning of his life.
[23] His started using cannabis at age nine or 10 (which I observe is a typical onset age for young offenders) and was asked to leave school at the age of 10, with his schooling (with which he barely engaged) ending at age 13.
[24] Mr Adams appeared in the Youth Court for charges including burglary, assault with intent to injure, and arson. These offences are all considered “markers” of probable serious adult offending. In this case, that has proved tragically correct.
[25] Mr Adams has a lengthy adult criminal history, involving a range of violence and dishonesty offences. These are encompassed in 13 different sentencing appearances totalling 30 convictions. Mr Adams has offended relatively consistently since 2004, with breaks in offending only occurring while he was imprisoned.
[26] Mr Adams appeared on minor charges in the District Court while still a teenager. Then, in July 2005, at age 19, he was convicted of wounding with intent to injure and sentenced to two years’ imprisonment. Apparently, Mr Adams attacked a man with a smashed beer bottle believing the man had assaulted his girlfriend.
[27] He committed further, less serious, charges on his release, including common assault and burglary. However, in November 2011, he was convicted of two charges of wounding with intent to injure together with four charges of burglary (committed in July and August 2009) resulting in a sentence of seven years two months’ imprisonment.
[28] The two wounding with intent charges were each committed in the course of dwellinghouse burglaries. As Ms Blythe emphasised, they have striking similarities:
(a)The first victim was home alone with her children. Mr Adams entered the house, discovered the victim asleep, straddled her and punched her numerous times to the head before running from the house. As a result,
the victim was left severely traumatised and received bruising to both eyes, a graze on the corner of her right eye, swelling and numbness to her left cheek, a fractured left cheek bone, and a fractured left eye socket.
(b)Approximately three weeks later, Mr Adams again entered another residential address, and went into the bedroom. He walked straight up to the female victim and began punching her numerous times to the head. She, too, was left severely traumatised and received swelling and bruising to her face, a broken nose, five stitches to her forehead, a cut to the inside of her mouth, and a cut to her lip which required two stitches.
[29] It appears that he had previously burgled each of the two properties where the assaults were committed. Years later, Mr Adams admitted to having thoughts at the time of raping these victims.
[30] On 16 November 2016, Mr Adams was released from prison. He was subject to parole conditions until 9 May 2017.
[31] On the afternoon of 13 February 2017 (less than three months after his release), Mr Adams said he experienced rejection from his female acquaintance and initially planned to commit an armed robbery of a dairy. He was dissuaded from doing so when the proprietor’s wife offered him a cigarette to calm him down. Instead, he deliberately parked his car a short distance in front of a woman who was walking along the road in Mt Eden. When she walked past him, Mr Adams grabbed her and placed her in a headlock, then pushed her into the footwell of his car. He continued to choke the victim to stop her from screaming. When the victim continued to scream, he gouged her eyes with his fingers, which caused bruising to her forehead and haemorrhaging in both eyes. Mr Adams then drove away with the victim still in the footwell. In so doing, he touched her genital area on the outside of her clothing, then pushed his hand beneath the victim’s shorts and underwear and touched her in the skin area around the pelvic bone.
[32] The victim was only able to escape by grabbing the door handle and rolling from the car as it travelled down the road at speed. As a result, she sustained deep cuts to her right elbow and abrasions over her body.
[33] Two hours later, Mr Adams entered an address in Mt Eden and stole several pairs of female underwear. No other items were taken.
[34] When apprehended by the police, Mr Adams admitted he had abducted the victim with the intention of raping her. He later reported that, prior to the offending, he had fallen out with his female acquaintance and experienced rejection from his adoptive father.
[35] Mr Adams acknowledged that during a 2021 interview, that unmet sexual desires and a hostile attitude towards women in general influenced his offending. Probation case notes at the time indicated acute concerns regarding elevation in Mr Adams’ risk of offending. Two psychiatric reports were obtained to support the Crown’s application for preventive detention.
[36] Whata J sentenced Mr Adams to six years five months’ imprisonment for this offending.12 In the remainder of this judgment, I refer to this offending as the “index offending”.
[37] Preventive detention was declined. Whata J noted that the sexual component of this offending was a first and there were no proven previous acts of actual sexual violation. The Court ultimately concluded that it was premature to conclude that Mr Adams presented an unmanageable risk of re-offending. A lengthy prison sentence, combined with a minimum term and the prospect of extended supervision if he continued to present a risk on release, provided a sufficient protection for the community.
12 R v Adams [2018] NZHC 1386 [sentencing notes].
Mr Adams’ “institutional” conduct and history since June 2018
[38] While in custody, Mr Adams was named in 54 incident reports and found guilty on 17 misconduct charges. This culminated in a conviction for a charge of common assault involving a staff member in August 2022. Of particular concern, were the reports of Mr Adams threatening to kill staff and assaulting other prisoners and staff.
[39] Mr Adams was managed on a high or maximum-security classification for the overwhelming majority of this imprisonment. While in prison, in May 2021, Mr Adams was assessed by Mr Lee as having a high risk of further violent offending and at the top end of the above average risk of further sexual offending. Mr Adams made requests for counselling. He was placed in the segregation and re-integration unit. He underwent five sessions of individual treatment which were terminated prematurely due his transfer to a different prison.
[40] In his counselling, Mr Adams apparently admitted to having thoughts of sexually assaulting and raping victims.
[41] He was waitlisted for the special treatment unit: adult sexual offending. However, his maximum-security classification prevented him from attending that programme. He also “consistently presented” with low motivation and a continued preference for individual treatment.
[42] There was insufficient time for him to complete the Adult Sex Offender Treatment Programme (ASOTP). In September 2022, he was assigned a maximum- security classification.
[43] On 18 July 2023, Mr Adams was released on conditions into the community to reside at the Te Pā supported accommodation.
[44] In late July 2023, he first met with Mr Louw who was asked to provide a health assessor’s report as an ESO was being considered by Corrections.
[45] In September 2023, Mr Adams is alleged to have threatened another resident with a knife at the approved accommodation. He was arrested and charged with breaching his parole conditions, which was later withdrawn.
[46] As a result, Mr Adams was in custody from September to November 2023. He was evicted from his previous accommodation at Te Pā.
[47] On 15 October 2023, the application for an ESO with an intensive monitoring condition was filed.
[48] An ISO was imposed on Mr Adams on 15 December 2023. The Court declined to impose conditions of electronic monitoring or intensive supervision.
[49] Since the ISO was imposed, Mr Adams has been charged with two further offences.13
(a)In January 2024, Mr Adams is alleged to have committed an assault, with another, on a fellow inmate at his new approved accommodation, Kāinga Taupua. He was charged with injuring with intent to injure. The allegations involve punching and stomping to the head.
(b)He was also charged with breaching his ISO (non-attendance at a hui on 14 February 2024).
[50] He has been remanded in custody ever since, awaiting trial. There is a judge- alone trial scheduled for 19 February 2025 for the ISO breach, and on 12 March 2025 for the injuring with intent to injure charge.
[51] The detailed chronology of Mr Adams’ offending and recent institutional history tells its own story and, on its face, causes obvious and profound concern. However, this is not the test for granting an ESO. Many detailed statutory pre- conditions must be applied and satisfied. To that exercise I now turn.
13 The Department of Corrections did not seek to vary the ISO at the time because Mr Adams was not granted bail on those charges.
The statutory scheme for ESOs
[52] The purpose of an ESO is to protect members of the community from those who, following imposition of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.14
[53] As an initial precondition, it must be established that Mr Adams is an “eligible offender”.15 If so, there are then two broad steps.
[54] The first step is for the Court to determine whether an ESO should be made. If so, secondly, the Court must consider the term of the order—up to a maximum of 10 years.
[55] The first step depends on the Court being effectively satisfied of three components, having considered a health assessor’s report addressing the factors set out in s 107F(2A).16 They are as follows:
(a)the Court must be satisfied that Mr Adams has, or has had, a pervasive pattern of serious sexual or violent offending (s 107I(2)(a)); and
(b)the Court must make specific findings as to whether Mr Adams meets the complicated qualifying criteria as to risk set out in s 107IAA; and
(c)if those criteria are met, the Court must be satisfied there is the requisite risk of Mr Adams committing a relevant sexual or violent offence (s 107I(2)(b))—respectively a high risk or a very high risk.
[56] The Court of Appeal has emphasised the need for careful scrutiny when considering whether these requirements are made out. In Chisnall v Attorney-General, the Court issued a declaration that Part 1A of the Parole Act (dealing with ESOs) is inconsistent with the New Zealand Bill of Rights Act 1990 and the inconsistency is not demonstrably justified.17
14 Parole Act, s 107I(1).
15 Section 107C.
16 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
17 Chisnall v Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107 at [3(a)] and Chisnall v Attorney-General, above n 2.
[57] Following Chisnall, there must be “strong justification” for an ESO before its imposition. “Strong justification” is not met simply because the oversight would be desirable or beneficial to the offender as they transition to being in the community.18
[58] The high bar set by this criterion reflects the public safety justification that is required before a person is subjected to the limits on their freedom of movement and association that an ESO entails.
[59]I now turn to the various statutory criteria and address them in turn.
Is Mr Adams an “eligible” offender?
[60] It is not disputed that within the meaning of s 107C of the Act, Mr Adams is an eligible offender given his convictions for aggravated wounding (a relevant violent offence),19 and abduction for the purpose of unlawful sexual connection (a relevant sexual offence).20
Does Mr Adams have, or has he had, a pervasive pattern of serious sexual or violent offending?
[61] “Pervasive” should be interpreted in accordance with its plain meaning.21 In W v Chief Executive of the Department of Corrections, it was observed that the ordinary meaning of pervade, is “spread throughout, permeate”. It was held that the offender’s sexual offending was pervasive having comprised of “continued occurrences throughout his adult life”. It was also held that the term “serious” should be considered in light of its ordinary meaning, which includes “grave; … giving cause for concern …”. In W, the Court accepted that seriousness may be assessed retrospectively, and in particular with an awareness of an offender’s subsequent conduct.
18 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53]. See also Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [47].
19 Parole Act, s 107B(2)(h).
20 Section 107B(2)(r).
21 W v Chief Executive of the Department of Corrections [2019] NZCA 460 at [24].
Pervasive pattern of serious violent offending?
[62] It is not disputed that Mr Adams’ offending history demonstrates a pervasive pattern of serious violent offending. His recourse to violence has been consistent throughout his life since the age of 19 when he committed his first qualifying offence (wounds with intent to injure). The only extended breaks in his offending have coincided with periods of imprisonment. I agree that the timing of the index offending also speaks to the pervasiveness of Mr Adams’ offending pattern—he offended within three months of his release from prison while on parole conditions for the 2011 serious violent offending.
[63] I also accept that Mr Adams ongoing instances of violence during imprisonment, and allegedly on release conditions, provide further evidence of his pervasive pattern of serious violence. There are also clear similarities in terms of offending against female victims unknown to Mr Adams, who were vulnerable, which involved unprovoked serious violence and desires to rape the victims.
[64]In my view this pre-condition is unarguably satisfied.
Pervasive pattern of serious sexual offending?
[65] Corrections also submits that Mr Adams displays a pervasive pattern of serious sexual offending. I note he has only one serious sexual offending conviction—for the index offending in 2017. However, some years after his 2011 offending, he indicated he experienced a desire to rape each victim of his two burglaries. The health assessor considered that Mr Adams’ index sexual offence “was not an isolated incident but rather the culmination of sexual deviant fantasy and violent rumination based on an entrenched hostility towards women”.
[66] In this respect, Ms Blythe, for Corrections, points to the Court of Appeal confirmation that it is permissible to take into account both unproven offending and conduct that does not constitute an offence. It emphasised that any material the health assessor is able to rely on in their report “necessarily means the Court may equally
have regard to it. There would be little point in the health assessor having regard to it if the Court could not”.22
[67] Ms Murdoch strongly opposes the Corrections’ submission. In her view, Mr Adams has only one conviction for serious sexual offending. At the time of his sentencing in 2011, he was not considered to be a sex offender.
[68] Nevertheless, Ms Blythe for Corrections maintains that Mr Adams’ index offending must be viewed in the context of the two prior burglaries which we now know had clear sexual overtones.
[69] I understand Corrections’ argument. However, on its face, it stretches the meaning of pervasive here to rely on only one conviction and to suggest that convictions for offences that themselves carry no legal elements relating to sexual offending, can become sexual offending because many years later the defendant admits that at the time of the non-sexual offending, he was harbouring rape fantasies towards his victims. But it does not stretch it beyond breaking point.
[70] This matter was addressed in detail by Tahana J in the ISO decision. Consistent with W, she found it was appropriate to consider the 2011 offending as having a sexual element.23 She noted that Mr Adams, himself, sees the offending in that way.
[71] However, in the context of Mr Adams’ overall offending, Tahana J concluded that, “it is difficult to find that serious sexual offending is ‘spread throughout’ or ‘permeates’ the offending within the ordinary meaning of ‘pervade’. There was certainly the potential for serious sexual offending, but it did not eventuate.”24 This is also consistent with the view that Whata J expressed in sentencing Mr Adams:25
22 W v Chief Executive of the Department of Corrections, above n 21 at [32]. This is consistent with s 107F(3) of the Parole Act which allows the health assessor to take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not the conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct. However, the Corrections notes that the Supreme Court has granted leave for a leapfrog appeal from the District Court decision imposing an extended supervision order, with the question relating to whether conduct that has not resulted in a conviction can be taken into account: Seleni v Chief Executive of the Department of Corrections [2024] NZSC 58.
23 At [17].
24 ISO decision, above n 3, at [29].
25 Sentencing notes, above n 12.
[35] In the result, Mr Adams, I consider that it is too premature to conclude that you present an unmanageable risk of reoffending. Two factors, in particular, drive this conclusion. Your violent offending, while revealing a pattern, does not reveal a repeated pattern of sexual offending. Secondly, you have not benefitted from a treatment plan specifically directed to your needs.
[72]In those circumstances, Tahana J was not satisfied that Mr Adams has a
pervasive pattern of serious sexual offending.
[73]In all the circumstances, I am not prepared to take a different view.
[74] While I understand the argument for Corrections, I do not accept it in these circumstances. In any case this issue does not determine this appeal, given the clear pattern of pervasive serious violent offending.
Risk assessment that Mr Adams will commit a relevant sexual or violent offence
[75]There is a preliminary point to address first.
[76] I accept Corrections’ view that s 107I does not require that both an offender’s past pervasive pattern and future risk profile are exclusively violent or exclusively sexual, as the case may be. Put another way, a finding that there has been a pervasive pattern of serious violent offending, as I have concluded here, does not preclude the Court from considering whether there is a risk of future violent offending and/or future sexual offending.
[77] At first glance, I initially thought there was simply one “track” for consideration. If there was only a finding of a pervasive pattern of serious violent offending, then the risk assessment for future offending was limited simply to relevant violent offending. There is no such restriction in the legislation. A plain reading means that even if there is a finding only of a pervasive pattern of either serious sexual, or of serious violent offending (as here), the Court may nevertheless consider either or both types of future risk offending.
[78] Therefore, in Mr Adams’ case, I am able to look at future risk of offending of both violent and sexual offending even though he has a pervasive pattern only of serious violent offending.
[79] Finally, on this introductory point, I note that in terms of the risk of committing a relevant sexual offence, this depends on there being a “high risk”. But in respect of future relevant violent offending, the standard is “very high risk”. The difference in wording is significant.
[80] Having found Mr Adams has a pervasive pattern of serious violent offending, I now turn to the question in s 107I(2)(b)(ii) as to whether there is either or both a high risk that Mr Adams will in the future commit a relevant sexual offence or a very high risk that Mr Adams will in the future commit a relevant violent offence.
[81] Section 107IAA sets out the complex matters about which this Court must be satisfied when assessing the two types of risk. I turn to them each in turn beginning with whether there is a “very high risk” that Mr Adams will commit a relevant violent offence.
Is there a “very high risk” that Mr Adams will commit a relevant violent offence?
[82] Section 107IAA(2) provides that the Court may determine the requisite very high risk exists only if three pre-conditions are met:
(a)the offender 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 one or more other persons; and
(b)the offender 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)the offender displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
[83] I note that Ms Murdoch, responsibly in my view, does not seriously contend that these criteria are not established.
Intense drive, desires, or urges to commit acts of violence
[84] Mr Louw addresses this criterion but does not use its specific language. However, he concludes that Mr Adams has demonstrated a commitment to using violent acts from a young age, either instrumentally or to coerce others or reactively in response to emotional distress. Mr Louw notes that Mr Adams has readily and inconsistently used excessive violence against female victims. He verbalises an intention to harm his victim, to punish women in general due to his pervasive and overwhelming hostility towards women. The pattern of violence continued unabated while in prison.
[85] In my view, that amply satisfies and demonstrates Mr Adams’ intense drive, desire and urge to commit acts of violence. All three concepts are satisfied.
Extreme aggressive volatility
[86] Mr Louw concludes that Mr Adams’ habitual use of interpersonal violence is associated with a pronounced lack of self-control and volatility. When considering all his offending, his volatility is amply demonstrated by his brutal attacks to get his victims to “shut up” (when committing the burglaries) and in the index offending where he sought an opportunity to be violent as a means of managing his distress. Overall, I agree with Mr Louw that Mr Adams has displayed extreme and excessive aggressive volatility in various contexts.
Persistent harbouring of vengeful intentions towards one or more other persons
[87] Mr Adams index sexual offending was motivated by a hatred of women. He experienced hate towards his partner at the time for allegedly cheating on him and acted on overpowering ruminations to find a female victim to hurt. Mr Adams further
described thoughts of assaulting female victims to the point of losing consciousness and then raping them. All this, I agree, indicates a capacity to harbour vengeful intentions against females with an ability to project anger and resentment onto an unknown member of the public. Mr Louw’s conclusion, which I accept, is that Mr Adams “perceives women as a group as untrustworthy and a threat, harbouring great resentment towards them”. In my view, this certainly constitutes the harbouring of vengeful intentions.
Planning of serious violent offences or limited self-regulatory capacity
[88] Either of these two criteria need to be satisfied. In fact, in Mr Louw’s view they are both satisfied here. I accept that.
[89] Before the index offending, Mr Adams intended to violently assault a shopkeeper using a weapon. When he changed his mind, he actively engaged in a deliberate and planned process of driving around to find a vulnerable female victim to kidnap and sexually assault. He acted with a clear, premeditated goal, whereby he selected a victim, lay in wait, and attacked her with the intent to sexually violate and potentially kill her.
[90] I also accept in respect of the two previous assaults on women, committed in the course of a burglary, it appears Mr Adams had previously burgled the same houses. Mr Louw suggests this indicates some intention and victim selection.
[91] On the available information, I agree there is clear evidence of planned serious violence to meet a premeditated goal in different settings.
[92] Equally I accept that Mr Adams’ self-regulatory capacity is insufficient and there is very limited evidence to suggest he has adequate internal controls to mitigate his risk of relevant violent offending. From an early age, despite various interventions, he quickly and consistently returned to the same antisocial behaviour he displayed from a young age, which indicates a limited capacity for self-regulation and to conform with societal norms.
[93] Mr Adams, himself, has highlighted his own concerns regarding lack of self- control when he described how he was relieved when the police arrested him following his index offending as he feared causing further harm to members of the public.
[94]In my view, both these criteria are amply satisfied on the evidence.
Absence of understanding or concern for impact on victims
[95] I have paused on this issue because, as Mr Louw observes, to his credit Mr Adams has occasionally verbalised a sense of remorse and concern when considering what he was capable of. Mr Adams can evidence concern when he considers how he would feel if someone placed his daughter in a similar position.
[96] However, his offending, in Mr Louw’s view, appears to have been fuelled by self-interest in a capacity to set aside any concerns for the ramifications of his actions at the time. While he appears to care deeply about his mother and daughter, he does not hold the same level of respect or concern for other women. Mr Adams appears to lack compassion for others affected by his aggressive behaviour prior to and during imprisonment.
[97] His mother and daughter aside, I conclude, although this issue is not straightforward, Mr Adams displays an absence of both understanding for and concern about the impact of his violence on the women who he has attacked.
[98] In short, Mr Louw’s conclusion, which I accept, is that Mr Adams’ offending history provides clear evidence of him behaving intentionally and in a premeditated manner to satisfy his needs at the expense of considering the impact on his victim or others.
The relevance of actuarial risk assessments
[99] While this is not a statutory criterion, it is useful to record that Mr Louw “administered” the Violence Risk Scale (VRS) to assess Mr Adams’ violent behaviour and key treatment needs. I accept that Mr Adams was assessed as being in the high-
risk category. The estimated violence recidivism rate for this group, in a Canadian study, was 51.1 per cent.
[100] Further, Corrections submits the sexual violence actuarial risks, as well as Mr Louw’s overall assessment of Mr Adams as being at “very high risk” of further sexual offending, are also relevant to his risk of violence. I accept Mr Louw’s conclusion in this respect in that there are two factors not taken into account by the VRS—that is hostility towards women and deviant sexual fantasy and rumination, which should be properly considered as offence-related factors.
[101] Mr Louw also notes that Mr Adams may use violence to coerce and silence a victim before committing rape. On that basis, any future sexual offending is also likely to involve substantial and serious physical violence.
Conclusion as to very high risk of relevant violent offending
[102] Mr Louw initially assessed the overall risk as being only “high risk.” This would not satisfy the statutory criteria. However, in his third report of 8 August 2024 he changed his assessment and concluded that Mr Adams now poses a “very high risk” of committing further relevant violent offences.
[103] This “increase” in Mr Louw’s risk assessment, is based on the continuation of Mr Adams’ reported violent misconduct while in prison and his alleged violent offending against another resident while in a community residential setting. Mr Louw set this out in his third report and addressed Mr Adams’ behaviour since his second 22 November 2023 report.
[104] Mr Louw gave evidence in this hearing. He provided a further brief update on Mr Adams’ behaviour and circumstances since his 8 August 2024 report. Mr Louw referred to incidents while in prison including an alleged assault on a cellmate and an incident where items were found in a shared cell which included razor wire and a spring.
[105]In evidence he was asked:
Q:Do any of these recent developments impact on your risk assessment at all, or not?
A: I think in terms of just my opinion around his risk of relevant violent offending that I just think that it affirms my opinion as expressed in my addendum reports that he does pose a very high risk of violent offending and so I do think in terms of recency definitely ongoing concerns, and the need for as much support as possible for Mr Adams.
[106] I was initially concerned by this dissonance between the two reports. However, Mr Louw’s most recent report and his evidence in Court carefully addresses the requisite risk level, and I am satisfied it is established.
[107] I reach this conclusion, taking into account the comments of Dr Barry-Walsh. He also gave detailed evidence. I initially understood him to have two significant caveats to any finding of “very high risk “of relevant violent offending.
[108]First, he found it difficult to directly address the criteria. He said:
I don’t think that they well equate with a psychiatrist or psychological assessment and, for want of a better word, epistemology. They clearly are much more, are legal based, so I have some difficulty in translating that.
[109] Second, Dr Barry-Walsh was concerned at what he considered to be the conceptually problematic difference between “high risk” and “very high risk”. On that point, however, he accepted after further questioning, that whatever “high risk”, or “very high risk” means, and whether he even agrees with that as a term, nevertheless he accepted that Mr Adams’ risk has likely gone up from the time when he assessed him. Indeed, in cross-examination he agreed that despite his difficulties with the legal terminology, Mr Adams “would probably meet the test for physical violence as well— that is “very high risk”.
[110] In short, in assessing all the evidence and information, I conclude that Mr Adams meets the qualifying criteria set out in s 107IAA(2), that he is at very high risk of committing a relevant violent offence. Even if I am wrong on this conclusion, there is certainly a “high risk” that Mr Adams will commit a relevant sexual offence, to which issue I now turn.
Is there a “high risk” that Mr Adams will commit a relevant sexual offence?
[111] Section 107IAA(1) provides that the Court may determine that the requisite high risk exists only if it is satisfied that four pre-conditions are met, in that Mr Adams:
(a)displays an intensive drive, desire or urge to commit a relevant sexual offence; and
(b)has a predilection or proclivity for serious sexual offending; and
(c)has limited self-regulatory capacity;
(d)displays either or both of:
(i)a lack of acceptance of responsibility or remorse for past offending;
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
Intense drive, desire, or urge to commit a relevant sexual offence
[112] I accept Corrections’ submission that the real question is whether an offender has the particular characteristic such that it may manifest in the “right” set of circumstances. The pre-conditions are in s 107IAA(1) are expressed in the present tense but they do not necessarily need to be presently manifested at the time when the ESO is determined.26
[113] Mr Louw concludes that Mr Adams does display an intense drive to commit a relevant sexual offence. He notes that Mr Adams has experienced violent sexual fantasies both during his index offending, and his earlier burglary offending. Mr Louw also considers that the burglary of female underwear, immediately after Mr Adams’ failed abduction attempt, speaks to his overwhelming desire for immediate sexual gratification and an “intense deviant need”.
26 Chief Executive, Department of Corrections v Alinizi, above n 16, at [26]–[27].
[114] Repeated evidence of Mr Adams’ intense drive, desire and urge to commit a relevant sexual offence, includes:
(a)disclosure in 2016 that he was scared that he was going to burgle a house and there would be a woman asleep, and he would rape her;
(b)reports prepared for an application for preventive detention in 2018, which record that Mr Adams “fantasised about sexual practices involving humiliation and violence” and that “angry thoughts had turned into sexually violent thoughts on previous occasions”;
(c)his expressed awareness to the pre-sentence report writer in advance of his 2018 sentencing, of a distorted perception of the world, hatred for women, and a desire to offend both violently and sexually;
(d)at his High Court sentencing, when there was reference to Mr Adams’ desires to rape the victims of both his index offending and the earlier wounding/burglary offending; and
(e)the report produced to the New Zealand Parole Board by Mr Lee, in which Mr Adams reported he experienced sexual fantasies that involved violent acts and rape scenarios.
[115] I also accept Corrections’ submission that it is relevant that Mr Adams has consistently reported a hostile attitude towards women in general, in Mr Lee’s report, and that this anger is driven by perception that women are unfaithful and disloyal.
[116] In my view, and I understand this not to be disputed, Mr Adams plainly meets this criterion.
A predilection or proclivity for serious sexual offending
[117] I note that “predilection” and “proclivity” as set out in s 107IAA(1)(b) are used in contradistinction to each other.
[118] As was observed in Chief Executive of the Department of Corrections v Wrigley, the Court stated:27
The terms “predilection” and “proclivity” are used disjunctively in s 107IAA(1)(b). Neither term is defined in the Act. In context and using the dictionary definitions of the words: “predilection” means preference for or particular liking for some serious sexual offending, “proclivity” embraces an inclination toward something considered morally wrong, such as serious sexual offending.
[119] Mr Louw considers Mr Adams has a demonstrated a “predilection” or preference for serious sexual offending as demonstrated by his deviant sexual fantasies and the manner in which he approached at least three victims in the past, acting on his desires in the instant offending. Mr Louw observes that Mr Adams’ “… fantasies and actions indicate a preference for coercive and violent sex and seemed to intertwine violence and sexual gratification”.
[120] Mr Louw also concludes, that although Mr Adams has only been convicted of one sexual offence, his later disclosures indicate a sexual motive was at play during the burglaries and the attacks on two females previously. This, in Mr Louw’s view, together with the active role of mental rehearsal and fantasy, suggest that Mr Adams also has a “proclivity” for serious sexual offending.
[121] I accept that Mr Adams has both the requisite “predilection” and also, in this case, “proclivity”. This is not sensibly disputed by Ms Murdoch on behalf of Mr Adams.
Limited self-regulatory capacity
[122] Mr Louw notes Mr Adams’ risk of reoffending has been managed almost exclusively through imprisonment since he was 23 years old. Mr Louw considers that further offending in the community would have been a likely outcome had there been no imprisonment. Even whilst in prison Mr Adams has continued to display limited self-regulatory capacity, including misconducts. And, almost immediately after release, he demonstrated his limited capacity to, generally, regulate his behaviour.
27 Chief Executive of the Department of Corrections v Wrigley, above n 4.
[123] The observations by Heath J in considering the meaning of this term in Chief Executive of the Department of Corrections v Bradbury are helpful.28 He concluded that use of the word “limited” suggests that questions of degree are involved in this assessment. Further, “[t]he apparent nexus is between the existence of limited self- regulatory capacity (on the one hand) and high risk of committing a relevant sexual offence (on the other).”29
[124] I have considered this matter carefully. Mr Louw notes that with the exception of the index offending, Mr Adams’ violent sexual fantasies have not always led to sexual offending which suggests that Mr Adams has some degree of self-regulation of his sexual behaviour. However, it must be the case that his attacks on both burglary victims in 2010 and the index victim suggests that he does not have the sufficiently protective level of self-regulation referred to in Bradbury. Realistically, it must be considered as “limited”. Mr Louw also accepts that where substance abuse and emotional distress is present, Mr Adams offended even when faced with a victim’s obvious distress.
[125] Ms Blythe for Corrections notes that Mr Adams has regularly consumed cannabis since his return to the community in the past, and that should he relapse while in the community, this will further inhibit his self-regulatory capacity.
[126]All these conclusions I accept.
Lack of acceptance of responsibility or remorse or an absence of understanding or concern about the impact of the offending
[127] The question is whether Mr Adams displays either or both of first, a lack of acceptance of responsibility or remorse for previous offending; and/or second, an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims.
[128]I note I only need to be satisfied about one of these two factors.
28 Chief Executive of the Department of Corrections v Bradbury [2016] NZHC 2816 at [91]–[92].
29 At [91].
[129] In this respect Ms Blythe’s submissions are helpful. It is accepted that Mr Adams has previously expressed concern about his capacity for violence. He also self-reported he was relieved police arrested him after the index offending, so that he would not offend further.
[130] That said, his acceptance of his offending is “plainly too limited to mitigate the risks he poses”. His self-reflection must be balanced against his denial in 2021 of sexually touching his index victim during the kidnapping and his periods of low motivation to attend the Adult Sexual Offender Treatment Programme. This may not be the case now, but he has clearly voiced concerns about being perceived as a sex offender by his peers and instead opted to engage in individual psychological sessions.
[131] In my view, it is fair to conclude that Mr Adams has slightly, but not fully accepted, responsibility for his offending. But he has not consistently demonstrated a clear willingness to properly address the underlying causes of his offending, which is a necessary consequence of that responsibility or remorse for previous offending. By a fine margin I am satisfied this first limb of the test is established.
[132] Secondly, Mr Louw notes that the nature of Mr Adams’ index offending indicates he had low concern for the impact on his victims; he depersonalised the victim and did not hold any regard for her, instead punishing her for the animosity he was feeling towards his previous intimate partner. Therefore, I am satisfied that the second limb of this criterion is also met.
Conclusion as to high risk of relevant sexual offending
[133] The criteria set out in s 107IAA(1) are clearly established. Having stepped back and assessed the information and evidence presented by Corrections, and the evidence of Dr Barry-Walsh, I conclude that there is a high risk that Mr Adams will commit a relevant sexual offence. I am also fortified in this view given the conclusions by Dr Barry-Walsh. In his view, even given the mismatch he identifies between the legal terminology and advanced psychiatric concepts and practice, Mr Adams is at “high risk” of committing a relevant sexual offence. In this respect, his conclusion was subject to no significant caveats.
[134] I add, for what it is worth, that this conclusion is consistent with Mr Louw’s report as to actuarial risk assessment. The Automated Sexual Recidivism Scale— Revised (ASRS-R) is a computer scored static tool that estimates sexual recidivism. Mr Adams’ ASRS-R score places him the medium-high risk of further sexual offending.
[135] I accept Ms Blythe’s submission that the ASRS-R underestimates his true risk given the 2011 “non-sexual offences” that, as we now know, had clear sexual undertones. In my view, I am entitled to conclude that Mr Adams, in fact, presents a higher risk than the ASRS-R score would indicate.
[136] Similarly, the Violence Risk Scale—Sexual Offence Version (VRS-SO) measures static and dynamic risk factors predictive of sexual offending. In 2021, Mr Lee assessed Mr Adams as being at the upper end of the Level IVa “above average” risk category. Mr Adams had a score similar to those found to be in the 94th percentile for the sexual deviance subscale.
[137] I accept the submission that on either the 2023 or 2021 scoring, the VRS-SO results support a conclusion that Mr Adams is at high risk of serious sexual offending. This is supported by Mr Louw in his overall risk assessment which concludes that Mr Adams, in fact, imposes a very high risk of committing further relevant sexual offences in the community.
Overall conclusion
[138] I accept that s 107I(2) is framed in a way that leaves the court with a residual discretion—even when, as here, the statutory criteria are clearly satisfied. Equally, I accept Ms Blythe’s submission that it would be exceptional not to make an order when the criteria have been established. However, as I have previously noted, there must be “strong justification” for an ESO. In my view there is. This is far from a marginal case.
[139] I accept there are no other forms of supervision or intervention, other than an ESO, that would provide adequate monitoring and risk management in relation to Mr Adams’ significant established risks. I consider that it is appropriate to impose an ESO on Mr Adams.
[140] The only issues that remain for determination are the duration of the order, and the conditions that should be imposed as part of it. I turn to these issues now.
Duration of the ESO
[141] As to the duration of the ESO, the Crown seeks the maximum 10-year period. This is an issue for Mr Adams, although Ms Murdoch recognises that a significant period will likely be imposed. In this respect, I am not helped by the health assessor. While health assessors are not required to offer their opinion on the potential length of an ESO, the Court of Appeal has previously observed that health assessors should endeavour to assist the Court in this assessment.30
[142] I would have been assisted by the assessor providing a suggested term or at least more detailed discussion regarding the likely duration of the requisite risks.
[143] What Mr Louw did say in his reports is that Mr Adams presents with a very high risk of committing further relevant violent and sexual offending. He also opines that this risk is “likely to endure over the long term without suitable intervention or external risk management.” In general, that points to the maximum 10-year period.
[144] Perhaps sensing the lacuna in Mr Louw’s reports, during his evidence-in-chief, Ms Blythe questioned Mr Louw about the potential duration of an ESO. In clarifying what he meant in saying Mr Adams’ risk of relevant offending is likely to endure over the “long-term”, Mr Louw explained:
I would say long-term would be several years, probably from five to 10 years, so medium to long-term would be between five and 10 years but very difficult. I mean, in the risk group, if we look statistically, Mr Adams, in terms of his risk of sexual as well as sexual violence and violence, would be in a group where over a 10-year-period we would expect roughly 50% of individuals in that group to reoffend. Whether or not Mr Adams would or which side of the
30 Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60 at [28] and [29(a)].
50[%] he would be in would really, in my opinion, depend on how much support he gets as well as his willingness to engage in the help that is provided.
[145]When asked about the potential benefits of a 10-year ESO, Mr Louw observed:
Just from my perspective as a health assessor, I mean, I do think the benefit of 10 years would be, would definitely assist him but I’m just respectful f staying in my lane … I do think that based also on recent failures on the ISO that it will take time to really get to that point where Mr Adams can independently manage his risk, having internalised risk strategies where at the moment I do have concerns that he doesn’t have that ability.
[146]Dr Barry-Walsh recorded:
I am aware a relevant issue is the length of the minimum period for the ESO. That subject to section 107I(5) the Court needs to consider the level of risk posed, the seriousness of harm that might be caused to victims and the likely duration of risk. With regards to those issues, my own assessment and that of previous assessors indicate that there are grounds to have a considerable concern for his risk, and that any harm he may cause should he reoffend is likely to be serious. The key question seems to be the likely duration of any risk. This is an area that is difficult to consider, because of so much uncertainty as to what events may have unfold in the future, including further treatment and supervision, how Mr Adams may respond, and risk is highly dependent on context and contingency. Further, the literature indicates the confidence with which we can identify imminence and potential for further offending diminishes as the period over which we are asked to prognosticate lengthens.
[147] I appreciate that determining the appropriate duration of an ESO is an inherently difficult task. In this regard, neither the health professionals nor the Court have the benefit of a crystal ball. However, in my view, the reality in this case is that the 10-year period sought by the Crown is both appropriate and is the minimum that is required.
[148] Given the severity and likely long duration of the risks posed by Mr Adams, (as agreed by both Mr Louw and Dr Barry-Walsh); the seriousness of the harm he could cause to victims; and the considerable work that will be required to reduce those risks, the maximum period is necessary to ensure the safety of the community—as specified in s 107I(5). In these circumstances, I simply do not see how I could come to any other conclusion.
[149] I record that s 107M will allow Mr Adams, or the Chief Executive, to apply to the Court to cancel the ESO on the grounds that Mr Adams no longer poses a high risk of commitment a relevant offence within the remaining term.
Should an intensive monitoring order be made?
[150] Corrections applies for an order under s107AC, if the Court, as I have done, grants this ESO. Such an order requires the Parole Board to impose an intensive monitoring condition on Mr Adams.
[151] Intensive monitoring conditions have a maximum length 12 months from the beginning of the term of the order. The effect of that limit is that, regardless of when the Parole Board imposes conditions, the intensive monitoring condition cannot be longer than 12 months in total.
[152] An intensive monitoring condition requires an offender to be accompanied and monitored by an approved person for up to 24 hours a day. I understand this would be implemented by Te Korowai, which is located close to, but outside Rimutaka Prison. The condition will require that Mr Adams always be in the line of sight of the person monitoring (a staff member at the facility), apart from situations where there is an expectation of privacy.
[153] There is no statutory test or guidance to be met before an intensive monitoring order can be made. Previous decisions of this Court have found that the condition may be appropriate where:
(a)the risk is likely to be exacerbated if the transition from prison to the community cannot be safely managed without close and constant supervision;31 or
(b)external controls are necessary to manage risk.32
31 Department of Corrections v Miller [2017] NZHC 2527 at [16].
32 Department of Corrections v Parsons [2017] NZHC 229 at [31].
[154] Corrections submit that Mr Adams’ history of offending (and alleged offending) shortly after release from prison demonstrates his difficulties transitioning into the community. Notably, in Ms Blythe’s words, Mr Adams has a “complex risk profile” and is likely to cause harm “spontaneously to strangers” and his “index offending occurred whilst subject to parole, indicating the desirability of a heightened degree of supervision”.
[155] When granting the ISO, Tahana J declined to impose such a condition on the basis that Mr Adams had been in the community for some time without this condition and had not been charged with any offence. She granted leave for the Department of Corrections to apply to vary the ISO if Mr Adams’ circumstances charged prior to the determination of the ESO.
[156] His circumstances have now well and truly changed. Since the ISO was imposed, Mr Adams has been charged with two further offences as previously described at [49], before.
[157] I understand Ms Murdoch’s submission that Corrections is being generally heavy-handed in applying for this further order. However, in my view, for the reasons advanced by Ms Blythe, the order is justified. Mr Adams’ history clearly demonstrates his profound difficulties in transitioning back into the community. Mr Adams will benefit from this additional order because it will assist in his transition, and it will allow management and mitigation of the risk of further serious offending.
[158] I grant the application for the maximum 12-month period. The demonstrated transition risks are just too serious to allow any shorter term.
What interim special conditions should be imposed?
[159] It is for the Parole Board to set the special conditions of an ESO, not the Court. However, when the Court makes an ESO, it may impose any special condition on an interim basis on the application of the Chief Executive.33 Interim orders can only be made if the Court is satisfied that there may not be sufficient time before the order
33 Section 107IA(1).
comes into force for the Parole Board to determine what, if any, special conditions should be imposed.
[160] If the Court orders interim conditions, it can also suspend or vary any special conditions that currently apply to an offender.34 Counsel agree that this includes the special conditions under Mr Adams’ current ISO. This is because under s 107L(2A), any special conditions to which an offender is subject at the time of the ESO order, (such as the ISO special conditions) continue in force for three months after the ESO comes into force or until the Parole Board makes a decision regarding the imposition of special conditions.
[161] The interim special conditions sought by Corrections are disputed: relating to interim intensive supervision and electronic monitoring. There is also a separate question as to whether it is possible to suspend the standard condition prohibiting contact with anyone under the age of 16. I discuss each of these three conditions in turn. But first I turn to one agreed variation that needs to be made to two of the existing special conditions of Mr Adams’ ISO
Varying the programme condition and residential restriction interim conditions
[162] Mr Adams, although he has been in custody on his outstanding charges since February 2024, will be released at some stage. It is not clear when that will happen. But when it does, the current special conditions of his ISO provide for his residence at, and participation in, rehabilitation programmes offered by Kāinga Taupua. However, the circumstances giving rise to his outstanding charges, mean that he is no longer able to reside there. Instead, there is an available address for Mr Adams at Te Korowai adjacent to Rimutaka Prison.
[163] Corrections seeks the variation of Mr Adams’ programme and residential conditions, which I approve, and set out at [204] below. All that changes is the location, not the substance of those special ISO conditions.
34 Section 107IA(3)(b).
[164] As I understand it, at one stage Ms Blythe submitted that there was no explicit power to vary the existing special conditions of an ISO. That may be the case before an ESO is granted, although Johnstone J, for cogent and compelling reasons, previously concluded that such a power could be implied.35 I agree that it would be almost non-sensical if such a power was not available.
[165] But that issue does not arise here. There is no problem given the ability to vary existing special conditions if, at the time of making an ESO order, the Court also imposes interim special conditions under s107IA(1).36
[166] In any case, if there is any doubt about the Court’s power to do so, I am prepared to impose the new conditions as fresh interim special conditions under s 107IA(1) and to cancel the two existing special conditions of the ISO that specify Kāinga Taupua as the residential address.
Interim intensive monitoring and interim electronic monitoring
[167] Corrections seeks both an interim intensive monitoring condition and an interim electronic monitoring condition to Mr Adams’ residential restrictions condition. It is agreed there is power to impose each condition because they are the types of special conditions that can be imposed by the Parole Board under s 107K, which in turn references back to s 15.
[168] Corrections considers intensive supervision to be so important, that it should be put in place immediately, on an interim basis, to apply when Mr Adams is released from custody rather than there being a wait period until the Parole Board can consider imposing it. I understand, given the Christmas and New Year break, that it may be some time before the Parole Board can attend to the matter.
[169] However, the problem for Corrections, as it honestly admits, is that it does not have the personnel resources to ensure 24-hour monitoring as would be envisaged by the special condition.
35 Pani-Marsden v Chief Executive of the Department of Corrections HC Auckland CRI-2022-404- 428, 15 May 2024 at [12].
36 See s 107IA(1)(3)(b).
[170] Conscious of Mr Adams’ desire and need to leave Te Korowai on some occasions for authorised trips, visits, physical exercise and counselling, Corrections knows that these trips will not always be able to be supervised. Therefore, to ensure maximum freedom for Mr Adams, Corrections seeks an electronic monitoring condition, so that it can monitor where he is.
[171] In this way, the application for the two interim special conditions is tied together: in recognition of Corrections resource deficiencies and the need to promote Mr Adams’ freedom of movement where that is possible and necessary. The electronic monitoring will be a deterrence for Mr Adams from breaching his conditions to reside at Te Korowai but will allow him some freedom when intensive supervision is unavailable.
[172] Mr Adams says he can accept one or other interim special condition, but not both. That, I clearly understand. I acknowledge his reservations, genuinely held, regarding electronic monitoring equipment. However, without both conditions, Mr Adams would be much restricted in his travel outside of Te Korowai.
[173] In these unusual circumstances, the two interim special conditions, imposed together, will in fact promote Mr Adams’ reintegration and rehabilitation not, as he fears, restrict it.
[174] I am, of course, concerned that Corrections are applying for an order (interim intensive monitoring) when they cannot effectively implement it. However, after consideration, I think it appropriate and fair to both parties, that the two-fold interim orders be made.
[175] After all, Mr Adams is currently charged with breaching his ISO, has a previous conviction for breach of release conditions, and committed his index offending while on parole. The two-fold interim conditions are justified in these circumstances.
Cancellation of the “under 16” standard condition
[176] Given an ESO is being granted, Mr Adams will be subject to the standard conditions set out in s 107JA of the Act. These include a condition that Mr Adams is not to associate with, or contact, anyone under the age of 16, without the prior written approval of his probation officer.
[177] Mr Adams seeks that I remove this standard condition so that he may have contact with his daughter, and his sister’s children. Mr Adams very much enjoys this contact and says it helps him a lot. Ms Murdoch highlights that family support is an important motivating factor his rehabilitation, as emphasised by Dr Barry-Walsh.
[178] I note that Tahana J was prepared to suspend this standard condition from the ISO on the basis that:
[72] I consider that the standard conditions of an ESO should apply except that I decline to impose the condition of non-contact with persons under 16 years old. Mr Adams has no history of offending against persons under 16 years old. Further, the fact that the offending occurred in circumstances where children were in the residence is not a basis for imposing this condition because the children’s presence was not a factor in Mr Adams’ motivation to offend.
[179] During the hearing, Ms Murdoch submitted the Court had the jurisdiction to cancel this condition pursuant to s 107IA(3)(a) of the Act. However, Corrections having reviewed the legislation and case law on the issue, now submits that the Court does not have jurisdiction to suspend or vary this condition.
[180] Section 107IA(3)(a) only allows the Court to suspend a standard condition through an order under subsection (1) of that section. Such an order can only be made on the application of the Chief Executive. Given the Chief Executive has not applied for the under-16s condition to be suspended in this case, there is no jurisdiction for the Court to do so.37 I agree. That is rather a technical approach. But the reality is that Corrections does not want the condition cancelled, and will not support or make the necessary application.
37 This was the approach taken in Department of Corrections v Kepu [2022] NZHC 2044, where it was held that the Court could not cancel an electronic monitoring condition imposed pursuant to an ISO on the application of the offender, rather than Corrections.
[181] If I am wrong, Corrections submits that nonetheless that there are good reasons for this condition to remain. This standard condition represents a deliberate decision by Parliament to recognise that offenders at high risk of serious violent or sexual offending, should not contact or be left alone, unsupervised, with children under 16. Mr Adams submits he has not offended against under 16-year-olds and there is no suggestion of that risk. Nevertheless, Parliament has not imposed this condition without reason. It is relevant that some of Mr Adams’ previous violent offending (during the burglaries) was committed while children were in the house. Corrections submit that his high risk of offending, in combination with that history, supports that the standard condition should remain.
[182] I acknowledge this condition will be difficult for Mr Adams and his family. Ms Murdoch also informed me that the prison authorities have not allowed Mr Adams to speak to his children, or those of his sister, on the telephone while in prison. He regards this as most concerning. This should be a matter that is resolvable with the approval of the relevant probation officer. Clearly, according to Dr Barry-Walsh, it is something that will assist in his rehabilitation.
[183]I decline to cancel or suspend that condition, even if I have the power to do so.
Observations on the Department of Corrections’ approach to this application
[184] I cannot leave this application without making three observations regarding the way in which Corrections have approached this ESO application and Mr Adams while he was in custody. On the face of it, Corrections appears to have missed an opportunity to engage Mr Adams in the rehabilitative treatment that might have mitigated the need for, and at least the length of, an ESO. I acknowledge that these may be individualised issues. To the extent they point to deeper systemic problems, then they clearly require attention.
Why was the ESO application left so late?
[185] It seems unexplained why Corrections took so long to initiate steps for an ESO—effectively after Mr Adams had served the entirety of a second very long prison sentence.
[186] This delay has obviously caused Mr Adams significant concern and distress. It is an underlying refrain in his comments to various report writers. It is highlighted by Dr Barry-Walsh and emphasised by Ms Murdoch in her helpful submissions. In this respect, Dr Barry-Walsh in his evidence concluded that Mr Adams still experiences:
[R]eally a sense of both helplessness and frustration came through. He felt badly and unfairly judged. He felt aggrieved, is probably a way of putting it, in the circumstance he himself in at the time that I interview him. I don’t know how much he shifted from there, but that was how he presented to me at that time.
[187] Dr Barry-Walsh also highlighted that the application was served on Mr Adams when he had already been released into the community.
[188] Ms Murdoch emphasises that these criticisms of Corrections are well and truly justified. She notes that for an offender such as Mr Adams who Corrections considers to be at high to very high risk of further sexual and violent offending, it is inexplicable that he be released on his statutory release date without issue, and without the ESO being specifically foreshadowed and with the application not being well down the track.
[189] Ms Murdoch says it is only a matter of luck that he did not reoffend, as he did within a few months of release in 2016, after then having told Corrections he was not ready to be released.
[190] Ms Murdoch also complains that there is no explanation as to why Corrections left it so late to claim Mr Adams’ current risk of sexual and violent offending jeopardises public safety, such only that a 10-year ESO will alleviate it. Mr Adams was released on 18 July 2023. By the time the application was served on him, on 15 October 2023, he had been living in the community on conditions for some months.
[191] As Ms Murdoch emphasises, if the likelihood of an ESO application is canvassed with prisoners earlier in their sentence, that might be enough to motivate them to complete relevant treatment programmes. I would have thought that the importance of completing such programmes ought to be conveyed to high-risk
offenders at an early stage with adequate time to allow them to complete the programme. Ms Murdoch’s concerns and criticisms would seem to be well placed.
Lack of treatment so far for Mr Adams
[192] A continuing theme in Ms Murdoch’s submission is, despite Mr Adams’ requests for rehabilitative help while in custody, there was a lack of clear communication from Corrections and a commitment to individualised rehabilitation. In short, Ms Murdoch complained that there appears to have been a lack of early and focussed treatment for Mr Adams while in custody. Ms Murdoch closely cross- examined Mr Louw regarding Mr Adams’ indications that he wanted treatment but did not receive it.
[193] For instance, from October to November 2020, he underwent five sessions of individual treatment with an appointed psychologist. That treatment was then terminated due to his transfer to Paremoremo Prison. There was a recommendation from the psychologist that there may be value in exploring Mr Adams’ eligibility for the “Sex Offenders Special Treatment Unit for Violent Offending”. There was also a recommendation for individual psychological treatment to address outstanding responsivity barriers. Mr Louw accepted that the recommended further individual psychological treatment, both to address outstanding responsivity barriers and to provide further support in managing aggressive behaviour, did not take place. A further opportunity to engage in treatment was cut short because of staff shortages. Mr Adams was waitlisted for the Adult Sexual Offenders Treatment Programme, but there was not sufficient time left on his sentence to complete it.
[194] Dr Barry-Walsh also emphasised that there were clear indications of responsivity by Mr Adams particularly in relation to the need to maintain links with his family and his Māori culture. In his view, given there was a time in prison when Mr Adams was “very desperately asking for help”, the fact he did not receive that may explain his reluctance to accept the ESO now. He concluded the delay in notifying Mr Adams of the ESO, together with the lack of treatment, has created “a sense of disillusionment and frustration and mistrust.”
[195] These all seem to be, at least with the benefit of hindsight, important steps that one would have thought would have been taken while Mr Adams was in prison. Yet very little seems to have been done. I say this even though Mr Adams’ behavioural management proved problematic while in prison, his security classification increased, and he was moved between prisons. And. of course, these changes were often of his making and his own violent behaviour. Nevertheless, such challenges need not preclude quality treatment and rehabilitation.
[196] Tahana J acknowledged Mr Adams’ frustration in the context of the ISO, criticising Corrections for not giving due notice of the application:
[76] I acknowledge Mr Adams’ frustrations in circumstances where he has been incarcerated for close to 12 years (other than the three-month period in 2017) and has asked for help since 2016 (seven years ago) but has still not received the rehabilitation he requires to address the risks of his offending. Mr Adams had a harrowing childhood and suffered sexual and violent abuse. He needs all the help he can get. By revealing his innermost thoughts, Mr Adams has shown self-awareness that should be acknowledged and then addressed through targeted rehabilitation. Mr Adams has not sought to hide his thoughts or deny that what he has done is wrong. Further, Mr Adams chose to serve his full sentence terms and it is not unreasonable that he anticipated by doing so, he would be in a position to return to the community. It is unfortunate that the application for an ESO was not discussed with Mr Adams early in his sentence so that he understood the importance of participating in the ASOTP [the Adult Sexual Offender Treatment Programme]. Mr Adams will now be subject to restrictions for a longer period than he anticipated because he did not receive the rehabilitation he requires.
[197] This is of significant concern and became a major issue in the ESO hearing. I hope that in my comments and the record of Mr Adams’ treatment, or lack of it, can be made available to the Chief Executive of the Department of Corrections. Otherwise, it seems to me, there is a real risk those at very high risk of violent and/or sexual offending may complete their sentences without any meaningful rehabilitative treatment. To make matters worse, in this case, the treatment and supervision contemplated by an ESO was not even foreshadowed with Mr Adams until after he left prison.
Treatment recommendations for Mr Adams
[198] Mr Louw was clear that his role was to assess Mr Adams in light of the statutory criteria for an ESO. He maintained he was not required to make treatment
recommendations. If that is the extent of his brief, I accept it. However, he would seem to be in a uniquely qualified position to make recommendations given his knowledge of Mr Adams. Probably, no one knows more about him. And in cross- examination, he agreed with virtually all of Ms Murdoch’s suggestions regarding the methods by which his responsivity can be broken down, the advantages of working with Mr Adams with his close family and interacting with his Māori culture, and the type of rehabilitative treatment that could be provided. I hope any views he may have on these topics can be made available to the Parole Board.
[199] Dr Barry-Walsh’s report would also seem extremely valuable with some significant insights as to how Mr Adams might be meaningfully engaged in future counselling. Ms Murdoch and Dr Barry-Walsh, consented to the report being made available to Corrections and the Parole Board. That report should therefore be made available promptly.
Result
[200] The Chief Executive’s application is granted. The ESO comes into force on the date this judgment is issued.38 The ESO is to apply for a period of 10 years.
[201] Mr Adams is automatically subject to the standard conditions set out in s 107JA of the Parole Act.
[202]The special conditions of the ISO continue in force by operation of law.39
[203] I make an order pursuant to s 107IAC requiring the Parole Board to impose an intensive monitoring condition on Mr Adams for 12 months.
[204] I order that two of the current special conditions of the ISO be varied as follows. For the avoidance of doubt, these variations are also interim special conditions of the ESO and the current special conditions of the ISO which refer to Kāinga Taupua are cancelled and replaced:
38 Section 107L(1)(c)(i).
39 Section 107L(2A).
(a)To attend, participate in and complete a reintegration and rehabilitation programme as directed by your probation officer and administered by Te Korowai, for up to 12 hours per day, between 8.00 am and 8.00 pm. To abide by the rules of the programme to the satisfaction of a probation officer and allow an approved person to supervise and monitor you as necessary to ensure your attendance at classes or participation in other activities associated with the programme;
(b)To comply with the requirements of partial residential restrictions and remain in the area defined by a probation officer at Te Korowai between the hours of 8.00 pm and 8.00 am daily unless you leave the residence:
(i)To seek urgent medical or dental treatment;
(ii)To avoid or minimise a serious risk of death or injury to you or any other person;
(iii)For humanitarian reasons approved by a probation officer; or
(iv)With the prior written approval of a probation officer in order to:
1. Comply with special conditions,
2. Seek or engage in employment; or
3. To attend training or rehabilitative or reintegrative activities or programmes.
[205]I impose two further interim special conditions under s 107IA as follows:
(a)To submit to electronic monitoring as directed by a probation officer in order to monitor Mr Adams’ compliance with any conditions relating to his residential restrictions. To comply with the requirements of electronic monitoring and provide unimpeded access to Mr Adams’ approved residence by a probation officer and/or representatives of the
monitoring company for the purposes of maintaining the electronic monitoring equipment as directed by a probation officer; and
(b)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.
Becroft J
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