Chief Executive of the Department of Corrections v Tuliloa
[2021] NZHC 1559
•28 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-536
[2021] NZHC 1559
UNDER s 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
PAUL SIMON TULILOA
Respondent
Hearing: 24 June 2021 Appearances:
S S McMullan and N E Town for the applicant J Ding for the respondent
Judgment:
28 June 2021
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 28 June 2021 at 3.00pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland K3 Legal, Auckland
DEPARTMENT OF CORRECTIONS v TULILOA [2021] NZHC 1559 [28 June 2021]
[1] The Chief Executive of the Department of Corrections seeks an extended supervision order (“ESO”) in respect of Mr Tuliloa.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
[2] The 11 December 2020 application is brought on grounds I should be satisfied, having considered proffered health assessors’ reports, Mr Tuliloa has, or had, a pervasive pattern of serious sexual offending, and there is a very high risk he will in future commit a relevant sexual offence.3 The Chief Executive also seeks the ESO endure for 10 years.4 However, if I make the ESO, I must make it for the “minimum period required for the purposes of the safety of the community”, in light of specified factors.5 I am to be:6
… concerned with present or past behaviour, which determine an eligible offender’s susceptibility to an ESO, and future risk, which ultimately determines whether an ESO ought to be made. These are distinct criteria, both of which must be satisfied.
[3] The Chief Executive additionally seeks an intensive monitoring condition for its maximum duration of 12 months in connection with the ESO.7 Although the District Court at Wellington last relevantly sentenced Mr Tuliloa,8 that sought condition gives me jurisdiction here.9 Pending determination of the ESO application, Mr Tuliloa arguably has been subject to an interim supervision order,10 with special conditions,11 including an intensive monitoring condition. The Chief Executive seeks (re-)imposition of the interim supervision order’s special conditions.
1 Parole Act 2002, s 107F.
2 Section 107I(1).
3 Section 107I(2).
4 Section 107I(4).
5 Section 107I(5).
6 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [17].
7 Parole Act, s 107IAC(2): “An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.”
8 R v Tuliloa DC Wellington CRI-2014-096-934, 8 August 2014.
9 Parole Act, ss 107D and 107IAB(2).
10 Section 107FA; and Chief Executive of the Department of Corrections v Tuliloa [2021] NZHC 745. But see [45] below.
11 Section 107IA.
[4] Mr Tuliloa abides my decision on imposition of a 10-year ESO, and the intensive monitoring condition. But I am obliged to make my own assessment.12
Mr Tuliloa’s offending
[5] Mr Tuliloa is 25 years old. Following a disrupted and abused childhood, including in state care, he has a relatively confined relevant criminal history, commencing in 2012 with convictions on two indecent assault charges,13 the former easily being characterised as more serious sexual offending. His relatively low-level property offending continued later that year, and shortly after release from a youth justice facility again in 2014, but then accompanied by sexual violation convictions for unlawful sexual connection and rape.14
[6] Mr Tuliloa was sentenced to six years and three months’ imprisonment on each of the sexual violation offences, to be served concurrently.15 He served the entirety of that sentence by 4 July 2020, release conditions expiring on 3 January 2021. Mr Tuliloa since pleaded guilty to a charge of injuring with intent to injure arising out of a prison altercation, for which he may receive a further term of imprisonment but which likely will be met by time served.16 He remains remanded in custody since expiry of his prior prison term for sentencing on 13 August 2021. Sexual violation is a “relevant offence” for the purposes of an ESO.17 Mr Tuliloa’s circumstances thus rendered him an “eligible offender” at the time of the Chief Executive’s application,18 at least in terms of the latest offending and its sequelae.
The health assessors’ reports
[7] The Chief Executive commissioned a 22 September 2020 health assessment report dated from Willem Louw, a registered clinical psychologist. Mr Tuliloa’s solicitors also commissioned a 28 May 2021 psychological report from Clare Brindley,
12 Paniora v Chief Executive of the Department of Corrections [2018] NZCA 607 at [21].
13 Crimes Act 1961, s 135: maximum penalty, 7 years’ imprisonment.
14 Sections 128(1) and 128B(1): maximum penalty, 20 years’ imprisonment.
15 R v Tuliloa, above n 8, at [13] and [15].
16 Crimes Act, s 189(2): maximum penalty, 5 years’ imprisonment.
17 Parole Act, s 107B.
18 Sections 107C and 107F.
a registered forensic and clinical psychologist (and neuropsychologist). The assessors’ reports may inform my conclusions on the s 107I(2) criteria.19
[8]Having reviewed the reports, I asked counsel:
… to consider if the psychological reports proffered meet the requirements explained in Moeke v The Chief Executive of the Department of Corrections [2010] NZCA 60 at [28]–[29], commending the Chief Executive ensure psychological reports include a considerably greater focus on the appropriate minimum term.
Dr Louw then filed a 23 June 2021 addendum to his report.
[9] 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.
For completeness, s 107IAA(1) and (2) provide:
107IAA Matters court must be satisfied of when assessing risk
(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b)has a predilection or proclivity for serious sexual offending; and
(c)has limited self-regulatory capacity; and
(d)displays either or both of the following:
(i) a lack of acceptance of responsibility or remorse for past offending:
(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
19 Kiddell v Chief Executive of the Department of Corrections, above n 6, at [19].
(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.
—Dr Louw’s report
[10] Dr Louw says Mr Tuliloa declined to be interviewed, but consented to his use of Corrections’ resources to prepare the report.20 After reviewing various Corrections’ files and consulting with particular Corrections’ officers, and summarising Mr Tuliloa’s sexual offending history, Dr Louw was of the opinion:
… Mr Tuliloa’s sexual offending is clearly motivated to satisfy his sexual needs and desires and there is an escalating pattern of seriousness in offending over a relatively short period of time as his index offending victim was unknown to him. Mr Tuliloa has shown a pervasive pattern of serious sexual offending over a period of two years, given the number of offences (three sexual offence incidents with three victims and one offending incident with sexual overtones); the relative short space of time between the offence events and rapid offending after release from detention, in spite of receiving intensive treatment at the time; a unifying theme of using surprise, physical force and coercion to get his victims to comply and on some occasions entering the victim’s bedrooms at night when they were asleep, alone and more vulnerable; and the common behaviour patterns preceding his offending, namely high volume pornography and substance use. Mr Tuliloa has also shown an ability to disregard the victim’s distress and to only pay attention to his own needs in these contexts.
Although noting Mr Tuilola’s intermittent attendances with community and custodial therapy and treatment sessions, Dr Louw considered Mr Tuliloa has “unmet treatment
20 Mr Tuliloa disputes he declined to participate in Dr Louw’s assessment. Thus his request for Dr Brindley’s independent assessment: see [14] below and following.
needs with his assessed pre-treatment risk of sexual reoffending remaining unchanged”.
[11] Dr Louw applied a number of “actuarial instruments and noted clinical risk factors” to assess the risk of Mr Tuliloa’s commission of further serious sexual offending in the community. On each the RoC*RoI,21 the Static99R,22 and the Violence Risk Scale–Sex Offence version (“VRS-SO”),23 he assessed Mr Tuliloa as being in the highest risk category. Taking into account all those factors, and Mr Tuliloa’s pattern of offending, Dr Louw considers “there is a well above average risk that Mr Tuliloa will engage in relevant sexual offending within ten years of release”. More specifically:
Should Mr Tuliloa commit another sexual offence, he is more likely to sexually violate an adult or teenage female victim, either during a burglary or robbery or as a planned sexual assault when he is under the influence of alcohol and cannabis. He is also likely to use extreme violence to coerce his victims to comply with his demands. The victims of his potential future sex offences could be known or unknown to him, with sexual offending ranging from indecent assault to rape. Mr Tuliloa’s offending could be imminent following release, with a number of offences against different victims over [a] short period of time.
[12] Dr Louw then turns to the s 107IAA traits and behavioural characteristics. With the caveat his assessment is limited by Mr Tuliloa’s non-participation, and therefore is “necessarily tentative”, he considers:
[T]he combination of Mr Tuliloa’s past behaviour and his unmet treatment need provides sufficient evidence that in the context of unsupervised living in the community, substance abuse and frequent pornography use, he is very likely to experience an intense drive, desire or urge to commit a relevant sexual offence.
…
Mr Tuliloa’s conviction and charge history, and reoffending behaviour following treatment programmes, suggests that he does present with a predilection and proclivity for serious sexual offending.
21 Leon Bakker, James O’Malley and David Riley Risk of Reconviction: Statistical Models which predict four types of re-offending (Department of Corrections, 1999).
22 R Karl Hanson and David Thornton “Improving Risk Assessments for Sex Offenders: A Comparison of Three Actuarial Scales” (2000) 24 Law & Hum Behav 119.
23 Stephen Wong and others Violence Risk Scale – Sexual Offence Version (Regional Psychiatric Centre and University of Saskatchewan, Saskatoon, Canada, 2003–2017).
[13] Noting Mr Tuliloa’s engagement with precursors to his offending and “a chronic low level of non-compliance” with institutional requirements, together with his isolating coping mechanism, Dr Louw considers he presents with limited self- regulatory capacity. He has accepted very limited responsibility for his past sexual offending and, although expressing shame and guilt, there is no evidence of remorse for the impact of his offending on his victims, and evidence only of his very limited understanding of its impact on them, not extending to any “empathic concern”. Dr Louw concludes:
[B]ased on Mr Tuliloa’s past behaviour and unmet treatment needs, and in the absence of careful monitoring and supervision, he is likely to commit a serious relevant sexual offence within weeks to months following his release from prison.
—Dr Brindley’s report
[14] Dr Brindley interviewed Mr Tuliloa for two hours on 13 May 2021, administering the Sexual Violence Risk-20, Version 2,24 test as she did so. She also had regard for a variety of reports (including Mr Tuliloa’s criminal history, a psychological report to the Parole Board, and Dr Louw’s report), judgments and sentencing notes, and submissions relating to the present application. She concluded Mr Tuliloa presents a “high risk of sexual violence recidivism”, derived from his sexual offending to “be understood as a maladaptive means of problem solving and exertion of control and pursuit of sexual gratification”, which “serve[s] as a barrier to treatment and effective management of risk factors”. Supervision and support are necessary because his prognosis for treatment is “not favourable”.
[15] Dr Brindley’s review of the s 107IAA traits and behavioural characteristics largely is consistent with Dr Louw’s. She concludes “comprehensive risk management planning, and involvement of professional services will be necessary to mitigate against the risks Mr Tuliloa continues to present in the community setting”.
24 Douglas Peter Boer and others Manual for the Sexual Violence Risk - 20: Professional Guidelines for Assessing Risk of Sexual Violence (British Columbia Institute Against Family Violence, Vancouver, 1997).
—Dr Louw’s addendum
[16] Dr Louw’s 23 June 2021 addendum explained Mr Tuliloa’s VRS-SO profile predicts he is within the 67 per cent of comparable offenders who will be re-imprisoned for serious sexual offending within 10 years of release. Mr Tuliloa lacks the support, insight and treatment characteristic in the profiles of the 33 per cent balance of comparable offenders who will not be re-imprisoned for serious sexual offending within 10 years of release. Had Mr Tuliloa those characteristics, a lesser minimum term could be justified. But “the absence of any risk mitigation factors, his poor response to past treatment opportunities and his criminal trajectory to date indicates a pathway towards increased offending, not desistance”. He concluded:
A period of 10 years of extended supervision is clinically supported by Mr Tuliloa’s dynamic risk profile, his poor engagement with and response to treatment and the status of his release plans that are regarded as insufficient to mitigate his assessed high risk of sexual reoffending and serious harm to the community.
Considering an extended supervision order
[17]Section 107I(2) of the Parole Act 2002 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.
[18] The Court of Appeal has explained the three-step process following determination of the offender as “eligible” for an ESO: I must determine if Mr Tuliloa is a pervasive sexual or violent offender; I must assess his specific qualification in terms of the s 107IAA traits and behavioural characteristics; and, if qualifying, I must determine the risk of his future serious sexual or violent offending.25
25 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13]; see also Kiddell v Chief Executive of the Department of Corrections, above n 6, at [16]–[27].
—pervasive serious sexual offending
[19] I am satisfied Mr Tuliloa has, or had, a pervasive pattern of serious sexual offending. By ‘pervasive pattern’ is meant “a pattern that is characteristic of the offender”.26 I come to that conclusion notwithstanding it provides a foundation substantially to impinge on Mr Tuliloa’s rights of freedom of movement and association.27
[20] At the age of 15 years, he was convicted of indecent assaults on 23 and 25 March 2012, both on young women around his own age, after forcing entry into their homes.28 The indecent assaults are said to have been, first, forcibly obtaining oral sex twice; and second, ‘inappropriate’ touching with a view to having sex. The index offending, at the age of 17 years in 2014, was two charges of sexual violation, each unlawful sexual connection and rape of a woman aged 57 years.29 Mr Tuliloa broke in to her house, and then to her bathroom where she had barricaded herself. On each occasion, Mr Tuliloa perceived he had some prior association with the women. On each occasion, he recently had been in high use of pornography, was intoxicated, and was aroused by the women’s prospective availability for sex, to take advantage of their presence for his offending. There was no possibility Mr Tuliloa could have thought any of the offending was consensual (although the second ended on the waking woman’s protest, by Mr Tuliloa leaping out a window).
[21] Certainly all is sexual offending. It has been committed without prospect of consent, violently, breaking into the victim’s residences; all aggravating the offending to the higher end of the range as “serious”.30 Taken together with Mr Tuliloa’s initiating intoxicated and entitled arousal, that is its pattern. His opportunistic recourse to women of passing familiarity for sexual gratification sufficiently is endemic to provide a reliable predictor of Mr Tuliloa’s future conduct, as the health assessors
26 Kiddell v Chief Executive of the Department of Corrections, above n 6, at [23(a)].
27 New Zealand Bill of Rights Act 1990, ss 17–18, and see Kiddell v Chief Executive of the Department of Corrections, above n 6, at [27].
28 Crimes Act, s 135.
29 Section 128(1).
30 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [40]–[43].
anticipate.31 It thus is pervasive, providing a foundation for reasonable limitation of Mr Tuliloa’s rights of freedom of movement and association.32
—qualification for risk assessment
[22] I am also satisfied Mr Tuliloa ‘qualifies’ for my determination if he will in future commit a relevant sexual offence.
[23] First, I am satisfied Mr Tuliloa displays an intense drive, desire, or urge to commit a relevant sexual offence. He contends to have a high sex drive which intense exposure to pornography makes “almost uncontrollable”. He clinically is established to be sexually compulsive, and is observed to value his own sexual gratification above the rights and needs of others. His low level of engagement with treatment illustrates his priorities.
[24] Then I am satisfied he has a predilection or proclivity for serious sexual offending. The pattern of his offending is sufficient to establish it.33
[25] Next, I am satisfied from his criminal record, but also from the health assessors’ reports, Mr Tuliloa has limited self-regulatory capacity. The impulsiveness and opportunistic nature of his offending is illustrative, particularly the index offending occurring shortly after custodial release. But it also is made out by his wider prison record, of being exited from programmes and opportunities by reason of his reactive conduct. It is notable he served his full sentence.
[26] Last, Mr Tuliloa’s lack of empathy for his victims, and his lack of understanding of the impact of his violent offending on them, is endemic in his offending, and reinforced by his expression to Dr Brindley.
31 Kiddell v Chief Executive of the Department of Corrections, above n 6, at [23(b)].
32 New Zealand Bill of Rights Act, s 5.
33 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [41] (appeal dismissed: Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771).
—risk of future relevant sexual offending
[27] Mr Tuliloa’s past offending and continuing personal characteristics as predictive of his future conduct, his rating at the upper end of actuarial tools designed to provide assessments of sexual recidivism, and the absence of “anything that may exacerbate or mitigate risk”,34 together satisfy me there is a very high risk Mr Tuliloa will commit a relevant sexual offence.35 Again, I come to that conclusion notwithstanding it provides a foundation substantially to impinge on Mr Tuliloa’s rights of freedom of movement and association.36
[28] Mr Tuliloa’s placement in the worse part of those risk assessment scales is particularly informative, as the only forward-looking fact-based evidence before me, again providing a foundation for reasonable limitation of Mr Tuliloa’s rights of freedom of movement and association.37 I am reinforced in my view by Mr Tuliloa’s “Very High” risk RoC*RoI score, with 90 per cent predicted re-imprisonment after five years of release; his “Well Above Average” Static99R risk category, putting him in the top one per cent of sexual recidivism risk (albeit with a predicted rate of sexual reconviction of 35 per cent after five years of release); and his “Well Above Average” VRS-SO score in its 99th percentile, with five and ten-year sexual recidivism rates respectively of 54 and 67 per cent.
[29] I therefore will make an ESO, to protect the community from the real and ongoing risk of Mr Tuliloa’s serious sexual offending on his release into it.
The term of the order
[30]Section 107I(4) and (5) of the Parole Act provide:
(4) Every extended supervision order must state the term of the order, which may not exceed 10 years.
34 Kiddell v Chief Executive of the Department of Corrections, above n 6, at [24].
35 At [25], citing Holland v Chief Executive of the Department of Corrections (CA), above n 33, at
[12] citing R v White (David) [1988] 1 NZLR 264 (CA) at 268; R v Leitch [1998] 1 NZLR 420 (CA) at 428; and Chief Executive of the Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162, 8 December 2004 at [20]–[21].
36 New Zealand Bill of Rights Act, ss 17–18, and see Kiddell v Chief Executive of the Department of Corrections, above n 6, at [27].
37 New Zealand Bill of Rights Act, s 5.
(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.
[31] Obviously, given his relevant sexual offending qualifies for the making of an ESO, the level of risk posed by Mr Tuliloa is very high. Dr Louw emphasises, on the combined Static99-R and VRS-SO ratings, even among his sexual offender peers Mr Tuliloa achieves:
… the highest risk level possible … He is considered to be about seven times more likely to commit a future sex offence than offenders in the middle of the risk distribution.
The seriousness of the harm that might be caused to victims is of those relevant sexual offences. Dr Louw said “[Mr Tuliloa] is also likely to use extreme violence to coerce his victims to comply with his demands”.
[32] As earlier indicated,38 the Court of Appeal suggested the Chief Executive ensure health assessor reports accompanying ESO applications “include a considerably greater focus on the appropriate s 107I(5) minimum term”.39 The Court indicated those materials should include:40
(a)a section in the psychological report that addresses fully the minimum term sought for the particular offender against the s 107I(5) criteria;
(b)a thorough assessment of the efficacy and suitability of post-release plans including their nature and duration;
(c)relevant updating information at the date of the extended supervision order hearing; and
(d)steps which the offender has taken to address perceived risks.
[33] An adequate release plan would identify risk factors, risk situations and coping mechanisms. Dr Louw observes Mr Tuliloa’s most recent release plan (prepared for his Parole Board hearing on 12 May 2020) identified “no confirmed suitable release
38 See [8] above.
39 Moeke v The Chief Executive of the Department of Corrections [2010] NZCA 60 at [28].
40 At [29].
address, no confirmed employment upon release, and no confirmed community support agencies arranged”. Here, support was proffered by family (although with “limited understanding of his high risk of sexual reoffending”) and “hypothetical[ly]” from community institutions. Dr Louw considered it more likely Mr Tuliloa would rely on gang affiliation for support, which he thought “is likely to quickly lead him back into high risk behaviour”. Thus “[the] release plan is insufficient to mitigate his assessed very high risk of general reoffending and his well above average risk of sexual reoffending”.
[34] From her more recent and in-person contact with Mr Tuliloa, Dr Brindley emphasises he is “untreated and unmotivated to address his offending behaviour”. He presents “a high risk of harm to others in the community setting”. She says supervision is necessary, together with “comprehensive risk management planning, and involvement of professional services”. I draw to the Chief Executive’s particular attention Dr Brindley’s view risk management here would be promoted by [Redacted]; by maintaining an open door to Mr Tuliloa’s readiness for meaningful participation in treatment to address sexual offending; and by his attendance at an alcohol use programme.
[35] Cases where an ESO of ten years have been ordered “typically involve a recurring pattern of sexual offending”.41 Lesser terms are justified by offenders’ advancing age,42 but also by their acceptance of responsibility, positive response to treatment, and access to support.43 An organising principle for the imposition of a minimum term at the maximum period available may be the pathological nature of such offending, habitually denied by offenders, and therefore an absence of treatment. Serious sexual offending may more frequently be environmental, less open to denial, and for which treatment and support are more accepted.44
41 Department of Corrections v Nepia [2014] NZHC 1448 at [41].
42 See Wardle v Chief Executive of the Department of Corrections, above n 30, at [65]; and Chief Executive, Department of Corrections v van der Plaat [2016] NZHC 3186 at [70].
43 See The Chief Executive of the Department of Corrections v H (CA359/05) CA359/05, 1 May 2006 (five years); and Chief Executive Department of Corrections v Clark [2017] NZHC 771 (two years).
44 Chief Executive, Department of Corrections v Paniora [2018] NZHC 1505 at [42]; Paniora v Chief Executive of the Department of Corrections, above n 12, at [22], citing Chief Executive, Department of Corrections v Alinizi, above n 25, at [38].
[36] For Mr Tuliloa, though, there are no post-release plans, the absence of which means there is no (let alone efficacious and suitable) mitigation of his risk of serious sexual recidivism, and no steps taken (or, according to Dr Louw and Dr Brindley, likely to be taken) by him to address that risk. The assessment models put Mr Tuliloa’s risk at the far end of their ten-year predictions. On that basis — in light of the very high risk of serious sexual offending posed by Mr Tuliloa, the serious harm that may be caused to his victims, and the absence of any predictable limit to the duration of that risk — particularly given his comparative youth, the “minimum period required for the purposes of the safety of the community” in my view exceeds ten years.45
[37] I recognise any ESO engages rights protected by the New Zealand Bill of Rights Act 1990, not only by its contravening retrospective double penalty,46 but also by its substantial incursion into the offender’s freedom of movement and association.47 The former is not itself a reason to decline to make an ESO,48 and the latter I find for all the reasons I have explained above to be “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.49
[38] I will therefore make an ESO for a term of ten years, which is the maximum period for such a term.
Imposition of intensive monitoring condition
[39] As said, the Chief Executive seeks an intensive monitoring condition in connection with the ESO.50 When I make the ESO, I may make an order requiring the Parole Board to impose an intensive monitoring condition,51 and to specify its maximum duration, which can be no longer than 12 months.52 Notably, that is not an order requiring the Board to impose such a condition of any specified duration; only
45 Parole Act, s 107I(5).
46 Kiddell v Chief Executive of the Department of Corrections, above n 6, at [27], with reference to ss 4 and 26 of the New Zealand Bill of Rights Act, citing Belcher v Chief Executive of the Dept of Corrections [2007] 1 NZLR 507 (CA), and noting “[t]his remains the position following the Supreme Court decision in Holland”, above n 33, at [18].
47 Kiddell v Chief Executive of the Department of Corrections, above n 6, at [27], citing Holland v Chief Executive of the Department of Corrections (SC) above n 33, at [19].
48 New Zealand Bill of Rights Act, s 4.
49 Section 5.
50 See [3] above.
51 Parole Act, s 107IAC(1). Subsection (2) defines “intensive monitoring condition”: see above n 7.
52 Section 107IAC(3).
that I am to specify the maximum duration of any condition I order the Board to impose. Except for the coincident making of an ESO, and the Chief Executive’s application, there is no statutory threshold for the order. But its exceptionally intrusive, time-limited, and one-off aspects all are indicia it is a response to a need to assert external control at a transitional point of high risk.53
[40] Dr Louw’s addendum reinforces his earlier opinion Mr Tuliloa “is likely to commit a serious relevant sexual offence within weeks to months following his release from prison”. Given his retention in custody, there has been no opportunity to observe the efficacy of intensive monitoring, in connection with the interim supervision order. It is clear from the evidence intensive monitoring remains justified. It is essentially for ‘line of sight’ person-to-person monitoring of Mr Tuliloa.
[41] Only the Parole Board imposes intensive monitoring conditions; my role is to “make an order requiring the Board” to do so.54 If so ordered, the Board is to impose an intensive monitoring condition.55 The maximum duration of that condition is to be specified by the Court.56 Whatever duration up to that maximum is imposed by the Board, the condition only applies during the first 12 months of the ESO.57 Neither the Court in specifying the maximum duration, nor the Board in imposing the condition, is either required to take or prohibited from taking into account time spent on intensive monitoring conditions in association with interim supervision orders.58
[42] Given the risk here sought to be ameliorated by the intensive monitoring condition, Mr Tuliloa’s inability to manage that risk, and the community interest in keeping him from reoffending, the Board should have the greatest discretion as to the duration of the intensive monitoring condition it imposes. I am provided with no basis to contemplate limiting the Board’s discretion. I will specify the maximum duration of the intensive monitoring condition as 12 months.
53 See also Chief Executive of Department of Corrections v Paul [2017] NZHC 1294 at [39].
54 Parole Act, s 107IAC(1).
55 Section 107IAC(4).
56 Section 107IAC(3).
57 Section 107K(3)(ba).
58 Chief Executive, Department of Corrections v Paniora, above n 44, at [52]; Paniora v Chief Executive of the Department of Corrections, above n 12, at [28] and [33].
Imposition of special conditions on interim basis
[43] Last, the Chief Executive seeks orders imposing special conditions on Mr Tuliloa on an interim basis, including an intensive monitoring condition. ‘Special conditions’ are designed to:59
(a)reduce the risk of reoffending by the offender; or
(b)facilitate or promote the rehabilitation and reintegration of the offender; or
(c)provide for the reasonable concerns of victims of the offender; or
(d)comply, in the case of an offender subject to an extended supervision order, with an order of the court … to impose an intensive monitoring condition.
[44] When I make the ESO, I may make such special conditions, but only if I am satisfied there may not be sufficient time, before the ESO comes into force, for the Board to determine which (if any) should be imposed.60 The special conditions apply for three months, or until the Board determines any earlier application for special conditions.61
[45] As said, Mr Tuliloa arguably presently is subject to an interim supervision order, with special and intensive monitoring conditions.62 The argument is if Mr Tuliloa’s continuing detention means the Court lacked jurisdiction to make an interim supervision order. That jurisdiction relevantly exists only “if, before an application for an extended supervision order is finally determined, … the following [event] occur[s]: … the offender who is the subject of the application is released from detention”.63 The application for the interim supervision order was made in anticipation of such release.64 But, by Mr Tuliloa remaining in custody, it is arguable the section enabling the making of an interim supervision order never ‘applied’,65the interim supervision order therefore lacks any foundation, and with it would go the special and intensive monitoring conditions.
59 Parole Act, s 15(2).
60 Section 107IA(1) and (2).
61 Section 107L(2A).
62 See [3] above.
63 Parole Act, s 107FA(1)(a).
64 Chief Executive of the Department of Corrections v Tuliloa, above n 10, at [6].
65 Parole Act, s 107FA(1).
[46] On my making of the ESO, the interim supervision order “ceases to have effect”.66 However, although any standard release conditions are discharged when the ESO comes into force,67 standard extended supervision conditions then apply,68 and any special conditions to which Mr Tuliloa is subject when the ESO comes into force continue in force for three months, or until the Board determines any earlier application for special conditions.69 That is, of course, the same extent as would apply to any special conditions I made on an interim basis.70
[47] I apprehend the Chief Executive’s general objective, in seeking orders imposing special conditions on an interim basis, is to maintain the special conditions associated with any interim supervision order, pending the Board’s determination of special conditions to be associated with the ESO. Discontinuity in the conditions’ application is possible if an ESO was determined to come into force at a later date, if special conditions associated with an applicable interim supervision order ceased to have effect at the time of the ESO’s determination, and thus did not apply to the offender when the ESO came into force. But that is addressed by having the ESO come into force on the day it is made,71 as the Chief Executive seeks and the legislation establishes by default. (That coincidence of timing satisfies me there may not be sufficient time, before the ESO comes into force, for the Board to determine which (if any) special conditions should be imposed.)
[48] While I am reluctant to make orders duplicating special conditions to which Mr Tuliloa already is subject when the ESO comes into force, I accept his continuing custody may invalidate the interim supervision order, meaning none presently applies.72 Nonetheless, I adopt Hinton J’s reasons for the special conditions’ application.73 Out of an abundance of caution, I will (re-)impose the special and intensive monitoring conditions sought on an interim basis under s 107IA.
66 Section 107FA(6).
67 Section 107L(2).
68 Section 107J(2)(a).
69 Section 107L(2A).
70 Section 107IA(4)(b).
71 Section 107L(1)(c)(i).
72 Section 107FA(6).
73 Hinton J also imposed s 107JA(1)’s standard conditions as conditions of her interim supervision order, adapting that at para (i) relating to association with persons under the age of 16 years to permit such if “the child is a member of [Mr Tuliloa’s] immediate family or the child of an immediate family member and Mr Tuliloa is under the supervision of an adult”: Chief Executive
Orders
[49] I make an extended supervision order in relation to Mr Tuliloa in terms of s 107I of the Parole Act, with a term of ten years.
[50] Under s 107IAC, I require the Parole Board to impose on Mr Tuliloa an intensive monitoring condition, the maximum duration of which is 12 months.
[51] I make an order under s 107IA (re-)imposing special and intensive monitoring conditions on Mr Tuliloa on an interim basis.
Observation
[52] Finally, I draw the Chief Executive’s attention to Dr Brindley’s recommendations at [34] above.
—Jagose J
of the Department of Corrections v Tuliloa, above n 10, at [48]. As the adaptation is incompatible with the standard condition, it must be considered a special condition, the standard condition being suspended to that extent: ss 107FA(3) and 107K(3)(c).
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