Chief Executive of the Department of Corrections v Taakimoeaka
[2020] NZHC 3454
•18 December 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-92
[2020] NZHC 3454
UNDER the Parole Act 2002 IN THE MATTER
an application for an extended supervision order
BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
PENISIMANI TAAKIMOEAKA
Respondent
Hearing: 1 December 2020 Counsel:
P A Currie for Applicant M Starling for Respondent
Judgment:
18 December 2020
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 18 December 2020 at 4.15 pm
Registrar/Deputy Registrar Date:
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v TAAKIMOEAKA [2020] NZHC 3454
[18 December 2020]
[1] The Chief Executive of the Department of Corrections applies, pursuant to s 107F Parole Act 2002, (the Act) for an Extended Supervision Order (ESO) in respect of Penisimani Taakimoeaka for a period of five years.
[2] The criteria for an order are that an offender has or has had a pervasive pattern of serious sexual or violent offending and presents a high risk of committing a relevant offence in future.1
Mr Taakimoeaka’s qualification as an “eligible offender”
[3] Mr Taakimoeaka qualifies as an “eligible offender” against whom an ESO may be made by reason of the definition in s 107C of the Act, which relevantly provides:
107C Meaning of eligible offender
(1)In this Part, eligible offender means an offender who—
(a)is not subject to an indeterminate sentence but is a person who has been sentenced to imprisonment for a relevant offence (and that sentence has not been quashed or otherwise set aside) and has not ceased, since his or her latest conviction for a relevant offence (that has not been quashed or otherwise set aside), to be subject to any or all of the following:
(i)a sentence of imprisonment (whether for a relevant offence or otherwise):
(ii)release conditions (whether suspended or not):
(iii)an extended supervision order; …
Mr Taakimoeaka’s history of sexual offending
[4] On 18 July 2014, Mr Taakimoeaka was sentenced in the High Court at Blenheim to seven and a half years’ imprisonment on charges of indecent assault, assault with intent to commit rape and sexual violation by unlawful sexual connection.2
[5] Each of these convictions was for a “relevant sexual offence” as defined in s 107B(2) of the Act.3
1 Parole Act 2002, s 107I(2).
2 R v Taakimoeaka [2014] NZHC 1654.
3 Respectively pursuant to ss 135, 129(2) and 128B(1) Crimes Act 1961.
[6] In terms of s 107C of the Act, Mr Taakimoeaka qualifies as an eligible offender because:
(a)he is not subject to an indeterminate sentence;
(b)his sentences have not been quashed or otherwise set aside; and
(c)he has not ceased, since his last conviction for a relevant offence, to be subject to release conditions.
Mr Taakimoeaka’s history of sexual offending
[7] The following account is based on Mr Taakimoeaka’s convictions and the official information accessed by Gillian Roper, the Department of Corrections’ Senior Psychologist who has presented the Health Assessment Report required under s 107F(2) of the Act. Mr Taakimoeaka’s previous sexual offending occurred in March 2005 and the index offending in March 2013. Significantly, Mr Taakimoeaka maintains that the sexual events involved in the 2005 offending occurred consensually. He minimises the 2013 offending.
Offending in March 2005
[8] In March 2005, Mr Taakimoeaka engaged in serious sexual offending which resulted in his being convicted of sexual violation by unlawful sexual connection, rape and attempted sexual violation by unlawful sexual connection.
[9] Mr Taakimoeaka and a friend approached the 16 year old female victim and made sexual advances that were objected to by her. The victim was subsequently physically assaulted by a female associate of Mr Taakimoeaka before he followed her home. The summary of facts refers to Mr Taakimoeaka having repeatedly over the course of an evening sexually assaulted the victim, including by forcing her to have oral genital contact and by raping her. He remained at her address after she left and he sexually assaulted her again when she returned some time later.
[10] Mr Taakimoeaka explained to Ms Roper that he had been drinking with his associates prior to the offending. He maintains that his sexual interaction with the victim was consensual.
[11] For this offending, which occurred when Mr Taakimoeaka was 23 years old, he was sentenced to six and a half years’ imprisonment. He was released from prison in October 2010.
Offending in March 2013
[12] Mr Taakimoeaka’s offending in March 2013 resulted in the convictions I have referred to at [4] above.
[13] On that occasion, Mr Taakimoeaka entered a Picton house where two 16 year old girls were asleep in one bedroom. He climbed through a window. He took one of the girls into a spare room for the purpose of raping her, placed her on the bed and inserted his finger into her vagina. She managed to escape back to the other bedroom. Mr Taakimoeaka followed her back into that room where he groped the thigh of the second victim. He stopped his offending only when a male occupant of the house came into the room in response to the young woman’s screaming.
[14] Mr Taakimoeaka was found guilty of the charges by a jury in the Blenheim District Court, whereupon the District Court Judge transferred his case to the High Court so that a sentence of preventive detention could be considered.
[15] In this Court, Collins J sentenced Mr Taakimoeaka to seven and a half years’ imprisonment with a minimum period of imprisonment of four years.
[16] Ms Roper has described Mr Taakimoeaka’s account of this offending as endorsing aspects of minimisation whereby he justified his motive for breaking into the property being to steal drugs.
The ESO application
[17] The ESO application was brought on 2 July 2020. The application was accompanied by the report (dated 6 March 2020) of Ms Roper as health assessor. She gave oral evidence at the hearing before me.
[18] The application was (in August 2020) set down for this hearing. The timing took into account the fact that Mr Taakimoeaka had instructed Mr Starling to instruct an independent expert to prepare a separate report. Such a report was not subsequently filed. The only health assessment evidence was therefore that of Ms Roper.
The statutory tests
[19]Section 107I of the Act establishes the Court’s jurisdiction to make an ESO:
107I Sentencing court may make extended supervision order
(1)The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.
(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.
(3)To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.
(4)Every extended supervision order must state the term of the order, which may not exceed 10 years.
(5)The term of the order must be the minimum period required for the purposes of the safety of the community in light of—
(a)the level of risk posed by the offender; and
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
…
[20] Under s 107I, there are therefore two distinct criteria, both of which must be satisfied:4
(a)the Court is concerned with present or past behaviour, which determines an eligible offender’s susceptibility to an ESO; and
(b)the Court is concerned with future risk, which ultimately determines whether an ESO ought to be made.
[21] Under s 107I, the health assessor’s report may be relevant to both pervasive pattern and future risk, because the Court must consider the report when addressing both criteria.5
[22] Under s 107F(2A) of the Act, the health assessor’s report (when the application for an ESO is based on high risk under s 107IAA(1)) must address whether there is a high risk that the offender will in future commit a relevant sexual offence and whether the offender exhibits each of the traits and behavioural characteristics specified in s 107IAA(1), that provision stating:
(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:
4 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [17].
5 Kiddell, above n 4, at [18].
(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.
[23] The Court of Appeal in Kiddell v Chief Executive of the Department of Corrections recognised that the assessor’s opinion on those matters may inform the Court’s conclusions on both of the s 107I(2) criteria.6 By way of illustration, the Court added that “an assessor may conclude that an offender exhibits a predilection or proclivity for offending because he has a past pattern of behaving in that way”.7
[24] Pursuant to s 107F(3) of the Act, the information contained in the report need not qualify as admissible evidence in criminal or civil proceedings, the assessor being entitled to take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not it constitutes an offence or has been the subject of charge or conviction.
[25] The Court of Appeal recognised in Kiddell that the terms “pervasive pattern”, “serious sexual offending” and “high risk” indicate that the assessment requires judgements of quality and degree, the decision-making exercise being fact-specific and evaluative.8
[26] The term “sexual serious offending” used in s 107I(2)(a) of the Act is to be given its ordinary meaning and is not confined to relevant sexual offences as listed in s 107B(2).9
[27] A pervasive pattern is one that is sufficiently characteristic of the offender to serve as a predictor of future conduct.10
6 Kiddell, above n 4, at [19].
7 At [19], citing Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 [Holland (CA)] at [41]–[42].
8 At [21].
9 At [22], citing Holland v Chief Executive of Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 at [13]–[14].
10 At [23].
[28] The Court, when considering whether an offender presents a higher risk of committing relevant sexual offences in the future, will take into account anything that may exacerbate or mitigate risk, such as community support and the offender’s response to any treatment that has been undertaken.11
[29] The requirement under ss 107I(2) and 107IAA of the Act that the Court be “satisfied” means that the Court must make up its mind on the evidence, with no onus or standard of proof applying.12
[30] Once the Court is satisfied under s 107I of the Act that the statutory criteria have been met, the Court has a discretion to refuse an order as indicated by the provision (in s 107I(2)) that the Court may make the ESO.13 An ESO engages rights protected under the New Zealand Bill of Rights Act 1990 — when deciding whether to make an ESO, and for how long, courts must recognise that the order may impinge substantially on the offender’s freedom of movement and association.14
A pervasive pattern of serious sexual offending?
[31] Mr Taakimoeaka, as noted in Mr Harvey’s submissions, amassed nearly 30 previous convictions by the age of 32. The convictions date from 2003 to 2013 (for four years of which he was in prison) and occurred between the ages of 15 and 25 years. Apart from the 2005 set of sexual offences and the 2013 set of sexual offences, the other convictions were of a different nature (such as dishonesty, property damage, driving offences and in one case, aggravated robbery). In my consideration of the present application, I put to one side that part of his record which did not involve serious sexual offending.
[32] At the time Collins J sentenced Mr Taakimoeaka for the 2013 offending, Mr Taakimoeaka was the subject of an assessment report for the consideration of
11 At [24].
12 At [25], citing Holland (CA), above n 7, at [12].
13 At [26], citing Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [9].
14 At [27], citing Holland (CA), above n 7, at [45].
preventive detention. In sentencing Mr Taakimoeaka, his Honour focussed on the risk of reoffending posed by Mr Taakimoeaka. His Honour stated:15
[21] You have come perilously close to being sentenced to preventive detention because of:
(1)the emerging pattern of your serious offending;
(2)the seriousness of the harm to the community caused by your offending;
(3)the possibility of you committing serious offences in the future; and
(4)the absence of efforts on your part to date to address the causes of your offending.
[22] I was particularly concerned by the assessment of Mr Carlyon, a psychologist, who believes there is a medium to high risk of you committing serious sexual offences in the future.
[33] It is to be recognised that the Judge’s risk assessment (in relation to preventive detention) took into account Mr Taakimoeaka’s previous offending which at that point related to matters other than serious sexual offending. But the risk assessment which his Honour noted, by reference to the report of the psychologist, was specifically in relation to the medium to high risk that Mr Taakimoeaka would commit serious sexual offences in the future.
[34] It has transpired that the degree of risk assessed in 2014, as to a pattern developing, eventuated in the 2013 sexual offending.
[35] For Mr Taakimoeaka, Mr Starling submitted that the sexual offending, although serious, cannot be classified as pervasive because, while Mr Taakimoeaka has committed a large number of offences, it is only the qualifying offences which fall to be considered when determining whether the sexual offending is pervasive.
[36] In determining whether Mr Taakimoeaka has or has had a pervasive pattern of serious sexual offending, I am bound to follow the observations of the Court of Appeal in Kiddell, and in particular those identified at [25] and [27] above. The decision- making exercise is fact-specific and evaluative and the assessment requires
15 Taakimoeaka, above n 2 (footnote omitted).
judgements of quality and degree. A pervasive pattern is one which is sufficiently characteristic of the offender to serve as a predictor of future conduct.
[37] Mr Taakimoeaka’s offending clearly qualifies as displaying a pervasive pattern when these tests are applied. In Mr Taakimoeaka’s case, the pervasive pattern, serving as a predictor of future conduct, was clearly to be seen at the point, in March 2013, when, against the background of his March 2005 offending, Mr Taakimoeaka committed his Picton offending.
A high risk of committing relevant sexual offences in future?
[38] In this case the Court has the assistance of the report of a very experienced psychologist in Ms Roper. Her report was prepared after interviews with Mr Taakimoeaka over a period when he requested further time.
[39] His full interview took place over three hours in January 2020. Ms Roper’s report was dated 6 March 2020. It was in Mr Taakimoeaka’s hands (in draft) for review in April 2020.
[40] In the absence of any report obtained by Mr Taakimoeaka, the only expert evidence available to the Court is that of Ms Roper.
[41] Ms Roper assessed Mr Taakimoeaka as being high risk for future sexual offending. While recognising that there have been only two occasions of sexually abusive conduct, Ms Roper opined that the nature of those offences reflects a “concerning offence process”. Specifically, she recorded that Mr Taakimoeaka has engaged in impulsive, aggressive and intrusive behaviour directed towards a stranger and someone with whom he had little previous contact. He then continued to pursue his desire for sexual gratification despite overt resistance in a manner reflective of high risk-taking behaviour and a pressure to pursue his sexual needs with little regard for the consequences for himself or the victims. His reoffending within a limited time as an adult in the community (approximately three years after release from prison) occurred despite that sanction.
[42] In reaching her opinion, Ms Roper relied on her current health assessment and actuarial instruments. She noted clinical risk factors in order to evaluate the risks. Those measures included instruments which assess static and dynamic risk factors for sexual recidivism, details of which Ms Roper provided as an appendix to her report.
[43] Ms Roper reported that Mr Taakimoeaka’s RoC*Rol score indicated a moderate risk of “imprisonment general offending” within five years of being released from prison.16
[44] On the Static-99R risk tool (specifically designed in relation to sexual recidivism) Mr Taakimoeaka’s score placed him in the Level IVb (well above average risk) category. By reference to the group which Mr Taakimoeaka most closely resembles, Ms Roper found that the five-year sexual reoffending risk for Mr Taakimoeaka is 27.2 per cent, placing him in the 97th percentile, defined as a mid- point average. That is, out of 100 sexual offenders, 96 would have a lower score than Mr Taakimoeaka, 2.5 would have the same score and 1.5 would have a higher score.17
[45] Ms Roper reported that on the Violence Risk Scale: Sexual Offender version (VRS:SO), Mr Taakimoeaka was assessed as overall being in the Level IVa (above average risk category).18
[46] In relation to the dynamic items on the VRS:SO version as a whole, Mr Taakimoeaka had scores that indicated that the following items were strongly or moderately related to his recidivism risk: sexual compulsivity, offence planning, elements of criminal personality, cognitive distortions, interpersonal aggression, problems with emotional control, insight, substance abuse, community support,
16 RoC*Rol being an actuarial risk measure developed for the Department of Corrections to assist in the prediction of an offender’s risk of imprisonment for all types of offending following reconviction.
17 The Static-99R is an empirically-derived risk tool designed to evaluate the risk of sexual recidivism based on commonly available demographic and criminal history information, generating five risk categories from Level 1 (very low risk) to Level IVb (well above average risk). This is a risk estimate based on static factors only.
18 VRS:SO is a risk assessment instrument based on both static and dynamic risk predictors, the normative sample being derived from a prison-based sample. On the VRS:SO analysis, Ms Roper found Mr Taakimoeaka had a score similar to those found to be in the 70.3rd percentile for the Sexual Deviancy sub-scale and the 71.6th percentile for the Criminality sub-scale score, while for the Treatment Responsivity sub-scale (measuring poorer treatment outcome) this was at the 89.6th percentile.
release to high risk situations, the presence of a sexual offending cycle, problems with compliance with supervision, treatment compliance and intimacy deficits.
[47]Ms Roper concluded:
At the current time despite having completed high intensity treatment a number of offence factors remain present including offence related cognitive distortions and this is consistent with his scores on VRS:SO and the Static-99- R which suggest he is in the 97th percentile.
[48] Ms Roper referred to the protective factors which have been in place for Mr Taakimoeaka. She recorded:
In terms of protective factors, Mr Taakimoeaka has completed group treatment and individual treatment and developed some skills to manage risk associated with his offending and a safety plan. However, it is noted that during the current assessment Mr Taakimoeaka’s safety plan primarily focused on general affect regulation strategies and while he discussed aspects of sexual regulation, this seemed to lack specificity and focused on external factors such as distraction. In order for this plan to be robust and protective in assisting Mr Taakimoeaka to manage his risk of sexual offending he needs to demonstrate an understanding and capacity to utilise internal coping strategies specifically associated with his sexual offending. It is further noted that his capacity to generalise this understanding beyond what was discussed during treatment was limited due to his reluctance to discuss sexual motivation or intent in the index offending and denial of rape in the first offence.
[49] Ms Roper then provided a risk parameter statement, based on her analysis of static and dynamic risk factors along with specific information relating to Mr Taakimoeaka’s offence pattern. She stated:
It is considered that there is a high risk that Mr Taakimoeaka will engage in relevant sexual offending within ten years of release. Based on his previous offending, should Mr Taakimoeaka sexually re-offend, this would most likely to be against a post pubescent female who Mr Taakimoeaka considers vulnerable and could potentially be either a stranger or an acquaintance. Any future offending is likely to be highly opportunistic in nature, although a degree of proximal planning is evident in his sexual offending. The most likely risk scenario for future offending would be impulsive in nature in a context of being intoxicated or in the presence of unmet sexual needs. Such offending would likely involve indecent assault, unlawful sexual connection and may be as intrusive as rape. Dynamic factors associated with increased risk for Mr Taakimoeaka include lack of lifestyle structure, substance abuse, engaging with antisocial peers, offence related distortions and sexual entitlement, relationship dysfunction, and a lack of consideration of consequences. Until such time as Mr Taakimoeaka can demonstrate the ability to maintain appropriate sexual relationships and manage his sexual preoccupation and entitlement to engage in sexual behaviour his risk will remain high.
[50] Ms Roper concluded that Mr Taakimoeaka had demonstrated an intense drive, desire and urge to commit relevant sexual offences. She further stated, with reference to his predilection or proclivity for serious sexual offending, that Mr Taakimoeaka’s criminal history reflects his sense of entitlement to have sex whenever he wants to irrespective of the consequences, reflecting a high degree of sexual preoccupation and objectification of women, with a proclivity to engage in sexually abusive behaviour. Ms Roper further found that Mr Taakimoeaka has poor self-regulation capacity and his convictions represent occasions where he has not been able to control his sexual urges, resorting to alcohol and drug use to cope with life stressors, at which point he has demonstrated he is more likely to make poor decisions including engagement in abusive behaviour.
[51] Ms Roper found that Mr Taakimoeaka articulates limited responsibility and accountability for his offending and has limited insight into the choices and planning associated with his offending. He failed to express to Ms Roper specific remorse for his actions in the 2013 offending and continued to deny sexual motivation for breaking into the property in question. Ms Roper added that Mr Taakimoeaka’s ongoing endorsement of cognitive distortions involves a deflection of responsibility and a justification or minimisation of his actions, indicative of limited understanding or concern for his past or potential victims.
[52] At the times Ms Roper interviewed Mr Taakimoeaka and subsequently prepared her report, he remained in custody. He was subsequently paroled on 20 May 2020 and has since remained in a supported accommodation and programme situation with the Pathway Trust. He is currently subject to release conditions which expire (with his sentence) on 2 April 2021.
[53] Mr Starling referred Ms Roper to Mr Taakimoeaka’s current circumstances (of which he was also to give evidence). After his most recent Parole Board hearing, Mr Taakimoeaka no longer has to wear an electronically monitored bracelet. He has full- time employment five days a week. He regularly attends church on Sundays. He has entered into a relationship (which has been disclosed to his Probation Officer). He has curfew restrictions which he observes. He reports once weekly to his Probation Officer.
[54] Against the background of these matters, Mr Starling suggested to Ms Roper that there was little point in imposing an ESO on a person “where it’s going to be of no useful effect”.
[55] Ms Roper replied: “Okay. So Mr Taakimoeaka is certainly a gentleman that you describe who may very well be on a desistant Pathway.”
[56] Mr Starling pressed Ms Roper on whether continued monitoring, such as would be available under an ESO, would serve any purpose. This exchange occurred:
Q. So how is reporting once a week to a probation officer going to make any difference?
A. In terms of difference, what that would allow would be a level of accountability, a level of restriction, a protracted approach to more independence and demonstrating behaviour change across time. What we know is that people’s risk over time when they are free in the community with no other offending, not just sexual offending, but any offending including general offending, will actually over time reduce their risk so in Mr Taakimoeaka’s case, as we’ve already talked about, he’s considered to be in the well above average risk category and we have some research and I have some here if you’re interested in copies of it around one of the risk tools that I used was the static 99R and that the literature suggests that over time that risk will reduce as people are time free in the community. In Mr Taakimoeaka’s case, being the well above average risk category, he would need to be in the community for six years for that category to lower to the above average category and a minimum of 11 years in order for it to lower to the average category so in my opinion actually having support in that time to remain offence free in the community bodes well for him to be able to have a more long-term offence free lifestyle in the future.
[57] When Mr Starling suggested to Ms Roper that the requirements of an ESO would be unnecessarily intrusive, Ms Roper responded that she would not see the arrangements as “intrusive” but actually sees them as supportive. She explained that Mr Taakimoeaka needs time for replacement behaviours to develop. She recognised that there have been positive developments and that her interactions with Mr Taakimoeaka have also been positive and respectful but she continued: “we can’t lose sight of the fact of where his risk actually currently stands and what is required in order for that to be demonstrated that it’s reduced”.
[58] Mr Starling also cross-examined Ms Roper as to the period since her report was prepared (before Mr Taakimoeaka’s release from prison).
[59] He suggested that because of the timing of the report, it over-stated the risk based on what Ms Roper would say if she wrote a report now. Ms Roper conceded that, across time where someone is released from prison their risk will naturally reduce if living an offence-free lifestyle, which would suggest that they are putting offence replacement behaviours in place. But Ms Roper stated that, with Mr Taakimoeaka’s level of risk, any change in his score would not be to the degree that he would move out of the high risk range.
[60] Given that the Chief Executive has applied for an ESO of five years’ duration, I asked Ms Roper what makes an ESO of that duration more appropriate than for any other period. Ms Roper replied:
So in terms of the length of order that the department has requested it would be safe to say that should Mr Taakimoeaka go five years in the community and continue on the desistance pathway that seems to be in place now that he would hopefully by then have had a lot less scaffold and so on around him and would have had an opportunity to demonstrate ongoing replacement behaviours. The demonstration of ongoing replacement behaviours are seen as protective and the longer someone’s out in the community demonstrating that then the less likely they are to re-offend, not that they may never re-offend because we know that that’s not true but the risk does slowly go down. So I’m not sure in terms of five or six years particularly why they’ve gone five years and not longer or shorter but in my view probably by five years if Mr Taakimoeaka was on a desistance pathway then risk would be looking quite different in terms of his capacity to manage it and replacement behaviours which would be seen as positive. Should he not demonstrate that by that period of time, my understanding is the department can request another order and, equally, should he actually show a desistance earlier and some persistence in that he can also apply to look to have an order reduced is my understanding.
[61] Mr Taakimoeaka was also called by Mr Starling to give evidence. He confirmed the details of his current living and working arrangements. He stated that he has made a commitment to himself and God that he won’t drink or smoke drugs anymore.
[62] In cross-examination, he rejected Ms Roper’s opinion that he is at high risk of committing another relevant sexual offence. He conceded that he would see it is a good thing if the Department of Corrections could continue to have a condition that he not have alcohol. When questioned on the fact that his lengthy sentence on the 2005 offending had not stopped him from committing the 2013 offending, Mr Taakimoeaka said he had not had a chance the first time to have the alcohol education
and support that he has subsequently had. He suggested in his answers that he did not need ESO-type conditions to stop him from offending again because at the moment he gets that help from Pathway and all his supporters at his church.
Conclusion
[63] I accept the assessments made by Ms Roper. In particular, I find that there is a high risk that Mr Taakimoeaka will in future commit a relevant sexual offence.
[64] For the reasons identified by Ms Roper, it is to be expected that the level of risk posed by Mr Taakimoeaka will reduce over time but that will be achieved with a support network in place over the short to mid-term.
[65]Accordingly, I find that the criteria for an ESO are satisfied.
The appropriate term of the ESO
[66] Section 107I(5) provides that the term of the order must be the minimum necessary for community safety in light of:
(a)the level of risk posed by the offender; and
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
[67] Ms Roper, by reference to the instruments and tools she has utilised, stated that the significant level of risk is likely to remain at its level for a period of around six years. A period of that nature would provide the necessary time for the monitoring of progress by Mr Taakimoeaka.
[68] I am satisfied that Mr Taakimoeaka’s risk level is likely to look significantly different in five years’ time in terms of his capacity to manage his desistance pathway and replacement behaviours. Having regard to Ms Roper’s evidence, the Chief Executive’s request for a five-year term is appropriate.
Order
[69] There is an Extended Supervision Order in respect of Penisimani Taakimoeaka for a term of five years from the date of this order.
Osborne J
Solicitors:
Crown Solicitor, Christchurch Counsel:
M Starling, Barrister, Christchurch
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