Chief Executive of the Department of Corrections v Malone
[2024] NZHC 1922
•12 July 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-000040
[2024] NZHC 1922
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
DAVID MALONE
Respondent
Hearing: 29 February 2024
Written submissions 22 March 2024
Appearances:
A Gordon for the Applicant
R Raukawa for the Respondent
Judgment:
12 July 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 12 July 2024 at 3 pm Registrar/Deputy Registrar
Solicitors:
A Gordon, Gordon Pilditch, Crown Solicitor Rotorua R Raukawa, Tui Law, Rotorua
CORRECTIONS v MALONE [2024] NZHC 1922 [12 July 2024]
[1] The Chief Executive of the Department of Corrections (the applicant) applies for an Extended Supervision Order (ESO) in respect of Mr David Malone.1 The period sought is one of five years.
[2] Mr Malone was convicted following guilty pleas and sentenced for various sexual and violence offences in 2009. He was sentenced to a term of 15 years’ imprisonment with a minimum period of imprisonment of eight and a half years.2 At the time of offending, he was 23 years old with no prior convictions.
[3] The convictions included four charges of sexual violation by rape against four different victims during a 12 month period between August 2007 and July 2008.
[4] Mr Malone orchestrated elaborate stories to intimidate the four young adult female victims so that they were fearful for their lives, against a backdrop of consistent concocted cellular telephone text message threats from gangs. Within the context of these choregraphed situations Mr Malone was able to gain control over and rape all four women. The first victim was bound and gagged and held in a concrete basement for days and later forced to participate in a bank robbery. Mr Malone posed the fourth victim and took photographs of her. The offending against the third and fourth victims occurred while Mr Malone was on bail for previous offending (robberies).
[5]Mr Malone was paroled on 17 July 2023 and subject to release conditions until
16 January 2024. He consented to an Interim Supervision Order (ISO) on 8 December 2023. A suite of special conditions was imposed pursuant to that order.3
The relevant offending
[6] The sentencing Judge summarised the facts given rise to the convictions in her sentencing remarks.4 It is unnecessary to set out those facts for present purposes.
1 Parole Act 2002, s 107F.
2 R v Malone HC Hamilton CRI-2007-019-9642, 30 October 2009. [Sentencing of Potter J].
3 R v Malone HC Rotorua CRI-2023-463-0040, 8 December 2023. [Minute of Harvey J].
4 R v Malone, above n 2.
[7] Three reports were presented to the Judge: a full pre-sentence report and reports from a psychologist and psychiatrist. The latter reports were obtained to assist the Court in considering a sentence of preventive detention.
[8] I pause to note that those reports have no currency but assist to provide historical context and a baseline for assessing change.
[9] One of the aggravating features of the offending was described as the “extraordinarily sinister series of acts designed to make [the victims] fear for their lives and the lives of those they loved, in order to manipulate them to achieve his own sexual gratification.” The Judge found that the commission of the offences against young and vulnerable victims was particularly cruel.
[10] Addressing the issue of whether a sentence of preventive detention was appropriate, the Judge referred to the reports of two health assessors prepared under s 88 of the Sentencing Act 2002. She noted that the Consultant Psychiatrist at Regional Forensic Psychiatric Services stated that based on available scientific evidence it was difficult, if not impossible, to predict Mr Malone’s likelihood of committing a serious violent or sexual offence in the distant future and most of the actuarial factors reported in the scientific and criminological literature did not apply to Mr Malone. Further that Mr Malone did not present a number of significant risk factors, such as psychopathy or personality disorder, major mental illness or active symptoms of mental illness, history of previous violence, young age at first violence offence, or prior supervision failure.5
[11] A further report dated 21 July 2009 by a registered psychologist with the Department of Corrections suggested that certain personality traits of Mr Malone were likely to perpetuate or maintain further offending risk but also noted some protective factors such as strong family support. As to potential to re-offend, the report writer then stated:
In summary, the actuarial measures used in this assessment suggest Mr Malone has a medium-low risk of sexual reoffending and a moderate to low risk of re-imprisonment. However, his presentation during the interview
5 At [77](c).
combined with his high PCL-SV score and file information indicate life course persistent anti-social behaviour and personality traits known to be significant in maintaining serious violent offending.
[12] Overall, the report writer assessed Mr Malone as being at moderate to high risk of serious violent re-offending.
[13] The Judge concluded that despite the seriousness and harmfulness of the offending, she could not be satisfied on the available information that Mr Malone was likely to commit another qualifying sexual or violent offence on eventual release from a finite sentence. Therefore, the preference accorded by the then legislation for a lengthy determinate sentence prevailed over the imposition of a sentence of preventative detention.
Health Assessment Reports
[14] An ESO application must be accompanied by a Health Assessment Report.6 The Court heard from a health assessor on behalf of the applicant and a health assessor on behalf of Mr Malone. The experts were cross-examined by opposing counsel. In view of the taking of evidence, I permitted the filing of further written submissions.
[15] In late 2022 over a period of approximately three months, Dr Singh-Pillay, a registered clinical psychologist engaged by Corrections, conducted four one-hour in person interviews with Mr Malone as part of his health assessment. Mr Malone was provided with details of the use of psychometric instruments in the assessment and he was made aware of his right to obtain legal advice on whether to consent to participate. Mr Malone consented to proceed with the assessment.
[16] Dr Singh-Pillay undertook a multi-method assessment comprising of the in person interviews with Mr Malone, psychometric instruments, and Corrections file information including earlier psychological reports. She interviewed Mr Malone’s family members and Corrections staff involved in his care and also reviewed the case notes prepared by Corrections since Mr Malone’s parole release.
6 Parole Act 2002, s 107F(2).
[17] She attributed Mr Malone’s sexual offending to his emotional dysregulation and acute sexual arousal, a need for power and control, severe substance use, and subsequent disinhibition. She noted his confusion regarding sexual identity since aged 14 years and his candid acknowledgement of high levels of sexual preoccupation and sexual interest in coercive and dominant control behaviours at the time of (and before) his offending.
[18] Dr Singh-Pillay used four actuarial risk instruments as part of her assessment. The first was the RoC*RoI score. This is a measure developed for Corrections to assist in the prediction of an offender’s risk of imprisonment following reconviction. This measure is based on factors unchangeable by individual effort. Based on a computer-generated RoC*RoI score, offenders are classified into one of five risk categories from low to very high risk. Mr Malone scored within the low/moderate risk category. Dr Singh-Pillay’s view is that this score is primarily affected by the single sentencing date (as opposed to multiple sentences at different times) so does not reflect the severity of his crimes. This sensitivity may lower its reliability as a measure of assessment.7 On the other hand, one should logically balance the fact that the offending took place over a 12-month period rather than a more extended period of time.
[19] The second risk instrument was the Automated Sexual Recidivism Scale – Revised (ASRS-R). Pursuant to this, Mr Malone is assessed as being in the Level III Average risk category. According to Dr Singh-Pillay, the ASRS-R average risk category offenders who have an adult only victim profile, have an estimated reconviction rate for sexual offending of 9.1 per cent in the five-year period following release and 14.1 per cent in the ten year period following release (based on static risk predictors only).
[20] On the Violence Risk Scale: Sexual Offence version (VRS-SO) instrument, Mr Malone’s score overall placed him in the Level IVa Above Average category. His score was in the 92nd percentile for the sexual deviancy sub-scale and the 77th
7 The expert report of Dr Singh-Pillay refers to the predictive accuracy as .813. This means that 81.3 per cent of the time, a randomly selected individual who has been imprisoned within a five-year follow-up period will have a higher RoC*RoI score than a randomly selected individual who has not been subsequently imprisoned within such period.
percentile for the criminality sub-scale total dynamic score. For the treatment responsivity factor, he also scored in the 77th percentile. The VRS-SO measure is based on both static and dynamic risk predictors. Dr Singh-Pillay said that the scores indicated that if Mr Malone were to re-offend it would most likely be a sexual offence.
[21] Finally, Dr Singh-Pillay used the Psychopathy Checklist: Screening Version (PCL: SV). She described this as a psychological assessment screen for the presence of criminal psychopathic personality and associated antisocial behavioural traits in forensic and criminal populations. On that assessment, Mr Malone’s total score was above the average found in a representative study of imprisoned New Zealand offenders and in the range found to identify those at high risk of serious reoffending within five years of release. Dr Singh-Pillay said that research across a number of studies has found that, in general, sex offenders who are both psychopathic and sexually deviant are especially likely to reoffend and to do so quickly. In other words, the risk conferred by the combination is greater than would be conferred by the combination of their independent effects alone. She considered that offending is likely to occur in the context of a relapse into high levels of sexual preoccupation (increased pornography use), a need for power and control (enduring personality traits), engagement with anti-social peers, substance use and disconnection from his religious beliefs and support systems.8
[22] Overall, Dr Singh-Pillay assessed that Mr Malone presents a high risk of committing further sexual offending based on an enduring tendency to default to entrenched patterns of relating. She considered that his mental health issues are likely to be a significant barrier to managing his risk effectively, particularly if his mental well-being deteriorates, as this has a direct impact on his risk of recidivism.
[23] I observe that each of the risk assessment measures produced a different level of risk. In oral examination-in-chief, Dr Singh-Pillay explained how the best practice multi-method assessment led to her conclusion of overall high risk:
So I used a combination of the assessments that tap into static factors as well as dynamic factors linked to Mr Malone’s risk. When completing an assessment of this level though, we don’t really just look at the assessments in
8 Noting that the family support system is a current protective factor.
isolation or any one assessment in isolation. We look at a multi method system of analysis. So we really just essentially triangulate the results from the various assessments and we integrate this with clinical judgment based on time spent with the client.
[24] Mr Berry prepared an independent review of Dr Singh-Pillay’s report. In doing so he interviewed Mr Malone, but for a relatively brief time by telephone. He also reviewed multiple Department of Corrections Psychological Services reports dating back more than a decade, case notes and medical reports.
[25] Overall, Mr Berry’s position at the hearing was that he agreed that Mr Malone is at a high risk of committing a further relevant sexual offence, but he challenged aspects of Dr Singh-Pillay’s application of the various tests. His position was difficult to reconcile with his written report. In his written report, he opined that, based on lack of evidence, the following statutory conditions were not met:9
(a)Display of an intensive drive, desire, or urge to commit a relevant sexual offence.
(b)Predilection or proclivity for serious sexual offending.
(c)Limited self-regulatory capacity.
(d)Lack of acceptance of responsibility and remorse for past offending.
[26] Mr Berry’s report accepted that the criteria of “absence of understanding for or concern about the impact of [his] offending on actual or potential victims” was met, but this was the only statutory condition satisfied.
[27] Commenting on the RoC*RoI, Mr Berry queried Ms Singh-Pillay’s statement that Mr Malone’s low/moderate score is primarily affected by his single sentencing date and therefore the score does not reflect the severity of his crimes.
9 Refer the cross-examination of Mr Berry in which he accepted as correct the proposition that he agreed that Mr Malone is at a high risk of committing a further relevant sexual offence.
[28] Mr Berry also pointed out that in relation to the Automated Sexual Recidivism Scale – Revised (ASRS-R) level of risk of “Level III, Average” Mr Malone belongs to a group, 92 per cent of whom are deemed unlikely to reoffend within five years.
[29] He similarly viewed the results of the Violence Risk Scale: Sexual Offence Version (VRS-SO) as not necessarily supporting Dr Singh-Pillay’s conclusions. He considered that if Mr Malone’s “perhaps better than average” responsiveness to treatment (in his opinion) was instead incorporated into the algorithm which calculates the “average level of change” score, it would result in a lower VRS-SO risk assessment for Mr Malone.10
Reports since release on Parole
[30] Corrections prepared a progress report dated 20 September 2023 following Mr Malone’s release on parole. It noted that Mr Malone continued to reside in a property managed jointly by Corrections and a faith-based support organisation. This is highly supported accommodation. The organisation confirmed to the Parole Board that there were no issues and that Mr Malone had complied well with his condition to abide by the rules and protocols imposed. He had also been tested numerous times for consumption of alcohol and drugs and returned negative results on each occasion.
[31] The further progress report dated 4 December 2023 from the Parole Officer supervising Mr Malone reported that:
He has continued to present as very compliant, stable and cooperative.
…
Mr Malone has continued to maintain excellent levels of EM compliance.
…
PO can feed back that Mr Malone has remained very open to discussions around his high-risk situations and offending generally. Mr Malone appears to demonstrate good levels of insight in that regard, and presents with prosocial goals and positive change talk.
…
10 Mr Berry also challenges Mr Malone’s PCL: SV score which appeared to increase between 2009 and 2023 despite the noted advances in his treatment; a result Mr Berry describes as “odd”.
Mr Malone has not yet engaged in rehabilitation programmes. He remains waitlisted for engagement with a psychologist and is flagged as high priority. There is an [alcohol/drugs] programme arranged to being (sic) in 2024, approximately in February, which he will attend assuming he remains subject to CC oversight at that juncture.
[32] At the hearing Dr Singh-Pillay commented that recent case notes record that Mr Malone had access to an internet capable device and whilst using the device had briefly engaged with a dating application and social media applications which have self-destructing messaging systems. She observed that it was interesting that Mr Malone felt ready to engage socially on these types of platforms despite maintaining (at the time of her original assessment) that he was following very strict Christian beliefs and desisting from sexual behaviours (outside of a relationship).
[33] Finally, there have been no issues in respect of electronically monitored (GPS) conditions; it was confirmed that Mr Malone had engaged with departmental psychologists and attended treatment and social workers at the supervised accommodation facility are supportive of Mr Malone.
Extended Supervision Orders – statutory regime
[34] Section 107I of the Parole Act 2002 (the Act) empowers a sentencing Court to impose an ESO in certain circumstances. The purpose of such an order is to protect members of the community from persons who pose a real and ongoing risk of committing further serious sexual or violent offending after they have served a determinate sentence.11
[35]Jurisdiction exists to make an ESO where the Court is satisfied:
(a)that the offender has, or has had, a pervasive pattern of serious sexual offending;12 and
11 Parole Act 2002, s 107I(1).
12 Section 107I(2)(a).
(b)there is a high risk that the offender will in future commit a relevant sexual offence or a very high risk that the offender will in future commit a relevant violent offence.13
[36] The first of these requires an assessment of past conduct, while the second is a predictive exercise.14
[37] The Court may only determine there is a high risk that an eligible offender will commit a relevant sexual offence where it is satisfied that the offender:15
(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; and/or
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[38] In determining these issues, the Court is required to consider the matters contained in a report provided by a health assessor.16 In addition, the Court may receive and take into account any evidence or information it thinks fit for the purpose of determining the application, whether or not it is admissible in a court of law.17
13 Section 107I(2)(b).
14 Chief Executive of the Department of Corrections v Bradbury [2016] NZHC 2816 at [31].
15 Parole Act 2002 s 107IAA(1).
16 Sections 107I(2) and 107F(2A).
17 Section 107H(2).
[39] Every ESO must state the term for which the order is to remain. That period may not exceed 10 years.18 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.19
[40] A “relevant sexual offence” is defined in s 107B(2) of the Act and includes sexual violation. Mr Malone qualifies as an eligible offender under s 107C(1)(a).
[41] “Satisfied” does not connote a burden or standard of proof. It simply means that the Court makes up its mind.20
Is there a pervasive pattern of serious sexual offending – s 107I(2)(a)?
[42] Ms Raukawa, counsel for Mr Malone accepted that there was a pattern to the offending related behaviour. This was a responsible concession. She submits that the issue of whether that pattern is “pervasive” is less certain given the relatively limited period over which the offending occurred and lack of previous offending.
[43] “Serious” should be given its natural meaning, viewed against the statutory purpose of protecting the community from those who pose a real and ongoing risk of sexual offending.21 Only offending at the higher end of the range justifies the significant restrictions on freedom of movement and association at the end of a sentence to justify making an order. As the Court of Appeal said in Chakwizira v Department of Corrections:22
[57] An ESO engages rights protected under the New Zealand Bill of Rights Act 1990 (NZBORA). The ESO regime creates a retrospective double penalty, so contravenes s 26 of NZBORA, but nonetheless must be given effect under s 4 of that Act. When deciding whether to make an ESO, and for how long, courts must recognise the order impinges substantially upon the offender’s freedom of movement and association after they have served their sentence. Self-evidently, only offending at the higher end of the range would
18 Section 107I(4).
19 Section 107I(5).
20 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [71]–[75].
21 Chief Executive of the Department of Corrections v Coleman [2021] NZCA 528 at [16].
22 Chakwizira v Department of Corrections [2023] NZCA 307.
justify such a step. This Court has noted these rights must be borne in mind when deciding both whether the offender has the necessary pervasive pattern of serious sexual offending and whether the offender presents a high risk of future serious relevant offending.
[44] By virtue of the sentence imposed on Mr Malone in 2009 there can be no doubt that Mr Malone’s sexual offending was serious.
[45] A pattern connotes multiple offences. While in ordinary parlance it also connotes regularity, a pattern may take any form or sequence.23 While the offending need not be the same, or even similar for a pattern to exist, here Mr Malone’s modus operandi was overwhelmingly similar. Each offence involved a high degree of premeditation, planning and duplicity for the purpose of sexual gratification and involved domination and control in the procurement of that gratification. I am easily satisfied that there was a pattern.
[46] Pervasiveness connotes a pattern that “permeates across an offender’s background and is sufficiently characteristic of the offender to serve as a predictor of future conduct.”24 In each case it is a fact-specific and evaluative exercise.25
[47] The sophisticated planning and premeditation employed by Mr Malone in his offending also informs this part of the assessment. The nature, duration and extent of offending fits the description of a “pervasive pattern”. The offending was interrupted by detection and subsequent charges. The fact that two of the relevant sexual violations were committed whilst Mr Malone was on bail to his mother’s address supports my conclusion.
[48]I am satisfied that the first essential step to jurisdiction is made out.
Is there is a high risk that Mr Malone will in future commit a relevant sexual offence?
[49] The Court may only determine there is a high risk that an eligible offender will commit a relevant sexual offence where it is satisfied of the four statutory factors.
23 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [23].
24 Hofman,v Department of Corrections [2021] NZCA 256 at [27].
25 Chakwizira v Department of Corrections, above n 28 at [20].
These factors are conjunctive - all four of these jurisdictional prerequisites must be met.26
Does Mr Malone display an intense drive, desire, or urge to commit a relevant sexual offence – s 107IAA(1)?
[50] Ms Gordon, for the applicant, makes the point that the urge or drive need not be presently manifested. Rather the issue is whether Mr Malone has the characteristic.27
[51] Dr Singh-Pillay stated that the evidence is mixed as to this factor. She said that Mr Malone historically definitely possessed this urge.
[52]At the hearing Dr Singh-Pillay noted:
…
that there was no evidence to demonstrate a current urge to commit a relevant sexual offence and this is based to a large extent on Mr Malone’s self-reports, you know which unfortunately is unable to be verified. So the issue with the current situation and you know I think it’s a consistent dilemma when doing a risk assessment is that does the absence and [of the] element mean that it does not exist, and I did not have evidence for any urges currently demonstrated by Mr Malone in relation to sexual offending but this does not negate the possibility that it does exist and [is] likely to manifest later.
[53] Dr Singh-Pillay also noted that at the time of her assessment, Mr Malone was also struggling with aspects of depression which would impact on his sex drive.
[54] Mr Berry’s opinion is that Mr Malone does not meet the criteria of an intense drive, desire or urge to commit a relevant sexual offence. However, at the hearing he acknowledged that the 15 year period in which Mr Malone was in prison made it problematic to assess whether there were any concerning behaviours since there was no easy opportunity for repetition of any coercive sexual behaviour in that “artificial environment”.
26 Parole Act, s 107IAA(1).
27 Chief Executive of Department of Corrections v Wilson [2016] NZHC 1082 at [33].
[55] Mr Berry also acknowledged that at the time of offending Mr Malone clearly had that intense drive and requires significant long term treatment to shift those sorts of behaviours, feelings, and arousals.
[56]In Department of Corrections v Alinizi the Court of Appeal said:28
[36] In our view the general approach adopted in CJW, Wrigley and Chief Executive of the Department of Corrections v Rimeme is sound and we consider that a Court is likely to be satisfied that the statutory prerequisite in s 107IAA(1)(a) is present where there is nothing to suggest that such a trait formerly present no longer subsists. A court will very likely to come to such a conclusion where, as here, an offender categorically denies the sexual offending for which he was convicted and as a consequence has been unwilling to undertake treatment to discuss sexual offending.
[57] Mr Malone attended a drug treatment programme in 2016 whilst in custody but was exited before completion for fighting with another inmate. He reported that he was not motivated to attend the Adult Sex Offender Treatment Programme in prison due to safety concerns after the incident in the Drug Treatment programme. Mr Malone did commence individual treatment with a psychologist in late 2021. The treating psychologist considered that Mr Malone has demonstrated willingness and motivation to engage in treatment, but his mental health proved to be a significant barrier.
[58] The relatively short period of rehabilitation/treatment during incarceration is a concern. At the hearing Dr Singh-Pillay noted that Mr Malone’s treatment gains were recent and untested. She said that treatment totalling far more than the 20 sessions that Mr Malone had attended (at the time of assessment) would be appropriate for this levelling of offending. Her evidence is that approximately 200 hours of intensive treatment is required and equated that to intense treatment over a two year period.
[59] Mr Berry appeared to accept that treatment requires a long term and not a short-term view and that the sort of behaviours, feelings and arousals at issue are difficult to shift and will take some effort on Mr Malone’s part.
28 Department of Corrections v Alinizi [2016] NZCA 468.
[60] I am satisfied that this factor is established on the basis that there is no reliable evidence to suggest that the trait formerly held no longer subsists. I accept that it is relevant to any intense drive that, within prison, Mr Malone has had limited access to sexual stimuli and suitable victims susceptible to coercion.29 Since his term of imprisonment came to an end, Mr Malone’s release has been under strict ISO terms, by consent. Therefore, there is no clear picture of whether steps taken to rehabilitate in prison are effective. Balancing that is the fact that there are no indicated problems since release which is to Mr Malone’s credit. This indicates some stability albeit under those protective mechanisms.
[61] I put to one side the reported incidents in custody involving duplicitous behaviour relating to stealing a yoghurt pottle and a blanket. Dr Singh-Pillay noted that the behaviours at issue appear consistent with Offence Analogue Behaviours.30 She explained that the underlying behaviour (defaulting to deceptive behaviour after gaining trust with the prison authorities to work in the laundry and kitchen) rather than the triviality of what Mr Malone did, is the relevant factor. I am not persuaded that, within the complex custodial environment, either incident is sufficiently connected or serious enough to signal an underlying relevant characteristic.
[62] I have had regard to the authority cited by Ms Raukawa.31 I find the facts of that case distinguishable since the offender in that case had been directly released to live in the community with his partner in November 2021 and the District Court ESO decision was not made until May 2023.32 Those well-established and stable circumstances provided comfort to the Court.33 In contrast, Mr Malone has only been tested in a less structured, albeit highly supported residential organisation type of environment, for a relatively short period. Dr Singh-Pillay commented how easily and quickly ingrained behaviours can remanifest in an unstructured environment.
[63]Being satisfied that this first factor is made out, I turn to the next.
29 Mist v Chief Executive of Department of Corrections [2023] NZCA 549 at [54].
30 She explained that an Offence Analogue Behaviour represents criminogenic needs expressed in controlled correctional settings that can jeopardise safety and security.
31 Reuben v Chief Executive of the Department of Corrections [2023] NZCA 564.
32 At [7]–[10].
33 At [49].
Does Mr Malone have a predilection or proclivity for serious sexual offending?
[64] A proclivity for sexual offending encompasses the concept of pattern. A predilection connotes a preference or particular liking for serious sexual offending. These are disjunctive concepts.
[65]Dr Singh-Pillay’s report addressed this factor as follows:
Mr Malone’s sexual offending evidences some predilection and proclivity for serious sexual offending. Although there is a marked absence of sexual offending prior to 2007, Mr Malone’s sexual offending occurred in close succession (within a couple of months of each other) within a discrete period of 12 months. Mr Malone self-reported some hypersexuality at that time (as evidenced in the frequency of sexual relations), as well as engagement in coercive sexual behaviours with escorts, (such as bondage) and this coercive theme is evident in his repeated sexual offending within the 12-month period. This suggests that Mr Malone possessed a preference (predilection) for these coercive sexual behaviours (which included elements of duplicity and control) and which underpins all his sexual offending. He sought out his victims in premeditated acts (suggesting proclivity), using similar modus operandi (modes of operating), for the purposes of sexual gratification.
[66] Mr Malone’s current proclivity or predilection has also not been tested in an unstructured environment.
[67] Mr Berry agreed that there was proclivity and predilection 15 years ago, but maintained there is no evidence that it currently exists. At the same time, he acknowledged that absence of evidence is not evidence of absence. The following exchange with cross-examining counsel sums up his views:
Q.But in your view are you saying that this condition is not met because of that absence?
A: Yes, because there is no indications (sic) to me that currently we’re looking at someone with a proclivity and predilection. There’s no evidence for that at this point in time. It’s a question of how far do you go back on that but I do believe that there has been no, apart from the incidences with yoghurt and blanket, there’s been no indication whatsoever of any predilection or proclivity.
…
Q.In terms of predilection or proclivity for serious sexual offending, do you accept that Mr Malone clearly had that, both of those things, at the time of committing these offences?
A. Yes.
Q. You said that there was no indication as far as you were aware of coercive sexual offending existing prior to the index offending.
A. Yes.
Q. But do you not accept – oh, I think you did accept, sorry, that engaging consensually and bonded type sexual behaviour is an indication of a proclivity for coercive sexual behaviour?
A.It depends on the nature of the behaviour and how that unfolded and the issues of consent and so on as well.
Q. But even if somebody consents to that it’s still an exhibiting of a preference or proclivity for coercive type behaviour, isn't it?
A. I’d agree with that, yes.
[68] A predilection or proclivity can be time-bound – that is unrepeated in other time periods.34 However, I agree that the nature of and circumstances in which the 2009 offending was committed, combined with self-reported hypersexuality and interest in coercive sexual behaviours, demonstrates at least a predilection for serious sexual offending for the purposes of s 107IAA(1)(b). The lack of intensive rehabilitation and treatment lends support to this conclusion.
Does Mr Malone have limited self-regulatory capacity?
[69] The respective experts disagree as to this factor. Dr Singh-Pillay regarded that Mr Malone’s self-regulation was poor at the time of offending because of his complex mental health presentation exacerbated by substance use. She noted comments in the pre-sentence report that suggested that although Mr Malone appeared morally conflicted about aspects of his offending, immediate gratification prevailed, reflecting his inability to self-regulate.
[70] She referred to an incident in June 2020 in which Mr Malone, punched a post outside his cell unit during a strong emotional reaction to something. A one-off incident during a long custodial stint does not strike me as indicative of much, particularly when not contextualised. As Mr Berry pointed out, in a 2022 psychological assessment another Department of Corrections psychologist observed
34 McGreevy v Chief Executive of the Department of Corrections [2023] NZHC 2349 at [26].
that Mr Malone had demonstrated a generally emotionally regulated state over the past three years.
[71] Mr Berry opined that the very small number of recorded instances of misconduct during Mr Malone’s custodial sentence suggests that he has developed the ability to self-regulate such that the Court cannot be satisfied of this factor. However, he accepted that ceasing to take his medication would limit Mr Malone’s ability to self-regulate.35 He also accepted in cross-examination that Mr Malone has more work to do in that Mr Malone is on a pathway to further development and improvement in behaviour.
[72] Mr Malone has exhibited willingness and motivation to engage in treatment. There are cogent explanations for why this has not been undertaken in prison in joint sessions. There are also reported gains, which include Mr Malone displaying some insight into his offending. On the other hand, improved self-regulation may well reflect the prison environment and his highly supported environment following release. The extent of any ability to self-regulate impulses or desires to commit relevant sexual offences depends on the capacity to avoid circumstances in which the drive is likely to manifest. In this case, failure to take prescribed medication and use of substances are both relevant circumstances which will adversely impact on self-regulation. Further, Mr Malone self-reported an addictive personality. Consequently, unhindered access to sexualised material is a high-risk circumstance also likely to reduce self-regulation.
[73] I am satisfied that, in terms of this statutory factor, Mr Malone’s regulatory capacity is limited.
Does Mr Malone display either or both a lack of acceptance of responsibility or remorse for past offending and or an absence of understanding for or concern about the impact of his offending?
[74] Both experts agree that remorse is limited but not absent at this stage. Dr Singh-Pillay suggested that whilst Mr Malone has gained some understanding of
35 Mr Malone was reported to be compliant with medication as at the time of Dr Singh-Pillay’s report.
the impact of his offending, he is likely to still possess a high level of defensiveness. Therefore, she has concluded that he has not comprehensively come to terms with the issues that link to remorse as opposed to taking responsibility for his offending. She noted that Mr Malone self-reported that he recognised his remorse was an area he had only recently started to address as it tended to destabilise him to an extent. She remarked:
It felt like [remorse] was still an unfamiliar concept for him and he hadn’t grappled with it in-depth as yet.
[75] Mr Berry accepted that responsibility and remorse were two different things. He also opined that Mr Malone’s understanding of, or concern about, the impact of his offending on victims was just developing.
[76] I am therefore satisfied that, despite gains in this area, Mr Malone still has work to do. These are protective factors which materially reduce the risk of reoffending. The question is whether any remorse or understanding is sufficiently present to mitigate the relevant risks. I conclude that it is not. It follows that I am satisfied of this factor.
Conclusion
[77] It is only if Mr Malone meets all the criteria for being of a high risk of committing a future relevant serious sexual offence that the need for public safety would outweigh Mr Malone’s right to be free from a second penalty. In that case, some limits on his freedom of movement and association would be justified in NZBORA terms. The term of those limits would have to be both necessary and proportionate.
[78] I am satisfied that Mr Malone does meet all the criteria such that an ESO ought to be imposed. As a separate exercise I go on to consider the length of term of the order. This must be the minimum period required for the safety of the community in light of the level of risk posed, the seriousness of the harm that might be caused to victims and the likely duration of the risk. While there is no requirement to reduce the
term of the order by the time spent subject to an ISO, I consider that is a relevant factor.36
[79] I find that Mr Malone is motivated to continue treatment specifically directed at sexual offending. He has also taken steps to address perceived risks. In those circumstances I am not satisfied that five years is the minimum period required. In my assessment, an order of three years’ duration would be the appropriate term, with the ability to renew the ESO should circumstances require it.
[80] I intend to take into account the period of approximately seven months under the ISO. Therefore, the duration of the ESO will be two years and five months.
Terms of the ESO
[81] It is for the Parole Board to set the special conditions of an ESO, and I do not intend to trespass on their role. I observe only that prohibiting Mr Malone from accessing an internet capable device is to risk setting him up to fail in a society which is so dependent on that access. However, conditions about monitoring and control of such devices are likely to be appropriate.
Result
[82] There is an Extended Supervision Order in respect of Mr Malone for a term of two years and five months from the date of this order.
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Walker J
36 Bannan v Chief Executive of the Department of Corrections [2023] NZCA 227 at [46].
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