Department of Corrections v Gray
[2021] NZHC 3558
•20 December 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-404-020
[2021] NZHC 3558
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
KAAHU HIRIAM GRAY
Respondent
Hearing: 16 December 2021 Appearances:
F E Cleary for the Applicant
J L McLeod for the Respondent
Judgment:
20 December 2021
JUDGMENT OF COOKE J
Table of Contents
Background [3]
The law [14]
The required approach [18]
Application in the present case [26]
Does Mr Gray have, or has he had, a pervasive pattern of serious violent offending? [35] Does Mr Gray meet the qualifying criteria as set out in s 107IAA? [40] Does Mr Gray have intense drive, desires, or urges to commit acts of violence? [41] Does Mr Gray have extreme aggressive volatility? [43] Does Mr Gray persistently harbour vengeful intentions towards 1 or more other persons? [45]
Does Mr Gray display behavioural evidence of clear and long-term planning of serious violent
offences to meet a premeditated goal or have limited self-regulatory capacity? [48]
Does Mr Gray display an absence of understanding for or concern about the impact of his
violence on actual or potential victims? [52]
Final determination [54]
Conclusion [61]
DEPARTMENT OF CORRECTIONS v GRAY [2021] NZHC 3558 [20 December 2021]
[1] By application dated 13 January 2021, the Chief Executive of the Department of Corrections applies for an Extended Supervision Order (ESO) under s 107F of the Parole Act 2002 (the Act) against Mr Kaahu Hiriam Gray. The application seeks an ESO for a period of two years.
[2] Mr Gray has been subject to two interim supervision orders (ISO) pending determination for this application. The first order was granted for 10 working days,1 and the subsequent order was put in place upon expiry of Mr Gray’s release conditions.2
Background
[3] Mr Gray is 33 years old and is of Ngāti Porou and Te Arawa descent. He suffered the loss of both parents at an early age — his father passed away when he was 11 months old, and his mother was killed when he was 14 years old. Mr Gray’s behaviour deteriorated in his adolescence and he ultimately left school. His criminal history begins from 2003 in the Youth Court and has steadily accrued a number of offences, including violent offences. In particular, two of his convictions have included stabbings and sustained assaults.
[4] In 2006 Mr Gray and his friends became involved in a physical altercation. The victim, who was unknown to Mr Gray, came by to investigate as the altercation was taking place next to his vehicle. He was stabbed by Mr Gray in the lower abdomen in an attack that was described by the sentencing Judge as “unprovoked”. Mr Gray was sentenced to four years’ imprisonment in Hamilton District Court after a jury found him guilty of wounding with intent to cause grievous bodily harm.3
[5] In 2010 Mr Gray pleaded guilty to a charge of robbery and was sentenced to one year and ten months’ imprisonment. 4 The offending occurred when he grabbed money from the complainant, who was visiting Tāupo. There was a struggle with the complainant and a co-offender punched the complainant several times over the head.
1 Chief Executive of the Department of Corrections v Gray [2021] NZHC 392.
2 Chief Executive of the Department of Corrections v Gray [2021] NZHC 2364.
3 R v Gray DC Hamilton 2006-024-446, 1 May 2007.
4 R v Gray and Anor DC Rotorua CRI-2010-069-000080,22 September 2010.
At that point it was noted by the sentencing Judge that Mr Gray had at least five previous convictions for violent offending.
[6] In 2012 Mr Gray pleaded guilty to a charge of male assaults female amongst other charges. The offending occurred when Mr Gray got into an argument with his partner and hit her over the head with an empty aluminium alcohol can and then put her into a headlock as well as placing his hands over her neck. He then presented a large kitchen knife at her. For that charge and associated charges Mr Gray was sentenced to 16 weeks home detention.5
[7] In 2013 Mr Gray pleaded guilty to two charges of male assaults female. An argument arose between Mr Gray and his partner which resulted in Mr Gray grabbing her arm and forcing her onto a bed, after which he climbed on top of her and straddled her. He then struck the right side of her face with his hand and later forced her back onto a bed, straddled her again and pulled her jacket collar so hard that it hurt the back of her neck. For these offences Mr Gray was sentenced to six months’ imprisonment, subject to standard and special release conditions for six months.6
[8] The offending for which Mr Gray has most recently completed a term of imprisonment occurred in breach of those release conditions.
[9] Mr Gray and his then partner, who was the victim, began a relationship in September 2012. In August the following year, the victim obtained a Temporary Protection Order to protect herself and her three children from Mr Gray, and she subsequently also decided to end the relationship.
[10] Shortly thereafter the victim and her children were in the process of relocating from Te Puke to Auckland. On the evening of 8 September 2013, the victim had been saying her “goodbyes” to her children’s paternal grandfather. When she was reversing out of the driveway to the house, Mr Gray got into her car and instructed her to drive to a local park. When she refused, he punched her in the head several times and gave her an ultimatum – he would count to 10 and if she refused he would give her a
5 Police v Gray DC Rotorua CRI-2011-063-4547, 3 May 2012.
6 Police v Gray DC Tauranga CRI-2013-070-1268, 1 May 2013.
“combo”, meaning punching her with a left and right fist. The victim got out of her vehicle and ran to the front door of the house to escape Mr Gray, however the door was locked and Mr Gray caught the victim outside where he repeatedly punched her hard about the head with both fists.
[11] An older male occupant of the house opened the door and came outside and confronted Mr Gray. The victim then ran into the house and into the kitchen. Mr Gray followed her inside and punched her twice in the face. He grabbed a fork and drove it into the top of the victim’s head, although it bent rather than puncturing her skin. He then attempted to grab her throat, but was prevented from doing so by the older male, but nevertheless continued to punch her in the head. At this point two males were struggling with Mr Gray. The victim ran into a bedroom and put furniture against the door before calling the police.
[12] Mr Gray stopped struggling and was allowed to leave by the male occupants. He left to a neighbouring property, but then returned with a knife and attacked the victim again, this time striking her twice in the chest with the knife and punching her about her head and body. The two male occupants struggled with Mr Gray again and the victim escaped to the lounge. The males then left to get away from Mr Gray, and he left the house and drove off in the victim’s car which he later abandoned. As a result of the offending, the victim sustained life-threatening injuries which included stab wounds and damage around other parts of her upper body such as the shoulders, teeth, ribs and head and face.
[13] Mr Gray was sentenced by Duffy J to a sentence of seven years, six months’ imprisonment for the charge of wounding with intent to injure to cause grievous bodily harm.7 A minimum period of imprisonment of four years and six months was imposed. Duffy J also considered a sentence of preventative detention, but ultimately decided against it.
7 R v Kaahu Hiriam Gray [2014] NZHC 789.
The law
[14] The purpose of an ESO is “to protect members of the community from those who, following the receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.”8 The offence which gives rise to the application must be a relevant offence under s 107B,9 and s 107C requires that the offender be either serving a sentence of imprisonment, be subject to release conditions, or be subject to an existing ESO. Section 107I(3) provides that a sentencing court may make an ESO in relation to an offender who was eligible at the time of the application, even if by the time an ESO is made the offender has ceased to be an eligible offender.10 Mr Gray satisfies these preconditions.
[15]Section 107I(2) provides when the sentencing court may make such an order:
(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.
…
[16] In determining an application for an ESO, the Court must be satisfied of the considerations under s 107IAA, which are “mandatory and conjunctive”.11 The relevant provisions are as follows:12
(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 –
8 Parole Act 2002, s 107I(1).
9 Section 107B(2A)(f); s 188 of the Crimes Act 1961 (wounding with intent to cause grievous bodily harm) is a relevant offence.
10 Section 107I(3).
11 Chief Executive of the Department of Corrections v W [2016] NZHC 1082 at [21].
12 Parole Act 2002, s 107IAA(2).
(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 vitality; 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.
[17] In order to determine these factors the Court has been provided with reports to which it must have regard when deciding whether to grant such an application:13
(a)a report prepared by Mr Jacques Taylor, psychologist, dated 23 November 2021 (Mr Taylor’s report); and
(b)a report of Dr Duncan Thomson, clinical psychologist and neuropsychologist, dated 17 November 2021 (Dr Thomson’s report).
The required approach
[18] In Chief Executive, Department of Corrections v Alinizi the Court of Appeal outlined the following approach to considering whether to make an ESO:14
(i)the Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;
(ii)the Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and
13 Section 107I(2).
14 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
(iii)if those criteria are met the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.
[19] A full Court of the Court of Appeal has very recently released judgment in Chisnall v Attorney-General.15 After a comprehensive assessment of ESOs, and orders made under the Public Safety (Public Protection Orders) Act 2014 (PPOs), the Court confirmed that the statutory provisions authorising such orders were inconsistent with the right in s 26(2) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) — the right that “no one who has been finally acquitted or convicted of, or pardoned of, an offence shall be tried or punished for it again”. The Court considered whether the measures were demonstrably justified in a free and democratic society under s 5 of the Bill of Rights, but determined that such justification had not been made out. When doing so it responded to an argument that the fact that decisions will be made in individual cases meant that the regimes were demonstrably justified. The Court said:16
We do not consider it is an adequate response to say, in assessing whether the limits on the right contained in the legislation have been demonstrably justified, that orders will not be made in individual cases without a full assessment by judicial officers. In essence that reduces the s 5 analysis to a case by case consideration without asking the essential question of whether the ESO and PPO regimes represent reasonable limits of the s 26(2) right. That is the question raised by s 3 of the Bill of Rights Act which applies the Act’s provisions to acts done by the legislative branch of government, as well as the other branches. To say the Acts may be able to be applied in a rights-compliant way does not answer the central question, which is whether the relevant provisions of the Parole Act and the PS (PPO) Act delineate regimes that limit rights in a way, and to an extent, that has been demonstrably justified.
[20] The Court noted that the Supreme Court has also recently released its decision in Fitzgerald v R which effectively involved that Court interpreting the three strikes regime so that it could not be applied when to do so would be inconsistent with s 9 of the Bill of Rights.17
[21] I also note there may be room for other rights to be relevant. Under s 25(c) of the Bill of Rights everyone has the right to be presumed innocent until proved guilty according to law. That right arises only when a person is charged. But the presumption
15 Chisnall v Attorney-General [2021] NZCA 616.
16 At [220].
17 Fitzgerald v R [2021] NZSC 131.
of innocence may nevertheless inform the assessments made when considering an ESO. That is because the Court is being asked to predict whether future offending will be committed by the defendant. The reality is that when the Court is making the assessment it is not so much assessing whether the defendant should be further punished for previous offending, but rather is assessing whether orders should be made to prevent further offending. The presumption of innocence is clearly engaged.
[22] In any event it seems to me that the Court’s judgment in Chisnall should have implications for the way that the Act is interpreted and applied in individual cases. It has not been argued, or suggested, that the ESO regime can, or should not be applied at all when there is an infringement of the rights in the Bill of Rights. Were that to be raised s 4 of the Bill of Rights would need to be confronted. But s 6 of the Bill of Rights mandates giving the provisions a meaning consistent with the Bill of Rights if such an interpretation is available. And s 5 requires that the interpretation and application of the provisions should, so far as possible, correspond to what is demonstrably justified as a limit upon the rights in the Bill of Rights. Indeed given that the making of an ESO is ultimately discretionary — s 107I(2) provides that the Court “may make” such an order — it seems to me that a Court should not make an order unless it is satisfied that such an order involves a demonstrably justified limitation on the defendant’s rights.
[23] A degree of recalibration of the approach applied may accordingly be called for. The statutory test for the grant of an ESO in relation to cases of violent offenders is that there is a “very high risk” that the offender will in the future commit a relevant violent offence (s 107I(2)(b)(ii)). There is no statutory definition of that standard, although it is informed by mandatory factors listed in s 107IAA(2). Neither are the temporal limits of the phrase “in the future” specified. In light of the influence of ss 5 and 6 of the Bill of Rights I consider that an ESO should only be granted when it is demonstrably justified. This only arises when the order is required to protect the public. As the Court noted in Chisnall the severe restrictions under an ESO are “clearly based on the legislature’s view that without these restrictions the offenders will constitute a danger to the public”.18 It is not sufficient that there is a risk, or even
18 Chisnall v Attorney-General, above n 15, at [225].
a high risk of further violent offending. What is required is a “very high risk”, which suggests a more immediate risk to public safety that will arise if the ESO is not granted. It also suggests that the Court will need to be sure that such a risk will materialise if the ESO is not granted. Such an interpretation of “very high risk” seems consistent with the factors referred to in s 107IAA(2) which also are highly suggestive of an immediate risk of something that is highly likely to happen. That is because of the words used in the section — “intense” “extreme” “persistent” “clear” “absence” — suggest a risk that is almost unavoidable.
[24] Such a standard would require the Court to be sure that further violent offending will be committed by the defendant in the immediate future. I say immediate future because more medium term risks introduce greater degrees of temporal uncertainty. An immediate threat to public safety seems to me to be needed before such orders are justified. That has implications for the risk assessments that are usually provided by the expert health assessor, as these usually assess risk by considering five and ten year periods. Risk assessment over a period of five to ten years is arguably beyond the kind of immediate risk that would be most relevant.
[25] There is a further dimension. The usual approach to assessing whether a measure involves a demonstrably justified restriction upon a fundamental right includes assessing whether the measure impairs the right no more than reasonably necessary to achieve a legitimate purpose, and that the limit is in due proportion to the importance of the purpose sought to be achieved.19 So it is necessary to evaluate whether the ESO as proposed, including its terms and conditions, properly protects the public from the very high risk, and that the restrictions in the proposed order do so no more than is reasonably necessary to achieve that protection. In the present case it would be necessary to demonstrate how an ESO would protect the relevant members of the public from the very high risk of violent offending that would arise if the order is not made.
19 At [181], referring to R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [104].
Application in the present case
[26] Against that background I consider the requirements in the present case. I will do so first by addressing the case in a general way before also considering the mandated considerations.
[27] As required the reports of two psychologists have been provided. Neither of them give evidence that the threshold of very high risk was satisfied. The reports are in agreement, however, that there is a high risk of Mr Gray committing a further relevant violence offence. Dr Thomson further observes that the risk assessments indicate that Mr Gray exhibited most of the empirically supported characteristics of recidivist violent offenders. For instance Dr Thomson found that all 20 of the dynamic risk factors identified by the Violence Risk Scale were relevant to Mr Gray. His score fell in the high range, which is typically associated with a violence recidivism rate of 50 per cent, and that he could be said to have a risk of above 50 per cent over a 4.4 year period.
[28] This is consistent with Mr Taylor’s view, which was based on a multi-method assessment of the risk of further relevant violence re-offending. Amongst the methods employed Mr Taylor employed the RoC*Rol actuarial risk measure which categorises offenders from low to very high risk of imprisonment. Mr Gray fell into the high risk category, meaning there is a high risk of offending leading to imprisonment within five years of being released. Mr Taylor also used the Violence Risk Scale, where Mr Gray was again assessed as being in the high risk category. Mr Taylor’s report states:
It is considered that there remains a high risk of Mr Gray committing a further relevant violence offence within ten years of release. Factors including substance misuse/abuse, intimate relationship instability, weapon use, and affiliation with criminal peers could vary this risk. Should these factors coincide during the same period of time, Mr Gray’s risk of committing a further relevant violence offence could increase to very high.
Should he re-offend violently, it would most likely be intimate partner violence, in the context of relationship instability and substance misuse/abuse. Precipitating factors could include distorted thinking related to perceived infidelity, feeling disrespected or invalidated, a fear of abandonment, sexual jealousy, or a perceived lack of compliance on part of the victim. Mr Gray would most likely become enraged, engage in verbal abuse (including threats), and resort to reactive manual violence in an attempt to enforce compliance or express his anger. This could include slapping, using his fists, and strangulation of the victim. During the assault, Mr Gray would most likely
try and prevent the victim from escaping the assault by manually restraining her. Should the assault become protracted he could seek a weapon, including an opportunistic object, to escalate the assault. He might be undeterred by attempts to stop him from engaging in this violence. Potential harm could include sever psychological harm and life-threatening injuries. An aggravating factor would include affiliation with criminal/antisocial peers, which could escalate the probability of Mr Gray resorting to either carrying a weapon and/or being more hypervigilant regarding access to objects that can serve as weapons.
[29]Dr Thomson similarly states:
Risk assessment scores suggest Mr Gray presents a high risk of reoffending (as defined by the authors of the risk assessment tool), particularly (but not limited to) violence towards an intimate partner in the context of rejection, perceived infidelity, perceived wilful non-compliance and substance use.
[30] A significant feature of this evidence is the conclusion that the question whether the risk will manifest itself through further violent offending is said to be dependent on how things go for Mr Gray. I understand the opinions to be that there is a real risk of further serious violent offending, but it is not inevitable, and it depends on the circumstances. Put another way neither Mr Taylor nor Dr Thompson are sure that it will occur.
[31] Ms Cleary correctly points out that it is ultimately the Court that makes the assessment, with the psychologist reports simply providing helpful evidence directed to that question. In the end it is the Court that must make the required evaluation.20 A key component of her argument for the grant of an ESO is that an allegation has been made that Mr Gray has again engaged in violence against his new partner. But he denies the allegation, and his domestic partner also appears to do so. The evidence that he has engaged in it comes from a third party only.
[32] One of the difficulties with this line of argument is that it suggests that the Court should place considerable weight on this information when no formal allegation has been advanced, let alone proved. When granting the ISO Gwyn J said that “the
20 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52] and [59]; Grieve v The Chief Executive of the Department of Corrections CA150/05 [30 August 2005] at [15]; Miller v Department of Corrections [2021] NZHC 983 at [43].
Department will require more definitive evidence at the ESO hearing” when referring to the reliance on this information.21
[33] No such further evidence is provided, and I am not satisfied that the information of recent intimate partner abuse materially affects the ultimate conclusion that emerges from the evidence in those circumstances. There is plainly a significant risk that Mr Gray will engage in further violent offending, particularly against an intimate partner. But I cannot be sure that this will take place in the immediate future. There is evidence that suggests that Mr Gray may be able to avoid such offending. Mr Taylor effectively says whether he does or not will depend on the circumstances
— it will only be if there is a combination of adverse circumstances, such as reversion to methamphetamine use combined with stresses in a domestic environment, that will likely lead to that outcome. Once the Court is in the position where the best evidence available suggests that whether there will be further violent offending is uncertain and will depend on the circumstances, I doubt that it can be appropriate to make an ESO given the high standards that should be set to ensure that the power to grant an ESO is only exercised in a Bill of Rights compliant way.
[34]This is further illustrated when considering the specific statutory criteria.
Does Mr Gray have, or has he had, a pervasive pattern of serious violent offending?
[35] The ESO application is brought primarily on the basis that in the event factors such as substance abuse or misuse, intimate relationship instability, weapon use, and affiliation with criminal peers coincide, Mr Gray’s risk of committing another violent offence would increase to very high. This is supported by the seriousness of Mr Gray’s latest conviction, a failed methamphetamine test and the unproven allegation of recent intimate partner violence.
[36] When granting the ISO, Gwyn J accepted that Mr Gray had a pervasive pattern of serious violent offending, saying that it was of “particular concern that Mr Gray has
21 Chief Executive of the Department of Corrections v Gray, above n 2, at [24].
received multiple sentences of imprisonment, and appears to regularly violently offend against his intimate partners within a short period of time after release from prison”.22
[37] In Chief Executive of the Department of Corrections v Ihimaera Muir J noted there was limited authority on the meaning of “pervasive pattern”23 He returned to first principles to assess whether the respondent’s previous offending constituted a pervasive pattern and in doing so said:24
The word “pervasive” is defined as “having the quality or power of pervading; penetrative, permeative, ubiquitous”.25 It is in turn used to qualify the word “pattern” which is defined to mean a “regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based”.26 Taken together the two words suggest that the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct.
[38] Adopting that approach the Court would need to identify the characteristics of Mr Gray’s offending that are so prevalent and common that they provide a reliable predictor of relevant future conduct.
[39] Mr Gray’s offending has not been consistent. The unprovoked attack for which he was convicted in 2007 is dissimilar to the offending against an intimate partner giving rise to his latest conviction. Similar offending has not been repeated. The string of violent offences involving intimate partners are more indicative of the pervasive pattern test. Of these offences however, only one has involved a relevant violent offence as required by s 107B(2) or (2A). So whilst I am sure that there is a pervasive pattern of violence against intimate partners, I am not so satisfied that there is a pervasive pattern of serious violent offending which is what the test requires.
Does Mr Gray meet the qualifying criteria as set out in s 107IAA?
[40]I turn now to the qualifying criteria in s 107IAA(2).
22 Chief Executive of the Department of Corrections v Gray, above n 2, at [26].
23 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [35].
24 At [46].
25 “pervasive, adj.” OED Online (Oxford University Press, June 2017).
26 “pattern, n and adj.” OED Online (Oxford University Press, June 2017).
Does Mr Gray have intense drive, desires, or urges to commit acts of violence?
[41] Mr Taylor assessed Mr Gray to have harboured an intense drive, desire, or urge to commit acts of violence across his lifespan. However Mr Taylor states that it is not possible to accurately assess the intensity of Mr Gray’s drive, desire or urge to commit acts of violence. He noted however, that the presence of persistent and frequent verbal or threatening aggression is indicative of a remaining drive. Dr Thomson has also noted that Mr Gray has been consistently violent throughout his life. However in his opinion Mr Gray does not “desire” to hurt his partners but struggles to regulate himself when they do not behave as he wishes.
[42] The presence of persistent and frequent verbal or threatening aggression is not necessarily indicative of a remaining drive. Given Mr Gray’s background, a resort to violence appears to be a consistent practice since his adolescent years. For Mr Gray to regulate himself to the extent that his aggression is limited to verbal aggression might be regarded as an improvement. It is also significant that the intensity of Mr Gray’s drive, urge or desire to commit violent acts could not be accurately assessed. That is different from other cases where an ESO was granted. For example in Chief Executive of the Department of Corrections v CJW the respondent had convictions for violence in prison and continued to display a strong drive to commit acts of violence, “evidenced by his being capable of using violence as a means to an end which has continued during his present period of incarceration”.27
Does Mr Gray have extreme aggressive volatility?
[43] Mr Taylor considered Mr Gray to be prone to volatile verbal aggression as evidenced by the reactive nature of his violent acts. Outside of partner relationships however, Mr Gray’s aggressive volatility appeared to have decreased since 2017. Dr Thomson concurred with this opinion, but said it was difficult to know how aggressive Mr Gray’s was on a daily basis because his behaviour in the community unmonitored. So his ability to exert control over that aggression without supervision “remains largely untested”.
27 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [32].
[44] I accept that Mr Gray is prone to aggressive volatility in an intimate partner relationship and that this could be viewed as extreme. Whilst Mr Gray’s behaviour may have shifted from physical aggression to verbal aggression whilst in prison, he has not had the opportunity to reform his behaviour within relationships. His rehabilitative steps seem more to support his work ethic than his behaviour in a relationship. There has also been an unproven allegation of such violence shortly after Mr Gray was released from prison which might mean Mr Gray has not changed his behaviour very much at all. So I conclude this criteria is likely to be satisfied.
Does Mr Gray persistently harbour vengeful intentions towards 1 or more other persons?
[45] Dr Thomson considered that Mr Gray harbours active resentment towards anyone in authority who makes a negative report about him. However his behaviour did not suggest any “persistent vengeful intent” towards individuals. Mr Taylor was of the view that Mr Gray’s intimate relationships have been characterised by sexual jealously and possessiveness. Mr Taylor observed that a previous psychological assessment had assessed Mr Gray to have a propensity for resentment and revenge, although the violence appears to be reactive.
[46] Mr Gray might harbour vengeful intentions when his wishes are challenged or there is an argument. That much is evidenced from the 2012 and 2013 convictions — on both occasions Mr Gray assaulted his partners when an argument broke out. His assaults are generally sustained. The index offending is particularly concerning — it arose after the victim had obtained a temporary protection order and decided to end the relationship. In that instance Mr Gray did harbour vengeful intentions toward the victim. He pursued her when she was seeking to leave, and his attack was sustained to the extent that even after leaving the house he returned with a knife and stabbed her. He also apparently tried to contact her from prison.
[47] However Mr Gray appears to be in a different relationship and so I cannot conclude he persistently harbours vengeful intentions toward his present partner, or the former victim. What can be said in light of the reported incident, though unproven, is that he might harbour such intentions toward his intimate partners in the future in particular circumstances.
Does Mr Gray display behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal or have limited self-regulatory capacity?
[48] Mr Gray has not displayed or currently displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal. As Duffy J noted in his sentencing notes for Mr Gray’s most recent conviction, his attack did not appear to be premeditated and his conduct was viewed as “happening in the heat of the moment when you were in a violent enraged state”.28 In his previous offending there is clearly a connection between violence and Mr Gray’s rage, but there is no evidence of premeditation or long-term planning.
[49] But Mr Gray may exhibit limited self-regulatory capacity. Gwyn J was satisfied that Mr Gray has limited self-regulatory capacity, particularly in light of the reported violence post release.29
[50] Mr Taylor observed that during Mr Gray’s recent incarceration, his poor behavioural controls have shifted from physical violence to verbal aggression, which included threatening behaviour. Alongside this, Mr Gray showed improvement in his work ethic, displayed less irresponsible and impulsive behaviour, and that overall Mr Gray has displayed signs of apparent improved self-regulatory capacity, although this remains untested in the community. Dr Thomson observed that Mr Gray regulates himself “primarily through avoidance and using aggression to control his emotions”, which would leave him vulnerable to encounters if those approaches were ineffective. As with Mr Taylor’s finding, Dr Thomson noted Mr Gray’s ability to maintain behavioural control if he were to relapse into substance abuse or if he experienced significant challenges in his relationship is untested.
[51] For the purposes of establishing the very high risk standard, the reports are indicative of an improvement in this area. While the risk that he may not be able to regulate himself in certain situations is not tested, I am not satisfied that Mr Gray is totally limited in his self-regulatory capacity.
28 R v Gray, above n 7, at [64].
29 Chief Executive of the Department of Corrections v Gray, above n 2, at [31].
Does Mr Gray display an absence of understanding for or concern about the impact of his violence on actual or potential victims?
[52] Dr Thomson observed that Mr Gray actively avoided this topic and seemed to minimise the seriousness of his behaviour and that he gave no indication of demonstrating any empathy, concern, or understanding of the impact of his behaviour on previous victims. Mr Taylor observed that at the time of the assessment Mr Gray’s ability to experience remorse and show empathy towards his victims was unclear. From a previous psychological assessment it was however, clear that Mr Gray displayed a limited understanding or concern about the impact of his behaviour. So the reports are somewhat in agreement.
[53] During sentencing, Duffy J observed that Mr Gray had requested the opportunity to proceed with a restorative justice conference and during that conference he was genuinely remorseful to the victim. Later Duffy J concluded that it was clear Mr Gray had shown a measure of genuine remorse.30 So Mr Gray may have displayed some understanding about the impact of his violence on the victim. Whether that is the case now is unclear.
Final determination
[54] I have already engaged in an overall evaluation at paragraphs [26] to [34] above, and explained the reasons why I do not think the statutory thresholds are met.
[55] But there is a further dimension. As I have indicated it is necessary to be satisfied that the proposed order is no more restrictive than is necessary as a limitation on fundamental rights, and that it does so in a proportionate way.31 That requires the Court to assess how the proposed order, and the terms of the proposed order, protect the public from the anticipated violence. If it does not do so effectively, then the order cannot be justified.
[56] On this question I have significant doubts that an ESO will provide meaningful protection. The kind of serious violence that potentially provides the basis to make an
30 R v Gray, above n 28, at [70].
31 See [24] above.
ESO is intimate partner violence. What would be contemplated is that Mr Gray will form an intimate partner relationship which will develop the kind of violence that is contemplated. I am not convinced that an ESO over a two year period is the kind of order that will prevent, let alone seriously mitigate against the risk of such violence. The standard terms of an ESO as set out in s 107JA do not seem to be well directed to this situation. For example, requiring Mr Gray to remain at a particular address unless permission is given by a probation officer is not likely to help prevent that kind of violence occurring. Indeed there is a prospect that requiring Mr Gray to stay at a particular address might even increase the risk of such violence as it may restrict his ability to leave that address. An analysis of the other standard terms of an ESO as set out in s 107JA do not suggest that any are particularly well directed to the risk arising in Mr Gray’s case. For example it is hard to see how obtaining a probation officer’s consent to any change of employment is relevant to the risk.
[57] I asked both of the psychologists for their view whether the standard conditions of the ESO meaningfully addressed the risk. Mr Taylor noted that this may be beyond matters where he had expertise, but agreed that the standard conditions did not seem to be directly related to the risk here, although he made the point that even though the particular conditions did not appear to address the risk there was an indirect benefit from the defendant being kept under supervision, and therefore provided with assistance in adopting a generally more compliant lifestyle. Dr Thompson tended to discount that factor however, as Mr Gray had developed an antagonistic relationship with the Department of Corrections, and that ongoing monitoring of this kind was unlikely to be helpful for that reason. He was also of the view that very few of the conditions of an ESO could be said to meaningfully mitigate the risk in question.
[58] I note that the Department seeks a special condition relating to drug and alcohol consumption and that this was a term of the ISO. This could be said to mitigate the risk of reoffending. I also note that the condition in s 107JA(e) allowing a probation officer to prohibit the defendant residing at a particular address might have utility if intimate domestic violence occurred. But generally the conditions are not well directed to someone in Mr Gray’s position.
[59] The Court should also be as particular as possible in assessing the very high risk of reoffending, and how the ESO addresses that risk. Mr Gray is in a new relationship. His new partner attended the hearing to support him. The risk that may materialise is most likely to arise in this relationship, at least in the immediate future. The relationship could be considered as an example of one of the factors which, if coinciding with other factors, could lead to the very high risk of reoffending referred to by Mr Taylor. But the ESO does not seem to me to be a well directed tool designed to mitigate the risk in that relationship. There are other tools — for example his partner could seek a protection order if the risk began manifesting itself. Notwithstanding the risks that plainly exist I am not satisfied that an ESO is an appropriate Court order to be made in relation to the risk of violent offending that may develop in this relationship.
[60] So I conclude that in this case that an ESO is not an order that involves restrictions that involve a justified limitation and go no further than is required to satisfy the justified limitation. Indeed they seem to me to be poorly directed as effective risk mitigation measures. In any event they go further than a justified limit.
Conclusion
[61]For the above reasons the application for the ESO is dismissed.
Cooke J
Solicitors:
Crown Law, Wellington for the Applicant
Cuba Family Law, Wellington for the Respondent
9
7
0