Chief Executive of the Department of Corrections v Douglas

[2016] NZHC 3184

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-693 [2016] NZHC 3184

BETWEEN

THE CHIEF EXECUTIVE OF THE

DEPARTMENT FOR CORRECTIONS Applicant

AND

GLEN ANTHONY DOUGLAS Respondent

Hearing:	25 October 2016 and 2 November 2016
Appearances:	P A Currie for Applicant S A Saunderson-Warner for Respondent
Judgment:	21 December 2016

JUDGMENT OF NICHOLAS DAVIDSON J

(PUBLIC PROTECTION ORDER, WITH LEAVE RESERVED)

THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR CORRECTIONS v DOUGLAS [2016] NZHC 3184 [21 December 2016]

INDEX

Section     Heading  Para

A.            Applications before the Court  [1]

·    Necessary thresholds for a PPO and an ESO  [6]

B.            A Public Protection Order  [10]

·    PPO – sequence of considerations  [14]

C.            Public Protection Order – Evidence  [18]

·    The four section 13(2) characteristics  [19]

·    Mr Douglas’ offending  [21]

·    The expert evidence in support of the application for a PPO                  [34]

·    Mr Douglas’ background  [37]

·    Section   13(2)(a)   –   an   intense   drive   or   urge   to   commit a particular form of offending

·    Section 13(2)(a) – limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties

·    Section 13(2)(d) – poor  interpersonal relationships or social isolation or both

·    Section 13(2)(c)- absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3)

[41] [47]

[53] [58]

·    Report by Ms McLean  [67]

·    Section 13(2)(c) – Conclusion  [96]

D.            Section 13(1)(b)  [100]

·    Section 13(1)(b) – Conclusion  [118]

E.            PPO or ESO?  [120]

·    Counsel  [155]

F.             Disposition  [156]

A.      Applications before the Court

[1]      The respondent, Mr Douglas, is recognised as at risk of committing serious sexual offences against pubescent and pre-pubescent boys.

[2]      He  is  no  longer  a  serving  prisoner,  and  pending  this  judgment  is  under interim detention in the Otago Corrections Facility.

[3]      The  Chief  Executive  of  the  Department  for  Corrections  (“The  Chief Executive”) has applied for a Public Protection Order (“PPO”) under the Public Safety  (Public  Protection  Orders)  Act 2014  (“PSPO Act”  or  “the  Act”).    The application is opposed.

[4]      A second  application,  for  an  Extended  Supervision  Order  (“ESO”)  with intensive monitoring, is sought in the alternative, should a PPO not be made. That application, which is brought under the Parole Act 2002 (“the Parole Act”), is not opposed.

[5]      Ms Saunderson-Warner, counsel  for Mr Douglas, submits that a PPO should not be made because an ESO with intensive monitoring would meet the fundamental interest of public protection while imposing less restraint on Mr Douglas, and that rehabilitative  treatment  would  be  better  undertaken  and  observed  in  the  less restrictive but still testing environment of an ESO.   The Court is thus asked to exercise  its  discretion  in  favour  of  an  ESO  with  intensive  monitoring,  even  if grounds for making a PPO order are established.

Necessary thresholds for a PPO and an ESO

[6]      There are stepped considerations towards making a PPO and an ESO.  The first is whether a respondent qualifies by virtue of his or her history of offending.

[7]      The PPO application was filed on 12 August 2016 when Mr Douglas was in prison serving a three year sentence of imprisonment following two convictions for

sexual connection with a young person.1     That offence qualifies as a serious sexual offence under s 3 of the PSPO Act.     His release date was 29 August 2016, so the application  was  made  within  the  prescribed  period.  The  threshold  grounds  in s 7(1)(a) of the PSPO Act are therefore satisfied.

[8]      The threshold grounds of the ESO application are that Mr Douglas is an “eligible offender” within the meaning of s 107C of the Parole Act.  This threshold is met by Mr Douglas’ imprisonment for sexual connection with a young person, which is a relevant offence for the purpose of s 107B of that Act.

[9]      An application for an ESO with intensive monitoring must be heard in the High Court.2   The application made is for an ESO for a period of 10 years pursuant to s 107F of the Parole Act, and for intensive monitoring pursuant to s 107IAB of the Parole Act, on the grounds that Mr Douglas discloses a pervasive pattern of serious sexual offending and there is a high risk he will in future commit a relevant sexual offence.  The different statutory settings for a PPO and an ESO are discussed further

in this judgment.

B.       A Public Protection Order (PPO)

[10]     Parliament has recognised the very long reach of the law in the containment of a person based on the risk of offending, as opposed to a sentence of imprisonment or other detention.  This was also recognised by Venning J when, in the context of a PPO application, he referred to Hansard and said:3

[83]      I note that it appears Parliament considered the imposition of a PPO would be for rare or extreme cases where the offender was certain to offend again.  Importantly it was expected a PPO would only be made once a year or perhaps one every two years.  Hansard records Hon Phil Goff’s comments on “imminent”:

I want to refer to the definition of the word “imminent” because I think it is particularly important to what some people see as the rather extreme  nature of the  power that is being exercised  here. “ ‘Imminent’ in  relation  to  the  commission  of  serious  sexual  or violent offences by a person, means that the person is expected to commit  such  an  offence  as  soon  as  he  or  she  has  a  suitable

1      Crimes Act 1961, s 134(1). The maximum penalty is 10 years imprisonment.

2      Parole Act 2002, s 107IAB(2).

3      Chief Executive of the Department of Corrections v Wilson [2016] NZHC 1081.

opportunity to do so” – that is what the word imminent means.  As Minister of Justice, I dealt with cases like this.  I had reports from psychologists and I had reports from people who worked within the system that if person A was to be released, on the way out of the prison, if an opportunity arose, that person was so driven that they would commit an offence, so we are not talking about the use of extreme powers in the cases of people where there might be a whole lot of alternatives in terms of how to deal with them.

…

… What the Justice and Electoral Committee was advised was that over a 10-year period, maybe there would be five people-five to

12 people-who would be encompassed by it.  That is maybe one a

year, or maybe one every 2 years.   We are talking about extreme cases where the balance moves from the right of the person who had already committed a serious violent or sexual offence to be released at their end of their sentence.  If they are certain to offend again, and that is the clinical judgment and the independent judicial judgment made about that individual, then in my mind the balance switches to protecting the likely victim of that individual.

[11]     The  language  employed  is  a  hallmark  of  the Act.    It  acknowledges  the implications of such a severe constraint on liberty, not as a punishment but to protect potential victims:

Part 1

Detention and supervision of persons posing very high risk of imminent serious sexual or violent offending

Subpart 1—Interpretation, objective, and principles

3         Interpretation

In this Act, unless the context otherwise requires,—

…

imminent,  in  relation  to  the  commission  of  serious  sexual  or  violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so

…

serious sexual or violent offence means an act committed before, on, or after the commencement of this section that—

(a)       is committed in New Zealand and is—

(i)        a  sexual  crime  under  Part  7  of  the  Crimes  Act  1961 punishable by 7 or more years’ imprisonment, including a crime under section 144A or 144C of that Act; or

(ii)      an offence against any of sections 172 to 177, 188, 189(1),

191, 198 to 199, 208 to 210, 234, 235, and 236 of the Crimes

Act 1961; or

(b)       is committed overseas and would come within the description of paragraph (a) if it had been committed in New Zealand

serious sexual or violent offending means the commission of 1 or more serious sexual or violent offences

…

victim means a person –

(a)       who is a victim of a serious sexual or violent offence committed by a person –

(i)       who is a respondent to an application made by the chief executive under this Act; or

(ii)      who is subject to an order made under this Act; and

(b)       who  has  asked  for  notice  or  advice  of  matters  or  decisions  or directions and copies of orders and conditions, and has given his or her current address, under section 31 of the Victims’ Rights Act 2002

(emphasis added)

[12]     The objective of the Act is instructive in its simplicity, and the extent of the risk which it contemplates:

4        Objective of Act

(1)       The objective of this Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.

(2)       It is not an objective of this Act to punish persons against whom orders are made under this Act.

5        Principles

Every person or court exercising a power under this Act must have regard to the following principles:

(a)       orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are  relevant  to  assessing  whether  there  is  a  very  high  risk  of imminent serious sexual or violent offending by a person:

(b)       a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:

(c)       a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

(d)       persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.

(emphasis added)

[13]     There are strict criteria for a PPO:

13       Court may make public protection order

(1) After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least

1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance

of probabilities, that –

(a)  the respondent meets the threshold for a public protection order;

and

(b) there is a very high risk of imminent serious sexual or violent offending by the respondent if, -

(i)  where the respondent is detained in a prison, the respondent is released from prison into the community; or

(ii) in any other case, the respondent is left unsupervised.

(2) The  court  may  not  make  a  finding  of  the  kind  described  in subsection  (1)(b)  unless  satisfied  that  the  respondent  exhibits  a severe   disturbance   in   behavioural   functioning   established   by evidence to a high level of each of the following characteristics:

(a)  an  intense  drive  or  urge  to  commit  a  particular  form  of offending:

(b) limited    self-regulatory    capacity,    evidenced    by    general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:

(c) absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general  sense  of  that  term  and  not  merely  as  defined  in section 3):

(d) poor interpersonal relationships or social isolation or both. (emphasis added)

PPO – sequence of considerations

[14]     Venning J held that the proper approach to an application for a PPO is to determine whether the respondent exhibits a severe disturbance in behavioural functioning by addressing the characteristics under s 13(2), and then to consider whether the respondent poses a very high risk of imminent serious sexual offending.4

… logically the Court must be satisfied as to the criteria under s 13(2) before it may make a finding under s 13(1).  The approach should be for the reports to consider the presence or otherwise of the characteristics and, having determined that, to then go on to consider whether there is a very high risk of imminent serious violent [or sexual] offending.   Such an approach would also be consistent with the structure of s 9(b).

[15]     The s 13(2) characteristics are thus gateway determinations.  This judgment addresses the interpretation of s 13(2), as it raises doubt in the mind of an expert witness called for Mr Douglas, Dr Barry-Walsh.  This “awkwardness” was discussed by Venning J in Wilson whose approach I respectfully follow. Although the evidence and argument focused principally on s 13(2)(c) and then s 13(1)(b), the Court must consider the evidence in relation to ss 13(2)(a), (b) and (d), and satisfy itself as to those characteristics as well.

[16]     Reports  were  provided  in  evidence  by  the  applicant  from  three  health assessors,   Ms    Debbie   McLean   (27   November   2015),    Ms Jayde   Walker (19 July 2016), and Mr Jonathan Todd-Downing (9 August 2016), all of whom are clinical  psychologists.  Ms  Walker  and  Mr  Todd-Downing  both  gave  evidence. Dr Justin Barry-Walsh, a forensic psychiatrist, made a report (11 October 2016), and gave evidence.     Ms McLean addressed the criteria for an ESO but her report is helpful and discussed further.

[17]     There is broad agreement between the expert witnesses who addressed the statutory criteria for a PPO that the characteristics in s 13(2)(a), (b) and (d) are established to a “high level”, whether that means a high evidential level or a high level   of   each   characteristic,   as   discussed   further.   While   Ms   Walker   and Mr Todd-Downing agree that s 13(2)(c) is satisfied by applying a “high level” test of

the relevant characteristics, Dr Barry-Walsh expresses reservations about whether the

4      Chief Executive of the Department of Corrections v Wilson, above n 3, at [29].

evidence reaches the “high level” test and has doubts about what the legislation means.   He does not consider he is qualified to assess risk in the way the Act contemplates.  I address the interpretation of s 13(2)(c) further.

C.      Public Protection Order - Evidence

[18]     The Chief Executive has provided evidence of Mr Douglas’ offending and personal history, and expert evidence, all relevant to the statutory criteria for a PPO. There is contest, and expert witness disagreement, as to whether the characteristics described  in  s 13(2)(c)  of  the Act  are  established,  and  in  the  approach  to  the assessment of risk of further offending, with which the Act is primarily concerned.

The four s 13(2) characteristics

[19]     The evidence  must  leave the Court  satisfied  that  Mr Douglas  exhibits  a “severe disturbance in behavioural functioning established by evidence to a high level …” of each of the four characteristics.

[20]     For the court to be “satisfied” of the relevant matters under s 13(1) and s13(2) of the Act, the judgments of John Hansen and Panckhurst JJ have application.5   They adopted the meaning given to “satisfied” in the context of preventive detention in R v Leitch:6

The need to be satisfied calls for the exercise of judgment by the sentencing court.  It is inapt to import notions of the burden of proof and of setting a particular  standard,  eg  beyond  reasonable  doubt.   As  this  Court  said  in R v White (David) with reference to s75(2), the phrase ‘is satisfied’ means simply ‘makes up its mind’ and is indicative of a state where the court on the evidence comes to a judicial decision.  There is no need or justification for adding any adverbial qualification.

Mr Douglas’ offending

[21]     The offending which resulted in Mr Douglas’ recent imprisonment is a major

prompt for the applications made, but the evidence relevant to this judgment reaches back much further in his life.

5      Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162,

8 December 2004 at [27].

6      R v Leitch [1998] 1 NZLR 420 (CA) at 428.

[22]     The  victim  of  Mr  Douglas’  recent  offending  was  a  13  year  old  boy. Mr Douglas was 22 years old at the time.  They were known to each other through their families.     The victim’s mother was concerned about the relationship given Mr Douglas’ previous sexual offending, and the victim had been warned to stay away from him.  The mother ensured her son’s Facebook profile was restricted, but Mr Douglas created a pseudo Facebook name and made contact.   The victim was aware of Mr Douglas’ identity despite the false details. A willing engagement began.

[23]     The victim’s mother was concerned enough to pick her son up from school every day to prevent encounters between the two, which had been observed.

[24]     In early June 2013, arrangements made on Facebook resulted in Mr Douglas walking to the victim’s address early in the morning.   The pair went behind the garage  on  that  property  where  the  victim,  under  instruction  and  guidance  from Mr Douglas,  engaged  in  anal  intercourse.  In  July  2013,  they  arranged  to  meet through Facebook at a park near the victim’s home where they kissed and engaged in oral sex, then anal intercourse.

[25]     The victim’s mother became aware of the use of a false name through her son’s Facebook account and blocked contact.   She was unaware of the sexual encounters that had taken place.  When blocked, Mr Douglas changed his Facebook profile again, to another pseudonym.  He made contact with the victim who this time did not know he was communicating with Mr Douglas.

[26]     The  mother  began  to  remotely  monitor  the  Facebook  conversation  and identified Mr Douglas.  She confronted him.  She told him to call the Police, which he did and admitted his offending.  He already had convictions for identical offences.

[27]     For his sexual offending in June and July 2013 Mr Douglas was sentenced by

His Honour Judge Crosbie to imprisonment for three years and given a first strike warning in each case.7

7      Police v Douglas DC Dunedin CRI-2013-2-2446, 24 January 2014.

[28]     His  record  included  offending  which  began  in  Dunedin  in  April  and

July 2006, for sexual connection with a young person between the ages of 12 and

16 years.  Intensive supervision was ordered.  In 2009 Mr Douglas was convicted for breaching the conditions of intensive supervision and required to come up for sentence if called upon.  In December 2011 he was convicted on a charge of common assault and fined.   On 15 August 2013 he was convicted for possession of objectionable publications (11 charges).  No penalty was imposed as he was already serving the sentence of three years imprisonment for his offending in June and July 2013.

[29]     Judge Crosbie summarised the contact between Mr Douglas and the victim, who was said by Mr Douglas to be “willing” to participate in the offending. Parliament had recently increased the maximum penalty from seven to 10 years imprisonment.   The Judge said that the protection of young persons who are vulnerable, whether willing or not, is a form of statutory protection “for the rights and what should be the inherent innocence of young people”.8     He said it was necessary to hold Mr Douglas to account.  His previous convictions were relevant. The court was concerned to impose a sentence which acted as a deterrent, and as

protection for young and vulnerable people against the aspirations of predators.

[30]     The  Judge  said  that  Mr  Douglas  should  receive  treatment  early  in  his sentence and mentioned the two specialist sexual treatment units in New Zealand. He endorsed the psychological report provided to the Court, the assistance available to Mr Douglas, the reasons for his offending, and his attitude.   He had not had treatment-related contact with the Department of Corrections, but had been involved with the STOP programme, to assist management of sexually inappropriate urges and

behaviour.

8 At [12].

[31]     The Judge observed that Mr Douglas’ behaviour had been evident from a

very young age and included:9

… sexually inappropriate behaviour, oppositional and deviant responses to the imposition of authority and you appear to have required a level of supervision and guidance exceeding that of most people the same age as you.

[32]     He was considered to present a high risk of further sexual offending, and the Judge remarked that such conclusions are not made lightly by the psychological service.  He concluded that it was most likely that Mr Douglas would target the same age and sex (male) as he had in the offending for which he was sentenced. He had very high levels of sexual preoccupation and a propensity to involve himself with young people for sexual purposes and, important to this judgment, he had an impoverished understanding of the likely negative impacts of any future offending.

[33]     The  Judge  addressed  “the  particularly  aggravating  features”,  reflected  in Mr Douglas’ determination to get to his victim, his level of deception, and the breach of trust involved.   He adopted a starting point of three years and six months imprisonment,  with  an  uplift  of  six  months  based  on  the  principles  set  out  in R v Taueki.10  After discount for his guilty pleas he was sentenced to three years imprisonment.

The expert evidence in support of the application for a PPO

[34]     Evidence as to the statutory criteria was given by the health assessors.   There are, or may be, processes at work in Mr Douglas’ life, and in therapy, which should be recognised in deciding whether a PPO or an ESO is made.  These issues may be arguably better managed under an ESO with intensive monitoring, including possible anti-libidinal treatment with Mr Douglas’ consent, one-on-one counselling, and his gradual maturation, according to Dr Barry-Walsh.   These considerations were advanced by Ms Saunderson-Warner in seeking an ESO rather than a PPO.   The Court has no power to order anti-libidinal treatment.   It appears controversial, not

supported in New Zealand, but Dr Barry-Walsh says it is recognised in Victoria,

9 At [20].

10     R v  Taueki [2005] 3 NZLR 372 (CA).

Australia.  Its relevance is derived from the possibility Mr Douglas may consent to such, and that it may be a part of a therapeutic programme structured for him.

[35]     While the expert witnesses agree that s 13(2)(a), (b) and (d) are satisfied by evidence to a high level and each characteristic at a high level, they disagree as to s 13(2)(c).    Ms  Walker  and  Mr  Todd-Downing  consider  s 13(2)(c)  is  satisfied. Dr Barry-Walsh  does  not,  but  is  unsure  what  the  “high  level”  test  means  and expresses doubt as to whether s 13(2) is concerned with proof to a high level, or proof at a high level of the characteristic referred to.  He says Mr Douglas exhibits no psychopathy, and his autism may be misleading in any finding to that effect.   At the same time he recognises the very real and undeniable risk posed by Mr Douglas.

[36]     To understand the conclusions of the expert witnesses on the central issue, it

is necessary to further explore Mr Douglas’ personal history.

Mr Douglas’ background

[37]     In her written report, Ms Walker said that Mr Douglas displayed an adequate understanding of the nature, purpose and potential implications of interviews as part of his psychological assessment.  He consented to the use of information from the Kia Marama Special Treatment Unit. Ms Walker concluded his cognitive functioning was, while not formally assessed, of low-average to average intellectuality.

[38]     He has a long history of problematic sexual behaviour, apparent since his early childhood.  Concerns were raised by professionals from Child and Adolescent Mental Health Services and Paediatric Services from 1995 to 2000.  He was taken from his mother’s care when he was 10 years old, and put in the care of Mt Cargill Trust which provides a residential disability support service for male children and adolescents.   His sexualised behaviour with other children persisted despite supervision and having a teacher’s aide with him at all times.  At Mt Cargill he used lapses in supervision to make sexual contact with a victim whom he had repeatedly requested to engage in penetrative sexual activity.   He persisted until the victim acquiesced.

[39]   Under intensive supervision in 2009, he lived in Davin Healthcare accommodation under 24 hour supervision.  He attended the STOP Programme, but he still offended by accessing child pornography when the opportunity arose.   In June 2011, he contacted an associate and requested that he bring him child pornography in exchange for sexual contact.  He was evicted from Davin Healthcare and returned to his mother’s house.

[40]     His persistence in seeking sexual gratification, and successfully doing so despite supervision, is marked.

Section 13(2)(a) – an intense drive or urge to commit a particular form of offending

[41]     Ms  Walker  says  that  Mr  Douglas  is  impulsive,  and  his  behaviours  and decision-making reflect poor self control.  He externalises responsibility to others to manage situations, and to problem solve for him, and he uses sexual activity to regulate his emotions.   His inability to regulate his sexual impulses has been problematical throughout his life, with inappropriate behaviour in various settings, even  when  subject  to  a  high  level  of  external  control.    Ms  Walker  considers Mr Douglas does not have the ability to self regulate his sexual impulses.

[42]     Mr Todd-Downing concludes that Mr Douglas is highly sexually preoccupied and sexually compulsive.  Inhibitions to his offending are compromised.  He has a tendency to become fixated on sexual activity with particular others and is driven in his planning, manipulation, and circumvention of barriers to offending.  Ultimately:

He has taken opportunities to offend that carry risk to him and others and this is consistent with an intense drive or urge.

[43]     Mr  Todd-Downing  says  further,  differing  from  Dr Barry-Walsh  as  to  a finding of psychopathy:

Offenders who are both high in psychopathy and sexual deviancy are especially likely to reoffend and to do so quickly.  The combined effect of psychopathy and sexual deviancy confers greater risk than the additive combination of their independent efforts alone.

[44]     Dr Barry-Walsh considers that Mr Douglas is highly sexualised, and has displayed clear evidence until recently of sexual fantasies with children which he

now denies, but still may be present.  He is considered to be relatively indiscriminate in his sexuality, and while he may prefer to engage in consensual sexual activity, given his sexual drive and past history:

…it is reasonable to anticipate his potential sexual deviance and high libido, if not treated or not responding to treatment, may lead him to offend again, especially against pubescent boys.

[45]     I am satisfied on the evidence that Mr Douglas has the characteristics in s 13(2)(a), established by evidence to a high level and that the characteristics are present  to  a  high  level.    That  conclusion  does  not  depend  on  a  finding  of psychopathy.  Dr Barry-Walsh does not think Mr Douglas is psychopathic, although Ms Walker and Mr Todd-Downing think he has psychopathic traits.

[46]     This finding under s 13(2)(a) is not challenged by Ms Saunderson-Warner for

Mr Douglas.

Section 13(2)(b) - limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties

[47]     Corrections staff have described Mr Douglas as “immature, interpersonally naive, easily led and lacking in awareness of appropriate social boundaries”.  He has been impulsive in his social interactions and decision making. He has tended to target younger and vulnerable prisoners, thought to be offence paralleling behaviour consistent with his predatory profile.  He did not alter his behaviour despite repeated feedback from custodial staff and other prisoners.   He was kept separate from his targeted individuals.    He reported during interviews that he was concerned about how he would cope in the community without robust supports around him, and that he might commit an offence and be re-imprisoned.

[48]     Previous attempts to promote self-regulation in Mr Douglas have had little effect.  Mr Douglas participated in the community based STOP Programme between

2006 and 2011 but several months after his contact with STOP ended he committed a sexually motivated common assault against a 12 year old boy.  Ms Walker reports on this aspect, with reference to Mr Douglas’ autism:

31.During his time at Kia Marama, Mr Douglas’ understanding of his offence process was assessed as limited.  He was noted to minimise the highly manipulative approach and obsessive qualities of his offending, did not clearly outline his distorted thinking, and minimised his level of sexual preoccupation.   He did not modify his high level of sexual preoccupation throughout treatment and continued  to  masturbate  to  thoughts  of  children,  including  his victims.  Mr Douglas developed an intellectual understanding of the harmful  effects  of  sexual  abuse,  however,  his  ongoing  deviant fantasy and masturbation suggested a lack of reliable motivation to modify his sexual arousal to children.  Overall, Mr Douglas’ lack of treatment progress, combined with his persistent offence paralleling behaviours, resulted in his eviction from the Kia Marama STU in May 2015.

32.      Mr    Douglas   has   engaged   in   17   individual   sessions   with

Ms van Rooy      (Registered      Clinical      Psychologist)      since

26 January 2016.    The  focus  of  those  sessions  has  been  on  the further development of Mr Douglas’ offence chain, with the aim of increasing  his  insight  into  factors  associated  with  his  offence process, and on the development of a safety plan to mitigate against offence-related factors.  Ms van Rooy described Mr Douglas as an enthusiastic participant in treatment sessions, but considered that his engagement was superficial and that his future plans and risk management   strategies   continued   to   lack   depth.      She   also commented that, although he had an intellectual understanding of the emotional impact of his offending on others, he appeared to have little emotional appreciation of this and generally adopted a victim stance  himself when discussing such issues (in light  of  his own reported experiences of sexual victimisation).  Ms van Rooy stated that Mr Douglas continued to place responsibility onto others for managing risk-related factors.

33.Mr Douglas’ discussion of his period of individual treatment during the current interviews was consistent with Ms van Rooy’s observations.   He impressed as having an intellectual (although superficial) understanding of his offence process, high risk situations for re-offending, risk management strategies, and impact of sexual offending on victims.   His self-reported reliance on external supervision and monitoring to manage risk-related factors (as well as day-to-day tasks) within the community is  of concern, given the number of treatment opportunities he has had.   Overall, it is considered that Mr Douglas had had little meaningful response to offence-focused treatment.

…

34.Autism  Spectrum  Disorder  (ASD)  is  characterised  by  persistent deficits  in  social  communication  and  social  interaction  across multiple contexts, including: deficits in social reciprocity; nonverbal communicative behaviours used for social interaction; and, skills in developing, maintaining, and understanding relationships.

…

Furthermore,  difficulties  with  empathy  and  impulse  control  are likely to result in Mr Douglas failing to appreciate the consequences of his actions on others (and for himself) and to act without regard for these.

[49]     Ms   Walker   considers   that   Mr   Douglas’  sexual   offences   demonstrate persistence in his desire for penetrative sexual activity with victims, despite the barriers put in place.  He is not considered to have made meaningful progress during treatment.  She says:

Mr Douglas displays some general self-regulation difficulties.   He is considered impulsive and his behaviours and decision-making reflects this poor self-control.  He has been noted to present with emotional lability.  He has poor tolerance of changes in routine and other psychosocial stressors. He generally appears to rely on avoidant coping strategies, he externalises responsibility to others to manage situations and problem-solve for him, and he uses sexual activity to regulate his emotions.

Mr Douglas has evidenced a lifelong pattern of difficulty regulating his sexual impulses.   From childhood he has engaged inappropriate behaviour across settings, even when subject to a high level of external control.   He continues to engage in a high frequency of masturbation and has expressed concern about his ability to control his sexual impulses (e.g., requesting an assessment for anti-libidinal medication).  It is the opinion of the writer that Mr Douglas does not have an ability to self-regulate his sexual impulses.

[50]     Mr Todd-Downing identifies the evidence of a lifelong pattern of instability, even while in a custodial setting.   He considers Mr Douglas to have limited self regulatory capacity, and to consistently rely on others to provide external management.   Like Ms Walker, Mr Todd-Downing considers Mr Douglas to have been  highly reinforced  by the  enjoyment  and  mood  lifting consequences  of his sexual activity, and this has become an over developed strategy for regulating his emotions.  It has served him by reducing his feelings of loneliness and by meeting his relationship and intimacy needs.  It is reflected in repeated sexual activity with others, and offending, pornography use and masturbation.

[51]     Dr Justin Barry-Walsh says that:

Mr Douglas has autistic spectrum disorder and this in conjunction with other aspects of his personality means he struggles in this area.  He has displayed impulsiveness,   and   there   have   been   episodes   where   he   may   have over-reacted  emotionally  to  situations  (noting  the  recent  description  by Ms van  Rooy  of  black  and  white  thinking,  and  his  description  of  brief periods where he has sought a transfer to the ARU). I have already commented  on  his  problems  with  problem  solving  and  stress.     His

personality development has been delayed, presumably due to a combination of autistic spectrum disorder and aversive life events and his capacity in these areas could improve with treatment (he is reporting an early benefit from fluoxetine, and further therapy targeting his autistic spectrum disorder or at least mindful of it may also assist) and time.

[52]     There is concurrence amongst the experts on this issue, and I am satisfied Mr Douglas has the characteristics in s 13(2)(b), established by evidence to a high level,  and  that  the characteristics  are to  a high  level.   This  finding is  also  not challenged by Ms Saunderson-Warner for Mr Douglas.

Section 13(2)(d) – poor interpersonal relationships or social isolation or both

[53]     The presence of this characteristic was, undisputed, as a brief review of the

health assessors’ reports demonstrates.

[54]     Ms Walker says:

Mr Douglas has a history of engaging in multiple indiscriminate sexual encounters that appear to lack emotional connectedness or meaningfulness. He has had no long-term intimate relationships.   Over the course of his lifetime he has had few friendships.   Mr Douglas appears to desire interpersonal connection and attachment, but reports a pervasive sense of loneliness  and  fear  of  rejection  from  others.     Review  of  collateral information suggests that Mr Douglas has had few meaningful, appropriate, and prosocial relationships (intimate and non-intimate) over his lifetime. Many  of  his  relationships  have  been  with  staff  who  have  been  paid  to support  him,  and  he  has  been  noted  to  develop  a  dependence  on professionals who have worked with him.  Mr Douglas is noted to present with poorly developed social awareness and skills to initiate and maintain appropriate and meaningful relationships (this is considered consistent with his diagnosed ASD).  Of further concern is that Mr Douglas committed the index offending while he was engaged in a relationship with a similarly-aged adult, suggesting that the presence of an appropriate adult relationship is not a protective factor for him.

[55]     Mr Todd-Downing says:

Mr Douglas’ diagnosis of Autistic Spectrum Disorder means that he has difficulty understanding the reciprocal nature of relationships; his insight into relationships being very poor.   He was reported as having no understanding of his role in relationships and was said to have discussed his friendships only in terms of what he gained from them and not what he contributed.

File and interview information shows that Mr Douglas has had very few friends over the course of his life.  His sexualised and offending behaviour appears to have provided him with unhealthy and inappropriate opportunities

for intimacy and connectedness.   He has not had a long-term intimate relationship but did say he had a partner at the time of his index offences. However, he said this relationship was not meeting his needs and, in the writer’s opinion, was not protective for him.

In terms of current relationships, Mr Douglas was described by his Case Officer as reasonably sociable. However, he was also described as very immature in behaviour and attitude, “child-like” and vulnerable, making it difficult  for  him  to  develop  relationships  with  age-appropriate  adults. Mr Douglas was said to gravitate towards the younger and more vulnerable prisoners on the unit.

It is concerning that Mr Douglas’ sexual risk may in part be formed by his capacity to more easily relate to younger and vulnerable people and by his lack of relational skills and emotional congruity with age-appropriate adults.

[56]     Dr Justin Barry-Walsh says:

Mr Douglas clearly struggles in this area as has been pointed out by others. This likely relates to his autistic spectrum disorder.

[57]     I am satisfied Mr Douglas has the characteristics in s 13(2)(d) at a high level, established by evidence to a high level.   This finding is also not challenged by Ms Saunderson-Warner for Mr Douglas.

Section 13(2)(c)- absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3)

[58]     Ms Walker and Mr Todd-Downing say the characteristic is evident, at a high level, and by evidence to a high level. Dr Barry-Walsh is unsure how the legislation is to be interpreted and applied in several respects, but says that if “absence” means “completely  without”  then  the  test  is  not  met,  as  Mr Douglas  does  have  some understanding and concern.

[59]     Section  13(2)(c)  requires  judgment  as  to  what  “absence  of”  means,  and whether the “high level” test is of the evidence, or of the characteristics.  This last consideration   is   not   problematical   for   s 13(2)(a),   (b)   and   (d)   because   the interpretation does not matter.  The evidence and the characteristics in each case are to a high level, as set out above.   Whether the same approach is validated on the evidence must be considered in relation to s 13(2)(c) of the Act.

[60]     The scheme of s 13(2) is directed to four characteristics being established which in combination allow consideration whether the provisions of s 13(1)(b) of the Act are satisfied, on the balance of probabilities.   The four characteristics are expressed in different ways; for example s 13(2)(b) refers to “limited self-regulatory capacity”, but there are degrees of the characteristics such as “high emotional reactivity”,  and  “inability  to  cope  with,  or  manage,  stress  and  difficulties”. Similarly,  s 13(2)(a)  refers  to  “an  intense  drive  or  urge  …”.    The  tests  are  all expressed differently, according to the characteristics referred to in each sub-section.

[61]     Section 13(2) might be better expressed.  In Wilson, a typically deft approach to interpretation was adopted by Venning J:11

[26]     The first consideration for the Court must therefore be whether the above characteristics have been established by evidence to a high level.

[27]      Although the wording of s 13(2) is somewhat awkward, I interpret it to mean that the Court must be satisfied on the evidence before it that Mr Wilson exhibits, in other words has, as part of his personality, each of the four characteristics described; and also in each case, that he has them to a high level.  The alternative interpretation of the section is that it requires a high  level  of  evidence  of  each  characteristic  (without  reference  to  the strength of the characteristic).   But even on that interpretation the level of evidence would, in reality, need to be such that each characteristic was established to a high level in any case.

[62]     That formulation is the basis on which I first approach s 13(2)(c) in this case. Ms Walker says:

Mr Douglas was considered to have developed a superficial intellectual understanding of the negative effects of sexual abuse over the course of offence-focused treatment.   He has however, continued to present with cognitive distortions around sexual behaviour with children. He appears to continue  to  believe  that  if  a  victim  demonstrated  some  level  of  sexual arousal, an absence of distress, or did not disclose the sexual offending to authorities, then his behaviour had no harmful effects.  Mr Douglas has been consistently reported to display limited victim empathy, and to be more focused on the harmful effects of his own experiences of abuse.  His ASD limits the extent to which he is able to understand others’ emotional experiences.  It is the writer’s opinion that Mr Douglas has only a superficial understanding of the impact of his offending on actual or potential victims.

11     Chief Executive of the Department of Corrections v Wilson, above n 3.

[63]     Mr Todd-Downing says:

Mr Douglas’ pattern of offending and reoffending is consistent with a lack of appreciation of the harmful effects of his behaviour on others.   He has targeted young and vulnerable people, and his actions have negatively affected  the lives of family and  close family friends.    It  is  consistently reported in his files that Mr Douglas has typically shown more concern for the negative consequences of his actions for himself.  However, even these concerns have taken second place to his sexual urges prior to and during offending.  During interview for current assessment, Mr Douglas said he had developed a deeper awareness of the impact of his index offences on his victim.  However, this was tempered by him continuing to hold the distortion that his last contact victim was partly responsible for consenting to sexual activity.    Treatment does not appear to have helped Mr Douglas to gain a fuller appreciation of the impact of his behaviour on others.  Even during his most  recent  treatment  staff  continued  to  observe  offence  paralleling behaviour.   This included, discussing sexualised material with others, dishonesty within his relationships and behaving to satisfy his own intimacy needs without considering the needs of others.

[64]     Dr Justin Barry-Walsh says:

There  is  evidence  Mr  Douglas  has  made  gains  in  this  area  based  on self-report and his recent engagement in therapy. I noted in my assessment that he appeared to parrot or reply rote what he’d been told.  However, this may be attributable to his autistic spectrum disorder.   People with autism struggle  to  understand  the  mental  states  of  others,  are  concrete  in their thinking and often require scripts or explanations in order to deal with social interactions.   Thus an apparently intellectualised and rote account may in fact reflect a genuine if intellectual understanding.   This does need to be balanced against the evidence Mr Douglas continued to transgress sexual boundaries, even when he’d been provided with some understanding of the potential harm.  However, he did give a plausible account of reasons why he had developed an understanding of and concern for the impact of offending on victims in this interview with me.

[65]     During the hearing, the Court asked Dr Barry-Walsh:

Q.        So  I  just  want  to  deal  with  2(c)  which  is  the  absence  of understanding  or  concern  for  the  impact  of  the  respondent’s offending on actual potential victims.  Are you able to comment on whether in your opinion that’s absent understanding?

A.        It’s not absent.   There’s clearly some understanding there.   It just highlights one of the problems with these kind of assessments. There’s a good degree of subjectivity in all this but he clearly described to me an understanding of the impact of his offending on others.  I noted that much of it there was a rote quality but that may reflect his problems in communication as a result of his autistic spectrum disorder.    Further he did show some emotional understanding  at  least  in  his  conversation  with  me  when  he described the distress he experienced in writing an offender letter as

part of the Kia Marama programme so I could find that there is evidence  of  some  understanding  of  the  impact  of  the  offending. I agree with what’s been observed already that it doesn’t necessarily seem to translate much into substantial changes in behaviour but nevertheless I find it there…

(emphasis added)

[66]     Towards the end of his oral evidence, Dr Barry-Walsh reiterated:

…Absence of understanding or concern.  Well I find that he doesn’t have an absence of understanding or concern.   So there is definitely some understanding or concern there.  So I can’t say that he has that there to a high level.  You might say there’s some impairment in that.  You might want to see it expressed more consistently and with a greater degree of emotional conviction, but there’s definitely understanding there.

Report by Ms McLean

[67]   Ms McLean’s report is here mentioned as it addresses Mr Douglas’ understanding or concern for his victims or potential victims, and introduces the approach to risk assessment discussed in relation to s 13(1)(b) of the Act.

[68]     Ms McLean did not appear as a witness but her report of 17 November 2015 was in evidence.  It was prepared some time before the other expert reports.

[69]     Her report was directed to the issues identified under s 107IAA of the Parole Act 2002, in the context of consideration of an ESO.  It refers to Mr Douglas being in the medium/high risk category under the Automated Sexual Recidivism Scale (“ASRS”), which category has a recidivism rate of 24 per cent in the 10 year period following  release.    This  probability  is  based  on  static  risk  predictors.    On  the Violence Risk Scale - Sexual Offender Version (“VRS-SO”), he was previously assessed in the high risk category, and on re-assessment that was held to be valid with a sexual recidivism rate in the high risk group after five years at 24.9 per cent, based on static and dynamic risk predictors.

[70]     The dynamic elements  of the VRS-SO version included sexually deviant lifestyle, sexual compulsivity, offence planning, cognitive distortions, insight, community  support,  release  to  high  risk  situations,  sexual  offending  cycle,

impulsivity, compliance with community supervision, treatment compliance, deviant sexual preference, and intimacy deficit.

[71]     Mr Douglas has an extensive history of problematic sexual behaviour since early childhood and despite intensive supervision, monitoring and feedback since a child, he is persistent in engaging in sexually offensive behaviour, often fixated on specific children.    He has circumvented barriers and manipulated adults knowledgeable about this offending.

[72]     Mr Douglas’ desire is to have penetrative sexual activity with victims, despite barriers put in place including victims rejecting him.   This is despite the fact that there are considerable barriers including 24 hour supervision and monitoring.  He did not make progress during the time he attended the Kia Marama STU programme for child sexual offenders.  His desire to engage in sexual activity with children has not diminished, according to Ms McLean.

[73]     Mr  Douglas  has  disclosed  undetected  sexual  offending,  non-penetrative, against three male children, two aged under 12 years and one aged 12-16 years. To Ms McLean he demonstrates a clear predilection and proclivity for serious sexual offending.

[74]     Ms McLean, at the time of her assessment, considered that Mr Douglas did not accept personal responsibility or demonstrate remorse for his sexual offending and said that his victims had requested or allowed him to engage in sexual activities. He  apportioned  responsibility  to  carers  and  supervisors.    During  his  time  at Kia Marama STU he continued to believe that if the victim demonstrated some level of arousal or absence of distress or did not disclose what happened, that meant there was no harmful effect on the child.  He has only a superficial understanding of the impact of his offending on his victims in her view.

[75]     Mr Douglas demonstrated his capacity and proclivity to engage in sexual offending behaviour given the briefest opportunity, even under 24 hour supervision. His  sexual  pre-occupation  and  impoverished  understanding  of  the  effect  of  his actions means any future sexual offending could occur rapidly upon release should

the opportunity afford itself.   The two opportunities given him by the community based STOP programme and the Kia Marama STU have not been successful. At that time, November 2015, Ms McLean considered there was little likelihood of his meaningfully engaging in treatment.

[76]     There  are  thus  differences  in  the  approach  and  conclusions  reached,  by Ms Walker and Mr Todd-Downing on the one hand supported by Ms Mclean, and Dr Barry-Walsh on the other.   These differences must be explored further, as they qualify their evidence.

[77]     Dr Barry-Walsh in his report of October 2016 expressed reservations about how the legislation should be interpreted, and in some respects, particularly in assessing and ranking the risk of imminent offending, did not feel he was able to express an expert opinion.  He also expressed doubts about the relationship between the legal and clinical aspects of the question to be answered by the court, and to which his evidence relates.  This is, in part, a reason for his reticence in making any conclusive statement about the risk that Mr Douglas poses:

And the other issue I have is that this is very new legislation, so what does it

really mean?  I mean, I just don’t know those things.

[78]     In part, Dr Barry-Walsh’s reservations about the meaning of s 13(2)(c) are a function of the words used. He contemplates whether “absence of understanding or concern” imports a relative or absolute concept of “absence”.  He is hesitant because he considers Mr Douglas to demonstrate some degree of understanding.  Ms Walker and Mr Todd-Downing identify an, at best, superficial understanding.  Ms McLean’s report, although made earlier, before Ms van Rooy’s counselling, fits with their evidence.

[79]     In Wilson, Venning J considered that use of the verb “exhibits” did not mean that Mr Wilson had to be displaying those characteristics when assessed, because not all aspects of a person’s character will be on display at any particular time, and may

be latent but not present:12

12     Chief Executive of the Department of Corrections v Wilson, above n 3.

[28]     An immediate issue is what the use of the word “exhibits” in this context requires.  On one view of it, it could be said that “exhibits” connotes a requirement that Mr Wilson be presently displaying the particular characteristic(s) at the time of the assessment or hearing.  However, I do not consider that is what is required.  At any particular time not all aspects of a person’s character will be on display.  They may be latent but still present. In my judgment the issue is whether, as part of his personality, Mr Wilson has the identified behavioural characteristics to a high level, even if they may only manifest themselves in certain circumstances. It is not whether he is presently displaying them. If he has them to a high level, that will inform the assessment of whether he is a very high risk of imminently committing a serious violent offence.

[80]     In Wilson, the court looked to see whether overall, and not just based on assessment at any given time, s 13(2)(c) was satisfied.  The judgment in this respect was endorsed by the Court of Appeal in Alinizi.13   The word “displays” in terms of an ESO application, as with the word “exhibits” in s 13(2), does not mean that those traits and behavioural characteristics must be externally manifested at the time of the application, particularly where the evidence may be derived from self reporting.

[81]   I must decide whether what is on the evidence at best a very limited understanding on the part of Mr Douglas, nevertheless means that he  has some understanding and concern, so that the s 13(2)(c) test is not met, or whether the true nature of Mr Douglas’ understanding or concern meets the statutory test that there is an “absence” of understanding or concern, to a high level.

[82]     The expression in s 13(2)(c) “absence of understanding or concern…” may suggest there must be no understanding or concern.  I do not think that is right for several reasons.   First, it would be almost impossible to establish a “complete absence”. Someone may express intellectually an understanding, or concern, or as the evidence indicates, it might be parroted or rote. The expression “inability to cope with …” in s 13(2)(b) must also have an element of relativity about it because otherwise the mere demonstration of some ability, even extremely limited in scope, would defeat the plain intent of the legislation. Physically, someone may be absent, but  absence  of  something  is  defined  to  include  a  “lack  of”,  in  the  sense  of  a

deficiency:14

13     Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 458.

14     Oxford English Dictionary (online ed).

[83]     In my view the lack of, or deficit in understanding or concern must be at such a level as to fit the plain purpose of the Act in this respect, namely to identify whether the usual behavioural and psychological checks on a potential offender will not apply, because for example, there is no sufficient understanding or concern for the effect of the criminal act on a victim.

[84]     Mr Douglas has some understanding of the impact of his offending on his victims, as Dr Barry-Walsh has observed.   It is, however, quite possibly a rote expression, and ineffective as a check on his behaviour, which under impulse would not operate as any check at all.   If someone can simply say they have a level of understanding or concern and thus negate s 13(1)(c), it is not really a test at all. Equally, if they have a scintilla of understanding, that in my view cannot be enough. Ms  Currie  for  the  Chief  Executive  submits  that  the  evidence  discloses  that Mr Douglas has a superficial intellectual understanding of the negative effects of sexual abuse over the course of offence-focused treatment.  That is exemplified by Mr Douglas’ view that if a victim demonstrates some level of sexual arousal or absence of distress, or did not disclose the sexual offending, then no harm is done.

[85]     Mr Douglas’ autistic spectrum disorder limits the extent to which he can understand other people’s experiences. His concern is for the negative consequences of his actions to himself, which have taken second place to his sexual urges prior to and  during  offending.     During  an  interview  for  his  most  recent  assessment, Mr Douglas said he had developed a deep awareness of the impact of his offending on his victims, but this is tempered by his holding the distorted view that his last contact victim was partially responsible by consenting to the sexual activity. Thus what he says does not match his thinking. He has a distorted, not real understanding, albeit intellectually he understands that there are consequences for his victims.

[86]     Ms Currie further submits that while Mr Douglas professes to have some empathetic understanding, the reality is that this is superficial at best and not supported by his behaviour, and in particular his persistent offence paralleling behaviour as reported.   It is not necessary that the person concerned is presently displaying the characteristics for assessment, but it is sufficient that they may be latent and emerge only in certain contexts.

[87]   Ms Currie refers to a report made on 2 July 2008 that Mr Douglas predominantly viewed the world from his own perspective.  This, in my opinion, is too dated an assessment to be influential in judgment as to whether the test in s 13(2)(c) is satisfied.

[88]     The submissions for the Chief Executive may be tested against the judgment in Wilson,  where Venning J held that where there is evidence which presents to a degree the characteristics in s 13(2)(c), they cannot be said to be present “to a high level”.   Mr Wilson there lacked empathy for his victims but expressed some understanding of how his offending affected others.

[89]     In my view, an “absence of understanding or concern…” means that any understanding  or  concern  is  so  distorted,  superficial  and  self  orientated,  that  it marries  with  the  clear  purpose  of  the  legislation,  that  the  checks  and  balances inherent in the combined and individual characteristics in s 13(2) are not operative to negate the risks which derive from those characteristics.

[90]     I have reflected at length on the evidence which relates to s 13(2)(c) and in particular Dr Barry-Walsh’s opinion.     He explained that those with  an autistic spectrum disorder struggle to understand the mental states of others, are concrete in their thinking and often require scripts or explanations to deal with social interaction. What may seem an intellectual and rote account may reflect a genuine intellectual understanding.  However, he said that this needs to be balanced against the evidence that Mr Douglas continues to transgress sexual boundaries, even when provided with some understanding of the potential harm he can cause.   Nevertheless, he gave a plausible account of reasons why he developed an understanding of and concern for the impact of offending on victims in interview with Dr Barry-Walsh.

[91]     Mr Todd-Downing  recognised  the  reasons  for  the  differences  in  opinion between Dr Barry-Walsh and himself.  In part it relates to the level of psychopathic traits present, where he found high levels of psychopathy and thus a greater risk of re-offending, whereas Dr Barry-Walsh says no psychopathy is evident.

[92]     Mr Todd-Downing recognises the difficulty of those with autistic spectrum disorder (ASD) to disclose remorse and empathy.  Mr Douglas sees things from his own perspective so that his understanding of the minds of others and the impact of his  behaviour  is  “severely  limited”.  When  Mr Douglas  is  sexually  aroused  and preoccupied with sexual behaviour, he struggles to comprehend the consequences for anyone let alone an individual on whom he is fixated, and the consequences for that person.    Mr  Todd-Downing  said  that  Mr  Douglas’ level  of  sexual  arousal  can consume him totally at times and then he does not think about the consequences of his actions for himself or other people, but just responds to those urges and their gratification.   His urges and impulses marry with compulsivity to overcome the barriers in front of him.  I regard this as an important aspect of the evidence for the conclusion I reach.

[93]     Mr Todd-Downing said that the one-on-one sessions with the departmental psychologist at the Otago Corrections Facility, appeared the most successful of the treatments provided to Mr Douglas.   Ms van Rooy has been engaged in one-on-one counselling with Mr Douglas but still expresses her concerns as to Mr Douglas’s self-report of personal change as discussed above.  However, there has been progress in several respects, including Mr Douglas evincing some cognitive flexibility and taking an increased level of responsibility for his actions.   Mr Todd-Downing recognised that some of these results have not been evident before, but whether these will impact on Mr Douglas’ behaviour he thinks is a very different kind of question. He considers that there is real difficulty in treating these results with confidence as demonstrating behavioural change, and that Mr Douglas continues to distort the responsibility of the victim’s role in the offence.  He says that Mr Douglas struggles to appreciate that the victim is not in a position to truly consent to sexual activity. His behaviour in the prison environment is linked to sexual motivation.

[94]     Ms Walker acknowledged that Mr Douglas could elucidate an intellectual understanding of the negative effects of sexual abuse.  She said:

My impression, when he was speaking with me, was that the majority of the time, that became a self-focused concern and that he would become more focused on the negative effects, that the abuse he experienced had on him, rather than necessarily generalising that to an understanding of his victims’ experience, or potential victims’ experience of abuse.

She thought this expression was at an intellectual level and was “somewhat rote-learned”.   She saw no spontaneous expression of empathy or concern for the victims of his offending, nor any emotional connectiveness with that, in terms of variability and facial expressions:   “It all appeared to be at an intellectual or cognitive level, rather than any deeper understanding.

[95]     She related that to his autistic spectrum disorder.    Whatever understanding Mr Douglas had, that did not seem to have created much behavioural change in him, according to Ms Walker.  Dr Barry-Walsh said that Mr Douglas is a prime candidate for the use of anti-libidinal mediation and an alternative to that is Fluoxetine, which he has been prescribed, as a more tolerable but less effective alternative, without the side effects of hormonal agents.

Section 13(2)(c) - Conclusion

[96]     As to s 13(2)(c) factors, the evidence is conflicting and there are several reasons for that.   I conclude that “absence of …” is not an absolute measure.  To prove an absolute at a high level is illogical.  After consideration of all the health assessors’  evidence,  I  am  satisfied  that  the  characteristics  of  s 13(2)(c)  are established by evidence to a high level, and there is such a high level of deficit exhibited by Mr Douglas that any understanding or concern is inoperative as a check on his further offending.   His understanding, even intellectually, is flawed.   His behaviour  does  not  demonstrate  any  meaningful  understanding  or  concern,  and I conclude  that  under  impulse  or  urge,  the  understanding  he  evinces  is  of  no influence on his conduct whatsoever. His impulse for sexual gratification directs his compulsive behaviour to achieve that outcome.

[97]     I  conclude  that  evidence  to  a  high  level  establishes  all  the  s 13(2) characteristics at a high level, and that Mr Douglas exhibits a severe disturbance in behavioural functioning reflective of those characteristics.

[98]     If I had to, I would interpret s 13(2) as requiring the characteristics to be established to a high level, as I consider use of that expression in relation to evidence is inapposite.

[99]     That finding takes into account the reservations of Dr Barry-Walsh in his report and in evidence, but draws on all the evidence, and applies s 13(2) as a whole,

and s 13(2)(c) in particular, in the context of the statutory purpose to identify those whose severe disturbance in behavioural functioning may make for the very high risk of imminent serious sexual or violent offending under s 13(1)(b) of the Act.

D.      Section 13(1)(b)

[100]   As all the elements of s 13(2) are found to be established, s 13(1)(b) requires the Court to consider if, on the balance of probabilities:

13(1)(b)         there is a very high risk of imminent serious sexual or violent offending by the respondent if –

(i)        where the respondent is detained in a prison, the respondent is released from prison into the community; or

(ii)     in  any  other  case,  the  respondent  is  left unsupervised.

[101]   To repeat, Section 3 defines ”imminent” as follows:

Imminent,  in  relation  to  the  commission  of  serious  sexual  or  violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so.

[102]   The expression “suitable opportunity” is not defined but must relate to the setting in which the person who is thought to create such risk could put or find themselves.   It requires no further qualification.   On the evidence, suitable opportunities  are  those  where  supervision  of  Mr  Douglas  has  any  gaps,  which Mr Douglas has shown he can and will exploit, or try to exploit.  The evidence is stark.   When the opportunity presents itself Mr Douglas is determined and manipulative.

[103]   The judgment is for the Court, on the evidence.   The “very high risk” of “imminent” serious sexual offending reflects the “almost certain harm” which would caused by an offence which is “expected” to be committed, as soon as there is a “suitable opportunity to do so”.

[104]   Ms Walker’s re-assessment of risk used a multi-method assessment, beyond static risk factors, including the dynamic risk factors, and clinical assessment.  In her opinion, Mr Douglas is at very high risk of re-offending.

[105]   She refers to Mr Douglas having been subject to supervision and monitoring, but still having offended. The number of risk factors he presents means that they and he will only change very slowly over a long period of time.    I regard this as very important in coming to judgment.  Where he has access to a potential victim and the opportunity to act, there is a very high level of risk, potentially imminent.

[106]   Ms Walker says:

Mr Douglas has demonstrated a capacity and proclivity to engage in sexual offending behaviour given the briefest opportunity even while under 24-hour supervision (despite reportedly strict boundaries being imposed upon him). Given his level of sexual preoccupation and lack of insight into the impact of his offending on others, any future sexual offending could occur rapidly upon release should an opportunity become available. Furthermore, based on his history, Mr Douglas is likely to attempt to access child pornography soon after his release from prison (either via computer or other internet-capable device or through his acquaintances).

…

It is considered that there is a very high risk that Mr Douglas will engage in relevant sexual offending within 10 years of his release from prison. It is likely that any sexual offending behaviour would be preceded by a period of grooming, planning, and manipulation of the victims and/or the adults close to him.   Potential victims of any further relevant sexual offending would most likely be male pubescent or pre-pubescent children.   Mr Douglas is likely to gain access to potential victims by circumventing the barriers and monitoring put in place to restrict his access.   Given his previous offence pattern, it is unlikely that he would perform a penetrative sexual act without some effort to get to know that victim.  He may engage in kissing, caressing, and genital contact after only brief unsupervised contact with a potential victim.

(emphasis added)

[107]   Mr   Todd-Downing   considers   that   using   multi-method   assessments, Mr Douglas is considered to be at a very high risk of committing another relevant sexual offence within 10 years of his release, and as he is considered to be an offender   “high in psychopathy” and sexual deviancy, he is especially likely to re-offend and to do so quickly.   The combined effect of psychopathy and sexual deviancy lends to greater risk.

[108]   Mr Todd-Downing considers that Mr Douglas’ potential victims, should he offend, are likely to be pre-pubescent or pubescent males alone, targeted by him and then befriended.  He refers to the possibility that Mr Douglas will manipulate and exploit  knowledge  of  routines  and  impose  conditions  to  create  opportunities  to offend, including grooming and sexualisation of potential victims.  The potential for offending is thought to be imminent as there is clear evidence of an intense drive or urge to commit a relevant sexual offence, he shows limited self-regulatory capacity in general, and he has deviant sexual arousal characteristics.

[109]   Mr Todd-Downing says:

The potential imminence of Mr Douglas reoffending is considered to be high.  The writer’s assessment is that he is high in sexual pre-occupation and compulsivity, has limited sexual self-management skills, and is not overly inhibited by fear of consequences or concern about the impact of his offending on others.  Rather, he is capable of imbuing potential victims with his own sexual interests and intentions and interpreting them as complicit in sexual contact.  He is capable of becoming quickly sexually attracted to, and fixated on a potential victim.   He has shown himself to engage in sexual activity when only the briefest opportunity presents itself.  Mr Douglas has also shown himself capable of manipulating others in order to create opportunities for himself and his grooming of others may only extend to the earliest opportunity for compliance and his instruction and guidance. Imminence in Mr Douglas’ case may well be more dependent on the quality of containment placed around him.

[110]   Dr Justin Barry-Walsh says:

I have highlighted the limitations in our capacity to accurately assess risk and this would include making a probabilistic statement about imminence of reoffending.  However, it is reasonable in the case of Mr Douglas to argue that were he to be returned to the community without supervision, given his current presentation and the evidence of a number of factors that contribute to highly sexualised and often offensive behaviour that there would be considerable concern that he might return to offending behaviour which could include serious sexual offending, presumably most likely against pubescent males. The speed of any return to such behaviour is contingent on a number of factors and cannot be precisely predicted.  Noting his previous pathway to offending, persisting sexual deviance and high libido (if he isn’t treated with or fails to respond to medical intervention in this area,) accessibility to potential victims and opportunities to offend would be relevant, the latter two factors that may be [managed] through tight supervision.

[111]   As with s 13(2)(c), Dr Barry-Walsh has reservations about expressing any conclusive  statement  as  to  the  degree  of  likelihood  of  the  risk  of  Mr Douglas

committing relevant offences. He was questioned on some of his reservations in relation to giving a clinical opinion about the s 13 tests as they relate to Mr Douglas:

Q.        The statutory framework requires the Court to consider certain levels of risk and ESO being high risk and a PPO being very high risk.  In terms of your medical evidence are you able to assist with those types of risk assessments?

A.       Well I’ve, I’ve deliberately resiled from doing that and there’s a couple of reasons for that.  The first one is what does one mean by high risk, very high risk, low risk?   Usually in my understanding there might be two meanings so the first one is when you say someone’s  high  risk  you're  saying  they’re  someone  that  needs intense or high level of resource.   The second issue or the second way it might be used is you might mean that this person’s at a greater risk of further offending than others to commit similar offences.  I don’t know what the law means in this instance by very high risk in a specific sense.  I’m very cautious about that.  There’s another  issue  too  that  I’m  a  clinician.    I’m  trained  as  a  health assessor to assess people with regards to risk, as part of assisting in considering options for treatment and management.    I think that it puts me ethically in a difficult position if I’m simply to comment on issues of risk for punitive purposes so that’s another reason I’m very cautious about making risk statements.

[112]   Dr Barry-Walsh said he was uncomfortable with the notion that probabilistic risk assessment can be made, meaning a percentage change of re-offending, because the science does not allow for that.  He acknowledges that the legislation seems to point to an assessment which has some measure of that.  His reservations about the legislation, and risk assessment, means that he has not said whether he thinks that Mr Douglas poses a very high imminent risk and his report did not really meet the criteria which he was asked to address by the legislation.

[113]   Dr Barry-Walsh acknowledged to Ms Currie that he sees benefit in the ASRS method, as it used a probability based New Zealand offender sample, and he acknowledged what he described as the “excellent job” of the Department of Corrections  in  developing  instruments  validated  in  New  Zealand,  including  the VRS-SO which employs dynamic factors.

[114]   In the end, Dr Barry-Walsh recognised that the criteria set by the legislature does require a measure of risk assessment, and he accepted that other experts worked within the best evidence framework to do so, but his clinical practice did not allow him to take that final step.   He acknowledged he was still expressing a deep level of

concern, and that the problems which arose when Mr Douglas was at Kia Marama

were “really concerning…”.

[115]   Dr Barry-Walsh has a clear view that anti-libidinal medication should, or may be, trialled to assess Mr Douglas’ future risk to his potential victims.   The Chief Executive’s response has been mentioned, that this is not favoured in New Zealand by other professionals, is untested, not guaranteed, and requires the consent of the person trialled, which could be withdrawn at any time.   The anti-depressant Fluoxetine is being trialled on Mr Douglas which has significant side effects, but cannot yet be assessed for its effect on the application before the Court.

[116] Ms Saunderson-Warner challenged Mr Todd-Downing as to his use of psychopathy checklist screening methodology.  He used the result to identify traits that could relate to his risk assessment.  The presence of those traits increased the level of risk he assessed.  Dr Barry-Walsh did complete a full psychopathy checklist. Mr Douglas scored highly but below the usual cut-offs for psychopathy diagnosis. He  recognised  that  ASD  is  a  contributor  to  the  scores  on  the  psychopathy instruments.   He acknowledged that probalistic assessment alone is in error, so he reverts to what he considers the best approach to risk assessment which he says is accepted within the New Zealand legal system, and the use of actuarial group data. He emphasised the need to go beyond the profile of recidivism where an individual may lie within the data, so that a more individualistic assessment can be made.

[117]   He explains his reservations about a judgment as to psychopathy with its sometimes pejorative connotations, and a recent move towards identifying psychopathic traits or dimensions.  He said that any assessment of Mr Douglas must recognise that he has autistic spectrum disorder and it is difficult to score him as to psychopathy.  When he sought to make a diagnosis, he found elements which relate to his autistic spectrum disorder.    He does not think Mr Douglas is psychopathic which means the association of psychopathy and sexual deviance does not apply.  He does not say that someone with psychopathic traits, but not the diagnosis, should not have those traits brought to account when assessing risk, but that Mr Douglas did not have a high level of psychopathic traits, and his ASD should make one cautious

about linking those traits to psychopathy. At this stage he would rule out a diagnosis of psychopathy.

Section 13(1)(b) – Conclusion

[118]   The objective and principles of the PPO are expressed in simple and cogent language. Parliament intends that any order is for the protection of members of the public.  It is emphatically not to punish the person against whom orders are made.

[119]   I am satisfied Mr Douglas has all the characteristics in s 13(2) established by evidence to a high level and at a high level, and that Mr Douglas does pose a very high  risk  of  imminent  serious  sexual  offending  as  defined  in  s 13(1)(b).    His impulsivity and compulsivity, high level of sexuality, and demonstrated ability to circumvent  systems  in  place  to  reach  his  targeted  victims,  means  a  PPO  may therefore be imposed.  However, I must now address whether an ESO would be an adequate response for the protection of the public.   If that is the case, I should exercise my discretion not to impose a PPO.

E.       PPO or ESO?

[120]   A PPO is discretionary.   Whether an ESO with intensive monitoring is a better alternative is a proper consideration, viewed in the light of the legislative intent to protect potential victims and not to punish, and one which recognises that the severe constraint of a PPO is based on the risk of future criminal acts.

[121]   The issue in this case is whether an ESO with intensive monitoring would suffice.  Ms Saunderson-Warner has skilfully and carefully put the case for an ESO with its lesser constraints and as an arguably better setting in which to provide and to observe therapy which may be available to Mr Douglas.

[122]   Dr Barry-Walsh has experience of a placement under an earlier ESO regime and said that there was no “cliff that you fall off” after 12 months, which is the maximum period of intensive monitoring under the present legislation.  He did not know what resources and treatment would be available under the new ESO regime, but he says Mr Douglas has treatment needs and if he responds to those, his risks

would  substantially  reduce.  The  treatment  responses  which  Dr  Barry-Walsh considers appropriate were discussed in his evidence.

[123]   There is the opportunity for interventions with Mr Douglas which should be trialled, and all could be done within the scope of a PPO if there is a will and these are the resources for that.   Dr Barry-Walsh says he would call Mr Douglas “high risk” as he has a high level of need and requires intensive management treatment. Without suitable management he would be more likely than most other offenders to re-offend.  The focus on management and treatment, together with the effectiveness of supervision under an ESO, brings the regimes of a PPO and an ESO under scrutiny.

[124]   Mr  Todd-Downing  said  that  the  treatment  of  Mr  Douglas  within  group settings had not had much effect, but his response to one-on-one treatment indicates some progress and may be sufficient to drop his dynamic risk.   Mr Douglas’ responsivity needs might be addressed within an individual setting,  but a group environment provides other characteristics of the kind which treatment in the community might provide.  Mr Todd-Downing does not think the cumulative effect of treatment provided to Mr Douglas, whether group or individual, has been great. His  view  is  that  treatment  is  more  effective  if  community-based.  Within  a community there is greater potential to be exposed progressively to areas of risk, and Mr Douglas might learn to manage himself more safely.  That is harder to achieve within a completely secure facility under a PPO.

[125]   Mr Todd-Downing considers that the high level of treatment needs identified for  Mr Douglas  and  his  responsivity  issues  means  that  12  months  intensive monitoring under an ESO is a very short time to achieve the purposes of such treatment and monitoring.   However, he recognised conditions might apply after

12 months, and an application for a PPO might later be made.  Overall, he does not think 12 months would produce effective and stable change for Mr Douglas.

[126]   In Chief Executive of the Department of Corrections v Brown,15  one of the health assessors, Dr Vertue, said that the conditions of intensive monitoring were in

15     Chief Executive of the Department of Corrections v Brown [2016] NZHC 1038.

spirit very similar to those under the repealed provisions. Her view, as recorded in Brown, was that if someone has an extremely high level of support and oversight, which is suddenly removed, then there are obvious risks.  She said unless there was a graduated process by which high level support was reduced “then … we’re really setting people up to be really miserable and fail”.16     Addressing this requires a tailored programme for each person.  Mr Brown had breached a supervision order made in his case on nine occasions, so compliance was a highly relevant factor.

[127]   Dr Vertue’s reservations were echoed in the evidence in this case.   There remains doubt as to the efficacy of the transition from intensive monitoring, which clearly has strong protective elements, to a period beyond the 12 months maximum. The ESO cannot go beyond the 12 month period of intensive monitoring and in itself will not match the protection provided by a PPO.   Nevertheless, the Court is urged by Ms Saunderson-Warner to reach the view that an ESO with intensive monitoring is the right course to take, as it affords Mr Douglas the better opportunity to treat in various ways for what is his certain propensity to reoffend.

[128]   Mr Saunderson-Warner submitted that the ESO with intensive monitoring should be tried, and if found insufficient to address the risk posed by Mr Douglas, then a PPO application could be made at that point.  That seems to carry some risk in itself: any shortcomings under an ESO might be revealed in a confounding way, perhaps by further offending. Assessment of the risk short of that sort of event would be constrained by the maximum 12 months intensive monitoring.

[129]   I hold reservations about the intensive monitoring lasting only 12 months based on a consistent perspective held in evidence, by Dr Vertue in Brown, and all three witnesses who gave evidence in this case.  I did not in the hearing consider that to be a viable option but further submissions made in November 2016 as to what may be achieved under an ESO regime have given me pause for thought.

[130]   In Brown, the respondent had been released from prison on standard and special release conditions, and prior to his release an application for an ESO for a

period of 10 years was sought, given the likelihood that he would commit an offence

16 At [44].

referred to in s 107(2)B of the Parole Act after he ceased to be an eligible offender. An  order  was  made  to  that  effect  to  expire  on  20  February  2020.  The  Chief Executive applied for a further order, which would extend the extensive supervision order, with intensive monitoring, and because of that special condition, the matter necessarily came before the High Court.  Mr Brown presented an escalating risk to children. A further ESO with intensive monitoring was made.

[131]   Intensive monitoring is imposed under s 107IAC, which replaces the special conditions which could be imposed by the Board under s 107K(2) of the Parole Act. It was considered to be of potential in R v Tepania.17   In that case the Court imposed a finite sentence in lieu of preventive detention where there was a high frequency violent offender against women. Woolford J said:18

… in addition to the general conditions imposed… the Parole Board may impose special conditions under s 107K including residential restrictions, which include the possibility of electronic monitoring for up to 12 months. You have not been subject to a similar condition before.   The Board may impose those conditions without being satisfied that the offender agrees to comply with them.  Any breach of conditions of an ESO order is an offence punishable by a term not exceeding two years imprisonment, and any constable or probation officer may arrest without warrant if they have reason to  suspect a  breach.    Given  those provisions I  consider  that an  ESO if ordered would provide significant protection for the community and disincentives [for] reoffending by you, Mr Tepania.

[132]   An intensive monitoring regime may include, in the first 12 months, 24 hours per day supervision by someone approved to undertake such.19    It tends to be sought where the offender’s risk of offending is considered to be high and external controls are necessary to mitigate those risks.

[133]   When assessing the comparative merits of a PPO or an ESO with intensive monitoring, I would not come down in favour of the latter, without assurance on the evidence, and practice, as to equivalent effectiveness for the protection of potential

victims on the facts of this case.

17     R v Tepania [2014] NZHC 2230 at [69] (footnotes omitted) (emphasis added).

18     At [69] (footnotes omitted) (emphasis added).

19     Section 107 IAC (2).

[134]   The decision  of the  Parole  Board  in  respect  of  Leon  Ranui20   was  made available to the court after the hearing concluded.  The Ranui decision is submitted by Ms Saunderson-Warner to demonstrate that significant constraints can be imposed after the 12 months period, as six years into a 10 year ESO term, restrictions were imposed that required Mr Ranui to be subject to a residential rehabilitation programme with person-to-person monitoring for 14 hours per day, and residential restrictions for the remaining 10 hours.   Electronic monitoring applies at all times when he is not personally monitored.   He is confined to his residence, and no females may be present.

[135]   Ms  Saunderson-Warner  says  the  stringent  conditions  imposed  in  Ranui answer the concerns about what might happen after intensive monitoring ends, so that an ESO with personal monitoring fulltime for the first year, and then part time under a rehabilitation programme, will significantly reduce the risk of Mr Douglas re-offending.

[136]   There was commonality between the expert witnesses as to the need for robust release planning and close supervision when Mr Douglas returns to the community in any way.   Dr Barry-Walsh said that although he had a limited understanding of the extended supervision milieu, Mr Douglas’ risks and treatment needs might be met within that regime.  That would allow him to remain in close contact with his mother, and would provide an opportunity to test the extent to which he responded to anti-libidinal medication.   It would allow for further long term therapy to target his sexual offending, and address the difficulties that derive from his autistic spectrum disorder.  His delayed development may be caused by autistic spectrum disorder, and he may only now be reaching maturity and developing the necessary   personality   integration   in   order   to   self-regulate   and   respond   to intervention. Dr Barry-Walsh considered that his autism, with his childhood experiences and other factors, has had a significant impact on his personality development, and is a major contributor to his offending.

[137]    Mr Todd-Downing said that the environment in which Mr Douglas lives is going to be influential in terms of the kind of stimulae he is exposed to, and the ways

20     Chief Executive of the Department of Corrections v Ranui [2016] NZHC 1174.

he can respond, and how his behaviour and response is to be managed.  These will influence how the risk manifests itself. He says that Mr Douglas requires external management, at a minimum more than just an electronic bracelet and a whereabouts check, but with a great level of tighter supervision and monitoring, until he can demonstrate it is safe for him otherwise.

[138]   When   comparing   a   PPO   and   an   ESO   with   intensive   monitoring, Mr Todd-Downing says that an ESO with intensive supervision can contain risks, but it depends upon the service provided.  He does not consider the 12 month period of intensive   supervision   sufficient   to   prepare   Mr Douglas   for   effective   self management, but if he thought that there was a high likelihood that Mr Douglas would benefit from treatment within that 12 month period, he would see that as a good option.   Given the level of treatment Mr Douglas needs and the level of responsivity, Mr Todd-Downing was not confident that that would be sufficient to provide what is required in order for Mr Douglas to be self managing at the end of it. Ms Saunderson-Warner put the obvious to Mr Todd-Downing, that if after 12 months he hadn’t made the progress expected, perhaps with anti-libidinal medication, then an application for a PPO could be made at that time.

[139]   To reach a different view, Ms Walker would expect that over a period of at least 12 months, preferably more, there would need to be a reduction in offence paralleling behaviour in the environment in which Mr Douglas is placed.  He would have to show some independent risk management, take some responsibility and be proactive in terms of identifying potential risk situations and coming up with reasonable means of managing those safely.  A lesser degree of reliance on external monitoring and supervision would need to be warranted, and tested in a variety of settings and situations.    Further, Ms Walker said “I would expect to see that his behaviour was consistent with his verbalisations”.

[140]   Ms Walker accepted that under a PPO, with its high containment and reliance on the security of the environment to provide primary risk management, means that under an ESO, with intensive monitoring, Mr Douglas’ development of personal risk management would be easier to test.  This was put neatly by Ms Walker when she said:

The PPO obviously is the containment of risk in the most restrictive environment.  In that regard we can have greater confidence that there will be fewer opportunities for relevant offending against children in that environment but yet also fewer opportunities for Mr Douglas to perhaps demonstrate or display any change in the expression of risk factors that have been identified as relevant to date or his manageability thereof.

[141]   She said Mr Douglas’ high sex drive, his sexual pre-occupation and sexual compulsivity may be treated, but Ms Walker is not able to say with confidence whether he is one of those individuals who will respond positively.   She has no relevant experience.

[142]   I conclude that there are clear grounds to make a PPO.  I remind myself that a

PPO should:21

…only be imposed if the magnitude of the risk posed by the respondent

justifies the imposition of the order.

[143]   There  are  persuasive  reasons  to  consider  an  ESO  in  the  alternative, particularly to  test  Mr  Douglas’ response  to  treatment.    However,  the  need  for potential victim protection is paramount and I do not consider that I am sufficiently informed as to how Mr Douglas would respond, and what risk he would pose after

12 months intensive monitoring.  I conclude that a PPO should be made and in doing so I have considered the practical consequences.

[144]   Parliament has made it clear that a PPO is consistently to be under review.

[145]   Section 4 of the PSPO provides:

4         Objective of Act

(1)       The objective of this Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.

(2)       It is not an objective of this Act to punish persons against whom orders are made under this Act.

[146]   The legislature has recognised that:22

21     Section 5(b) of the PSPO Act.

22     Section 5(d).

…persons who are detained in a residence under a public protection order should  have  as  much  autonomy  and  quality  of  life  as  possible,  while ensuring the orderly functioning and safety within the residence.

[147]   The severity of the restrictions imposed under a PPO, is recognised where the

Act provides that:23

During the currency of a public protection order, the review panel  must review its continuing justification of the order –

(a)       within 1 year after the order is made; and

(b)       then –

(i)       within every succeeding year after the most recent review of the order by the review panel; …

[148]   Then:24

(2)       If the review panel considers that there may no longer be a very high risk of imminent serious sexual or violent offending by the person, subject to the public protection order, the review panel may direct the chief executive to apply to the court for a review of the order under section 16.

[149]   If no such direction is given, the review panel:25

(a)       Must  review  the  management  plan  of  the  resident  to  ascertain whether the plan continues to be appropriate; and

(b)       May make any recommendations to the manager of the residence in which the resident is required to stay.

[150]   Further, during the currency of a PPO, the Chief Executive must apply to the court for a review of the continuing justification for the order within five years after the order is made and then within five years after the first review, and then at intervals of not more than five years, and otherwise whenever the review panel

directs the chief executive to apply.26

23     Section 15(1)(a) and (b).

24     Section 15(2).

25     Section 15(3)(a) and (b).

26     Section 16(1) of the PSPO Act.

[151]   A person subject to a PPO may, with leave of the court, apply to the court for a review of the order.  Further provisions for review are addressed under ss 17 and

18 of the PSPO Act.

[152]   These provisions demonstrate very clearly that the magnitude of a PPO is recognised by a constant process of review as to whether it remains justified, and whether the management plan remains appropriate.   The court is involved at five year intervals, if not earlier.

[153]   There is a well made case for the less restrictive ESO regime, but I have decided that the need for protection of potential victims must come first.  It is not by any  means  certain  that  it  will  remain  in  force  a  lengthy  time.    It  responds  to Mr Douglas  as  he  presents  today.  It  may  be  harder  under  a  PPO  to  achieve meaningful progress in treating and helping Mr Douglas, but if his response under that regime warrants reconsideration then the path is marked by the legislation.  Only to some degree is this in his hands as he suffers from deficits in his behaviour and thinking which are not his fault, but a product of the multiple physiological and psychological influences on him.

[154]   Whether an ESO with intensive monitoring should be preferred instead of a PPO has proved to be a difficult decision.  It always will be except in circumstances of  concurrence  between  experts  and  even  then  it  is  for  the  Court  to  make  the decision.  The very idea of containment other than under sentence, albeit in purpose built accommodation, is inherently troublesome.  It is reserved for those cases where there is really no option, to avoid the very high, serious, and imminent risk posed by an individual.  Mr Douglas does pose that risk.  He may not do so after treatment, and the passage of time, and under the required reviews the PPO may no longer be considered necessary.

Counsel

[155]   I am grateful to counsel for their thorough presentation of the case, and the careful way the difficult concepts and evidence have been addressed.

F.       Disposition

[156]   A Public Protection Order is made, to take effect on 10 January 2017 which will give Mr Douglas and his family time to adjust to the change in his living conditions.

[157]   Mr Douglas will remain under Interim Detention until he is resident in the accommodation provided.

[158]   I reserve leave to the parties to apply for other orders or directions necessary to effect this judgment.

[159]   Costs are reserved.

…………………………………

Nicholas Davidson J

Solicitors:

Raymond Donnelly & Co, Christchurch

S A Saunderson-Warner, Barrister, Dunedin