Chief Executive of the Department of Corrections v Te Whata
[2024] NZHC 1121
•8 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-664
[2024] NZHC 1121
UNDER Section 107F of the Parole Act 2002 IN THE MATTER
of an application for an extended supervision order
BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
AARON TE WHATA
Respondent
Hearing: 2 May 2024 Counsel:
J Blythe and L Dalton for Applicant D A Ewen for Respondent
Judgment:
8 May 2024
JUDGMENT OF BREWER J
This judgment was delivered by me on 8 May 2024 at 2.30 pm
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell (Auckland) for Applicant D A Ewen (Wellington) for Respondent
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v TE WHATA [2024] NZHC 1121 [8 May 2024]
[1] The applicant applies for an extended supervision order (ESO) for the respondent, Mr Te Whata.
[2] Mr Te Whata does not oppose the application. However, he contends that the term of the ESO should be two years rather than the five years proposed by the applicant.1
[3] Despite Mr Te Whata’s concession that he should be subject to an ESO, I must still be satisfied that one should be imposed.
[4] The purpose of an ESO 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
[5] I am satisfied that Mr Te Whata is an eligible offender within the meaning of s 107C of the Parole Act 2002 (the Act). On 13 December 2023, Mr Te Whata was sentenced in this Court to six years, four months and two weeks’ imprisonment on a representative charge of attempted sexual connection with a child, seven charges of indecent acts on a child and one charge of assault on a child. Attempted sexual connection with a child and indecent act on a child are “relevant offences” as defined in s 107B(2) of the Act.
[6] Further, Mr Te Whata was sentenced in 1998 to a term of eight years’ imprisonment for two charges of sexual violation by rape, two charges of sexual violation by unlawful sexual connection, three charges of indecent assault and two charges of cruelty to a child. All the charges involved offending against children of adult women with whom he was living in an intimate relationship.
[7] The application for an ESO was filed on 18 December 2023. At that time, Mr Te Whata had not ceased to be subject to a sentence of imprisonment or release conditions. Mr Te Whata was released on parole on 13 December 2023 and his release conditions expire on 14 June 2024.
1 I heard evidence on this point from Mr Bauer, a registered clinical psychologist, who has written two reports on Mr Te Whata. At the hearing he gave me a memorandum dated 2 May 2024.
2 Parole Act 2002, s 107I(1).
[8] Therefore, Mr Te Whata can be made subject to an ESO if the statutory criteria are met.
[9]Section 107I provides:
(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.
(6)[Repealed]
[10] Section 107IAA(1) sets out the matters the Court must be satisfied of when assessing risk:
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:
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[11] The first inquiry is whether Mr Te Whata has, or has had, a pervasive pattern of serious sexual offending.3
[12] Mr Te Whata reported to Mr Bauer that he first noticed he was attracted to a pubescent female when he was around 18 years old, which was about six years before his first set of offending. That offending occurred between 1996 and 1997. The second set of offending occurred between 2007 and 2011. Both sets of offending involved young females who were the daughters of his then partners.
[13] I am satisfied that Mr Te Whata has, or has had, a pervasive pattern of serious sexual offending.
[14] The second step is to examine whether Mr Te Whata meets the qualifying criteria.4
[15] I note that the Court of Appeal held in Chief Executive of the Department of Corrections v Alinizi5 that the pre-conditions do not necessarily need to be presently manifested at the time the ESO is determined. The real question is whether the respondent has a particular characteristic such that it may manifest in the right set of circumstances.
3 Parole Act 2002, s 107I(2)(a).
4 Section 107IAA.
5 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468.
[16] I have had the benefit of two reports from Mr Bauer, a registered clinical psychologist with extensive relevant experience in forensic risk assessment. Mr Bauer appeared and was cross-examined in the hearing of the application.
[17] I am satisfied that Mr Te Whata displays an intense drive, desire or urge to commit a relevant sexual offence. Mr Te Whata described his high sex drive and pre- occupation with sex as well as a deviant sexual interest in pubescent females. Mr Bauer considers that in certain circumstances, such as if Mr Te Whata again was in a stepfather role, he would potentially wish to engage sexually with pubescent females.
[18] Mr Te Whata is now 52 years old. He reports his sexual interest in pubescent females arose when he was aged 18 years. His deviant sexual interest is longstanding.
[19] I am also satisfied Mr Te Whata has a predilection or proclivity for serious sexual offending. Mr Bauer is of that opinion and his reasons are logical and available. On the occasions of his offending, Mr Te Whata had access to adult partners and had a sexual interest in adult women. Yet, he sexually offended against two young female children. He offended against the second victim after being imprisoned for a lengthy period during which he undertook intensive treatment as a sexual offender against children. Nevertheless, he reoffended after release from prison when living in a household with a pubescent female child.
[20]Likewise, I am satisfied that Mr Te Whata has limited self-regulatory capacity.
[21] Mr Te Whata has now completed the intensive treatment course for sexual offenders against children for a second time. He is aware of the need for self- regulation and he has prepared a safety plan.
[22] Manifestly, Mr Te Whata’s capacity for self-regulation was too limited to prevent the second set of offending. The fact that he has repeated the therapy does not mean that he no longer has limited self-regulatory capacity. At the time of Mr Bauer’s first report, Mr Te Whata had yet to demonstrate sexual self-regulation in the community. In Mr Bauer’s second report he considers there are now indications
Mr Te Whata is trying to self-regulate in the community, however he has been in the community for only a few months and has been subject to supervision. I agree with Mr Bauer that Mr Te Whata will require significantly more time in the community in order to show that any progress is sustained.
[23] Finally, I am satisfied that Mr Te Whata displays both a lack of acceptance of responsibility or remorse for his past offending and an absence of understanding for or concern about the impact of his sexual offending on his actual victims and potential victims.
[24] That is not to say that Mr Te Whata does not express acceptance of responsibility, remorse and understanding or concern. Indeed, instilling these qualities is a focus of the programmes of treatment he has undertaken. But the issue is whether his expression of these qualities is material to mitigating his risk:6
[23] Offenders who present a high risk of committing a relevant sexual offence will not have the protective characteristics described in s 107IAA(1)(d). This is consistent with the statutory wording which speaks of “a lack of” and “an absence of” these protective characteristics. However, the absence (or lack) of these characteristics are indicia of high risk offenders only because these protective characteristics mitigate this risk. The focus must therefore be on whether the acceptance of responsibility, remorse, understanding or concern are material in the given case in the sense that they are present to a sufficient degree to mitigate the relevant risk. Parliament cannot have intended that any degree of presence of these protective characteristics (no matter how limited and whether or not in any way operative to mitigate the risk), would preclude a person from being assessed as being at high risk. Such an interpretation would plainly be inconsistent with the statutory purpose of public protection.
[emphasis added]
[25] I note that Mr Te Whata expressed remorse and acceptance of responsibility, and engaged in treatment, following his first set of offending. That did not prevent him from committing the second set of sexual offending.
[26] I am concerned that Mr Te Whata does not necessarily take full responsibility for his actions. As the applicant points out, in relation to the second victim, despite his acceptance of the summary of facts, Mr Te Whata has maintained that the offending
6 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218.
started when the victim was 10 years old and pubescent (as opposed to the victim being seven as stated in the summary). Mr Te Whata also denied any attempts at penile penetration of the victim.
[27] Similarly, Mr Te Whata expresses an understanding of the impact of his offending on his victims. But he demonstrated similar understanding following his first set of offending and still reoffended.
[28] Words alone are not enough. In the absence of sufficient time in the community to demonstrate that Mr Te Whata’s appreciation of these matters are present to a sufficient degree to mitigate his risk, then his previous offending displays either or both of the factors set out in s 107IAA(1)(d).
[29] The third step in my assessment is to consider whether there is a high risk that Mr Te Whata will in future commit a relevant sexual offence.7 I am satisfied that there is a high risk of this.
[30] Mr Bauer has made careful assessments of the threshold in s 107IAA. He has used clinical tools such as the Automated Sexual Recidivism Scale–Revised (ASRS-
R) and the Violence Risk Scale: Sexual Offence version (VRS:SO). On the former, Mr Te Whata is placed in Level IVa (Above Average) risk of further sexual offending. His VRS:SO score, based on dynamic and static risk factors, was originally assessed as being at the upper end of Level III (Average) and on re-assessment remains generally the same, although a little lower. Overall, Mr Bauer assesses Mr Te Whata’s risk of committing a further relevant sexual offence in the community as moderate to high. This would increase to the high level if he enters into an intimate relationship with a woman who has a pubescent child.
[31] Having reviewed all the materials provided to me, including the details of the two sets of offending, I am in agreement with Mr Bauer. I accept the applicant’s summary:
5.20Mr Bauer opines that any future sexual offending would most likely involve a female victim under 12 (and likely the daughter or child
7 Parole Act 2002, s 107I(2)(b)(i).
under the care of an intimate partner), potentially with coercion, there would be grooming to minimise the risk of offending being detected or disclosed, Mr Te Whata would likely have power or control over the victim (potentially with physical abuse or threats of the same) and the offending would likely continue for some time before being detected.
5.21Factors likely to increase Mr Te Whata’s risk of further sexual offending would include methamphetamine relapse, withdrawal from or deception of prosocial supports and/or associating with antisocial peers, increased negative emotions and returning to a criminal lifestyle.
[32] I note that the Court of Appeal has made a declaration that the imposition of an ESO is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that the inconsistency has not been justified under s 5 of that Act.8
[33] Subsequent decisions of the Court of Appeal have held that because of this there must be “strong justification” for an ESO before one is imposed, and that “strong justification” is not met simply because oversight would be desirable or beneficial to the offender as they transition to being in the community.9
[34] Mr Te Whata has committed very serious sexual offences against children. He has engaged with the therapeutic programmes offered by the Department of Corrections after both sets of offending. To all outwards appearances he is committed to not reoffending. I note, in this regard, that Mr Te Whata has not opposed the making of an ESO, and I accept Mr Ewen’s advice from the Bar that this is because Mr Te Whata wants the continued support that an ESO will result in him receiving. But, the test for me is whether there is in his circumstances strong justification for imposing an ESO. That means assessing the need to protect the community from him.
[35] Mr Te Whata’s biggest risk is to the pubescent daughters of any woman with whom he enters an intimate relationship. There is a high risk that in such a situation he will offend again. If there is no ESO then there will be nothing to prevent him entering into an intimate relationship with a mother of pubescent daughters. He will
8 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484; and Chisnall v Attorney- General [2022] NZCA 24.
9 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53]. See also Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [47].
not be subject to any monitoring. In my view, the high risk of reoffending I have identified provides strong justification for an ESO.
[36]I am satisfied that I should subject Mr Te Whata to an ESO.
Duration of the order
[37] Mr Ewen, for Mr Te Whata, submits that the Court of Appeal’s declaration of inconsistency is directly relevant to the question of duration of the order:
3.5The order should be made for the shortest period which allows for the assessment of change, but very much with a weather eye on the applicant’s ability to apply for further orders.
3.6This flows from the Chisnall ‘strong justification’ principle: the justification for an ESO must not only apply when the order is made, but continuously throughout its life. The burden is on the Chief Executive show continued necessity for an ESO, as:
1.implicit in any NZBoRA infringement, necessity is a prerequisite, and
2.without necessity for the order (and its duration) the ‘strong justification’ test cannot be met.
[38] I am obliged to apply the law as enacted by Parliament. The declaration of inconsistency does not change the law. Section 107I(5) is explicit:
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.
[39] I accept that the level of risk posed by Mr Te Whata is moderate to high, and explicitly high if he were to enter an intimate relationship with a woman who has a pubescent daughter.
[40] Mr Bauer has emphasised the need for Mr Te Whata to consciously ensure that he allows prosocial supports to influence his decision-making and to ensure that he
maintains his protective factors. He has not yet had the opportunity to demonstrate a substantial period of good behaviour in the community.
[41] There is no question of the seriousness of the harm that might be caused to future victims. Harm is inherent in the offending. Particularly since Mr Te Whata’s victims would be young and vulnerable. In his two previous sets of offending, Mr Te Whata exploited his relationships with the daughters’ mothers to commit his offending. He was physically abusive, controlling and threatening towards his victims in order to coerce them into complying. The nature of his offending ranged from kissing to rape. The seriousness of harm that might be caused would be high.
[42] Mr Bauer does not give a specific recommendation as to the suitable duration of an ESO. However, the overall tenor of his evidence is that it will take years to assess whether Mr Te Whata’s risk profile has diminished appreciably. I agree. It is difficult for any adult to abstain from repeating ingrained behaviour. Mr Te Whata’s offending pattern demonstrates that despite his wish to change, and the assistance he has had from the Department of Corrections’ programmes, he will be at high risk of sexually abusing pubescent female children if he forms an intimate relationship with their mother. That risk cannot be assessed as lowered until he has spent significant time free of offending.
[43] Mr Bauer’s memorandum of 2 May 2024, handed to me at the hearing, provides evidence of an additional metric to assist with assessing Mr Te Whata’s “endurability of risk when in the community”. It is the STATIC-99R metric. In Mr Bauer’s view, applying this metric indicates that a person with Mr Te Whata’s assessed risk would reduce to Level III (Average Risk) at six years of living in the community without further sexual offending.
[44] Mr Ewen’s submission is that insufficient attention has been paid to Mr Te Whata’s personal circumstances, as opposed to statistical data relating to groups. Mr Ewen produced at the hearing reports dated 19 July 2020 and 5 August 2021 from Mr David Riley, a registered psychologist. I am told these reports were provided to the Court of Appeal and were influential in that Court’s decision, on an
appeal against a sentence of preventive detention for the second set of offending, to allow the appeal.
[45] Mr Riley, among other matters, reports on the development of the Department of Corrections’ programmes for treating prisoners who have offended sexually against children. At the risk of over-simplifying, Mr Riley’s opinion is that the programme Mr Te Whata completed while serving his sentence for the first set of offending was not as effective as the current programme.
[46] Mr Riley provides data to the effect that in this area recidivism rates decline over time spent offence-free in the community for sex offenders in various risk bands. Mr Te Whata was discovered by his then-partner offending against her daughter during his second set of offending. She did not report him to the police. Mr Te Whata did not again offend against the daughter and some five years went by before she complained to police and Mr Te Whata was arrested. This, Mr Ewen submits, is highly relevant to understanding Mr Te Whata’s actual risk profile and therefore to the necessary length of an ESO.
[47] However, I note Mr Bauer’s comments that the complainant in the second set of offending left the mother’s home for periods after the offending and moved eventually to Australia. I note also that Mr Riley considered that an ESO would be a suitable response to Mr Te Whata’s risk and that the risk of him becoming involved with an intimate partner with young female children was a significant concern:
42. In my opinion, Mr Te Whata should be re-referred to the Te Piriti programme which is now considerably broader in scope than it was when he first attended that facility. The opportunity exists for longer- term involvement by Corrections via the type of monitoring and assistance afforded by the imposition of an Order of Extended Supervision, and not only could that be of assistance to this man, it would certainly be possible to prevent him from once again becoming involved with an intimate partner with young female children, a significant concern given the very specific nature of his offending.
[48] In support of his submission that two years is the greatest length of time that Mr Te Whata should be subjected to the ESO, Mr Ewen submits further:
(a)Given that imposing the ESO is inconsistent with Mr Te Whata’s right to be free of double punishment under the New Zealand Bill of Rights Act, the duration of the ESO must be the minimum necessary.
(b)Two years is the longest period which Department of Corrections’ therapeutic programmes for child sex offenders subject to ESOs (or Intensive Supervision) will take.
(c)The onus is on the applicant to ensure that Mr Te Whata’s rights are breached for the shortest period necessary. Therefore, it is for the applicant to assess Mr Te Whata at the end of two years and, if his risk profile has not reduced acceptably, apply for another ESO.
[49] I agree with the theory behind Mr Ewen’s submissions. It is for the applicant to justify the duration of the ESO. The duration must be the minimum period justifiable. But, in my view, given Mr Te Whata’s history and risk profile, two years are insufficient. The maximum term of an ESO is 10 years. That would be too long (and, I agree with Mr Ewen that the availability to Mr Te Whata of an application process which can lead to an ESO being shortened or rescinded is not of relevance to a rights-breach situation). In my view, the five years period applied for by the applicant is the necessary minimum period required for the purposes of the safety of the community. I note that Mr Bauer’s assessments of Mr Te Whata are as he is presently, including that he has twice gone through the Department’s programmes.
Decision
[50] The application is granted. I make an order imposing an ESO on Mr Te Whata for a period of five years from the date of this judgment.
[51]I am asked to make ancillary orders.
[52] Mr Te Whata will be subject to the standard conditions specified in s 107JA of the Act. One of these is:
(i)the offender must not associate with, or contact, a person under the age of 16 years, except—
(i)with the prior written approval of a probation officer; and
(ii)in the presence and under the supervision of an adult who—
(A)has been informed about the relevant offending; and
(B)has been approved in writing by a probation officer as suitable to undertake the role of supervision:
[53] Mr Te Whata has three male children. It is agreed that he should be able to have contact with them. His risk is to female children. Accordingly, I make an order suspending the above quoted standard condition from applying to Mr Te Whata.
[54]I note Mr Te Whata is subject to a special condition:
Not to have contact or otherwise associate with any female under the age of 16 years, directly or indirectly, unless you have the prior written approval of a Probation Officer, or unless you are under the supervision and in the presence of an adult approved in writing by a Probation Officer.
This special condition shall continue in force for three months, or until the Parole Board determines any earlier application for special conditions.10
[55] I make an order that the following shall take effect as an interim special condition pursuant to s 107IA of the Act:
Mr Te Whata may attend general church services at Grace City Church, Greenlane, Auckland. Attendance at any other church or any other church- related activity is also permitted so long as the prior written approval of a Probation Officer is obtained.
Brewer J
10 Parole Act 2002, s 107L(2A).
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