Dennis v Chief Executive of Department of Corrections
[2025] NZHC 650
•24 March 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-110
[2025] NZHC 650
UNDER s 107M Parole Act 2002 IN THE MATTER
of an application to cancel an extended supervision order
BETWEEN
MICHAEL PATRICK DENNIS
Applicant
AND
THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 24 March 2025 Appearances:
M Starling for Applicant P A Currie for Respondent
Judgment:
24 March 2025
ORAL JUDGMENT OF OSBORNE J
Introduction
[1] Michael Patrick Dennis, now aged 60 years, is subject to an extended supervision order (ESO) which was imposed on 18 April 2018 for a period of 10 years on account of recurring sexual offending against children. Mr Dennis has applied under s 107M of the Parole Act 2002 (the Act) for an order cancelling the ESO. The Chief Executive of the Department of Corrections does not oppose the application.1
1 The application was initially opposed, but the opposition was withdrawn.
DENNIS v THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2025] NZHC 650 [24 March 2025]
Background
[2] The purpose of an ESO is to protect members of the community against those who pose a real and ongoing risk of committing serious sexual or violent offences.2 Relevantly, a Court may impose an ESO if the Court is satisfied the offender has, or has had, a pervasive pattern of serious sexual offending, and there is a high risk that the offender will in future commit a relevant sexual offence.3
[3] Mr Dennis’s first sexual offending occurred in Australia from November 1995 to February 1998. His victim was a girl aged between seven and nine years. Mr Dennis was convicted in December 1998 of 23 counts of sexual penetration of a child under 10, and seven counts of committing an indecent act with a child under the age of 16. He was sentenced to 12 years’ imprisonment. He was deported from Australia in 2008 following a period of imprisonment.
[4] The second offending occurred in 2012 in the North Island against the six-year-old daughter of a woman with whom Mr Dennis was in a relationship. Mr Dennis was sentenced in March 2013 to five years and two months’ imprisonment for that offending. His sentence expiry date was 6 July 2017. His release conditions ended in January 2018. The Chief Executive applied for an ESO and an interim supervision order (ISO) against Mr Dennis.
Imposition of ISOs and ESOs
[5] A health assessment report was provided to the Court. On 19 December 2017 Mander J imposed an ISO on Mr Dennis.4 The Judge identified the paramount consideration as being the safety of the community.5 The Judge adopted the test in Chisnall v Chief Executive of the Department of Corrections in relation to public protection orders––whether on the balance of probabilities, an order was required.6
2 Parole Act 2002, s 107I(1). I refer from now on in this judgment to ESOs insofar as they relate to sexual offending.
3 Section 107I(2).
4 Chief Executive of the Department of Corrections v Dennis [2017] NZHC 3205.
5 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [35]; and Parole Act, s 7.
6 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [25].
This required the Judge to assess on a provisional basis whether the criteria for an ESO under s 107IAA of the Act were made out.7 Mander J set out a comprehensive history of Mr Dennis’s sexual offending. The health assessor’s report assessed Mr Dennis as being at high risk of reoffending within 10 years of release. The Judge noted:8
… it is apparent from the nature of Mr Dennis’s past sexual offending on young girls, that whether he has successfully self-regulated himself since his release from prison may not realistically be known for some time.
[6] The Judge was satisfied on a provisional basis the statutory grounds for an ESO were established, and concluded it was proper to grant an ISO.
[7] Mr Dennis was released into the community in 2017. He has since lived in Greymouth and has support people––his ex-partner who lives in Australia and calls Mr Dennis weekly, stated that Mr Dennis was “significantly different now, more calm, more respectful”. The police liaison officer who has worked with Mr Dennis since 2018 has stated that Mr Dennis is “one of the more open men” he manages under the Child Sex Offender Register.
[8] In 18 April 2018, the Chief Executive’s ESO application was heard.9 Mr Dennis had initially opposed the application but by the time of the hearing consented to the making of an ESO. Dunningham J imposed an ESO. The Judge relied on the health assessor’s report which identified significant concerns with Mr Dennis’s attitudes towards his offending. The reporter assessed him at high risk of reoffending in terms of s 107IAA of the Act. The Judge considered no new material had been introduced to displace or call into question the provisional findings made by Mander J.
Expert reports
[9] I have two clinical psychologist reports. The first provided on behalf of Mr Dennis from Mr Nick Lascelles dated 5 March 2024. The second by Ms Charlotte Renouf, employed by the Department of Corrections, dated 23 October 2024.
7 Dennis, above n 4, at [47].
8 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14].
9 Chief Executive of the Department of Corrections v Dennis [2018] NZHC 712.
[10] Mr Lascelles assessed Mr Dennis as being at average risk of further relevant sexual offending during the next five years. He opined the assessment of high risk at the time the ESO was imposed is no longer sustainable on account of three main factors:
(a)Mr Dennis had spent almost six years (now seven) in the community without offending, which research indicates is associated with a substantial reduction in risk;
(b)Mr Dennis has aged to the point of passing the critical threshold of 60 years of age, beyond which rates of sexual offending sharply decline, regardless of other risk factors; and
(c)Mr Dennis completed sexual offence specific treatment while in prison and has demonstrated sustained change in many relevant risk factors following release.
[11] Mr Lascelles did note his key concern as being the historical stability of Mr Dennis’s sexual attraction to children and his inconsistent self-reporting on this issue during the assessment.
[12] Ms Renouf assessed Mr Dennis as being in the moderate risk category. She found a reduction in Mr Dennis’s risk level since the ESO was imposed, largely due to his demonstrated ability to remain offence-free in the community. Based on his ability to remain offence-free over a seven-year period since 2017, Ms Renouf concluded Mr Dennis would be in the below average risk category by 2028 assuming he remains offence-free. Ms Renouf recognises that, if Mr Dennis’s ESO were to be cancelled, he would benefit from a greater support network and an updated safety plan.
Legal principles
[13] Under s 107M(1) of the Act, at any time after an ESO has come into force, the offender who is subject to the order may apply to the sentencing court to cancel the order. The applicant must satisfy the court, on the basis of the matters identified in
s 107IAA, that the offender does not pose a high risk of committing a relevant sexual offence within the remaining term of the order.10 Relevantly, s 107IAA provides:
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.
[14] The four sets of risk factors identified in s 107IAA (that is, those identified in ss 1(a)–(d)) are cumulative––all must be present before an ESO can be put in place.
[15] The requirement that the Court “be satisfied” of each factor involves the exercise of judgement. It does not involve burden or standard of proof issues.11
[16] The Supreme Court, in Attorney-General v Chisnall, considered the ESO regime as a limitation on the New Zealand Bill of Rights Act 1990.12 The Court referred to the very important purpose of the ESO regime in protecting the public from sexual offending by high-risk or very high-risk recidivist offenders. The Court held the risk of such offending can be of sufficient importance to justify the particular
10 Section 107M(4).
11 McDonnell v Chief Executive of the Departments of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [71]–[75]; and Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 cited in Kerr v Chief Executive of the Department of Corrections [2021] NZHC 2347 at [33]. See also Kiddell v Chief Executive of the Department of the Department of Corrections [2019] NZCA 171 at [24].
12 Attorney-General v Chisnall [2024] NZSC 178 [2024] 1 NZLR 768; referring to New Zealand Bill of Rights Act 1990, s 26(2).
limitation of the particular rights.13 However, a “strong indication of risk provided by a history of proven serious sexual or violent offending” is required to justify the limitation of rights.14 This aligns with earlier jurisprudence that a “strong justification” is necessary to impose an ESO.15
[17] Previous cases show the Court must consider the counterfactual when assessing the risk Mr Dennis poses—what risk exists if the respondent is not subject to any monitoring requirements or any condition requiring him to accept support?16 I note in this context, Mr Dennis remains a registered offender on the Child Sex Offender Register and, because he has committed a class three offence, will have reporting obligations for the remainder of his life.17
Analysis
Approach taken in earlier cases
[18] I have had regard to relevant cases Moore v Chief Executive of the Department of Corrections,18 Kerr v Chief Executive of the Department of Corrections,19 McGreevy v Chief Executive of the Department of Corrections.20
[19] In Moore the Judge declined to cancel an ESO on the basis the Judge considered Mr Moore’s continued good progress to be dependent on external supports put in place by the Department of Corrections––the cancellation of the ESO would not be appropriate.21 The Judge concluded that, if the protective factors imposed by the ESO were removed, it could not be said that Mr Moore’s risk of relevant sexual offending would remain average or moderate.22
13 Attorney-General v Chisnall, above n 12, at [198], [205]–[206] and [208].
14 At [225].
15 Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [20].
16 Moore v Chief Executive of the Department of Corrections [2019] NZHC 1212 at [42]; Kerr, above n 11, at [35]. Also see McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [22] where the Court held the task under s 107IAA is an “inherently difficult exercise.”
17 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(a) and sch 2.
18 Moore, above n 16.
19 Kerr, above n 11.
20 McGreevy v Chief Executive of the Department of Corrections [2023] NZHC 2349.
21 Moore, above n 16, at [70].
22 At [71].
[20] In Kerr, the Judge declined to cancel an ESO, considering the progress Mr Kerr had made was recent (as reported by the experts). The Judge was concerned with the sustainability of the progress in the event of the counterfactual.23 However, the Judge noted that, if Mr Kerr continued to demonstrate good progress, he might succeed in an application to cancel the ESO 12 to 18 months later.24
[21] In McGreevy the Judge considered the assessors’ evidence, the fact Mr McGreevy had not committed a sexual offence for almost two decades, had been 34 at the time of the offending, and was now 52—having spent most of the last decade in the community.25 The assessors agreed Mr McGreevy had no predilection for serious sexual offending, that condition being historic and no longer an issue. The Judge found on the evidence Mr McGreevy did not have an intense drive, desire, or urge to commit a relevant sexual offence.26 The Judge cancelled the ESO.27
The matters for consideration under s 107IAA(1)
[22] The offender must currently possess the relevant (s 107IAA) trait and behavioural characteristics. They need not necessarily be manifested at the time the ESO application is determined.28 The Court is likely to consider the traits are still present where there is no evidence to suggest the traits formerly present no longer exist.29
[23] I have considered the reports which the Court received in relation to Mr Dennis in 2017. That early report was extensively summarised by Mander J in his 2017 judgment. A comparison of the 2017 report with the 2024 reports indicates there have been very significant and material changes (for the better) in Mr Dennis’s risk profile.
23 Kerr, above n 11, at [94].
24 At [111].
25 McGreevy, above n 20, at [21]–[22].
26 At [29].
27 At [43].
28 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [26] cited in
Madden v Chief Executive of the Department of Corrections [2024] NZCA 8 at [32].
29 Alinizi, above n 28, at [36] cited in Madden, above n 28, at [32].
(a) Displays an intense drive, desire, or urge to commit a relevant sexual offence
[24] The Court must be satisfied Mr Dennis no longer displays an intense drive, desire, or urge to commit sexual offending against children.
[25] Mr Lascelles identified that “[t]he degree to which this drive (s 107IAA) has persisted to the present date is unknown, as the evaluation relies particularly on self-reporting. He says “…I hold concerns about the accuracy of this self-report.” He adds, however, that “there has been no observable evidence of this drive, desire or urge for some years.”
[26] Ms Renouf also held concerns that Mr Dennis may not be accurately reporting sexual thoughts and arousal given such thoughts may be expected to be present in one’s life over many years. Ms Renouf opined that whilst not evidenced over some years, under certain predictable conditions, Mr Dennis’s underlying intense drive, desire, or urge for relevant sexual offending may be activated.
[27] Both experts agree that Mr Dennis’s age dramatically decreases his risk of reoffending.
[28] Applying the test that absent evidence the traits are no longer present a Court will presume they are still present, Mr Dennis may still be regarded as having drive, desire or urge to commit a relevant sexual offence. Although Mr Dennis’s age is a factor in his favour, both experts’ reports raise concerns that these traits may still be present and that Mr Dennis may not be accurately reporting deviant sexual thoughts.
(b) Predilection or proclivity for serious sexual offending
[29] This Court has previously observed that predilection and proclivity are used disjunctively––predilection means preference for or particular liking for some serious sexual offending, whilst proclivity embraces an inclination towards something considered morally wrong such as serious sexual offending.30
30 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44]. See also
Moore, above n 16, at [59].
[30] Mr Lascelles opined he does not expect that a long-term capacity for sexual arousal to children would entirely dissipate for any person with Mr Dennis’s history, but it was possible in the present case Mr Dennis’s predilection and proclivity for sexual offending had reduced to a point it would not be classified as such.
[31] Ms Renouf took a similar position, that while Mr Dennis had previously demonstrated a predilection for serious sexual offending, the evidence supporting any current, ongoing predilection remains unclear. His behaviour and other evidence does not support any current proclivity for serious sexual offending.
[32] Based on the available evidence, I do not consider Mr Dennis can any longer be viewed as having the necessary predilection or proclivity for serious sexual offending. Mr Dennis has not offended since he was released into the community in 2017, nor has he had any near misses. Mr Dennis has engaged in sexual relationships with adults and has been stable living by himself.
(c) Self-regulatory capacity
[33]In Chief Executive of the Department of Corrections v Bradbury (No 2),
Heath J stated of the s 107IAA(c) limb, that:31
[91] … The apparent nexus is between the existence of limited self- regulatory capacity (on one hand) and high risk of committing a relevant sexual offence (on the other hand).
[92] … the inquiry is directed to whether an offender has a limited capacity to self-regulate his or her desires or urges to commit relevant sexual offences. … the question is whether an offender has sufficient capacity to self-regulate those impulses. Yet, to approach the issue in that way is over simplistic. As a matter of common sense, the extent of any ability to self- regulate those impulses is dependent on the capacity to avoid circumstances in which the relevant drive, desire or urge are likely to manifest themselves…
[34] Mr Lascelles identified Mr Dennis demonstrated long-term difficulties in both general and sexual self-regulation, pointing to repeated offending despite apprehension. In his favour, Mr Dennis has not demonstrated problems with sexual self-regulation over the last decade. Mr Lascelles considers Mr Dennis has shown
31 Chief Executive of the Department of Corrections v Bradbury (No 2) [2016] NZHC 2816 (footnotes omitted).
improved ability to self-manage under supervision although the degree to which he would continue to cope in the absence of his current level of support and oversight is unknown.
[35] Ms Renouf identified a possibly overconfident and overly casual approach on Mr Dennis’s part to managing his own risk levels. Ms Renouf reported (modest) breaches of ESO conditions in relation to alcohol and drugs involving what Mr Dennis described as “an occasional puff of cannabis” or “an occasional alcoholic drink”. Ms Renouf considered these matters may indicate a continued lack of insight and/or poor problem solving. She noted Mr Dennis continues to place himself in situations that appear to have limited prior consideration for potential consequences. She identified Mr Dennis continues to have limited insight and a poorly developed plan for managing high risk situations. She considers this does raise concerns for how Mr Dennis would manage his risk of reoffending sexually in the absence of ongoing supervision and oversight. However, Ms Renouf considered, on balance, that Mr Dennis currently displays satisfactory self-regulatory capacity.
[36] Despite some instances of not adhering to his ESO conditions or his safety plan, Mr Dennis has lived offence-free in the community for over seven years. He has maintained a stable and consistent lifestyle. He has clearly expressed a desire to remain offence-free. His self-regulation ability appears sufficient to mitigate the risk he poses in this regard.
(d) Displays either or both a lack of acceptance of responsibility or remorse and/or an absence of understanding for or concern about the impact of his sexual offending
[37] This Court has interpreted this phrase as used in relation to public protection orders. Justice Moore observed:32
[82] … “absence of understanding or concern …” may suggest there must be no understanding or concern. I do not think that is right for several reasons. First, it would be impossible to establish a “complete absence”. Someone may express intellectually understanding, or concern, or … indicates, it might be parroted or rote. … but absence of something is defined to include “lack of”, in the sense of a deficiency:
Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 (approved in
P(CA388/18) v Chief Executive of the Department of Corrections [2018] NZCA 599 at [42]).
…
[89] In my view, ‘an absence of understanding or concern …’ means that
… the check and balances inherent in the combined and individual characteristics in s 13(2) are not operative to negate the risks which derive from those characteristics.
[38] Mr Lascelles identified Mr Dennis as struggling to accept responsibility and to understand the impact of his sexual offending on actual or potential victims. Mr Dennis appears to focus more on feelings of guilt and remorse rather than the negative consequences of his offending for himself. But Mr Lascelles could not be certain this was not an impression management strategy. That said, Mr Lascelles identified Mr Dennis has shown a consistent commitment to managing risk and emphasised his desire to avoid repetition of offending.
[39] Ms Renouf reached a similar conclusion, finding Mr Dennis had ongoing impairments in understanding the impact of his offending on his victims and accepting responsibility and having remorse for past offending.
[40] The evidence indicates Mr Dennis still displays inadequate understanding and concern about the impact of his offending. The experts are united in their assessment that Mr Dennis’s answers around the impact of his offending on his victims indicate an intellectualised or rote answer. Were I determining an application under s 107IAA, I would have been satisfied that Mr Dennis still displays the characteristics identified in subs (1)(d).
Cancellation of ESO
[41] The Court must assess the factors in s 107IAA, with the decision to cancel an ESO ultimately involving the exercise of discretion.33
[42] I consider this case is finely balanced. While Mr Dennis has the characteristics identified in s 107IAA(1)(a) and (d), that does not apply to the factors in subs 1(b) and (c). My decision must have regard to the Supreme Court’s observations in Attorney-General v Chisnall that ESOs must impinge on an offender’s rights only
33 See Madden, above n 28, at [49]; and Mosen v Chief Executive of the Department of Corrections
[2022] NZCA at [31].
where sufficiently justified by a high risk posed to the community and therefore protection of the public.34 The risk profile Mr Dennis presents today lacks the characteristics identified in subs 1(b) and (c), meaning that for those two reasons, an ESO would not be made today if this were a fresh ESO application. In the exercise of any discretion, I also take into account that Mr Dennis remains subject to lifelong reporting obligations under s 35(1)(a) Child Protection (Child Sex Offender Government Agency Registration) Act 2016 and that such will require annual reporting by Mr Dennis and thereby supervision by the Commissioner of Police under that Act. He will also be required to provide timely updating of any changes in his circumstances. I am satisfied having regard to the psychological assessments provided, and to these specific considerations arising under the Parole Act and Child Protection (Child Sex Offender Government Regulation) Act, that Mr Dennis’s ESO should be cancelled.
Result
[43]The application will be granted.
Outcome
[44]The extended supervision order made on 18 April 2018 is cancelled.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
Copy to: M Starling, Barrister, Christchurch
34 Attorney-General v Chisnall, above n 12, at [225].
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