Chief Executive of the Department of Corrections v Pengelly
[2025] NZHC 2175
•4 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-51
[2025] NZHC 2175
UNDER the Parole Act 2002 IN THE MATTER
of an application for an Interim Supervision Order
BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
STEVEN KEITH PENGELLY
Respondent
Hearing: 4 August 2025 Appearances:
A L Mills for Applicant
A J Bailey for Respondent
Judgment:
4 August 2025
ORAL JUDGMENT OF OSBORNE J
Introduction
[1] Mr Pengelly became an “eligible offender” in terms of pt 1A Parole Act 2002 as a consequence of his 2013 conviction for attempted murder.1
[2] On the application of the Chief Executive of the Department of Corrections, this Court made an extended supervision order (the ESO) in respect of Mr Pengelly
1 R v Pengelly [2013] NZHC 527.
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PENGELLY [2025] NZHC 2175 [4
August 2025]
under s 107F of the Act (2021 ESO Judgment).2 The term of the ESO was for three years commencing on 4 August 2021.3
[3] By reason of Mr Pengelly’s arrest and remand in custody in February 2024 for alleged breaches of the ESO, time ceased to run on the ESO for the period of remand which lasted from 8 February 2024 to 20 February 2025.4
[4] It happens that I was the Judge who heard the Chief Executive’s 2021 application and made the ESO. As the 2021 ESO Judgment indicates, the ESO was made at a time when it was clear Mr Pengelly had gone to lengths to put in place a close structuring and monitoring support model which Mr Pengelly recognised was a necessary part of his life and his transition to a fully functioning role in society.5 In Mr Pengelly’s circumstances I was satisfied an ESO for a period of three years was appropriate.6 I addressed comments to Mr Pengelly at the conclusion of the 2021 ESO Judgment in which I recognised Mr Pengelly would still have very challenging times ahead.7
Fresh proceedings
[5] Mr Pengelly now comes before the Court as a result of a further application by the Chief Executive for an ESO. The immediate issue for consideration by the Court is whether an interim supervision order (ISO) should be imposed—the 2021 ESO is now due to expire shortly. The Chief Executive’s application for a new ESO, this time for a duration of five years, has a hearing date of 24–25 February 2026.
[6]Mr Pengelly opposes the making of an ISO pending the ESO hearing.
2 Chief Executive of the Department of Corrections v Pengelly [2021] NZHC 2057 [2021 ESO Judgment].
3 At [66].
4 Pursuant to s 107P(1)(a) Parole Act.
5 2021 ESO Judgment, above n 2, at [63]–[64].
6 At [59].
7 At [65]. Reference was inadvertently made in the course of the oral delivery of this judgment to “serious sexual offending”—the correct reference (as corrected in the text) is to “serious violent offending”.
[7] In seeking an ESO under s 107F of the Act, the Chief Executive asserts Mr Pengelly has or has had a pervasive pattern of serious violent offending and there is a very high risk that he will in future commit a relevant violent offence.
[8] The history of Mr Pengelly’s offending was traversed in the 2021 ESO Judgment. The required health assessor’s report then was provided by Amanda Richards, a registered clinical psychologist. The detail captured in the 2021 ESO Judgment remains relevant and informs this judgment, as if it were fully set out again.
[9] In the submissions filed by the Chief Executive for this hearing, Ms Boshier accurately summarised Mr Pengelly’s offending background, which I will reproduce:8
(a)Mr Pengelly is currently aged 52 years old. His first conviction was at age 17 in 1990, and he has regularly offended since then, spending a significant period of his adult life in prison. He has a history of rapidly re-offending subsequent to his release from prison.
(b)… Mr Pengelly has two protection orders in force against him, which were made final in 1998 and 2011. The protection orders protect two of his ex-partners …
(c)In 2011 Mr Pengelly was convicted of family violence offences including male assaults female and five convictions for breaching a protection order. Other serious convictions for violence include kidnapping, wounding with intent to cause grievous bodily harm committed in 2003, and aggravated robbery with a firearm committed in 2001.
(d)In 2013 Mr Pengelly was convicted of a number of serious violent offences, including attempted murder and threatening to kill, and was sentenced to 8 years and 8 months imprisonment. He was made subject to an ESO upon release from that sentence in 2021 …
(e)His violent offence history, both detected and undetected, has taken place across varying contexts, including his gang associations, intimate relationships, his interactions with police, when he considers others have wronged or slighted him, and when he believes an individual is suspected of having committed sexual offending against children.
8 To the extent it is relevant.
[10] In terms of the s 107IAA criterion—intense drive, desires or urges to commit acts of violence—in the 2021 ESO Judgment, I adopted the opinion of Ms Richards, in particular observing:
[38] Ms Richards opines that Mr Pengelly has historically displayed an intense drive, desire or urge to commit acts of violence. While his tendency toward violent behaviour reduced during his recent incarceration, Ms Richards nevertheless opines that the environment stressors that have previously precipitated Mr Pengelly’s violent behaviour will again be present. She says this will allow the desires, drive or urge to re-emerge under exposure to lesser restrictions. Ms Richards considers this may remain particularly relevant in the context of Mr Pengelly’s intimate relationships, but may extend to peers and strangers.
[11] As it has transpired, the Chief Executive asserts Mr Pengelly, after initial satisfactory progress on his ESO, has engaged in behaviours that are both non- compliant with the conditions of the ESO and point to a very high risk of relevant violent offending. The Chief Executive’s case, put shortly, is that the features of Mr Pengelly’s make-up and behaviour that led correctly to the s 107I assessments in 2021 all remain present, if not more strongly, in 2025.
ISOs—the statutory regime
[12] An ISO is a temporary measure providing for the supervision of an offender before an application for an ESO can be determined, in circumstances where the offender is not otherwise subject to release conditions. Section 107FA of the Act provides:
107FA Sentencing court may make interim supervision order
(1)This section applies if, before an application for an extended supervision order is finally determined, 1 or more of the following events occur:
(a)the offender who is the subject of the application is released from detention:
(b)the offender who is the subject of the application ceases to be subject to an extended supervision order:
(c)the offender who is the subject of the application fails to appear at the hearing of the application and is brought before the court under a warrant issued under section 107G(3):
(d)an offender who is a person described in section 107C(1)(b) arrives in New Zealand.
(2)The sentencing court may, on application by the chief executive, order that, until the application for an extended supervision order is finally determined, the offender is subject to the supervision conditions specified in the order.
(3)When the court makes an interim supervision order, it may impose any of the standard conditions that are (under section 107JA), or special conditions that may be (under section 107K), imposed under an extended supervision order.
(4)If, under an interim supervision order, the court imposes an intensive monitoring condition or residential restrictions, the period for which the interim supervision order is in force is not to be taken into account for the purpose of the limits specified in section 107K(3)(b) and (ba).
(5)The court may suspend an interim supervision order subject to any conditions that the court thinks fit.
(6)An interim supervision order ceases to have effect when the application for an extended supervision order is finally determined or discontinued.
[13]Section 107FA does not prescribe the test for making an ISO.
[14] Having regard to the Supreme Court’s decision in Chisnall v Chief Executive of Department of Corrections (Chisnall), in relation to interim detention orders under the Public Safety (Public Protection Orders) Act 2014,9 the appropriate test for the making of an ISO under the (Parole) Act is that the Court must be satisfied the statutory criteria for making an ESO are made out.10
[15] As in the case of the making of an ESO under s 107IAA, the requirement the Court be “satisfied” of criteria connotes no onus of standard of proof, but instead requires the Court to make up its mind on the evidence.11 The Court makes its assessment on a provisional basis and often on untested evidence.12 Pursuant to the Court of Appeal’s decision in Chisnall v Attorney-General, the making of an ISO (just
9 Chisnall v Chief Executive of Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [32].
10 See Chief Executive of Department of Corrections v Ihimaera [2017] NZHC 2228 at [14].
11 Kiddell v Chief Executive of Department of Corrections [2019] NZCA 171 at [25].
12 Ihimaera, above n 10, at [14].
as with the making or continuation of an ESO) will require “strong justification” (albeit in relation to an ISO on a provisional assessment of evidence).13
[16] Mr Pengelly’s existing ESO was sought (and the further ESO is applied for) upon the basis of violent offending. The most recent offence for which Mr Pengelly was eligible to have an ESO imposed against him was the attempted murder committed on 12 October 2012. Until the Act was amended, with effect from 12 December 2014, an ESO could be imposed only against child sex offenders.
[17] Mr Bailey submits that this timing issue is important in light of the Chisnall jurisprudence, having regard to the element of retrospectivity whereby Mr Pengelly’s ESO became statutorily authorised after the occurrence of the event relied on.
[18] I do not consider this aspect of statutory history alters the approach the Court must take—the Court is obliged to not impose an ESO (or ISO) unless there is “strong justification”.
[19] On the facts of this case, where the two days the parties require for an ESO hearing have been allocated a hearing in February 2026, (following previous adjournments), Mr Bailey further submits the discretionary imposition of an ISO of at least six months’ duration would be wrong, because it involves a breach of s 5 New Zealand Bill of Rights Act 1990. I do not accept that submission to the extent it suggests the discretion is entirely removed by reason of the lengthy period before an ESO can be heard and determined. The fact the ISO would be in force for at least six months is a matter to be weighed when the Court exercises its discretion.
Principles relating to the making of ESOs
[20] The general principles relating to the making of ESOs as they applied in 2021 were set out in the 2021 ESO judgment, and I adopt them as if set out here. In relation to the exercise of discretion under s 107I(2) of the Act, and the requirement for the Court to recognise the extent to which the offender’s freedoms under NZBORA are substantially impinged upon, the relevant principles are now importantly informed by
13 R (CA586/2021) v Chief Executive of Department of Corrections [2022] NZCA 225 at [53] citing
Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [190].
the Chisnall jurisprudence and the requirement of “strong justification” before any order is imposed.
[21] In relation to the assessment of “very high risk” under s 107I(2)(b)(ii) of the Act, the decision of Cooke J in Department of Corrections v Gray post-dates the 2021 ESO Judgment.14 Cooke J concluded, in light of the Chisnall decision, that the very high risk criterion involved “an immediate risk of something that is highly likely to happen” if an ESO were not granted.15 I read the subsequent decision of the Court of Appeal in Mosen v Chief Executive of the Department of Corrections as rejecting any temporal requirement—the “very high risk” criterion relates, not to the imminence of risk, but to its likelihood of occurrence.16 To the extent Cooke J explored what, if any, protection the ESO conditions can provide, I find the conditions here are meaningful. The opinion of Mr Els in that regard is merely his opinion but it accords with my sense of the value of conditions that will apply.
Should I make an ISO?
General
[22] Mr Pengelly is now 52 years old. He has a lengthy criminal history with significant features I have identified at [9] above.
[23] The Chief Executive’s application for an ISO relies primarily on three sources of information, namely the history of Mr Pengelly’s conduct while subject to his current ESO (including events leading to seven outstanding charges involving alleged breaches); transcripts of telephone conversations between Mr Pengelly (from prison) and his partner; and two health assessment reports (10 November 2023 and 16 April 2024) of Stephen Els, a clinical psychologist with the Department.
[24] Relevant history, including in relation to the telephone conversations, was exhibited in an affidavit of Joshua Whitworth, a probation officer with the Department.
14 Department of Corrections v Gray [2021] NZHC 3558.
15 At [23].
16 Mosen v Chief Executive of Department of Corrections [2022] NZCA 507, (2022) 30 CRNZ 751 at [27].
ESO history
[25] Within months of the imposition of the ESO in 2021, Mr Pengelly tested positive for cannabis use. Through 2022 and 2023, Mr Pengelly displayed, in relation to two intimate relationships with women and a third progressing towards such a relationship, concerning behaviours which Mr Els considers fall within the category of what has been professionally recognised as “Offence Parallelling Behaviour” (OPB). The behaviours identified by Mr Els referred to derogatory communications about a desire to engage in sex; behaviour that appeared to be in the nature of stalking with frequent and repeated returns to the women’s vicinities (both day and night) after the relationship came to an end. In January 2023, one partner reported controlling behaviour that included Mr Pengelly asking questions about long-term male friends, which appeared to be driven by jealousy and possessiveness.
[26] Mr Els concluded Mr Pengelly had continued to engage in high-risk behaviours since his release into the community in July 2021, and has not utilised his safety plan and has required strong messaging from Community Corrections to desist from OPBs.
[27] When Mr Els completed his second report in April 2024 (six months after the first) he found there had been a steady decline in Mr Pengelly’s compliant behaviour. He noted, in particular, an increased disregard for ESO conditions, including several breaches, a decrease in constructive interactions with probation staff, an increase in hostile communications, and an engagement in secretive and covert behaviours. Of concern, Mr Els observed that some problem behaviours are related to the previously noted pattern of controlling woman in the context of an intimate relationship. Mr Els noted a threat in the telephone conversations to his partner of serious violence towards a male in her company.
Outstanding charges
[28] Mr Pengelly is at present subject to seven outstanding charges in relation to allegations of breaching his ESO:
(a)breach of ESO (consuming methamphetamine.) This matter was heard at a Judge-alone trial before her Honour Judge Elkin in the District Court at Christchurch on 2 July 2025. The decision is reserved;
(b)breach of ESO (entering into an intimate relationship without probation officer approval); and breach of ESO (associating with a person aged under 16 years without approval). These matters are scheduled for a jury trial in the Christchurch District Court on 1 September 2025. It is these charges which are reliant on the contents of the prison phone calls;
(c)breach of ESO (consuming alcohol); and breach of ESO (associating with an under 16 year old, the allegation being that there was a baby in the same room). These matters are scheduled for jury trial in the week of 8 September 2025; and
(d)breach of ESO (consuming methamphetamine) and breach of ESO (associating with an under 16 year old by attending Youth Court with her). These matters are next to be called at pre-trial call over on 25 September 2025.
[29] I observe that these remain charges and do not represent established facts. In the present context, I view their primary relevance as indicating to some extent a tendency for Mr Pengelly to expose himself to risky situations.
The telephone conversations
[30] As noted, Mr Els has had the opportunity to consider and comment on Mr Pengelly’s telephone conversations from prison.
[31] As the record of those conversations has been relevant in District Court proceedings, they have been the subject of a ruling in that court. The District Court ruled the conversations admissible.17 The Court of Appeal subsequently dismissed Mr
17 Department of Corrections v Pengelly [2024] NZDC 30504.
Pengelly’s application for leave to appeal the District Court ruling, on the basis the proposed appeal appears to lack merit.18
[32] In the present context, ss 107H(2) and 107F(3) of the Act are also relevant— the Court is entitled at any hearing in relation to an ESO to receive and take into account any evidence, whether or not it would be admissible in a court of law.
[33] Mr Els has correctly identified in my view the concerning content of aspects of Mr Pengelly’s telephone conversations with his partner. There is a clear violent preoccupation, particularly in the conversation that occurred on 26 February 2024, which was at the same time marked by jealous, angry, controlling behaviour.
The opinion of Mr Els
[34] I have referred to Mr Els’ concluding opinions in relation to Mr Pengelly’s increasingly non-compliant conduct. Mr Els also specifically addressed the s 107IAA criteria. He concluded:
(a)Mr Pengelly still has an intense drive, desire or urge to commit acts of violence—that tendency, also dormant at times, becomes activated under certain circumstances. It may manifest itself in the future in certain contexts. Information available to Mr Els since his November 2023 report supports the continuing existence of intense drive, desire or urge;
(b)Mr Pengelly’s OBDs for extreme aggressive volatility continue to be present, albeit curbed somewhat by the management and support of his ESO;
(c)these features of Mr Pengelly’s functioning require careful risk management strategies—the personal phone calls demonstrate extreme aggressive volatility, particularly his jealousy and reaction to the perceived presence of another male;
18 Pengelly v Chief Executive of the Department of Corrections [2025] NZCA 305.
(d)Mr Pengelly has over his lifetime appeared to harbour vengeful intentions towards others that have led to the commission of serious relevant violent offences, expressed when Mr Pengelly has felt rejected, and is particularly evident in his history of threats to and violent harm of partners—Mr Els concludes a hostile mindset drives a vengeful intent;
(e)Mr Pengelly’s past behaviour shows a pattern of planning to meet a premeditated goal across contexts and time, with his most recent violent offence and other violent offending being the hallmarks of planning when Mr Pengelly is not experiencing heightened emotional states— Mr Pengelly appears to have struggled to desist from such behaviour even when directly challenged by Corrections staff. Mr Els opines that Mr Pengelly has the capacity to engage in planning violent behaviour when stressed, provoked or seeking personal gain;
(f)Mr Els concludes Mr Pengelly is clearly of limited self-regulatory capacity—he continues to exhibit poor capacity for self-control and interpersonal aggression, especially when he has experienced negative emotions; and
(g)while Mr Pengelly has appeared to Mr Els to have an increased understanding of the impact of his past violent offending upon others since the imposition of his ESO and he appears to have empathy for the harm done, Mr Els concludes that this does not appear to have resulted in consistent behavioural change in the more recent situations. Mr Els sees a likely inconsistency of empathic response in situations where Mr Pengelly thinks he has been rejected or wronged.
[35]For actuarial risk assessment, Mr Els used most recently the Risk of Conviction
*Risk of Imprisonment (RoC*Rol) tool. Mr Els also had access to the assessments previously using the Pyschopathy Checklist: Screening Version (PCL:SV) tool (2021) and the Violence Risk scale (VRS) tool (2021). Mr El considered in November 2023
that the risk of Mr Pengelly committing a further violent offence within the next 10 years while in the community was high.
[36] For his April 2024 report, Mr Els took into account Mr Pengelly’s further “concerning behaviours” (since the November 2023 report) leading him to conclude Mr Pengelly now poses a very high risk of committing a further relevant violent offence while in the community.
[37] In relation to the endurability of Mr Pengelly’s risk factors, Mr Els in the November 2023 report concluded:
While he had made some positive gains and demonstrated positive interactions with others, this would likely be insufficient to decrease his risk of violent offending when he feels that he has nothing to lose or that he can only resolve issues through violence. It is considered that Mr Pengelly being subject to an ESO, with associated intensive supervision, has played an important role in the management of possible violent behaviour by him. In consideration of the above, Mr Pengelly’s estimated violent risk is considered to remain relevant into the longer term.
Current conditions
[38] The current conditions of Mr Pengelly’s ESO are the standard conditions together with special conditions.
Discussion
[39] I recognise Mr Els’ assessments of Mr Pengelly remain at this point untested. I also recognise Mr Els’ assessments represent his opinions which are not to be simply accepted by this Court but are to be the subject of assessment as part of the evidence overall. However, when I have regard to Mr Els’ reports in the context of Mr Pengelly’s criminal history, and the evidence of his conduct while subject to the existing ESO, I am provisionally satisfied Mr Pengelly has had a pervasive pattern of serious violent offending and that he presents the risk identified in s 107I(2)(b)(ii). The circumstances present in Mr Pengelly’s history and the up-to-date assessments of Mr Els provide strong support to justify the making of an ISO. While I recognise the undesirability of and the impact upon Mr Pengelly of being subject to the restrictions of an ISO for a lengthy period before the full assessment of evidence at an ESO hearing, including in the light of such findings as the District Court may make in
relation to the present charges, the strength of the evidence of risk in this case weighed in the interest of the public protection justifies the exercise of the discretion to make an ISO.
Result
[40] I order under s 107FA Parole Act that, until the application for an ESO is finally determined, Mr Pengelly is subject to the following supervision conditions:
(a)the standard conditions set out in s 107JA Parole Act;
(b)Mr Pengelly is:
(i)not to possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for him by a health professional;
(ii)to obtain the written approval of a probation officer before starting or changing his position or place of employment including voluntary and unpaid work, training or education programme and to notify a probation officer if he leaves his position of employment;
(iii)to reside at his approved address or any other address proved in writing by a probation officer and not to move from that address unless he has the prior written approval of a probation officer;
(iv)to submit to electronic monitoring as directed by a probation officer in order to monitor his compliance with any conditions relating to his whereabouts;
(v)to attend a psychological assessment and attend, participate and complete any recommended treatment as directed by a probation officer;
(vi)to disclose to a probation officer at the earliest opportunity details of any intimate relationship which commences, resumes or terminates;
(vii)not to travel north of Kaikoura, Westport and Murchison as defined by a probation officer in writing unless he has the prior written approval of a probation officer;
(viii)to comply with the requirements of electronic monitoring and provide unimpeded access to his approved residence by a probation officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as detected by a probation officer; and
(ix)to attend any alcohol and drug assessment and attend, participate in and complete any treatment or counselling as directed by a probation officer.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
A J Bailey, Barrister, Christchurch
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