Chief Executive of the Department of Corrections v McIntosh

[2020] NZHC 3184

IDENTIFYING DETAILS OF ONE VICTIM HAVE BEEN REDACTED

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2015-409-000038

[2020] NZHC 3184

BETWEEN

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

LLOYD ALEXANDER McINTOSH

Respondent

Hearing:	18-19 November 2020
Appearances:	C J Boshier for Applicant A J Bailey for Respondent
Judgment:	3 December 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 December 2020 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date…3 December 2020

Introduction

[1]    The respondent, Lloyd McIntosh, is 47 years old. He committed serious sexual offences against young and vulnerable people in his youth for which he was imprisoned. On his release from prison in 2004 the Chief Executive of the Department of Corrections applied to make him subject to an extended supervision order (ESO).

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v McINTOSH [2020] NZHC 3184

[3 December 2020]

Mr McIntosh has now been subject to an extended supervision order (ESO) since 2005.1

[2]    The statutory regime in the Parole Act 2002 (the Act) requires this Court to review the imposition of an ESO 15 years after the date on which the first ESO was made and, thereafter, five years after the imposition of any and each  new ESO.2      Mr McIntosh is now the subject of such a review which appears to be the first such review of an ESO to be conducted under s 107RA of the Act.3

[3]    On review this Court must  determine  whether  there  is  a  high  risk  that  Mr McIntosh will commit a relevant sexual offence within the remaining term of the ESO.4 Following its review, this Court must either confirm the ESO or cancel it.5

[4]    The risk of committing a relevant sexual offence must be assessed on the basis of the matters set out in s 107IAA(1).6 That section provides as follows:

107IAA         Matters court must be satisfied of when assessing risk

(1)A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—

(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:

1      An ESO was imposed by the High Court in Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-000162, 8 December 2004 and again by the High Court in Chief Executive Department of Corrections v McIntosh [2015] NZHC 999.

2      Parole Act 2002, s 107RA(2).

3      As Mr McIntosh was the first person to have an ESO imposed, it follows that he is almost certainly the first to undergo a s 107RA review, notwithstanding the fact his ESO has been suspended for two brief periods of imprisonment.

4      Parole Act, s 107RA(1).

5      Section 107RA(5).

6      Section 107RA(6).

(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

[5]    At issue in this hearing is whether Mr McIntosh is still at high risk of relevant sexual offending and, even if he is, whether I should cancel the ESO given the issues Mr Bailey raises in his submissions.

Background

[6]    Mr McIntosh was first charged with sexual offending in 1989 for the ongoing sexual and violent abuse. He was committed to Lake Alice Hospital (due to an assessment of diminished capacity) when he was 16. Within months of his release from Lake Alice Hospital, he was  convicted  for  the  violent  sexual  assault  of  a 28 month old female. He was sentenced to  imprisonment  for  10 years.  Within three months of being released on parole, and while on 24 hour supervision, he was convicted of an assault on an intellectually disabled adult female whom he had organised to come into his home. He has disclosed other offending which has not resulted in criminal proceedings, although his previous claims of there being up to 150 incidents of sexual assault are considered to be exaggerated.

[7]    Mr McIntosh has engaged in extensive sexual offending related treatment, including the Kia Marama Special Treatment Unit programme in 1997 to 1998 and the community-based STOP programme for child sex offenders in 2004. He has also had regular individual counselling sessions throughout the time he has been on an ESO.

[8]    The terms of his ESO require him to live at an address approved by the Department of Corrections, to be subject to GPS monitoring, to abide a curfew, and to attend department arranged programmes. He has been prescribed anti-androgen medication to reduce his libido. He is also on anti-depressant medication. While he  is not subject to intensive monitoring, he is nevertheless subject to a great deal of supervision and, as Mr Bailey points out, Mr McIntosh is unable to do things which normal people might do, such as go to the shops unaccompanied, or use the internet.

[9]    For much of the time he has been subject to the ESO, he has been at the Salisbury Street Foundation, a rehabilitative centre set up to help reintegrate serious

offenders back into the community. Mr McIntosh was transferred to Toruatanga in January 2020 which is residential accommodation situated on prison grounds. I am advised it is  a  less  restrictive  environment  than  at  Salisbury  Street,  although  Mr McIntosh can only leave the Toruatanga grounds if accompanied by a staff member or an approved support person.

[10]   Mr McIntosh’s views about remaining on an ESO have varied. When interviewed by a clinical psychologist, Ms Amanda Richards, earlier in the year, he reported that he could not envisage a future where he would be able to live independently in the community and he acknowledged that the current supports acted as his “safety mechanism” and kept him on track. However, when interviewed by another clinical psychologist, Mr Craig Prince, in September, he was more ambivalent about remaining on an ESO. He did not believe that he would sexually reoffend if the ESO was cancelled, but he was concerned that he may become the victim of vigilantes if he was released to the community. He was hoping to progressively receive more free time and to go to places and activities in the community.

[11]   His current position is that he wants to live a less restricted lifestyle, albeit acknowledging he would need support to transition to full independence, which is why Mr Bailey is instructed to oppose the confirmation of the ESO.

The evidence

[12]   The procedure for review of the ESO adopts specified provisions of the Act relating to an application to make an extended supervision order.7 These include the requirement that the application for review be accompanied by a report by a health assessor which addresses:8

(a)whether –

(i)the offender displays each of the traits and behavioural characteristics specified in s 107(1AA)(1); and

(ii)there is a high risk that the offender will in future commit a relevant sexual offence.

7      Section 107RA(4).

8      Section 107F(2A).

[13]   The term “relevant sexual offence” is defined at s 107B(2) of the Act and encompasses virtually all forms of contact sexual offending. It also includes offences under the Films, Videos, and Publications Classification Act 1993 if the offence is punishable by imprisonment, and involves, promotes or supports sexual exploitation of children or young persons.

[14]   In the present case, the application was accompanied by a detailed report from Ms Richards, a registered clinical psychologist with the Department of Corrections. A second health assessor’s report was prepared by Mr Prince, a consultant clinical psychologist, at the request of counsel for Mr McIntosh.

[15]   Both report writers appeared at the hearing and were extensively cross-examined on the opinions they had proffered. I found both psychologists’ reports helpful, and their opinions were considered, balanced and constrained by a clear understanding of their role as an expert witness.

[16]   Ms Richards’ report was prepared in May 2020 and followed extensive interviews of Mr McIntosh at his current place of residence, as well as reviews of other documentation relating to Mr McIntosh. Ms Richards administered a number of assessment tools to determine his risk of sexual recidivism. To assess static risk factors (that is, factors that are not amenable to change, such as offending history), the STATIC-99R was administered. To assess his dynamic risk factors (that is, potentially changeable factors), the Violence Risk Scale: Sex Offense version (VRS:SO) and the STABLE-2007 were administered. The VRS:SO measures a combination of static and dynamic factors associated with risk of sexual recidivism and the STABLE-2007 measures dynamic risk factors associated with the risk of sexual recidivism.

[17]   Ms Richards used the relatively new Common Risk Language descriptors to explain the outcome of these assessments. The descriptors identify five risk levels for sexual offending recidivism, ranging from Level I (very low) risk to Level IVb (well above average) risk. On the STATIC-99R, Mr McIntosh received a score which placed him in Level IVa – above average risk. On the VRS:SO, Mr McIntosh was assessed as being in Level IVa – above average risk. The STABLE-2007 placed him at the

94th percentile of adult males and identified the areas of clinically significant concern for Mr McIntosh as his:

capacity for relationship stability, impulsivity, negative emotionality, sex drive/sex preoccupation and deviant sexual preference.

[18]   When the STABLE-2007 and STATIC-99R measures were combined, the composite assessment placed Mr McIntosh at Risk Level IVb, or well above average risk, which is the highest risk category identified for sexual offending recidivism using the Common Risk Language descriptors.

[19]   Ms Richards also administered the Psychopathy Checklist: Screening Version (PCL: SV). Although he was scored on this screening test 15 years ago, the assessment was updated and rescored to include all further information available since 2004.   Ms Richards advised he scored 24 out of 24, the highest score possible on that test. He had previously scored 23 out of 24. She says the combination of psychopathic traits and sexual deviance is  associated with a risk of sexual recidivism  that is     two times higher and also more enduring over time, than for offenders who do not have that combination of factors.

[20]   Based on the four risk assessment tools she used and other clinical factors, she considers there is a high risk of Mr McIntosh committing a further relevant sexual offence if left unsupervised in the community. When his dynamic and static risk factors are combined, he falls into either Risk Level IVa or Risk Level IVb, depending on which sample subgroup he is placed in. She concludes that “without the confines of 24 hour monitoring and supervision … Mr McIntosh would more likely fall into Risk Level IVb”.

[21]   She acknowledges that evaluation of Mr McIntosh’s sexual offending risk is complicated due to the extensive controls that have been put in place since his release and says the controls have served as a protective factor and have significantly inhibited opportunities for Mr McIntosh to place himself in a situation where he could sexually offend. However, she considers that were that support to be absent, and his noted risk factors triggered, “his risk would be worryingly acute”.

[22]   Her report then addresses the four criteria contained in s 107IAA(1) and concludes that he meets all four criteria to be considered at high risk of sexual offending. She says:

… there is evidence that Mr McIntosh continues to demonstrate an intense drive, desire or urge to commit a relevant sexual offence, a sexual proclivity for pre-pubescent females, and a predilection for serious sexual offending. Mr McIntosh has evidenced lifelong difficulties in controlling his emotional states, and he is considered to  have  enduring  deficits  in  self-regulation. Mr McIntosh accepts responsibility for the sexual offending for which he has received sanctions for, however, there remain questions as to how reliable this shift in perspective is in protecting against further sexual deviance. He struggled to demonstrate a genuine understanding of the impact of his sexual offending on his victims, and his expression of remorse and concern are considered rudimentary at best.

[23]   Mr Prince interviewed Mr McIntosh in September 2020 and also reviewed relevant reports regarding Mr McIntosh’s history. He produced his report in October, which was several months after Ms Richards produced her report.   In terms of      Mr McIntosh’s sexual offending history, he noted that the offending occurred before he was 16 and his sexual offending against the 28 month old victim was when he was

20 years old. In many ways, given his age, low intellectual functioning and impulsivity associated with being young, Mr McIntosh could be considered as a “youth offender”, and Mr Prince considered some of those factors would have changed now that Mr McIntosh is a 47 year old adult, particularly as it is “well-known that recidivism rates decline with advancing age”.

[24]   Mr Prince assessed Mr McIntosh’s risk of recidivism using the updated version of the Automated Sexual Recidivism Scale (ASRS-R), noting that this test is entirely based on New Zealand norms and takes declining age into account. He says that if only the sexual offending for which Mr McIntosh was formally sanctioned is taken into account, he falls in the medium-low risk category. If the additional sexual offending against the other victim is included, his risk category would increase to the medium-high level.

[25]   He also scored Mr McIntosh using the VRS:SO, and based on his assessment Mr McIntosh would just fall into the moderate-high risk category, although he said he would “prefer to say that he falls somewhere between the moderate-high and high risk categories”. However, he points out that the VRS:SO scoring manual allows credit if

the offender can demonstrate that “positive changes have been stable over an extended period of time and have withstood challenges across a variety of relevant situations, that is, high-risk situations related to the individual’s problem behaviour(s)”. He says Mr McIntosh cannot practically demonstrate the changes under an ESO that would move him to a low or medium risk rating due to the stringent supervision strategies he is under. As Mr McIntosh is unable to effectively demonstrate changes “[a] vicious cycle is perpetuated, and the danger becomes one of him remaining on ESOs indefinitely”.

[26]   In discussing whether Mr McIntosh was at high risk of committing further relevant sexual offences, Mr Prince expressed doubt that he fulfilled the two criteria under s 107IAA(1)(d). However, he also observed that Mr McIntosh is “significantly institutionalised” and it would be “unethical and unfair” to Mr McIntosh to suddenly release him to the community. In his view, there needs to be a concerted effort to help Mr McIntosh transition towards greater independence if he is to have any prospect of being freed from an ESO.

[27]   In summary, Mr Prince’s primary concern was that Mr McIntosh be given the opportunity for his restrictions to be lessened so he could progress towards greater independence. His view was that if Mr McIntosh were released immediately, but not adequately prepared for life without restrictions, “[t]his would set him up to fail”.

Assessment of risk of committing a relevant sexual offence

[28]   In assessing whether or not there is a high risk of committing a relevant sexual offence, the Court must be satisfied of the matters set out in s 107IAA(1). As both health assessors acknowledge, the assessment is complicated by the fact Mr McIntosh has been living under an ESO for 15 years and has had limited opportunity to “display” the behaviour of concern. However, as was said in Chief Executive, Department of Corrections v Alinizi, the wording of s 107IAA(1) does not mean that those traits and behavioural characteristics must be externally manifested at the time of the application, although they must be “present”.9

9      Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]-[28].

[29]   I now turn to consider each criterion of s 107IAA(1), and the evidence to show these factors are still present despite the lack of opportunity to offend. This includes consideration of the risk assessments undertaken by the psychologists, but also the history of Mr McIntosh’s behaviour while on the ESO.

Does Mr McIntosh display an intense drive, desire or urge to commit a relevant sexual offence?

[30]   Clearly, when Mr McIntosh was first made subject to an ESO, he demonstrated an intensive drive, desire or urge to commit a relevant sexual offence. Ms Richards’ view is that these urges have remained despite 20 years of intensive treatment and are only temporarily constrained by the anti-androgen medication, in combination with extensive supervision and oversight. As she explained to the Court, Mr McIntosh still demonstrated an intense, drive, desire or urge to commit a relevant sexual offence because he continued to engage in “offence paralleling behaviours” when under stress, or when rejected or criticised. Thus, when he is experiencing negative emotions or feeling aggrieved, he will revert back to deviant sexual fantasies to manage that emotion. He had also covertly taken himself off his anti-androgen medication in the past, which in itself was concerning, and this had lead to lapses in behaviour.

[31]   Mr Prince cautioned against simply using Mr McIntosh’s offending history to reach a conclusion on this issue. He pointed out that sexual drive diminishes with age and recidivism rates are lower for people like Mr McIntosh who have successfully completed the Kia Marama programme. That said, Mr Prince acknowledged without supervision, there would be “quite a high risk” that Mr McIntosh would reoffend, although his focus was on giving Mr McIntosh structured opportunities to become more independent to manage that risk.

[32]   I accept that Mr McIntosh’s desire to commit a relevant sexual offence is likely to be lower than it was when the ESO was first made, taking note of what Mr Prince has said about the utility of risk assessment tools and the factors which will have reduced Mr McIntosh’s desire to offend. However, the reversion to offence paralleling behaviours is  still of concern, and I accept that at this stage, without supervision,  Mr McIntosh would readily revert to relevant sexual offending. Consequently, I am satisfied that Mr McIntosh does still meet the criteria in s 107IAA(1)(a).

Does Mr McIntosh have a predilection or proclivity for serious sexual offending?

[33]   Much the same considerations apply to the assessment of Mr McIntosh’s predilection or proclivity for serious sexual offending. While Ms Richards noted there had been “a reduction in the pervasiveness of Mr McIntosh’s predilection and proclivity for serious sexual offending from the period of his convictions”, she said it was difficult to assess how much this change is a “rote style approach to supported community living”, and therefore vulnerable to a change in circumstances, stressor events, and victim access. However, his behaviour when he was not adhering with his anti-androgen medication meant she still concluded that in the absence of care and support, he would present with an observable predilection and proclivity for serious sexual offending.

[34]   Mr Prince said that while Mr McIntosh displayed a proclivity for deviant sexual offending during his youth, there appears to have been some shift in this respect, with Mr McIntosh now reporting attraction and fantasies toward adult males and females. Furthermore, his predilection for deviant offending is largely because he has never been exposed to, or had the opportunity to develop healthy adult relationships. Nevertheless, Mr Prince confirmed in cross-examination that Mr McIntosh did fulfil the criterion of having a predilection and proclivity for serious sexual offending.

[35]   Again, I accept that Mr McIntosh’s reversion to sexually deviant thoughts when under stress, and his deliberate cessation of his anti-androgen medication on occasions, mean he still has a predilection or proclivity for serious sexual offending.

Does Mr McIntosh have limited self-regulatory capacity?

[36]   Both health assessors agree that Mr McIntosh has continued to display difficulties in regulating and managing his emotions, particularly when not on his medication. While he has made progress in regulating his behaviour, his self-control lapses when he is under stress or prevented from getting his own way. Both health assessors accepted that Mr McIntosh had enduring deficits in his self-regulation skills and I am satisfied that this criterion is met.

Does Mr McIntosh demonstrate (a) acceptance of responsibility or remorse for past offending; and (b) understanding for or concern about the impact of sexual offending on actual or potential victims?

[37]   Section 107IAA(1)(d) has two limbs to it. It requires the Court to be satisfied either that Mr McIntosh displays either or both of the following:

…

(i)a lack of acceptance of responsibility or remorse for past offending:

(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

It was on these criteria that there was the sharpest division between the two health assessors.

[38]   Before discussing their respective views, I acknowledge that these criteria must be interpreted and applied consistently with the purpose of the legislation. As Davidson J said in Chief Executive of the Department of Corrections v Douglas, when discussing similar criteria as they apply to public protection orders, the expression absence of understanding or concern does not require that there is no understanding or concern, as a person may “express intellectually an understanding, or concern, or … it might be parroted or rote”.10 Instead, there must be “an element of relativity about it because otherwise the mere demonstration of some ability, even extremely limited in scope, would defeat the plain intent of a legislation”.11

[39]He went on to explain:

[89] In my view, an “absence of understanding or concern …” means that any understanding or concern is so distorted, superficial and self-orientated, that it marries with the clear purposes of the legislation, that the checks and balances inherent in the combined and individual characteristics in s 13(2) are not operative to negate the risks which derive from those characteristics.

[40]   I consider the same principles apply when deciding whether a respondent meets the criteria in s 107IAA(1)(d). There must be sufficient “acceptance of responsibility or remorse for past offending”, or “understanding for or concern about

10     Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 at [82].

11 At [82].

the impact of …. sexual offending on actual or potential victims”, to operate to materially reduce the risk of such offending in the future.

[41]   Mr McIntosh has engaged in extensive therapy and intervention to address his sexual offending. Mr Prince is of the view that Mr McIntosh genuinely grasps what the consequences were for his victims and says he appeared remorseful about this. However, as even Mr Prince acknowledged, the fact he still has, on rare occasions, resorted to masturbating to deviant thoughts, raises concerns about how remorseful he actually is.

[42]   Ms Richards felt that the understanding Mr McIntosh expressed and his expressions of regret were focused more on his own negative experiences as a consequence of the offending, rather than genuine remorse for his victims. She felt any expressions of acceptance of responsibility or remorse for his offending needed to be treated with caution, particularly given the way he reverted to sexually deviant fantasies when off his medication.

[43]   In terms of his understanding for, or concern about the impact of his offending on actual or potential victims, Ms Richards says he has been “increasingly able to label the emotional impact that his victims’ may have experienced”, but that his expressions of concern have been “transient in nature, and likely superficial”. Although he became “tearful and distressed when discussing the impact of his offending on his victims”, her concern was that he had developed a “overlearned repertoire of appropriate social responses, which may not generalise out to genuine concern”. In her view, his expressions of concern for his victims were rudimentary at best and would be unlikely to diminish his risk at times his sexual deviance was activated.

[44]   Mr Prince acknowledges that in the past Mr McIntosh has not displayed any empathy with his victims. However, he has gained understanding through therapy and now shows an appreciation of the effects of his offending on his victims. That said, he accepted it was debatable whether Mr McIntosh could extrapolate this understanding in order to refrain from engaging in offending against potential victims.

[45]   In my view, there is clear evidence that Mr McIntosh has acquired at least a degree of understanding about the impact of his sexual offending on actual victims. He accepts responsibility for past offending and has showed a degree of remorse to both health assessors. However, I share the concern that both health assessors had, that the remorse and the concern were not yet at a point where they would act as a protective factor against potential or future victims. This was demonstrated, at least in an indicative way, by the periods when Mr McIntosh went off medication and reverted to sexually deviant thoughts. I am not satisfied that he, as yet, shows the degree of understanding or concern about the impact on victims which would prevent him from future offending and this criteria is also met.

Is Mr McIntosh at high risk of committing a relevant sexual offence?

[46]   I am satisfied that all four criteria under s 107IAA are met, which is a fundamental pre-requisite to finding that Mr McIntosh is at high risk of committing a relevant sexual offence.

[47]   When I combine the relatively consistent picture painted by the various risks assessment tools, along with his observed offence paralleling behaviour when he is stressed or angry, I am satisfied that Mr McIntosh is at high risk of committing a relevant sexual offence. It is only the structure of the ESO and the intervention of medication that means this risk has not eventuated in the past 15 years.

[48]   However, this is not a “tick box” exercise and I consider it will be increasingly difficult to undertake this assessment over time while Mr McIntosh stays on an ESO. In particular, I note Mr Prince’s caution against relying too heavily on the sexual recidivism assessment tools when the scores on these are unlikely to change while Mr McIntosh remains subject to an ESO. Without the ability to demonstrate changes to the dynamic risk factors, his static risk factors will always place him in at least a medium to high risk of reoffending, and there is, and increasingly will be, a need to look beyond these when considering what risk he poses.

[49]   For completeness, I note that Mr Bailey also criticised the risk assessment tools because they encompassed all risk of sexual offending and not simply the risk of “relevant” sexual offending. By that, he meant that the risk of reoffending assessed

by these tools included non-relevant sexual offending, such as possession of objectionable material. However, I did not find this approach useful. There was no evidence of what kind of sexual offending was captured by the assessment tools which would not be considered “relevant sexual offending” as defined in the Act, and it seemed to me this would be a very limited category of offending. In any event, it did not alter the fact that, compared with other sexual offenders, Mr McIntosh fell into either the highest or second to highest category for risk of sexual reoffending and this encompassed the risk of committing relevant sexual offending.

Should I nevertheless cancel the ESO?

[50]   Having reached the conclusion that Mr McIntosh is at high risk of committing a relevant sexual offence, the next issue is whether I have a residual discretion to cancel the ESO which I should exercise.

[51]   Mr Bailey argues that I should. He points out that s 107RA(5) gives the Court a broad discretion to either “confirm the order or cancel it”. The only constraint is that the Court can only choose to confirm the order if, based on the matters set out in      s 107IAA, it is satisfied there is a high risk that the offender will commit a relevant sexual offence within the remaining term of the order. The only logical way of reading these provisions together is that the Court has no ability to confirm the order unless the Court is satisfied that the statutory risk threshold is met. However, the use of the word “may” indicates that the Court may nevertheless cancel the order despite a finding of high risk.

[52]   I accept that even where the statutory criteria have been met, there is a discretion to refuse the order.12 This discretion reflects the fact that an ESO engages rights which are protected under the New Zealand Bill of Rights Act 1990 and the Courts must recognise that the ESO may impinge substantially upon the offender’s freedom of movement and association.13 While an ESO is designed to protect the public from high risk offenders, the Court is not required to be satisfied that there would be no risk if the ESO was cancelled. It may be that a framework could be

12     Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [26].

13 At [27].

proposed for the support of the offender in the community that would sufficiently mitigate the ongoing risk, to enable the ESO to be cancelled.

[53]   However, in the present case, the professionals involved in Mr McIntosh’s life accept that there would be considerable risk if Mr McIntosh were to be released into the community, without significant individualised support. There is no specific proposal before me which would bridge that gap. While Mr Bailey suggests that registration under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 will be a check on Mr McIntosh, particularly given his offending is not spontaneous but involves victims within his circle of contact, I am not satisfied that this is a sufficient protection. It is primarily a registration regime, so that relevant authorities know where an offender lives. It does not provide any kind of support or supervision to the offender which I consider is required.

[54]   However, this leads me to endorse the concerns expressed by Mr Prince that Mr McIntosh is being given virtually no opportunity to demonstrate that he has learned from the extensive therapy he has engaged in and to practice being more independent. If that is not done, Mr McIntosh remains in a catch-22 situation. His scores on risk assessment tools will always remain high because he cannot practically lower his score while on an ESO, and he cannot demonstrate that he has acquired self-regulatory skills and empathy for others without being afforded more freedom to interact with people normally.

[55]   I consider it is imperative that Mr McIntosh be given more opportunities to do things independently and without constant supervision. There are modest risks in doing this but they are addressed, in part, by the following factors:

(a)his sexual drive will have abated with age;

(b)he now has greater understanding of the need for his medication regime which manages his sexual drive;

(c)he has a strong fear of the consequences for him of further sexual offending, being the imposition of a public protection order; and

(d)his offending is not random, but occurs with people who are within his circle of contacts, so short excursions, for example to buy groceries, are unlikely to result in offending occurring.

[56]   The ESO regime, including the regular statutory review of the ESO, anticipate that ESOs will not endure for longer than necessary. It is incumbent on those supervising Mr McIntosh that they help him towards that goal as far as practicable. It is only by doing that, that Mr McIntosh can hope to demonstrate he no longer requires the high level of supervision which an ESO requires.

Result

[57]   The ESO is confirmed for the balance of the five year period. However, I expect its renewal to be considered critically in light of the comments I have made. In the interim, every opportunity should be given to Mr McIntosh to enable him to transition to a more independent lifestyle and to demonstrate what he has learned from intensive and ongoing therapy. If he succeeds, he should see the end of the ESO regime. If he does not, then at least he will understand why the regime must continue.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To:

Andrew Bailey, Barrister, Christchurch