Chief Executive of the Department of Corrections v Grey

[2024] NZHC 3509

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000491

[2024] NZHC 3509

UNDER

Section 107F of the Parole Act 2002

IN THE MATTER

of an application for an extended supervision order

BETWEEN

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

AND

JOSHUA GREY

Respondent

Hearing:	26 September 2024
Counsel:	F M T Culliney and A N Dawson for Applicant S Kim for Respondent
Judgment:	22 November 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 22 November 2024 at 3 pm

Registrar/Deputy Registrar

Solicitors:

Meredith Connell (Auckland) for Applicant

Public Defence Service (Auckland) for Respondent

DEPARTMENT OF CORRECTIONS v GREY [2024] NZHC 3509 [22 November 2024]

Introduction

[1]        Mr Grey is eligible under the Parole Act 2002 (the Act) for the imposition of an Extended Supervision Order (ESO).

[2]        The purpose of an ESO is to protect members of the community from those who, having been sentenced to a term of imprisonment, pose a real and ongoing risk of committing serious sexual or violent offences.1

[3]        Offenders who are subject to an ESO have imposed upon them parole-type conditions as determined by the New Zealand  Parole Board for a period of up to    10 years. The purpose is to enhance community safety by providing ongoing supervision and management of high-risk offenders. The standard conditions are set out in s 107JA of the Act. The New Zealand Parole Board can impose special conditions to meet particular risk management needs.2 The type of supervision envisaged under the regime includes frequent contact with a probation officer and conditions to manage known high-risk situations.

[4]        In this case, the applicant applies for an ESO to be imposed on Mr Grey, who does not oppose that. Nevertheless, I have to be satisfied that an ESO can, and should, be made. I have read all the material provided by the parties and I agree that the statutory criteria for making an ESO are made out. I will make an ESO because I have no doubt that this is a necessary protective measure for the community.

[5]        In reaching this decision, I have taken into account that the Court of Appeal has made a declaration that the imposition of an ESO is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that the inconsistency has not been justified under s 5 of that Act.3 Subsequent decisions of the Court of Appeal have held that because of this there must be “strong justification” for an ESO before one is

1      Parole Act 2002, s 107I(1).

2      Section 107K.

3      Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 [Chisnall (reasons decision)]; and Chisnall v Attorney-General [2022] NZCA 24.

imposed, and that “strong justification” is not met simply because oversight would be desirable or beneficial to the offender as they transition to being in the community.4

[6]        The applicant wants the duration of the ESO to be the maximum of 10 years. Mr Grey opposes that. He contends that in all the circumstances the period should be five years.

[7]        The applicant also wants Mr Grey to be subject to an intensive monitoring condition (IMC).5 An IMC usually requires an offender to submit to monitoring, for up to 24 hours a day. An order imposing an IMC must specify its duration, which cannot be longer than 12 months.6 Mr Grey opposes the imposition of an IMC. He contends that it would be too restrictive of his rights and unnecessary given the ability to impose suitable ESO conditions.

[8]This Judgment therefore decides two issues:

(a)the duration of the ESO; and

(b)whether Mr Grey should be subject to an IMC.

The duration of the ESO

[9]Section 107I(5) of the Act provides:

The term of the order must be the minimum period required for the purposes of the safety of the community in light of—

(a)the level of risk posed by the offender; and

(b)the seriousness of the harm that might be caused to victims; and

(c)the likely duration of the risk.

[10]      I begin with the level of risk posed by Mr Grey. I have read, and gained considerable assistance from, reports from Dr Fisher (dated 1 September 2023 and

4      R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53], citing Chisnall (reasons decision), above n 3, at [190]. See also Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [47].

5      Parole Act, s 107IAB(1).

6      Section 107IAC(3).

22 August 2024), submitted by the applicant, and from Dr Grzes (dated 6 March 2024 and 14 August 2024), submitted by Ms Kim on behalf of Mr Grey.

[11]      I also  had  the  benefit  of  Dr Fisher’s  oral  testimony  at  the  hearing  on  26 September 2024.

[12]      I will not traverse Mr Grey’s criminal record and the reasons why he is eligible for the imposition of an ESO. I have no need to given that Mr Grey does not oppose an ESO.

[13]In her report of 22 August 2024, Dr Fisher states:

OVERALL RISK ASSESSMENT:

24Overall, Mr Grey is considered to present a high risk of committing a further relevant sexual offence if left unsupervised in the community. This risk is likely to escalate further should Mr Grey cease medication for his mental health needs and to return to a transient and unstable lifestyle. This opinion is based on his high scores on relevant standardised risk assessment tools, which have been updated for the current assessment, poor treatment success, the contribution of his personality functioning, and substance use on top of his mental health difficulties, limited protective factors, enduring sexual compulsivity and possible sexual deviance.

25The previously provided opinion regarding Mr Grey’s risk of further violent offending is considered to remain valid. Mr Grey is considered to present a high risk of committing a further non-relevant violent offence.

26The previously provided risk parameter statement remains valid and has been repeated below as it is referenced below under the 1071AA opinions:

If Mr Grey were to reoffend sexually this would most likely be in the context of him leading an unstable lifestyle, experiencing persistent high sexual compulsivity/sexual drive, possibly experiencing negative emotions and wanting to feel good, and him persisting with trying to engage a female in sexual behaviour with him, even if he was faced with resistance. This offending is more likely to occur should Mr Grey disengage from his medication. Such offending may be as serious as rape or may be an indecent assault, similar to the 2022 offending, where there was an element of stalking, persistence, and physical touching not only of the victim with his hands but with his penis as well. A victim of this offending would likely be an adult female who was vulnerable due to being alone, or a younger person who was vulnerable due to their age. Given Mr Grey’s history of intimate partner violence when he is in some form of intimate relationship, it is possible that sexual offending could also occur in the context of a

short-term relationship. Given Mr Grey’s strong focus on meeting his sexual needs, the possibility of further sexual offences is high.

[14]Dr Grzes, in her report of 6 March 2024, states:

40. Overall, Mr Grey is considered to present with a risk of further sexual re-offending in the Level IVb Well-Above average range over the first five years following release compared to the normative samples for actuarial and dynamic risk measures, and is assessed as being a high priority for intervention using structured clinical judgement. Any further sexual reoffending is likely to occur in the context of an impulsive act while having an unstable lifestyle through his engaging in substance use, noncompliance with his medication, sexual compulsivity, lack of understanding for social communication, hostility towards women, poor perspective-taking and entitlement. In such a context, Mr Grey is considered most likely to offend against an adult female or a female adolescent with developed secondary sexual characteristics known to him, likely following feeling that she has rejected his advances. Mr Grey is not considered to have a preference for children. Mr Grey has few protective factors, although he does have the support of his father, as discussed later in this report. He has a history of hostility towards women, substance use, entitlement, high sex drive and sexual preoccupation, poor problem-solving abilities likely due to his borderline cognitive functioning, mental health and personality disorder symptoms, all of which lead him to make poor choices and engage in impulsive behaviours. It is also noted that    Mr Grey has displayed concerning behaviours such as inappropriate comments towards females with whom he was in a professional relationship. Although this does not constitute offending, it speaks to Mr Grey’s poor problem-solving skills and lack of understanding of boundaries.

[15]      Taking account of Mr Grey’s criminal history, his inability to manage his impulsive behaviour, and the reports of the experts, I find that his overall level of risk is high.

[16]      Having regard to Mr Grey’s criminal history and the reports of the experts, including the passages I have just quoted, I find that if Mr Grey were to re-offend sexually, the seriousness of the harm that might be caused to his victims would be at a high level.

[17]      As to the likely duration of the risk, Mr Grey’s combination of cognitive and mental difficulties, inability to self-regulate and lack of insight into his offending mean that he will present some level of risk for the foreseeable future. His risk is elevated when he is in an uncontrolled environment. He is least likely to re-offend if he is in

an environment where he is motivated to take his medication and engage positively with others; an environment in which he refrains from using alcohol and illegal drugs and has a stable lifestyle.

[18]      Since 16 November 2023, Mr Grey has been subject to an Interim Supervision Order (ISO).7 On 14 August 2024, this was modified to require him to live at Kāinga Taupua, a charitable facility focused on men’s reintegration services and providing a community for the men  who reside  there.   It is an appropriate  environment for   Mr Grey, but of course Mr Grey has to co-operate to gain the most benefit from it. On 5 September 2024, Mr Grey failed a drug test. He tested positive for cannabis. That does not by itself alter his risk profile but it does illustrate the experts’ view of his inability to self-regulate.

[19]      Ms Culliney, for the applicant, submits that I should, in effect, face the reality that Mr Grey, at the age of 39 years, will not change and that if I do not impose the maximum term of 10 years on the ESO there will simply be an intermediate need for a further application.

[20]      I am influenced by Dr Fisher’s oral evidence. Dr Fisher agreed that although Mr Grey will struggle to accept any term, making it 10 years could lead him to conclude there is no point in engaging in rehabilitative treatment:

Ms Kim:So would you agree that if he was to be assessed again in a shorter period of time and he knew about that would this increase his motivation to engage in treatment and rehabilitation?

Dr Fisher: Maybe. I’m not sure. I think for Mr  Grey,  just  on  a  conversation that yesterday I had with him as well that any order is going to have a little bit of a sense of unfairness to it and I think long term kind of planning for himself is difficult as well. So being able to see forward a number of years even is still going to be difficult for him but it may have less of a negative impact perhaps than a longer order.

[21]      Further, it does seem that if Mr Grey does not offend sexually in the next five years his risk will be significantly reduced thereafter. That is Dr Grzes’s view and Ms Kim had this exchange with Dr Fisher at the hearing:

7      Chief Executive of the Department of Corrections v Grey [2023] NZHC 3238.

Ms Kim:In your opinion would you agree that re-offending in the second half of – if someone was on a 10 year period year, so, sorry, would you agree that re-offending in the second half of that 10 year period is unusual?

Dr Fisher: I think the better way for me to answer that is that generally speaking the research that we – sorry, research into sexual offending over time indicates that if an individual is able to maintain themselves offence-free and that’s offence-free sexual offending as well other behaviours as well, but offence free for five years then generally the majority are not re-offending after that five year period. There are some complexities I think with Mr Grey in terms of his kind of enduring difficulties with his mental health and with his interpersonal skills in terms of being able to engage with others in his cognitive capacity. That may make him a little bit different from the normal kind of general sample. But generally speaking if an individual is able to maintain offence- free over five years their risk significantly decreases after that.

[22]Ms Kim developed the point:

Ms Kim:Thinking of Mr Grey’s particular circumstances and how he presents wouldn’t it be equally true that especially given the wrap around support that he is now in it would be fair for him to be able to provide some sort of behavioural change leading up to the five years and be re-assessed as to his risk?

Dr Fisher:        Did you say would it be fair to?

Ms Kim:Yes, would it be more appropriate for his risk to be re-assessed at a five year mark rather than a 10 year period?

Dr Fisher: I would agree with that  yes, I think generally speaking that  would give him the opportunity to demonstrate chance potentially over that period.

[23]      Having regard to the Court of Appeal’s view of the ESO regime (which I refer to at [5]), I find that the minimum term of the ESO which I can impose consistent with the requirements of s 107I(5) of the Act is five years.

Should there be an IMC?

[24]Ms Culliney explains:

6.18 An intensive monitoring condition requires the offender to be accompanied and  monitored  by  an  approved  person8  for  up  to  24 hours a day. This would be implemented by Mr Grey’s accommodation provider, Kaainga Taupua. The condition will require that Mr Grey be within line of sight of the person monitoring (a staff member at the facility) at all times, apart from situations where there is an expectation of privacy. Any order made must specify the maximum duration of the intensive monitoring condition, which must not exceed a period of 12 months.

[25]      Ms Kim submits that an IMC would be too intrusive on Mr Grey’s rights and, in any event, unnecessary. Mr Grey has already been subject to an IMC since the ISO was imposed on 16 November 2023. It has been operative at Kāinga Taupua since  14 August 2024. Mr Grey has not behaved in a sexually inappropriate way at Kāinga Taupua and all that is required for the protection of the community is that he be accompanied, and directly supervised, by a staff member of Kāinga Taupua whenever he leaves the facility.

[26]      Further, Ms Kim submits that a full residential restriction is not required.    Mr Grey would be required by the ESO (as he is by the ISO) to be electronically monitored at all times. The least restrictive option for Mr Grey would be to simply impose a curfew of 8 pm to 8 am daily.

[27]      In my view, an IMC is required to continue to manage Mr Grey’s particular risk profile. I do not accept Ms Kim’s submission that while he is at the Kāinga Taupua facility he is not a real risk. His history shows that when the impulse takes him, he is a risk to staff at facilities where he is resident. An IMC does not mandate 24 hour, seven days a week surveillance, but it makes it possible.

[28]Equally, a full residential condition is required to manage Mr Grey’s risk.

[29]      Given the length of time Mr Grey has already been subject to an IMC under his ISO, I will direct that the maximum period of the IMC will be seven months.

8      Parole Act, s 107IAC(2): an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.

Decision

[30]      The application is granted. I make an order that Mr Grey be subject to an extended supervision order.

[31]      The extended supervision order will commence on 22 November 2024. Its duration will be five years from that date.

[32]      I make an order requiring the New Zealand Parole Board to impose an intensive monitoring condition on Mr Grey. The maximum duration of the condition is to be seven months.

Brewer J