Chief Executive of the Department of Corrections v Narayan
[2022] NZHC 1535
•30 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2022-404-000127
[2022] NZHC 1535
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
SUMIT SHAYAMAL NARAYAN
Respondent
Hearing: 16 June 2022 Appearances:
B D Tantrum & E W Palsenbarg for the Applicant J B Wickliffe for the Respondent
Judgment:
30 June 2022
JUDGMENT OF TAHANA J
This judgment was delivered by me on 30 June 2022 at 3.00pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland Guardian Chambers, Auckland
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v NARAYAN [2022] NZHC 1535 [30
June 2022]
[1] The Chief Executive of the Department of Corrections (Chief Executive) applies for an Interim Supervision Order (ISO) against Mr Narayan, pursuant to s 107FA of the Parole Act 2002 (the Parole Act).
[2] Mr Narayan has spent over 21 years in prison for sexual offending against three victims. He was released from prison on 11 May 2022 and is currently subject to special release conditions.
[3] Prior to Mr Narayan’s release, the Chief Executive applied for an Extended Supervision Order (ESO). A hearing for that application is set down for 3 August 2022. Pending determination of that application, an ISO is sought with an intensive monitoring condition.
[4] Mr Narayan opposes the application and says that the ISO is unnecessary because the special release conditions provide sufficient protection and the ESO application will be heard shortly.
Factual background
[5] In 1997, when Mr Narayan was 19 years’ old he committed his first sexual offending. He approached the victim, a sex worker, and her client in a parked car. He incapacitated the client with a “stun gun” and made him get out of the car, take his pants off and lie face down on the ground. Mr Narayan then ordered the victim to accompany him to another car park where he indecently assaulted her by touching her pubic area. Mr Narayan took the victim to a nearby car and drove her to a park where he made her lie down on the ground. Mr Narayan penetrated the victim’s anus and vagina using his finger, attempted to insert his penis into her anus then forced her to suck his penis. He then made her roll over and successfully inserted his penis into her anus. Mr Narayan threatened the victim and said he would shoot her if she told anyone what had happened.
[6] Mr Narayan was only able to be connected to this offending because of advances in DNA testing. He was ultimately convicted of this offending in 2014.
[7] In 2000, Mr Narayan committed his second set of offending at age 22. He again targeted sex workers. Mr Narayan approached the first victim, who was soliciting clients on the street. She got in Mr Narayan’s car where he threatened her with a knife and demanded money. The first victim manged to escape. Mr Narayan picked up a second victim and did the same thing. She attempted to escape but Mr Narayan grabbed her by the hair and forced her back into the car where he made her perform oral sex on him. He then instructed her to insert her tongue into his anus. He began to defecate. When he realised that she was using her hands to protect her mouth, he smeared his faeces on her face. He then penetrated her anus with a cigarette lighter before penetrating her anus with his penis to the point of ejaculation.
[8] Following Mr Narayan’s arrest, pornography and objectionable publications were found on his personal computer depicting bestiality, bondage, torture, child sexual abuse and defecation. These pictures had been accessed prior to the offending.
[9] Mr Narayan was sentenced to 15 years’ imprisonment in 2002 for the second set of offending. In 2014, he was sentenced to seven years’ imprisonment to be served cumulatively on his existing sentence.
[10] Mr Narayan was released from prison on 11 May 2022. He is currently subject to the standard release conditions1 and a number of special release conditions including requirements that he:
(a)attend psychological assessment and the recommended treatment;
(b)undertake a reintegration programme;
(c)abide by a curfew;
(d)gain approval before starting or changing employment;
(e)abide by a residential condition;
1 Parole Act 2002, s 14(1).
(f)submit to electronic monitoring;
(g)comply with the requirements of electronic monitoring;
(h)not associate with persons under the age of 16, without prior written approval or unless supervised by an adult approved in writing by a probation officer;
(i)not to enter any brothel or red light area;
(j)disclose to a probation officer as soon as possible, details of any personal relationships which commence, resume or terminate;
(k)attend a drug and alcohol assessment and treatment as required;
(l)not possess or consume alcohol or controlled drugs;
(m)not associate with victims of his offending;
(n)comply with tenancy agreement;
(o)not possess any electronic device capable of accessing the internet;
(p)present any electronic device for monitoring;
(q)attend a reintegration meeting;
[11] A health assessment report was prepared on Mr Narayan on 21 March 2022 by Dr Hamish Bartle, a registered clinical psychologist (Dr Bartle’s Report).
Parole Act 2002
[12] The Court may make interim supervision orders until the application for an ESO is finally determined.2
2 Parole Act 2002, s 107FA (2).
[13] The Parole Act does not contain a statutory test that must be satisfied before the Court can make an ISO. However, this Court has repeatedly held that when considering an application for an ISO, the Court must be satisfied that the statutory criteria for an ESO has been made out; “albeit on a provisional basis and often on untested evidence”.3
[14]Section 107I(2) of the Parole Act sets out the criteria for an ESO as follows:
(2)A sentencing court may make an extended supervision order 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 sexual or violent offending; and
(b) either or both of the following apply:
(i) there is a high risk that the offender will in future commit a relevant sexual offence:
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.
[15] Section 107IAA(1) of the Parole Act sets out the relevant matters the Court must be satisfied of when determining whether there is a high risk the offender will commit a relevant sexual offence in the future:
(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:
3 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228, at [14]; referred to in Chief Executive of the Department of Corrections v Kepu [2021] NZHC 2745, at [7]; and Chief Executive of the Department of Corrections v Wilson [2021] NZHC 3325, at [7].
(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[16] In this context, ‘satisfied’ imports no burden of proof, the Court is required to make its determination on an objective basis.4
Analysis
Relevant Sexual Offence
[17] A relevant sexual offence is defined in s 107B(2) of the Parole Act and includes the type of sexual offending identified in Dr Bartle’s Report in relation to Mr Narayan.
Eligible offender
[18] Ms Wickliffe for Mr Narayan noted that he disputes that he is an “eligible offender” for the purposes of s 107IAA of the Parole Act. Mr Narayan disputes the calculations by Corrections and says his sentence ended 18 months ago. That issue is subject to a separate judicial review application. Ms Wickliffe acknowledged for the purposes of this application it is open to the Court to accept the Chief Executive’s calculations, which I do.
Is there a pervasive pattern of serious sexual offending?
[19] I must be satisfied that Mr Narayan has, or has had, a pervasive pattern of serious sexual or violent offending. Ms Wickliffe says that Dr Bartle’s Report does not address this issue directly and does not provide a conclusion.
[20] Dr Bartle’s Report includes as a heading “PATTERN OF PREVIOUS OFFENCES” to which paragraphs 7 to 17 of the report relate. Dr Bartle describes Mr Narayan’s previous sexual offending as set out in the factual background above. He refers to the sentencing notes of Glazebrook and Brewer JJ and then comments on the pattern of offending as suggesting an early onset of problematic sexual behaviour, behavioural and cognitive rehearsal of more severe sexual offending (through pornography and sexual offending), a degree of impulsivity, a disregard for sanctions
4 Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [8].
or consequences, antiauthoritarian attitudes, criminal versatility, and an escalation in severity of offending.
[21] I am satisfied that Dr Bartle did consider Mr Narayan’s previous sexual offending and identified the nature of the offending and the identifiable patterns to the offending. The issue is then whether the incidences and patterns are sufficient to satisfy the requirement in s 107I(2)(a) of the Parole Act.
[22] In considering the requirements of s 107I(2)(a), the Court of Appeal has held that “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.5 A “pervasive pattern” is one that is sufficiently characteristic of the offender to serve as a predictor of future conduct.6
[23] The Chief Executive relies on Taakimoeaka v Chief Executive of the Department of Corrections, where the Court of Appeal found that two incidents of serious offending were sufficient to establish a unifying theme or pattern which was sufficiently pervasive to serve as a predictor of future conduct.7
[24] Mr Narayan’s sexual offending occurred on two occasions against three victims. In all instances threats and weapons were used and the victims were sex workers. As identified by Ms Wickliffe, the common features of Mr Narayan’s offending are the targeting of sex workers, the use of weapons and the offences taking place in public parks or car parks.
[25] The number of incidents giving rise to Mr Narayan’s offending is similar to Taakimoeaka. I am satisfied that Mr Nayaran has had a pervasive pattern of serious sexual offending.
[26] I now consider whether there is a high risk that Mr Narayan will in future commit a sexual offence.
5 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [22].
6 At [23].
7 Taakimoeaka v Chief Executive of the Department of Corrections [2021] NZCA 258 at [29].
Is there a high risk that Mr Narayan will commit a further relevant sexual offence?
[27]I may determine that there is a “high risk” if I am satisfied that Mr Narayan:8
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b)has a predilection or proclivity for serious sexual offending; and
(c)has limited self-regulatory capacity; and
(d)displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse for past offending;
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[28] I have reviewed Dr Bartle’s Report which deals with each of the above issues and concludes, as follows:
Mr Narayan’s display of an intense drive, desire, or urge to commit a relevant sexual offence
(a)A feature of Mr Narayan’s offending is his intense drive, desire, or urge to commit a relevant sexual offence as his previous offending involved violence and threats to gain compliance and exhibited a disregard of victim’s distress and resistance.
Mr Narayan’s predilection or proclivity for serious sexual offending
(b)There is evidence for predilection due to the use of objectionable material in the lead up to the offences, the use of coercion and
8 Parole Act at s 107IAA.
humiliation beyond what was required for the commission of the offence, by sexual behaviours unlikely to gain consent or provoke enjoyment, and from engagement in this offending while other consensual sexual partners were (reportedly) available. The evidence for proclivity is inconclusive as the offending occurred over a confined period of time, and, while initially present, problematic sexual behaviour in the prison seem to have ceased.
Mr Narayan’s self-regulatory capacity
(c)Mr Narayan previously had limited self-regulatory capacity. He has shown an increasing capacity for self-regulation in prison. However, capacity to self-regulate in a manner that reduces risk has not been evidenced by engagement in intensive treatment or robust release planning.
Mr Narayan’s acceptance of responsibility, remorse, concern for victims
(d)Mr Narayan’s acceptance of responsibility and remorse are considered lacking. He has inadequate concern for his victims or an understanding of the impact of his offending.
Mr Narayan’s understanding for or concern about the impact of his sexual offending on actual or potential victims
(e)Mr Narayan’s understanding of the impact of his offending is unclear, however his level of concern would appear inadequate in terms of managing risk. Dr Bartle noted that whatever his level of understanding or concern for past or potential victims, it had not been adequate to motivate him to engage with intensive treatment or robust release planning. Dr Bartle concluded that there would appear to be a link between inadequate concern for victims and ongoing risk.
[29] Dr Bartle also conducted several assessments of Mr Narayan’s risk of sexual re-offending using actuarial instruments and clinical risk factors for sexual recidivism. Using the STATIC-99R, which is an internationally recognised measure of the static factors associated with the risk of sexual recidivism, Mr Narayan’s score put him in the 89th percentile. The estimated five-year recidivism rate for Mr Narayan’s score is
21.2 per cent and the estimated ten year rate is 32.1 per cent.
[30] On the Violence Risk Scale - Sexual Offence Version (VRS:SO) which assesses 17 static and dynamic risk factors, Mr Narayan was placed in the ‘Above Average’ risk category. Although Mr Narayan treatment circumstances make it difficult to score him on this particular factor as the change score is based on men who have completed intensive residential rehabilitation whereas Mr Narayan has only completed a brief intervention. The estimated five-year recidivism rate for Mr Narayan’s score is between 19 and 28.9 per cent. The estimated ten-year rate is between 28.9 and 34.5 per cent.
[31] The Psychopathy Checklist: Screening Version (PCL:SV) was also administered during the assessment and Mr Narayan’s score was above average for New Zealand offenders.
[32] Dr Bartle made two clinical observations he says are relevant to Mr Narayan’s risk:
(a)Studies have shown a link between a high prevalence of psychopathic traits and high sexual deviancy. Together these traits may increase the likelihood of recidivism additional to the findings of the other assessments. Mr Narayan scored above average on both the PCL:SV and on the VRS:SO. Dr Bartle states the interaction between sexual deviance and a callous disregard for (or enjoyment of) other’s distress is apparent in his offending.
(b)Mr Narayan’s inconsistent motivation for treatment. Dr Bartle states that Mr Narayan denies some of his offending and has minimised his need for treatment and ultimately does not consider himself to be at risk
of re-offending. Mr Narayan therefore does not consider that he needs to avoid future risks of re-offending in the community, and it is unclear whether he has the intention or capability to manage his risk.
[33] Ms Wickliffe says that Dr Bartle acknowledges that there is inconclusive evidence of a proclivity to offend. The Parole Act only requires that I be satisfied that there is a predilection or proclivity for serious sexual offending.9 Both are not required. As Dr Bartle concludes that Mr Narayan has a predilection, this is sufficient to meet the statutory requirement.
[34] Given the matters set out in Dr Bartle’s Report addressing each of the factors in s 1071AA and given the assessments of risk, there is sufficient material, on a provisional basis for me to be satisfied that there is a high risk that Mr Narayan will in future commit a relevant sexual offence.
Grounds for ISO made out
[35] For the reasons set out above, the requirements set out in s 107I for the granting of an ESO are satisfied such that it is appropriate to grant the application for an ISO.
Special conditions
[36] In addition to the standard conditions provided in s 107JA of the Parole Act the Crown also requests special conditions. Mr Tantrum, for the Chief Executive, sought leave to include two special conditions that were inadvertently omitted from the memorandum of counsel dated 20 May 2022 seeking an ISO – these are the special conditions listed at paragraphs 15(8) and (13) of the reserved decision of the Parole Board dated 30 March 2022. I grant leave for these two special conditions to be included within the ISO application.
Intensive monitoring and variation to programmes conditions
[37] The special conditions sought largely mirror the special release conditions already imposed on Mr Narayan, with two exceptions:
9 Parole Act 2002, s 107IAA(1)(c). (Emphasis added).
(a)Additional intensive monitoring special condition: To be subject to intensive monitoring and to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person to person monitoring; and
(b)Variation to the programmes condition: While residing at Kainga Taupua to undertake, engage in and complete a reintegration programme administered by a programme provide between the hours of 8am and 8pm daily, as approved by a probation officer, and abide by the rules of the programme to the satisfaction of a probation officer. To allow an approved person to supervise or monitor you, for no longer than is necessary, to ensure your attendance at classes or participation in other activities associated with the programme.
[bold text indicated the amended part of the condition].
[38] There is no test under the Parole Act as to when an order for intensive monitoring should be made. Intensive monitoring is likely to be justified only if Mr Narayan poses a high risk of sexual offending and that risk “is likely to be exacerbated if the transition from prison to the community cannot be safely managed without close and constant supervision.”10
[39] A proposed condition should only be imposed where there is a nexus between the perceived risk posed by the offender and the effectiveness of the proposed condition.11
[40] Ms Wickliffe says that the ISO is unnecessary because the special release conditions are in place and will remain in place until after the hearing of the ESO in August 2022. She says that Kainga Taupua is located on the grounds of Spring Hill prison and Mr Narayan is not therefore in the “community” and the risk to “community safety” has already been addressed.
10 Department of Corrections v Miller [2017] NZHC 2527, at [16].
11 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49].
[41] While Kainga Taupua is located on prison grounds, it is not subject to the same restrictions as prison and residents are able to enter the community. While Ms Wickliffe says that Kainga Taupua has a policy to escort residents when they are in the community, no details of the policy were provided. A “policy” does not provide the same certainty as the intensive monitoring condition and the condition supports the policy. Given the risks of re-offending identified by Dr Bartle, intensive monitoring is necessary to reduce the risk of re-offending. Further, the previous offending occurred at night and the additional monitoring condition is necessary to reduce that risk by providing 24-hour monitoring.
[42] I accept there are existing restrictions on Mr Narayan. The intensive monitoring however, will provide additional protection to reinforce those conditions and importantly to reduce the high risk of re-offending as assessed by Dr Bartle.
[43] Further, Mr Narayan does not consider himself to be at risk of further offending so has not demonstrated the capacity or intention to manage his own risk. The intensive monitoring is necessary in reducing and managing this risk.
[44]I now consider the variation to the programme condition.
[45] Ms Wickliffe submits that there is nothing in Dr Bartle’s Report to indicate Mr Narayan will not comply with the education opportunities. She argues that he should be given an opportunity to show a willingness to engage before the Court takes the step of imposing an intensive supervision order on an interim basis without a full hearing on the matter and input by another health assessor.
[46] Dr Bartle’s Report does consider Mr Narayan’s understanding of the impact of his offending and his willingness to engage in treatment and concludes:
His acceptance of responsibility and remorse are both considered lacking. Similarly, while he reports some level of understanding of the impact of sexual offending on prior or potential victims, his level of concern has not been adequate to prompt any concerted effort to engage in appropriate treatment or release planning to avoid future such offending.
[47] I accept the conclusions of Dr Bartle as supporting the necessity of ensuring Mr Narayan attends the programs and engages to enable rehabilitation. The variation to the programmes is therefore necessary.
Other special conditions
[48] The other special conditions sought by the Chief Executive mirror the special release conditions. I note that these special conditions are already in place and the purpose for seeking these is to ensure there is no gap should the special release conditions expire before the ESO is determined. Given that these conditions are the same as the special release conditions, there is no additional hardship to Mr Narayan in these conditions being imposed. These conditions will also remove any risk that the special release conditions expire before the ESO is determined and provide additional protection with the two new special conditions sought.
[49] There should be a nexus between the perceived risk posed by Mr Narayan and the effectiveness of the proposed special condition.12 The Chief Executive says that the following conditions are necessary to reduce Mr Narayan’s risk of re-offending and/or to promote his rehabilitation and reintegration:
(a)To attend a psychological assessment and attend, participate in and complete any recommended treatment as directed by a probation officer.
(b)To be at your approved address between the hours of 8pm and 7am daily unless you have the prior written approval of a probation officer.
(c)To obtain the written approval of a probation officer before starting or changing your position and/or place of employment (including voluntary and unpaid work). To notify a probation officer if you leave your position of employment.
12 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49]
(d)To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a Probation Officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a Probation Officer.
(e)To submit to electronic monitoring as directed by a Probation Officer in order to monitor your compliance with any conditions relating to your whereabouts.
(f)Not to enter any brothel/red light district/or area where sex workers are likely to congregate or work as defined by a probation officer in writing unless you have the prior written approval of a probation officer.
(g)To disclose to a probation officer at the earliest opportunity, details of any intimate relationship which commences, resumes or terminates.
(h)To attend an alcohol and drug assessment, and attend, participate in and complete any treatment or counselling directed by a probation officer.
(i)Not to possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs or controlled drugs prescribed to you by a health professional.
(j)To comply with any tenancy agreement or rules issued by the provider of your approved accommodation.
(k)Not to possess or use any electronic device capable of accessing the internet other than a device that has been approved in writing by a probation officer.
(l)Upon request to make available to a probation officer, or his or her agent, any electronic device capable of accessing the internet that is used by you, or is in your possession or control, for the purpose of monitoring your use of the device.
(m)To attend a reintegration meeting as directed a probation officer.
[50] I accept the Crown’s submissions that the above conditions are necessary to reduce risks and/or promote rehabilitation and reintegration.
[51] Given the nature of Mr Narayan’s offending as set out in Dr Bartle’s Report, the conditions regarding movements at night, notifying changing positions / employment, intimate relationships and not visiting sex workers are necessary to reduce the risk of re-offending.
[52] Mr Narayan has been in prison for over 20 years and needs support to reintegrate. Attendance at programs, reintegration meeting and assessment by a psychologist are necessary to promote Mr Narayan’s rehabilitation and reintegration. Supervision and monitoring are necessary to ensure attendance and engagement in those programs thereby promoting rehabilitation.
[53] Electronic monitoring is necessary to both reduce the risk of re-offending and will help to ensure Mr Narayan complies with the restrictions on his movements at night and in relation to brothels.
[54] Dr Bartle has identified substance abuse as a warning sign of further offending. The conditions regarding alcohol and drugs are therefore necessary to reduce the risk of re-offending and to assist in rehabilitation and reintegration.
[55] Dr Bartle has also identified accessing pornography and objectionable material as an early warning sign of future offending. The conditions regarding compliance with rules and the tenancy agreement and access to electronic devices are necessary to reduce Mr Narayan’s risk of re-offending by ensuring he does not use such devices to access such material.
[56]For the reasons above, the other special conditions are necessary.
New Zealand Bill of Rights Act 1990
[57] Counsel for Mr Narayan says that given the punitive nature of the intensive monitoring condition and the ISO, the orders should not be imposed where existing release conditions already serve to mitigate any risk of offending.
[58] Ms Wickliffe referred to s 18 of the New Zealand Bill of Rights Act 1990 (NZ Bill of Rights Act) which protects the right to freedom of movement. She also refers to Belcher v Chief Executive of the Dept of Corrections which held that the imposition of restrictions under an ESO are punitive and therefore engage ss 25 and 26 of the NZ Bill of Rights Act.13
[59] Section 26 of the NZ Bill of Rights Act protects persons against double jeopardy. Ms Wickliffe says the imposition of the additional monitoring provision amounts to double jeopardy and is not justified, especially given the ESO application will be heard on 3 August 2022.
[60] Section 5 of the NZ Bill of Rights Act provides that subject to section 4, the rights and freedoms contained in the Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[61] For the reasons set out above and based on the findings of Dr Bartle, the intensive monitoring condition and other special conditions are justified to reduce the risk of re-offending and to promote Mr Narayan’s rehabilitation and reintegration. Mr Narayan is subject to the special release conditions and I do not consider that imposing the ISO with the additional intensive monitoring and program variation amount to double jeopardy.
13 [2007] 1 NZLR 507.
Result
[62] The interim supervision order is granted with the special conditions sought by the Chief Executive until determination of the application for the extended supervision order.
Tahana J
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