Chief Executive of the Department of Corrections v Hartley
[2025] NZHC 903
•14 April 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-46
[2025] NZHC 903
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
PETER HARTLEY
Respondent
Hearing: 9 April 2025 (via AVL) Appearances:
C B Wilkinson-Smith for Applicant D M Goodlet for Respondent
Judgment:
14 April 2025
Reissued:
31 July 2025
JUDGMENT OF McQUEEN J
[1] The Chief Executive of the Department of Corrections (Corrections) applies for an extended supervision order (ESO) for a period of ten years, for Peter Hartley. Mr Hartley consents to the granting of an ESO for a period of 10 years.1 However, it is still for this Court to be satisfied an ESO should be imposed, and if so, the appropriate length of the ESO.2
[2] Mr Hartley is currently subject to an interim supervision order (ISO) pursuant to s 107FA of the Parole Act 2002.3 He is 65 years old, and resides in Taranaki.
1 Department of Corrections v Hartley HC Wellington CRI-2024-485-46, 4 April 2025 (Minute of Radich J).
2 Chief Executive of the Department of Corrections v Te Whata [2024] NZHC 1121 at [3]; and
Te Whata v Chief Executive of the Department of Corrections [2025] NZCA 74.
3 Department of Corrections v Hartley [2024] NZHC 2241 [ISO decision].
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v HARTLEY [2025] NZHC 903 [14 April 2025]
Background
Procedural
[3] Corrections applied for an ESO in respect of Mr Hartley on 2 May 2024. This Court made an ISO on 9 August 2024,4 which was subsequently varied.5
[4] The ESO hearing was originally set down for November 2024. Mr Hartley applied for an adjournment to allow him to properly respond to contentions made about his unadjudicated behaviour in the custodial environment. This application coincided with the release of the Supreme Court decision, Seleni v Chief Executive of the Department of Corrections,6 which established requirements for a Court considering unproven conduct in an ESO context. Accordingly, I granted the adjournment to allow for both Mr Hartley and Corrections to furnish further evidence on his behaviour while in custody, and in the community.7
[5] The matter was set down before me in February 2025. However, shortly before the hearing, the Court was informed there was no arrangement in place for Corrections to transport Mr Hartley to the hearing. Mr Hartley wished to attend in-person, and did not consent to virtual attendance. Applying the Courts (Remote Participation) Act 2010, I granted a further adjournment.8
[6] The hearing was rescheduled for 9 April 2025. On 3 April 2025, Ms Goodlet, counsel for Mr Hartley, filed a memorandum advising the following updated instructions from Mr Hartley:
3Mr Hartley accepts that the grounds for the ESO have been made out and that a period of a 10 year ESO is the minimum period appropriate. This is only based on the adjudicated material being the 15 year period of sexual offending, Mr Hartley’s denial of all of the offending, and the fact that Mr Hartley has received no treatment in relation to sexual offending.
4 ISO decision, above n 3.
5 Department of Corrections v Hartley HC Wellington CRI-2024-485-46, 15 October 2024 (Minute of Radich J) and Department of Corrections v Hartley HC Wellington CRI-2024-485-46, 25 February 2025 (Minute No 8 of McQueen J).
6 Seleni v Chief Executive of the Department of Corrections [2024] NZSC 152, [2024] 1 NZLR 690.
7 Department of Corrections v Hartley HC Wellington CRI-2024-485-46, 13 November 2024 (Minute No 2 of McQueen J).
8 Department of Corrections v Hartley HC Wellington CRI-2024-485-46, 24 February 2025 (Minute No 7 of McQueen J).
4Mr Hartley accepts:
(a)That he is an eligible offender pursuant to section 107F;
(b)That on the basis of the above adjudicated material, of convicted offences, total denial of that offending, and having received no treatment for the offending (as the Health Assessor assessed in the Report as tendered) that Mr Hartley displays behavioural characteristics as specified in section 107IAA(2); and
(c)That he has, or has had, a pervasive pattern of serious sexual offending and that there is a high risk that in the future he will commit a relevant sexual offence pursuant to section 1071(2).
5The acceptance of matters by Mr Hartley in paragraph 4 is based solely on the adjudicated material as outlined in paragraph 3.
6In relation to the term of the Order it is accepted that based on the level of risk posed by Mr Hartley and the seriousness of the harm that might be caused to the victims and the likelihood duration of that risk, based on the above adjudicated behaviour, that the minimum period required for the purposes of the safety of the community is 10 years. This is pursuant to section 1071(5).
7It is acknowledged that the Application by the Department of Corrections contained aspects of unadjudicated behaviour. What, if any, weight would be given to that unadjudicated behaviour is not required to be determined, and is not part of Mr Hartley’s concessions to the grounds and term of an ESO being made out.
8. Mr Hartley concedes, based on the adjudicated material, that the grounds for an ESO have been made out, and that the minimum period of 10 years for the Order is appropriate.
[7] Corrections accepted that the adjudicated conduct alone is such that the grounds for an extended supervision order for a 10 year period is made out. Arrangements were made to truncate the hearing, including that the evidence of the health assessor, Dr Croxen, be taken as read.9
[8] Corrections indicated that it would not be seeking the Court’s comment on the imposition of any special conditions pursuant to s 107K of the Parole Act (but special conditions may be sought from the Parole Board in due course). Counsel for Corrections, Mr Wilkinson-Smith, confirmed at the hearing Mr Hartley will remain
9 Minute of Radich J, above n 1.
subject to the standard and special conditions of the ISO pending the Parole Board’s consideration of any special conditions.10
Criminal offending
[9] Following trial, Mr Hartley was convicted of sexual offending in 1996. He was sentenced to six years’ imprisonment. The offending, which occurred between 15 February and 1 March 1992, was summarised by the Court of Appeal as follows:11
The complainant was the appellant’s [teenage family member]. Count 1 alleged the appellant had rubbed the complainant’s chest while she was operating a computer. Count 2 alleged that on similar occasions he rubbed the complainant's vaginal area. Count 3 related to the penetration of the complainant’s vagina with a vibrator. Counts 4 and 6 alleging rape, were said to have occurred in the appellant’s bedroom, as with the fifth count of attempted rape. Counts 1, 2 and 6 were representative charges. The defence was a complete denial.
[10]It appears Mr Hartley was released from prison in mid-1998.
[11] Between 1998 and 2008, Mr Hartley offended against six teenage victims, and was convicted at trial in 2011 of 18 counts of sexual offending, and one of making an intimate video recording. At sentencing in March 2012, Williams J summarised that offending as follows:12
[3] Count one related to your touching of [RC’s] leg, back and penis while [RC] masturbated at your home in Trentham. This took place before [RC] turned 16, and was a representative count.
[4] Seven indecent assault counts related to [DL] and occurred between February 2000 and February 2004. These related variously to sexual touching, and you masturbating [DL] or performing oral sex on him, all of which occurred when [DL] was between 12 and 14. In addition, you were found guilty of indecent assault on [DL] by physically assisting him to have sex with [KR] (she also being under 16). You did this by guiding his penis into her genitalia. One count of sexual touching and one of oral sex were representative counts.
[5] You were found guilty of two counts of indecent assault on [NC] — the first, a representative count of digital penetration of her genitalia; and second, by massaging her genitalia, all of which occurred prior to her 16th birthday in February 2003.
10 Parole Act 2002, s 107L(2A) and see Chief Executive of the Department of Corrections v Kepu
[2022] NZHC 2044 at [51].
11 R v H [1997] 1 NZLR 673 (CA) at 676.
12 R v Hartley HC Wellington CRI-2010-085-4305, 29 March 2012 [Williams J sentencing decision].
[6] You were found guilty of committing an indecent act on [LC] prior to his 15th birthday [in 2008] by making him expose his penis in your presence.
[7] You also indecently assaulted [KR] in the incident involving [DL] that I have already mentioned (in the act of assisting [DL] to have sex with her), and by yourself touching her breasts and thighs, all when she was under 16. And in the same incident you sexually violated [KR] by raping her. In another incident you indecently assaulted [KR] by undressing her in order to take photographs of her breasts.
[8] In respect of [DO], you committed an indecent act on him by making him masturbate in your car when he was 15, doing the same in your van, and in your lounge.
[9] Finally you made an intimate visual recording of [DO] having sex with his girlfriend without either of them knowing or consenting to it.
[10] In varying degrees each of these offences against each of the victims is attended by common themes and elements that have been referred to by counsel. The ways you went about grooming your young victims and bending them to your will were sophisticated and effective. You targeted young people with difficulties - usually problems at home, dysfunctional households, poverty, problems in parental relationships, parental abuse and so on. You aimed at young people who were likely to need what you were offering. You provided them money, food, alcohol and cigarettes. You provided them with accommodation, the free run of your home, and that precious thing - access to the Internet. You taught the boys to drive and ride motorbikes, and you let them have access to your vehicles. You impress me Mr Hartley as an innovative technologist (to use perhaps an old fashion word), and you drew young boys into your various technology projects. Your sexual activity with them was characterised by the presence of voyeurism and the creation of economic and emotional indebtedness to you.
[11] The things you offered were magnets to young people from troubled backgrounds, young people who were in need of care and support.
[12] A number of those charges were representative. Williams J sentenced Mr Hartley to preventive detention.13 However the Court of Appeal allowed Mr Hartley’s appeal against the sentence of preventive detention, concluding that:14
…the point had not yet been reached where preventive detention is the appropriate sentence in Mr Hartley’s case. We conclude Mr Hartley is capable of changing his behaviour, and he will now have a powerful incentive to acknowledge responsibility and accept treatment.
13 Williams J sentencing decision, above n 12, at [61].
14 Hartley v R [2014] NZCA 162 at [154] [Court of Appeal decision].
[13] The Court of Appeal imposed determinate concurrent sentences of imprisonment resulting in an overall sentence of 14 years’ imprisonment.15 The Court considered a minimum period of imprisonment of 50 per cent was appropriate.16
Present position
[14] Mr Hartley has not acknowledged responsibility for the offending nor accepted any treatment.17 While in custody, Mr Hartley has channelled his energy into litigation. At the hearing, Mr Hartley informed me that he is still challenging all his convictions and has upcoming court dates. Until 3 April 2025, he contested the application for a ESO.
[15] Mr Hartley has no other criminal convictions. His personal circumstances appear unremarkable, although this may be on the basis he does not tolerate inquiry into precipitants of his offending.18
Mr Hartley’s victims
[16] I thank LC and NC for preparing written statements for the Court.19 NC said Mr Hartley took away pieces of the victims that they will never get back—the pain he caused is “immeasurable”. She warns that Mr Hartley will “attempt to threaten and manipulate again when released”. She fears for the safety of herself and other victims, but also “any Child or Woman Hartley meets, especially people that are vulnerable.”
[17] LC read out his statement at the hearing. LC conveyed his belief that it is not a matter of if, but more a matter of when, Mr Hartley offends again. He described Mr Hartley as “a manipulator” who “will always pose an extreme risk”. He says, “it cannot be stressed enough how dangerous he is”.
15 Court of Appeal decision, above n 14, at [157].
16 At [158].
17 Mr Hartley has declined individual psychological intervention; and is ineligible for the Special Treatment Unit: Child Sex Offending due to his categoric denial of his offending.
18 The Court of Appeal noted that a pre-sentence report about Mr Hartley records an allegation that he was abused by his grandfather as a child: Court of Appeal decision, n 14, at [126]. No further particulars, or the influence of this on his offending, are known to the Court.
19 As enabled by s 107H(5) of the Parole Act 2002.
[18] Both victims were concerned about Mr Hartley’s continued denial of his offending, and how this has prevented him from engaging in any rehabilitation.
Legal principles
[19] ESOs are governed by pt 1A of the Parole Act. The purpose of an ESO is “to protect members of the community from those who, following the receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences”.20 An ESO can result in significant additional restrictions on many aspects of an offender’s life after imprisonment and release conditions have ended.21
[20] An ESO can only be made on the application of Corrections’ Chief Executive in respect of any “eligible offender”.22 A person is an eligible offender if they fall within the definition contained in s 107C(1) of the Act, which requires that the offender has been convicted of a “relevant offence”23 and is still subject to a sentence of imprisonment, release conditions or an ESO. An application for an ESO must be accompanied by a health assessor’s report.24 That report must address the matters specified in s 107F(2A) of the Parole Act, namely:
(a)whether—
(i)the offender displays each of the traits and behavioural characteristics specified in s 107IAA(1); and
(ii)there is a high risk that the offender will in future commit a relevant sexual offence.
[21] Section 107IAA(1) sets out the traits and behavioural characteristics which the court must be satisfied of if it is to impose an ESO in relation to sexual offending:
107IAA Matters court must be satisfied of when assessing risk
(1)A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—
20 Parole Act 2002, s 107I(1).
21 Sections 107J, 107JA and 107K.
22 Section 107F.
23 As defined in s 107B of the Parole Act.
24 Parole Act 2002, s 107F(2).
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b)has a predilection or proclivity for serious sexual offending; and
(c)has limited self-regulatory capacity; and
(d)displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse for past offending:
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
…
[22] As is relevant to Mr Hartley, a sentencing court may make an ESO if the court is satisfied, having considered the matters addressed in the health assessor’s report, that:25
(a)the offender has, or has had, a pervasive pattern of serious sexual offending; and
(b)there is a high risk that the offender will in future commit a relevant sexual offence.
[23] Within that statutory framework, the Court of Appeal has established a three- step process to determine whether the imposition of an ESO on an eligible offender is appropriate:26
(a)the Court must first determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;
(b)the Court must make specific findings as to whether the offender meets each of the qualifying criteria set out in s 107IAA; and
25 Section 107I(2).
26 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468, at [13].
(c)if the s 107IAA criteria are met, the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence in the future.
[24] There is no evidential burden in terms of the prerequisites required by s 107I and 107IAA. The court simply needs to be “satisfied” that the prerequisites are met, which is indicative of a state where the court comes to a judicial decision on the evidence.27
[25] If an ESO is to be made, the order must be for the “minimum period required for the purposes of the safety of the community” and for no more than 10 years at a time.28 In determining the minimum period required, the Court will consider the level of risk posed by the offender, the seriousness of the harm that might be caused to victims, and the likely duration of the risk.29 An offender or Corrections may apply at an earlier time for cancellation.30
[26] In its decision of Attorney-General v Chisnall, the Supreme Court considered the ESO regime as a justified limitation on the right to be free from a second penalty affirmed under s 26 (2) of the New Zealand Bill of Rights Act 1990.31
[27] The Court of Appeal has recently summarised the findings of Chisnall relating to this issue as follows:32
[14] The Supreme Court held that only parts of the ESO regime were inconsistent with s 26(2), and therefore decided to issue declarations of inconsistency with a narrower focus than those made by this Court. It rejected the Attorney-General’s argument that such declarations were not appropriate, concluding that the ESO regime is evaluative rather than discretionary, as a judge would be required to make orders if the relevant level of risk were met in order to manage that risk — regardless of whether the judge considered rights were unjustifiably limited.
27 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [12] [Holland CA].
28 Parole Act, ss 107I(4) and (5).
29 Section 107I(5).
30 Section 107M.
31 Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768 [Chisnall]. Since the release of Chisnall, Te Aka Matua o te Ture | Law Commission has issued its final report in relation to preventive detention regimes, including ESOs: Here Ora: Preventive measures in a reformed law (NZLC R149, 2025).
32 Te Whata v Chief Executive of the Department of Corrections, above n 2, footnotes removed.
[15] The Court held that where the ESO regime authorises a second penalty amounting to a detention that is applied retrospectively, s 26(2) is limited in a manner that cannot be justified in terms of s 5. The Court made a distinction between the retrospective and prospective application of the regime, on the basis that a retrospectively applied second penalty involves a more serious limitation of the affirmed right. It also distinguished the special conditions of the ESO regime that provide for intensive monitoring and/or residential restriction, and therefore authorise detention, from the standard ESO conditions, which do not.
[16] In relation to the prospective application of the aspects of the ESO regime that do not authorise detention, the Court concluded that the limit imposed on s 26(2) is capable of justification in a free and democratic society. This was due to the importance of protecting the public from recidivist offenders who are assessed as posing a high, or very high, risk of further serious sexual or violent offending. Furthermore, the Court considered that those non-detention limitations are rationally connected to the public protection objective, and “if administered in accordance with the requirements of s 5 that they be no more intrusive than reasonably necessary to achieve their purpose, are proportionate and therefore justified”. While not making a finding on the point, the Court expressed concern about the standard condition restricting contact with children, as it considered that condition may not be responsive to the particular offender or management of the particular risk associated with a particular offender.
[17] The Supreme Court concluded that the retrospective application of the non-detention authorising part of the ESO regime is also justified for the purposes of s 5, as that retrospectivity is necessary to achieve the purposes of the legislation.
[18] Nevertheless, as Ms Hoskin for Corrections submits, the courts have long recognised that ESOs of any nature are punitive and they limit the right to be free of a second penalty.
Health assessor’s report
[28] Corrections’ application is accompanied by a report by Dr Justine Croxen, a registered clinical psychologist, as required under s 107F(2) of the Parole Act. Dr Croxen’s first health assessment report was dated 4 April 2024. Dr Croxen then filed an addendum on 6 February 2025. The addendum was largely focused on Mr Hartley’s unadjudicated behaviour in a custodial environment and to that extent, is not relevant given the basis on which the application for an ESO is now advanced.
[29] An offender’s risk must be assessed on an individualised basis rather than by reliance on actuarial or static generic measures.33 The opinions of health professionals
33 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627.
will, of course, be of assistance but the question of whether an ESO should be made is a judicial judgment.34 The totality of the evidence must be assessed by the Court.
[30] I address Dr Croxen’s evidence under each factor to which it pertains but note some general points here. Mr Hartley declined to engage with, or consent to, an interview for the purposes of any ESO. His primary focus in the interviews was to assert his innocence and discuss his ongoing legal appeals. Despite Mr Hartley’s non- engagement, in developing her report, Dr Croxen consulted a wide range of materials including previous psychological reports, court materials and Corrections’ case notes. She also conducted interviews with custodial personnel.
Are the s 107F criteria for an ESO application met?
[31] Mr Hartley has been convicted of and sentenced for numerous relevant sexual offences, including sexual violation and indecent assault.35 Mr Hartley is not subject to an indeterminate sentence but is a person who has been sentenced to imprisonment for relevant offences.36 I conclude Mr Hartley is an eligible offender as defined by s 107C of the Parole Act.
[32] At the time of the ESO application by Corrections, Mr Hartley had not ceased to be subject to a sentence of imprisonment.37 The necessary health assessor’s report has accompanied the application.38
[33] I am therefore satisfied that the statutory criteria for making an ESO application are met.39
34 Chief Executive of the Department of Corrections v Hunia-Rikirangi [2024] NZHC 1430 at [12].
35 See s 107B(1)(a), (b) and (e) and s 107B(2)(a) and (l).
36 Court of Appeal decision, above n 14 at [157].37 Section 107C(1)(a)(ii). See Department of Corrections v Hartley HC Wellington CRI-2024-485- 46, 29 July 2024 (Minute of Isac J) at [1].
38 Parole Act, ss 107F(2) and (2A).
39 No argument is raised by the parties as to the relevance to Mr Hartley of the Supreme Court’s decision in Chisnall. This includes in respect of conduct pre-dating 2004 where residential restrictions are contemplated, see above n 31. I note some of Mr Hartley’s index offending occurred between 2004–2008. As I have already stated in the judgment, Corrections has not applied for special conditions in the context of this application, preferring to make that application before the Parole Board.
Does Mr Hartley have, or has had, a pervasive pattern of serious sexual offending (s 107I(2)(a))?
[34] I am satisfied that a pervasive pattern of serious sexual offending is present here. I agree with Mr Wilkinson-Smith’s submission that Mr Hartley has demonstrated “a pattern of problematic, harmful sexual behaviour throughout his adult life”, accumulating numerous convictions for serious sexual offending.
[35] I repeat the observation of Williams J that the index offending involved six victims, spread over 11 years, with “common elements in varying degrees”.40 This offending followed an earlier conviction and sentence for the rape of his young female family member. The Court of Appeal agreed “there was an almost continuous pattern of offending following Mr Hartley’s release from prison [for the rape of a family member]”.41 The offending is undoubtedly serious.
Does Mr Hartley meet the criteria in s 107IAA?
[36] A court can determine there is a high risk that an eligible offender will commit a relevant sexual offence in the future if it is satisfied that the offender meets each of following factors in s 107IAA of the Act.42
Does Mr Hartley display an intense drive, desire, or urge to commit a relevant sexual offence—(s 107IAA(1)(a))?
[37] This consideration can be satisfied on the documentation of an individual’s sexualised conduct in their criminal history alone.43
[38]The following matters are relevant to this consideration:
(a)Mr Hartley’s criminal history shows he continued to sexually re-offend following sanction, including in close proximity to the sanction.
(b)The offending took place over a 15 year period.
40 Williams J sentencing decision, above n 12, at [15].
41 Hartley v R, above n 14, at [66].
42 Section 107IAA(1) and see Chief Executive of the Department of Corrections v W [2016] NZHC 1082 at [21].
43 Hunia-Rikirangi, above n 34, at [55(a)].
(c)Mr Hartley denies the offending and therefore the harm it has caused. He has had no treatment in relation to the offending.
(d)Mr Hartley demonstrates persistent distorted beliefs regarding adolescents and their sexuality.
(e)There is nothing to suggest that the traits formerly present (as evidenced by the criminal history) no longer subsist.44
(f)Bearing in mind these (and other) factors, Dr Croxen’s view is that Mr Hartley likely has an intense drive and/or urge to commit a relevant sexual offence.
[39] I am satisfied that Mr Hartley displays an intense drive, desire, or urge to commit a relevant sexual offence.
Does Mr Hartley have a predilection or proclivity for serious sexual offending— (s 107IAA(1)(b))?
[40] In this context, a person has a “predilection” for serious sexual offending if they have a preference or particular liking for serious sexual offending.45 A “proclivity” for serious sexual offending encompasses the concept of a pattern.46
[41] Dr Croxen notes that while Mr Hartley’s sexual interest in adolescent males and females did not behaviourally manifest until his mid-thirties, since that time it has been a pervasive and consistent preference spanning over 15 years. Dr Croxen opines that “while not an exclusive predilection, Mr Hartley has displayed a clear predilection and proclivity for serious sexual offending, that has endured…and is likely to endure into the future”.
44 Madden v Chief Executive of the Department of Corrections [2024] NZCA 8 at [32] citing Alinizi, above n 26, at [36].
45 Chief Executive of the Department of Corrections v Dixon [2017] NZHC 1126 at [16]; Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44].
46 Holland CA, above n 27, at [41].
[42] I am satisfied this factor is present given the repetitive and serious sexual offending over a lengthy period against vulnerable victims with whom Mr Hartley formed a relationship of trust and confidence. Although Mr Hartley had some relationships with adult females over the offending period, and considers his dynamic with the young people he groomed to constitute relationships once they reached the age of consent, it is clear this “consistent preference” (as Dr Croxen puts it) was repeated and not deterred.
Does Mr Hartley have limited self-regulatory capacity—(s 107IAA(1)(c))?
[43] Mr Hartley’s “sophisticated and effective” grooming behaviour is indicative of some self-regulatory capacity.47 He is described as “employ[ing] charm, persuasiveness, persistence, patience and financial resources along with emotional manipulation to groom his victims”.48 It has been suggested Mr Hartley has “hints” of “grandiosity and entitlement suggestive of personality dysfunction”.49
[44] Dr Croxen confirms that Mr Hartley demonstrates “poor regulation of his sexual impulses” and an “inability to self-regulate his sexual drive”; but acknowledges that generally he is not considered to be impulsive or lacking in emotional regulation.
[45] This factor must be understood within the ESO regime: it is how it relates to the risk of sexual offending that is material. I do not consider Mr Hartley’s ability to self-regulate as evidenced by his planning and grooming can be used to find this factor is not made out: rather, I consider that Mr Hartley does have limited self-regulatory capacity in that he shows no inclination to direct his considerable focus to halting sexual offending, or to otherwise prevent himself from sexual offending.
[46] Further, it is plainly apparent from the occurrence of the index offending following the first set of offending that Mr Hartley has limited self-regulatory capacity. The index offending occurred despite Mr Hartley’s opportunity for age-appropriate relationships.
47 Williams J sentencing decision, above n 12, at [10].
48 Court of Appeal decision, above n 14, at [129].
49 At [131].
Does Mr Hartley display a lack of acceptance of responsibility or remorse for past offending—(s 107IAA(1)(d)(i))?
Does Mr Hartley display an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims—(s 107IAA(1)(d)(ii))?
[47]I will assess these factors together.
[48] Mr Hartley does not accept responsibility for his past offending or demonstrate any remorse. He displays a complete lack of understanding or concern about the impact of his sexual offending on his victims. It has been observed this reveals “serious cognitive distortion”.50 He suggests he is the victim of a “vast conspiracy”.51
[49] I agree with Dr Croxen that this denial “presents as a responsivity barrier to risk mitigation via treatment and intrinsic change”. There can be no suggestion that the acceptance of responsibility, remorse, understanding or concern are present to a “sufficient degree to mitigate the relevant risk”.52
Conclusion on s 107IAA criteria
[50] Having regard to my findings on the s 107IAA criteria—that they are all made out—it is now necessary to consider whether Mr Hartley has a high risk of serious sexual offending in the future.
Does Mr Hartley present a high level of risk of serious sexual offending in the future?
[51] Dr Croxen used actuarial instruments to assess the likelihood of future serious sexual offending by Mr Hartley. Mr Hartley was assessed as an Average Risk of further sexual offending in the Automated Sexual Recidivism Scale-Revised (ASRS-
R) screening instrument (this is a static risk tool that estimates sexual recidivism among individuals who have already been sentenced in New Zealand for a sexual offence). He was assessed as an Above Average Risk in the Violence Risk Scale – Sexual Offence Version (VRS:SO) screening instrument (this instrument provides a
50 Court of Appeal decision, above n 14, at [127] citing a pre-sentence report.
51 Williams J sentencing decision, above n 12, at [30].
52 See McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [23].
probability of sexual reoffending based on both static and dynamic risk predictors). Dr Croxen records that the estimated sexual recidivism rate for the group with the same VRS:SO score as Mr Hartley is 31.4 per cent within five years and 44.7 per cent after ten years. Dr Croxen considered that analysis of the VRS:SO dynamic sub scale scores suggest Mr Hartley’s sexual offending was primarily driven by his deviant sexual preference and his responsivity barriers to treatment, rather than criminality per se. Overall, Dr Croxen concluded that Mr Hartley is assessed as an above average risk of committing a further sexual offence on relevant actuarial tools.
[52] While these actuarial assessments are of assistance, I have also considered and discussed above the history, traits and characteristics of Mr Hartley.53 I accept Dr Croxen’s assessment that Mr Hartley presents with a high number of dynamic risk factors that reflect his high/above average level of risk, and if they remain unaddressed, suggest that this risk will remain at a high level over the longer term. It seems unlikely his denial of the offending and refusal of treatment will change given his consistent focus on legal challenge to his convictions. He did not engage with release planning prior to his sentence expiry, and there is no relapse prevention plan.
[53] Age can be relevant to the degree of risk Mr Hartley poses in the future, as well as the duration of any ESO. There is a well-established presumption that sexual offending decreases with age, and this is often reflected in the case law on ESOs.54 However, this is not the position for Mr Hartley. Dr Croxen addresses this in her report, noting:
Research informs that risk of sexual offending decreases...particularly after 60 years, thus given Mr Hartley’s current age his advancing age could be deemed a protective factor. However, this is not a linear trajectory and given his age at the time of the index offending and potential ongoing sexual preoccupation … and his degree of dynamic risk, age would not be considered a protective factor for him unless further evidence of desistance in the community was apparent.
[54] Ms Goodlet accepts that age operates as a lesser protective factor in Mr Hartley’s circumstances.
53 See Chief Executive of Department of Corrections v Northcott [2024] NZHC 3771 at [75].
54 See for example Dennis v Chief Executive of the Department of Corrections [2025] NZHC 650 at [27]; R v Smith [2020] NZHC 2793 at [43].
[55] The evidence and circumstances here demonstrate Mr Hartley’s risk is enduring. I am satisfied it is appropriate to conclude Mr Hartley possesses a high risk of future sexual offending, and place Mr Hartley within a smaller class of offenders for whom the risk does not abate.55 I consider the case of Wilson, who was also 65 years old, to be analogous.56
[56] Mr Hartley’s protective factors are limited, and I am concerned about his pattern of offending which involves the forming of ‘relationships’ with young people over an extended period.57 Dr Croxen opines “it is likely that Mr Hartley’s current risk (that falls at the higher end of the above average range) will endure in the longer term without intervention or risk management”. She also considers his “offending pathways may commence at a time some years prior to him progressing to sexually offending against them and will require risk management over the longer term to ensure such pathways are prevented or interrupted.”
[57] I conclude that Mr Hartley presents a high level of risk of serious sexual offending in the future.
Should an order be made?
[58] Having made my evaluation that Mr Hartley meets all of the criteria for the imposition of an ESO, I will make such an order.
What is the appropriate term of the order?
[59] Corrections seek the imposition of an ESO for a period of 10 years. It is for Corrections to justify the duration of the ESO, but Mr Hartley’s acquiescence to the imposition of an ESO extends to the proposed 10-year term.
[60] Section 107I(5) stipulates the term of the order must be the minimum period required for the purposes of the safety of the community in light of—
55 See Wardle v Chief Executive of Department of Corrections [2017] NZCA 298 at [29] and [61]– [66].
56 Chief Executive of the Department of Corrections v Wilson [2012] NZHC 1634 at [51] and [61]– [67].
57 See Williams J sentencing decision, above n 12, at [10]. Dr Croxen describes this risk as “extended over a prolonged period of time, with timeframes overlapping for multiple victims”.
(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.
[61] A 10-year period is available where an offender denies responsibility and has a lack of motivation to engage in targeted treatment.58 In Wardle, the Court of Appeal expressed doubt about a 10-year ESO for an offender who was in their late fifties, despite that offender coming within the class who possess an enduring risk:59
It would be in accordance with normal statistical expectations for the level of risk posed to decline at some stage during the offender’s seventh decade with a commensurate reduction of the duration of the risk posed and the seriousness of harm that might be caused.
[62] However, unlike Mr Wardle, Mr Hartley does not impress as an opportunistic offender.60 I have already determined he is within a class where the risk does not abate.
[63] The test is not linked to the respondent’s capacity for change or the provision and facilitation of treatment, although this may influence the indicated duration of risk.61
[64] Mr Wilkinson-Smith submits a 10 year term is justified as Mr Hartley continues to deny his offending, lacks insight into the harm he has engendered, and engaged in recurring sexual offending against multiple vulnerable victims. He submits that Mr Hartley’s ongoing risk relates to his psychological (rather than physical) profile and there is no plausible reason to think that will change.
[65] As I have already discussed, Mr Hartley’s protective factors are limited and his pattern of offending involves the forming of ‘relationships’ with young people over an extended period. Crucially, the point is that Mr Hartley’s current risk (which falls at the higher end of the above average range) will endure in the longer term where he
58 Alinizi, above n 26, at [38].
59 Wardle, above n 55, at [65] and [66].
60 At [13]–[17].
61 Chief Executive of the Department of Corrections v McIntosh (HC Christchurch, 8 December 2004 per Hansen and Pankhurst JJ) at [27].
denies the offending and has received no treatment for it. Dr Croxen notes that this “is likely to preclude the development of robust relapse prevention planning”, as does the absence of any confirmed support network in the community for Mr Hartley.
[66] Dr Croxen’s conclusion that Mr Hartley’s risk will remain at a high level “over the longer term” favours a longer duration.
[67] I conclude the appropriate length of the order is 10 years. This would significantly impede any ability of Mr Hartley to form relationships with vulnerable young people in the community, and I consider it is the minimum period required.62
Result
[68] I make an extended supervision order in respect of Mr Hartley for the period of 10 years.
McQueen J
Solicitors:
Wilkinson Smith Lawyers Ltd, Whanganui for Applicant
62 In reaching this view, I acknowledge the concerns raised regarding the current legislative regime’s failure to provide for an effective right of review. See Te Aka Matua o te Ture | Law Commission: Here Ora: Preventive measures in a reformed law, above n 31, at 18.79–18.94 and recommendations 123–130.
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