Chief Executive of the Department of Corrections v Cash
[2024] NZHC 1662
•21 June 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2024-419-54
[2024] NZHC 1662
BETWEEN THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
TAUKIRI CASH
Respondent
Hearing: 20 June 2024 Appearances:
A Alcock for the applicant D Allan for the respondent
Judgment:
21 June 2024
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 24 June 2024 at 3.10 pm
Registrar/Deputy Registrar
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CASH [2024] NZHC 1662 [21
June 2024]
[1] Mr Cash was sentenced to four years and six months’ imprisonment for kidnapping, indecent communications with a young person under 16, attempted sexual connection with a child under 12 and doing an indecent act (x 3). He served the full term of imprisonment and was released from prison on 21 December 2023, subject to special conditions for six months. Those conditions expired on 20 May 2024.
[2] On 17 May 2024 (three days before the conditions were to expire), the Chief Executive of the Department of Corrections (Corrections) applied for an extended supervision order (ESO) in relation to Mr Cash. Because Mr Cash’s release conditions were about to expire, Corrections applied at the same time for an interim supervision order (ISO).
[3] This judgment deals only with the application for an ISO. Mr Cash is prepared to consent to an ISO (notwithstanding that he considers that the application for an ESO is weak), so long as two of the conditions proposed by Corrections are changed. Those conditions concern where Mr Cash is to reside and whether he may possess an internet capable device. I have to decide what those two conditions should be.
Background
[4] Corrections says, with reference to the criteria for an ISO in the Parole Act 2002 (considered in more detail below), that Mr Cash has, or has had, a pervasive pattern of serious sexual offending and there is a high risk he will in future commit a “relevant sexual offence”. Corrections’ application relies on Mr Cash’s criminal history and a health assessment report from Dr Nick Wilson, a clinical psychologist.
[5] Mr Cash was born in September 1991. He had a limited criminal history, with no sexual offending, until a two-month period spanning 26 August to 31 October 2018. In that period he committed the offending referred to in paragraph [1] above. I adopt the sentencing Judge’s summary of that offending:1
[7] On 26 August 2018, you attracted the attention of a group of three girls aged 10 or 11 walking on the footpath, and showed them a picture of a
1 R v Cash [2020] NZHC 2629. The Court of Appeal allowed an appeal by Mr Cash against sentence, but adopted the same summary of his offending: Cash v R [2021] NZCA 369 at [3].
naked woman on your mobile phone. They became upset and ran home. This was your indecent communication offence.
[8] On 31 August 2018, you drove up to a group of five girls, aged between five and eleven, selling lemons on the side of the road. You got them to approach you by offering them money. Once close to you, you exposed your penis to them. This was the first of your three indecent act offences.
[9] On 5 October 2018, children were playing on the footpath outside their home. One, aged four, was riding her scooter along the footpath a short distance from her siblings. You approached her in your car and offered her money. When she was close to you, you pulled her inside your car and drove away. The alarm was raised by her siblings’ screams, alerting their mother. You knew you had been seen by the mother, and with your escape impeded by heavy traffic, you stopped a short way up the road and pushed the girl out of the vehicle before fleeing. This is your kidnapping offence.
[10] On 15 October 2018, in your car, you followed a nine-year-old girl walking home from school. You drove past her, turned around, and then parked a short distance ahead of her. As she walked past you, you pointed the camera of your cell phone at her. She saw you masturbating. You continued to follow her. She became frightened and ran home. This is the second of your three indecent act offences.
[11] Your third indecent act offence occurred on 29 October 2018, when you approached another nine-year-old girl walking along a footpath. From your car, you told her you had a special video you wanted to show her. As she reached your vehicle, you sat up in your seat, exposing your penis to her.
[12] The last offence occurred on 31 October 2018. You drove up to a ten- year-old girl standing at the end of her driveway, and asked for directions. As she talked with you, you held up your mobile phone and showed her sexual images. You unzipped your pants and showed her your penis, asking if she wished to touch it. She became frightened and ran into her house. This is your attempted sexual conduct offence.
[6] Dr Wilson interviewed Mr Cash on 17 January 2024 and 14 February 2024, for a total of four hours. Dr Wilson produced a detailed report dated 21 March 2024. Given Mr Cash’s consent to an ISO (subject to issues with two conditions), I need only refer to some aspects of Dr Wilson’s report.
[7] Dr Wilson noted that Mr Cash pleaded guilty to the sexual offending but then attempted (unsuccessfully) to vacate his plea prior to sentencing. Dr Wilson said Mr Cash’s difficulty accepting his guilt became a pattern across his imprisonment. Mr Cash had declined to be interviewed by a psychologist prior to the assessment by Dr Wilson. Dr Wilson said Mr Cash made a significant move during the assessment in that he felt able to talk about his deviant behaviour. Mr Cash requested, after his
first interview with Dr Wilson, to engage in treatment with a psychologist (having declined all such treatment opportunities while imprisoned).
[8] Dr Wilson said that those with similar exhibitionist offending (to Mr Cash’s) form a compulsive urge triggered by some emotional stress that they often feel unable to resist. He considered the offending was driven by sexual deviancy and poor emotional management. He said the short timeframe within which the offending occurred was unusual. Dr Wilson’s opinion was that it indicated an almost addictive quality but that the discrete period of offending indicated the presence of factors that had quickly destabilised Mr Cash. In that regard he noted that at that time Mr Cash had lost his residence, was facing unrelated burglary charges, had employment concerns and had ended a conflicted intimate relationship.
[9] Dr Wilson considered Mr Cash to present a “moderate-high” rather than “high” risk of committing a further relevant sexual offence while in the community. He said Mr Cash remained at risk in the short to medium term owing to his untreated status, but if he was able to re-establish some stability, have some assistance with managing stressors and engage in treatment that addressed his poor emotional management, it was feasible his risk would reduce.
[10] Dr Wilson also addressed the specific criteria in s 107IAA of the Parole Act. I now turn to the relevant provisions of that Act.
Jurisdiction to make an ISO
[11] Before making an ISO, the court must be satisfied, on a provisional basis, that the statutory criteria for making an ESO are established.2 Those criteria are set out in s 107I of the Parole Act. A court may make an ESO if the court is satisfied, having considered the matters addressed in a health assessor’s report, that (relevantly to this application):
(a)the respondent has, or has had, a pervasive pattern of serious sexual offending; and
2 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228.
(b)there is a high risk that the respondent will in future commit a relevant sexual offence.
[12] Section 107IAA then sets out matters of which the court must be satisfied before determining that there is a high risk that the respondent will commit a relevant sexual offence:
(1)A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—
(a)displays an intense 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; and
(d)displays either or both of the following:
(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.
Should an ISO be made?
[13] Despite Mr Cash’s conditional consent to an ISO, the Court can make an ISO only if it is satisfied (on a provisional basis) that the above statutory criteria are established.
[14] Dr Wilson expressed mixed views on some of the criteria. Ultimately, however, it is a matter for the court to assess, considering all of the circumstances, including the health assessor’s report. I am provisionally satisfied of each criterion:
(a)Mr Cash’s offending in August to October 2018 establishes a pervasive pattern of “serious sexual offending” (a term that is different from the term “relevant sexual offence”). Each of the offences, including the kidnapping, was sexual in nature. Each was serious, given the age of
the victims. The offences were also collectively serious, given the repeated offending over a short space of time.
(b)Although only one of his offences (the attempted sexual connection with a child under 12) was a “relevant sexual offence”, all the offending evidenced an intense drive to commit a relevant sexual offence. Based on Dr Wilson’s report, I am provisionally satisfied that Mr Cash continues to display this intense drive.
(c)Mr Cash’s predilection or proclivity for serious sexual offending is likewise shown by his 2018 offending.
(d)Dr Wilson opines that Mr Cash has a pattern of poor general and sexual self-regulation. That is reflected in Mr Cash’s 2018 offending and in his failure (until very recently) to accept treatment.
(e)While Mr Cash now appears to be accepting some responsibility for his past sexual offending, Dr Wilson considers (rightly in my view) that he has only a superficial understanding of the impact of his sexual offending on his victims.
[15]I am therefore satisfied that I should make an ISO in relation to Mr Cash.
What should the conditions be?
[16] The conditions of an ISO should be the least restrictive conditions necessary to adequately mitigate the risk of sexual offending until the ESO hearing. I now turn to the two conditions that are in dispute.
Residential condition
[17] Corrections seeks a condition requiring Mr Cash to reside at an address approved in writing by a Probation Officer. The proposed address is He Kainga Taupua, Hampton Downs. This is a residential facility on the grounds of Spring Hill
Corrections Facility. Mr Cash was at the residential facility for most of the period during which he was subject to post-release conditions.
[18] Mr Cash proposes that he live with his father and brother at an address in Hamilton. Mr Cash does not want to return to He Kainga Taupua. During his time there he was assaulted by two other residents who were there on ESOs. After the assault he was given permission to stay with his sister for two weeks. He returned to He Kainga Taupua once his assailants were placed in custody. Since the end of his post-release conditions (just over a month ago) he has been living with his father and brother without incident. The prospect of returning to the site of his assault, He Kainga Taupua, causes him anxiety and stress.
[19] Corrections considers the proposed address is unsuitable. It says one of Mr Cash’s victims resides within 5.3 kms of the address. Mr Cash’s father is a registered child sex offender. Mr Cash has not undertaken any rehabilitative programs and has only recently commenced psychological treatment.
[20] I am satisfied that the risk of sexual offending until the ESO hearing will be adequately mitigated by the other proposed conditions, even if Mr Cash is permitted to reside at the address he proposes. Although he (provisionally) presents with a high risk of committing a relevant sexual offence, it is not a very high risk. Dr Wilson opines that the risk is likely to manifest itself during times of high stress. Mr Cash has experienced high stress in the recent past (from the assaults) and dealt with it without issue (indeed, he appears to have worked sensibly with Corrections after leaving the residential facility as a result of the assault). He will be subject to electronic monitoring. He will be required to attend and participate in any recommended treatment as directed by a Probation Officer (and he is already undertaking psychological counselling). Mr Cash’s father was released from a sentence of imprisonment almost six years ago. There is nothing to suggest any issues have arisen since or any non-compliance with his child sex offender reporting obligations. The father has been living at the proposed residence for three years. Mr Cash living with the support of his father and brother is likely to be a less stressful environment (and therefore lower risk in that respect) than living at He Kainga Taupua.
[21] Corrections also proposed that Mr Cash not enter the Hamilton area without prior approval. Given that I will be allowing Mr Cash to reside at a Hamilton address, I will not be imposing that condition.
Possession of an internet capable device
[22] Corrections proposes a condition that Mr Cash not use or possess any device capable of accessing the internet or any device capable of capturing or storing images, unless he has the prior written approval of a Probation Officer. Mr Cash opposes this. He does not oppose a related condition, that on request he make available any such device to a Probation Officer.
[23] Ms Alcock, for Corrections, noted that Mr Cash used images on his phone for much of his 2018 sexual offending. That is correct. But, as Mr Allan, for Mr Cash, submitted, Mr Cash was not using the internet to groom young victims or to access objectionable material. I consider that Mr Cash’s risk of offending is, for the reasons set out when dealing with his residence, adequately managed by the other proposed conditions.
Result
[24] I order under s 107FA of the Parole Act that, until the application for an ESO is finally determined, Mr Cash is subject to the following supervision conditions:
(a)Upon request by a Probation Officer, to make available to the Probation Officer, or his or her agent, any electronic device capable of accessing the internet in Mr Cash’s possession or control, or any camera or other device capable of capturing, storing, accessing or distributing images;
(b)Not to enter or loiter near any school, early childhood education centre, park, library, swimming pool, other recreational facility, church, or other area specified in writing by a Probation Officer, unless he has the prior written approval of a Probation Officer, or unless an adult approved by a Probation Officer in writing, is present;
(c)To disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes, or terminates;
(d)To reside at [the address at which Mr Cash’s father and brother live, as identified in Mr Allan’s submissions] and not move from that address unless he has the prior written approval of a Probation Officer.
(e)Not to drive, be in possession of, or have an interest in, a motor vehicle without the prior written approval of a Probation Officer;
(f)To submit to electronic monitoring as directed by a Probation Officer to monitor his compliance with any conditions relating to his whereabouts;
(g)To comply with the requirements of electronic monitoring and provide unimpeded access to his approved residence by a Probation Officer and/or representative of the electronic monitoring company for the purposes of maintaining the electronic monitoring equipment as directed by a Probation Officer;
(h)To submit to electronic monitoring as directed by a Probation Officer, in order to monitor his compliance with any conditions relating to his residential restrictions.
(i)To attend a psychological assessment and attend, participate in, and complete, any recommended treatment as directed by a Probation Officer;
(j)To reside at [the address at which Mr Cash’s father and brother live] between the hours of 8 pm and 8 am daily unless he leaves the residence:
(i)To seek urgent medical treatment;
(ii)To avoid or minimise a serious risk of death or injury to himself 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:
a.Comply with any special conditions;
b.Seek or engage in employment; or
c.To attend training or any other rehabilitative or reintegrative activities or programmes.
(k)To obtain the written approval of a Probation Officer before starting or changing his position and/or place of employment (including voluntary and unpaid work). To notify a Probation Officer if he leaves his position of employment;
(l)Not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed to him by a health professional; and
(m)To attend and participate in a programme for the purposes of any psychiatric or other counselling or assessment, attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme for up to 12 hours per day between the hours of 8 am to 8 pm.
Campbell J
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