Chief Executive of the Department of Corrections v Kepu
[2022] NZHC 2044
•18 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-383
[2022] NZHC 2044
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
LATU SAVELIO HALANGINGIE KEPU
Respondent
Hearing: 14 July 2022 Appearances:
BD Tantrum and OR Thomson for the Applicant DJ Dufty for the Respondent
Judgment:
18 August 2022
JUDGMENT OF FITZGERALD
[Application for Extended Supervision Order]
This judgment was delivered by me on 18 August 2022 at 10.30 am
Registrar/Deputy Registrar
Date……………………………
Solicitors: Meredith Connell, Auckland To: D Dufty, Auckland
DEPARTMENT OF CORRECTIONS v KEPU [2022] NZHC 2044 [18 August 2022]
Introduction
[1] The Chief Executive of the Department of Corrections (the Chief Executive) applies for a five-year extended supervision order (ESO) in respect of Mr Kepu. This follows the granting of an interim supervision order (ISO) by Peters J on 13 October 2021.1
[2]Mr Kepu opposes the application.
Factual background
[3] Mr Kepu has an extensive criminal history, which I set out in more detail later in this judgment. For present purposes, it is helpful to outline the events following Mr Kepu’s release after serving his most recent prison sentence, which included a sentence of six years and four months for the manslaughter of a prison officer.2 Mr Kepu was released after serving a composite sentence of 12 years and five months’ imprisonment for violent offending, including the manslaughter offending.
[4] Mr Kepu was released from prison on 13 April 2021. On his release, he was subject to the standard conditions of release, as well as special conditions imposed by the Parole Board, which included:
(a)to submit to electronic monitoring as directed by a probation officer;
(b)to remain at his approved address between the hours of 8 pm and 8 am daily, unless he has the prior written approval of a probation officer, or as permitted by s 33(4) of the Parole Act 2002 (the Act);
(c)not to enter any area north of Warkworth as defined by a probation officer in writing unless he has the prior written approval of a probation officer; and
1 Chief Executive of the Department of Corrections v Kepu [2021] NZHC 2745 [ISO decision].
2 R v Kepu HC Hamilton CRI-2010-019-4803, 17 September 2010 [Manslaughter sentencing notes].
(d)not to possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for him by a health professional.
[5] The condition not to travel north of Warkworth responded to concerns of the family of Mr Kepu’s manslaughter victim, who live north of Auckland and were concerned that he might approach them.
[6] Mr Kepu’s release conditions continued for six months from his statutory release date, expiring on 17 October 2021.3
[7] Since his release, Mr Kepu has been convicted and sentenced on five additional charges:
(a)breaching his release conditions by failing to abide by his curfew (dated 21 May 2021);
(b)breaching his release conditions by tampering with and removing his electronic monitoring device (between 10 September 2021 and 13 October 2021);4
(c)possession of a knife in a public place (dated 21 May 2021);
(d)driving in a dangerous manner (dated 12 May 2022); and
(e)failing to stop when followed by red and blue lights (dated 12 May 2022).
[8] On 12 August 2021, the Chief Executive applied to this Court for an ESO in respect of Mr Kepu. Given the proximity of the application to the expiry of Mr Kepu’s release conditions, the Chief Executive sought an ISO. The following special conditions were proposed:5
3 Parole Act 2002, s 18(2).
4 Representative charge.
5 ISO decision, above n 1, at [51].
(a)to reside at an approved address, and not move from that address unless Mr Kepu has the prior written approval of a probation officer;
(b)not to enter any area north of Warkworth as defined by a probation officer in writing unless he has the prior written approval of a probation officer;
(c)to submit to electronic monitoring as directed by a probation officer in order to monitor his compliance with any conditions relating to his whereabouts; and to comply with the requirements of electronic monitoring and provide unimpeded access to his approved residence by a probation officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a probation officer;
(d)to attend a psychological assessment, and attend, participate in and complete any recommended treatment as directed by a probation officer;
(e)to attend an alcohol and drug assessment, and attend, participate in and complete any treatment or counselling directed by a probation officer; and
(f)not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for him by a health professional.
[9] As noted earlier, on 13 October 2021, Peters J granted the application for an ISO.6 Mr Kepu did not in fact object to the ISO or the special conditions sought, other than electronic monitoring and the non-alcohol condition.
[10] Peters J noted that on an ISO application, the Court must be satisfied that the statutory criteria for an ESO have been made out, albeit on a provisional basis and
6 ISO decision, above n 1.
often on untested evidence.7 When considered through that lens, Peters J was satisfied that there was a very high risk that Mr Kepu would in future commit a relevant violent offence and that his offending evidenced a pervasive pattern of serious violent offending.8 The Judge imposed all of the special conditions sought by the Chief Executive, except the condition at [8(f)] above insofar as it relates to alcohol. In relation to the electronic monitoring condition, the Judge said that she was “persuaded (just)” to impose such a condition “for the moment”, noting that the need for the condition was a matter to be looked at in greater depth when the ESO was determined.9 Peters J noted that electronic monitoring had been sought by the Chief Executive to deter Mr Kepu from breaching, and to monitor his compliance with, the condition not to travel north of Warkworth.10
[11] On 26 November 2021, Mr Kepu was charged with a number of violent offences including assault of a person with a firearm and behaves threateningly. Ultimately, however, these charges were withdrawn by police. I accordingly say nothing further about them and place no weight on them.
[12] Mr Kepu currently has four active Corrections charges before the District Court, each for breaching the condition of his ISO that he submit to electronic monitoring. Three of the breaches relate to Mr Kepu’s electronic monitoring device shutting down, apparently as a result of him failing to charge the battery (once on 12 March 2022 and twice on 16 May 2022). The fourth breach (on 1 May 2022) involved Mr Kepu removing his electronic monitoring device, failing to present himself to police to have it reattached, and absconding for 11 days. He was subsequently arrested on 12 May 2022 and charged with the police charges of driving in a dangerous manner and failing to stop (see [7] above).
[13] The Chief Executive also notes in his submissions that since Mr Kepu’s release, on at least 12 separate occasions he has made requests to leave his address during curfew hours to seek medical care, but on several occasions returned home
7 ISO decision, above n 1, at [7], referring to Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14].
8 ISO decision, above n 1, at [48] and [25].
9 At [61].
10 At [57]–[58]. The Chief Executive’s submissions on the ISO application did not seek to suggest that electronic monitoring would reduce the risk of Mr Kepu reoffending per se.
without receiving any form of medical treatment. Further, on at least seven occasions, Mr Kepu removed his electronic monitoring device.
[14] Mr Kepu also has three active police charges, being two charges of threatens to kill or do grievous bodily harm and one charge of intentional damage. The alleged offending involved Mr Kepu’s ex-partner, whom I will refer to in this judgment as V. The following summary of the alleged offending is taken from the summary of facts.11
[15] The police allege that on 13 May 2022, approximately three weeks after Mr Kepu and V separated, Mr Kepu drove to the address where V was residing, jumped over the fence and walked inside, straight to V’s room. V then entered her room and saw a revolver sitting on top of her dresser next to where Mr Kepu was standing, with five bullets sitting next to it. The next day, Mr Kepu called V multiple times and threatened to kill her and her family. He then sent V a picture of himself holding a firearm. Two days later, on 16 May 2022, Mr Kepu went to V’s parents’ home and smashed the front window of the address before driving away. Mr Kepu is currently remanded in custody as a result of these charges.12
[16] Finally by way of background, shortly before the hearing of the ESO application, the Chief Executive filed a memorandum seeking leave to add further interim special conditions to the ESO (if made), in addition to the existing conditions.13 The further proposed interim special conditions are:
(a)not to threaten or use violence;
(b)not to have contact or otherwise associate with V, directly or indirectly, unless Mr Kepu has the prior written approval of a probation officer;
(c)not to associate, directly or indirectly, with any person associated with the Killer Beez gang unless Mr Kepu has the prior written approval of a probation officer; and
11 Mr Kepu has not yet been tried on these charges and is entitled to the presumption of innocence.
12 A bail hearing is scheduled for 18 August 2022, the same day that this judgment is being delivered.
13 Pursuant to the Parole Act, s 107IA(3)(a).
(d)for Mr Kepu to be at his approved address between the hours of 10 pm and 6 am daily, unless he has the prior written approval of a probation officer.
Procedural history
[17] The hearing of the ESO application has a somewhat tortuous procedural history.
[18] The Chief Executive filed his application for an ESO, together with the application for an ISO, on 12 August 2021. On 31 August 2021, Moore J allocated a one day hearing for the ESO application of 10 February 2022. That date was specifically allocated to give Mr Kepu the opportunity to instruct an expert should he wish to do so. As addressed above, on 13 October 2021, Peters J granted the ISO application.
[19] The 10 February 2022 hearing of the ESO application did not, however, proceed. This was because a psychologist’s report could not be prepared in time on behalf of Mr Kepu. At that time, there was no opposition by the Chief Executive to Mr Kepu’s application for an adjournment. The context to that adjournment is, however, important. Mr Kepu’s then counsel, Ms Smith, filed a memorandum on 18 January 2022 advising that she had initially been instructed by Mr Kepu that he did not oppose the making of the ESO and for that reason, she had not briefed a psychologist to prepare a report. Ms Smith recorded in her memorandum that Mr Kepu had then instructed her that he did want to oppose the application, hence counsel taking steps at that time to engage the services of a psychologist, but not having sufficient time in which to do so. This led to Gault J’s comment in his minute of 19 January 2022 (granting the adjournment) that it was “unfortunate” that Mr Kepu’s instructions had changed at a late stage.
[20] A new hearing date for the ESO application was scheduled for 28 April 2022. In early April 2022, Ms Smith advised that Mr Kepu was in receipt of a health assessor’s report but it had been completed without his input. She advised that Mr Kepu did not want to rely on that report and sought an adjournment of the 28 April hearing to obtain a further health assessor’s report. Ms Smith also sought leave to
withdraw, there having been a breakdown in the relationship between her and Mr Kepu.
[21] In my role as Criminal List Judge, I convened two telephone conferences to address the matters arising. In my minute dated 8 April 2022, I asked Ms Smith to:
… convey to Mr Kepu that, in the event an adjournment were granted, there is unlikely to be any further adjournment of the application, given there has already been an adjournment from February this year. Mr Kepu has accordingly had an appropriate opportunity to obtain materials to be used in response to the ESO application.
[22] In my second minute (dated 12 April 2022), I granted leave for Ms Smith to withdraw as counsel. On the adjournment application, I noted that while it was preferable for Mr Kepu to have the opportunity to file his own health assessor’s report, he had had ample opportunity to do so to that point. Nevertheless, given the ISO terms were to continue in force pending determination of the ESO application, I (reluctantly) vacated the 28 April 2022 hearing.
[23] The matter was then called in criminal callover on 27 April 2022 for the purpose of setting a new hearing date (14 July 2022 being allocated). At that point, Mr Dufty had only just been assigned as counsel to Mr Kepu, but confirmed that Mr Kepu did want to obtain an expert report for the purposes of the ESO application. Mr Dufty noted that Mr Kepu wanted him to engage a forensic psychologist known to Mr Kepu’s family, and was to provide Mr Dufty with those details shortly thereafter. At a later callover, Mr Dufty noted that regrettably, and despite repeated requests, Mr Kepu had not provided him with the expert’s details. Mr Kepu then absconded from his bail address14 and was at large until he was arrested and remanded in custody.
[24] Against this backdrop, Mr Kepu applied shortly prior to the 14 July 2022 hearing of the ESO application for a further adjournment, again on the basis that further time was needed for Mr Kepu to obtain an expert report. The Chief Executive opposed the adjournment on the basis that there had already been two successive adjournments, and that Mr Kepu had had ample opportunity to secure a health assessor’s report if he chose to do so.
14 Then being on bail on his current charges.
[25] I was not prepared to adjourn the hearing of the application for an ESO for a third time. The Chief Executive’s application had been filed in mid-August 2021, and there was no question that Mr Kepu had had more than ample time to engage in the process and secure a health assessor’s report had he chosen to do so.
[26] At the hearing of the ESO application before me, Mr Kepu renewed his application for an adjournment. Despite being represented by counsel (Mr Dufty), he effectively made the application himself, and frequently interjected during the hearing. As I indicated to Mr Kepu at the hearing, I had only just dealt with his application for an adjournment and there was no material change in circumstances to warrant revisiting that decision. Evidently unhappy with this response, Mr Kepu then suggested that he was dissatisfied with Mr Dufty’s service and purported to “fire” him. I apprehended, however, that this was a device to secure an adjournment, given no concerns with Mr Dufty’s service had previously been raised. I took a brief adjournment so Mr Dufty could discuss the matter with Mr Kepu. I made it clear that absent any significant matters arising, I proposed to continue with the hearing.
[27] Upon Court resuming, Mr Dufty confirmed that Mr Kepu wanted to sack him as his lawyer, and Mr Dufty accordingly sought leave to withdraw. I granted leave. On the basis that I did not perceive there to be any relationship breakdown between Mr Kepu and Mr Dufty,15 I considered it appropriate to appoint Mr Dufty as standby counsel to Mr Kepu. I explained the role of standby counsel to Mr Kepu. I confirmed that the hearing would proceed and that Mr Dufty would be available to Mr Kepu at all times should he wish to seek assistance from him.
[28] The Chief Executive called Mr Stephen Els, a clinical psychologist, who proceeded to give evidence. Partway through the evidence, Mr Kepu confirmed that he wished to re-engage Mr Dufty as his counsel for the hearing. Mr Dufty was willing to accept that appointment and the hearing continued on that basis.
15 Reinforced by the fact that following the ESO application hearing, Mr Kepu has continued to retain Mr Dufty as his counsel.
Mr Kepu’s criminal history
[29]I turn now to Mr Kepu’s relevant criminal history.
[30] In 2004, Mr Kepu was convicted of aggravated robbery, assaults on police, fighting in a public place, common assault and possession of an offensive weapon, committed over various incidents in 2003. He was 14 or 15 years old at the time of this offending. On the materials before the Court, it appears the aggravated robbery involved Mr Kepu impulsively using a beer bottle to assault a taxi driver to rob him.
[31] In 2005, Mr Kepu received further convictions in the Youth Court for robbery and assault with intent to injure.
[32] In 2009, Mr Kepu was sentenced to two years and eight months’ imprisonment for offending over several incidents in 2007 and 2008, which included injuring with intent to injure, common assault (x 2), threatening to kill, assault with intent to injure and resisting police.16 The sentencing notes record that Mr Kepu kicked a police officer in the head six times during the process of arrest; and on another occasion threatened to kill a victim “because she was Samoan”, pushed over a victim who was seven months pregnant, punched another victim in the head until he fell to the ground and repeatedly kicked him until the police arrived, and punched someone who attempted to call the police.17
[33] In May 2010, while serving the above sentence, Mr Kepu’s security classification was upgraded to “maximum security” and he was placed in segregation.18 Apparently confused as to why he was being segregated, Mr Kepu had a discussion with his supervising prison officer, which agitated Mr Kepu. He then spent the morning brooding and resolved to assault the officer when the opportunity arose.19 When the officer later returned to his cell, Mr Kepu punched him in the face, causing him to fall back and hit his head. The officer later died as a result of brain injuries.
16 R v Kepu DC Auckland CRI-2008-004-27776, 27 August 2009.
17 At [6].
18 See R v Kepu HC Hamilton CRI-2010-019-4803, 17 September 2010 [Disputed facts decision] at [5]–[20].
19 At [15]–[16].
[34] Mr Kepu pleaded guilty to manslaughter and was sentenced to six years and four months’ imprisonment.20 A disputed facts hearing was held before sentencing, on whether the assault was premeditated and whether Mr Kepu showed genuine remorse. Heath J concluded that the offending was premeditated and that Mr Kepu was not truly remorseful for his actions, including because he had made light of the victim’s death on two separate occasions, including to the victim’s co-workers.21
[35] In October 2012, Mr Kepu punched a prison officer in the face “without warning” with such force that the officer had to have a tooth removed.22 Ten days later, Mr Kepu kicked another prison officer in the stomach without warning. Mr Kepu pleaded guilty to common assault and assaulting a prison officer, and was sentenced to seven months’ imprisonment.
[36] In October 2015, Mr Kepu and a co-offender entered another prisoner’s cell and Mr Kepu was seen removing an item from his waistband area. The prisoner received multiple stab wounds to his back and torso (with one wound just below his neck), as well as head injuries. Mr Kepu pleaded guilty to assault with intent to injure and was sentenced to 13 months’ imprisonment, which was upheld on appeal.23
[37] In October 2017, Mr Kepu committed a similar offence. He was seen removing an item from his waistband while entering another prisoner’s cell. The victim received at least 12 stab wounds. Mr Kepu was sentenced to 21 months’ imprisonment for this offending.24
[38] As noted earlier, since his release Mr Kepu has been convicted and sentenced on a charge of possession of a knife in a public place, and has been charged with threatening to kill or do grievous bodily harm and intentional damage in respect of his ex-partner (see [7] and [14] to [15] above). At the hearing before me, counsel for the Chief Executive also referred to Corrections records which allege that on 19 August 2021, Mr Kepu said to a parole officer, about another parole officer, “I will punch her
20 Manslaughter sentencing notes, above n 2.
21 Disputed facts decision, above n 18, at [22]–[28].
22 Police v Kepu DC North Shore CRI-2012-044-6662, 21 May 2013 at [2].
23 Kepu v Police [2016] NZHC 2410.
24 Police v Kepu [2018] NZDC 25473.
if I see her”; further, that on 24 September 2021, Mr Kepu told a parole officer: “If yous make me breach tonight because I have nowhere to go then yous will find out what happens”; and that on 30 June 2022, Mr Kepu (then back in custody) told a prison staff member: “I’ll shoot you when I get out” (or words to that effect).25
The ESO regime
[39] I turn now to outline the statutory regime for ESOs, which is set out in Part 1A of the Act. The purpose of an ESO is “to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences”.26 An ESO can be made in respect of an offender who has been sentenced to imprisonment for a relevant sexual or violent offence and has not ceased to be subject to a sentence of imprisonment, release conditions or an ESO previously made.27
[40] The application for an ESO must be accompanied by a health assessor’s report.28 In the case of relevant violent offending,29 the report must address whether the offender displays each of the behavioural characteristics about which the Court must be satisfied,30 and whether there is a very high risk that the offender will in future commit a relevant violent offence.
[41] An ESO may be made if, following the hearing of the application, the Court is satisfied, having considered the matters addressed in the health assessor’s report, that:31
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b)either or both of the following apply:
(i)there is a high risk that the offender will in future commit a relevant sexual offence:
25 I gave Mr Kepu the opportunity to file further evidence and submissions about these alleged interactions following the ESO application hearing, an opportunity which he took up.
26 Parole Act, s 107I(1).
27 Section 107C(1).
28 Section 107F(2).
29 Section 107F(2A)(b).
30 Specified in s 107IAA(2).
31 Section 107I(2).
(ii)there is a very high risk that the offender will in future commit a relevant violent offence.
[42] A “relevant violent offence” is one listed in s 107B(2A). Those offences include murder, manslaughter, wounding with intent, injuring with intent to cause grievous bodily harm, kidnapping, robbery, aggravated robbery and assault with intent to rob.
[43] Under s 107IAA(2), the Court may determine that there is a “very high risk” that the offender will commit a relevant violent offence only if it is satisfied that the offender:
(a)has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:
(i)intense drive, desires, or urges to commit acts of violence; and
(ii)extreme aggressive volatility; and
(iii)persistent harbouring of vengeful intentions towards 1 or more other persons; and
(b)either—
(i)displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or
(ii)has limited self-regulatory capacity; and
(c)displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
[44] Under s 107I(4), every ESO must state the term of the order, which may not exceed 10 years. The term of the order must be the minimum period required for the purposes of the safety of the community in light of 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.32
32 Parole Act, s 107I(5).
[45] As the Court of Appeal said in Chief Executive, Department of Corrections v Alinizi, the Court is required to follow a three-step process for determining whether an ESO should be made:33
(i)the Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;
(ii)the Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and
(iii)if those criteria are met the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.
[46] In a recent decision in Chisnall v Attorney-General, a full bench of the Court of Appeal made a declaration that Part 1A of the Act is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990 (the NZBORA).34 That section provides that no one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again. In its substantive decision in Chisnall, the Court observed:35
[218] ESOs and PPOs [public protection orders] are imposed on persons nearing the end of the sentences imposed on them by the courts in response to their criminal offending, applying the purposes and principles of sentencing set out in the Sentencing Act including the important purpose of protecting the community from the offender. The restrictions which then flow from both ESOs and PPOs are potentially very severe, and in the case of PPOs can amount to indefinite detention. This is punishment, in the absence of trial and conviction for a further offence. It is a marked departure from the legal order reflected in s 26(2) of the [NZBORA].
…
[220] We do not consider it is an adequate response to say, in assessing whether the limits on the right contained in the legislation have been demonstrably justified, that orders will not be made in individual cases without a full assessment by judicial officers. In essence, that reduces the s 5 analysis to a case by case consideration without asking the essential question of whether the ESO and PPO regimes represent reasonable limits of the s 26(2) right. That is the question raised by s 3 of the [NZBORA] which applies the Act’s provisions to acts done by the legislative branch of government, as well as the other branches. To say the Acts may be able to be applied in a rights- compliant way does not answer the central question, which is whether the relevant provisions of the Parole Act and the [Public Safety (Public Protection
33 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
34 Chisnall v Attorney-General [2022] NZCA 24; but see Attorney-General v Chisnall [2022] NZSC 77, in which leave was granted to appeal the Court’s decision.
35 Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484.
Orders) Act 2014] delineate regimes that limit rights in a way, and to an extent, that has been demonstrably justified.
[47] In R (CA586/2021) v Chief Executive of the Department of Corrections, the Court of Appeal discussed Chisnall and observed:36
[53] We accept the submission of R that consequent upon Chisnall, the continuation of the ESO needs to be clearly justified. Whilst that has always been the case, the declarations of inconsistency made by the Court emphasise the need for careful scrutiny. In this regard we note Chisnall holds that s 26(2) of the NZBORA (the second penalty provision) is capable of being subject to a reasonable limit. “Strong justification” will, however, be required, and that accordingly is the lens through which we assess whether the Judge erred in confirming the order.
[48]The “strong justification” approach was affirmed by the Court of Appeal in
Wilson v Chief Executive of the Department of Corrections.37
ESO conditions
[49] When an ESO is imposed, the offender becomes automatically subject to the standard extended supervision conditions set out in s 107JA of the Act.38
[50] The special conditions of an ESO (if any) are determined by the Parole Board under s 107K of the Act, and not the Court. Nevertheless, the Chief Executive may apply under s 107IA for an order by the Court imposing any special conditions that the Board may impose under s 107K of the Act. The Court may make such an order only if satisfied that there may not be sufficient time before the ESO comes into force for the Board to determine which (if any) special conditions should be imposed.
[51] Any special conditions, including those imposed under s 107IA by the Court, to which the offender is subject when an ESO comes into force continue for three months after the ESO order comes into force.39 This therefore includes special conditions in force pursuant to an ISO. This approach is clearly intended to provide a
36 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 (footnotes omitted).
37 Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [19]–[20].
38 Parole Act, s 107J(1)(a).
39 Section 107L(2A)(a).
“stopgap” measure in the event there is a gap between the ESO having effect and the Board determining the special conditions (if any) of that ESO.
[52] Finally, I note that pursuant to s 107IA(5) of the Act, the offender may apply to the Court for an order cancelling or varying a subsisting order under subs (1) (interim special conditions imposed by the Court pending the Board determining special conditions), if satisfied that the cancellation or variation needs to be made before the Board determines what special conditions should be applied. In this case, and in the event I were to order an ESO, Mr Kepu applies for an order that the interim special condition of electronic monitoring be cancelled. I return to this particular topic at [92] to [93] below.
Health assessor’s report
[53] As already noted, the application for an ESO must be accompanied by a health assessor’s report. The Chief Executive relies on a report dated 19 July 2021 prepared by Mr Els, who as mentioned earlier is a clinical psychologist. Mr Els also gave evidence at the ESO application hearing and was questioned by the parties and the Court. As discussed earlier, while Mr Kepu indicated his intention to obtain his own health assessor’s report, this did not eventuate.
[54] In his report, Mr Els assessed Mr Kepu’s risk of violent reoffending using various actuarial instruments, including the RoC*RoI measure, the Violence Risk Scale (VRS) and the Psychopathy Checklist: Screening Version (PCL:SV). He summarised the results as follows:
(a)Mr Kepu’s RoC*RoI score places him in the category of moderate risk of imprisonment within five years of being released. The RoC*RoI test is based on static factors and has been shown to be about 75 per cent accurate.
(b)Mr Kepu’s VRS score places him in the high-risk category of further violent offending. The estimated recidivism rate for the high-risk group within 4.4 years was 51.1 per cent (with the base rate for violent offences in the normative sample being 31.2 per cent). Out of the
20 dynamic risk factors, 17 were related to Mr Kepu’s recidivism risk.40 Mr Els was unable to factor “mental disorder” into this assessment as Mr Kepu did not consent to the release of his treatment information,41 nor “stability of relationship” as at the time of the assessment, Mr Kepu had not had the opportunity to form intimate relationships, having been imprisoned for much of his adult life.
(c)Mr Kepu’s PCL:SV score was above the average score for New Zealand offenders. Furthermore, his higher score on interpersonal and affective deficits indicates a higher probability of committing serious violent offences within two years of release into the community.
[55] Taking into account these results, Mr Kepu’s criminal history and his behaviour in prison and in the community since his release, Mr Els considers that Mr Kepu presents a “very high risk” of committing a relevant violent offence in the future. He considers Mr Kepu most likely to offend against male persons who are known or unknown to him, such as those in positions of authority (like law enforcement) or rival gang members if he feels they have wronged him. He notes that Mr Kepu also has another much shorter and more difficult to discern pathway to violence, in that his eventual victims may not see any outward sign that he is about to engage in violence. Mr Els states that factors like antisocial associates and substance abuse may contribute to Mr Kepu’s offending, but they are not required for him to offend.
[56] Mr Els is of the opinion that Mr Kepu’s risk of serious violent offending is most likely to endure over the longer term. He refers to Mr Kepu’s lengthy history of violence in different contexts and against victims of varying profiles, his continued violence despite close management in prison, his failure to engage in intensive group therapy and his assessment results, which raise further concern about his willingness or ability to manage his risk of reoffending.
40 Being violent lifestyle, criminal personality, criminal attitudes, work ethic, criminal peers, interpersonal aggression, emotional control, violence during institutionalisation, weapon use, insight into violence, substance abuse, community support, release to high risk situations, violence cycle, impulsivity, cognitive distortion, and compliance with community supervision.
41 Mr Els also notes that Mr Kepu reportedly suffered a brain injury at age 15 but this could not be further considered for the same reason.
[57] Mr Els notes that Mr Kepu has received individual treatment with different psychologists at different times. However, he states that Mr Kepu’s continued antisocial behaviour, including in prison, indicates that he has a low motivation to use the skills offered, and that his beliefs and attitudes regarding violence have not been addressed. Therefore, Mr Els concludes that treatment does not appear to have mitigated Mr Kepu’s risk of violent reoffending.
[58] In terms of the s 107IAA criteria, Mr Els considers that the evidence indicates that Mr Kepu has an intense drive to commit acts of violence. This evidence includes Mr Kepu’s criminal history, as well as his tendency to engage in explosive anger, persistent threats and physical violence to redress perceived wrongs, gain dominance or control over others, or dissipate strong emotions like anger or resentment. Mr Els points to Mr Kepu’s continued offending in the controlled prison environment, with Mr Kepu displaying a well-established pattern of abusing and threatening prison staff, often over minor issues. Mr Els considers that this factor will remain stable over time, as Mr Kepu appears to have limited skills to pro-socially manage this drive and the factors underlying his violent offending remain substantively unaddressed. He notes that Mr Kepu’s attitudes to violence have been reinforced through his association with the Killer Beez gang.
[59] Mr Els considers that Mr Kepu displays extreme aggressive volatility, as demonstrated by his criminal history and pattern of aggressive interactions with prison staff. Mr Els notes that Mr Kepu has stable attitudes that support extreme aggressive volatility to maladaptively solve problems; therefore, he is likely to be highly reactive in situations where he misinterprets events or develops preconceived fixed perspectives.
[60] Mr Els is of the opinion that the evidence indicates a pattern of Mr Kepu persistently harbouring vengeful intentions that, when combined with him engaging in rumination, find expression in violent behaviours. He refers to Mr Kepu’s manslaughter offending, which involved Mr Kepu ruminating on a perceived wrong before attacking the victim when the opportunity presented itself. Mr Els records that Mr Kepu threatened to do violence to prison staff and their families upon his release, though the nature of these threats is unclear from the report.
[61] Mr Els considers that Mr Kepu’s criminal history, his offending in prison and his manslaughter offending demonstrate a capacity for planning and executing serious violence to meet a premeditated goal, that being the serious harm of a victim.
[62] Mr Els considers that Mr Kepu’s PCL-SV and VRS scores, and his behaviour in prison and in the community since his release,42 indicate poor self-regulatory capacity both generally and in relation to violence. He notes that Mr Kepu spent most of his imprisonment in a high or maximum security setting, and was still being managed in a behavioural management unit just prior to his release, indicating a lack of ability to self-regulate.
[63] Although Mr Kepu acknowledges his violent offending, Mr Els considers that he demonstrates a pattern of justifying, minimising and rationalising his behaviour. Similarly, while Mr Kepu has expressed remorse, Mr Els notes that this has not had a positive impact on his behaviour. Mr Els considers that Mr Kepu has shown a very limited capacity for understanding or being concerned about the impact of his violent offending on victims. He refers to Mr Kepu’s mocking of the colleagues of the victim of his manslaughter offending.
[64] Finally in terms of Mr Els’ written report, he records that Mr Kepu was reluctant to engage with a departmental psychologist (as required by his release conditions) but appears to have done so after it was made clear that he would face breach action.
[65] As noted, Mr Els gave evidence at the hearing of the ESO application. In his examination-in-chief, Mr Els confirmed that since preparing his report he had received details of Mr Kepu’s new convictions, his active charges and the charges that were withdrawn. He stated that the material did not alter his opinion in his report; rather it confirmed it.
[66] Mr Els was questioned by me as to whether he had an opinion on whether electronic monitoring reduces the risk of Mr Kepu reoffending. Mr Els said that he
42 Mr Els refers to Mr Kepu engaging in drug use, driving without a licence, breaching his curfew and pushing boundaries with Community Corrections staff despite warnings.
thought electronic monitoring “can help” but acknowledged that “also there has been evidence of Mr Kepu still managing to become unmonitored”, so his answer was “not an unqualified yes or no”. Upon further questioning as to what he meant by “it can help”, Mr Els elaborated:
I think maybe more in real time [Mr Kepu being] obviously aware of potential issues that might arise in terms of not being where he’s supposed to be or not abiding by rules that have been put in place in terms of time and place that he has to be. That at times – when people have talked to him about – saying we have concerns about what you’re doing and where you are, Mr Kepu has at times been responsive to that and I think it has emulated some issues that have come up for him. But at other times when it doesn’t appear to have emulated those issues either.
[67] Upon clarification that he was being asked for his opinion on risk mitigation rather than the different issue of overseeing Mr Kepu’s compliance with his conditions, Mr Els replied that “for me they go hand-in-hand and I think yes, it will lead to risk mitigation”.
[68] In cross-examination, however, Mr Els accepted that electronic monitoring would not stop Mr Kepu from doing what he wanted. The following exchange between Mr Dufty and Mr Els took place:
Q.You were asked some questions about electronic-monitoring of Mr Kepu. You’d accept that Mr Kepu is quite strong willed?
A. I do, yes.
Q.So, if he wanted to go somewhere and do something he’s probably going to do it isn’t he?
A. He might, he might.
Q.So, in terms of electronic-monitoring with GPS where Mr Kepu is free to go where he likes, that’s not going to stop him from doing what he wants, is it?
A. No, it’s not.
Submissions
Chief Executive
[69] Counsel for the Chief Executive submit that Mr Kepu has, and has had, a pervasive pattern of serious violent offending, relying on Mr Kepu’s criminal history
as well as his offending since his release. Counsel submit that Mr Kepu’s recent conviction for possession of a knife in a public place is particularly concerning in light of his history of assaults with stab weapons. Counsel further submit that his current charges relating to alleged violence against his ex-partner continue his pattern of serious violent offending in response to being wronged.
[70] Counsel argue that there is a very high risk that Mr Kepu will commit a further relevant violent offence, and that each of the s 107IAA criteria are met. In this regard, counsel rely on Mr Els’ risk assessment, his conclusions on each of the s 107IAA criteria and Mr Kepu’s criminal history. Counsel also refer to the Court of Appeal’s observation in Alinizi that the s 107IAA criteria, while required to be “present”, do not need to be externally manifested at the time of the ESO application.43
[71] Counsel highlight that since Mr Kepu’s release in April 2021, he has returned to custody at least four times,44 which has impacted his ability to engage with treatment, obtain community support and address his many risk factors. Counsel note that while the “stability of relationship” risk factor was omitted from Mr Els’ assessment of Mr Kepu’s VRS score, following his release Mr Kepu formed an intimate relationship with V, and now faces serious charges relating to her.
[72] Regarding the duration of the order, counsel submit that the ESO should be for a period of five years, being the minimum period required for the purpose of the safety of the community in light of Mr Kepu’s risk.
[73] Finally, counsel submit that while s 107I(2) gives the Court a residual discretion, this Court has held that “it would be exceptional not to make an order when the criteria had been established, particularly given the high threshold for an order and the statutory concern of public safety”.45 Counsel submit that there are no other forms of monitoring that would provide adequate monitoring and risk management in relation to Mr Kepu; therefore, the Court should exercise its discretion to make an ESO.
43 Chief Executive, Department of Corrections v Alinizi, above n 33, at [26]–[27].
44 The first being for a period of two and a half months while on bail from May 2021, which was eventually deemed time served on the relevant charges.
45 Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [57].
Mr Kepu
[74] As noted, Mr Kepu opposes the application. Mr Dufty accepts that on the evidence before the Court, all criteria appear to be met for the imposition of an ESO. He observes that Mr Kepu is not in a position to dispute Mr Els’ opinions, having not engaged his own expert. Counsel accepts that if an ESO is made, a period of five years would seem appropriate.
[75] Counsel confirms, however, that Mr Kepu maintains his opposition to the proposed electronic monitoring condition. Mr Dufty notes that if an ESO is made, the electronic monitoring condition under the ISO will continue in force for three months or until the Parole Board determines any earlier application for special conditions.46 Counsel records that the Chief Executive sought the imposition of such a condition at the ISO hearing to deter Mr Kepu from breaching, and monitor his compliance with, the condition that he not enter any area north of Warkworth, to provide for the reasonable concerns of the family of Mr Kepu’s manslaughter victim.47
[76] In terms of Mr Kepu’s application to vary the ESO (if made), Mr Dufty argues that it is unreasonable to continue with the electronic monitoring condition. First, counsel submits that electronic monitoring conditions severely restrict a person’s liberty and privacy. Second, there is already a condition restricting Mr Kepu from travelling north of Warkworth which will remain in force for at least three months from the date of the ESO. Finally, there is nothing to suggest that Mr Kepu knows the victim’s family or where they live, that he has attempted to travel to their address, that he is seeking retribution against them or that his offending related to them in any way. Further, Mr Dufty notes that balanced against the seriously intrusive nature of electronic monitoring, the expert evidence suggests that there is no clear benefit, in terms of reducing the risk of offending, from such monitoring. Mr Dufty refers to Mr Els’ evidence that Mr Kepu will do what he wants, irrespective of such monitoring.
[77] Counsel notes that Mr Kepu also opposes the additional interim special conditions sought by the Chief Executive (see [16] above) for the following reasons:
46 Parole Act, s 107L(2A); and see [51] above.
47 Section 15(2)(c).
(a)Not to threaten or use violence. Given it is an offence to threaten or use violence, Mr Dufty submits this condition is redundant as these actions would likely result in arrest and Mr Kepu’s remand in custody in any event.
(b)Not to have contact or otherwise associate with V, directly or indirectly, unless Mr Kepu has the prior written approval of a probation officer. Mr Kepu has current charges relating to alleged offending against V. He has conditions not to contact or associate with her and is presently in custody, and such a condition will be inevitable were he to be granted bail. Mr Dufty accordingly submits this condition is unnecessary as a special condition of the ESO.
(c)Not to associate, directly or indirectly, with any person associated with the Killer Beez gang, unless he has the prior written approval of a probation officer. Mr Dufty submits this condition is unnecessary as there is little history of gang-related violence offending by Mr Kepu. He argues it is also too broad, potentially curtailing any contact Mr Kepu has with people remotely associated with the Killer Beez.
(d)To be at his approved address between the hours of 10 pm and 6 am daily, unless he has the prior written approval of a probation officer. Mr Dufty submits that a night-time curfew is a severe restriction of Mr Kepu’s liberty and is unnecessary to prevent any risk of violence. He submits there is no indication that Mr Kepu is at greater risk of offending during the night than during the day.
[78] Finally, and in response to those alleged communications by Mr Kepu to Corrections or parole officers referred to at [38] above, Mr Dufty suggests that these comments, if accepted, were made in situations of high stress, and emphasises that none of the alleged threats have ever been carried out.
[79] Before turning to my decision on the application, I note that I was not provided with any submissions by any of the victims of Mr Kepu’s offending.48
Analysis
[80] I must first consider whether Mr Kepu has, or has had, a pervasive pattern of serious violent offending. Given Mr Kepu’s criminal history, there can really be no doubt that such a pattern exists, and that it is pervasive. Sadly, Mr Kepu has been engaged in violent offending, much of it of a serious nature, since a young age and on a fairly regular basis during his lengthy times in custody. This factor is made out.
[81] I accordingly turn to those factors set out in s 107IAA(2) of the Act, of which I must be satisfied before I may determine that there is a very high risk that Mr Kepu will commit a relevant violent offence.
[82] Turning first to s 107IAA(2)(a), I am satisfied that Mr Kepu has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics listed at subs (i) to (iii) of the statutory provision. I accept Mr Els’ evidence that Mr Kepu’s criminal history and behaviour indicates a pattern over time of Mr Kepu expressing or threatening violence and subsequently acting on what Mr Els describes as a “drive to commit acts of violence”. I note that a “drive” to commit acts of violence is different to a “desire” to do so. It is accordingly not necessary for me to conclude that Mr Kepu wants to commit acts of violence, though I consider the evidence in some circumstances indicates that is the case.
[83] In terms of whether Mr Kepu exhibits extreme aggressive volatility, in my view this is plainly made out on the evidence. As demonstrated by Mr Kepu’s pattern of offending, this is most evident in scenarios where Mr Kepu feels he has been disrespected or wronged, such as his interactions on a number of occasions with Department of Corrections staff. I also take into account, though do not place very significant weight on, Mr Kepu’s interactions with probation officers since his release. I accept that he has not engaged in any actual violent conduct towards them. Nevertheless, there is again a pattern of extreme aggression when Mr Kepu perceives
48 Parole Act, s 107H(5).
things are not going his way. References to committing violence and shooting persons may well be threats that are not carried out, but the very fact they are being made, and not as a one-off instance, does tend to support that the underlying characteristic of extreme aggressive volatility continues to subsist.
[84] Turning to persistent harbouring of vengeful intentions towards one or more other persons, while the evidence for this factor is not as strong as that for extreme aggressive volatility, I am satisfied that this characteristic is also made out. As observed by the Court of Appeal in Alinizi, the characteristic does not need to be actively manifested at the time an application for an ESO is made, but rather there needs to be evidence that the offender actually possesses the characteristic.49 I am satisfied the evidence demonstrates such a characteristic on Mr Kepu’s part. This is most evident in relation to his “brooding” and planning of his violent attack on the prison officer who Mr Kepu perceived had slighted him in custody. While the charge of manslaughter demonstrates that it was not suggested Mr Kepu intended to kill the prison officer, his intention was plainly to inflict reasonably serious violence. I also take into account Mr Kepu’s pending charges in relation to V. I acknowledge that those charges are not proven and Mr Kepu is entitled to the presumption of innocence. Nevertheless, the alleged conduct is very serious and it is concerning that conduct of such a nature is apparently being displayed so soon after Mr Kepu’s release.
[85] In terms of s 107IAA(2)(b), I am satisfied that the evidence demonstrates that Mr Kepu has limited self-regulatory capacity. This is plainly evident, in my view, and essentially goes hand in hand with the clear evidence of Mr Kepu’s extreme aggressive volatility. It is also of concern that despite being in the most structured and monitored environment of custody, Mr Kepu’s lack of self-regulation has manifested itself in a pattern of difficult and often violent engagement with Department of Corrections officers, leading to Mr Kepu spending significant periods in a high or maximum security prison setting. Mr Kepu’s lack of self-regulatory capacity is also no doubt exacerbated by him not having engaged in real and sustained rehabilitative efforts.
49 Chief Executive, Department of Corrections v Alinizi, above n 33, at [26]–[27].
[86] I do not place significant weight on Mr Kepu’s more recent poor compliance with his release and ISO conditions. As noted by the Court of Appeal in Wilson v Chief Executive of the Department of Corrections, an offender’s breach of post-release or ISO/ESO conditions might be evidence of an “undesirable attitude” but may not be a particularly good predictor of the offender committing further serious violent offending.50 Nevertheless, I do not consider this evidence wholly irrelevant. As Mr Els noted in his report, even as of July 2021:
… Mr Kepu’s pattern of poor self-management has continued since release from prison, but has, as yet, not included violence. It is however of concern that aspects of his current problematic behaviour are directly related to an increasing number of risk factors as identified by the VRS, which clearly have played a role in his previous violent offending.51
(Emphasis added.)
[87] Unfortunately, Mr Kepu’s behaviour in the months following Mr Els’ report has not improved.
[88] Finally, I am satisfied that the evidence demonstrates that Mr Kepu displays an absence of understanding for or concern about the impact of his violence on actual or potential victims.52 Mr Els describes Mr Kepu’s understanding in this regard as “very limited”. Again, this factor is most evident in relation to the victim of Mr Kepu’s manslaughter offending, and resulted in Heath J’s specific finding of an absence of remorse.53 And as Mr Els notes, Mr Kepu’s response to his violent offending, while acknowledging the offending, is often to seek to shift the blame to the person against whom he has inflicted violence, in terms of that person disrespecting or wronging him. Such “blame shifting” is inconsistent with a genuine understanding of the impact of his violence on his victims.
[89] I am accordingly satisfied that there is jurisdiction for me to make a finding that Mr Kepu is at a very high risk of committing a relevant violent offence in future. Sadly, and without real and sustained engagement by Mr Kepu in rehabilitative efforts
50 Wilson v Chief Executive of the Department of Corrections, above n 37, at [42].
51 Dynamic factors of the VRS include interpersonal aggression, emotional control, impulsivity and compliance with supervision.
52 Parole Act, s 107IAA(2)(c).
53 Disputed facts decision, above n 18, at [29].
in the short to medium term, I conclude that it is almost inevitable. I accordingly find this factor made out.
[90] The next question is whether there is “strong justification” for an ESO. In my view there is. This is not a marginal case. Mr Kepu appears to have entrenched characteristics suggesting that further serious violent offending is highly likely. Mr Kepu will need a fairly structured environment around him upon his release, at least during the initial period of the ESO.
[91] Turning to the duration of the ESO, as counsel for Mr Kepu acknowledges, a period of five years would seem appropriate. As already noted, many of Mr Kepu’s characteristics discussed earlier appear fairly entrenched. This is reflected in his lengthy criminal history regularly peppered with violent offending. Mr Els considers Mr Kepu’s risk of serious violent offending “is most likely to be endurable over the longer term”. All three of those factors at s 107I(5) of the Act suggest a period of around five years is appropriate and the minimum period required for the safety of the public.54 It will of course remain open to Mr Kepu to apply to cancel the ESO,55 or to vary or discharge any of the conditions of the ESO, should circumstances develop more positively over the short to medium term.
[92] Turning finally to interim special conditions, those imposed by Peters J on the ISO will continue for a period of three months following this ESO being made, including the electronic monitoring condition. As noted, however, Mr Kepu has applied to cancel or vary that condition. Mr Kepu relies in this respect on s 107IA(5) of the Act.
[93] It is not clear to me, however, that I have jurisdiction to cancel or vary the electronic monitoring condition. The power to do so under s 107IA(5) of the Act applies only in relation to “a subsisting order under subsection (1)”, subs (1) relating to interim special conditions imposed by the Court when making an ESO. I have not made any interim special condition in relation to electronic monitoring when making
54 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.
55 Parole Act, s 107M.
the ESO; rather the condition was imposed by Peters J at the time of making the ISO. Nor do I consider the power arises under s 107IA(3) of the Act, as that section applies only to an application for an order under subs (1), such application only being able to be made by the Chief Executive and not the offender. Rather, it seems that the appropriate way forward for Mr Kepu should he wish to pursue the application to remove the electronic monitoring interim special condition is to apply to the Board pursuant to s 107O(1) of the Act.
[94] Nevertheless, given the appropriateness of an electronic monitoring condition was argued before me, I offer the following observations. It is plainly a special condition to which the Board will need to give careful consideration.
[95] On the evidence before Peters J when determining the ISO application, the Judge was clearly concerned about this condition and concluded that she was “just” persuaded it was appropriate, “for the moment”.56 I share the Judge’s concerns, at least on the basis of the evidence currently before the Court.
[96] Electronic monitoring is of course a reasonably intrusive type of special condition.57 Pursuant to s 107K of the Act, any special condition imposed on an ESO must meet the requirements of s 15 of the Act. Section 15 relevantly provides:
15 Special conditions
…
(2)A special condition must not be imposed unless it is designed to—
(a) reduce the risk of reoffending by the offender; or
(b) facilitate or promote the rehabilitation and reintegration of the offender; or
(c) provide for the reasonable concerns of victims of the offender; or
(d) comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under section 107IAC, to impose an intensive monitoring condition.
…
56 ISO decision, above n 1, at [61].
57 Electronic monitoring is classed as a “high-impact” condition under the Act: see s 107RB.
[97] As noted, in his submissions in support of the ISO, the Chief Executive argued that electronic monitoring was required to monitor and enforce Mr Kepu’s compliance with the condition not to travel north of Warkworth, which in turn was said to respond to reasonable concerns of the family of Mr Kepu’s manslaughter victim. But it is not clear to me that there is any real evidence of Mr Kepu being a threat to those persons. Certainly since his release, and during many unmonitored periods (including for a number of days at one point), there is no suggestion any issues arose in this regard.
[98] Nor do I consider an electronic monitoring condition would be designed to facilitate or promote Mr Kepu’s rehabilitation or reintegration. On the contrary, it seems it may have the opposite effect, given Mr Kepu’s very clear opposition to such a condition and his response to it to date.
[99] The question is therefore whether electronic monitoring reduces Mr Kepu’s risk of reoffending.58 Again, the evidence supporting electronic monitoring being appropriate for this reason is also thin. Plainly electronic monitoring has not deterred Mr Kepu from reoffending since his release, or engaging in his alleged offending in relation to V. Mr Els quite candidly accepted that Mr Kepu will ultimately do whatever he wants, irrespective of electronic monitoring. I accept that Mr Els said that Mr Kepu knowing that his whereabouts are being monitored by probation services may assist in reducing the risk of reoffending. While in theory I can see that link, I am somewhat sceptical of its benefits in reality, given Mr Kepu’s entrenched characteristics and in particular his aggressive volatility. Knowing where Mr Kepu is at any given point will not ameliorate the risks arising from that characteristic.
[100] Finally, I turn to those additional interim special conditions for which the Chief Executive applies pursuant to s 107IA(1) of the Act.
[101] I do not propose to add a specific condition not to threaten or use violence. I do not consider this is necessary, given threatening or using violence is an offence in
58 Even if electronic monitoring could be imposed for this reason alone, I note that the purpose of electronic monitoring as a special condition is to deter an offender from breaching conditions relating to his or her whereabouts, and to monitor compliance with those conditions: Parole Act, s 15A(1). I accept, however, that if the purpose of a “whereabouts condition” is to reduce the risk of reoffending (rather than, say, responding to the reasonable needs of victims), electronic monitoring could be considered through the lens of reducing the risk of reoffending.
and of itself. I am also conscious that such a condition may well be a condition of any bail granted to Mr Kepu, which in my view is the proper forum for such a condition to be considered.
[102] These observations apply equally to the condition not to have contact or otherwise associate with V. In my view, the appropriate forum for that condition to be considered (if this has not already occurred) is in connection with Mr Kepu’s charges for alleged offending against V, rather than in the broader context of an ESO. To the extent not already made, such restrictions can be applied for while Mr Kepu is in custody pursuant to s 168A of the Criminal Procedure Act 2011. In the event Mr Kepu is granted bail, a no-contact condition in relation to V is inevitable. Finally, should Mr Kepu be convicted in relation to that offending, no contact with V will be covered by the standard conditions of Mr Kepu’s ESO.59
[103] I also decline to impose as an interim special condition that Mr Kepu not associate, directly or indirectly, with any person associated with the Killer Beez gang. There is no suggestion that Mr Kepu’s propensity for violence is specifically gang related or evidenced in gang contexts. It is unfortunately much broader than that. I accept that associating with gangs, or associates of gangs, will not necessarily improve Mr Kepu’s chances of not reoffending. But again, the proposed condition is broad in scope and highly intrusive, in terms of encroaching on Mr Kepu’s right of freedom of association. For such an intrusive condition to be imposed, there would need to be a closer nexus between the proposed condition and risk mitigation. I also note in this context that when setting Mr Kepu’s release conditions, the Parole Board declined to impose a condition that Mr Kepu not associate with any gangs, considering it “unnecessarily onerous”.
[104] I am satisfied, however, that the proposed night-time curfew condition of 10 pm to 6 am is appropriate, at least pending further consideration by the Parole Board. I accept there is no clear pattern of Mr Kepu offending at night. Nevertheless, the benefit of such a condition, at least for a relatively short period, would be to provide some structure and stability to Mr Kepu’s movements and his
59 Parole Act, s 107JA(1)(j).
living arrangements upon his release into the community. It is common sense that night-time is a more volatile time, and also a period more likely to overlap with the consumption of alcohol. Further, the curfew period is reasonably limited. I consider a condition such as this to be more targeted at risk mitigation than general electronic monitoring, and consistent with Mr Kepu’s rehabilitation and reintegration. Again, however, given its intrusive nature, even if the Parole Board were persuaded that the curfew condition ought to continue, it is likely that this should be for a relatively short period of time only.
Result
[105]I make an ESO in respect of Mr Kepu for a period of five years.
[106]The special conditions will be set by the Parole Board.
[107] For the reasons outlined at [92] to [93] above, I do not consider I have jurisdiction to cancel or vary the electronic monitoring condition, which continues pursuant to s 107L(2A)(a). Nevertheless, I have set out my observations at [94] to
[99] above as to whether electronic monitoring should be a special condition imposed by the Board. It will also be open to Mr Kepu to apply to the Board pursuant to s 107O of the Act for removal of the electronic monitoring condition.
[108] I decline to impose those additional interim special conditions sought by the Chief Executive, other than that Mr Kepu be at his approved address between the hours of 10 pm and 6 am daily, unless he has the prior written approval of a probation officer.
Fitzgerald J
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