Chief Executive of the Department of Corrections v Muliipu

[2025] NZHC 1551

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2025-441-4 [2025] NZHC 1551

BETWEENTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

AND  SIO MULIIPU

Respondent

Hearing:                   11 June 2025 Appearances:        M Mitchell for Applicant

M J Phelps for Respondent

Judgment:                12 June 2025

JUDGMENT OF McHERRON J

(Application for Interim Supervision Order)

Introduction and summary of decision

[1]                 The Chief Executive of the Department of Corrections has applied for an extended supervision order (ESO) in respect of Sio Muliipu. The ESO application is set down to be heard on 8 December 2025 in Napier.

[2]                 Because Mr Muliipu is due to be released from prison on 21 June 2025, the Chief Executive seeks an interim supervision order (ISO), pending consideration of his ESO application, pursuant to s 107FA of the Parole Act 2002 (Act).

[3]                 In this decision I determine that an ISO is an unnecessary interim measure, as Mr Muliipu’s release conditions under the Parole Act last until 21 December 2025. These conditions are materially the same as, if not broader than, the restrictions that would apply to him under an ISO. An ISO is therefore duplicative and is not needed

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MULIIPU [2025] NZHC 1551 [12 June 2025]

to promote the purpose of the ESO and ISO regime. As it merely duplicates protection that will already exist and may be a retrospective double penalty in respect of conditions that involve detention (the partial residential restrictions sought to be imposed), an ISO may be a limit on Mr Muliipu’s rights under the New Zealand Bill of Rights Act 1990 that is not justifiable.1

[4]                 Moreover, the health assessor’s report accompanying the application for an ESO expressly concludes that there is a high  risk,  but  not  a very high risk,  that  Mr Muliipu will in future commit a serious violent offence. If I accept the health assessor’s report, then Mr Muliipu does not meet the statutory criteria for making an ISO (or ESO).

[5]                 The Chief Executive asks me to conclude the criteria are met, notwithstanding the health assessor’s report. The Chief Executive advances grounds on which I could reach my own view that is different from that of the health assessor. On their face, these grounds appear reasonable. It is at least arguable that the health assessor has not paid sufficient regard to the likelihood that when Mr Muliipu leaves the stability of the prison environment, his risk will increase to very high levels if predictable circumstances arise.

[6]                 But I have significant reservations about departing from the health assessor’s conclusions on an interim basis without counsel and the Court having had the opportunity to question him and without providing him an opportunity to supplement his report if he wishes. These opportunities will be available at the ESO hearing. Further, in a memorandum of counsel dated 28 May 2025, Mr Muliipu’s counsel   Mr Phelps referred to the possibility that an independent psychological report may be provided on behalf of Mr Muliipu. I am not sure whether that is still intended but, if so, it will inform the Court’s ultimate decision on the ESO application.

1      New Zealand Bill of Rights Act 1990, ss 5, 26; Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768 [Chisnall] at [21].

Criteria for an ISO

[7]                 The purpose of an ESO (and ISO) is “to protect members of the community from those who, following the receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences”.2

[8]                 The ESO regime was first introduced into the Act in 2004.3 It was initially aimed only at high risk child sex offenders but, in 2014, was expanded to include high risk sexual offenders generally and very high risk violent offenders.4 Mr Muliipu’s index offending for the purposes of the ESO application dates back to 2011, making the operation of the ESO regime retrospective — because when the index offence was committed Mr Muliipu was not in jeopardy of being subjected to an ESO.5

[9]                 An ESO can result in severe additional restrictions on many aspects of an offender’s life after imprisonment and release conditions have ended.6 These restrictions can relate to residence, employment, association and travel. They can be in place for up to ten years and can be made more than once in respect of a particular offender.

[10]              As is the case here, ISOs provide a mechanism for the Court to impose supervision for an interim period when an offender is released from detention before an application for an ESO is finally determined.7

[11]              An application for an ISO must be considered against the same statutory criteria as apply in an ESO application. While s 107FA does not prescribe a particular test for the granting of an ISO, in Chief Executive of the Department of Corrections v Ihimaera Muir J held that the Court should be “satisfied, albeit on a provisional basis

2      Section 107I(1) of the Parole Act 2002.

3      Parole (Extended Supervision) Amendment Act 2004.

4      Parole (Extended Supervision) Amendment Act 2014; Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 at [5] [Holland SC].

5      Chisnall, above n 1, at [2].

6      Section 107JA.

7      Section 107FA(1)(a).

and often on untested evidence, that the statutory criteria for an ESO are made out”.8 The approach in Ihimaera has been subsequently followed by this Court.9

[12]              An application for an ISO (and ESO) must be accompanied by a health assessor’s report.10 In the present case, the Chief Executive’s application is accompanied by a report dated 26 July 2024 by Consultant Clinical Psychologist Gahan Joughin.

[13]              In respect of a violent offender such as Mr Muliipu, the health assessor must address the following matters specified in s 107F(2A) of the Act:

(b)whether—

(i)the offender displays each of the behavioural characteristics specified in s 107IAA(2); and

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

[14]              Under s 107I, in respect of violent offending, a “sentencing court” may make an ESO if:

… following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2A), that—

(a)the offender has, or has had, a pervasive pattern of serious … violent offending; and

(b)  …

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

[15]              Section 107IAA(2) provides that the Court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender—

8      Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14]. Compared to Chief Executive of Corrections v Martin [2016] NZHC 275 at [37], which has not been subsequently followed.

9      See Department of Corrections v Hartley [2024] NZHC 2241 at [9] and Department of Corrections v Rawiri [2023] NZHC 2943 at [22].

10 Section 107F(2).

(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.

[16]               There is no prescribed evidential burden in terms of the prerequisites required by s 107IAA(2). The Court simply needs to be “satisfied” that the prerequisites are met, which is indicative of a state where the court comes to a judicial decision on the evidence.11

[17]               An offender’s risk must be assessed on an individualised basis rather than by reliance on actuarial or static generic measures.12 The opinions of health professionals will, of course, be of assistance. But the question of whether an ISO or ESO should be made is a judicial judgment. The totality of the evidence must be assessed by the Court.13

[18]              In summary therefore, before an ESO can be made in respect of a violent offender the Court must be satisfied, having considered the matters addressed in the health assessor’s report, that:14

(a)the offender has, or has had, a pervasive pattern of serious violent offending; and

11     Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [12] [Holland CA].

12     R v Peta [2007] NZCA 28; [2007] 2 NZLR 627.

13     Chief Executive of the Department of Corrections v Hunia-Rikirangi [2024] NZHC 1430 at [12].

14     Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].

(b)the  offender  meets   each  of  the  qualifying   criteria  set  out  in     s 107IAA(2); and

(c)there is a very high risk the offender will commit a relevant violent offence in the future.

[19]              An ISO has been recognised as having a lesser impact on an offender’s rights and freedoms than an ESO,15 but that is only due to it being a temporary measure. Apart from that factor, an ISO has the same impact on rights and freedoms as an ESO.

[20]              In late 2024, the Supreme Court gave its decision in Attorney-General v Chisnall.16 The decision specifically relates to ESOs and public protection orders (PPOs),17 but is also relevant to ISOs.

[21]              The majority of the Supreme Court found that the ESO and PPO regimes were not properly characterised as discretionary but rather as evaluative — such that if the relevant level of risk is met, the judge would be required to make orders to manage that risk.18

[22]              The exception to this is where another statutory regime applies.19 The example the majority gave is s 12 of the Public Safety (Public Protection Orders) Act 2014, which provides that the Court may direct the Chief Executive to consider the appropriateness of an application under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 depending on whether the respondent was mentally disordered or intellectually disabled.

[23]              Another example is the release conditions that apply to offenders released on parole under the Parole Act, including in relation to special release conditions.20 An issue has arisen in the present case as to whether the conditions applying to an ISO

15     Chief Executive of Department of Corrections v Broadbent [2020] NZHC 2496 at [8].

16     Chisnall, above n 1.

17     Public Safety (Public Protection Orders) Act 2014.

18     Chisnall, above n 1, at [15] and [96].

19     At fn 169.

20     Parole Act, ss 29–31.

would be duplicative of the release conditions the Parole Board has imposed for    Mr Muliipu. The question then arises whether in applying s 5 of the Bill of Rights Act the Court should refrain from making an ISO if it would not afford materially greater protection for the community than the release conditions. As the majority of the Supreme Court determined, as long as ss 5 and 6 of the Bill of Rights Act are not used to override the statutory scheme, the Judge is required to apply those provisions when considering an application and when tailoring any orders (to the extent there is scope to tailor the orders).21 Indeed, the majority held that:22

The sentencing Court and the Parole Board will still have a fundamental duty to use ss 5 and 6 of the Bill of Rights to maximise rights consistency to the extent that is consistent with s 4. That duty will have implications for the sentencing Court when deciding to make any orders and when tailoring any orders (to the extent there is scope to tailor the orders), and for the Parole Board when imposing conditions. Indeed, this is what is consistent with all decision-makers when the affirmed rights are engaged, even when the regime itself is, or has been declared to be, rights-inconsistent.

Mr Muliipu’s history of violent offending

[24]              Mr Muliipu is a 37 year old man who has been in prison for serious intimate partner violence offending since approximately 2012. Before this, violence towards partners and others had been a characteristic part of his life since his formative years and was significantly reinforced by an early and ongoing association with gang peers.

[25]              Between reaching 16 years of age (in 2004) and his present term of imprisonment, Mr Muliipu accumulated 17 convictions for active violence as well as further convictions for threatening violence and carrying weapons. His term of imprisonment that ends on 21 June lasted for 13 years with a seven year minimum non-parole period. As described by the Court of Appeal, he:23

… committed seven grave offences of violence against his partner over a two- week period. The worst of it involved kidnapping her from a Women’s Refuge and subjecting her to a prolonged beating during which he stabbed her in the eye, causing her to lose her sight in that eye, and thereafter kept her captive for more than 12 hours without medical attention.

21     Chisnall, above n 1, at [15].

22 At [104].

23     Muliipu v R [2013] NZCA 257.

Parole Board’s Release Conditions for Mr Muliipu

[26]              I have been provided with the recent decision of the Parole Board setting out Mr Muliipu’s release conditions.24 As stated, these release conditions will be in place from Mr Muliipu’s statutory release date, 21 June 2025, until 21 December 2025.

[27]              The release conditions are in fact broader than the conditions proposed for the ISO and include residential restrictions. The differences are:

(a)A slight difference to the timing of the nighttime curfew (a partial residential restriction). Under the ISO, it would be between 9pm–5am. Under the release conditions, it will be 10pm–6am. The duration of both is eight hours, totalling 64 hours a week.25 Neither Ms Mitchell nor Mr Phelps submit that this difference is material.

(b)Under the release conditions, Mr Muliipu is prohibited from contacting or otherwise associating with any victim of his offending, (including previous offending) directly or indirectly, unless with the prior written approval of a Probation Officer.

(c)Under the release conditions, Mr Muliipu must attend a reintegration meeting or Whānau Hui if directed by a Probation Officer.

[28]              Therefore it seems that an ISO would be, at best, effectively duplicative of the post release conditions.

[29]              In Chief Executive of the Department of Corrections v Martin, Davison J described an ISO as:26

… a temporary measure intended to cover a situation where there would otherwise be a period of no supervision. It is likely to be appropriate and indeed necessary in cases such as the present where an ESO application post- dates the expiry of release conditions.

24     Decision of the New Zealand Parole Board Sio Muliipu (6 May 2025).

25     Under the 70 hour threshold for a “high-impact” condition: see Parole Act, s 107RB(1)(a).

26     Chief Executive of Corrections v Martin [2016] NZHC 275 at [36].

[30]              In the present case, with an 8 December 2025 hearing, there is time for consideration of the ESO before the release conditions expire.

[31]              The primary issue for me to determine is therefore whether the release conditions set by the Parole Board are sufficient to mitigate risk. If so, an ISO is unlikely to be justified. If not, there may be justification for an ISO.27

[32]              Ms Mitchell acknowledged that Mr Muliipu’s standard and special release conditions largely mirror those sought under an ISO. But she expressed concern that these release conditions would be subject to variation without adequate consideration of the overall risk. Ms Mitchell submits that under an ISO the conditions could only be varied if approved by a judge. Although Ms Mitchell is likely correct, interestingly, the Act does not expressly provide a process for variation of ISO conditions. I note, in relation to an ESO, it is the Parole Board which is given power to vary the conditions.28

[33]              Mr Phelps pointed out that Mr Muliipu’s release conditions would only be varied if approved by the Parole Board.29 I consider this will allow for adequate supervision of any proposed variations. As Parliament considered Parole Board review of condition variations to be adequate for ESOs, it is not clear to me why Parole Board oversight would not be adequate for the period before the ESO application is heard and determined.

[34]              To ensure it has information allowing for consideration of overall risk, as discussed with counsel I will direct that the Parole Board receive a copy of the health assessor’s report. Mr Phelps also submits that it inevitable that in respect of an individual with Mr Muliipu’s risk profile, the Department of Corrections’ high risk team will be involved. I have no knowledge of that, but naturally it will be for the Chief Executive to ensure that Mr Muliipu’s Probation Officer is adequately briefed, supported and supervised.

27     As in Chief Executive, New Zealand Department of Corrections v Popata [2017] NZHC 1408 and

Department of Corrections v Hartley [2024] NZHC 2241.

28     Parole Act, s 107O.

29     Section 56(2). I note that under s 36(2) the Chief Executive may approve an alternative residence pending the Board’s determination of an application for variation of residential restrictions.

[35]              My conclusion that an ISO is not justified disposes of the Chief Executive’s application. However, as both counsel analysed the application of the statutory criteria, and because it may be of assistance in preparing for the hearing of the ESO application, I will briefly outline my provisional conclusion as to whether each of the statutory criteria is met.

Health Assessor’s report

[36]              The Court’s decision as to whether the statutory criteria are met is informed by Mr Joughin’s report. However, I am expected to evaluate the material and not merely “rubber stamp” the report.30 Also relevant is that, for the purposes of the ISO application, the information in Mr Joughin’s report has not been subject to cross- examination. That will be required at the ESO hearing as, for the reasons I set out below, Mr Joughin’s report appears to have various limitations that will need to be carefully interrogated.

Application of ESO statutory criteria to Mr Muliipu

Eligible offender

[37]              An application for an ISO can only be made in respect of an eligible offender within the meaning of s 107C of the Act.

[38]              Mr Phelps accepts Mr Muliipu is an eligible offender. I am satisfied this concession is correct because:

(a)Mr Muliipu was sentenced for a relevant offence.31

(b)That sentence has not been quashed or otherwise set aside and he has not ceased since his last conviction for a relevant offence to be subject to a sentence of imprisonment.

30     Paniora v Chief Executive of the Department of Corrections [2018] NZCA 607 at [21].

31     Parole Act, s 107B(2A)(f).

(c)Mr Muliipu is not subject to an indeterminate sentence.32

(d)On the date of the application (and on the date of the ISO  hearing)  Mr Muliipu was in custody.

Does Mr Muliipu have, or has he had, a pervasive pattern of serious violent offending?

[39]              This question requires analysing the terms “pervasive pattern” and “serious” offending.

[40]              The Court of Appeal in Chakwizira summarised what can amount to a “pervasive pattern”:33

This Court’s decision in Kiddell v Chief Executive of the Department of Corrections provides some useful guidance, saying that, while the word “pattern” ordinarily connotes regularity, a pattern may take any form or sequence. A pattern that includes relevant but less serious conduct may be found pervasive. To be pervasive is to be present throughout and in this context is concerned with the offender’s behaviour. Therefore, a pervasive pattern is a pattern that is sufficiently characteristic of the offender to serve as a predictor of future conduct.

It is possible, as noted by the High Court in Ihimaera, that in some circumstances, a small number of sexual offences may form a pattern, and even a pervasive pattern, but in other circumstances, two incidents, even if they disclose some type of pattern, will not be sufficient to meet the pervasive pattern threshold. What is required is an evaluation of the facts in the particular case.

[41]              A pervasive pattern may be apparent from the offender’s conviction history but can also include references to conduct that did not result in a conviction for any offence.34 For a pattern to be identified, the offending does not have to be the same or

32 In  declining  a  sentence  of  preventive  detention,  the sentencing  Judge,  Collins J,  considered Mr Muliipu needs definite goals if he is to reintegrate into society.  He noted  indications that  Mr Muliipu understands the seriousness of the offending, wishes to address his alcohol problem, and is capable of addressing the root causes of his offending. The Judge attached significance to Mr Muliipu’s remorse, age, and family support: R v Muliipu [2012] NZHC 2733.

33 Chakwizira v Chief Executive of the Department of Corrections [2023] NZCA 307 at [38]-[39], citing Kiddell v Chief Executive of Department of Corrections [2019] NZCA 171 at [21] and Ihimaera, above n 8, at [50].

34   Chief Executive of Department of Corrections v Te Pania [2016] NZHC 1215 at [15]; Parole Act, s 107F(3); and Clark v Chief Executive of the Department of Corrections [2016] NZCA 119 at [22].

even very similar, but a unifying theme or pattern may be apparent if the actual offences are quite different.35

[42]              The threshold ‘seriousness’ of the offending turns on the specific facts of each case. In Seleni, the Supreme Court indicated the approach to be taken to unadjudicated conduct, including, as in this case, behaviour in custody.36 The Court concluded that unproven conduct could be considered, but there were three relevant “safeguards” for using that conduct to bolster or reach conclusions on the statutory criteria. The two relevant requirements here are:

(a)cogent evidence that the unproven conduct occurred; and

(b)providing a reasoned explanation as to the basis for satisfaction.

[43]              Seleni has less applicability in an ISO context, where the evidence is necessarily untested, and the reasons  more  concise.  In  this  decision,  I  refer  to Mr Muliipu’s conduct in custody, but note Seleni’s requirements should be addressed fully at the ESO hearing.

[44]              Ms Mitchell acknowledges that some of Mr Muliipu’s convictions would not on their own qualify as serious violent offending. However, those are interspersed with at least four occasions where Mr Muliipu engaged in a prolonged beating of a vulnerable individual, including in prison. On the basis of that material and in particular the number and nature of previous incidents of violence, Ms Mitchell submits that a pervasive pattern of serious violent offending is plainly demonstrated. Mr Phelps responsibly acknowledged that, despite a reduction in violent behaviour in recent years, the Court would be likely to accept (at least on a provisional basis) that there is a pervasive pattern of serious violent offending.

[45]                I am satisfied in this case that much of Mr Muliipu’s offending, as summarised in the health assessor’s report, is sufficiently serious.

35     Ihimaera, above n 8, at [34].

36     Seleni v Chief Executive of the Department of Corrections [2024] NZSC 152, [2024] 1 NZLR 690.

[46]              I conclude on a provisional basis there is a pervasive pattern of serious violent offending in terms of the form and similarity of the violence (when directed at intimate partners or custodial staff).

Is there a very high risk that Mr Muliipu will in future commit a relevant violent offence (s 107I(2)(b)(ii))?

[47]              There will only be a very high risk if the Court is satisfied the offender has a “severe disturbance in behavioural functioning established by evidence of each of the [prescribed] characteristics”. These criteria have therefore been described as “mandatory and conjunctive”.37

[48]              The health assessor expressly considers Mr Muliipu’s risk reaches the level of “high” but does not reach the threshold of “very high” due to:

(a)limited evidence of significant factor 1 traits (interpersonal/affective deficits) on a psychopathy screening tool;

(b)the fact he has completed extensive treatment and demonstrated “generally stable behaviour in recent years”, and use of “offence replacement behaviours”;

(c)the absence of ongoing hostility towards others or vengeful intentions or plans regarding violence.

[49]              However, Mr Joughin also expresses “Mr Muliipu’s violence could be reactivated under predictable circumstances in the future”, but that:

…should Mr Muliipu be able to consistently demonstrate and practice offence replacement behaviours learned in treatment, avoid substances and antisocial peer associations, develop and maintain a constructive and fulfilling routine, including stable employment, actively engage in substance-related maintenance intervention, and allow him to be influenced (prosocially) by professionals, his partner and whānau members, he is considered to possess the skills to be able to manage his risk of further violence.

[50]I turn now to consider each of these criteria one by one.

37     Chief Executive of the Department of Corrections v W [2016] NZHC 1082 at [21].

Intense drive, desires or urges to commit acts of violence

[51]              Mr Phelps accepted the Court was likely to find this criterion is made out on the available evidence.

[52]              The health assessor considered that Mr Muliipu has demonstrated an intense drive/urge/desire for violence at the times of his adjudicated violent offending (2004– 2011), particularly towards intimate partners. He does not currently demonstrate an intense drive/urge/desire for violence in the highly structured prison environment but that this could be reactivated under predictable circumstances.

[53]              Ms Mitchell submits that the circumstances in which the drive will be “unleashed” (in the phrasing of Mosen) will “predictably accompany his release”.38 This is an aspect of the health assessor’s report that will require close interrogation at the ESO hearing.

Extreme aggressive volatility

[54]              Mr Joughin acknowledges that Mr Muliipu has demonstrated a pattern of aggressive volatility across time and situation. However, the report notes also that in broad terms he has demonstrated generally settled behaviour over most of the latter half of his current imprisonment. In addition, his aggressive volatility has notably decreased in recent years. It is noteworthy that the health assessor does not opine that Mr Muliipu displays “extreme aggressive volatility”. However, he acknowledges that Mr Muliipu’s aggressive volatility “remains susceptible to activation under predictable circumstances”. Mr Joughin says the volatility is likely to become activated in future situations of intimate partner contact and that he has not had the chance to demonstrate his risk management skills regarding intimate relationship conflict given he remains incarcerated.

[55]              Mr Phelps says I cannot be satisfied, even at this preliminary stage, given the opinion of the health assessor, that this factor is present. Even though the assessment is one I must make, on a provisional basis, in light of the statutory criteria, Bill of

38     Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 at [41].

Rights implications, and purpose of the legislation and noting I am entitled to come to a different conclusion, I hesitate to do so.

[56]              I leave open whether the Court may take a different view from the health assessor at the ESO stage. But that will follow any supplementary material the assessor chooses to file as well as the opportunity to question Mr Joughin at the hearing. Mr Joughin will need to be questioned on whether lack of volatility within prison may only suggest the factor is dormant rather than non-existent.

Persistent harbouring of vengeful intentions towards one or more other persons

[57]              Mr Joughin considers that Mr Muliipu’s pattern of intimate partner violence is reflective of vengeful intentions, as was his prolonged assault on a custodial officer in 2007 and his threat to end the life of his then partner in 2021.

[58]              While there is, according to the health assessor, no evidence of current vengeful intentions from his self-report, these could be reactivated under predictable circumstances, specifically in the context of intimate partner conflict in which his partner fails to acquiesce to his need for control. His current intimate relationship has not been tested in the community.

Clear and long term planning of serious violent offences to meet a premeditated goal

[59]              The health assessor does not consider there is evidence of planning or premeditation of serious violence (either in the past or currently) to meet this limb.

Self regulatory capacity

[60]              Mr Muliipu demonstrated limited self-regulatory capacity, both generally, and poor violence-specific self-regulation. However, the health assessor notes there has been considerable improvement in the latter period of incarceration, including through sustained periods of prison-based and release to work employment, completion of STU:VO, DTP and individual intervention programmes and lengthy periods of settled behaviour interspersed with periodic drug, aggression and entitlement issues. Again, this positive progress is untested outside prison.

An absence of understanding for or concern about the impact of his violence on actual or potential victims

[61]              The Court of Appeal has held there is a materiality threshold so that an offender’s understanding or concern is only relevant if it actually mitigates their risk.39 The Court held that Parliament cannot have intended that the presence of any understanding or concern should preclude a person from being assessed as high risk (or in this case, very high risk).

[62]              There is evidence Mr Muliipu understands the harm violence of this kind can have, not only on his victims, but on wider society. But that understanding must be protective. Mr Joughin says that is not an available conclusion.

Conclusion on s 107IAA(2) criteria: what is the risk of Mr Muliipu committing a serious violent offence in the future?

[63]              As mentioned, the health assessor’s report concludes Mr Muliipu poses a high risk of further relevant violent offending.

[64]              It may have been useful to have the results of Mr Muliipu’s psychopathy checklist, but the health assessor did not think this was warranted. It may be considered useful information for supplementation of the health assessor’s report prior to the ESO hearing.

[65]              Mr Muliipu clearly engages in substantial impression management, with a disconnect between what he says and what he does, and even what he says to different people. The step to remove facial tattoos could be construed as positive,40 but it appears Mr Muliipu is doing this to improve his employment prospects rather than renounce the gang — he was unequivocal in expressing to the Parole Board recently his loyalty to the Mongrel Mob.41

[66]              Mr Muliipu scores highly on a narcissism scale, and acknowledges these “subservience and entitlement” beliefs are central to his intimate partner violence.

39     McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [23].

40     The health assessor discusses this as part of his ambivalence to his ongoing membership of the Mongrel Mob.

41     Parole Board Decision at [5]: “he told us today that he will be a gang member for life”.

There is no evidence those beliefs have been altered or challenged in any meaningful way, or that the self-reported absence of ‘trust issues’ in the current relationship will modify his “drive to ensure absolute compliance from partners”.

[67]              In the risk tool used to assess Mr Muliipu’s risk of further intimate partner violence specifically,42 it was indicated that nearly 75 per cent of men with his score commit further intimate partner violence within five years. He scored in the highest risk category.

[68]              Mr Joughin agrees that his current role as a senior Mongrel Mob member will “continue to place his fragile reintegrative and release process in jeopardy”.

[69]              The health assessor opines Mr Muliipu’s risk is likely to endure in the longer term. However, Mr Joughin is clear Mr Muliipu “does not reach the threshold of ‘very high’ risk”. This conclusion is “balanced” by the opinion that his violence could be “re-activated” under predictable circumstances in the future.

[70]              At this preliminary stage, I am not satisfied it has been established there is a very high risk of Mr Muliipu committing a serious violence offence in the future. It will be open to the Court hearing the ESO application to form a different view as to the establishment of the s 107IAA(2) criteria, especially after questioning Mr Joughin. However, for the purposes of an ISO I am not prepared to do so.

Result

[71]              The application for an interim supervision order in respect of Mr Muliipu is dismissed.

[72]I direct the Chief Executive to:

(a)provide the Parole Board and Mr Muliipu’s Probation Officer with a copy of the health assessor’s 26 July 2024 report and to draw the Probation Officer’s attention to the rehabilitative recommendations set

42     Ontario Domestic Assault Risk Assessment (ODARA).

out in the bullet points underneath para 63, particularly the last three bullet points;

(b)ensure that any supplementary report of the health assessor is provided no  later  than  30  September  2025  to  allow  adequate  time  for  Mr Muliipu’s expert and counsel to prepare any response;

(c)ensure the health assessor is available to attend the hearing on

8 December 2025, preferably in person.

[73]              Taking these steps will help ensure the 8 December 2025 hearing can proceed without a further application for an ISO being necessary.

McHerron J

Solicitors:
Crown Solicitors, Napier for Applicant