Department of Corrections v Mist

[2022] NZHC 2178

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-483-3

[2022] NZHC 2178

BETWEEN

THE DEPARTMENT OF CORRECTIONS

Applicant

AND

BASIL STEVEN MIST

Respondent

Hearing:

26 August 2022

Appearances:

J J Harvey for the Applicant

D M Goodlet for the Respondent

Judgment:

30 August 2022

JUDGMENT OF COOKE J

[1]    By application dated 4 March 2022 the Department of Corrections (the Department) applies for an Extended Supervision Order (ESO) under s 107F of the Parole Act 2002 (the Act). The Department also seeks an intensive monitoring condition for a period of 12 months under s 107IAC as part of the ESO. The applications are supported by a detailed psychological report from Ms Ruth Pracy dated 22 September 2021.

[2]    The applications are not opposed by Mr Mist. Ms Goodlet filed memoranda explaining the steps that have been taken by Mr Mist, including the instruction of an independent psychologist to provide advice, and advice from Ms Goodlet herself in relation to the extended supervision order, the intensive monitoring condition and their effect. Mr Mist has decided to consent to the applications after this advice.

THE DEPARTMENT OF CORRECTIONS v MIST [2022] NZHC 2178 [30 August 2022]

[3]    The applications were called on Friday 26 August where I heard submissions from Mr Harvey and Ms Goodlet, following which I decided that the applications should be granted in their terms. These are my reasons.

Background

[4]    Mr Mist has committed a series of sexual offences against girls between 1998 and 2002. The last offence resulted in a conviction for manslaughter when Mr Mist killed his 17 year old partner. A sentence of preventative detention was imposed on appeal by the Court of Appeal.1 The Supreme Court then overturned that sentence on the basis that such a sentence could not be imposed to someone of Mr Mist’s age.2 A sentence of 20 years’ imprisonment was then imposed by the Court of Appeal.3

[5]    Mr Mist has then committed further offending in prison, but more importantly he did not complete treatment programmes offered while in prison. He indicated that he wished to participate in the Te Piriti Special Treatment Unit rehabilitation programme in the last year before release, but the Department considered that by that stage there was insufficient time to complete the programme.

The requirements

[6]    Section 107I of the Act provides that the sentencing court may make an ESO. In the case of Mr Mist the ESO would arise under s 107I(2) on the basis that there has been a pervasive pattern of serious sexual offending, and that there is a “high risk” that Mr Mist will in future commit a relevant sexual offence. Under s 107IAA specific matters are identified which the Court must be satisfied of. Under s 105F(2A) an application for such an order must be accompanied by a report by a health assessor directed to the matters that arise for the Court’s determination. As indicated such a report has been provided here.

1      R v Mist [2005] 2 NZLR 791 (CA).

2      Mist v R [2005] NZSC 77.

3      R v Mist [2007] NZCA 352.

[7]    In the present case the orders are not opposed by Mr Mist. He agrees, after taking advice from an independent psychologist and counsel, that such orders will help in providing him with the assistance that he will need to avoid re-offending.

[8]    When an application is not opposed it remains necessary for the Court to satisfy itself of the pre-requisites for the making of such an order, and it is also necessary for the Court to set out the basis of that satisfaction in a judgment. In short, the requirements of the legislation, and of open justice still need to be satisfied.

[9]    In Chisnall v Attorney-General the Court of Appeal declared that the terms of the legislation allowing imposition of an ESO were inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990.4 Leave to appeal to the Supreme Court has been granted.5 I have suggested that Chisnall may give rise to a need for some recalibration of the approach taken to the imposition of such orders.6 The Court of Appeal has also recently re-addressed Mr Chisnall’s case, and whilst it has not referred to any recalibration the Court has referred to giving the legislation as rights of complaint an interpretation and application as is available within the terms of the legislation.7

[10]   When such orders are consented to there is a different perspective, however. It will remain necessary for the Court to find that the imposition of the orders is demonstrably justified in a free and democratic society. The level of the risk, and need to protect the public will need to be addressed in that light. But the further perspective arises from the appreciation by the person who is the subject of the application that the measures sought to be imposed are thought to be to their ultimate benefit. Mr Mist does not wish to re-offend. He needs assistance to help him in that objective. Following him obtaining advice he consents to what is proposed. I accept that this consent is a fully informed one. That is a relevant circumstance when assessing whether the ESO order should be made in the terms sought, and whether the intensive monitoring condition should be imposed.

4      Chisnall v Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107.

5      Attorney-General v Chisnall [2022] NZSC 77.

6      Department of Corrections v Gray [2021] NZHC 3558.

7      Chisnall v Chief Executive Department of Corrections [2022] NZCA 402 at [22].

[11]   I also consider that it is of significance that Mr Mist has the ability to apply to discharge the ESO under s 107M if he became of the view that the limitation of his rights arising from the ESO were no longer justified. If such an application were later made it would be relevant that the initial order was not opposed, and there has been no contest in relation to the relevant facts and circumstances.

Assessment

[12]   Ms Pracy has provided a comprehensive assessment of the risks associated with Mr Mist in her report. Based on that report, and Mr Mist’s circumstances, I accept that he is at a high risk of committing further serious sexual offences on release if he is not subject to the significant controls involved in the ESO, and that an intensive monitoring condition is justified for the first 12 months following release.

[13]   A number of risk assessment tools have been applied by Ms Pracy, and those record him as being at a high risk of imprisonment within a period of five years of release, although some have put him as an average risk. Ms Pracy says:

Overall, based on static and dynamic risk factors, Mr Mist is considered to share the characteristics of a group of men at high risk for sexual offending and high risk of violent offending. Future violent offending is most likely to occur in domestic-type situations with people known to him, or may occur to facilitate sexual offending. Should he choose to offend violently, such offending may range from threats to serious assaults with the use of weapons (such as that which resulted in the death of his partner). Based on his history, should he choose to sexual re-offend, such offending is more likely to involve female victims aged from seven years to mid-teens. Should he continue to follow the same offence pathways, either offence-type may involve the use of coercion, threats, or weapons to facilitate offending, and sexual offending may also involve the use of alcohol and/or facilitation of victim access via an intimate partner or other victims.

[14]   Mr Mist also has no personal support, community support, or a possible release address. Without some form of protections on his release I conclude that it is highly likely he would sexually offend again, and also offend violently. In effect this is recognised by him. His counsel reports that he has been working very closely with his case manager at Kaitoke Prison to talk about the practicalities and logistics of an intensive monitoring condition, and that he believes that in his circumstances he would benefit from it. A particular facility has been identified with which he can be associated for that purpose.

[15]   For the reasons identified in Ms Pracy’s report I also accept that each of the necessary matters identified in s 107IAA are present.

[16]   For these reasons it is appropriate that an ESO be put in place on standard conditions for a period of 10 years, and that there be an intensive monitoring condition under s 107IAC for a period of 12 months. The ESO is to take effect from 4 January 2023. It is anticipated that Mr Mist may be released by the Parole Board prior to that time which will allow the Board to impose conditions mirroring those that I am imposing.

[17]Leave is reserved to address other matters that I may have overlooked.

Cooke J

Solicitors:
Wilkinson Smith Lawyers, Whanganui for the Applicant