Chief Executive of the Department of Corrections v Pani-Marsden
[2024] NZHC 2009
•22 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-428
[2024] NZHC 2009
UNDER Section 107F of the Parole Act 2002 BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
DICKIE PANI-MARSDEN
Respondent
Hearing: 11 July 2024 Appearances:
RMA McCoubrey and L Dalton for applicant
T M Cooper KC and O F Kazmierow for respondent
Date of judgment:
22 July 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 22 July 2024 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
T M Cooper KC, Auckland Meredith Connell, Auckland
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PANI-MARSDEN [2024] NZHC 2009 [22 July 2024]
[1] By application dated 9 November 2022, the Chief Executive of the Department of Corrections seeks an extended supervision order (ESO) in respect of Dickie Pani-Marsden.1 An ESO is “to protect members of the community from those who … pose a real and ongoing risk of committing serious sexual or violent offences”.2 Its standard conditions materially restrict a variety of human rights and fundamental freedoms.3
[2] The application is brought on grounds I should be satisfied, having considered proffered health assessors’ reports, Mr Pani-Marsden has, or had, a pervasive pattern of serious violent offending, and there is a very high risk he will in future commit a relevant violent offence.4 The Chief Executive also seeks such an order endure for five years.5 However, if I make the ESO, I must make it for the “minimum period required for the purposes of the safety of the community”.6
[3] After continuous incarceration since the age of 17 years, Mr Pani-Marsden was released from prison on 6 January 2023 with release conditions subsisting to 3 July 2023. Pending determination of the ESO application, he since has been subject to an interim supervision order (ISO).7
Mr Pani-Marsden’s offending
[4] Mr Pani-Marsden now is 30 years old, of Māori descent, with parental affiliations to Ngāti Kahungunu and Ngāi Tūhoe iwi. He had a disrupted childhood, persistently uplifted by the then-responsible government agency (Child, Youth and Family, now Oranga Tamariki) from his family home into a variety of state care, exacerbated by at best intermittent and superficial treatment of his education needs.
1 Parole Act 2002, s 107F.
2 Section 107I(1).
3 Section 107JA.
4 Section 107I(2).
5 Section 107I(4).
6 Section 107I(5).
7 Section 107FA; Department of Corrections v Pani-Marsden [2023] NZHC 1753.
[5] After some relatively minor vehicle and damage offending as a youth,8 on 13 November 2012,9 Mr Pani-Marsden was sentenced to six months’ imprisonment for predominantly dishonesty offending.10 On 19 June 2013,11 he was sentenced in the District Court to five years’ imprisonment for two aggravated robberies.12 In each 2014, 2015 and 2016, again in the District Court, he was sentenced to 12- and 15- month (x 2) terms of imprisonment for assaults in custody,13 each to be served cumulatively on the prior sentence(s).
[6] On 3 November 2017, this Court sentenced Mr Pani-Marsden to three years and eight months’ imprisonment for further violent offending in custody,14 also to be served cumulatively with the prior sentences. This index offending of each injuring and wounding, both with intent to cause grievous bodily harm, is a “relevant offence” for the purposes of an ESO.15 Mr Pani-Marsden’s present circumstances outlined at
[3] above render him an “eligible offender” for those purposes, at least in terms of the latest offending and its sequelae,16 when the ESO application was made in November 2022.17 On 12 December 2023, he was sentenced to five months’ home detention in relation to a January 2022 assault with intent to injure while still in custody.18
8 Conversion of a vehicle (x 2) (Crimes Act 1961, s 226(1): maximum penalty seven years’ imprisonment); wilful damage (x 2) (Summary Offences Act 1981, s 11: maximum penalty three months’ imprisonment or $2,000 fine).
9 Police v Pani-Marsden DC Manukau CRI-2012-092-00454, 13 November 2012.
10 Conversion of a vehicle (x 2) (Crimes Act, s 226(1)); receiving (x 5) (Crimes Act, ss 246 and 247: maximum penalty seven years’ imprisonment); possession of cannabis (Misuse of Drugs Act 1975, s 7: maximum penalty six months’ imprisonment or $1,000 fine); possession of utensils for cannabis (x 2) (Misuse of Drugs Act, s 13: maximum penalty one year’s imprisonment and/or
$500 fine).
11 R v Pani-Marsden DC Manukau CRI-2012-092-10378, 19 June 2013.
12 Crimes Act, s 235: maximum penalty 14 years’ imprisonment.
13 Police v Pani-Marsden DC Hamilton CRI-2014-019-02381, 23 July 2014: assault with intent to injure (Crimes Act, s 193: maximum penalty three years’ imprisonment); assault on a police officer (Summary Offences Act, s 10: maximum penalty six months’ imprisonment or $4,000 fine); Police v Pani-Marsden [2015] NZDC 17282: assault with intent to injure (x 2) (Crimes Act, s 193); and New Zealand Police v Pani-Marsden [2016] NZDC 15337: assault with intent to injure (Crimes Act, s 193).
14 R v Pani-Marsden [2017] NZHC 2696: wounding with intent to cause grievous bodily harm (x 3) (Crimes Act, s 188(1): maximum penalty 14 years’ imprisonment); injuring with intent to cause grievous bodily harm (x 2) (Crimes Act, s 189(1): maximum penalty 10 years’ imprisonment); injuring with intent to injure (x 2) (Crimes Act, s 189(2): maximum penalty five years’ imprisonment); assault with intent to injure (x 5) (Crimes Act, s 193); assault with intent to use weapon (Crimes Act, s 202C: maximum penalty five years’ imprisonment)].
15 Parole Act, s 107B.
16 Section 107C.
17 Section 107I(3).
18 Police v Pani-Marsden [2023] NZDC 29598: assault with intent to injure (Crimes Act, s 193).
The health assessors’ reports
[7] The Chief Executive commissioned a health assessment report from Hamish Bartle, a registered clinical psychologist. Dr Bartle’s original report is dated 29 September 2022, updated on 22 December 2023 and 9 July 2024. Mr Pani-Marsden also commissioned a psychological report from Sabine Visser, also a registered clinical psychologist, dated 13 June 2023 and updated on 23 May 2024. (As expert witnesses, Dr Bartle and Mrs Visser also helpfully have agreed joint statements dated 18 July 2023 and 1 July 2024.)
[8] Section 107F(2A) requires every health assessor’s report to “address one or both of the following questions”:
(a)whether—
(i) the offender displays each of the traits and behavioural characteristics specified in section 107IAA(1); and
(ii) there is a high risk that the offender will in future commit a relevant sexual offence:
(b)whether—
(i) the offender displays each of the behavioural characteristics specified in section 107IAA(2); and
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.
[9]Here, s 107F(2A)(b) applies. For convenience, then, s 107IAA(2) provides:
107IAA Matters court must be satisfied of when assessing risk
…
(2) A 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—
(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.
[10] Dr Bartle interviewed Mr Pani-Marsden for six hours across four occasions between June and September 2022. Dr Bartle found him to be “guarded and suspicious” to varying degrees in their interactions, to the extent Dr Bartle lacked access to other psychological assessments of him commissioned by the Parole Board. Applying a variety of violent recidivism assessment tools,19 Dr Bartle then assessed Mr Pani-Marsden variously at moderate to very high risk, “at highest risk of violence against custodial staff”, but “could be considered very high” in the community also, in particular against “authority figures charged with enforcement”. The latter risk should become “clear within a small number of years post-release”.
[11] Specifically, with reference to the s 107IAA(2) factors, Dr Bartle assessed Mr Pani-Marsden:
(a)displayed “a cyclic pattern of increasing non-compliances, increasing opposition, verbal aggression, and physical violence”;
(b)was aggressively volatile to possibly reducing extremity;
(c)persistently aggressively responded to custodial staff;
(d)had planned with others a weaponed attack on custodial staff;
(e)lacked reliable self-regulation when responding to others’ challenges to his behaviour; and
(f)demonstrated no understanding or concern about the impact of his violence on others.
19 Leon Bakker, James O’Malley and David Riley Risk of Reconviction: Statistical Models which predict four types of re-offending (Department of Corrections, 1999); Don Andrews, James Bonta and J Stephen Wormith The Level of Service/Case Management Inventory (LS/CMI) (Multi-Health Systems, Toronto, 2004); and Stephen Wong and others Violence Risk Scale — Sexual Offence Version (Regional Psychiatric Centre and University of Saskatchewan, Saskatoon, Canada, 2003– 2017).
Noting three of Mr Pani-Marsden’s seven relevant violent offences “escalated to serious violence” and crossed the threshold for ESO consideration, Dr Bartle considered Mr Pani-Marsden’s statistical risk of violence in the community was “very high”, with lower risk of “relevant” violent offending, and “little in the way of concrete plans or strategies to avoid relapse in violence (serious or otherwise)”.
[12] Mrs Visser also interviewed Mr Pani-Marsden for some six hours in April and May 2023. She found him engaged and responsive. With reference to statistical cognitive standards,20 she assessed him “to have performed to the best of his abilities”, with borderline overall cognitive ability and verbal comprehension, but average perceptual reasoning: “[t]his is Mr Pani-Marsden’s strength”. His working memory and processing speed abilities were assessed respectively in borderline and low average ranges. Mrs Visser assessed Mr Pani-Marsden as highly suggestible. She “[did] not in general disagree with the outcome of the actuarial assessments” conducted by Dr Bartle.
[13] However, conversely to Dr Bartle, Mrs Visser considered Mr Pani-Marsden shows:
… some insight into his difficulties and appears to be motivated not to return to prison or commit further violent offending. He is reluctant to commit to psychological interventions, especially with the Department of Corrections, which in my view is understandable based on his background history of institutional abuse.
She noted the difficulties he had in obtaining consistent responses from probation officers on his applicable restrictions and conditions, but observed he had obtained driving licences and opened a bank account, continued in his long-term relationship with a supportive partner, engaged with recreation and was seeking employment. She strongly resisted any proposition his cognitive functioning presented any increased risk (whether in compliance or rehabilitation).
[14] With specific reference to s 107IAA(2)’s criteria, Mrs Visser considered Mr Pani-Marsden:
20 David Weschler Weschler Adult Intelligence Scale – 4th edition (WAIS-IV A&NZ) (Pearson, Sydney, 2008); Gísli Hannes Guðjónsson Noel Clark “Suggestibility in police interrogation: A social psychological model” (1986) 1(2) Social Behaviour 83.
(a)was not driven to violence except in the custodial environment, where a ‘flight’ response was less available or he may have been pressured to engage in violence with others;
(b)his observable reduction in extreme aggressive volatility was likely to continue without the custodial environment’s triggers and lack of opportunity for intervention;
(c)generally lacks vengeful motivation, except in relation to specific Corrections’ staff leading to the index offending in 2016;
(d)has not displayed clear and long-term planning of serious violent offending, particularly given his vulnerability and suggestibility;
(e)has developed “some limited skills in regulation since being in the community”, which “are basic and need further development”; and
(f)is ambivalent toward prison staff but recognises he needs to make changes in his conduct if he is to avoid a return to custody.
Ultimately, Mrs Visser considered Mr Pani-Marsden to be at “a very high risk for violent offending in a custodial setting”, and otherwise “a moderate to high risk” of such offending. Noting his distrust of Corrections — founded in “long-term institutionalisation, traumatisation and disappointments in his current relationship with the Probation Service”, and the need therefore for long-term independent rehabilitative intervention (which “resources are not readily available and are costly”)
— she was strongly of the view an ESO “will significantly increase his risk for further offending and is highly likely to lead to treatment failure”. If nonetheless to be granted, a shorter period of “2 to 3 years” may incentivise compliance in demonstration of his rehabilitation.
[15] The psychologists’ first joint statement agreed “the immanance of violence risk is reduced outside the prison setting”.21 I apprehend that to mean Dr Bartle abandoned his tentative assessment of Mr Pani-Marsden’s “very high risk” in the community. On
21 I have construed the psychologists’ “immanence of violence risk” to mean its ‘inherence’ as a pervasive and sustaining quality (Oxford English Dictionary “immanent” (July 2024)
< sense 1), and not its ‘imminence’.
the statutory criteria, the psychologists materially differed only on if Mr Pani-Marsden’s behaviour evidenced planning to the requisite degree. They maintained their difference on the duration of any ESO, Dr Bartle considering “a longer term may be needed, at least until a rehabilitative and support pathway is clearer”.
[16] In May 2023, Mr Pani-Marsden was remanded in custody on denied charges of March 2023 assaults on shopping centre security personnel. Dr Bartle revisited his 2022 assessment in December 2023, without re-interviewing Mr Pani-Marsden, and noted the balance of Mr Pani-Marsden’s imprisonment had “passed largely without incident” with mostly neutral and some positive file notes. After his January 2023 release, Mr Pani-Marsden demonstrated increasing compliance, rehabilitative engagement and openness until the time of the March 2023 incident, which was followed by his non-compliance with residential conditions and subsequent remand in custody. In custody, although displaying some “verbal abusiveness and aggression, as well as obstructive behaviour”, he was more generally “fairly settled” and said by his case manager to be motivated towards rehabilitative programmes and vocational work. But Dr Bartle considered Mr Pani-Marsden’s “risk of serious violence might still be categorised as very high when compared to the risk of serious violence relative to other individuals”.
[17] Mrs Visser reinterviewed Mr Pani-Marsden, accompanied by his partner, for some two hours on 7 May 2024. She noted his evident emotion in discussing his dealings with authorities but his voluntary de-escalation when that threatened to overwhelm him. She identified the calm and stability afforded him by his relationship with his partner, albeit without her daughter (his conditions’ prohibited contact with whom was declined to be varied by this Court “in the absence of first instance review by the probation service”),22 and without any evidence of family violence. His attempts to find work and engage in social outings were frustrated by conditions limiting his movement. Mrs Visser was reinforced in her original opinion by Mr Pani-Marsden’s clear motivation and determination to avoid a return to custody.
22 Chief Executive of Department of Corrections v Pani-Marsden [2024] NZHC 1206 at [31].
[18] The psychologists’ second joint statement noted their generally unchanged original assessments, both originally having been concerned “the nature and effectiveness of a rehabilitative pathway for Mr Pani-Marsden is not apparent at the present time”, subject to Dr Bartle’s updating of his assessment to reflect more recent events. After reconsidering his original assessment in light of Mr Pani-Marsden’s subsequent time in custody and the community, Dr Bartle acknowledged his “capacity for productive relationship[s]” with custodial staff and “some signs of increased openness” with a particular probation officer and otherwise in pursuing rehabilitation. He noted Mr Pani-Marsden’s combined EM bail, release conditions and ISO together may have led to his abandonment of fulltime employment as too difficult to manage. His RoC*RoI assessment remained moderate, and Dr Bartle’s overall assessment was unchanged.
[19] The psychologists were empanelled to give concurrent evidence before me. Mrs Visser explained the difference between her and Dr Bartle may be explained by her access to “some additional information” as to his functioning in the community. She considered he was dealing well with the limitations imposed on him and staying on the right side of them, notwithstanding “Corrections is a huge trigger for Mr Pani-Marsden”. In terms of the statutory criteria, she clarified he was “more [about] impulsivity and not so much about planning”, and to that end he was coming to recognise his difficulties were less about “the people” than “the process”.
[20] Dr Bartle confirmed Mr Pani-Marsden’s “mixed progress in the community”, and “less opposition and more cooperation” in his dealings with a new probation officer, at a time when home detention conditions moved to post-detention conditions. But those were new circumstances over “a two month period and what we’re really thinking about here is behaviour over years”. He was forthright any lack of direct insight from conversation with Mr Pani-Marsden was balanced by the “more reliable indicator” of that behaviour.
[21] Mrs Visser agreed “there is caution for me, it’s a short period of time when you consider a longer history”. But she was encouraged by his recent voluntary contact with her for assistance. Dr Bartle said:
[W]hat we’re really trying to do here is think about “and what would that be like if everybody stepped away and there was no oversight? What would happen at that point?” It’s a very difficult question. It’s a difficult question anyway because what we have is not information about his future, we have information about his past. And when we’re looking at these risk tools, they're not about his future. We’re comparting him to a group of people in the past, right? So, our recidivism rates, that’s the percentage of people with that score who offended violently. So, that’s all in the past and then we’re taking group data and trying to apply that to an individual. It’s not at all simple. And in Mr Pani-Marsden’s case, these issues are particularly salient.
He reinforced “there are not factors in this case that make Mr Pani-Marsden significantly different to [the New Zealand prison] population”.
[22] In answer to a question from me about an ESO-eligible person’s recognition of risk and self-regulation, the psychologists agreed recognition of dysregulation was a precondition to self-regulation. Mr Pani-Marsden’s recent patterns of behaviour illustrated some level of recognition but not enough for reliable “stable behavioural change” said Dr Bartle, given the absence of any rehabilitative pathway. Mrs Visser took encouragement from Mr Pani-Marsden’s initiated contact with her as the beginning of that pathway.
[23] I asked what part an ESO and its conditions might play on that pathway. Mrs Visser considered, given Mr Pani-Marsden’s history with Corrections, it may — “it’s a big ‘may’” — be detrimental to his rehabilitation. While acknowledging “the barriers to engagement with Corrections”, Dr Bartle said “it’s not clear … removing those resources creates a rehabilitative pathway, either”, while the ESO provided the source for his rehabilitation. Mrs Visser’s 31 years’ experience of Corrections suggested it was unlikely Corrections could meaningfully “provide resources for someone like Mr Pani-Marsden”. She agreed rehabilitative interventions were “a very important part of what needs to happen for him”, and “need to work”, to “create a hope for him that he has an opportunity to be out of prison, to have a life, to be normal”.
Considering an extended supervision order
[24]Section 107I(2) provides:
(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.
“A sentencing court” here means this Court.23
[25] In Chief Executive, Dept of Corrections v Alinizi, the Court of Appeal explained the three-step process following determination of the offender as “eligible” for an ESO (as I have determined at [6] above): I must determine if Mr Pani-Marsden is a pervasive sexual or violent offender;24 I must assess his specific qualification in terms of the s 107IAA traits and behavioural characteristics;25 and, if qualifying, I must determine the risk of his future serious sexual or violent offending.26
—pervasive serious violent offending
[26] I am satisfied Mr Pani-Marsden had a pervasive pattern of serious violent offending. Almost all Mr Pani-Marsden’s offending since the 2013 aggravated robberies, as outlined at [5]–[6] above, falls within s 107B(2A)’s definition of a “relevant violent offence”. That which is not — under s 10 of the Summary Offences Act 1981, a 2014 assault on a prison officer — still bears the same violence characteristic (if less serious).
[27] Even so, for present purposes, it is notable — while armed with a mallet and large knife in the first aggravated robbery, and disguised and armed with a wrench in the second — there is no suggestion Mr Pani-Marsden was physically violent to any victim. His 2014 sentence, despite being of “a young man with a substantial prison sentence remaining to be served”, “required a message to be sent … to assault prison officers would be dealt with severely by the Court”.27 His 2015 sentence is prefaced by the Judge’s observation “here is a classic situation where a young man is just
23 Parole Act, s 107D.
24 Section 107I(2)a).
25 At [8] above.
26 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13(iii)].
27 R v Pani-Marsden DC Hamilton CRI-2014-019-02381, 23 July 2014 at [4].
behaving impulsively without thinking of consequences”.28 His 2017 sentence for the index offending was less than as principal or if armed (as was the principal, more harshly punished).29 But that sentence still was uplifted from its starting point for Mr Pani-Marsden’s recidivism in joining the premeditated attack.30
—qualification for risk assessment
[28] I also would be satisfied Mr Pani-Marsden ‘qualifies’ for my determination if there is a very high risk he will in future commit a relevant violent offence. To explain, the question of Mr Pani-Marsden’s qualification requires my satisfaction as to each his severe disturbance in behavioural functioning; either his planning of violent offences to achieve a premeditated goal, or his limited self-regulatory capacity; and his lack of empathy for his victims.
[29] There is a significant question if, by s 107F(2A)(b)’s direction health assessors address “whether … the offender displays each of the behavioural characteristics specified in section 107IAA(2)”, that is intended to leave consequent determination of the offender’s “severe disturbance in behavioural functioning” under s 107IAA(2)(a) to the Court as a factual, not clinical, assessment. I previously have explained my concerns about s 107IAA(2)(a)’s statutory (rather than clinical) construct,31 and the possibly unintended high qualification for its application.32 The Law Commission since has expressed “reservations regarding the extent to which the court should be directed to specific characteristics as being demonstrative of reoffending risk”,33 and observed the language is “difficult to understand”,34 and the legislation “remains unclear and inaccessible to most readers”.35
[30] In any event, I am not satisfied Mr Pani-Marsden’s behavioural functioning is severely disturbed. I accept some disturbance is evidenced by Mr Pani-Marsden’s
28 Police v Pani-Marsden [2015] NZDC 17282 at [3].
29 R v Pani-Marsden [2017] NZHC 2402 at [3]–[4].
30 At [7].
31 Chief Executive of the Department of Corrections v Waiti [2019] NZHC 3256 at [30]–[44].
32 At [35].
33 Law Commission Public safety and serious offenders: a review of preventive detention and post-sentence orders (NZLC IP51, 2023) at [8.37].
34 At [8.40].
35 At [8.42].
limited self-regulatory capacity and lack of empathy for his victims. It additionally is evidenced by his resort to violence in contest with ‘authority’ figures and its continuation while incarcerated, although the evidence is not of the required “intense drive, desires or urges”. But the evidence also is not of his “extreme aggressive volatility”: he was among lesser offenders in the index offending; ‘impulsively’ acting previously in custody; and not with any direct physical violence prior to receiving any custodial sentence.36 Neither can he be described as persistently harbouring vengeful intention toward authority figures (as may be material, if open to being met by the target “at the time”);37 his only offending subsequent to the index 2017 offending involved his 2022 assault on another inmate. He is presumed innocent of the active charges.38
[31] As I previously have noted,39 there are cases in which ESOs have been made despite the particular characteristic not expressly being found “established by evidence”.40 But on the face of s 107IAA(2), the characteristics are mandatory requirements; there must be evidence establishing “each” stipulated characteristic, for me to be satisfied of the offender’s severely disturbed behavioural functioning. That is reinforced by s 107IAA(2)(a)’s subparagraphs’ conjunctives “and”. If so, the existence of such evidence constitutionally is important, because it founds a deprivation of liberty.41 Unless each characteristic is evidenced, the necessary risk cannot be determined established.42
36 See [27] above.
37 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [41].
38 New Zealand Bill of Rights Act 1990, s 25(c).
39 Chief Executive of the Department of Corrections v Waiti, above n 31, at [29].
40 Parole Act, s 107IAA(2)(a); see, for example, Chief Executive of Department of Corrections v Paul [2017] NZHC 1294 at [26]; and Chief Executive, New Zealand Department of Corrections v Amohanga [2017] NZHC 1406 at [35].
41 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [35]–[36] and [83], albeit in relation to evidence of (minorly) different characteristics under the Public Safety (Public Protection Orders) Act 2014 (but see also [13] in relation to the Parole Act), affirmed in Chisnall v Chief Executive of the Department of Corrections [2022] NZCA 402 at [5], n 10.
42 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 at [54]–[60].
—risk of future relevant violent offending
[32] I thus cannot be satisfied there is a very high risk Mr Pani-Marsden will in future commit a relevant violent offence.43
[33] But, irrespective of the criteria, there is inadequate foundation for my determination Mr Pani-Marsden presents the necessary “very high risk” of future serious violent offending against “members of the community”. It is a “public safety justification”.44 In my assessment, neither assessor truly considers any such ‘very high’ risk exists in the community; Dr Bartle’s initial assessment was of lower “relevant” violent risk,45 and his later attempt to regain that ground, after agreement in discussion with Mrs Visser of ‘immanence reduction’,46 only is tentatively or conditionally expressed.47
[34] I consider it clear any ‘very high’ risk is evidenced only while Mr Pani-Marsden held in custody, not when he is free from detention. In custody, an ESO is superfluous. The desirability Mr Pani-Marsden personally may retain access to state rehabilitative intervention otherwise is immaterial to my determination if to make an ESO.
Result
[35]I therefore decline to make an ESO in respect of Mr Pani-Marsden.
[36] The interim supervision order will cease to have effect on final determination of any timely appeal from my decision,48 or earlier expiry of the appeal period.49
—Jagose J
43 Parole Act, s 107I(2)(b)(ii).
44 Mosen v Chief Executive of the Department of Corrections, above n 42, at [27].
45 See [11] above.
46 See [15] above.
47 See [16] above.
48 Parole Act, s 107FA(6); Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 at [68]; Chisnall v Chief Executive of the Department of Corrections [2022] NZCA 402 at [62].
49 Sections 107H(1) and 107R(2).
0
10
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