Chief Executive of the Department of Corrections v Ihimaera
[2019] NZHC 19
•22 January 2019
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2017-463-000021
[2019] NZHC 19
BETWEEN THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
LEVI TAMATI MICAH IHIMAERA
Respondent
Hearing: 10 December 2018 Counsel:
C H Macklin for Applicant D Hall for Respondent
Judgment:
22 January 2019
JUDGMENT OF KATZ J
This judgment was delivered by me on 22 January 2019 at 4.00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Gordon Pilditch, Office of the Crown Solicitor, Rotorua Counsel: D Hall, Barrister, Rotorua
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v IHIMAERA [2019] NZHC 19
[22 January 2019]
Introduction
[1] The Chief Executive of the Department of Corrections seeks an extended supervision order in respect of the respondent, Levi Ihimaera.1 The order is sought on the basis that Mr Ihimaera’s criminal history discloses a pervasive pattern of serious sexual offending, and that there is a high risk of him committing further serious sexual offences. The Chief Executive seeks the maximum term available, 10 years, together with an intensive monitoring condition, for a period of one year.
[2] Mr Ihimaera opposes the application. He does not dispute that he poses a high risk of further serious sexual offending.2 He submits, however, that his criminal history does not disclose a pervasive pattern of serious sexual offending. On that basis, he submits, one of the key threshold requirements for the making of an extended supervision order is not met.
Procedural history
[3] The Chief Executive’s application for an extended supervision order was filed on 20 May 2017. Mr Ihimaera was serving a term of one year and eight months’ imprisonment at the time, for indecent assault on a 10-year-old girl.3 He instructed his (then) counsel that he would consent to an extended supervision order being imposed.
He objected, however, to the imposition of an intensive monitoring condition.4
[4] The application was scheduled to be heard on 31 August 2017, a day after Mr Ihimaera had been released on parole. Prior to the hearing, however, Mr Ihimaera advised that he now wished to oppose the imposition of an extended supervision order. He sought an adjournment to obtain an expert psychologist’s report, which was granted by consent.
1 Parole Act 2002, s 107F.
2 The expert psychologist retained by Mr Ihimaera, Dr Greg Woodcock, concurred with the view expressed by the applicant’s psychologist, Dr Juanita Smith, that Mr Ihimaera is at high risk of committing a relevant sexual offence within the community within ten years of release.
3 Crimes Act 1961, s 132(3).
4 Parole Act 2002, s 107IAC.
[5] The Chief Executive then sought an interim supervision order pending final determination of the application for an extended supervision order.5 Muir J declined to make an interim supervision order, for the reasons set out in his judgment of 14 September 2017.6 His Honour was satisfied that Mr Ihimaera’s sexual offending was serious. He was not satisfied, however, that Mr Ihimaera’s two convictions for sexual offending disclosed a “pervasive pattern of serious sexual offending”.7 One of the threshold requirements for the making of an interim supervision order was accordingly not met.
The statutory regime
[6] Part 1A of the Parole Act 2002 (“Act”) is intended to enhance public safety by providing for the extended supervision of serious violent and sexual offenders in the community, following their release from prison. The purpose of such an order is “to protect members of the community from those who … pose a real and ongoing risk of committing serious sexual or violent offences”.8 The regime aims to regulate and manage the ongoing risks posed by such individuals by maintaining a high degree of ongoing control over them after they have served their finite prison sentences. This may include, for a period of up to one year,9 24-hour accompaniment and supervision, together with residence in a secure facility the person is not at liberty to leave.10
[7] The term of an extended supervision order may not exceed ten years,11 and must be limited to the “minimum period required for the purposes of the safety of the community”.12
[8] An offender is eligible for the imposition of an extended supervision order if he or she has been sentenced to a finite term of imprisonment for a “relevant offence”
5 Section 107FA.
6 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228.
7 At [52].
8 Parole Act 2002, s 107I(1).
9 Section 197K(3).
10 Section 107IAC allows the court to impose intensive monitoring conditions. Section 107K allows the Parole Board to impose special conditions, including residential restrictions. Section 33(2)(c)(ii) provides that such restrictions may include the requirement to be at the specified residence at all times.
11 Section 107I(4).
12 Section 107I(5).
or “relevant sexual offence”13 and they are still in prison for that offence at the time of the application, or on parole for that offence, or already subject to an extended supervision order.14 The relevant sexual offences range from sexual violation15 and attempted sexual violation16 through a variety of other sexual offending including indecent assault.17
[9] An extended supervision order may only be imposed on an eligible offender if the Court is satisfied that:18
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b)there is a high risk the offender will in future commit a relevant sexual offence and/or there is a very high risk that the offender will in future commit a relevant violent offence.
[10] The Court can only find that there is a high risk of an eligible offender committing a relevant sexual offence if the Court is satisfied that the offender has the following traits or behavioural characteristics:19
(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.
13 As defined in s 107B.
14 Section 107C.
15 Crimes Act 1961, s 128B(1).
16 Section 129(1).
17 Section 135.
18 Parole Act 2002, s 107I(2).
19 Section 107IAA(1).
[11] An application for an extended supervision order must be accompanied by a report by a health assessor20 (essentially a qualified psychiatrist or registered psychologist).21 Health assessors’ reports must address certain questions. In the case of sexual offending, the report must address whether the offender displays each of the traits and behavioural characteristics I have set out at [10] above, and also whether there is a high risk that the offender will in future commit a relevant sexual offence.22
[12] In summary, when considering whether to impose an extended supervision order on a sexual offender, the Court is required to consider the following issues:
(a)Is the offender an eligible offender?23
(b)Does the offender’s criminal history disclose a pervasive pattern of serious sexual offending?24
(c)Is there a high risk that the offender will in future commit a relevant sexual offence25 with specific reference to the traits or behavioural characteristics set out in s107IAA(1), all of which must be present?
(d)If all of these criteria are met, should the Court exercise its discretion to make an extended supervision order, in all the circumstances of the case?26
[13] The Court will only have jurisdiction to make an extended supervision order if the answer to each of questions (a), (b) and (c) above is “yes”. If those jurisdictional thresholds are met, then the Court may, in its discretion, make an extended supervision order if it is satisfied that such a course is appropriate in all the circumstances.
20 Section 107F(2).
21 As defined in s 4 of the Sentencing Act 2002.
22 Parole Act 2002, s 107F(2A).
23 Section 107C.
24 Section 107I.
25 As defined in s 107B.
26 The use of the word “may” in s 107I of the Parole Act 2002 indicates that the decision to make an extended supervision order is discretionary.
[14] In this case, it is common ground that Mr Ihimaera is an eligible offender, as he was serving a prison sentence for indecent assault at the time the application was made. Nor did Mr Ihimaera seriously challenge the views of both expert psychologists that there is a high risk that he will in future commit a relevant sexual offence. In my view, that was appropriate, in light of the expert evidence before the Court. Rather, the key issue in dispute (as it was before Muir J) is whether Mr Ihimaera’s criminal history discloses a pervasive pattern of serious sexual offending.
Does Mr Ihimaera’s criminal history disclose a pervasive pattern of serious sexual offending?
[15] Muir J declined to grant an interim supervision order on the basis that Mr Ihimaera’s criminal history did not meet the threshold requirement of establishing a pervasive pattern of serious sexual offending. His Honour acknowledged, however, that the evidence before him at that stage was provisional, and a different conclusion might be reached following the hearing of the substantive application, although he thought that such an outcome was unlikely.27
[16] Mr Hall submitted, on behalf of Mr Ihimaera, that there is nothing in the further evidence before the Court that would support the conclusion that a “pervasive pattern” of serious sexual offending exists. Mr Macklin submitted to the contrary.
Mr Ihimaera’s offending history
[17] Mr Ihimaera is 28 years old. He has been diagnosed with paranoid schizophrenia and an anti-social personality disorder. He has a lengthy criminal history, beginning in the Youth Court when he was 15. Since then Mr Ihimaera has amassed over 90 convictions for a range of offending, spanning from sexual offending, violence, property and dishonesty-related offending, driving and breach of conditions offending, drugs-related offending and general anti-social offending. It appears that he is seldom out of prison for long, before reoffending and being sentenced to a further (usually fairly short) term of imprisonment. Only two of his 90 or so convictions, however, are for sexual offending.
27 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [53].
[18] The first such conviction relates to offending that occurred in 2009, when Mr Ihimaera was aged 18. He attended a party at the victim’s sister’s home. He was drunk. During the course of the afternoon he asked a number of women at the party if they would have sex with him. At around 5.30 pm the victim, who was aged 14 at the time, went into a bedroom with him. Sexual intercourse took place. Mr Ihimaera was initially charged with rape. He agreed to plead guilty, however, to a charge of unlawful sexual connection with a young person between 12 and 16, and the rape charge was withdrawn. He was sentenced on the basis that he had had “consensual sexual intercourse on one occasion with a girl under 16 years of age.”28 The sentence imposed was 15 months’ imprisonment.
[19] The second conviction, for indecent assault on a female under 12, related to offending that took place in 2013, when Mr Ihimaera would have been aged about 22. He was convicted of this offending in 2016. The victim was 10 years old at the time of the offending. She was sleeping on a mattress in the lounge of a relative’s home. In the early hours of the morning, Mr Ihimaera lay down next to the victim and rubbed his hand over her vaginal area, on top of her underpants. This woke her up. Mr Ihimaera continued rubbing her until her vaginal area became sore. He also kept pulling her underwear down and squeezing her buttocks, while the victim kept trying to pull her underwear back up. This continued for about 20 minutes. Mr Ihimaera pleaded guilty following a sentence indication, and was sentenced to one year and eight months’ imprisonment.
Do Mr Ihimaera’s previous convictions constitute “serious sexual offending”?
[20] The first issue is whether these two convictions relate to “serious sexual offending,” a term that is not defined in the Act.
[21] In Holland v Chief Executive of the Department of Corrections the Court of Appeal rejected the argument that only convictions for the “relevant offences” set out in s 107B(2) of the Act (namely, those offences which qualify an offender as “eligible” for an extended supervision order) can be considered when determining whether a
28 R v Ihimaera DC Rotorua CRI-2009-063-4203, 5 July 2010.
pervasive pattern of serious sexual offending had been established.29 Rather, what is required is a fact-specific assessment of the relevant events, applying the ordinary meaning of the word “serious” in the context of the Act. The Court stated that:
[44] We consider that the phrase “serious sexual offending” falls to be interpreted by reference to its ordinary meaning viewed against the purpose of this part of the Parole Act. In ordinary language “serious” means “important, grave; having (potentially) important, esp. undesired, consequences; giving cause for concern; of significant degree or amount, worthy of consideration”.30
[45] The imposition of an [extended supervision order] is, of course, a significant step that restricts an offender’s freedom of movement and association for up to 10 years after he or she has served the sentence imposed for the subject offence. These consequences are regarded as justified to protect the public from future risk. Self-evidently, only offending at the higher end of the range would justify such a step. Parliament could not be taken to have contemplated that a pattern of offending at the lower end of the spectrum would justify consideration of such a potentially draconian constraint. It is, however, an assessment for the judge on the facts of the particular case.
[22] In this case, Mr Ihimaera’s indecent assault on a 10-year-old child is undoubtedly serious sexual offending. The aggravating factors included the victim’s age and associated vulnerability. She was assaulted by an adult man, while asleep in a relative’s home. There was an element of breach of trust involved. Mr Ihimaera continued with the assault for a prolonged period (approximately 20 minutes) despite the victim’s repeated attempts to deflect him (by pulling her pants up).
[23] As Muir J observed, the position in relation to the first sexual offence, which involved Mr Ihimaera, at the age of 18, having consensual sex with a 14-year-old, is somewhat more nuanced. Some cases of consensual sex between two teenagers, where one of them is younger than 16, will likely not reach the threshold of serious sexual offending for the purposes of the Act. In this case, however, I am satisfied that the offending was serious. It did not take place in the context of a loving or committed ongoing teenage relationship. Rather, Mr Ihimaera was determined to find a sexual partner at a party, while drunk. He was persistent in pursuit of his goal. When the adult women present declined his repeated overtures he, in effect, preyed on a 14-year-old girl who was likely also intoxicated. He took advantage of her for the purposes of his own sexual gratification, engaging in full penetrative sex. Although
29 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [40]–[43].
30 The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford 1993) at 2785.
sentenced on the basis that the sexual act was consensual, the sentencing Judge described it as “not whole-heartedly so”.31 Viewed in context, I am satisfied that this incident meets the threshold of serious sexual offending.
Interpretation of the phrase “pervasive pattern”
[24] Having established that Mr Ihimaera’s two convictions reach the threshold of serious sexual offending, it is necessary to consider whether they constitute a “pervasive pattern” of such offending.
[25] The Court being satisfied that there is a “pervasive pattern” of serious sexual (or violent) offending is a threshold requirement for the making of an extended supervision order.32 Hence, in some cases (and Mr Hall contends that this is one of them) the Court will have no jurisdiction to make an extended supervision order, despite being satisfied that an offender poses a high risk of committing serious sexual or violent offences in the future.33 At first blush, such an outcome seems somewhat surprising, given the public protection focus of Part 1A of the Act. Parliament could, obviously, have chosen to adopt a lower threshold requirement – for example that an offender had committed a single serious offence, rather than having a “pervasive pattern” of such offending. But the bar has been set considerably higher than that. This presumably reflects the difficult balancing exercise that confronted Parliament when it enacted the extended supervision order regime, and subsequently extended it in 2014 from those who sexually offend against children to other serious sexual and violent offenders.
[26] In particular, the extended supervision order regime has the potential to contravene the right to freedom from arbitrary detention enshrined in s 22 of the New Zealand Bill of Rights Act 1990 (“NZBORA”). Extended supervision orders restrict an offender’s freedom of movement and association for up to 10 years after he or she has already served the sentence imposed for the qualifying offence. Extended
31 R v Ihimaera DC Rotorua CRI-2009-063-004203, 1 July 2010 [R v Ihimaera (Indication)] at [3].
32 Parole Act 2002, s 107I(2)(a).
33 Shortcliffe v Chief Executive [2016] NZCA 597 appears to have been such a case, in that the District Court Judge found that there was no pervasive pattern of serious sexual offending, but nevertheless considered that there was a high risk of Mr Shortcliffe committing a relevant sexual offence in the future. The Court of Appeal confirmed that without such a pattern being present there was no basis to consider the question of risk.
supervision orders are necessarily based on predictions of the risk of future reoffending. Predicting future risk is an inherently difficult and potentially unreliable process. Part 1A of the Act balances the community’s expectations of being protected from high risk offenders against the rights of such persons (a significant proportion of whom will never commit further serious crimes) to their liberty once they have completed their sentences.
[27] Muir J found (as I do) the cautionary observations of the Court of Appeal in Simmonds v Chief Executive of the Department of Corrections to be helpful when considering how the phrase “pervasive pattern” should be interpreted:34
[30] Fourth, while the threshold test for an extended supervision order is very high, and involves the offender being a very serious danger to the community, the concern that such dangerous people be supervised cannot be used to warp the natural meaning of the words in s 107C. Parliament has set out precise limits. It plainly did not intend to make all persons who might be a high risk to the community liable to supervision. We should not extend the clear limitations of the section by imposing an unnatural meaning on plain words. This is particularly so when s 22 of the New Zealand Bill of Rights Act 1990 is considered. Section 22 provides that “[e]veryone has the right not to be arbitrarily arrested or detained”. The Chief Executive’s interpretation would extend the application of s 107C(1)(a), which in turn would extend the interference to offenders’ liberties after they have served a sentence, contrary to s 22 of the New Zealand Bill of Rights Act. Such an interpretation should not be favoured by the courts when the natural interpretation has a lesser impact on offenders’ liberties.
[28] Although those observations were made in relation to the interpretation of the phrase “eligible offender”, I agree with Muir J that they apply equally to the interpretation of the phrase “pervasive pattern of serious sexual offending”.
[29] Muir J offered the following helpful interpretation of the phrase “pervasive pattern”:35
[46] The word “pervasive” is defined as “having the quality or power of pervading; penetrative, permeative, ubiquitous”.36 It is in turn used to qualify the word “pattern” which is defined to mean “a regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based”.37 Taken together the two words suggest that the previous offending must have characteristics so
34 Simmonds v Chief Executive of the Department of Corrections, [2017] NZCA 172.
35 Chief Executive of the Department of Corrections v Ihimaera, above n 6.
36 “pervasive, adj.” OED Online (Oxford University Press, June 2017).
37 “pattern, n and adj.” OED Online (Oxford University Press, June 2017).
prevalent and common as to provide a reliable predictor of relevant future conduct.
[30] His Honour went on to observe that it cannot be intended that in every case where there are two serious offences that the serious restrictions that apply to an offender subject to an interim supervision order or extended supervision order should apply, despite the offender having completed their sentence.38 That would be too great an incursion on s 22 NZBORA rights. On the particular facts of Mr Ihimaera’s case, he concluded that:
[52] Ultimately I am not satisfied that the Chief Executive has established such a pattern. One offence involved a post-pubescent consenting sexual partner in the context of an alcohol-fuelled adolescent party. The other was an opportunistic indecent assault on a sleeping prepubescent girl. Whatever risk Mr Ihimaera may pose, the view I reach (on the current provisional state of the evidence) is that his sexual offending has yet to display a “pervasive pattern”. To grant an ISO would in my view, extend the reach of the jurisdiction beyond the limitations inherent in s 22 of the NZBORA.
[53] I emphasise, however, that this is a conclusion based on the provisional state of the evidence and that it is possible (albeit I would have thought unlikely) that it may require to be revisited in the context of the total evidence available on the extended supervision order application.
[31] There are relatively few other cases that have considered the meaning of “pervasive pattern” in Part 1A of the Act (reflecting, perhaps, that the usual focus is on the level of risk posed by an offender).
[32] In Shortcliffe v Chief Executive of the Department of Corrections the Court of Appeal found that “a sequence of related events occurring in the course of a single day cannot constitute a pervasive pattern.”39 In a footnote the Court noted that “Parliament’s use of the word ‘pervasive’ is important,” but did not elaborate further.40
[33] Most of the cases in which an extended supervision order has been made appear to have involved more than two incidents of offending. Chief Executive of the Department of Corrections v Martin, however, is an example of a case where two incidents of offending (one in 1990 and the other in 1999) were sufficient to constitute
38 Chief Executive of the Department of Corrections v Ihimaera, above n 6 at [47].
39 Shortcliffe v Chief Executive of the Department of Corrections, above n 33 at [31].
40 At [31], footnote 23.
a pervasive pattern.41 The 1990 incident resulted in a rape conviction as well as two convictions for unlawful sexual connection. The offending was extremely serious – described by the Court of Appeal as a “truly wicked crime”.42 The 1999 incident was also serious, resulting in a further rape conviction.43
[34] Identifying a pattern in offending does not require that an offender’s previous offences be the same, or even very similar. Each case will turn on its own facts, but a unifying theme or pattern may be apparent even if the actual offences committed are quite different. For example, family violence offending often involves a very wide range of different types of offending (physical violence, sexual violence, stalking, arson, theft, burglary, destruction of property, revenge porn, and threatening text messages). If such offending is viewed without reference to the underlying relationship between the offender and victim, no pattern may be discernible. Once the offending is viewed in its wider context, however, a pattern may well emerge. For example, widely disparate offences may all be manifestations of a coercive control relationship.
[35] Holland v Chief Executive of the Department of Corrections illustrates this point in an extended supervision order context.44 The appellant’s conviction history included convictions for having and attempting to have intercourse with a female under the age of 16, doing an indecent act on a child under 12 outside New Zealand, and knowingly possessing objectionable material (an offence under the Films, Videos and Publication Classifications Act 1993 (“Classification Act”)). Mr Holland argued that his offending under that Classification Act was not relevant to an assessment of whether a pervasive pattern of sexual offending existed, as it was very different in nature to his convictions for direct sexual offending. The Court of Appeal rejected this argument, observing that:45
41 Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060 at [35].
42 R v Martin [1992] 3 NZLR 513 (CA) at 514.
43 Chief Executive of the Department of Corrections v Martin, above n 41, at [33].
44 Holland v Chief Executive of the Department of Corrections, above n 29.
45 At [55]. Mr Holland appealed unsuccessfully to the Supreme Court on the basis that his particular offences were not “relevant sexual offences” as defined in s 107B(2), and so should not be taken into account for assessing whether he demonstrated a pervasive pattern of serious sexual offending under s 107I(2)(a): Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771.
In our view that history is sufficient to constitute a pattern of serious sexual offending. It is not necessary for the offences to be the same. There are important similarities between them, namely that the offending was against young girls and Mr Holland used his photographic business to create the opportunity to commit the offences.
[36] The court is required to consider the matters addressed in the health assessor’s report when considering both the “pervasive pattern” issue and also the level of future risk posed by an offender.46 Viewing the relevant offending through the lens of expert psychological or psychiatric evidence could reveal a pattern that may not have been immediately apparent, particularly where the offending is driven by particular behavioural characteristics or traits of an offender.
[37] In considering whether two or more incidents of offending constitute a pattern, it will usually be necessary to consider a wide range of factors, including factors relating to both the offending and the offender. Some of the matters that may be relevant to identifying a pattern include the number of incidents, the connection in time between them, the objective similarity of the offending, whether there is a unifying theme or object (for example, an underlying deviancy or an abusive relationship or series of relationships), the number of victims, and any behavioural characteristics or traits of the offender that underpin or drive the offending. No doubt there are many other factors.
[38] Even if a clear pattern of offending can be identified, however, it will not necessarily be a “pervasive” pattern. The Oxford dictionary definition of “pervasive” is set out in the extract from Muir J’s judgment at [29] above, namely “having the quality or power of pervading; penetrative, permeative, ubiquitous”. The fairly high bar set by the use of the word is also apparent by reference to the synonyms listed in the Oxford Thesaurus (online), namely:47
prevalent, penetrating, pervading, permeating, extensive, ubiquitous, omnipresent, present everywhere, rife, widespread, general, common, universal, pandemic, epidemic, endemic, inescapable, insidious
46 Parole Act 2002, s 107I(2).
47 Oxford English Thesaurus (online ed, Oxford University Press, 2019).
[39] A very limited pattern of offending will not therefore be sufficient. A “pervasive” pattern must be more prevalent or widespread than that. However, as is apparent from the Martin case, two incidents of offending may be sufficient to establish a pervasive pattern where it is apparent that there are a significant number of common features of the offending, such that the pattern that exists is a reliable indicator of future risk.
Is there a “pervasive pattern” of serious sexual offending by Mr Ihimaera?
[40] Turning now to the facts of this case, both the Chief Executive and Mr Ihimaera have provided the Court with expert psychological evidence. The application was supported by a report from Dr Juanita Smith, a registered clinical psychologist, dated 28 February 2017. Dr Smith has also provided an updated report, dated 12 November 2018.
[41] Mr Ihimaera has provided a report from Dr Greg Woodcock, dated 29 March 2018. That report critiques Dr Smith’s initial report and provides an interpretation of the term pervasive in a psychological context. In particular, Dr Woodcock defines pervasive as being something that permeates the entire development and therefore the entire functioning of the individual. It therefore exists in or on and through every part of that person’s clinical presentation, including cognition and subsequent behaviour.
[42] The only one of the three reports that was not before Muir J was Dr Smith’s updated report of 12 November 2018. Neither that report, nor her initial report, attempted to engage with the interpretation of the word “pervasive” or the phrase “a pervasive pattern of serious sexual offending.” Dr Smith gave oral evidence at the hearing before me, however, in which she did address this issue. She said that in the field of psychology, a “pervasive” condition would be one that was evident across different times, settings, and contexts. Regarding the term “pervasive pattern,” Dr Smith said:
If I'm asked to consider pervasive patterns, which is sexual offending with respect to Mr Ihimaera’s case, I might be inclined to think that two offences on their own don’t constitute a pervasive pattern of sexual offending, or strong evidence of a pervasive pattern. But equally I think that the number of instances alone does not always determine a pattern. So, when thinking about a pattern, I think of it as something that’s both regular and intelligible and I
think that a pattern can be determined from a psychological perspective in this case. So, I think that there are, one, shared characteristics across his sexual offences that assist me in understanding a pattern to his sexual offences. And I also think that there is a psychological pattern that Mr Ihimaera shows in terms of his thinking, feeling and behaving. Like a behavioural signature if you like, that explains why he has offended across the board… including sexual offences, and can be relied upon to predict this future offending.
[43] Dr Smith identified the shared characteristics of Mr Ihimaera’s offending as follows:
So, I think there is a pattern to first of all, his sexual offending instances or convictions, in that his offences have both occurred in the context of Mr Ihimaera being at a party, intoxicated on alcohol and drugs and experiencing sexual arousal. I think both the offences are similar in the sense that they’re opportunistic offences that are committed with a high likelihood of being caught. Both of the offences involved two different victims. Both offences, sex involved to some extent distress of the victims in the offending. His victims were both vulnerable by virtue of age and both were victimised when the same age consenting partner was unable to be achieved. Coming back in terms of separated by time, things that do make me think there is a pervasiveness to the pattern is that there are two different victims. They have been offences that occurred three to four years apart. There was a sanction in between them. While there wasn’t an escalation in offending that may also suggest pervasiveness in pattern in terms of seriousness and intrusiveness, there was a return to a younger aged victim despite being sanctioned with an imprisonment for an underaged victim prior to that.
[44] In terms of Mr Ihimaera’s behavioural signature or psychological pattern, Dr Smith said:
In terms of the second way I think about it, the deeper level of personality that
– a personality pattern that’s pervasive and that contributes to the offending, I consider Mr Ihimaera to have an antisocial personality pattern or a criminal personality pattern. That explains all of his offences, and included in this is two sexual offences. This means that generally Mr Ihimaera has little regard for the rights of others. He manipulates, deceives and dominates others to meet his needs and wants. He does not consider consequences of his actions for himself or others. He has a very well-established tendency to become easily frustrated when he doesn’t get what he wants and at those times to threaten or commit actual violence to try to achieve those needs. He has a pervasive pattern of low empathy for others, he has shown no remorse for past harm, he’s impulsive and reckless with his behaviours and decisions. And it's that personality style that has been established by my assessment and across numerous mental health assessments in the past.
[45] Dr Smith noted that Mr Ihimaera often has adult consenting partners to meet his sexual needs. His antisocial personality attributes, however, put him at high risk of opportunistic sexual offending when a consenting adult partner is not available.
This risk is increased if Mr Ihimaera has been drinking or consuming drugs (he has an admitted, and untreated, alcohol/drug problem).
[46] Dr Smith’s view was that when both the shared characteristics of the previous offending, and the personal characteristics of the offender, are considered together, a pervasive pattern of offending is evident (as is a high risk of future sexual offending). Viewed through this lens, the incidents are not two isolated and disconnected episodes, but together represent a distinct pattern of offending. Mr Ihimaera’s “pathway to offending” is not a deviant one (Dr Smith does not assess him as having a deviant sexual interest in children) but an antisocial one. It results from his very poor behavioural and impulse control, very poor self-regulation, and lack of empathy for others. His offences are opportunistic in nature, rather than being premeditated or involving grooming.
[47] There are some dissimilarities in the two incidents of offending, as noted by Muir J. However, in light of Dr Smith’s expert evidence on this issue (which was not before Muir J), I am satisfied that there are also very significant similarities in the offending, as summarised in Dr Smith’s evidence set out at [43] above. I am therefore satisfied that there is a pattern to Mr Ihimaera’s sexual offending. However, as I have previously noted, the existence of a pattern of serious sexual offending is not, in itself, sufficient. The Act requires a pervasive pattern of such offending before an extended supervision order can be made.
[48] I am not satisfied that Mr Ihimaera’s pattern of sexual offending could fairly be described as “pervasive,” in the sense I have outlined above. Mr Ihimaera is currently 28 years old. The first incident of sexual offending occurred when he was 18 and the second when he was 21. He has not committed any further offences in the last five years or so (albeit I note that he appears to have been imprisoned for a substantial part of that time). His “pattern” of sexual offending is limited in its expression. In my view, it cannot properly be described as “pervasive” in the ordinary sense of that term (as set out above).
[49] I keep in mind the Court of Appeal’s warning in Simmonds that the threshold test for an extended supervision order is very high, and the concern that dangerous people be supervised cannot be used to warp the natural meaning of the words in s 107C (or in this case, s 107I).48 As I have previously noted, the high threshold tests that must be met before an extended supervision order can be made reflect the balance struck by Parliament between the community’s interests in being protected from those who are at risk of committing serious offences in the future, and the rights of such persons (a significant proportion of whom will never commit further serious crimes) to their liberty once they have completed their sentences.
[50] I accept that two instances of offending may be sufficient to meet the “pervasive” requirement in some cases, particularly where the offending is at the very serious end of the spectrum (for example, rape offending) and the pattern that has been identified is very strong. Martin appears to fall in that category, as does Chief Executive Department of Corrections v Skudder.49 In other cases, however, two incidents of offending, even if they disclose some type of pattern, will not be sufficient to meet the “pervasive pattern” threshold, because the pattern that can be identified is insufficiently developed, prevalent, widespread or ubiquitous. I consider that to be the case here. One of the key threshold requirements for the making of an extended supervision order is accordingly not met.
Result
[51]The application is dismissed.
[52]If any issue as to costs arises then:
(a)Mr Ihimaera is to file his memorandum within 15 working days of this judgment.
(b)The Chief Executive is to file his memorandum within a further 10 days.
48 Simmonds v Chief Executive of the Department of Corrections, above n 34, at [30].
49 Chief Executive Department of Corrections v Skudder [2016] NZHC 1717.
[53] I will then deal with the issue of costs on the papers unless I require the further assistance of counsel.
Katz J
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