Department of Corrections v M

[2020] NZHC 220

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-312

[2020] NZHC 220

BETWEEN

DEPARTMENT OF CORRECTIONS

Applicant

AND

M

Respondent

Hearing:	5 and 9 December 2019
Counsel:	BD Tantrum and NE Town for applicant CG Wright for respondent
Judgment:	9 December 2019
Reasons:	20 February 2020

REASONS JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 20 February 2020 at 11:30 am.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Public Defence Service, Auckland

Department of Corrections v M [2020] NZHC 220 [20 February 2020]

Introduction

[1]    On 5 and 9 December 2019, I heard the applicant’s (the Department’s) application for an extended supervision order (ESO) in relation to the respondent. At the conclusion of the hearing, I declined the application. I stated that my detailed reasons for doing so would follow, but in summary, that I was not satisfied:1

… M displays either or both the characteristics set out in s 107IAA[1](d) of the Parole Act 2002 (Act) concerning lack of acceptance of responsibility or remorse; and/or an absence of understanding for or concern about the impact of the offending on actual or potential victims). I also have real doubts as to whether that characteristic set out at s 107IAA[1](a) (an intense drive, desire, or urge to commit a relevant sexual offence) is presently possessed by M…

[2]    This judgment sets out my detailed reasons for declining the Department’s application.

Factual background

[3]    M’s early childhood environment was generally described in the materials before me as abusive, in which he was subject to physical and sexual abuse by adults known to him, as well as bullying from his peers.

[4]    It is suggested that at some stage prior to his first recorded sexual offence in 1992, M was charged with sexual offences against a complainant who was aged     14 years at the time. A report pursuant to s 121 of the Criminal Justice Act 1985 noted that M was charged after he had approached the Police to confess his offending. He was convicted and subject to periodic detention. I note that there is no formal record of this on M’s conviction history.2

[5]    M was convicted for further sexual offending in 1992 at the age of 21, on a charge of sexual intercourse with a female aged 12 to 16 years old. While no documentation was available in relation to this offending, M reported that he met a 12-year-old female at a party, though was under the impression she was 17. They began living together almost immediately after meeting and she fell pregnant to him.

1      Chief Executive of the Department of Corrections v M [2019] NZHC 3231 at [3].

2      However, the Court may consider any information that it thinks fit for the purpose of determining the application, whether or not it would be admissible in a court of law. Parole Act 2002, s 107H(2).

M stated that when he later discovered she was under Social Welfare care and living in a foster home, and after becoming aware of her actual age, he voluntarily attended on the Police and confessed to the relationship.

[6]    Shortly thereafter, M began a relationship with a woman who he eventually married and was with for some 14 years. The relationship was troubled, and there were frequent separations. The couple had five children together.

[7]    In 2005, M was convicted of one count of sexual violation by rape of a female under 12, five counts of sexual violation of a female under 12 and two counts of inducing a female under 12 to do an indecent act. The offending was against M’s two daughters, over a period of approximately 4 and a half years.

[8]    Although M’s trial for this offending had taken place in the District Court, the Crown sought a sentence of preventive detention. The matter was accordingly transferred to the High Court and M was sentenced by Allan J on 21 February 2006.

[9]    M had to that point denied his offending. But in a second pre-sentence report, he was recorded as having acknowledged his offending and expressed deep regret for the harm caused. When sentencing M, Allan J stated:3

You have even indicated you are willing to be de-sexed as you put it, to prevent you from offending in the future. While on remand you have attended a life skills programme, and you have indicated your willingness to attend further programmes while in custody, such as the programme at Te Piriti.

[10]   Allan J made the obvious point that while M’s dramatic change of mind was welcome, it did require careful consideration, and it was regrettable it had not come before trial and thus spared his daughters the ordeal of giving evidence.

[11]   Turning to whether a sentence of preventive detention should be imposed, Allan J considered the case finely balanced. Ultimately he did not consider it appropriate to do so. He nevertheless said: “M, to some extent you are getting the

3      R v M HC Auckland CRI-2004-90-7513, 21 February 2006 at [11].

benefit of a doubt”.4 He sentenced M to 15 years’ imprisonment with a minimum period of imprisonment of nine years.

[12]   As matters have transpired, it seems M’s attitude at the time of sentencing, while belated, was genuine. During his time in custody, he completed the child sex offender special programme, Te Piriti, in 2014 and 2015. By all accounts he participated successfully in that programme. He was also prescribed medication for his anxiety, which was followed by a significant improvement in his self-management.

[13]   M was released on parole on 13 March 2017. Since that time, he has been under intense supervision and management.5

[14]   M is now 49 years of age. He lives at a Housing New Zealand apartment in Greys Avenue in Central Auckland. At the time of the hearing before me, he was unemployed, but engaged in employment-related training and counselling. He is motivated to seek gainful employment. Counsel for M, Mr Wright, acknowledged that there have been some breaches by M of his parole conditions, but notably, there has been no suggestion of an increased risk of sexual offending.

[15]   Not long after being released on parole, M began a short-lived relationship with an adult woman. He attempted suicide by overdose due to that relationship failing.  M subsequently commenced another relationship with an adult woman which lasted for some time, but by all accounts, it was also tumultuous. By the time of the hearing, he had extracted himself from that relationship.

Legal principles

[16]   For the Court to impose an ESO, an offender must be an “eligible offender” under s 107C of the Parole Act 2002 (the Act). There is no dispute M is an eligible offender.

[17]Section 107I sets out the purpose of and grounds for making an ESO:

4 At [52].

5      His parole conditions expired on 12 February 2020. The Department filed its application for an ESO in June 2019.

107I     Sentencing court may make extended supervision order

(1)The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.

(2)A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2A), that—

(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and

(b)either or both of the following apply:

(i)there is a high risk that the offender will in future commit a relevant sexual offence:

(ii)there is a very high risk that the offender will in future commit a relevant violent offence.

(3)To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.

(4)Every extended supervision order must state the term of the order, which may not exceed 10 years.

(5)The term of the order must be the minimum period required for the purposes of the safety of the community in light of—

(a)the level of risk posed by the offender; and

(b)the seriousness of the harm that might be caused to victims; and

(c)the likely duration of the risk.

[18]   In this case, it was accepted that M has, or has had, a pervasive pattern of serious sexual offending. Accordingly, the issue for determination under s 107I was whether there is a high risk that M will in the future commit a relevant sexual offence.

[19]   Section 107IAA specifies certain criteria that must be met before the Court can be satisfied that there is such a high risk:

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.

…

[20]   While these four pre-conditions are expressed in the present tense, the Court of Appeal confirmed in Alinizi that they do not necessarily need to be presently manifested at the time the application for an ESO is determined.6

[21]   It is accepted on behalf of M that he has a predilection or proclivity for serious sexual offending. The issues arising under s 107IAA were accordingly whether I was satisfied M:

(a)displays an intense drive, desire or urge to commit a relevant sexual offence;

(b)has limited self-regulatory capacity; and

(c)displays either or both of:

(i)a lack of acceptance of responsibility or remorse for past offending:

6      Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468.

(ii)an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims.

[22]   If satisfied an ESO should be imposed, the Court must then consider its duration. The maximum term is 10 years. In this case, the Department sought the ESO for a term of three years.

[23]   Any application for an ESO must be accompanied by a report of a health assessor (as defined in the Sentencing Act 2002).7 While the Court must take into account the advice of any health assessors when considering an application for an ESO, whether such an order should be made is ultimately one of judicial judgment.8 Given the restrictions an ESO places on many aspects of an offender’s life,9 the threshold for making an ESO is high.10 An ESO is punitive in nature and is in effect  a retrospective criminal punishment.11

The health assessor reports

Report for the Department

[24]   Ms Fon, a registered clinical psychologist, carried out an assessment of M and set out her conclusions in a report dated 4 March 2019 (March Report). She also prepared an updating report in November 2019 (November Report), and gave evidence before me at the hearing. The following is a brief summary of her evidence.

[25]   Ms Fon first considered M’s early childhood environment. In her view, it led to M suffering from low self-esteem, as well as having problems developing healthy relationships, regulating his emotions and problem-solving.

7      Parole Act 2002, s 107F(2).  The Department’s application was accompanied by a  report by   Ms Fon, a registered clinical psychologist. In response, M submitted a report of Ms Issacson, also a registered clinical psychologist.

8      Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [27].

9      Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4].

10 See Chief Executive of the Department of Corrections v T [2017] NZHC 2179 at [13]; Chief Executive of the Department of Corrections v Clark [2017] NZHC 771 at [5]; and Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [57].

11 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [49] and [52].

[26]   Addressing M’s index offending, Ms Fon stated that “M’s difficulties with maintaining a satisfying intimate relationship with his wife was a central factor to his offending”. She noted M’s admission of his sexual offending, but that he continued to specifically deny any penile/anal penetration (and to minimise the level of intrusiveness of his penetrative assaults).

[27]Ms Fon also considered a range of assessments of M over time. She stated:

Across assessments M appears to have variously admitted to a generalised sexual attraction to prepubescent children. When asked whether he had acted on any deviant ideation towards other children in the past, he stated that he had been deterred by the fear of being physically harmed by the children’s parents. M appeared to understand the greater impact his offending will have had upon his victims and that these effects were likely to be enduring. It was noteworthy however, that his first response to a question of likely impact was self-referential about his daughters missing out on his physical presence in their lives, rather than the significant psychological impact the deviant aspects of his sexual offending will have had upon them. M appeared remorseful, with an expressed sense of disgust and shame regarding his offending behaviour. He emphasised several times that he wished to engage in a restorative process with his children, which had been his wish since early in his prison sentence.

[28]   Ms Fon then addressed the treatment provided to M during his incarceration. As noted, he completed the Te Piriti Special Treatment Unit programme between August 2014 and May 2015. Ms Fon noted that “within group M was said to be an active participant who was observed to take responsibility for his offending behaviour and expressed remorse in a congruent manner. He was considered to have made a genuine effort to understand his offending”.

[29]She went on to note:

The [Te Piriti] exit report noted that despite his gains, there were concerns regarding M’s ability to consistently and effectively employ more adaptive coping skills. It was opined that he may be easily destabilised and return to old patterns on release and it was also suggested that he had under-estimated the degree of challenge involved.

[30]   Ms Fon stated “overall this personality structure suggests a pervasive difficulty forming and maintaining positive and supportive relationships with others accompanied by an overly negativistic view of life”.

[31]   Ms Fon went on to assess M’s risk of reoffending using two risk screening instruments. The first was the Automated Sexual Recidivism Scale-Revised (ASRS- R). Ms Fon described this as a “brief actuarial static risk screening instrument designed to estimate the likelihood of further convictions for sexual offences among offenders who have already been sentenced in the New Zealand District or High Court for a sexual offence”.

[32]   M’s ASRS-R score placed him at a medium-low risk of further sexual offending. Ms Fon noted that for all sexual offenders within the same score as M, the five-year recidivism rate is 6.35 per cent. The recidivism rate for offenders in that risk bracket with child sex offences is 6.93 per cent in the five-year period following release, and 9.62 per cent in the ten-year period following release.

[33]   The second assessment measure used by Ms Fon was the Violence Risk Scale: Sexual Offence version (VRS:SO). This assesses a range of dynamic, rather than static, factors. Under this, M was assessed as being at the low end of the high-risk category. The established sexual recidivism rate for persons with the same VRS:SO score as M after five years is 15.3 per cent and after 10 years, at 23.9 per cent.

[34]Having completed these assessments, Ms Fon stated the following:

Analysis of M’s current presentation suggests that compared to his presentation pre-treatment he has likely made slow and incremental progress on items related to insight, cognitive distortions, interpersonal aggression, impulsivity, his release proposal, and his use of community supports. He successfully completed treatment and has gained an understanding of his deviant lifestyle pattern and deviant sexual preferences. There is no suggestion that he has engaged in any deviant sexual activity or fantasies regarding children or urophilia across his release period. His present level of sexual preoccupation is considered managed. M has been in the community for over 22 months and is increasingly establishing stability. He continues however, to experience marked difficulties in the areas of intimacy and emotional regulation, and continues to be rated highly on the deviance sub scale factors largely due to the lifetime scoring of these items and the slow change that is often observed in these factors.

[35]   In considering both the ASRS-R and VRS:SO ratings, Ms Fon concluded there was a high risk of M committing a further relevant offence while in the community. She noted, however, that while he was considered to present as high risk:

…the situations under which further offending is likely to occur is primarily those that mimic his index offending. Any further offending is likely to be perpetuated against prepubertal and/or pubertal females who are known to M and over whom he has formed a trusting, caretaking role.

[36]   Ms Fon then turned to the risk factors under the Act. As to whether M displays an intense drive, desire or urge to commit a relevant sexual offence, Ms Fon said the following (in her March Report):

Since completion of treatment and release into the community there is no current evidence of M’s engagement in deviant sexual activity or ideation. He has shifted from denial to acceptance, and developed insight into how his sexual urges and deviant arousal contributed to his offending. While M clearly displayed evidence of an intense drive and urge to commit sexual offences in the past, there is no evidence to suggest that he continues to experience any desire or urge to offend since completion of treatment.

(emphasis added)

[37]   In terms of M’s self-regulatory capacity, she noted that M had generally improved self-regulatory capacity, although continued to rely heavily upon others to assist him with problem-solving, managing his anxiety and with general self- management.

[38]   In relation to an acceptance of responsibility and remorse, Ms Fon noted that M “displays considerable remorse and disgust regarding his conduct”. She noted that while he denied some of the intrusive aspects of his offending, since he decided to admit to the offences, he has been open regarding the nature of his offending. She concluded “overall M is considered to accept responsibility for his offending and his remorse is considered genuine”.

[39]   As to M’s understanding for or concern about the impact of his sexual offending on actual or potential victims, Ms Fon stated that while he is aware of the harm that his actions have caused his two daughters “he may not truly be able to comprehend the emotional perspective of his victims”. She noted that M’s desire to engage in restorative justice with his victims:

…suggests that he may not fully appreciate the degree of emotional impairment that he has caused them and the likely trauma his reappearance in their lives may generate. In my opinion, M has a cognitive appreciation of the impact of his sexual offending upon his victims but lacks the nuanced understanding that reflects an emotional appreciation.

[40]Ms Fon concluded as follows:

As M’s risk for further offending is only likely to occur within a relationship context, this may not present for some time, even years. He is considered less likely to groom children outside  of  a  familial  context.  M  has  just  over 12 months remaining of his current sentence. As M’s risk is considered to fall at the lower end of the high-risk band, it is possible that by the end of his sentence that he is displaying improved self and emotional regulation skills and may fall under the threshold of high risk. It is therefore recommended that a re-assessment of his risk and the benefit of prolonged monitoring occur towards the end of this period.

[41] Ms Fon accordingly reassessed M in November 2019 (that is, her November Report). The overall theme of this report was that M had regressed somewhat, or at least not progressed as she would have hoped since her last assessment. Much of this stemmed from the issues arising from the relationship M had been in since the prior assessment (as noted at [15] above), as well as concerns arising out of M being untruthful at times with his parole officer as to that relationship and the purchasing of alcohol. This gave Ms Fon some concern in fully relying on M’s self-reports (as to, for example, not accessing any inappropriate deviant material). Nevertheless, Ms Fon noted that M had made progress in forming more connections in the community. While from time to time he has triggered his GPS alerts due to being on the edges of exclusion zones, it did not appear that he had been in or near non-permitted areas such as parks or schools.

[42]   Ms Fon also stated that it appeared M had regressed somewhat in acceptance of responsibility for his index offending, given a new probation officer had recorded that M had:

…stated that his ex-wife does not believe that he committed the offences he committed and that the victims are also confused as to why he was charged with something he did not do to them. M denied his offending and stated that the charges were misconstrued. He admitted touching them but nothing more.

[43]   I note that Ms Fon does not record any similar sentiment being expressed by M to her in the November 2019 assessment. Indeed, and on the contrary, during that assessment, M maintained that his ex-wife was fully aware and accepting of his guilt.

[44]   Assessing his potential to re-offend, M’s ASRS-R and VRS:SO scores remained unchanged from the March 2019 assessment.  However, after having given

evidence at the hearing, Ms Fon was recalled to clarify that there was an error in this aspect of her November Report, and that M’s VRS:SO score actually put him at the high end of the medium-high risk category (that is, rather than the lower end of the high risk category). In making this clarification, Ms Fon stated that M “sits on that cusp, that he is on that downward trajectory, but that we haven’t seen sufficient time to be able to drop him into that lower risk.”

[45]   Addressing again the particular risks set out in s 107IAA of the Act, Ms Fon reiterated that:

… there is no current evidence to suggest that M continues to experience any desire or urge to commit a relevant sexual offence.

As opined in the initial health assessment, M is not considered to display an intense drive, desire or urge to commit a relevant sexual offence at this stage. M’s last sexual offending occurred 15 years ago and there has been no evidence of offence analogous behaviours resembling attempts to gain access to children over this period of release. However, as noted above M’s pathway through to offending is likely to be more passive. That is, he is more likely to place himself in situations where he is incidentally exposed to children through relationships that he develops with persons who may be more vulnerable. Thus, in M’s case the absence of evidence of any current drive, does not suggest that this would not be present and re-emerge should victim access occur.

[46]   I sought to clarify this aspect of Ms Fon’s evidence at the hearing. She stated that “this isn’t a slam dunk case,” but remained concerned at the signs of destabilisation in M’s life in the more recent assessment period. The following exchanges took place with her:

Q. … one of the factors I need to consider, I'm going to talk about it as a characteristic, is that the offender, M in this case, displays an intense drive, desire, or urge to commit a relevant sexual offence. Now the authorities have suggested that that characteristic, so displaying an intense drive, desire or urge to commit a relevant sexual offence, must be currently possessed by the offender though it need not have external expression. And when I look at paragraph 27 of your report and you say, "There is no evidence to suggest that he continues to experience any desire or urge to offend since completion of treatment." So really it's just to clarify, do you have a view on whether as a characteristic he currently has an intense drive, desire or urge to commit a relevant sexual offence even though it might not have manifested externally or are you saying in the future he may have that characteristic?...

A. … I don’t think we've had   sufficient  time  for  us  to  be  confident  that he doesn't continue to possess it. So, I don’t think it currently manifests but I don’t think we've had sufficient time to be able to say that it doesn't because it certainly was displayed and we've had a passage of time. But, he also has the underlying predilection and that is the continuation, that's what is kind of like latent that could re- emerge if activated.

Q. Well talking about predilection or proclivity for serious  sexual  offending, that's a separate factor that I must consider and I think both yourself and Ms Isaacson are in agreement that that is there, but in addition to that, I need to consider whether M currently possesses an intense drive, desire or urge to commit a relevant sexual offence. Now, the authorities do say well, if it’s clear that that factor clearly was there in the past and there’s nothing to suggest that it no longer subsists, then the Court may consider it’s still there because there’s nothing – and the Court’s given examples of a complete denial of offending lack of treatment … it strikes me that from what you’ve been saying there has been quite a lot of change, are you suggesting that not enough change to necessarily be comfortable that it’s – that prior trait hasn’t gone now? I don’t want to put words in your mouth but is that what you were saying earlier or?

A. It is. I don’t think I am at the position that  – I don’t – there's not an  active display of it, but I don’t think I'm in a position that I think that that intense drive is no longer a possibility so, I think that – it’s a characteristic that the person has, yeah? And so I think that there we haven't had sufficient time to be able to say that that no longer exists, that he no longer possesses it. And I think that that comes back to the evidence that we’re predominantly relying on self-report for that and he hasn’t been in situations where that would've been tested.

Q. …Just coming back to your second report, and it’s paragraph 35, on page 9 and I’mjust reallytryingto marrywhat you’ve said in your report to what we’ve just been discussing, and you say, “In some ways this is not considered to display an intense drive, desire, or urge to commit a relevant sexual offence at this stage,” and then there's some discussion you say, “Thus in M’s case, the absence of evidence of any current drive does not suggest that this would not be present and re- emerge should victim access occur.” So again, in terms of a characteristic of currently now possessing an intense drive, desire or urge to commit a relevant sexual offence, I just want to be really clear what you’ve said there, are you saying that he does currently possess that characteristic? Or he possesses other characteristics that are enduring that may mean that that characteristic, of that intense desire emerges, or re-presents at some point in time?

A.       Yes.

Q.       It’s the latter?

A.Yes.  That it’s a – this is a – this could re-emerge, that intense desire could re-emerge with victim access, yeah. But the propensity that he carries, the latent propensity that he  carries,  is there,  that's  what I'm suggesting.

Report for the respondent

[47]   Ms Isaacson, a registered clinical psychologist, was engaged by the defence to assess M and provided a report dated 5 November 2019.

[48]   Ms Isaacson reported similar characteristics in M to those reported by Ms Fon, including being prone to communicate in a somewhat verbose manner and over- inclusive of details, underlying anxiety, dysthymia and low self-esteem. She stated that his presentation was consistent with that described in previous psychological reports. She noted that while he continued to deny some of the more intrusive acts of his offending, M “discussed his index sexual offending, participation in specialist treatment and safety plan in an insightful and candid manner”. She went on to state that “his expressed sense of self-responsibility, remorse and victim empathy appeared sincere”.

[49]   She noted that alcohol abuse and associating with peers engaged in an unstructured lifestyle have been a particular feature throughout M’s life. Ms Isaacson noted, however, that neither have been directly linked to M’s child sexual offending. Having summarised  a  number  of  M’s  turbulent  relationships  over  the  years,  Ms Isaacson noted “he likely used sex to cope with negative emotions, low self-esteem and fear of rejection”.

[50]   Ms Isaacson’s overall views as to M’s presentation were similar to those of Ms Fon. She stated:

In summary, early developmental experiences and difficulty establishing an adaptive sense of social belonging resulted in M developing an enduring personality pattern underpinned by a sense of mistrust of others, fragile sense of self, attachment insecurity, inadequacy and sensitivity to criticism and rejection. His experience of sexual abuse during a critical period of psychosexual identity formation also resulted in distorted beliefs regarding sexual activity and emotional intimacy. He gravitated to the margins of society where he led a largely unstructured lifestyle and developed a sense of acceptance within a substance using and antisocial peer group. With that context, M struggled to develop secure intimate relationships. He used alcohol and sexual activity with similarly challenged women in order to cope with negative emotions and his deep sense of inadequacy and loneliness; rapidly forming intense but insecure attachments. His marriage evolved as one such relationship and M likely experienced his wife’s infidelity and sexual unavailability as rejection and justification for involving others in their sexual activity, his own infidelity and his later sexual offending.

[51]   Ms Isaacson referred to M’s expression during her assessment of a “continued sense of disgust in himself, remorse and victim empathy”. She stated “he was able to detail the negative and long-lasting impact of his offending on his victims. He also considered that they had lost his presence as a father and, in the future, he hoped to engage in a process of restorative justice”.

[52]   In terms of M’s treatment, Ms Isaacson observed M’s positive participation in the Te Piriti programme. She stated:

Within interview, M was able to discuss treatment concepts and strategies with good understanding. He identified his high-risk situations to include sexual preoccupation, loneliness, unbalanced lifestyle, inappropriate pornography, deviant arousal and being alone with children. He also identified his need to disclose his offending to others whom he intended to develop a relationship with and also to be mindful how others might perceive him because they would not know his intention to never reoffend. M reported that he continues to participate in the community relapse prevention group where he has developed a number of positive social supports. Overall, M was considered to have developed a good understanding of the drivers to his sexual offending, adaptive coping strategies and sincere motivation to desist.

[53]   Ms Isaacson then turned to M’s potential to reoffend. Like Ms Fon, she also carried out a risk assessment based on ASRS-R. On this measure, M received a total score which places him in the average risk of sexual reoffending.

[54]   Ms Isaacson also considered M’s risk assessment pursuant to VRS:SO. On this basis, M’s predicted five-year sexual recidivism was estimated to be between 3.5 and 8.8 per cent. His 10-year sexual recidivism was estimated to be between 6.2 per cent and 13.1 per cent. Ms Isaacson stated that this risk estimation converged with the ASRS-R results, and “is considered an accurate reflection of [M’s] current risk of sexual reoffending”. Ms Isaacson went on to state that:

… given that M was only released in March 2017, it is expected that his estimated risk will decrease commensurate with his time offence free in the community. It is the opinion of the writer M’s risk of sexual recidivism will be well-managed if he does not share a home with or become involved in a caretaking or trust position with children.

[55]On this basis, Ms Isaacson concluded:

It is estimated that M presents with an average risk of sexual re-offending. There was no evidence to suggest M presented a risk of sexual offending

against children unknown to him. M’s risk of sexual re-offending will most likely manifest within the home environment.

[56]   Ms Isaacson then turned the factors in s 107IAA of the Act. She noted that in the past, “M had exhibited an intense drive, desire or urge to sexually offend against his prepubescent daughters over a protracted period”. She referred to M’s consistent motivation to engage in treatment and his present understanding of his offending. Given these matters, Ms Isaacson stated “[I] agree with [Ms Fon] (4 March 2019) that M does not currently display an intense drive, desire or urge to commit a relevant sexual offence”.

[57]   In terms of self-regulatory capacity, Ms Isaacson noted that M’s enduring personality style indicates a difficulty in developing trusting relationships, a fragile self of self and sensitivity to criticism. Underlying symptoms of anxiety and depression also contribute to and exacerbate his episodic impaired self-regulation. However, Ms Isaacson stated:

… impressions formed during interview and available information, including comments in the health assessment report (4 March 2019) indicated that M is not generally inclined to impulsive and/or uncontrolled behaviour (observed across both community and prison settings).

[58]   Ms Isaacson accordingly opined that M has demonstrated adequate self- regulatory capacity in various areas of his life.

[59]   In terms of M’s acceptance of responsibility and remorse for past offending, Ms Isaacson was of the view that M genuinely accepts responsibility for his sexual offending and is remorseful for it. She was also of the view that M has gained an adequate understanding of the harm he caused his victims, though like Ms Fon, noted M has a tendency to become defensive in light of constructive criticism, which impairs his ability for critical self-reflection.

[60]Ms Isaacson concluded as follows:

The current assessment used a multi-method process to establish convergence amongst, and contribution of, individual risk factors for sexual offending. Based on this, M is assessed at Average risk of relevant sexual reoffending within a home environment through indecent assault, penile and digital penetration, anal penetration and coercing urophilia. Potential victims could

include pre- and post-pubescent female children known to him. To his credit, since incarceration, M has consistently expressed remorse, acknowledged responsibility and maintained motivation to desist from reoffending. He has successfully completed specialist treatment and he demonstrates treatment gains. There has been no sexual offence-paralleling behaviour.

It is considered that stringent restrictions [under his parole conditions] that hinder M from integrating within society and engaging in constructive activities (e.g., social activities, relationships, community areas such as parks, libraries, etc.,) could potentially aggravate his potential to relapse into substance use and/or associate with disenfranchised others. Considering M’s enduring personality style, low self-esteem and fragile sense of self it is considered risk mitigating that he is supported to engage in structured activities where he is able to strengthen a sense of efficacy and social contribution (e.g., paid or voluntary work).

Discussion

Does M display an intense drive, desire or urge to commit a relevant sexual offence?

[61]   Mr Tantrum, counsel for the Department, submitted that overall, the Court could be satisfied this underlying characteristic is present in M, even though it may not manifest or present until he is in circumstances mirroring those present in his index offending. Mr Tantrum quite responsibly recognised, however, that across her written and oral evidence, Ms Fon was not clear on whether this characteristic presently exists.

[62]   Mr Wright naturally pointed to Ms Isaacson’s quite  clear  views  and  that Ms Fon’s (potentially) different views in her November Report and at the hearing are based on M’s enduring personality traits, rather than a current and intense drive, desire or urge to commit a relevant sexual offence. Given the high threshold for the imposition of an ESO, Mr Wright submitted that on the basis of all the information, the Court simply could not be satisfied of this pre-condition.

[63]   As I summarised in my result judgment, based on all the evidence, I have real doubts as to whether M currently displays this characteristic, rather than there being a risk of it re-emerging over time (given M’s underlying personality traits). There is no doubt M has personality characteristics which manifest in difficulties forming meaningful relationships and confusing sexual and emotional needs. But I am not satisfied this in and of itself translates to M currently having an intense drive, desire or urge to commit a relevant sexual offence. And while it is clear M previously had this characteristic, this case is relatively far removed from those in which the offender

continues to deny their offending and/or has not engaged in treatment for it, and where the Court will reasonably readily infer the characteristic remains. This is reinforced by both experts observing that, despite M being under somewhat “microscopic” monitoring and oversight since his release, there have been no signs of behaviours consistent with this characteristic. Ms Isaacson in particular noted that if M currently had an intense drive, desire or urge to commit a relevant sexual offence, and given the very detailed oversight of him, “some indicator” that he was gravitating to offending “would have leaked out”.

[64]I accordingly do not consider this risk factor to be present.

Does M have a predilection or proclivity for serious sexual offending?

[65]   As noted earlier in this judgment, both experts agreed this characteristic was present and  Mr  Wright  did  not  suggest  otherwise.  Having  read  Ms Fon  and  Ms Isaacson’s reports, there is no principled basis for me to reach an alternative conclusion. I am accordingly satisfied this risk factor is present.

Does M have limited self-regulatory capacity?

[66]   There are clearly some concerns around this factor. M has, since his release, put himself in difficult relationships and then has had difficulty extracting himself from them. He is over-sensitive to criticism and seeks to relationship-manage.

[67]   This risk factor is finely balanced. But standing back, and despite M’s very positive engagement in his treatment, his underlying personality traits do suggest he has an ongoing difficulty with self-regulation. On balance therefore, I find this risk factor to be present.

Does M display a lack of acceptance of responsibility or remorse, or an absence of understanding for or concern about the impact of his sexual offending?

[68]   In his oral submissions at the conclusion of the hearing, Mr Tantrum accepted that he could not submit M has an “absence” of understanding for or concern about the effect of his offending on his victims. In my view, this was a proper concession. While his understanding may not yet be described as “full” or “perfect”, both experts

considered it adequate. I agree. The statute does not require a “counsel of perfection” in this context.

[69]   The evidence overall also demonstrates that M’s level of remorse and acceptance of responsibility for his offending is, in substance, significant and genuine. The overall theme over a relatively long period has been one of M’s acceptance of his offending, feelings of self-disgust and remorse. I do not consider his ongoing desire to engage in restorative justice with his daughters undermines this. Rather, it appears to represent a misguided attitude that doing so will somehow assist his victims. That misguided view does not alter M’s demonstrated and genuine remorse for his offending.

[70]Accordingly, this risk factor is not made out.

Conclusion

[71]   Given I was not satisfied M currently displays an intense drive, desire or urge to commit a relevant  sexual  offence,  and  that  neither of those  factors  set  out  at  s 107IAA(1)(d) of the Act are present, it was not possible for me to conclude that there is a high risk of M committing a relevant sexual offence in the future.

[72]These are my reasons for declining to grant the application.

Fitzgerald J