Chief Executive of the Department of Corrections v Tuliloa
[2021] NZHC 745
•1 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000536
[2021] NZHC 745
UNDER s 107FA of the Parole Act 2002 IN THE MATTER
of an application for an interim supervision order
BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
PAUL SIMON TULILOA
Respondent
Hearing: 30 March 2021 Appearances:
S McMullan and N Town for the Applicant H Krebs for the Respondent
Judgment:
1 April 2021
JUDGMENT OF HINTON J
This judgment was delivered by me on 1 April 2021 at 4:00 pm
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
K3 Legal Limited, Auckland Meredith Connell, Auckland
DEPARTMENT OF CORRECTIONS v TULILOA [2021] NZHC 745 [1 April 2021]
[1] This is an application for an interim supervision order (ISO) with an intensive monitoring condition.
[2] Mr Tuliloa is 24 years old and has been in prison since he was 17. He spent considerable time in Youth Justice Residences before that. Since November 2010, Mr Tuliloa has committed four sexual offences and four nonsexual violent offences.
[3] On the basis of his history and unmet treatment needs Dr Willem Louw has assessed Mr Tuliloa as being “likely to commit a serious relevant sexual offence within weeks to months following his release from prison” unless he is the subject of careful monitoring and supervision. As a result, the Chief Executive has applied for an extended supervision order (ESO) with an intensive monitoring condition.
[4]The current application is made pending determination of the ESO.
[5] Mr Tuliloa is remanded in custody awaiting trial in May 2021 for murdering a fellow inmate at Auckland Prison. He is not subject to any sentence. If he were released from custody other than on bail, he would not be subject to any form of monitoring.
[6] The application for an ISO is made under s 107FA of the Parole Act 2002 (the Act), to take effect from the date Mr Tuliloa is released from custody (should that occur) until the date the ESO is finally determined.1
Interim supervision order
[7] There is no dispute as to the relevant law which I set out below, largely adopting the applicant’s submissions.
[8] An ISO is a temporary measure designed to cover situations where there would otherwise be limited or no supervision of an offender. Such an order is generally necessary and appropriate where “an ESO application hearing postdates the expiry of release conditions”.2
1 Parole Act 2002, s 107FA(l)(a).
2 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275, at [36].
[9] Before making an ISO, the Court must be satisfied,3 on a provisional basis, that the statutory criteria for making an ESO are made out.4 Section 107I of the Act sets out the statutory criteria for making an ESO. Subsection (2) provides (so far as relevant here) that an ESO may be made if the court is satisfied 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.
……
[10]A court may only determine that (b)(i) is met if it is satisfied that the offender:5
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence;
(b)has a predilection or proclivity for serious sexual offending;
(c)has limited selfregulatory 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 Court may consider any evidence or information it thinks fit for determining the application, regardless of whether it would be formally admissible.6 The Court is also entitled to take into account past sexual conduct, including unproven allegations and conduct that does not actually constitute an offence.7
3 Chief Executive of the Department of Corrections v Martin [2017] NZHC 275, at [16] (holding that the term “satisfied” imports no burden of proof; the Court is required to make up its mind on an objective basis).
4 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228, at [14].
5 Parole Act, s 107IAA(1).
6 Section 107H(2).
7 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504, at [42].
Pervasive pattern of serious sexual offending
[12] There is no dispute that Mr Tuliloa has a pervasive pattern of serious sexual offending and I am satisfied that is the case. He has committed three sets of sexual offending against three separate victims. A fourth incident did not result in a conviction for sexual offending, but appears to have been sexually motivated. It is also relevant. All four sets of offending evidence Mr Tuliloa's pervasive pattern of serious sexual offending.
[13] The Chief Executive primarily relies on Dr Willem Louw’s 22 September 2020 health assessment report under ss 107I and 107IAA of the Act.
[14] The first relevant offending was on 23 March 2012. Mr Tuliloa was 15 years old and knew the victim as he had previously robbed her and she had not reported it to the Police. He went to the victim’s address intending to have sex with her and knowing that she would not consent to it. When the victim opened the door, she tried to shut it to keep Mr Tuliloa out, but he forced his way inside. He overpowered the victim and forced her to perform oral sex on him. He then demanded to have sex with her. When she replied that she was menstruating, he forced her to perform oral sex for a second time.
[15] Two days later, on 25 March 2012, Mr Tuliloa committed his second set of sexual offending, a burglary and an indecent assault on a 15 year old female. They met at a party on the night of the offending. At the party, Mr Tuliloa consumed alcohol and cannabis. Mr Tuliloa began to think about the victim in a sexual manner while at the party and when he later passed by her home, he climbed into her bedroom through a window. Once inside, he got into the victim's bed and began to touch her on the breast and vagina. The victim then woke up and told him to leave.
[16] On 14 December 2012, shortly after his release from a Youth Justice Residence, Mr Tuliloa committed burglary with sexual undertones. He entered the bedroom of a young woman uninvited. He was unaware at the time that she was in bed with her partner.
[17] On 3 April 2014, one month after his release from a Youth Justice Residence, Mr Tuliloa committed his most serious offences, the index offending of the Chief Executive's ESO application. As a result of this offending, he was convicted of burglary, unlawful sexual connection and rape. He was 17 years old at the time. Heavily affected by cannabis and synthetic cannabis, he broke into the house of his 57 year old victim. The victim tried to protect herself by running to the bathroom and calling the Police. However, Mr Tuliloa broke into the bathroom and dragged the victim to the bedroom. He forced her to perform oral sex on him and then raped her. He later demanded money and drugs and searched the house, taking a few items before leaving.
High risk of committing a further relevant sexual offence
[18] Dr Louw conducted an assessment of Mr Tuliloa’s risk of sexual reoffending taking into account static and dynamic risk factors and using several clinical tools such as the Risk of Reconviction/Risk of Imprisonment (RoC*RoI), Static 99R and Violence Risk Scale: Sexual Offender version (VRSSO). He concluded that Mr Tuliloa's RoC*RoI score placed him in the very high risk category of imprisonment following reconviction for any crime. Mr Tuliloa has an estimated reimprisonment rate of 90 per cent after five years post release. Mr Tuliloa's Static 99R score placed him in the Well Above Average risk category of further sexual reoffending (the highest risk category for that clinical tool). Mr Tuliloa's score put him in the 99th percentile, placing him in the top one per cent of the cases in the sample. Mr Tuliloa's VRS:SO score placed him in the Well Above Average risk category of further sexual offending (again the highest risk category). Mr Tuliloa is in the 89th percentile for Sexual Deviancy, 99th percentile for Criminality and 96th percentile for Treatment responsivity. The estimated five year rate of sexual recidivism for Mr Tuliloa's score is 53.9 per cent and the 10 year rate is 67.3 per cent.
[19] Ms Krebs for the respondent submitted the last two scores, graded as “well above average risk”, were not “high risk”. But that is a matter of nomenclature only. Clearly all three place Mr Tuliloa in the high risk category.
Intense drive, desire, or urge to commit a relevant sexual offence
[20] Dr Louw’s opinion is that Mr Tuliloa displays an intense drive, desire, or urge to commit a relevant sexual offence.
[21] Mr Tuliloa did not agree to be interviewed by Dr Louw for this assessment but he has previously admitted to having a high sex drive and that the use of pornography makes his sexual urges “uncontrollable”.
[22] Ms Krebs relies on Department of Corrections v M where the Court was not satisfied of this factor.8 M is a very different case. In M the respondent had completed treatment to a very satisfactory degree and subsequently shown some stability in the community. Neither of these factors is applicable here.
[23] I am satisfied that Mr Tuliloa’s history shows he has an intense drive to commit serious sexual offending.
Predilection or proclivity for serious sexual offending
[24] Mr Tuliloa has sexually offended against three different victims. Each involved his entry into their own homes at night, the last of which was in traumatic circumstances.
[25] Each of his offences was committed either close in time with other offending or only a short time after release from custody. Mr Tuliloa has been in custody since the index offending.
[26] As noted earlier, in Dr Louw’s assessment, Mr Tuliloa scores high on all predictive measures.
[27] Ms Krebs says, without citing authority, that this factor is not met because the offending was opportunistic rather than premeditated, noting in particular that the index offending occurred in the context of a drugrelated burglary.
8 Department of Corrections v M [2020] NZHC 220, at [63].
[28] My view of the evidence is the offending was premeditated. Even if it were opportunistic that would not be inconsistent with a finding of predilection or proclivity and I am satisfied as to this factor.
Mr Tuliloa has limited self-regulatory capacity
[29]I am also satisfied on this score.
[30]Dr Louw considers that Mr Tuliloa has limited selfregulatory capacity.
[31] Mr Tuliloa’s background shows an inability to regulate sexual behaviours when under the influence of mindaltering substances. Mr Tuliloa’s risk is also enhanced by his using sex and pornography to improve his mood. He appears unwilling to manage these offendingrelated factors.
[32] Mr Tuliloa has had opportunities to address these factors. He was engaged with the WellStop programme before the index offences, but not well engaged with it. He was also removed from the Special Treatment Unit, in which he was undergoing treatment in October 2019 for aggressive behaviour, and has a low level of compliance with treatment tasks and rules in the Unit.
[33] The applicant points out also that while in custody, Mr Tuliloa has accrued 33 incident reports and 18 misconduct reports (between 2013 and 2020) including fighting other prisoners, disobeying lawful orders and having possession of a cellphone and unauthorised prescription medicine.
Lack of acceptance of responsibility or remorse for previous offending
[34] Dr Louw says that Mr Tuliloa has demonstrated only a surface level of responsibility for his past offending and there is no evidence of remorse for the impact of his offending on the victims.
[35] The respondent says surfacelevel responsibility is enough and means there is no lack of acceptance of responsibility on the part of Mr Tuliloa. The respondent again
points to Department of Corrections v M where this factor was not met and the Court said the statute does not require “a counsel of perfection”.9
[36] However I have already noted that the facts in Department of Corrections v M were quite different. The evidence overall was that M demonstrated a “significant and genuine” level of remorse and acceptance of responsibility for his offending.10 This is not comparable to a surface level of responsibility.
[37] Mr Tuliloa's history of reoffending shortly after release suggests that he does not take responsibility for his past offending. I note he has taken some responsibility during his assessment for the Adult Sex Offender Treatment Programme (ASOTP) and could identify the triggers which led to his offending. However his subsequent failure to properly engage with the programme supports the view that his sense of responsibility did not reach beyond surface level. As recorded above, Mr Tuliloa has engaged in rehabilitative treatment for other risk factors, but has similarly failed to see these through to completion.
[38] Mr Tuliloa has expressed some shame and guilt about his offending, but it is unclear if that is remorse for the consequences of his actions on others or just on himself.
[39] Overall I am satisfied on the evidence before me that Mr Tuliloa does display a lack of acceptance of responsibility or remorse for previous offending.
Absence of understanding for or concern about the impact of his sexual offending on actual or potential victims
[40] Dr Louw considers that Mr Tuliloa has a very limited understanding of the immediate impact of his offending on some victims and there is no evidence of remorse about the long term impact.
[41] Dr Louw states that Mr Tuliloa has previously been able to describe the emotional distress of two of his victims, but also that he was able to disregard that
9 At [68].
10 At [68].
distress and focus on his own needs. Dr Louw opines that Mr Tuliloa may be able to register distress but “appears to be callously indifferent to his victim’s feelings”. He could not identify any impact on his second victim.
[42] Ms Krebs says a very limited understanding is not the same as a lack of understanding but again it is a matter of assessing the evidence overall and in my view there is sufficient evidence for this factor to be met.
Conditions of ISO
[43] When a court makes an ISO it may impose any of the standard conditions that are imposed under an ESO, or any special conditions that may be imposed.11
[44]The standard conditions are set out in s 107JA of the Act.
[45] Section 15(2) of the Act states that any special conditions that are sought must not be imposed unless they are designed to:
(a)reduce the risk of reoffending by the offender;
(b)facilitate or promote the rehabilitation and reintegration of the offender;
(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, made under s 107IAC, to impose an intensive monitoring condition.
[46] In addition to the above, Davison J held in Chief Executive Department of Corrections v Martin that there must be a nexus between the perceived risk posed by the offender and the effectiveness of the proposed condition.12
Standard conditions
[47] The Chief Executive asks for all of the standard conditions provided in s 107JA to be imposed as ISO conditions on Mr Tuliloa.
11 Parole Act 2002, s 107FA(3). See also s 107K regarding the imposition of special conditions.
12 Chief Executive Department of Corrections v Martin, above n 3, at [48].
[48] I am satisfied that all of the standard conditions are appropriate and should be imposed except for the standard condition that Mr Tuliloa have no contact with under 16 year olds. Ms Krebs makes the fair point, which the applicant accepts, that there is no particular concern around offending against young people in particular and there is evidence that it would be helpful for Mr Tuliloa to have contact with his prosocial family members some of whom have children aged under 16. I will modify that condition accordingly as set out in the final orders made.
Special conditions
[49] The Chief Executive also asks for a number of special conditions to be imposed which I consider below.13
To be subject to intensive monitoring and 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
[50] Under s 107FA(3) of the Act an intensive monitoring condition can be imposed as a condition of the ISO.14
[51] There is no test in the Act as to when an order for intensive monitoring should be made. Intensive monitoring is likely to be justified only in respect of an offender who poses a high risk of sexual offending and that risk “is likely to be exacerbated if the transition from prison to the community cannot be safely managed without close and constant supervision”.15
[52] I consider an intensive monitoring condition is necessary for all of the reasons set out in s 15(2)(a)(c) of the Act.
Not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional
13 I note that the application filed on 4 February 2021 included an additional condition relating to employment, which is no longer sought.
14 Section 107IAC(3).
15 Department of Corrections v Miller [2017] NZHC 2527, at [16].
[53] I accept that this condition is necessary to reduce the risk of reoffending. Mr Tuliloa has an extensive history of alcohol and drug abuse which started when he was 12 years old. I consider that his offending is closely connected to his alcohol and drug use.
To attend an alcohol and drug assessment, and attend, participate in and complete any treatment or counselling directed by a Probation Officer
[54]For the same reasons as above this condition is necessary.
To reside at Kaainga Taupua or any other address approved in writing by a Probation Officer, and not move from that address unless you have the prior written approval of a Probation Officer
[55] I accept this condition is necessary to ensure that Mr Tuliloa resides in appropriate accommodation where his conditions can be properly managed and in particular accommodation which has the resources to provide intensive monitoring. I consider that this condition will reduce Mr Tuliloa's risk of reoffending and promote his rehabilitation and reintegration.
To undertake, engage in and complete a reintegration programme administered by a programme provider between the hours of 8:00am and 8:00pm daily, as approved by a Probation Officer, and abide by the rules of the programme to the satisfaction of the Probation Officer
[56]For the same reasons I consider this condition is necessary.
To be at your approved address between the hours of 8.00pm and 8.00am daily unless you have prior written approval of a Probation Officer
[57] I agree that this condition is necessary to reduce Mr Tuliloa's risk of reoffending. His previous offending occurred during nighttime hours.
Not to enter the Wellington Region as defined by a Probation Officer in writing unless you have the prior written approval of a Probation Officer
[58] Mr Tuliloa's previous offending occurred in the Wellington area. I agree that this condition is necessary to reduce any risk of Mr Tuliloa having further contact with
his victims, which will in turn reduce his risk of reoffending and promote his rehabilitation and reintegration.
[59] However I note that it is not disputed that Mr Tuliloa has prosocial family at least some of whom are in Wellington who might provide positive assistance with his rehabilitation and I strongly encourage his being granted permission to do so at any reasonable opportunity.
To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a Probation Officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a Probation Officer
To submit to electronic monitoring as directed by a Probation Officer in order to monitor your compliance with any conditions relating to your whereabouts
[60] I accept that electronic monitoring is necessary to ensure that Mr Tuliloa complies with his curfew condition.
To attend a psychological assessment and attend, participate in and complete any recommended treatment as directed by a Probation Officer
[61]For the same reasons as above I consider this condition is necessary.
Conclusion
[62] I conclude on the evidence before me that Mr Tuliloa has a pervasive pattern of serious sexual offending, there is a high risk he will commit a relevant sexual offence in the future and an ISO is appropriate.
[63] I therefore make an order for interim supervision on the basis of the standard conditions and the special conditions outlined above, including an intensive monitoring condition, all of which I consider necessary and appropriate except that the standard condition relating to contact with 16 yearolds is modified to read:
Mr Tuliloa is not to associate with children under the age of 16 unless the child is a member of his immediate family or the child of an immediate family member and Mr Tuliloa is under the supervision of an adult.
[64] I also draw attention again to the undisputed evidence that contact with prosocial members of Mr Tuliloa’s family could assist with his rehabilitation and I encourage that being facilitated whenever possible.
Hinton J
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